IN THE UNITED STATES COURT OF APPEALS
`
`[PUBLISH]
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`FEB 3, 2012
`JOHN LEY
`CLERK
` D.C. Docket No. 3:06-cr-00041-CAR-CHW-21
`
` No. 11-10743
` ________________________
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Plaintiff - Appellee,
`
`versus
`
`JUANITA DAVENPORT,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Defendant - Appellant.
`
`________________________
`
` Appeal from the United States District Court
` for the Middle District of Georgia
` ________________________
`
`(February 3, 2012)
`
`Before HULL, MARCUS and BLACK, Circuit Judges.
`
`BLACK, Circuit Judge:
`
`
`
`[PUBLISH]
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`FEB 3, 2012
`JOHN LEY
`CLERK
` D.C. Docket No. 3:06-cr-00041-CAR-CHW-21
`
` No. 11-10743
` ________________________
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Plaintiff - Appellee,
`
`versus
`
`JUANITA DAVENPORT,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Defendant - Appellant.
`
`________________________
`
` Appeal from the United States District Court
` for the Middle District of Georgia
` ________________________
`
`(February 3, 2012)
`
`Before HULL, MARCUS and BLACK, Circuit Judges.
`
`BLACK, Circuit Judge:
`
`
`
`Juanita Davenport appeals from a final order of criminal forfeiture
`
`concerning $214,980.00 in U.S. currency seized from a safe deposit box.
`
`Davenport challenges (1) the district court’s denial of her motion to vacate the
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`preliminary order of forfeiture (POF) issued against her former codefendant,
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`Orlando Muckle, with regard to the currency; (2) the dismissal of her ancillary
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`petition to the property under 21 U.S.C. § 853(n) for its untimeliness; and (3) the
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`denial of her subsequent request for relief under Federal Rule of Civil Procedure
`
`60(b)(1) based on excusable neglect. We dismiss in part and affirm in part.
`
`I. BACKGROUND
`
`Davenport, Muckle, and numerous other named defendants were charged in
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`a second superseding indictment with conspiring to possess with intent to
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`distribute various controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and
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`846 (Count One). Davenport was further charged with making a false statement to
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`a federally deputized agent regarding the contents of a safe deposit box, in
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`violation of 18 U.S.C. § 1001(a)(3) (Count Three). The indictment also sought
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`forfeiture of the defendants’ interest in any property derived from, or used to
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`facilitate the commission of, the drug conspiracy, pursuant to 21 U.S.C. § 853
`
`(Count Six).
`
`2
`
`
`
`On February 26, 2008, Davenport, represented by attorney Xavier Dicks,
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`pled guilty to Count Three of the indictment, making a false statement to a
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`federally deputized agent. The Government dismissed the remaining counts
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`against Davenport, including the forfeiture count. On May 27, 2008, Davenport
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`was sentenced to three years’ probation and was ordered to pay a $2,500 fine.
`
`On February 3, 2009, Muckle pled guilty to a superseding information,
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`which alleged in Count One that he conspired to distribute more than 400 grams of
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`cocaine. Count Two contained a forfeiture provision requiring him to forfeit his
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`interest in the $214,980.00 in U.S. currency found in Davenport’s safe deposit
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`box. Under the terms of his written plea agreement, Muckle agreed to forfeit any
`1
`
`right or interest he had in property subject to forfeiture, including the currency
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`seized from the safe deposit box, as well as to the entry of a POF regarding his
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`interests, if any, in those assets. Nevertheless, prior to accepting the plea, Muckle
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`struck various portions of the written plea agreement that asserted the currency
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`represented proceeds he received from distributing cocaine. At his plea hearing,
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`Muckle also denied having any interest in the subject currency.
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` Although not pertinent to this appeal, Count Two also sought the forfeiture of two
`1
`vehicles.
