MEMORANDUM IN SUPPORT OF DEFENDANTâS MOTION FOR
REIMBURSEMENT OF ATTORNEYSâ FEES AND LITIGATION
EXPENSES PURSUANT TO 18 U.S.C ¤ 3006A (THE "HYDE AMENDMENT")

F. Clinton Broden
Tx. Bar 24001495
Mick Mickelsen
Tx. Bar 140011020
Broden & Mickelsen
4924 Greenville Avenue
Dallas, TX 75206
(214) 360-0113
(214) 360-9327 (facsimile)

LOCAL COUNSEL
Howard J. Schumacher
Fl. Bar 776335
One East Broward Boulevard, Suite 700Ft. Lauderdale, FL 33301
(954) 356-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83 (1963)

United States v. Gardner, 23 F.Supp. 2d 1283 (N.D. Okla. 1998)

United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999)

United States v. Holland, 34 F.Supp. 2d 346 (E.D. Va.), rehâg, 48 F.Supp. 571
(E.D. Va. 1999), affâd, 214 F.3d 523 (4th Cir. 2000)

United States v. McClure, 546 F.2d 670 (5th Cir. 1984)

United States v. Pritt, 77 F.Supp. 2d 743 (S.D. W.Va. 1999).

United States v. Ranger Electronic Communications, Inc, 22 F.Supp. 2d 667
(W.D. Mich. 1998), revâd, 210 F.3d 627 (6th Cir. 2000).

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

United States v. Valenzuela-Bernal, 102 S.Ct. 3440 (1982)

Statutes

18 U.S.C. ¤ 3006A (the "Hyde Amendment")

18 U.S.C. ¤ 3500

Other

1 143 Cong. Rec. H 7786-04 (Sept. 24, 1997)

I. INTRODUCTION

As recognized by Congressman Hyde prior to the passage of the "Hyde Amendment," "[t]he Constitution protects you, but it will not pay your bills. That Constitution you carry in your pocket, the landlord will not take that and your lawyer will not take that. They want to get paid with cash." 143 Cong. Rec. H 7786-04, H7793 (Sept. 24, 1997).

XXXX XXXX XXXX was arrested on April 8, 1993 based upon the words of Helmut Groube and Harry Pfeil. More than seven years later, on July 20, 2000, this Court dismissed the case against Mr. XXXX XXXX after the government refused to even produce Groube and Pfeil as witnesses in its prosecution of Mr. XXXX XXXX. Finally, on or about July 28, 2000, after clearing various INS hurdles, Mr. XXXX XXXX walked out of the Miami Federal Detention Center with the clothes on his back. Nevertheless, during the seven years, three months and twenty days of his incarceration, Mr. XXXX XXXX was ruined financially. Indeed, in order to win his freedom Mr. XXXX XXXX estimates that he spent approximately $180,725.75 in attorneysâ fees and $204,570.34 in related litigation expenses. See Attachment 1.

In its July 21, 2000 order dismissing the case, this Court found that the government "realized" five months after the first trial in this matter, in other words by July 1994, that it "had been exploited by [Groube and Pfeil]." See Order Dismissing Indictment (July 21, 2000) (emphasis added). In short, this Court has found as a matter of fact that the government knew six years prior to the second trial that its continued prosecution of Mr. XXXX XXXX was not viable. This Courtâs findings in its dismissal order compel, at the very least, the reimbursement of Mr. XXXX XXXXâs attorneysâ fees and related litigation expenses incurred after July 1994. Nevertheless, as set forth below, Mr. XXXX XXXX submits that the government should have known from the initial stages of this case that its prosecution against him was not viable and, as a result, submits that he is entitled to reimbursement of all his attorneysâ fees and related litigation expenses.

II. THE HYDE AMENDMENT

As this Court knows, the "Hyde Amendment" is codified as a note to 18 U.S.C. ¤ 3006A and provides for the reimbursement of attorneyâs fees and litigation expenses incurred by criminal defendants in certain circumstances. The history of the Hyde Amendment was discussed at length by the United States Court of Appeals for the Eleventh Circuit in United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999) and will not be repeated herein except where necessary. Nevertheless, for purposes of the instant motion, it is very instructive to understand the type of governmental conduct that the Amendmentâs author believed would support the reimbursement of a defendantâs attorneyâs fees and litigation expenses.

