* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 31 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOSEPH V. LIBRETTI, JR.,

Defendant,

DR. JOSEPH V. LIBRETTI, SR.,

Third Party ClaimantAppellant. No. 97-8040 (D.C. No. 92-CR-0006-01B)

(D. Wyo.)

ORDER AND JUDGMENT *

Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Appellant Dr. Joseph V. Libretti, Sr., proceeding p ro se, appeals from the district court’s final order of forfeiture in a cri minal 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 inpart on mootness grounds and affirm in part. Pursuant to a plea agreement, defendant Joseph V. L ibretti, Jr., Dr. Libretti’s son, pleaded guilty to engaging in acontinuing criminal enterprise in violation of 21 U.S.C. § 848 and agreed to forfe it 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. T he order listed specific property to be forfeited, including real estate ref erred to as the Star Valley Ranch, various firearms, cash, several bank account s, a number of cashier’s and traveler’s checks, and various investments. Defend ant 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).-3-

In January 1993, pursuant to the direction in the D ecember 23, 1992, order of forfeiture, the government gave direct notice of the forfeiture order to Dr. Libretti. Dr. Libretti filed third party petit ions, prepared by defendant, making claims with respect to two bank accounts, th e 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 o n third-party claims. Dr. Libretti did not appear at the hearing. Rather , his wife, Beverly Libretti, appeared on his behalf. At the hearing, Mrs. Libre tti informed the court that Dr. Libretti’s claims concerned only the two bank a ccounts and the Star Valley Ranch. See 13 R. at 41, 44, 58. Later in the hearing, the go vernment 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 f inancial 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 De cember 23, 1992, forfeiture order by, among other things, granting D r. Libretti’s third party claims to the two bank accounts. The court reserved rulin g on the Star Valley Ranch claim and directed the magistrate judge to hold a f act-finding hearing on the source of funds used to purchase the property. The court denied Dr. Libretti’s-4-

claims to the cashier’s checks and the GNMA and FNMA securities pursuant to § 853(n)(6)(A). Thereafter, Dr. Libretti filed thi rd party claims to various firearms that were in the possession of the State o f 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 mov ed 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 forfeitu re 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 possessio n of the State of Wyoming from the forfeiture action in favor of state forfei ture 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 re garding the Star Valley Ranch, the firearms, and the two bank accounts. Sp ecifically, he argues that (1) his property interests were unconstitutionally taken from him because § 853 permits a criminal defendant to forfeit an innocentthird party’s interests in property as part of a plea agreement; (2) the distr ict court did not engage in meaningful adversarial testing to determine his int erests, because he was-5-

precluded from participating in the criminal procee dings by § 853(k)(1); (3) he was entitled to a jury trial to determine whether h is property interests were forfeitable; (4) the evidence was insufficient to p rove that the Star Valley Ranch was forfeitable; (5) the district court erroneouslyused the civil forfeiture probable cause standard, rather than the criminal f orfeiture preponderance of the evidence standard, in determining his third party p roperty interests in the April 2, 1993, order; (6) the district court violated his du e 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 pro cess by failing to allow Mrs. Libretti to call defendant as a witness at the Marc h hearing, permitted by § 853(n)(5); (8) the forfeiture was unconstitutiona l because the district court was not confident that the Star Valley Ranch was forfei table; (9) the government did not comply with the publication requirements of § 8 53(n)(1) with respect to the firearms; and (10) his claims should have been gran ted 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 Val ley Ranch and relevant firearms from the forfeiture proceedings. We address mootness as a threshold question, becaus e we lack subject matter jurisdiction over the appeal of a moot issue. See Golfland Entertainment-6-

Ctrs., Inc. v. Peak Inv., Inc. (In re BCD Corp.) , 119 F.3d 852, 856 (10th Cir. 1997). “The constitutional mootness doctrine is gr ounded 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 liv e 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 Va lley Ranch property and the firearms were dismissed from the federal forfeiture proceedings in deference to state forfeiture proceedings. The government sugge sts that, if the State of Wyoming does not forfeit the firearms, the governme nt will later seek forfeiture of the property. See 2 R. Doc. 464 at 13. This suggestion is not a suf ficient 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 p rove good chance of future injury to avoid application of mootness doctrine). Any possibility that the government will reinstitute forfeiture proceedings is too conjectural and-7-

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 o n appeal concern the GNMA and FNMA securities and the cashier’s checks. Dr. Libretti argues that because the government did not comply with the publ ication requirements of § 853(n)(1) he was deprived of GNMA certificate 030 82345SF without just compensation or due process of law. According to D r. Libretti, the May 5, 1997, final order of forfeiture improperly forfeited this GNMA certificate without notice even though it was not listed in the Decembe r 23, 1992, order of forfeiture.-8-

The December 23, 1992, order of forfeiture incorrec tly 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 certific ate number and supporting affidavit). The May 5, 1997, final order of forfei ture merely reflected the correction. Dr. Libretti, nonetheless, maintains the government was required to publish notice pursuant to § 853(n)(1) of the forfe iture 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 petitio n 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 corre cted the incorrect certificate number indicated in the December 23, 1997 order. Dr. Libretti argues the evidence was insufficient t o prove that the GNMA and FNMA securities and the cashier’s checks were s ubject 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.-9-

Dr. Libretti, however, failed to assert any third p arty claims to the GNMA and FNMA securities and the cashier’s checks at the Mar ch 26, 1993 hearing. Rather, Ms. Libretti waived any claim to this prope rty at the hearing. Due to the waiver, we conclude the district court properly den ied any claims to this property. III. Proper dismissal of Star Valley Ranch in favo r of state proceedings Finally, Dr. Libretti argues the district court sho uld have dismissed the forfeiture of the Star Valley Ranch without qualifi cation, rather than dismissing the forfeiture in favor of state proceedings. This conclusory argument is without merit. The government properly requested the distr ict court to dismiss the forfeiture proceedings in favor of the State of Wyo ming’s own forfeiture proceedings. See 2 R. Doc. 464, Ex. 1. Thus, we conclude the distr ict court’s dismissal was proper. The appeal is DISMISSED in part as moot, and the ju dgment of the United States District Court for the District of Wyoming i s AFFIRMED in part. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge