United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30315

____________

United States of America, 

Plaintiff—Appellee, 

versus

Joseph Boswell, Sr., 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:18-CR-162-1 

______________________________

Before King, Ho, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

This appeal follows a jury verdict finding Defendant Joseph Boswell 

guilty of bankruptcy fraud, in violation of 18 U.S.C. § 152(1), and tax evasion, 

in violation of 26 U.S.C. § 7201. Boswell contends that his bankruptcy-fraud 

conviction (Count One) was untimely and that the conviction must be 

reversed. He also argues that the Government’s evidence at trial as to both 

counts impermissibly deviated from the charges as stated in the indictment; 

or alternatively, that the Government’s evidence was insufficient for 

conviction. Finally, he contends that the district court lacked jurisdiction to 

order restitution as a condition of supervised release while an appeal is 

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2024

Lyle W. Cayce

Clerk

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2

pending. For the following reasons, we REVERSE as to Count One and 

otherwise AFFIRM.

I. Factual Background

Boswell operated a business that cleaned and serviced pizza ovens for 

restaurant chains nationwide. Around 1995, Boswell stopped reporting his 

income and paying his taxes. When Boswell later filed for bankruptcy in 2011, 

he claimed to owe $751,000 in back taxes to the IRS covering the years 2001 

through 2010.

While the IRS investigated Boswell and began enforcement efforts in 

the 2000s, Boswell operated his pizza oven services through various 

corporate entities. For example, in 2001, Boswell incorporated Bosco 

Services Group, LLC. Boswell also worked for Franchise Services Group,

Inc., which was owned by Marcia Boswell, his then-wife, and Howard Wells, 

a childhood friend who had loaned him money. Wells claims that Boswell 

established Franchise Services Group with Marcia and Wells as owners to 

ensure that Marcia would receive an allowance and that Wells would be paid 

the money he was owed. This explanation is corroborated by a letter Boswell 

sent Wells sometime after 2008, in which he wrote that he formed Franchise 

Services Group to “make [Wells] and Marcia happy” and so that he could be 

“held accountable.”

Boswell faced several financial setbacks throughout the 2000s. After 

Hurricane Katrina, Boswell’s revenue decreased, and some of Boswell’s 

crew members began working directly with pizza franchises, which cut off 

Boswell’s business. In 2007, after Wells sought a judgment against Boswell 

for $177,000 of debt, Boswell and Wells signed a promissory note to schedule 

Boswell’s payment of this amount plus interest. In 2008, Marcia filed for 

divorce, resulting in a consent judgment that required Boswell to pay $1,000 

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3

per month for ninety months for Marcia’s share of the equity of their home 

on Horseshoe Drive in Alexandria, Louisiana (the “Horseshoe house”).

Following the divorce, Boswell began working for Patriot Green 

Technologies, Inc. (“Patriot Green”), which was incorporated in 2008 in the 

name of Boswell’s sister, Brenda Murphy. The Horseshoe house, where 

Boswell, Murphy, and Murphy’s husband lived, served as Patriot Green’s 

corporate headquarters. The Government alleges that Murphy only 

nominally owned Patriot Green and that Boswell used the corporate entity to 

evade debt owed to the IRS and other creditors. In support of this theory, the 

Government references the aforementioned letter that Boswell wrote to 

Wells, in which he admitted that a levy from the IRS caused Boswell to 

“move things to a corporate structure that takes things out of my direct 

control in order to protect my ability to have income move to you instead of 

to [the IRS].” At trial, Wells testified that when he confronted Murphy about 

her role at Patriot Green, she admitted that “[Boswell] was running 

everything and set everything up and handling all that” and that her name 

was “just put . . . on the paperwork to help him out.”

Notably, as of 2010, Boswell did not have any bank accounts in his 

name. Patriot Green, on the other hand, maintained multiple business 

accounts, with Murphy and Tracy Boswell, Boswell’s current wife, as the 

account signatories. These accounts received hundreds of thousands of 

dollars in revenue between 2011 and 2013. During that same period, 

hundreds of thousands of dollars were withdrawn from these accounts in 

cash. The Government highlighted Patriot Green business account #7472, 

which had debit cards issued to Murphy, Tracy, and Boswell. From 2011 to 

2013, Boswell spent from $48,401.71 to $98,011.42 annually using this card, 

including thousands of dollars spent on vacation expenses. Boswell also had 

several debit cards linked to a Green Dot Bank deposit account, which was 

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funded through deposits from Patriot Green and was used to make personal 

purchases.

Shortly after Patriot Green was incorporated, Boswell lost the 

Horseshoe house in foreclosure. In September 2011, Boswell filed a voluntary 

petition for Chapter 7 bankruptcy. He reported total liabilities of over $1.6 

million, including the $751,000 owed to the IRS in back taxes, and he 

reported $17,500 in total assets. When listing his personal property, Boswell 

reported that he had no value in any checking, savings, or other financial 

accounts; no interests in partnerships or other joint ventures; no accounts 

receivable; and no licenses, franchises, or other general intangibles. He also 

reported wages of $950 per month as an employee of Patriot Green.

In 2012, while Boswell’s bankruptcy case was pending, Cheswell 

Unlimited, LLC was incorporated in the name of Lonnie Chestnut, Boswell’s 

friend and business associate. Boswell began negotiating the repurchase of 

the Horseshoe house, informing the house’s owner that the house would be 

titled to Cheswell Unlimited. Ultimately, the deal between the house’s 

owner and Cheswell Unlimited fell through. However, Boswell was 

permitted to move into the Horseshoe house, and Patriot Green cut checks 

labeled “rent” to the house’s owner.

In January 2013, Frances Hewitt, an attorney for the Office of the U.S. 

Trustee, interviewed Boswell as part of his bankruptcy case. When asked why 

he “put [Patriot Green] in Mrs. Murphy’s name,” Boswell responded:

I have—as you probably know, I’ve got a ton of back taxes to 

settle, which I was trying—I was working with the IRS to work 

on a settlement before I filed bankruptcy and they told me once 

I filed, that we just had to put the brakes on all that until this 

was over with. So one of the concerns I did have was starting 

another entity where I had to go get bank accounts and 

everything else and try to start again with almost nothing and 

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have the IRS—I heard plenty of horror stories, the IRS just 

seizing everything, so I was fixing to be dead in the water.

