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

### JUL 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-1440

v. (D. Colorado) 51 PIECES OF REAL PROPERTY, ROSWELL, NEW MEXICO, including all fixtures, appliances, and appurtenances therein and all rents, profits, other income and proceeds therefrom, Defendant - Appellee, (D.C. No. 91-Z-1175)

and THE RENT SHOPPE, all deposits, rents, proceeds and records maintained by The Rent Shoppe for all properties managed for James Grandgeorge, Nitsua Management, Brookes, Ltd., The Oversoul Foundation, and Donald Austin; NITSUA MANAGEMENT; and THE OVERSOUL FOUNDATION,

Defendants.
DONALD AUSTIN,

Claimant - Appellant, and* This order and judgment is not binding precedent, e xcept under the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. BROOKES, LTD., a Delaware corporation; JANE TAVAREZ GRANDGEORGE, as the sole shareholder of Brookes, Ltd.; C. G. SIMPSON; JACQUE, INC., a New Mexico corporation; NITSUA MANAGEMENT, a Nevada contractual company,

Claimants.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

Defendant Donald Dean Austin appeals from the denia l of his Fed. R. Civ. P. 60(b) motion for relief from a judgment of the d istrict court entered on October 22, 1992, in which the court awarded a default judgment to the United States and ordered forfeiture of certain real prope rty located in New Mexico. We affirm. The United States initiated two separate legal acti ons against Mr. Austin arising out of his involvement in a money launderin g scheme. In one, Mr. Austin was indicted, tried by a jury, and sentenced to twe nty seven years in prison. This- 3 -

court affirmed his conviction and sentence. United States v. Austin , Nos. 92-1046, 92-1047, 1992 WL 738548 (10th Cir. Nov. 12 , 1992) (unpublished). We also affirmed the denial of habeas relief. United States v. Austin , Nos. 94-1108, 94-1256, 1995 WL 94632 (10th Cir. Feb. 28, 1995) (u npublished). In the other action, the government filed a complai nt for forfeiture in rem against property owned by Nitsua Management, a busi ness trust organization organized under the laws of Nevada and which the go vernment contended was the alter ego of Mr. Austin. Notice of the seizure and forfeiture proceedings was sent to Nitsua and to Mr. Austin through his criminal de fense attorney. The district court eventually entered judgment for the government, after concluding that it had
in rem jurisdiction over the property and personal jurisd iction over Nitsua, whom the court found to be the alter ego of Mr. Austin. On appeal, this court affirmed in part and reversedin part, holding that the “district court did not have in rem jurisdiction over the property and, therefore, could not enter judgment of forfeiture in favor of the government as against the whole world.” United States v. 51 Pieces of Real P roperty , 17 F.3d 1306, 1319 (10th Cir. 1994). We also held, however, that “the court did have personal jurisdiction over Nitsua and, therefore, could ente r a judgment in favor of the government as against Nitsua.” Id.1 Mr. Austin’s Rule 60(b) motion was accompanied by a28 U.S.C. § 2255

motion attacking his conviction and sentence. On t he government’s motion, the § 2255 motion was transferred to this court, where we denied him authorization to file the successive petition. United States v. Aus tin , No. 97-555 (10th Cir. Dec. 19, 1997) (unpublished order). - 4 - In May 1997, Mr. Austin filed a motion for relief f rom judgment under Fed. R. Civ. P. 60(b), arguing that the October 22, 1992 , judgment of forfeiture against Nitsua was void under Rule 60(b)(4) because it cons tituted double punishment in violation of the double jeopardy clause, and that i t violated the excessive fines clause of the Eighth Amendment. 1 The district court denied Rule 60(b)(4) relief, holding that “[a]n in rem civil forfeiture action does not constitute punish ment for purposes of the double jeopardy clause” and that th e motion “was not filed within a reasonable time.” Order, Appellee’s Addendum at 74. Mr. Austin appeals, arguing (1) the district court repeated its prior error by again determining that it hadin rem jurisdiction when it ordered forfeiture in October 1992, and that the mischaracterization of t he court’s jurisdiction prevented it from properly reviewing Mr. Austin’s m otion in light of United States v. Ursery , 518 U.S. 267 (1996); and (2) the district court e rred in finding that the motion was not brought within a reasonable time. Mr. Austin’s motion for relief from the 1992 judgme nt invoked Fed. R. Civ. P. 60(b)(4), which provides relief from a judg ment that is void. Rule 60(b)(4) “provides a mandatory remedy that is not s ubject to any particular time2 Mr. Austin also argues that “the government admitte d in pleadings filed in

1995 that it did not honor the insurance applicable to the properties.” Appellant’s Br. at 6. He argues that this amounts to “[a] know ing misrepresentation to the district court as to the government’s loss in orderto wrongfully enhance Austin’s sentence or to establish a false restitution claim [which amounts to] a fraud on the court.” Id. He further argues that a claim of fraud on the co urt is also not subject to the “reasonable time” limitation of Rule 60(b). As we have recently stated, “‘[f]raud on the court . . . is fraud which is dire cted to the judicial machinery itself and is not fraud between the parties or frau dulent documents, false statements or perjury.’” Robinson v. Audi Aktienge sellschaft , 56 F.3d 1259, 1266 (10th Cir. 1995) (quoting Bullock v. United St ates , 763 F.2d 1115, 1118 (10th Cir. 1985) (en banc)). The government’s alle ged impropriety in this case does not amount to fraud on the court. - 5 - limitation.” Wilmer v. Board of County Comm’rs , 69 F.3d 406, 409 (10th Cir. 1995). The district court therefore erred in denyi ng the motion on the basis that it was not brought within a reasonable time. That doe s not mean, however, that the district court erred in denying the motion. 2 We have held that “[f]or a judgment to be void unde r Rule 60(b)(4), it must be determined that the rendering court was powerles s to enter it.” V.T.A., Inc. v. Airco, Inc. , 597 F.2d 220, 224 (10th Cir. 1979). That occurs when the court lacks subject matter jurisdiction or jurisdiction over th e parties, when the “court’s action involves a plain usurpation of power or if the court has acted in a manner inconsistent with due process of law.” Id. at 224-25 (footnotes omitted); see also Orner v. Shalala , 30 F.3d 1307, 1310 (10th Cir. 1994) (“[A] judgment may be void for purposes of Rule 60(b)(4) if entered in a manner inconsistent with due process.”). Additionally, “[a] judgment is not voi d merely because it is or may be- 6 -

