United States v. One 1978 Piper Cherokee Aircraft
Opinion
Lead Opinion
Canby, J.
ORDER
Our earlier decision in this case was filed on September 30, 1994. United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489 (9th Cir.1994). Part VI of that opinion held that, unless the forfeiture of the airplane under 21 U.S.C. § 881 could be predicated on conduct other than that for which claimant McCullough had already been prosecuted, the forfeiture violated the double jeopardy clause. Id. at 494-95 . The government filed a petition for rehearing, and we stayed our mandate to await the decision of the Supreme Court that has now been entered in United States v. Ursery, — U.S. -, 116 S.Ct. 2135 , 135 L.Ed.2d 549 (1996).
Ursery held that forfeitures pursuant to 21 U.S.C. § 881 and 18 U.S.C. § 981 were “neither ‘punishment’ nor criminal for purposes of the Double Jeopardy Clause.” Id. at-, 116 S.Ct. at 2146-49 . Ursery therefore renders our previous double jeopardy ruling in this case invalid. We accordingly grant the government’s petition for rehearing and withdraw our prior opinion reported at 37 F.3d 489 , and substitute the following opinion.
We also deny McCullough’s pending motion for costs and attorneys’ fees.