Summary
In United States v. Kismetoglu, 476 F.2d 269, 270 n. 1 (9th Cir.) (per curiam), cert. dismissed, 410 U.S. 976, 93 S.Ct. 1454, 35 L.Ed.2d 709 (1973), we held that the government's appeal of an order enjoining it from filing a forfeiture action against an acquitted defendant in a criminal case was subject to the civil appeal provisions in Fed.R.App.P. 4(a) because "[a]lthough incorporated in a judgment in a criminal proceeding, the injunction appealed from [was] civil in nature.
Summary of this case from U.S. v. YacoubianOpinion
No. 72-1413.
March 5, 1973.
Larry L. Dier, Asst. U.S. Atty. (argued), Frederick M. Brosio, Jr., Asst. U.S. Atty., William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.
Robert N. Harris, Jr. (argued), Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Relying on the court's opinion in United States v. One 1967 Cadillac El Dorado, 453 F.2d 396 (9th Cir. 1971), a per curiam opinion was filed on October 30, 1972, in United States v. Kismetoglu, 468 F.2d 1386 (9th Cir. 1972), affirming the judgment of the district court in United States v. Kismetoglu, 350 F. Supp. 333 (C.D.Cal. 1971). In doing so, this court held that in a criminal case where a judgment of acquittal had been ordered after a verdict of guilty by jury, the district court could enjoin the United States and its agents from filing a forfeiture action for an alleged violation of the custom laws.
Subsequently and after due consideration, an order was entered granting appellant's motion for leave to file a petition for rehearing and recall mandate. This order also afforded appellee ten days in which to file a response to the petition to supplement his opposition thereto previously filed. No response has been filed.
Appellant's petition for rehearing is based on a per curiam opinion of the United States Supreme Court, One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438, filed on December 11, 1972, 42 days after the filing of this court's opinion in Kismetoglu, supra. In the Emerald Cut Stones case the Supreme Court granted certiorari to resolve a conflict among the Circuits as to whether a forfeiture is barred under the circumstances presented in this case. In doing so, the Supreme Court resolved the conflict adversely to this court's opinion in United States v. One 1967 Cadillac El Dorado, supra. We are bound to follow the opinion of the Supreme Court.
Accordingly, the per curiam opinion filed October 30, 1972, in United States v. Kismetoglu, 468 F.2d 1386 (9th Cir. 1972), is hereby withdrawn.
The order of the district court entered October 22, 1971 [conditionally granting defendant-appellee's motion for return of property and enjoining the agents of the United States from performing their functions under 19 U.S.C.A. §§ 1497 and 1592], is reversed, vacated and set aside.
Although incorporated in a judgment in a criminal proceeding, the injunction appealed from is civil in nature and the government's appeal is therefore timely. Fed.R.App.P. 4(a).
It is so ordered.