Petition for Writ of Certiorari — Aisenberg v. United States
Supreme Court brief2004
Ask Donna
What actually matters in this document.
Text
/ \ Supreme Court, U.S.
( |) FILED
———
No. 04 2° JUN 28 2004
OFFICE OF THE CLERK
In The :
Supreme Court of the United States
¢
STEVEN D. AISENBERG and
MARLENE J. AISENBERG,
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondent.
¢
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
¢
PETITION FOR WRIT OF CERTIORARI
AND APPENDIX, VOLUME I,
PAGES APP. 1 - APP. 240
¢
BARRY A. COHEN
TODD FOSTER
COHEN, JAYSON & FOSTER, PA.
201 East Kennedy Boulevard
Suite 1000
Tampa, Florida 33602
(813) 225-1655 Fax (813) 225-1921
Attorneys for Petitioners Steven B. Aisenberg and
Marlene J. Aisenberg
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Whether the District Court erred in ordering com-
plete disclosure of the grand jury transcripts to the
Defendants after the government had moved to dis-
miss the indictment and admitted that the prosecu-
tion had been brought frivolously, vexatiously, or in
bad faith?
Whether the Hyde Amendment’s incorporation of the
“procedures and limitations (but not the burden of
proof) provided for an award under section 2412 of Ti-
tle 28, United States Code [the ‘Equal Access to Jus-
tice Act’]” encompasses all the procedures and
limitations of the Equal Access to Justice Act or is
limited to subsection (d) thereof?
ll
PARTIES TO THE PROCEEDING
AND RULE 29.6 STATEMENT
The petitioners in this case are Steven and Marlene
Aisenberg. The Respondent is the United States of Amer-
1ca.
il
TABLE OF CONTENTS
| Page
QUESTIONS PRESENTED FOR REVIEW .............. i
PARTIES TO THE PROCEEDINGS............. il
TABLE OF AUTHORITIES..0...o. ooo cocccecececcecee iv
OPINIONS AND JUDGMENTS IN THE COURTS
MI Sik Nena ceneaiesssiiitsnsknsahasuansiicesssctnssensasc,........
3
IT.
Certiorari should be granted because the
United States Court of Appeals for the Elev-
enth Circuit has decided an important ques-
tion of federal law in a way which conflicts
with relevant decisions of this Court and other
Courts of Appeal and which undermines the
policies underlying a district court’s ability to
supervise its grand juries .....0......00...0..............
Certiorari should be granted because the
United States Court of Appeals for the Elev-
enth Circuit has decided an important ques-
tion of federal law in a way which conflicts
with relevant decisions of this Court........_..
APPENDIX VOLUME I:
United States v. Aisenberg, 358 F.3d 1327 (11th Cir.
BU Sa NR a hthobncacussshvyndsnaccensnsncanevsanscacovacenssesece.c a... App. 1
District Court Order Granting Steven and Marlene
Aisenberg’s Petition for Fees and Costs Pursuant
to The Hyde Amendment (January 31, 2003)....... App. 46
12
12
iv
- TABLE OF CONTENTS - Continued
Page
APPENDIX VOLUME II:
Order Denying Petition(s) for Rehearing and
Petition(s) for Rehearing En Banc (March 30,
DENBY accaccanssnsscsenderansssasnnnaressnedtbsaiscusncastansnacunecetes App. 241
Title 28, United States Code, § 2412. Costs and
WPOOG oincnseccscrccsscscnescoesvessecesesvevssnssncnveascsnanenqnaonsssqens App. 243
Testimony of Steve Aisenberg, Grand Jury 97-3,
United States District Court, Middle District of
Florida, February 11, 1998........-...:::sseseeseeeretees App. 249
Testimony of Marlene Aisenberg, Grand Jury 97-3,
United States District Court, Middle District of
Florida, February 11, 1998.........-.::ssssesssereeretees App. 262
Testimony of Linda Burton, Grand Jury 97-3,
United States District Court, Middle District of
Florida, February 4, 1998 ........-:::sssscsserereeeeeetees App. 277
Testimony of Linda Burton, Grand Jury 97-3,
United States District Court, Middle District of
Florida, October 21, 1998 .........::sccssesseereeeteeetees App. 327
Testimony of Linda Burton, Grand Jury 97-3,
United States District Court, Middle District of
Florida, November 4, 1998 ........-::::sseseserseeeetees App. 341
Testimony of Linda Burton, Grand Jury 97-3,
United States District Court, Middle District of
Florida, September 8, 1999 ..........::ssessseeeeeretees App. 345
V
TABLE OF AUTHORITIES
Page
CASES:
Alyeska Pipeline Service Co. v. Wilderness Society,
Se BAe Be CE hettckintdinnian Male 26, 27
Butterworth v. Smith, 494 U.S. 1376 (1990)............... 15, 18
Chambers v. NASCO, Inc., 501 U.S. 32 (1991)........... 27, 28
Dennis v. U.S., 384 U.S. 855 (1966) ......cccccccccccccccccececccccee. 21
Douglas Oil Company of California v. Petrol Stops
Northwest, 441 U.S. 211 (1979)..0...ooceceeccccccccecsceeeee 13, 21
FD. Rich Co., Inc. v. United States ex rel. Industrial
Lumber Company, Inc., 417 U.S. 116 (1974)......cccccccce-. 26
Hensley v. Eckerhart, 461 U.S. 424 (1983)........cccccccceccceee. 26
Hutto v. Finney, 437 U.S. 678 (1978) .....ccccccccecscescecceseeeees 26
In re: Biaggi, 478 F.2d 489 (2d Cir. 1973)........... i ialeialla 16
In re: Craig, 131 F.3d 99 (2d Cir. 1997)........cecccccccccsececeeeee 20
In re: Espy, 259 F.3d 725 (D.C. Cir. 2001)...........ccccceccceeeee 16
In re: North, 16 F.3d 1234 (D.C. Cir. 1994)........... 16, 19, 20
In re: Screw Antitrust Litigation, 91 F.R.D. 47
oe | | | ORONO NE MENA ER TANT oh Men EN- Pte Oh 22
Newmark v. Principi, 283 F.3d 172 (3d Cir. 2002)............ 24
Petition to Inspect and Copy Grand Jury Materials
(Hastings), 735 F.2d 1261 (11th Cir. 1984).......:17, 18, 20
Pittsburgh Plate Glass Co. v. U.S., 360 U.S. 395
CPI sstnisecenaninsennnseuainsuiaeigtnesiaccds dade ee 14,19
Rehabilitation Association of Virginia, Inc. v.
Metcalf, 8 F. Supp.2d 520 (F.D. Va. 1998)..........ccccccccce. 26
vi
TABLE OF AUTHORITIES -— Continued
Page
Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473
(Ath Cllr. LOGR)..cvcisscscasenssseiiastednnsnnnnconemnennciaresinensnyreney 26
United States v. Aisenberg, 947 F Supp. 2d 1272
(M.D. Fla. 2008)........-.-s:ssseseersesssssenesenssenenensnnncnsrenes passim
United States v. Aisenberg, 358 F.3d 1327 (11th Cir.
IAS asc nasnnansesennncicanasennenvesenenntnnensnnatine ners anna carn passim
United States v. Baggot, 463 U.S. 476 (1983) ......-:eeeeeereees 21
United States v. Proctor & Gamble Co., 356 USS.
B7'T (198) ....s0sssnesrscsonncnsonsonsennnasensnnenansnsoanannsnensenge 14, 22
United States v. Sells Engineering, 463 US. 418
PES) a osnsnessesdsnnscascencassoaniean taaeietnns tn nO aM nenete nt 15
United States v. Socony-Vacuum Oil Co., 310 U.S.
£650) COBO) sncasosssiescnnennsnancennsinankonsenennnsiessneeennatme nana 7 15
Vaughan v. Atkinson, 369 U.S. 527 (1962)......:::eeceeeerrrees 26
STATUTES:
96 UTE. OB scsssnesiscsnnisnoansasasenneennasmnneineionasenenentn ETE Tas 8
18 UTS. § LODE ..snnsisenenssnesnsennesanensennenninnenssnnnatonsnsse sens 8
DB U.S.C. § 2412 ......ccscerssneressesnnrvnnssennsnsnsnnsnnonnonncennsend passim
Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519
(1997) (reprinted in 18 U.S.C. § 3006A, historical
and statutory motes) ..........ssceseessssereeteessensenseees 1, 10, 24
Bed. R. Crim. P. 6 ......-:ssssssssvesssonennensensnansnconsnepoonoenes 2, 20, 21
OPINIONS AND JUDGMENTS
IN THE COURTS BELOW
The opinion of the court of appeals (App. Vol. I, pg. 1-
45) is reported as U.S. v. Aisenberg, 358 F.3d 1327 (11th
Cir. 2004). The opinion and order of the district court
granting Appellants a reasonable attorney’s fee and
ordering complete disclosure of the grand jury transcripts
(App. Vol. I, pg. 46-224) is reported as U.S. v. Aisenberg,
247 F. Supp. 2d 1272 (M.D. Fla. 2003).
4
STATEMENT OF JURISDICTION
The judgment of the court of appeals (App. Vol. I, pg.
1-45) was entered on February 6, 2004, and a timely
petition for rehearing was denied on March 30, 2004. (App.
Vol. II, pg. 241) This Court’s jurisdiction rests on 28 U.S.C.
§ 1254(1).
¢
STATUTES AND RULES INVOLVED
Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997)
(reprinted in 18 U.S.C. § 3006A, historical and statutory
notes) provides that:
During fiscal year 1998 and in any fiscal year
thereafter, the court, in any criminal case (other
than a case in which the defendant is repre-
sented by assigned counsel paid for by the public)
pending on or after the date of the enactment of
this Act [Nov. 26, 1997], may award to a prevail-
ing party, other than the United States, a rea-
sonable attorney's fee and other litigation
expenses, where the court finds that the position
2
of the United States was vexatious, frivolous, or
in bad faith, unless the court finds that special
circumstances make such an award unjust. Such
awards shall be granted pursuant to the proce-
dures and limitations (but not the burden of
proof) provided for an award under section 2412
of Title 28, United States Code. To determine
whether or not to award fees and costs under this
section, the court, for good cause shown, may re-
ceive evidence ex parte and in camera (which
shall include the submission of classified evi-
dence or evidence that reveals or might reveal
the identity of an informant or undercover agent
or matters occurring before a grand jury) and
evidence or testimony so received shall be kept
under seal. Fees and other expenses awarded
under this provision to a party shall be paid by
the agency over which the party prevails from
any funds made available to the agency by ap-
propriation. No new appropriations shall be
made as a result of this provision.
Pertinent provisions of Federal Rule of Criminal
Procedure 6(d)(3)(C)(i)(1) state in pertinent part:
“Disclosure otherwise prohibited by this rule of
matters occurring before the grand jury may also
be made — (I) when so directed by a court pre-
liminarily to or in connection with a judicial pro-
ceeding.”
Section 2412 of United States Code, Title 28 is set
forth at pages 243-248 of Volume II of the appendix.
+
3
STATEMENT OF THE CASE
This case involves the frivolous, vexatious and bad
faith investigation and prosecution of Steven and Marlene
Aisenberg. At approximately 6:30 a.m. on November 24,
1997, Steven and Marlene Aisenberg called 911 to report
their infant daughter Sabrina missing, after they woke up
and found her crib empty.
Almost immediately, a task force was organized to
investigate Sabrina’s disappearance. (hereinafter the
“Sabrina Task Force”). The Sabrina Task Force included
the Hillsborough County Sheriff’s Office (HCSO), the
Federal Bureau of Investigation (FBI) and the Florida
Department of Law Enforcement (FDLE). The United
States Attorney’s Office for the Middle District of Florida
was made part of the investigation and began issuing
grand jury subpoenas on December 1, 1997.
The HCSO appointed two detectives to lead the
investigation, Linda Burton and William Blake. Within
hours of Sabrina’s disappearance, Detective Burton told
Marlene Aisenberg that she believed Marlene knew what
had happened to Sabrina. While the ostensible search for
Sabrina continued, the intent of Detective Burton and her
supervisors clearly had become to prove that Marlene and
Steven Aisenberg had either murdered or sold their baby.
The Aisenbergs cooperated with authorities from the
moment they called 911 and reported Sabrina missing.
They provided authorities with complete accessete their
home, answered all questions of investigators, and will-
ingly took police polygraph examinations. However, after
the investigators openly accused Marlene Aisenberg of
involvement in Sabrina’s disappearance a second time
4
during a second polygraph examination, the Aisenbergs
hired defense counsel.
After hiring counsel, the Aisenbergs continued to
cooperate with law enforcement, but counsel, out of concern
for the integrity of the investigation, demanded that all
further interviews be conducted in his presence and be
recorded so as to avoid any possible misinterpretation of the
Aisenbergs’ statements. Law enforcement rejected these
conditions.
The unique circumstances of Sabrina’s disappearance
and the public’s clamor in view of a missing child under-
standingly caused this matter to receive extensive media
coverage. The effect of the recent Susan Smith and Jon
Benet Ramsey cases only heightened the attention this
case received, in Tampa, Florida, nationally and interna-
tionally. The pressure on the law enforcement community
to solve the crime was great. With no apparent leads as to
who abducted Sabrina, law enforcement undertook a
media campaign to attack and vilify the Aisenbergs. This
campaign included leaking information about alleged
failed polygraph tests and grand jury appearance dates.
The latter leak allowed the media to observe the Aisen-
bergs entering and leaving the grand jury chamber and
commentators to opine and report that, given the brevity
of their appearance, the Aisenbergs likely invoked the
Fifth Amendment; a continuation of a calculated plan to
infect a trial jury.
In an effort to “prove” the Aisenbergs’ guilt, law
enforcement, with the concurrence of the lead prosecutor,
developed a plan to intercept oral communications of the
Aisenbergs from within their marital bedroom and home.
On December 12, 1997, authority for such intercepts was
5
obtained from a State circuit judge. Two extensions to the
order of interception were obtained. The electronic surveil-
lance was discontinued on March 2, 1998, after generating
79 days of surveillance and recording over 2,600 conversa-
tions.
From its inception, the electronic surveillance suffered
from systemic, technical problems of distortion, interfer-
ence, and mechanical noises. Very few conversations, and
none incriminating, could be heard during the electronic
surveillance. Beginning in mid-December 1997, several of
the recordings were sent to the FBI lab in Quantico,
Virginia for expedited enhancement. The federal prosecu-
tors later reported that the enhancement efforts had failed
to improve the audibility or clarity of the intercept re-
cordings.
During this same time, law enforcement began devel-.
oping a theory that the Aisenbergs had physically abused
Sabrina prior to her disappearance. To support this theory,
investigators calculatedly and selectively captured still
images from a home video of Sabrina taken the day before
her disappearance and provided voluntarily by Marlene
Aisenberg. These selected images were then presented to
the county child protection team for review. Law enforce-
ment agents also claimed to have identified witnesses who
observed that Sabrina’s hair had been violently pulled
from her head shortly before her disappéarance. This
information was presented in affidavits in support of the
ap lications for extension of electronic surveillance.
As later proven in court, and found by the district
court, the Sabrina Task Force willfully ignored substantial
evidence contrary to its theory. Task Force members knew
that none of the two dozen or so people who observed
6
Sabrina within days of her disappearance reported any
signs of abuse or anything unusual about Sabrina’s disap-
pearance or behavior. These observers included the Aisen-
bergs’ babysitter and a majority of Marlene Aisenberg’s
extended family who saw Sabrina at a birthday party the
afternoon before her disappearance. The Aisenbergs also
proved in an evidentiary hearing that the alleged “inju-
ries” to Sabrina as depicted on the home video still images
were shadows on Sabrina’s face, which appeared as she
turned her head away from the light source. Experts who
viewed the entire video and a group of sequential images
from the video saw no evidence of injury, only shadows.
Had investigators not purposefully selected and presented
unrepresentative stills to its experts, they likely would not
have obtained the opinion they did.
Notwithstanding the near complete inaudibility of
alleged incriminating conversations and a plethora of
evidence disproving the investigators’ claims of physical
abuse, the two electronic surveillance extension applica-
tions relied exclusively on those grounds as justification
for continuing the surveillance. For example, the sworn
application for the first extension of electronic surveil-
lance included only twelve summaries and transcripts of
intercepted conversations and a recitation of the alleged
evidence that Steven and/or Marlene Aisenberg had
previously abused Sabrina. The second extension applica-
tion contained only fourteen summaries and transcripts
to support the need for continued electronic surveillance.
As will be discussed infra, the court ultimately found the
submitted summaries and transcripts materially mislead-
ing.
Simultaneous to the above, the United States Attor-
ney’s Office was presenting this false and misleading
“evidence” to a grand jury. The federal prosecutors pro-
vided grand jurors with transcripts of recordings that they
knew were, and were proven to be, imaudible and unintel-
ligible. The prosecutors knew from witnesses that there
were no injuries to Sabrina. These same prosecutors forced
the Aisenbergs to appear before the grand jury with full
knowledge that the Aisenbergs would invoke their Fifth
Amendment privilege against self-incrimination so that
the grand jury could be poisoned by these acts and so that
leaks of information regarding the Aisenbergs’ appearance
could be broadcast along with the opinion of commentators
that the Aisenbergs had refused to talk. (Grand Jury
Testimony of Steven Aisenberg, App. Vol. II, pg. 249-261:
Grand Jury Testimony of Marlene Aisenberg, App. Vol. II,
pg. 262-276)
The government was able to compel the Aisenbergs to
appear before the grand jury by falsely representing to a
district judge who was hearing the Aisenbergs’ motion to
quash subpoena, that the Aisenbergs were merely “sub-
jects” of the investigation. We know this representation
was false because it was made after agents of the grand
jury had sworn, in support of applications for electronic
surveillance, that probable cause existed to believe that
the Aisenbergs had murdered or sold Sabrina. Had the
prosecutors properly identified the Aisenbergs as targets
of the grand jury, the Department of Justice’s guidelines
could have been used as a basis to quash the subpoenas.
