                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        JUL 31 1998
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.                                                No. 97-8040
                                               (D.C. No. 92-CR-0006-01B)
    JOSEPH V. LIBRETTI, JR.,                           (D. Wyo.)

              Defendant,


    DR. JOSEPH V. LIBRETTI, SR.,

              Third Party Claimant-
              Appellant.



                           ORDER AND JUDGMENT          *




Before TACHA and McKAY , Circuit Judges, and       BROWN, ** Senior District
Judge.




*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
       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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Appellant Dr. Joseph V. Libretti, Sr., proceeding pro se, appeals from the

district court’s final order of forfeiture in a criminal case. The order, in part,

addressed his third party claims to certain property pursuant to 21 U.S.C.

§ 853(n). For the following reasons, we dismiss in part on mootness grounds and

affirm in part.

       Pursuant to a plea agreement, defendant Joseph V. Libretti, Jr.,

Dr. Libretti’s son, pleaded guilty to engaging in a continuing criminal enterprise

in violation of 21 U.S.C. § 848 and agreed to forfeit numerous assets. On

December 23, 1992, as part of defendant’s sentence, the district court entered an

order of forfeiture pursuant to 21 U.S.C. § 853. The order listed specific

property to be forfeited, including real estate referred to as the Star Valley

Ranch, various firearms, cash, several bank accounts, a number of cashier’s and

traveler’s checks, and various investments. Defendant appealed from the order of

forfeiture, and this court and the Supreme Court affirmed.     See United States v.

Libretti , 38 F.3d 523 (10th Cir. 1994),   aff’d , 516 U.S. 29 (1995).




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      In January 1993, pursuant to the direction in the December 23, 1992, order

of forfeiture, the government gave direct notice of the forfeiture order to

Dr. Libretti. Dr. Libretti filed third party petitions, prepared by defendant,

making claims with respect to two bank accounts, the Star Valley Ranch, the First

Federal Bank cashier’s checks, and the GNMA and FNMA securities. On

March 26, 1993, the district court held a hearing on third-party claims.

Dr. Libretti did not appear at the hearing. Rather, his wife, Beverly Libretti,

appeared on his behalf. At the hearing, Mrs. Libretti informed the court that

Dr. Libretti’s claims concerned only the two bank accounts and the Star Valley

Ranch. See 13 R. at 41, 44, 58. Later in the hearing, the government asked the

district court to clarify whether Dr. Libretti was making a third party claim to the

GNMA certificates, the cashier’s checks, or other financial instruments. The

court responded that no third party claims had been made to that property at the

hearing, and, therefore, any such claims were waived.    See id. at 112; see also

1 R. Doc. 338 at 12-13; 2 R. Doc. 465 at 1-6.

      On April 2, 1993, the district court amended the December 23, 1992,

forfeiture order by, among other things, granting Dr. Libretti’s third party claims

to the two bank accounts. The court reserved ruling on the Star Valley Ranch

claim and directed the magistrate judge to hold a fact-finding hearing on the

source of funds used to purchase the property. The court denied Dr. Libretti’s


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claims to the cashier’s checks and the GNMA and FNMA securities pursuant to

§ 853(n)(6)(A). Thereafter, Dr. Libretti filed third party claims to various

firearms that were in the possession of the State of Wyoming.

      On May 2, 1997, after defendant’s appeals had been affirmed, the

government filed a motion seeking resolution of the third party claims and entry

of a final order of forfeiture. The government moved to dismiss the forfeiture

action against the Star Valley Ranch and the firearms in possession of the State

of Wyoming, to allow the State to pursue a forfeiture action against the property.

The district court entered a final order of forfeiture on May 5, 1997. In relevant

part, it confirmed the April 2, 1993, order as to the bank accounts, and dismissed

the Star Valley Ranch and the firearms in possession of the State of Wyoming

from the forfeiture action in favor of state forfeiture proceedings. Dr. Libretti

now appeals.

   I. Mootness of claims to Star Valley Ranch, firearms, and two bank accounts

      On appeal, Dr. Libretti raises several arguments regarding the Star Valley

Ranch, the firearms, and the two bank accounts. Specifically, he argues that

(1) his property interests were unconstitutionally taken from him because § 853

permits a criminal defendant to forfeit an innocent third party’s interests in

property as part of a plea agreement; (2) the district court did not engage in

meaningful adversarial testing to determine his interests, because he was


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precluded from participating in the criminal proceedings by § 853(k)(1); (3) he

was entitled to a jury trial to determine whether his property interests were

forfeitable; (4) the evidence was insufficient to prove that the Star Valley Ranch

was forfeitable; (5) the district court erroneously used the civil forfeiture

probable cause standard, rather than the criminal forfeiture preponderance of the

evidence standard, in determining his third party property interests in the April 2,

1993, order; (6) the district court violated his due process rights by failing to

issue subpoenas and by failing to holding a second evidentiary hearing as

promised; (7) the district court denied him due process by failing to allow Mrs.

Libretti to call defendant as a witness at the March hearing, permitted by

§ 853(n)(5); (8) the forfeiture was unconstitutional because the district court was

not confident that the Star Valley Ranch was forfeitable; (9) the government did

not comply with the publication requirements of § 853(n)(1) with respect to the

firearms; and (10) his claims should have been granted because defendant had no

power to forfeit Dr. Libretti’s property interests. The government contends that

these arguments are moot because the final order of forfeiture returned the bank

accounts to Dr. Libretti and dismissed the Star Valley Ranch and relevant

firearms from the forfeiture proceedings.

