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                                                          [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-15202
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:06-cv-01651-RDP



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

versus

CURRENCY,
In United States $178,858.00,

                                                  Defendant,

DERRICK ERVIN,

                                                  Claimant - Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                                 (May 30, 2014)
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Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Derrick Ervin appeals the district court’s denial of his Rule 60(b)(4) motion

to set aside a civil forfeiture judgment. Mr. Ervin alleged in his motion that the

order of forfeiture entered by the district court was void as a matter of law because

possession of the defendant res ($178,858.00 in United States currency) by the

Jefferson County Circuit Court prevented a federal court from acquiring or

exercising jurisdiction. We affirm.

                                         I.

      On February 16, 2006, officers of the Birmingham Police Department (BPD)

were conducting surveillance of an apartment complex, where they suspected

illegal drug activity. The officers observed three men leave an apartment; one of

the men was carrying a black bag on his shoulder. An officer followed the three

men and heard the sound of a vehicle being locked and unlocked and “a handgun

being ‘chambered’ with a round of ammunition.” D.E. 1 at ¶ 3(b). The officer

approached a green GMC Denali truck, identified himself, and asked who had

chambered the round. One of the individuals—later identified as Mr. Ervin—

pulled a handgun from his waistband and fired multiple shots at the officer. The

three men fled on foot and were later apprehended.




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       BPD officers determined that the GMC Denali truck was registered to Mr.

Ervin and impounded the vehicle. BPD officers obtained a search warrant for the

truck from the Jefferson County Circuit Court for the vehicle in connection with

suspected illegal drug activity. While executing the search warrant of the truck’s

interior, BPD detectives, in conjunction with agents from the U.S. Drug

Enforcement Administration (DEA), found a black bag containing $160,840.00, a

shoe box containing $18,000.00, and $18 in cash. As a result of the search, law

enforcement officers seized a total $178,858.00. See 

3(g).

       That same day, BPD officers also obtained a search warrant for the

apartment from which the three men had been seen leaving on the night of

February 16, 2006. The officers found a gym bag containing ten packages of

cocaine hydrochloride weighing 18 kilograms, a box containing ten bags of

hydrochloride weighing 31 ounces, and 43 methylenedioxymethamphetamine pills

(also known as Ecstasy or MDMA). See 

3(h). Cocaine hydrochloride is

classified as a “controlled substance” for purposes of 21 U.S.C. § 801 et seq. See

4.

       On August 21, 2006, the United States filed a civil forfeiture action under 21

U.S.C. § 881(a)(6), seeking the forfeiture of the $178,858.00 found in the truck as

proceeds of illegal drug activity. According to the civil forfeiture complaint, DEA

special agents had probable cause to believe that the currency seized during the


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search of the truck was “furnished, or intended to be furnished in exchange for a

controlled substance or listed chemical in violation of Title 21, United Sates Code,

Chapter 13, Subchapter I.” 

5. See also D.E. 14 at ¶ 2.

      On March 30, 2007, Mr. Ervin filed a verified claim to the defendant

property, which he later moved to withdraw on January 18, 2008. Finding that Mr.

Ervin consented to forfeiture, that there were no other potential claimants to the

defendant currency, and that the time for asserting any such interests had expired,

the district court granted the United States’ motion for consent judgment and

ordered forfeiture of the defendant res to the United States under 21 U.S.C. §

881(a)(6). See D.E. 15. The forfeiture proceeds were disbursed via the federal

“equitable sharing” program, with 80% awarded to the BPD and 20% retained by

the United States. See Appellee’s Br. at 2; D.E. 20 at ¶ 9.

      On June 10, 2013, Mr. Ervin filed the instant Rule 60(b)(4) motion to set

aside the district court’s judgment and order of forfeiture. The district court denied

the motion, concluding that it had properly exercised in rem jurisdiction over the

defendant currency. Specifically, the district court ruled that because no state court

action related to the res had been instituted in the Jefferson County Circuit Court,

“no bar existed on the federal exercise of jurisdiction.” D.E. 25 at 7. Referring to

the doctrine of “adoptive forfeiture”—under which a federal court can adopt a state

or local seizure and subsequently deem the property to have been seized by the


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federal government—the district court reasoned that “threats posed to federalism

and comity by the usurpation of jurisdiction or the maintenance of parallel

proceedings” were “nonexistent” because the state court had made no attempt to

assert in rem jurisdiction. 

                                               II.

       Rule 60(b)(4) motions—unlike motions under other subsections of Rule

60(b)—“leave no margin for consideration of the district court’s discretion as the

judgments themselves are by definition either legal nullities or not.” Burke v.

Smith, 

, 1263 (11th Cir. 2001) (internal quotation marks and citation

omitted). We therefore review de novo a district court’s ruling on a Rule 60(b)(4)

motion. See 

judgment is void under Rule 60(b)(4) “if the court that

rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted

in a manner inconsistent with due process of law.” 

marks

and citation omitted). It is well settled, however, “that a mere error in the exercise

of jurisdiction does not support relief under Rule 60(b)(4).” In re Optical

Technologies, Inc., 

, 1306 (11th Cir. 2005) (quoting Oaks v. Horizon

Fin., S.A., 

, 1319 (11th Cir. 2001)). Indeed, “[f]ederal courts

considering Rule 60(b)(4) motions that assert a judgment is void because of

jurisdictional defect generally have reserved relief for the exceptional case in

which the court that rendered judgment lacked even an ‘arguable basis’ for


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jurisdiction.” United Student Aid Funds, Inc. v. Espinosa, 

, 271

(2010).

