### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT February 6, 2004 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-10857

________________________ D. C. Docket No. 99-00324-CR-T-23-A UNITED STATES OF AMERICA, Plaintiff-Appel lant,

versus STEVEN B. AISENBERG, MARLENE J. AISENBERG, Defendant-Appe llees.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Florida

_________________________ (February 6, 200

4) Before BLACK

, HULL and CO

X, Circuit Judges. HULL, Circuit Judge: The govern ment appeals the distri ct court’s o rder grant ing: (1) at torney’s fees in the amo

unt of $2,680,602.22 u

nder the Hyde A

mendment f

or the bad faith prosecution of Steve

n and Marlene Aise

nberg in connection w

ith the2

disappearance of t

heir daughter Sabr

ina, and (2) the w

holesale disclosure of all grand jury transcripts. After review, we rever se and reduce the attorney’s fee award to $1,298,980.00. We also vacate the ordered disclosure of all grand jury transcripts. I. FACTUAL BACKGROUND Because this case has an extensive procedural history, we first outline the events leading to the w

iretapping of the Ai senbergs’ hom e in 1997 and 1998, the indictment of the

Aisenbergs in 1999, the dismissal of that indictment

in 2001, and the award of attor

ney’s fees a

nd wholesale disclosu

re of all grand ju

ry transcripts in 2003. A. Missing Child Inv

estigation During the early morning of November 27, 1997, Marlene A isenberg placed a call to “911” to report the disappearance of her five-month-old daughter, Sabrina Aisenber

g. Law enforce

ment official s conducted an intense and exhaustive search f

or the child, whic

h was ultimate

ly unsuccessful.The child remains mi ssing to this day. Throughout their inte

ractions with the A

isenbergs and after

making no headway in thei

r recovery ef

forts, law enfor

cement offic

ials developed suspici

ons directed a t the Aisen bergs. On Dec ember 12, 199 7, sixteen days after th e child’s1 Some of the facts alleged were that: (1) Marlene Aisenberg sounded hy sterical in her initial “911” missing-child report, but while her husband spoke to the “911” operator, she spoke calmly to an

unknown party

on another teleph

one; (2) there w

as not enough foo

d or diapers in their home to maintain the well-being of a five-month-old child for one day; (3) dur ing the county detectives’ third interview of Marlene Aisenberg , she made statements and gestures indicating that she knew the person who took the child and that the child was being taken care of; and (4) the county detectives’ telephonic interview with an FB I special agent regarding a study indicating that in 91.67% of cases where the last location of a child under age one is the victim’s home, the child was killed in the home by a caregiver. 3 disappearance, t

he county sherif

f’s office successfully applied to the state circuit court for authoriza

tion to intercept ora

l and telephonic com

munications in the Aisenbergs’ home. The December 12, 1997, application for electronic surveillance was supported by an af

fidavit signed jointl

y by detecti

ves Linda Sue Burt

on and William Bla

ke of the county sh

eriff’s office. The affiant s claimed that p

robable cause existed to beli

eve that the Aisenbe

rgs murdered or

sold their child based

on certain facts. 1 The state circui t court authorized th

e wiretap, and on

December 13 , 1997, law enforce

ment official s placed electronic interception device s in the Aisenbergs’ home. On January 9, 1 998, and ag ain on Febr uary 6, 1998 , the count y sheriff’s office applied for

extensions of the wir

etapping authority

, relying on: (1 ) transcripts of the A

isenbergs’ conver

sations obtained during the Decembe r 1997 wiretaps; (2) a pe

diatrician’s opin

ion that pictures of t

he child indicated tha

t hair4

had been pulled out of the left side of the baby’s head and the area around the left eye was bruised; and (3) statements by the hair dresser of the Aisenbergs’ children that she noticed hair missing from the child’s head. The state circuit court granted the extension applica

tions, and the wire

tapping continued until M arch 2, 1998, resulting in seventy

-nine days of sur

veillance and includi

ng 2,600 conversations recorded on fifty

-five audio recor

dings. As discussed l

ater, the ma

gistrate judge ultimately

found that the Aisenb ergs’ conversat ions intercepted fr

om the December 199 7 wiretaps were largely unintel

ligible and that the pe

diatrician’s and the hairdresser’s statements in the extension applications were misquoted or taken out of context.
B. Indictment a

nd Arrest On January 30,

1998, the United Sta

tes served the Aise

nbergs with subpoenas to appear before the grand jur y. The Aise

nbergs comm

unicated their unequivocal intent to in

voke the Fifth Am

endment before

the grand jury

and so advised the government through correspondence and a hearing before the district court. The gover

nment insisted tha

t the Aisenbergs sti

ll appear. On Fe

bruary 11, 1998, the Aisenbergs appeared before the grand jury

, invoked their Fif

th Amendment rights, and refused t o answer most questions

. On September

9, 1999, a federa

l grand jury r

eturned a seven-co

unt2 The 1999 indictment was returned approximately twenty-one months after Sabrina’s disappearance

in late 1997 and eig

hteen months afte

r the termination o

f the wiretapping

in early 1998. 5 indictment agai

nst the Aisenbergs. 2 The indictmen t charged the Aise

nbergs with one count of conspiracy to make false statements of m aterial facts to law enforcement officials, in viola tion of 18 U.S.C.§ 371, and with six cou nts of making false st

atements of m

aterial facts to l

aw enforcem

ent officials during

the initial missing c

hild report and during the subsequent investiga tion, in violation of 18 U.S.C. §§ 1001 and 1002. On the sam e day, the Ais enbergs were ar rested in Maryland, where they had moved. The Aisenbergs ap

peared at an initia

l hearing at which t

he government urged the magist

rate judge (1) to

require the Aisen

bergs to submit to urinalysis and (2) to require i

nvestigation by a social services prof essional to protect th

e Aisenbergs’ other two children. During that hearing, an Assistant United States Attorney asse

rted that the governm

ent had in its possession a taped statem ent in which Steven Aisenberg stated, “I wish I hadn’t harmed her . It was the cocaine.” The governmen

t also claimed t

o have in its possession t aped statement

s indicating that the Aisenbergs were “drugged.” As will be discussed later, the district court ultimately determined that the recordings purportedly containing these alleged statements were “largely inaudible” and the m agistrate judge found them3 Shortly afte r the indictment, th

e government mo

ved to disqualify

the Aisenbergs ’ defense counsel and to compel retention of separate, independent counsel. The gover nment argued that defense counsel had a conflict of interest in representing both Aisenbe rgs. In denying the motion, the magistrate judge stressed, inter alia, that the Aisenbergs had made a knowing and intelligent waiver of conflict-free representation, that the government had not shown that an actual or serious potential conflict existed by the joint representation, that the government had not shown that it was likely that one defendant would testify ag ainst the other, and that the prejudice caused by disqualifying defense counsel outweighed the government’s perceived concerns. The government did not appeal this determination.

4 In Franks , the Supreme Court held that where a defendant makes a substantial preliminary

showing that a fa

lse statement know

ingly and in

tentionally,

or with reckless disregard for the truth, was included by an affiant in a se arch warrant affidavit, and if the allegedly false statement was necessary to the finding of probable cause, the Fourth Amendment requires that a h

earing be held

at the defendan

t’s request to dete

rmine admissibility

of the fruits of the search. 438 U.S. at 171-72, 98 S. Ct. at 2684-85. 6 “unintelligible.” 3
C. Motion to Suppr

ess On February 1 7, 2000, the Aisenbe rgs filed a moti

on to suppress the audio recordings of their

home and the re

lated transcripts.The Aisenbergs’ motion claimed that th

e county detecti

ves’ affidavits, supporting the wiret ap applications, contained false sta

tements, that

without these state

ments there w

as no probable cause for the wir

etaps, and that the audio recordings of t heir home m

ust be suppressed. The A

isenbergs also reque sted an evidentiary hearing based on Franks v. Delaware , 438 U.S. 154, 98 S. Ct. 2674 (1978). 4 During December 2000 the magistrate judge conducted a Franks evidentiary hearing, which involvedten days of testi mony from

forty witnesse s and over one5 Although the magistrate judge’s report was filed on February 14, 2001, the district court later published the magistrate judge’s report as an attachment to its January 31, 2003, order awarding attorney’s fees under the Hy de Amendment. Thus, we cite to the now published magistrate judg

e’s report.

6 In addition to over one hundred exhibits, there are ten volumes of transcripts from the Franks hearing, which

cover 2,585 pag

es. 7 hundred exhibit s, primarily from the government’s invest igative files. On February 14, 2001, the magistrate judge issued a comprehensive report

recomme nding that the district

court suppress all a

udio recordings from

the wiretaps of the Aisenb ergs’ home. United States v. Aisenberg , 247 F. Supp. 2d 1272, 1324-57 (M.D. Fla. 2003). 5 In his report, the m

agistrate judge m

ade extensive fact

findings based on the voluminous evidence during the Franks hearing. 6 For example, the magistrate judge found: (1) tha

t in the initial wire

tap application, the

county detective s not only made f

alse statemen

ts, but also omit

ted material facts regarding the Aisenbergs’ init

ial missing child report; (2) that in t he initial wiretap

application, the county detec

tives’ statem

ent that Marlene A

isenberg was “

calm” and “collected” w

as made with r

eckless disregard f

or the truth; (3) tha

t the county detectives failed to inform the sta te circuit court tha

t they knew seve

ral people who had seen the child the day before the missing report but had not yet interviewed them

; (4) that the county

detectives failed

to inform the sta

te circuit7 In his report, the magistrate judge described the wiretap a pplication process in great detail and outlined how errors occurred in the wiretap extension applications, in the handwritten summaries of those tapes, and later in the more formal transcripts of those tapes. Aisenberg , 247 F. Supp. 2d at 1325-27.

8 During the Franks evidentiary hearing, the Aisenbergs’ e xpert, Bruce E. Koenig, testified that all the wireta

ps had problems. Ko

enig previously

served as the Spe

cial Agent Super

visor in the FBI’s engineering section and re ceived a bachelor of science from the University of Maryland and a master’s degree in forensic science from Georg e Washington University, as well as completing graduate level courses at George Mason University , University of Utah, and Massachuse tts Institu te of Techno logy, and electr onic course s at DeVry Institu te of Techno logy in Chicago. According to Koenig, the intercept sy stem introduced extraneous sounds such as ringing phones, hissing, and humming; this noise directly impacted the ability to understand the recorded speech; and distortion, caused by microphones picking up the speakers’ voices from too great a distanc

e, added to the uni

ntelligibility

. The qualificati

ons of the gover

nment’s expert, Anthony Pellicano, starkly contrasted with Koenig ’s. Pellicano received his high school equivalenc y while servin g in the mil itary and never o btained adv anced schoo ling. Alth ough Pellicano stated th

at he was able to h

ear the Aisenbe

rgs’ conversa

tions set out in the co

unty detectives’ app

lications, Koenig

, the district cour

t, and the magistr

ate judge could

not. 8 court that they w

ere still awaitin

g the financial anal

ysis of the couple

and the crime lab’ s processing of the ev idence; (5) that in t

heir extension applications, the county detective s reported conversa tions that no reasonabl

y prudent listene

r could hear from the

tapes, that the cou

nty detectives qu

oted conversations tha

t do not even appear at all

in the supporting trans cripts of the tapes o r do not appear in the manner descri

bed, and that the cou

nty detectives de

liberately or w

ith reckless disregard summ

arized conversati

ons out of context; 7 (6) that after re dacting the unintelligible conver

sations in the record

ings, the county d

etectives’ appli

cations for wiretap exte

nsions did not support proba ble cause to believe

that the Aisenbergs committed murder; 8 (7) that the Aisenbergs’ intercepted9 In addition to filing a motion to suppress, the Aisenbergs also filed a motion for an

audibility hearing challenging the accur acy of the transcripts of the tapes that the government sought to use at tr

ial. On April 17, 200

0, the governme

nt requested a de

lay of the a

udibility hearing until trial, or alternatively for each party to submit separately prepared transcripts to the jury without a

ny audibility

hearing. The g

overnment later

obtained other de

lays of the a

udibility hearing before the district court. Although the district court entered a November 9, 2000, orde r noting that the quality of the audio recordings was “ge nerally poor,” the actual audibility hea ring before the d istrict co urt never oc curred becau se on Februar y 14, 2001, the magistrate judge recommended that the district court grant the Aisenbergs’ motion to suppress, and the government then dismissed the indictment on February 22, 2001. 9 communications were unrelated to offenses included in permissible wiretaps under Florida’s wire

tap scheme, a

nd thus should be suppresse d; (8) that during the wiretaps, law e

nforcement of

ficials failed to m

inimize the re

cordings of conversations not otherwise subject to the interception authorization, as required by Florida Stat

ute § 934.09(5) (1997) ; and (9) that the cou nty detectives ha

d not met the elements of Florida Statute § 934.09(1)(c) (1997), requiring that they demonstrate that they had tried other reasonable investigative procedures before applying for electronic surveillance. Aisenberg , 247 F. Supp. 2d at 1331-57. After the magistrate judge’s report of February 14, 2001, the district court never ruled on the Aisenbergs’ motion to suppress because the United States Attorney’s Office prom

ptly moved f

or leave to dism

iss the indictme

nt against the Aisenbergs. On F ebruary 22, 200 1, the district cour t dismissed the in

dictment. 9
D. Aisenbergs’ Application under Hyde Amendm ent On March 26, 2001,

the Aisenbergs m

oved for an award under the Hyde10 “The Hyde Amendment was enacted as part of P.L . 105-119, the . . . Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, and is found as a statutory note to 18 U.S.C. § 3006A.” United States v. Gilbert , 198 F.3d 1293, 129 8 (11th Cir. 1999). 10 Amendment, which provides that the court may award attorney’s fees and other litigation expenses if the “court finds that the position of the United States was vexatious, frivolous , or in bad faith.” Pub. L. No. 105 -119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes). 10 In response, the government conceded that an award of fees and litigation expenses was appropriate under the Hyde Amendment, but disputed the amount of fees owed. At the government’s request, the district court ordered that the parties participate in mediation. The mediator issued a June 13, 2002, report stating that “the parties ha

ve reached an im

passe.” The par

ties then presented t

heir Hyde Amendment arguments to the district court over a four-day hearing during October 2002. On January 31,