Of course, had the subpoenas been quashed, the govern-
ment would have been deprived of the media circus sur-
rounding the Aisenbergs being called before the grand
jury, and deprived of the benefit of the prejudice that
inured to the Aisenbergs as a result of the public pro-
nouncement of their invocation of the Fifth Amendment.
-
8
Beginning in February 1998, the grand jury was
presented transcripts of conversations allegedly inter-
cepted during the electronic surveillance. (App. Vol. II, pg.
277-351) The prosecutors and investigators vouched for
their accuracy. Vouching for the accuracy of the transcripts
was necessary as the grand jurors were unable to hear
what was allegedly on the recordings and had to rely on
the investigators’ statements as to what the Aisenbergs
were saying. (App. Vol. II, pg. 336)
On September 9, 1999, an indictment was returned
alleging that the Aisenbergs conspired to violate and did
violate 18 U.S.C. §§ 1001 and 2 by, among other things,
making false statements to law enforcement respecting
Sabrina’s disappearance. According to the district court’s
opinion, the indictment “misleadingly projects an image of
parental disregard and disinterest in Sabrina’s medical
welfare” (App. Vol. I, pg. 51) and “contains a series of
allegations of dubious relevance, detached context, or
questionable veracity.” (App. Vol. I, pg. 54) In sum, the
“ndictment is unaccountably lengthy and replete with
matters that are (at best) mere surplusage and unneces-
sary to the essential purpose of an indictment.” (App. Vol.
I, pg. 53)
The tape recordings obtained during the electronic
surveillance were the “motive force and principal support”
for the United States’ case against the Aisenbergs. (App.
Vol. I, pg. 66) The United States consistently expressed its
reliance on the statements captured during the electronic
surveillance to the district judge, and approximately
twenty-four of the indictment’s fifty-nine overt acts were
derived specifically from intercepted communications.
Notwithstanding the United States’ heavy reliance on
these recordings for use before the grand jury and planned
9
use as the principal evidence against the Aisenbergs at
trial, the district judge would later state that, after re-
peated review of the recordings, he could hear none — that
is none — of the strongly inculpatory quotations attributed
to the Aisenbergs in the laundry list form indictment
featured in a national news conference covering the
announcement of the Aisenbergs’ arrest. (App. Vol. I, pg.
66)
The United States also intentionally prepared materi-
ally misleading transcripts of the intercepted conversa-
tions. During discovery, the magistrate judge ordered the
parties to exchange transcripts of conversations they
intended to introduce during their cases-in-chief at trial
and to attempt to arrive at a stipulated transcript.’ The
parties could not agree on any stipulated transcripts so
each submitted its own versions to the court. When the
district court compared the United States’ transcripts to
the audio recordings the United States intended to intro-
duce into evidence, it found the difference “shocking.”
(Order Respecting Audibility, App. Vol. II, pg. 225-240)
On October 16, 2000, the magistrate judge set a
Franks hearing to review thirteen (13) of the conversations
presented in the affidavits to extend the electronic surveil-
lance and on the allegations that Sabrina Aisenberg had
physical injuries which were readily apparent two days
before her disappearance. After ten days of testimony, the
magistrate judge issued a report and recommendation,
subsequently adopted by the district court, recommending
"The quality of the recordings was so poor that the Aisenbergs’
counsel could not locate many of the relevant conversations to prepare a
transcript until directed to a specific location on the actual audio tape
by the United States.
10
suppression of the electronic surveillance. (App. Vol. I, pg.
154-224) In his report and recommendation, the magis-
trate judge described the recordings, transcripts and
summaries as containing:
systemic, technical problems producing recordings
plagued by distortion, interference, and mechani-
cal noises; application transcripts that make no
sense; revised transcripts that continue to make
no sense; revised transcripts that contradict the
application transcripts in material respects; a
continual effort to amend transcripts (to purport-
edly improve them) up to and through the date of
this report; admissions, as evidenced by the gov-
ernment’s transcripts, that significant amounts
of particular conversations cannot be understood
or were not recorded (due to minimizations); and
the government’s tacit acknowledgment that cer-
tain recordings are so poor or so irrelevant it will
not offer them as evidence at trial.
(App. Vol. I, pg. 172-173) Shortly after the Report and
Recommendation was issued, the United States filed a
Request for Leave to File Dismissal, which was granted by
the court on February 22, 2001.
On March 26, 2001, the Aisenbergs filed a timely
Application for Fees and Costs Pursuant to the Hyde
Amendment, Section 617 of Public Law No. 105-119, 111
Stat. 2440, 2519 (1997). In support of their application,
the Aisenbergs identified numerous instances of frivo-
lous, vexatious and bad faith conduct by investigators
and prosecutors. This misconduct included: willful failure
to fairly investigate other leads and suspects; improper
and illegal leaks to the media; manipulation of evidence
concerning alleged injuries to Sabrina: misrepresentations
in the application for authorization to intercept oral
11
communications; manipulation and distortion of electroni-
cally intercepted conversations; and providing the federal
grand jury with false and misleading “evidence” concern-
ing the Aisenbergs.
The United States did not contest the application of
the Hyde Amendment. This was an unprecedented conces-
sion. Rather, as is discussed infra, it merely objected to the
manner in which the fee should be calculated.
Throughout the proceedings, the Aisenbergs sought
access to the grand jury minutes to show the level and
extent of the government misconduct in this matter. On or
about February 17, 2000, the Aisenbergs filed their Motion
for Production of Grand Jury Minutes and for Hearing to
Determine Whether to Dismiss Indictment for Investiga-
tive and Prosecutorial Misconduct. On or about July 29,
2002, in support of their Application for Fees and Costs
Pursuant to the Hyde Amendment, the Aisenbergs again
requested a copy of the grand jury minutes.
After the indictment against the Aisenbergs was
dismissed, the media sought access to the sealed recordings
created during the electronic surveillance. The media
sought the opportunity to hear for themselves the tape
recordings which had been the basis for the United States’
prosecution and had been totally discredited by the magis-
trate and district court judges. Originally, the United
States objected to such a disclosure because there was an
“ongoing” investigation into Sabrina’s disappearance. The
United States maintained this position until the district
court granted its request to present evidence of the ongo-
ing investigation in camera. Shortly thereafter, the United
States inexplicably withdrew its objection and agreed to
the release of the recorded conversations.
12
Although the United States had withdrawn its objec-
tion to release the Aisenbergs’ recorded conversations, it
continued to object to the release of the grand jury min-
utes on the basis of an ongoing criminal investigation. On
at least two occasions the district court asked the United
States to provide evidence that release of the grand jury
minutes would interfere in any manner with the alleged
investigation. The United States refused. The district
court thereafter issued its opinion awarding fees and
unsealing grand jury materials. (App. Vol. I, pg. 46-225)
That decision was later reversed by the Eleventh Circuit
Court of Appeals. (App. Vol. I, pg. 1-45)
¢
REASONS FOR GRANTING PETITION
I. Certiorari should be granted because the
United States Court of Appeals for the Elev-
enth Circuit has decided an important ques-
tion of federal law in a way which conflicts
with relevant decisions of this Court and other
Courts of Appeal and which undermines the
policies underlying a district court’s ability to
supervise its grand juries.
As noted elsewhere, for the first time in our nation’s
history, the United States conceded that one of its prosecu-
tions was brought in bad faith, frivolously, and/or vexa-
tiously. The misconduct forming the basis of that concession
occurred in the grand jury stage of this case. As chronicled
in the district court’s order, a federal grand jury was
manipulated into indicting the Aisenbergs through a
course of misconduct in which prosecutors and government
witnesses willfully presented the grand jury with false
evidence, suppressing known truths and creating an
13
illusion of culpability of the Aisenbergs, notwithstanding
the evidence. It was not altruism which motivated the
government to concede liability under Hyde. Rather, it was
recognized that the egregiousness of its misconduct before
the grand jury was indefensible and that its position
would only become more embarrassing and indefensible
once discovery proceedings began, if it contested the
applicability of the Hyde Amendment.
Prior to ordering disclosure of grand jury materials,
the district court performed the traditional analysis that
accompanies consideration of such disclosure. The district
court understood the need for secrecy of grand jury inves-
tigations so that the independence and fact-finding ability
of that body not be compromised. Its opinion fully consid-
ered the factors set out in Douglas Oil Company of Cali-
fornia v. Petrol Stops Northwest, 441 U.S. 211 (1979),
before concluding: “With only the most minimal and
inconsequential countervailing considerations, the Aisen-
bergs’ request (for grand jury disclosure) is reasonable and
fair.” 247 F. Supp.2d at 1322.
The district court noted an additional reason why
disclosure of the grand jury materials was appropriate: the
government’s concession of vexatious, frivolous or bad
faith conduct. This unprecedented concession, coupled
with the reality that millions of dollars in public funds
would be used to satisfy it created a factor and situation
never before encountered by a district court. The trial
court knew that under these special circumstances, strict
adherence to the Douglas Oil’ factors was not appropriate.
? The opinion of the Court of Appeals incorrectly characterizes the
Hyde Amendment as the “principal means” used by the district court to
justify grand jury disclosure. 358 F.3d at 1350. Indeed, the district court
(Continued on following page)
14
Precedents of this Court confirm the wisdom and result
reached by the district court on this issue.
Justice Brennan, dissenting in Pittsburgh Plate Glass
Co. v. U.S., 360 U.S. 395 (1959) observed:
Grand jury secrecy is maintained to serve par-
ticular ends. But when secrecy will not serve
those ends or when the advantages gained by se-
crecy are outweighed by a countervailing interest
in disclosure, secrecy may and should be lifted,
for to do so in such a circumstance would further
the fair administration of justice.
Pittsburgh Plate Glass Co., 360 U.S. at 403.
In U.S. v. Proctor & Gamble Co., 356 U.S. 677 (1958),
the Court stated that while rules of secrecy should ordi-
narily prevail, any justification for secrecy is lost if the
government abuses the process and subverts rules of fair
play and ethical conduct:
It is only when criminal procedure is subverted
that ‘good cause’ for wholesale discovery and pro-
duction of a grand jury transcript would be war-
ranted.
Proctor & Gamble Co., 356 U.S. at 684.
The district court understood that since there was no
active grand jury investigation of this matter, the ends of
justice required full exposure of the wrongful conduct
conceded by the government. This need to satisfy the ends
of justice and the public interest was recognized over sixty
considered all relevant factors before considering the added effect of the
government’s concession of liability under Hyde.
15
years ago in U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150
(1940):
Grand jury testimony is ordinarily confiden-
tial.... But after the grand jury’s functions are
ended, disclosure is wholly proper where the
ends of justice require it.
Socony-Vacuum Oil Co., 310 U.S. at 233-34. See, also, U.S.
v. Sells Engineering, 463 U.S. 418, 445 (1983) (“Under the
particularized need standard, the district court may weigh
the public interest, if any, served by disclosure to a gov-
ernmental body.”) Viewing, then, all factors in the aggre-
gate, the district court concluded:
The United States should not ke entitled to
shield the pertinent history behind the cloak of
grand jury secrecy, especially in a case in which
the defendants seek disclosure, the evidence is
largely public, the grand jury’s session ended
months earlier, no trial will occur, and the matter
is essentially at a standstill. The only contrary
interest remaining is that of the United States,
which may want to avoid a full airing of the epi-
sode. That interest, unaccompanied by some
other material consideration, is without mean-
ingful weight.
United States v. Aisenberg, 247 F. Supp. 2d 1272, 1323
(M.D. Fla. 2003). ;
In addition to conflicting with decisions of this Court,
the Eleventh Circuit’s opinion also conflicts with other
* That fewer reasons for secrecy can be defended after the grand
jury has concluded its session was reaffirmed in Butterworth v. Smith,
494 U.S. 1376, 1381-82 (1990).
16
courts that permit disclosure of grand jury materials
where the public had the right to know the complete story
of events so as not to be manipulated or deceived by
dishonest acts of its ostensible public servants. The Dis-
trict of Columbia Circuit found disclosure of Rule 6(e)
materials appropriate in Jn re: North, 16 F.3d 1234 (D.C.
Cir. 1994), and again in In re: Espy, 259 F.3d 725 (D.C. Cir.
2001). In Espy, the Court released portions of the Inde-
pendent Counsel’s Report of investigation after consider-
ing criticisms that the report without the 6(e) material
“misleads the reader about certain facts in the ‘story’,
stating:
(T]hat the public interest in full disclosure of
that which has been partially or misleadingly
disclosed already weighs in favor of granting the
publication.
In re: Espy, 259 F.3d at 730."
In a Second Circuit case, Jn re: Biaggi, 478 F.2d 489,
494 (2d Cir. 1973), the Court identified the public’s right to
know the truth about a political candidate as a factor
favoring disclosure of the candidate’s testimony before the
grand jury. After it had been reported in the local press
that the candidate had invoked his Fifth Amendment
privilege in an appearance before the grand jury, the
‘In North, a factor favoring disclosure was that “leaks, and media
accounts were made without the right of reply by the subjects, were
partial, and were in the judgement of the Court more unfair to the
persons named than will be the present release of the completed Report
with the comments of the named persons and this Court’s express
repudiation of imprimatur.” North, 16 F.3d at 1241. The district court
below considered the effect of media leaks on the Aisenbergs. It was
factor (5) in that portion of the opinion authorizing disclosure of the
grand jury materials.
17
candidate denied the allegation and stated that he would
seek to have the records unsealed. As submitted to the
court, the candidate’s request to unseal his testimony was
untenable, and probably known to be so. At stake, then,
was the candidate’s ability to deceive the public as to the
true state of proceedings before the grand jury. In conclud-
ing that the public had the right to know the true facts
given the deception Biaggi had attempted to perpetuate,
the Court, through Chief Judge Friendly, found:
When Mr. Biaggi sought a full disclosure, al-
though with the names of other persons named
in the questions and answers unredacted, he
waived his rights to have the minutes remain se-
cret, and the public interest required that
the request be granted with proper protec-
tion to the persons named. (Emphasis added).
Id.
A similar result was obtained in Petition to Inspect
and Copy Grand Jury Materials (Hastings), 735 F.2d 1261
(11th Cir. 1984), where, to further the public’s interest in
an honest judiciary, a district court disclosed grand jury
materials to a judicial committee investigating a U.S.
District Judge who had been indicted for bribery and
acquitted. In affirming the lower court’s agreement for
access to these materials, the Eleventh Circuit held:
A careful evaluation of these competing con-
cerns leads this Court to the inescapable conclu-
sion that the minimal trespass upon the
traditional values associated with grand jury
confidentiality is significantly outweighed by
the need of the Special Committee to examine
the grand jury material and expeditiously exe-
cute its Congressional duty, thereby furthering
18
the broad purposes of the (Judicial Councils Re-
form and Judicial Conduct and Disability) Act.
Id. at 1268.
It must be kept in mind that the purpose of this
requested disclosure is to reveal the misconduct of federal
agents, prosecutors and police detectives in their framing
of two innocent citizens for a serious crime. The right of
the citizenry to be informed of such matters is compelling,
and the concomitant need to deter future misdeeds by
government officials compels the need for disclosure of
grand jury materials here. The district court’s opinion
specifically noted:
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.
Aisenberg, 247 F. Supp. 2d at 1324.
In Butterworth v. Smith, 494 U.S. 624, 632 (1990), this
court recognized the public’s enhanced right to information
“related to alleged governmental misconduct.” This factor
is considered in the district court’s opinion, yet never
mentioned by the Eleventh Circuit.
The Aisenbergs also have a right to this information
because it not only is needed in their pending civil rights
case (Aisenberg v. Hillsborough County Sheriff’s Office,
®° The need to “set the record straight” is especially high here, given
pervasive government leaks suggesting the guilt of the Aisenbergs, the
government's nationally televised press conference trumpeting their
indictment, and the indictment itself, released to the press, which
painstakingly details all alleged inculpatory statements of the Aisen-
bergs among its overt acts.
19
et al., 8:03-cv-2063-T-23EAJ (M.D. Fla.)) against those
responsible for their prosecution, but also because its
disclosure will demonstrate their innocence. Speaking to
this issue in North, the Court of Appeals found:
[W]e do think that the reality of the partial pub-
lic knowledge of the information in the Report
weighs strongly in releasing the whole. Particu-
larly is this true, as some movants and some
commentators want the Report released because
in their view the Report would support a conclu-
sion that they had engaged in no wrongdoing. We
therefore weigh this factor in favor of release.
In re: North, 16 F.3d at 1241.
The Eleventh Circuit takes an overly narrow view of
the authority of a district court to grant the relief it did.
The appellate court completely failed to recognize the
inherent power of a district court, outside of Rule 6(e), As
explained in Pittsburgh Plate Glass:
The federal trial courts as well as the Courts of
Appeal have been nearly unanimous in regarding
disclosure as committed to the discretion of the
trial judge. Our cases announce the same princi-
ple, and Rule 6(e) is but declaratory of it.
Pittsburgh Plate Glass, 360 U.S. at 399.
Even prior opinions of the Eleventh Circuit recognize
the inherent authority of district courts to order the
disclosure outside of Rule 6(e). Twenty years ago, after
recognizing the above cited rule from Pittsburgh Plate
Glass, the Eleventh Circuit held:
This concept (inherent authority to release grand
jury materials), to be sure, provides little guid-
ance as to when.a court is free to go beyond the
20
rule; still, it is certain that a court’s power to or-
der disclosure of grand jury records is not strictly
confined to instances spelled out in the rule. Rule
6(e), which was not intended to create new law,
remains subject to the law or traditional policies
that gave it birth.
Hastings, 735 F.2d at 1268.
Of course, those “traditional policies” to which the
Hastings Court referred are those which permit grand jury
disclosure to further the ends of justice, to reveal govern-
mental misconduct, to provide the public with true ver-
sions of events within its interest and to promote the truth
independent of Rule 6(e).
Another important factor is the extent to which the
requested information has already been made public. In
re: Craig, 131 F.3d 99, 107 (2d Cir. 1997); In re: North,
supra, 16 F.3d at 1244-45. The Eleventh Circuit opinion
outlined various items of information already made public
before concluding that the matter has been sufficiently
aired and no further disclosure is necessary. The appellate
court’s analysis falls far short. Although much information
is known, the district court determined that what remains
sealed must be disclosed so important features of this case
are explained. The district court posed several questions
that the public and Aisenbergs have the right to have
answered, yet which cannot be answered based upon the
limited disclosure made to date. The open questions
identified by the district court include:
® See, 358 F.3d 1350 at n.35 (listing disclosed information) and 358
F.3d at 1352 wherein the court concluded that the conduct of the
prosecution has been sufficiently made public © so that the public can
know about this misdirected prosecution.”
21
[W]hether the Aisenbergs were merely “subjects”
of the grand jury when the United States issued
a subpoena for their appearance, whether the
examination of the Aisenbergs before the grand
jury served a bona fide investigative purpose,
rather than another prosecutorial purpose,
whether the recordings from the Aisenbergs’
home were presented fairly, whether the testi-
mony established probable cause for the indict-
ment, and whether the proceedings otherwise
were in accord with established law, Department
of Justice policy, and other pertinent guides.
Aisenberg, 247 F. Supp. 2d at 1324. The Eleventh Circu't’s
opinion avoids discussion of the information required to
answer these questions.
The Eleventh Circuit also misapplied the standard of
what information should be disclosed to the Aisenbergs in
connection with their civil rights lawsuit against those
responsible for their illegal prosecution, a lawsuit which
has at its heart the events which took place before the
grand jury. The Eleventh Circuit merely concluded the
Aisenbergs already have a “wealth of evidence about the
government’s conduct.” United States v. Aisenberg, 358
F.3d 1327, 1350-51, and that no further disclosure is
required. This is error.
Disclosure of grand jury materials for use in a civil
lawsuit is plainly permitted under Rule 6(e)(3)(C)(i) where
the requested materials are necessary and “preliminary to
or in connection with a judicial proceeding” (the pending
civil lawsuit). United States v. Baggot, 463 U.S. 476, 480
(1983). In Douglas Oil, 441 U.S. at 223, this Court in-
structed lower courts to weigh carefully the competing
interests involving disclosure in light of all relevant
22
circumstances and standards announced by this Court
The Court cited Dennis v. U.S., 384 U.S. 855, 872 (1966)
for the proposition that disclosure of grand jury minutes is
appropriate where the movants show “it to be likely that
the witnesses’ testimony at trial was inconsistent with
their prior grand jury testimony.” The Proctor & Gamble
Court also stated that:
[T]he typical showing of particularized need
arises when a litigant seeks to use the grand jury
transcript at trial te impeach a witness, to re-
fresh his recollection, to test his credibility, and
the like.
Proctor & Gamble, 356 U.S. at 683. See, also, In re: Screw
Antitrust Litigation, 91 F.R.D. 47, 49-50 (D.Mass., 1941)
(recognizing increased need for disclosure of grand jury
materials when necessary to equalize access to relevant
facts which each side possesses.)
Receipt of remaining undisclosed information from the
grand jury proceeding is essential to the Aisenbergs for
their pending civil matter. Only the government (and the
district court) know what occurred within the grand jury;
we do not. The government prosecutors and agents, when
deposed or testifying, or even replying to routine civil
discovery, have the great advantage of knowing what
occurred and knowing that their answers will never be
tested against what will remain secret under the Eleventh
Circuit’s decision to keep the grand jury proceedings
sealed. It is known from the Aisenberg criminal case that
the defendant prosecutors lied to the court about matters
ranging from the validity of proffered transcripts to the
integrity of the investigation. We know too from the
criminal case that the police officers being sued lied
repeatedly in affidavits for electronic surveillance, in their
23
testimony to the grand jury (suborned by the prosecutors),
and in weekly reports to the judge supervising the oral
intercept from within the Aisenbergs’ marital bedroom and
home. These falsehoods are well documented in the dis-
trict court’s opinion.
To permit the grand jury materials to remain sealed in
this case is contrary to the concept of justice, as prosecu-
tors will know, from this point forward, that they can
continue to abuse the grand jury process and the rights of
others with impunity and without any fear of being held
accountable for their misconduct. If such rule applies to
this case, given the egregious facts and the government’s
unprecedented concession of bad faith liability, then it will
be argued and probably accepted that there should be no
grand jury disclosure in any case.
II. Certiorari should be granted because the
United States Court of Appeals for the Elev-
enth Circuit has decided an important ques-
tion of federal law in a way which conflicts
with relevant decisions of this Court.
The United States Court of Appeals for the Eleventh
Circuit improperly held that the Hyde Amendment re-
stricts the ability of district courts to sanction governmen-
tal bad faith conduct in federal criminal prosecutions by
limiting the award of attorneys fees to $125 per hour.
United States v. Aisenberg, 358 F.3d 1327, 1342 (11th Cir.
2004). This interpretation flies in the face of this Court’s
precedents establishing the inherent common law power of
district courts to sanction bad faith litigation by awarding
reasonable attorney fees based on the lodestar approach of
reasonable hourly rates multiplied by reasonable hours
worked. This power is essential to the functioning of the
24
district court as it deters litigants from engaging in
inappropriate, unethical conduct. By its ruling, the Elev-
enth Circuit has removed the district court’s power to
exercise this authority to deter bad faith governmental
misconduct. Such a ruling cannot stand because it detracts
from the traditional powers of the court and deprives a
court of its historical ability to regulate the conduct of
those who practice before it.
The Hyde Amendment, 18 U.S.C. §3006A note,
“prescribes an ‘award to a prevailing party’ of ‘a reasonable
attorneys fee and other litigation expenses’ after an
unsuccessful criminal prosecution that the court finds
‘vexatious, frivolous, or in bad faith.’” United States v.
Aisenberg, 247 F.Supp.2d 1272, 1288 (M.D. Fla. 2003). The
Hyde Amendment then provides that its statutory award
of a “reasonable attorney’s fee” “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”, which is the Equal Access to
Justice Act (EAJA). The Hyde Amendment does not define
the particular “procedures and limitations” of EAJA under
which its fee awards shall be made.
EAJA permits attorney fee awards of two differing
amounts. Section 2412(b) permits district courts to order
the United States to pay an uncapped reasonable attor-
ney’s fee “to the same extent that any other party would be
liable under the common law or under the terms of any
statute which specifically provides for such an award.” On
the other hand, Section 2412(d) “mandates a (capped) fee
award [of $125 per hour] to the prevailing party who sues
the government if the government’s position was not
substantially justified.” Newmark v. Principi, 283 F.3d
172, 177 (3d Cir. 2002) (emphasis in original).
25
Comp..ring Sections 2412(b) and 2412(d), the Elev-
enth Circuit held that “only § 2412(d) contains any proce-
dures and limitations for an award of attorney’s fees under
the EAJA.” Aisenberg, 358 F.3d at 1339. The Eleventh
Circuit noted three procedures and limitations under
Section 2412(d):
(1) that a party must file for an award of attor-
ney’s fees within thirty days of final judgment,
§ 2412(d)(1)(B); (2) that “attorney fees shall not
be awarded in excess of $125 per hour unless the
court determines that... a special factor, such as
the limited availability of qualified attorneys for
the proceedings involved, justifies a higher fee”,
§ 2412(d)(2)(A)(ii); and (3) that an individual may
not recover attorney’s fees if his net worth ex-
ceeds $2,000,000 at the time the civil action was
filed, nor may the owner of a business whose net
worth exceeds $7,000,000 and had more than 500
employees at the time the civil action was filed,
§2412(d)(2)(B).
Id. The Eleventh Circuit concluded that “Section 2412(d)
provides procedures and limitations to fee awards under
the EAJA, but § 2412(b) provides none.” Jd. at 1340.
Accordingly, the Eleventh Circuit held “that the Hyde
Amendment incorporates all of the procedures and limita-
tions in § 2412(d) and does not incorporate § 2412(b).” Id.
at 1342.
The Eleventh Circuit erred in concluding that Section
2412(b) is unavailable to district courts in order to sanc-
tion governmental misconduct in cases involving bad faith.
Section 2412(b) does contain limitations before fee awards
can be made. These include (1) the common law limit of
26
sanctioning a litigant’s bad faith conduct,’ as recognized by
this Court in such cases as FD. Rich Co., Inc. v. United
States ex rel. Industrial Lumber Company, Inc., 417 U.S.
116, 129-30 (1974); Alyeska Pipeline Service Co. v. Wilder-
ness Society, 421 U.S. 240, 258-59 (1975); Hutto v. Finney,
437 U.S. 678, 690 n. 14 (1978), and Chambers v. NASCO,
Inc., 501 U.S. 32, 45 (1991) and (2) the requirement
awards under § 2412(b) be “reasonable” The lodes*ar
method is used to determine reasonable fees based on “the
number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Ecker-
hart, 461 U.S. 424, 433 (1983). Plainly, then, Section
2412(b) provides both procedures and limitations for fee
awards as sanctions for bad faith litigation.
The Eleventh Circuit was equally wrong in deciding
that because the Hyde Amendment incorporates the
qualification requirements of Section 2412(d) it did not
incorporate that part of Section 2412(b) authorizing
district courts to use their inherent common law power to
sanction bad faith litigation by a party, here the United
States. The requirements of Section 2412(b) are not
mutually exclusive to those of Section 2412(d). That is why
the Hyde Amendment refers to the procedures and limita-
tions of Section 2412 generally rather than § 2412(b) or
’ Rehabilitation Association of Virginia, Inc. v. Metcalf, 8 F.Supp.2d
520, 525 (F.D. Va. 1998) (“The second sentence of Section 2412(b) serves
as a limitation on the first sentence, such that Section 2412(b) author-
izes an award of fees only ‘to the same extent that any other party
would be liable under the common law or under the terms of any
statute which specifically provides for such an award’”).
® Under the common law, bad faith fee awards must be reasonable.
Vaughan v. Atkinson, 369 U.S. 527, 531 n.3 (1962) and Rolax v. Atlantic
Coast Line R. Co., 186 F.2d 473, 481 (4th Cir. 1951), both of which this
court cited in FD. Rich Co., Inc. v. United States ex rel. Industrial
Lumber Company, Inc., 417 U.S. 116, 129 n. 17 (1974.)
27
§ 2412(d). Merely because the filing and net worth re-
quirements of Section 2412(d) must be met for all Hyde
Amendment awards does not mean that uncapped reason-
able fee awards cannot be made under Section 2412(b) as a
sanction for bad faith litigation.
This Court repeatedly has held that district courts
possess an inherent common law power to “assess attor-
ney’s fees when a party has ‘acted in bad faith, vexa-
tiously, wantonly, or for oppressive reasons.’” Chambers v.
NASCO, Inc., 501 U.S. at 45-46, quoting Alyeska Pipeline,
421 U.S. at 258-59. Section 2412(b) merely permits this
inherent power to be applied against the United States in
a criminal case, just as against any other litigant guilty of
bad faith conduct. By referring to the procedures and
limitations of Section 2412 generally, rather than only to
those contained in Section 2412(d), Congress authorized
district courts to exercise this inherent power to police
themselves by “mak[ing] the prevailing party whole for
expenses caused by his opponent’s obstinacy.” Chambers,
501 U.S. at 46, quoting Hutto, 437 U.S. at 689 n. 14.
Although the Eleventh Circuit never recognized this
issfie, its interpretation creates an unnecessary separation
of powers problem. Under this Court’s longstanding
precedent, district courts possess the inherent power to
sanction bad faith conduct through awards of reasonable
uncapped attorney fees. Chambers, 501 U.S. at 46 (as-
sessment of reasonable attorney fees as sanction for bad
faith conduct based on “a court’s inherent power to police
itself”); Alyeska Pipeline, 421 U.S. at 259 (assessment of
reasonable attorney fees as sanction for bad faith conduct
based on “assertions of inherent power in the courts”). Yet,
under the Eleventh Circuit’s interpretation, the inherent
power of district courts to control the conduct of litigants
28
before it by awarding reasonable attorney fees as a sanc-
tion for bad faith conduct would be drastically limited as
the maximum available sanction is reduced to $125 per
hour. Just as this Court held in Chambers that the various
sanctioning provisions of the Federal Rules of Civil Proce-
dure do not “displace[] the inherent power to impose
sanctions for ... bad-faith conduct”, so too should this
Court hold that the Hyde Amendment does not reduce the
inherent power of district courts to sanction bad faith
conduct by the Government in criminal cases by awarding
reasonable uncapped attorney fees as sanctions.
The Eleventh Circuit’s conclusion that “the Hyde
Amendment incorporates all of the procedures and limita-
tions in § 2412(d)” is also wrong because the payment
provisions of § 2412(d)(1)(D) for EAJA awards fundamen-
tally conflict with the payment provisions of the Hyde
Amendment. The last sentence of Section 2412(d)(1)(D)
provides that “[flees and expenses awarded under this
paragraph shall be paid only as a consequence of appro-
priations provided in advance.” This provision “limits
awards to circumstances in which a congressional appro-
priation has been ‘provided in advance’, i.e., Congress has
created a designated fund for payment.” Aisenberg, 247
F.Supp.2d at 1294. On the other hand, the last two sen-
tences of the Hyde Amendment contains a precisely
contrary direction concerning payment:
Fees and other expenses awarded under this
provision to a party shall be paid by the agency
over which the party prevails from any funds
made available to the agency by appropriation.
No new appropriations shall be made as a result
of this provision.
eT Mai MOA Lah ' Daln 4 Xd
29
Id. Put another way, Section 2412(d)(1)(D) of the EAJA
“permits payment of fees and costs only if the agency is
financially prepared by the mechanism of an anticipatory
appropriation”, while “[o]n the other hand, Hyde Amend-
ment payments are intended to resonate within the
affected agency by denting the, money available for the
agency's other activities — without the prospect of reim-
bursement.” Id.°
Obviously the procedures and limitations of Section
2412(d)(1)(D)’s payment provisions cannot simply be
incorporated into the Hyde Amendment because to do so
would “utterly neutralize[] the Hyde Amendment’s prohi-
bition against a compensating appropriation to counter the
budgetary effect of Hyde Amendment assessments.... ”
Id. Therefore, the Eleventh Circuit’s conclusion that the
Hyde Amendment incorporates all of the procedures and
limitations of § 2412(d) cannot be correct. Rather, the
accurate conclusion is that “Congress intended to incorpo-
rate those provisions [of Section 2412(d)] consistent with
and useful to the heartland provisions of the primary
statute.” Id. at 1295. Accordingly, the availability of
reasonable uncapped attorney fees under § 2412(b) is
properly incorporated into the Hyde Amendment, as well
as the eligibility requirements contained in § 2412(d).
This Court must reverse and correct the Eleventh
Circuit’s erroneous interpretation of the Hyde Amend-
ment, and restore the district courts’ ability to sanction the
government through the imposition of reasonable fees, in
* This clear difference is because the Hyde Amendment has a clear
deterrent purpose which the EAJA lacks. ~
30
those few, egregious cases of governmental misconduct
such as was conceded present here.
Respectfully submitted,
BarrRY A. COHEN
TODD FOSTER
COHEN, JAYSON & FOSTER, P.A.
201 East Kennedy Boulevard
Suite 1000
Tampa, Florida 33602
(813) 225-1655 Fax (813) 225-1921
Attorneys for Petitioners Steven B. Aisenberg and
Marlene J. Aisenberg
App. 1
358 F.3d 1327
United States Court of Appeals,
Eleventh Circuit.
UNITED STATES of America, Plantiff-Appellant,
v.
Steven B. AISENBERG, Marlene J. Aisenberg,
Defendants-Appellees.
No. 03-10857.
Feb. 6, 2004.
Elizabeth D. Collery, Washington, DC, Tamra Phipps,
Tampa, FL, for Plaintiff-Appellant.
Steven P. Ragland, Michael E. Tigar, Annapolis, MD,
Barry A. Cohen, Todd Foster, Law Firm of Barry A. Cohen,
Tampa, FL, for Defendants-Appellees.
James B. Lake, Gregg D. Thomas, Rachel Elise
Fugate, Holland & Knight, LLP, Tampa, FL, for Tampa
Tribune, WFLA-TV and The Miami Herald, Amici Curiae.
Appeal from the United States District Court for the
Middle District of Florida.
Before BLACK, HULL and COX, Circuit Judges.
HULL, Circuit Judge:
The government appeals the district court’s order
granting: (1) attorney's fees in the amount of $2,680,602.22
under the Hyde Amendment for the bad faith prosecution of
Steven and Marlene Aisenberg in connection with the
disappearance of their daughter Sabrina, and (2) the whole-
sale disclosure of all grand jury transcripts. After review,
we reverse and reduce the attorney's fee award to
App. 2
$1,298,980.00. We also vacate the ordered disclosure of all
grand jury transcripts.
I. FACTUAL BACKGROUND
Because this case has an extensive procedural history,
we first outline the events leading to the wiretapping of
the Aisenbergs’ home in 1997 and 1998, the indictment of
the Aisenbergs in 1999, the dismissal of that indictment in
2001, and the award of attorney’s fees and wholesale
disclosure of all grand jury transcripts in 2003.
A. Missing Child Investigation
During the early morning of November 27, 1997,
Marlene Aisenberg placed a call to “911” to report the
disappearance of her five-month-old daughter, Sabrina
Aisenberg. Law enforcement officials conducted an intense
and exhaustive search for the child, which was ultimately
unsuccessful. The child remains missing to this day.
Throughout their interactions with the Aisenbergs
and after making no headway in their recovery efforts, law
enforcement officials developed suspicions directed at the
Aisenbergs. On December 12, 1997, sixteen days after the
child’s disappearance, the county sheriff’s office success-
fully applied to the state circuit court for authorization to
intercept oral and telephonic communications in the
Aisenbergs’ home.
The December 12, 1997, application for electronic
surveillance was supported by an affidavit signed jointly
by detectives Linda Sue Burton and William Blake of the
county sheriff’s office. The affiants claimed that probable
cause existed to believe that the Aisenbergs murdered or
App. 3
sold their child based on certain facts.’ The state circuit
court authorized the wiretap, and on December 13, 1997,
law enforcement officials placed electronic interception
devices in the Aisenbergs’ home.
On January 9, 1998, and again on February 6, 1998,
the county sheriff’s office applied for extensions of the
wiretapping authority, relying on: (1) transcripts of the
Aisenbergs’ conversations obtained during the December
1997 wiretaps; (2) a pediatrician’s opinion that pictures of
the child indicated that hair had been pulled out of the left
side of the baby’s head and the area around the left eye
was bruised; and (3) statements by the hair dresser of the
Aisenbergs’ children that she noticed hair missing from
the child’s head. The state circuit court granted the extension
applications, and the wiretapping continued until March 2,
1998, resulting in seventy-nine days of surveillance and
including 2,600 conversations recorded on fifty-five audio
recordings. As discussed later, the magistrate judge ulti-
mately found that the Aisenbergs’ conversations intercepted
from the December 1997 wiretaps were largely unintelligible
and that the pediatrician’s and the hairdresser’s statements
" Some of the facts alleged were that: (1) Marlene Aisenberg
sounded hysterical in her initial “911” missing-child report, but while
her husband spoke to the “911” operator, she spoke calmly to an
unknown party on another telephone; (2) there was not enough food or
diapers in their home to maintain the well-being of a five-month-old
child for one day; (3) during the county detectives’ third interview of
Marlene Aisenberg, she made statements and gestures indicating that
she knew the person who took the child and that the child was being
taken care of; and (4) the county detectives’ telephonic interview with
an FBI special agent regarding a study indicating that in 91.67% of
P cases where the last location of a child under age one is the victim’s
home, the child was killed in the home by a caregiver.
Bee. kas
Gk he ERE 887 Agi e' aia is Be
ete
App. 4
in the extension applications were misquoted or taken out
of context.
B. Indictment and Arrest
On January 30, 1998, the United States served the
Aisenbergs with subpoenas to appear before the grand
jury. The Aisenbergs communicated their unequivocal
intent to invoke the Fifth Amendment before the grand
jury and so advised the government through correspon-
dence and a hearing before the district court. The govern-
ment insisted that the Aisenbergs still appear. On
February 11, 1998, the Aisenbergs appeared before the
grand jury, invoked their Fifth Amendment rights, and
refused to answer most questions.
On September 9, 1999, a federal grand jury returned a
seven-count indictment against the Aisenbergs.’ The
indictment charged the Aisenbergs with one count of
conspiracy to make false statements of material facts to
law enforcement officials, in violation of 18 U.S.C. § 37],
and with six counts of making false statements of material
facts to law enforcement officials during the initial missing
child report and during the subsequent investigation, in
violation of 18 U.S.C. §§ 1001 and 1002. On the same day,
the Aisenbergs were arrested in Maryland, where they had
moved.
The Aisenbergs appeared at an initial hearing at
which the government urged the magistrate judge (1) to
require the Aisenbergs to submit to urinalysis and (2) to
2 The 1999 indictment was returned approximately twenty-one
months after Sabrina’s disappearance in late 1997 and eighteen months
after the termination of the wiretapping in early 1998.
lll —
PN ARE EO LABOR AE Pop Stl IES 0
og cite in ae
App. 5
require investigation by a social services professional to
protect the Aisenbergs’ other two children. During that
hearing, an Assistant United States Attorney asserted
that the government had in its possession a taped state-
ment in which Steven Aisenberg stated, “I wish I hadn’t
harmed her. It was the cocaine.” The government also
claimed to have in its possession taped statements indicat-
ing that the Aisenbergs were “drugged.” As will be dis-
cussed later, the district court ultimately determined that
the recordings purportedly containing these alleged
statements were “largely inaudible” and the magistrate
judge found them “unintelligible.”
C. Motion to Suppress
On February 17, 2000, the Aisenbergs filed a motion
to suppress the audio recordings of their home and the
related transcripts. The Aisenbergs’ motion claimed that
the county detectives’ affidavits, supporting the wiretap
applications, contained false statements, that without
these statements there was no probable cause for the
wiretaps, and that the audio recordings of their home
must be suppressed. The Aisenbergs also requested an
* Shortly after the indictment, the government moved to disqualify
the Aisenbergs’ defense counsel and to compel retention of separate,
independent counsel. The government argued that defense counsel had
a conflict of interest in representing both Aisenbergs. In denying the
motion, the magistrate judge stressed, inter alia, that the Aisenbergs
had made a knowing and intelligent waiver of conflict-free representa-
tion, that the government had not shown that an actual or serious
potential conflict existed by the joint representation, that the govern-
ment had not shown that it was likely that one defendant would testify
against the other, and that the prejudice caused by disqualifying
defense counsel outweighed the government’s perceived concerns. The
government did not appeal this determination.
App. 6
evidentiary hearing based on Franks v. Delaware, 438 US.
154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).*
During December 2000 the magistrate judge con-
ducted a Franks evidentiary hearing, which involved ten
days of testimony from forty witnesses and over one
hundred exhibits, primarily from the government's inves-
tigative files. On February 14, 2001, the magistrate judge
issued a comprehensive report recommending that the
district court suppress all audio recordings from the
wiretaps of the Aisenbergs’ home. United States v. Alsen-
berg, 247 FSupp.2d 1272, 1324-57 (M.D.Fla.2003).°
In his report, the magistrate judge made extensive
fact findings based on the voluminous evidence during the
Franks hearing.® For example, the magistrate judge found:
(1) that in the initial wiretap application, the county
detectives not only made false statements, but also omit-
ted material facts regarding the Aisenbergs’ initial missing
child report; (2) that in the initial wiretap application, the
county detectives’ statement that Marlene Aisenberg was
‘In Franks, the Supreme Court held that where a defendant
makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth,
was included by an affiant in a search warrant affidavit, and if the
allegedly false statement was necessary to the finding of probable
cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request to determine admissibility of the fruits of the
search. 438 U.S. at 171-72, 98 S.Ct. at 2684-85.
> Although the magistrate judge’s report was filed on February 14,
2001, the district court later published the magistrate judge’s report as
an attachment to its January 31, 2003, order awarding attorney’s fees
under the Hyde Amendment. Thus, we cite to the now published
magistrate judge’s report.
® In addition to over one hundred exhibits, there are ten volumes of
transcripts from the Franks hearing, which cover 2,585 pages.
SG io eens m
iin h aniline. et ee Baap
App. 7
“calm” and “collected” was made with reckless disregard
for the truth; (3) that the county detectives failed to inform
the state circuit court that they knew several people who
had seen the child the day before the missing report but
had not yet interviewed them; (4) that the county detec-
tives failed to inform the state circuit court that they were
still awaiting the financial analysis of the couple and the
crime lab’s processing of the evidence; (5) that in their
extension applications, the county detectives reported
conversations that no reasonably prudent listener could
hear from the tapes, that the county detectives quoted
conversations that do not even appear at all in the support-
ing transcripts of the tapes or do not appear in the manner
described, and that the county detectives deliberately or with
reckless disregard summarized conversations out of context;’
(6) that after redacting the unintelligible conversations in
the recordings, the county detectives’ applications for wiretap
extensions did not support probable cause to believe that the
Aisenbergs committed murder;’ (7) that the Aisenbergs’
"In his report, the magistrate judge described the wiretap
application process in great detail and outlined how errors occurred in
the wiretap extension applications, in the handwritten summaries of
those tapes, and later in the more formal transcripts of those tapes.
Aisenberg, 247 F.Supp.2d at 1325-27.
* During the Franks evidentiary hearing, the Aisenbergs’ expert,
Bruce E. Koenig, testified that all the wiretaps had problems. Koenig
previously served as the Special Agent Supervisor in the FBI’s engi-
neering section and received a bachelor of science from the University
of Maryland and a master’s degree in forensic science from George
Washington University, as well as completing graduate level courses at
George Mason University, University of Utah, and Massachusetts
Institute of Technology, and electronic courses at DeVry Institute of
Technology in Chicago. According to Koenig, the intercept system
introduced extraneous sounds such as ringing phones, hissing, and
humming; this noise directly impacted the ability to understand the
recorded speech; and distortion, caused by microphones picking up the
(Continued on following page)
App. 8
intercepted communications were unrelated to offenses
included in permissible wiretaps under Florida’s wiretap
scheme, and thus should be suppressed; (8) that during
the wiretaps, law enforcement officials failed to minimize
the recordings of conversations not otherwise subject to
the interception authorization, as required by Florida
Statute § 934.09(5) (1997); and (9) that: the county detec-
tives had not met the elements of Florida Statute
§ 934.09(1)(c) (1997), requiring that they demonstrate that
they had tried other reasonable investigative procedures
before applying for electronic surveillance. Aisenberg, 247
F.Supp.2d at 1331-57.
After the magistrate judge’s report of February 14,
2001, the district court never ruled on the Aisenbergs’
motion to suppress because the United States Attorney’s
Office promptly moved for leave to dismiss the indictment
against the Aisenbergs. On February 22, 2001, the district
court dismissed the indictment.”
speakers’ voices from too great a distance, added to the unintelligibility.
The qualifications of the government’s expert, Anthony Pellicano,
starkly contrasted with Koenig’s. Pellicano received his high school
equivalency while serving in the military and never obtained advanced
schooling. Although Pellicano stated that he was able to hear the
Aisenbergs’ conversations set out in the county detectives’ applications,
Koenig, the district court, and the magistrate judge could not.
° In addition to filing a motion to suppress, the Aisenbergs also filed
a motion for an audibility hearing challenging the accuracy of the
transcripts of the tapes that the government sought to use at trial. On
April 17, 2000, the government requested a delay of the audibility
hearing until trial, or alternatively for each party to submit separately
prepared transcripts to the jury without any audibility hearing. The
government later obtained other delays of the audibility hearing before
the district court. Although the district court entered a November 9,
2000, order noting that the quality of the audio recordings was “generally
poor,” the actual audibility hearing before the district court never
(Continued on following page)
a Caaernatcd Syrah tel, ae ee
App. 9
D. Atsenbergs’ Application under Hyde Amendment
Qn March 26, 2001, the Aisenbergs moved for an
award under the Hyde Amendment, which provides that
the court may award attorney’s fees and other litigation
expenses if the “court finds that the position of the United
States was vexatious, frivolous, or in bad faith.” Pub. L.
No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted
in 18 U.S.C. § 3006A, historical and statutory notes). In
response, the government conceded that an award of fees
and litigation expenses was appropriate under the Hyde
Amendment, but disputed the amount of fees owed.
At the government’s request, the district court ordered
that the parties participate in mediation. The mediator
issued a June 13, 2002, report stating that “the parties
have reached an impasse.” The parties then presented
their Hyde Amendment arguments to the district court
over a four-day hearing during October 2002.
On January 31, 2003, the district court awarded the
Aisenbergs $2,680,602.22 in attorney’s tees and $195,670.32
in litigation expenses under the Hyde Amendment. Although
the government had conceded the applicability of the Hyde
Amendment, the district court’s order recounted at great
occurred because on February 14, 2001, the magistrate judge recom-
raended that the district court grant the Aisenbergs’ motion to suppress,
and the government then dismissed the indictment on February 22,
2001.
'° “The Hyde Amendment was enacted as part of P.L. 105-119, the
... Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act of 1998, and is found as a statutory note to 18
U.S.C. § 3006A.” United States v. Gilbert, 198 F.3d 1293, 1298 (11th
Cir.1999).
App. 10
length the events evincing the government’s bad faith
prosecution of the Aisenbergs. Aisenberg, 247 F.Supp.2d at
1275-87."
In the district court, the government emphasized that
the Hyde Amendment subjects awards to “the procedures
and limitations” provided for under 28 U.S.C. § 2412,
which, the government pointed out, includes a $125 hourly
limitation on attorney’s fees in § 2412(d)(2)(A)@i). Pub. L.
No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted
in 18 U.S.C. § 3006A, historical and statutory notes). The
district court, however, agreed with the Aisenbergs (1) that
they were not limited to this, $125 hourly limitation in
§ 2412(d)(2)(A)(ii), but rather could recover rates up to
$400 per hour as attorney’s fees under § 2412(b), and (2)
that even if § 2412(d)(2)(A)(ii) applied, special factors
justified a departure from the $125 hourly limitation. The
district court’s award also included a fifteen percent
multiplier of the attorney’s fees, or $349,643.77, to com-
pensate the Aisenbergs for “the delay in the receipt of
payment.”
The district court’s award was based on a total of
11,251.70 attorney hours by ten attorneys in the law firm
of Cohen, Jayson & Foster, P.A. in Tampa, Florida, and on
rates varying from $150 to $400 per attorney. On appeal,
the government does not contest the 11,251.70 hours
awarded or $195,670.32 in litigation expenses. Instead,
the government contends that the district court erred (1)
in not following the $125 hourly cap applicable under the
" As noted in footnote 5, supra, the district court also published
the magistrate judge’s earlier report, dated February 14, 2001, which
likewise made extensive findings about the county detectives’ miscon-
duct. Aisenberg, 247 F.Supp.2d at 1324-57.
SEA A Wie eeu dy wy
App. 11
Hyde Amendment, and (2) in awarding $349,643.77 as a
fifteen percent enhancement for delay in payment.
E. Grand Jury Transcripts
In the same January 31, 2003, order on attorney's
fees, the district court ordered that the government must
file and disclose all grand jury transcripts by February 10,
2003. The Aisenbergs initially requested the grand jury
transcripts in 2000, and requested them again in 2002 to
support their claim for attorney’s fees. After acknowledg-
ing that the government opposed this disclosure, the
district court explained that it had “deferred any ruling on
the motions [for the transcripts] because Hyde Amend-
ment liability was conceded by the United States,” and
thus discovery of the transcripts “appeared most likely
unnecessary.” Aisenberg, 247 F.Supp.2d at 1322. The
district court further noted that its award closes the
attorney’s fee issue. Id.
Nonetheless, the district court ordered wholesale
disclosure of all grand jury transcripts primarily because
the Aisenbergs persisted in their interest in them and the
public has a “strong interest” in inspecting troubled
prosecutions in Hyde Amendment cases. Id. at 1323-24.
Specifically, the district court reasoned that when a Hyde
Amendment award is made out of “public funds to reim-
burse defendants victimized by a ‘vexatious, frivolous, or
bad faith’ prosecution,” the public has “a strong interest”
in the events leading to that prosecution and “in inspect-
ing these troubled prosecutions to determine the source of
the United States’ misdirection.” Jd. at 1323.
The district court also concluded that non-disclosure
serves no remaining interest of the Aisenbergs because
App. 12
they already had been indicted, this fact was well known,
and the Aisenbergs consent to the release. Jd. As for the
government’s interest, the district court observed that the
grand jury deliberations were completed, that the criminal
investigation was at a standstill, and that this circum-
stance will persist indefinitely, creating what the court
termed “only the most minimal and inconsequential
countervailing considerations.” Id. The district court
determined that the Aisenbergs’ and the public’s interest
was in disclosure and that “the only contrary interest
remaining is that of the United States, which may want to
avoid a full airing of the episode.” Jd. at 1323-24.
F. Stay of Grand Jury Disclosure
After the district court ordered wholesale disclosure of
all grand jury transcripts by February 10, 2003, the
government filed a motion to stay the immediate public
disclosure pending appeal.” The government emphasized
that the Aisenbergs would not suffer injury from a stay
because they had obtained a dismissal of the indictment
2 In its stay motion, the government stressed that the Supreme
Court has instructed that parties seeking grand jury materials “must
show that the material they seek is needed to avoid a possible injustice
in another judicial proceeding, that the need for disclosure is greater
than the need for continued secrecy, and that their request is structured
to cover only material so needed. Such a showing must be made even
when the grand jury whose transcripts are sought has concluded its
operations. .. .” See Douglas Oil Co. of Cal. v. Petrol Stops Northwest,
441 US. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979); United
Kingdom v. United States, 238 F.3d 1312, 1320-21 (11th Cir.2001)
(adopting Douglas Oil standard). The government argued that the
Aisenbergs had not met these three requirements and that the district
court’s order was not based on an identified particularized need for the
transcripts, but rather on an alleged public interest in scrutinizing the
activities of a misdirected investigation.
LE
REGED ASW ot
App. 13
against them and an unprecedented amount of attorney's
fees under the Hyde Amendment without access to or any
need for the grand jury materials. The government also
stressed that this serious crime remained unsolved and
disclosure would interfere with its ongoing investigation.”
