Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1989)

MEMORANDUM^** 

Ronald Lee Wulferdinger seeks the return of money forfeited pursuant to 21 U.S.C. § 881(a) (6) (1982). He argues that the district court erred in not declaring the forfeiture invalid on the theory the government should have included a forfeiture count in the indictment. We conclude that the district court did not have jurisdiction to decide the matter and that even if it had, Wulferdinger's argument would fail.

Wulferdinger's Fed. R. Crim. P. 41(e) motion for the return of the money was filed nearly two and one-half years after the money was administratively forfeited pursuant to section 881(a) (6). Once such proceedings are instituted, Fed. R. Crim. P. 54(b) precludes the district court from considering a Rule 41(e) motion. United States v. U.S. Currency, $83,310.78, 851 F.2d 1231, 1232-35 (9th Cir. 1988). Wulferdinger should have tested the legality of the forfeiture during those proceedings. See In re Harper, 835 F.2d 1273, 1274-75 (8th Cir. 1987). We therefore conclude that the district court did not have jurisdiction to decide Wulferdinger's motion. We affirm the denial of the motion on that ground.

Even assuming that the district court had jurisdiction, we would affirm its denial of Wulferdinger's motion. Wulferdinger argues that forfeiture under 21 U.S.C. § 881(a) (6) implicates Fed. R. Crim. P. 7(c) (2), which states that " [n]o judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest or property subject to forfeiture." He relies on United States v. Seifuddin, 820 F.2d 1074, 1078 (9th Cir. 1987), where we declared that " [i]f the statute under which the forfeiture alleged is penal, it will be treated as a criminal forfeiture."

We have previously held, however, that section 881 is not a criminal statute. United States v. One 1970 Pontiac GTO, 2-Door Hardtop, 529 F.2d 65, 66 (9th Cir. 1976), cited with approval in United States v. Henderson, 844 F.2d 685, 688 (9th Cir. 1988), and United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1364 n. 8 (9th Cir. 1986). Other circuits have similarly concluded that proceedings under section 881 are civil. E.g., Floyd v. United States, 860 F.2d 999, 1007 (10th Cir. 1988); In re Seizure Warrant, 830 F.2d 372, 374 (D.C. Cir. 1987), vacated as moot, 109 S. Ct. 299 (1988); United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532, 543-45 (5th Cir. 1987), cert. denied, 108 S. Ct. 1270 (1988); United States v. $2,500 in U.S. Currency, 689 F.2d 10, 13-14 (2d Cir. 1982), cert. denied, 465 U.S. 1099 (1984).

AFFIRMED.