United States v. $79,000 in United States Currency, Deposited Into Account 28097-6 Cont'l Nat'l Bank, El Paso, Texas, Gabriel Yanez, Jaime Buendia & Francisco Arviso, Claimants-Appellants. United States of Am. v. $6,890,500.00 Mexican Pesos & $200.00 U.S. Dollars, Gabriel Yanez, Jaime Buendia, & Francisco Arviso, Claimants-Appellants, 801 F.2d 738 (5th Cir. 1986). · Go Syfert
Search
United States v. $79,000 in United States Currency, Deposited Into Account 28097-6 Cont'l Nat'l Bank, El Paso, Texas, Gabriel Yanez, Jaime Buendia & Francisco Arviso, Claimants-Appellants. United States of Am. v. $6,890,500.00 Mexican Pesos & $200.00 U.S. Dollars, Gabriel Yanez, Jaime Buendia, & Francisco Arviso, Claimants-Appellants, 801 F.2d 738 (5th Cir. 1986). Cases Citing This Book View Copy Cite
56 citation events (2 in the last 25 years) across 16 distinct courts.
Strongest positive: Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director (texapp, 2015-08-28)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director
Tex. App. · 2015 · confidence medium
“Otherwise, the release or removal of the res from the control of the court will terminate jurisdiction, unless the res is released accidently, fraudulently, or improperly.” Id. at 724 (citing United States v. $79, 000, 801 F.2d 738, 739 (5th Cir.1986)).
discussed Cited as authority (rule) One Hundred Ninety-One Thousand Four Hundred Fifty-Two Dollars v. State (2×) also: Cited "see, e.g."
Tex. App. · 1992 · confidence medium
The release or removal of the res from the control of the court will terminate jurisdiction, unless the res is removed accidentally, fraudulently or improperly. $79,000, 801 F.2d at 739; Costello, 774 S.W.2d at 724 .
discussed Cited as authority (rule) United States v. Certain Real and Personal Property Belonging to Ronald Jerome Hayes, Etc., Sylvia Hayes, Third-Party
3rd Cir. · 1991 · confidence medium
See, e.g., 66 Pieces of Jade, 760 F.2d at 973 (Government had released car and jewelry to customs service thus removing them from court’s control and eliminating jurisdiction); United States v. $79,000 in Currency, 801 F.2d at 739 (court loses in rem jurisdiction when it loses control of property).
discussed Cited as authority (rule) United States v. One Lot of $25,721.00 in Currency, John Mele
1st Cir. · 1991 · confidence medium
See United States v. Tit’s Cocktail Lounge, 873 F.2d at 142-43 (failure to obtain stay and sale of properties after forfei *1419 ture divests court of appellate jurisdiction); United States v. Ten Thousand Dollars in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir.1988) (“in an in rem action, removal of res ends the jurisdiction of the court”; judgment had been executed and cash released to government); United States v. One Lear Jet Aircraft, 836 F.2d at 1573 (no stay of judgment, removal of forfeited plane from territorial jurisdiction of court destroyed court’s jurisdiction); United Stat…
discussed Cited as authority (rule) Rende v. State (2×) also: Cited "see"
Ariz. Ct. App. · 1990 · confidence medium
See, e.g., United States v. One Lear Jet, 836 F.2d at 1574, n. 2 (“ten days after the district court issued its decree, the government was entitled to do what it wished with the jet.”); United States v. $2,490.00, 825 F.2d at 1420-21 (claimant failed to obtain stay or post supersedeas within 10-day stay provided by Rule 62(a)); United States v. $79,000, 801 F.2d at 740 (claimant failed to file for supersedeas or to appeal within the automatic 10-day stay).
examined Cited as authority (rule) Costello v. State (3×)
Tex. App. · 1989 · confidence medium
See, e.g., United States v. One Lear Jet Aircraft, 836 F.2d 1571 (11th Cir.1988), cert. denied, — U.S. —, 108 S.Ct. 2844 , 101 L.Ed.2d 881 ; United States v. $2490.00 in United States Currency, 825 F.2d 1419 *724 (9th Cir.1987); $79,000, 801 F.2d at 739; United States v. 66 Pieces of Jade & Gold Jewelry, 760 F.2d 970, 973 (9th Cir.1985); United States v. United States Currency in the amount of $110,000, 735 F.2d 326, 327 (9th Cir.1984).
cited Cited as authority (rule) United States v. Prop. at 1447 Plymouth, Se, Grand Rapids
W.D. Mich. · 1988 · confidence medium
One Lear Jet Aircraft, 836 F.2d at 1574 n. 2; $79,000 in United States Currency, 801 F.2d at 740; One 1979 Rolls-Royce Corniche, 770 F.2d at 716-17 ; The Denny, 127 F.2d 404, 407 (3rd Cir.1942).
