In re: Leland M. Bryson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: LELAND M. BRYSON,
Claimant-Appellant.
UNITED STATES OF AMERICA, No. 03-1501 Plaintiff-Appellee,
v.
WILLIAM M. BRYSON, JR.,
Defendant. 
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CR-01-240; CR-01-712)
Argued: March 17, 2005
Decided: May 6, 2005
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Williams and Judge Shedd joined.
COUNSEL
ARGUED: Oscar William Bannister, Jr., BANNISTER, WYATT &
KAPPEL, L.L.C., Greenville, South Carolina, for Appellant. Mark C.
Moore, Assistant United States Attorney, OFFICE OF THE UNITED

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STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: J. Strom Thurmond, Jr., United States Attorney, Beth Drake,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After a jury convicted William M. Bryson, Jr., of swindling the
estate of an elderly woman, the district court entered a forfeiture order
against his assets. William’s son, Leland, challenged the order, con-
tending that some of the forfeited assets belonged to him. Finding that
Leland had no legal or equitable interest in the forfeited property at
the time his father committed the illegal acts that resulted in the for-
feiture, the district court rejected Leland’s challenge. Leland appeals.
In addition to urging affirmance, the Government alternatively asserts
that we should dismiss the appeal for lack of jurisdiction because
Leland noted his appeal before the district court’s judgment became
final. For the reasons that follow, we hold that we have jurisdiction
and affirm the judgment of the district court.
I.
A.
On January 30, 2002, a jury convicted William M. Bryson on two
multiple-count indictments. All counts involved a complicated
scheme to defraud the estate of Ethel J. Swink. The jury forfeited
$800,000 of William’s assets.
On June 18, 2002, the district court entered a preliminary order of
forfeiture and an order for substitute assets pursuant to 21 U.S.C.
§ 853(p) (2000). The substitute assets included Lots 16, 17, 18, and
20 at Richardson Pointe in Seneca, South Carolina, and a 54-acre plot
on Sitton Mill Road in Seneca, South Carolina. Each of the five lots
had been at one time titled in Leland’s name. The court served
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Leland’s attorney with a notice of forfeiture, which Leland acknowl-
edges receiving.
One month later, pursuant to 21 U.S.C. § 853(n), Leland filed a
petition of third-party interest in this forfeited property. The Swink
Estate, David Lusk, and Rachel Bryson (William Bryson’s wife) also
filed petitions of third-party interest in other parcels of forfeited prop-
erty. At the outset of the forfeiture hearing held on January 28, 2003,
the Government informed the court that the Swink Estate had only
petitioned to protect the forfeiture order, and that the Government had
settled with Lusk and reached an arrangement with Rachel Bryson,
resolving her claim "by agreement." The court then heard testimony
as to the only remaining claim to the property, that of Leland Bryson.
On March 21, 2003, the district court issued an order rejecting
Leland’s claims and "declin[ing] to amend the final order of forfei-
ture." The court explained that Leland "failed to establish by a pre-
ponderance of the evidence that he has an interest in Lots 16, 17, 18,
and 20 of Richardson Pointe, or the fifty-four (54) acre tract on Sitton
Mill Road all in Seneca, South Carolina." Although the claims of the
Swink Estate, Lusk, and Rachel Bryson seem to have been resolved
by the time of or at the forfeiture hearing, the court issued no formal
order disposing of those claims; nor did the court certify pursuant to
Fed. R. Crim. P. 32.2(c)(3) that it found no just reason for delay with
respect to Leland’s claim. Nevertheless, on April 14, 2003, Leland
filed a notice of appeal.
On September 15, 2003, the Government moved to dismiss
Leland’s appeal as violative of Fed. R. Crim. P. 32.2(c)(3), which
provides:
If multiple third-party petitions are filed in the same case, an
order dismissing or granting one petition is not appealable
until rulings are made on all the petitions, unless the court
determines that there is no just reason for delay.
On March 15, 2004, the district court entered orders disposing of
the claims of the Swink Estate, Lusk, and Rachel Bryson in the man-
ner outlined at the January 28, 2003 forfeiture hearing. One month
later, the Government filed a notice with this court that the district
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court’s March 15, 2004 orders "rendered moot" its motion to dismiss
this appeal. Nevertheless, we asked the parties to submit supplemental
briefs on the jurisdictional issue. In its brief and at oral argument, the
Government changed its position and maintained that we lack juris-
diction to consider the appeal.
B.
Unquestionably, Leland’s notice of appeal was premature. At the
time he noted his appeal, the district court had entered a written order
rejecting his claims to the forfeited property, but the court had not
entered a final order of forfeiture accounting for the other third-party
claims to the property, even though those claims essentially had been
resolved by then. Nor had the district court made any determination
pursuant to Fed. R. Crim. P. 32.2(c)(3) that there was "no just reason
for delay[ing]" Leland’s appeal prior to the entry of a final order of
forfeiture.
In Equipment Finance Group Inc. v. Traverse Computer Brokers,
973 F.2d 345 (4th Cir. 1992), we considered whether we had jurisdic-
tion over a similar, prematurely filed appeal. There the plaintiff noted
its appeal after the district court had granted summary judgment to
one defendant, but before it had issued a ruling as to the remaining
defendant. Nor, at the time the appeal was noted, had the court certi-
fied, pursuant to Fed. R. Civ. P. 54(b), that the initial decision
appealed from was "a final judgment" and there was "no just reason
for delay." We concluded that "[n]onetheless . . . the subsequent dis-
missal" of the claims of the remaining defendant prior to our consid-
eration of the appeal "effectively satisfies the finality requirements of
Rule 54(b)." Equipment Finance, 973 F.2d at 347. We noted that the
"practical approach to finality" adopted under these "procedural cir-
cumstances" caused no prejudice to the defendant and accorded with
the "similar rationale" in Harrison v. Edison Bros. Apparel Stores,
Inc., 924 F.2d 530, 532 (4th Cir. 1991) (granting effect to Rule 54(b)
certification filed after appeal noted). Id.
As the Government recognizes, the certification specified in Fed.
R. Crim. P. 32.2(c)(3), the rule at issue here, "is akin to" that specified
in Fed. R. Civ. P. 54(b), the rule at issue in Equipment Finance. Sup-
plemental Brief of Appellee at 5 n.3. In fact, Rule 32.2(c)(3) "is
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derived from Fed. R. Civ. P. 54(b)." Fed. R. Crim. P. 32.2 advisory
committee’s note; 3 Wright, King & Klein, Federal Practice and Pro-
cedure: Criminal 3d § 547, at 451 (2004). Undoubtedly for this rea-
son, the Government implicitly acknowledges that if Equipment
Finance is good law, its rationale compels the conclusion that we
have jurisdiction over the case at hand. The Government suggests,
however, that Equipment Finance is inconsistent with the Supreme
Court’s prior decision in FirsTier Mortgage Co. v. Investors Mort-
gage Ins. Co., 498 U.S. 269 (1991).
In FirsTier, the Court considered whether an appellate court had
jurisdiction over an appeal filed after the district court had orally
announced that it intended to grant summary judgment but before the
district court had entered judgment or the parties had, at the court’s
request, submitted findings of fact and conclusions of law. The Tenth
Circuit had held that it lacked jurisdiction over the case because the
district court had not issued a final judgment at the time the appeal
was noted. FirsTier, 498 U.S. at 272. The Supreme Court reversed.
Id.
The Court pointed out that Fed. R. App. P. 4(a)(2) specifically pro-
vided that a notice of appeal "filed after the announcement of a deci-
sion or order but before the entry of the judgment or order shall be
treated as filed after such entry and on the day thereof."1 Id. at 272-
73. The Court rejected the view that an initial decision or order under
Rule 4(a)(2) must be final. Instead, the Court held that the rule per-
mitted an appeal taken from a nonfinal decision, in certain cases, to
"serve as an effective notice from a subsequently entered final judg-
ment." Id. at 274. The FirsTier Court cautioned that, of course, Rule
4(a)(2) does not allow a premature notice of appeal from a "clearly
interlocutory decision — such as a discovery ruling or a sanction
order under Rule 11 . . . — to serve as a notice of appeal from the
final judgment." Id. at 276. Rather, the Court held that Rule 4(a)(2)
"permits a notice of appeal from a nonfinal decision to operate as a
1Although the language of the rule has changed slightly, it remains the
same in substance: "A notice of appeal filed after the court announces a
decision or order — but before the entry of the judgment or order — is
treated as filed on the date of and after the entry." Fed. R. App. P. 4(a)(2)
(2005).
