By Frederick R. Petti, Patricia Lane Briones, and Wendell Long
IGRA’s legislative history made clear that Congress did not ‘‘intend that compacts be used as a subterfuge for imposing state jurisdiction on tribal lands.’’
By Frederick R. Petti and Robert H. McKirgan
Published in American Bar Association Trial Evidence Journal
We recently handled a civil matter in which our client was alleged to have mistreated his former spouse. During the investigation of the spouse’s case, we discovered that the spouse had made similar claims of mistreatment during her divorce proceeding against her first husband. Moreover, we discovered that the spouse had been convicted of criminal contempt during those proceedings, and that the court had sentenced her to jail for a period of 48 hours. The court based its findings on false testimony provided by the spouse and the spouse’s solicitation of a third party to commit perjury. Given the great impeachment value of the spouse’s prior conviction, as well as the similarity between the matter in which she perjured herself and the case we were defending, we were excited to have this evidence and wanted to use it if the case was ever tried.
However, from an evidentiary standpoint, there was a problem with the spouse’s conviction. Even though the date of the spouse’s criminal contempt conviction was still less than 10 years old, the 10th anniversary of the conviction would occur prior to the start of the trial in the matter we were handling. We knew that the Arizona Rules of Evidence provide that any conviction that is more than 10 years old is presumptively inadmissible unless the proponent gives the adverse party sufficient advance written notice to contest the use and the court then determines that the probative value of the prior conviction substantially outweighs the prejudicial effect. Because this was an evidentiary issue, we decided to file a motion in limine asking the court to make a determination of the admissibility of the spouse’s prior conviction.
The lawyer on the other side of the case was a very seasoned and well-respected practitioner, a lawyer to whom we regularly referred matters. Consequently, we were surprised when we saw his response to our motion in limine. In that response, the lawyer wrote that motions in limine are “by definition” designed to preclude the admission of evidence, and that it was inappropriate for us to move in limine for the admission of evidence. We simply could not believe that our opponent did not realize that motions in limine are used both to prequalify evidence (offensively) and to request a pretrial ruling precluding certain evidence (defensively).
Because we were so surprised by our opponent’s response to our use of an offensive motion in limine, we thought it might be helpful to remind litigators that such motions can be effective tools and discuss the reasons why a litigator might want to file such a motion.
As translated from its Latin origins, the term in limine means “at the threshold” or “at the outset.” Although motions in limine are not expressly sanctioned by the Federal Rules of Evidence, courts and litigants rely heavily on them to clarify and address issues of admissibility prior to trial. The authority for filing motions in limine is found in Rules 104(a) and 103(c) of the Federal Rules, which authorize courts to control pretrial proceedings and resolve preliminary questions or evidence. Motions in limine are intended to secure advance rulings by trial judges on questions of evidence admissibility.
Despite the fact that motions in limine are most frequently used to seek the exclusion of evidence at trial, treatises and court decisions commonly recognize that such motions can be used in an offensive manner as well. For example, in Federal Practice and Procedure, Wright and Graham state that motions in limine may be used offensively by litigants to procure a definitive ruling on the admissibility of evidence at the outset of trial. Likewise, the Federal Rules of Evidence Manual explains that “a party who is concerned about the admissibility of evidence it intends to proffer may find it advisable to seek an advance ruling” through an offensive motion in limine. Finally, in a general discussion on motions in limine, the Federal Evidence Practice Guide explains that they may be used defensively to preclude anticipated evidence, “or they may be used offensively to prequalify favorable evidence.”
Many federal and state court decisions document a general acceptance of offensive motions in limine. Although these decisions do not expressly analyze the appropriateness of filing offensive motions in limine, the willingness of the courts to grant offensive motions in limine with no additional comment or admonition certainly supports the position that such motions are proper. In United States v. Chan, the government sought a motion in limine seeking advanced permission to introduce plea allocations of three of the defendants’ co-conspirators. In granting the motion, the Chan court explained, “The purpose of a motion in limine is to allow the trial court to rule in advance of a trial on the admissibility and relevance of certain forecasted evidence.” Given the implicit acceptance of the practice of filing offensive motions in limine, the Chan decision is not surprising. It is also important to remember the U.S. Supreme Court has noted that “although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.”
A popular rephrasing of Ockham’s razor is that “the simplest explanation is the best one.” Adopting that principle, the obvious reason for filing an offensive motion in limine is to get an advanced ruling that an item of evidence is admissible. There flows from this simple reason many ancillary benefits, which counsel should consider during the pretrial phase of litigation.
If there is an item of evidence that is crucial, if not dispositive, in a case, why not seek an advanced ruling from the court on the admissibility of that evidence in an effort to drive settlement discussions? Litigators routinely file motions for summary judgment for such a purpose. Clarity on important evidentiary issues to parties allows a great ability to evaluate the strength and weakness of their cases. In our experience, such clarity reduces posturing during settlement discussions and leads to honest, frank discussions. It is axiomatic that when parties are speaking honestly and frankly, the possibility arises for parties to resolve their differences and reach a consensus. Filing offensive motions in limine can help parties get to this point and settle cases.
If a certain item of evidence is important to a litigator’s case, the litigator most likely will want to discuss that item during opening statements. The same is true for important summary charts. If an offense motion in limine has been filed and ruled on favorably by the court, then there is no danger in discussing either the evidence or chart during opening statements. On the other hand, if a litigator discusses evidence during the litigator’s opening statement and the court later rules that the evidence is inadmissible, the jury is likely to remember the overstatement and lose trust in what the litigator says. Moreover, if the jury has forgotten about the promised evidence, a litigator can rest assured that his or her opponent will point out to the jury that the promised evidence was never presented. Filing an offensive motion in limine can take the guess work out of opening statements.
Judges are busy. During trial, a judge’s other responsibilities do not end. Judges also can get distracted during trial, especially if the trial is a long one. If an item of evidence is critical to a litigant’s case, why leave it to chance that a judge will be focused on any evidentiary nuance necessary to evaluate the admissibility of the evidence at the time a litigant moves that evidence? If a litigator files an offensive motion in limine, the litigator is much more likely to get an accurate ruling from the court. Filing an offensive motion in limine will ensure that the matter has been adequately briefed and, hopefully, give the court adequate time to consider the evidentiary issue.
