* This order and judgment is not binding precedent, e xcept under the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

UNITED STATES COURT OF APPEALS Filed 1/9/97 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MERCEDES STATION WAGON VIN #WDBEA90DXJF071052, 1988 300TE and DIAMOND AND SAPPHIRE RING, One Ladies Ring,

Defendants,

___________________________ GARY B. HOBBS, and MARY KAY HOBBS, Claimants-Appellants, and JAMES CLINTON GARLAND,

Claimant. No. 95-5154 & 95-5281 (D.C. No. 90-C-904-C) (N.D. Okla.)

ORDER AND JUDGMENT *** Honorable William F. Downes, District Judge, UnitedStates District Court

for the District of Wyoming, sitting by designation

.
1 We initially questioned our jurisdiction to hear ap peal No. 95-5154, which Gary Hobbs filed in July 1995, before the district court had finally disposed of all the claims in this action. The district court has since entered a final, appealable order, thereby giving us jurisdiction over Gary Hob bs’ premature appeal. See Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am. , 935 F.2d 1152, 1154 n.1 (10th Cir. 1991). -2- Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.

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. Claimants Gary and Mary Kay Hobbs appeal the distri ct court’s denial of their respective motions for return of property, wh ich the district court construed as Rule 60(b) motions to set aside the default judg ments, in this civil forfeiture action. We exercise jurisdiction pursuant to 28 U. S.C. § 1331, and affirm. 1 This forfeiture action arises out of Gary Hobbs’ cr iminal activities while he was the president of a bank in Oklahoma. In June 1 991, Gary pled guilty to eighteen counts of defrauding a federally insured f inancial institution, embezzlement, and money laundering. At his plea he aring, he admitted that he-3-

had used the proceeds of his criminal activities to purchase a variety of property, including a ring and a Mercedes Benz automobile. T his ring and the proceeds from the Mercedes, which was sold around the time this action was commenced, are the subjects of the present civil forfeiture ac tion. The government instituted this action against the r ing and the car in October 1990. At that time, plea negotiations betw een the government and Gary Hobbs, who was represented by James C. Garland, Esq ., were ongoing. In early November 1990, the government amended the forfeitur e complaint to substitute the Mercedes proceeds, which amounted to $29,000, f or the car itself. On November 21, 1990, the government served Garland, o n behalf of Gary and Mary Kay Hobbs, with copies of the warrant of arrest andnotice in rem concerning the ring and car, as well as copies of the amended comp laint, warrant of arrest, and notice in rem concerning the ring and currency. Ne ither Gary nor Mary Kay filed a claim or otherwise appeared in the forfeiture act ion. Garland, who had been paid the Mercedes proceeds as attorney fees, filed a claim on his own behalf against $25,000 of the proceeds. On April 8, 1991, the court entered a judgment of f orfeiture against the ring, no claims having been filed against it at that time. The ring was later sold at public auction and the proceeds paid to the Resolut ion Trust Corporation. On July 24, 1991, the court entered a judgment of forf eiture as to $10,000 of the-4-

Mercedes proceeds. Pursuant to a stipulation betwe en it and Garland, the government disclaimed an interest in the remaining $19,000. Two years later, in March 1993, Gary filed a motion for return of property, in which he alleged that the ring and the Mercedes rightfully belonged to his exwife, Mary Kay, who, he said, never received notice of the forfeiture action. He asked that the ring and the portion of the Mercedes proceeds that were forfeited be returned to Mary Kay and that she be paid damage s for various alleged constitutional violations. In late July 1993, MaryKay filed her own motion for return of property, containing similar allegations. In an order entered April 11, 1995, the district co urt denied Gary’s claims to both the ring and the Mercedes proceeds on the g round that he asserted only Mary Kay’s interest in those properties and, theref ore, he had no standing to challenge their forfeiture. The court also conclud ed that Mary Kay had no standing to dispute the forfeiture of the Mercedes proceeds, because she had abandoned any interest in them by voluntarily payin g them to Garland. The court determined that Mary Kay did have standing to chall enge the forfeiture of the ring, and scheduled an evidentiary hearing to addre ss, among other things, the issue of notice to Mary Kay. After the hearing, th e court concluded that the government provided adequate notice to Mary Kay abo ut the forfeiture proceedings. The court, therefore, denied Mary Kay ’s motion to set aside the-5-