In reply, the Aisenbergs objected to any stay and
emphasized that they needed the grand jury material to
support their civil lawsuit “against the lawyers and law
enforcement personnel responsible for the bad faith,
vexatious and frivolous prosecution of the Aisenbergs.” See
Aisenberg v. Hillsborough County Sheriff’s Office, No.
'* In a January 4, 2002, hearing involving the intervenor media’s
request for the wiretap recordings and other records under seal, the
government offered to present information in camera to the district
court about its continuing investigation of Sabrina’s disappearance and
had witnesses available to do so, but the district court refused to hear
the proffer.
However, in the context of the government’s stay motion, the
district court did offer to receive evidence in camera from the govern-
ment about the viability of its ongoing investigation in order to evaluate
whether disclosure would cause irreparable harm. The government
submitted a May 1, 2003, affidavit of an Assistant United States
Attorney, assigned to the General Crimes Section of the Criminal
Division in the Middle District of Florida, stating that “[t]he investiga-
tion is currently active and ongoing, and is being conducted with state
and federal law enforcement officers,” and disclosure “would compro-
mise the ongoing investigation.” The government declined to present
witnesses or further information in camera at the stay hearing on May
2, 2003. The government asserted that a court evidentiary inquiry into
whether a government investigation is viable would constitute an
unwarranted judicial intrusion into prosecutorial functions delegated to
another branch of government. In this stay context, the government’s
position was that the record both in camera and in the public record
already established sufficiently that the crime remained unsolved and
that there was an ongoing criminal investigation.
App. 14
8:03-CV-2063-7-23EAJ (M.D.Fla.2003)." The Aisenbergs
cited Federal Rule of Criminal Procedure 6(e)(3)(C))(D,
which permits disclosure of grand jury material “when so
~ directed by a court preliminarily to or in connection with a
judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(C)(i(1) (2002).”
The Aisenbergs further challenged the viability of any
continuing criminal investigation” and asserted that much
of the information presented before the grand jury was
already public, leaving few, if any, justifications for non-
disclosure.
“ In their objection to the government’s request for a stay, counsel
for the Aisenbergs stated that they were “currently drafting a civil
complaint.” The Aisenbergs then filed their lawsuit in September 2003
in the state circuit court, before oral argument in this appeal. The
Aisenbergs’ civil lawsuit was subsequently removed to the United
States District Court for the Middle District of Florida. Although the
civil lawsuit was not filed at the time of the district court’s disclosure
order in January 2003, the Aisenbergs apparently all along wanted the
grand jury transcripts not only for their attorney’s fee claim in the
criminal case, but also to sue the government civilly. Because both
parties have briefed and argued whether the grand jury transcripts are
discoverable under Rule 6(e)(3)(C)(iI) to aid the Aisenbergs’ civil
lawsuit, we consider that issue as well in this appeal.
‘6 The Aisenbergs’ objection to the government’s stay motion also
argued that disclosure would help them during their appellate litiga-
tion regarding the attorney's fees award. The Aisenbergs asserted that
“(njo doubt, the government will argue in the appellate court ... that
the governmental conduct at issue did not justify the award of
fees....” The government, however, has not made this argument on
appeal, but rather has continued to concede that attorney’s fees are
owed under the Hyde Amendment. Thus, the Aisenbergs have not
shown that they need the grand jury transcripts as to any attorney's fee
issues under the Hyde Amendment. z
© At a February 5, 2003, hearing regarding the government's stay
motion, the Aisenbergs’ defense counsel questioned whether the
government’s investigation was sufficiently “active” because according
to a news report, it was staffed by a single investigator.
——
ADLER ta PART ety ea ile
cele iA WSL TNL WE.
App. 15
On May 5, 2003, the district court entered an order
rejecting the government’s request for a stay pending
appeal.” In that order, the court concluded, inter alia, that
the government’s “putative ‘investigation’ is entitled to no
weight in the decision regarding the stay,” and that “there
is apparently no meaningful investigation to endanger.”
The district court stated that the Aisenbergs were preju-
diced by the continued secrecy and that “their public
exoneration and the pursuit of rights they assert against
the United States are impaired by continuing non-
disclosure.”
The government then moved in this Court for a stay of
disclosure of the grand jury transcripts pending appeal,
which was granted on June 26, 2003.
II. STANDARD OF REVIEW
On appeal, the government contests only (1) the
amount of the attorney’s fees awarded and (2) the district
court’s disclosure of all grand jury transcripts.
This Court reviews a district court’s award or denial of
Hyde Amendment attorney’s fees and costs for abuse of
discretion. United States v. Adkinson, 247 F.3d 1289, 1290
(11th Cir.2001); United States v. Gilbert, 198 F.3d 1293,
1298 (11th Cir.1999). “An abuse of discretion occurs if the
judge fails to apply the proper legal standard or to follow
proper procedures in making the determination, or bases
an award [or a denial] upon findings of fact that are
’ While the parties briefed the stay issue, the district court did
enter a temporary stay, which was dissolved by the district court’s
May 5, 2003, order.
App. 16
clearly erroneous.” Id. (internal quotation marks and
citation omitted) (alteration in original).
This Court reviews a district court’s order granting
disclosure of grand jury transcripts for an abuse of discre-
tion. See United Kingdom v. United States, 238 F.3d 1312,
1319-21 (11th Cir.2001).
III. DISCUSSION
A. The Language of the Hyde Amendment
“We begin our construction of the Hyde Amendment
___ with the words of the statutory provision themselves.”
Gilbert, 198 F.3d at 1298. The Hyde Amendment provides
in pertinent part:
[T]he court, in any criminal case (other than a
case in which the defendant is represented by as-
signed counsel paid for by the public) ... may
award to a prevailing party, other than the
United States, a reasonable attorney's fee and
other litigation expenses, where the court finds
that the position of the United States was vexa-
tious, frivolous, or in bad faith, unless the court
finds that special circumstances make such an
award unjust. Such awards shall be granted pur-
suant to the procedures and limitations (but not
the burden of proof) provided for an award under
section 2412 of title 28, United States Code.
Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997)
(reprinted in 18 U.S.C. § 3006A, historical and statutory
notes) (emphasis added).
This circuit’s prior Hyde Amendment decisions have
dealt primarily with whether the prevailing federal crimi-
nal defendant carried his burden to show the required
App. 17
prerequisite to a fee award, to wit: that the United States’
position was “vexatious, frivolous, or in bad faith.” See
Adkinson, 247 F.3d at 1293; Gilbert, 198 F.3d at 1297. In
this case, however, the government conceded the applica-
bility of the Hyde Amendment in the district court and
that the Aisenbergs are entitled to recover their attorney's
fees and expenses. This appeal requires us to determine
only issues relating to the amount of the attorney's fees
owed. Those issues are:
(1) whether the Hyde Amendment incorporates
the procedures and limitations in § 2412(d), mak-
ing the $125 hourly limitation in § 2412(d)(2)(A)(i)
applicable to all Hyde Amendment claims, or
whether the Hyde Amendment also incorporates
the other avenues of relief contained in § 2412(b);
(2) whether special factors exist justifying a de-
parture from the $125 hourly limitation on at-
torney’s fees provided in § 2412(d)(2)(A)(ii); and
(3) whether a district court may increase a
Hyde Amendment award by a multiplier for a de-
lay in payment.
The parties acknowledge that the Hyde Amendment
provides that fee awards “shall be granted pursuant to the
procedures and limitations (but not the burden of proof)
provided for an award under section 2412” of the Equal
Access to Justice Act (““EAJA”). Pub. L. No. 105-119, § 617,
111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes). The parties’ dispute is over
how we should construe the Hyde Amendment’s language of
“procedures and limitations ... provided for an award
under § 2412.” Thus, at the outset we also must examine
what “procedures and limitations” are provided for an
award under § 2412.
App. 18
Section 2412 of the EAJA contains two separate
subsections relating to attorney’s fees: § 2412(b) and
§ 2412(d). Of these, only § 2412(d) contains any procedures
and limitations for an award of attorney’s fees under the
EAJA. Specifically, § 2412(d) states: (1) that a party must
file for an award of attorney’s fees within thirty days of
final judgment, § 2412(d)(1)(B); (2) that “attorney -fees
shall not be awarded in excess of $125 per hour unless the
court determines that ... a special factor, such as the
limited availability of qualified attorneys for the proceed-
ings involved, justifies a higher fee,” § 2412(d)(2)(A)(ii);
and (3) that an individual may not recover attorney’s fees if
his net worth exceeds $2,000,000 at the time the civil action
was filed, nor may the owner of a business whose net worth
exceeds $7,000,000 and had more than 500 employees at the
time the civil action was filed, § 2412(d)(2)(B).”*
To date, all circuits to consider this issue have con-
cluded that the procedures and limitations in § 2412
incorporated by the Hyde Amendment are the procedures
and limitations in § 2412(d). See United States v. Knott,
256 F3d 20, 26-27 (1st Cir.2001) (holding net worth
limitation of § 2412(d)(2)(B) applies to recovery under
Hyde Amendment, and § 2412(b) does not provide avenue
' Section 2412(d) also contains this burden of proof: the United
States must show that its position was “substantially justified or that
special circumstances make an award unjust,” when defending an
application for attorney’s fees. § 2412(d)(1)(A). However, this burden of
proof is specifically excepted from the Hyde Amendment, which limits
the recovery of attorney’s fees to the “procedures and limitations (but
not the burden of proof)” of § 2412. Pub.L. No. 105-119, § 617, 111 Stat.
2440, 2519 (1997) (reprinted in 18 U.S.C. §3006A, historical and
statutory notes). This reference to burden of proof is further evidence
that the language of the Hyde Amendment is directed at incorporating
the procedures and limitations of § 2412(d).
| SS
Cte abba att Hiei BR BASE ptr tbe AM a ce bon
App. 19
for recovery under Hyde Amendment); United States v.
Sherburne, 249 F.3d 1121, 1129 (9th Cir.2001) (holding cap
on aitorney’s fees provided in § 2412(d)(2)(A)(ii) applies to
recovery under Hyde Amendment); United States v.
Ranger Elec. Communications, Inc., 210 F.3d 627, 633 (6th
Cir.2000) (holding thirty-day limitation for filing award for
attorney's fees provided in § 2412(d)(1)(B) applies to Hyde
Amendment application). We now join those circuits.”
We recognize that the Aisenbergs contend that their fee
award under the Hyde Amendment is governed by § 2412(b),
not § 2412(d). We reject this argument for several reasons.
First, the plain language of the Hyde Amendment
limits awards to “the procedures and limitations (but not
the burden of proof) provided for an award under section
2412.” Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519
(1997) (reprinted in 18 U.S.C. § 3006A, historical and statu-
tory notes). Section 2412(d) provides procedures and limita-
tions to fee awards under the EAJA, but § 2412(b) provides
none. Ranger, 210 F.3d at 634 (noting that § 2412(b) “pro-
vides neither procedural guidance nor eligibility limita-
tions”) (Jones, J., concurring). Thus, “allowing defendants
to elect to proceed under § 2412(b) would effectively read
"© See also United States v. Truesdale, 211 F.3d 898, 907 (5th
Cir.2000) (noting that government’s reading of Hyde Amendment as
incorporating the procedures and limitations in § 2412(d) “seems
reasonable” but ultimately not deciding the issue). Although the Fourth
Circuit has not yet ruled on this issue, a district court in United States
v. Holland, 34 F.Supp.2d 346 (E.D.Va.1999), concluded that a prevailing
defendant may choose to recover an award of attorney’s fees under the
Hyde Amendment through either § 2412(b) or § 2412(d). Jd. at 359,
vacated in part on other grounds on reconsideration, 48 F.Supp.2d 571
(E.D.Va. May 18, 1999), aff'd on other grounds, 214 F.3d 523 (4th
Cir.2000).
App. 20
the clause ‘under the procedures and limitations of section
2412’ out of the Hyde Amendment.” Knott, 256 F.3d at 27.
As the First Circuit also aptly recognized in Knott,
any reading of the Hyde Amendment not incorporating the
procedures and limitations of § 2412(d):
undercuts the language of the provision and pol-
icy concerns underlying the incorporation of
these procedures and limitations. If defendants
could elect to proceed under § 2412(b), ... it is
not clear that the Hyde Amendment’s incorpora-
tion of “procedures and limitations” from the
EAJA would have any practical effect. In order to
give meaningful effect to the plain language of
the Hyde Amendment, then, the incorporation is
best read to refer to the limitations contained in
EAJA § 2412(d).
Id. at 27; see also Ranger, 210 F.3d at 633 (noting that
a construction of the Hyde Amendment that does not apply
§ 2412(d) “does not give effect to the plain meaning of the
Hyde Amendment nor the policy considerations behind
it”); Sherburne, 249 F.3d at 1129 (stating in relation to the
award of attorney’s fees under the Hyde Amendment that
“It]he statute is explicit — the limitations of the EAJA
apply. The EAJA caps attorney's fees at $125 per hour”).
Second, because § 2412(d) of the EAJA supplies an
independent, substantive ground upon which a civil
litigant may recover fees under the EAJA, its sole incorpo-
ration comports with the plain meaning of the Hyde
Amendment. The plain language of the Hyde Amendment
refers to “procedures and limitations ... provided for an
award under section 2412.” Pub. L. No. 105-119, § 617, 111
Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes) (emphasis added). This
ee
VD GR TPE ic Me:
App. 21
language supports the exclusive incorporation of § 2412(d)
because § 2412(d) alone provides a self-contained, substan-
tive means for recovering attorney’s fees. Specifically,
§ 2412(d) provides that “a court shall award to a prevailing
party ... fees and other expenses, ... unless the court
finds that the position of the United States was substan-
tially justified.” 28 U.S.C. § 2412(d)(1)(A).
In contrast to § 2412(d), § 2412(b) does not provide a
substantive or independent basis for an attorney’s fee
award under § 2412 but acts as only a waiver of sovereign
immunity when the common law or another statute
provides for an attorney’s fee award. Specifically, § 2412(b)
provides that “[t]he United States shall be liable for such
fees and expenses to the same extent that any other party
would be liable under the common law or under the terms
of any statute which specifically provides for such an
award.” 28 U.S.C. § 2412(b). Furthermore, as expressed by
the First Circuit in United States v. Knott, “it would create
a peculiar circularity to allow a defendant relying on the
Hyde Amendment as the substantive basis of a request for
attorneys’ fees to elect to proceed through EAJA § 2412(b)
in order to avoid the limitations imposed in EAJA
§ 2412(d), given that the Hyde Amendment itself incorpo-
rates the procedures and limitations of the EAJA.” 256
F.3d at 27; Ranger, 210 F.3d at 633 (stating that “it would
be circular to go back to the Hyde Amendment to treat it
as an independent statute giving the right to attorneys’
fees without the thirty-day limitation”).”
* This is the first time in which this Court directly has addressed
the question of whether a Hyde Amendment applicant can avoid
§ 2412(d) and proceed under § 2412(b). We note, however, that in
United States v. Adkinson, 247 F.3d 1289 (11th Cir.2001), this Court
(Continued on following page)
App. 22
Third, the established principle that waivers of
sovereign immunity are to be construed narrowly counsels
our construction of the Hyde Amendment. Lane v. Pena,
518 U.S. 187, 192, 116 S.Ct. 2092, 2096, 135 L.Ed.2d 486
(1996) (stating that a waiver of sovereign immunity “must
be unequivocally expressed in statutory text,” and “will be
strictly construed ... in favor of the sovereign”) (citations
| omitted); Maritime Mgmt., Inc. v. United States, 242 F.3d
1326, 1336 (11th Cir.2001) (noting that “the EAJA is a
waiver of sovereign immunity and as such must be strictly
construed”). This principle adds further support for the
incorporation of the procedures and limitations of
§ 2412(d) in awarding attorney’s fees under the Hyde
Amendment. Knott, 256 F.3d at 27; Ranger, 210 F.3d at
633.
indicated in footnote two that “[w]e recognize that recovery under the
Hyde Amendment is allowed under only limited circumstances, and is
subject to the restrictions and procedures articulated by the language of
the law and its legislative history.” Jd. at 1291 n. 2. As examples of
those limitations, the Adkinson Court then listed the requirement that
an individual’s “net worth was less than two million dollars,” citing
§ 2412(d). Id. Accordingly, Adkinson already reflects an understanding
that the “procedures and limitations” of § 2412 referenced in the Hyde
Amendment are those found in § 2412(d). However, the issue in
Adkinson was whether the factual circumstances in Adkinson demon-
strated bad faith, and the Adkinson court remanded the case to the
district court “for a determination of the amount of fees and expenses”
the defendants were entitled to under the Hyde Amendment. Jd. at
1293. On remand, the district court in Adkinson concluded, as we do
here, that § 2412(d)(2)(A)(ii)’s $125 hourly cap is incorporated by the
Hyde Amendment and applied the fee cap. United States v. Adkinson,
256 F.Supp.2d 1297, 1308-11 (N.D.Fla.2003). This order is now on
appeal with the Eleventh Circuit. Adkinson v. United States, No. 03-
11104, 2004 WL 292044, 360 F.3d 1257 (11th Cir. argued Jan. 15, 2004).
LS lll
PMA LA ey Tk Bit DWE 24 ERS ie de
App. 23
Fourth, although unnecessary to our review,” the
legislative history of the Hyde Amendment provides
support for our construction of the Hyde Amendment. In
United States v. Gilbert, this Court reviewed the legisla-
tive history of the Hyde Amendment. 198 F.3d at 1299-
1303. In its original form, the Hyde Amendment was
patterned after 28 U.S.C. § 2412(d)(1)(A).” Id. at 1300;
Ranger, 210 F.3d at 634 (Jones, J. concurring). After
forceful criticism from members of Congress and the
Executive Branch due in part to the relatively low stan-
dard permitting recovery, the Hyde Amendment’s lan-
guage was modified, narrowing the grounds for recovery.
Gilbert, 198 F.3d at 1300-03. The adopted version of the
Hyde Amendment disavowed the burden of proof on the
government contained in § 2412(d)(1)(A), required that the
prevailing criminal defendant carry the burden of proof,
and further narrowed the standard of recovery to those
cases in which “the position of the United States was
vexatious, frivolous, or in bad faith.” Jd. at 1302 (citing
Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997)
(reprinted in 18 U.S.C. § 3006A, historical and statutory
notes)).
* “Given the plain meaning of the statutory language, we could
bypass any consideration of legislative history.” Gilbert, 198 F.3d at
1299.
* Representative Hyde’s comments when initially offering the
Amendment also indicate that the Hyde Amendment was patterned
after § 2412(d). Representative Hyde stated, when describing recovery
under the Hyde Amendment, that, “if it was an abuse of process, if it
was frivolous, if it was malicious, then the victim, the defendant who
has prevailed, is entitled to attorney’s fees, very modest, $125 an hour.”
145 Cong. Rec. H7791 (daily ed. Sept. 24, 1997) (statement of Rep.
Hyde).
App. 24
Thus, as detailed in Gilbert, the Hyde Amendment
was initially patterned after § 2412(d), and the language
was modified only in an.effort to narrow the grounds of
recovery and not, as the Aisenbergs suggest, to broaden
the sections under § 2412 in which Hyde Amendment
applicants may recover. Thus, construing the Hyde
Amendment to provide a narrow ground of recovery by
incorporating the procedures and limitations of § 2412(d)
is consistent not only with the principle of narrowly
construing waivers of sovereign immunity, but also with
the legislative history of the Hyde Amendment.
For all of these reasons and consistent with all other
circuits that have addressed the issue, we hold that the
Hyde Amendment incorporates all of the procedures and
limitations in § 2412(d) and does not incorporate § 2412(b).
Thus, the district court erred in concluding that the
Aisenbergs could proceed under § 2412(b) and avoid the
$125 hourly limitation in § 2412(d)(2)(A)(ii).
B. Special Factors Removing $125 Fee Cap
The district court alternatively concluded that even if
§ 2412(d) applied, special factors existed justifying a
departure from the $125 hourly limitation in
§ 2412(d)(2)A)ii). Specifically, § 2412(d)(2)(A)(ii) provides
that “attorney fees shall not be awarded in excess of $125
per hour unless a court determines that an increase in the
cost of living or a special factor, such as the limited avail-
ability of qualified attorneys for the proceedings involved,
justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)Gi). The
district court relied on two special factors: (1) the govern-
ment’s concession that an attorney’s fees award was
appropriate under the Hyde Amendment; and (2) its
i
App. 25
finding that the government’s prosecution of the Aisen-
bergs was vexatious and in bad faith. In addition to those
two factors, the Aisenbergs rely on two more factors, which
are: (3) the delay caused by the government litigating
meritless positions; and (4) the limited availability of
qualified attorneys.”
Much of the EAJA case law defines “special factor” in
§ 2412(d)(2)(A)(ii) of the EAJA by what it is not. In Pierce
v. Underwood, 487 U.S. 552, 573, 108 S.Ct. 2541, 2554,
101 L.Ed.2d 490 (1988), the Supreme Court stated that
special factors in the context of § 2412(d)(2)(A)(ii) do not
include “[t]he novelty and difficulty of issues, the undesir-
ability of the case, the work and ability of counsel, and the
results obtained,” nor “factors applicable to a broad spec-
trum of litigation” including “the contingent nature of the
fee.” Id. (internal quotation marks omitted). Similarly, in
Pollgreen v. Morris, 911 F.2d 527, 537 (11th Cir.1990), this
Court noted that special factors in the context of
§ 2412(d)(2)(A)(ii) do not include “the motivations of the
attorneys in bringing the case, the pro bono nature of the
case, the fact that the litigation served to ‘vindicate public
rights, and the hardships experienced by counsel in
departing from the statutory hourly rate.” Jd. (citing Jean
v. Nelson, 863 F.2d 759, 775-76 (11th Cir.1988)).% This
* Both the district court and the government agree that the “cost
of living” exception in § 2412(d)(2)(A)ii) is not applicable here. In its
Janua.y 31, 2003, order, the district court stated that “[n]o marked
increase in the cost of living has occurred since 1998.” Aisenberg, 247
F.Supp.2d at 1304. The Aisenbergs do not assert on appeal that an
increase in the cost of living requires a departure from the $125 hourly
cap in § 2412(d)(2)(A)(ii), but rather contend that the above four special
4 factors justify exceeding the $125 hourly cap.
AS cal Sen Set Noa aia tat van Cob andor NAC OADAE Tn
“ We recognize that the Aisenbergs rely on Jean v. Nelson, 863
F.2d 759 (11th Cir.1988), where this Court stated in footnote thirteen
(Continued on following page)
BriSirs wea iki wa
App. 26
Court in Pollgreen further stated that “[a] delay that
occurred because the government litigated a position that
lacked substantial justification is not a permissible special
factor because any litigation eligible for EAJA fees, by
definition, involves the government’s pursuit of an unjusti-
fied position.” 911 F.2d at 538.
Turning to the special factors asserted by the Aisen-
bergs, we first conclude that the government's concession
that the Hyde Amendment applied does not supply a
special factor warranting a fee cap departure. Neither the
unprecedented nature of the concession, nor the magni-
tude of the underlying error that the concession impliedly
suggests, can be a special factor. As the government points
out, finding otherwise would create perverse incentives
that “an improper purpose can be a factor that is additional to a
‘frivolous’ position,” and further explained that “if the government in
this case advanced litigation for any improper purpose such as harass-
ment, unnecessary delay or increase in the plaintiffs’ expense, then
consistent with Pierce, its action warrants the imposition of a special
factor.” 863 F.2d at 776 n. 13; Pollgreen, 911 F.2d at 537-38 (stating that
“(t]he government’s delay in litigating a case is a permissible special
factor only when the motivation for the delay was improper or the
length of the delay itself was inappropriate. ... If the government’s
litigation delay was the result of bad faith or the length of the delay
was excessive, regardless of the merits of the position litigated, then
such a delay could constitute a special factor”).
The government correctly points out, however, that Jean v. Nelson
involved an application for attorney’s fees under the EAJA where fees
are awarded when the government’s position was not substantially
justified. 863 F.2d at 777 (citing 28 U.S.C. § 2412(d)(1)(A)). Under this
lower standard, a case involving a vexatious or bad faith prosecution is
an exception. The same cannot be said of an application under the Hyde
Amendment, which, by definition, must have involved vexatious or bad
faith litigation. Thus, we conclude that the rationale in footnote
thirteen of Jean does not apply in the Hyde Amendment context, and
we decline to extend Jean.
SAD EEDA ote RAIS NE Pe es ie 0S
SWAT MAE and Dae
App. 27
that discourage useful settlements and encourage pro-
tracted litigation. See Pierce, 487 U.S. at 568, 108 S.Ct. at
2552 (observing, in award of attorney’s fees under EAJA
§ 2412(d), that government’s willingness to settle as proof
that its position was not substantially justified “would not
only distort the truth but penalize and thereby discourage
useful settlements”); Hensley v. Eckerhart, 461 U.S. 424,
437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983) (stating
that “[a] request for attorney’s fees should not result in a
second major litigation”).
Similarly, the district court’s independent finding in
its attorney’s fees order that the government’s position was
vexatious, frivolous, or in bad faith, does not provide a
special factor. The Hyde Amendment requires that all
successful applicants show that the government’s position
was vexatious, frivolous, or in bad faith. As such, a district
court’s determination that the government’s prosecution
was vexatious, frivolous, or in bad faith does not justify a
fee cap departure because every successful application
under the Hyde Amendment would then be subject to a fee
cap departure.”
* See Pollgreen, 911 F.2d at 538 (noting in an EAJA case that “[a]
delay that occurred because the government litigated a position that
lacked substantial justification is not a permissible special factor
because any litigation eligible for EAJA fees, by definition, involves the
government’s pursuit of an unjustified position”); Jean, 863 F.2d at 782
(stating in an EAJA case that, “as a finding that the government’s
position had no ‘reasonable basis both in law and fact’ is a condition
precedent to every EAJA award, allowing a premium based on the
government’s ‘contentions and litigating postures’ will likely lead courts
to double-count the substantial-justification factor”) (Kravitch, J.,
concurring in part, dissenting in part).
App. 28
The Aisenbergs also emphasize the delay between the
Aisenbergs’ fee application in March 2001 and ultimate
recovery of fees in 2003. In Pollgreen, this Court held that
the “government’s delay in litigating a case is a permissi-
ble special factor only when the motivation for the delay
was improper or the length of the delay itself was inap-
propriate.” 911 F.2d at 537. The government’s litigation
over the amount of attorney’s fees due, after conceding
liability, does net constitute the special factor of improper
purpose. Specifically, the government's position that
§ 2412(d)(2)(A)(ii) limits attorney’s fees to $125 per hour
under the Hyde Amendment is supported by the statutory
language, as well as other circuits’ case law. As such, we
conclude that the government’s motivation for litigating
the amount of attorney’s fees was not the result of an
“improper purpose.”
Finally, the Aisenbergs argue on appeal that “the
limited availability of qualified attorneys for the proceed-
ings involved[] justifies a higher fee.” See 28 U.S.C.
§ 2412(d)(2)(A)(ii). The district court made no such finding,
and there is no evidence to support any such finding in
this record. To the contrary, the record shows ten lawyers
in Cohen, Jayson & Foster, P.A. in fact worked on this
criminal case.
The Aisenbergs also claim that their lawyers incurred
a substantial economic detriment in representing unpopu-
lar clients and in handling the complex legal, factual, and
professional obstacles in this case. Although this practice
is commendable, the Supreme Court and this Court already
® While the district court found that the government’s motivation
for the prosecution was improper, it did not find that there was any
improper intent in litigating the amount of attorney's fees.
App. 29
have addressed this issue under § 2412(d) and have held that
such hardship does not qualify as a special factor. See Pierce,
487 U.S. at 573, 108 S.Ct. at 2554 (stating that special
factors in the context of § 2412(d)(2)(A)(ii) do not include
“[t]he ‘novelty and difficulty of issues,’ ‘the undesirability of
the case,’ the ‘work and ability of counsel,’ and ‘the results
obtained’” nor “factors applicable to a broad spectrum of
litigation,” including “‘the contingent nature of the fee’”)
(internal citations omitted); Pollgreen, 911 F.2d at 537
(stating that special factors in the context of
§ 2412(d)(2)(A)(ii) do not include “the motivations of the
attorneys in bringing the case, the pro bono nature of the
case, the fact that the litigation served to ‘vindicate public
rights, and the hardships experienced by counsel in
departing from the statutory hourly rate”) (citation omit-
ted).
In sum, we conclude that no special factors exist in this
record to justify a departure from the $125 hourly limitation
provided in § 2412(d)(2)(A)(ii), as incorporated by the Hyde
Amendment. Thus, the district court abused its discretion in
departing above that $125 hourly limitation.
As discussed earlier, the government does not contest
on appeal the number of attorney hours or the litigation
expenses of $195,670.32. Thus, when the $125 fee is
applied to those 11,251.70 hours, the attorney’s fee due is
$1,298,980, plus litigation expenses of $195,670.32, for a
total of $1,494,650.32 due the Aisenbergs.
C. Enhancement for Delay in Payment
The district court also erred in applying a multiplier
of 1.15 to the attorney’s fees awarded based on the delay in
the Aisenbergs’ receiving reimbursement for their attorney’s
App. 30
fees. Specifically, the district court concluded that “(t]he
circumstances of the present action, which has persisted for
over five years, justify the application of a multiplier of 1.15
to the lodestar of $2,330,958.45 to compensate the Aisen-
bergs for the delay in reimbursement.” Aisenberg, 247
F.Supp.2d at 1321. This 1.15 multiplier added $349,643.77
to the fee award of $2,330,958.45, for a total of
$2 680,602.22 in attorney’s fees.
It is well established that “interest cannot be recov-
ered in a suit against the Government in the absence of an
express waiver of sovereign immunity from an award of
interest.” Library of Congress v. Shaw, 478 U.S. 310, 311,
106 S.Ct. 2957, 2960, 92 L.Ed.2d 250 (1986); Newton v.
Capital Assur. Co., 245 F.3d 1306, 1309 (11th Cir.2001)
(stating that “‘[i]n the absence of express congressional
consent to the award of interest separate from a general
waiver of immunity to suit, the United States is immune
from an interest award’”) (alteration in original) (quoting
Shaw, 478 U.S. at 314, 106 S.Ct. at 2961). Moreover, the
Supreme Court has admonished that compensation for
delay and interest “share an identical function,” that they
both “are designed to compensate for the belated receipt of
money,” and that “the no-interest rule cannot be aveided
simply by devising a new name for an old institution.” Shaw,
478 U.S. at 321-22, 106 S.Ct. at 2965. Thus, an award of
“compensation for delay” is equivalent to an award of
interest. Jd. at 321, 106 S.Ct. at 2965.” Accordingly, we
7 The district court relied on Missouri v. Jenkins, 491 U.S. 274,
282, 109 S.Ct. 2463, 2468, 105 L.Ed.2d 229 (1989), and Norman v
Housing Authority of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988),
but failed to observe that those two cases involved state defendants as
opposed to the United States. For example, in Jenkins, the defendant
was a state and the Supreme Court held that the Eleventh Amendment
(Continued on following page)
App. 31
must view the district court’s compensation for delay as
effectively an award of interest.
Further, the Supreme Court has declined to find “the
requisite waiver of immunity from interest in the statu-
tory requirement of awarding ‘reasonable’ attorney’s fees,”
and has “consistently ... refused to impute an intent to
waive immunity from interest into the ambiguous use of a
particular word or phrase in a statute.” Shaw, 478 U.S. at
320, 106 S.Ct. at 2964. The Supreme Court has instructed
that “[a] statute allowing costs, and within that category,
attorney’s fees, does not provide the clear affirmative
intent of Congress to waive the sovereign’s immunity” to
interest payments. Jd. at 321, 106 S.Ct. at 2965.
Nothing in the Hyde Amendment, nor the incorpo-
rated § 2412(d) of the EAJA, provides the required un-
equivocal waiver of immunity of the United States for the
payment of interest or compensation for delay.” Instead,
did not prohibit enhancement of an attorney’s fee award, ancillary to a
grant of prospective relief, for a delay in payment. 491 U.S. at 284, 109
S.Ct. at 2469. The Supreme Court in Jenkins, however, expressly
distinguished its holding in that case from the holding of Library of
Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986),
and stated that the “no-interest rule” applicable to the United States in
Shaw was not at issue in Jenkins, and further that the “no-interest
rule” provides an “ ‘added gloss of strictness,’ only where the United
States’ liability for interest is at issue.” Jenkins, 491 U.S. at 281 n. 3,
109 S.Ct. at 2468 n. 3. The Supreme Court also noted in Jenkins that
Shaw’s proscription of compensation for delay in payment does not
apply generally, but rather in the specific context where the United
States is liable and has not waived its sovereign immunity. /d.
* Section 2412(d)(2\A\ii) provides for an adjustment to the $125
hourly limitation based on “an increase in the cost of living.” 28 U.S.C.
§$ 2412(d 2x A\ii). In EAJA cases, circuit courts have concluded that
this provision does not waive the government's sovereign immunity
with respect to interest. See, e.g, Sorenson v. Mink, 239 F.3d 1140, 1148
Continued on following page)
App. 32
the Hyde Amendment provides for only “reasonable
attorney’s fee[s] and other litigation expenses.” Pub. L. No.
105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18
U.S.C. § 3006A, historical and statutory notes). Therefore,
we conclude that the district court also erred in enhancing
the attorney’s fee award by fifteen percent, or $349,643.77,
for the delay in payment of these fees.
D. General Grand Jury Principles
We now turn to the district court’s wholesale disclo-
sure of all grand jury transcripts. We first review the
general princimles governing the disclosure of secret grand
jury material and then apply them to this case.
“It has long been a policy of the law that grand jury
proceedings be kept secret... . The English rule of grand
jury secrecy has been incorporated into our federal com-
mon law and remains ‘an integral part of our criminal
justice system.’” Blalock v. United States, 844 F.2d 1546,
1555 (11th Cir.1988) (citing Douglas Oil Co. of Cal. v.
Petrol Stops Northwest, 441 U.S. 211, 218 n.9, 99 S.Ct.
1667, 1672 n. 9, 60 L.Ed.2d 156 (1979)); see also United
States v. Phillips, 843 F.2d 438, 441 (11th Cir.1988) (stat-
ing that “[t]he secrecy of the grand jury is sacrosanct”). In
Douglas Oil, the Supreme Court summarized the reasons
for, and interests served by, grand jury secrecy as follows: (1)
(9th Cir.2001); Masonry Masters, Inc. v. Nelson, 105 F.3d 708, 712
(D.C.Cir.1997); Marcus v. Shalala, 17 F.3d 1033, 1039 (7th Cir.1994),
Perales v. Casillas, 950 F.2d 1066, 1077 (5th Cir.1992); Chiu v. United States,
948 F.2d 711, 721 (Fed.Cir.1991). Because the Hyde Amendment incorporates
§ 2412(dX2XAXii), these circuit decisions involving § 2412(dX2XAXii) in the
EAJA context are persuasive. We can locate, however, no circuit decision
ruling on the interest issue under the Hyde Amendment.
