Unpublished Dispositionunited States of America, Plaintiff-appellee,walter Huss and Rosalie Huss, Claimants-appellants, v. Industria Brasileir; Herbal Tea Aa Nnatureza Pau D'arco,net Wt. 3 Oz.; Spotlight Newspaper, Defendants, 849 F.2d 1477 (9th Cir. 1988)

Before WALLACE and REINHARDT, Circuit Judges, and E. DEAN PRICE,^*  District Judge.

MEMORANDUM

Walter and Rosalie Huss (Husses) appeal from a summary judgment and an order granted pursuant to 21 U.S.C. § 334 for condemnation and destruction of the tea and accompanying labeling. As no stay was sought by the claimant, Priority Products, Inc., or the Husses, the condemned tea was released to the United States Food and Drug Administration (FDA) and destroyed.

We need not reach the question whether the Husses, who were not parties to the district court action, can bring this appeal. Even if they can, we have no jurisdiction.

We conclude that "forfeiture proceedings are in rem, [and therefore] the court's subject matter jurisdiction is dependent on its continuing control over the property." United States v. $2,490.00 in U.S. Currency, 825 F.2d 1419, 1420 (9th Cir. 1987). When the property in question--the res--is removed from the control of the court, jurisdiction is thereby defeated. United States v. 66 Pieces of Jade and Gold Jewelry, 760 F.2d 970, 972-73 (9th Cir. 1985). A forfeiture claimant may protect the court's control over the res by filing a stay of the district court's judgment pending appeal. Id. at 973. As no stay of the judgment was filed, the tea was properly turned over to the FDA for destruction. See id.; see also $2,490.00 in U.S. Currency, 825 F.2d at 1420-21.

APPEAL DISMISSED.