`
`3
`
`
`
`On February 5, 2009, the Government moved the district court pursuant to
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`Federal Rule of Criminal Procedure 32.2(b) for a POF. The court granted the
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`motion on March 16, 2009. The order authorized the Attorney General to notify
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`persons allegedly having an interest in the property of their right to petition the
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`court, pursuant to 21 U.S.C. § 853(n), for a hearing to adjudicate the validity of
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`such interest. The next day, March 17, the Government filed with the court a
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`notice of its intention to dispose of the forfeited property. The notice further
`
`provided that persons claiming an interest in the forfeited currency had within 30
`
`days of receiving actual notice or no later than 60 days from the first day of the
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`Government’s publication of the notice on its website to petition the court to
`2
`
`adjudicate such interest. Also on March 17, the Government served copies of the
`3
`
` The website was the United States Department of Justice’s official government
`2
`forfeiture website, www.forfeiture.gov.
`
`3
`
` 21 U.S.C. § 853(n), Third party interests, states, in pertinent part:
`(1) Following the entry of an order of forfeiture under this section, the
`United States shall publish notice of the order and of its intent to dispose of the
`property in such manner as the Attorney General may direct. The Government
`may also, to the extent practicable, provide direct written notice to any person
`known to have alleged an interest in the property that is the subject of the order of
`forfeiture as a substitute for published notice as to those persons so notified.
`(2) Any person, other than the defendant, asserting a legal interest in
`property which has been ordered forfeited to the United States pursuant to this
`section may, within thirty days of the final publication of notice or his receipt of
`notice under paragraph (1), whichever is earlier, petition the court for a hearing to
`adjudicate the validity of his alleged interest in the property. The hearing shall be
`held before the court alone, without a jury.
`
`4
`
`
`
`POF and the notice of forfeiture on Davenport’s attorney, Dicks, because the
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`Government considered Davenport a potential claimant.
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`The POF and notice of forfeiture were confirmed delivered to Dicks’ office
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`on March 19; Davenport therefore had until April 20, 2009, to petition the court
`4
`
`pursuant to § 853(n). Shortly after receiving the notice, Dicks contacted the
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`Government, indicating he had already filed a claim for Davenport and was
`
`confused as to why he needed to file another one. The Government informed
`
`Dicks that the previously filed claim was for the administrative forfeiture action
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`and that Davenport would still need to file a petition in the criminal action in
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`accordance with the instructions in the POF and notice of forfeiture. On May 12,
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`2009, Davenport, through Dicks, petitioned the district court to adjudicate her
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`interest in the forfeited currency. She asserted that the money belonged to her
`5
`
`and that it represented her life savings and the proceeds of the sale of her primary
`
`residence.
`
`On July 21, 2009, the Government moved the court to dismiss Davenport’s
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`petition as untimely. On November 5, 2009, Davenport terminated Dicks as her
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` The final day fell on Saturday, April 18, 2009. Thus, the claim was due to be filed no
`4
`later than Monday, April 20, 2009.
`
` On April 22, 2009, Muckle was sentenced to a term of imprisonment, and the forfeiture
`5
`was included in his judgment.
`
`5
`
`
`
`attorney. Davenport then retained new counsel and filed a response to the
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`Government’s motion. Her response challenged the forfeiture on several grounds
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`and requested that the court grant her relief under Federal Rule of Civil Procedure
`
`60(b) if it found her petition untimely.
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`The district court granted the Government’s motion to dismiss on April 28,
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`2010. On January 24, 2011, the court entered a final order of forfeiture, forfeiting
`6
`
`to the United States the $214,980.00 in full. Davenport now appeals the order and
`
`the court’s refusal to grant her Rule 60(b) relief.
`
`II. DISCUSSION
`
`A. Davenport’s Standing to Challenge the POF
`
`“Article III of the Constitution limits the jurisdiction of federal courts to
`
`‘cases’ and ‘controversies.’” Christian Coal. of Fla., Inc. v. United States, 662
`
`F.3d 1182, 1189 (11th Cir. 2011) (quotation omitted). “[T]here are three strands of
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`justiciability doctrine–standing, ripeness, and mootness–that go to the heart of the
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`Article III case or controversy requirement.” Id. (quotation omitted). Our
`
`jurisdiction is dependent on whether Davenport has standing to challenge the POF
`
`entered against Muckle. The issue of whether a former codefendant has standing
`
` The court granted the motion initially on March 4, 2010. Davenport moved the court
`6
`for reconsideration. The court denied her motion on April 28, 2010, in an amended order.