App. 33
“if preindictment proceedings were made public, many pro-
spective witnesses would be hesitant to come forward volun-
tarily, knowing that those against whom they testify would be
aware of that testimony”; (2) “witnesses who appeared before
the grand jury would be less likely to testify fully and
frankly, as they would be open to retribution as well as to
inducements”; (3) “[t]here ... would be the risk that those
about to be indicted would flee”; (4) there would be the risk
that those about to be indicted “would try to influence
individual grand jurors to vote against indictment”; and
(5) “by preserving the secrecy of the proceedings, we
assure that persons who are accused but exonerated by
the grand jury will not be held up to public ridicule.” 441-
U.S. at 219, 99 S.Ct. at 1673.
Rule 6(e) of the Federal-Rules of Criminal Procedure
codifies this secrecy principle and prohibits the disclosure
of grand jury material except in the limited circumstances
provided for in Rule 6(e)(3). The only Rule 6(e)(3) excep-
tion at issue here is in Rule 6(e)(3)(C)(i)(I), which permits
disclosure of grand jury material “when so directed by a
court preliminarily to or in conjunction with a judicial
proceeding.” Fed.R.Civ.P. 6(e)(3)(C)(iXD.
Although Rule 6(e)(3) enumerates the exceptions to
the traditional rule of grand jury secrecy, the Supreme
Court and this Court have recognized that the district
courts have inherent power beyond the literal wording of
* In 2002, Rule 6 of the Federal Rules of Criminal Procedure was
amended as part of the general restyling of the Federal Rules of
Criminal Procedure. This exception to the secrecy of grand jury
materials is now in Rule 6(e)(3)(E)(i) (2003). Previously, this exception
was found in Rule 6(eX3\CXix1) (2002). We need not decide which version
applies because the language is essentially the same in either version.
App. 34
Rule 6(e)(3) to disclose grand jury material and that Rule
6(e)(3) is but declaratory of that authority. Pittsburgh
Plate Glass Co. v. United States, 360 U.S. 395, 398-99, 79
S.Ct. 1237, 1240-41, 3 L.Ed.2d 1323 (1959); Petition to
Inspect and Copy Grand Jury Materials, 735 F.2d 1261,
1268 (11th Cir.1984) (hereinafter “Appeal of Hastings”)."
Nonetheless, we also have indicated that courts “are not
empowered to act outside of Rule 6(e) in other than excep-
tional circumstances consonant with the rule’s policy and
spirit.” Appeal of Hastings, 735 F.2d at 1269; see id. at
1272.” Thus, while district courts have inherent authority
to act outside Rule 6(e)(3), any inherent disclosure author-
ity is exceedingly narrow and exists only in exceptional
circumstances. See id. at 1272 (concluding that “a petition
by a judicial investigating committee presents one of the
°° As we explained in Appeal of Hastings, “This is not to say the rule is
not normally controlling. It is. But ... the rule is not the true source of the
district court’s power with respect to grand jury records but rather is a
codification of standards pertaining to the scope of the power entrusted to
the discretion of the district court....” 735 F.2d at 1268. In Appeal of
Hastings, this Court also noted that “the history of Rule 6(e) indicate[s]
that the exceptions permitting disclosure were not intended to ossify the
law, but rather are subject to development by the courts in conformance
with the rule’s general rule of secrecy.” Jd. at 1269.
* In Appeal of Hastings, this Court amplified this principle as
follows:
[Clourts must adhere to Rule 6(e) in “garden variety” peti-
tions for grand jury disclosure. The rule was intended to
provide a reliable statement of the law in this area, and
would be rendered meaningless if departures were freely
sanctioned. We assume that courts are not empowered to act
outside Rule 6(e) in other than exceptional circumstances
consonant with the rule’s policy and spirit.
Id. at 1269.
<
He Sale te
App. 35
occasions when a district court may act outside the strict
boundaries of Rule 6(e)”).”
The Aisenbergs seek to uphold the grand jury disclo-
sure based both on the district court’s inherent authority
and on the exception in Rule 6(e)(3)(C)(i)(D. The guidelines
for determining when grand jury secrecy may be broken
are well settled and apply in both situations. Specifically,
parties seeking disclosure must show:
(1) “that the material they seek is needed to
avoid a possible injustice in another judicial pro-
ceeding”;
(2) “that the need for disclosure is greater than
the need for continued secrecy”; and
(3) “that their request is structured to cover
only material so needed.”
Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674; United
Kingdom v. United States, 238 F.3d 1312, 1320-21 (11th
Cir.2001); United States v. Burke, 856 F.2d 1492, 1495-96
(11th Cir.1988); United States v. Elliott, 849 F.2d 554, 557
(11th Cir.1988); Appeal of Hastings, 735 F.2d at 1273.
These same demanding standards apply even after the
grand jury has concluded its operations. Douglas Oil Co.,
441 U.S. at 222, 99 S.Ct. at 1674 (stating that “[s]uch a
* Since Appeal of Hastings was decided, the United States
Supreme Court in Carlisle v. United States, 517 U.S. 416, 116 S.Ct.
1460, 134 L.Ed.2Zd 613 (1996), stated that district courts lack “inherent
supervisory power” to develop rules that circumvent or conflict with the
Federal Rules of Crimina! Procedure. Jd. at 425-26, 116 S.Ct. at 1466.
The government contends that the district court’s disclosure decision
conflicts with Rule 6(e) and is per se beyond the court’s inherent
authority. We need not decide this issue because, as explained later, the
district court exceeds any inherent authority it has in any event.
App. 36
showing must be made even when the grand jury whose
transcripts are sought has concluded its operations, as it
had in Dennis [v. United States, 384 U.S. 855, 86 S.Ct.
1840, 16 L.Ed.2d 973 (1966)]”); Elliott, 849 F.2d at 557
(same); Burke, 856 F.2d at 1496 (same). “[I]n considering
the effects of disclosure on grand jury proceedings, the
courts must consider not only the immediate effects upon a
particular grand jury, but also the possible effect upon the
functioning of future grand juries.” Douglas Oil Co., 441
U.S. at 222, 99 S.Ct. at 1674.
Further, the burden of demonstrating that the need
for disclosure outweighs the need for, and public interest
in, secrecy rests upon the private party seeking disclosure.
Id. at 223, 99 S.Ct. at 1675; United States v. Liuzzo, 739
F.2d 541, 545 (11th Cir.1984). In order to carry this bur-
den, the party seeking disclosure of grand jury material
must show a compelling and particularized need for
disclosure. United States v. Procter & Gamble Co., 356
U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)
(stating that the “‘indispensable secrecy of grand jury
proceedings’ must not be broken except where there is a
compelling necessity,” and that instances where the need
outweighs the countervailing policy must “be shown with
particularity”) (internal citation omitted); United States v.
Sells Eng’g, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148,
77 L.Ed.2d 743 (1983) (stating that, “[w]e have consis-
tently construed [Rule 6(e)(3)(C)G)(D] ... to require a
strong showing of particularized need for grand jury
materials before any disclosure will be permitted”); United
Kingdom v. United States, 238 F.3d at 1320-21; Cox uv.
Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1421 (11th
Cir.1994); Burke, 856 F.2d at 1496; Elliott, 849 F.2d at 557;
United States v. Cole, 755 F.2d 748, 758-59 (11th Cir.1985),
App. 37
In re Grand Jury Proceedings, 613 F.2d 501, 506 (5th
Cir.1980); Allis-Chalmers Mfg. Co. v. City of Fort Pierce,
323 F.2d 233, 242 (5th Cir.1963).”
To show a compelling and particularized need, the
private party must show “‘circumstances had created
certain difficulties peculiar to this case, which could be
alleviated by access to specific grand jury materials,
without doing disproportionate harm to the salutary
purpose of secrecy embodied in the grand jury process.’”
Elliott, 849 F.2d at 558 (quoting Liuzzo, 739 F.2d at 545).
As we stated in Cox, “‘disclosure of grand jury testimony is
properly granted where there is a compelling need for such
disclosure and such disclosure is required by the ends of
justice.’” Cox, 17 F.3d at 1421 (quoting Allis-Chalmers,
323 F.2d at 242).
Even when persons requesting disclosure have carried
the burden of showing that they have a compelling and
particular need for the grand jury material in order to
avoid an injustice and that their need for disclosure
outweighs the secrecy need, access is limited and covers
only those materials actually needed. Cox, 17 F.3d at 1421
(““Disclosure even in these circumstances must be closely
* Our precedent in this area stems in part from Allis-Chalmers,
where the Fifth Circuit held:
that disclosure of grand jury testimony is properly granted
where there is a compelling need for such disclosure and
such disclosure is required by the ends of justice. Disclosure
even in these circumstances must be closely confined to the
limited portions of the testimony for which there is found to
be a particularized need.
323 F.2d at 242. This Court adopted as binding precedent all Fifth
Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
App. 38
confined to the limited portions of the testimony for which
there is found to be a particularized need.’”) (emphasis in
original) (quoting Allis-Chalmers, 323 F.2d at 242); In re
Subpoena to Testify Directed to Custodian of Records, 864
F.2d 1559, 1562 (11th Cir.1989) (stating that “le]lven when
the person requesting such disclosure has shown a par-
ticularized need for the materials, access is limited and
covers only those materials actually needed”); Liuzzo, 739
F2d at 545 (noting that when particularized need is
shown, “access to grand jury materials must still be
‘discrete[] and limited[],’ and must be ‘structured to cover
only the material needed’”) (alterations in original) (quot-
ing Procter & Gamble, 356 U.S. at 683, 78 S.Ct. at 987,
and Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674).
Accordingly, a “blanket request for all ... grand jury
materials ... cannot be described as the kind of particu-
larized request required for the production of otherwise
secret information.” United Kingdom v. United States, 238
F.3d at 1321.
Finally, the district court has “substantial discretion”
in determining whether grand jury materials should be
released. Douglas Oil Co., 441 U.S. at 223, 99 S.Ct. at
1675; see also Pittsburgh Plate Glass Co., 360 U.S. at 399,
79 S.Ct. at 1240 (1959); United Kingdom v. United States,
238 F.3d at 1320; Coronado v. BankAtlantic Bancorp, Inc.,
992 F3d 1315, 1322 (11th Cir.2000). We now apply these
principles to this case.
E. Grand Jury Transcripts in Aisenbergs’ Case
At the outset, we note that the district court did not
rule on the Aisenbergs’ requests for grand jury transcripts
until its attorney’s fees order of January 31,2003. By this
PAILS TOLLE PAE DESAI IO ISO SG cathe eb Peet AP ei €
RAO d bp AAI ee Nel 0 ise | ad loa iE Se Neon pS PO
App. 39
time, the indictment had been dismissed, the government
had conceded that attorney’s fees were due under the
Hyde Amendment, and the district court had determined
the amount of those fees. The district court even acknowl-
edged that it had deferred ruling on the Aisenbergs’ grand
jury request until after the fee award was made because
liability_was conceded and the grand jury discovery was
most likely unnecessary. Aisenberg, 247 F.Supp.2d at 1322.
Nonetheless, the district court ordered disclosure. We
conclude that the district court erred in ordering disclo-
sure of all grand jury transcripts for several reasons.”
First, the district court’s order relies heavily on the
fact that Hyde Amendment attorney’s fees have been
awarded in this case and that public taxpayers must pay
them. Based on these facts, the district court concluded
that the public has a “strong interest” in inspecting this
troubled prosecution through the Aisenbergs gaining
access to the grand jury materials. Aisenberg, 247
F.Supp.2d at 1323-24. Although acknowledging the Aisen-
bergs’ burden to show entitlement to grand jury materials,
the district court in effect used its Hyde Amendment
award as the principal means to justify grand jury disclo-
sure. The district court suggested in a footnote that
“[plerhaps an award under the Hyde Amendment ought to
“ The district court’s attorney’s fees order barely referred to Rule
6(e) and did not mention Rule 6(e)(3)(C)(i)(I) at all. Instead, the district
court originally appeared to act under its inherent supervisory acuthor-
ity. In its subsequent stay order, however, the district court did mention
Rule 6(e) and that the Aisenbergs’ “pursuit of rights they assert against
the United States are impaired by continuing non-disclosure.” This
appears to reference the Aisenbergs’ civil lawsuit against the govern-
ment. The Aisenbergs seek to uphold the disclosure under both Rule
6(e)(3)(C)iXD) and the district court’s inherent authority. Thus, we have
considered both grounds in reaching our conclusion in this case.
App. 40
tilt decisively the balance of considerations under Rule
6(e) ... to the extent that public disclosure of grand jury
proceedings is the presumptive consequence absent some
persuasive reason for non-disclosure of all or part of the
grand jury transcript.” Aisenberg, 247 FSupp.2d at 1324
n. 34. In essence, this shifts the burden to the government
in Hyde Amendment cases to show a compelling and
particularized need for non-disclosure of grand jury
transcripts, as opposed to the Aisenbergs having the
burden to show such a need for disclosure.
We decline to carve out new rules for Hyde Amend-
ment cases. Nothing in the Hyde Amendment itself modi-
fies the above well-established legal standards for
discovery of sealed grand jury materials. See Gilbert, 198
F.3d at 1304-05 (addressing failure to introduce exculpa-
tory evidence before the grand jury and stating that
“(njothing in the text or legislative history of the Hyde
Amendment indicates that Congress intended to modify
the law relating to discovery in criminal cases, to expand
the Brady doctrine, or to categorize as prosecutorial
misconduct actions which clearly were not misconduct
under existing law”). If anything, the Hyde Amendment
furthers the protection of grand jury secrecy. Specifically,
the Hyde Amendment allows the government to defend itself
against Hyde Amendment motions and protect confidential
information by submitting certain evidence ex parte, in
camera, and under seal, such as the names of confidential
informants and evidence of matters occurring before the
grand jury. Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519
(1997) (reprinted in 18 U.S.C. § 3006A, historical and
statutory notes); see United States v. Truesdale, 211 F.3d
898, 907 (5th Cir.2000) (stating that “the provision [in the
Hyde Amendment] for in camera review of evidence was
App. 41
included to enable the government to defend itself against
Hyde Amendment motions and at the same time protect
confidential information”).
Second, to the extent that the district court properly
left the burden on the Aisenbergs, the district court abused
its discretion by failing to follow the well-established and
demanding legal standards regarding what the Aisenbergs
must show to be entitled to secret grand jury material. As
outlined above, whether relying on the court’s inherent
authority or Rule 6(e)(3)(C)(G)(1), the Aisenbergs have the
burden to show: (1) “that the material they seek is needed
to avoid a possible injustice in another proceeding”; (2)
“that the need for disclosure is greater than the need for
continued secrecy”; and (3) “that [the Aisenbergs’] request
is structured to cover only material so needed.” Douglas
Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674. The Aisenbergs
aid not satisfy any of these three prongs, and the district
court erred in not requiring them to do so.
For example, the Aisenbergs have not shown a com-
pelling and particularized need for any portions of the
grand jury transcripts for their civil lawsuit. Instead, the
Aisenbergs already have a wealth of evidence about the
government’s conduct.” Indeed, the overwhelming nature
** Due to the government’s voluntary disclosure, the magistrate
judge’s discovery orders, or their own investigation, the Aisenbergs
already have the following evidence: (1) the wiretap application and
extension requests; (2) the wiretap tapes; (3) the handwritten
transcripts of those tapes upon which the county detectives relied; (4)
the government’s transcripts of those tapes, including the FBI’s work
notes; (5) all written and recorded statements of the Aisenbergs,
including excerpts of investigative reports containing the substance of
their statements, their polygraph exams, and their grand jury
testimony; (6) testimony of forty witnesses during the Franks hearing;
(7) voluminous exhibits from the Franks hearing, including videotapes
(Continued on following page)
App. 42
of this evidence apparently led even the government to
move to dismiss the indictment and to concede that attor-
ney’s fees were owed under the Hyde Amendment.”
Third, the district court also erred in concluding that
the government’s interest in grand jury secrecy was
“minimal” (in its attorney’s fees order) and constituted “no
interest” (in its stay order), and that the government’s only
interest was “to avoid a full airing of the episode.” Aisen-
berg, 247 F.Supp.2d at 1324. Although the prior grand
jury’s deliberations are concluded, this case involves an
unsolved, serious crime — the mysterious disappearance of
and photographs of Sabrina at the November 23, 1997, birthday party,
summaries of the county detectives’ interviews, and a doctor’s report
relied on by county detectives; (8) statements given to law enforcement
by family, friends, and neighbors; (9) the state special prosecutor’s
report outlining “substantial errors” by county law enforcement and his
investigative file, including approximately 3,000 documents from the
state attorney’s office and the United States Attorney’s office; (10)
affidavits by attendees of the November 23, 1997, birthday party
indicating that Sabrina was content and did not have bruises nor
missing hair; (11) sworn statements of the Aisenbergs’ babysitter and
friends indicating that Sabrina was in good condition without missing
hair or bruises days before the missing child report; (12) police inter-
views and sworn statements by a hair stylist shop’s employees indicat-
ing Sabrina’s condition and, in some instances, noting misstatements in
the police reports; (13) a forensic audio specialict’s affidavit opining that
the wiretap tapes did not contain the word “cocaine” nor the phrase “I
wish I hadn’t harmed her”; (14) a doctor’s affidavit stating that the
photographs of Sabrina at the November 23, 1997, birthday party do
not indicate inflicted injuries; and (15) a witness’ affidavit describing
questions asked of her before the grand jury.
