[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________
ELEVENTH CIRCUIT
JUNE 16, 2005
No. 04-14057
THOMAS K. KAHN
Non-Argument Calendar CLERK
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D. C. Docket No. 98-00302-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE PEASE,
a.k.a. Magic
Defendant-Appellant.
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No. 04-14092
Non-Argument Calendar
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D. C. Docket No. 98-00302-CR-T-24EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEVERLY REEDY,
LASHAUNDA FOSTER,
LATOYA PEASE,
Interested-Party-Appellants.
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Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2005)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Andre Pease (“Pease”), Beverly Reedy,
Latoya Pease (“Latoya”), and Lashaunda Foster, proceeding pro se, appeal the
district court’s orders denying them attorney’s fees and costs pursuant to Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412, and the Hyde Amendment, Pub.
L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes).
In 1998, pursuant to a plea agreement in which he agreed to forfeit to the
United States his interest in certain real and personal property, Pease pled guilty to
conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) & 846. After the plea was entered, but before sentencing, upon the
Government’s request, the court granted the Government’s application for a
preliminary order of forfeiture (“POF”) pursuant to Rule 32 of the Federal Rules of
Criminal Procedure.1 At sentencing, however, the court failed to make the POF
1
Pease did not object to the entry of the POF.
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part of its judgment. We affirmed Pease’s conviction and sentence on March 1,
2001. United States v. Pease, 240 F.3d 938 (11th Cir.2001)(“Pease I”).
While Pease’s appeal was pending, the Government, drawing on the POF for
its authority, published a notice informing third parties that the property described
in the POF had been forfeited to the United States and of their right to petition the
district court pursuant to 21 U.S.C. § 853(n)(2), (6) for a declaration that they held
an interest in such property and that their interest was superior to Pease’s forfeited
interest. On September 27, 1999, Pease, claiming an interest in three items listed
in the POF, also filed a § 853(n)(2) petition. The Government moved to strike
Pease’s petition on the ground that § 853(n)(2) prohibits a convicted defendant
from claiming an interest in forfeited property. On the same day, Latoya, Reedy,
and Foster (Pease’s sister, mother, and girlfriend, respectively) filed § 853(n)(2)
petitions with the district court, claiming an interest in some of the property
described in the POF.
In January 2000, while these petitions and the Government's motion to
strike them were pending, Pease moved the district court to dismiss the ancillary
proceeding. He contended that because the judgment in his criminal case did not
include a final order of forfeiture, the court lacked authority to entertain a § 853(n)
ancillary proceeding. Latoya, Reedy, and Foster subsequently moved the court to
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dismiss the ancillary proceeding on the same ground. In response, the Government
moved to correct the judgment in Pease’s criminal case pursuant to Rule 36 of the
Federal Rules of Criminal Procedure, which authorizes a district court to correct
clerical mistakes in judgments.
The magistrate judge (to whom the district court referred the matter), in a
report to the district court, concluded that Latoya and Reedy had failed to carry the
burden of proof prescribed by § 853(n)(6) and that the statute barred Pease from
claiming his interest in the forfeited property. On June 6, 2000, the district court,
adopting the magistrate judge's conclusions, entered an order amending the
judgment in Pease’s criminal case, denying the petitioners' claims, and granting the
Government’s motion to strike Pease’s claim.
Pease, Reedy, and Latoya appealed the district court’s order. We accepted
the appeal only as to Reedy and Latoya, and concluded that Pease’s petition was
barred by § 853(n)(2). United States v. Pease, 331 F.3d 809, 811 (11th Cir. 2003)
(hereafter Pease II). We determined that (1) the Government never acquired
Pease’s interest in any of the properties because the forfeiture had not been
included in the judgment in Pease’s criminal case, and (2) the district court
misused Rule 36 to modify the judgment because the alteration of the judgment
was substantial. We reversed the district court’s order and remanded the case with
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instructions that the district court dismiss the ancillary proceeding for lack of an
order of forfeiture.
In June 2004, Reedy, Latoya, and Foster filed a joint motion for attorney’s
fees and costs pursuant to EAJA, 28 U.S.C. § 2412(d)(1)(B). Pease and the
claimants filed a joint motion to dismiss the action, for return of the property listed
in the POF, and for damages stemming from the “wrongful seizure” of the
properties. Pease also moved the court to grant him attorney’s fees and costs
pursuant to 28 U.S.C. § 2412(d)(1)(B). Pease also claimed that he was entitled to
such fees and expenses under § 2412 through the Hyde Amendment. The district
court dismissed the ancillary proceeding, denied the claimants’s motions for
attorney’s fees, and awarded costs in the amount of $40. The claimant now
appeals the district court’s order denying them attorney’s fees and costs.
