                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1679
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Robbin Croskey

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                         Submitted: September 25, 2015
                           Filed: September 30, 2015
                                 [Unpublished]
                                 ____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

       The government charged Robbin Croskey with conspiring to commit drug-
trafficking and money-laundering offenses. Hung juries following her July 2012 and
December 2013 trials resulted in mistrials. In January 2014, the district court1
granted the government’s motion to dismiss the charges against Croskey without
prejudice. Croskey filed a pro se motion for return of property under Federal Rule
of Criminal Procedure 41(g), which the government opposed in part, arguing that the
items had been properly forfeited in administrative forfeiture actions. The district
court denied the motion as to the items the government contested, stating that
Croskey had “received proper notice of both the seizures themselves and the
administrative forfeiture action.” Croskey appealed, and this court ordered briefing
on whether the government’s notice of administrative forfeiture of two vehicles—a
Dodge Challenger and a Chevrolet Tahoe—complied with due process. The parties
filed briefs, and the government has filed a motion under Federal Rule of Appellate
Procedure 10(e) to supplement the record, which Croskey opposes. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

       Although the proper avenue for Croskey to challenge the forfeiture was a
motion to set aside, see 18 U.S.C. § 983(e)(1), (5) (motion to set aside nonjudicial
forfeiture shall be exclusive remedy for seeking to set aside declaration of forfeiture),
the district court properly gave liberal construction to Croskey’s Rule 41(g) motion
as challenging the adequacy of the government’s notice, see United States v. Woodall,
12 F.3d 791, 793-94 & n.1 (8th Cir. 1993) (liberally construing Rule 41 motion as
collateral attack on adequacy of notice of administrative forfeiture), overruled on
other grounds by Dusenbery v. United States, 534 U.S. 161, 166-67 & n.3, 170
(2002). In a motion to set aside, Croskey may challenge whether the Drug
Enforcement Agency (DEA) provided adequate notice of the administrative
forfeitures, but cannot challenge the merits of the administrative forfeiture actions.
See Lobzun v. United States, 422 F.3d 503, 507 (7th Cir. 2005) (federal courts have
jurisdiction to review whether notice provided in administrative forfeiture action


      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.

                                          -2-
afforded claimant constitutional due process, and if notice failed to comport with due
process, forfeiture action is void); Valderrama v. United States, 417 F.3d 1189, 1196
(11th Cir. 2005) (court lacked jurisdiction to review merits of administrative or
nonjudicial forfeiture, and instead review was limited to determining whether agency
followed proper procedural safeguards).

       The government’s motion to supplement the record is granted. Croskey’s
pleading error in the district court prevented the government from submitting
evidence regarding the Tahoe. See Ortiz v. United States, 664 F.3d 1151, 1164-65
(8th Cir. 2011) (acknowledging narrow interest-of-justice exception to general rule
that appellate court cannot consider evidence that was not contained in record below);
Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63-64 (8th Cir. 1993)
(considering new evidence submitted on appeal, where appellee’s
misrepresentation—willful or otherwise—left district court with incomplete factual
record, and failure to submit evidence to district court was not due to lack of
diligence by appellant).

       This court reviews de novo the district court’s conclusion that Croskey
received “proper notice,” see Lobzun, 422 F.3d at 507 (de novo review of whether
DEA’s notice procedures complied with due process), and concludes that the
government submitted sufficient evidence to show that it took reasonable steps to
notify Croskey of the forfeitures, see 18 U.S.C. § 983(e)(1)(B) (providing that motion
to set aside forfeiture shall be granted if, inter alia, “the moving party did not know
or have reason to know of the seizure within sufficient time to file a timely claim”);
Dusenbery, 534 U.S. at 168-73 (due process clause requires government’s notice
efforts be reasonably calculated under all circumstances to apprise interested parties
of pendency of administrative forfeiture action; actual notice is not required). The
government sent notice of the forfeiture of the watches and the Tahoe to Chet Pleban
(based on Croskey’s statement at her initial appearance that she would retain Pleban
as counsel, although Pleban only entered an appearance on behalf of Croskey’s co-

                                         -3-
defendant Kevin White), to White’s residence (for which it appears Croskey signed),
and to Croskey’s home and business addresses in Atlanta before her arrest. The
government also published notice in the Wall Street Journal of its intended forfeiture
of the Tahoe. As to the Challenger, the government sent notices to Croskey’s
business address before and after her arrest. During her first trial, when asked why
she did not file a claim for the Challenger, Croskey did not dispute notice of the
forfeiture proceedings but instead stated: “I went to Chet Pleban and gave him all the
paperwork.” The notice was sufficient.

      The judgment is affirmed.
                     ______________________________




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