     Case: 11-20632   Document: 00511950355      Page: 1   Date Filed: 08/08/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                   August 8, 2012

                                  No. 11-20632                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee
v.

DONALD R. BRANHAM,

                                            Defendant-Appellant
v.

CHARLOTTE D. BRANHAM,

                                            Intervenor-Appellant




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
        Defendant-Appellant Donald R. Branham and his wife, Intervenor-
Appellant Charlotte D. Branham, appeal the district court’s denial of their
motions to dissolve a writ of garnishment and to hold a hearing. We lack
appellate jurisdiction over this matter because a final judgment has not been
entered by the district court. Accordingly, we DISMISS this appeal, without
prejudice, for want of appellate jurisdiction.
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                                  No. 11-20632

                                        I.
                        FACTS AND PROCEEDINGS
      Donald Branham pleaded guilty to numerous counts of bank fraud and
was sentenced to 30 months in prison and ordered to pay $1.8 million in
restitution. The government applied for a writ of garnishment pursuant to 28
U.S.C. § 3205, seeking to garnish specified accounts held by Wells Fargo Bank
that belonged to the Branhams. The district court issued a writ of garnishment,
instructing Wells Fargo to withhold and retain the Branhams’ accounts. Wells
Fargo answered that it was in possession of about $8,581.00 in accounts
belonging to Donald or Charlotte, or jointly to both. The Branhams moved
separately to quash the allegedly defective service on Wells Fargo and to dissolve
the writ of garnishment on the ground that Charlotte’s accounts were not
community property. They also requested a hearing. The government countered
that the property of both Branhams was garnishable as community property
under applicable state law and that a purported community property partition
was fraudulent. The government also contended that any defects in service had
been cured. The district court denied the Branhams’ motions without a hearing
or any further elaboration in its order.
      The Branhams appeal the district court’s denial of their request for a
hearing and its denial of their motion to dissolve the writ of garnishment,
advancing the same arguments as to why they should be granted a hearing and
why the writ should be dissolved as they had in the district court.          The
government replies that this court lacks appellate jurisdiction because the
district court’s denial of the motions to dissolve the writ of garnishment was not
a final order disposing of the property under § 3205(c)(7). The Branhams have
not adequately briefed this issue on appeal, stating only conclusively that the
“appeal is from a final order or judgment that disposes of all parties’ claims,”
without further explication.

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                                       No. 11-20632

                                             II.
                                        ANALYSIS
      Under U.S.C. § 1291, courts of appeals have “jurisdiction of appeals from
all final decisions of the district courts of the United States.”1 “As a general rule,
an order is final only when it ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.”2
      The government’s appellate brief extensively explains the procedure for
garnishment under § 3205, contending that this court does not have appellate
jurisdiction at this time. The Branhams, by contrast, have not briefed this issue
in their opening brief and did not file a reply, even though, as the appellants, it
is the Branhams’ obligation to demonstrate the basis of appellate jurisdiction.3
      The district court’s order denying the Branhams’ requested relief is simply
not a final, appealable order. Under § 3205(c)(7), it is only after a writ of
garnishment has been issued, the garnishee has answered, and the court has
held a hearing (if one was requested and granted), that the court may enter a
final “order directing the garnishee as to the disposition of the judgment debtor’s
nonexempt interest in such property.” Here, the district court has not yet
entered a final order directing the disposition of the property. That court has
only reached the point of denying the Branhams’ requests for a hearing and their
motions to dissolve the writ altogether. A step remains to be taken before this
matter becomes final and appealable.
      Although we have not previously addressed this precise issue directly, our
prior cases dealing with appeals from writs of garnishment have typically noted




      1
          28 U.S.C. § 1291; see also Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir. 1985).
      2
          Thompson, 754 F.2d at 1245 (internal quotation marks and citation omitted).
      3
          United States v. Stone, 291 F. App’x. 684, 685 (5th Cir. 2008) (unpublished).

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                                        No. 11-20632
that the district court had entered a final order of garnishment.4 We have also
noted previously in passing that appealing a writ of garnishment before a final
order has been entered is premature.5 Moreover, we see the facts of this case as
being essentially identical to those in United States v. Stone,6 in which we held
that an appeal from an order that quashed some writs of garnishment but left
others in place was not final and appealable. As in this case, the appellant in
Stone did not meet his obligation to demonstrate jurisdiction by adequately
briefing the issue. We also observed in Stone that the order sought to be
appealed did not constitute a final disposition with respect to the writ of
garnishment and therefore dismissed the appeal. Although the facts of Stone are
somewhat different, in that it involved an appeal from an order quashing some
writs but allowing others to remain in place, we do not view this difference as
constituting a distinction.7 Here, as in Stone, less than all of the issues in a
§ 3205 garnishment action have been resolved, so the order sought to be
appealed is not a final order, absent which there is no appellate jurisdiction
under § 1291.
                                              III.
                                      CONCLUSION
       For the foregoing reasons, we hold that the order appealed from is not a
final order. This appeal is therefore DISMISSED without prejudice for want of
appellate jurisdiction.


       4
          United States v. Ekong, 518 F.3d 285, 286 (5th Cir. 2007) (noting that district court
“denied [Appellant’s] objections and entered a final order of garnishment”); United States v.
Goyette, 446 F. App’x. 718, 719-20 (5th Cir. Oct. 24, 2011) (unpublished) (observing that the
district court had entered a “final order of garnishment.”).
       5
           United States v. Petal, 444 F. App’x 737, 738 n.3 (5th Cir. 2011) (unpublished).
       6
           291 F. App’x. 684 (5th Cir. 2008) (unpublished).
       7
           Id. at 685.

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