U.S. v. Aisenberg

• Citation: 358 F.3d 1327
• Decision Date: 06 February 2004
• Docket Number: No. 03-10857.,03-10857.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Steven B. AISENBERG, Marlene J. Aisenberg, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

358 F.3d 1327

UNITED STATES of America, Plaintiff-Appellant, v. Steven B. AISENBERG, Marlene J. Aisenberg, Defendants-Appellees.

No. 03-10857.

United States Court of Appeals, Eleventh Circuit.

February 6, 2004.

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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 wholesale disclosure of all grand jury transcripts. After review, we reverse and reduce the attorney's fee award to $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 successfully 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 sold their child based on certain facts.¹ 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 ultimately found that the Aisenbergs' conversations intercepted from the December 1997 wiretaps were largely unintelligible and that the pediatrician's and the hairdresser's statements 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 correspondence and a hearing before the district court. The government 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.² 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. § 371, 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 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 statement 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 indicating that the Aisenbergs were "drugged." As will be discussed later, the district court ultimately determined that the recordings purportedly containing these alleged statements were "largely inaudible" and the magistrate judge found them "unintelligible."³

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 evidentiary hearing based on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).⁴

During December 2000 the magistrate judge conducted a Franks evidentiary hearing, which involved ten days of testimony from forty witnesses and over one hundred exhibits, primarily from the government's investigative 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. Aisenberg, 247 F.Supp.2d 1272, 1324-57 (M.D.Fla. 2003).⁵

In his report, the magistrate judge made extensive fact findings based on the voluminous evidence during the Franks hearing.⁶ For example, the magistrate judge found: (1) that in the initial wiretap application, the county detectives not only made false statements, but also omitted material facts regarding the Aisenbergs' initial missing child report; (2) that in the initial wiretap application, the county detectives' statement that Marlene Aisenberg was "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 detectives 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 supporting 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;⁷ (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;⁸ (7) that the Aisenbergs' 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 detectives 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.⁹

D. Aisenbergs' Application under Hyde Amendment

On 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).¹⁰ In response, the government conceded that an award of...