U.S. v. Adkinson

• Decision Date: 14 February 2003
• Docket Number: No. 391CR03052RV.,391CR03052RV.
• Citation: 256 F.Supp.2d 1297
• Parties: UNITED STATES of America v. William Michael ADKINSON, Robert L. Collins, and Daniel D. Kistler, Defendants.
• Court: U.S. District Court — Northern District of Florida

256 F.Supp.2d 1297

UNITED STATES of America v. William Michael ADKINSON, Robert L. Collins, and Daniel D. Kistler, Defendants.

No. 391CR03052RV.

United States District Court, N.D. Florida, Pensacola Division.

February 14, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dana C Matthews, Esq, Daniel Charles O'Rourke, Esq, Matthews & Hawkins PA, Destin, Robert L Collins, Esq, Robert L Collins PA, Robert L Collins, Pro se, Robert L Collins PA, Daniel A Kistler, Pro se, Houston, TX, for William Michael Adkinson, Ann Powell Minks fka Ann Powell, Robert L Collins, Daniel A Kistler, defendants.

Stephen P Preisser, Esq, Benjamin W Beard, Esq, U.S. Attorney Northern District of Florida, Pensacola, for U.S. Attorneys.

ORDER

SCOTT O. WRIGHT, District Judge, sitting by designation.

Pending are the motions of William Adkinson, Robert Collins, and Daniel Kistler for attorneys' fees and expenses under the Hyde Amendment. (Docs. 911, 912, and 915.) A hearing was held on Wednesday, October 23, 2002, after which, the parties were directed to file supplemental briefing on various issues and to re-organize the materials related to their Hyde Amendment claims. That briefing having been filed, I am now prepared to address the defendants' claims.

I. FACTUAL BACKGROUND

This case has been described as one of the largest and most complex criminal prosecutions in the history of Northwest Florida. On September 27, 1991, a grand jury returned a fifteen count indictment against fourteen defendants, including Adkinson, Collins, and Kistler. Count I of the superseding indictment alleged a conspiracy to commit an offense against the United States in violation of Title 18, United States Code, Section 371. The charged conspiracy identified five objectives: (1) to impede the Internal Revenue Service; (2) to defraud two banks; (3) to commit mail fraud; (4) to commit wire fraud; and (5) to transport fraudulent proceeds interstate. Counts II and III alleged bank fraud in violation of Title 18, United States Code, Section 1344; Counts IV, IX, and X, charged the defendants with mail fraud in violation of Title 18, United States Code, Section 1341; Counts V, VI, and VII alleged wire fraud in violation of Title 18, United States Code, Section 1343; Counts VIII, XI, and XII alleged interstate transportation of money taken by fraud in violation of Title 18, United States Code, Section 2314; and Counts XIII, XIV, and XV charged money laundering in violation of Title 18, United States Code, Section 1956.

The defendants moved to dismiss Count I on the grounds that four of the five conspiratorial objectives charged failed to state an offense under the then-existing law of the Eleventh Circuit. Under Eleventh Circuit precedent, United States v. Hope, 901 F.2d 1013 (11th Cir.1990) and 861 F.2d 1574 ( 11th Cir.1988), the victim in a Section 371 conspiracy seemingly had to be the United States and not a private individual or corporation. A panel of the Eleventh Circuit had expressed its doubt about the continuing validity of Hope in United States v. Falcone, 934 F.2d 1528 (11th Cir.1991), and on August 12, 1991, the Eleventh Circuit had agreed to rehear the matter en banc. With the en banc review of Falcone still pending, the indictment against the defendants was returned. Judge Vinson heard oral argument on the defendants' motions on December 19, 1991, and persuaded that the Eleventh Circuit should, and soon would, overrule Hope and thereby allow a Section 371 conspiracy to encompass the conduct charged in the indictment, denied the motions to dismiss.

This matter proceeded to trial in January of 1992, with the en banc rehearing of Falcone still before the Eleventh Circuit. The government rested on April 8, 1992, but at that time, the Eleventh Circuit still had not issued a decision on the en banc rehearing. Defendants moved for judgment of acquittal, which Judge Vinson granted as to the four non-governmental objects of the conspiracy charge, as the then-existing law of the Eleventh Circuit required. The remaining conspiracy charge of Count I related only to the object of impeding the IRS. On May 20, 1992, the en banc Eleventh Circuit did, as anticipated, overrule Hope, but the decision came too late to affect the defendants' judgment of acquittal on the four conspiracy objectives involving non-governmental victims. See United States v. Falcone, 960 F.2d 988 (11th Cir.1992). The trial lasted for five months. Ultimately, nine defendants were convicted in June 1992 on various counts, including the three defendants who have filed the pending motions.