erroneous.” V.T.A., Inc. , 597 F.2d at 224; see also EEOC v. Safeway Stores , 611 F.2d 795, 800 (10th Cir. 1979). We apply Rule 60(b )(4) narrowly. See V.T.A.,
Inc. , 597 F.2d at 225. We agree with the government that the district court correctly denied Mr. Austin’s motion. We begin by noting that, as the g overnment concedes, the district court erred in characterizing its jurisdic tion in the 1992 forfeiture proceeding as in rem . As this court specifically held in the appeal of that proceeding, the government did not have in rem jurisdiction over the property in question; rather, it had in personam jurisdiction over Nitsua, Mr. Austin’s alter ego and the owner of the property. See Austin , 17 F.3d at 1319. That error, however, does not render its denial of Mr. Austin’s Rule 60(b) motion erroneous. The judgment of the district court from which Mr. A ustin seeks relief was not void. The court had subject matter jurisdictio n and, although on appeal we ruled the court lacked in rem jurisdiction over the property which was the subje ct of the forfeiture proceedings, we held that the cou rt had in personam jurisdiction over the property’s owner, and we upheld the forfei ture. Moreover, we perceive no due process violation in the court’s judgment, a s it is indisputable that Mr. Austin had notice of the proceedings, but evidentlydeclined to participate therein. Mr. Austin argues that the judgment violated double jeopardy, and on that basis is void. We disagree. While we have acknowl edged that “[v]iolations of3 The Supreme Court in dicta in Bajakajiandid note that not “all modern

civil in rem forfeitures are nonpunitive and thus b eyond the coverage of the Excessive Fines Clause,” 118 S. Ct. at 2035 n.6. B ut in the case before us, there is no indication that the civil in rem forfeiture w as anything other than a nonpunitive forfeiture of, and an in rem proceeding against, property directly connected to, and obtained in connection with, the crime. Bajakajian , by contrast, (continued...) - 7 - other fundamental constitutional rights may give ri se to voidness,” V.T.A., Inc. , 597 F.2d at 225 n.11, that is not the case here. M r. Austin’s argument is based upon the Supreme Court’s decision in Ursery , in which the court held that civil forfeitures generally are not punishments for doubl e jeopardy purposes. Mr. Austin argues that Ursery“clearly indicates that two separate in personam actions punishing an individual for the same conduct violat es the double jeopardy clause.” Appellant’s Br. at 3. Mr. Austin misreads Ursery . Urserydiscussed the same civil forfeiture statute—18 U.S.C. § 981—upon which the government r elied in this case in instituting forfeiture proceedings against Nitsua’s (and Mr. Austin’s) property. The Court recognized its “traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.” Ursery , 518 U.S. at 287. That understanding was based uponthe nature of civil forfeitures, and the nonpunitive rationale supporti ng them. See United States v. Bajakajian , 118 S. Ct. 2028, 2035 (1998) (“Traditional in remforfeitures were thus not considered punishment against the individu al for an offense.”). 33 (...continued)

involved the question of whether the forfeiture of a large sum of currency, in connection with the defendant’s conviction for fail ure to report currency being taken out of the country, was an excessive fine. T here was no evidence that the currency was connected with or resulted from illega l activity. Other than a casual reference to the Excessive Fines Clause of the Eighth Amendment in his brief, Mr. Austin fails to develop any Eighth Amendment ar gument on appeal, and, in any event, for the reasons stated above, Bajakajian provides no basis for any argument on the subject under the facts of this cas e.

4 The government argues that Mr. Austin’s double jeop ardy argument must fail in part because he was not personally involvedin the forfeiture proceedings, and was thus at no jeopardy at all. The governmentdoes not, however, dispute the district court’s finding that Mr. Austin and Ni tsua were alter egos, and “one and the same.” Findings and Order at 3, Appellee’s Add. at 3. - 8 - Mr. Austin appears to argue that, because the forfe iture proceedings against his property, which began in rem, were determined on appeal to be supported by in personam jurisdiction against Nitsua, Ursery ’s general proposition that civil in

rem forfeitures are not punishment for double jeopardypurposes has no application. That turn of events does not alter th e fundamental nature of the proceeding against the property which, under Ursery , was neither punitive nor directed personally against Mr. Austin. 4 We therefore reject his argument that Urserycompels the grant of Mr. Austin’s Rule 60(b) motio n. To the extent Mr. Austin pursues his excessive fines claim on app eal, we reject that as well.- 9 -

For the forgoing reasons, we AFFIRM the district co urt’s denial of Mr. Austin’s Rule 60(b) motion.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge