United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted November 10, 2010 Decided March 25, 2011 

No. 10-5061 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

8 GILCREASE LANE, QUINCY, FLORIDA 32351, ET AL., 

APPELLEES

ADSURFDAILY, INC., ET AL., 

APPELLANTS

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:08-cv-01345) 

Charles A. Murray was on the briefs for appellants. 

Ronald C. Machen Jr., U.S. Attorney, and R. Craig 

Lawrence, Stephanie Lauren Brooker, and Barry Wiegand, 

Assistant U.S. Attorneys, were on the brief for appellee. 

Before: HENDERSON, TATEL, and GRIFFITH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge GRIFFITH. 
2 

GRIFFITH, Circuit Judge: After appellants withdrew their 

claims in this civil forfeiture action, the district court entered 

a default judgment and final order of forfeiture. Appellants 

now ask us to reverse. For the reasons set forth below, we 

reject their arguments and affirm the judgment of the district 

court. 

I 

Appellant AdSurfDaily, Inc., is an internet marketing 

company incorporated and controlled by appellant Thomas 

Bowdoin, Jr. On August 1, 2008, federal agents seized 

approximately $80 million of the company’s bank account 

funds as part of an investigation of the company for wire 

fraud and money laundering. Five days later, the government 

filed a complaint for forfeiture in rem against the funds and 

two pieces of real property that had been purchased with 

AdSurfDaily money, invoking 18 U.S.C. § 981(a)(1)(C), 

which authorizes civil forfeiture of proceeds traceable to wire 

fraud, and 18 U.S.C. § 981(a)(1)(A), which permits forfeiture 

of property involved in a money laundering scheme. 

Bowdoin, AdSurfDaily, and appellant Bowdoin/Harris 

Enterprises, Inc., filed verified claims to the properties.1

 On 

 

1

 Rule C(6) of the Supplemental Rules for Admiralty or Maritime 

Claims and Asset Forfeiture Actions requires a claimant in a 

forfeiture proceeding to file a “verified statement of right or 

interest” in the property at stake within fourteen days of execution 

of process or within the time the court allows. This statement is 

known as a “verified claim” and “is essential to confer[ring] 

statutory standing upon a claimant in a forfeiture action.” United 

States v. $125,938.62, 370 F.3d 1325, 1328 (11th Cir. 2004) (per 

curiam) (alteration in original) (quoting United States v. 

$175,918.00 in U.S. Currency, 755 F. Supp. 630, 632 (S.D.N.Y. 

1991)) (internal quotation marks omitted). Appellants filed claims 
3 

August 18, 2008, AdSurfDaily moved for dismissal of the 

forfeiture action and return of the seized funds. The district 

court held an evidentiary hearing and on November 19, 2008, 

denied the motion on the grounds that the government had 

properly filed its complaint and AdSurfDaily was not entitled 

to pretrial release of its assets. United States v. 8 Gilcrease 

Ln., Quincy, Fla. 32351 (8 Gilcrease Ln. I), 587 F. Supp. 2d 

133, 139-40, 146 (D.D.C. 2008). AdSurfDaily did not appeal 

this ruling. 

On January 13, 2009, appellants through counsel moved 

for leave to withdraw their claims, stating that they 

“consent[ed] to the forfeiture of the properties.” Mot. for 

Leave to Withdraw Claims, Release of Claims to Seized 

Property, and Consent to Forfeiture 2 [hereinafter Withdrawal 

Mot.]. The district court granted their motion. But appellants 

soon reversed course and, beginning on February 27, 2009, 

filed a series of pro se motions to rescind the withdrawal of 

their claims. Appellants subsequently hired new counsel, 

withdrew their pro se motions, and on September 14, 2009, 

filed a Rule 60(b) motion to reinstate their claims. Bowdoin 

submitted an affidavit in support alleging that the prosecutor 

and his lawyer had “hoodwinked” him into believing that if 

he withdrew his claims he would receive a decreased prison 

sentence or no sentence at all. 

The district court denied appellants’ motion on 

November 10, 2009, concluding that they had released their 

claims knowingly and voluntarily and that Bowdoin had done 

so on no more than a hope that his sentence would be 

decreased. United States v. 8 Gilcrease Ln., Quincy, Fla. 

32351 (8 Gilcrease Ln. II), 668 F. Supp. 2d 128, 132 (D.D.C. 

