          Case: 14-11563    Date Filed: 12/23/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-11563
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:08-cv-00026-WKW-TFM

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,


                                  versus


SIX THOUSAND SIX HUNDRED SEVENTY SIX ($6,676)
DOLLARS IN UNITED STATES CURRENCY, et al.,


                                                                    Defendants,


RICHARD LAVON DURR,


                                                           Claimant-Appellant.

                     ________________________

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

                           (December 23, 2014)
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Before JORDAN, JILL PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Richard Durr appeals the district court’s denial of his Fed. R. Civ. P. (Rule)

60(b)(4) motion to set aside a civil forfeiture judgment. Durr argues that the

district court’s order of forfeiture was void as a matter of law because possession

of the defendant res—a total of $89,312 in United States currency—by the Dale

County and Houston County Circuit Courts prevented a federal court from

acquiring or exercising jurisdiction. After a thorough review, we affirm.

                                           I.

      In April 2007, law enforcement officers from the Houston County Sheriff’s

Office initiated surveillance of a storage unit in Dothan, Alabama after receiving a

tip from a confidential informant about suspected illegal drug activity. Officers

approached Durr after observing him wrap up an object and place it in a cardboard

box inside the storage unit. Officers were able to seize $6,676 in United States

currency directly from Durr. They also found a handgun and marijuana inside his

vehicle. After obtaining a search warrant, officers seized an additional $39,890 in

United States currency from the storage unit. Officers later confirmed that Durr

paid the rental fee on the storage unit.

      In July 2007, following a tip from a confidential informant, officers from the

Alabama Bureau of Investigation in Dale County executed a search warrant at a


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residence in Dothan, Alabama and seized a total of $2,696 in United States

currency, 25 pounds of marijuana, and a key for a Wachovia Bank safe deposit

box. A search of the safe deposit box yielded an additional $40,050 in United

States currency.

      In January 2008, the United States filed a civil forfeiture action under 21

U.S.C. § 881(a)(6), seeking the forfeiture of the $6,676 and $39,890 found during

the raid of the storage unit, as well as the $2,696 and $40,050 found in the

residence and safe deposit box, as proceeds of illegal drug activity. According to

the civil forfeiture complaint, the government had probable cause to believe that

the currency seized was “furnished, or intended to be furnished, in exchange for

controlled substances, or represents proceeds of trafficking in controlled

substances or was used or intended to be used to facilitate violations of 21 U.S.C.

§§ 801 et seq.”

      In March 2008, Durr filed a verified claim to the defendant property. But

shortly thereafter he consented to forfeiture as part of a negotiated plea agreement

on a state drug charge. The district court granted the United States’ motion for

consent judgment and ordered forfeiture of the defendant res to the United States

under § 881(a)(6), finding that (1) Durr had consented to forfeiture, (2) there were

no other potential claimants to the defendant currency, and (3) the time for

asserting any such interest had expired.


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       In November 2013, Durr 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 court found that because no action related to

the res had been instituted in a state circuit court in either Dale County or Houston

County, no bar existed to the exercise of jurisdiction in federal court. Referring to

the doctrine of “adoptive forfeiture” 1—under which a federal court can adopt a

state or local seizure and subsequently deem the property to have been seized by

the federal government—the district court explained that only one court may have

in rem jurisdiction over a res, “and the first court to acquire jurisdiction maintains

it to the exclusion of other courts.” In this case, the state courts had made no

attempt to assert in rem jurisdiction. Moreover, jurisdiction did not automatically

vest in the state courts immediately upon seizure by state authorities. The instant

appeal followed.

                                               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.


1
  See 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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Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (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. (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 Techs., Inc., 425 F.3d 1294, 1306 (11th Cir.

2005) (citation omitted). 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 jurisdiction.” United Student Aid

Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (citation omitted).

      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.




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      Durr contends that “complete jurisdiction” over the defendant res attached

first in the Dale County and Houston County Circuit Courts, thus barring

subsequent jurisdiction within the federal court. 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

government’s argument—the filing of a separate, third-party forfeiture complaint

was not necessary to confer exclusive jurisdiction over the property. He maintains

that the subsequent action in federal court did not divest the state court’s

jurisdiction over the defendant res.

      In this case, we 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 Durr’s express consent to the forfeiture of the

defendant res to the United States. Additionally, as explained by the district court,

the notion that the federal government may adopt property seized pursuant to state


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process and give to it the 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 Durr 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 courts, we have no basis to hold

that the forfeiture judgment is void. Durr therefore is not entitled to relief, and we

affirm the district court’s denial of Durr’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.”).
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