In March 2013, still while Boswell’s bankruptcy case was pending, 

Tiki Pizza, LLC was incorporated in the names of Murphy and Boswell’s son, 

Joseph Boswell Jr., who was still in high school. Boswell closed on the sale of 

the Horseshoe house, and the sale was recorded in Tiki Pizza’s name. In May 

2013, Ambient Solutions, LLC was incorporated in Murphy’s name. The 

Government claims that Ambient Solutions was yet another one of Boswell’s 

nominee businesses.

On August 29, 2013, the bankruptcy court issued a judgment denying 

Boswell a discharge. Boswell’s bankruptcy case was closed on October 29, 

2013.

II. Indictments and Pre-trial Motions

On July 13, 2018, the Government obtained a single-count indictment 

against Boswell for “Concealment of Assets” in violation of 18 U.S.C. 

§ 152(1). The indictment alleged that Boswell “did knowingly and 

fraudulently conceal property belonging to” the bankruptcy estate, 

specifically “fees earned from nominee businesses and service contracts, 

from the trustee charged with control of the debtor’s property and from the 

creditors and the United States Trustee.” The Government, without 

providing any reasoning in support, filed a motion to seal the indictment until 

Boswell’s arrest. The magistrate judge ordered the sealing of the indictment 

that same day. The parties agree that this original indictment was sealed one 

month before the five-year statute of limitations for a bankruptcy-fraud 

charge against Boswell was set to expire on August 29, 2018. See 18 U.S.C. 

§ 3282.

On February 28, 2019, the Government obtained a two-count 

superseding indictment. The “Concealment of Assets” count (Count One) 

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was relabeled “Bankruptcy Fraud,” alleging Boswell fraudulently concealed 

“monies earned from nominee businesses and service contracts.” Count 

Two of the indictment, “Attempt to Evade and Defeat Payment of Tax,” in 

violation of 26 U.S.C. § 7201, alleged that “[o]n or about September 22, 

2011, continuing until August 29, 2013,” Boswell “did willfully and 

knowingly attempt to evade and defeat the collection of income taxes due and 

owing by him to the United States of America for the calendar years 2001 

through 2009 by concealing and attempting to conceal from the IRS the 

nature and extent of his assets and the location thereof, in placing funds and 

property in the names of nominees.” Again, the Government moved to seal 

the indictment without explanation, and the magistrate judge granted the 

Government’s request. Thereafter, the district court granted the 

Government’s motion to unseal the indictments on March 20, 2019, and 

Boswell was arrested that same day.

On July 1, 2019, Boswell filed a motion for a bill of particulars pursuant 

to Federal Rule of Criminal Procedure 7(f). Boswell argued that he could not 

adequately prepare a defense on either count of the indictment. Boswell 

requested a bill that would require the Government to disclose: (1) “exactly 

what property was alleged to have been concealed from the bankruptcy 

estate”; (2) “exactly when, where, and how it is alleged Boswell concealed 

the property identified”; (3) “exactly what funds and property Boswell is 

alleged to have placed in the names of nominees”; and (4) “the ‘affirmative 

act’ that Boswell is alleged to have committed in order to evade or defeat 

assessment of income taxes.” In response, the Government asserted that 

discovery disclosures sufficiently apprised Boswell of the theory of the 

Government’s case against him. The district court agreed with the 

Government and denied Boswell’s request, reasoning that “Boswell can 

make the requests he outlines . . . as to the requested bill of particulars 

through the discovery process.”

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Also on July 1, 2019, Boswell moved to dismiss Count One of the 

indictment. Boswell argued that, because the Government lacked a legitimate 

purpose for sealing the original indictment, the statute of limitations was not 

tolled by sealing, and therefore, Count One was untimely when the 

indictment was unsealed on March 20, 2019. Boswell further argued that 

even if the Government had a legitimate reason to seal, the statute of 

limitations was not tolled because Boswell was prejudiced by the 

Government sealing the indictment. Specifically, Boswell argued that 

because he was kept in the dark about the bankruptcy-fraud indictment, he 

was unable to instruct his bankruptcy attorney to preserve his client file, 

which could be destroyed five years after the termination of the 

representation. The client file was indeed destroyed, erasing evidence that 

Boswell could have used to establish an absolute defense of good faith 

reliance on advice of counsel.

The Government asserted the following “legitimate prosecutorial 

purpose” for sealing in response to Boswell’s motion:

As the investigation developed, the government identified 

potential co-conspirators that required further investigation 

and approval . . . . A pattern of conduct identified in the 

bankruptcy fraud investigation showed that the potential coconspirators were a component part of the scheme to defraud 

and assisted the defendant in creating nominal businesses to 

hide assets and income obtained by him. Therefore, leaving the 

indictment unsealed would potentially alert the coconspirators.

The Government further contended that any exculpatory evidence contained 

in the destroyed case file could be found in alternative sources, so Boswell 

was not actually prejudiced. Again, the district court agreed with the 

Government and denied Boswell’s motion, concluding that the Government 

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had established a “legitimate prosecutorial objective in sealing the 

indictment.”

The district court also granted a series of continuances for the trial 

date. The trial was originally set for January 3, 2022, but the district court 

granted the Government’s request for a continuance to accommodate the 

medical needs of a witness, and the trial was reset to June 13, 2022. Then, 

during April and May of 2022, the Government disclosed new evidence. 

Boswell moved to exclude any evidence disclosed after January 2022 under 

Federal Rule of Criminal Procedure 16, or alternatively to continue the trial 

to provide Boswell an opportunity to review the newly disclosed evidence. 

The district court granted Boswell’s continuance motion and set the trial for 

September 12, 2022.

III. Jury Trial and Sentencing

During the six-day jury trial in September 2022, the Government 

alleged that Boswell used corporate entities nominally owned by family 

members to conceal his assets from both bankruptcy creditors and the IRS. It 

called as witnesses employees of the U.S. Trustee’s Office and the IRS who

investigated Boswell. It also called Boswell’s ex-wife, Marcia, who testified 

about Boswell’s use of multiple corporate entities to carry out his business, 

and creditor Wells, who testified about Boswell’s use of corporate entities to 

evade the IRS.

Conversely, Boswell’s attorney relied on the testimony of Brenda 

Murphy and Boswell’s son, who testified that they were the legitimate 

owners of the businesses. Boswell further argued, especially during closing 

argument, that any inaccuracies in Boswell’s bankruptcy petition should be 

attributed to his attorney Christian Chesson, who had previously been 

sanctioned by a bankruptcy court.

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Boswell moved for a judgment of acquittal both at the end of the 

prosecution’s case-in-chief and at the end of trial, and the district court 

denied the motion both times. Following deliberations, the jury convicted 

Boswell on both counts.

The probation office released its presentence report on November 10, 

2022. As relevant to this appeal, Boswell objected to the use of “intended 

loss” to calculate the loss amount under U.S.S.G. § 2B1.1, arguing that 

“intended loss” is an agency interpretive rule in the guidelines commentary 

that cannot be used to expand the plain definition of loss.

The district court sentenced Boswell to sixty months’ imprisonment 

and three years of supervised release. The district court declined to decide 

the issue of restitution at Boswell’s sentencing hearing, electing to receive 

briefing from the parties on the issue and reach a decision at a later hearing. 

Boswell filed his initial notice of appeal on May 9, 2023. At the subsequent 

restitution hearing on June 27, 2023, the district court ordered Boswell to pay 

$646,259.70 in restitution to the IRS as a condition of supervised release. 

Boswell filed another notice of appeal from that order on July 6, 2023.

IV. Analysis

Boswell raises six issues on appeal: (1) whether the district court erred 

by failing to dismiss Count One as untimely under the statute of limitations; 

(2) whether the district court erred in denying Boswell’s request for a bill of 

particulars; (3) whether sufficient evidence existed to sustain Boswell’s 

convictions on both counts; (4) whether the district court erred in relying on 

the commentary to the sentencing guidelines to increase Boswell’s offense 

level using the concept of intended loss; (5) whether the district court lacked 

jurisdiction to issue an amended judgment imposing restitution payments 

while the appeal was pending; and (6) whether the accumulation of errors 

throughout the proceeding requires reversal of the jury verdict. Boswell 

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concedes that his argument as to issue (4) is foreclosed by this court’s 

decision in United States v. Vargas, 74 F.4th 673 (5th Cir. 2023) (en banc). 

The remaining five issues are discussed in turn below.

a. Whether the district court erred by failing to dismiss Count One as 

untimely under the statute of limitations.

Boswell argues that Count One of his indictment was untimely 

because it was unsealed on March 20, 2019, more than six months after the 

five-year statute of limitations expired on August 29, 2018. While he

acknowledges that sealing an indictment can typically toll the statute of 

limitations, Boswell argues that the district court erred in concluding that the

Government properly sealed the indictment so as to toll the statute of 

limitations in his case. Boswell’s argument has three parts: (1) the district 

court violated this court’s precedent in United States v. Sharpe, 995 F.2d 49 

(5th Cir. 1993), by failing to hold a hearing after Boswell challenged the 

legitimacy of the Government’s reasons for sealing; (2) the Government 

lacked a legitimate purpose for sealing the original indictment on July 13, 

2018; and (3) even if the indictment was properly sealed, the statute of 

limitations was not tolled because Boswell has made a showing of 

“substantive and actual prejudice.” Boswell also adds that, if this court 

reverses his conviction as to Count One, he is entitled to a new trial on Count 

Two because (1) the two counts of his conviction were “inextricably bound 

up,” United States v. Plyman, 551 F.2d 965, 967 (5th Cir. 1977); (2) most of 

his trial was dedicated to Count One; and (3) the trial contained significant 

prejudicial evidence from the bankruptcy proceedings that would be 

inadmissible in a trial containing only Count Two.

i. Standard of Review

This court reviews the district court’s findings of fact in relation to 

the statute of limitations for clear error and its legal conclusions de novo. 

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United States v. McMillan, 600 F.3d 434, 443–44 (5th Cir. 2010). Where a 

defendant fails to properly preserve an issue for appeal, however, this court 

applies the plain-error standard of review. United States v. Daniels, 281 F.3d 

168, 183 (5th Cir. 2002). Plain error requires: (1) an error or defect that has 

not been intentionally relinquished or abandoned; that is (2) clear or obvious, 

rather than subject to reasonable dispute; and (3) affected the claimant’s 

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If these 

criteria are met, this court has discretion to remedy the error if it seriously 

affected the fairness, integrity, or public reputation of judicial proceedings. 

Id.

ii. Whether a hearing is required under Sharpe

Boswell argues that the district court erred in failing to hold a hearing 

on his motion to dismiss because United States v. Sharpe requires the district 

court to hold a hearing when a defendant challenges the legitimacy of the 

Government’s reasons for sealing an indictment. As a preliminary matter, 

the Government argues that this court should apply plain-error review 

because Boswell did not raise this issue to the district court. United States v. 

Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995).

Boswell cited Sharpe in his motion to dismiss Count One of the 

indictment, and he cited in a parenthetical the sentence in Sharpe that 

references a hearing. In context, however, it appears that Boswell cited 

Sharpe not to argue that a hearing was mandatory, but rather to support his 

argument that “[w]hen a defendant challenges the decision to seal an 

indictment after it has been unsealed, the burden is on the government to 

establish legitimate reasons for sealing the indictment.” The Government is 

correct that Boswell’s motion to dismiss Count One of the indictment does 

not advance the argument that Sharpe mandates a hearing in every instance, 

nor does the motion request a hearing at all. Accordingly, the district court 

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was never “fully apprise[d]” of Boswell’s argument on appeal that Sharpe

mandates a hearing on this issue, and thus plain-error review applies. See 

Musa, 45 F.3d at 924 n.5.

Boswell’s Sharpe argument cannot succeed on plain-error review. In 

Sharpe, a group of defendants challenged indictments that were sealed within 

the statute of limitations, but unsealed five days after the statute of 

limitations had expired. Sharpe, 995 F.2d at 51. The defendants contended 

that the indictments were sealed for improper purposes and that the 

Government bore the burden of establishing the reasons for sealing. Id. at 51–

52. This court joined other circuits by holding that “[i]f challenged, the 

government must explain and support the legitimacy of its reasoning for 

sealing the indictment.” Id. at 52. To reconcile this holding with the principle 

that a magistrate judge is not required to make a contemporaneous record of 

the reasons for sealing an indictment, this court clarified that the 

Government is required to explain and support sealing the indictment “at a 

hearing after the indictment is unsealed.” Id.