143 Cong. Rec. H 7786-04, H7791 (Sept. 24, 1997) (emphasis added). In fact, "[t]he law was intended specifically to curb abuses associated with...the subordination of perjury and the failure to disclose exculpatory evidence." United States v. Ranger Electronic Communications, Inc, 22 F.Supp. 2d 667, 673 (W.D. Mich. 1998), revâd, 210 F.3d 627 (6th Cir. 2000). Indeed, "[a]s mentioned by [Congressman] Hyde, one of the special responsibilities of federal prosecutors is to disclose exculpatory information to criminal defendants." Id.

"The Hyde Amendment may be analyzed as containing nine elements." United States v. Holland, 34 F.Supp. 2d 346, 359 (E.D. Va.), rehâg, 48 F.Supp. 571 (E.D. Va. 1999), affâd, 214 F.3d 523 (4th Cir. 2000). In the instant case, most of the elements, should give the Court little pause.

ð First, the Court must find that the case against Mr. XXXX XXXX was pending "on the date of the enactment of [the Hyde Amendment]." The Hyde Amendment was enacted on November 26, 1997. Id. The instant case against Mr. XXXX XXXX was pending until July 21, 2000 when the Court entered its written order dismissing the case.

ð Second, the Court must find that the case was a criminal case. There should be no dispute about that.

ð Third, the Court must find that Mr. XXXX XXXX was not represented by "assigned counsel paid for by the public." There is not dispute that Mr. XXXX XXXX was represented by private counsel at all times.

ð Fourth, the Court must find that Mr. XXXX XXXX was the prevailing party. Clearly, this Courtâs dismissal of the remaining charge against Mr. XXXX XXXX during the recent second trial makes Mr. XXXX XXXX the "prevailing party." Indeed, Mr. XXXX XXXX could not have achieved, as the result of any subsequent judicial proceedings, any more relief than he received from this Court. See United States v. Gardner, 23 F.Supp 2d 1283, 1289-91 (N.D. Okla. 1998).

ð Fifth, as a corollary to the fourth element, the Court must find that the prevailing party was not the United States. Clearly, the United States was not the prevailing party in this case.

ð Sixth, the court must find that the prosecution was "vexatious, frivolous or in bad faith." This "is not an all-or-nothing proposition." United States v. Pritt, 77 F.Supp. 2d 743, 747 (S.D. W.Va. 1999). "For example, it is conceivable that a prosecution could be non-frivolous, yet still vexations and motivated by bad faith." Id. As set forth below in detail below, the prosecution against Mr. XXXX XXXX was vexatious, frivolous and brought in bad faith as those terms are defined by the Eleventh Circuit in Gilbert. See Gilbert, 198 F.3d at 198-99.

ð Seventh, the Court must find that Mr. XXXX XXXXâs attorneysâ fees and litigation costs are reasonable. This case involved numerous attorney hours: the initial trial, a new trial motion and a supplemental new trial motion, an appeal that was eventually dismissed when this Court indicated its intent to grant a new trial, a second trial, and the filing of the instant motion. Moreover, this case is unusual in that the charges for investigative services actually exceed the charges for attorneysâs fees. Nevertheless, this case revolved around the actions of Helmut Groube, a German informant. As detailed below, the government steadfastly rebuffed the defenseâs efforts to obtain information regarding Groube. It was only through the dedicated efforts of Mr. XXXX XXXXâs investigative team over the course of several years that the information about Groubeâs long history of deceit was developed to the point that this Court felt a new trial was appropriate. If the parties are unable to come to an agreement on the amount of reasonable attorneysâ fees and litigation expenses (see Holland 34 F.Supp 2d. at 374), the Court can then hold a hearing on this issue or request further briefing. See, e.g. Ranger Electronic, 22 F.Supp. 2d at 676-77.

ð Eighth, the Court must identify the agency or agencies required to reimburse the attorneysâ fees and litigation costs. As discussed below, Mr. XXXX XXXX submits that the United States Attorneyâs Office for the Southern District of Florida as well as the Drug Enforcement Agency, both agencies within the Department of Justice, should be held jointly and severally liable for the reimbursement of his attorneysâ fees and litigation costs.

ð Finally, the court must find that, assuming the other elements are met, there are not special circumstances that would justify an order requiring the reimbursement of attorneysâ fees and litigations costs. There are, in fact, no "special circumstances" which would militate against granting a Hyde Amendment motion in this case.

In short, Mr. XXXX XXXX submits that the only element that will be in dispute is whether or not the prosecution against him was vexatious, frivolous and/or in bad faith. Mr. XXXX XXXX acknowledges that he has the burden of proving that the prosecution was vexatious, frivolous and/or in bad faith by a preponderance of the evidence. See, e.g. United States v. Truesdale 211 F.3d 898, 908 (5th Cir. 2000). As set forth below, Mr. XXXX XXXX believes the record in this case, as already developed and as may be supplemented with additional discovery, supports such a finding. Moreover, the Court in its July 21, 2000 dismissal order, has already effectively found that the prosecution was both vexatious and frivolous at least as of July 1994.

III. VEXATIOUS AND/OR FRIVOLOUS AND/OR BAD FAITH PROSECUTION

As discussed above, in order to be entitled to reimbursement of attorneysâ fees and litigation expenses, Mr. XXXX XXXX must establish, only by the preponderance of the evidence, that the prosecution against him was vexatious or frivolous or in bad faith. Moreover, in the event the prosecution was not vexatious or frivolous at the onset, Mr. XXXX XXXX would still be entitled to attorneysâ fees and litigation expenses from the date on which the Court was to find that the prosecution became vexatious or frivolous or was continued in bad faith. See Holland, 34 F.Supp. 2d at 360, 374 (Award fees and expenses from January 6, 1998 - the date on which the court found the prosecution became vexatious- through the hearing on the Hyde Amendment application).

"ÎVexatiousâ means Îwithout reasonable or probable cause or excuse.â A Îfrivolous actionâ is one that is Î[g]roundless...with little prospect of success...â Finally, Îbad faithâ Î...implies the conscious doing of a wrong because of dishonest purpose or morel obliquity;...it contemplates a state of mind affirmatively operating with furtive design or ill will.â" Gilbert, 198 F.3d at 198-99 (citations omitted). In applying these terms, it must always be kept in mind that the "Hyde Amendment" was intended specifically to curb abuses associated with...the subordination of perjury and the failure to disclose exculpatory evidence." Ranger Electronic 22 F.Supp. 2d at 673.

Mr. XXXX XXXX submits that the government engaged in a series of actions throughout its prosecution of this case that, considered independently and/or cumulatively, support a finding that the prosecution in this case was vexatious and/or frivolous and/or in bad faith. Mr. XXXX XXXX discusses these series of actions below.

1. Grand Jury Perjury By Case Agent Before the Grand Jury

As noted by one District Court in granting a Hyde Amendment claim, "[t]he law was intended specifically to curb abuses associated with...the subordination of perjury and the failure to disclose exculpatory evidence." Ranger Electronic, 22 F.Supp. 2d at 673.

In order to obtain the indictment in this case, the government depended solely upon the testimony of Lee Lucas, an agent with the Drug Enforcement Agency. Lucas testified before the grand jury on April 16, 1993. In order to foreclose any entrapment defense, it was important for Lucas to convince the grand jury that it was Mr. XXXX XXXX, and not Groube, who was arranging the cocaine transaction and pushing it through. In order to do this, Lucas clearly perjured himself. Indeed, when excerpts of Lucasâ grand jury testimony (see Attachment 2) are compared to his trial testimony as well as the trial testimony of Groube, there are at least five instancesof perjury that are immediately apparent.

It should be clear that Agent Lucas perjured himself before the grand jury in order to minimize Groubeâs role in setting up this transaction and in order to fabricate predisposition on the part of Mr. XXXX XXXX. Indeed, Lucas told the grand jury that it was Mr. XXXX XXXX that introduced the drug dealer, Jerry Smith, to Groube when, in reality, it was Groube that introduced Smith to Mr. XXXX XXXX. Lucas told the grand jury that it was Mr. XXXX XXXX that contacted Groube on April 7, 1993 when Pfeil disappeared with Smithâs money when, in reality, it was Groube that contacted Mr. XXXX XXXX. Lucas told the grand jury that it was Mr. XXXX XXXX that arranged for Smith to pick up the cocaine on April 8, 1993 when, in reality, it was Groube that "set up this meeting." In short, Lucasâ motivation for his false testimony before the grand jury is self-evident.

Lucasâ perjury clearly supports a reimbursement order under the Hyde Amendment. Indeed, such perjury indicates that the prosecution was vexatious, frivolous and undertaken in bad faith. Moreover, given that the perjury was committed in order to secure the indictment in this case, this perjury supports reimbursement of Mr. XXXX XXXXâs attorneysâ fees and litigation costs from the onset of this action.

