Forfeitable Rule 33 Timeliness Triggers FRAP 4(b)(3) Tolling; Post-Judgment Orders Require a Separate Notice of Appeal

Case: United States v. Castro (5th Cir. July 10, 2026) (per curiam, unpublished)
Posture: Direct appeal from bench-trial convictions and sentencing; consolidated with bail-pending-appeal matter.

I. Introduction

John Anthony Castro, operating through “Castro and Company LLC,” was convicted after a five-day bench trial of 33 counts of aiding and assisting in the preparation and presentation of false tax returns under 26 U.S.C. § 7206(2). The scheme, as found by the district court and adopted from the PSR, involved marketing unusually large refunds, using fabricated Schedule C and Schedule A deductions, filing returns without client review, depositing refund checks into the firm account, and sharing proceeds with clients. The district court sentenced Castro to 188 months after applying several guideline enhancements.

On appeal, Castro challenged (1) post-trial rulings (a motion for new trial and a motion to correct transcripts), (2) admission of stipulations allegedly implicating Confrontation Clause rights, and (3) two sentencing enhancements under U.S.S.G. §§ 3B1.1(a) and 3C1.1. In a separately docketed appeal, he also challenged denial of bail pending appeal (ultimately dismissed as moot).

II. Summary of the Opinion

• Jurisdiction: The Fifth Circuit dismissed for lack of jurisdiction Castro’s attempt to appeal the denial of his post-judgment motion to correct trial transcripts because he did not file a separate notice of appeal from that later order.
• Rule 33 / FRAP 4(b)(3) interaction: The court held that although the Government argued the new-trial motion was untimely (and thus outside FRAP 4(b)(3)), the Government forfeited that claim-processing argument by failing to raise timeliness in the district court. As a result, FRAP 4(b)(3) prevented the original notice of appeal from becoming effective until the Rule 33 motion was denied, and the district court retained jurisdiction to rule on it.
• New trial (Brady): Affirmed denial of new trial; purported Brady material was known, conclusory, or cumulative impeachment.
• No evidentiary hearing required: Affirmed; Rule 33 motions may be decided on affidavits; no “unique situation” compelling a hearing.
• Confrontation Clause: Affirmed; Castro agreed in writing to stipulations; no dissent; stipulations were legitimate trial strategy under controlling Fifth Circuit law.
• Sentencing: Affirmed leadership enhancement under § 3B1.1(a) on the alternative ground that the activity was “otherwise extensive,” and affirmed obstruction enhancement under § 3C1.1 based on intimidation/attempted influence via lawsuit threats and filings.
• Bail appeal: Dismissed as moot because the court had already denied bail.

III. Analysis

A. Precedents Cited

1. Appellate/divestiture jurisdiction and post-judgment review

• Griggs v. Provident Consumer Disc. Co. (459 U.S. 56 (1982)) supplied the baseline “one-court-at-a-time” divestiture principle: a notice of appeal transfers authority to the court of appeals and divests the district court over aspects involved in the appeal.
• United States v. Willis (76 F.4th 467 (5th Cir. 2023)) provided the Fifth Circuit’s recent articulation of the rule and emphasized that actions taken in contravention can be “null and void,” while also recognizing exceptions.
• Armour v. Knowles (512 F.3d 147 (5th Cir. 2007)) controlled the outcome on the transcript-correction order: a post-judgment order entered after the original notice of appeal “cannot be challenged without a separate notice of appeal,” because one cannot show intent to appeal an order that did not yet exist.

2. FRAP 4(b)(3), claim-processing rules, and forfeiture

• United States v. Hoffman (70 F.4th 805 (5th Cir. 2023)) was invoked for the function of FRAP 4(b)(3): certain timely post-trial motions toll the time to appeal and delay the effectiveness of a notice of appeal until those motions are resolved.
• Eberhart v. United States (546 U.S. 12 (2005)) was pivotal: Rule 33’s timing requirements are non-jurisdictional claim-processing rules that may be forfeited if not properly raised.
• Rollins v. Home Depot USA (8 F.4th 393 (5th Cir. 2021)) was cited for the general principle that jurisdictional defects are an “obvious exception” to forfeiture rules—setting up the panel’s point that the relevant limits here were not jurisdictional.
• Bowles v. Russell (551 U.S. 205 (2007)) and Hamer v. Neighborhood Hous. Servs. of Chi. (583 U.S. 17 (2017)) were used to draw the statutory-versus-rule-based line: time limits appearing in statutes are jurisdictional; rule-based time prescriptions (including criminal appeal deadlines) are generally claim-processing rules and can be waived/forfeited.
• United States v. Ugalde (861 F.2d 802 (5th Cir. 1988)) and United States v. Demopoulos (506 F.2d 1171 (7th Cir. 1974)) were distinguished as not controlling because, unlike here, the district court in Ugalde treated untimeliness as dispositive and did not reach merits; Demopoulos was also criticized for an attributed quote not appearing in the opinion.