2003, the district court awarded the A isenbergs $2,680,602.22 in atto

rney’s fee s and $195,670.32 in lit igation expenses under

the Hyde Ame

ndment. Althou

gh the government

had conceded the appl

icability of the Hyde Am

endment, the di strict court’s or der recounted at gr

eat length the11 As noted in footnote 5, supra , the district court also published the magistrate judge’s

earlier repor

t, dated Februa

ry 14, 2001, w

hich likewise made

extensive finding

s about the county detectives’ misconduct. Aisenberg , 247 F. Supp. 2d at 1324-57. 11 events evincing t he government’s bad faith p rosecution of the Ai senbergs. Aisenberg , 247 F. Supp. 2d at 1275-87. 11 In the district cour

t, the governme

nt emphasized th

at the Hyde Am

endment subjects awards to “the procedures and limitations” provided for under 28 U.S.C. § 2412, which, the g

overnment pointe

d out, includes a $125 ho urly limita

tion on attorney’s f

ees in § 2412(d)(2)(

A)(ii). Pub. L . No. 105-119, § 617 , 111 Stat. 2440, 2519 (1997) (reprinte

d in 18 U.S.C. § 3 006A, historical a nd statutory notes

). The district court, however, agreed with the Aisenbergs (1) that they were not limited to this $125 hourly limitation in § 2412(d)(2)(A)(ii), but rather could recover rates up to $400 per hour as at torney’s fees under § 2412(b), a nd (2) that even if § 2412(d)(2)(A)(

ii) applied, specia

l factors justifi

ed a departure fr

om the $125 hourly limit

ation. The distric

t court’s awar

d also included a fif

teen percent multiplier of th

e attorney’ s fees, or $349,643. 77, to compensa te the Aisenbergs f

or “the delay in the receipt of paym ent.” The district court’s award was based on a total of 11,251.70 attorney hours by ten attorneys in the law firm of Coh en, Jayson & Foster, P.A. in Tampa, Florida, and on rat

es varying from

$150 to $400 per attorne y. On appeal,

the12

government does n

ot contest the 11,251. 70 hours awarded or $195,670.32 in litigation expenses. Instead, the government contends that the district court erred (1) in not following th

e $125 hourly cap a

pplicable under the H

yde Amendm

ent, and (2) in awarding

$349,643.77 as a fif

teen percent enhan

cement for de

lay in payment. E. Grand Jury Transcripts In the same January 31, 2003, order on attorney’s fee s, the district court ordered that the gove

rnment mus

t file and disclose a

ll grand jury t

ranscripts by February 10, 2003. The Aisenbe rgs initially re

quested the grand ju

ry transcripts

in 2000, and requested them again in 2002 to su pport their claim for atto rney’s fees. After acknowledging that the government opposed this disclosure, the district court explained that

it had “defer

red any ruling on t

he motions [for

the transcripts] because Hyde A

mendment l

iability was co

nceded by the Un

ited States,” and

thus discovery of the transcripts “appeared most likely unnecessary .” Aisenberg , 247 F. Supp. 2d at 1322.The district court further noted that i

ts award closes the attorney’s fee issue. Id

. Nonetheless, the district court ordered wholesale disclosure of all grand jury transcripts prim

arily because

the Aisenbergs per

sisted in their inter

est in them and the public has a “ strong interest” in i nspecting troubled pro secutions in Hyde13

Amendment cases. Id. at 1323-24. Specifically, the district court reasoned that when a Hyde A

mendment a

ward is made o

ut of “public fund

s to reimburse defendants victim

ized by a ‘ve

xatious, frivolous,

or bad faith’ pro secution,” the public has “a str

ong interest” in the e

vents leading to that pr

osecution and “in inspecting these troubled prosecutions to determine the source of the United States’ misdirection.” Id. at 1323. The district court

also concluded that non

-disclosure serves

no remaining interest of the Ais enbergs because they already had been indicted, this fact was well known, and the Aise nbergs consent to the release. Id . As for the government’s

interest, the distr

ict court observed th

at the grand jury

deliberations were comple

ted, that the crim

inal investigation wa

s at a standstill, an

d that this circumstance

will persist indefi

nitely, crea

ting what the court t

ermed “on

ly the most minimal and inconsequential countervailing considerations.” Id

. The district court determined that the Aisenbergs’ and the public’s interest was in disclosure and that “the only contrary interest rema ining is that of the United States, which may want to avoid a full airing o f the episode.” Id . at 1323-24.
F. Stay of Grand Jury Disclosure After the district court ordered wholesale disclosure of all grand jury transcripts by F ebruary 10, 200 3, the governme nt filed a motion

to stay the12 In its stay motion, the government stressed that the Supreme Court has instructed that

parties seeking grand jury materials “must show that the mater ial they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their reque st is structured to cover only material so needed. Such a showing must be made even when the grand jury w hose transcripts are sought has concluded its operations . . . .” See Douglas Oil Co. of Cal v. Petrol Stops Nor

thwest , 441 U.S. 211, 222, 99 S. Ct. 1667 , 1674 (1979); United Kingdom v. United States , 238 F.3d 1312, 1320- 21 (11th Ci r. 2001) (ad opting Douglas Oil standard). The government argued that the Aisenbergs had not met these three requirements and that the district court’s order was not based on an identified particularized ne ed for the transc

ripts, but rather on an a

lleged public int

erest in scrutinizing the activities of a misdirected investigation.

13 In a January 4, 2002, hearing involving the inter venor media’s request for the wiretap recordings and other records under seal, the government offe red to present information in camera to the district court about its continuing investigation of Sabrina’s disappearance and had witnesses available to do so, but the district court refused to hear the proffer. However, in the c

ontext of the gove

rnment’s stay

motion, the district

court did offer t

o receive evidence in camera from the government about the viability of its ongoing investigation in order to evaluate whether disclosure would cause irreparable harm. The g overnment submitted a May 1, 2003, affidavit of an Assistant United States Attorney, a ssigned to the General Crimes Section of the Criminal Division in the Middle District of Florida, stating that “[t]he investigation is currently active and ongoing, and is being conduc ted with state and federal law enforcement officers,” and disclosure “would compromise the ongoing investig ation.” The government declined to present witnesses or further information in camera at the stay hearing on May 2, 2003. The government asserted that a court evidentiar y inquiry into whether a government inve

stigation is viable

would constitute an

unwarranted jud

icial intrusion into prosecutorial functions delegated to another branch of government. I n this stay context, the government’s position was that the record both in camera and in the public record already established sufficiently that the crime remained unsolved and that there was an ong oing criminal 14 immediate

public disclosure pend

ing appeal. 12 The government emphasized that the Aisenbergs would not suffer injury from a stay because they had obtained a dismissal of the

indictment aga

inst them and an un

precedented am

ount of attorney’s f

ees under the Hy

de Amendm

ent without access t

o or any need for

the grand jury mat erial s. The gove rnment also s tress ed tha t thi s seri ous cr ime remained unsolve

d and disclosure would

interfere with i

ts ongoing investigation. 13investigation.

14 In their objec tion to th e government ’s request f or a stay, couns el for the Ai senbergs stated that they

were “curren

tly drafting

a civil complaint.”

The Aisenberg

s then filed their lawsuit in September 2003 in the state circuit court, before oral argument in this appeal. The Aisenbergs’ civil lawsuit was subsequently removed to the United States District Court for the Middle District of Florida. Although the civil lawsuit was not filed at the time of the district court’s disclosure order in January 2003, the Aisenbergs appare ntly all along wanted the grand jury transcripts not only for their attorney ’s fee claim in the criminal case, but also to sue the government civilly. Because both parties have brief ed and argued whether the grand jury transcripts are discoverable under Rule 6(e)(3)(C)(i)(I ) to aid the Aisenbergs’ civil lawsuit, we consider that issu

e as well in this app

eal.

