ORDER
Our earlier decision in this case was filed on September 30, 1994. United States v. One 1978 Piper Cherokee Aircraft,
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-,
We also deny McCullough’s pending motion for costs and attorneys’ fees.
OPINION
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 estopped from seeking the civil forfeiture;
We reject McCullough’s challenge to the district court’s jurisdiction. We also reject all but one of McCullough’s other contentions. We conclude, however, that McCullough is entitled to present to the district court his contention that, under the intervening decision of the Supreme Court in Austin v. United States,
BACKGROUND
McCullough was indicted on June 23, 1989 in the Eastern District of California (Eastern District) for numerous drug-related offenses, including conducting a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. The indictment contained a forfeiture provision alleging that several items of McCullough’s property, including the aircraft that is the subject of this action, were subject to criminal forfeiture as provided in 21 U.S.C. § 853. On the same day the indictment was received, the government obtained from the Central District of California (Central District) a warrant for seizure of the aircraft pursuant to 21 U.S.C. § 881(b), and it immediately seized the aircraft. In December 1989, the government initiated this civil forfeiture action under 21 U.S.C. § 881(a)(4) in the Eastern District, where the criminal charges were still pending.
McCullough filed a verified claim in the civil forfeiture proceedings as provided in Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules to Federal Rules of Civil Procedure, 28 U.S.C., hereinafter “Supplemental Rules”).
The jury in McCullough’s criminal case returned a verdict of guilty on all counts. The jury also returned a verdict of forfeiture against the aircraft. Judgment of conviction and forfeiture was entered accordingly.
Following the successful criminal prosecution and forfeiture, the government resumed prosecution of the civil forfeiture action to perfect its title to the aircraft against potential third-party claimants.
I. JURISDICTION
McCullough contends that the United States District Court for the Eastern District of California never obtained jurisdiction over this civil forfeiture action because the aircraft never was brought within the geographic confines of, or “arrested” in, the Eastern District. He asserts that the location of the res within the geographical boundaries of the district at the initiation of a civil forfeiture action is a prerequisite for the exercise of in rem jurisdiction. We hold that, even if McCullough’s contention is correct, recent
Prior to October 1992, federal courts struggled with the questions whether a district court other than that in which the property was located could exercise jurisdiction over the subject of a forfeiture and could effectuate process against the property. See United States v. Real Property Known as 953 East Sahara, Las Vegas, Nevada,
In October 1992, however, Congress amended 28 U.S.C. § 1355, unifying the treatment of jurisdiction, venue and authority to serve process in civil forfeiture cases. Section 1355 now clearly confers jurisdiction over this action in the Eastern District. The section provides:
(a) The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress ....
(b)(1) A forfeiture action or proceeding may be brought in—
(A) the district court for the district in which any of the acts or omissions giving rise to the forfeiture occurred, or
(B) any other district where venue for the forfeiture action or proceeding is specifically provided far in section 1395 of this title or any other statute.
(d) Any court with jurisdiction over a forfeiture action pursuant to subsection (b) may issue and cause to be served in any other district such process as may be required to bring before the court the property that is the subject of the forfeiture action.
28 U.S.C. § 1355 (emphasis added). The Eastern District has jurisdiction over this forfeiture pursuant to the underlined provision because venue for the proceeding in the Eastern District is provided for in 21 U.S.C. § 881(j) (venue lies in the judicial district in which the criminal prosecution is brought).
We have no difficulty concluding that the amendment to § 1355 applies to this case, which was on appeal at the time the amendment was enacted. See Landgraf v. USI Film Products,
Application of a new jurisdictional rule usually “takes away no substantive right but simply changes the tribunal that is to hear the case.” Present law normally governs in such situations because jurisdictional statutes “speak to the power of the court rather than to the rights or obligations of the parties.”
Landgraf, 511 U.S. at-,
We are aware that the Tenth Circuit has declined to apply § 1355 “retroactively.” See United States v. 51 Pieces of Real Property, Roswell, New Mexico,
We follow Landgraf, then, and apply § 1355(b)(1)(B) to uphold the district court’s jurisdiction despite the fact that the aircraft res was never physically brought within the boundaries of the Eastern District.
II. SERVICE OF PROCESS
One remaining aspect of McCullough’s challenge to the district court’s in rem jurisdiction deserves mention. McCullough relied heavily on the language of Supplemental Rule E(3)(a), which provides that service of process in rem must be made within the district.
The Federal Rules of Civil Procedure apply to this action to the extent that they are not inconsistent with the Supplemental Rules. See Supplemental Rule A. Rule 12(h) of the Federal Rules of Civil Procedure provides that an objection to sufficiency of process is waived if not made in a motion pursuant to Rule 12 or in a responsive pleading. McCullough did not object to the method of service in the district court. Accordingly, he has waived any objections based upon the service of process.
III. PROBABLE CAUSE
McCullough next contends that, when the government initiated this action, there was no probable cause to believe that the aircraft had been used to facilitate drug transactions, as required by 19 U.S.C. § 1615.