2. Deportation of Harry Pfeil

As the Court will recall, the government itself admits that Harry Pfeil was present at all of the preliminary meetings between Helmut Groube and XXXX XXXX XXXX. Thus, Pfeilâs testimony would be crucial to any claim by Mr. XXXX XXXX that he was entrapped by Helmut Groube during these preliminary meetings.

In an affidavit provided to the defense after the first trial in this matter (attached hereto as Attachment 3), Pfeil stated that he was alone when he met Jerry Smith and his girlfriend in the Marco Polo Hotel. He then introduced Smith to Groube at a breakfast meeting on Monday, April, 5, 1993. It was Groube that next proposed that the three of them (Pfeil, Groube and Smith) go to Mr. XXXX XXXXâs office that afternoon to discuss real estate dealings. At that meeting, on the afternoon of April 5th, Pfeil introduced both Smith and Groube to Mr. XXXX XXXX for the first time.

According to Pfeilâs affidavit, on April 7, 1993, Groube called Pfeil and told him to pick up Smith and take him to Mr. XXXX XXXXâs office. Groube told Pfeil that Smith had something for him (Groube) regarding an unspecified business dealing between him and Smith. Once at Mr. XXXX XXXXâs office, Smith, outside of Mr. XXXX XXXXâs presence, gave Pfeil a bag containing $90,000 and told Pfeil to take the bag to Groube who was waiting downstairs. Pfeil counted the mon204,570.34 it downstairs to Groube.

Notably, Pfeil stated emphatically that, contrary to Groubeâs trial testimony, Mr. XXXX XXXX was never present when drugs were discussed. In short, Pfeilâs testimony would have fully supported an entrapment defense by Mr. XXXX XXXX.

In his affidavit, Pfeil also explained the circumstances surrounding his deportation shortly before the January 31, 1994 trial in this matter. Pfeil explained that he was approached by Groube in November of 1993 and Groube inquired as to whether he was willing to be a government witness against Mr. XXXX XXXX. Mr. Pfeil told Groube that he did not have anything incriminating about which to testify against Mr. XXXX XXXX. Groube warned Pfeil that he should think about it in order to avoid "trouble" and the he (Groube) would come back in a few days. A few days later Groube returned. When Pfeil again told Groube that he would not testify falsely against Mr. XXXXXXXX, Groube stated, "Good, then youâll suffer the same fate as the Count!" Groube then gave a signal and an immigration agent arrested Pfeil. Pfeil was deported to Germany on December 8, 1993.

Shockingly, the defense confirmed for the first time, as a result of references in this Courtâs June 21, 2000 order to an internal DEA memorandum, that Groube did, indeed, play a very active role in Pfeilâs deportation for the purpose of making him unavailable to the defense. This Court wrote that "[i]t is confirmed in [an internal DEA memorandum], prepared five (5) months after the [first] trial, that Groube Îforcedâ the INS arrest (and subsequent deportation) of Pfeil." See Order Dismissing Indictment (July 21, 2000).

As this Court recognized in its Order Dismissing Indictment, the United States Supreme Court held in United States v. Valenzuela-Bernal, 102 S.Ct. 3440 (1982) that when the government deports a witness who can give testimony material and favorable to a defendantâs case, that defendant has been denied his right to due process of law as well as his right to compulsory process requiring dismissal of the indictment.

The governmentâs actions with respect to the deportation of Harry Pfeil support relief under the Hyde Amendment for two reasons. First, the government acted in bad faith in deporting Pfeil and allowing Groube to "force[] the INS arrest (and subsequent deportation) of Pfeil. Moreover, it allowed Groube to do this after the defense requested an opportunity to speak to Pfeil. Second, once the government realized that Pfeil had provided an affidavit (attached to Mr. XXXX XXXXâs new trial motion filed on January 27, 1995) providing testimony that would have been material and favorable to Mr. XXXX XXXXâs case, it was certainly frivolous to continue with the prosecution in light of the Supreme Courtâs decision in Valenzuela-Bernal. Ultimately, in light of Pfeilâs affidavit and the governmentâs disregard of the defenseâs request to interview Pfeil that was made prior to Pfeilâs deportation, this Courtâs reliance on Valenzuela-Bernal can only be viewed as a foregone conclusion.

3. First Trial

At the initial trial in this matter, the governmentâs chief witness was, of course, Helmut Groube. Not surprisingly, however, Groube engaged in repeated instances of perjury. Groubeâs lies are set forth below.

a. Lie Number 1

To maintain his credibility, Groube testified to only one 1977 fraud conviction. See Tr. 2/1/94 at 140-41. In fact, at the time of the first trial, Groube had also been convicted of false swearing on an affidavit.

b. Lie Number 2

In order not to appear as a "rogue" informant intent on targeting and entrapping innocent persons for compensation, Groube testified repeatedly that he told his DEA handler, Lee Lucas, about all of the several alleged meetings he had with Mr. XXXX XXXX between March 30, 1993 and April 5, 1993 as well as the meetings with Jerry Smith on April 3, 1993. See Tr. 2/1/94 at 144, 146, 148; 2/2/94 at 82-83. Agent Lucas, on the other hand, testified that he did not become aware of Groubeâs actions until April 5, 1993. See 2/2/94 at 151, 182, 190. The case agent in the first trial, Elizabeth Cullinane, offered similar testimony to Agent Lucas. See 2/3/94 at 43.

c. Lie Number 3

Groube claimed that he and Pfeil initially met with Smith for breakfast on April 3, 1993, to discuss a cocaine transaction. See Tr. 2/1/94 at 146. Nevertheless, Agent Cullinane, testified that Pfeil never met Smith on the morning of April 3rd. See Tr. 2/3/94 at 170.

d. Lie Number 4

Groube testified at trial that he did not know anything about the circumstances regarding Pfeilâs deportation but only knew that he had been deported. See Tr. 2/2/94 at 79. Nevertheless, as noted above, in the Courtâs order dismissing the indictment in this case, the Court noted that "[i]t is confirmed in [an internal DEA memorandum], prepared five (5) months after the [first] trial, that Groube Îforcedâ the INS arrest (and subsequent deportation) of Pfeil." See Order Dismissing Indictment (July 21, 2000).

e. Lie Number 5

Groube sponsored a government trial exhibit which he claimed was a bill from a meeting he and Pfeil had with Smith and James Skief at Shooterâs Restaurant. See Tr. at 2/1/94 at 152-53. Given the fact that Groube claimed that there were four persons present and the bill reflected four beers, the bill perfectly supported Groubeâs testimony. Nevertheless, Skiefâs attorney established, without question, at the first trial that the bill sponsored by Groube was not the bill from the meeting. See Tr. at 2/2/94 at 125-28.

f. Lie Number 6

Groube testified that he was never told he had to pay taxes on the over $400,000 he was paid as a DEA informant. See Tr. 2/2/94 at 78. In contrast, Agent Lucas testified that, not only did he tell Groube about his obligation to pay taxes on this money, but Groube also signed a "CI agreement" advising him of the obligation. See Tr. 2/2/94 at 238.

g. Lie Number 7

In order to lessen the impact of the shocking amount of taxpayer money that Groube received as a confidential informant, he explained that it was a full time endeavor preventing him from working and receiving "traditional" income. See Tr. 2/2/94 at 118. (Q. "You donât have any other jobs?" A. "No, because I donât have time."). In point of fact, Groube maintained, among other jobs, a job at a restaurant. See Tr. 2/2/94 at 216.

h. Lie Number 8

Groube told the first trial jury that he had no idea how his compensation for making cases was determined. See Tr. 2/2/94 at 131. Agent Lucas, on the other hand, testified that he himself told Groube the factors upon which his compensation was based. See Tr. 2/2/94 at 211-212.

i. Lie Number 9

It is not surprising that Groube lied about not knowing the factors upon which his compensation was determined because it was based, in large part, upon seizures and forfeitures that arose out of his cases. Id. That is probably why Groube again lied to the first trial jury and stated unequivocally that he did not talk to Mr. XXXX XXXX about driving one of Mr. XXXX XXXXâs expensive automobile to the arrest location. See 2/1/94 at 177. Nevertheless, after Groubeâs perjured testimony in this regard, a tape of the conversation in the German language, wherein Groube made the very request that he testified he did not make, was discovered. As a result, the government was forced to stipulate that its informant, Groube, requested Mr. XXXX XXXX to drive the car to the arrest location. See Tr. 2/3/94 at 80 (Government stipulates that "Helmut says, ÎCan we drive the sports car a little to show off for our friend?â").

As noted above, the Hyde Amendment was meant to protect a criminal defendant from prosecution based upon a foundation of perjury. That is exactly what happened in the instant case. Not surprisingly, by the time of the second trial, Groube was so discredited that the government refused to produce him as a witness. In any event, the repeated instance of perjury at the first trial, instances of perjury about which the government was obviously aware, rendered the first trial vexatious and certainly supports the granting of a motion under the Hyde Amendment.