Since deciding Sharpe in 1993, this court has not had the occasion to 

revisit the decision or clarify its holding. And Boswell has not pointed to any 

authority indicating that Sharpe mandates a hearing in every instance when 

the Government is called to justify the sealing of an indictment. Ultimately, 

then, Boswell’s inability to present any authority that clarifies or applies

Sharpe is fatal to his argument. It would be difficult to contend that, 

“[n]otwithstanding the lack of precedent, it is plain from the face” of Sharpe

that the decision mandated the district court to hold an evidentiary hearing 

on the Government’s justification for sealing the indictment, even though 

Boswell never requested a hearing. See United States v. Guillen-Cruz, 853 

F.3d 768, 772 (5th Cir. 2017). Accordingly, we hold that the district court did 

not commit plain error by failing to sua sponte hold an evidentiary hearing on 

this issue.

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iii. Whether the Government lacked a legitimate purpose for sealing 

the indictment

In Sharpe, this court addressed the issue of whether “the statute of 

limitations ran . . . because the indictment, although returned within the 

limitations period, was not unsealed until five days after the limitations 

period had expired.” 995 F.2d at 51. The court held that “a properly sealed 

indictment does indeed toll the statute of limitations, absent a showing of 

substantive and actual prejudice.” Id. at 50. We read Sharpe to hold that (1) 

an improperly sealed indictment does not toll the statute of limitations; and 

(2) even a properly sealed indictment will not toll the statute of limitations if 

the defendant can show substantive and actual prejudice.

To determine whether the indictment was properly sealed and thus 

tolled the statute of limitations, the court first must consider whether the 

indictment was sealed for any legitimate prosecutorial objective or where the 

public interest required it. See id. at 52. In its response to Boswell’s motion 

to dismiss Count One of the indictment, the Government proffered the 

following justification for sealing: 

As the investigation developed, the government identified 

potential co-conspirators that required further investigation 

and approval . . . . A pattern of conduct identified in the 

bankruptcy fraud investigation showed that the potential coconspirators were a component part of the scheme to defraud 

and assisted the defendant in creating nominal businesses to 

hide assets and income obtained by him. Therefore, leaving the 

indictment unsealed would potentially alert the coconspirators.

The Government argues that it had a legitimate interest in sealing an 

indictment “to further an investigation,” citing in support United States v. 

Lakin, 875 F.2d 168 (8th Cir. 1989), United States v. Bracy, 67 F.3d 1421 (9th 

Cir. 1995), and United States v. Edwards, 777 F.2d 644 (11th Cir. 1985).

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In Lakin, the Government asserted before the district court “that it 

asked the magistrate to seal the indictment because although it had probable 

cause to indict defendants, it needed more time to gather additional evidence 

to determine whether the case should be pursued.” 875 F.2d at 170. The 

defendants, notably, did not contest that the Government’s reason for sealing 

was legitimate; instead, they argued that an indictment may be sealed only to 

facilitate an arrest. Id. The Eighth Circuit affirmed that “the indictment in 

question was sealed for a legitimate prosecutorial objective.” Id. at 171.

In Bracy, the Government proffered three reasons for sealing the 

indictments: (1) there was an ongoing investigation of a narcotics 

manufacturing and distribution organization; (2) some delay was necessary 

as the IRS joined the investigation to investigate financial crimes; and (3) the 

violent nature of the criminal organization, and the need to protect the safety 

of potential witnesses, justified sealing. 67 F.3d at 1426. The Ninth Circuit 

concluded that the district court did not abuse its discretion by accepting 

these reasons and denying the defendants’ motion to dismiss. Id. at 1426–27.

In Edwards, the Government unsealed a superseding indictment 

sixteen days after the expiration of the five-year statute of limitations. 777 

F.2d at 647. The Eleventh Circuit acknowledged that the Government’s only 

reason for filing the original indictment may have been “to toll the running 

statute of limitations.” Id. at 648. Nevertheless, the Government had 

engaged in a “colloquy” with the magistrate judge to support its motion to 

seal the indictment, and the magistrate judge granted this motion 

notwithstanding the court’s concern that the indictment was merely a vehicle 

to toll the statute of limitations. Id. at 648–49. The Eleventh Circuit affirmed, 

giving “great deference to the discretion of the magistrate,” and noting that 

“[t]olling the statute of limitations on charges of conspiracy to import with 

intent to distribute thousands of pounds of marijuana is arguably required by 

the public interest and supported by sound reasons of policy.” Id.

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We are not persuaded by the Government’s cited case law here. Bracy

involved the Government’s investigation of ongoing criminal activity; here, 

the Government indicted Boswell for bankruptcy fraud in July 2018, although

Boswell’s bankruptcy case concluded in 2013. Edwards centered on 

deference to the magistrate judge’s decision to seal, but its reasoning is less 

applicable in a case such as this, where the Government presented no 

justification for sealing to the magistrate judge. Lakin presents a closer call, 

but the Government here has not claimed that it had probable cause at the 

time of the indictment and needed more time to gather additional evidence 

to determine whether a case against Boswell should be pursued. See also 

United States v. Benavides, No. CR 06-62-M-DWM, 2009 WL 10679152, at 

*8 (D. Mont. Dec. 15, 2009) (rejecting same authority cited by Government).

On the other hand, United States v. Gigante, 436 F. Supp. 2d 647 

(S.D.N.Y. 2006), upon which Boswell relies, presents comparable facts to 

those in Boswell’s case. In Gigante, the Government issued and sealed itsfirst 

indictment, which charged the defendant with one count of making a false 

statement in a bankruptcy proceeding, one day before the statute of 

limitations was set to expire. Id. at 650. The final superseding indictment, 

which was unsealed twenty-one months later, contained ten counts, alleging 

bankruptcy fraud, concealment of assets, false statements, and tax evasion. 

Id. at 650–51. The Government did not inform any of the magistrate judges 

of the basis for its requests for sealing. Id. at 652. At a hearing to respond to 

the defendant’s motion to dismiss the indictments, however, the 

Government proffered several reasons for sealing, contending that: (1) 

putting the defendant on notice of fraudulent concealment and false 

statement charges would have compromised a broader, ongoing tax evasion 

investigation; (2) the DOJ and the IRS needed more time to complete a 

mandated review of the tax evasion charge; (3) the Government needed more 

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time to conduct an investigation to support the forfeiture of the defendant’s 

assets; and (4) the defendant posed a flight risk. Id. at 652–53.

