### 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 denial s of his post

- judgment motion to compel disclosure and subsequent motion for clarification , both filed while his appeal from the judgment was pending , t he principal issue at hand is whether that appeal divested the district court of jurisdiction to consider th ose two motions

. AFFIRMED.

* Pursuant to 5 th C ir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th C ir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 13, 2017 Lyle W. Cayce Clerk Case: 16-51351 Document: 00514235330 Page: 1 Date Filed: 11/13/2017No. 16

- 51351

2 I. A federal agency in June 2010 inadvertently transferred $733,320 into a company account controlled by Pena and his wife

. Fearing garnishm ent, Pena transferred $446,215 of the se funds to the IOLTA trust account of hi s then

attorney Stanton

. Stanton later received a letter and telephone call from Lewis, an Assistant Uni ted States Attorney (AUSA) for the western district of Texas , detailing the transfer ’s suspected illegality , and , accordingly , requesting Stanton hold the funds.
T he Penas were indicted in February 2013 on four counts of con spiracy to defraud the G overnment , in violation of 18 U.S.C. § § 286 , 287, 641, 642 , and
1956 (h). Pena then discovered Lewis’ U nited S tates A ttorney’s O ffice (USAO) for the western district of Texas was recused from the criminal investigation and prosecution of an in dividual involved in the case. As a result , Pena moved for disclosure of information related to this recusal.
T he court held a hearing i n March 2014 on this first motion to compel disclosure. But, b ecause 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 c laims to the G overnment , 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 miscond uct of constitutional dimension ”

. Pena received a sentence of , inter alia , 26 months’ imprisonment (time served ) , and was order ed to pay $804,765.85 in restitution. Case: 16-51351 Document: 00514235330 Page: 2 Date Filed: 11/13/2017No. 16

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3 Despite his appeal wavier , Pena appealed the judgment, including the restitution order. And, f ollowing 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 f iled a second disclosure motion , even though his appeal was pending. This instant (s econd ) appeal stems from the denials of that motion and the motion to clarify. Regard ing those denials, and the t hen

- pending (first) appeal, the pertinent dates follow. The briefing for that appeal was completed on 6 Sep tember 2016; Pena’s second motion to compel disclosure was filed on 7 October ; the court summ arily 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 , p ending resolution in this second appeal of his post

judgment disclosure motion s

. In March 2017, o ur 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 motion s 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

. W hether the district court lacked jurisdiction to consider tho se motion s must be first addressed . In denying them, the d istrict court did not provide findings Case: 16-51351 Document: 00514235330 Page: 3 Date Filed: 11/13/2017No. 16

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4 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 a ppeal of a judgment determining the entire action divest s 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, In c. , 743 F.2d 298, 299 (5th Cir. 1984)

. A s discussed supra , a fter 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 U nited States Attorney’s] Legal Counsel’s office related to [] Pena”, and “[a]ny Brady information not previously d isclosed, including information relating to AUSA Lewis such as whether the Gove rnment 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 , P ena maintains his se cond motion to compel presented a novel legal question

— whether due

- process violations or pro secutorial misconduct were inherent to the recusals

— and was therefore an outside matter , within the jurisdiction of the district court , notwithstanding his pending appeal

. Case: 16-51351 Document: 00514235330 Page: 4 Date Filed: 11/13/2017No. 16

- 51351

5 Nonetheless, because Pena appeal ed the judgment as a whole, the district court re tained 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 facilitate d his appeal, nor correct ed a ny clerical error. It follows that , even if it were determined Pena’s post

- judgment motion to comp el did not involve matter s on appeal, the district court nonetheless la cked jurisdiction to consider it

. III. For the for e going reasons, the judgment is AFFIRMED. Case: 16-51351 Document: 00514235330 Page: 5 Date Filed: 11/13/2017