Reedy, Foster, and Latoya contend that the district court abused its
discretion by denying their motion for attorney’s fees and costs under EAJA
because the Government’s pursuit of the forfeiture of Pease’s property was not
substantially justified. The claimants assert that at the time the Government moved
the district court pursuant to Rule 36 to correct the judgment in Pease’s criminal
case to include the omitted forfeiture order, it knew that Rule 36 was not a proper
vehicle to correct that judgment. Pease contends that the district court erred by
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denying him reimbursement for attorney’s fees and costs under the Hyde
Amendment. He submits that he was a prevailing party on the issue of the
Government’s misuse of Rule 36 as a method for correcting the omission of the
forfeiture from the judgment. He says that the Government’s action in seeking
forfeiture was vexatious, frivolous, and in bad faith. Reedy contends that the
district court failed to address her claim to the real property on Daphne Drive.
I. Foster’s EAJA claim
A plaintiff seeking to invoke a federal court's jurisdiction bears the burden of
establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112
S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Article III of the United States
Constitution requires “the party who invokes the court's authority to ‘show that
[s]he personally has suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant,’ and that the injury ‘fairly can be traced
to the challenged action’ and ‘is likely to be redressed by a favorable decision.’”
Valley Forge Christian College v. Americans United for Separation of Church and
State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)(citations
omitted). “It is well established that in order to contest a forfeiture, a claimant first
must demonstrate a sufficient interest in the property to give him Article III
standing; otherwise, there is no ‘case or controversy,’ in the constitutional sense,
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capable of adjudication in the federal courts.” United States. v. $38,000.00 Dollars
in U.S. Currency, 816 F.2d 1538, 1543 (11th Cir. 1987)(civil forfeiture case).
The record reveals that Foster withdrew her claim from the ancillary
proceeding and therefore is not able to demonstrate an interest in any property that
was the subject of the forfeiture count in Pease’s criminal case. Moreover, she was
not a party in the appeal of the ancillary proceeding in Pease II. Accordingly, she
lacks standing to move for attorney’s fees and costs.
II. Pease’s EAJA claim
21 U.S.C. § 853(n)(2) states:
Any person, other than the defendant, asserting a legal interest in
property which has been ordered forfeited to the United States
pursuant to this section may, within thirty days of the final publication
of notice or his receipt of notice under paragraph (1), whichever is
earlier, petition the court for a hearing to adjudicate the validity of his
alleged interest in the property. The hearing shall be held before the
court alone, without a jury.
See 21 U.S.C. § 853(n)(2)(emphasis added). In relevant part, § 2412 provides:
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and other
expenses, in addition to any costs awarded pursuant to subsection (a),
incurred by that party in any civil action (other than cases sounding in
tort), including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the position of
the United States was substantially justified or that special
circumstances make an award unjust.
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28 U.S.C. § 2412(d)(1)(A) (emphasis added). While a proceeding ancillary to a
criminal forfeiture prosecution—in which innocent third parties seek adjudication
of the validity of their interests in the property—is a civil action, the criminal
forfeiture of a defendant’s interest in property is a mandatory element of the
sentencing package. See United States v. Douglas, 55 F.3d 584, 585 (11th Cir.
1995); see United States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001).
Because Pease’s petition in the ancillary proceeding had been barred by
§ 853(n)(2), we refused to consider his claims in Pease II. Thus, Pease lacks
standing to raise in this appeal any challenge relating to the ancillary proceeding.
Moreover, because § 2412(d)(1)(A) provides for payment of attorney’s fees and
costs to prevailing parties in civil actions, and Pease was a defendant in the
criminal action, the district court correctly concluded that he was not entitled to the
fees and costs pursuant to § 2412(d).
III. Reedy’s and Latoya’s EAJA claim
Section 2412(d) authorizes a district court to award fees and expenses after
making three findings: (1) the litigant opposing the United States must be a
prevailing party; (2) the government's position must not have been substantially
justified; and (3) there must be no circumstances that make an award against the
government unjust. Jean v. Nelson, 863 F.2d 759, 765 (11th Cir. 1988), aff’d sub
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nom. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d
134 (1990). “The government’s position is substantially justified under EAJA
when it has a “reasonable basis both in law and fact.” Id. at 767. “[T]his question
is one which the district courts are better positioned to decide.” Id. (internal
citation omitted). In making the determination, the district court may consider (1)
the state at which the litigation was resolved; (2) views expressed by other courts
on the merits; (3) the legal merits of the government's position; (4) the clarity of
the governing law; (5) the foreseeable length and complexity of the litigation; and
(6) the consistency of the government's position. Id.
