This matter comes to us en banc for reconsideration of the panel’s opinion of August 5, 1988.1 Stanley Carter Kiser was indicted for conducting continuing criminal enterprise in violation of 21 U.S.C. § 848 (1982 & Supp. V 1987). The indictment alleged some of Kiser’s property, including two parcels of real estate in Miami, Florida, and one in Aspen, Colorado, should be forfeited under section 848 and 21 U.S.C. § 853 (1982 & Supp. Ill 1985). After the indictment was filed, the government filed civil forfeiture actions against the property under 21 U.S.C. § 881 (1982 & Supp. II 1984).
Warrants were issued by the magistrate, who made an ex parte finding of probable cause. Kiser then sought relief in the district court to release two of the properties from forfeiture in order to transfer them to his attorney in payment of fees and costs for legal representation. Kiser then petitioned this court for a writ of mandamus requesting us to order the district court to stay the criminal prosecution pending determination of his motion to set aside the forfeiture and pay his attorney. A panel of this court directed the district court2 to
promptly * * * hold an adversary hearing on Petitioner’s Motion * * *. Judge Vietor shall consider Petitioner’s financial condition in order to determine whether Petitioner has assets not subject to forfeiture that could supply a reasonable fee to the counsel he has retained to assist in his defense in the pending criminal prosecution. For the protection of Petitioner’s Fifth Amendment privilege of self-incrimination, any examination of Petitioner to determine his financial condition shall be conducted ex parte and in camera by Judge Vietor. If it is determined that Petitioner is without assets not subject to forfeiture from which he could pay the fee of his retained counsel, Judge Vietor shall determine the amount of a reasonable fee for Petitioner’s retained counsel in the pending criminal prosecution and shall decide whether Petitioner’s motion should be granted to that extent.
Kiser v. Vietor, No. 87-2287, slip op. at 2 (8th Cir. Sept. 30, 1987) (order) (Heaney, Arnold, and Bowman, JJ.).
*84Judge Vietor found that the proposed attorney fee contract between Kiser and his retained attorney was reasonable and that Kiser had no other assets not allegedly subject to forfeiture. The court ruled the sixth amendment right of counsel required the motion be granted to the extent the properties were needed to pay his counsel. The government appealed.
This court, in an opinion written by Judge Arnold and joined in by Judge McMillian and Chief Judge Lay, affirmed. We pointed out that since no restraining order had been granted we were concerned only with the particular application of the forfeiture statutes and not with their facial constitutionality. Unit No. 7, 853 F.2d at 1448. We held:
Due process requires more than allegation and a determination of probable cause that property is the fruit of illegal drug trafficking before the government can place it out of reach of a criminal defendant who needs it to pay the lawyer conducting his defense.
* * * But the present case involves more than a deprivation of property sim-pliciter; it involves a criminal defendant’s loss of the only property he has with which to hire a lawyer of his own choice to defend him. So the case involves both the Due Process Clause of the Fifth Amendment and the Assistance of Counsel Clause of the Sixth Amendment.
* * * [Kiser] has demonstrated that these particular assets are the only ones with which he can pay his lawyer for assisting in his defense to the government’s serious criminal charges. He has a fundamental Sixth Amendment right to defend himself against these charges, and he unquestionably has a Sixth Amendment right (however qualified) to hire private counsel to aid in his defense.
Unit No. 7, 853 F.2d at 1149-50.
On September 10, 1988, the government filed a petition for rehearing with suggestion for rehearing en banc. This court delayed passing on the suggestion until the Supreme Court decided Caplin & Drysdale, Chartered v. United States, - U.S. -, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989), and United States v. Monsanto, — U.S.-, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). United States v. Unit No. 7 & Unit No. 8, 864 F.2d 1421 (8th Cir.1988). On June 22, 1989, the Supreme Court decided these two cases holding that a defendant’s sixth amendment right to counsel is not violated by the pretrial seizure of the defendant’s assets under the forfeiture provision of sections 848 and 853. See Caplin, 109 S.Ct. at 2651-56; Monsanto, 109 S.Ct. at 2665-67.
Monsanto observed:
Permitting a defendant to use assets for his private purposes that, under this provision, will become the property of the United States if a conviction occurs, cannot be sanctioned. * * * “[t]he sole purpose of [§ 853’s] restraining order provision ... is to preserve the status quo if * * ii
Monsanto, 109 S.Ct. at 2665 (citation omitted).
Caplin held that neither the fifth nor sixth amendment rights of a defendant are offended by forfeiture of property which would otherwise be used to pay an attorney. 109 S.Ct. at 2651-57. In Monsanto it was determined that pretrial restraint of such assets is permissible after a showing of probable cause. 109 S.Ct. at 2666-67.
We are satisfied under Caplin and Monsanto that the district court’s limited order must be vacated. The dissent relates that Kiser is entitled to an adversarial hearing to vindicate his sixth amendment right to use of assets for payment of attorney fees. Caplin clearly decides to the contrary. At oral argument in the en banc rehearing, the defendant raised for the first time the issue reserved in footnote 10 of Monsanto, to-wit: “whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.” 3 Monsanto, 109 S.Ct. at 2666 n. *8510. However, this issue is not properly before us. It was not raised before the district court and our previous order of remand did not place this issue before the district court. The criticism of the dissent, that we should consider the issue because it was argued to us, fails to acknowledge that “a federal appellate court will not consider an issue not passed upon below.” Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.1986) (Bowman, J.).4
We therefore reverse and vacate the district court opinion and dismiss the appeal.
. United States v. Unit No. 7 & Unit No. 8, 853 F.2d 1445 (8th Cir.1988), vacated and reh’g granted, 883 F.2d 53 (8th Cir.1989) (en banc).
. The Honorable Harold D. Vietor, Chief Judge, United States District Court for the Southern District of Iowa.
. While Kiser made a general assertion along these lines in his brief before the panel, the essence of the argument was that it was an issue to be addressed in the district court's exercise of *85equitable jurisdiction, and the entire point of the argument tied this argument with the use of the funds to pay attorneys’ fees.
. This case serves as a vivid illustration as to why appellate courts should not pass on an issue not raised or tried in the district court. Kiser's oral argument on appeal is ambiguous as to what theory of due process he relies upon: (1) whether an adversarial hearing is necessary to establish probable cause before seizure; or (2) whether subsequent to the seizure the government must assume, in an adversarial proceeding, the burden to show the likelihood of success on the merits of the criminal proceeding; or (3) that the forfeiture of the property is not otherwise improper. If the due process issue is properly raised in the district court, as it still may be, it would then be clear to this court what the contentions were and what evidentiary proofs support those contentions. Suffice it to say no one disputes the fact that the district court heard none of these claims. The dissent seems to raise another theory of due process: a need for an adversarial hearing to determine whether the government can show a likelihood of success on the merits so as to deprive Kiser of his property to retain his own counsel. As indicated, we feel Caplin and Monsanto dispose of this issue and the issue, at least as stated by the dissent, is no longer involved in this case.