Unpublished Disposition, 874 F.2d 817 (9th Cir. 1988)

MEMORANDUM

The government appeals from the district court's order in the criminal case (No. 87-1346) granting Wortz's request to exempt reasonable attorneys' fees of $55,000 from civil forfeiture under 21 U.S.C. § 881. We consolidate this appeal with the appeal of civil action No. 88-15843. We defer submission on the merits pending the Supreme Court's decision in United States v. Monsanto, 852 F.2d 1400, 1410 (2d Cir.) (en banc), cert. granted, 109 S. Ct. 363 (1988), and Caplin & Drysdale v. United States, 837 F.2d 637 (4th Cir.) (en banc), cert. granted, 109 S. Ct. 363 (1988).

* The Drug Enforcement Agency seized approximately $69,000 in United States currency from Wortz's home during a warranted search. The government has since retained custody of the money. On August 4, 1987, Wortz was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. On August 6, the government filed an administrative notice of its intention to sue for civil forfeiture of the seized money. On August 31, Wortz filed a motion in the criminal action to exempt $65,000 in attorneys' fees from civil forfeiture.

On October 9, the district court issued an order in the criminal action exempting the $55,000 from civil forfeiture. The government filed a complaint for civil forfeiture on November 5. A warrant for the arrest of the currency was issued on the same day. On November 9, the government filed a notice of appeal from the October 9th order. The government's notice of appeal captioned both the criminal and civil actions.

The government brought a motion to consolidate the appeals of the criminal and civil actions. The motion was denied by a motions panel. In the appeal from the order in the criminal action, the panel remanded to the district court for the limited purpose of entering conclusions of law to enable the panel to determine if the government's appeal should be dismissed for lack of jurisdiction under United States v. Henderson, 844 F.2d 685 (9th Cir. 1988) (Henderson) . The district court issued findings and conclusions on November 2, captioning both the criminal and civil actions. On December 7, the government moved for entry of final judgment against the government on the $55,000 exemption from forfeiture under Fed. R. Civ. P. 54(b). The court entered a final judgment in the civil action under Rule 54(b) on December 13. On December 15, the government filed notice of appeal in the civil action from the final judgment. On December 20, Wortz filed a motion in the district court to set aside the judgment and vacate notice of appeal. The district court has not acted upon this motion.

II

We review jurisdictional issues independently. Waste Management of North America v. Weinberger, 862 F.2d 1393, 1396 (9th Cir. 1988).

We must first determine whether we should treat the district court's order in the criminal action exempting the $55,000 as a ruling in a civil forfeiture or as any other order granting a motion in a criminal action. In Henderson, we characterized a motion brought in the criminal action to exempt seized funds from civil forfeiture as civil. Henderson, 844 F.2d at 688. We dismissed the appeal under 28 U.S.C. § 1252, which then required direct appeal to the Supreme Court of orders in civil actions which held acts of Congress unconstitutional and to which the United States was a party. Section 1252 was repealed after Henderson, effective September 26, 1988.

The government argues that the order in the criminal action should be treated as any other order in a criminal trial. Henderson will not allow us to do so. In that case, both criminal and civil forfeiture actions had been filed. We could have treated the motions to exempt from forfeiture as ordinary motions in a criminal trial and reached the merits of the appeal. We declined to do so. We did not treat the motion brought in the criminal action as criminal in nature because the res was not before us in the criminal action. We treated the motion as civil because we had jurisdiction over the res only in the civil proceeding.

Following the reasoning in Henderson, we conclude that the district court in the present case had no jurisdiction to issue the order in the criminal action exempting the funds. Under Henderson, we cannot treat Wortz's motion to exempt as just another motion in a criminal trial. The district court needed jurisdiction over the res for its order to be valid.

In the present case, the civil forfeiture action was not filed by the government until after the court granted Wortz's motion in the criminal case. At that time, the court did not have jurisdiction over the res, since the civil action had not yet been filed. Wortz's preemptive action in filing the motion for exemption before the civil forfeiture action was filed did not give the district court jurisdiction over the res. In addition, the court did not have jurisdiction over the money under the criminal forfeiture provision authorized in 21 U.S.C. § 853 because the forfeiture was not pled in the indictment. "No judgment may be entered in a criminal proceeding unless the indictment ... shall allege the extent of the interest or property subject to forfeiture." Fed. R. Crim. P. 7(c) (2); United States v. Seifuddin, 820 F.2d 1074, 1078 n. 2 (9th Cir. 1987). Since the district court lacked jurisdiction over the money, the order in the criminal case was improperly entered. We dismiss the appeal from the order in the criminal case (No. 87-1346) for lack of jurisdiction and remand that cause for dismissal by the district court.

III

After the district court entered its conclusions of law as we requested, the government successfully moved for entry of judgment against the government in its civil action under Federal Rule of Civil Procedure 54(b). This was to enable the government to pursue this appeal from that judgment. Wortz argues that the district court acted improperly in entering judgment because it went beyond the limited purpose of the remand. If the judgment had been entered in the criminal action, Wortz would be correct. However, the judgment was entered only in the civil action. Thus, it did not violate the limited purpose of the remand which pertained only to the criminal action. We conclude we have jurisdiction over the civil appeal (No. 88-15843).

Donovan v. Richland County Association, 454 U.S. 389 (1982) (per curiam), relied on by Wortz, is not controlling. There, the Court declined to remand a case for a new judgment from which a fresh appeal could be taken, where the original judgment had been appealed to the wrong court under 28 U.S.C. § 1252. In the instant case, there was only one final judgment in the civil action, not a new judgment issued for purposes of taking a fresh appeal as in Donovan. Hence Donovan does not invalidate the district court's entry of judgment in the civil action.

We postpone a decision on the merits of the appeal in the civil action pending the Supreme Court's decision on this issue in Monsanto and Caplin & Drysdale.

The appeal in case No. 87-1346 is dismissed and remanded for dismissal of order.

Submission in case No. 88-15843 is withdrawn pending Supreme Court decisions.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.