The defendants moved for a new trial and for judgments of acquittal, both of which were denied. The defendants also moved for a new trial on the basis of prosecutorial misconduct involving pretrial publicity and the alleged false testimony of two witnesses, which was also denied. Defendants were sentenced, and they appealed their convictions. In February 1998, the Eleventh Circuit reversed the defendants' conspiracy convictions. United States v. Adkinson, 135 F.3d 1363, 1375 (11th Cir.1998)(Adkinson I). Convictions on some of the substantive charges were also reversed. On October 26, 1998, after further briefing and consideration, the Eleventh Circuit remanded the matter for additional proceedings and a possible new trial as to certain defendants.¹ United States v. Adkinson, 158 F.3d 1147 (11th Cir.1998)(Adkinson II). Electing not to prosecute the case further, the government then moved to dismiss the superseding indictment. Judge Vinson granted the government's motion to dismiss on March 5, 1999. That effectively terminated this prosecution.

Five of the defendants moved, pursuant to the Hyde Amendment, Public Law No. 105-199, Section 617, for attorneys' fees on the grounds that the government's position was frivolous, vexatious, or in bad faith. In an order entered on July 17, 2000, Judge Vinson denied the defendants' motions. Defendants Adkinson, Collins, Kistler, and Minks appealed. The Eleventh Circuit reversed, holding that the government acted frivolously, vexatiously, and in bad faith, entitling the appellants to attorneys' fees, expenses, and costs. United States v. Adkinson, 247 F.3d 1289, 1293 (11th Civ.2001)(Adkinson III). The Eleventh Circuit remanded to this court to determine the amount of fees, expenses, and costs to which the defendants were entitled. Because the Eleventh Circuit found the record unclear as to whether Minks filed a timely Hyde Amendment application, the Eleventh Circuit also instructed this court to clarify its ruling as to Minks' application. On October 4, 2002, Judge Vinson entered an order granting the Government's motion to dismiss defendant Minks' application for attorneys' fees as untimely filed. Minks' appeal of that order is currently before the Eleventh Circuit.

On October 23, 2002, a hearing was held before me on the entitlement of Adkinson, Kistler, and Collins to attorneys' fees costs and expenses. At the hearing, Michael Ramsey, Collins' lead trial attorney, and Barry Beroset, Kistler's attorney, both testified about the unusual manner in which the fees and expenses for this case were incurred. Collins also testified and explained various expenses related to his claim. Collins also offered the testimony of his accountant, Ray Williams, who had reviewed the expenses Collins submitted and gave an opinion as to the application of time-value-of-money factors to the fee award.

At the time the original indictment was returned, Collins and Kistler were both attorneys in the same firm in Houston, Texas. Both were forced to move to Pensacola for the duration of the five month trial. Collins rented a five-bedroom house where he and several of the other defendants stayed during the trial. Collins refers to the house as the "trial office" because a portion of the house was used to store the large amount of documents necessary for preparation of the defense. Collins also relocated his legal assistant, Greta Kirkland, from Houston to Pensacola to assist in the preparation of pleadings, motions and other documents related to the trial.

Collins assembled what could only be described as an "all-star" team of defense attorneys. Michael Ramsey, Collins' lead attorney, is renowned as one of the nation's foremost criminal defense attorneys specializing in complex criminal cases.²

Apparently, Ramsey jointly represented Collins and Minks, although Collins was fully responsible for the Ramsey's fee. Ramsey charged Collins a $375,000 flat fee for his representation, which Collins has paid in full.³ James Jenkins, a specialist in criminal appellate law before the Eleventh Circuit who practices in Atlanta, was hired to prepare post trial motions and to argue the appeals of those motions.⁴ Jenkins billed between $200 and $225 per hour for his services and billed over $59,000 in fees. Terrance Reed and Samuel Buffone were hired to argue the direct appeal of Collins' case. Reed, from Washington, D.C. and an appellate specialist in complex criminal cases, charged a flat fee of $25,000 and then billed on an hourly basis at $225 per hour, billing a total of $72,299 in fees. Buffone, an attorney in Boston and considered by many to be one of the best appellate specialists in the country, charged a flat fee of $150,000, five-sixths of which ($125,000) was paid by Collins, one-sixth of which was paid by Minks. Buffone also associated Michael Tigar, a professor from the University of Texas, for the purposes of preparing the briefs and arguing the appeal. Tigar was paid $25,000 out of Buffone's fee. A local attorney, Robert Crongeyer, was also tangentially involved in various pre-trial and post-trial matters, for which he charged $10,920. Collins has represented himself in the litigation of his Hyde Amendment claim.

Collins also hired Barry Beroset to represent Kistler....