IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 5:93CV2306 ) ONE DLO MODEL A/C, 30.06 ) JUDGE DAVID D. DOWD, JR. MACHINE GUN, etc., et al., ) ) Defendants, ) ) v. ) ) LOUIS EDWARD KATONA, III, ) ) Claimant. ) CLAIMANT'S RENEWED MOTION FOR ATTORNEY FEES AND COSTS Now comes claimant Louis E. Katona, III, by undersigned counsel, and pursuant to the Court's order of September 2, 1994, renews his motion for an award of attorney fees and costs. A memorandum of points and authorities is submitted in compliance with Local Rules 2:2.1 and 8:8.1. A declaration of counsel is also attached hereto in support of this motion. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant MEMORANDUM IN SUPPORT OF CLAIMANT'S MOTION FOR ATTORNEY FEES AND COSTS This memorandum is submitted in compliance with Local Rules 2:2.1 and 8:8.1. Claimant hereby incorporates by reference the arguments previously asserted in support of his motion for attorney fees and costs contained in his motion for summary judgment and in his reply memorandum to the government's response thereto. To summarize those arguments: 1. Section 924(d)(2)(A) of Title I of the Gun Control Act of 1968 (Title 18, U.S.C.) provides that In any action or proceeding for the return of firearms or ammunition seized under the provisions of this chapter, the court shall allow the prevailing party, other than the United States, a reasonable attorney's fee, and the United States shall be liable therefor. 2. Section 924(d)(1) of Title I of the Gun Control Act of 1968 provides that "[a]ny firearm ... involved in or used in ... any violation of any ... criminal law of the United States ... shall be subject to seizure and forfeiture." 3. Claimant's firearms were seized under a warrant charging they were "involved in or used in" violations of criminal laws of the United States. Claimant was indicted and prosecuted under an indictment charging that the firearms were "involved in or used in" violations of criminal laws of the United States. The complaint in forfeiture in this case sought forfeiture of the firearms on the ground that they were "involved in or used in" violations of criminal laws of the United States. The firearms in question were therefore "seized under the provisons of this chapter" for purposes of Section 924(d)(2)(A). 4. All firearms forfeitures based on violations of criminal laws of the United States are governed by the provisions of Section 924(d) of Title 18, United States Code. Section 5872 of Title II of the Gun Control Act of 1968 (26 U.S.C.) is not to the contrary. The provisions of the Firearm Owners' Protection Act of 1986 which established a statute of limitations on the commencement of firearm forfeitures and provided for attorney fees for successful claimants was an amendment to the Gun Control Act of 1968 and governs this action. The government's arguments to the contrary rely on a non-existent distinction between the firearms provisions of Title 18 and those of Title 26 which are merely corollary provisions of a unitary Gun Control Act. No resort to the legislative history of FOPA is necessary because the attorney fee provision is clear on its face. To the extent that the legislative history of FOPA is relevant, it demonstrates conclusively that Congress was legislating with regard to all firearms seizures and forfeitures. 5. The claimant was the prevailing party in this action in that he obtained the return of his firearms and the plaintiff failed to obtain the relief it sought: the forfeiture of the firearms. 6. Had the claimant failed to contest the two abortive attempts at administrative forfeiture by the Bureau of Alcohol, Tobacco and Firearms, he would have lost the firearms and they would have been destroyed. 7. Had the United States been successful in its criminal prosecution of claimant, the firearms would automatically have been forfeited. 8. It was necessary therefore for the claimant to contest each step by the government in order to preserve his ownership and interest in his firearms. The attorney fees requested are therefore reasonable under the circumstances. 9. Even if claimant were not entitled to reasonable attorney fees under FOPA he would be entitled to them under the provisions of 26 U.S.C. section 7430, in that he was the prevailing party and the position of the United States was not substantially justified. CONCLUSION For all the foregoing reasons the Court should award the claimant a judgment against the United States for his attorney fees incurred in the successful defense of his firearms. Respectfully submitted, JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant DECLARATION OF COUNSEL IN SUPPORT OF CLAIMANT'S MOTION FOR ATTORNEY FEES I, James H. Jeffries, III, declare as follows: 1. I am a member in good standing of the Bars of the Commonwealth of Kentucky, the State of North Carolina, and the District of Columbia, with offices at 3019 Lake Forest Drive, Greensboro, North Carolina 27408. 