4. Suppression of Brady and Jencks material

As note above, "[a]s mentioned by Hyde, one of the special responsibilities of federal prosecutors is to disclose exculpatory information to criminal defendants." Ranger Electronic, 22 F.Supp. 2d at 673. Indeed, in Ranger Electronic the District Court for the Western District of Michigan granted a Hyde Amendment motion based upon the governmentâs Brady violations in that case. Id at 676 ("Upon review of the alleged misconduct, the Court determines that the conduct of the Assistant United States Attorney assigned this matter violated his obligations to share exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) and constituted Îbad faithâ within the meaning of the Hyde Amendment.").

The governmentâs repeated discovery violations in this case certainly support characterizing the prosecution as vexatious and in bad faith and is the very type of behavior that the Hyde Amendment sought to protect criminal defendants against. Indeed, at every turn of this litigation, the government thwarted the defenseâs efforts to obtain more information about Helmut Groube in order to support an entrapment defense. Two examples of this were discovered during the first day of the second trial. It was then that the defense learned for the first time that there existed a DEA memo authored by a trial witness, Agent Lee Lucas, memorializing his instruction to Groube not to work with Harry Pfeil on this case. See Attachment 4. It was then the defense learned for the first time that in the same DEA memo, Lucas characterized Groube as a "rogue" informant. See Tr. 7/19/00 at 54. On the day depositions were taken during the second trial, the governmentâs cross examination questions of Peter Mueller, also indicated a "falling out" between the DEA and Groube. See Tr. 7/20/00 at 42. Nevertheless, the defense to this day has not been provided with any information regarding a "falling out."

The information that came to light during the second trial was just the tip of a very large iceberg. When defense counsel first met with Assistant United States Attorney Foster-Steers regarding this case on February 16, 2000, she told counsel that Brady material existed with respect to Groube and Brady material possibly existed with respect to Agent Lucas. Still, this information was never produced. The Court will recall that it then held a hearing on May 5, 2000 in response to Mr. XXXX XXXXâs various motions to dismiss. At that hearing, the Court ordered the government to produce Brady material within ten days and then entered a written order to the same effect on May 8, 2000. The Court explained that it was necessary for the government to produce the information so the Court could rule on the various motions.

The Court first requested the government to divulge Groubeâs criminal history. Despite the fact that Groube had a long line of history of convictions in Germany, the governmentâs only response to the Courtâs order was that it had made a written request through the German liaison, who had yet to respond. See Governmentâs Response to Order to Produce (May 18, 2000) at 1-2. In fact, after the second trial a defense investigator, Carlos Fuentes, made contact with Groube and Groube states unequivocally the that United States government was fully aware of his complete criminal record. Indeed, it strains credulity to believe that information regarding Groubeâs criminal history was not contained in Groubeâs confidential informant file in the possession of the DEA. Moreover, it strains credulity to believe that the defense could obtain information about Groubeâs convictions that the United Stats of America could not.

In its Brady order, the Court also ordered the government to provide a list of the disposition of cases where Groube was a witness-informant. Although Mr. Groube previously testified that he had been a witness-informant in sixteen to eighteen cases for the DEA, and prior to that had been an informant for the German BKA for twelve years (see Tr. 2/1/94 at 140), the government provided the disposition of only one case in its response to the Courtâs Brady order. See Governmentâs Response to Order to Produce (May 18, 2000) at 2.

The governmentâs failure to comply with its Brady and Jencks obligations appears to be due, in part, to its total misunderstanding of its obligations in this regard. The government apparently believed that its obligations were limited to Groubeâs activities in the instant case alone. Nevertheless, given that Mr. XXXX XXXXâs entrapment defense put Groubeâs credibility directly at issue and called into question his activities as an informant, there can be no doubt that information regarding Groubeâs credibility and/or questionable informant activities in other cases were highly relevant. Cf. United States v. McClure, 546 F.2d 670, 672-73 (5th Cir. 1984) (Reversing trial courtâs exclusion of testimony concerning government informantâs previous coercive enforcement techniques). Through its own investigation as well as through the media, the defense gleaned a portion of Groubeâs checkered history. Nevertheless, there was a wholesale failure of the government to comply with its Brady and Jencks obligations.