forfeiture of the ring on the ground that her “two year delay in pursuing relief under Rule 60(b) exceeds the reasonable time allowe d for seeking such relief.” R. Vol. II, Doc. 74 at 6. We review the district court’s denial of the Hobbs’ Rule 60(b) motions for an abuse of discretion. See White v. American Airlines, Inc. , 915 F.2d 1414, 1425 (10th Cir. 1990). “[I]n determining whether adistrict court abused its discretion, we are mindful that ‘[r]elief under Rul e 60(b) is extraordinary and may only be granted in exceptional circumstances.’” Ca shner v. Freedom Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996)(quoting Bud Brook s Trucking, Inc. v. Bill Hodges Trucking Co. , 909 F.2d 1437, 1440 (10th Cir. 1990)). “[O]nly i f we find a complete absence of a reasonable basis and are ce rtain that the district court’s decision is wrong do we reverse.” Pelican Prod. Co rp. v. Marino , 893 F.2d 1143, 1147 (10th Cir. 1990). All Rule 60(b) motions for relief must be brought “ within a reasonable time,” and, if the reason for the motion is one lis ted in 60(b)(1), (2), or (3), the motion must be filed within “one year after the jud gment, order, or proceeding was entered or taken.” Fed. R. Civ. P. 60(b). Further, if the motion is based on mistake, inadvertence, surprise or excusable neglec t, see id. 60(b)(1), then the party must also show that he or she has a meritorio us defense. Cashner , 98 F.3d at 578 n.2. Based upon our review of the record, t he parties briefs, and the-6-

pertinent case law, we agree that the Rule 60(b) mo tions at issue here are untimely. Pursuant to Rule C(6) of the Supplemental Rules forCertain Admiralty and Maritime Claims, which govern civil forfeiture acti ons, once process has been executed pursuant to Rule C(3), a person claiming a n interest in the property to be forfeited has ten days to file a claim and twenty d ays to file an answer in the forfeiture action. Although Supplemental Rule C(4) requires the government only to give notice of the forfeiture action by publicat ion, [w]hen the government can reasonably ascertain the name and address of an interested party, . . . notice by pub lication is not sufficient; due process requires that the government send [n]otice by mail or other means as certain to ensure actual not ice. Due process does not require, however, that the interested party actually receive notice. So long as the government acted reasonablyin selecting means likely to inform [the] persons affected, . . . then it has discharged its burden. United States v. 51 Pieces of Real Property , 17 F.3d 1306, 1316 (10th Cir. 1994)(quotations and citations omitted). “Whether the government employed means reasonably c alculated to provide a party with notice is a question of fact we review for clear error.” Id. The district court did not address the issue of notice as to Gary, but the record facts concerning such notice are undisputed. The record reflects that the Hobbs moved from theirresidence when the government seized it in August 1990. Thereafter, t he government instituted the2 Gary’s conclusory statement that he “disputes all o f the erroneous claims

made by Garland,” R. Vol. II, Doc. 48 at 4, is not sufficient to create an issue of fact concerning notice. See Setliff v. Memorial Hosp. , 850 F.2d 1384, 1391 (10th Cir. 1988)(“[C]onclusory allegations . . . are not sufficient to establish an issue of fact . . . .”). -7- present action and served notice of it on Gary’s cr iminal defense attorney, James Garland, who, at Gary’s request, had agreed to acce pt service of the documents on Gary’s behalf. Garland testified that he then gave the documents served on him to Gary. 2 We, and other courts, have held in similar circum stances that notice served on the claimant’s criminal defense attorney is reasonably calculated to inform the claimant of the forfeiture proceedings a nd the need to file a claim and, therefore, complies with due process. See id. at 1317 (collecting cases). As to Mary Kay, the district court found that “the government more than adequately discharged its burden of providing notic e to Mary Kay Hobbs in the present case.” R. Vol. II, Doc. 74 at 2. The court also “f[ou]nd[] incredible Mary Kay Hobbs’ claim that she did not have actual notic e of the forfeiture action against the ring.” Id. at 5. Our review of the record reveals adequate s upport for both findings. The record, then, establishes that both Gary and Ma ry Kay had notice of the forfeiture proceedings at least two years before th ey filed their present motions contesting the proceedings. Under these circumstan ces, the district court did not-8-

abuse its discretion in denying Mary Kay’s motion a s untimely. Because the same rationale also applies to Gary’s motion, dismissal of it was proper as well. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. Plaintiff-Appellee’s moti on to file an appendix is granted, and Claimants-Appellants’ motion to supple ment the record on appeal is denied as moot. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge