Unpublished Disposition, 845 F.2d 329 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 845 F.2d 329 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellant,v.$70,476.00 IN U.S. CURRENCY, Defendant.Charles M. Mobley, Doron Weinberg, Claimants-Appellees.

No. 87-2784.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1988.Withdrawn From Submission March 18, 1988.Resubmitted April 8, 1988.Decided April 15, 1988.

Before EUGENE A. WRIGHT, CHOY, and NELSON, Circuit Judges.

MEMORANDUM* 

The United States Government ("the Government") appeals from an order of the district court excluding attorneys fees from assets seized pursuant to the civil forfeiture provision of 21 U.S.C. § 881. The court held that a criminal defendant's sixth amendment qualified right to counsel of choice outweighs the Government's interest in the retention of otherwise forfeitable property. The court thus held that the statute was unconstitutional as applied to reasonable attorneys' fees. We dismiss for lack of jurisdiction.

Another panel of this court recently held, under virtually identical circumstances, that appeal from an order of the district court holding Sec. 881 unconstitutional as applied must be taken directly to the Supreme Court. See United States v. Henderson, No. 87-1298 (filed April 6, 1988).2  The interaction between 28 U.S.C. §§ 1252 and 1291 mandates this conclusion.

For the reasons expressed in Henderson, we dismiss the Government's appeal for lack of jurisdiction.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 21

 2

The only difference between the two cases is that Henderson involved a concurrent federal prosecution, while in the present case, the defendant requested the exemption of attorneys' fees to defend state criminal charges. This difference is insignificant for purposes of appellate jurisdiction

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