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notice of appeal from the final judgment only when a district court
announces a decision that would be appealable if immediately fol-
lowed by entry of judgment." Id. (emphasis in original).
Despite the Government’s suggestion to the contrary, we do not
believe Equipment Finance conflicts with FirsTier. In Equipment
Finance, as here, the district court’s initial nonfinal decision "would
[have] be[en] appealable if immediately followed by entry of judg-
ment," as required by FirsTier. In Equipment Finance the entry of
judgment following the initial nonfinal decision would have to have
been done pursuant to Fed. R. Civ. P. 54(b); in the case at hand, it
would have had to have been done pursuant to Fed. R. Crim. P.
32.2(c)(3). Obviously, the FirsTier Court had no occasion to consider
an entry of judgment pursuant to these rules; but nothing in FirsTier
indicates that its holding does not apply to such judgments.2 And
rightly so: a judgment properly certified by a district court pursuant
to Fed. R. Civ. P. 54(b) (or Fed. R. Crim. P. 32.2(c)(3)) is just as final
as one made final pursuant to other rules. See, e.g., Cold Metal Pro-
cess Co. v. United Eng’g & Foundry Co., 351 U.S. 445, 453 (1956);
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956).
Thus, it is hardly surprising that no published opinion adopts the
Government’s position. Although Equipment Finance itself did not
discuss FirsTier, several of our sister circuits have done so under cir-
2The Government does not directly address the validity of Equipment
Finance in light of FirsTier. Rather, the Government urges us to adopt
the analytical framework of an Eleventh Circuit case predating FirsTier.
But that case, Robinson v. Tanner, 798 F.2d 1378 (11th Cir. 1986), is
nothing more than a panel’s attempt to reconcile several Fifth and Elev-
enth Circuit precedents, none of which bind us and many of which seem
out of date in the wake of FirsTier. Furthermore, the Robinson court’s
disposition of the jurisdictional question before it — whether it had juris-
diction over an appeal (from an order compelling discovery) filed before
the underlying suit was dismissed — has no bearing on the case at hand.
Like cases holding that FirsTier abrogated prior circuit precedent, see,
e.g., United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998), and
unlike the case at hand, the premature appeal in Robinson involved the
kind of plainly interlocutory order that FirsTier held could not "serve as
a notice of appeal from the final judgment." See FirsTier, 498 U.S. at
276.
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cumstances similar to the ones before us and found that the conflu-
ence of Rule 4(a)(2), as interpreted in FirsTier, and Rule 54(b)
confers jurisdiction to hear the prematurely filed appeal. For example,
in Barrett v. Atlantic Richfield Co., 95 F.3d 375, 379 (5th Cir. 1996),
the court concluded that "[b]ecause the district court’s [initial nonfinal
decision disposing of the claims of some, but not all, of the plaintiffs]
would have been appealable if followed by Rule 54(b) certification
and order, Rule 4(a)(2) permits th[e appellate] court to exercise its
jurisdiction." See also Good v. Ohio Edison Co., 104 F.3d 93, 95 (6th
Cir. 1997); Clausen v. Sea-3, Inc., 21 F.3d 1181, 1185 (1st Cir. 1994).3
As the Tenth Circuit recently explained, albeit without reference to
FirsTier, a notice of appeal from an order disposing of all claims of
one party "filed before the district court disposes of all claims [of all
parties] is nevertheless effective if the appellant obtains either certifi-
cation pursuant to [Rule] 54(b) or final adjudication before the court
of appeals considers the case on its merits." Ruiz v. McDonnell, 299
F.3d 1173, 1179 (10th Cir. 2002). Since in this case the district
court’s initial decision did dispose of all claims of one party and the
court issued its "final adjudication" disposing of all remaining claims
before we "consider[ed] the case on its merits," Leland’s premature
notice of appeal is "effective." See id. Accordingly, we possess juris-
diction and will review Leland’s claims on the merits.
II.
A.
