United States v. Capps — Appellate Review Barred When a Nonparty Fails to Timely Intervene and Appellants Fail to Preserve (or Plainly-Error Brief) Priority Arguments in Restitution Garnishment

Court: U.S. Court of Appeals for the Tenth Circuit
Date: February 19, 2026
Disposition: Affirmed (Order and Judgment; nonbinding except under law of the case, res judicata, and collateral estoppel)

1. Introduction

This appeal arose from the federal government’s efforts to collect criminal restitution from defendant Michael R. Capps through civil garnishment of escrowed real-estate sale proceeds. The movants-appellants—Charles Capps (Michael’s son) and Duaglo, LLC—claimed entitlement to the escrowed surplus proceeds based on (i) Charles Capps’s asserted mechanic’s lien and (ii) Duaglo’s claimed priority interests tied to financing redemption of foreclosed property.

The central issues on appeal were not the substantive priority disputes themselves, but whether the claimants could obtain appellate review at all given (a) Duaglo’s failure to become a party (intervention denied as untimely) and (b) the claimants’ failure to preserve their substantive arguments in the district court and to brief plain-error review in the court of appeals.

2. Summary of the Opinion

The Tenth Circuit affirmed the district court’s rulings because:

• Duaglo was not a proper party on appeal: it never became a party below because its motion to intervene was denied as “extremely untimely,” and appellants did not challenge that denial in their opening brief (waiver).
• Appellants forfeited/waived their substantive arguments: the principal “purchase money security” theory was raised too late in the district court; other theories (including 28 U.S.C. § 2410(d)) were not adequately presented to obtain a ruling; and appellants failed to request or brief plain-error review on appeal.
• Standing limits “attack-the-government-only” arguments: once intervention and preservation failed, no properly positioned claimant remained who could litigate entitlement to the funds merely by arguing the government had not proved its case.

3. Analysis

3.1 Precedents Cited

A. Who may appeal: nonparties and intervention

• Marino v. Ortiz, 484 U.S. 301, 304 (1988)
  The panel relied on the baseline rule that “only parties to the lawsuit may appeal.” This framed intervention as a gatekeeping prerequisite: if Duaglo was not a party, its merits arguments could not be heard.
• Abeyta v. City of Albuquerque, 664 F.3d 792, 797 (10th Cir. 2011)
  Cited for the jurisdictional implication: if intervention is properly denied, the would-be intervenor is not a party and the appellate court lacks jurisdiction to consider that entity’s claims.

B. Timeliness of intervention and standard of review

• Utah Ass'n of Cntys. v. Clinton, 255 F.3d 1246, 1249–50 (10th Cir. 2001)
  Supplied both the abuse-of-discretion standard for timeliness determinations and the multi-factor timeliness test.
• Sanguine, Ltd. v. U.S. Dep't of Interior, 736 F.2d 1416, 1418 (10th Cir. 1984)
  Quoted (via Utah Ass'n of Cntys.) for the circumstances-based timeliness factors: length of delay, prejudice to existing parties, prejudice to applicant, and unusual circumstances.

C. Waiver and appellate briefing obligations

• Burke v. Regalado, 935 F.3d 960, 1014 (10th Cir. 2019)
  Used to enforce the rule that arguments not raised in the opening brief are waived—here, the failure to challenge denial of intervention (and timeliness-related rulings) in the opening brief.

D. Late-raised arguments, preservation, and district court discretion

• Alpenglow Botanicals, LLC v. United States, 894 F.3d 1187, 1206 (10th Cir. 2018)
  Cited for abuse-of-discretion review of a district court’s refusal to consider an untimely argument.
• Featsent v. City of Youngstown, 70 F.3d 900, 906 (6th Cir. 1995)
  Reinforced that appellate courts review such refusals deferentially, supporting the Tenth Circuit’s conclusion that the district court acted within its discretion.
• GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1206 (10th Cir. 2022)
  Provided a concrete preservation standard: a litigant must clearly alert the district court and seek a ruling; “fleeting” or vague references do not preserve an issue for appeal.

E. Motions to alter or amend: limits on new arguments

• Nelson v. City of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019)
  The panel applied the principle that Rule 59-type motions are not for raising arguments that could have been made earlier.
• Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)
  Quoted via Nelson to emphasize that post-judgment motions cannot be used to “advance arguments that could have been raised in prior briefing.”

F. Plain error on appeal: requirement to argue it

• In re Syngenta AG MIR 162 Corn Litig., 61 F.4th 1126, 1180 (10th Cir. 2023)
  Cited as the general gateway for plain-error review of forfeited issues.
• United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019)
  Provided the decisive enforcement mechanism: if an appellant both (i) fails to preserve and (ii) fails to argue plain error on appeal, the issue is treated as waived and not reviewed.

G. Standing: the need for a personal stake

• Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 & n.1 (1992)
  Used to reject the notion that appellants could proceed by attacking the government’s proof while lacking a procedurally viable personal claim; standing requires a personal interest in the funds.

3.2 Legal Reasoning

A. Intervention as a jurisdictional gateway for a nonparty’s merits claims

The opinion treats intervention as the threshold question because Duaglo’s entitlement arguments depended on it being a party. Under Marino v. Ortiz, nonparties generally cannot appeal. And under Abeyta v. City of Albuquerque, affirming denial of intervention ends the matter—appellate jurisdiction over the nonparty’s claims evaporates.

Critically, the panel applied waiver principles: because appellants did not challenge the denial of intervention in their opening brief (citing Burke v. Regalado), the court deemed the issue waived. Even so, it affirmed on the alternative ground that the district court did not abuse its discretion in finding the motion untimely.

B. Timeliness: delay plus procedural posture

Applying the Utah Ass'n of Cntys./Sanguine, Ltd. factors, the court emphasized:

• Duaglo “knew of its interest” for months;
• it waited over seven months after notice and filed only after a hearing and supplemental briefing; and
• its motion did not even specify the basis for intervention (permissive vs. as of right) or address Rule 24 requirements.

The procedural posture—seeking entry after substantive litigation steps had already occurred—supported the district court’s “extremely untimely” assessment.

C. Preservation discipline: new theories cannot be introduced after the case has crystallized

The panel’s second, independent basis for affirmance is issue preservation:

• The “purchase money security” priority theory was raised for the first time in supplemental briefing after the hearing, and the district court declined to consider it as untimely; the Tenth Circuit found no abuse of discretion (citing Alpenglow Botanicals, LLC v. United States and Featsent v. City of Youngstown).
• The 28 U.S.C. § 2410(d) theory was at most mentioned in a “cursory” way; under GeoMetWatch Corp. v. Behunin, vague references that do not solicit a ruling do not preserve an issue.
• Attempting to reintroduce late arguments via a motion to alter or amend was improper under Nelson v. City of Albuquerque and Servants of the Paraclete v. Does.

D. Plain-error review is not automatic

Even if the arguments were merely forfeited, the panel refused to conduct plain-error review because appellants did not argue for it. Under United States v. Leffler, failure to preserve plus failure to brief plain error results in waiver and no review.

E. Standing prevents a free-floating challenge to the government’s entitlement

Finally, the panel addressed (and dismissed) the suggestion that even if appellants lacked a valid claim, the government still had to prove entitlement “against all adverse claims.” Invoking Lujan v. Defs. of Wildlife, the court underscored that without a procedurally viable personal stake, a claimant cannot litigate entitlement in the abstract.

3.3 Impact

• Restitution collection disputes will turn on procedure as much as priority: in garnishment or lien-priority fights arising from restitution enforcement, parties must secure proper party status early (timely intervention) and present priority theories in the first round of merits briefing.
• Supplemental briefing is not a “reset button”: litigants who pivot after a weak showing at a hearing risk having new theories rejected as untimely, especially when the opposing party lacks a fair chance to respond.
• Appellate strategy must include the standard of review: if an issue was not preserved, appellants must explicitly request and develop a plain-error argument or risk total waiver.
• Standing and party status cabin “windfall” arguments: the case signals skepticism toward attempts to argue the government cannot receive funds where no claimant remains with a procedurally cognizable entitlement.

4. Complex Concepts Simplified

• Intervention (Fed. R. Civ. P. 24): the mechanism for a nonparty to become a party to protect an interest. Whether “as of right” or “permissive,” the motion must be timely. If denied, the would-be intervenor generally cannot appeal merits issues as a nonparty.
• Timeliness: not a fixed number of days; courts evaluate the entire context (delay, prejudice, procedural stage, unusual circumstances).
• Waiver vs. forfeiture: forfeiture is failure to raise an issue in time; waiver is treated as an intentional relinquishment or, in appellate practice, often the consequence of not raising an issue in the opening brief or not invoking plain-error review.
• Plain error: a narrow appellate safety valve for unpreserved issues. It is not automatic; the appellant must ask for it and satisfy its demanding elements.
• Standing: the constitutional requirement that the litigant have a personal stake in the outcome. Without a valid claim to the funds (and proper party status), a litigant cannot demand that the court police the government’s entitlement in the abstract.
• Redemption and escrowed surplus: after a foreclosure sale, a statutory redemption period may allow the owner (or assignee) to reclaim the property by paying the required amount; when the property is later sold, any “surplus” can become the target of competing claims and garnishment.

5. Conclusion

United States v. Capps is a procedure-driven affirmance: the Tenth Circuit did not decide who had the better lien-priority theory because the claimants failed at the threshold. Duaglo could not press entitlement without timely intervention (and appellants waived any challenge to its denial), and the remaining theories were either raised too late, too vaguely to preserve, or presented on appeal without the required plain-error framework. The decision highlights a practical rule for restitution-collection litigation: party status, preservation, and standards-of-review briefing are often dispositive—substantive priority arguments may never be reached if these procedural prerequisites are neglected.