Unreported / Non-Citable
Background
Olamide Olatayo Bello was convicted by jury of conspiracy to commit wire fraud and conspiracy to commit money laundering in the U.S. District Court for the Eastern District of Texas. The district court sentenced him to 293 months imprisonment and initially deferred determining the restitution amount for 90 days. Within that period, the government moved to amend the judgment to include $3,567,903 in restitution, which the district court granted.
Rather than appealing the conviction or the amended judgment directly, Bello filed three separate motions: a motion for relief based on perjury and newly discovered evidence; a motion under Federal Rule of Appellate Procedure 10(c) to settle the record on appeal; and a motion to reopen the time to file a notice of appeal of the amended judgment. These filings raised jurisdictional and procedural questions for the Fifth Circuit.
The Court’s Holding
The Fifth Circuit lacked jurisdiction to review Bello’s motion for relief based on perjury and newly discovered evidence because it was procedurally improper and not recognized by any rule or statute. The court held that a Section 2255 petition is the exclusive remedy available for attacking a conviction on such grounds, citing SEC v. Novinger and United States v. Sanford.
The appeal from Bello’s motion to settle the record on appeal became moot. The district court’s docket showed that the clerk’s office mailed Bello a copy of the sentencing transcript on June 1, 2026, eliminating the basis for that motion and making it part of the appellate record.
The court consolidated Bello’s appeal from the motion to reopen the time for filing a notice of appeal with his direct appeal of the amended judgment (No. 25-40772). Although Bello filed his notice of appeal on November 26, 2025—more than 14 days after the district court entered the amended judgment on October 28, 2025—it was within the 30-day extension period under Federal Rule of Appellate Procedure 4(b)(4). The appellate panel hearing the amended judgment appeal must determine on remand whether Bello could show excusable neglect or good cause for the late filing.
Key Takeaways
- Motions based on perjury and newly discovered evidence must be pursued through Section 2255 petitions, not through procedurally improper motions in the trial court.
- Once a sentencing transcript is provided to the appellant, motions to settle the record become moot, preventing appellate review of those procedural issues.
- Late notices of appeal in criminal cases may still proceed if filed within the 30-day extension period allowed under Federal Rule of Appellate Procedure 4(b)(4), subject to showing excusable neglect or good cause.
Why It Matters
This decision reinforces the Fifth Circuit’s strict adherence to procedural requirements in criminal appeals and reiterates that post-conviction relief attacking the conviction itself must follow the proper statutory channels. Defendants cannot circumvent jurisdictional rules by filing procedurally improper motions; doing so deprives the appellate court of jurisdiction to review them. This protects judicial efficiency and ensures appellate courts review only properly framed issues.
The consolidation approach also clarifies that when a defendant files a late notice of appeal within the extended period, the accompanying motion to reopen the filing deadline will be resolved as part of the direct appeal of the underlying judgment, ensuring comprehensive appellate review of both the substantive judgment and the procedural questions surrounding its appellability.