United States v. Davenport

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10743 ELEVENTH CIRCUIT
________________________ FEB 3, 2012
JOHN LEY
D.C. Docket No. 3:06-cr-00041-CAR-CHW-21 CLERK

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,

versus

JUANITA DAVENPORT,

llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
________________________

(February 3, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

BLACK, Circuit Judge:
 Juanita Davenport appeals from a final order of criminal forfeiture

concerning $214,980.00 in U.S. currency seized from a safe deposit box.

Davenport challenges (1) the district court’s denial of her motion to vacate the

preliminary order of forfeiture (POF) issued against her former codefendant,

Orlando Muckle, with regard to the currency; (2) the dismissal of her ancillary

petition to the property under 21 U.S.C. § 853(n) for its untimeliness; and (3) the

denial of her subsequent request for relief under Federal Rule of Civil Procedure

60(b)(1) based on excusable neglect. We dismiss in part and affirm in part.

I. BACKGROUND

Davenport, Muckle, and numerous other named defendants were charged in

a second superseding indictment with conspiring to possess with intent to

distribute various controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and

846 (Count One). Davenport was further charged with making a false statement to

a federally deputized agent regarding the contents of a safe deposit box, in

violation of 18 U.S.C. § 1001(a)(3) (Count Three). The indictment also sought

forfeiture of the defendants’ interest in any property derived from, or used to

facilitate the commission of, the drug conspiracy, pursuant to 21 U.S.C. § 853

(Count Six).

2
 On February 26, 2008, Davenport, represented by attorney Xavier Dicks,

pled guilty to Count Three of the indictment, making a false statement to a

federally deputized agent. The Government dismissed the remaining counts

against Davenport, including the forfeiture count. On May 27, 2008, Davenport

was sentenced to three years’ probation and was ordered to pay a $2,500 fine.

On February 3, 2009, Muckle pled guilty to a superseding information,

which alleged in Count One that he conspired to distribute more than 400 grams of

cocaine. Count Two contained a forfeiture provision requiring him to forfeit his

interest in the $214,980.00 in U.S. currency found in Davenport’s safe deposit

box.1 Under the terms of his written plea agreement, Muckle agreed to forfeit any

right or interest he had in property subject to forfeiture, including the currency

seized from the safe deposit box, as well as to the entry of a POF regarding his

interests, if any, in those assets. Nevertheless, prior to accepting the plea, Muckle

struck various portions of the written plea agreement that asserted the currency

represented proceeds he received from distributing cocaine. At his plea hearing,

Muckle also denied having any interest in the subject currency.

1
Although not pertinent to this appeal, Count Two also sought the forfeiture of two
vehicles.

3
 On February 5, 2009, the Government moved the district court pursuant to

Federal Rule of Criminal Procedure 32.2(b) for a POF. The court granted the

motion on March 16, 2009. The order authorized the Attorney General to notify

persons allegedly having an interest in the property of their right to petition the

court, pursuant to 21 U.S.C. § 853(n), for a hearing to adjudicate the validity of

such interest. The next day, March 17, the Government filed with the court a

notice of its intention to dispose of the forfeited property. The notice further

provided that persons claiming an interest in the forfeited currency had within 30

days of receiving actual notice or no later than 60 days from the first day of the

Government’s publication of the notice on its website2 to petition the court to

adjudicate such interest.3 Also on March 17, the Government served copies of the

2
The website was the United States Department of Justice’s official government
forfeiture website, www.forfeiture.gov.
3
21 U.S.C. § 853(n), Third party interests, states, in pertinent part:
(1) Following 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 Government
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.
(2) Any person, other than the defendant, asserting a legal interest in
property which has been ordered forfeited to the United States pursuant to this
section may, within thirty days of the final publication of notice or his receipt of
notice under paragraph (1), whichever is earlier, petition the court for a hearing to
adjudicate the validity of his alleged interest in the property. The hearing shall be
held before the court alone, without a jury.

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POF and the notice of forfeiture on Davenport’s attorney, Dicks, because the

Government considered Davenport a potential claimant.

