Vol. 10, No. 18
Covering Cases Published in the Advance Sheets through May 5, 2003

Note: The full text of all of the decisions noted below has been incorporated in our on-line data base which is available for subscribers only. Thus, while the names of some of the cases are highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

Supreme Court

$2.9 Million in Fees and Expenses Awarded under the Hyde Amendment

The Prosecutorial Shield of Absolute Immunity

The Use of Stalking Horses to Bypass the Fourth Amendment

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U.S. v. Aisenberg, 247 F.Supp.2d 1272 (M.D.Fla. 2003) (Judge Merryday)

In 1997, Congress enacted a statute designed to provide at least a partial recourse for defendants who have been subjected to a criminal prosecution that proves to be “vexatious, frivolous, or in bad faith.” That statute, known as the “Hyde Amendment,” is published as a “legislative note” attached to 18 U.S.C. § 3006A. It permits a defendant in a criminal case, if a “prevailing party,” to recover “reasonable attorney’s fees and other litigation expenses.”

In the instant case, Steven and Marlene Aisenberg were charged with a series of crimes relating to the mysterious disappearance of their daughter, Sabrina, in 1997. Twenty-one months after Sabrina disappeared, a Federal grand jury returned a 27-page, six-count indictment, charging the Aisenbergs with, among other things, making “false, fictitious, or fraudulent statements” to law enforcement officials regarding Sabrina’s disappearance and conspiracy to deceive the Government.

The indictment was announced with great fanfare by an unidentified AUSA from the Middle District of Florida who boldly represented that “the Government has in its possession a taped statement in which Steven Aisenberg states, among other things, ‘I wish I hadn’t harmed her. It was the cocaine’.” (Id., at 1281).

Among the many extraordinary conclusions reached by Judge Merryday in this 94-page order was his finding that the tape referred to by the unidentified AUSA simply did not even exist!!! (“No such ‘taped statements’ exist.”) (Id.) Judge Merryday’s order must be read in full to capture the enormity of the Government’s bad faith; but a smattering of examples will suffice to show why this case fell so squarely within the protections of the Hyde Amendment.

The Background Facts

The Government did record and did possess numerous tapes in this case. In fact, there were tons of them - and that may have been part of the problem. Eighteen days after Sabrina disappeared, the Hillsborough County Sheriff’s Office applied for and obtained permission to plant electronic recording devices in the Aisenberg’s home (one of which was even placed in the marital bedroom). Over a period of 79 days, law enforcement officials recorded some 2,600 separate conversations on 55 different audio tapes. There was probably so much data recorded that the prosecutors decided to rely entirely on what the Sheriff’s office said was on the tapes.

In Judge Merryday’s eyes, that was a big mistake - and a “disquieting example of the sort of mischief” that can be achieved by the Government when it seeks “to capture whatever sensational and evocative value [that] attaches to an alleged crime against an innocent victim” through the use of evidence that is “wholly unjustified and misleading.” (Id., at 1277). Thus, he caustically reminded the Government that “[t]he grand jury is a forum for the pursuit of solemn investigation and not a theater for the presentation of a spectacle.” (Id., at 1277, n. 2).

Even more disturbing, Judge Merryday concluded that the Government stubbornly plowed on without any credible evidence. That led to an indictment that was “trivial,” “gratuitous,” “misleading,” and “tendentious.” The Judge wrote that a “fair reading” of the indictment would show “a series of allegations of dubious relevance, detached context, or questionable veracity.” (Id., at 1279). The lack of credible evidence also led to a prosecution that was “ill-conceived.” (Id., at 1284)

Time and again, Judge Merryday listened to the tapes in question; and, while he heard many “audible utterances,” he concluded that they were “inconsequential in any criminal sense.” (Id., at 1284). Therefore, he asked the prosecutors to provide transcripts of the recordings so he could verify the evidence the Government claimed to have. After the transcripts were provided, he repeatedly asked both AUSAs if they agreed with what was represented to be on the tapes and in the indictment - and both of them assured the Court that the transcripts were accurate. Judge Merryday then wrote: “I listened to the recordings and compared what I heard with the transcripts provided by the United States. The disparity was shocking.” (Id., at 1284) (Emphasis added).

