Forfeiture of Rule 33 Untimeliness Makes FRAP 4(b)(3) Tolling Effective (and Preserves District-Court Jurisdiction)

United States v. Castro, Nos. 24-11000 & 26-10428 (5th Cir. Aug. 11, 2026) (per curiam) (unpublished; prior panel opinion withdrawn and substituted).

1. Introduction

John Anthony Castro operated “Castro and Company LLC,” offering tax planning and preparation services while portraying himself as a “federal practitioner” and “international tax attorney” based on his status as an IRS enrolled agent. After a bench trial, he was convicted of 33 counts under 26 U.S.C. § 7206(2) for aiding and assisting in the preparation of false tax returns, principally by fabricating Schedule C and Schedule A deductions to inflate refunds and then taking roughly half as his fee. The district court applied multiple Guidelines enhancements and imposed a 188-month sentence.

On appeal, Castro challenged: (1) post-judgment rulings on a motion to correct trial transcripts and a motion for new trial; (2) alleged Brady violations; (3) an asserted lack of a valid waiver of Confrontation Clause rights via trial stipulations; and (4) sentencing enhancements under U.S.S.G. §§ 3B1.1(a) (leadership) and 3C1.1 (obstruction). A separate, consolidated appeal challenged denial of bail pending appeal.

The opinion’s most consequential procedural clarification concerns how forfeiture of a timeliness objection to a Rule 33 motion interacts with the “one-court-at-a-time” rule and Federal Rule of Appellate Procedure 4(b)(3).

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

A. Appellate/district-court jurisdiction and timing

• Griggs v. Provident Consumer Disc. Co. — Supplies the core “one-court-at-a-time” principle: a notice of appeal divests the district court of control over aspects of the case involved in the appeal. The panel uses Griggs as the baseline rule but emphasizes its scope limitation (“those aspects”).
• United States v. Willis — Reinforces that actions taken contrary to the divestiture rule can be “null and void,” while also recognizing “exceptions” to the general rule. Willis frames the analysis that FRAP 4(b)(3) is one such exception.
• Armour v. Knowles — Controls the transcript-correction issue: a post-judgment order entered after a notice of appeal requires a separate notice of appeal to secure appellate review. The court’s key point is practical: “One cannot usually evince an intent to appeal an order that does not yet exist.”
• United States v. Hoffman — Used to explain FRAP 4(b)(3)’s tolling function for certain timely post-trial motions in criminal cases and how it delays the notice of appeal becoming effective.
• Eberhart v. United States — Central to the opinion’s procedural holding: Rule 33 time limits are non-jurisdictional “claim-processing rules” that can be forfeited if not timely invoked. That forfeiture concept is the bridge to treating the case as if FRAP 4(b)(3) still applies.
• Rollins v. Home Depot USA — Cited for the general proposition that jurisdictional arguments are an “obvious exception” to forfeiture, setting up the contrast: if FRAP 4(b)(3) were jurisdictional, the court would have to address timeliness sua sponte.
• Bowles v. Russell — Used in two ways: (1) to distinguish civil notices of appeal as jurisdictional (statutory time limits) versus criminal rule-based timing; and (2) to support the proposition that rule-based time limits in criminal matters are waivable/relaxable and thus non-jurisdictional in character as framed by the opinion.
• Hamer v. Neighborhood Hous. Servs. of Chi. — Provides the taxonomy: statutory time prescriptions are jurisdictional; rule-based ones are claim-processing. This supports the panel’s conclusion that FRAP 4(b)(3) is non-jurisdictional.
• United States v. Ugalde and United States v. Demopoulos — Both addressed by the panel as non-controlling on the forfeiture/timeliness posture presented; Ugalde involved the district court rejecting the motion as untimely rather than reaching the merits, unlike Castro.

B. Brady/new trial and evidentiary hearings

• Brady v. Maryland — Establishes the disclosure duty for favorable evidence.
• United States v. Perry — Supplies the standard of review for Brady-based new trial motions (de novo with deference to underlying fact findings) and frames the “three-prong Brady test.”
• United States v. Mahmood — Sets abuse-of-discretion review for denial of an evidentiary hearing on a new-trial motion.
• United States v. Sipe and Strickler v. Greene — Provide the elements of a Brady claim and the materiality lens (“undermine confidence in the verdict”). Sipe is also used for the “cumulative impeachment” principle: evidence that merely adds to impeachment of an already impeached witness is generally immaterial.
• Banks v. Thaler — Confirms impeachment evidence is within Brady because it may be outcome-determinative.
• United States v. Brumfield — Supports the court’s conclusion that additional impeachment that “merely furnishes an additional basis” is cumulative and immaterial.
• United States v. Hamilton and United States v. MMR Corp. — Support deciding Rule 33 motions on affidavits without live hearings and underscore the trial judge’s comparative advantage in resolving such motions.