2. I have been a practicing lawyer since April 9, 1962. In May 1962 I was appointed a trial attorney by the United States Department of Justice under the Attorney General's Honors Program. I retired from the Department of Justice in December 1989. During my tenure there I served in the Internal Security Division, the Criminal Division and the Tax Division. While a Justice Department lawyer I appeared in more than 80 of the 94 judicial districts and personally tried between 2,000 and 3,000 federal cases. As a supervisory attorney I managed 35 trial lawyers and the conduct of between 20,000 and 30,000 federal cases over a period of ten years. I am a member in good standing of the Bars of the following courts: Member of the Kentucky Bar (1962 - present). Member of the District of Columbia Bar (1965 - present). Member of the North Carolina Bar (1991 - present). Member of the Bars of the: Supreme Court of Kentucky (April 9, 1962) United States Supreme Court (April 16, 1965) Court of Appeals for the District of Columbia (May 7, 1965) United States Court of Military Appeals (May 27, 1965) United States Claims Court (June 2, 1965) United States Court of Customs and Patent Appeals (October 5, 1965) United States Tax Court (May 3, 1966) Supreme Court of North Carolina (September 20, 1991) United States Courts of Appeals for the: District of Columbia Circuit (May 7, 1965) Fifth Circuit (May 2, 1966) Eighth Circuit (May 2, 1966) Tenth Circuit (July 15, 1966) Third Circuit (January 5, 1967) Seventh Circuit (January 16, 1967) Second Circuit (January 21, 1975) Ninth Circuit (January 23, 1975) Fourth Circuit (February 5, 1975) Federal Circuit (January 21, 1983) Sixth Circuit (March 7, 1994) United States District Courts for the: District of Columbia (November 4, 1965) District of Maryland (July 8, 1966) Eastern District of Kentucky (May 12, 1967) District of Vermont (September 6, 1967) Northern District of Ohio (April 11, 1969) Eastern District of Wisconsin (September 17, 1969) Western District of Pennsylvania (Feb. 26, 1970) District of South Dakota (April 6, 1970) Middle District of North Carolina (May 20, 1992) Western District of North Carolina (June 8, 1992) Eastern District of North Carolina (Aug. 26, 1992) Eastern District of Michigan (September 30, 1992) Northern District of Indiana (October 30, 1992) 4. Since January 1990 I have been engaged in the private practice of law, consisting almost entirely of federal firearms litigation. 5. I charge clients $125 per hour, in court and out. I do not bill separately or additionally for postage, copying, toll calls or other ordinary or incidental office expenses. 6. I was retained in August 1992 by Mr. Louis Edward Katona, III, to represent him in obtaining the return of a firearms collection seized from him by the Bureau of Alcohol, Tobacco and Firearms in May 1992. That representation expanded when the United States Attorney commenced a criminal investigation and ultimately indicted Mr. Katona, because a conviction would have caused the forfeiture of the firearms as a matter of law. 7. The successful defense of the criminal prosecution, as well as of the various attempts at forfeiture by the government, were all necessary to the ultimate recovery of the seized firearms by Mr. Katona. 8. Attached as collective Exhibit A are true copies of the monthly statements presented to Mr. Katona by myself and co-counsel Robert E. Sanders during the pendency of this matter, and a statement by James Pry, II, Esquire, who represented Mr. Katona during the search of his residence in May 1992, as well as documentation on electronic research, travel, and subsistence during trial. These documents reflect total charges of $67,808.00 in attorney fees, $13,392.75 in payments to expert witnesses, and $2,681.48 in hotel and travel costs for counsel and witnesses, for a grand total of $83,882.23. Pursuant to 28 U.S.C. section 1746 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on October 17, 1994. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant CERTIFICATE OF SERVICE I, James H. Jeffries, III, counsel for the claimant Louis Edward Katona, III, hereby certify that service of the foregoing Claimant's Renewed Motion for Attorney Fees and Costs and Memorandum and Declaration in Support has been made upon the United States this 17th day of October, 1994, by mailing a true copy, postage prepaid, to James L. Morford, Esquire, Assistant United States Attorney, 1800 Bank One Center, 600 Superior Avenue, East, Cleveland, Ohio 44114-2600. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Claimant