In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐2258
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOSHUA N. BOWSER, et al.,
Defendants.
APPEAL OF: BRADLEY W. CARLSON
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12‐cr‐00102‐TWP‐DML — Tanya Walton Pratt, Judge.
ARGUED JANUARY 19, 2016 — DECIDED AUGUST 23, 2016
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. This appeal involves the govern‐
ment’s efforts to seize personal property bearing the insignia
of the Outlaws Motorcycle Club (the “Outlaws”), and the effort
of a representative of the Outlaws to intervene to prevent those
forfeitures. The forfeiture actions stemmed from criminal cases
brought against a number of Outlaws members, including all
members of the Indianapolis chapter of the Outlaws. As we
summarized in United States v. Knoll, 785 F.3d 1151, 1152–53
(7th Cir. 2015), “[t]his case began with a forty‐nine count
2 No. 15‐2258
indictment that charged fifty‐one individuals (all members of
the Outlaws) with racketeering, mail and wire fraud, money
laundering, drug trafficking, extortion, running an illegal
gambling business, witness tampering and firearms offenses,
among other things.” Included in that indictment, was a count
charging nineteen members of the Outlaws with violations of
the Racketeer Influenced and Corrupt Organizations statute
(RICO), based on allegations that the Outlaws was an enter‐
prise and its members participated in that enterprise through
the commission of various crimes. The indictment included a
notice of the government’s intent to forfeit any and all property
affording the RICO defendants with a source of influence over
the enterprise and all property obtained, directly or indirectly,
from racketeering activity.
On July 11, 2012, in connection with the arrests of the
Outlaws members, the FBI executed search warrants on the
Outlaws’ clubhouses in Indianapolis and Fort Wayne, Indiana,
the Outlaws’ bunkhouse in Indianapolis, and several individ‐
ual residences. Pursuant to those searches, the FBI seized
numerous items bearing the insignia of the Outlaws, and the
FBI sought forfeiture of those items. That property included,
but was not limited to: vests, patches, shirts, hats, belt buckles,
signs, mirrors, flags, calendars, books, and pictures. The
Outlaws used the symbols on the clothing to conspicuously
display their presence and to deter other groups from infring‐
ing on their territory. The items included the symbol of the
Outlaws which was a skull and crossed pistons, and patches
with slogans such as “God Forgives, Outlaws Don’t” and
“Snitches Are a Dying Breed” which communicated a threat to
those who would seek to oppose the Outlaws.
No. 15‐2258 3
One defendant, Christian Miller, was found guilty after
trial, but the remaining eighteen defendants pled guilty—
sixteen defendants to all charges and two defendants to all but
the RICO counts to which they pled nolo contendere. As part
of the plea agreements, each agreed to forfeit the Outlaws
paraphernalia seized by the FBI. After the government sought
and obtained final orders of forfeiture from all but one defen‐
dant, and was in the process of finalizing forfeiture with the
remaining Outlaws defendant, the court received a letter from
Bradley W. Carlson which it interpreted as a motion to
intervene in the criminal forfeiture actions. Pursuant to
18 U.S.C. § 1963(l)(2), “[a]ny person, other than the defendant,
asserting a legal interest in property which has been ordered
forfeited to the United States … may … petition the court for
a hearing to adjudicate the validity of his alleged interest in the
property.” In order to pursue such relief, a petitioner’s right to
the property must have vested in petitioner rather than the
defendant or be superior to any right, title or interest of the
defendant at the time of the commission of the criminal acts, or
the petitioner must be a bona fide purchaser of the property.
18 U.S.C. § 1963(l)(6). The government sought to dismiss the
motion as untimely in that final forfeiture orders had already
issued, but Carlson responded by filing a motion to reopen the
final orders and also challenging orders seeking forfeiture of
indicia and memorabilia of the Outlaws.
In seeking to reopen the forfeiture actions under Federal
Rule of Civil Procedure 60(b), Carlson contended that he had
a property interest in all of the Outlaws paraphernalia and that
the government had failed to provide him with direct notice of
the forfeiture actions. Therefore, the issue before the district
4 No. 15‐2258
court was whether Carlson was due direct notice of the
forfeiture actions filed in this case. The notice requirements for
such forfeitures is set forth in 18 U.S.C. § 1963(l)(1), which
provides that
[f]ollowing the entry of an order of forfeiture
under this section, the United States shall
publish notice of the order and of its intent to
dispose of the property in such manner as the
Attorney General may direct. The Govern‐
ment may also, to the extent practicable,
provide direct written notice to any person
known to have alleged an interest in the
property that is the subject of the order of
forfeiture as a substitute for published notice
as to those persons so notified.
