Opinion
D.C. No. CV 89-1750 EJG
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted April 10, 2000.
Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding.
Before TASHIMA, GRABER, Circuit Judges, and KELLEHER, Senior District Judge.
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 Cir. R. 36-3.
Perry A. McCullough appeals the district court's order affirming the civil forfeiture of a Piper Cherokee aircraft (the "aircraft"). We have jurisdiction over this final order of forfeiture pursuant to 28 U.S.C. § 1291, and we now affirm.
1. Procedural History
The government sought criminal forfeiture of, inter alia, the aircraft, in connection with a criminal case against McCullough for various drug-related offenses. At the same time, the government initiated a parallel civil forfeiture action against the same property, which the district court stayed until the criminal trial was concluded. Following a verdict of forfeiture against all the charged property in the criminal case, the government continued to pursue the civil forfeiture action in order to perfect its title against potential third-party claimants. The district court granted summary judgment in favor of the government and ordered the aircraft forfeited under the civil forfeiture statute.
McCullough appealed, and we affirmed on all issues except one. We remanded only for the district court to determine whether the civil forfeiture constituted an excessive fine under the Eighth Amendment. See United States v. One 1978 Piper Cherokee Aircraft, 91 F.3d 1204, 1210 (9th Cir.1996) ("Piper Cherokee I" ). On remand, the district court affirmed its order of civil forfeiture, holding both that the forfeiture did not violate the excessive fines clause and that the remainder of McCullough's arguments were precluded by the law doctrines of law of the case and the rule of the mandate. This appeal followed.
While his appeal from the civil forfeiture was pending, McCullough successfully appealed the criminal forfeiture of the aircraft. See United States v. McCullough, Nos. 90-10577, 91-10581, and 92-10597, found at 1994 WL 369400 (9th Cir. July 14, 1994).
McCullough argues that the civil forfeiture action was barred by res judicata and, further, that the court did not have jurisdiction over the civil forfeiture action under the doctrines of mootness, ripeness, or divestiture of jurisdiction.
2. Res Judicata
Essentially, McCullough attempts to re-litigate issues that either were raised, or that should have been raised, in his first appeal. We therefore hold that McCullough waived the issue of res judicata by not raising it in his first appeal. See American Ad Management, Inc. v. General Tel. Co., 190 F.3d 1051, 1054 n. 2 (9th Cir.1999) ("American waived its other antitrust claims in its prior appeal when it did not challenge their dismissal by the district court."); see also SIPC v. Vigman, 74 F.3d 932, 937 (9th Cir.1996) (holding that a party cannot revisit issues that it abandons on appeal).
There is no evidence that McCullough raised the issue of res judicata in his first appeal. See Piper Cherokee I, 91 F.3d at 1204. Even if he did, however, we impliedly rejected the claim. See id. at 1206 ("We also reject all but one of McCullough's other contentions.") (emphasis added). Under the law of the case doctrine, neither the district court nor this panel may revisit that issue. See United States v. Cote, 51 F.3d 178, 181 (9th Cir.1995).
3. Mootness and Ripeness
Mootness and ripeness are jurisdictional questions that are reviewed de novo. See Filtercorp, Inc. v. Gateway Venture Partners III, L.P. ( In re Filtercorp, Inc.), 163 F.3d 570, 576 (9th Cir.1998) (mootness); Richardson v. City and County of Honolulu, 124 F.3d 1150, 1160 (9th Cir.1997) (ripeness). On one hand, McCullough argues that the government's success at securing the criminal forfeiture of the aircraft mooted the controversy because the government obtained clear title to the aircraft. On the other hand, McCullough asserts that the pendency of his criminal appeal rendered the civil case unripe for review, because the possibility that the criminal forfeiture order would be reversed was highly speculative.
Although we doubt that it was, we need not decide whether the civil action was moot or unripe during the pendency of the criminal appeal. Even if the civil action was moot or unripe at one time, it is uncontested that this court's reversal of the criminal forfeiture transformed this action into a live controversy that currently is ripe for review. The criminal forfeiture was reversed in June 1994, long before November 20, 1998, the date on which the district court entered its final order of forfeiture in the civil case; thus, the fate of the aircraft has yet to be resolved. Cf. Keating v. Hood, 191 F.3d 1053, 1061 n. 10 (9th Cir.1999) (issuing a decision where habeas petition was not ripe when filed, but became ripe after this court's mandate issued).
This court, therefore, has jurisdiction under Article III, and prudential considerations warrant against dismissing this case. Both this court and the district court have examined the civil forfeiture case on at least two different occasions. It would be a waste of resources to require the government to file the action again after so many years of litigation. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 64, 77 (1996) (holding that even though the district court lacked jurisdiction originally, the "ensuing adjudication" still was valid because federal jurisdictional requirements were met at the time judgment was entered and it would be a waste of judicial resources to "wipe out the adjudication post-judgement"); see also California Credit Union League v. City of Anaheim, 190 F.3d 997, 1000 (9th Cir.1999), cert. denied, 120 S.Ct. 1159 (2000) (allowing the joinder of the United States at the appellate level to cure a jurisdictional defect because to do otherwise would "entail needless waste and runs contrary to effective judicial administration") (internal quotation marks and citation omitted); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir.1998).
4. Divestiture of Jurisdiction
Finally, McCullough argues that the filing of the notice of appeal from his criminal conviction divested the district court of jurisdiction in the civil forfeiture action. Generally, "the filing of a notice of appeal ... confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." United States v. Powell, 24 F.3d 28, 30 (9th Cir.1994) (internal quotation marks and citations omitted) (emphasis in original). The district court, however, is divested of jurisdiction to consider issues only in the same case that is being appealed. See, e.g., Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.1988); United States v. Claiborne, 727 F.2d 842, 850 (9th Cir.1984). The civil forfeiture action is an entirely separate action from the criminal forfeiture; thus, the filing of a notice of appeal on the criminal forfeiture did not affect the district court's jurisdiction in the civil case.
The Honorable Robert J. Kelleher, Senior United States District Judge for the Central District of California, sitting by designation.
McCullough argues that the civil and criminal forfeiture actions are the same case. This argument lacks merit. In the criminal case, the jury found that the property was subject to forfeiture because of McCullough's involvement in a continuing criminal enterprise. In the civil case, on the other hand, the district court ordered forfeiture because it found that McCullough had used the property to transport cocaine.
AFFIRMED.