 

to the real property and to approximately $66 million of the $80 

million the government had seized. 
4 

2009). The court also determined that appellants had, in fact, 

received sound advice from counsel to release their claims, 

given that the government’s case “appear[ed] to be strong.” 

Id. at 131. 

The government then moved for a default judgment and 

final order of forfeiture on the ground that no claimants 

contesting forfeiture remained in the case. On November 20, 

2009, the district court directed all potential claimants to 

show cause why the court should not grant the government’s 

motion. Neither appellants nor any other potential claimants 

responded, and the court entered a default judgment and final 

order of forfeiture on January 4, 2010. 

Appellants then filed another Rule 60(b) motion, asking 

the district court to vacate the order refusing to reinstate their 

claims, the order to show cause, and the default judgment and 

final order of forfeiture. The court denied the motion on 

February 22, 2010, and appellants now seek relief from us. 

We have jurisdiction to consider their appeal under 28 U.S.C. 

§ 1291. 

II 

Appellants assert that the district court violated their due 

process rights in two ways. First, the court failed to stay the 

forfeiture action pending the outcome in the parallel criminal 

proceeding. Appellants claim a stay was constitutionally 

required because the allegations in the criminal proceeding 

were filed under seal with portions redacted, making it 

difficult or impossible to contest the government’s grounds 

for forfeiture until the criminal proceeding was completed and 

the materials unsealed.2 Second, appellants argue that by 

 

2

 According to appellants, “where the basis for a civil forfeiture 

rests upon sealed allegations in a parallel criminal proceeding, the 
5 

refusing to reinstate their withdrawn claims, the court denied 

them the opportunity to challenge the forfeiture on the merits. 

Neither argument has merit. Regarding the stay, 

appellants never asked for one, and we are aware of no 

authority for the proposition that a court has a duty to stay a 

civil forfeiture proceeding on its own initiative pending the 

outcome of a parallel criminal action. Appellants cite no 

authority for this proposition, and to our knowledge the only 

other circuit to consider the issue reached the opposite 

conclusion. See United States v. Certain Real Prop. 566 

Hendrickson Blvd., Clawson, Oakland Cnty., Mich., 986 F.2d 

990, 996 (6th Cir. 1993). Additionally, we have previously 

stated that “[t]he Constitution . . . does not ordinarily require

a stay of civil proceedings pending the outcome of criminal 

proceedings.” SEC v. Dresser Indus., Inc., 628 F.2d 1368, 

1375 (D.C. Cir. 1980) (en banc) (emphasis added). 

Nor does due process require the government to provide 

a person the opportunity to challenge the seizure of property 

he has voluntarily forfeited. Ordinarily, “a citizen has a right 

to a hearing to contest the forfeiture of his property, a right 

secured by the Due Process Clause.” Degen v. United States, 

517 U.S. 820, 822 (1996). The purpose of this right “is to 

protect [the] use and possession of property from arbitrary 

encroachment—to minimize substantively unfair or mistaken 

deprivations of property.” Fuentes v. Shevin, 407 U.S. 67, 81 

(1972). When a person has voluntarily relinquished his claim 

to property, however, these concerns disappear. We have 

 

due process rights of the defendant-claimant[] are properly 

protected where the civil forfeiture action is stayed pending 

outcome of the criminal trial, after which[] the sealed information 

may be unsealed in the civil [action] to afford the [c]laimant[] 

opportunity to meaningfully defend on the merits.” Appellants’ Br. 

13 (emphasis omitted). 
6 

previously said that “[a]bsent an underlying property or 

liberty interest, . . . one has no entitlement to procedural due 

process and hence no ‘right to be heard.’” Sargeant v. Dixon, 

130 F.3d 1067, 1070 (D.C. Cir. 1997); see also MercadoAlicea v. P.R. Tourism Co., 396 F.3d 46, 53 (1st Cir. 2005) 

(“[Appellant] voluntarily gave up his property interest . . . and 

does not have a due process right to a hearing.”). By 

voluntarily releasing their claims to the properties, appellants 

relinquished their right to an adversarial hearing to contest the 

grounds for forfeiture. It goes without saying, of course, that 

had the district court granted appellants’ Rule 60(b) motion to 

reinstate their withdrawn claims, they would have been 

entitled to an adversarial hearing before being deprived of the 

properties. 

Neither of the cases appellants cite for the proposition 

that they were entitled to an adversarial hearing is on point. 

United States v. James Daniel Good Real Property, 510 U.S. 

