Prevailing Party & Fees

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In the Matters of the Search of4525 Julie Court, Richmond,

California and The Redwood Clinic,

3021 Telegraph Avenue, Suite C,

Berkeley, California

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David W. Penney, John R. Sordean,

Sigal Gafni, Irving Street Veterinary

Hospital, The Redwood Clinic;Desert Lake Trust,

Plaintiffs Appellants,

v.

United States of America,

Defendant Appellee.

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Nos. 07-15807 and 07-15808

D. C. No. 3-06-70431-MHP

REPLY TO APPELLEE USA

OPPOSITION TO

SUPPLEMENT TO MOTION

TO TAX COSTS ANDATTORNEYS FEES

I. PROCEDURAL HISTORY

Appellants The Redwood Clinic, Desert Lake Trust, and Sigal Gafni

filed the instant Motion to Tax Costs after the relief sought return of

property through Rule 41(g) procedure was obtained as a result of

Appellee's concession. Appellee, United States of America, filed Opposition

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to Motion to Tax Cost which mislead by implication, whether intentionally

or by failure of familiarity with the basic facts of this case: The Assistant U.

S. Attorney's supporting Declaration created the impression that Appellants

had not prevailed as not all seized items had been returned. Replying to and

Supplementing the Motion to Tax Costs, Appellants incorporated Appellee's

prior written concession that all seized items were to be returned. No

contrary evidence has emerged.

On or around March 19, 2008, Appellees filed a supplemental

Opposition without supporting authority in violation of Federal Rules of

Court, Rule ___.1 The undersigned came to know of the existence of this

Opposition after being informed of it by a disinterested party. To date, the

undersigned has not been served with Appellee USA's supplemental

opposition.

II. FACTS

This appeal follows hearing which took place on a 41(g) motion

precipitated by search and seizure during execution of warrants which issued

upon information known from clear documentary evidence by the attesting

agent to be false. [CITATION] The district court, from the bench, directed

1 Appellee's Opposition to Supplemental Brief should be striken from the

record and disregarded.

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the parties to meet and attempt to agree regarding which original documents

would be returned, and further directed the Appellants be provided copies of

any originals not returned. (Excerpt of Record: Page 15 of the transcript of

41(g) hearing of Jan 23, 2007.

Upon the parties meeting, Assistant U. S. Attorney Thomas Moore,

without good faith deliberation, refused to return any original Redwood

Clinic documents, Desert Lake Trust documents, or documents from Sigal

Gafni. Attorney Moore and the IRS further attempted to impose the cost of

the government's copying of documents the government's cost of

investigating Appellants - on Appellants. Attorney Moore refused to

provide either original or copies of any documents, as Appellants would not

agree to incur the cost of the investigation.

From the bench, the U. S. Attorney's office was requested to and

agreed to write an opinion consistent with the court's beach directives.

Appellants were at no time provided with a draft and opportunity to approve

or object to the proposed written order. The same did not comport with the

bench ruling, and was clearly inconsistent with Ninth Circuit precedent.

After Appellants filed the instant appeal but prior to the court's ruling,

Appellee returned all seized documents and things to the Redwood Clinic,

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Desert Lake Trust, and Sigal Gafni.

III. LAW & ARGUMENT

A. Summary of Argument

Appellants The Redwood Clinic, Sigal Gafni, and Desert Lake Trust are

prevailing parties without regard to any dispute or discrepancy regarding the District

Court's order. The end result of institution of the 41(g) matter ultimately obtaining

through Appellee's concession, was the equitable return of property, a significant and

important aspect of the relief sought, which fact defines prevailing party according to

well-established 9th Circuit precedent. {CITATION}

B. Bench Rulings Have Force and Effect

The U.S. Attorney's dismissal of rulings from the bench as

inconsequential remarks, and claim that the transcript of the Court hearing is

not a part of the record, is unprecedented lunacy, [Legal authority that ruling

from bench is an order], and further disturbing as part of the accummulating

evidence of a climate in the U. S. Attorney's office of disregard for the rule

of law, both in the instant case and beyond.

C. Relief Requested Was Clear and Complete

A certified transcript of the 41(g) hearing before the lower court was

filed, and is a part of the record on appeal. Therein, the directives of Judge

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Patel to the parties from the bench, ordering them to perform certain actions

is unquestionable. Likewise the Appellants Brief clearly and plainly

delineated the full scope of relief requested, both from the lower court and

on appeal, including resolution of the discrepancy between the ruling from

the bench and the order written by the US Attorney's office {Appellant's

Brief, page ___, line ___}, and the equitable return of property. {Appellant's

Brief, page ___, line ___}. Appellee cannot now be heard to claim surprise.

D. Appellants Success in ObtainingReturn of Seized Property

Defines Them as Prevailing Parties

The spurious arguments presented in Appellee's Supplemental

Opposition do not inform or change the fact that Appellants herein

prevailed.2

Notwithstanding that the record on appeal is complete and clear as to

Appellants' substantive arguments regarding discrepancy in the lower court's

ruling; notwithstanding that Appellee had due and timely notice of these

arguments; and notwithstanding closeted briefing in the instant appeal and

2. Appellee's argument that the District Court's ruling requires denial of

recovery of fees and costs ignores the requirement of finality of judgment

and the fact of the instant appeal.

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dismissal afterthe return of property was effected,3 the undeniable fact is

that Appellants hereto prevailed in their quest to obtain relief through return

of their seized property. By definition of law, Appellants prevailed.

IV. SUMMARY

A certified transcript, prepared by the District Court approved Court

Reporter who attended the 41(g) Motion for the Equitable Return of

Property, was duly filed with the Appellate Court, is part of the record on

appeal, and is relevant and consequential. From this and indeed, the full

record on appeal, Plaintiffs/Appellants requested relief is and always has

been plain, clear, and obvious from the record. Appellants petitions to the

lower court and on appeal always included the request for the equitable

relief the court is authorized to provide through a 41(g) proceeding the

return of seized property. As a consequence of this litigation, Appellants did

obtain the requested relief, and are prevailing parties. Accordingly,

Appellants request to tax fees and costs should be granted.

Dated: April 5, 2008

3. But for Appellee's mooting of the issue by returning the property, The

only result supported by law, if not required to avoid an unconstitutional

taking without due process and compensation, would have been the

equitable return of property.

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Prevailing Party & Fees