*% In its January 31, 2003, order, the district court stated: “For
reasons conspicuous in the record of this extraordinary case, the United
States of America concedes liability - apparently the only such conces-
sion 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.” Aisenberg,
247 F.Supp.2d at 1275.
App. 43
a five-month old child from a private home with no forced
entry. Even if the government’s investigation is, as the
district court aptly said, “essentially at a standstill,” id.,
the government still has a substantial interest in keeping
the grand jury material secret until this serious crime is
solved and while its investigation continues. Release of
grand jury transcripts will tell the perpetrator precisely
what the government has and what it lacks. Even if, as
the Aisenbergs argue, much of this information is already
public through other means, release of the sealed grand
jury materials will give the perpetrator a virtual roadmap
to evade detection and capture.
In addition, future prospective witnesses would be
hes:tant to come forward and would be less likely to testify
fully and frankly, knowing that the prior grand jury
testimony about this same missing child has been made
public. Those witnesses would anticipate that those
against whom they testify may similarly later be made
aware of their testimony. As the Supreme Court has
explained, “in considering the effects of disclosure on
grand jury proceedings, the courts must consider not only
the immediate effects upon a particular grand jury, but
also the possible effect upon the functioning of future
grand juries.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at
167‘ The Supreme Court further instructed that
“[plersons called upon to testify will consider the likelihood
that their testimony may one day be disclosed to outside
parties,” and because “[flear of future retribution or social
stigma may act as powerful deterrents to those who would
come forward and aid the grand jury in the performance of
its duties,” “the interests in grand jury secrecy, although
reduced, are not eliminated merely because the grand jury
App. 44
has ended its activities.” Id. The government, as well as
the public and the Aisenbergs, have a strong interest 1n
solving this serious, missing child crime, in future wit-
nesses not being reluctant to testify about this crime
before the grand jury, and thus in the secrecy of the grand
jury not being broken. The unique circumstances of this
case strongly counsel in favor of grand jury secrecy in the
interest of solving this serious crime.
Fourth, and most importantly, we agree with the
district court that the public and the Aisenbergs have a
strong interest in any bad faith prosecution being fully
exposed. We also agree that the insulation of such prosecu-
tions forms no part of the justification for grand jury
secrecy. However, the conduct in this prosecution already
has been publicly aired at great length not only in exten-
sive hearings before the magistrate judge and district
court, but also by the comprehensive orders and reports
entered by the magistrate judge, the district court, and the
state special prosecutor. Those orders and reports exhaus-
tively examine the evidence of the government's conduct
and elucidate in great detail the troublesome events in
this case. Further, as recounted above, the Aisenbergs
already have a wealth of evidence exposing the govern-
ment’s conduct in this case. Given that the government's
conduct already has been revealed and publicly aired, the
district court erred in concluding that the grand jury
transcripts must be disclosed so that the public can know
about this misdirected prosecution. The public already
knows.
For all these reasons, the district court erred in
ordering disclosure of the grand jury transcripts.
App. 45
IV. CONCLUSION
We reverse and vacate the district court’s January 31,
2003, order to the extent it granted the Aisenbergs’
$2,680,602.22 in attorney’s fees. On remand, the district
court shall enter judgment in favor of the Aisenbergs for
$1,298,980.00 in attorney’s fees, plus litigation expenses of
$195,670.32, for a total of $1,494,650.32. We also reverse
and vacate the district court’s January 31, 2003, order to
the extent it granted the Aisenbergs’ motion for release of
the grand jury transcripts in issue and order that these
grand jury transcripts shall remain sealed.
REVERSED and VACATED IN PART; REMANDED.
App. 46
247 FSupp.2d 1272
United States District Court,
M.D. Florida,
Tampa Division.
UNITED STATES of America
v.
Steven B. AISENBERG and Marlene J. Aisenberg
No. 8:99-CR-324-T23MAP.
Jan. 31, 2003.
Stephen Kunz, Rachelle DesVaux-Bedke, Ernest F.
Peluso, John Moran, Terry Zitek, U.S. Attorney’s Office,
Tampa, FL, for U.S.
Barry A. Cohen, Todd Foster, Michael A. Gold,
Stephen L. Romine, Harry M. Cohen, Kevin J. Darken,
Cohen, Jayson & Foster, Tampa, FL, for defendants
Steven and Marlene Aisenberg.
ORDER
MERRYDAY, District Judge.
Steven and Marlene Aisenberg (the Aisenbergs) seek
recovery of “a reasonable attorney’s fee and other litigation
expenses” pursuant to Section 617 of Public Law Number
105-119, 111 Stat. 2440, 2519 (1997) (the Hyde Amend-
ment).! For reasons conspicuous in the record of this
' The Hyde Amendment, which is widely published as a “legisiative
note” attached to 18 U.S.C. § 3006A (popularly entitled “The Criminal
Justice Act”), states:
During fiscal year 1998 and in any fiscal year thereafter, the
court, in any criminal case (other than a case in which the
(Continued on following page)
App. 47
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” with:n the meaning of the Hyde
Amendment. The United States’ unprecedented concession
leaves for determination only the correct statutory meas-
ure of the “reasonable attorney’s fee and other litigation
expenses” available under the Hyde Amendment.”
defendant is represented by assigned counsel paid for by the
public) pending on or after the date of the enactment of this
Act [Nov. 26, 1997], may award to a prevailing party, other
than the United States, a reasonable attorney’s fee and
other litigation expenses, where the court finds that the po-
sition of the United States was vexatious, frivolous, or in
bad faith, unless the court finds that special circumstances
make such an award unjust. Such awards 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. To determine whether or not to
award fees and costs under this section, the court, for good
cause shown, may receive evidence ex parte and in camera
(which shall include the submission of classified evidence or
evidence that reveals or might reveal the identity of an in-
formant or undercover agent or matters occurring before a
grand jury) and evidence or testimony so received shall be
kept under seal. Fees and other expenses awarded under
this provision to a party shall be paid by the agency over
which the party prevails from any funds made availabie to
the agency by appropriation. No new appropriations shall be
made as a result of this provision.
* The United States conceded the application of the Hyde Amend-
ment to the Aisenberg prosecution in the initial response (Doc. 378) to
the Aisenbergs’ application. (Doc. 367) The United States’ concession
states:
While rejecting the general tenor and specific characteri-
zations of Defendants’ application, the Government has
(Continued on following page)
-
App. 48
THE AISENBERG PROSECUTION
By a telephone call to the “911” emergency service,
Marlene Aisenberg reported the disappearance of her
daughter Sabrina in the early morning on November 24,
1997. Law enforcement responded promptly and in the
next days an intense and thorough “manhunt” occurred
but failed to recover Sabrina. (The Aisenbergs insist with
distinctive force that this search was mainly a search for
Sabrina’s dead body, rather than a search for a living
child. The United States contests this interpretation. In
concluded, after thorough review and consultation within
the United States Attorney’s Office for the Middle District of
Florida, and the Department of Justice, Washington, D.C.,
that the best interests of justice are served by not contesting
the application of the Hyde Amendment in this case.
On February 14, 2001, the Magistrate judge issued a comprehen-
sive, meticulous, and thoroughly researched Report and Recommenda-
tion to the Court in which he determined that important affidavits of
Hillsborough County Sheriff’s Office detectives were, among other
things, the product of reckless disregard for the accuracy of critical
information. He thereafter recommended that this Court suppress
evidence which was critical to the successful prosecution of the indict-
ment handed up against the Defendants. The Government closely
reviewed and carefully considered the Magistrate Judge’s Report and
Recommendation. While not fully agreeing with the Magistrate Judge,
the Government concluded that objections to the Report and Recom-
mendation would be unsuccessful. Accordingly, the Government
requested leave of the District Court to file a dismissal of the indict-
ment against Defendants. That request was granted on February 22,
2001. ;
Therefore, based upon the specific findings in the Magistrate
Judge’s Report and Recommendation, and for the purpose and in the
context of this case only, the Government does not contest the applica-
tion of the Hyde Amendment for a determination of Defendants’
reimbursable attorneys’ fees and costs.
App. 49
either event, an enormous effort occurred.) Sabrina re-
mains missing.
On December 12, 1997, eighteen days after Sabrina’s
disappearance and after developing suspicions directed at
the Aisenbergs, the Hillsborough County Sheriff’s Office
applied successfully to the circuit court in Hillsborough
County, Florida, for authorization to intercept oral com-
munication, including telephonic communication, in the
Aisenbergs’ home. Authorities furtively placed electronic
interception devices throughout the Aisenbergs’ home the
next day, December 13, 1997. Owing to extensions of the
interception authority, for which law enforcement applied
on January 9 and again on February 6, 1998, the surveil-
lance remained active until March 2, 1998, yielding
seventy-nine days of surveillance, including approximately
2,600 conversations recorded on fifty-five audio recordings
(the interception protocol included minimization at two
minutes and cessation of the bedroom interception be-
tween midnight and 7:00 a.m.).
On September 9, 1999, about twenty-one months after
Sabrina’s disappearance and about eighteen months after
discontinuation of the state-authorized interception in the
Aisenbergs’ home, a federal grand jury returned a twenty-
seven page, six-count indictment alleging (1) that both in
the Aisenbergs’ initial report and during the consequent
investigation the Aisenbergs violated 18 U.S.C. §§ 1001
and 1002 by, among other things, uttering “false, fictitious,
or fraudulent statements” to law enforcement respecting
Sabrina’s disappearance and (2) that the Aisenbergs
App. 50
conspired to effect the deceptions that violated Sections
1001 and 1002.°
> Between Sabrina’s disappearance and the indictment, the United
States issued subpoenas requiring Steven and Marlene Aisenberg to
appear before the grand jury. The United States effcted service of the
subpoenas on the Aisenbergs in a provocative manner (i.e., personal
service at the Aisenbergs’ home rather than service through the.
Aisenbergs’ attorney) and at an unusual time (i2., Friday evening,
January 30, 1998, just four days before February 4,1998, return date).
Both in correspondence and in a hearing before Urited States District
Judge Henry Adams, the Aisenbergs communicated to the United
States an unequivucal intent to invoke the Fifth {mendment in any
appearance before the grand jury. Although the Aisenbergs obtained a
brief postponement of their grand jury appearance, the United States
persisted. Accordingly, the Aisenbergs appeared before the grand jury
(at a time inexplicably known by all members of tie interested press)
and, as promised, refused to testify. Ir other words, the United States
insisted upon placing before the grand jury witnesses (characterized
dubiously by the United States as mere “subjects” of the grand jury
investigation) whom the United States knew would not testify after
asserting their Fifth Amendment rights. See Unitec States Department
of Justice, United States Attorneys’ Manual § 911.154 (Aug.2002),
available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usany/;
1 Sara Sun Beale et al., Grand Jury Law and Practice §§ 6:10, 6:23 (2d
ed.2002). A review of the transcript of the Aisenbergs’ appearance before
the grand jury reveals that they were asked approx mately one hundred
futile but undoubtedly embarrassing questions (each of which the
Aisenbergs lawfully declined to answer). The transcript provides a
graphic and disquieting example of the sort of mischief by the United
States that commends the arguments against pernitting a grand jury
summons under circumstances similar to those nvolving the Aisen-
bergs (i.e., after a forma! notice by counsel for grand jury “targets” of an
assertion of the right against self-incrimination). The grand jury is a
forum for the pursuit of solemn investigation and not a theater for the
presentation of a spectacle. See United States Attorneys’ Manual § 9-
11.010. (“In dealing with the grand jury, the prosecutor must always
conduct himself or herself as an officer of the cour: whose function is to
ensure that justice is done and that guilt shall notescape nor innocence
suffer... . In discharging these responsibilities, the prosecutor must be
(Continued on following page
tat ral al RRL AMET
App. 51
The indictment begins in part A, paragraphs one
through eight, by alleging some unusual details, including
the Aisenbergs’ exact street address, the name of the
Aisenbergs’ pet dog (“Brownie”), the number of bedrooms
and bathrooms in the house, the existence of certain
physical features at and near the Aisenbergs’ home (a cut-
de-sac [sic], a wooden fence, a concrete wall, a nearby road,
street lights), and the presence of both the Aisenbergs’
alarm system and an accompanying exterior sign, which
warns prospective intruders and other passersby about the
alarm system. In paragraph two the indictment refers for
the first time to Sabrina Aisenberg, and the indictment’s
author elects to designate Sabrina as “Baby Sabrina”
(presumably to capture whatever sensational and evoca-
tive value attaches to an alleged crime against an innocent
infant). Paragraph nine of the indictment alleges that:
In November 1997, Baby Sabrina suffered from
ear infections and perforated ear drums, requir-
ing medical treatment. STEVEN B. AISENBERG
and MARLENE J. AISENBERG missed two fol-
low-up medical appointments for Baby Sabrina
on November 10, 1997 and November 17, 1997.
(The obvious thrust of paragraph nine, which eventu-
ally proves wholly unjustified and misleading because
Sabrina saw the pediatrician during her siblings’ ap-
pointments and the Aisenbergs canceled Sabrina’s sepa-
rate appointments, is to project to the reader an image of
parental disregard and disinterest in Sabrina’s medical
welfare, presumably only days before her disappearance.)
scrupulously fair to all witnesses and must do nothing to inflame or
otherwise improperly influence the grand jurors.”)
App. 52
In part B the indictment succinctly charges a conspir-
acy between the Aisenbergs to violate Section 1001 and
continues into part C, which alleges in twelve paragraphs
the “manner and means” by which the Aisenbergs imple-
mented the alleged conspiracy, including falsely reporting
both the kidnapping and the “circumstances of the disap-
pearance,” failing to comply with law enforcement’s
requests for certain cooperation, providing false and
misleading information to law. enforcement, agreeing
between themselves not to “tell anyone the truth concern-
ing the disappearance of Baby Sabrina,” and diverting
toward their “personal expenses” the money received from
others to assist in the search for Sabrina. (This latter
accusation presumably evidences the Aisenbergs’ supposed
moral laxity rather than an identified federal crime.)
In part D the indictment specifies fifty-nine “overt
acts” (counting one per paragraph) allegedly undertaken
by the Aisenbergs in furtherance of their conspiracy to
deceive law enforcement. The “overt acts” begin with an
allegedly false report to police about the time of Sabrina’s
disappearance and with the allegedly conflicting reports
concerning the details. The “overt acts” section of the
indictment contains much that has caused controversy and
rancor throughout this case. Some of the allegations seem
trivial; for example, Brownie’s alleged and suspicious
failure to bark on the night of Sabrina’s disappearance.”
‘ Presumably the reader of the indictment is invited to recall (with
dark suspicion) the exploits of Sherlock Holmes. As they searched for
the cherished racehorse “Silver Blaze,” Holmes and Dr. Watson
encountered one Colonel Ross, with whom they conversed concerning
the horse’s unaccountable disappearance: “Is there any point to which
you [, Mr. Holmes,] would wish to draw my attention?” [, Ross asked.]
(Continued on following page)
App. 53
Some of the allegations seem almost gratuitous; for exam-
ple, the repeated (and undoubtedly embarrassing) refer-
ence to Marlene Aisenberg’s involuntary urination when
she found Sabrina missing. Some of the allegations seem
redundant or, at least, unnecessarily elongated; for exam-
ple, the detailed account of the Aisenbergs’ alleged leth-
argy and disinterest in law enforcement’s investigation. In
sum, the indictment of the Aisenbergs is unaccountably
lengthy and replete with matters that are (at best) mere
surplusage and unnecessary to the essential purpose of an
indictment, which is to provide a “plain, concise, and
definite written statement of the essential facts constitut-
ing the offense charged,” as prescribed by Rule 7(c)(1),
Federal Rules of Criminal Procedure. This purpose is
properly accomplished by an orderly and businesslike
account of “only those facts and elements of the alleged
offense necessary to sufficiently inform the accused of the
“To the curious incident of the dog in the night-time.”
“The dog aid [sic] nothing in the night-time.”
“That was the curious incident,” remarked Sherlock Holmes.
Of course, Holmes later explains himself to Dr. Watson:
“... IT had grasped the significance of the silence of the dog,
for one true inference invariably suggests others. The Simp-
son incident had shown me that a dog was kept in the sta-
bles, and yet, though someone had been in and had fetched
out a horse, he had not barked enough to arouse the two
lads in the loft. Obviously the midnight visitor was someone
whom the dog knew well.”
2 Sir Arthur Conan Doyle, THE ANNOTATED SHERLOCK HOLMES,
“Silver Blaze” (William S. Baring-Gould ed., Clarkson N. Potter, Inc., 2d
ed.1977) (1892).
The infallibility of Sherlock Holmes’ miraculous powers of observa-
tion and deduction is, it is well to remember, merely delicious fiction.
App. 54
charge and to safeguard the accused from double jeop-
ardy.” United States v. Gold, 743 F.2d 800, 812 (11th
Cir.1984). An indictment is an instrument designed to
fairly notify a defendant of the essential facts comprising
an offense against a specified law. An indictment is not an
opportunity for the United States to marshal all available
details of the inculpatory evidence, to advance arguments
(especially tendentious or highly provocative arguments)
and promote inferences in support of conviction, or to
unnecessarily defame, embarrass, or — more to the particu-
lar point of the Hyde Amendment —- gratuitously vex the
defendant.
Admittedly, no distinct boundary exists distinguishing
a merely lengthy or a “speaking” indictment from an
indictment purposefully swollen with unduly suggestive
detail. The prosecutor enjoys some latitude and, of course,
an indictment is neither likely to nor intended to flatter a
defendant. However, a fair reading of the Aisenberg
indictment (independent of any consideration of the events
that follow the indictment, which events adulterate one’s
view dramatically) leaves the disinterested observer with
reinforced skepticism about the intention of the indict-
ment’s author. This troubling suspicion is compounded and
further reinforced by a series of allegations of dubious
relevance, detached context, or questionable veracity, for
example, that Marlene Aisenberg “feigned a catatonic
state in front of law enforcement agents,” that the Aisen-
bergs “failed to provide the requested lists for law en-
forcement,” that “Mar
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.