211 F.3d 898 (5th Cir. 2000), 99-10096, United States v Truesdale

Docket Nº:99-10096
Citation:211 F.3d 898
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. JAMES TRUESDALE; RONALD HAMILTON, Defendants - Appellants
Case Date:May 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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211 F.3d 898 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

JAMES TRUESDALE; RONALD HAMILTON, Defendants - Appellants

No. 99-10096

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

May 5, 2000

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Texas

Before KING, Chief Judge, and DUHE and DeMOSS, Circuit Judges.

KING, Chief Judge:

Defendants-Appellants James Truesdale and Ronald Hamilton appeal from the district court's denial of their joint application for reimbursement of attorney's fees. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case revisits the story of an offshore sports wagering enterprise that is well-chronicled in one of our previous opinions. See United States v. Truesdale, 152 F.3d 443 (5th Cir. 1998). Defendants-Appellants James Truesdale and Ronald Hamilton ("Appellants"), along with two others, were indicted and tried on multiple charges, including conspiracy, money laundering, and conducting an illegal gambling operation. There was evidence at trial that bets were placed over toll-free numbers that terminated in offices offshore, where such activity is legal; however, toll-free numbers also terminated at Appellants' homes, but these lines were used for information purposes only. There was also evidence that Appellants received money in Texas to establish betting accounts, that they deposited the money received in Texas bank accounts, and that they paid winners out of accounts held in Texas. Appellants and their co-defendants were convicted of several of the charges, including conducting an illegal gambling operation. On direct appeal, we reversed their convictions on all counts. See id. at 450.

18 U.S.C. § 1955 was the basis for the illegal gambling operation charge. It prohibits "conduct[ing], financ[ing], manag[ing], supervis[ing], direct[ing], or

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own[ing] all or part of an illegal gambling business." 18 U.S.C. § 1955(a) (1994). An illegal gambling business is defined, in part, as one that "is in violation of the law of the State or political subdivision in which it is conducted." 18 U.S.C. § 1955(b)(1)(i) (1994). As we explained in the direct appeal of Appellants and their co-defendant's conviction:

In order to meet the first prong (violation of state law), the indictment alleged that appellants' gambling operation was being conducted in violation of Chapter 47, Gambling, of the Texas Penal Code. The indictment did not cite a specific provision within this chapter, but it alleged only "bookmaking." Additionally, the government's case focused entirely on and the jury charge instructed only on the "bookmaking" provisions of Chapter 47. Chapter 47 defines "bookmaking" as follows:

(A) to receive and record or to forward more than five bets or offers to bet in a period of 24 hours;

(B) to receive and record or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or

(C) a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.

Tex. Penal Code § 47.01(2)(A)-(C).

Under Texas law "bookmaking" is illegal, and if a person intentionally or knowingly commits "bookmaking," he commits the offense of gambling promotion. Tex. Penal Code § 47.03(a)(2). Bookmaking, however, is not the only activity that constitutes gambling promotion. Section 47.03(a) lists five separate categories of activity (including "bookmaking") each of which can constitute gambling promotion. Section 47.03(a) makes it a separate offense for an individual, for gain, to "... become[ ] a custodian of anything of value bet or offered to be bet[.]" Tex. Penal Code § 47.03(a)(3). In this case, neither the indictment nor the jury charge nor the government's argument alluded to this section. The indictment only mentioned bookmaking and the jury charge only tracked the language of sections 47.01(2) and 47.03(a)(2).

Truesdale, 152 F.3d at 446-47. The evidence in the case indicated "that the bookmaking activities occurred outside the United States" and not in the state of Texas, as § 1955 requires. Id. at 447. There was evidence that Appellants had the capability to accept bets in Texas and that callers attempted to place bets in Texas, and a notebook seized at Hamilton's residence could have indicated that bets were being taken in Texas. However, the opinion notes that Appellants went to great lengths to ensure that their business was conducted legally. See id. at 448. In sum, "the circumstantial evidence . . . [did] not furnish an adequate basis from which a reasonable juror could conclude beyond a reasonable doubt that the appellants were engaged in bookmaking." Id. at 448-49. We indicated that there may have been some evidence that Appellants became custodians of gambling money in violation of section 47.03(a)(3), but the government did not indict them on that section, try them on that section, or instruct thejury on that section.