The following is a practice example of why a litigant may want to file an offensive motionin limine to ensure an accurate ruling from the court. During the impeachment trial of former Arizona Governor Evan Mecham, the special prosecutor filed with the Court of Impeachment a motion in limine concerning the ability to impeach Governor Mecham with specific instances in which the governor, a former car dealer, had been accused of fraud under Rule 608(b) of the Arizona Rules of Evidence. After considering the motion, the chief justice of the Arizona Supreme Court, sitting as the presiding officer of the Court of Impeachment, determined that Governor Mecham could be impeached only if he testified that no one had ever accused him of being dishonest. When the time came for Governor Mecham to be cross-examined, he surprisingly testified that no one had ever accused him of being dishonest. Because the special prosecutor had filed a motion in limine on the issue, the chief justice was able to consider the evidentiary issues regarding the proposed impeachment prior to the moment in trial when the special prosecutor wanted to use the evidence to impeach Governor Mecham. The chief justice allowed the cross-examination, and it was effective.
Another reason to file offensive motions in limine is to help build confidence in the judge that a litigator understands the rules of evidence and knows how to properly move an exhibit into evidence. This is especially true when a litigator has little or no experience in front of a particular judge. By filing well-taken offensive motions in limine prior to trial, a litigator can demonstrate to the judge that the judge can have confidence that the litigator knows the Rules of Evidence and speaks from a position of substance when addressing the court on evidentiary issues. In our experience, judges look for litigators to help them make the proper evidentiary rulings and, during the course of a trial, judges rely on litigators who appear to know what they are talking about.
So what happened in our case in which we asked the court to rule that we could impeach the plaintiff with her prior conviction for perjury? There was a hearing on our motion, and the judge stated that, although he wanted to take some more evidence on the matter, he was inclined to allow us to impeach the plaintiff with her prior conviction. Shortly thereafter, the plaintiff, who had resisted all earlier settlement discussions, suggested that we mediate the matter. At the conclusion of the mediation, the case was settled in a way that was very advantageous for our client.
We hope that after litigators read this article, they will remember that motions in limine can be used both defensively and offensively, and that there are several good reasons to consider filing offensive motions in limine.
 See Ariz. R. Evid. 609(b).
 See Federal Evidence Practice Guide § 3.04 (Joseph M. McLaughlin ed., 1996).
 See Black’s Law Dictionary 791 (7th ed. 1999); 75 Am. Jur. 2d Trials § 94, at 306 (1991).
 See 21 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5037.10 (2005).
 See id.
 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 34-35 (7th ed. 1998).
 Federal Evidence Practice Guide, supra note 2, at 3-59-60.
 See Gibbs v. Frank, 387 F.3d 268, 271 (3d Cir. 2004) (“[T]he Commonwealth movedin limine for permission to call Sadoff as a witness to testify about the inculpatory statements Gibbs made to him. The court granted the Commonwealth’s motion . . .”); United States v. Vangates, 287 F.3d 1315, 1318 (11th Cir. 2002) (“Prior to trial, the Government filed a motion in limine seeking permission to use the testimony and exhibits from the civil trial . . . [T]he magistrate judge issued a Memorandum and Order granting in part the motion in limine.”); United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993) (“Before trial, the government moved in limine for permission to introduce testimony . . . [T]he district court granted the motion.”).
 184 F. Supp. 2d 337, 340 (S.D.N.Y. 2002) (the government’s motion was granted).
 See Luce v. United States, 469 U.S. 38, 41 n.4 (1984).
 Ockham’s razor is a principle attributed to the fourteenth-century English logician and Franciscan friar William of Ockham. His principle, sometime referred to as the law of succinctness, was that “entities should not be multiplied beyond necessity.”
 One of the authors of this article, Mr. Petti, was a law clerk to Chief Justice Frank X. Gordon Jr. when the chief justice served as the presiding officer of the Court of Impeachment of Governor Evan Mecham in 1988. The governor was convicted by the Arizona Senate and removed from office.
By Frederick R. Petti and Danny Adelman
On March 29, 1988, Arizona Attorney Robert L’Ecuyer was being cross-examined by Paul Eckstein, an attorney for the Board of Managers, the five members of the Arizona House of Representatives responsible for prosecuting the articles of impeachment filed against then Governor Evan Mecham in the Arizona Senate. On direct examination, L’Ecuyer had offered his opinion that it was proper for Mecham to “loan” $80,000 from the Governor’s protocol fund to Mecham’s struggling Pontiac dealership because, among other reasons, Mecham got a higher rate of interest than the protocol fund was otherwise realizing. In his cross-examination, Eckstein was asking L’Ecuyer about a bar disciplinary proceeding that led to L’Ecuyer’s voluntary retirement from the State Bar of Arizona. L’Ecuyer had “borrowed” some $5,500 from his trust fund, and his defense was that he was paying a higher rate of interest than the trust fund could otherwise obtain. Not wanting to answer Eckstein’s questions, L’Ecuyer attempted to read a prepared statement into the record.
Before L’Ecuyer had a chance to read his statement, Arizona Supreme Court Chief Justice Frank Gordon, sitting as the Presiding Officer of the Court of Impeachment, turned to L’Ecuyer, and pointing his gavel, said in a stern tone, “Mr. L’Ecuyer, you’re an attorney. You know that you’re here to answer questions. Now, Mr. Leonard [Jerris Leonard, Mecham’s lawyer] will straighten up, I’m sure, anything that your answers might bring misconceptions on, but you have no right to make a statement from the witness stand. You’re just to answer the questions.” A properly contrite L’Ecuyer responded by saying, “You’re correct in admonishing me, Your Honor. I’m sorry.”
As luck would have it, a photographer for the Arizona Republic was in position to capture a photograph of Chief Justice Gordon at the moment when he was pointing his gavel at and admonishing L’Ecuyer, and that photo graced the front page of the Arizona Republic the following morning. For many Arizonans, that photograph provided a visual record of the man who handled the Mecham impeachment trial with dignity and grace, and made sure that the trial did not become an event that brought shame on Arizona. What Arizonans do not know is that seconds before the photograph was taken, Justice Gordon popped a hard candy into his mouth and he hated the photograph because he could see the lump the candy made in his cheek. We know about Justice Gordon’s reaction to the photograph because we had the great fortune to serve as his law clerks during the Mecham impeachment trial.