The POF and notice of forfeiture were confirmed delivered to Dicks’ office

on March 19; Davenport therefore had until April 20, 2009,4 to petition the court

pursuant to § 853(n). Shortly after receiving the notice, Dicks contacted the

Government, indicating he had already filed a claim for Davenport and was

confused as to why he needed to file another one. The Government informed

Dicks that the previously filed claim was for the administrative forfeiture action

and that Davenport would still need to file a petition in the criminal action in

accordance with the instructions in the POF and notice of forfeiture. On May 12,

2009, Davenport, through Dicks, petitioned the district court to adjudicate her

interest in the forfeited currency.5 She asserted that the money belonged to her

and that it represented her life savings and the proceeds of the sale of her primary

residence.

On July 21, 2009, the Government moved the court to dismiss Davenport’s

petition as untimely. On November 5, 2009, Davenport terminated Dicks as her

4
The final day fell on Saturday, April 18, 2009. Thus, the claim was due to be filed no
later than Monday, April 20, 2009.
5
On April 22, 2009, Muckle was sentenced to a term of imprisonment, and the forfeiture
was included in his judgment.

5
attorney. Davenport then retained new counsel and filed a response to the

Government’s motion. Her response challenged the forfeiture on several grounds

and requested that the court grant her relief under Federal Rule of Civil Procedure

60(b) if it found her petition untimely.

The district court granted the Government’s motion to dismiss on April 28,

2010.6 On January 24, 2011, the court entered a final order of forfeiture, forfeiting

to the United States the $214,980.00 in full. Davenport now appeals the order and

the court’s refusal to grant her Rule 60(b) relief.

II. DISCUSSION

A. Davenport’s Standing to Challenge the POF

“Article III of the Constitution limits the jurisdiction of federal courts to

‘cases’ and ‘controversies.’” Christian Coal. of Fla., Inc. v. United States, 662

F.3d 1182, 1189 (11th Cir. 2011) (quotation omitted). “[T]here are three strands of

justiciability doctrine–standing, ripeness, and mootness–that go to the heart of the

Article III case or controversy requirement.” Id. (quotation omitted). Our

jurisdiction is dependent on whether Davenport has standing to challenge the POF

entered against Muckle. The issue of whether a former codefendant has standing

6
The court granted the motion initially on March 4, 2010. Davenport moved the court
for reconsideration. The court denied her motion on April 28, 2010, in an amended order.

6
to challenge a POF entered against another defendant is one of first impression in

this Circuit.

“We review de novo questions about our subject matter jurisdiction,

including standing.” United States v. Cone, 627 F.3d 1356, 1358 (11th Cir. 2010).

Moreover, we review “a district court’s legal conclusions regarding third-party

claims to criminally forfeited property de novo and its factual findings for clear

error.” United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).

Initially, it is necessary to explain the difference between criminal and

ancillary forfeiture proceedings. Criminal forfeiture proceedings are governed by

21 U.S.C. § 853 and Federal Rule of Criminal Procedure 32.2. Pursuant to § 853,

any person convicted of certain felony drug offenses must forfeit any property

derived from the violation.7 21 U.S.C. § 853(a). If a defendant is convicted of any

count upon which criminal forfeiture is sought, the court must, as soon as

practical, determine whether the property is subject to forfeiture. Fed. R. Crim. P.

32.2(b)(1).8 Where the Government seeks forfeiture of specific property, the court

must determine whether the Government established the requisite nexus between

7
Because Davenport pled guilty to making a false statement to a federally deputized
agent, and not a drug offense, the Government could not proceed with criminal forfeiture against
Davenport under 21 U.S.C. § 853.
8
Unless otherwise indicated, all citations to Rule 32.2 refer to the version in effect at the
time the district court issued the POF underlying this appeal. See Fed. R. Crim. P. 32.2 (2009).

7
the property and the offense of conviction. Id. Once this determination has been

made, the court must promptly enter a POF without regard to any third party’s

interest in the property. Fed. R. Crim. P. 32.2(b)(2). The entry of a POF

authorizes the Attorney General to seize the specific property subject to forfeiture

and to commence ancillary proceedings regarding third-party rights. Fed. R. Crim.