The standard for probable cause in forfeiture proceedings resembles that required to support a search warrant. United States v. $191,910.00 in U.S. Currency,
For the aircraft that the government seized to be subject to forfeiture, it must have been used to “transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment” of controlled substances “manufactured, distributed, dispensed, or acquired” in violation of the law. 21 U.S.C. § 881(a)(4). Under the totality of the circumstances, we conclude that the government established probable cause that the aircraft in question was so used.
FBI Agent Jack Warren executed an affidavit in support of the seizure warrant issued by the Central District. In that affidavit, Warren described the following series of
The Warren affidavit contains sufficient information to support a finding of probable cause that the aircraft was used to transport or facilitate the possession of illegal controlled substances. It is reasonable to infer that some portion of the cocaine seized during the searches of Mack’s and Haye’s homes and during McCullough’s arrest was transported in the rented airplane in June. The earlier flight, made in McCullough’s own aircraft, is sufficiently similar to the later flight to permit an inference that McCullough’s aircraft also was used to transport or facilitate the delivery of illegal controlled substances. These inferences are bolstered by the information from the confidential informant, which is corroborated by the events recounted in the affidavit. The government’s showing suffices.
IV.PROMISSORY ESTOPPEL
McCullough next asserts that the government is precluded from maintaining this action because it indicated in a status conference report that “[i]f the plaintiff United States is successful at the criminal trial and the airplane is forfeited criminally, plaintiff would move to dismiss this action, and would instead perfect its title to the airplane by following the procedures outlined in Title 21 U.S.C. Section 853(n).” We need not decide this issue because McCullough’s criminal forfeiture has been reversed. United States v. McCullough, Nos. 90-10577, 91-10581, and 92-10597,
V.NOTICE
McCullough argues that the judgment of forfeiture must be reversed because the government failed to provide him notice directly while he was in the government’s custody. He contends that this failure violated his right to due process. McCullough has waived this point, however, because he did not raise it in the district court. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). Although we have discretion to review issues not raised below, we do so only in exceptional circumstances to prevent manifest injustice. International Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc.,
VI.DOUBLE JEOPARDY
McCullough contends that because the government already sought to obtain a criminal forfeiture of the aircraft, and be
VII. EXCESSIVE FINES CLAUSE
After the district court entered its decision forfeiting McCullough’s airplane, the Supreme Court decided Austin v. United States,
CONCLUSION
In summary, we conclude that the district court has jurisdiction over this civil forfeiture action despite the fact that McCullough’s aircraft never was brought within the geographical boundaries of the district. We also reject all of the other arguments raised by McCullough, except for his contention that the forfeiture of his airplane violated the Excessive Fines Clause of the Eighth Amendment. On the merits of that question we express no opinion, because we conclude that the district court should address it in the first instance. To that end, we vacate the district court’s judgment of forfeiture and remand this matter to the district court for such proceedings as it deems appropriate for determination of the excessive fine question.
The judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. Each party will bear its own costs.
Notes
. McCullough's parents also filed verified claims but took no further action in the proceedings. The district court eventually entered a default against McCullough’s parents.
. The government candidly admits its reasons for returning to the civil proceedings instead of perfecting its title pursuant to the criminal forfeiture statute's procedure for handling third-party claims, 21 U.S.C. § 853(n). The government did so to preclude a possible claim of interest in the aircraft by McCullough's parents who had already defaulted their claim in the civil proceeding.
Since this appeal was filed, McCullough has successfully appealed his CCE conviction and the associated criminal forfeiture. See United States v. McCullough, Nos. 90-10577, 91-10581, and 92-10597,
. Our disposition of this issue makes it unnecessary for us to consider the government’s arguments that this issue is subject to waiver and that McCullough waived it by not raising it in the district court,
. The Supplemental Rules govern the seizure of the aircraft in this civil in rem forfeiture proceedings. See 21 U.S.C. § 881(b).
. Because any challenge to service of process has been waived, we need not consider whether the amendments to 28 U.S.C. § 1355 retroactively validate service in this case. We also need not decide whether service was sufficient under the pre-1994 versions of Federal Rules of Civil Procedure 4(e) and (f) or was implicitly authorized by the venue provision of 21 U.S.C. § 881(j).
. Section 1615 of Title 19 is applicable to this civil forfeiture under 21 U.S.C. § 881(d). See United States v. 1 Parcel of Real Property, Lot 4, Block 5 of Eaton Acres,
. The government in its brief urged us to consider instead whether it had established probable cause by the time that the summary judgment was entered. Since the filing of the briefs in this appeal, however, we have held that the requirement found in § 1615 that probable cause must be shown “for the institution" of forfeiture actions precludes consideration of post-filing evidence in making the probable cause determination. United States v. $191,-910.00 in U.S. Currency,
. This fact distinguishes Robinson v. Hanrahan,