United States v. Vincent Bazemore, Jr.

Case: 10-10685 Document: 00511280279 Page: 1 Date Filed: 11/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 1, 2010
No. 10-10685 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
VINCENT JOHN BAZEMORE, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-2237
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Vincent Bazemore, Jr. (“Bazemore”) appeals the district court’s stay order
entered in the Government’s garnishment action resulting from a restitution
award granted pursuant to Bazemore’s conviction for securities fraud. United
States v. Bazemore, 3:07-CR-312-M (N.D. Tex. Sept. 22, 2009), appeal dism’d,
No. 09-11005 (5th Cir. Jan. 4, 2010). Concluding that we lack jurisdiction, we
DISMISS the appeal.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-10685
I. Factual Background and Case History
In 2009, Bazemore pleaded guilty to securities fraud and was sentenced
to imprisonment, supervised release, and restitution of over $15 million. This
set of facts has been the subject of several appeals by Bazemore, including this
one. In Case No. 10-10189, he appealed the district court’s grant of a motion to
sell property to collect the restitution, and in Case No. 10-10301, he appealed the
district court’s denial of his motion to stay the restitution order pending his
action challenging the underlying conviction under 28 U.S.C. § 2255. Those two
actions were consolidated and dismissed as frivolous. United States v. Bazemore,
Nos. 10-10189 & 10-10301 (5th Cir. Sept. 17, 2010). His petition for writ of
mandamus to direct the district judge to recuse himself was denied in yet
another appeal. In re Bazemore, No. 10-10580 (5th Cir. Aug. 31, 2010).
In Bazemore’s § 2255 action, he filed a motion for summary judgment
which was denied. His appeal of that ruling was dismissed for want of
jurisdiction by this court. United States v. Bazemore, No. 10-10762 (5th Cir. Oct.
6, 2010). His petition for writ of mandamus regarding the district court’s alleged
failure to rule timely on his § 2255 application remains pending in this court
under Case No. 10-11020.1
The current case stems from the Government’s further efforts to collect the
restitution order in the form of filing a garnishment action with respect to an
annuity issued by Principal Life Insurance Company (“Principal Life”) and which
Bazemore contends is the separate property of his wife, Angelee Bazemore
(“Angelee”), who intervened in the district court. Neither Angelee nor Principal
1
Bazemore also sued an FBI agent alleging wrongful seizure. That case was dismissed
as frivolous, Bazemore v. Abbott, No. 3:10-CV-01444 (N.D. Tex. Sept. 29, 2010) and the appeal
of that dismissal is pending under No. 10-11032. A prior case against the same FBI agent and
others was also dismissed, Bazemore v. Junker, No. 3:10-CV-00720 (N.D. Tex. June 15, 2010),
and the appeal was dismissed for want of prosecution. Bazemore v. Junker, No. 10-10480 (5th
Cir. Aug. 13, 2010).
2
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No. 10-10685
Life is a party to this appeal. In the district court, the Government contends
that the annuity policy is community property of Bazemore and Angelee, while
they contend it is separate property. The district court has not issued a ruling
on this matter, however, because it stayed the garnishment case as a result of
the pendency of a criminal investigation of a separate fraud from that which
gave rise to the restitution order. It is this stay order from which Bazemore
appeals.
II. Jurisdiction
Through his numerous forays into the appellate process, Bazemore should
be very familiar with the concept that this court must have jurisdiction before
it entertains an appeal. Nonetheless, he made no effort in his opening brief to
address our jurisdiction at all. Instead, he argued only that (1) the Government
missed the deadline for filing a forfeiture action; (2) the Principal Life policy is
Angelee’s separate property; and (3) the “seizure has caused extreme hardship,
and the continued possession will cause irreparable financial harm.”
In response, the Government argued that this court lacks jurisdiction over
this appeal because the district court’s stay order is not final, was not certified
by the district court for interlocutory appeal, and is not in the category of non-
final orders that can nonetheless be appealed. Additionally, the Government
notes Bazemore’s lack of standing to assert the alleged harm to Angelee from the
stay because Bazemore’s position is that he has no interest in the Principal Life
policy. In his reply brief, Bazemore again fails to address the court’s jurisdiction
arguing instead that the underlying restitution order cannot be enforced because
it exceeded the court’s power to enter it.2
2
As a result, Bazemore has arguably waived this court’s consideration of exceptions
to the finality rule. See, e.g., Kmart Corp. v. Aronds, 123 F.3d 297, 299 n.4 (5th Cir. 1997)
(determining that, by failing to brief the issue, the appellant waived any argument that the
collateral order exception applied).
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We conclude that the district court’s stay order was neither a final
judgment nor an order in the small category of cases allowing for an
interlocutory appeal. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 10 & n.11 (1983) (noting the general rule “that a stay is not
ordinarily a final decision” unless it puts the plaintiff “effectively out of court”)
(internal citation and quotation marks omitted); Kershaw v. Shalala, 9 F.3d 11,
14 (5th Cir. 1993) (“An order staying judicial proceedings is ordinarily not
considered final and is hence not appealable.”). The effect of the district court’s
order does not effectively put Bazemore “out of court” or deprive him of a federal
forum. See Kershaw, 9 F.3d at 14. Nor can it be characterized as a “collateral
order” separate from and collateral to the merits. Id. at 14-15 (discussing
requirements for collateral order review and noting that, to be collateral, an
order “must be separable from, and collateral to, the merits of the principle [sic]
case.”). Bazemore’s attack on the stay order is intertwined with and identical to
his attack on the garnishment action: he contends that the annuity policy is
Angelee’s separate property and, therefore, not subject to garnishment for his
debt (the criminal restitution order), that the Government waived the right to
the annuity by failing to file a forfeiture and, more recently, that the underlying
restitution order is illegal. None of these issues is “separable from” the
underlying garnishment case. Accordingly, we find no basis for jurisdiction over
this appeal. We express no opinion on the merits of the underlying garnishment
action.
Although Bazemore is entitled to some leeway as a pro se litigant, his
continual resort to an appellate court without regard to its jurisdiction must
cease. Bazemore is cautioned that filing substantively frivolous appeals or ones
over which this court lacks jurisdiction constitutes grounds for sanctions.
APPEAL DISMISSED for want of jurisdiction.
4