The Arizona Attorney has asked us to write this article to share our memories of the impeachment trial. It is hard to believe that twenty years have passed since April 4, 1988, when the Arizona Senate voted to sustain two of the three Articles of Impeachment, thereby removing Mecham from the position of Governor of Arizona. But they have, and we have decided that this article should be a tribute to the man who, according to all of the thirty state senators who sat as the Court of Impeachment, conducted the proceedings with “dignity, patience, dispatch and most importantly, absolute fairness” – our old boss and friend, Frank X. Gordon, Jr.
Justice Gordon was born in Chicago, Illinois, and moved to Kingman, Arizona with his parents, Frank X. Gordon and Lucile G. Gordon, when he was only six months old. The year was 1929, and Justice Gordon’s father moved his family to Arizona so he could start a new and, at the time, unique business, the sale of title insurance on real property. Justice Gordon’s father was an attorney, and he took and passed the Arizona bar in 1932.
Justice Gordon often told us about his childhood in Kingman. According to Justice Gordon, Kingman was a safe town in those days and he and his friends wandered the streets of Kingman freely and knew everyone in town. In fact, on March 29, 1939 (exactly forty-nine years earlier to the day when he admonished L’Ecuyer), Justice Gordon and a friend were standing on the street in Kingman when a big car pulled up and the man inside asked the boys where there was a church in town. After providing directions, Justice Gordon and his friend decided to follow the car to the church. They went inside and watched as Clark Gable married Carole Lumbard, in an otherwise private ceremony.
He also told us fondly about his horse Jim and his dog Bobby. When he was only 10 years old, Justice Gordon would ride Jim into the hills and he and Bobby would camp out overnight. He took his .22 rifle and he would kill a rabbit, cook it over a fire and eat it with the watercress he harvested from Beal Springs. Justice Gordon often said that nothing teaches a boy responsibility like having to fend for himself, while at the same time care for a large animal.
After graduating from Kingman High School, Justice Gordon attended Stanford University, where he once dated another Arizonan in his class, Sandra Day. Of course, Sandra Day married John O’Connor and was later appointed to the United States Supreme Court by President Ronald Regan. Many years later at a lawyers meeting in Santa Fe, John O’Connor introduced Justice Gordon to his wife, and Justice Gordon said, “Glad to meet you.” According to Justice Gordon, Justice O’Connor said, “What do you mean? Glad to meet me Frank Gordon? You dated me once at Stanford!”
After graduating from Stanford, he then attended the University of Arizona College of Law, graduating in 1954. He then served as Kingman City Attorney from 1954-1956, and then entered private practice in Kingman until 1962, when Governor Paul Fannin appointed him to the Mohave County Superior Court. Governor Raul Castro appointed Justice Gordon to the Arizona Supreme Court in 1975, and he was elected by members of the Court to be Chief Justice in 1987. He served in the position until he retired from the Court in 1992.
Mecham was elected Governor on November 4, 1986, having won the election with a 40% plurality, while Democrat Carolyn Warner and Independent Bill Schultz received 34% and 26% respectively. Mecham was sworn in as Governor on January 6, 1987, and almost immediately thereafter rumors of impeachment began to circulate. Those rumors took on added significance with the allegation that Mecham had violated Arizona’s campaign finance disclosure laws by failing to disclose a loan he received from an attorney, Barry Wolfson. Impeachment ceased being just a rumor when in October 1987 the Speaker of the Arizona House of Representatives, Joe Lane, hired William P. French, a former Arizona Superior Court Judge to investigate whether there were sufficient grounds to impeach Mecham.
On January 15, 1988, French delivered a report recommending that Mecham be impeached. For the next two weeks a Special Committee from the House held hearings to determine whether French’s allegations were sufficient to support a vote of impeachment. On February 5, 1988, the House voted 46 to 14 to impeach Mecham, finding in Article I of the Articles of Impeachment that Mecham obstructed justice by impeding an investigation of a death threat by a member of Mecham’s staff, in Article II, that Mecham failed to disclose a $350,000 loan to his campaign from Wolfson, and in Article III, that Mecham improperly lent $80,000 from the Governor’s protocol fund to his own automobile dealership.
We first raised the possibility of an impeachment trial with Justice Gordon in early September. We were walking back from lunch at the Department of Transportation cafeteria (the Judge liked the tuna fish salad served there) and Danny told Justice Gordon that we believed that we were going to get to clerk for him during an impeachment trial. The Judge laughed and told us that there was no way that the Republican legislature would vote to impeach a Republican Governor, not even one as controversial as Mecham.
The Judge changed his tune after French was hired, and he poked his head in our office one day and asked us to research how an impeachment trial would be held in Arizona. The Judge told us to spend only a small part of our time on the assignment so we could continue to perform our court duties. We soon discovered, however, that even though there had been two such trials in Arizona, including a 1964 trial of two Corporation Commissioners at which the Special Prosecutor was William Rehnquist, that Arizona’s Constitution and statutes provided very little guidance, and that the task of establishing a court of impeachment was enormous.
In spite of what we had discovered, Justice Gordon was reluctant to have us start researching impeachment in earnest. One day, the Judge would ask us to hold off researching until it was more certain that impeachment was imminent. The next day, he would walk into our office and ask us about the very topic he had just told us to set aside. After becoming tired of returning books to the library – only to retrieve them the following day – we eventually ignored the Judge and devoted ourselves full time to learning about impeachment.
It turned out that it was a good thing that we had ignored Justice Gordon. On January 15, 1988, the day French delivered his report to the House of Representatives, the Judge met with the Senate leadership and their legal staff. At that meeting, much to the Judge’s surprises and amazement, he discovered that the Senators had been even more reluctant than he to research what impeachment was all about, and how the process worked.
Justice Gordon showed his true genius during the Mecham impeachment trial when he realized that the Senate leadership was reluctant to prepare for the impending impeachment trial, for both practical (the Senate needed to finish its legislative work) and political (Mecham posed many problems for the Republican leadership) reasons, and Justice Gordon offered his assistance in helping the Senate to prepare for the impeachment trial. He met with both Carl Kunasek, the Republican President of the Senate, and Alan Stephens, the Democratic Minority Leader, to discuss how best to draft the rules and procedures for the impeachment trial. As a result of their discussions, Fred was assigned to work with the Republican caucus and staff lawyers and Danny was assigned to work with the Democratic caucus and staff lawyers. By meeting with the Senate leadership and developing a working rapport with both parties, Justice Gordon was able to “imbed” his clerks into the drafting process in both caucuses, and guaranteeing that he had a voice in making sure that whatever rules and procedures were established that they were fair and impartial.
For us, the experience was both exhilarating and enlightening. We were not prepared for the Senators’ lack of understanding of fundamental due process rights or the anger that they felt toward Mecham, not for his actions per se, but for putting them in the uncomfortable position of having to serve as judges in an impeachment trial. We were also unprepared for the strange and peculiar personalities exhibited by some of the Senators. Fred soon discovered that one of the Republican Senators believed that he was a “preamble citizen,” meaning that he was a citizen covered by the phrase “we the people” in the Declaration of Independence and, therefore, he could elect to ignore certain laws that “non-preamble citizens” (anybody who wasn’t White, Anglo-Saxon and Protestant) must obey. For example, registering his automobile or getting a driver’s license. Danny, learned that one of the Senators in the Democratic caucus regularly carried a hand gun and wanted permission from the Department of Public Safety to carry a concealed weapon onto the Senate floor during the impeachment trial. Fortunately for all involved, Senator Stephens convinced his colleague that it was not a good idea to carry a weapon during the impeachment proceedings.
In spite of the many unusual thoughts or requests that emerge from the caucuses, Senators Kunasek and Stephens managed to keep their respective parties focused on the task at hand. Moreover, both Senators Kunasek and Stephens deferred to Justice Gordon on issues of fairness and impartiality. As a result, what we believe to be a model set of rules of impeachment, were drafted by the Senate legal staff with our assistance.
On February 11, 1998, the Senate convened as a Court of Impeachment for the first time. During that meeting, the Rules of Impeachment were adopted. It was also the first time that Justice Gordon presided over the Court of Impeachment, and although he set the tone that night that the impeachment proceedings would be conducted in a dignified and fair manner, it was an extremely stressful evening. After the Court of Impeachment recessed for the day, we joined Justice Gordon along with Senator Kunasek and Bob Usdane, the Republican Majority Leader, in Senator Kunasek’s conference room, the room Senator Kunasek had turned over to Justice Gordon to serve as our chambers during the impeachment trial. Justice Gordon remarked that he sure could use a drink, and Senator Kunasek soon produced a bottle of Scotch. Although Scotch was Justice Gordon’s drink of choice, neither of us had ever tried Scotch. After two glasses, neither of us was in any position to drive home. We returned to our office at the Supreme Court and waited a couple hours before getting behind a wheel of a car. Justice Gordon had been supplied a Department of Public Safety driver because of death threats he had received in connection with the Mecham matter, so he got to go home after the impromptu party broke up in Senator Kunasek’s office.
On February 29, 1988, the Senate began hearing the first of twenty-three days of testimony, testimony carried live on both television and radio. In his wonderful law review article on the Mecham impeachment, University of Arizona law professor Robert Glennon wrote the following concerning Justice Gordon:
Gordon set the tone of the proceedings. Civility, decorum, and impartiality characterized his performance as presiding officer. A danger in any impeachment trial, and this one in particular, is that the impeachment jury might appear bias or politically motivated. Gordon’s display of judicial temperament created the unmistakable appearance of neutrality. Behind the scenes, Gordon told both lawyers and legislators that they were on display, as representatives of their professions, and they should conduct themselves accordingly.
We could not have said it better.
During those twenty-three days of testimony, there were many interesting moments and many interesting stories to tell. For brevity’s sake, we elected to tell two. The first involves Paul Eckstein’s cross-examination of Governor Mecham. The Governor first took the stand on March 17, 1988. At the start of the lunch break, Tim Delaney, then an associate at Brown and Bain, handed Fred a motion in limine regarding 404(b) evidence that Eckstein wished to use during his cross-examination of Mecham. The evidence consisted of a civil conviction of Mecham for fraud. During the lunch break, Justice Gordon asked Danny (still the smartest of the two of us) to read the Arizona 404(b) case on point. We then discussed the case, and Justice Gordon concluded that he would only permit Eckstein to use the evidence if Mecham testified that he had never been found guilty of lying, cheating or defrauding anyone.
After lunch, Eckstein continued his cross-examination of Governor Mecham. In response to a question regarding a 1981 lawsuit filed against the Governor, Mecham testified that “nobody has ever found me guilty of lying or cheating or defrauding anyone.” The Governor had said the exact words that Justice Gordon said Mecham needed to utter before Justice Gordon would permit Eckstein to use his evidence. As soon as those words left his mouth, Justice Gordon turned his chair away from the Court of Impeachment so that only we could see him. He then looked at us with a startled expression and mouthed the words, “can you believe it?” Justice Gordon then allowed Eckstein to impeachment Mecham with a judgment for fraud in which the jury awarded punitive damages against the Governor.
The final story involves a request that Justice Gordon made of Fred right before the Senators voted on the first impeachment charge. In order to help facilitate the trial, the Senate had printed up the copies of the Rules of Impeachment in a pocket size booklet. In the days leading up to the vote on the Articles of Impeachment, some of the Senators began asking all involved in the impeachment trial to sign their copy of the rules. By April 4, everyone, including Justice Gordon, was participating in the signing ritual.
As he was preparing to take the bench and call for the vote on the first Article of Impeachment, Justice Gordon handed Fred his copy of the rules booklet and asked him to get Governor Mecham to sign it. An incredulous Fred asked the Judge if he was kidding. Justice Gordon assured Fred that he was not and that Fred needed to go get that booklet signed. Fred then sheepishly approached Governor Mecham and asked if he would sign Justice Gordon’s rule booklet. The Governor gave Fred a blank stare, but he took the booklet and signed it. At that moment, Fred reached into his pocket, pulled out his rule booklet, and said to the Governor, “and would you sign one for Justice Gordon’s grandson?” The Governor obliged Fred’s request.
