United States v. Outlaws Club ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OUTLAWS CLUB, located at 5420
Howard Street, Charlotte, NC, More
particularly Described in a Deed
Recorded at Book 4407, Page 460,
No. 95-1241
Mecklenburg County Registry,
Defendant-Appellant,
and
MICHAEL WELDON BAZEMORE;
CHARLOTTE-MECKLENBURG COUNTY
TAX COLLECTOR,
Claimants.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-91-408-3-P)
Argued: July 10, 1996
Decided: August 19, 1996
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
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Dismissed by unpublished per curiam opinion. Judge Widener wrote
a dissenting opinion.
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COUNSEL
ARGUED: Harold Johnson Bender, LAW OFFICE OF HAROLD J.
BENDER, Charlotte, North Carolina, for Appellant. B. Frederic Wil-
liams, Jr., Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee. ON BRIEF: Mark T. Calloway, United States
Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
On November 22, 1991, the government filed a civil forfeiture
action in the district court against the clubhouse occupied by the
Charlotte, North Carolina, chapter of the Outlaws motorcycle club,
and the lot upon which it is situated. On March 9, 1992, Michael W.
Bazemore, then a member of the Outlaws, asserting that he was
"attorney-in-fact for the record owners of the property," filed a claim
contesting the forfeiture. Neither the club itself 1 nor any other mem-
bers filed claims.
Following a lengthy period of discovery, culminating in a bench
trial, the district court entered a final judgment of forfeiture on behalf
of the government on January 23, 1995. Eight days later, a notice of
appeal was filed in the district court that stated:
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1 Under North Carolina law, unincorporated associations have the
capacity to sue and be sued. N.C. Gen. Stat. § 1-69.1 (1983). It therefore
appears that the Outlaws could have filed its own claim in the forfeiture
proceeding, and that such a claim need not have named individual mem-
bers of the club. Indeed, we note that the government's complaint for for-
feiture named "The Outlaws" as a "person" who "may have or claim an
interest in the defendant property."
2
NOW COMES the Defendant, by and through its attorney,
and gives Notice of Appeal to the Fourth Circuit Court of
Appeals from the Memorandum of Decision and Order and
Judgment entered by The Honorable Robert D. Potter on
January 23, 1995.
(emphasis supplied). The notice of appeal was captioned United
States v. Outlaws Club, located at [etc.], the same as all other filings
and orders in the proceedings below. No other notices of appeal from
the final judgment were filed.
Under the federal rules, a notice of appeal
must specify the party or parties taking the appeal by nam-
ing each appellant in either the caption or the body of the
notice of appeal. . . . An appeal will not be dismissed for
informality of form or title of the notice of appeal, or for
failure to name a party whose intent to appeal is otherwise
clear from the notice.
Fed. R. App. P. 3(c). The notice of appeal filed in this case specifies
that it is being taken on behalf of "the Defendant," which, in this in
rem proceeding, is merely the real property that is the subject of the
action. However, inasmuch as pieces or parcels of real property are
not themselves "owners" within the meaning of the federal forfeiture
statutes, they have no legal standing to contest their own forfeiture.
United States v. One Parcel of Real Property, 831 F.2d 566, 568 (5th
Cir. 1987).
The notice of appeal nowhere specifies that it is being taken on
behalf of Bazemore, and his intent to appeal is not otherwise clear
therefrom.2 Although one might conclude from all the circumstances
that Bazemore intended to appeal (insofar as he was the only party
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2 The notice of appeal not only fails to name Bazemore anywhere in its
caption or body, but it also affirmatively states that the entity taking the
appeal is doing so "by and through its attorney," instead of "by and
through his attorney." Thus, quite apart from the notice's failure to offer
any positive evidence of Bazemore's intent to appeal, a plain reading of
the document would appear to support the opposite conclusion.
3
with legal standing to appeal and that a notice of appeal was in fact
filed), Rule 3(c) specifically states that a party's intent to appeal must
be discernible "from the notice," rather than from the filing of the
notice.
The failure of a party to comply with the specificity requirement
of Rule 3(c) divests the court of appeals of jurisdiction to hear the
appeal so noted. Torres v. Oakland Scavenger Co. , 487 U.S. 312, 315
(1988); Mallas v. United States, 993 F.2d 1111, 1116 (4th Cir. 1993).
In Torres, Justice Marshall, writing for the seven-Justice majority,
stated: "The failure to name a party in a notice of appeal is more than
excusable `informality'; it constitutes a failure of that party to
appeal." Id. at 314.3 Hence, though Bazemore was the only party enti-
tled to appeal the judgment below, it is evident that he has not.
Because it appears to this court that it lacks jurisdiction to consider
the appeal filed in this case, that appeal is hereby
DISMISSED.
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
The lack of jurisdiction upon which this case is decided is based
upon the mere fact of an oversight in filing with the court papers a
power of attorney executed by the three grantees in the deed to the
property, the record owners thereof, who had executed a power of
attorney to Bazemore, a claimant in this case, to prosecute the claim
on their behalf.
This power of attorney was seen by the government, which yet
acknowledges that it exists, and merely was not filed through the
oversight of Bazemore's attorney. A trial on the merits was held in
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3 Although the applicability of Torres to appeals from judgments
against multiple parties has been somewhat curtailed by subsequent
amendments to Rule 3(c), its general declarations respecting the effect of
a party's clear failure to comply with the Rule surely remain viable.
4
which no issue was made of any lack of authority on the part of
Bazemore to proceed with the case.
Even at oral argument on appeal the following question and answer
took place:
The Court: The grantees in the deed apparently had given
him [Bazemore] the power of attorney?
Assistant United States Attorney: The United States had
no intention of making an issue of that at trial.
In my opinion, the dismissal of the case by the district court and
the dismissal of this appeal carry too far a rigid construction of both
rules of pleading as well as the Rules of Appellate Procedure.
I would vacate the judgment of the district court and remand the
case for a decision on the merits. The matter has already been tried.
5