May 28, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2141
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ONE PARCEL OF REAL PROPERTY WITH THE BUILDING,
APPURTENANCES, AND IMPROVEMENTS KNOWN AS
384-390 WEST BROADWAY, SOUTH BOSTON, MASSACHUSETTS,
Defendant.
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EMANUEL L. ROSENGARD,
Claimant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boyle,* District Judge.
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William F. Spallina for appellant.
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Frederick E. Dashiell, Assistant United States Attorney,
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with whom Wayne A. Budd, United States Attorney, was on brief,
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for appellee.
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SELYA, Circuit Judge. This appeal asks us to determine
SELYA, Circuit Judge.
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whether a district court, almost two years after it issued a
forfeiture order, acted properly in enlarging the order's reach
beyond the property specifically identified in the government's
complaint. We hold that, in the circumstances of this case, the
district court did not possess such untrammeled authority.
I. BACKGROUND
I. BACKGROUND
On February 12, 1987, law enforcement officers found a
cache of marijuana, cocaine, and diazepam at premises owned by
claimant-appellant Emanuel Rosengard. Later that month, the
federal government initiated a forfeiture action. The
government's complaint described the defendant property as "384-
390 West Broadway, South Boston, Massachusetts." An exhibit
attached to the complaint delineated the property's boundaries,
replicating the language of a deed by which the Broadway property
had been conveyed to Rosengard in 1971.1 The complaint made no
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1The description reads:
A certain parcel of land together with a building,
appurtenances, and improvements, situated in that part of Boston
called South Boston, in the County of Suffolk, Commonwealth of
Massachusetts, bounded and described as follows:
SOUTHEASTERLY by Broadway (between E and F Streets)
about sixty-five feet, six inches;
NORTHWESTERLY by land formerly of Wright and others, one
hundred and forty-five feet, six inches; and
NORTHEASTERLY by a twenty foot street now called Athens
Street, about sixty-five feet, six inches;
and
SOUTHEASTERLY by land late of John Redman, one hundred
forty-five feet, six inches, together with
the rights, easements, privilegesand appurte-
nances thereto belonging.
2
mention of an abutting parcel, known as 309 Athens St., which
Rosengard bought from a different seller in 1973.
Following pretrial discovery, the district court
granted summary judgment in favor of the government. The Court's
order declared forfeit "the defendant real property with the
building, appurtenances, and improvements, known as 384-390 West
Broadway, South Boston, Massachusetts." Final judgment was
entered on November 22, 1989. An appeal was taken but, later,
withdrawn.
On August 23, 1991, the government attempted to breathe
new life into the corpse. It filed a motion which it
euphemistically styled as one for clarification of the forfeiture
order. In that motion, the government asked the district court
to rewrite the order and judgment to encompass both the Broadway
and Athens St. properties. The government averred that, as far
back as 1974, the two properties had been pledged as joint
security for a construction mortgage obtained from South Boston
Savings Bank (which mortgage financed Rosengard's erection of a
commercial structure that occupied the Broadway site at the time
of the drug raid); that the Athens St. property was used for
parking in connection with the operation of the commercial
building throughout the period of Rosengard's ownership; and
that, in 1974, a "compiled plan" linking the two parcels was
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The parties agree that the government made a typographical error
in the directional signal relating to the fourth boundary
description. That signal should have read "SOUTHWESTERLY" rather
than "SOUTHEASTERLY." No one was misled by this bevue. At any
rate, it has no bearing on the problem at hand.
3
filed in the Recorder of Deeds' office.
On these bases, the government asserted that forfeiture
of the Athens St. property was subsumed under the terms of the
original order and judgment. It claimed that the two pieces of
property were actually a single tract of land or, alternatively,
that the Athens St. property was "appurtenant" to the Broadway
property. Rosengard opposed the motion, claiming prejudice and
offering a salmagundi of reasons why the government's
afterthought maneuver should be thwarted. Moreover, Rosengard
urged that, if the earlier judgment were to be reopened for any
purpose, it should be vacated entirely and the case as a whole
relitigated.
The district court took no evidence. Rather, it
disposed of this burgeoning controversy in a single sentence,
writing that: "Forfeiture of [the] entire tract of land is
allowed." The parties agree that the effect of this ruling was
to bring the Athens St. property within the encincture of the
existing judgment. Rosengard appeals. We reverse.
II. THE LEGAL LANDSCAPE
II. THE LEGAL LANDSCAPE
We turn first to some general principles pertaining to
the forfeiture of real property under the statute invoked by the
government.2 We then discuss the procedures prescribed by law
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2The statute provides in pertinent part:
The following shall be subject to
forfeiture to the United States and no
property right shall exist in them:
4
for the exercise of this forfeiture power.
A. Forfeitable Property.
A. Forfeitable Property.
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21 U.S.C. 881(a)(7) authorizes the federal government
to bring forfeiture proceedings against certain real property.
The government urges that the statutory phrase "the whole of any
lot or tract of land" is capacious enough to justify the
forfeiture of the two properties as a unit. Since the tract
encompasses both properties, this thesis runs, Rosengard's
illegal activities on the Broadway parcel authorized forfeiture
of the entirety. See United States v. 2 Burditt St., 924 F.2d
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383, 385 (1st Cir. 1991) ("in a forfeiture proceeding under
section 881(a)(7), property in its entirety is forfeitable even
if only a portion of it was used for illegal purposes"); accord
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United States v. One Parcel, Etc. (Great Harbor Neck, New
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Shoreham, R.I.), ___ F.2d ___, ___ n.7 (1st Cir. 1992) [No. 91-
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1681, slip op. at 15 n.7]; United States v. 6250 Ledge Rd., 943
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F.2d 721, 726 (7th Cir. 1991); United States v. 3097 S.W. 111th
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Ave., 921 F.2d 1551, 1557 (11th Cir. 1991); United States v.
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141st St. Corp., 911 F.2d 870, 880 (2d Cir. 1990), cert. denied,
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111 S. Ct. 1017 (1991); United States v. One 107.9 Acre Parcel of
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. . .
All real property, including any right,
title, and interest in the whole of any lot
or tract of land and any appurtenances or
improvements, which is used, or intended to
be used, in any manner or part, to commit, or
facilitate the commission of [certain drug-
related felonies] . . . .
21 U.S.C. 881(a)(7) (1982 & Supp. 1988).
5
Land, 898 F.2d 396, 400 (3d Cir. 1990); United States v. 40 Moon
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Hill Rd., 884 F.2d 41, 45 (1st Cir. 1989); United States v. 300
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Cove Rd., 861 F.2d 232, 233-35 (9th Cir. 1988), cert. denied, 493
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U.S. 954 (1989); United States v. Reynolds, 856 F.2d 675, 676
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(4th Cir. 1988).3
In this case, however, there is a rub. While the law
permits the government to seize an entire tract of land if a
portion of it is used in contravention of section 881(a)(7),
neither the statute nor the case law mandates that the government
must pursue this course. This appeal, therefore, does not
require that we address the government's power to forfeit both
parcels had it tried to do so when it undertook to sue. Rather,
this appeal focuses on a much different question: Even assuming
that the government might successfully have urged that
Rosengard's two properties constituted a single tract for
purposes of the forfeiture law, did the government take the
procedural steps necessary to bring the full weight of its
statutory authority to bear? If the government did not do what
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3Although the government may define a lot or tract of land
by the description contained in a deed or other record of land
evidence, see Great Harbor Neck, ___ F.2d at ___ [slip op. at
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10]; United States v. Santoro, 866 F.2d 1538, 1543 (4th Cir.
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1989), it is not obligated to describe a lot or tract in that
way. See, e.g., United States v. 4492 S. Livonia Rd., 889 F.2d
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1258, 1270 (2d Cir. 1989) ("It is also possible to construe 'any
lot or tract' to refer to real estate of the size usually
associated with a lot or a tract of fairly limited acreage,
rather than whatever land area is encompassed within the deed by
which the owner acquire title."); see also Great Harbor Neck, ___
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F.2d at ___ [slip op. at 10] (suggesting that the government may
also delineate a tract, for purposes of section 881(a)(7), by
acts of an individual which signify dominion and ownership).
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was necessary to forfeit the Athens St. property as a segment of
the whole, it could not lay claim to that parcel, after the fact,
as if it were part of the original suit.
It is against this backdrop that we turn to the
applicable procedures.
B. Prescribed Procedures.
B. Prescribed Procedures.
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Forfeiture complaints filed pursuant to 21 U.S.C. 881
are governed by the Supplemental Rules for Certain Admiralty and
Maritime Claims.4 See 21 U.S.C. 881(b); United States v. Pole
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No. 3172, 852 F.2d 636, 638 (1st Cir. 1988). Two rules address
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the level of particularity required in forfeiture complaints.
Admiralty Rule C(2) states that the complaint "shall describe
with reasonable particularity the property that is the subject of
the action." Admiralty Rule E(2)(a) states that "the complaint
shall state the circumstances from which the claim arises with
such particularity that the defendant or claimant will be able,
without moving for a more definite statement, to commence an
investigation of the facts and to frame a responsive pleading."
The cases are consentient that the Admiralty Rules
demand more particularity in the crafting of forfeiture
complaints than is generally required in authoring complaints
under the Civil Rules. See United States v. 2323 Charms Rd., 946
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4Resort may also be had to the Federal Rules of Civil
Procedure for interstitial matters or where the Admiralty Rules
are silent; but, in the event of a conflict, the Admiralty Rules
control. See United States v. $38,000.00 in United States
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Currency, 816 F.2d 1538, 1547 n.20 (11th Cir. 1987); United
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States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1216 (10th
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Cir. 1986).
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F.2d 437, 441 (6th Cir. 1991); United States v. 4492 S. Livonia
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Rd., 889 F.2d 1258, 1266 (2d Cir. 1989); Pole No. 3172, 852 F.2d
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at 640-41; United States v. $38,000.00 in United States Currency,
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816 F.2d 1538, 1547 n.20 (11th Cir. 1987); United States v.
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$39,000 in Canadian Currency, 801 F.2d 1210, 1216 (10th Cir.
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1986). While all the facts necessary to satisfy this mandate
need not be recited in the complaint's text the Admiralty
Rules' requirements can be satisfied by information contained in
affidavits or other documentation attached to the complaint, see
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United States v. One Parcel of Real Property, 921 F.2d 370, 376
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n.10 (1st Cir. 1990); United States v. Parcels of Land, 903 F.2d
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36, 48 (1st Cir.), cert. denied, 111 S. Ct. 289 (1990) the
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facts must nonetheless clearly appear so that all persons
potentially interested in the property will be afforded fair
notice of the sovereign's position and intention.
Moreover, despite the fact that the case law has not
fully fleshed out the ossature of Admiralty Rule C(2), it is
plain from the rule's text that a forfeiture complaint must
achieve a meaningful level of detail in describing the property
to be forfeited. This conclusion follows both from our belief
that it is proper to interpret Admiralty Rules C(2) and E(2)(a)
in pari materia and from the gloss that we have previously placed
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on Admiralty Rule E(2)(a). That rule is
designed to assure that the forfeiture
complaint apprises potential claimants of the
circumstances which support the government's
contention that there is probable cause to
believe that the defendant property was
connected with illegal drug activity, thus
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enabling claimants "to commence an
investigation of the facts and to frame a
responsive pleading."
One Parcel, 921 F.2d at 375 (emphasis deleted; citations omitted)
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(quoting Rule); accord Parcels of Land, 903 F.2d at 48; Pole No.
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3172, 852 F.2d at 638. Other courts read Admiralty Rule E(2)(a)
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in much the same way. See, e.g., 3097 S.W. 111th Ave., 921 F.2d
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at 1554-55; $38,000.00, 816 F.2d at 1548; $39,000, 801 F.2d at
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1216, 1219.
The exacting particularity standard applicable to
forfeiture actions "is not merely a procedural technicality,"
Pole No. 3172, 852 F.2d at 638, but is, instead, a significant
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legal rule designed to curb excesses of government power and
afford property owners some protection from the harshness of a
forfeiture's attendant sanctions. See 2323 Charms Rd., 946 F.2d
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at 441; 4492 S. Livonia Rd., 889 F.2d at 1266; Pole No. 3172, 852
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F.2d at 638. So viewed, the stringent pleading rules applicable
in the forfeiture context mirror the drastic nature of the
remedy. See Pole No. 3172, 852 F.2d at 638; $39,000, 801 F.2d at
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1216, 1218; see also 12 Charles A. Wright & Arthur R. Miller,
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Federal Practice & Procedure 3242 (1973). Because Congress has
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supplied the government with one of the most potent weapons in
the judicial armamentarium, the courts must make certain that the
government is, at the very least, reasonably precise in its
deployment.