The district court rejected Leland’s claims to a third-party interest
in Lots 16, 17, 18, and 20 and the 54-acre plot.4 Although all of these
3We note that at least one court has taken the position that "FirsTier
simply limited the reach of Rule 4(a)(2)’s proviso. It did not hold that the
Rule 4(a)(2) situation — announcement of a final decision followed by
notice of appeal and then entry of the judgment — is the only situation
in which a premature notice of appeal will ripen at a later date." Lazy Oil
Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999). Because the case
at hand clearly falls within Rule 4(a)(2), we need not determine whether
we agree that there are situations other than those covered by Rule
4(a)(2) when "a premature appeal will ripen at a later date." Id.
4At oral argument on appeal, Leland waived any claim to Lot 20, so
we shall not further discuss it.
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properties were at one time titled in Leland’s name, he did not pur-
chase any of them.
William Bryson bought Lots 16, 17, and 18 and recorded them,
respectively, in the names of Leland (then only 17 years old);
Leland’s mother; and Leland’s cousin, Ruth Miller. Leland claims
that all three lots were intended for him, although otherwise titled. In
December 1995, at his father’s direction, all three of them transferred
the deeds for Lots 16, 17, and 18 to EJ & WM, Inc., a corporation
established by William Bryson of which Leland, although obstensibly
president and sole stockholder, testified he knew little. Leland’s father
received no consideration for the transfer to EJ & WM, Inc.
Leland acquired the 54-acre lot by enforcing a promissory note for
$23,000 supposedly evidencing a debt owed to his father by Karl
Kenyon, one of his father’s co-conspirators. After his father gave
Leland his interest in the note, Leland sued Kenyon for default. In
October 1993, Kenyon "settled" with Leland by transferring to him
the deed to the 54-acre lot. In January 1996, at his father’s direction,
Leland deeded the 54-acre plot to EJ & WM, Inc.
On July 21, 1999, again at his father’s direction, Leland, on behalf
of EJ & WM, Inc., transferred Lots 16, 17, and 18 and the 54-acre
tract into his name. The Government points out that the transfer
occurred after Swink’s heirs initiated proceedings in probate court to
investigate William’s dealings with Swink and specifically to ques-
tion him about EJ & WM, Inc., to which her property had been
deeded for no consideration. Brief of Appellee at 24. The transfer also
occurred after authorities arrested William’s co-conspirator Kenyon.
At the forfeiture hearing, Leland testified that he paid property taxes
on Lots 16, 17, and 18 and the 54-acre tract for the year 2000.
The district court concluded that "EJ and WM, Inc. was a dummy
corporation and the alter ego of William M. Bryson, Jr." The court
found that in 1993, when William’s illegal activities began, "Leland
Bryson did not have legal title" to Lots 17 or 18, nor was he "a bona-
fide purchaser after 1993." The court further found that, although
Leland had legal title to Lot 16 and the 54-acre tract in 1993, he "did
not exercise dominion and control over the property and was, in
essence, a ‘nominee’ of William M. Bryson." The court explained that
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"[t]here was overwhelming testimony before the grand jury as well as
during the trial and the forfeiture hearing that Leland M. Bryson was
a pawn in his father’s activities" and that whether Leland "was aware
of his position" was irrelevant. Accordingly, the court found Leland
had "failed to establish by a preponderance of the evidence that the
court’s final order of forfeiture should be amended."
B.
To obtain an interest in forfeited property, a third party petitioner
must prove by the preponderance of the evidence that:
(A) the petitioner has a legal right, title, or interest in the
property, and such right, title, or interest renders the order
of forfeiture invalid in whole or in part because the right,
title, or interest was vested in the petitioner rather than the
defendant or was superior to any right, title, or interest of
the defendant at the time of the commission of the acts
which gave rise to the forfeiture of the property under this
section; or
(B) the petitioner is a bona fide purchaser for value of the
right, title, or interest in the property and was at the time of
purchase reasonably without cause to believe that the prop-
erty was subject to forfeiture under this section.
21 U.S.C. § 853(n)(6).
Leland concedes that his father "used his relationship with Leland
Bryson to help him disguise illegal activities. For example, Bill Bry-
son placed property in Leland Bryson’s name, had Leland Bryson
open bank accounts to hide or launder Swink money, and set up cor-
porations with Leland Bryson as the sole shareholder and an officer."
Brief of Appellant at 8. Nevertheless, Leland steadfastly maintains
that the district court clearly erred in rejecting his claims to the for-
feited property.
