United States v. Robert B. Pemberton, Jr., Appeal of Michael H. Metzger

We are asked on this appeal to determine whether the government’s refusal to release assets, forfeited pursuant to 21 U.S.C. § 881 (a)(6) (1982), to pay the attorneys fees of a criminal defendant violates the sixth amendment right to counsel. We are unable to reach this issue, however, because we conclude that the defendant’s plea agreement in another case, providing for forfeiture of the assets at issue, renders this appeal moot. We therefore dismiss the appeal.

FACTS AND PRIOR PROCEEDINGS

On July 17, 1986, Robert Pemberton was indicted on six counts of drug related offenses. That same day, pursuant to a warrant of arrest of real and personal property, the government seized various assets of the defendant valued at approximately $750,000.

Shortly before his first trial, Pemberton sought and retained the services of attorney Michael Metzger. That trial resulted in a hung jury on all counts. A mistrial was declared. Before the second trial, Metzger filed a motion seeking the release of some of the property seized by the government for payment of his fees and trial expenses. The district court granted that motion and ordered the government to release $15,000 worth of assets for…