* 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should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11094

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

BERNARD J DOLENZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:05-CV-2053

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Bernard J. Dolenz was convicted in 1998 of 12 counts

of mail fraud and was ordered to pay $1,680,501.47 in restitution under the

Mandatory Victims Restitution Act (MVRA). See United States v. Dolenz, 2000

WL 1239090 (5th Cir. Aug. 4, 2000) (unpublished) (affirming convictions). As

the restitution order remained unpaid, the government obtained a writ of

attachment of Dolenz’s personal property located at 6102 Swiss Avenue, Dallas,
No. 06-11094

2

Texas, pursuant to the Fair Debt Collection Practices Act (FDCPA). Dolenz had

advised his probation officer that the property had been sold to Anis Rahman,

so the government filed a motion to determine ownership of the property. After

the writ of attachment was executed, Dolenz filed a motion for emergency stay.

The district court convened a hearing. The motion was granted in part and

denied in part. Dolenz then filed a motion for return of property seized wrongly.

Dolenz’s request for a jury trial was denied. At the ensuing bench trial, Dolenz

contended that the property belonged to the Bernard J. Dolenz Trust (Dolenz

Trust). 

The district court found that Dolenz was the owner of all of the attached

property not previously ordered returned. The district court determined that

Dolenz’s transfer ofthe property to Rahman was fraudulent and thatthe Dolenz

Trust did not preventthe attachment or execution of Dolenz’s personal property.

The district court denied Dolenz’s motion for return of property seized

wrongfully. Dolenz timely filed a notice of appeal from the district court’s order,

and his motion for leave to proceed in forma pauperis (IFP) on appeal was

denied. 

Dolenz now has applied to us for leave to proceed IFP on appeal. We

construe Dolenz’s IFP motion to us as a challenge of the district court’s

certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 

Dolenz contends thatthe statute of limitations has run, invoking 28 U.S.C.

§§ 2462, 3304, and 3306. He improperly attempts to incorporate by reference the

arguments in the amicus brief filed in the district court by the trust benficiary,

who is not a party to this proceeding. See Yohey v. Collins, 985 F.2d 222, 224–25

(5th Cir. 1993). 

By its terms, § 2462 applies only to the enforcement of a civil fine, penalty,

or forfeiture. See § 2462; see also 18 U.S.C. § 3613(b) & (f). The government’s

action seeking to set aside a fraudulent bill of sale between Dolenz and Rahman

was brought under § 3304(b)(1)(A), which specifies: 
No. 06-11094

3

A claim for relief with respect to a fraudulent transfer or obligation

under this subchapter is extinguished unless action is brought—

(1) under section 3304(b)(1)(A) within 6 years after the

transfer was made or the obligation was incurred or, if later,

within 2 years after the transfer or obligation was or could

reasonably have been discovered by the claimant.

§ 3306(b)(1). The government learned of the bill of sale when it was disclosed by

Dolenz to the Probation Officer on October 12, 2005, five days before the

government filed the writ of execution. There is no nonfrivolous issue with

respect to whether the action was barred by a statute of limitations. 

Dolenz contends that the district court erred in determining that he was

the owner of the seized property. Although Dolenz mentions the sale of the

property to Rahman in his factual recitation, he does not contend in his legal

argument that the district court erred in determining that the sale was a

fraudulent conveyance under § 3304(b)(1). We have determined previously that

Dolenz’s pro se pleadings are not entitled to liberal construction. See Dolenz,

2000 WL 1239090 at *1 n.2. 

Dolenz urges instead that the property belonged to the Dolenz Trust,

which he created prior to the date of the restitution order. He insists also that,

on April 14, 2005, in his capacity as trustee, he conveyed the Swiss Avenue

residence to “the [Universal Life Church] of Texas, d/b/a Community of His

Divine Mercy.” He complains that his residence was damaged by the

government and that he “has not owned much more than his clothes, some

books, [and] medications since 1985, and has subsisted on reasonable

necessaries provided by the church for his efforts.”

The district court noted that “[t]he language of the trust instrument

describes Dolenz’s real property at 6102 Swiss Avenue and states that Dolenz

‘will hold said real property and of [his] right, title and interest in and to said

property and furniture, fixtures, and personal property situated therein on the

date of [his] death, IN TRUST.” The district court determined that this
No. 06-11094

4

language “clearly considers primarily the real property of Dolenz and

incidentally his personal property located there upon his death, not his current

personal property.” The district court noted that the trust instrument did not

prohibit Dolenz from disposing of his personal property. The district court found

that, after the formation of the trust, Dolenz had acted as if he were the owner

of the attached property. Rahman did not appeal the district court’s order and

the church did not intervene in that court. Dolenz’s conclusional argument does

not demonstrate that there is a nonfrivolous issue with respect to these findings

and conclusions. 

Dolenz further contends that the district court erred in denying his

request for a jury trial. In rejecting Dolenz’s motion for a jury trial, the district

court noted that the writ of attachment was a post-judgment remedy under the

FDCPA. Citing United States v. Rostoff, 164 F.3d 63, 70–71 (1st Cir. 1999), the

district court reasoned that “[t]he portion of the FDCPA concerning attachment

does not provide for a jury trial, nor does this procedure to facilitate penal

restitution implicate Seventh Amendment jury rights.” Dolenz attempts to

distinguish Rostoff and argues thatthe FDCPA does not expressly exclude a jury

trial, and asserts that he has a right to a jury trial under the Texas constitution.

Dolenz has not shown that he will present a nonfrivolous issue with respect to

the district court’s denial of his request for a jury trial. 

As Dolenz has not shown that the district court erred in its certification

decision, see Baugh, 117 F.3d at 202, IFP is DENIED, and his appeal is

DISMISSED AS FRIVOLOUS. See id. at 202 n.24; 5TH CIR. R. 42.2.