In making this contention, Leland does not argue that he was the
bona fide purchaser of Lots 16, 17, or 18. Thus he must demonstrate
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that he had "a legal interest" in the lots "at the time [they were] for-
feited." United States v. Schecter, 251 F.3d 490, 494 (4th Cir. 2001)
(internal quotation marks and citation omitted). "Under § 853(c) the
interest of the United States in forfeitable property ‘vests’ ‘upon the
commission of the act giving rise to the forfeiture.’" United States v.
Reckmeyer, 836 F.2d 200, 203 (4th Cir. 1987). This "relation-back"
provision enables "the government to reach forfeitable assets in the
hands of third parties at the time of conviction"; it thus prevents "de-
fendants from escaping the impact of forfeiture by transferring assets
to third parties." Id. Because "[a] forfeiture is effective at the time of
the commission of the act giving rise to the forfeiture," Schecter, 251
F.3d at 494, Leland must prove that he had a legal interest in the prop-
erties in 1993 when his father began to swindle Ethel Swink.
To prevent "manipulation of ownership" by criminals, we must
"look beyond bare legal title" and whether Leland had a "property
interest under state law" in determining whether he had a legal inter-
est in the property. United States v. Morgan, 224 F.3d 339, 343 (4th
Cir. 2000). We must ask "whether [Leland] is a nominee — [that is,
"existing in name only, not in reality"] — when reviewing the sub-
stance of his § 853(n) claim. Id. at 343 & n.4 (internal quotation
marks and citation omitted). To do so, we employ a dominion and
control test. Id. at 343.
The district court did not commit clear error in concluding that as
of the crucial date — 1993 — Leland did not have legal title, let alone
a § 853 "legal interest," in Lots 17 and 18. His father purchased both
lots and titled them in Leland’s mother’s and cousin’s names respec-
tively. Leland alleges that both lots were intended for him and were
only deeded to his mother and cousin for purposes of obtaining multi-
ple dock licenses. Even assuming this is so, Leland’s father exercised
dominion and control over the properties, having bought them,
directed those holding title to transfer title to EJ & WM, Inc., and
ordered their subsequent transfer (in 1999) to Leland.
Leland did have legal title to Lot 16 and the 54-acre tract in the
early 1990s. However, the district court, found that he was merely a
nominal owner. If that is so, he cannot prevail on his § 853 claim.
Morgan, 224 F.3d at 343. The record reveals that William bought Lot
16 and put it in Leland’s name; William gave his son the promissory
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note evidencing a debt owed William, enabling Leland to "settle" the
debt for the 54-acre tract. William instructed Leland to transfer both
properties to EJ & WM, Inc., William’s alter ego, and ordered his son
to sign the properties into Leland’s name at the time William was
under investigation. Leland did not begin paying taxes on either prop-
erty until 2000 — well after his father’s fraud commenced. Given this
evidence, the district court did not clearly err in finding that Leland
acted as his father’s nominee and held only nominal title to Lot 16
and the 54-acre tract.
Finally, Leland contends that he was the bona fide purchaser of one
property, the 54-acre tract. Even assuming that Leland did not waive
this issue by failing to raise it below, that contention also fails. We
recognize that "the term ‘bona fide purchaser for value’ must be con-
strued liberally to include all persons who give value to the defendant
in an arms’-length transaction with the expectation that they would
receive equivalent value in return." Reckmeyer, 836 F.2d at 208. Nev-
ertheless, the district court did not clearly err in holding that Leland
was not a bona fide purchaser of the 54-acre tract. Leland obtained
the tract by enforcing a promissory note that his father gave him.
Thus, Leland paid no "value" for the 54-acre tract.
Leland asserts that he expended value to obtain the tract by exert-
ing "time, effort, and knowledge" to sue Kenyon. Brief of Appellant
at 18. But, Leland has not provided any evidence as to this "time,
effort, and knowledge." Furthermore, as the district court found,
"[t]here is no evidence in the record indicating the note represents a
legitimate debt between Karl Kenyon and William M. Bryson, Jr."
Rather, the record indicates that Leland’s suit against Kenyon was not
truly adversarial but just a sham to collect on a sham debt between
the two co-conspirators, William and Kenyon.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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