united-states-v-one-hundred-five-thousand-six-hundred-sixty-five-dollars , 872 F.2d 1030 ( 1989 )

872 F.2d 1030

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
ONE HUNDRED FIVE THOUSAND, SIX HUNDRED SIXTY-FIVE DOLLARS
AND FORTY-ONE CENTS ($105,665.41); $10,000 U.S.
Savings Bond, Series EE, No. X753773EE;
Defendants,
Dexter J. Trent, Claimant-Appellant.

No. 88-3717.

United States Court of Appeals, Sixth Circuit.

April 5, 1989.

1

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and THOMAS A. BALLANTINE, Jr., District Judge*.

ORDER

2

This matter is before the court upon consideration of the appellant's motion for appointment of counsel. The appellee filed a motion to dismiss the appeal for lack of jurisdiction on the basis that the defendant res, which was the subject of the forfeiture action, was released from the court's control when the United States Marshal executed the judgment by disposing of the defendant res. Appellant has failed to respond to the motion to dismiss.

3

A review of the record indicates that the complaint for forfeiture was filed January 22, 1988, seeking forfeiture of $105,665.41 and a $10,000 United States Savings Bond. A default judgment and decree of forfeiture was filed April 21, 1988, and the United States Marshal executed the judgment in May of 1988. Appellant's June 16, 1988, motion to reopen the case was denied on July 19, 1988. Appellant appealed from the July 19 order.

4

The court's jurisdiction is dependent on its continuing control over the res. Where no supersedeas is filed or steps are taken to supersede the judgment, the court's jurisdiction to hear an appeal terminates when the forfeiture judgment is executed. The court retains jurisdiction only where the res is released accidentally, fraudulently or improperly. United States v. $2,490.00 in United States Currency, 825 F.2d 1419, 1420-21 (9th Cir.1987) (per curiam); United States v. $79,000 in United States Currency, 801 F.2d 738, 739 (5th Cir.1986) (per curiam).

5

It is ORDERED that the motion for appointment of counsel be denied, the motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit. The res was not released accidentally, fraudulently or improperly; therefore, this court lacks jurisdiction.

*

The Honorable Thomas A. Ballantine, Jr., U.S. District Judge for the Western District of Kentucky, sitting by designation