`
`6
`
`
`
`to challenge a POF entered against another defendant is one of first impression in
`
`this Circuit.
`
`“We review de novo questions about our subject matter jurisdiction,
`
`including standing.” United States v. Cone, 627 F.3d 1356, 1358 (11th Cir. 2010).
`
`Moreover, we review “a district court’s legal conclusions regarding third-party
`
`claims to criminally forfeited property de novo and its factual findings for clear
`
`error.” United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).
`
`Initially, it is necessary to explain the difference between criminal and
`
`ancillary forfeiture proceedings. Criminal forfeiture proceedings are governed by
`
`21 U.S.C. § 853 and Federal Rule of Criminal Procedure 32.2. Pursuant to § 853,
`
`any person convicted of certain felony drug offenses must forfeit any property
`
`derived from the violation. 21 U.S.C. § 853(a). If a defendant is convicted of any
`7
`
`count upon which criminal forfeiture is sought, the court must, as soon as
`
`practical, determine whether the property is subject to forfeiture. Fed. R. Crim. P.
`
`32.2(b)(1). Where the Government seeks forfeiture of specific property, the court
`8
`
`must determine whether the Government established the requisite nexus between
`
` Because Davenport pled guilty to making a false statement to a federally deputized
`7
`agent, and not a drug offense, the Government could not proceed with criminal forfeiture against
`Davenport under 21 U.S.C. § 853.
`
` Unless otherwise indicated, all citations to Rule 32.2 refer to the version in effect at the
`8
`time the district court issued the POF underlying this appeal. See Fed. R. Crim. P. 32.2 (2009).
`
`7
`
`
`
`the property and the offense of conviction. Id. Once this determination has been
`
`made, the court must promptly enter a POF without regard to any third party’s
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`interest in the property. Fed. R. Crim. P. 32.2(b)(2). The entry of a POF
`
`authorizes the Attorney General to seize the specific property subject to forfeiture
`
`and to commence ancillary proceedings regarding third-party rights. Fed. R. Crim.
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`P. 32.2(b)(3), (c); see also United States v. Petrie, 302 F.3d 1280, 1284 (11th Cir.
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`2002).
`
`After entering a POF, the court can determine whether any third parties have
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`an interest in the forfeited property, but only if they file a timely petition in an
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`ancillary proceeding. See Marion, 562 F.3d at 1336-37. At the conclusion of the
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`ancillary proceeding, the court “must enter a final order of forfeiture by amending
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`the preliminary order as necessary to account for any third-party rights.” Fed. R.
`
`Crim. P. 32.2(c)(2). If, however, no third party files a timely petition, “the [POF]
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`becomes the final order of forfeiture if the court finds that the defendant . . . had an
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`interest in the property that is forfeitable under the applicable statute.” Id. Once
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`the final order of forfeiture has been entered, neither the defendant nor a third
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`party may object on the ground that a codefendant or a third party had an interest
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`in the property. Id.
`
`8
`
`
`
`An ancillary proceeding constitutes the sole means by which a third-party
`
`claimant can establish entitlement to return of forfeited property. See 21 U.S.C.
`
`§ 853(n)(2); Libretti v. United States, 516 U.S. 29, 44, 116 S. Ct. 356, 365 (1995)
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`(“[T]hird-party claimants can establish their entitlement to return of the [forfeited]
`
`assets only by means of the hearing afforded under 21 U.S.C. § 853(n).”). In fact,
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`§ 853 affirmatively bars third-party claimants from intervening in a trial or appeal
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`of a criminal case involving the forfeiture of the subject property, as well as
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`commencing an action against the Government concerning the validity of an
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`alleged interest in the property. 21 U.S.C. § 853(k). These provisions confer
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`limited rights on third-party petitioners “to participate only in the ancillary
`
`forfeiture proceeding, not in the criminal case.” Cone, 627 F.3d at 1358. A
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`codefendant in a criminal case is properly viewed as a third party with regard to
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`another defendant’s forfeiture of property. United States v. Gilbert, 244 F.3d 888,
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`910 n.54 (11th Cir. 2001), superseded on other grounds as recognized in Marion,
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`562 F.3d at 1341.