3. Brady/new trial and evidentiary hearing standards

• Brady v. Maryland (373 U.S. 83 (1963)) supplied the constitutional duty to disclose favorable evidence.
• United States v. Perry (35 F.4th 293 (5th Cir. 2022)) provided the standard of review for Brady-based new-trial rulings (de novo with deference to underlying fact findings).
• United States v. Mahmood (820 F.3d 177 (5th Cir. 2016)) supplied abuse-of-discretion review for denial of an evidentiary hearing on a new-trial motion.
• United States v. Sipe (388 F.3d 471 (5th Cir. 2004)) and Strickler v. Greene (527 U.S. 263 (1999)) furnished the three-part Brady test and the materiality framing.
• Banks v. Thaler (583 F.3d 295 (5th Cir. 2009)) reinforced that impeachment evidence can be Brady material.
• United States v. Brumfield (89 F.4th 506 (5th Cir. 2023)) supported the conclusion that additional impeachment of an already impeached witness is cumulative and typically immaterial.
• United States v. Hamilton (559 F.2d 1370 (5th Cir. 1977)) and United States v. MMR Corp. (954 F.2d 1040 (5th Cir. 1992)) supported deciding Rule 33 motions on affidavits and the propriety of denying hearings absent compelling circumstances, emphasizing the trial judge’s vantage point.

4. Confrontation Clause waiver by stipulation

• Delaware v. Van Arsdall (475 U.S. 673 (1986)) provided the basic Confrontation Clause principle.
• United States v. Garcia (887 F.3d 205 (5th Cir. 2018)) supplied de novo review and harmless-error analysis for Confrontation Clause claims.
• United States v. Stephens (609 F.2d 230 (5th Cir. 1980)) established that counsel may waive confrontation by stipulation if the defendant does not dissent and the stipulation is legitimate strategy.
• United States v. Ceballos (789 F.3d 607 (5th Cir. 2015)) clarified that affirmative on-the-record agreement is not required; absence of dissent suffices, with presumptions against waiver and the Government bearing the burden.

5. Sentencing enhancements and standards

• United States v. Zuniga (720 F.3d 587 (5th Cir. 2013)) and United States v. Rodriguez (630 F.3d 377 (5th Cir. 2011)) set the review standards (de novo for interpretation/application; clear error for factfinding; plausibility in the record defeats clear-error claims).
• United States v. Salinas (918 F.3d 463 (5th Cir. 2019)) provided the key appellate principle used to affirm § 3B1.1(a): the court may affirm an enhancement “on any ground supported by the record.”
• United States v. Tuma (738 F.3d 681 (5th Cir. 2013)) guided the “otherwise extensive” analysis, including counting unknowing contributors whose services made the criminal activity possible.
• United States v. Williams (343 F.3d 423 (5th Cir. 2003)) and United States v. Dominguez-Alvarado (695 F.3d 324 (5th Cir. 2012)) framed preservation and the plain-error dispute; the panel found preservation adequate under Dominguez-Alvarado.

B. Legal Reasoning

1. Two distinct jurisdiction ideas: divestiture versus appealability of later orders

The opinion carefully separated (i) whether the district court had authority to act after a notice of appeal (divestiture under Griggs v. Provident Consumer Disc. Co.), from (ii) whether the Fifth Circuit had appellate jurisdiction to review an order entered after the appealed judgment (the need for a separate notice of appeal under Armour v. Knowles).

• Transcript-correction motion: Because it was not an “aspect[] of the case involved in the appeal,” the district court retained jurisdiction to decide it despite the pending appeal. But the court of appeals could not review it without a new notice of appeal identifying that post-judgment order.
• New-trial motion: Even though the notice of appeal was filed, FRAP 4(b)(3) can make that notice “not effective” until the post-trial motion is resolved—meaning the district court is not divested and may rule.

2. The opinion’s most consequential procedural move: forfeiture of timeliness transforms the FRAP 4(b)(3) analysis

The Government attempted to defeat FRAP 4(b)(3) tolling by arguing Castro’s Rule 33 motion was untimely (filed 172 days after verdict) and thus not a “timely” tolling motion. The panel’s answer turned on the claim-processing nature of timing rules:

• Under Eberhart v. United States, Rule 33 timing is non-jurisdictional and can be forfeited.
• Because the Government argued only the merits in the district court—and the district court denied on the merits—the Government forfeited a timeliness objection.
• FRAP 4(b)(3) itself is also non-jurisdictional, supported by the Bowles/Hamer framework distinguishing statutes from rules.
• Result: the notice of appeal did not become effective until the Rule 33 motion was denied, and the district court had jurisdiction to rule on that motion.

Practically, this prevents an appellate court from retroactively declaring that a post-trial motion “didn’t toll” because it was untimely when the opposing party failed to timely press untimeliness below—at least on the panel’s reasoning and in this procedural posture.

