                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 12 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-35493

               Plaintiff - Appellee,             D.C. No. 4:04-cv-00081-SEH

  v.
                                                 MEMORANDUM *
MORRIS DUANE BUCKLES,

               Claimant - Appellant,

$15,010 IN UNITED STATES
CURRENCY,

               Defendant.



                     Appeal from the United States District Court
                             for the District of Montana
                      Sam E. Haddon, District Judge, Presiding

                            Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Morris Duane Buckles appeals pro se from the district court’s order denying

his motion to dismiss and its summary judgment in favor of the United States in

the government’s civil forfeiture action. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir.

2009). We affirm in part, vacate in part, and remand.

      The district court properly denied Buckles’s motion to dismiss after rejecting

his contentions that the civil forfeiture proceeding constituted double jeopardy and

that the government was required to bring the forfeiture action during his criminal

trial. See United States v. Ursery, 518 U.S. 267, 292 (1996) (“[C]ivil forfeitures

are neither punishment nor criminal for purposes of the Double Jeopardy Clause.”)

(internal quotation marks omitted); United States v. Nava, 404 F.3d 1119, 1123

(9th Cir. 2005) (“The government may seek the forfeiture of property in either a

civil or a criminal proceeding.”)

      However, the district court granted summary judgment without giving

Buckles fair notice of the requirements and possible consequences of a summary

judgment motion, a requirement under Rand v. Rowland, 154 F.3d 952 (9th Cir.

1998) (en banc). Therefore, we vacate summary judgment and remand. Upon

remand, if the government again seeks summary judgment, the district court should

consider United States v. $ 191,910.00 in U.S. Currency, 16 F.3d 1051, 1063 (9th


                                          2                                   09-35493
Cir. 1994) (evidence which is the product of an illegal search or seizure must be

excluded in the civil forfeiture hearing).

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                             3                                09-35493