      We have long recognized that a court’s in rem jurisdiction “must be

exclusive,” and a state court and a federal court therefore “cannot simultaneously

exercise in rem jurisdiction over the same property.” United States v. $270,000.00

in U.S. Currency, 

, 1147 (11th Cir. 1993). In order to avoid this

conflict, “the principle, applicable to both federal and state courts, is established

that the court first assuming jurisdiction over the property may maintain and

exercise that jurisdiction to the exclusion of the other.” 

      Mr. Ervin contends that “complete jurisdiction” over the defendant res

attached first in the Jefferson County Circuit Court, thus barring subsequent

jurisdiction within the federal court. See Appellant’s Br. at 10-13. Specifically, he

argues that, under Alabama law, jurisdiction was vested in the state court when the

defendant res was seized pursuant to a state-issued search warrant and that—

contrary to the United States’ argument—the filing of a separate, third-party

forfeiture complaint was not necessary to confer exclusive state court jurisdiction

over the property. See 

and the United States provide seemingly conflicting Alabama case

law discussing the requirements for in rem jurisdiction to vest in an Alabama state




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court.1 We, however, need not address whether in rem jurisdiction attached within

the state court prior to the federal forfeiture proceedings because, under the

governing standard for a Rule 60(b)(4) motion, we cannot say that this is one of the

“exceptional case[s]” that lacks even an “arguable basis” for jurisdiction. See

United Student Aid 

. The United States properly filed a

complaint in the district court seeking civil forfeiture of the defendant property

under 21 U.S.C. § 881(a)(6) as alleged proceeds of illegal drug activity in violation

of 21 U.S.C. § 801 et seq. The district court subsequently entered a consent

judgment following Mr. Ervin’s withdrawal of his verified claim and express

consent to the forfeiture of the defendant res to the United States. See D.E. 15.

Additionally, as explained by the district court, the notion that the federal

government may adopt property seized pursuant to state process and give to it the



1
  Mr. Ervin cites to state and federal cases that suggest that seizure made pursuant to process
issued by the state court is alone sufficient to vest in rem jurisdiction to the exclusion of other
courts. See Vorhees v. Jackson, ex dem Bank of the United States, 

, 460 (1836) (“the
seizing of the property by virtue of process issued from a court having authority to issue the writ,
vests in the tribunal from which the process issued a complete jurisdiction over the thing or
property seized”); The Rio Grande, 

, 463-64 (1874) (“Jurisdiction of the res is
obtained by a seizure under process of the court, whereby it is held to abide such order as the
court may make concerning it.”); Garrett v. State, 

, 52 (Ala. Civ. App. 1999)
(“Based on our holding. . . that the res was validly seized by [state] law enforcement officers
pursuant to process issued by a [state] court. . . we conclude that the [state] court had subject
matter jurisdiction over the property at issue here.”). The United States, citing to a 2009 Alabama
civil appellate court case, contends that “[u]nder Alabama law, obtaining in rem jurisdiction is a
two-step process, requiring both possession of the res and the filing of an in rem court action.”
Appellee’s Br. at 8-9. See Green v. City of Montgomery, 

, 263 (Ala. Civ. App.
2009) (“Alabama law requires a two-step process of possession and then the filing of an in rem
court action.”).
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same effect as if it had been first seized by federal authorities is embodied within

the operative characteristics of the long-accepted doctrine of adoptive seizure.2

       Given that the district court at the very least possessed arguable

subject-matter jurisdiction under § 21 U.S.C. 881(a)(6), that Mr. Ervin consented

to the forfeiture at the time of the judgment, that the record demonstrated that the

state agreed to transfer the currency to federal authorities, and that no in rem

proceedings had been instituted within the state court, we cannot say that the

forfeiture judgment is vo

therefore is not entitled to relief under Rule

60(b)(4).

                                                    III.

       We affirm the district court’s denial of Mr. Ervin’s 60(b)(4) motion.

       AFFIRMED.




2
  See, e.g., Taylor v. United States, 

, 205 (1845) (“At the common law any person
may, at his peril, seize for a forfeiture to the government, and, if the government adopts his
seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he
will be completely justified. So that it is wholly immaterial in such a case who makes the seizure,
or whether it is irregularly made or not, or whether the cause assigned originally for the seizure
be that for which the condemnation takes place, provided the adjudication is for a sufficient
cause.”); United States v. One Ford Coupe Automobile, 

, 325 (1926) (“It is settled
that, where property declared by a federal statute to be forfeited, because used in violation of
federal law, is seized by one having no authority to do so, the United States may adopt the
seizure with the same effect as if it had originally been made by one duly authorized.”). See also
18 U.S.C. § 981(b)(2)(C) (providing that a seizure may be made without a warrant if “there is
probable cause to believe that the property is subject to forfeiture” and “the property was
lawfully seized by a State or local law enforcement agency and transferred to a Federal agency”).

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