United States v. Currency, in United States $178,858.00

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15202
Non-Argument Calendar
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D.C. Docket No. 2:06-cv-01651-RDP
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CURRENCY,
In United States $178,858.00,
Defendant,
DERRICK ERVIN,
Claimant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 30, 2014)
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Before WILSON, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Derrick Ervin appeals the district court’s denial of his Rule 60(b)(4) motion
to set aside a civil forfeiture judgment. Mr. Ervin alleged in his motion that the
order of forfeiture entered by the district court was void as a matter of law because
possession of the defendant res ($178,858.00 in United States currency) by the
Jefferson County Circuit Court prevented a federal court from acquiring or
exercising jurisdiction. We affirm.
I.
On February 16, 2006, officers of the Birmingham Police Department (BPD)
were conducting surveillance of an apartment complex, where they suspected
illegal drug activity. The officers observed three men leave an apartment; one of
the men was carrying a black bag on his shoulder. An officer followed the three
men and heard the sound of a vehicle being locked and unlocked and “a handgun
being ‘chambered’ with a round of ammunition.” D.E. 1 at ¶ 3(b). The officer
approached a green GMC Denali truck, identified himself, and asked who had
chambered the round. One of the individuals—later identified as Mr. Ervin—
pulled a handgun from his waistband and fired multiple shots at the officer. The
three men fled on foot and were later apprehended.
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BPD officers determined that the GMC Denali truck was registered to Mr.
Ervin and impounded the vehicle. BPD officers obtained a search warrant for the
truck from the Jefferson County Circuit Court for the vehicle in connection with
suspected illegal drug activity. While executing the search warrant of the truck’s
interior, BPD detectives, in conjunction with agents from the U.S. Drug
Enforcement Administration (DEA), found a black bag containing $160,840.00, a
shoe box containing $18,000.00, and $18 in cash. As a result of the search, law
enforcement officers seized a total $178,858.00. See id. at ¶ 3(g).
That same day, BPD officers also obtained a search warrant for the
apartment from which the three men had been seen leaving on the night of
February 16, 2006. The officers found a gym bag containing ten packages of
cocaine hydrochloride weighing 18 kilograms, a box containing ten bags of
hydrochloride weighing 31 ounces, and 43 methylenedioxymethamphetamine pills
(also known as Ecstasy or MDMA). See id. at ¶ 3(h). Cocaine hydrochloride is
classified as a “controlled substance” for purposes of 21 U.S.C. § 801 et seq. See
id. at ¶ 4.
On August 21, 2006, the United States filed a civil forfeiture action under 21
U.S.C. § 881(a)(6), seeking the forfeiture of the $178,858.00 found in the truck as
proceeds of illegal drug activity. According to the civil forfeiture complaint, DEA
special agents had probable cause to believe that the currency seized during the
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search of the truck was “furnished, or intended to be furnished in exchange for a
controlled substance or listed chemical in violation of Title 21, United Sates Code,
Chapter 13, Subchapter I.” Id. at ¶ 5. See also D.E. 14 at ¶ 2.
On March 30, 2007, Mr. Ervin filed a verified claim to the defendant
property, which he later moved to withdraw on January 18, 2008. Finding that Mr.
Ervin consented to forfeiture, that there were no other potential claimants to the
defendant currency, and that the time for asserting any such interests had expired,
the district court granted the United States’ motion for consent judgment and
ordered forfeiture of the defendant res to the United States under 21 U.S.C. §
881(a)(6). See D.E. 15. The forfeiture proceeds were disbursed via the federal
“equitable sharing” program, with 80% awarded to the BPD and 20% retained by
the United States. See Appellee’s Br. at 2; D.E. 20 at ¶ 9.
On June 10, 2013, Mr. Ervin filed the instant Rule 60(b)(4) motion to set
aside the district court’s judgment and order of forfeiture. The district court denied
the motion, concluding that it had properly exercised in rem jurisdiction over the
defendant currency. Specifically, the district court ruled that because no state court
action related to the res had been instituted in the Jefferson County Circuit Court,
“no bar existed on the federal exercise of jurisdiction.” D.E. 25 at 7. Referring to
the doctrine of “adoptive forfeiture”—under which a federal court can adopt a state
or local seizure and subsequently deem the property to have been seized by the
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federal government—the district court reasoned that “threats posed to federalism
and comity by the usurpation of jurisdiction or the maintenance of parallel
proceedings” were “nonexistent” because the state court had made no attempt to
assert in rem jurisdiction. Id. at 8.
II.
Rule 60(b)(4) motions—unlike motions under other subsections of Rule
60(b)—“leave no margin for consideration of the district court’s discretion as the
judgments themselves are by definition either legal nullities or not.” Burke v.
Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (internal quotation marks and citation
omitted). We therefore review de novo a district court’s ruling on a Rule 60(b)(4)
motion. See id. Generally, a judgment is void under Rule 60(b)(4) “if the court that
rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted
in a manner inconsistent with due process of law.” Id. (internal quotation marks
and citation omitted). It is well settled, however, “that a mere error in the exercise
of jurisdiction does not support relief under Rule 60(b)(4).” In re Optical
Technologies, Inc., 425 F.3d 1294, 1306 (11th Cir. 2005) (quoting Oaks v. Horizon
Fin., S.A., 259 F.3d 1315, 1319 (11th Cir. 2001)). Indeed, “[f]ederal courts
considering Rule 60(b)(4) motions that assert a judgment is void because of
jurisdictional defect generally have reserved relief for the exceptional case in
which the court that rendered judgment lacked even an ‘arguable basis’ for
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jurisdiction.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010).
We have long recognized that a court’s in rem jurisdiction “must be
exclusive,” and a state court and a federal court therefore “cannot simultaneously
exercise in rem jurisdiction over the same property.” United States v. $270,000.00
in U.S. Currency, 1 F.3d 1146, 1147 (11th Cir. 1993). In order to avoid this
conflict, “the principle, applicable to both federal and state courts, is established
that the court first assuming jurisdiction over the property may maintain and
exercise that jurisdiction to the exclusion of the other.” Id. at 1148.
Mr. Ervin contends that “complete jurisdiction” over the defendant res
attached first in the Jefferson County Circuit Court, thus barring subsequent
jurisdiction within the federal court. See Appellant’s Br. at 10-13. Specifically, he
argues that, under Alabama law, jurisdiction was vested in the state court when the
defendant res was seized pursuant to a state-issued search warrant and that—
contrary to the United States’ argument—the filing of a separate, third-party
forfeiture complaint was not necessary to confer exclusive state court jurisdiction
over the property. See id.
Mr. Ervin and the United States provide seemingly conflicting Alabama case
law discussing the requirements for in rem jurisdiction to vest in an Alabama state
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court.1 We, however, need not address whether in rem jurisdiction attached within
the state court prior to the federal forfeiture proceedings because, under the
governing standard for a Rule 60(b)(4) motion, we cannot say that this is one of the
“exceptional case[s]” that lacks even an “arguable basis” for jurisdiction. See
United Student Aid Funds, 559 U.S. at 271. The United States properly filed a
complaint in the district court seeking civil forfeiture of the defendant property
under 21 U.S.C. § 881(a)(6) as alleged proceeds of illegal drug activity in violation
of 21 U.S.C. § 801 et seq. The district court subsequently entered a consent
judgment following Mr. Ervin’s withdrawal of his verified claim and express
consent to the forfeiture of the defendant res to the United States. See D.E. 15.
Additionally, as explained by the district court, the notion that the federal
government may adopt property seized pursuant to state process and give to it the
1
Mr. Ervin cites to state and federal cases that suggest that seizure made pursuant to process
issued by the state court is alone sufficient to vest in rem jurisdiction to the exclusion of other
courts. See Vorhees v. Jackson, ex dem Bank of the United States, 35 U.S. 449, 460 (1836) (“the
seizing of the property by virtue of process issued from a court having authority to issue the writ,
vests in the tribunal from which the process issued a complete jurisdiction over the thing or
property seized”); The Rio Grande, 90 U.S. 458, 463-64 (1874) (“Jurisdiction of the res is
obtained by a seizure under process of the court, whereby it is held to abide such order as the
court may make concerning it.”); Garrett v. State, 739 So. 2d 49, 52 (Ala. Civ. App. 1999)
(“Based on our holding. . . that the res was validly seized by [state] law enforcement officers
pursuant to process issued by a [state] court. . . we conclude that the [state] court had subject
matter jurisdiction over the property at issue here.”). The United States, citing to a 2009 Alabama
civil appellate court case, contends that “[u]nder Alabama law, obtaining in rem jurisdiction is a
two-step process, requiring both possession of the res and the filing of an in rem court action.”
Appellee’s Br. at 8-9. See Green v. City of Montgomery, 55 So. 3d 256, 263 (Ala. Civ. App.
2009) (“Alabama law requires a two-step process of possession and then the filing of an in rem
court action.”).
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same effect as if it had been first seized by federal authorities is embodied within
the operative characteristics of the long-accepted doctrine of adoptive seizure.2
Given that the district court at the very least possessed arguable
subject-matter jurisdiction under § 21 U.S.C. 881(a)(6), that Mr. Ervin consented
to the forfeiture at the time of the judgment, that the record demonstrated that the
state agreed to transfer the currency to federal authorities, and that no in rem
proceedings had been instituted within the state court, we cannot say that the
forfeiture judgment is void. Mr. Ervin therefore is not entitled to relief under Rule
60(b)(4).
III.
We affirm the district court’s denial of Mr. Ervin’s 60(b)(4) motion.
AFFIRMED.
2
See, e.g., Taylor v. United States, 44 U.S. 197, 205 (1845) (“At the common law any person
may, at his peril, seize for a forfeiture to the government, and, if the government adopts his
seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he
will be completely justified. So that it is wholly immaterial in such a case who makes the seizure,
or whether it is irregularly made or not, or whether the cause assigned originally for the seizure
be that for which the condemnation takes place, provided the adjudication is for a sufficient
cause.”); United States v. One Ford Coupe Automobile, 272 U.S. 321, 325 (1926) (“It is settled
that, where property declared by a federal statute to be forfeited, because used in violation of
federal law, is seized by one having no authority to do so, the United States may adopt the
seizure with the same effect as if it had originally been made by one duly authorized.”). See also
18 U.S.C. § 981(b)(2)(C) (providing that a seizure may be made without a warrant if “there is
probable cause to believe that the property is subject to forfeiture” and “the property was
lawfully seized by a State or local law enforcement agency and transferred to a Federal agency”).
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