Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1989)

MEMORANDUM

The government appeals from the district court's order exempting $55,000 from forfeiture to pay attorneys' fees in a federal criminal action and declaring 21 U.S.C. § 881 unconstitutional as applied to seized assets required for payment of reasonable attorneys' fees. We deferred submission of this case on the merits to await 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 United States v. Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir.) (en banc), cert. granted, 109 S. Ct. 363 (1988). Those cases have now been decided. United States v. Monsanto, 109 S. Ct. 2657 (1989) (Monsanto) ; Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989) (Caplin & Drysdale) . We have jurisdcition pursuant to 28 U.S.C. § 1292(b). We reverse.

The background facts and procedural history are contained in our prior decision in United States v. Wortz, No. 87-1346, memorandum filed April 26, 1989. On November 5, 1987, the government filed a complaint for civil forfeiture pursuant to 21 U.S.C. § 881(a) (6). A warrant for the arrest of the currency was issued the same day, subject to the exemption of the $55,000 for attorneys' fees ordered in Wortz's criminal action. On November 2, 1988, the district court issued findings and conclusions which applied to both the criminal and civil actions. On December 13, 1988, the court eneted an appealable decision in the civil action pursuant to Fed. R. Civ. P. 54(b). On December 15, the government filed its notice of appeal.

The district court exempted $55,000 in seized currency from forfeiture to pay attorneys' fees in a federal criminal action. The court held that 21 U.S.C. § 881 was unconstitutional as applied to seized assets necessary for payment of reasonable attorneys' fees, in that it violates the defendant's "qualified sixth amendment right to counsel of chice." The Supreme Court has now decisively rejected that view, and upheld the constitutionality of the statute. Caplin & Drysdale, 109 S. Ct. at 2656; Monsanto, 109 S. Ct. at 2665-66. We therefore reverse the district court's decision.

REVERSED.

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.