A party is deemed to have abandoned an issue that it includes in its
statement of issues but does not address in its brief. See Cheffer v. Reno, 55 F.3d
1517, 1519 n.1 (11th Cir. 1995).
The only dispute Reedy and Latoya raise in this appeal is whether the
Government’s position was substantially justified. The district court did not abuse
its discretion in denying Reedy’s and Latoya’s motion because the Government’s
position was substantially justified. At the time the Government moved the district
court to modify the judgment to include the forfeiture order, it was not clear from
the case law in this circuit whether Rule 36 was a proper vehicle for modifying a
judgment to include an omitted forfeiture provision. Further, based on events that
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unfolded in Pease’s criminal case, the Government had reason to believe that its
position regarding the correction of the judgment was justified. Pease’s indictment
included a forfeiture count, Pease’s plea agreement contained a forfeiture
provision, and at the change of plea hearing the magistrate judge questioned Pease
about his understanding of the forfeiture. At the sentencing hearing, the court and
the Government again briefly addressed the forfeiture of Pease’s property, and
defense counsel confirmed that he was not challenging the forfeiture. Because
Pease never objected to the forfeiture of his property, the Government’s belief that
Pease’s property had been forfeited was reasonable.
IV. Pease’s Hyde Amendment claim
A grant or denial of attorney’s fees under the Hyde Amendment “is reviewed
for an abuse of discretion.” United States v. Adkinson, 247 F.3d 1289, 1290 (11th
Cir. 2001). “‘An abuse of discretion occurs if the judge fails to apply the proper
legal standard or to follow proper procedures in making the determination, or bases
an award [or a denial] upon findings of fact that are clearly erroneous.’” United
States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999)(citation omitted).
The Hyde Amendment provides in relevant part that
[d]uring fiscal year 1998 and in any fiscal year thereafter, the court, in
any criminal case (other than a case in which the defendant is
represented by assigned counsel paid for by the public) pending on or
after the date of the enactment of this Act [Nov. 26, 1997], may award
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to a prevailing party, other than the United States, a 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. Such awards shall be granted pursuant to the
procedures and limitations (but not the burden of proof) provided for
an award under section 2412 of title 28, United States Code.
See Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. §
3006A, historical and statutory notes). “‘Vexatious’ means ‘without reasonable or
probable cause or excuse.’” Gilbert, 198 F.3d at 1299. “A ‘frivolous action’ is one
that is "[g]roundless ... with little prospect of success; often brought to embarrass
or annoy the defendant.” Id. “Finally, ‘bad faith’ ‘is not simply bad judgment or
negligence, but rather it implies the conscious doing of a wrong because of
dishonest purpose or moral obliquity; ... it contemplates a state of mind
affirmatively operating with furtive design or ill will.” Id. (citations omitted).
As discussed above, because the Government’s position with regard to the
Rule 36 matter was substantially justified, Pease has not shown that it was
vexatious, frivolous, or pursued in bad faith. Accordingly, the district court did not
abuse its discretion by denying Pease an award of attorney’s fees and costs under
the Hyde Amendment.
V. Daphne Drive property
The subject matter jurisdiction of the district court is a question of law and,
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therefore, subject to de novo review. United States v. Perez, 956 F.2d 1098, 1101
(11th Cir. 1992). Article III of the Constitution limits the "judicial power" of the
United States to the resolution of "cases" and "controversies." Valley Forge
Christian College, 454 U.S. at 471, 102 S.Ct. at 757. (citations omitted).
Under the law of the case doctrine, a legal decision made at one stage of the
litigation, unchallenged in a subsequent appeal when the opportunity existed,
becomes the law of the case for future stages of the same litigation, and the parties
are deemed to have waived the right to challenge that decision at a later time. See
United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997); see also
Fed.R.App.P 4(a)(1)(B)(when United States is a party, notice of appeal must be
filled within 60 days).
The record reveals that the Government abandoned its intent to forfeiture the
Daphne Drive property. Although Reedy filed a notice of appeal from the district
court’s June 6, 2000 order, she did not challenge the district court’s resolution
regarding the Daphne Drive property. Accordingly, Reedy waived that issue and
her attempt to appeal it is untimely. Moreover, because the Government did not
seize the Daphne Drive property and withdrew any claim to it, the title dispute over
the property became a private matter between Reedy and other parties involved.
The requirement of a case or controversy is not satisfied under these
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circumstances; hence, we lack jurisdiction to review Reedy’s claim regarding the
Daphne Drive property.
AFFIRMED .
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