In addition, Federal Rule of Criminal Procedure 32.2(b)(6)(A)
requires the government to “publish notice of the order and
send notice to any person who reasonably appears to be a
potential claimant with standing to contest the forfeiture in the
ancillary proceeding.” The government provided notice of all
of the forfeitures to each of the defendants, and also posted
notice of each forfeiture on the official government forfeiture
site at www.forfeiture.gov for 30 consecutive days.
Carlson asserts that he was entitled to direct written notice
of the order because he claims that he has been elected by the
collective membership of the Outlaws to protect, manage,
direct, oversee, and control all indicia and memorabilia of the
Outlaws in the United States. Carlson maintains that all
patches and registered collective marks of the Outlaws are
No. 15‐2258 5
owned solely by the collective membership of the Outlaws, not
by any individual members. As support for his position,
Carlson points out that Outlaws members believe that the
property bearing the markings of the Outlaws are the property
of the Outlaws as a whole, and that Outlaws members must
return their “colors” (paraphernalia with Outlaws markings)
if they cease to become active members. The government
concedes that Outlaws members share that belief. Carlson
claims that by virtue of his elected position he has been vested
by the membership of the Outlaws with a “superior possessory
interest in all items of [Outlaws] indicia.”
The district court denied that motion, as well as Carlson’s
subsequent motion to alter or amend the judgment pursuant
to Rule 59(e). The district court determined that Carlson had
failed to demonstrate that the government was aware of
Carlson or his alleged interest in the property, and that in any
event Carlson had failed to demonstrate a property interest in
the Outlaws paraphernalia. We review the district court’s
Rule 60(b) determination for abuse of discretion. Anderson v.
Catholic Bishop of Chicago, 759 F.3d 645, 652 (7th Cir. 2014);
United States v. 8136 S. Dobson St., Chicago, Ill., 125 F.3d 1076,
1082 (7th Cir. 1997).
On appeal, Carlson presents two issues for our resolution:
whether Carlson possessed an interest in the property suffi‐
cient to entitle him to notice of the forfeiture proceedings, and
whether the notice provided by the government was adequate
as both a statutory and constitutional matter. Because Carlson
fails to adequately allege that he had a lawful property interest
at stake of which the government reasonably would have been
aware, we need not consider his second contention that the
6 No. 15‐2258
notice supplied to all members of the Indianapolis Outlaws
chapter, including its president, was inadequate to inform the
Outlaws’ collective membership. 1
As Carlson concedes, a lawful property interest for pur‐
poses of the forfeiture notice provision is created and defined
by state law. Knoll, 785 F.3d at 1156; United States v. 5 S 351
Tuthill Rd., Naperville, Ill., 233 F.3d 1017, 1021 (7th Cir. 2000),
amended on denial of rehʹg (Mar. 21, 2001). Therefore, we must
look to Indiana law to determine whether Carlson has alleged
a property interest recognized in that state. Only a person
possessing a legal interest, rather than an equitable interest, in
property will have standing to challenge its forfeiture. Knoll,
785 F.3d at 1156; United States v. Timley, 507 F.3d 1125, 1129 (8th
Cir. 2007). Carlson alleges only that the property subject to
forfeiture was not owned by individuals, but was owned by
the “collective membership” of the Outlaws and he was an
agent of that collective membership for the purposes of
maintaining and controlling the property and therefore had a
1
Although both parties rely on trial testimony in arguing as to ownership,
Carlson asserts that the government should not be able to point to
testimony in the criminal case that Carlson never had an opportunity to
contest. Setting aside the contradiction in relying on such testimony when
useful and disavowing its relevance when not, the argument is problematic
on a more fundamental basis. The issue here is whether the government
should have know that Carlson had an ownership interest in the property
such as to entitle him to direct notice. The government’s knowledge of the
Outlaws gleaned in the trial testimony is relevant to that determination
regardless of whether that information could have been contested by
Carlson.
No. 15‐2258 7
lawful, possessory interest over the forfeited items by virtue of
that agency relationship.
Under Indiana law, ownership of personal property is
determined by reference to the indicia such as title, possession,
and control. Harden v. Monroe Guaranty Ins. Co., 626 N.E.2d 814,
820 (Ind. App. Ct. 1993); Womack v. State, 738 N.E.2d 320, 324
(Ind. Ct. App. 2000); National Serv‐All Inc. v. Indiana Dept. of
State Revenue, 644 N.E.2d 954, 957 (Ind. Tax Ct. 1994); Meridian
Mortgage Co. v. State, 182 Ind. App. 328, 339, 395 N.E.2d 433,
439 (1979); Rhoades v. State, 70 N.E.2d 27, 29 (Ind. S. Ct. 1946).
Carlson has not alleged any of these indicia, and in fact does
not cite to any Indiana cases in asserting the property interest.
Although he has alleged an understanding that property
cannot be transferred to non‐members, he does not identify
what type of interest, if any, in that property was retained by
the Outlaws—whether an option to purchase back, a right of
first refusal, a termination of a bailment or lease, etc.—and
whether that interest is a legal interest that grants standing or
an equitable or other interest that does not. He fails in fact to
cite to Indiana law at all to establish the legal interest in the
property despite recognizing that property interests are
defined by state law. Moreover, among the forfeitures chal‐
lenged by Carlson are those of three persons who were former
members of the Outlaws, yet still in possession of such
paraphernalia, and at least one person who was never an
Outlaws member, thus contradicting the claim that the
collective membership exercised that control over distribution.
In his initial brief to this court, Carlson appeared to assert
a bailment relationship, wherein the property would be
possessed by the Outlaws members only as bailees with the
8 No. 15‐2258
Outlaws organization presumably the bailor, but he affirma‐
tively denied any such argument in his reply brief and on
appeal. Bailment, at least, is a recognized property interest,
although appropriately abandoned given the absence of
evidence that this was in fact a bailment relationship. He relies
instead only on an argument that his legal interest is as an
agent of the Outlaws and that his agency interests are a legally
recognized interest. But an agent can possess only the interest
of his principal, and Carlson has not alleged what legally
protected interest the principal—the Outlaws—has in the
property. Carlson did not assert, for instance, that the Outlaws
have a property interest because the Outlaws purchased or
manufactured the paraphernalia and retained a recognized
legal interest in it, nor does he allege that the Outlaws pos‐
sessed it and distributed it in such a manner that the Outlaws
retained a legal as opposed to equitable interest in the prop‐
erty. In fact, at oral argument counsel for Carlson did not know
whether the Outlaws organization had purchased the items,
and did not know where the items were purchased or where
manufactured. He asserted that “ownership is ownership”
regardless of whether one has a receipt for the items or
whether the items are found on the street. But of course, the
origin of the items—such as whether they are borrowed, stolen,
purchased, leased, or not possessed at all—is in fact relevant to
whether the Outlaws have a legal interest recognized under
state law. Carlson maintained that all parties agreed as to
ownership, but the existence of a legally enforceable property
interest is a matter of state law not a matter to be decided by
the parties. Persons joining the Outlaws may well understand
that the Outlaws colors must only be worn by Outlaws
No. 15‐2258 9
members in good standing, and that the members will take
away a person’s colors if they leave the Outlaws either volun‐
tarily or otherwise. That type of expectation may be found in
other contexts such as in street gangs, in which gang members
may enforce their gang rules and prohibit non‐members from
displaying the symbols of the gang; that does not vest those
gang members with a legally protected interest in those
symbols or vestments.2 In fact, Outlaws also purport to require
members to color over tattoos containing Outlaws symbols if
they leave the Outlaws, but that does not suggest ownership of
the tattoos. The attempt to control member behavior and the
use of symbols is prevalent in many organizations—criminal
or otherwise—but does not in itself establish a lawful property
interest.
In short, it is not enough to merely assert that the Outlaws
members understand that Outlaws insignia can only be
possessed and exhibited by Outlaws members, or even to
assert their “agreement” that the items are owned by the
collective membership not the individuals. “Courts generally
do not determine legal interests in property for forfeiture
purposes by evaluating the history and traditions of the
Outlaws” and the equitable interests created by that history
and tradition “are insufficient to establish property rights.”
Knoll, 785 F.3d at 1156. State law defines property interests, not
2
Although Carlson states that the collective marks of the Outlaws are
registered with the United States Patent and Trademark Office, Carlson
makes no argument relating to trademark protection in his brief and
therefore we do not address that in this opinion.
10 No. 15‐2258
the agreements by individuals as to who will be deemed an
owner.