`
`The Advisory Committee Notes to the 2000 adoption of Rule 32.2 state the
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`ancillary proceeding for third-party claimants “does not involve relitigation of the
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`forfeitability of the property,” which has already been ordered in the criminal case.
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`The ancillary proceeding is only for the purpose of determining “whether any third
`
`9
`
`
`
`party has a legal interest in the forfeited property.” Fed. R. Crim. P. 32.2, advisory
`
`committee’s note (2000 Adoption). Consistent with the Advisory Committee
`9
`
`Notes, at least three of our sister circuits have concluded that third parties,
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`including former codefendants, cannot challenge or relitigate a preliminary order’s
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`finding of forfeitability. See United States v. Andrews, 530 F.3d 1232, 1236-37
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`(10th Cir. 2008) (holding the victims of a defendant’s misconduct, as third parties,
`
`had no right to challenge a preliminary order’s finding of forfeitability, but could
`
`only seek amendment of the order to exclude their interest in an ancillary
`
`proceeding); United States v. Porchay, 533 F.3d 704, 707, 710 (8th Cir. 2008)
`
`(holding a former codefendant, as a third party, could not relitigate the validity of
`
`a forfeitability determination made against another defendant); DSI Assoc. LLC v.
`
`United States, 496 F.3d 175, 184-85 (2d Cir. 2007) (holding a third party could
`
`not intervene by challenging the underlying validity of the forfeiture order rather
`
`than filing an ancillary proceeding). As the Tenth Circuit explained in Andrews, if
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`the forfeited property really belongs to the third party, she can prevail and recover
`
`her property during the ancillary proceeding “whether there were defects in the
`
`criminal trial or the forfeiture process or not; and if the property does not belong to
`
` “Although not binding, the interpretations in the Advisory Committee Notes are nearly
`9
`universally accorded great weight in interpreting federal rules.” Horenkamp v. Van Winkle &
`Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005) (quotation omitted).
`
`10
`
`
`
`the third party, such defects in the finding of forfeitability are no concern of
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`[hers].” 530 F.3d at 1237 (quotation omitted).
`
`We conclude that Davenport lacked standing to challenge the validity of the
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`POF’s determination of forfeitability. Her sole mechanism for vindicating her
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`purported interest in the forfeited currency was within the context of the ancillary
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`proceeding prescribed by § 853(n) and Rule 32.2(c). Whether or not she availed
`
`herself of this opportunity by filing a timely third-party petition does not affect the
`
`conclusion that third parties, including codefendants, may not relitigate the merits
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`of a forfeitability determination. The district court did not err in finding that
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`Davenport lacked standing to challenge the validity of the POF. Therefore, we
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`lack jurisdiction over this claim.
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`B. Untimeliness of Ancillary Petition
`
`Although Davenport lacks standing to challenge Muckle’s POF, we may
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`still review the district court’s dismissal of her own ancillary petition. Davenport
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`contends the district court erred in dismissing her ancillary petition to the forfeited
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`currency as untimely based on the date Dicks received a written notice of
`
`forfeiture. She argues that § 853(n)(1) and due process both require that direct
`
`written notice be served on a known and accessible party with an interest in
`
`forfeited property, and that the written notice of forfeiture sent to her attorney was
`
`11
`
`
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`insufficient because he no longer represented her in the criminal proceeding.
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`Consequently, she maintains that her petition was subject to a later filing deadline
`
`based on the notice of forfeiture published on the Government’s official website,
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`thereby rendering her petition timely.
`
`Davenport also argues that, although Rule 32.2(b) was amended in
`
`December 2009 to incorporate the notice provisions of Rule G of the
`
`Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
`
`Actions (Forfeiture Action Rules), retroactive application of Rule G to validate the
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`notice sent to her attorney would violate her procedural due process rights, as Rule
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`G previously applied only to civil forfeiture actions, not criminal forfeiture
`
`proceedings. Alternatively, she maintains that, even if the notice mailed to her
`
`attorney was legally effective, the district court was required to construe the
`
`ambiguous deadline set forth in the notice in her favor, and should have
`
`recognized her timely claim in the administrative forfeiture proceeding against the
`
`currency as a timely claim in the criminal forfeiture action.