The Gigante court was not persuaded by the Government’s arguments 

that it needed to maintain secrecy or avoid a flight risk. The defendant was 

well aware that the Government was investigating him, and there was no 

indication that the defendant would flee or be difficult to track. Id. at 657. The 

court surmised that the genuine reason that the Government sealed the 

indictments was to toll the statute of limitations while it carried out a broader 

investigation into related crimes. Id. at 657–58. The court then rejected the 

notion that “the need for additional time to decide whether to bring an 

additional charge” is a legitimate prosecutorial purpose that justifies the 

sealing of an indictment. Id. at 658. Such reasoning would undermine the 

purpose of having a statute of limitations at all. Id.; see also Toussie v. United 

States, 397 U.S. 112, 114–15 (1970) (“The purpose of a statute of limitations 

is to limit exposure to criminal prosecution to a certain fixed period of time 

following the occurrence of those acts the legislature has decided to punish 

by criminal sanctions. . . . Such a time limit may also have the salutary effect 

of encouraging law enforcement officials promptly to investigate suspected 

criminal activity.”). The court went on to state that “the existence of a fiveyear statute of limitations would have little or no meaning if the Government 

could extend it, essentially unilaterally, merely because it wanted more time 

to investigate a potential related charge.” Gigante, 436 F. Supp. 2d at 658. 

“The Government would be able to file a sealed indictment whenever more 

time for investigation might strengthen its case, and no person under 

investigation would ever have repose, as he could never be certain that he had 

not been indicted months or even years earlier.” Id. The district court 

accordingly granted the defendant’s motion to dismiss the indictments. Id. at 

660.

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We agree with Boswell and the principles laid out in Gigante, and hold 

that the Government failed to establish a legitimate prosecutorial purpose for 

sealing the indictment. The most troubling aspect of the Government’s 

action in this case is that, despite its burden to “explain and support the 

legitimacy of its reasons for sealing the indictment,” the Government has 

undertaken very little effort to support with evidence that its justifications 

are in fact legitimate. See Sharpe, 995 F.2d at 52 (emphasis added). As 

Boswell explains, there is good reason to be skeptical about the 

Government’s purported concern with “alert[ing] the co-conspirators.” 

Each of Boswell’s alleged co-conspirators—specifically Brenda Murphy, 

Tracy Boswell, and Joseph Boswell Jr.—testified in front of the grand jury in 

connection with the Government’s investigation of Boswell. It is also unclear 

why the Government needed additional time to investigate co-conspirators 

in Boswell’s bankruptcy fraud in 2018, five years after the bankruptcy court 

issued a judgment denying Boswell a discharge. Recall that in January 2013, 

an attorney for the Office of the U.S. Trustee thoroughly questioned Boswell 

about his alleged nominee companies and co-conspirators. Yet the 

Government provided no insight as to the timing of the grand jury 

examinations or the progress of the investigation into the alleged coconspirators.

The Government has provided no evidentiary support for its proffered 

justifications; it submitted no affidavits or other record evidence that would 

permit the court to substantively evaluate the Government’s prosecutorial 

objectives in sealing. This court cannot ascertain from the record: (1) which 

co-conspirators the Government identified that required investigation 

beyond 2018; (2) whether the Government needed to investigate these coconspirators to investigate Boswell’s case, or whether the Government was 

considering adding these individuals as co-defendants; or (3) whether the 

investigative efforts undertaken by the Government would have been 

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compromised if these co-conspirators had been alerted of an indictment. The 

Government’s lack of support in this case stands in stark contrast to Lakin, 

875 F.2d at 169, where the district court held a hearing on the matter and the 

Government put forth actual evidence in support of its arguments. Here, 

where the Government has so obviously failed to provide justification for 

sealing the indictment, we cannot sanction the sealing as proper. We hold 

that the Government failed to demonstrate a legitimate prosecutorial 

purpose for sealing the indictment, which in turn failed to toll the statute of 

limitations. The indictment was untimely under the statute of limitations, 

and Boswell’s conviction under Count One is reversed.

Because we hold that the Government failed to demonstrate a 

legitimate prosecutorial purpose for the sealing, we do not need to address 

Boswell’s “substantive and actual prejudice” arguments. The Government 

argued at oral argument and in a subsequent Rule 28(j) letter that Boswell 

must show both improper sealing and actual prejudice under Sharpe to 

succeed on his statute of limitations argument. We decline to embrace the 

Government’s reading of Sharpe. See supra at 13. It is sufficient that the 

Government failed to demonstrate a legitimate purpose for sealing the 

indictment, such that Boswell’s conviction on Count One is reversed.

iv. Whether a new trial is warranted for Count Two

Given our decision that Boswell’s Count One conviction must be 

reversed, we turn now to Boswell’s contention that his Count Two 

conviction must also be vacated and a new trial granted. Boswell cites United 

States v. Plyman, 551 F.2d 965, 967 (5th Cir. 1977), to support his argument 

that the two counts of his conviction were “inextricably bound up” and that 

“the potential for prejudice on the latter count[] was acute.” Boswell 

contends that the Government’s bankruptcy-fraud charge dominated the 

trial and that the evidence solely related to bankruptcy fraud, including the 

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19

testimony of his ex-wife Marcia and creditor Wells, would be inadmissible 

and prejudicial in a trial based solely on Count Two. Thus, according to 

Boswell, where Count One falls, Count Two must fall as well.

Generally, this court addresses the concept of “spillover” prejudice 

within the context of a district court denying a motion for severance. United 

States v. Edwards, 303 F.3d 606, 639 (5th Cir. 2002). In Edwards, this court 

acknowledged that “perhaps a grant of a new trial might be appropriate in 

some cases of ‘retroactive misjoinder.’” Id. at 640. For retroactive 

misjoinder to apply, “[a]t a minimum, drawing from our severance cases and 

authority from other circuits, the defendants must show that they 

experienced some prejudice as a result of the joinder of the invalid claims.” 

