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Third party’s failure to timely petition for adjudication of interest in forfeited property forecloses any opportunity for relief.

In this appeal Juanita Davenport challenged a final order of criminal forfeiture of $214,980 seized from a safety deposit box. In U.S. v. Davenport, the defendant and her codefendants were charged in the indictment with participating in a drug conspiracy. In addition, Davenport was charged with making a false statement to a federal agent. The indictment also sought to forfeit all the defendants’ interest in any property derived from or used to facilitate the commission of the drug conspiracy. The Davenport pled to the false statement charge and the government dismissed the forfeiture count against her.

One codefendant in her case pled guilty to drug distribution and agreed to forfeit his interest in the $214,000 of U.S. currency found in Davenport’s safe deposit box. A preliminary order of forfeiture was entered pursuant to Rule 32.2(b) and the government filed a notice of intent to dispose of the property, giving persons with interest 30 days to petition the court to adjudicate their potential interest in the property. A written notice of the forfeiture went to Davenport’s attorney advising him his client had 30 days from the written notice to file a petition of 60 days from the first day of the government’s publication of the notice on its website. After the 30 day period ran out, Davenport’s attorney petitioned the district court to adjudicate her interest in the forfeited currency. The district court dismisses the claim as untimely.

First, the 11th Circuit held that Davenport lacked standing to challenge the validity of the preliminary order of forfeiture. Her sole mechanism for vindicating her purported interest in the forfeited property was through the ancillary proceedings of 18 U.S.C. section 853 and Rule 32.2(c). Third parties may not relitigate the merits of a forfeitability determination.

The 11th Circuit upheld the district court’s dismissal of her petition as untimely. The written notice of forfeiture sent to Davenport’s attorney was adequate, thereby triggering the mandatory 30 day period for filing third-party petitions, rendering Davenport’s petition untimely. Prior to the notice of forfeiture was sent out, Davenport’s attorney filed an administrative claim for the funds seized in the safe deposit box. The fact that her attorney had filed an administrative claim did not exempt her from complying with the criminal forfeiture statute.

Davenport also argued that her excusable neglect application for relief under Rule 60(b)(1) should have been granted because her attorney believed the government’s published notice of forfeiture superseded a prior written notice he received. The deadline in the published notice was later than the written notice the attorney received.

Since the government’s notice of forfeiture and the existing law were sufficient to alert Davenport’s attorney of the applicable deadline for filing a third party petition, his misinterpretation of the deadline for filing the petition on Davenport’s behalf does not constitute excusable neglect to warrant relief under Rule 60(b)(1). The attorney’s failure to review or fully appreciate the law governing adequate notice cannot qualify as excusable neglect.

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