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 REPLY TO GOVERNMENT'S RESPONSE TO MOTION FOR ATTORNEYS' FEES AND COSTS Now comes claimant Louis E. Katona, III, by undersigned counsel and replies to the government's response to his motion for attorneys' fees and costs. The government does not dispute the accuracy of claimant's application for costs and attorneys' fees, nor the sufficiency of his proof of expenditures. Nor does the government quibble with the reasonableness of those charges in relation to the services performed and results obtained. Rather the government contends that any award of attorneys' fees should be restricted to "specific reasonable fees connected with this forfeiture action" and that "[n]o case law or statutory authority is cited by Claimant to support a recovery of attorneys' fees related to a criminal case." This argument ignores the claimant's consistent position -- uncontested by the government -- that a successful defense of the criminal action was an absolutely necessary predicate to the defeat of the government's seizure and to recovery of the firearms at issue. It was the government which waited 17 months after the seizure to commence a judicial forfeiture proceeding, seeking first to accomplish the same objective by an illegal administrative forfeiture proceeding [footnote 1] and then resorting to a criminal indictment when that avenue was blocked and its agents sued for their torts. It was the government which brought an indictment so thin it was not even permitted to go to the jury. [footnote 2] It should also be emphasized that undersigned counsel's original retention was for the purpose of recovering the seized property, a charter which necessarily expanded to deal with the indictment returned a year after his becoming claimant's forfeiture counsel. Had the government initiated this forfeiture when it was legally required to, and in the forum it was legally required to, there would be no dispute about the costs and fees inflicted upon the claimant to defend his property. And those costs and fees would have been in almost the exact amounts incurred to date. Instead, the government ignored the plain language of several federal statutes (all designed to ensure due process of law for its citizens) and tried to hammer the claimant into a state of submission and to obtain a forfeiture by way of his criminal conviction. [footnote 3] That scheme failed, as it should have, and the government should not now be heard to claim that the criminal defense costs are separate from and unrelated to the costs of this forfeiture. [footnote 4] The government also chooses to ignore Section 924(d)(2)(B) of Title 18, United States Code, which provides: In any other action or proceeding [than one for the return for firearms or ammunition] under the provisions of this chapter, the court, when it finds that such action was without foundation, or was initiated vexatiously, frivolously, or in bad faith, shall allow the prevailing party, other than the United States, a reasonable attorney's fee, and the United States shall be liable therefor. There can be no dispute that the plain language of this provision covers criminal firearms prosecutions, nor that this was the clear intent of Congress. States David Hardy, the leading commentator on the Firearms Owners' Protection Act of 1986: The award of attorneys' fees at the close of trial to a successful criminal defendant would seem a radical innovation in criminal procedure. Yet there can be no doubt that FOPA accomplishes exactly that. FOPA's general attorneys' fees provision applies to "any other action or proceeding under the provisions of this chapter"; in other words the Gun Control Act. It might be suspected that this was merely the product of legislative oversight, a failure to realize that criminal cases are "actions or proceedings," too. But the legislative history makes it inescapably clear that Congress knew and intended that criminal actions be covered. The first Senate report [S. Rep. No. 476, 97th Cong., 2d Sess. 24 (1982)] states unequivocally: If an individual has in fact been deprived of his property unjustly, and establishes such in court, there is little reason to put the burden of costs upon the just claimant rather than those who have unjustly taken his possessions. Such an award is likewise to be made in any other action, civil or criminal, under this chapter, where the court finds it was undertaken without foundation or from specified bad motives. The later Senate report [S. Rep. No. 583, 98th Cong., 2d Sess. 25 (1984)] grouped both categories into a single sentence: If an individual has in fact been deprived of his property unjustly or has been unfairly forced to defend himself, and established such in court, there is little reason to put the burden of costs upon the just claimant rather than those who have unjustly taken his possessions or forced him to defend himself in an unreasonable action. On the House floor, Representative Hughes argued with even greater specificity [132 Cong. Rec. H1647 (daily ed. Apr. 9, 1986)] that, if enacted, FOPA "would have us paying attorneys' fees for persons charged with illegally possessing weapons who successfully defend themselves, something we do not do for others that in fact avoid conviction in criminal offenses." Accordingly, the extension of FOPA's general attorney's fees provisions to "all" proceedings under the Gun Control Act must be read to cover, and to have been intended to cover, criminal proceedings as well as civil. David T. Hardy, "The Firearms Owners" Protection Act: A Historical and Legal Perspective," 17 Cumberland Law Review 585, text at notes 432-435 (1986-1987) (footnotes omitted). There can seemingly be no argument that the government's criminal prosecution was "without foundation" as that term is used in 18 U.S.C. section 924(d)(2)(B); indeed "without foundation" sounds like a pretty fair approximation of what a Criminal Rule 29 dismissal actually stands for. To use Judge White's pithy characterization, "Where's the beef?" Thus, the government is simply wrong when it says attorney fees and costs may not be awarded in a criminal case. However, that is an issue this Court need not reach. The simple fact here is that every action taken, every expense incurred in defense of the criminal case was also an action taken, an expense incurred, in defense of the firearms and in furtherance of their recovery. CONCLUSION For all the foregoing reasons the Court should enter a judgment in favor of the claimant for his reasonable attorney fees and costs as previously demonstrated to the Court. 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 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 Reply to Government's Response to Motion for Attorney Fees And Costs has been made upon the United States this 23d day of November, 1994, by mailing true copies, 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 FOOTNOTES 1. The government has never denied the illegality of its attempted administrative forfeiture. As is now clear from the record in the criminal prosecution, this was not a case of inadequate government appraisals showing a value which did not require a judicial determination. The government's valuations showed from the outset that a summary administrative proceeding was legally unavailable and it simply disregarded the plain mandate of the law -- just as it ignored the plain mandate of the statute of limitations in bringing this case. 2. It may or may not be significant that the claimant sought to waive a jury in his criminal case and was thwarted by the government's non-acquiescence. 3. Every issue in this case and the criminal case is identical. Precisely the same witnesses and exhibits and preparation were as necessary to one case as to the other. If the government had prevailed in the criminal case it would have promptly moved for -- and no doubt obtained -- summary judgment here, just as the claimant did. 4. If the Court is of the opinion that the costs and fees should be apportioned between the two cases, it will be a relatively simple matter to do so and claimant requests leave to so amend his application. Almost all pre-trial and post-trial expenses were incurred in connection with the forfeiture action or were of a dual-purpose nature -- that is, would have been incurred to contest the forfeiture regardless of the criminal case.