IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51351

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ADRIAN EDWARDO PENA, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:13-CR-324-1

Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

For Adrian Edwardo Pena’s challenge to the denials of his post-judgment 

motion to compel disclosure and subsequent motion for clarification, both filed 

while his appeal from the judgment was pending, the principal issue at hand 

is whether that appeal divested the district court of jurisdiction to consider 

those two motions. AFFIRMED. 

 

 * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be 

published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 13, 2017

Lyle W. Cayce

Clerk

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I.

A federal agency in June 2010 inadvertently transferred $733,320 into a 

company account controlled by Pena and his wife. Fearing garnishment, Pena 

transferred $446,215 of these funds to the IOLTA trust account of his thenattorney Stanton. Stanton later received a letter and telephone call from

Lewis, an Assistant United States Attorney (AUSA) for the western district of 

Texas, detailing the transfer’s suspected illegality, and, accordingly,

requesting Stanton hold the funds. 

The Penas were indicted in February 2013 on four counts of conspiracy 

to defraud the Government, in violation of 18 U.S.C. §§ 286, 287, 641, 642, and

1956(h). Pena then discovered Lewis’ United States Attorney’s Office (USAO)

for the western district of Texas was recused from the criminal investigation 

and prosecution of an individual involved in the case. As a result, Pena moved 

for disclosure of information related to this recusal. 

The court held a hearing in March 2014 on this first motion to compel 

disclosure. But, because Pena was involved in ongoing plea negotiations with 

the Government, he sought a continuance of the hearing and requested the 

court decline to rule on the motion. Therefore, the court left the disclosure 

issue pending. 

That August, Pena pleaded guilty to making false, fictitious, or 

fraudulent claims to the Government, in violation of 18 U.S.C. § 287. 

Additionally, he agreed to waive all rights “to appeal the sentence on any 

ground”, except “to the extent [his sentence was] the result of a violation of his 

constitutional rights based on claims of ineffective assistance of counsel or 

prosecutorial misconduct of constitutional dimension”. Pena received a 

sentence of, inter alia, 26 months’ imprisonment (time served), and was

ordered to pay $804,765.85 in restitution. 

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Despite his appeal wavier, Pena appealed the judgment, including the 

restitution order. And, following filing that appeal, Pena discovered the 

recusal of the USAO for the western district of Texas from the enforcement of 

the restitution order. Accordingly, he filed a second disclosure motion, even 

though his appeal was pending. This instant (second) appeal stems from the 

denials of that motion and the motion to clarify. 

Regarding those denials, and the then-pending (first) appeal, the 

pertinent dates follow. The briefing for that appeal was completed on 6 

September 2016; Pena’s second motion to compel disclosure was filed on 7 

October; the court summarily denied that motion on 7 November; Pena filed 

his motion for clarification on 16 November; that motion was summarily denied 

on 17 November; Pena filed notices of appeal on 16 and 17 November from the 

denials of his two motions; and he filed a motion in this court on 21 November 

to stay his first appeal, pending resolution in this second appeal of his postjudgment disclosure motions. 

In March 2017, our court dismissed Pena’s first appeal, ruling the appeal 

waiver valid. United States v. Pena, 683 F. App’x 307, 308 (5th Cir. 2017). In 

that opinion, Pena’s motion in our court to stay proceedings for that appeal, 

pending resolution of the post-judgment motions to compel, was summarily 

denied. Id.

II.

In challenging the summary denial of his post-judgment (second) motion 

to compel, and the subsequent summary denial of his motion for clarification, 

Pena claims the denials were an abuse of the district court’s discretion.

Whether the district court lacked jurisdiction to consider those motions must 

be first addressed. In denying them, the district court did not provide findings 

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of fact or conclusions of law. In any event, no authority need be cited for our 

review being de novo for jurisdiction vel non. 

An appeal divests the district court of its jurisdiction “over those aspects 

of the case involved in the appeal”. Marrese v. Am. Acad. of Orthopaedic 

Surgeons, 470 U.S. 373, 379 (1985) (citing Griggs v. Provident Consumer Disc. 

Co., 459 U.S. 56, 58 (1982)). Further, an appeal of a judgment determining the 

entire action divests the district court of jurisdiction, while that appeal is 

pending, over any further matters for that action, “except in aid of the appeal 

or to correct clerical errors”. Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 

298, 299 (5th Cir. 1984). 

As discussed supra, after filing his first appeal, Pena discovered the 

USAO for the western district of Texas’ recusal from the enforcement of his

restitution order. Accordingly, he filed in district court a second motion to 

compel disclosure of “[t]he factual basis in any recusal memorandum submitted 

to or issued by the [Executive Office for the United States Attorney’s] Legal 

Counsel’s office related to []Pena”, and “[a]ny Brady information not previously 

disclosed, including information relating to AUSA Lewis such as whether the 

Government ever investigated [his] communication with Stanton and what 

information the Government obtained as part of that investigation”. 

As also discussed supra, Pena’s first appeal was pending when that 

motion and the motion to clarify were filed in district court, even though that 

appeal divested the district court of authority over all matters involved in the 

pending appeal. Griggs, 459 U.S. at 58. To overcome that barrier, Pena 

maintains his second motion to compel presented a novel legal question—

whether due-process violations or prosecutorial misconduct were inherent to 

the recusals—and was therefore an outside matter, within the jurisdiction of 

the district court, notwithstanding his pending appeal. 

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Nonetheless, because Pena appealed the judgment as a whole, the 

district court retained only the authority to facilitate the appeal or correct any 

clerical issues. Nicol, 743 F.2d at 299. In that regard, Pena’s post-judgment 

(second) motion to compel neither facilitated his appeal, nor corrected any

clerical error. It follows that, even if it were determined Pena’s post-judgment 

motion to compel did not involve matters on appeal, the district court 

nonetheless lacked jurisdiction to consider it. 

III.

For the foregoing reasons, the judgment is AFFIRMED.

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