15 The Aisenbergs’ objection to the government’s stay motion also arg ued that disclosure would help them during their appellate litigation regarding the attorney’s fees award. The Aisenbergs asserted that “[n]o doubt, the government will argue in the appellate court . . . that the governmental conduct at issue did not justify the award of fees . . . .” The government, however, has not made this argument on appeal, but rather has continued to concede that attorney’s fees are owed under the Hyde Amendment. Thus, the Aisenberg s have not shown that they need the grand jury

transcripts as to a

ny attorney

’s fee issues unde

r the Hyde A

mendment. 15 In reply, the Aisenbergs objected to any stay and em phasized that they needed the grand jury material to support their civil lawsuit “against the lawy ers and law enforcem

ent personnel respons

ible for the bad fai

th, vexatious and frivolous prosecution of the Aisenbergs.” See Aisenberg v. Hillsborough County Sheriff’s Office , No. 8:03-CV-2063-7-23EAJ (M.D. Fla. 2003). 14 The Aisenbergs cited Federal Rul

e of Criminal Procedure 6(e)( 3)(C)(i)(I),

which permits disclosure of grand j ury mater ial “when so dir

ected by a cour

t preliminaril

y to or in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)( C)(i)(I) (2002). 15 The Aisenbergs f urther challenged t

he viability of a

ny continuing16 At a February 5, 2003, hearing

regarding th

e government’ s stay motion, the Aisenbergs ’ defense counsel questioned whether the government’s investigation was sufficiently “active” because according to a news report, it was staffed by a single investigator.

17 Whi le t he p art ies bri efed the sta y iss ue, the dis tri ct c our t di d en ter a te mpo rary s tay, which was dissolved by the district court’s May 5, 2003, orde r. 16 criminal inves

tigation 16 and asserted that much of the information presented before the grand jury

was already public, leaving few , if any, j ustifications for non

disclosure. On May 5, 2003,

the district court e

ntered an order re

jecting the government’s

request for a stay

pending appeal. 17 In that order , the court concluded, inter alia

, that the governm

ent’s “putati

ve ‘investigation’ is entitled to no weight in the decis

ion regarding the sta

y,” and that “

there is apparentl

y no meaningful investigation to endanger.” The district court stated that the Aisenbergs were

prejudiced by

the continued secre

cy and that “

their public exoneration and the pursuit of rights they assert against the United States are impaired by continuing non-disclosure.” The governmen

t then moved in this

Court for a stay

of disclosure of the grand jury tr

anscripts pending appe

al, which was gr

anted on June 26, 2003. II. STANDARD OF REVIEW On appeal, t he govern ment contest s only (1) th e amount of th e attorney’s fees awarded an

d (2) the district co

urt’s disclosure o f all grand jury transcripts.17

This Court review

s a district court’ s award or denial o f Hyde Am endment attorney’s fees and costs fo r abuse of discretion

. United States v. A dkinson , 247 F.3d 1289, 1290 (11th C

ir. 2001); United States v. Gilbert , 198 F.3d 1293, 1298 (11th Cir. 1999). “An abuse of di scretion occurs if the judge fails to a

pply the proper legal standa

rd or to follow prope

r procedures in m

aking the determ

ination, or bases an award [or a denial] upon findings of fact that are clearly erroneous.” Id. (internal quotation marks and citation omitted) (alteration in original). This Court reviews a district court’s order granting disclosure of grand jury transcripts for an ab use of discretion. See United Kingdom v. United States , 238 F.3d 1312, 1319-21 (11th Cir. 2001). III. DISCUSSION A. The Language of the Hyde Amendment “We begin our

construction of the H

yde Amendm

ent . . . with the

words of the statutory provision themselves.” Gilbert , 198 F.3d at 1298. T he Hyde Amendme

nt provides in pertine

nt part: [T] he court, in any crim inal case (other th

an a case in which t

he defendant is r epresented by assigned counsel paid for by the public) . . . may award

to a prevailing part

y, other than th

e United States, areasonable attorney’s fee and other litigation expenses, where t h e court finds thatthe position of the United States was vexati ous, frivolous, or in bad faith, unless the

court findsthat special circumstances make such an award unjust. Such awards shall be gran ted pursuant to the18

procedures and limitations ( but not the burden of proof) provided for an award under section 2412 of title 28, United States Code. Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes) (emphasis added). This circuit’s p

rior Hyde Am

endment decisio

ns have dealt prim

arily with whether the preva

iling federal crim

inal defendant car

ried his burden to show

the required prerequisite to a fee award, to wit: that the United States’ position was “vexatious, frivolous, or in bad faith.” See Adkinson , 247 F.3d at 1293; Gilbert , 198 F.3d at 1297. In t

his case, however

, the governme

nt conceded the applicability of

the Hyde Am

endment in the dis

trict court and that

the Aisenbergs are entitled to rec

over their attorne

y’s fees and

expenses. This app eal requires us to determine onl

y issues relatin

g to the amount of the attorney’ s fees owed. Tho se issues are: (1) whether the Hy

de Amendm

ent incorporates the

procedures and limitations in § 241 2(d), making t he $125 hourly lim

itation in § 2412(d)(2)(A)(

ii) applicable to al

l Hyde Am

endment claim

s, or whether the Hy

de Amendm

ent also incorporate s the other avenues of relief contained i

n § 2412(b); (2) whether special f

actors exist justif

ying a departure

from the $12519 hourly limitation on attorney’s fees provided in § 2412(d)(2)(A)(ii); and (3) whethe r a dist rict co urt may inc rease a H yde Amendmen t award b y a multiplier for

a delay in pay

ment. The parties acknow

ledge that the Hy

de Amendm

ent provides that fee

awards “shall be grant

ed pursuant to the procedures and limi tations (but not the bur

den of proof) provided for an award under section 2412" of the Equal Access to Justice Act (“EAJ

A”). Pub. L.No. 105-119, § 617, 111 Stat. 2440, 2519 ( 1997) (reprinted in 18 U. S.C. § 3006A, his torical and statutor

y notes). The

parties’ dispute is over how w

e should construe the H

yde Amendm

ent’s language of “procedures a

nd limitations . . . provided for a n award under § 2412. ” Thus, at the outset we also m

ust examine wha

t “procedures and limitations” are provided for an award under § 2412

. Section 2412 of the E

AJA contains two se

parate subsections r

elating to attorney’s f

ees: § 2412(b) and § 2412 (d). Of these, only § 2412(d) cont

ains any procedures and limitati ons for an award of atto rney’s fees under the EAJA. Specifical ly, § 2412(d ) states: (1 ) that a part y must file for an award of att orney’s fees within thirty days of final judgment, § 2412(d)(1)(B); (2) that “ attorney fees shall not be awarded in excess of $125 per hour unless the court determines18 Section 2412(d) a lso contains this bur

den of proof: the U

nited States must show

that its position was “substantially justified or that special circumstances make an award unjust,” when defending an a

pplication for att

orney’s fe es. § 2412(d)(1)(A). However, t his burden of proo

f is specifically

excepted from the

Hyde Amend

ment, which limits the

recovery of attorney ’s fees to the “procedures and limitations (but not the burden of proof)” of § 2412. Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes). This reference to burden of proof is further evidence that the langua ge of the Hyde Amendment is directed at incorporating the procedures and limitations of § 2412(d). 20 that . . . a spec

ial factor, such a

s the limited ava

ilability of qual

ified attorney

s for the proceedings involved, justifies a higher fee,” § 2412(d)(2)(A)(ii); and (3) that an individual may

not recover attorne

y’s fees if his net worth excee

ds $2,000,000 at the time the civil action was filed, nor may the owner of a business whose net worth exceeds $7, 000,000 and had mo re than 500 emplo

yees at the tim

e the civil action was filed, § 2412(d)(2)(B). 18 To date, all cir

cuits to consider this i ssue have concluded th at the procedures and lim

itations in § 2412 incorpo rated by the Hy

de Amendm

ent are the procedures and limitati ons in § 2412(d). See United States v. K nott , 256 F.3d 20, 26-27 (1st Cir. 2001)