examined Cited as authority (rule) Devlin v. State Ex Rel. New Mexico State Police Department (8×) also: Cited "see"
N.M. · 1988 · confidence medium
Ordinarily, it is incumbent upon the defendant to obtain stay of execution of the trial court's judgment to prevent removal of the res from the control of the court and so to preserve jurisdiction for appeal. $79,000 in United States Currency, 801 F.2d at 739; 66 Pieces, 760 F.2d at 973 ; United States v. $57,480.05 in United *918 States Currency, 722 F.2d 1457, 1459 (9th Cir.1984).
discussed Cited "see" United States v. 1988 Chevrolet Silverado, VIN: 1GCDC14H5JZ157972
5th Cir. · 1994 · signal: see · confidence high
See Republic Nat'l Bank v. United States, - U.S. -, -, 113 S.Ct. 554, 557-60 , 121 L.Ed.2d 474, 482-84 (1992) (holding that failure to file a supersedeas bond does not divest an appellate court of jurisdiction, as control over the res is only required at the initiation of civil forfeiture proceedings), overruling United States v. $79,000 in United States Currency, 801 F.2d 738 , 739 (5th Cir.1986). 5 . 98 Stat. 2754 . 6 .
cited Cited "see" United States v. One Single Family Residence Located at 6960 Miraflores Avenue
11th Cir. · 1991 · signal: see · confidence high
See United States v. $79,000 in U.S. Currency, 801 F.2d 738 (5th Cir.1986).
cited Cited "see" United States v. One Single Family Residence Located At 6960 Miraflores Avenue, Etc., Defendant
11th Cir. · 1991 · signal: see · confidence high
See United States v. $79,000 in U.S. Currency, 801 F.2d 738 (5th Cir.1986).
discussed Cited "see" In Re the Forfeiture of One 1980 Honda Accord
N.M. Ct. App. · 1989 · signal: see · confidence high
See United States v. $79,000 in United States Currency, 801 F.2d 738 (5th Cir.1986) (government’s notification to claimants of transfer of forfeited monies to Customs Service, five months after judgment and ninety days after receiving notice of appeal, did not render transfer fraudulent or improper; appeal dismissed for lack of jurisdiction).
examined Cited "see" United States v. One Lear Jet Aircraft, Serial No. 35a-280, Registration No. Yn-Bvo, Leybda Corp., Claimant-Appellant (4×) also: Cited "see, e.g."
11th Cir. · 1988 · signal: see · confidence high
See $79,000, 801 F.2d at 740 (The government’s removal of forfeited property after the expiration of the ten day stay did not fall within the Rio Grande exception where the losing claimant failed to stay the district court’s judgment).
cited Cited "see" United States v. $2,490.00 in U.S. Currency, 2,610,000.00 in Mexican Pesos, and Walker B. Monroe, Claimant-Appellant
9th Cir. · 1987 · signal: see · confidence high
See United States v. $79,000.00 in United States Currency, 801 F.2d 738 , 739-40 (5th Cir.1986).
discussed Cited "see" JEFFREY M. SCARABIN v. DRUG ENFORCEMENT ADMINISTRATION
unknown court · signal: see · confidence high
See generally, $12,390, 956 F.2d at 804 (noting two separate and distinct reasons for abandoning traditional rules of in rem jurisdiction). 12 Compare U.S. v. An Article Consisting of 4,680 Pails, 725 F.2d 976 (5th Cir.1984) (release of res does not deprive court of jurisdiction) with U.S. v. $79,000, 801 F.2d 738 (5th Cir.1986) (per curiam) (jurisdiction derives entirely from control of res ). 13 See, e.g., Broussard v. Southern Pacific Transp.
discussed Cited "see, e.g." Jeffrey M. Scarabin v. Drug Enforcement Administration
5th Cir. · 1992 · signal: compare · confidence low
Compare U.S. v. An Article Consisting of 4,680 Pails, 725 F.2d 976 (5th Cir. 1984) (release of res does not deprive court of jurisdiction) with U.S. v. $79,000, 801 F.2d 738 (5th Cir.1986) (per curiam) (jurisdiction derives entirely from control of res). 13 .
Retrieving the full opinion text from the archive…
United States
v.
$79,000 in United States Currency, Deposited Into Account 28097-6 Continental National Bank, El Paso, Texas, Gabriel Yanez, Jaime Buendia and Francisco Arviso, Claimants-Appellants. United States of America v. $6,890,500.00 Mexican Pesos and $200.00 U.S. Dollars, Gabriel Yanez, Jaime Buendia, and Francisco Arviso, Claimants-Appellants
86-1391.
Court of Appeals for the Fifth Circuit.
Oct 3, 1986.
801 F.2d 738
Cited by 10 opinions  |  Published

801 F.2d 738

5 Fed.R.Serv.3d 805

UNITED STATES of America, Plaintiff-Appellee,
v.
$79,000 IN UNITED STATES CURRENCY, Deposited into Account #
28097-6 Continental National Bank, El Paso, Texas, Defendant,
Gabriel Yanez, Jaime Buendia and Francisco Arviso,
Claimants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
$6,890,500.00 MEXICAN PESOS and $200.00 U.S. Dollars, Defendants,
Gabriel Yanez, Jaime Buendia, and Francisco Arviso,
Claimants-Appellants.

No. 86-1391.

United States Court of Appeals,
Fifth Circuit.

Oct. 3, 1986.

Victor R. Arditti, El Paso, Tex., for claimants-appellants.

Helen M. Eversberg, U.S. Atty., Mark M. Greenberg, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, JOLLY and HIGGINBOTHAM, Circuit Judges.

BY THE COURT:

[*~738]1

The parties in interest are the claimants against the res in this forfeiture action. They were left holding rubber checks from Gomez-the-moneychanger when the government froze his El Paso bank account after he failed to report importing over $10,000 across the Juarez-El Paso border. The district court entered judgment ordering forfeiture of the monies on March 31, 1986. On April 22, the monies were rendered unto Caesar--i.e., U.S. Customs. On May 30, the claimants filed their Notice of Appeal, ordering transcripts on July 3. On August 18, the government filed its Motion to Dismiss for want of subject matter jurisdiction.

2

The general rule is that the court's power derives entirely from its control over the defendant res. Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713 (1917). Where no supersedeas is filed or steps taken to supersede judgment and the Marshal surrenders custody, neither the district court nor the appellate court retains in rem jurisdiction. The Manuel Arnus, 141 F.2d 585 (5th Cir.1944); Point Landing, Inc. v. Alabama Dry Dock, 261 F.2d 861 (5th Cir.1958) (Brown, J.) (explaining early 5th Circuit decisions on this point). The Supreme Court, however, created an exception early on, allowing that courts do not lose jurisdiction if the res (vessel) is released accidentally, fraudulently, or improperly. The Rio Grande, 90 U.S. (23 Wall) 458, 23 L.Ed. 158 (1874) (the lower court had dismissed libellants' claims but granted leave to appeal; the court's subsequent surrender of the vessel to third parties was held "improper").

3

The claimants argue they have a right of appeal, which they perfected by timely notice under Rule 4, FRAP. They assert that the government acted in bad faith by transferring the monies to U.S. Customs, first notifying claimants of this action some five months after judgment and 90 days after receiving notice of appeal. These arguments are not persuasive. Although Rule 62(d), FRCP, allows the filing of supersedeas "at or after the time of filing the notice of appeal," it does not follow that release of the res pursuant to court order is automatically stayed before time for notice of appeal elapses. To the contrary, Rule 62(a), FRCP, provides for a 10-day automatic stay after entry of judgment.

4

The monies were released to Customs after the 10 days elapsed. There is no requirement that the claimants receive notice of release of the res after judgment. The government merely acted in its own favor by quickly initiating action to surrender the monies; its actions do not rise to the level of fraud or impropriety contemplated by the Rio Grande exception. See United States v. One 1982 Oldsmobile, NO. 86-1355 (5th Cir., July 24, 1986) (unpublished order).

5

IT IS ORDERED that the motion of appellee to dismiss the appeal is GRANTED.

[*~739]6

IT IS FURTHER ORDERED that the motion of appellants to return monies to the jurisdiction of the Court is DENIED.