C. Confrontation Clause waiver by stipulation

• Delaware v. Van Arsdall — General statement of confrontation rights and harmless-error framework for Confrontation Clause violations.
• United States v. Garcia — Gives Fifth Circuit standard: Confrontation Clause claims reviewed de novo and subject to harmless error analysis.
• United States v. Stephens — Provides the controlling waiver rule: counsel may waive confrontation rights via stipulation if the defendant does not dissent and the decision is a legitimate tactic/strategy.
• United States v. Ceballos — Clarifies that waiver does not require affirmative agreement on the record; the defendant must simply not dissent, and courts presume against waiver with the Government bearing the burden.

D. Sentencing enhancements

• United States v. Zuniga and United States v. Rodriguez — Provide standards of review for Guidelines issues (de novo for interpretation/application; clear error for facts; “plausible in light of the record” test).
• United States v. Gross — Key limitation on § 3B1.1(a): regardless of “five or more” or “otherwise extensive,” the defendant must be an organizer/leader of at least one other “participant.”
• United States v. Salinas — Permits affirmance of an enhancement on any ground supported by the record.
• United States v. Tuma — Defines “otherwise extensive” as including unknowing participants whose services contributed to the criminal enterprise’s success.
• United States v. Fullerton — Recent articulation that the “participant” bar is “not high,” requiring knowing participation in some part of the enterprise that brings about the offense.
• United States v. Lopez — Used to affirm where the district court’s finding is “plausible in light of the record as a whole.”
• United States v. Williams and United States v. Dominguez-Alvarado — Address preservation and standards of review: whether an objection was sufficiently raised below to avoid plain-error review.

3.2 Legal Reasoning

A. The opinion’s procedural core: forfeiture + FRAP 4(b)(3) + jurisdiction

The Government attempted to block review of the new-trial ruling by arguing the district court lacked jurisdiction to decide an untimely post-notice Rule 33 motion. The panel rejected that by chaining together three propositions:

• Rule 33 timing is forfeitable (Eberhart v. United States): if the Government does not timely raise the time bar, it is lost.
• FRAP 4(b)(3) is also claim-processing (drawing on Bowles v. Russell and Hamer v. Neighborhood Hous. Servs. of Chi.): because it is rule-based (not statutory), it does not impose a jurisdictional limit that must be policed sua sponte.
• Consequent effect: once timeliness is forfeited, the Rule 33 motion is treated as operative for FRAP 4(b)(3)’s tolling mechanism; thus, the notice of appeal is not effective until the motion is resolved, and the district court is not divested of jurisdiction in the interim.

This reasoning converts what could have been a jurisdictional dead-end into an ordinary merits review of the new-trial denial—and it simultaneously warns prosecutors: if they want to rely on Rule 33 untimeliness to avoid tolling and preserve divestiture arguments, they must raise it in the district court.

B. Post-judgment orders and the “separate notice” trap

On the transcript-correction issue, the court sharply separated two questions: (1) whether the district court had jurisdiction to decide the motion (it did, because the transcript issue was not “an aspect” of the pending appeal under Griggs v. Provident Consumer Disc. Co.), and (2) whether the court of appeals had jurisdiction to review that later order (it did not, absent a separate notice of appeal under Armour v. Knowles).

C. Brady/new trial: materiality and cumulativeness do the work

Applying the United States v. Sipe/Strickler v. Greene three-prong test, the panel assumed arguendo some favorability but found no materiality. The two decisive themes were:

• Not suppressed / known at trial: Rivera’s marital status was known and used for impeachment, undercutting the “suppression” prong.
• Cumulative impeachment: the husband’s lien would only add another impeachment angle to a witness already impeached on the same underlying topic (her marital-status misreporting), making it immaterial under Sipe and United States v. Brumfield.
• Conclusory assertions: the claimed “verbal immunity agreement” was unsupported, and conclusory allegations cannot establish Brady suppression or materiality.

The denial of an evidentiary hearing followed naturally: under United States v. Hamilton and United States v. MMR Corp., hearings are exceptional, and the proffer did not present a “unique situation” requiring live fact development.

