The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Yolanda Summons filed a motion for attorney's fees pursuant to Rule 47 of the Federal Rules of Criminal Procedure. In that motion, Summons asserts that the Government's case against her was frivolous, in bad faith, and vexatious. Summons argues that she is therefore entitled to attorney's fees and expenses pursuant to the Hyde Amendment, Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997). The Government responds that Summons is not entitled to attorney's fees and expenses because it had probable cause to support the indictment against Summons. For the following reasons, Summons's motion for attorney's fees and expenses is denied.
In the 1997 Hyde Amendment, Congress authorized federal courts to "award to a prevailing party [in a criminal case], 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 vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust." Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes); see also United States v. Gilbert, 198 F.3d 1293, 1299-1303 (11th Cir. 1999) (discussing the Hyde Amendment's legislative history).
From the plain meaning of the language Congress used, it is obvious that a lot more is required under the Hyde Amendment than a showing that the defendant prevailed at the pre-trial, trial, or appellate stages of the prosecution. A defendant must show that the government's position underlying the prosecution amounts to prosecutorial misconduct -- a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous.
Gilbert, 198 F.3d at 1299. The prevailing party in the criminal proceeding bears the burden of showing that the Government's prosecution was either "vexatious, frivolous, or in bad faith." See United States v. Bowman, 380 F.3d 387, 391 (8th Cir. 2004).
Although the statute does not define "vexatious, frivolous, or in bad faith," courts have supplied definitions of those terms. According to the caselaw, a position is "vexatious" for purposes of the Hyde Amendment if the criminal case was objectively deficient, i.e., it lacked either legal merit or factual foundation, and the "government's conduct, when viewed objectively, manifests maliciousness or an intent to harass or annoy." United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001). A position is "frivolous" when the position is "utterly without foundation in law or fact." Bowman, 380 F.3d at 390. A position is "in bad faith" if it is "not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity. . . . [I]t contemplates a state of mind affirmatively operating with furtive design or ill will." United States v. Isaiah, 434 F.3d 513, 522 (6th Cir. 2006).
The evidence presented by Summons falls short of showing that the charges against her were brought vexatiously, were brought in bad faith, or were so utterly without foundation in law or fact as to be frivolous.
Count III of the third superseding indictment charged that Jackie E. Porchay and Yolanda Summons violated 18 U.S.C. § 1956(a)(1)(B)(i) by conspiring with Harold Kelley to conduct a financial transaction that involved the proceeds of unlawful activity knowing that the transaction was designed in whole or in part to conceal and disguise in nature the location, source, ownership, and control of the proceeds of that unlawful activity. Summons admits that shortly after October 1, 2005, she received $30,000 in cash from her sister, Jackie E. Porchay, and Porchay's boyfriend, Harold Kelley, in return for which she sold to Porchay a 2002 GMC Yukon Denali while retaining title in her name. Summons says that shortly after purchasing the Denali on October 1, 2005, she realized that she could not afford it. Summons also admits that in April 2006, less than two months after Kelley was indicted, she purchased a 2004 Cadillac Escalade from Porchay for $28,000. She says that between October 2005 and April 2006 her financial condition had improved to the point that she could afford an SUV of that sort.
Kelley has entered a plea of guilty to participating in a conspiracy with intent to distribute more than five kilograms of cocaine hydrochloride. He has admitted that he made numerous trips to Texas to bring cocaine for distribution in Little Rock. Kelley reported no income to the taxing authorities but was found in possession of hundreds of thousands of dollars in cash, as well as weapons and other evidence of drug trafficking. Porchay, who lived with Kelley, reported to the taxing authorities that she earned approximately $13,300 per year as a "document examiner" for the State of Arkansas, yet she owned assets far beyond what a person could acquire with such a small income. Those assets included a new home, a 2000 Honda Accord, a Suzuki motorcycle, a 2001 Monte Carlo, and the Cadillac Escalade. The Government had probable cause to believe that Jackie Porchay knew that these assets were acquired with the proceeds of unlawful activity.*fn1 Hence, the Government had probable cause to believe that the $30,000 paid by Harold Kelley and Jackie Porchay to Yolanda Summons represented the proceeds of unlawful activity and that the 2004 Cadillac Escalade was purchased with proceeds of illegal activity. Summons has not disputed that fact; it appears that she tacitly concedes that the Government had probable cause to believe that the $30,000 in cash and the 2004 Cadillac Escalade represented the proceeds of unlawful activity.
The only argument, then, that Summons makes is that the Government had no evidence that she knew that the cash and the Escalade represented the proceeds of some form of unlawful activity or that the transactions were designed in whole or in part to conceal or disguise the source or ownership of the proceeds.
The transaction in which Summons sold the Denali to Porchay has all the earmarks of a transaction designed for concealment. The buyer paid $30,000 in cash, not by check, money order, draft, wire transfer, or any other means by which the proceeds could be traced. The seller did not deliver title but, instead, kept title in her name -- as a person who wanted to conceal the true ownership would do. According to Summons's verified amended motion, she entered into this arrangement to build back her credit history because she had filed bankruptcy "several years earlier."*fn2 That explanation frankly does not make sense. Summons had just obtained financing in the amount of $29,757 for the purchase of the Denali, according to her statement, so apparently the bankruptcy did not prevent her from obtaining that loan.*fn3
Moreover, if Summons had taken the $30,000 that she received in cash from Jackie Porchay and Harold Kelley and used it to satisfy the debt, the satisfaction of that debt would still have been reported on her credit history, and she could have delivered title to Porchay. Instead, she either requested or acquiesced in an arrangement whereby it was represented that she owned a vehicle that, according to her, actually was owned by Jackie Porchay; and she accepted payment of $30,000 in cash from Porchay and Harold Kelley, who happened to be a drug trafficker. When all of this evidence is put together it comes to this: Summons's sister, Jackie Porchay, had no visible means of income by which she could earn more than $13,300 per year; Porchay's boyfriend had no visible means of income at all; yet Porchay and her boyfriend had $30,000 in cash to pay for ...