Id. For instance, in Plyman, the primary authority cited by Boswell here, the 

defendant was convicted for violating multiple provisions of the Gun Control 

Act, including a provision that outlawed the sale or delivery of any firearm to 

any person who the seller knows or has reasonable cause to believe does not 

reside in the state in which the seller’s place of business is located. 551 F.2d 

at 965, 966 n.1. This court held that the defendant’s conviction under this 

provision was invalid, because the buyer and seller both actually resided in 

the same state. Id. at 966–67. The court decided to also vacate the 

defendant’s conviction under a provision requiring firearm sellers to keep 

records, determining that the defendant’s violations were “inextricably 

bound up,” and that there was “acute” potential for prejudice on the 

defendant’s conviction under the valid count. Id. at 967.

We disagree with Boswell that his convictions as to the two counts are 

inextricably intertwined. The prosecution’s theory of the case was that 

Boswell used nominee entities to conceal his assets from bankruptcy 

creditors and the IRS. The testimony of Howard Wells, as well as Boswell’s 

letter to Wells sent around 2008, helped the Government establish that 

Boswell specifically set up corporations like Patriot Green to keep his assets 

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out of the IRS’s reach. The testimony of Hewitt, who interviewed Boswell 

during his bankruptcy case, similarly helped the Government establish that 

Boswell set up Patriot Green in his sister’s name to avoid “the IRS just 

seizing everything.” The testimony of Boswell’s ex-wife, Marcia, primarily 

discussed Boswell setting up Franchise Services Group as a nominee 

business, which supported the Government’s theory of the case for both the 

bankruptcy-fraud and tax-evasion charges. This evidence would therefore be 

admissible in a trial solely pertaining to Count Two, such that there was no 

unjustified taint of the Count Two conviction due to the simultaneous trial 

of Count One. See United States v. Vebeliunas, 76 F.3d 1283, 1294 (2d Cir. 

1996) (“In cases where the vacated and remaining counts emanate from 

similar facts, and the evidence introduced would have been admissible as to 

both, it is difficult for a defendant to make a showing of prejudicial spillover.” 

(internal quotation omitted)). Therefore, our decision regarding Count 

One’s invalidity does not implicate the invalidity of Count Two.1

b. Whether the district court erred in denying Boswell’s request for a 

bill of particulars.

Boswell argues that the language of the superseding indictment was 

inadequate, and he advances three sub-arguments that the Government 

describes as “variations on the same theme”: (1) the district court abused its 

discretion by denying his request for a bill of particulars; (2) the 

Government’s trial evidence impermissibly varied from the indictment; and 

(3) the jury was allowed to convict Boswell for committing a crime in a 

materially different way than as alleged in the indictment, constituting a 

“constructive amendment” of the indictment.

_____________________

1 Because we hold that the conviction on Count One must be reversed, our 

remaining discussion of the issues raised by Boswell on appeal will concern only Count 

Two.

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i. Bill of particulars

“The purposes of a bill of particulars are to obviate surprise at trial, 

enable the defendant to prepare his defense with full knowledge of the 

charges against him, and to enable double jeopardy to be pled in case of a 

subsequent prosecution.” United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 

1977). “It is not designed to compel the government to detailed exposition of 

its evidence or to explain the legal theories upon which it intends to rely at 

trial.” United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980). “The 

granting of a bill of particulars is addressed to the sound discretion of the trial 

court, . . . and the exercise of this discretion cannot be reversed on appeal 

unless the court concludes that the defendant was actually surprised at the 

trial and thus that substantial rights of his were prejudiced by the denial.” 

Mackey, 551 F.2d at 970 (internal quotation omitted). Demonstrating 

reversible error in the denial of a motion for a bill of particulars is a “heavy 

burden.” United States v. Lavergne, 805 F.2d 517, 520 (5th Cir. 1986).

The superseding indictment in this case had two counts. As relevant 

here, Count Two charged Boswell with tax evasion, alleging that Boswell 

“did willfully and knowingly attempt to evade and defeat the collection of 

income taxes due and owing to him . . . by concealing and attempting to 

conceal from the IRS the nature and extent of his assets and the location 

thereof, in placing funds and property in the names of nominees.” The 

indictment alleged that Boswell engaged in this criminal conduct during his 

bankruptcy case, from September 2011 until August 2013. Before his trial, 

Boswell requested, and was denied, a bill of particulars.

The trial transcript simply does not give the impression that Boswell 

was “actually surprised” by any evidence presented by the Government. We 

agree with the Government that evidence related to the Green Dot and 

Patriot Green accounts was not part of a “bait and switch.” This evidence fit 

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within the Government’s theory of the case and the framework provided by 

the indictment. The indictment focuses on Boswell’s alleged use of nominees 

to evade bankruptcy creditors and the IRS, and the evidence submitted by 

the Government supports its theory that Boswell had de facto control over 

the finances of nominee businesses like Patriot Green. Boswell’s 

characterization of the Government’s case as homing in solely on his Green 

Dot account and Patriot Green’s cash withdrawals is misleading—these 

particular pieces of evidence are part of an extensive record of exhibits that 

covers other alleged nominee businesses and financial transactions. Further, 

Boswell has not alleged that he had insufficient time to review the 

Government’s disclosed Green Dot and Patriot Green evidence, and during 

trial, Boswell’s counsel effectively and thoroughly cross-examined the 

Government’s witnesses on this evidence. And, in lieu of granting Boswell’s 

motion for a bill of particulars, the district court pointed to his interview with 

Hewitt, which detailed the nominee businesses owned by his wife, son, and 

sister. This is not one of those rare cases where the district court abused its 

discretion in denying Boswell’s request for a bill of particulars.

ii. Variance

“A variance arises when the proof at trial depicts a scenario that 

differs materially from the scenario charged in the indictment but does not 

modify an essential element of the charged offense.” United States v. PerezSolis, 709 F.3d 453, 465 (5th Cir. 2013) (quoting United States v. Delgado, 401 

F.3d 290, 295 (5th Cir. 2005)). “A variance is material if it prejudices the 

defendant’s ‘substantial rights,’ either by surprising the defendant at trial or 

by placing the defendant at risk of double jeopardy.” Id. (quoting United 

States v. Robinson, 974 F.2d 575, 578 (5th Cir. 1992)).