(holding net worth lim

itation of § 2412(d)(2) (B) applies to recovery under

Hyde Am

endment, and § 2

412(b) does not provide avenue for recovery under

Hyde Am

endment); United States v. S herburne , 249 F.3d 1121, 1129 (9th Cir. 2001) (

holding cap on attorney ’s fees provided i n § 2412(d)(2)(A)(

ii) applies to recov

ery under Hy

de Amendm

ent); United States v. Ranger Elec. Communications, Inc. , 210 F.3d 627, 633 (6 th Cir. 2000) (holdin

g19 See also United States v. Tr uesdale , 211 F.3d 898, 907 (5th Cir. 2000) (noting that government’s r

eading of Hy

de Amendment as in

corporating the

procedures and

limitations in § 2412(d) “seems

reasonable” bu

t ultimately n

ot deciding the issue). Although th e Fourth Circuit has not yet ruled on this issue, a district court in United States v. Holland , 34 F. Supp. 2d 346 (E.D. Va. 1999), concluded that a prevailing defendant may choose to recover an award of attorney’s fees under the Hy de Amendment through either § 2412(b) or § 2412(d). Id. at 359, vacated in part on other grounds on reconsideration, 48 F. Supp. 2d 571 (E.D.Va. May 18, 1999), aff’d on other grounds , 214 F.3d 523 (4th Cir. 2000). 21 thirty-day limitation for filing award for a ttorney’s fe

es provided in § 2412(d)(1)(B) ap

plies to Hyde A

mendment a

pplication). We

now join those circuits. 19 We recognize th

at the Aisenbergs contend that their fee award under the Hyde Ame

ndment is governe

d by § 2412(b), not

§ 2412(d). We r

eject this argument for s everal reasons. First, the plain la

nguage of the Hy

de Amendm

ent limits awa

rds to “the procedures and limitations (but not the burden of proof) provided for an award under section 2412.”

Pub. L. No. 105 -119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U. S.C. § 3006A, his torical and statutor

y notes). Sec

tion 2412(d) provides procedures

and limitations t

o fee awards under

the EAJA, but § 24 12(b) provides none. Ranger , 210 F.3d at 634 (noting that § 2412(b) “provides neither procedural guidance

nor eligibility li

mitations”) (J

ones, J., concur

ring). Thus, “allowing defendants to elect to proceed under § 2412(b) would effectively read the clause ‘under

the procedures and l

imitations of se

ction 2412’ out of the

Hyde22

Amendment.” Knott , 256 F.3d at 27. As the First Circ

uit also aptly re

cognized in Knott , any reading o f the Hyde Amendment not incorporating the procedures and limitations of § 2412(d): undercuts the language of the provision and policy

concerns underly

ing the incorporati on of these procedures a nd limitations. If defendants could elect to proceed under § 2412 (b), . . . it is not clear that the

Hyde Amen dment’ s incorporation of ‘ procedures and lim itations’ from

the EAJA would have any pr

actical effect . In order to give mean ingful effec t to the plain language o f the Hyde Am endment, then,

the incorporation

is best read to ref

er to the limita

tions contained in EAJA § 2412(d). Id. at 27; see also Ranger , 210 F.3d at 633 (not ing that a constructio

n of the Hyde Amendme

nt that does not apply

§ 2412(d) “does no

t give effect to the

plain meaning of the Hyde Amendm ent nor the policy considerations behind it”); Sherburne , 249 F.3d at 1129 (stating in relation to the award of attorney’s fees under the Hyde Amendme nt that “[t] he statute is explici t - the limitati

ons of the EAJA apply. The EAJA caps attorney’s fees at $ 125 per hour”). Second, because § 2412(d) of the EAJA supplies an independent , substantive grou nd upon which a civi l litigant may recover fees und er the EAJA, its sole incorpora tion comports with the p lain meaning of the Hyde Amendment. The plain language o f the Hyde Am endment refe

rs to “procedur

es and limitations . .. provided for an award under secti on 2412 .” Pub. L. No . 105-119,23

§ 617, 111 Stat. 2440,

2519 (1997) (reprint

ed in 18 U.S.C. § 3006A, historical and statutory notes)

(emphasis adde

d). This language supports the exclusive incorporation of § 2412 (d) because § 2412(d) alone provides a self

-contained, substantive means for recovering attorney’s fees. Specifically , § 2412(d) provides that “a court shall award to a prevailing party . . . fees and o ther expenses, . . . unless the court finds

that the position of the

United States wa

s substantially justified.” 28 U.S.C. § 2412 (d)(1)(A). In contrast to § 2412(d) , § 2412(b) does not pro vide a substantive or indepe ndent b asis fo r an att orney’s fee award under § 2412 b ut acts as only a waiver of sovereign immunity when the com mon law or another statute provides for an attorney’s fee award. Specifically , § 2412(b) provides that “[t]he United States shall be liable for such fees and expenses to the same extent that any other party would be l

iable under the com

mon law or under

the terms of a

ny statute which specifically prov ides for such an award.” 2 8 U.S.C. § 2412(b). Furthermore , as expressed by the First Circuit i

n United States v. K

nott , “it would create a peculia

r circularity

to allow a defenda

nt relying on the H

yde Amendm

ent as the substantive basi s of a request for a ttorneys’ fe

es to elect to proceed through EAJA § 2412(b) in order to avoid the limitations imposed in EAJA § 2412(d), given that the Hy

de Amendm

ent itself incorpora

tes the procedures a

nd limitations20 This is the first time in which this Court directly has addressed the question of whether a

Hyde Amendment applicant can avoid § 2412(d) and proceed unde r § 2412(b). We note, however, that in United States v. Adkinson , 247 F.3d 1289 (11th Cir. 2001), this Court indicated in footnote two that “[w]e recognize that recovery under the Hy de Amendment is allowed under only limited circumstances, and is subject to the restrictions and procedures articulated by the language of the law and its legislative history.” Id. at 1291 n.2. As examp les of those limitations, the Adkinson Court then listed the requirement that an individual’s “net worth was less than two million dollars,” citing § 2412(d). Id . Accordingly, Adkinson already reflects an understanding that the “procedures and limitations” of § 2412 referenced in the Hy de Amendment are those found in § 2412(d). However, the issue in Adkinsonwas whether the factual circumstances in Adkinsondemonstrated bad faith, and the Adkinson court remanded the case to the distric

t court “for a de

termination of the

amount of fees an

d expenses” the de

fendants were entitled to under the Hyde Amendment. Id. at 1293. On remand , the district cour

t in Adkinson concluded, as we do here, that § 2412(d)(2)(A)(ii)’s $125 hourly cap is incorporated by the Hyde Amendment and applied the fee cap. United States v. Adkinson , 256 F. Supp. 2d 1297, 1308-11 (N.D. Fla. 2003). This order is now on appeal with the Eleventh Circuit. Adkinson v. United States , No. 03-11104 (11th Cir. argued Jan. 15, 2004). 24 of the EAJA.” 256 F.3d at 27; Ranger , 210 F.3d at 633 (sta ting that “it wou

ld be circular to go back to the Hyde Am endment to trea

t it as an independent s

tatute giving the right to attorneys’ fees without the thirty-day limitation”). 20 Third, the establ

ished principle that w

aivers of sovereign

immunity

are to be construed narrowly coun sels our construct ion of the Hyde Amendment. Lane v.
Pena , 518 U.S. 187, 192, 116 S. Ct. 2092, 2096 (1996) (stating tha t a waiver of sovereign imm

unity “m ust be unequivocally

expressed in statutor

y text,” and “

will be strictly cons

trued . . . in fa

vor of the sovereign”

) (citations om

itted); Marit ime Mgmt., Inc. v. United States , 242 F.3d 1326, 1336 (11th Cir. 2001) (noting that “the EAJA i s a waiver of sover eign immunit

y and as such m

ust be strictly construed”). Thi s principle adds furt her support for the i

ncorporation of the21 “Given the plain meaning of the statutory languag e, we could bypass any consider ation of legislative history.” Gilbert , 198 F.3d at 1299.

22 Representative H

yde’s comme

nts when initially

offering the A

mendment also indic

ate that the Hyde Amendment was patterned after § 2412(d). Repre sentative Hyde stated, when describing recovery under the Hy de Amendment, that, “if it was an abuse of process, if it was frivolous, if it wa

s malicious, then the

victim, the defen

dant who has prev

ailed, is entitled t

o attorney’s fees, very

modest, $125 an hour.” 143 Cong. Rec. H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde). 25 procedures and lim

itations of § 2412(d) in

awarding attorney ’s fees under the Hyde Amendment. Knott , 256 F.3d at 27; Ranger , 210 F.3d at 633. Fourth, although u nnecessary to our review, 21 the legislative histor y of the Hyde Amendment provides support for our constructio n of the Hyde Amendment.
In United States v. Gilbert , this Court review ed the legislative his

tory of the Hy

de Amendme

nt. 198 F.3d at 1299-1303.In its original form , the Hyde Am

endment was patterned after 28 U.S.C. § 2412(d)(1)(A). 22 Id. at 1300; Ranger , 210 F.3d at 634 (Jones, J. concu

rring). After

forceful critic

ism from m

embers of Congr

ess and the Executive Bra

nch due in part to the r

elatively low s

tandard permit

ting recovery, th

e Hyde Am

endment’s la

nguage was modi

fied, narrowing the grounds for recovery. Gilbert , 198 F.3d at 1300-03. The adopted version

of the Hyde Amendme

nt disavowed the burde

n of proof on the gover

nment contained in § 2412(d)(1)(A), required that the prevailing criminal defendant carry the burden of proof, and further narrowed the standard of recovery to those cases in which26

“the position of the United States was vexatious, frivolous, or in bad faith.” Id. at 1302 (citing Pub. L.No. 105-119, § 617, 111 Stat. 2440, 2519 ( 1997) (reprinted in 18 U.S.C. § 3006A, histori cal and statutory notes )). Thus, as detailed in Gilbert , the Hyde Amendment w as initially patterned after § 2412(d), a

nd the language was m

odified only in an e

ffort to narrow t

he grounds of recovery

and not, as the Aise

nbergs suggest, to bro aden the sections under § 2412 in which H yde Amendm

ent applicants m

ay recover. Thus, construing the Hy

de Amendm

ent to provide a narr

ow ground of recover

y by incorporating the pr

ocedures and lim

itations of § 2412(d) is

consistent not only with the principle of

narrowly cons

truing waivers of s overeign imm unity, but also with the legislativ e history of the Hyde Amendment. For all of these re

asons and consistent w

ith all other circui

ts that have addressed the issue,

we hold that the Hy

de Amendm

ent incorporates al

l of the procedures and lim

itations in § 2412(d) and

does not incorporate

§ 2412(b). Thus, the district court erred in concluding that the Aisenbergs could proceed under § 2412(b) and avoid the $125 hourly limitation in § 2412(d)(2)(A)(ii).
B. Special Factors Removing $125 Fee Cap The district court

alternatively

concluded that even i

f § 2412(d) applied, special factors e

xisted justifyi

ng a departure fro

m the $125 hourly

limitation in23 Both the district c ourt and the gove

rnment agree t

hat the “cost of liv

ing” exception in § 2412(d)(2)(A)(ii) is not applicable here. In its January 31, 2003, order, the district court stated that “[n]o marked increase in the cost of living has occurred since 1998.” Aisenberg , 247 F. Supp. 2d at 1304. The Aisenbergs do not assert on appeal that an increase in the cost of living requires a departure from the $125 hourly cap in § 2412(d)(2) (A)(ii), but rather contend that the above four special factors justify exceeding the $125 hourly cap. 27 § 2412(d)(2)(A)(ii). Specifically, § 2412(d)(2)(A)(ii) provides that “attorney fees shall not be awarded in excess of $125 per hour unless a court determines that an increase in the cost

of living or a specia

l factor, such as t

he limited avai

lability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(

ii). The distric

t court relied on tw

o special factors: (1) the government’s

concession that an at

torney’s fees award was app ropriate under the Hyde Ame

ndment; and (2) i

ts finding that the gove

rnment’s pro secution of the Aisenbergs was ve

xatious and in bad fait

h. In addition to those

two factors, the Aisenbergs rely

on two more fa

ctors, which are : (3) the delay caused by the government litig

ating meritles s positions; and (4) the limited availa

bility of qualified attorney

s. 23 Much of the EAJA case law defines “special fac

tor” in § 2412(d)(2)(

A)(ii) of the EAJA by

what it is not. In Pierce v. Under wood , 487 U.S. 552, 573, 108 S. Ct. 2541, 2554 (1988),

the Supreme Court stated that spec ial factors in the context of § 2412(d)(2)(A) (ii) do not include “ [t]he novelty and difficulty o f issues, the undesirability of

the case, the wor

k and ability of counsel, and the resu lts24 We recognize that the Aisenbergs rely on Jean v. Nelson , 863 F.2d 759 (11th Cir. 1988),

where this Court sta

ted in footnote thir

teen that “an impr

oper purpose ca

n be a factor tha

t is additional to a ‘fr

ivolous’ position,”

and further expla

ined that “if the g

overnment in this c

ase advanced litiga

tion for any

improper purpose

such as harassme

nt, unnecessary

delay or inc

rease in the plaintiffs’ expense, then consistent with Pierce , its action warrants the imposition of a special factor.” 863 F.2d at 776 n.13 ; Pollgreen , 911 F.2d at 537-38 (stating that “[t]he government’s delay in litigating a case is a pe rmissible special factor only when the motivation for the delay was improper or the length of the delay itself was inappropriate. . . . If the government’s litigation delay was the result of bad faith or the leng th of the delay was excessive, regardless of the merits of the position litigated, then such a delay c ould constitute a special factor”). The governmen

t correctly

points out, however

, that Jean v. Nelson

involved an application for attorney’s fees under the EAJA where fee s are awarded when the government’s position was not substantially justified. 863 F.2d at 777 (citing 28 U.S.C. § 2412(d)(1)(A)). Under this lower standard, a case involving a vexatious or bad faith prosecution is an exception. The same cannot be said of an application under the Hyde Amendment, whic h, by definition, must have involved v

exatious or bad fai

th litigation. Thus , we conclude tha t the rationale in footnote thirteen of Jean

does not apply

in the Hyde A

mendment context, a

nd we decline to extend Jean

. 28 obtained,” nor “

factors applicable

to a broad spectrum

of litigation” includi

ng “the contingent nature of the fee.” Id. (internal quotation m arks omitted).Similarly

