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United States v. Babar Butt ( 2019 )


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  •      Case: 18-20023      Document: 00514927175         Page: 1    Date Filed: 04/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20023                        April 23, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
BABAR JAVED BUTT,
Defendant–Appellant.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-452-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Babar Javed Butt appeals postjudgment rulings by the district court
relating to the restitution and forfeiture ordered in connection with his guilty
plea convictions for mail fraud in violation of 18 U.S.C. § 1341.                          As the
Government notes, Butt’s notice of appeal from the amended forfeiture order
was executed more than 14 days after the order was entered. See FED. R. APP.
P. 4(b)(1)(A)(i); FED. R. CRIM. P. 32.2(b)(4)(C); Eberhart v. United States, 546
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-20023     Document: 00514927175     Page: 2   Date Filed: 04/23/2019
No. 18-20023
U.S. 12, 18 (2005). Thus, we dismiss as untimely the appeal from the amended
forfeiture order. See
    Eberhart, 546 U.S. at 18
    . Moreover, because the denial
of Butt’s motion for discovery in an as yet unfiled civil suit was neither a final
order nor an appealable interlocutory order, we lack jurisdiction to hear the
appeal from the denial of that motion. See 28 U.S.C. §§ 1291, 1292; Periodical
Publishers Serv. Bureau, Inc. v. Keys,
    981 F.2d 215
    , 217-18 (5th Cir. 1993).
Butt timely appealed the district court’s turnover order as that
proceeding was civil in nature. See 18 U.S.C. § 3613(a), (f); FED. R. APP. P.
4(a)(1)(B).   The district court did not abuse its discretion in granting the
Government’s turnover motion. See United States v. Messervey, 182 F. App’x
318, 321 (5th Cir. 2006) (per curiam) (quoting Santibanez v. Wier McMahon &
Co.,
    105 F.3d 234
    , 239 (5th Cir. 1997)). To the extent Butt had any interest in
the $91,267 that was ordered turned over, it could be used to satisfy the
restitution debt owed by Butt. See 18 U.S.C. § 3613(a); TEX. CIV. PRAC. & REM.
CODE § 31.002(a); Messervey, 182 F. App’x at 321. To the extent there are
third-party interests in the $91,267, Butt does not have standing to advance
those interests. See McCormack v. Nat’l Collegiate Athl. Ass’n,
    845 F.2d 1338
    ,
1341 (5th Cir. 1988); see also United States v. King, 123 F. App’x 144, 145 (5th
Cir. 2004) (per curiam). Further, in light of the foregoing, Butt cannot show
reversible error in connection with the district court’s denial of Butt’s motion
for an evidentiary hearing in the turnover proceeding.
Accordingly, Butt’s appeal is DISMISSED IN PART with respect to the
amended forfeiture order due to an untimely notice of appeal. His appeal is
DISMISSED IN PART with respect to the denial of his discovery motion due
to lack of jurisdiction. The appeal is AFFIRMED IN PART with respect to the
turnover order. Butt’s motion for the appointment of counsel is DENIED.
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