In United States v. Funds in the Amount of $239,400, 795 F.3d
639, 642‐43 (7th Cir. 2015), we recognized that “an assertion of
ownership combined with some evidence of ownership is
sufficient to establish standing at the summary judgment stage
of a civil forfeiture action.” Here, Carlson asks us to hold that
in a criminal forfeiture, an assertion of ownership, without
more, is sufficient to alert the government that he has a
property interest in the items as against those who were in
possession of the items and conceded their forfeiture. It is not.
Such an approach is inconsistent with the law, and under‐
standably so, as it would be rife for abuse. Persons engaged in
a criminal enterprise could simply agree among themselves
that all personal and real property in their possession is
actually owned by their law‐abiding grandmother down the
block, and the grandmother could contest the forfeiture of such
property without any other allegation of a legal interest in the
property.
The district court in United States v. Rosga, 864 F. Supp. 2d
439 (E.D. Va. 2012), recognized such a danger in a case present‐
ing the same issues here—an effort to intervene in forfeiture
actions based on ownership by the collective membership of
the Outlaws. As in this case, the Rosga court was presented
with forfeiture of Outlaws paraphernalia following RICO
convictions of sixteen Outlaws members, and the government
provided notice to those defendants as well as the public notice
on its website. Four Outlaws members not named as defen‐
dants in the criminal case then contested the forfeiture, seeking
the return of all indicia and other property associated with the
No. 15‐2258 11
Outlaws based on the argument that none of the individual
defendants owned the Outlaws items. The court held that, in
order to adequately allege standing to contest a forfeiture, the
claimants must establish “at least ‘a facially colorable owner‐
ship interest’ in the property in question.” Id. at 448. The Rosga
court noted that dismissal of the petition on such standing
grounds would be proper only if the facts taken as true in the
light most favorable to petitioners, “do not plausibly demon‐
strate a cognizable legal interest in the forfeited assets.” Id at
449. Faced with the same “collective membership” argument
raised here, the court held that the petitioners—who never
claimed to have been in possession of the property and
asserted only unsupported legal conclusions of collective
ownership—failed to demonstrate a cognizable interest in the
items. The court noted that criminal forfeiture statutes should
be construed to deny relief to parties engaged in manipulating
ownership. The court deemed “well‐founded” the govern‐
ment’s argument that the collective ownership mechanism
asserted by the Outlaws was “designed solely ‘to insulate from
forfeiture property used by convicted members of the organiza‐
tion.’” Id. at 450.
The allegations relied upon by Carlson are similar. Carlson
relies solely on the understanding of the members set forth in
the membership affidavit that each member signs, and at‐
tached his American Outlaws Association (AOA) Membership
Affidavit to the Rule 60(b) motion. That affidavit contains only
a few sentences, all of which reflect a focus on evading law
enforcement. First, the affidavit defines ownership of property,
declaring that “every member of the AOA is informed and
agrees, that a member can only surrender, transfer or forfeit
12 No. 15‐2258
indicia of the AOA to another member in good standing,
therefore all property bearing the markings of the AOA is the
property of the AOA as a whole, not the individual.” In the
sentence following that declaration, the affidavit discusses
possible forfeiture, and the member agrees that if the property
is seized by law enforcement he will pursue it by all legal
resources that are available. Finally, the final sentence in that
same affidavit provides “I also know and agree that by
becoming a member of the AOA it is not, nor has ever been a
criminal enterprise.” That statement mirrors the statement
concerning the property interest in that it reflects a legal
conclusion, with no factual basis whatsoever, which appears to
be designed to subvert law enforcement efforts. The statement
that it was not a criminal enterprise is belied by the RICO
charges and convictions as to all members of the Indianapolis
chapter in the underlying criminal action here, and the
statement concerning the ownership interest fares no better.
The affidavit statements do not provide any basis for the court
to identify what legal interest the Outlaws have in the prop‐
erty, and certainly would not put the government on notice
that the “collective membership” possessed a legal ownership
interest in the property. As the Indiana Court of Appeals
recognized, “[o]wnership can not be conferred by a wave of a
magic semantic wand. We will look past the terms of the
agreement to the actual transaction involved.” Meridian
Mortgage, 395 N.E.2d at 440. Carlson has failed to identify the
origin of the items or allege the Outlaws relationship at its
inception, and the district court properly held that Carlson was
not entitled to individualized notice.
The decision of the district court is AFFIRMED.