       We address mootness as a threshold question, because we lack subject

matter jurisdiction over the appeal of a moot issue.   See Golfland Entertainment


                                            -5-
Ctrs., Inc. v. Peak Inv., Inc. (In re BCD Corp.)     , 119 F.3d 852, 856 (10th Cir.

1997). “The constitutional mootness doctrine is grounded in Article III’s

requirement that federal courts only decide ‘actual, ongoing cases or

controversies.’”   Phelps v. Hamilton , 122 F.3d 1309, 1326 (10th Cir. 1997)

(quoting Lewis v. Continental Bank Corp.       , 494 U.S. 472, 477 (1990)). “[A] case

is moot when the issues presented are no longer live or the parties lack a legally

cognizable interest in the outcome.”     Yellow Cab Coop. Ass’n v. Metro Taxi, Inc.

(In re Yellow Cab Coop. Ass’n) , 132 F.3d 591, 594-95 (10th Cir. 1997)

(quotations omitted).

       We conclude the ten arguments listed above are moot. The bank accounts

have been returned to Dr. Libretti, and the Star Valley Ranch property and the

firearms were dismissed from the federal forfeiture proceedings in deference to

state forfeiture proceedings. The government suggests that, if the State of

Wyoming does not forfeit the firearms, the government will later seek forfeiture

of the property.   See 2 R. Doc. 464 at 13. This suggestion is not a sufficient

possible collateral consequence to present an ongoing controversy.        See

McClendon v. City of Albuquerque       , 100 F.3d 863, 867 (10th Cir. 1996)

(requiring party seeking only equitable relief to prove good chance of future

injury to avoid application of mootness doctrine).       Any possibility that the

government will reinstitute forfeiture proceedings is too conjectural and


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speculative to overcome the mootness doctrine.         See Jones v. Temmer , 57 F.3d

921, 923 (10th Cir. 1995).

       Although a federal court may not issue decisions on moot questions,       see

Southern Utah Wilderness Alliance v. Smith         , 110 F.3d 724, 727 (10th Cir. 1997),

“[a]n exception to the mootness doctrine arises in cases which are capable of

repetition, yet evading review[,]”    id. at 729. Dr. Libretti does not argue that this

case falls within the narrow exception to mootness, and we do not believe the

case falls within the exception. In the event the government does bring another

forfeiture action, it would be reviewable at that time.     Accordingly, this portion

of the appeal is dismissed as moot.

    II. Waiver of claims to GNMA and FNMA securities and cashier’s checks

       Most of the remainder of Dr. Libretti’s arguments on appeal concern the

GNMA and FNMA securities and the cashier’s checks. Dr. Libretti argues that

because the government did not comply with the publication requirements of

§ 853(n)(1) he was deprived of GNMA certificate 03082345SF without just

compensation or due process of law. According to Dr. Libretti, the May 5, 1997,

final order of forfeiture improperly forfeited this GNMA certificate without

notice even though it was not listed in the December 23, 1992, order of

forfeiture.




                                             -7-
      The December 23, 1992, order of forfeiture incorrectly listed the GNMA

certificate as number 30296455F. After recognizing the error, the government

moved to correct the certificate number.    See 2 R. Doc. 409 & Attach.

(government’s motion seeking correction of certificate number and supporting

affidavit). The May 5, 1997, final order of forfeiture merely reflected the

correction. Dr. Libretti, nonetheless, maintains the government was required to

publish notice pursuant to § 853(n)(1) of the forfeiture of this property after the

May 5, 1997, order was entered. Its failure to do so, submits Dr. Libretti,

precluded him from having an opportunity to petition for a hearing on his third

party claims to the property. Dr. Libretti admits, however, that he did file a third

party claim regarding GNMA certificate 03082345SF.       See Appellant’s Opening

Br. at 17.

      We conclude Dr. Libretti’s notification argument is without merit. The

government did comply with the notice requirements at the appropriate time. The

May 5, 1997, final order of forfeiture merely corrected the incorrect certificate

number indicated in the December 23, 1997 order.

      Dr. Libretti argues the evidence was insufficient to prove that the GNMA

and FNMA securities and the cashier’s checks were subject to forfeiture. He also

makes many of the same arguments about these items of property that he made

about the Star Valley Ranch, the firearms, and the two bank accounts.


                                           -8-
Dr. Libretti, however, failed to assert any third party claims to the GNMA and

FNMA securities and the cashier’s checks at the March 26, 1993 hearing.

Rather, Ms. Libretti waived any claim to this property at the hearing. Due to the

waiver, we conclude the district court properly denied any claims to this property.

     III. Proper dismissal of Star Valley Ranch in favor of state proceedings

      Finally, Dr. Libretti argues the district court should have dismissed the

forfeiture of the Star Valley Ranch without qualification, rather than dismissing

the forfeiture in favor of state proceedings. This conclusory argument is without

merit. The government properly requested the district court to dismiss the

forfeiture proceedings in favor of the State of Wyoming’s own forfeiture

proceedings. See 2 R. Doc. 464, Ex. 1. Thus, we conclude the district court’s

dismissal was proper.

      The appeal is DISMISSED in part as moot, and the judgment of the United

States District Court for the District of Wyoming is AFFIRMED in part. The

mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge



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