Moreover, not only did the government fail to fulfill its constitutional obligations, it actively interfered with the defense investigation. Indeed, the German BKA liaison was apparently told not to speak to the defense and the defense was warned in a letter by Assistant United States Attorney L. Foster-Steers not to make direct contact with the German BKA liaison. See Attachment 6.

In short, the government failure to provide required Brady material to the defense prior to trial and Jencks material to the defense during trial, especially as that material related to Groubeâs credibility and activities as an informant, was in bad faith and made the continued prosecution of this case vexatious. The fact that the government, to this day, has failed to produce Groubeâs confidential informant file to this Court (i.e. the file containing the most comprehensive information about Groube) further confirms the fact that governmentâs continued prosecution of Mr. XXXX XXXX was both vexatious and in bad faith.

5. Second Trial

Prior to the second trial, the defense put the government on notice that it was planning on asserting an entrapment defense. The United States Supreme Court, in Jacobson v. United States, 503 U.S. 540 (1992), held that, in order for the government to negate an entrapment defense, it is not enough to show that the defendant is "ready and willing" at the time he was specifically asked to engage in the proscribed conduct. The government needs to prove that this predisposition was independent and not the product of the attention the government had directed at him over a particular time span.

Of course, the only witnesses that the government could possibly call to testify regarding Mr. XXXX XXXXâs predisposition prior to the time he was asked to engage in the proscribed conduct would have been Groube and/or Pfeil. Nevertheless, the government announced it had no intention of calling these witnesses at the second trial. When the Court informed the government during a pre-trial telephone conference on July 6, 2000 that, absent Groubeâs testimony on this issue, it would likely direct a verdict in favor of Mr. XXXX XXXX, the government still persisted in going forward this prosecution.

At the second trial, the only fact witnesses on the governmentâs witness list were Lucas, who had no independent knowledge of Mr. XXXX XXXXâs actions and was totally dependent upon what he was told by Groube, and Detective Paez who did not get involved in this case until several days after Groube and Pfeil initially made contact with Mr. XXXX XXXX. In short, the government could not possibly have met the Jacobson standard for refuting an entrapment defense without the testimony of Groube and/or Pfeil.

To continue with the second trial after being explicitly told by the Court that it would likely direct a verdict for the defense and without the ability to call witnesses to rebut Mr. XXXX XXXXâs entrapment defense clearly makes the second trial a frivolous action "one that is Îgroundless...with little prospect of success....â" Gilbert, 198 F.3d at 198-99.

6. Use of Helmut Groube and Harry Pfeil as informants

The governmentâs use of Groube and Pfeil as informants in reverse sting cases should shock this Courtâ conscience. Moreover, because Groube was acting as a government agent, his actions are imputed to the government.

As noted above, on the second day of the second trial, the defense, for the first time, learned there was a DEA memo authored by Agent Lucas, memorializing his instruction to Groube not to work with Harry Pfeil on this case. See Attachment 4. Nevertheless, Groube ignored this instruction and the government was nonplused.

At the time Groube was used to set up Mr. XXXX XXXX, he had previous convictions for fraud and false swearing on an affidavit. By the time of the second trial, he racked up an additional fraud conviction and one for perjury. In addition, at least one German judge found Groube completely unreliable as an informant and the BKA totally changed the way it dealt with informants. See Tr. 7/20/00 at 61-66. Finally, Groube himself admitted to German Journalist Peter Mueller that he entrapped Mr. XXXX XXXX as the behest of a German bank. Id. at 25-47. Still the government has paid Groube $433,564 for his work as a DEA informant (money on which Groube unlawfully failed to pay taxes). See Attachment 7. Indeed, the government made a payment to Groube as late as February 1998.

As noted above, the government allowed Groube to continually perjure himself at the first trial. Shortly before the second trial, the government all but admitted that Groube engaged in "outright falsehoods" during that trial. See Governmentâs Response to Defendantâs Motion to Dismiss Indictment Based Upon Governmentâs Outrageous Conduct (April 6, 2000) at 4. These "outright falsehoods" were so serious that the government consented to the dismissal of this case rather than produce Groube for examination by the Court. Moreover, on the first day of the second trial, the defense learned for the first time that in a DEA memo, Agent Lucas characterized Groube as a "rogue" informant. See Tr. 7/19/00 at 54.

Groubeâs history of deceit and criminal activities was previously presented to this Court in the form on an affidavit from Gary McDaniel, a private investigator licensed by the State of Florida. See Attachment 8.