P. 32.2(b)(3), (c); see also United States v. Petrie, 302 F.3d 1280, 1284 (11th Cir.

2002).

After entering a POF, the court can determine whether any third parties have

an interest in the forfeited property, but only if they file a timely petition in an

ancillary proceeding. See Marion, 562 F.3d at 1336-37. At the conclusion of the

ancillary proceeding, the court “must enter a final order of forfeiture by amending

the preliminary order as necessary to account for any third-party rights.” Fed. R.

Crim. P. 32.2(c)(2). If, however, no third party files a timely petition, “the [POF]

becomes the final order of forfeiture if the court finds that the defendant . . . had an

interest in the property that is forfeitable under the applicable statute.” Id. Once

the final order of forfeiture has been entered, neither the defendant nor a third

party may object on the ground that a codefendant or a third party had an interest

in the property. Id.

8
 An ancillary proceeding constitutes the sole means by which a third-party

claimant can establish entitlement to return of forfeited property. See 21 U.S.C.

§ 853(n)(2); Libretti v. United States, 516 U.S. 29, 44, 116 S. Ct. 356, 365 (1995)

(“[T]hird-party claimants can establish their entitlement to return of the [forfeited]

assets only by means of the hearing afforded under 21 U.S.C. § 853(n).”). In fact,

§ 853 affirmatively bars third-party claimants from intervening in a trial or appeal

of a criminal case involving the forfeiture of the subject property, as well as

commencing an action against the Government concerning the validity of an

alleged interest in the property. 21 U.S.C. § 853(k). These provisions confer

limited rights on third-party petitioners “to participate only in the ancillary

forfeiture proceeding, not in the criminal case.” Cone, 627 F.3d at 1358. A

codefendant in a criminal case is properly viewed as a third party with regard to

another defendant’s forfeiture of property. United States v. Gilbert, 244 F.3d 888,

910 n.54 (11th Cir. 2001), superseded on other grounds as recognized in Marion,

562 F.3d at 1341.

The Advisory Committee Notes to the 2000 adoption of Rule 32.2 state the

ancillary proceeding for third-party claimants “does not involve relitigation of the

forfeitability of the property,” which has already been ordered in the criminal case.

The ancillary proceeding is only for the purpose of determining “whether any third

9
party has a legal interest in the forfeited property.” Fed. R. Crim. P. 32.2, advisory

committee’s note (2000 Adoption).9 Consistent with the Advisory Committee

Notes, at least three of our sister circuits have concluded that third parties,

including former codefendants, cannot challenge or relitigate a preliminary order’s

finding of forfeitability. See United States v. Andrews, 530 F.3d 1232, 1236-37

(10th Cir. 2008) (holding the victims of a defendant’s misconduct, as third parties,

had no right to challenge a preliminary order’s finding of forfeitability, but could

only seek amendment of the order to exclude their interest in an ancillary

proceeding); United States v. Porchay, 533 F.3d 704, 707, 710 (8th Cir. 2008)

(holding a former codefendant, as a third party, could not relitigate the validity of

a forfeitability determination made against another defendant); DSI Assoc. LLC v.

United States, 496 F.3d 175, 184-85 (2d Cir. 2007) (holding a third party could

not intervene by challenging the underlying validity of the forfeiture order rather

than filing an ancillary proceeding). As the Tenth Circuit explained in Andrews, if

the forfeited property really belongs to the third party, she can prevail and recover

her property during the ancillary proceeding “whether there were defects in the

criminal trial or the forfeiture process or not; and if the property does not belong to

9
“Although not binding, the interpretations in the Advisory Committee Notes are nearly
universally accorded great weight in interpreting federal rules.” Horenkamp v. Van Winkle &
Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005) (quotation omitted).

10
the third party, such defects in the finding of forfeitability are no concern of

[hers].” 530 F.3d at 1237 (quotation omitted).

We conclude that Davenport lacked standing to challenge the validity of the

POF’s determination of forfeitability. Her sole mechanism for vindicating her

purported interest in the forfeited currency was within the context of the ancillary

proceeding prescribed by § 853(n) and Rule 32.2(c). Whether or not she availed

herself of this opportunity by filing a timely third-party petition does not affect the

conclusion that third parties, including codefendants, may not relitigate the merits

of a forfeitability determination. The district court did not err in finding that

Davenport lacked standing to challenge the validity of the POF. Therefore, we

lack jurisdiction over this claim.