43 (1993), held that absent “exigent circumstances,” due 

process requires the government to provide “notice and a 

meaningful opportunity to be heard before seizing real 

property subject to civil forfeiture.” Id. at 62. Here, although 

the government seized the bank account funds prior to 

appellants’ withdrawal of claims, there is no indication that it 

seized the real property at issue prior to appellants’ 

withdrawal. United States v. Property Identified as Lot 

Numbered 718, 20 F. Supp. 2d 27 (D.D.C. 1998), is similarly 

distinguishable. See id. at 35-38 (finding due process 

violation where government seized claimant’s home without 

an adversarial hearing). In any event, in neither James Daniel 

Good nor Lot Numbered 718 did the claimant relinquish 

claim to the property, voluntarily or otherwise. 

We turn next to the district court’s denial of appellants’ 

first Rule 60(b) motion, which sought to reinstate their 
7 

previously withdrawn claims to the properties. We review the 

district court’s decision for abuse of discretion. See Smalls v. 

United States, 471 F.3d 186, 191 (D.C. Cir. 2006). Federal 

Rule of Civil Procedure 60(b) provides that “[o]n motion and 

just terms, the court may relieve a party or its legal 

representative from a final judgment, order, or proceeding 

for,” inter alia, “mistake, inadvertence, surprise, or excusable 

neglect,” Fed. R. Civ. P. 60(b)(1); “fraud . . . , 

misrepresentation, or misconduct by an opposing party,” id.

60(b)(3); or “any other reason that justifies relief,” id.

60(b)(6). Appellants contend that the district court should 

have reinstated their withdrawn claims to the properties 

because Bowdoin acted on his attorney’s negligent advice that 

he could “wholly” avoid jail time by relinquishing his claims. 

Appellants’ Br. 16. 

Neither side cites, and we are unable to find, any circuit 

court precedent setting forth principles for assessing whether 

a district court abused its discretion in denying a Rule 60(b) 

motion to rescind a withdrawal of claims in a civil forfeiture 

action. Casting our net a bit wider, we take counsel from the 

Supreme Court’s instruction that Rule 60(b) is not an avenue 

for relieving litigants from “free, calculated, deliberate 

choices.” Ackermann v. United States, 340 U.S. 193, 198 

(1950). This teaching has guided much of our Rule 60(b) case 

law, see, e.g., In re Sealed Case (Bowles), 624 F.3d 482, 489 

n.4 (D.C. Cir. 2010) (stating that appellant could not “use 

Rule 60(b) to avoid its strategic choice” to file a rushed, 

poorly drafted request for judicial notice before the court 

ruled on other pending motions); Kramer v. Gates, 481 F.3d 

788, 792 (D.C. Cir. 2007) (vacating grant of Rule 60(b) 

motion deeming plaintiffs “employees” under the Back Pay 

Act, because plaintiffs’ failure to request retroactive 

employee status “was clearly a litigation choice”), and we 

have emphasized several times that “Rule 60(b) cannot . . . be 
8 

employed simply to rescue a litigant from strategic choices 

that later turn out to be improvident.” Good Luck Nursing 

Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); 

accord Kramer, 481 F.3d at 792; Smalls, 471 F.3d at 191; S. 

Pac. Commc’ns Co. v. AT&T, 740 F.2d 1011, 1019 (D.C. Cir. 

1984). Applying the Supreme Court’s instruction to the case 

before us, we hold that a district court does not abuse its 

discretion in denying a Rule 60(b) motion to reinstate 

withdrawn claims when the withdrawal was the product of a 

free, deliberate choice. We further find that appellants’ choice 

to withdraw their claims in this case was free and deliberate. 

To begin with, there can be no doubt that appellants 

meant to withdraw their claims. Their withdrawal motion 

expressly stated that they wished to “withdraw and release 

with prejudice” their verified claims and that they 

“consent[ed] to the forfeiture of the properties.” Withdrawal 

Mot. 2. Nor is there any basis to conclude that appellants 

were somehow tricked into releasing their claims. Despite 

Bowdoin’s protests to the contrary, his own affidavit shows 

that he understood well that he was receiving no promise in 

return for relinquishing his claims. See Bowdoin Aff. ¶ 8 

(“I . . . signed a document stating that I would release my 

claims . . . on the understanding that by cooperating I could 

possibly avoid a prison sentence.”); id. ¶ 11 (“[My attorney] 

le[d] me to believe that if I cooperated there was a possibility 

that I would not be incarcerated or imprisoned.”); id. ¶ 12 (“I 

believed that my cooperation would still result in a criminal 

sentence that could possibly not include imprisonment or 

incarceration.”). That he feared a stiffer prison sentence if he 

did not withdraw his claims does not mean his withdrawal 

was not a free, deliberate choice. Cf. Brady v. United States, 

397 U.S. 742, 749-55 (1970) (holding that a guilty plea is not 

involuntary even though made to avoid possibility of death 

penalty). Of course, had Bowdoin been induced to withdraw 
9 

his claims by a false promise of a more lenient sentence, his 

choice to withdraw would not have been free and deliberate, 

but that is not this case. 

