Unpublished Disposition, 862 F.2d 318 (9th Cir. 1988)

MEMORANDUM

Taylor appeals from his conviction of distributing cocaine in violation of 21 U.S.C. § 841(a) (1), 21 U.S.C. § 841(b) (1) (C), and 18 U.S.C. § 2, and possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 21 U.S.C. § 841(b) (1) (C). The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291. We affirm.

Taylor first contends that his due process rights were violated and the indictment should be dismissed because of an alleged contingent fee agreement between the government and an informant to procure Taylor's arrest and conviction. The district judge did not find there was a contingent fee agreement. If anything, she apparently did not believe there was one proven. That finding was not clearly erroneous. Thus, we need not reach the issue left open in United States v. Ladley, 517 F.2d 1190, 1193, n. 2 (9th Cir. 1975).

The next issue is whether the affidavit in support of the arrest warrant was factually inaccurate based on deliberate or reckless false statements, requiring suppression of evidence. Counsel conceded at oral argument that stated either way, probable cause was shown. Although the supporting affidavit did not state that the informant passed the cocaine from Taylor to Agent Lasher, this failure is insufficient to warrant action under Franks v. Delaware, 438 U.S. 154 (1978).

Finally, Taylor claims the district judge erred in not ordering the seized case returned to him pursuant to Fed. R. Crim. P. 41(e). Concurrent with Taylor's criminal trial, the government instituted civil administrative forfeiture proceedings against the currency pursuant to 21 U.S.C. § 881. The government gave notice of these proceedings to Taylor. Taylor chose not to contest the civil proceedings, but continued to pursue his criminal Rule 41(e) motions. The government prevailed in the civil forfeiture proceeding and the currency was removed to Washington, D.C. The district court's decision to dismiss Taylor's Rule 41(e) motion was correct. Ninth Circuit law on this issue is clear. Once a civil forfeiture proceeding is instituted pursuant to 21 U.S.C. § 881, Fed. R. Crim. P. 54(b) (5) precludes the district court from considering a Rule 41(e) motion. United States v. U.S. Currency, $83,310.78, 851 F.2d 1231 (9th Cir. 1988).

AFFIRMED.