Following our decision, Appellants' co-defendants moved the district court for reimbursement of attorneys' fees under the so-called Hyde Amendment,1 and Appellants

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soon followed suit. The district court denied their co-defendants' motion, which denial was never appealed, and it further denied Appellants' motion in an order entered on December 22, 1998. Appellants filed a notice of appeal ("NOA") on January 20, 1999, twenty-nine days after the district court's order was entered. Before reaching the merits of Truesdale and Hamilton's appeal, we must decide whether their NOA was timely filed.

II. APPELLATE JURISDICTION: RULE 4(a) OR 4(b)?

Federal Rule of Appellate Procedure 4 governs the time period during which an NOA may be filed. "A timely notice of appeal is necessary to the exercise of appellate jurisdiction." United States v. Cooper, 135 F.3d 960, 961 (5th Cir. 1998) (citing United States v. Robinson, 361 U.S. 220, 224 (1960)). Simply put, if a notice of appeal is untimely, we cannot entertain the merits of a case. In order to establish the timeliness of the NOA filed in the instant appeal, we must begin by determining whether it is governed by Rule 4(a) 2 or Rule 4(b).3 Only one other court of appeals has addressed this issue. In United States v. Robbins, the Court of Appeals for the Tenth Circuit held that an appeal from a district court's denial of a motion filed under the Hyde Amendment is governed by Rule 4(b). See 179 F.3d 1268, 1270 (10th Cir. 1999).

At the outset, what is most important here is to establish a clear rule governing NOAs in cases like this one. Unfortunately, however, the text of the Hyde Amendment does not clearly establish whether Rule 4(a) or 4(b) should apply. A compelling case can be made that Rule 4(b) should apply to this case and others like it. The Hyde Amendment clearly states that "the court, in any criminal case . . . may award to a prevailing party . . . a reasonable attorney's fee . . . ." Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 U.S.C. app. § 3006A (Supp. III 1997) [hereinafter "Hyde Amendment"]. This language can be read as signaling that a Hyde Amendment motion arises in a criminal case. See Robbins, 179 F.3d at 1270. On the other hand, the language can be read as simply signaling that the provision is intended to provide relief when, "in any criminal case . . . the court finds that the position of the United States was vexatious, frivolous, or in bad faith." Id. The latter reading does not necessitate the conclusion that the motion itself is a part of the underlying criminal case. For the reasons that follow, we conclude that the latter reading is appropriate. We are consequently unable to

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join the Tenth Circuit's conclusion and decide that Rule 4(a) governs an appeal from a district court's ruling on a motion filed under the Hyde Amendment.

Citing United States v. Young, 966 F.2d 164, 165 (5th Cir. 1992), and United States v. De Los Reyes, 842 F.2d 755, 757 (5th Cir. 1988),4 the government argues that, like a motion to correct sentence under Federal Rule of Criminal Procedure 35, "a motion for reimbursement of attorney's fees and costs, pursuant to the Hyde Amendment, should be considered part and parcel of the criminal matter rather than a separate civil proceeding." Government's Brief at 19. The government provides no support for this argument, and after comparing a motion under the Hyde Amendment to a Rule 35 motion, we cannot agree. A Rule 35 motion deals directly with the movant's liberty interest, precisely the sort of consideration that has been cited to support the shorter filing period under Rule 4(b). See United States v. Craig, 907 F.2d 653, 656 (7th Cir. 1990) ("The shorter time limit for criminal appeals furthers the public interest in the prompt resolution of criminal proceedings. Neither the interests of society nor of individual criminal defendants are served by a plodding appellate process that could change the results of a trial, often while the defendant has already begun to serve a sentence of incarceration."). A motion under the Hyde Amendment, on the other hand, does not implicate the movant's liberty interest. Indeed, as we discuss shortly, the interests it implicates are identical to those implicated by a motion for attorney's fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (the "EAJA"), the procedures and limitations of which, with a few exceptions, are made applicable to proceedings under the Hyde Amendment. The longer time period provided in Rule 4(a) applies to proceedings under the EAJA. We find the comparison of a motion filed...

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