After he received his rule book back from Fred, Justice Gordon took the bench and the Senators voted to sustain Article 1 of the Articles of Impeachment by a vote of 21 to 9 and to sustain Article 3 by a vote of 26 to 4. As a result of Fred’s white lie, he has the last signature of Governor Mecham while he was still the Governor of Arizona.
Over the years, many people have asked us how Justice Gordon would have voted on the question of Mecham’s impeachment. We don’t know because he never told us. We, however, would have voted to acquit Mecham on the First Article of Impeachment, the allegation that he had helped cover up a death threat. To borrow a phrase from Shakespeare, we thought that Article was “full of sound and fury, signifying nothing.” However, we believe that Governor Mecham did inappropriately take state money from his protocol fund and loaned it to his car dealership. Accordingly, we would have voted to sustain the Third Article of Impeachment.
It was our singular honor and good fortune to clerk for Justice Gordon during the Mecham impeachment. We learned much during the impeachment trial and much during our year as clerks for Justice Gordon. The most important lesson he taught us was that good lawyers always turn square corners and, by doing so, bring honor to our noble profession. Like the rest of Arizona, we were blessed that Frank X. Gordon, Jr. was the Chief Justice of the Arizona Supreme Court when the Arizona Senate sat as the Court of Impeachment in the matter of the impeachment of Evan Mecham, Governor of the State of Arizona.
 The authors served as Justice Gordon’s law clerks during the 1987/1988 term of the Arizona Supreme Court, and both now practice in the Phoenix area. Fred Petti is a partner at the firm of Rake, Petti & Collins, and Danny Adelman is a partner at the firm of Adelman German.
 See Jerome Glennon, Impeachment: Lessons From the Mecham Experience,” 30 Arizona Law Review 372, 390 (1988).
By James J. Belanger, Frederick R. Petti and James Berchtold
On Oct. 3, 2000, United States District Court Judge Roger G. Strand awarded a victorious defendant in a criminal case $150,000 in attorney’s fees and $50,480.58 in litigation costs. The ruling marks the first time that the Hyde Amendment, a 1997 law designed to allow defendants to seek financial redress when they have been subjected to vexatious, frivolous or bad faith federal criminal prosecutions, has been applied in the District of Arizona. The payment of the award ordered by Judge Strand must come out of the budget of either the United States Attorney for the District of Arizona or the United States Department of Justice.
To date, no Nevada state court or federal court sitting in Nevada has addressed an award of attorney’s fees and costs under the Hyde Amendment. However, in the last two years alone, the Ninth Circuit Court of Appeals has addressed appeals relating to the Hyde Amendment from the federal courts for the District of Montana, Northern District of California, Central District of California, and the District of Hawaii. The Hyde Amendment will likely be used with increasing frequency as a mechanism to recover attorney’s fees and costs in criminal cases.
This Article is divided into four sections. First, it examines the Hyde Amendment. It next reviews the facts of the case that gave rise to Judge Strand’s order. It then discusses the order itself. Finally, it suggests why and how states, including Nevada, should enact their own version of the Hyde Amendment.
During the 1997 legislative session, Congressman John Murtha (D-PA) introduced an amendment to an appropriations bill that allowed members of Congress and their staffs to seek reimbursement for legal expenses associated with the successful defenses to a federal criminal prosecution. Murtha’s proposal was in response to the legal costs incurred by another member of Congress, Representative Joseph McDade (R-PA), who was acquitted in 1996 after an eight-year defense of bribery and racketeering charges. Because it was limited to members of Congress and their staff, Representative Henry Hyde (R-IL), Chairman of the House Judiciary Committee, thought that Murtha’s proposal was too narrow. Hyde offered his own appropriations bill amendment, which was not limited in its coverage to members of Congress and their staff, but instead extended to all federal criminal defendants.
The Hyde Amendment, which was attached as a rider to the appropriations bill for the Department of Commerce, Justice, and State, provides, in pertinent part, that in certain limited circumstances, vindicated criminal defendants can recover attorney’s fees against the government:
The court, in any criminal case (other than a case in which the defendant is represented by . . . [appointed] counsel . . .) pending on or after the date of the enactment of this Act, may award to a prevailing party, other than the United States, a reasonable attorney’s fee and other litigation expenses, where the court finds that the [government’s] position . . . was vexatious, frivolous, or in bad faith, unless . . . [it] 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 18, United States Code [EAJA].
18 U.S.C.§ 3006(A)
The purpose of the Hyde Amendment is to protect innocent individuals from the risk of financial ruin when forced to defend against frivolous or bad faith prosecutions as well as to deter the government from prosecuting such cases. To prevail on an application for attorney’s fees and costs under the Hyde Amendment, an applicant must prove that: (1) the applicant’s case was pending on or after Nov. 26, 1997 (the enactment date of the Hyde Amendment); (2) the case was a criminal case; (3) the applicant was not represented by appointed counsel; (4) the applicant was the prevailing party; (5) the prosecution was vexatious, frivolous, or in bad faith; (6) the attorney’s fees were reasonable; and (7) there are no special circumstances that would make such an award unjust.
Under the Hyde Amendment’s civil counterpart, the Equal Access to Justice Act (the “EAJA”), the burden of proof is on the government to show its pursuit of the suit was substantially justified. The Hyde Amendment, however, rejects the EAJA’s approach to the burden of proof and places the burden on the applicant. Moreover, by using the terms “vexatious,” “frivolous,” and “in bad faith,” the Hyde Amendment specifically requires that applicants show more than that the government’s position was not substantially justified.
The Hyde Amendment does not define the terms “vexatious,” “frivolous,” or “in bad faith.” As a starting point, therefore, courts have turned to Black’s Law Dictionary to define these terms. According to Black’s, “vexatious” means “without reasonable or probable cause or excuse.” A “frivolous action” is one that is “groundless . . . with little prospect of success; often brought to embarrass or annoy the defendant.” And “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.” this standard is not easily met, nor is it intended to be.