, in Pollgreen v. Morr

is , 911 F.2d 527, 537 (11th Cir. 1990), this Court noted that special factors in

the context of § 2412(d) (2)(A)(ii) do not include “the motivations of the attorneys in bringing the case, the pro bono nature of the case, the fact that the li

tigation served to ‘ vindicate public right s,’ and the hards

hips experienced by counsel in departing from the statutory hourly rate.” Id. (citing Jean v. Nelson , 863 F.2d 759, 775-76 (11th Cir. 1988)). 24 This Court in Pollgreen further stated tha

t “[a] dela y that occurre

d because the governm

ent litigated a position that lacked sub stantial justifica tion is not a perm

issible special fac

tor29

because any lit

igation eligible for EAJA fees, by definition, involves the government’s pursuit of an unjustified position.” 911 F.2d at 538. Turning to the specia

l factors asserte

d by the Aisenber

gs, we first conc

lude that the governm

ent’s concession th

at the Hyde Am

endment applied does not supply a special factor warranting a fee cap departure. Neither the unprecedented nature of the conce ssion, nor the ma gnitude of the underly

ing error that the concession impli

edly suggests, can be a special fac tor. As the govern

ment points out, finding otherw

ise would create p erverse incentive s that discourage useful settlements and encoura ge protracted litig ation. See Pierce , 487 U.S. at 568 , 108 S. Ct. at 2552 (1988 ) (observing, in aw ard of attorney ’s fees under E AJA § 2412(d), that gover

nment’s wil

lingness to settle as pr

oof that its position wa

s not substantially j ustified “woul d not only distort the

truth but penalize a

nd thereby discourage useful se

ttlements”); Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S. Ct. 1933, 1941 (1983) (stating that “[a] request for a ttorney’s fe

es should not result in a second major litigation”). Similarly, the district court’s independent finding in its attorney’s fees order that the governm

ent’s position was

vexatious, frivolous , or in bad faith, d oes not provide a special fa

ctor. The Hy

de Amendm

ent requires that a

ll successful applicants show that the government’s position was vexatious, frivolous, or in bad25 See Pollgreen , 911 F.2d at 538 (noting in an EAJA case that “[a] delay that occurred

because the go

vernment litigat

ed a position that la

cked substantial j ustification is not a permissible special factor because any litigation eligible f or EAJA fees, by definition, involves the government ’s pursuit of an unjustified position”) ; Jean , 863 F. 2d at 782 (stat ing in a n EAJA case that, “as a finding that the government’s position had no ‘reasonable basis both in law and fact’ is a condition precedent to every EAJA award, allowing a premium based on the government’s ‘contentions and litigating postures’ will likely lead courts to double-c ount the substantial-justification factor”) (Kravitch, J., concurring in part, dissenting in part). 30 faith. As such, a

district court’s

determination that the governm ent’s prosecution was vexatious, frivolous, or in bad faith does not justify a fee cap departure because every

successful applica

tion under the Hy

de Amendm

ent would then be subject to a fee cap departure. 25 The Aisenbergs also emphasize the delay between the Aisenbergs’ fee application in Marc

h 2001 and ultimate

recovery of f

ees in 2003. In Pollgreen , this Court held that the

“governme

nt’s delay in l

itigating a case is a

permissible special factor onl

y when the m

otivation for the dela

y was impr

oper or the length of the dela y itself was in appropria te.” 911 F.2 d at 537. The government ’s litigation over the am

ount of attorney’ s fees due, after conceding liability

, does not constitute the specia

l factor of im

proper purpose . Specifical ly, the gover nment’s position that § 2412(d)(

2)(A)(ii) lim

its attorney’ s fees to $125 per hour under the Hyde Ame

ndment is supporte

d by the statutory

language, as wel

l as other circuits’ case law. As su

ch, we conclude th

at the governme

nt’s motivatio

n for litigating the26 While the district court found that the government’s motivation for the prosecution was improper, it did not find that there was any improper intent in litigating the amount of attorney ’s fees. 31 amount of attorney’s fees was not the result of an “improper purp ose.” 26 Finally, the A

isenbergs argue on a

ppeal that “the

limited availa

bility of qualified attorneys for the proceedings involved[] justifies a higher fee.” See 28 U.S.C. § 2412(d

)(2)(A)(ii).The district court made no such find

ing, and there is no evidence to support any such finding in this record. To the contrary, the record shows ten lawyers in Cohen, Jayson & Foster, P.A. in fact w orked on this criminal

case. The Aisenbergs also claim that their lawyers incurred a substantial economic detriment in representing unpopular clients and in handling the complex legal, factual,

and professional obsta

cles in this case. Although this practice is commendable, the Suprem e Court and this Court

already have a

ddressed this issue under § 2412(d) and have held that such hardship does not qualify as a special factor. See Pierce , 487 U.S. at 573, 108 S. Ct. at 2554 (stating that special factors in the context of § 2412(

d)(2)(A)(ii) do

not include “[t] he ‘novelty an d difficulty of issues,’ ‘t

he undesirability

of the case,’ t

he ‘work and abil

ity of counsel, ’ and ‘the results obtaine d’” nor “factors applicable t o a broad spectrum of liti gation,” including “‘the contingent nature of the fee’”) (internal citations omitted);32

Pollgreen , 911 F.2d at 537 (sta ting that special fa

ctors in the context of § 2412(d)(2)(A)(

ii) do not include “

the motivations of

the attorneys in

bringing the case, the pro bono na

ture of the case,

the fact that the li

tigation served to ‘vindicate public rights,’ and the h ardships experience

d by counsel in depa

rting from the statutory hourly rate”) (citation omitted ). In sum, we conclu de that no spec ial fact ors exi st in th is reco rd to ju stify a departure from the $125 hourly limitation provided in § 2412(d)(2)(A)(ii), as incorporated by

the Hyde Am

endment. Thus , the district cour t abused its discretion in dep arting above that $ 125 hourly limitation. As discussed earlier, the government does not contest on appeal the number of attorney hour

s or the litigation expe

nses of $195,670.32. Thus, when the $125 fee is applied to those

11,251.70 hours, the

attorney’s f

ee due is $1,298,980,

plus litigation expenses of

$195,670.32, for a

total of $1,494,650. 32 due the Aisenbergs. C. Enhancement for Delay in Payment The distri ct court al so erred in applying a mul tiplier of 1.15 to th e attorney’s fees awarded ba

sed on the delay i

n the Aisenbergs’ receiving reim bursement for their attorney ’s fees. Spec ifically, the

district court conc

luded that “[t] he circumstances of the present action, which has persisted for over five years, justify33

the application of a multiplier of 1. 15 to the lodestar of $2 ,330,958.45 to compensate the Aisenbergs for the delay in reimbursem ent.” Aisenberg , 247 F. Supp. 2d at 1321. Th

is 1.15 multiplie

r added $349,643.77 to

the fee award of $2,330,958.45, for a t otal of $2,680,602 .22 in attorney’s fees. It is well establis

hed that “inter

est cannot be recove

red in a suit against t

he Government in the absence of an express waiver of sovereign immunity from an award of interest.” Library of Congress v. Shaw , 478 U.S. 310, 311, 106 S. Ct. 2957, 2960 (1986); Newton v. Capita l Assur. Co. , 245 F.3d 1306, 1309 (11th Cir. 2001 ) (sta ting that “‘ [i]n the absence of express congressional consent to the award of interest separate from a general waiver of im munity to suit, the United States is immune from an interest awar d’”) (alteration in orig

inal) (quoting Shaw , 478 U.S. at 314, 106 S. Ct. at 2961). Moreover, the Supreme Court has admonished that compensation for delay and interest “share an identical function,” that the

y both “are

designed to compe

nsate for the belat

ed receipt of money,” and that “the no-interest rule cannot be avoided simply by devising a new name for an old institution.” Shaw , 478 U.S. at 321 -22, 106 S. Ct. a t 2965. Thus, an award of “compensation for del ay” is equivalent to an awa rd of interest. Id. at27 The district court relied on Missouri v. Jenkins , 491 U.S. 274, 282, 109 S. Ct. 2463,