3. Brady/new-trial merits: materiality and cumulative impeachment

Applying United States v. Sipe and Strickler v. Greene, the panel treated Castro’s proffered impeachment as either known (marital status), conclusory (verbal immunity agreement), or cumulative (additional impeachment regarding a tax lien after the witness was already impeached). The materiality analysis hewed to the idea that “evidence which impeaches an already impeached witness is by definition cumulative,” as emphasized in Sipe and reinforced by United States v. Brumfield.

4. No evidentiary hearing: discretion and the trial judge’s vantage point

Relying on United States v. Hamilton and United States v. MMR Corp., the panel framed evidentiary hearings as atypical and generally reserved for special scenarios; even then, the same judge’s familiarity with the trial makes paper resolution particularly appropriate. Because Castro’s Brady theory was weak on its face, denial without a hearing was not an abuse of discretion.

5. Confrontation Clause: stipulations as strategic waiver

The panel applied the United States v. Stephens/United States v. Ceballos test: counsel may waive confrontation via stipulation when the defendant does not dissent and the stipulation is a legitimate tactic. The record contained an email from Castro stating “I agree to them,” counsel repeatedly affirmed stipulations at trial, and the defense strategy was to narrow dispute to willfulness. This made the waiver analysis straightforward.

6. Sentencing: affirmance on alternative grounds and “otherwise extensive” leadership

For § 3B1.1(a), Castro attacked the “five or more participants” requirement by arguing employees were not “participants” (criminally responsible). The panel bypassed that factual dispute via United States v. Salinas, affirming on the alternative “otherwise extensive” prong supported by United States v. Tuma and the guideline commentary counting unknowing contributors. The court cited the scope of personnel involved and the scale of tax loss as record support.

7. Obstruction: threats via litigation and intimidation of witnesses

On § 3C1.1, the court first resolved preservation in Castro’s favor, rejecting the Government’s push for plain-error review because Castro had objected to the absence of identified false statements and factual predicates in the PSR. On the merits, the panel upheld obstruction based on Application Note 4(A): threatening/intimidating or attempting to influence. It relied on record descriptions of lawsuits against agents and evidence that litigation threats made witnesses hesitant to testify. The panel therefore did not need to decide whether perjury/false statements to a judge independently supported the enhancement.

C. Impact

• Procedural impact (most significant): Even though the opinion is unpublished, it provides a clear roadmap for how forfeiture can control whether a Rule 33 motion is treated as “timely” for FRAP 4(b)(3) purposes: if the Government fails to argue untimeliness in the district court and the court reaches the merits, the appellate court may treat the motion as tolling and the notice of appeal as ineffective until resolution.
• Appellate practice reminder: Litigants must file a separate notice of appeal to challenge post-judgment orders entered after a prior notice—otherwise appellate jurisdiction will be lacking notwithstanding any perceived connection to the underlying case.
• Guidelines litigation: The panel underscores that § 3B1.1(a) can be sustained through “otherwise extensive” proof even where participant status is contested, and that unknowing labor can count toward extensiveness.
• Obstruction doctrine: The opinion illustrates how repeated lawsuit threats and filings aimed at investigators/witnesses can fit § 3C1.1 Note 4(A), especially when the record shows chilling effects on witness cooperation.

IV. Complex Concepts Simplified

• “One-court-at-a-time” rule: Normally, once you appeal, the trial court cannot change issues that are part of that appeal. But it may still act on matters not involved in the appeal—and certain post-trial motions can delay the appeal’s effectiveness.
• “Post-judgment order” and “separate notice of appeal”: If a new order is entered after you file a notice of appeal (e.g., denying a transcript correction), you usually must file a new notice to appeal that new order; your earlier notice does not automatically cover it.
• “Claim-processing rule” versus “jurisdictional rule”: Jurisdictional rules cannot be waived and courts must enforce them even if no party raises them. Claim-processing rules are important but can be forfeited if the opposing party fails to timely invoke them.
• FRAP 4(b)(3) tolling: Certain timely post-trial motions pause the normal criminal appeal clock and make an already-filed notice of appeal ineffective until the motion is decided.
• Brady materiality: Even if evidence could help the defense, it must be significant enough that it could reasonably undermine confidence in the verdict. Evidence that merely adds another way to attack a witness already impeached is often considered “cumulative” and not material.
• “Otherwise extensive” under § 3B1.1(a): Leadership enhancement can apply even without five criminal participants if the operation is large in scope and uses many people (including unknowing helpers) whose work makes the crime possible.

V. Conclusion

United States v. Castro is a procedurally instructive Fifth Circuit decision in three main respects. First, it reinforces that appealing a later post-judgment order requires a separate notice of appeal. Second—and most notably—it treats the interaction between Rule 33 timing and FRAP 4(b)(3) through the lens of forfeiture: because Rule 33 time limits are claim-processing rules under Eberhart, the Government’s failure to raise untimeliness below allowed FRAP 4(b)(3) to delay the notice of appeal’s effectiveness and preserve district-court authority to decide the motion. Third, on the merits, the panel applied settled doctrines to reject Brady and Confrontation Clause challenges and to uphold leadership and obstruction enhancements, emphasizing “otherwise extensive” activity and intimidation via litigation threats.