It is not enough, for example, for an applicant merely to show that he has prevailed at the pre-trial, trial, or appellate stages of the prosecution. Otherwise, almost every reversal would result in an award of attorney’s fees. Rather, an applicant “must show that the government’s position underlying the prosecution amounts to prosecutorial misconduct – a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact to be frivolous.” Needless to say, such a standard places “a daunting obstacle before defendants who seek attorney’s fees and costs from the government.” Once such an award is made, however, it is likely to stick.
Because the district court hears the evidence from the beginning and is in a better position than the court of appeals to distinguish between a good faith prosecution and one that is vexatious, frivolous, or in bad faith, the district court’s findings will not be reversed unless there is clear evidence that the court committed a clear error of judgment.
Thomas De Jong was a dairy farmer who owned a large farm known as Rainbow Valley Dairy. Beginning in 1989, De Jong participated in a United States Department of Agriculture, Soil Conservation Services program allowing cost sharing for the construction of a wastewater facility for the dairy farm. The program designed a wastewater treatment facility for De Jong. The facility, which was completed in 1992, consisted of a series of waste storage ponds. The design of the ponds, however, soon proved to be inadequate, and De Jong spent over $600,000 to correct the problems.
Embodying the adage that no good deed goes unpunished, De Jong was indicted by a federal Grand Jury for violations of the Clean Water Act [33 U.S.C. § 1251 et seq.]. In essence, the indictment alleged that on three separate occasions De Jong improperly discharged wastewater from his storage ponds into an unnamed wash on the northeast portion of his property. The source of the discharges was a pipe located within the berm of one of the storage ponds. The Government argued that the pipe was never part of the recommended design and was unnecessary. De Jong maintained that the pipe was necessary and was integral to the storage pond’s safe operation.
Trial in the De Jong matter began on July 14, 1999, and lasted six days. The jury found De Jong not guilty on all charges.
After his acquittal, De Jong moved for his attorney’s fees and costs pursuant to the Hyde Amendment. He argued that the Government failed to properly investigate the case and that the prosecution was vexatious and in bad faith. De Jong claimed that prior to the prosecution the Government had in its possession information that indicated there were pre-existing design flaws in the wastewater treatment facility not attributable to De Jong, and that his remediation, including the addition of an overflow pipe, were not only in compliance with established engineering principles, but also with published Government standards. De Jong also claimed that the prosecution was actually the result of some ill will between De Jong and an employee with the Bureau of Land Management.
In ruling for De Jong, the Court noted that an applicant seeking Hyde Amendment fees and costs must establish that binding precedent foreclosed the Government’s position or was so obviously wrong as to be frivolous. The Court found that De Jong had met this standard and that the Government’s case was frivolous and was not substantially justified. The Court concluded that the Government knew that the design of the wastewater treatment ponds was inadequate through no fault of De Jong’s and that De Jong had spent in excess of $600,000 of his own money to correct the design flaws. Additionally, the Court concluded that, contrary to the Government’s position at trial, the overflow pipe that was the source of the discharge appeared to be mandated by proper engineering design and was certainly not evidence of criminal intent to illegally discharge wastewater.
The Court next turned to the question of whether the Government’s prosecution was vexatious or in bad faith. The Court noted that under the Hyde Amendment, an applicant must offer specific, concrete allegations that lead to the conclusion that a prosecution is vexatious or in bad faith. Finding the De Jong had met this burden, the Court again noted that the Government knew (1) that the design of the wastewater treatment ponds was seriously flawed, (2) that De Jong had spent a large amount of personal funds to correct the design, and (3) that the Government had unreasonably interpreted relevant case law regarding the legality of certain limited discharges.
Adding insult to injury, the Court also found that De Jong had established that the BLM employee in question did have a personal motive for seeing a criminal penalty imposed on De Jong.
Finally, the Court remarked that De Jong had not only informed the Government of the merits of his legal position before trial, he had also expressed a willingness to come to some “reasonable” resolution of the dispute. With all this in mind, the Court concluded that Government’s position in the case was in bad faith and that prosecutorial zeal had overridden prosecutorial common sense. Hence, the award of attorney’s fees and costs under the Hyde Amendment.
The Government appealed from the district court’s award of attorney’s fees and costs. The Ninth Circuit affirmed, finding that the district court did not abuse its discretion in granting De Jong attorney fees. The Court of Appeals stated that the Government’s case was weak and that De Jong had established that the prosecution was in bad faith. In particular, the Court noted that the BLM agent in the case was motivated by personal animus, and that the Government knew that there were serious design flaws in its wastewater treatment facility before prosecuting De Jong. Nevertheless, the Court found that the Government improperly proceeded with the prosecution.
Although De Jong was a rare case, it highlights the need for a remedy when government prosecutors grossly overreach, in both federal and state court.
Some states provide for a defendant’s recovery of fees and costs, in limited circumstances, in the civil context. In Nevada, for example, a vindicated civil defendant can recover attorney’s fees and costs under the Nevada False Claims Act, which prohibits the presentation of a false claim for money, property, or services to the State of Nevada or any of its political subdivisions. Under the False Claims Act, a court may award reasonable expenses and attorney’s fees to a prevailing defendant if it finds that “the action was clearly frivolous or vexatious or brought solely for harassment.”
In most state courts, however, there is typically no ability for a vindicated criminal defendant to seek attorney’s fees and costs after a malicious prosecution. Perhaps this is because legislators believe such a provision would impair the prosecutorial function. This fear, however, as the federal experience has shown, is misguided.
During the debate on his amendment, Chairman Hyde stated that the legislation was aimed at those rare situations in which the prosecution was “not just wrong,” but “willfully wrong.” Accordingly, defendants like De Jong, who successfully defend against maliciously conceived prosecutions and who suffer serious damage to their wallets and, frequently, to their reputations, have some redress. In such situations, Chairman Hyde wanted to return some measure of justice to defendants, and he concluded that this could be accomplished by extending to defendants in federal criminal cases the same right to seek recovery of attorney’s fees and costs that civil litigants have under the EAJA, albeit with heightened legal standards and more demanding burdens of proof.
