U.S. v. One 1978 Piper Cherokee Aircraft, Tail No. N 5538V, Including its Tools and Appurtenances

• Decision Date: 30 September 1994
• Docket Number: No. 92-15350,92-15350
• Citation: 37 F.3d 489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 PIPER CHEROKEE AIRCRAFT, TAIL NO. N 5538V, INCLUDING ITS TOOLS AND APPURTENANCES, Defendant, Perry A. McCULLOUGH, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 489

37 F.3d 489

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 PIPER CHEROKEE AIRCRAFT, TAIL NO. N 5538V, INCLUDING ITS TOOLS AND APPURTENANCES, Defendant, Perry A. McCULLOUGH, Claimant-Appellant.

No. 92-15350.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 1994.

Decided Sept. 30, 1994.

Richard F. Cornell, Reno, NV, for the claimant-appellant.

Thomas E. Flynn, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: POOLE, CANBY, and RYMER, Circuit Judges.

Opinion by Judge CANBY; Concurrence by Judge RYMER.

CANBY, Circuit Judge:

Claimant Perry McCullough appeals the district court's grant of summary judgment to the United States in this civil forfeiture action brought pursuant to 21 U.S.C. Sec. 881(a)(4). He asserts that the district court never gained in rem jurisdiction in this action because the res never was brought within its district. He also asserts: that the judgment must be reversed because the government lacked probable cause to initiate the action; that the government is promissorily We reject McCullough's challenge to the district court's jurisdiction. We also reject most of McCullough's other assignments of error, but reverse the summary judgment in favor of the government on the ground that this civil forfeiture proceeding is barred by the Double Jeopardy Clause of the Fifth Amendment to the extent that it is predicated upon crimes for which McCullough already has been tried. We remand to the district court for a determination whether the forfeiture can be predicated upon any criminal conduct for which McCullough has not been tried. If so, we leave it to the district court to consider McCullough's excessive fines challenge in the first instance.

estopped from seeking the civil forfeiture; that the government did not provide him constitutionally sufficient notice of the action; and that the forfeiture violates the Double Jeopardy Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment.

BACKGROUND

McCullough was indicted on June 23, 1989 in the Eastern District of California (Eastern District) for numerous drug-related offenses, including conducting a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848. The indictment contained a forfeiture provision alleging that several items of McCullough's property, including the aircraft that is the subject of this action, were subject to criminal forfeiture as provided in 21 U.S.C. Sec. 853. On the same day the indictment was received, the government obtained from the Central District of California (Central District) a warrant for seizure of the aircraft pursuant to 21 U.S.C. Sec. 881(b), and it immediately seized the aircraft. In December 1989, the government initiated this civil forfeiture action under 21 U.S.C. Sec. 881(a)(4) in the Eastern District, where the criminal charges were still pending.

McCullough filed a verified claim in the civil forfeiture proceedings as provided in Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules to Federal Rules of Civil Procedure, 28 U.S.C., hereinafter "Supplemental Rules"). ¹ He later filed an answer to the government's complaint as required by the Rule. The district judge who presided over both the criminal and civil actions stayed the civil proceedings pending the outcome of the criminal trial.

The jury in McCullough's criminal case returned a verdict of guilty on all counts. The jury also returned a verdict of forfeiture against the aircraft. Judgment of conviction and forfeiture was entered accordingly.

Following the successful criminal prosecution and forfeiture, the government resumed prosecution of the civil forfeiture action to perfect its title to the aircraft against potential third-party claimants. ² The government moved for summary judgment, and the district court granted the motion on the ground that no genuine issues of material fact exist as to the elements necessary to establish the civil forfeiture.

I. JURISDICTION

McCullough contends that the United States District Court for the Eastern District of California never obtained jurisdiction over this civil forfeiture action because the aircraft never was brought within the geographic confines of, or "arrested" in, the Eastern District. He asserts that the location of the res within the geographical boundaries of the Prior to October 1992, federal courts struggled with the questions whether a district court other than that in which the property was located could exercise jurisdiction over the subject of a forfeiture and could effectuate process against the property. See United States v. Real Property Known as 953 East Sahara, Las Vegas, Nevada, 807 F.Supp. 581, 583-85 (D.Ariz.1992) (discussing the questions and citing cases). The problems involved reconciling the provisions of several statutes dealing with jurisdiction, venue and service of process. See id. (discussing interplay between 28 U.S.C. Sec. 1355, 18 U.S.C. Sec. 981(h), 21 U.S.C. Sec. 881(j), Supplemental Rule E(3)(a) and Fed.R.Civ.P. 4(f)).

district at the initiation of a civil forfeiture action is a prerequisite for the exercise of in rem jurisdiction. We hold that, even if McCullough's contention is correct, recent congressional enactments clearly conferring jurisdiction upon the Eastern District are to be applied to this case, which was pending at the time of the enactments. ³

In October 1992, however, Congress amended 28 U.S.C. Sec. 1355, unifying the treatment of jurisdiction, venue and authority to serve process in civil forfeiture cases. Section 1355 now clearly confers jurisdiction over this action in the Eastern District. The section provides:

(a) The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress....

(b)(1) A forfeiture action or proceeding may be brought in--

(A) the district court for the district in which any of the acts or omissions giving rise to the forfeiture occurred, or

(B) any other district where venue for the forfeiture action or proceeding is specifically provided for in section 1395 of this title or any other statute.

. . . . .

(d) Any court with jurisdiction over a forfeiture action pursuant to subsection (b) may issue and cause to be served in any other district such process as may be required to bring before the court the property that is the subject of the forfeiture action.

28 U.S.C. Sec. 1355 (emphasis added). The Eastern District has jurisdiction over this forfeiture pursuant to the italicized provision because venue for the proceeding in the Eastern District is provided for in 21 U.S.C. Sec. 881(j) (venue lies in the judicial district in which the criminal prosecution is brought).

We have no difficulty concluding that the amendment to Sec. 1355 applies to this case, which was on appeal at the time the amendment was enacted. See Landgraf v. USI Film Products, --- U.S. ----, ----, 114 S.Ct. 1483, 1501, 128 L.Ed.2d 229 (1994) ("We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed."); Republic Nat'l Bank of Miami v. United States, --- U.S. ----, ---- - ----, 113 S.Ct. 554, 565-66, 121 L.Ed.2d 474 (1992) (Thomas, J., concurring). In Landgraf, the Court explained:

Application of a new jurisdictional rule usually "takes away no substantive right but simply changes the tribunal that is to hear the case." Present law normally governs in such situations because jurisdictional statutes "speak to the power of the court rather than to the rights or obligations of the parties."

Landgraf, --- U.S. at ----, 114 S.Ct. at 1502 (citations omitted).

We are aware that the Tenth Circuit has declined to apply Sec. 1355 "retroactively." See United States v. 51 Pieces of Real Property, Roswell, New Mexico, 17 F.3d 1306, 1312 (10th Cir.1994). The Tenth Circuit, however, did not have the benefit of the Landgraf opinion and its explicit rule regarding retroactive application of jurisdictional statutes. In addition, the Tenth Circuit had before it We follow Landgraf, then, and apply Sec. 1355(b)(1)(B) to uphold the district court's jurisdiction despite the fact that the aircraft res was never physically brought within the boundaries of the Eastern District.

the further question whether Sec. 1355(d)'s service of process provision should be applied retroactively. 51 Pieces of Real Property, 17 F.3d at 1312 ("Moreover, even if the provisions were otherwise retroactive, we doubt they could retroactively validate service of process that was invalid when executed."). In contrast, we need not determine whether the service provision of Sec. 1355(d) is retroactive, or even whether service in this case was "invalid" because, as we determine in the next section, McCullough has waived any objections to service.

II. SERVICE OF PROCESS

One remaining aspect of McCullough's challenge to the district court's in rem jurisdiction deserves mention. McCullough relied heavily on the language of Supplemental Rule E(3)(a), which provides that service of process in rem must be made within the district. ⁴ To the extent that McCullough's jurisdictional argument depends on this Rule, however, it is a defense of insufficiency of process that has been waived.

The Federal Rules of Civil Procedure apply to this action to the extent that they are not inconsistent with the Supplemental Rules. See Supplemental Rule A. Rule 12(h) of the Federal Rules of Civil Procedure provides that an objection to sufficiency of process is waived if not made in a motion pursuant to Rule 12 nor in a responsive pleading. McCullough did not object to the method...