United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Certify
Interlocutory Appeal (“Motion for Appeal”) 
filed by Defendants Charles and Linda Bolton. After
considering the submissions of the parties, the record, and
the applicable law, the Court finds that this motion is not
well taken and should be denied.
March 22, 2016, a federal grand jury indicted Defendants
Charles Bolton (“Charles”) and Linda Bolton
(“Linda”) (collectively “Defendants”)
on five counts of attempted tax evasion for the years
2009-2013 (Counts 1-5) and five counts of filing false tax
returns for those same years (Counts 6-10). Trial was
initially set for May 23, 2016. Defendants filed a joint
Unopposed Motion to Continue  on April 25, 2016. The
Court granted this motion on April 29, 2016, and the trial
date was then set for July 18, 2016. Due to courtroom
unavailability and after conferring with the parties to
ascertain any objections, the Court sua sponte
continued the case until August 22, 2016. Because of issues
with Linda's attorneys, the trial was continued once
again to September 12, 2016.
ultimately began on September 13, 2016, due to a late filed
motion to quash trial subpoena filed by a witness in the
case. Due to the high local interest in the case, the Court
took the precaution of calling for a district-wide venire
instead of a division-wide one, in order to ensure the
Defendants would be tried before an unbiased panel. The
government rested its case on September 15, 2016, after
presenting several witnesses and exhibits. Defense called one
witness and rested that same day. After deliberations, the
jury returned a verdict of guilty for Charles on Counts 2-10
and for Linda on Counts 6-10. Both Defendants were found not
guilty as to Count 1. The jury was unable to reach a verdict
as to Counts 2-5 with respect to Linda Bolton, and the Court
declared a mistrial as to those counts.
March 17, 2017, sentencing was held in open court. Over the
objections of the Defendants, the Court adopted the
Pre-Sentence Reports' calculated sentencing guideline
range of 27 to 33 months for both Charles and Linda. The
Court then sentenced Linda to 30 months confinement per count
with the Federal Bureau of Prisons (“BOP”), to be
served concurrently. Charles was sentenced to 33 months
confinement as to Counts 2 through 5, to run concurrently,
and 12 months confinement for Counts 6 through 10, to run
concurrently with each other but consecutively with the
33-month sentence under Counts 2 through 5, for a total of 45
months confinement in the custody of the BOP. Fines and
restitution were also levied against both Defendants.
Judgment was entered in the case on March 28, 2017.
(See Judgments .) Defendants were allowed
to self-surrender to the custody of the BOP as notified by
the U.S. Marshal, but no later than 60 days from the date of
March 31, 2017, Charles filed a Notice of Appeal .
Subsequently, on April 3, 2017, Charles requested that Notice
of Appeal be dismissed without prejudice, as it was filed in
error. The Court granted this request that same day.
(See Order .)
April 11, 2017, Charles filed his Motion for New Trial Due to
Defense Counsel for Defendant Charles Bolton Commenced the
Representation with an Actual Conflict  and his Motion
to Vacate Conviction and Sentence and in the Alternative, for
New Trial Under Federal Rule of Criminal Procedure Rule 33
and Request for Garcia Hearing . That same
day, Charles filed a second Notice of Appeal , before he
and Linda both filed additional Motions for New Trial
. Linda then filed a Notice of Appeal .
Court issued an Order  on April 12, 2017, terminating
all pending Motions for New Trial ,
finding that it did not have jurisdiction over the matters
they involved. See United States v. Hitchmon, 602
F.2d 689, 692 (5th Cir. 1979) superceded by statute on
other grounds as stated in United States v. Martinez,
763 F.2d 1297, 1308 (11th Cir. 1985) (citations omitted);
see also Fed. R. Crim. 33(b)(1) (“If an appeal
is pending, the court may not grant a motion for a new trial
until the appellate court remands the case.”)
April 21, 2017, Defendants filed their Motions to Seal
,  asking for leave to file certain
confidential medical information under seal for purposes of
forthcoming motions to stay the Defendants' self-report
dates. The Court entered its Order  granting these
motions on April 24, 2017. Defendants' Motions to Stay
 were subsequently filed on April 26, 2017.
Court learned on April 26, 2017, that Defendants had filed
motions for bail pending appeal in the Fifth
Circuit. These motions were procedurally incorrect,
as motions for bail pending appeal must first be filed with
the district court before they are brought to the appellate
court, and no such motions were filed with this Court.
See Fed. R. App. P. 9(b); see also Jago v. U.S.
Dist. Court, N. Dist. of Ohio, 570 F.2d 618, 623 (6th
Cir. 1978) (“Release pending an appeal must be first
sought in the district court even after an appeal has been
noted from the judgment of conviction.”). Because of
the confusing motion practice of Defendants and because it
was uncertain how to proceed on the Motions to Stay
 given the motions for bail, the Court consulted
with staff attorneys at the Fifth Circuit.
ultimately decided, at the suggestion of the Fifth Circuit
staff attorneys, that the best course of action was for the
Court to request a remand pursuant to Federal Rule of
Appellate Procedure 12.1(b),  in order to streamline the
proceedings and to allow for factual findings to be made on
the issues in all of the motions filed by Defendants. The
Fifth Circuit panel agreed and issued a per curiam order
remanding the case on April 27, 2017, divesting itself of
jurisdiction and denying all pending motions before it as
moot. (See Order of USCA .) The Court issued an
Order  on April 27, 2017, reviving the Motions for New
Trial  and setting briefing deadlines.
Because of the remand, no appeal is currently pending in this
Court denied the Motions to Stay  on May 1, 2017.
That same day, Defendants filed their Motions for Bond
 and asked for expedited consideration of these
motions, which the Court denied. Linda surrendered to the
custody of the BOP on May 2, 2017, and Charles surrendered on
May 3, 2017.
Motion for Appeal  was filed on May 3, 2017, the day
after Linda surrendered and the day Charles was set to
surrender. In it, Defendants request an interlocutory appeal
of the Court's Order  denying their Motions to Stay
 and the Order  denying their requests ...