UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

$29,410.00 IN UNITED STATES 

CURRENCY, more or less,

Defendant.

------------------------------

WALTER KEVIN MOORE, III, 

a/k/a Walter John Moore, III,

Claimant - Appellant.

No. 14-6101

(D.C. No. 5:13-CV-00132-D)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges.

In this in rem civil forfeiture of $29,410.00, Claimant Walter Kevin Moore, III 

asserted his ownership of the currency, which law enforcement officers found in a 

 * 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)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

January 20, 2015

Elisabeth A. Shumaker

Clerk of Court

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suitcase in his vehicle. The action was filed pursuant to 21 U.S.C. § 881(a)(6), which 

authorizes forfeiture of currency used in illicit drug trafficking. Moore filed a pro se 

Verified Proof of Claim to the currency, as authorized by 18 U.S.C. § 983(a)(4)(A)

and Rule G(5)(a) of the Supplemental Rules for Admiralty or Maritime Claims and 

Asset Forfeiture Actions (Supplemental Rules). The government then served 

interrogatories on him concerning his interest in and possession of the currency, see

Supp. R. G(6)(a), which he failed to answer. He also failed to file an answer to the 

complaint. See 18 U.S.C. § 983(a)(4)(B) & Supp. R. G(5)(b). Represented by 

counsel, he sought and was granted four extensions of time to respond to the 

interrogatories, but he never did. 

Based on his failure to file an answer or respond to the interrogatories, the 

government moved to strike Moore’s Verified Proof of Claim, see Supp. R.

G(8)(c)(i)(A), which the district judge granted. Moore then filed a motion to 

reconsider, which the judge denied. The judge also denied on procedural and 

jurisdictional grounds Moore’s merits challenges to the seizure and forfeiture of the 

currency. Upon the government’s motion and over Moore’s objection, a default was 

entered against him, pursuant to Fed. R. Civ. P. 55(a). In a subsequent order, the 

judge entered a default judgment and ordered the currency forfeited to the 

government. Moore appeals from the default judgment.

“Decisions to enter judgment by default are committed to the district court’s 

sound discretion, and our review is for an abuse of discretion.” Olcott v. Delaware 

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Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (internal quotation marks omitted). 

“We will not disturb the court’s decision without a clear showing that the decision 

was based on a clearly erroneous factual finding or that it manifests a clear error of 

judgment.” Niemi v. Lasshofer, 770 F.3d 1331, 1352 (10th Cir. 2014) (internal 

quotation marks omitted). 

Moore contends his failure to file an answer or respond to the interrogatories 

was excusable because (1) the government’s notice informing him he needed to file 

an answer to the complaint was returned marked “unclaimed;” (2) his current 

attorney entered his appearance in this case on June 14, 2013, and the government 

moved to strike the Verified Proof of Claim on September 27, 2013, thus allowing 

too little time to respond; (3) the relatively late involvement of his current attorney 

and the complexity of forfeiture law hampered his ability to respond; and (4) the 

government was shut down from October 1 to October 16, 2013, and he could not 

pursue his claims during the shutdown. 

According to Moore, he did not receive the government’s correspondence 

telling him when his answer was due, so he should be excused for not filing an 

answer. But Moore has not challenged two statements made by the government: 

(1) notice was also sent to Mr. Carsia, the attorney who represented Moore in 

administrative forfeiture proceedings concerning the currency, see Supp. R.

G(4)(b)(iii)(B) (authorizing notice to a potential claimant’s attorney in administrative 

forfeiture proceedings); and (2) the government published the notice on the 

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government’s forfeiture website, see id. Rule G(4)(a) (authorizing notice by 

publication). Moreover, Rule G(4)(b)(v) provides, “[a] potential claimant who had 

actual notice of a forfeiture action may not oppose or seek relief from forfeiture 

because of the government’s failure to send the required notice.” By filing his 

Verified Proof of Claim, Moore demonstrated he had actual notice of the forfeiture 

action. We reject his excuses for failing to file an answer to the complaint. 

We also reject Moore’s remaining arguments for failing to file an answer or 

respond to the interrogatories—his current attorney did not have time to respond, his 

attorney was unable to file an appropriate timely response due to the complexity of 

the law, and the government shutdown prevented him from protecting his rights. He 

does not claim to have made any attempt to file an answer or respond to the 

interrogatories between June 14, 2013, the date his attorney entered his appearance in 

this case, and September 27, 2013, the date the government moved to strike the 

Verified Proof of Claim. During this period, the government agreed to four requests 

for more time. Moore has offered no reasonable explanation for his inability to 

prepare the necessary filings for over three months. His reliance on the government 

shutdown is contrived and also unavailing; the government had filed its motion to 

strike before the shutdown occurred and Moore alleges no attempted action on his 

part that was frustrated by the shutdown.

1

 Finally, we decline his invitation to excuse 

 1 The shutdown occurred October 1 to October 16, 2013. The federal district 

court remained open, however. In addition, the Assistant United States Attorney 

(continued)

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his neglect because of his attorney’s alleged inability to comply with the applicable 

law and procedure. The Supreme Court has long rejected “the contention that 

dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes 

an unjust penalty on the client. Petitioner voluntarily chose this attorney as his 

representative in the action, and he cannot now avoid the consequences of the acts or 

omissions of this freely selected agent.” Link v. Wabash R.R. Co., 370 U.S. 626, 

633-34 (1962); accord Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002). 

There was no abuse of discretion in entering the default judgment.

Moore’s remaining appellate arguments challenge the government’s search and 

its seizure of the currency as well as its grounds for forfeiture. Because the default 

judgment was properly entered, we need not, and therefore do not, address merits

arguments. 

Moore’s motion for leave to file a rebuttal appendix is denied. The proffered 

materials are print-outs from websites apparently offered for their persuasive 

authority on the merits of the forfeiture, but there is no indication they were 

submitted to the district court. Cf. Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 

(10th Cir. 2008) (“We generally limit our review on appeal to the record that was 

before the district court when it made its decision.”).

 

assigned to this case represents he was not furloughed during the shutdown and was 

away from his office for only four days during this period. 

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The judgment of the district court is affirmed.

Entered for the Court

Terrence L. O’Brien

Circuit Judge

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