B. Untimeliness of Ancillary Petition

Although Davenport lacks standing to challenge Muckle’s POF, we may

still review the district court’s dismissal of her own ancillary petition. Davenport

contends the district court erred in dismissing her ancillary petition to the forfeited

currency as untimely based on the date Dicks received a written notice of

forfeiture. She argues that § 853(n)(1) and due process both require that direct

written notice be served on a known and accessible party with an interest in

forfeited property, and that the written notice of forfeiture sent to her attorney was

11
insufficient because he no longer represented her in the criminal proceeding.

Consequently, she maintains that her petition was subject to a later filing deadline

based on the notice of forfeiture published on the Government’s official website,

thereby rendering her petition timely.

Davenport also argues that, although Rule 32.2(b) was amended in

December 2009 to incorporate the notice provisions of Rule G of the

Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture

Actions (Forfeiture Action Rules), retroactive application of Rule G to validate the

notice sent to her attorney would violate her procedural due process rights, as Rule

G previously applied only to civil forfeiture actions, not criminal forfeiture

proceedings. Alternatively, she maintains that, even if the notice mailed to her

attorney was legally effective, the district court was required to construe the

ambiguous deadline set forth in the notice in her favor, and should have

recognized her timely claim in the administrative forfeiture proceeding against the

currency as a timely claim in the criminal forfeiture action.

Section 853(n) provides that, following the entry of a POF, the Government

“shall publish notice of the order and of its intent to dispose of the property,” and

“may also, to the extent practicable, provide direct written notice to any person

known to have alleged an interest in the property.” 21 U.S.C. § 853(n)(1). The

12
criminal forfeiture statute also requires third-party claimants to file a petition

“within thirty days of the final publication of notice or his receipt of [direct

written] notice . . . , whichever is earlier.” 21 U.S.C. § 853(n)(2). If a third party

fails to file a petition within the prescribed 30-day deadline, her interests in the

property are forfeited. Marion, 562 F.3d at 1336-37, 1341.

The phrase “direct written notice” is not defined in the criminal forfeiture

statute. See 21 U.S.C. § 853. Likewise, at the time the POF was entered in this

case, Rule 32.2 did not explicitly address what type of notice, if any, the

Government was required to give to potential third-party claimants. See Fed. R.

Crim. P. 32.2. Effective December 1, 2009, however, Rule 32.2 was amended to

provide that the Government “must publish notice of the [forfeiture] 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.” Fed. R. Crim. P.

32.2(b)(6)(A) (2010). The amended rule also explicitly incorporated the notice

provisions of Rule G(4) of the Forfeiture Action Rules, stating that the direct

notice of a POF “may be sent in accordance with Supplemental Rules G(4)(b)(iii)-

(v).” Fed. R. Crim. P. 32.2(b)(6)(D) (2010). Rule G, which has otherwise

governed civil forfeiture actions since 2006, provides that direct notice “must be

sent by means reasonably calculated to reach the potential claimant,” including by

13
sending notice “to the potential claimant or to the attorney representing the

potential claimant with respect to the seizure of the property or in a related

investigation, administrative forfeiture proceeding, or criminal case.” Forfeiture

Action Rule G(4)(b)(iii)(A)-(B), advisory committee’s note (2006 Adoption).

Nevertheless, even prior to the amendment of Rule 32.2, the Advisory

Committee Notes accompanying its initial adoption acknowledged that “[t]he

notice provisions regarding the ancillary proceeding are equivalent to the notice

provisions that govern civil forfeitures.” Fed. R. Crim. P. 32.2, advisory

committee’s note (2000 Adoption). That approach was consistent with the well-

established principle that ancillary proceedings to a criminal forfeiture prosecution

are considered civil cases. See United States v. Pease, 331 F.3d 809, 816 (11th

Cir. 2003) (concluding ancillary proceedings under § 853(n) are civil cases).

Moreover, the notice provisions of Rule G(4)(b)(iii) simply codify and

restate prevailing due process requirements governing adequate notice. The

Supreme Court has long held that due process is satisfied where notice is

“reasonably calculated, under all the circumstances, to apprise interested parties of

the pendency of the action.” Mullane v. Cent. Hanover Bank & Trust Co., 339

U.S. 306, 314, 70 S. Ct. 652, 657 (1950); see also Dusenbery v. United States, 534

U.S. 161, 170, 122 S. Ct. 694, 701 (2002). Due process does not require that an

14
interested party actually receive notice of the proceedings, nor does it demand that

the Government employ the best or most reliable means of ensuring notice.

Dusenbery, 534 U.S. at 170-72, 122 S. Ct. at 701-02. While it does not appear

that we have specifically considered the issue, numerous other courts have held

that due process can be satisfied by mailing notice of a forfeiture proceeding to a

party’s attorney, even where the attorney only represented the party in a pending

and related proceeding. See Nunley v. Dep’t of Justice, 425 F.3d 1132, 1139 (8th

Cir. 2005) (holding an inmate was afforded due process when the Government

sent a notice of administrative forfeiture to him in care of his attorney); Bye v.

United States, 105 F.3d 856, 857 (2d Cir. 1997) (concluding the Government gave

sufficient notice of an administrative forfeiture by sending notice, which was

acknowledged and received, to the attorney representing the defendant in a

pending and related criminal proceeding); United States v. 51 Pieces of Real

Property, Roswell, N.M., 17 F.3d 1306, 1317 (10th Cir. 1994) (holding sufficient

notice of a civil forfeiture proceeding was given when the Government sent notice

to an interested party through the attorney representing him in an ongoing criminal

prosecution).

The district court did not err in finding that, under the applicable statutes,

rules, and due process requirements, the written notice of forfeiture sent to

15
Davenport’s attorney was adequate, thereby triggering the mandatory 30-day

period for filing third-party petitions and rendering Davenport’s petition untimely.

Since ancillary forfeiture proceedings have long been considered civil in nature,

the rules governing civil forfeiture actions, including Rule G, would have been

employed even before Rule 32.2 was amended. In any event, regardless of the

formal applicability of Rule G, the notice of forfeiture sent to Davenport’s attorney

satisfied prevailing due process requirements. The record shows that Dicks

continued to represent Davenport after the termination of her criminal case. He

communicated with the Government after receiving the written notice of

forfeiture, filed the third-party petition on Davenport’s behalf, and was not

formally discharged by her until after he received the Government’s notice and

had filed the third-party petition.10 These actions show that he was Davenport’s

attorney for the purpose of the ancillary petition.

Contrary to Davenport’s contention, the written notice of forfeiture sent to

Dicks was not ambiguous with respect to the governing deadline. The fact that

Davenport filed a timely administrative claim regarding the currency did not mean

that she was exempt from complying with the unconditional language of the

10
We need not decide whether Dicks’ representation during Davenport’s criminal
prosecution and administrative forfeiture alone was sufficient to deem him Davenport’s attorney
for notice purposes.

16
criminal forfeiture statute, which requires the filing of a timely petition in an

ancillary criminal forfeiture proceeding. See 21 U.S.C. § 853(n)(2). Accordingly,

the district court did not err in dismissing Davenport’s petition as untimely.

C. Relief under Federal Rule of Civil Procedure 60(b)(1)

Davenport argues the district court erred in declining to treat her untimely

petition as an application for Rule 60(b) relief due to mistake, inadvertence, or

excusable neglect. Her claim for relief was, and continues to be, predicated on the

contention that her former attorney reasonably believed the Government’s

published notice of forfeiture superseded the prior written notice he received, and

thus established the governing deadline, because (1) he no longer represented

Davenport in the criminal action when he received the written notice, (2) the two

notices gave different deadlines and did not state that Rule G’s notice provisions

would apply, and (3) the written notice itself was ambiguous with respect to the

applicable deadline. Davenport further contends that she and her attorney did not

act in bad faith, that the Government was not prejudiced by the filing delay, and

that she should not be penalized because the Government failed to serve her

directly with the written notice of forfeiture.

