Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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CHANDLER & UDALL, LLP
ATTORNEYS AT LAW 33 NORTH STONE AVENUE, SUITE 2100 TUCSON, ARIZONA 85701-1415 Telephone: (520) 623-4353 Fax: (520) 792-3426 [email protected]

Natman Schaye PCC# 51156, SBN 007095 Attorneys for Defendant Cherie Vigil UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. CHERIE VIGIL, et al., Defendant. NO. CR 04-0874-PHX-RGS AMENDED MOTION FOR RECOVERY OF ATTORNEY'S FEES AND COSTS

Assigned to: The Hon. Roger G. Strand Cherie Vigil, through counsel, pursuant to 18 U.S.C. §3006A, moves this Court for an order requiring the government to reimburse her for the attorney's fees and costs she incurred in defending against the baseless charges brought against her. Those charges were dismissed with prejudice. (Doc. No. 110). This motion is based on the attached memorandum of points and authorities, as well as the accompanying exhibits. RESPECTFULLY SUBMITTED this thirteenth day of March, 2006. CHANDLER & UDALL, LLP

By s/Natman Schaye Natman Schaye Attorneys for Defendant Cherie Vigil

Case 2:04-cr-00874-RGS

Document 112

Filed 03/13/2006

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1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 13, 2006, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to the following CM/ECF registrants: 5 6 7 8 I further certify that on March 13, 2006, I served the attached document by electronic 9 transmission and caused it to be hand-delivered to the following, who is not a registered 10 participant of the CM/ECF System, on March 14, 2006: 11
CHANDLER & UDALL, LLP
33 NORTH STONE AVENUE, SUITE 2100

Mary Beth Pfister Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408

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TUCSON, ARIZONA 85701-1415

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(520) 623-4353

Honorable Roger G. Strand United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 57 Phoenix, Arizona 85003-2156

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MEMORANDUM OF POINTS AND AUTHORITIES I. Factual Background The undisputed evidence establishes that the indictment of Ms. Vigil was based solely on records in the hands of the government. Had the government conducted a complete review of its records, it would have discovered that Ms. Vigil was innocent of wrongdoing. It is anticipated that the prosecution will not dispute the following facts: 1. On August 14, 2004, Ms. Vigil and five co-defendants were charged in a four count indictment. (Doc. No. 1). Ms. Vigil was charged in counts 1 through 3 with conspiracy to product false identification documents in violation of 18 U.S.C. §1028(a)(1) & 2, production of false identification documents in the name of Ruben Rojas in violation of 18 U.S.C. 1028(a)(1) and (b)(1)(A) and production of false identification documents in the name of Sofia Hernandez in violation of 18 U.S.C. 1028(a)(1) and (b)(1)(A), respectively. 2. The indictment arose from an investigation into the issuance of fraudulent documents by employees of the Arizona Department of Transportation, Motor Vehicle Division (MVD). The investigation was conducted by the Federal Bureau of Investigation, the Arizona Department of Public Safety, the Pima County Sheriff's Department and the Arizona Department of Transportation's Office of Special Investigations. (See Robbie Sherwood, Sting at MVD nabs 26: Bribes for fake licenses alleged, Ariz. Republic, September 24, 2004, at A1, A6, attached hereto as Exhibit "A"). 3. At the time of the indictment, Ms. Vigil worked for MVD. Her duties included the issuance of drivers licenses and the administration of tests required to obtain such licenses. 4. The prosecution accused Ms. Vigil of issuing fraudulent licenses in the names of "Sofia Hernandez" and "Ruben Rojas" on April 24, 2004. No prosecution -3Case 2:04-cr-00874-RGS Document 112 Filed 03/13/2006 Page 3 of 8

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witness named or identified Ms. Vigil as issuing those licenses nor did any prosecution witness attribute inculpatory statements or knowledge to Ms. Vigil. The indictment against Ms. Vigil was based solely on records from MVD computers which showed that the licenses were issued under the identification number assigned to Ms. Vigil for her use in logging into the MVD computer system. 5. MVD employees who administered road tests for drivers seeking licenses at the MVD station at which Ms. Vigil worked shared a single computer terminal. On a typical day, three MVD employees administered road tests. The employee who used the computer terminal first logged used his or her identification number to log in to the MVD computer system. The employees would continue to use the computer terminal throughout the day. MVD computer records would therefore show all transactions on the computer to have been entered under the first employee's identification number. 6. On April 24, 2004, Ms. Vigil was assigned to administer road tests and was the first employee to log into the computer terminal. MVD records show all transactions entered on that computer terminal on that date were entered under Ms. Vigil's identification number. MVD records also establish that Ms. Vigil was out to lunch at the time that the fraudulent licenses in the names of "Sofia Hernandez" and "Ruben Rojas" were issued. (Exhibit "B"). 7. Immediately after being arrested, Ms. Vigil waived her rights to remain silent and to counsel. She told the agents who interviewed her that she was unaware of these crimes and innocent of any wrongdoing. 8. Defense counsel submitted discovery requests to the prosecution for MVD records. Those requests, dated October 13, November 3 and November 18, 2004, are attached as Exhibits "C", "D" and "E", respectively. It was through the -4Case 2:04-cr-00874-RGS Document 112 Filed 03/13/2006 Page 4 of 8

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discovery obtained by these requests that defense counsel was able to use records which were either in the government's possession or in the possession of its partner and complaining witness, MVD, to demonstrate Ms. Vigil's innocence. 9. 10. Ms. Vigil incurred attorney's fees of $7,500 and costs of $213.37. The indictment against Ms. Vigil was dismissed without prejudice on motion of the prosecution on February 17, 2005. (Doc. No. 69). It was dismissed with prejudice over the prosecution's objection on February 9, 2006. (Doc. No. 110). II. Legal Analysis In 1997, Congress enacted the Hyde Amendment, which permits the courts to award "reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust." Ms. Vigil must carry the burden of establishing that she is entitled to recovery under the statute. However, she need only satisfy one of the three standards in the statute and will therefore prevail by demonstrating that the prosecution was "vexatious, frivolous, or in bad faith." (emphasis supplied). United States v. Manchester, 315 F.3d 1176, 1182 (9th Cir. 2003); United States v. Braunstein, 281 F.3d 982, 994 (9th Cir. 2002). The prosecution of Ms. Vigil was frivolous. In Braunstein, adopting the definition employed by the Eleventh Circuit, the Court held, that a prosecution is frivolous if it is "groundless . . . with little prospect of success . . ." 281 F.3d at 995, quoting United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999)(citing Black's Law Dictionary 668 (6th ed. 1990)). The Ninth Circuit further explained, "To show that the criminal prosecution was 'frivolous,' Braunstein must demonstrate that the government's position was 'foreclosed by binding precedent or so obviously wrong as to be frivolous.'" Id., quoting United States v. -5Case 2:04-cr-00874-RGS Document 112 Filed 03/13/2006 Page 5 of 8

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Gilbert, 198 F.3d at 1304. This determination is based on an objective standard, not requiring a showing that the government harbored actual evil intent. Id. at 994, citing United States v. Sherburne, 249 F.3d 1121, 1126 n. 4 (9th Cir. 2001). It is respectfully submitted that a comparison of the relevant facts in Braunstein with those of the present case establishes that Ms. Vigil is entitled to recover the fees and costs she incurred. This conclusion finds particularly strong support due to the fact that Braunstein had to meet an even higher standard than applicable here, that being that the denial of his attorney's fees was an abuse of discretion, requiring the appellate court to have "a definite and firm conviction that the district court committed a clear error of judgment." Id. at 992, quoting United States v. Tucor Int'l, Inc., 238 F.3d 1171, 1175 (9th Cir. 2001). The evidence in Braunstein was far more complex than the evidence regarding Ms. Vigil. Essentially, Braunstein purchased large numbers of Apple computers in Mexico for resale, and then sold many of the computers at low prices in the United States. He was accused of fraud under the theory that he agreed with Apple that he would not sell the computers in this country. Id. at 989-990. Braunstein contended that Apple knew of his sales in this country and that he did not commit fraud. Id. at 990. The prosecution ultimately moved for dismissal of the indictment. Id. at 991. In holding that Braunstein had the right to recovery under the Hyde Amendment, the Court of Appeals pointed out that the prosecutor possessed the evidence which revealed that Apple was aware of Braunstein's practices. Id. at 997. Further, "To the extent there was any confusion regarding [Apple's knowledge of Braunstein's practices], the AUSA could have clarified the matter by examining documents within the possession and control of Apple, described by the district court as a 'complaining party.'" Id. Here, the government's prosecution of Ms. Vigil was based entirely on MVD records. MVD was not simply a "complaining party", but was the government's partner in the investigation. Had the government simply conducted a complete review of records that were -6Case 2:04-cr-00874-RGS Document 112 Filed 03/13/2006 Page 6 of 8

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TUCSON, ARIZONA 85701-1415

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in its possession or "the possession and control" of MVD, it would have discovered that Ms. Vigil was not present when the crimes with which she was charged were committed. It is therefore clear that the prosecution of Cherie Vigil was frivolous. As a result, she is entitled to be compensated for the fees and costs she expended in defending herself. The $7,500 fee is not only reasonable, but was - for reasons not relevant to this motion - one half the amount that counsel undersigned would have normally charged to defend this case. The costs incurred, $213.37, were also reasonable. For these reasons, it is respectfully submitted that this Court grant this motion and order the government to pay Ms. Vigil the sum of $7,713.37. RESPECTFULLY SUBMITTED this thirteenth day of March, 2006. CHANDLER & UDALL, LLP

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TUCSON, ARIZONA 85701-1415

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By s/Natman Schaye Natman Schaye Attorneys for Defendant Cherie Vigil

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CHANDLER & UDALL, LLP
33 NORTH STONE AVENUE, SUITE 2100

CERTIFICATE OF SERVICE I hereby certify that on March 13, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary Beth Pfister Office of the United States Attorney 2 Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 I further certify that on March 13, 2006, I served the attached document by electronic transmission and caused it to be hand-delivered to the following, who is not a registered participant of the CM/ECF System, on March 14, 2006: Honorable Roger G. Strand United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 57 Phoenix, Arizona 85003-2156

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TUCSON, ARIZONA 85701-1415

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(520) 623-4353

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