Faced with a series of rulings that showed that Judge Merryday was resolute in preventing a distorted and careless prosecution, the Government finally agreed, in February 2001, to drop all charges against the Aisenbergs. By that time they had been forced to flee their home due to the stream of false adverse publicity generated by their prosecution. By that time they had spent $250,000 of their own money defending themselves against this malicious prosecution. And by that time, their attorneys, Cohen, Jayson & Foster of Tampa, FL, had logged more than 11,000 hours working on the case.

The Recovery of Reasonable Fees under the Hyde Amendment

To recoup at least some of their losses, the Aisenbergs brought suit to recover their legal fees and expenses under the Hyde Amendment. Judge Merryday put that lawsuit in context by explaining:

“For reasons conspicuous in the record of this extraordinary case, the United States of America concedes liability--apparently the only such concession by the Department of Justice since enactment of the Hyde Amendment--for a prosecution that was either ‘vexatious, frivolous, or in bad faith’ within the meaning of the Hyde Amendment. The United States' unprecedented concession leaves for determination only the correct statutory measure of the ‘reasonable attorney's fee and other litigation expenses’ available under the Hyde Amendment.” (Id., at 1275).

Early on, the Government argued that any recovery under the Hyde Amendment should be limited to the amount of legal fees actually paid by the Aisenbergs; but that argument was quickly abandoned. However, the Government did continue to argue that any recovery under the Hyde Amendment should be limited to a $125 per hour cap on attorney’s fees. The Government’s argument was premised on language contained in the Hyde Amendment to the effect that any awards made under that statute “shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of Title 28, United States Code.” One of the provisions of § 2412, namely § 2412(d)(2)(A), does provide for a cap on $125 on attorney’s fees, albeit in a parenthetical at the very end of that provision.

Since much of the work performed in this case by Barry Cohen and Todd Foster of Cohen, Jayson & Foster was billed at rates considerably in excess of $125 per hour, had the Government prevailed on its argument, it would have had a major impact on the fees awarded. However, after a detailed and highly persuasive analysis of the provisions of § 2412, Judge Merryday concluded that a “subsection-by-subsection review of Section 2412 confirms that the $125 per hour cap imposed on an attorney’s fee in Section 2412(d)(2)(A) is inapplicable to the Hyde Amendment.” (Id., at 1291).

He then went on to conclude that the proper standard for making an award under the Hyde Amendment was “the number of hours reasonable expended on the litigation multiplied by a reasonable hourly rate” and he wrote “this so-called ‘lodestar’ approach represents the ‘centerpiece of attorney’s fee awards’.” (Id., at 1309)

After analyzing the billing records for the 11,251 hours spent on the case by the Aisenberg’s lawyers, Judge Merryday cut 310 a mere hours off the total. Due to the exceptional circumstances of this case and the egregiousness of the Government’s misconduct, the attorneys argued that they were entitled to a multiplier of 3 times their actual bill to reflect the difficulty of the case, the Government’s misconduct, and the level of success achieved (a standard procedure in civil cases). While Judge Merryday declined to use a multiplier of three, he did establish an important principle: namely, that an increase in the fees was warranted - a first for Hyde Amendment litigation. Thus, he directed that the fees be increased by a multiplier of 1.15 - which resulted in total attorney’s fees of $2,680,602.22, plus litigation expenses of $195,670.32.

The Grand Jury Transcripts

Finally, Judge Merryday addressed one other noteworthy subsidiary issue - and one that is extremely significant. At least twice in the five year history of this case, the Aisenbergs moved the court to release the grand jury proceedings that resulted in their indictment. They wanted those transcripts released essentially to vindicate their position that they had been framed - and to support their accusations of prosecutorial misconduct, including a “pattern of leaks by the United States in an effort to defame” them. (Id., at 1321).

