                                                              F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                                 JUL 17 1998
                 UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT                 PATRICK FISHER
                                                                    Clerk


UNITED STATES OF AMERICA,

            Plaintiff - Appellee,             No. 97-1440
      v.                                      (D. Colorado)
51 PIECES OF REAL PROPERTY,               (D.C. No. 91-Z-1175)
ROSWELL, NEW MEXICO, including
all fixtures, appliances, and
appurtenances therein and all rents,
profits, other income and proceeds
therefrom,

            Defendant - Appellee,
and
THE RENT SHOPPE, all deposits,
rents, proceeds and records maintained
by The Rent Shoppe for all properties
managed for James Grandgeorge,
Nitsua Management, Brookes, Ltd.,
The Oversoul Foundation, and Donald
Austin; NITSUA MANAGEMENT;
and THE OVERSOUL
FOUNDATION,

            Defendants.


DONALD AUSTIN,

            Claimant - Appellant,
and
 BROOKES, LTD., a Delaware
 corporation; JANE TAVAREZ
 GRANDGEORGE, as the sole
 shareholder of Brookes, Ltd.; C. G.
 SIMPSON; JACQUE, INC., a New
 Mexico corporation; NITSUA
 MANAGEMENT, a Nevada
 contractual company,

              Claimants.


                           ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




      Defendant Donald Dean Austin appeals from the denial of his Fed. R. Civ.

P. 60(b) motion for relief from a judgment of the district court entered on

October 22, 1992, in which the court awarded a default judgment to the United

States and ordered forfeiture of certain real property located in New Mexico. We

affirm.

      The United States initiated two separate legal actions against Mr. Austin

arising out of his involvement in a money laundering scheme. In one, Mr. Austin

was indicted, tried by a jury, and sentenced to twenty seven years in prison. This


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
court affirmed his conviction and sentence. United States v. Austin, Nos.

92-1046, 92-1047, 1992 WL 738548 (10th Cir. Nov. 12, 1992) (unpublished). We

also affirmed the denial of habeas relief. United States v. Austin, Nos. 94-1108,

94-1256, 1995 WL 94632 (10th Cir. Feb. 28, 1995) (unpublished).

      In the other action, the government filed a complaint for forfeiture in rem

against property owned by Nitsua Management, a business trust organization

organized under the laws of Nevada and which the government contended was the

alter ego of Mr. Austin. Notice of the seizure and forfeiture proceedings was sent

to Nitsua and to Mr. Austin through his criminal defense attorney. The district

court eventually entered judgment for the government, after concluding that it had

in rem jurisdiction over the property and personal jurisdiction over Nitsua, whom

the court found to be the alter ego of Mr. Austin.

      On appeal, this court affirmed in part and reversed in part, holding that the

“district court did not have in rem jurisdiction over the property and, therefore,

could not enter judgment of forfeiture in favor of the government as against the

whole world.” United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1319

(10th Cir. 1994). We also held, however, that “the court did have personal

jurisdiction over Nitsua and, therefore, could enter a judgment in favor of the

government as against Nitsua.” Id.




                                         -3-
      In May 1997, Mr. Austin filed a motion for relief from judgment under Fed.

R. Civ. P. 60(b), arguing that the October 22, 1992, judgment of forfeiture against

Nitsua was void under Rule 60(b)(4) because it constituted double punishment in

violation of the double jeopardy clause, and that it violated the excessive fines

clause of the Eighth Amendment. 1 The district court denied Rule 60(b)(4) relief,

holding that “[a]n in rem civil forfeiture action does not constitute punishment for

purposes of the double jeopardy clause” and that the motion “was not filed within

a reasonable time.” Order, Appellee’s Addendum at 74.

      Mr. Austin appeals, arguing (1) the district court repeated its prior error by

again determining that it had in rem jurisdiction when it ordered forfeiture in

October 1992, and that the mischaracterization of the court’s jurisdiction

prevented it from properly reviewing Mr. Austin’s motion in light of United

States v. Ursery, 518 U.S. 267 (1996); and (2) the district court erred in finding

that the motion was not brought within a reasonable time.

      Mr. Austin’s motion for relief from the 1992 judgment invoked Fed. R.

Civ. P. 60(b)(4), which provides relief from a judgment that is void. Rule

60(b)(4) “provides a mandatory remedy that is not subject to any particular time


      1
        Mr. Austin’s Rule 60(b) motion was accompanied by a 28 U.S.C. § 2255
motion attacking his conviction and sentence. On the government’s motion, the
§ 2255 motion was transferred to this court, where we denied him authorization to
file the successive petition. United States v. Austin, No. 97-555 (10th Cir. Dec.
19, 1997) (unpublished order).

                                         -4-
limitation.” Wilmer v. Board of County Comm’rs, 69 F.3d 406, 409 (10th Cir.

1995). The district court therefore erred in denying the motion on the basis that it

was not brought within a reasonable time. That does not mean, however, that the

district court erred in denying the motion. 2

      We have held that “[f]or a judgment to be void under Rule 60(b)(4), it must

be determined that the rendering court was powerless to enter it.” V.T.A., Inc. v.

Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979). That occurs when the court lacks

subject matter jurisdiction or jurisdiction over the parties, when the “court’s

action involves a plain usurpation of power or if the court has acted in a manner

inconsistent with due process of law.” Id. at 224-25 (footnotes omitted); see also

Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (“[A] judgment may be

void for purposes of Rule 60(b)(4) if entered in a manner inconsistent with due

process.”). Additionally, “[a] judgment is not void merely because it is or may be


      2
        Mr. Austin also argues that “the government admitted in pleadings filed in
1995 that it did not honor the insurance applicable to the properties.” Appellant’s
Br. at 6. He argues that this amounts to “[a] knowing misrepresentation to the
district court as to the government’s loss in order to wrongfully enhance Austin’s
sentence or to establish a false restitution claim [which amounts to] a fraud on the
court.” Id. He further argues that a claim of fraud on the court is also not subject
to the “reasonable time” limitation of Rule 60(b). As we have recently stated,
“‘[f]raud on the court . . . is fraud which is directed to the judicial machinery
itself and is not fraud between the parties or fraudulent documents, false
statements or perjury.’” Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259,
1266 (10th Cir. 1995) (quoting Bullock v. United States, 763 F.2d 1115, 1118
(10th Cir. 1985) (en banc)). The government’s alleged impropriety in this case
does not amount to fraud on the court.

                                          -5-
erroneous.” V.T.A., Inc., 597 F.2d at 224; see also EEOC v. Safeway Stores, 611

F.2d 795, 800 (10th Cir. 1979). We apply Rule 60(b)(4) narrowly. See V.T.A.,

Inc., 597 F.2d at 225.

      We agree with the government that the district court correctly denied Mr.

Austin’s motion. We begin by noting that, as the government concedes, the

district court erred in characterizing its jurisdiction in the 1992 forfeiture

proceeding as in rem. As this court specifically held in the appeal of that

proceeding, the government did not have in rem jurisdiction over the property in

question; rather, it had in personam jurisdiction over Nitsua, Mr. Austin’s alter

ego and the owner of the property. See Austin, 17 F.3d at 1319. That error,

however, does not render its denial of Mr. Austin’s Rule 60(b) motion erroneous.

      The judgment of the district court from which Mr. Austin seeks relief was

not void. The court had subject matter jurisdiction and, although on appeal we

ruled the court lacked in rem jurisdiction over the property which was the subject

of the forfeiture proceedings, we held that the court had in personam jurisdiction

over the property’s owner, and we upheld the forfeiture. Moreover, we perceive

no due process violation in the court’s judgment, as it is indisputable that Mr.

Austin had notice of the proceedings, but evidently declined to participate therein.

      Mr. Austin argues that the judgment violated double jeopardy, and on that

basis is void. We disagree. While we have acknowledged that “[v]iolations of


                                          -6-
other fundamental constitutional rights may give rise to voidness,” V.T.A., Inc.,

597 F.2d at 225 n.11, that is not the case here. Mr. Austin’s argument is based

upon the Supreme Court’s decision in Ursery, in which the court held that civil

forfeitures generally are not punishments for double jeopardy purposes. Mr.

Austin argues that Ursery “clearly indicates that two separate in personam actions

punishing an individual for the same conduct violates the double jeopardy

clause.” Appellant’s Br. at 3.

      Mr. Austin misreads Ursery. Ursery discussed the same civil forfeiture

statute—18 U.S.C. § 981—upon which the government relied in this case in

instituting forfeiture proceedings against Nitsua’s (and Mr. Austin’s) property.

The Court recognized its “traditional understanding that civil forfeiture does not

constitute punishment for the purpose of the Double Jeopardy Clause.” Ursery,

518 U.S. at 287. That understanding was based upon the nature of civil

forfeitures, and the nonpunitive rationale supporting them. See United States v.

Bajakajian, 118 S. Ct. 2028, 2035 (1998) (“Traditional in rem forfeitures were

thus not considered punishment against the individual for an offense.”). 3


      3
        The Supreme Court in dicta in Bajakajian did note that not “all modern
civil in rem forfeitures are nonpunitive and thus beyond the coverage of the
Excessive Fines Clause,” 118 S. Ct. at 2035 n.6. But in the case before us, there
is no indication that the civil in rem forfeiture was anything other than a
nonpunitive forfeiture of, and an in rem proceeding against, property directly
connected to, and obtained in connection with, the crime. Bajakajian, by contrast,
                                                                        (continued...)

                                        -7-
      Mr. Austin appears to argue that, because the forfeiture proceedings against

his property, which began in rem, were determined on appeal to be supported by

in personam jurisdiction against Nitsua, Ursery’s general proposition that civil in

rem forfeitures are not punishment for double jeopardy purposes has no

application. That turn of events does not alter the fundamental nature of the

proceeding against the property which, under Ursery, was neither punitive nor

directed personally against Mr. Austin. 4 We therefore reject his argument that

Ursery compels the grant of Mr. Austin’s Rule 60(b) motion. To the extent

Mr. Austin pursues his excessive fines claim on appeal, we reject that as well.




      3
       (...continued)
involved the question of whether the forfeiture of a large sum of currency, in
connection with the defendant’s conviction for failure to report currency being
taken out of the country, was an excessive fine. There was no evidence that the
currency was connected with or resulted from illegal activity. Other than a casual
reference to the Excessive Fines Clause of the Eighth Amendment in his brief,
Mr. Austin fails to develop any Eighth Amendment argument on appeal, and, in
any event, for the reasons stated above, Bajakajian provides no basis for any
argument on the subject under the facts of this case.
      4
        The government argues that Mr. Austin’s double jeopardy argument must
fail in part because he was not personally involved in the forfeiture proceedings,
and was thus at no jeopardy at all. The government does not, however, dispute
the district court’s finding that Mr. Austin and Nitsua were alter egos, and “one
and the same.” Findings and Order at 3, Appellee’s Add. at 3.

                                        -8-
      For the forgoing reasons, we AFFIRM the district court’s denial of Mr.

Austin’s Rule 60(b) motion.

                                            ENTERED FOR THE COURT



                                            Stephen H. Anderson
                                            Circuit Judge




                                      -9-