Defendants in Nevada Criminal cases ought to be afforded this same protection. Nevada currently has no mechanism for compensating a criminal defendant who has been forced to defend him or herself in a groundless action. The Nevada Legislature should enact a similar provision to allow vindicated criminal defendants the opportunity to recover attorney’s fees in those rare cases when the state has subjected an individual to vexatious, frivolous, or bad faith prosecutions. It is fundamentally unfair to force a wrongfully accused individual to bear the sometimes staggering costs of a maliciously conceived prosecution.
James J. Belanger, partner, and Frederick R. Petti, Of Counsel, practice White Collar Criminal Defense and Response to Government Civil and Regulatory Investigations at Lewis and Roca, LLP. James E. Berchtold, associate, practices primarily in the areas of Employment, Civil Rights, and Commercial Litigation at Lewis and Roca.
 United States v. De Jong, CR-96-413-PHX-RGS (Order of September 30, 2000, lodged on October 3, 2000).
 Title 18, United States Code, Section 3006(A).
 United States v. Sherburne, 249 F.3d 1121 (9th Cir. 2001) (appeal from District of Montana); United States v. Tucor Int’l, Inc., 238 F.3d 1171 (9th Cir. 2001) (appeal from North District of California); United States v. St. Paul, 243 F.3d 552 (9th Cir. 2000) (appeal from Central District of California); United States v. Lindberg, 220 F.3d 1120 (9th Cit. 2000) (appeal from District of Hawaii).
 See Elkan Abramowiz & Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Curbing Wrongful Prosecution, 22 Champion, Mar. 1998, at 23.
 United States v. Pritt, 77 F.Supp. 2d 743, 747 (S.D. West Virginia 1999); United States v. Holland, 34 F.Supp. 2d 346, 358-59 (E.D. Va. 1999).
 Meinhold v. United States Dep’t of Defense, 123 F.3d 1275, 1277 (9th Cir. 1977).
 Lindberg, 220 F.3d at 1124.
 Id. at 1124-25; United States v. Truesdale, 211 F.3d 898, 907-08 (5th Cir. 2000);United States v. Gilbert, 198 F.3d 1293, 1302 (11th Cir. 1999).
 Gilbert, 198 F.3d at 1298-99; In re 1997 Grand Jury, 215 F.3d 430, 436 (4th Cir. 2000); United States v. Reyes, 16 F. Supp. 2d 759, 761 (S.D. Texas 1998).
 Black’s Law Dictionary 1559 (7th ed. 1999).
 Id. at 668 (6th ed. 1990).
 Id at 139.
 Lindberg, 220 F.3d at 1125.
 Gilbert, 198 F.3d at 1298-99; United States v. Troisi, 13 F.Supp.2d 595, 597 (N.D. W. Va. 1998); Pritt, 77 F. Supp. 2d at 748; United States v. Peterson, 71 F. Supp.2d 695, 698 (S.D. Texas 1999).
 Gilbert, 198 F.2d at 1302-03.
 Lindberg, 220 F.3d at 1124.
 The facts and the Court’s findings set forth in this article are taken from Judge Strand’s September 30, 2000, order.
 United States v. De Jong, 2001 U.S. App. Lexis 25015 (memorandum) (9th Cir. 2001).
 Nev. Rev. Stat. § 357.010-.250.
 Id. at § 357.180(2).
 143 Cong.Rec. H7786-04 at H7791.
 143 Cong.Rec. H7786-04 at 7793.
THE RETURN OF THE TRIAL IN FEDERAL WHITE COLLAR CRIMINAL CASES
by Danny S. Ashby and Frederick R. Petti
Before the Supreme Court’s decision in United States v. Booker, clients facing federal criminal charges who insisted on trying their cases faced the specter on conviction of a mandatory sentence within the applicable range of the Federal Sentencing Guidelines. The criminal trial was an arena that clients and defense attorneys were loath to enter unless they could be assured of winning a favorable verdict.
In light of Booker and its progeny, though, federal courts have been increasingly willing to impose sentences below the Guidelines range based on the facts and circumstances of a particular case or even on fundamental policy disagreements with the Guidelines. In addition, in 2010, Attorney General Eric Holder issued a memorandum adjusting departmental policies to better comport with the current state of sentencing required by the Supreme Court and recent practices of sentencing courts. In view of these developments, defense attorneys and their clients may find themselves more willing to go to trial for the simple reason that advocacy, not the Guidelines, may be the touchstone for determining the final sentence in the event a guilty verdict is returned.
Booker and Its Progeny
For twenty-seven years, federal courts applied the Guidelines as if the Guidelines had the force of law, permitting departures only in specified circumstances. Then, in 2005, the Supreme Court handed down its Booker opinion, in which it held that the Sentencing Guidelines were not mandatory, but merely one of several factors listed in 18 U.S.C. § 3553(a) that sentencing judges must consider when dispensing sentences. Thus, “advisory” became the word of the day. However, “advisory” has taken time and additional involvement from the Supreme Court to infiltrate federal criminal court practice. Despite the fundamental shift in the Guidelines’ integrity, courts initially continued to apply the Guidelines as they had always done. Yet, participants in the federal criminal system may soon see a more dramatic shift in the sentencing landscape in light of post-Booker Supreme Court opinions.
On December 10, 2007, the Supreme Court issued two significant decisions signaling district courts’ freedom to vary from the Guidelines. In Gall v. United States, the Supreme Court held that the sentencing judge’s rejection of the Guideline range of 30 to 37 months imprisonment in favor of probation was reasonable. While many reviewing courts had required an “extraordinary justification” to warrant a substantial variance from the Guideline range, the Supreme Court held this heightened standard of review of sentences outside the Guidelines range inconsistent with the applicable abuse-of-discretion standard. The sentencing court was not required to show how its case was unusual or outside the “heartland” of what the Commission contemplated in composing the Guidelines. It simply needed to explain its grounds for varying from the Guidelines range in order to permit meaningful appellate review.