There were two obstacles to the release of the grand jury transcripts. First, the Government obviously wanted “to avoid a full airing of the episode.” (Id., at 1324). Second, for a lot of very valid reasons (including the protection of the innocent), the law has long imposed strict secrecy obligations on grand jury proceedings. (See. e.g., Rule 6(e)(2) of the Fed.R.Crim.P.).

After reviewing those traditional concerns, Judge Merryday concluded that they simply did not apply to the instant case. He noted, for example, that “the press ‘mysteriously’ knew exactly when and where the Aisenbergs would appear for the grand jury and the television cameras captured the Aisenbergs’ stricken faces for national broadcast.” (Id., at 1323).

Thus, he ordered the clerk to unseal the transcripts of the grand jury proceedings and all the hearings in this case, stating:

“The public has an interest in inspecting these troubled prosecutions to determine the source of the United States’ misdirection. The United States should not be entitled to shield the pertinent history behind the cloak of grand jury secrecy. . . . The insulation of misdirected or overzealous prosecutorial exertions from public scrutiny forms no part of the justification for grand jury secrecy. The public is entitled to know.” (Id., at 1323-24) (Emphasis added).

The Government has appealed both the award of legal fees and Judge Merryday’s order to unseal the grand jury transcripts. We will continue to follow both appeals as they wend their way through the Eleventh Circuit. In the meantime, all of the documents filed in this case, as well as excerpts from the audio tapes, can be found on the Web site of Cohen, Jayson & Foster.

Cousin v. Small, 325 F.3d 627 (5th Cir. 2003) (Per Curiam)

In 1995, the plaintiff in this case, Shareef Cousin, was convicted of murder and sentenced to death. After spending more than a year on death row, the Louisiana Supreme Court vacated Cousin’s conviction on the grounds of flagrant prosecutorial misconduct. The state then dismissed all charges against Cousin. Later, Cousin brought a civil rights lawsuit, pursuant to 42 U.S.C. § 1983, against various employees of the police department and the district attorney’s office, alleging a series of violations of his constitutional rights in connection with his prosecution.

The district court dismissed that lawsuit principally on the grounds that most of the claims were barred by absolute immunity; and this appeal followed. One of the claims that caught our attention was a charge that the DA instructed several defense witnesses to go to his office and remain there for the duration of the trial. As a result of that, Cousin claimed that he was unable to locate those witnesses and present their testimony in his defense, thus depriving him of his constitutional rights.

Citing principally Imbler v. Pachtman, 424 U.S. 409 (1976) and Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the district court held that this conduct, occurring as it did during trial, was prosecutorial in nature and therefor shielded by absolute immunity. In affirming that ruling, the Fifth Circuit stated:

“Because [the district attorney’s] conduct was directly related to the trial process, was entered into in the context of an ongoing trial, and was designed to secure a conviction, it cannot be characterized as anything other than advocatory. Therefore, the detention of witnesses to prevent them from testifying in criminal proceedings, while unlawful and improper, is nonetheless shielded by absolute immunity.” (Id., at 636-37).

In Brief

Guidelines: U.S. v. Long, No. 02-3003 (D.C.Cir. 05/16/2003) - This case is noted for its comprehensive review of the current position of each of the Circuits on the question of when, if ever, the imposition of enhancements at sentencing requires proof by more than a preponderance of evidence standard; U.S. v. Boos, No. 02-3006 (7th Cir. 05/15/2003) - Here the Court held that no due process violation occurred where the district court imposed a murder enhancement under U.S.S.G. § 2D1.1(d)(1) because the evidence showed that it was “highly probable” that the defendant had murdered his victim, thus satisfying the enhancement under both the preponderance of evidence and the clear and convincing evidence standards.

Restitution: U.S. v. Randle, 324 F.3d 550 (7th Cir. 2003) - Here, over the dissent of Judge Posner, a divided court held that the district court had committed plain error in awarding restitution to two debtors with respect to whom defendant's bankruptcy fraud conduct was charged but not convicted, as neither was a "victim" under the Mandatory Victims Restitution Act.

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