The Government contends that plain-error review should apply to 

this issue, because Boswell raised the argument for the first time in a postCase: 23-30315 Document: 128-1 Page: 22 Date Filed: 07/23/2024
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conviction bail motion. See United States v. Gevorgyan, 886 F.3d 450, 456–57 

(5th Cir. 2018) (applying plain-error review for an issue that was raised after 

the defendant’s trial concluded); Perez-Solis, 709 F.3d at 465 (“We review a 

forfeited claim of material variance for plain error.”). Regardless of what 

standard of review applies, however, Boswell’s variance arguments are 

unconvincing. As discussed above, the indictment alleges that Boswell 

concealed assets through nominee businesses, and at trial, the Government 

used records from Green Dot and Patriot Green to establish that Boswell 

exercised control over Patriot Green’s funds. This evidence indeed aligns

with the charges as described by the indictment. Whether that evidence is 

compelling is a separate matter, discussed more fully below. Additionally, it 

is unlikely that Boswell’s “substantial rights” were prejudiced by the 

introduction of pertinent evidence that Boswell appeared well-equipped to 

address. Therefore, no variance occurred.

iii. Constructive amendment

“A constructive amendment occurs when the government changes its 

theory at trial, allowing the jury to convict on a broader basis than that alleged 

in the indictment, or when the government proves an essential element of the 

crime on an alternate basis authorized by the statute but not charged in the 

indictment.” United States v. Stanford, 805 F.3d 557, 565 (5th Cir. 2015). 

Because Boswell did not contemporaneously object to the alleged 

constructive amendment of his indictment, the standard of review is for plain 

error. United States v. Isgar, 739 F.3d 829, 840 (5th Cir. 2014).

Boswell essentially rehashes his prior arguments in claiming 

constructive amendment, and his arguments are no more availing here than 

before. Regardless of whether the evidence was sufficient to convict, the jury 

was properly guided to reach a conclusion based on the indictment’s 

language. The district court also explained the indictment and the elements 

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of each count to the jury. The jury was therefore not led to convict Boswell 

on a broader basis than that alleged in the indictment, and no constructive 

amendment occurred.

c. Whether sufficient evidence existed to sustain Boswell’s 

conviction.

Boswell next argues that there was insufficient evidence to convict 

him on Count Two, citing the testimony of Brenda Murphy and Joseph 

Boswell Jr., who testified that they did not receive assets or funds from 

Boswell. Boswell also claims that he could not have committed tax evasion 

during his bankruptcy case because his tax liabilities were non-dischargeable, 

and therefore, even a successful bankruptcy fraud could not defeat payment 

of his taxes.

Because Boswell’s sufficiency-of-the-evidence claims were preserved 

through a Rule 29 motion, this court reviews his claims de novo, but “with 

substantial deference to the jury verdict.” United States v. Suarez, 879 F.3d 

626, 630 (5th Cir. 2018) (quoting United States v. Delgado, 672 F.3d 320, 330 

(5th Cir. 2012)). “This court will uphold the jury’s verdict if a rational trier 

of fact could conclude from the evidence that the elements of the offense 

were established beyond a reasonable doubt.” United States v. Green, 47 

F.4th 279, 287 (5th Cir. 2022). The evidence, as well as all reasonable 

inferences from that evidence, are reviewed in the light most favorable to the 

verdict. Id. This court does not “reweigh the evidence or assess the 

credibility of witnesses, as this is the responsibility of the jury.” Id.

To convict Boswell on Count Two, the prosecution was required to 

establish: “(1) willfulness; (2) existence of a tax deficiency; and (3) an 

affirmative act constituting an evasion or attempted evasion of the tax.” Id.

at 292 (quoting United States v. Bolton, 908 F.3d 75, 89 (5th Cir. 2018)); 26 

U.S.C. § 7201. The Government contends that “there was overwhelming 

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evidence—including defendant’s own admissions—that defendant willfully 

evaded payment of taxes through affirmative acts that included the use of 

nominee entities.” For instance, in a letter to Wells, Boswell admitted that 

he set up Patriot Green “to move things to a corporate structure” so that the 

revenue could pay off his debt to Wells instead of being subject to IRS 

collection. Boswell later admitted during his bankruptcy interview that he set 

up Patriot Green in his sister’s name to prevent “the IRS [from] just seizing 

everything.” Further, the Government argues that Boswell’s tax liabilities 

being non-dischargeable in bankruptcy is irrelevant. The Government alleged 

that Boswell attempted to evade his non-discharged tax debt, which he 

carried out by, among other things, using Patriot Green funds for personal 

expenses during the bankruptcy period and utilizing nominee business Tiki 

Pizza to keep the Horseshoe house out of his name.

We agree that sufficient evidence existed to convict Boswell under 

Count Two. The Government showed that Boswell’s cost of living at the 

Horseshoe house was paid by Tiki Pizza and other nominee companies. 

Boswell negotiated the purchase of this house during his bankruptcy (i.e., 

during the time period covered by the indictment), a fact that helped 

convince the district court that there was sufficient evidence for the jury to 

conclude that Boswell attempted to conceal the house as an asset by placing 

it in the name of a nominee. Further, because, per the Government’s theory, 

Boswell formed Patriot Green to keep his assets out of the IRS’s hands, a jury 

could conclude that Boswell’s use of Patriot Green’s funds during the period 

of the bankruptcy was also part of an ongoing attempt to evade taxes. We 

therefore decline to upset the jury’s verdict where a rational trier of fact could 

conclude from all of the evidence presented that the Government met its 

burden beyond a reasonable doubt on Count Two.

d. Whether the district court lacked jurisdiction to issue an amended 

judgment imposing restitution payments while the appeal was pending.

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Boswell argues that the district court lacked jurisdiction to impose 

restitution as a condition of supervised release after he filed his first notice of 

appeal. He claims that the district court’s authority under 18 U.S.C. 

§ 3664(d)(5) to hold open the issue of restitution does not provide any basis 

for the district court to revisit terms of supervised release already imposed. 

This court reviews the legality of such a restitution order de novo. United 

States v. Maturin, 488 F.3d 657, 659 (5th Cir. 2007).

While the parties do not cite Fifth Circuit authorities directly on point, 

the Government notes that courts addressing this issue have generally 

recognized that a notice of appeal does not deprive the district court of 

jurisdiction to modify the terms of supervision. Further, Boswell’s claim that 

§ 3664(d)(5) does not provide the district court with authority to revisit the 

terms of supervised release is inaccurate—a combination of statutes 

incorporates § 3664 into the district court’s procedures for setting the terms 

of supervised release.