In sum, since forfeitures are strong medicine,
disfavored in our jurisprudence, it seems fitting to condition
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the medicine's availability on a proper regard for the
requirements of the law. Accord United States v. 4880 S.E. Dixie
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Highway, 838 F.2d 1558, 1564 (11th Cir. 1988); $38,000.00, 816
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F.2d at 1547.
III. ANALYSIS
III. ANALYSIS
Whether a forfeiture complaint is, or is not,
sufficiently particularized to reach a given piece of property is
an issue of law subject to plenary review. See, e.g., 2323
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Charms Rd., 946 F.2d at 442; 3097 S.W. 111th Ave., 921 F.2d at
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1554. We now undertake that inquiry.
Fairly read, the government's complaint in this action
sought to forfeit the Broadway property nothing more. It did
not, in the idiom of Admiralty Rule C(2), describe the Athens St.
property with "reasonable particularity." Indeed, the complaint
did not describe, or even refer to, that parcel at all. Perusing
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the complaint and the paperwork associated with it, there was no
basis for a reasonably prudent reader or even an unusually
cautious reader to suspect that the Athens St. property was at
risk. We believe that the government's decision to focus
exclusively on the Broadway site was tantamount to a waiver of
any claim against the adjacent property. After all, as the
ancient maxim teaches, inclusio unius est exclusio alterius.
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It follows inexorably that the so-called motion for
clarification should have been denied. Most litigation involves
cost/benefit assumptions. A party who reasonably believes that
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he stands to lose only Parcel "X" may choose not to mount an all-
out defense against threatened forfeiture; yet the same party, on
the same facts, when faced with the combined loss of Parcels "X"
and "Y," may well commit more resources to the struggle. Thus,
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fundamental fairness requires that the government, when seeking
to forfeit property, must describe it with specificity if not
with mathematical precision.
Here, the government wholly failed to carry its burden.
The complaint in this case apprised the claimant only of the
government's intention to seek forfeiture of the Broadway
property. The claimant was entitled to rely on what the
complaint indicated. The government cannot be allowed to obtain a
judgment against a carefully defined piece of property and, after
the battle has been won, unfairly increase the stakes.5
IV. CONCLUSION
IV. CONCLUSION
To recapitulate, the government originally sought to
take one bite of the apple. After receiving the district court's
blessing, it then sought to double the size of the bite. By that
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5In reaching this result, we pronounce ourselves unwilling
to indulge the government's claim that the Athens St. parcel is
merely an "appurtenance" to the Broadway parcel. While such a
claim, if made with adequate detail in the original complaint,
might conceivably have had a modicum of merit a question that
we need not reach and, therefore, do not address it is
perfectly clear that the government cannot be allowed to bypass
its obligation to give claimants fair notice by including a
cryptic reference to "appurtenances" in a complaint and then
reading section 881(a)(7)'s reference to that word so broadly as
to cover an independently deeded piece of property not
specifically identified in the forfeiture complaint. The
stringent requirements of the Admiralty Rules cannot so blithely
be skirted.
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time, judgment had entered. Since the government made no showing
legally sufficient to warrant relief from the original decree,6
the district court was without lawful power to modify the
judgment by increasing its scope.
We need go no further. We hold that, given the
complete absence of any description of, or reference to, the
Athens St. parcel in either the original complaint or the
paperwork associated with it, the particularity requirements of
Admiralty Rules C(2) and E(2)(a) were not satisfied as to that
parcel. Hence, the judgment below must be reversed and the
original judgment reinstated. At the same time, however, we deny
the claimant's cursory request for attorneys' fees under the
Equal Access to Justice Act, 28 U.S.C. 2412 (1988). See Ryan
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v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) (an
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appellate court will ordinarily decline to consider "issues
adverted to on appeal in a perfunctory manner, unaccompanied by
some developed argumentation"); United States v. Zannino, 895
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F.2d 1, 17 (1st Cir.) (same), cert. denied, 494 U.S. 1082 (1990).
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Reversed and remanded.
Reversed and remanded.
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6This would be a different case if, after entry of final
judgment, the government were able to show, within the time
parameters allowed by law, that the original judgment should be
set aside for some reason cognizable under Fed. R. Civ. P. 59(e)
or Fed. R. Civ. P. 60(b). The government, however, has not
advanced any such asseveration.
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