[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 05-17071 FILED
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ June 29, 2006
THOMAS K. KAHN
D. C. Docket No. 03-21059-CV-AJ CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
METSCH & METSCH, P.A.,
Interested Party-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 29, 2006)
Before ANDERSON, BIRCH and COX, Circuit Judges.
PER CURIAM:
Metsch & Metsch, P.A. (“Metsch”) was counsel to two individual and two
corporate defendants in this civil suit brought by the United States of America.
During the course of the suit, $91,150 that had been placed in Metsch’s trust
account was frozen by injunctive order of the district court. Subsequently, the
same $91,150 was the subject of a criminal forfeiture proceeding. Metsch did not
participate in the criminal forfeiture proceeding; instead, it collaterally attacked
the forfeiture, arguing to the district court presiding over the civil case that Metsch
is entitled to retain $22,621.60 of the trust monies as compensation for attorneys’
fees. Metsch sought an order enforcing Metsch’s attorneys’ retaining lien in that
amount. The district court denied Metsch’s motion. Metsch appeals.
As a preliminary matter, we address our jurisdiction to consider this appeal.
While the November 23, 2005 order is not a final judgment, it does fall within the
limited class of collateral orders that are deemed final because it: (1) conclusively
determines the dispute between Metsch and the Government, (2) resolves an
important issue completely separate from the merits of the action, and (3) is
effectively unreviewable on appeal from the final judgment. See Pagan v. United
States,
353 F.3d 1343, 1345 (11th Cir. 2003). The Government argues that this
appeal is moot because the monies in the trust account have already been forfeited
to the United States. However, Metsch asserts that its lien has priority over the
interest the United States derived from the forfeiture. Thus, a real controversy
exists and this case is not moot.
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While the fact of the forfeiture does not moot this case, it is dispositive of
this appeal. The district court correctly held that the criminal forfeiture operated
to transfer all right, title and interest in the $91,150.00 in the trust account to the
United States of America. Had Metsch wished to preserve any claim that it might
have had to any of that money, it had to participate in the criminal forfeiture
proceeding by filing a petition for ancillary proceedings within thirty days of the
publication of the notice of forfeiture. 21 U.S.C. 853(n)(2). It is undisputed that
Metsch filed no such petition. Therefore, any interest it may have had in the
$91,150.00 in the trust account has been extinguished. See 21 U.S.C. 853(n)(7)
(“if no such petitions are filed . . . the United States shall have clear title to
property that is the subject of the order of forfeiture and may warrant good title to
any subsequent purchaser or transferee.”).
AFFIRMED.
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