`
`Section 853(n) provides that, following the entry of a POF, the Government
`
`“shall publish notice of the order and of its intent to dispose of the property,” and
`
`“may also, to the extent practicable, provide direct written notice to any person
`
`known to have alleged an interest in the property.” 21 U.S.C. § 853(n)(1). The
`
`12
`
`
`
`criminal forfeiture statute also requires third-party claimants to file a petition
`
`“within thirty days of the final publication of notice or his receipt of [direct
`
`written] notice . . . , whichever is earlier.” 21 U.S.C. § 853(n)(2). If a third party
`
`fails to file a petition within the prescribed 30-day deadline, her interests in the
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`property are forfeited. Marion, 562 F.3d at 1336-37, 1341.
`
`The phrase “direct written notice” is not defined in the criminal forfeiture
`
`statute. See 21 U.S.C. § 853. Likewise, at the time the POF was entered in this
`
`case, Rule 32.2 did not explicitly address what type of notice, if any, the
`
`Government was required to give to potential third-party claimants. See Fed. R.
`
`Crim. P. 32.2. Effective December 1, 2009, however, Rule 32.2 was amended to
`
`provide that the Government “must publish notice of the [forfeiture] order and
`
`send notice to any person who reasonably appears to be a potential claimant with
`
`standing to contest the forfeiture in the ancillary proceeding.” Fed. R. Crim. P.
`
`32.2(b)(6)(A) (2010). The amended rule also explicitly incorporated the notice
`
`provisions of Rule G(4) of the Forfeiture Action Rules, stating that the direct
`
`notice of a POF “may be sent in accordance with Supplemental Rules G(4)(b)(iii)-
`
`(v).” Fed. R. Crim. P. 32.2(b)(6)(D) (2010). Rule G, which has otherwise
`
`governed civil forfeiture actions since 2006, provides that direct notice “must be
`
`sent by means reasonably calculated to reach the potential claimant,” including by
`
`13
`
`
`
`sending notice “to the potential claimant or to the attorney representing the
`
`potential claimant with respect to the seizure of the property or in a related
`
`investigation, administrative forfeiture proceeding, or criminal case.” Forfeiture
`
`Action Rule G(4)(b)(iii)(A)-(B), advisory committee’s note (2006 Adoption).
`
`Nevertheless, even prior to the amendment of Rule 32.2, the Advisory
`
`Committee Notes accompanying its initial adoption acknowledged that “[t]he
`
`notice provisions regarding the ancillary proceeding are equivalent to the notice
`
`provisions that govern civil forfeitures.” Fed. R. Crim. P. 32.2, advisory
`
`committee’s note (2000 Adoption). That approach was consistent with the well-
`
`established principle that ancillary proceedings to a criminal forfeiture prosecution
`
`are considered civil cases. See United States v. Pease, 331 F.3d 809, 816 (11th
`
`Cir. 2003) (concluding ancillary proceedings under § 853(n) are civil cases).
`
`Moreover, the notice provisions of Rule G(4)(b)(iii) simply codify and
`
`restate prevailing due process requirements governing adequate notice. The
`
`Supreme Court has long held that due process is satisfied where notice is
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`“reasonably calculated, under all the circumstances, to apprise interested parties of
`
`the pendency of the action.” Mullane v. Cent. Hanover Bank & Trust Co., 339
`
`U.S. 306, 314, 70 S. Ct. 652, 657 (1950); see also Dusenbery v. United States, 534
`
`U.S. 161, 170, 122 S. Ct. 694, 701 (2002). Due process does not require that an
`
`14
`
`
`
`interested party actually receive notice of the proceedings, nor does it demand that
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`the Government employ the best or most reliable means of ensuring notice.
`
`Dusenbery, 534 U.S. at 170-72, 122 S. Ct. at 701-02. While it does not appear
`
`that we have specifically considered the issue, numerous other courts have held
`
`that due process can be satisfied by mailing notice of a forfeiture proceeding to a
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`party’s attorney, even where the attorney only represented the party in a pending
`
`and related proceeding. See Nunley v. Dep’t of Justice, 425 F.3d 1132, 1139 (8th
`
`Cir. 2005) (holding an inmate was afforded due process when the Government
`
`sent a notice of administrative forfeiture to him in care of his attorney); Bye v.
