United States of America, Plaintiff-appellee, v. Earl Wayne Odom, Defendant-appellant, 838 F.2d 468 (4th Cir. 1988)

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U.S. Court of Appeals for the Fourth Circuit - 838 F.2d 468 (4th Cir. 1988) Submitted: June 12, 1987. Decided: Jan. 19, 1988

Earl Wayne Odom, pro se.

John Douglas McCullough, Assistant United States Attorney, for appellee.

Before DONALD RUSSELL and K.K. HALL, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Earl Wayne Odom appeals an order of the clerk of the district court for the Eastern District of North Carolina which designated certain property of his as non-exempt from collection to satisfy a judgment entered against him.

Odom was fined $100,000.00 after his conviction for conspiracy to distribute narcotics and use of a communication facility in furtherance of a felony. Following his appeal, Odom claimed certain property to be exempt from use for satisfaction of the debt. However, the clerk of the district court entered an order denying some of the exemptions claimed, allowing the government leave to proceed against the property and allowing a writ of execution to issue. Odom appealed the order. Although his appeal was forwarded to this Court, his notice of appeal appears to be an appeal to the district court, the court which properly should review the clerk's order.

Rule 69(a) of the Federal Rules of Civil Procedure provides that post-judgment procedures in aid of execution shall be in accordance with the practice and procedure of the state where the district court is, except that any applicable federal statute will govern. The relevant North Carolina statute calls for an appeal to a district court judge from a clerk's order designating exempt property. N.C.Gen.Stat. Sec. 1C-1603(e) (12). Rule 77(c), Federal Rules of Civil procedure, which regulates district courts, similarly provides that an order of the clerk may be suspended, altered or rescinded by the district court upon cause shown.

Because Odom's remedy here is through a motion to the district court, we dismiss the appeal and remand the action to the district court. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.