To prosecute Mr. XXXX XXXX upon the words and actions of Pfeil, who the DEA specifically told Groube not to use, and to rely upon the words and actions Groube, who, according to the government, was "rogue" informant who engaged in "outright falsehoods" rises to the level of a frivolous action brought in bad faith. This would support reimbursement of attorneysâ fees and litigation costs under the Hyde Amendment at least from July 1994 when the internal DEA memo was authored by Agent Lucas characterizing Groube as a "rogue" informant.

Given the Courtâs July 21, 2000 order dismissing the case, there is really no question that Mr. XXXX XXXX is entitled to reimbursement of at least his attorneysâ fees and litigation costs from July 1994 until resolution of this motion. As noted above, in the July 21, 2000 order, the Court found that the government "realized" five months after the first trial in this matter, in other words by July 1994, that it "had been exploited by [Groube and Pfeil]." See Order Dismissing Indictment (July 21, 2000). Thus, this Court has essentially established, under the law of the case doctrine, that, at least as of July of 1994, the continued prosecution of Mr. XXXX XXXX was not viable.

Of course, as set forth above, Mr. XXXX XXXX, submits that the government should have know from the initial stages of this case that its prosecution of Mr. XXXX XXXX was not viable and he further submits that he is entitled to reimbursement of all his attorneysâ fees and related litigation expenses. Indeed, the entire case was set into action by the grand juryâs indictment and its belief that Mr. XXXX XXXX "brokered" a cocaine transaction, yet that indictment was predicated on the perjury of Agent Lucas. Moreover, even prior to the first trial, the government deported Harry Pfeil despite the defenseâs October 15, 1993 request to speak to Pfeil. Of course, it was later discovery that Groube "forced" the INS arrest and deportation of file. See Order Dismissing Indictment (July 21, 2000).

The dismissal of the case against Mr. XXXX XXXX came only as the result of many attorney hours spent in securing a new trial and the ultimate dismissal of the charges and a tireless investigative efforts, over several years, in order to obtain the information about Groube that the government refused to turn over and provide to the Court. As set forth above, in order to win his freedom, Mr. XXXX XXXX estimates that he spent approximately $180,725.75 in attorneysâ fees and $204,570.34 in related litigation expenses. Mr. XXXX XXXX submits that he is entitled to reimbursement for this entire amount by the United States Attorneyâs Office for the Southern District of Florida, the Drug Enforcement Agency and/or the Department of Justice.

The German journalist, Peter Mueller, explained to this Court how the actions of Helmut Groube changed the entire way in which the German government uses confidential informants. Unfortunately, in the United States, as indicated by the governmentâs payments to Groube as late as February 1998 and its continued prosecution of Mr. XXXX XXXX, is business as usual. It is shameful when one compares the ramifications of Groubeâs actions in Germany to the efforts by the United States government to cover up its problems with Helmut Groube and informants of his character. While Germany changed its system, the United States went ahead with a prosecution it could not win. Its actions in this case even surpass the nightmares that predicated the passage of the Hyde Amendment.

This Court, unfortunately, does not have the ability to change the system. Nevertheless, it does have the power and the obligation to do justice in individual cases and send a message that the governmentâs actions will not be tolerated. This case is replete with examples of ways in which the government acted vexatiously, frivolously and/or in bad faith. Indeed, there is plenty of blame to go around. The actions of Groube, who at all times was acting as a government agent, are nothing short of shocking. Moreover, because Groube was acting as a governmetn agent, his actions are imputed to the government. and for whom agentMr. XXXX XXXX will not be able to reclaim the more than seven years of his life spent in prison. Reimbursement of his attorneyâs fees and litigation expenses in the amount of $385,296.09 is the least that is appropriate.

Respectfully submitted,

F. Clinton Broden
Tx. Bar 24001495
Mick Mickelsen
Tx. Bar 140011020
Broden & Mickelsen
4924 Greenville Avenue
Dallas, TX 75206
(214) 360-0113
(214) 360-9327 (facsimile)

LOCAL COUNSEL
Howard J. Schumacher
Fl. Bar 776335
One East Broward Boulevard, Suite 700Ft. Lauderdale, FL 33301
(954) 356-0477

CERTIFICATE OF SERVICE

I, F. Clinton Broden, certify that on August 17, 2000, I caused the foregoing document to be served by United States Mail, postage prepaid, on L. Foster-Steers, Assistant United States Attorney, 99 N.E. Fourth Street, Miami, Florida 33132.