`
`United States, 105 F.3d 856, 857 (2d Cir. 1997) (concluding the Government gave
`
`sufficient notice of an administrative forfeiture by sending notice, which was
`
`acknowledged and received, to the attorney representing the defendant in a
`
`pending and related criminal proceeding); United States v. 51 Pieces of Real
`
`Property, Roswell, N.M., 17 F.3d 1306, 1317 (10th Cir. 1994) (holding sufficient
`
`notice of a civil forfeiture proceeding was given when the Government sent notice
`
`to an interested party through the attorney representing him in an ongoing criminal
`
`prosecution).
`
`The district court did not err in finding that, under the applicable statutes,
`
`rules, and due process requirements, the written notice of forfeiture sent to
`
`15
`
`
`
`Davenport’s attorney was adequate, thereby triggering the mandatory 30-day
`
`period for filing third-party petitions and rendering Davenport’s petition untimely.
`
`Since ancillary forfeiture proceedings have long been considered civil in nature,
`
`the rules governing civil forfeiture actions, including Rule G, would have been
`
`employed even before Rule 32.2 was amended. In any event, regardless of the
`
`formal applicability of Rule G, the notice of forfeiture sent to Davenport’s attorney
`
`satisfied prevailing due process requirements. The record shows that Dicks
`
`continued to represent Davenport after the termination of her criminal case. He
`
`communicated with the Government after receiving the written notice of
`
`forfeiture, filed the third-party petition on Davenport’s behalf, and was not
`
`formally discharged by her until after he received the Government’s notice and
`
`had filed the third-party petition.
`10
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` These actions show that he was Davenport’s
`
`attorney for the purpose of the ancillary petition.
`
`Contrary to Davenport’s contention, the written notice of forfeiture sent to
`
`Dicks was not ambiguous with respect to the governing deadline. The fact that
`
`Davenport filed a timely administrative claim regarding the currency did not mean
`
`that she was exempt from complying with the unconditional language of the
`
` We need not decide whether Dicks’ representation during Davenport’s criminal
`10
`prosecution and administrative forfeiture alone was sufficient to deem him Davenport’s attorney
`for notice purposes.
`
`16
`
`
`
`criminal forfeiture statute, which requires the filing of a timely petition in an
`
`ancillary criminal forfeiture proceeding. See 21 U.S.C. § 853(n)(2). Accordingly,
`
`the district court did not err in dismissing Davenport’s petition as untimely.
`
`C. Relief under Federal Rule of Civil Procedure 60(b)(1)
`
`Davenport argues the district court erred in declining to treat her untimely
`
`petition as an application for Rule 60(b) relief due to mistake, inadvertence, or
`
`excusable neglect. Her claim for relief was, and continues to be, predicated on the
`
`contention that her former attorney reasonably believed the Government’s
`
`published notice of forfeiture superseded the prior written notice he received, and
`
`thus established the governing deadline, because (1) he no longer represented
`
`Davenport in the criminal action when he received the written notice, (2) the two
`
`notices gave different deadlines and did not state that Rule G’s notice provisions
`
`would apply, and (3) the written notice itself was ambiguous with respect to the
`
`applicable deadline. Davenport further contends that she and her attorney did not
`
`act in bad faith, that the Government was not prejudiced by the filing delay, and
`
`that she should not be penalized because the Government failed to serve her
`
`directly with the written notice of forfeiture.
`
`We review a district court’s denial of relief under Rule 60(b) for an abuse of
`
`discretion. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842
`
`17
`
`
`
`(11th Cir. 2008). Rule 60(b)(1) authorizes a district court to relieve a party from a
`
`final judgment, order, or proceeding due to “mistake, inadvertence, surprise, or
`
`excusable neglect.” Fed. R. Civ. P. 60(b)(1). “[F]or purposes of Rule 60(b),
`
`‘excusable neglect’ is understood to encompass situations in which the failure to
`
`comply with a filing deadline is attributable to negligence.” Cheney v. Anchor
`
`Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (quotation omitted).