On the same day the Supreme Court decided Gall, the Court in Kimbrough v. United States upheld the district court’s imposition of a 180 month prison sentence, though the applicable Guideline range was 228 to 270 months. The Supreme Court explained that the district court’s sentence was entirely reasonable in light of § 3553(a)’s factors and the overarching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing.
Yet, despite the Supreme Court’s expansive 2007 opinions, sentencing courts and appellate courts continued to defer to the Guidelines, so the Supreme Court once again entered the scene in 2009 to bluntly emphasize that “advisory” means “advisory.” The Supreme Court in Spears v. United States considered a case where the district courtcategorically replaced a Sentencing Guidelines’ ratio with its own ratio for purposes of calculating the offense level and sentencing range. The Supreme Court rejected the Eighth Circuit’s attempt to distinguish between “individualized, case-specific” consideration of the Guidelines’ ratio, which is how the Eighth Circuit perceivedKimbrough’s position, and categorical rejection and replacement of that ratio. Clarifying its Kimbrough holding, the Supreme Court explicitly stated, “[D]istrict courts are entitled to reject and vary categorically from the . . . Guidelines based on a policy disagreement with those Guidelines.” Going further, five days after deciding Spears, the Supreme Court stressed in Nelson v. United States that “[t]he Guidelines are not onlynot mandatory on sentencing courts; they are also not to be presumed reasonable.” As the Supreme Court explained, the only instance where a Guidelines sentence is entitled to a presumption of reasonableness is upon appellate review in accordance with Rita v. United States. Thus, if it was not clear before, it is clear after Spears and Nelson that district courts have extensive freedom to craft sentences in a given case, whether based on policy or the individual facts.
Sentencing Statistics in a Post-Booker World
Consequently, the current state of sentencing law appears to stand for the proposition that district courts should be engaging in robust sentencing inquiries guided by the language in § 3553(a) and not rote application of the Guidelines. This is a principle that the sentencing courts appear to have been slowly, but steadily adopting. Indeed, sinceBooker, the percentage of sentences within Guidelines range has fallen by approximately fifteen percent over the past five years while the percentage of below Guidelines variances has steadily increased. Some offense categories, such as tax, bribery, and money laundering, have had particularly low percentages of cases falling within Guidelines ranges and very high percentages of below range variances. In addition, where the sentencing court has awarded a below Guideline range variance in such cases, the median percent decrease from the Guideline minimum has been more than fifty percent, with some offenses hugging a median one hundred percent decrease.
New Government Policy on Charging and Sentencing: Individualized Assessments
This past summer, federal sentencing experienced yet another development with Attorney General Eric Holder’s memorandum setting new policy for departmental charging and sentencing. While emphasizing the virtue of consistency in sentencing on the one hand, Attorney General Holder stressed that prosecutors should conduct an “individualized assessment of the facts and circumstances of each particular case” on the other hand. The more robotic formulation—outlined in the post-Booker 2005 James Comey Memorandum—of always charging the “most serious readily provable offenses” and advocating for a sentence as if the Guidelines were still mandatory appears no longer to be required. Only time will tell what consequences will ultimately result from the new policy, but it almost certainly bodes well for defense attorneys’ desire for greater consideration and flexibility respecting the individual facts of a case at sentencing.
All signs point to movement away from strict application of the Guidelines. That is an encouraging development for criminal defense attorneys who might have desired to take their clients’ cases to trial in the past but feared an automatic Guideline range sentence in the event of a guilty verdict. Where previously the Guidelines were rigidly applied, there now are a number of variables that may be determinative in a particular case—from the prosecutor’s position on sentencing and courts’ categorical policy disagreements with Guideline sentences to the individualized facts and circumstances of a case that were not given much or any weight under the old regime. Today, armed with the facts and policy to support a non-Guidelines range sentence, the gamble of a trial may be worth it.
 Danny Ashby is a partner in K&L Gates’ Dallas office, and his practice focuses on federal white collar crime, securities litigation and corporate compliance. Frederick Petti is a partner in the Phoenix firm of Petti and Briones, and his practice focuses on federal white collar crime, regulatory defense and tribal law.
 United States v. Booker, 543 U.S. 220 (2005).
 See Nelson v. United States, 129 S.Ct. 890 (2009); Spears v. United States, 129 S.Ct. 840 (2009); Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 522 U.S. 85 (2007); Rita v. United States, 551 U.S. 338 (2007); United States v. Booker, 543 U.S. 220 (2005).
 Memorandum from Eric H. Holder, Jr., Attorney General to All Federal Prosecutors (May 19, 2010), available at http://sentencing.typepad.com/files/holder-charging-memo.pdf.
 Lawrence S. Lustberg, Michael A. Baldassare & Joshua C. Gillette, Federal Sentencing: U.S. Supreme Court Continues to Expand Opportunities for Zealous Advocacy, 197 N.J.L.J. 684 (2009).
 Booker, 543 U.S. at 259.
 Judge Nancy Gertner, Confronting the Costs of Incarceration, 3 Harv. L. & Pol’y Rev. 261, 270 (2009).
 Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 522 U.S. 85 (2007).
 Gall, 552 U.S. at 56.
 Id. at 49-51.
 Id. at 49-50.
 Id. at 50.
 Kimbrough v. United States, 522 U.S. 85, 110-11 (2007).
 Id. at 110.
 Spears v. United States, 129 S.Ct. 840 (2009).
 Id. at 843-44.
 Id. at 844.
 Nelson v. United States, 129 S.Ct. 890, 892 (2009) (emphasis in original).
 Id. at 892 (citing Rita v. United States, 551 U.S. 338 (2007)).
 United States Sentencing Commission, U.S. Sentencing Commission Preliminary Quarterly Data Report: 2010 2nd Quarter 12 (2010).
 Id. at 8-9.
 Id. at 24-25.
 Memorandum from Eric H. Holder, Jr., Attorney General to All Federal Prosecutors (May 19, 2010), available at http://sentencing.typepad.com/files/holder-charging-memo.pdf.
 Memorandum from James B. Comey, Deputy Attorney General to All Federal Prosecutors (Jan. 28, 2005), available athttp://sentencing.typepad.com/sentencing_law_and_policy/files/dag_jan_28_comey_memo_on_booker.pdf.