We review a district court’s denial of relief under Rule 60(b) for an abuse of

discretion. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842

17
(11th Cir. 2008). Rule 60(b)(1) authorizes a district court to relieve a party from a

final judgment, order, or proceeding due to “mistake, inadvertence, surprise, or

excusable neglect.” Fed. R. Civ. P. 60(b)(1). “[F]or purposes of Rule 60(b),

‘excusable neglect’ is understood to encompass situations in which the failure to

comply with a filing deadline is attributable to negligence.” Cheney v. Anchor

Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (quotation omitted).

“[W]hether a party’s neglect of a deadline may be excused is an equitable decision

turning on all relevant circumstances surrounding the party’s omission.” Id.

(quotation omitted). Pertinent factors include “the danger of prejudice to the

opposing party, the length of the delay and its potential impact on judicial

proceedings, the reason for the delay, including whether it was within the

reasonable control of the movant, and whether the movant acted in good faith.”

Id. (quotation and alteration omitted).

Although an attorney’s inadvertent failure to comply with a filing deadline

may constitute excusable neglect, we have recognized a material distinction

between an attorney’s mistake of law and a mistake of fact. See Conn. State

Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1355-56 (11th Cir.

2009); Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir.

1997). While an attorney error based on a misunderstanding or misinterpretation

18
of the law generally cannot constitute excusable neglect, a mistake of fact, such as

miscommunication or a clerical error, may do so under the pertinent factors.

Anthem, 591 F.3d at 1356; Riney, 130 F.3d at 998-99. Thus, we have held that an

attorney’s failure to understand or review clear law cannot, as a categorical matter,

constitute excusable neglect to relieve a party from the consequences of failing to

comply with a statutory deadline. Riney, 130 F.3d at 997-99. We have also held

that a district court does not abuse its discretion in declining to grant relief under

Rule 60(b)(1) based on an attorney’s misinterpretation of a procedural rule, where

ample caselaw exists to put the attorney on notice that his interpretation is

mistaken. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). In

contrast, in an analogous case concerning Bankruptcy Rule 9006(b)(1), the

Supreme Court held that an attorney’s failure to file a proof of claim within a

court-ordered deadline constituted excusable neglect in light of the “dramatic

ambiguity” in the bankruptcy court’s notice to the parties regarding the filing

deadline. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 382-

83, 398-99, 113 S. Ct. 1489, 1491-92, 1499-1500 (1993). Nevertheless, both the

Supreme Court and this Court have emphasized that represented parties are not

entitled to relief simply because they were penalized by the omissions of counsel.

See Pioneer, 507 U.S. at 396-97, 113 S.Ct. at 1499; Cavaliere, 996 F.2d at 1115.

19
 Since the Government’s written notice of forfeiture and existing law were

sufficient to alert Dicks of the applicable deadline for filing a third-party petition

on Davenport’s behalf, his misinterpretation of the deadline could not, as a matter

of law, constitute excusable neglect to warrant relief under Rule 60(b)(1).

Contrary to Davenport’s contention, the written notice unambiguously informed

Dicks that he had 30 days from the time that he received the notice to file a

petition. Moreover, even prior to the December 2009 amendment of Rule 32.2,

sufficient caselaw and other legal authority put Dicks on notice that either the

notice provisions of Rule G applied to ancillary criminal forfeiture proceedings or

that, in the absence of any statutory definition of proper notice, the written notice

he received was adequate under prevailing due process standards. Dicks’ failure

to review or fully appreciate the law governing adequate notice cannot qualify as

excusable neglect. Further, Dicks’ conversation with the Government regarding

his belief that his filing in the administrative forfeiture action was sufficient to

protect Davenport’s interests in the criminal action belies any argument that he

was no longer Davenport’s attorney. As such, the district court did not abuse its

discretion in declining to grant relief under Rule 60(b)(1).

20
 III. CONCLUSION

Davenport’s appeal of the POF is DISMISSED. The district court’s

rejection of Davenport’s § 853(n) petition and denial of Rule 60(b) relief are

AFFIRMED.

DISMISSED, in part; AFFIRMED, in part.

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