          United States Court of Appeals
                    For the First Circuit


No. 00-1554

                  UNITED STATES OF AMERICA,
                     Plaintiff, Appellee,

                              v.

               ONE RURAL LOT NO. 10,356, ETC.,
                          Defendant.
                     ____________________

      NITZA M. LAFUENTE-RIVERA AND GREGORIO ROSA-MEDINA,
                    Claimants, Appellants.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                            Before

                     Selya, Circuit Judge,

         Coffin and Campbell, Senior Circuit Judges.


     Luis Rafael Rivera on brief for appellants.
     Guillermo Gil, United States Attorney, Miguel A. Fernandez
and Isabel Muñoz-Acosta, Assistant United States Attorneys, on
brief for appellee.




                       January 26, 2001
            Per Curiam.     On September 5, 1997, the United States

commenced a forfeiture action in the United States District

Court    for   the    District   of   Puerto   Rico.    In   its    verified

complaint,     the    government   described    a   particular     parcel   of

improved land (Rural Lot No. 10,356) in Islote Ward, Arecibo,

Puerto Rico (the Property), alleged that the Property had been

used to facilitate the distribution of narcotics in violation of

21 U.S.C. § 856(a),1 and claimed that the Property therefore was

forfeitable under 21 U.S.C. § 881(a)(7).             The claimants, Nitza

LaFuente-Rivera and Gregorio Rosa-Medina, opposed the petition

for forfeiture (denying that the Property had been used to

facilitate     drug     trafficking,    notwithstanding      Rosa-Medina's

conviction for federal narcotics offenses) and timely filed a

claim.




    1   This statute renders it unlawful to —

         (1) knowingly open or maintain any place for the
    purpose of manufacturing, distributing, or using any
    controlled substance;
         (2) manage or control any building, room, or
    enclosure, either as an owner, lessee, agent,
    employee,    or   mortgagee,    and   knowingly    and
    intentionally rent, lease, or make available for use,
    with or without compensation, the building, room, or
    enclosure for the purpose of unlawfully manufacturing,
    storing,   distributing,   or   using   a   controlled
    substance.

21 U.S.C. § 856(a).

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            In due course, the United States moved for summary

judgment.     The claimants filed an objection.                  Ruling on the

papers, the district court granted summary judgment in the

government's favor on February 24, 1999.                   Rosa-Medina did not

appeal from the final order of forfeiture.                     LaFuente-Rivera

initially    filed    a    notice     of    appeal,   but    failed     to   follow

through; we subsequently dismissed her appeal (No. 99-1512) for

want of prosecution.

            On July 13, 1999, the claimants moved for relief from

judgment.    See Fed. R. Civ. P. 60(b).             The district court denied

their request.       This appeal followed.

            We need not tarry.         On appeal, the claimants argue only

that the lower court should have set aside the judgment of

forfeiture    under       Federal    Rule     of   Civil    Procedure    60(b)(4)

(authorizing the district court to relieve a party from a final

judgment if "the judgment is void").                   At the core of their

argument is the contention that the district court's judgment is

void because the government, in its complaint for forfeiture,

identified    the     "wrong"       parcel    of   real     estate    (and    that,

therefore, the district court should have granted their motion

to set aside that judgment).

            In support of this contention, the claimants make a

plausible    showing      that   the    criminal      activity   of     which   the


                                        -4-
government complains occurred not on the Property, but on an

adjacent parcel of real estate (owned by Rosa-Medina's sister).

We reluctantly conclude, however, that this showing comes too

late.   "A motion for relief from judgment cannot be used merely

to reargue a point already decided."         Barrett v. Lombardi, ___

F.3d ___, ___ (1st Cir. 2001) [Nos. 00-1834, 00-1835, slip op.

at 10].     By the same token, such a motion cannot serve as a

surrogate for a direct appeal.       Cotto v. United States, 993 F.2d

274, 278 (1st Cir. 1993).          Against this well-defined legal

backdrop, courts routinely have held parties to the predictable

consequences     of   allowing   adverse   parties   to   configure   the

record.     E.g., Kelly v. United States, 924 F.2d 355, 358 (1st

Cir. 1991).

            This tendency has been particularly pronounced in cases

involving Rule 60(b)(4).         In application, that rule has been

confined to a narrow class of cases.         "A judgment is void, and

therefore subject to relief under Rule 60(b)(4), only if the

court     that   rendered   judgment     lacked   jurisdiction   or   in

circumstances in which the court's action amounts to a plain

usurpation of power constituting a violation of due process."

United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st

Cir. 1990) (emphasis omitted).         This extreme condition does not

obtain here:     the United States duly commenced the forfeiture


                                   -5-
action, the district court plainly had jurisdiction over it,

service was properly effected, and the government proffered a

prima   facie   showing   of   probable   cause   to   believe   that   the

Property was subject to forfeiture.          See United States v. 15

Bosworth St., ___ F.3d ___, ___ (1st Cir. 2001) [No. 00-1215,

slip op. at 8].     The claimants' opposition to the motion for

summary judgment raised the misidentification question, but

failed to persuade.       The claimants have offered no convincing

reason why they should be allowed to raise the point anew.

           In our view, the key to this appeal is that the

identity of the parcel to which the probable cause showing

pertained was not jurisdictional but, rather, merely an element

of the government's case.       Consequently, the district court had

power to rule on the government's complaint and declare the

Property   forfeit.        Even   taking    the    claimants'     current

allegations as true (for argument's sake), the most that can be

said is that the district court erred in granting the summary

judgment motion.    This is clearly not enough:          an error in the

exercise of jurisdiction is simply not the same thing as a total

lack of jurisdiction — and only the latter demands judicial

intervention under Rule 60(b)(4).           See id. at 661-62.          Put

bluntly, a judgment is not void simply because it is or may have

                                   -6-
been erroneous; it is void only if, from its inception, it was

a legal nullity.        Id. at 661.

             We need go no further.             The only issue cognizable on

this appeal is the propriety vel non of the district court's

denial of the motion for relief from judgment.                       See Hoult v.

Hoult, 57 F.3d 1, 3 (1st Cir. 1995) (confirming that, on an

appeal from a denial of a Rule 60(b) motion, the court of

appeals      "may    not       consider   the     merits    of   the    underlying

judgment").         On that issue we hold, without serious question,

that the district court did not err in refusing to grant the

requested relief.          Although we are not without some sympathy for

the claimants' position, the initial judgment was not a nullity.

The   real    problem      —    if   there   is   one   —   arises     out   of   the

claimants' failure diligently to pursue a direct appeal from the

summary judgment order.               In this sense, then, they are the

authors of their own misfortune.



Affirmed.




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