946 F.2d 899 (9th Cir. 1991), 90-16194, U.S. v. $390,047.55 in U.S. Currency

• Citation: 946 F.2d 899
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. $390,047.55 IN U.S. CURRENCY, Defendant, and Jesus Jose Castro-Vasquez and Luz Marlene Castro, Claimants-Appellants.
• Case Date: October 08, 1991
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

Page 899

946 F.2d 899 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

$390,047.55 IN U.S. CURRENCY, Defendant,

and

Jesus Jose Castro-Vasquez and Luz Marlene Castro, Claimants-Appellants.

No. 90-16194.

United States Court of Appeals, Ninth Circuit

October 8, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided Oct. 17, 1991.

Appeal from the United States District Court for the District of Arizona, No. CV-89-262-TUC-WDB; William D. Browning, District Judge, Presiding.

D.Ariz.

DISMISSED.

Before GOODWIN, WILLIAM A. NORRIS and DAVID R. THOMPSON, Circuit Judges.

MEMORANDUM ^[**]

OVERVIEW

Claimants Jesus Jose Castro-Vasquez and Luz Marlene Castro appeal a district court order requiring the forfeiture of $390,047.55 deposited by them into three Arizona bank accounts between 1987 and 1989. Many of these deposits were made on the same day, and each was for an amount less than $10,000. The district court held that probable cause existed to believe the claimants had intentionally structured the deposits in violation of 31 U.S.C. § 5324(3). ¹ As a result of claimants' actions, the court ordered the funds forfeited pursuant to 18 U.S.C. § 981(a)(1)(A).

Following the judgment, claimants timely filed a notice of appeal with this court. No attempt was made, however, to seek a stay of judgment or to file a supersedeas bond in order to prevent execution of the order. Subsequently, on October 5, 1990, the order of forfeiture was executed by the United States Marshal's office, which immediately transferred the funds to the Department of Justice Assets Forfeiture Fund. ² Following execution of the order, appellee moved to dismiss the appeal as moot, arguing that this court's in rem jurisdiction over the property terminated once the funds were removed from the district court's control.

We agree with the appellee that in rem jurisdiction was lost when the funds were transferred to the Assets Forfeiture Fund. Accordingly, we dismiss this appeal.

DISCUSSION

This court's subject matter jurisdiction over an in rem action terminates once the property involved is removed from the court's control. Pennington v. Fourth National Bank, 243 U.S. 269, 272 (1917); United States v. $57,480.05 United States Currency and Other Coins, 722 F.2d 1457, 1459 (9th Cir.1984). We have consistently applied this rule to forfeiture proceedings, since by their very nature such actions are in rem. See, e.g., United States v. $2,490.00 in United States Currency, 825 F.2d 1419, 1420 (9th Cir.1987) ( "Because forfeiture proceedings are in rem, the court's subject matter jurisdiction is dependent on its continuing control over the property."). Consequently, unless control over the res is preserved following an order of forfeiture, an execution of that order will terminate our subject matter jurisdiction over the property. Id. at 1420. The filing of a notice of appeal, without further action, is insufficient to protect the court's control over the res. Id.; American Bank of Wage Claims v. Registry of Dist.Ct., 431 F.2d 1215, 1218 (9th Cir.1970).

Claimants in this case timely filed a notice of appeal of the district court's judgment. However, they failed to take any further action to preserve the court's control over the contested funds. At no time did they file, or attempt to file, a stay of the judgment in order to preserve jurisdiction for appeal. As a...