Moreover, far from being negligent, appellants’ attorney 

had sound reasons for recommending that they cooperate with 

prosecutors by relinquishing their claims. “Such an approach 

from counsel could be seen as the norm when the 

Government’s evidence is strong,” 8 Gilcrease Ln. II, 668 F. 

Supp. 2d at 131, and indeed, the district court itself remarked 

below that based on the affidavits received and the testimony 

at the evidentiary hearing, the government’s evidence 

“appear[ed] to be strong,” id. Further, the witnesses 

AdSurfDaily offered at the evidentiary hearing to prove that it 

operated a legitimate business contradicted each other, see 8 

Gilcrease Ln. I, 587 F. Supp. 2d at 144, and at least one 

actually undermined the company’s position, see id. at 143. 

We thus need not consider whether a party that withdraws its 

claims based on negligent advice from counsel has made a 

free, deliberate choice to withdraw. Under the circumstances 

of this case, the district court did not abuse its discretion in 

denying appellants’ Rule 60(b) motion to reinstate their 

withdrawn claims. 

After the district court entered a default judgment and 

final order of forfeiture, appellants filed another Rule 60(b) 

motion, this time asking the court to vacate the denial of their 

reinstatement motion, the order to show cause why a default 

judgment should not be entered, and the default judgment and 

final order of forfeiture. Appellants claim they never received 

notice of the show cause order, making their failure to 

respond “excusable neglect,” see Fed. R. Civ. P. 60(b)(1), and 

rendering the subsequent default judgment invalid because 

their default was not “willful,” see Jackson v. Beech, 636 F.2d 

831, 832 (D.C. Cir. 1980) (“A motion for relief from a default 
10 

judgment should be granted when . . . the defendants have not 

willfully defaulted . . . .”). 

But as appellants concede, see Reply Br. 2, they were no 

longer parties to the forfeiture proceeding when the show 

cause order issued. Although notice generally must be “given 

to parties known to the government as potential claimants” 

before the court may enter default judgment in a forfeiture 

action, United States v. $4,224,958.57, 392 F.3d 1002, 1005 

(9th Cir. 2004), a party who has lost a Rule 60(b) motion to 

reinstate voluntarily withdrawn claims is not a “potential 

claimant” entitled to notice of a proposed default judgment. 

Obvious fairness concerns motivate the notice requirement 

for known potential claimants. See, e.g., Auster Oil & Gas, 

Inc. v. Stream, 891 F.2d 570, 581 (5th Cir. 1990) (Garwood, 

J., specially concurring) (“For one to be bound by a judgment 

in a suit to which it was not a party and of which it had no 

notice is, to say the least, unusual, if not unconstitutional.”). 

But these concerns do not apply where a party has previously 

received notice, filed claims, voluntarily withdrawn those 

claims, and tried but failed to convince a court to reinstate the 

withdrawn claims. Thus, whether appellants in this case 

received notice of the district court’s show cause order is 

irrelevant given that they were no longer parties to the 

proceeding and no longer had any claim to the properties. The 

district court did not abuse its discretion in denying 

appellants’ second Rule 60(b) motion. 

Finally, appellants challenge the district court’s entry of 

default judgment and final order of forfeiture as untimely. 

Federal Rule of Appellate Procedure 4 gives a party sixty 

days to appeal a judgment or order when the United States is 

a party to the suit. Fed. R. App. P. 4(a)(1)(B). The district 

court, however, entered default judgment and final order of 

forfeiture only fifty-five days after denying appellants’ 
11 

motion to reinstate their withdrawn claims. Appellants claim 

that the district court’s entry of default judgment prevented 

them from filing an interlocutory appeal of the order denying 

their reinstatement motion. This argument is moot. We are 

now hearing the very appeal that appellants claim the district 

court’s entry of default judgment foreclosed. 

III 

For the foregoing reasons, the judgment of the district 

court is 

Affirmed.