In United States v. D’Amario, 412 F.3d 253, 255 (1st Cir. 2005), the 

First Circuit addressed a defendant’s claim that “the appeal of [a] 2003 

district court judgment revoking his supervised release, in which he 

challenge[d] the validity of the imposition of special conditions of supervised 

release, divest[ed] the district court of jurisdiction to alter any aspect of his 

supervised release.” The First Circuit disagreed, holding that pursuant to 18 

U.S.C. § 3583(e)(2) and Federal Rule of Criminal Procedure 32.1(c), “the 

district court has plenary jurisdiction to supervise a convicted defendant’s 

release, including the jurisdiction to modify the conditions of supervised 

release, even though an appeal from a revocation of supervised release may 

be pending.” Id. at 255.

In United States v. Ramer, 787 F.3d 837 (7th Cir. 2015), the Seventh 

Circuit agreed with the First Circuit’s conclusions in D’Amario. In Ramer, 

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the defendant argued on appeal that the district court erred by not 

conditioning his restitution payments on his ability to pay. Id. at 838. Before 

the Government filed its response brief, the district court amended the 

judgment to reflect that the defendant’s obligation to pay $100 per month as 

a condition of his supervised release would be conditioned on his ability to 

pay. Id. Citing D’Amario favorably, the Seventh Circuit held that the district 

court retained jurisdiction to modify the defendant’s conditions of 

supervised release while the appeal was pending, and it dismissed the 

defendant’s appeal as moot. Id. at 838–39. The Ninth Circuit, in an 

unpublished memorandum opinion, similarly held that a defendant’s appeal 

was mooted by the district court revoking the challenged condition of 

supervised release. United States v. Caton, No. 21-30168, 2022 WL 17547826, 

at *1 (9th Cir. Dec. 9, 2022).

We agree with our sister circuits who have had occasion to address 

this issue, and hold that the district court did not err in imposing restitution 

after Boswell filed his first notice of appeal. The district court specifically 

reserved ruling on this issue until further briefing could be conducted. 

Considering both the district court’s authority to defer on ordering 

restitution and the district court’s jurisdiction to modify conditions of 

supervised release during the pendency of an appeal, we affirm the district 

court’s restitution order.

e. Whether the accumulation of errors throughout the proceeding 

requires reversal of the jury verdict.

Boswell argues that, taking his prior arguments altogether, the 

cumulation of errors in his trial justify reversal of his convictions. Under the 

“cumulative error” doctrine, an aggregation of non-reversible errors (i.e., 

plain errors failing to necessitate reversal and harmless errors) can result in 

the denial of a defendant’s right to a fair trial. United States v. Delgado, 672 

F.3d 320, 343–44 (5th Cir. 2012). Reversal is only justified in “rare 

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instances” where errors “so fatally infect the trial that they violated the 

trial’s fundamental fairness.” Id. at 344 (quoting United States v. Fields, 483 

F.3d 313, 362 (5th Cir. 2007)). This court has described the possibility of 

cumulative error as “often acknowledged but practically never found 

persuasive,” especially where the Government presents “substantial 

evidence of guilt.” Id. (quoting Derden v. McNeel, 978 F.2d 1453, 1456 (5th 

Cir. 1992) (en banc)).

As is evident from our prior discussion, no accumulation of errors 

exists to justify reversal of the judgment as to Count Two. And the only new 

issue Boswell raises in this section of his brief is that the Government 

ambushed him yet again by disclosing critical evidence at the eleventh hour. 

However, pursuant to the Federal Rules of Criminal Procedure, the district 

court can redress a Rule 16 violation by granting a continuance. Fed. R. 

Crim. P. 16(d)(2)(B). Even accepting as true Boswell’s claim that a Rule 16 

violation occurred, the district court redressed the issue by granting Boswell 

the continuance that he requested. Under these facts, and considering the 

exceptional nature of the cumulative error doctrine, we decline to reverse the 

jury’s verdict as to Count Two.

V. Conclusion

Accordingly, we REVERSE as to Count One and AFFIRM as to the 

remainder of the judgment.

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James C. Ho, Circuit Judge, concurring in part and concurring in the 

judgment:

We are duty bound to grant relief to Joseph Boswell from his 

bankruptcy fraud conviction. This is no small matter, considering that the 

jury had good reason to convict on that count. (Boswell also remains 

convicted of tax evasion.) But I agree with my distinguished colleagues that 

the government lacked a valid basis for sealing his indictment. As a result, 

Boswell was denied the protection of the governing statute of limitations. 

Established law requires us to grant relief accordingly. Courts enforce the 

rights of the accused, not because we seek to free the guilty, but because we 

seek to protect the innocent. “It is for the protection of all persons accused 

of crime—the innocently accused that they may not become the victim of an 

unjust prosecution, as well as the guilty, that they may be awarded a fair 

trial—that one rule (as to public trials) must be observed and applied to all.” 

In re Oliver, 333 U.S. 257, 271 n.25 (1948) (quoting People v. Murray, 89 Mich. 

276, 286, 50 N.W. 995, 998 (1891)). See also United States v. Kersee, 86 F.4th 

1095, 1100–02 (5th Cir. 2023) (Ho, J., concurring).

I write separately to note that I decline to join section IV.a.ii of the 

majority opinion. In United States v. Sharpe, 995 F.2d 49 (5th Cir. 1993), our 

court stated that, “[i]f challenged, the government must explain and support 

the legitimacy of its reasons for sealing the indictment. The government only 

does so, however, at a hearing after the indictment is unsealed.” Id. at 52. 

This language seems to require a hearing. In addition, Sharpe cites cases from 

other circuits that likewise contemplate that defendants have a “right” to 

such a hearing. See id. at 52 n.10; see also, e.g., United States v. Lakin, 875 F.2d 

168, 171 (8th Cir. 1989) (“A defendant’s right to challenge the propriety of 

the sealing is fully protected by affording him the right to a hearing after the 

indictment is opened to public inspection.”); United States v. Srulowitz, 819 

F.2d 37, 41 (2nd Cir. 1987) (same). But we ultimately need not decide this 

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issue here. Whether or not Boswell was entitled to a hearing does not 

ultimately affect his appeal, because he is entitled to relief on other 

grounds—namely, that the government lacked a proper purpose for sealing 

the indictment, as explained in section IV.a.iii of the majority opinion, and as 

I’ve noted above.

Accordingly, I concur in part and concur in the judgment.

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