United States v. One 1978 Piper Cherokee Aircraft, Tail No. N 5538v, Including Its Tools and Appurtenances, Perry A. McCullough Claimant-Appellant

Opinion by Judge CANBY; Concurrence by Judge RYMER.

Claimant Perry McCullough appeals the district court’s grant of summary judgment to the United States in this civil forfeiture action brought pursuant to 21 U.S.C. § 881 (a)(4). He asserts that the district court never gained in rem jurisdiction in this action because the res never was brought within its district. He also asserts: that the judgment must be reversed because the government lacked probable cause to initiate the action; that the government is promissorily *491 estopped from seeking the civil forfeiture; that the government did not provide him constitutionally sufficient notice of the action; and that the forfeiture violates the Double Jeopardy Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment.

We reject McCullough’s challenge to the district court’s jurisdiction. We also reject most of McCullough’s other assignments of error, but reverse the summary judgment in favor of the government on the ground that this civil forfeiture proceeding is barred by the Double Jeopardy Clause of the Fifth Amendment to the extent that it is predicated upon crimes for which McCullough already has…

concurring:

I fully concur in all of the opinion but Part VI on double jeopardy. I concur in that Part only because I am constrained to follow United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir.1994). Otherwise, I believe that United States v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989), controls, and that while forfeitures under § 881(a)(4) and (a)(7) may always constitute punishment, they are not always only punishment. In my judgment Austin v. United States, — U.S. —, 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993), doesn’t say anything to the contrary as it was concerned simply with whether forfeiture serves in part to punish. The result I feel obliged to reach effectively transforms the “rare case” where Halper contemplates that double jeopardy will apply to civil proceedings, 490 U.S. at 449 , 109 S.Ct. at 1902 , into a commonplace occurrence, and may have other consequences for parallel civil and criminal proceedings which I find it difficult to believe that either the Congress or the Court had in mind. Nevertheless, I must concur.

37 F.3d 489 UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 PIPER CHEROKEE AIRCRAFT, TAIL NO. N 5538V, INCLUDING ITS TOOLS AND APPURTENANCES, Defendant, Perry A. McCULLOUGH, Claimant-Appellant. No. 92-15350. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 16, 1994. Decided Sept. 30, 1994. Richard F. Cornell, Reno, NV, for the claimant-appellant. Thomas E. Flynn, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before: POOLE, CANBY, and RYMER, Circuit Judges. Opinion by Judge CANBY; Concurrence by Judge RYMER. CANBY, Circuit Judge: 1 Claimant Perry McCullough appeals the district court's grant of summary judgment to the United States in this civil forfeiture action brought pursuant to 21 U.S.C. Sec. 881 (a)(4). He asserts that the district court never gained in rem jurisdiction in this action because the res never was brought within its district. He also asserts: that the judgment must be reversed because the government lacked probable cause to initiate the action; that the government is promissorily estopped from seeking the civil forfeiture; that the…