United States v. Mosavi

[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-6326
Non-Argument Calendar
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D. C. Docket No. CR 91-HM-15-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEYED ALI MOSAVI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(April 14, 1998)
Before BLACK and HULL, Circuit Judges, and FAY, Senior Circuit Judge.
PER CURIAM:
Seyed Ali Mosavi, the defendant below, appeals the denial by the district court of his Fed.
R. Civ. P. 60(b) Motion for Relief from Judgment, in which he sought to have set aside a criminal
forfeiture imposed as part of a criminal sentence entered on March 29, 1991. The defendant raises
two arguments on appeal: (1) that the forfeiture of property from his brother, Seyed Jomeeh Mosavi
(“Jomeeh”), violated the defendant’s Fifth Amendment right to due process because the property
forfeited in fact belonged to the defendant and not his brother, and (2) that no legitimate basis exists
for the government’s forfeiture of $25,936.23 from the defendant as part of his 1991 sentence.
Finding that the district court lacked the subject matter jurisiction necessary to provide Rule 60(b)
relief, we affirm the order of the district court denying the defendant’s motion.
I.
On March 27, 1991, the defendant, represented by counsel, pled guilty in the United States
District Court for the Northern District of Alabama to one count of illegally structuring financial
transactions in violation of 31 U.S.C. § 5324(3), and one count of food stamp fraud in violation of
7 U.S.C. § 2024(b). The defendant’s brother and co-defendant, Jomeeh, pled guilty to similar
charges at the same time. On March 29, 1991, the district court sentenced the defendant and
Jomeeh. Both the defendant and his brother recieved sentences that mandated the forfeiture of
certain real properties held seperately by the defendant and Jomeeh. In accordance with the terms
of defendant’s plea agreement with the government, the defendant later paid the cash equivalent of
$25,936.23 plus accumulated interest in lieu of real property in satisfaction of the forfeiture portion
of his sentence. In satisfaction of the forfeiture provisions of his sentence, Jomeeh forfeited his
grocery store business located in Huntsville, Alabama.
The defendant and Jomeeh subsequently tried to appeal those convictions to this Court and
the Supreme Court without success. On March 11, 1997, nearly 6 years after his conviction and
sentence, the defendant filed a pro se “Motion for Relief from Judgment”, pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure. The defendant’s motion challenged the 1991 criminal
forfeiture of real property from his brother Jomeeh, since, the defendant argued, he had owned the
property in question since June of 1988. The district court denied his motion for relief and the
defendant filed this appeal.
II.
On appeal, the defendant contends the following. First, the defendant argues that the 1991
criminal forfeiture of real property taken as part of his brother’s sentence was a taking of his
property without due process in violation of the Fifth Amendment. Second, the defendant
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challenges the legitimacy of the $25,936.23 forfeiture to which he was sentenced, since the
particular indictment count to which he pled guilty contained no forfeiture provision.
There is no dispute that the appeal at issue challenges criminal forfeiture orders of criminal
proceedings to which the defendant was a party. It is also clear that the defendant, in this appeal,
is challenging the district court’s denial of a Fed. R. Civ. P. 60(b) motion. We hold that the
defendant cannot challenge the criminal forfeiture orders at issue under the Federal Rules of Civil
Procedure. Rule 1 of the Federal Rules of Civil Procedure unamgiguously provides that “[t]hese
rules govern the procedure in the United States district courts in all suits of a civil nature . . . .” The
judgment and order that the defendant contests were entered, not in a civil case, but in a criminal
case, and a proper appeal of the forfeitures should have been raised in the defendant’s criminal
appeal of his conviction and sentence. Rule 60(b) simply does not provide for relief from judgment
in a criminal case, and as such the defendant cannot challenge the criminal forfeitures at issue under
Fed. R. Civ. P. 60 (b). See United States v. Ramsey, 106 F.3d 404, No. 95-2854, (7th Cir. Jan. 9,
1997) (unpublished order).1
For the aforementioned reasons, we affirm the order of the district court denying the
defendant’s Rule 60(b) motion.
AFFIRMED.
1
Further, the criminal forfeitures at issue cannot be challenged by a writ of error coram nobis.
A writ of error coram nobis is a limited remedy of last resort, and this remedy is unavailable given
that the defendant could have raised these issues on direct criminal appeal and failed to do so. See
United States v. Swindall, 107 F.3d 831, 834 (11th Cir. 1997).
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