`
`“[W]hether a party’s neglect of a deadline may be excused is an equitable decision
`
`turning on all relevant circumstances surrounding the party’s omission.” Id.
`
`(quotation omitted). Pertinent factors include “the danger of prejudice to the
`
`opposing party, the length of the delay and its potential impact on judicial
`
`proceedings, the reason for the delay, including whether it was within the
`
`reasonable control of the movant, and whether the movant acted in good faith.”
`
`Id. (quotation and alteration omitted).
`
`Although an attorney’s inadvertent failure to comply with a filing deadline
`
`may constitute excusable neglect, we have recognized a material distinction
`
`between an attorney’s mistake of law and a mistake of fact. See Conn. State
`
`Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1355-56 (11th Cir.
`
`2009); Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir.
`
`1997). While an attorney error based on a misunderstanding or misinterpretation
`
`18
`
`
`
`of the law generally cannot constitute excusable neglect, a mistake of fact, such as
`
`miscommunication or a clerical error, may do so under the pertinent factors.
`
`Anthem, 591 F.3d at 1356; Riney, 130 F.3d at 998-99. Thus, we have held that an
`
`attorney’s failure to understand or review clear law cannot, as a categorical matter,
`
`constitute excusable neglect to relieve a party from the consequences of failing to
`
`comply with a statutory deadline. Riney, 130 F.3d at 997-99. We have also held
`
`that a district court does not abuse its discretion in declining to grant relief under
`
`Rule 60(b)(1) based on an attorney’s misinterpretation of a procedural rule, where
`
`ample caselaw exists to put the attorney on notice that his interpretation is
`
`mistaken. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). In
`
`contrast, in an analogous case concerning Bankruptcy Rule 9006(b)(1), the
`
`Supreme Court held that an attorney’s failure to file a proof of claim within a
`
`court-ordered deadline constituted excusable neglect in light of the “dramatic
`
`ambiguity” in the bankruptcy court’s notice to the parties regarding the filing
`
`deadline. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 382-
`
`83, 398-99, 113 S. Ct. 1489, 1491-92, 1499-1500 (1993). Nevertheless, both the
`
`Supreme Court and this Court have emphasized that represented parties are not
`
`entitled to relief simply because they were penalized by the omissions of counsel.
`
`See Pioneer, 507 U.S. at 396-97, 113 S.Ct. at 1499; Cavaliere, 996 F.2d at 1115.
`
`19
`
`
`
`Since the Government’s written notice of forfeiture and existing law were
`
`sufficient to alert Dicks of the applicable deadline for filing a third-party petition
`
`on Davenport’s behalf, his misinterpretation of the deadline could not, as a matter
`
`of law, constitute excusable neglect to warrant relief under Rule 60(b)(1).
`
`Contrary to Davenport’s contention, the written notice unambiguously informed
`
`Dicks that he had 30 days from the time that he received the notice to file a
`
`petition. Moreover, even prior to the December 2009 amendment of Rule 32.2,
`
`sufficient caselaw and other legal authority put Dicks on notice that either the
`
`notice provisions of Rule G applied to ancillary criminal forfeiture proceedings or
`
`that, in the absence of any statutory definition of proper notice, the written notice
`
`he received was adequate under prevailing due process standards. Dicks’ failure
`
`to review or fully appreciate the law governing adequate notice cannot qualify as
`
`excusable neglect. Further, Dicks’ conversation with the Government regarding
`
`his belief that his filing in the administrative forfeiture action was sufficient to
`
`protect Davenport’s interests in the criminal action belies any argument that he
`
`was no longer Davenport’s attorney. As such, the district court did not abuse its
`
`discretion in declining to grant relief under Rule 60(b)(1).
`
`20
`
`
`
`III. CONCLUSION
`
`Davenport’s appeal of the POF is DISMISSED. The district court’s
`
`rejection of Davenport’s § 853(n) petition and denial of Rule 60(b) relief are
`
`AFFIRMED.
`
`DISMISSED, in part; AFFIRMED, in part.
`
`21
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