                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                 FOR THE TENTH CIRCUIT                 January 20, 2015
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

v.                                                        No. 14-6101
                                                   (D.C. No. 5:13-CV-00132-D)
$29,410.00 IN UNITED STATES                               (W.D. Okla.)
CURRENCY, more or less,

               Defendant.

------------------------------

WALTER KEVIN MOORE, III,
a/k/a Walter John Moore, III,

               Claimant - Appellant.


                                 ORDER AND JUDGMENT *


Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges.


       In this in rem civil forfeiture of $29,410.00, Claimant Walter Kevin Moore, III

asserted his ownership of the currency, which law enforcement officers found in a

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
suitcase in his vehicle. The action was filed pursuant to 21 U.S.C. § 881(a)(6), which

authorizes forfeiture of currency used in illicit drug trafficking. Moore filed a pro se

Verified Proof of Claim to the currency, as authorized by 18 U.S.C. § 983(a)(4)(A)

and Rule G(5)(a) of the Supplemental Rules for Admiralty or Maritime Claims and

Asset Forfeiture Actions (Supplemental Rules). The government then served

interrogatories on him concerning his interest in and possession of the currency, see

Supp. R. G(6)(a), which he failed to answer. He also failed to file an answer to the

complaint. See 18 U.S.C. § 983(a)(4)(B) & Supp. R. G(5)(b). Represented by

counsel, he sought and was granted four extensions of time to respond to the

interrogatories, but he never did.

      Based on his failure to file an answer or respond to the interrogatories, the

government moved to strike Moore’s Verified Proof of Claim, see Supp. R.

G(8)(c)(i)(A), which the district judge granted. Moore then filed a motion to

reconsider, which the judge denied. The judge also denied on procedural and

jurisdictional grounds Moore’s merits challenges to the seizure and forfeiture of the

currency. Upon the government’s motion and over Moore’s objection, a default was

entered against him, pursuant to Fed. R. Civ. P. 55(a). In a subsequent order, the

judge entered a default judgment and ordered the currency forfeited to the

government. Moore appeals from the default judgment.

      “Decisions to enter judgment by default are committed to the district court’s

sound discretion, and our review is for an abuse of discretion.” Olcott v. Delaware


                                          -2-
Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (internal quotation marks omitted).

“We will not disturb the court’s decision without a clear showing that the decision

was based on a clearly erroneous factual finding or that it manifests a clear error of

judgment.” Niemi v. Lasshofer, 770 F.3d 1331, 1352 (10th Cir. 2014) (internal

quotation marks omitted).

      Moore contends his failure to file an answer or respond to the interrogatories

was excusable because (1) the government’s notice informing him he needed to file

an answer to the complaint was returned marked “unclaimed;” (2) his current

attorney entered his appearance in this case on June 14, 2013, and the government

moved to strike the Verified Proof of Claim on September 27, 2013, thus allowing

too little time to respond; (3) the relatively late involvement of his current attorney

and the complexity of forfeiture law hampered his ability to respond; and (4) the

government was shut down from October 1 to October 16, 2013, and he could not

pursue his claims during the shutdown.

      According to Moore, he did not receive the government’s correspondence

telling him when his answer was due, so he should be excused for not filing an

answer. But Moore has not challenged two statements made by the government:

(1) notice was also sent to Mr. Carsia, the attorney who represented Moore in

administrative forfeiture proceedings concerning the currency, see Supp. R.

G(4)(b)(iii)(B) (authorizing notice to a potential claimant’s attorney in administrative

forfeiture proceedings); and (2) the government published the notice on the


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government’s forfeiture website, see id. Rule G(4)(a) (authorizing notice by

publication). Moreover, Rule G(4)(b)(v) provides, “[a] potential claimant who had

actual notice of a forfeiture action may not oppose or seek relief from forfeiture

because of the government’s failure to send the required notice.” By filing his

Verified Proof of Claim, Moore demonstrated he had actual notice of the forfeiture

action. We reject his excuses for failing to file an answer to the complaint.

      We also reject Moore’s remaining arguments for failing to file an answer or

respond to the interrogatories—his current attorney did not have time to respond, his

attorney was unable to file an appropriate timely response due to the complexity of

the law, and the government shutdown prevented him from protecting his rights. He

does not claim to have made any attempt to file an answer or respond to the

interrogatories between June 14, 2013, the date his attorney entered his appearance in

this case, and September 27, 2013, the date the government moved to strike the

Verified Proof of Claim. During this period, the government agreed to four requests

for more time. Moore has offered no reasonable explanation for his inability to

prepare the necessary filings for over three months. His reliance on the government

shutdown is contrived and also unavailing; the government had filed its motion to

strike before the shutdown occurred and Moore alleges no attempted action on his

part that was frustrated by the shutdown. 1 Finally, we decline his invitation to excuse


1
       The shutdown occurred October 1 to October 16, 2013. The federal district
court remained open, however. In addition, the Assistant United States Attorney
                                                                         (continued)
                                       -4-
his neglect because of his attorney’s alleged inability to comply with the applicable

law and procedure. The Supreme Court has long rejected “the contention that

dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes

an unjust penalty on the client. Petitioner voluntarily chose this attorney as his

representative in the action, and he cannot now avoid the consequences of the acts or

omissions of this freely selected agent.” Link v. Wabash R.R. Co., 370 U.S. 626,

633-34 (1962); accord Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002).

There was no abuse of discretion in entering the default judgment.

      Moore’s remaining appellate arguments challenge the government’s search and

its seizure of the currency as well as its grounds for forfeiture. Because the default

judgment was properly entered, we need not, and therefore do not, address merits

arguments.

      Moore’s motion for leave to file a rebuttal appendix is denied. The proffered

materials are print-outs from websites apparently offered for their persuasive

authority on the merits of the forfeiture, but there is no indication they were

submitted to the district court. Cf. Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648

(10th Cir. 2008) (“We generally limit our review on appeal to the record that was

before the district court when it made its decision.”).




assigned to this case represents he was not furloughed during the shutdown and was
away from his office for only four days during this period.

                                          -5-
The judgment of the district court is affirmed.


                                         Entered for the Court


                                         Terrence L. O’Brien
                                         Circuit Judge




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