OpenJurist

849 F2d 1477 United States v. Industria Brasileir

849 F.2d 1477

UNITED 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.

No. 87-3669.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1988.
Decided June 1, 1988.

Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

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

MEMORANDUM

2

Walter and Rosalie Huss (Husses) appeal from a summary judgment and an order granted pursuant to 21 U.S.C. Sec. 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.

3

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.

4

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.

5

APPEAL DISMISSED.

*

Honorable E. Dean Price, United States District Judge, Eastern District of California, sitting by designation