D. Confrontation Clause: waiver by counsel’s stipulation, anchored by defendant’s non-dissent

Relying on United States v. Stephens and United States v. Ceballos, the panel emphasized a functional waiver doctrine: a defendant need not personally allocute on the waiver; instead, waiver is valid if the defendant does not dissent and counsel’s decision is a legitimate tactic. Here, Castro’s own email (“I agree to them”), counsel’s repeated confirmations at trial, and the strategic narrowing of disputed issues to “willfulness” collectively defeated the Sixth Amendment challenge.

E. Sentencing: “otherwise extensive” and obstruction through intimidation-by-litigation

For § 3B1.1(a), the panel avoided a headcount dispute (“five or more participants”) by affirming under “otherwise extensive” pursuant to United States v. Salinas, using United States v. Tuma and the Guideline commentary to count unknowing outsiders and the breadth of enterprise operations. It also found it plausible that at least one employee met the low threshold for “participant” described in United States v. Fullerton, satisfying United States v. Gross.

For § 3C1.1, the opinion approved the enhancement where lawsuits and communications were used as threats to influence or chill cooperation in the investigation—fitting Application Note 4(A)’s “threatening, intimidating” category. The panel treated the record (emails, “one and only chance to settle” language, testimony that witnesses were hesitant) as sufficient to avoid clear error under United States v. Rodriguez.

3.3 Impact

• Criminal appellate timing in the Fifth Circuit: The opinion strengthens the practical effect of forfeiture: if the Government litigates the merits of a late Rule 33 motion without raising timeliness, it may lose the ability to argue that FRAP 4(b)(3) did not toll the notice of appeal and did not preserve district-court jurisdiction.
• Litigation strategy for prosecutors: Timeliness objections to Rule 33 motions should be asserted promptly and clearly in district court to preserve later arguments about tolling/divestiture.
• Defense practice: Defendants seeking review of post-judgment procedural orders (like transcript corrections) must file a separate notice of appeal targeting those orders, even if a merits appeal is already pending.
• Obstruction enhancement scope: The opinion illustrates a fact pattern where “vexatious” or coercive litigation tactics and threats of suit may be treated as intimidation or unlawful influence in the investigative phase for § 3C1.1 purposes, particularly when witness hesitancy is shown.
• Precedential weight caveat: The decision is unpublished (5th Cir. R. 47.5), limiting formal precedential force, but its reasoning may be cited persuasively, especially on the claim-processing/jurisdiction distinction.

4. Complex Concepts Simplified

• “One-court-at-a-time” rule: once an appeal is properly underway, the district court generally cannot keep deciding issues that are part of what the appellate court is reviewing (Griggs v. Provident Consumer Disc. Co.), but it can still decide matters not involved in the appeal.
• Jurisdictional vs. claim-processing rules: a jurisdictional rule limits a court’s power and must be enforced even if the parties don’t raise it; a claim-processing rule is a procedural requirement that can be forfeited or waived (Hamer v. Neighborhood Hous. Servs. of Chi.).
• FRAP 4(b)(3) “tolling”: certain post-trial motions delay when a notice of appeal becomes effective in a criminal case; here, that delay mattered because it kept jurisdiction in the district court to decide the new-trial motion.
• Brady materiality: even if evidence could help the defense, a Brady violation requires a reasonable probability it would change how the whole case looks—enough to undermine confidence in the verdict (Strickler v. Greene).
• Cumulative impeachment: additional evidence that merely gives yet another reason to doubt a witness who was already impeached usually won’t be “material” under Brady (United States v. Sipe).
• “Otherwise extensive” (§ 3B1.1): a criminal activity can qualify as extensive based on the breadth of people used (including unknowing helpers) and operational scope, even if fewer than five people are criminally responsible (United States v. Tuma).
• Obstruction (§ 3C1.1): conduct that threatens or intimidates participants in the justice process—including attempts to chill cooperation—can increase the Guidelines offense level; the court treated coercive “threat-of-lawsuit” tactics as fitting the commentary’s intimidation example.

5. Conclusion

United States v. Castro affirms a tax-fraud conviction and significant sentencing enhancements, but its most notable contribution is procedural: it treats FRAP 4(b)(3) and Rule 33 timeliness as non-jurisdictional claim-processing mechanisms, allowing forfeiture to preserve tolling and district-court authority where the Government did not timely object. Alongside that, the case reiterates two recurring appellate lessons: post-judgment orders often require their own notice of appeal (Armour v. Knowles), and stipulations can validly waive confrontation rights when the defendant does not dissent and strategy supports the choice (United States v. Stephens; United States v. Ceballos).