2468 (1989), and Norman v. Housing Authority of Montgomery , 836 F.2d 1292, 1302 (11th Cir. 1988), but failed to observe that those two cases involved state defendants as opposed to the United States. For example, in Jenkins , the defendant w as a state and the

Supreme Court held that the Eleventh Amendment did not prohibit enhancement of an attorney’s fee awa rd, ancillary to a grant of prospective relief, for a delay in payment. 491 U.S. at 284, 109 S. Ct. at 2469 . The Supreme Court in Jenkins , however, expressly distinguished its holding in that case from the holding of Library of Congress v. Shaw , 478 U.S. 310, 106 S. Ct. 2957 (1986), and stated that the “no-interest rule” applicable to the United States in Shaw was not at issue in Jenkins , and further that the “no-interest rule” provides an “‘added gloss of strictness,’ only where the United States’ liability for interest is at issue.” Jenkins , 491 U.S. at 281 n.3, 109 S. Ct. 2468 n.3. The Supreme Court also noted in Jenkins that Shaw ’s proscription of compensation for

delay in payment doe

s not apply g

enerally, but rather in the s

pecific context wh

ere the United Sta

tes is liable and has not waived its sovereign immunity. Id

. 34 321, 106 S. Ct. at

2965. 27 According ly, we must view t he distri ct court’s compensation for delay as effec tively an award of interest

. Further, the Supr

eme Court has d

eclined to find “

the requisite waive

r of immunity from interest in the statutory requirement of awarding ‘reasonable’ attorney’s f

ees,” and has “

consistently . .. refused to im pute an intent to wai

ve immunity from interest

into the ambiguous

use of a particular

word or phrase in a statute.” Shaw , 478 U.S. at 320, 106 S. Ct. at 2964. The Supreme Court has instructed that “ [a] statute allo wing costs, and wit

hin that category

, attorney’ s fees, does not p rovide th e clear affir mative inten t of Congre ss to waive the sovere ign’s immunity” to interest payments. Id. at 321, 106 S. Ct. at 2965. Nothing in the Hy

de Amendm

ent, nor the incorpo

rated § 2412(d) of the EAJA, provides the required unequivocal waiver of immunity of the U nited States28 Section 2412(d)(2)(A)(ii) provides for an adjustment to the $125 hourly limitation based

on “an increase

in the cost of living.” 28 U.S.C. § 2412(d )(2)(A)(ii). I

n EAJA cases, circ

uit courts have conc

luded that this prov

ision does not waive

the government ’s sovereign imm unity with respect to interest. See, e.g. , Sorenson v. Mink , 239 F.3d 1140, 1148 (9th Cir. 2001); Masonry Masters, Inc. v. Nelson , 105 F.3d 708, 712 (

D.C. Cir. 1997); Marcus v. Shalala , 17 F.3d 1033, 1039 (7th Cir.

1994); Perales v. Casillas , 950 F.2d 1066, 1077 (5th Cir. 1992); Chiu v. United States , 948 F.2d 711, 721 (Fed. Cir. 1991). Because the Hyde Ame ndment incorporates § 2412(d)(2)(A)(ii), these circuit decisions involving § 2412(d)(2)(A)(ii) in the EAJA context are persuasive. We can locate, however, no circuit decision ruling on the interest issue under the Hyde Amend

ment. 35 for the payment of

intere st or co mpensat ion for delay. 28 Instead, the Hy de Amendme

nt provides for only

“reasonable a

ttorney’s fe

e[s] and other li

tigation expenses.” Pub. L . No. 105-119, § 617 , 111 Stat. 2440, 25 19 (1997) (reprinte d in 18 U.S.C. § 3006A, historical and statutory notes). Therefore, we conclude that the district court also erred in enhancing the attorney’s fee award by fifteen percent, or $349,643 .77, for the delay in payment of these fees.
D. General Grand Jury Principles We now turn to the district court’s wholesale disclosure of all grand jury transcripts. W

e first review th

e general principle s governing the disclosu re of secret grand jury material and the n apply them to this case. “It has long bee

n a policy of the l

aw that grand jur

y proceedings be

kept

secret. . . . The English rule of grand jury se

crecy has bee

n incorporated into our federal common law and rema ins ‘an integral part of our criminal justice system. ’” Blalock v. United States , 844 F.2d 1546, 1555 ( 11th Cir. 1988) (cit ing Douglas36

Oil Co. of Cal. v. Petrol Stops No rthwest , 441 U.S. 211, 218 n.9, 99 S. Ct. 1667, 1672 n.9 (1979)); see also United States v. P hillips , 843 F.2d 438, 441 (11th Cir. 1988) (stating that “ [t]he secrecy of the grand jury

is sacrosanct”).In Douglas Oil , the Supreme Court summarized the reasons for, and interests served by, grand jury secrecy as f

ollows: (1) “i

f preindictme

nt proceedings wer

e made public,

many prospective witnes ses would be hesitant to come forwa

rd voluntarily,

knowing that those against wh

om they test

ify would be aw

are of that testim

ony”; (2) “witnesses w

ho appeared before

the grand jury

would be less likely

to testify fully and frankly, a

s they would be ope

n to retribution as w

ell as to inducem

ents”; (3) “[t]here . . . would be the risk that those about to be indicted would flee”; (4) there would be the risk that those about to be indicted “would try to influence individual grand jurors to vote

against indictme

nt”; (5) “by

preserving the secr

ecy of the proceedings, we a

ssure that persons w

ho are accused but e

xonerated by the

grand jury will not be held up to public ridicule.” 441 U.S. at 219, 99 S. Ct. at 1673. Rule 6(e) of the Federal Rules of Criminal Procedure codifies this secrecy principle and prohibits the disclosure of grand jury material except in the limited circumstances provided for in Rule 6(e)(3). The only Rule 6(e)(3) exception at issue here is in Rule 6(e)(3)(C)(i)(I), which permits disclosure of grand jury material “ when so directed by

a court prelim

inarily to or in conjunction with a29 In 2002, Rule 6 of the Federal Rules of Criminal Procedure was amended as part of the

general restyling of the Feder al Rules of Criminal Procedure. This exception to the secrecy of grand jury

materials is now in R

ule 6(e)(3)(E)

(i) (2003). Previ

ously, this exc

eption was found in Rule 6(e)(3)(C)

(i)(I) (200 2). We need not dec

ide which version

applies because

the language

is essentially the same in either version.

30 As we explained in Appeal of Has tings , “This is not to say the rule is not norma

lly controlling. It is. But . . . the rule is not the true source of the district court’s power with respect to grand jury records but rather is a codification of standa rds pertaining to the scope of the power entrusted to the discretion of the district court . . . .” 735 F.2d at 1268. In Appeal of Has tings , this Court also noted that “the history of Rule 6(e) indicate[s] that the exceptions permitting disclosure were

not intended to ossif

y the law, bu

t rather are sub

ject to developme

nt by the cou

rts in conformance with the rule’s general rule of secrecy .” Id. at 1269.

31 In Appeal of Has tings , this Court amplifie d this principle as f

ollows: [C]ourts must adhere to Ru le 6(e) in “garden variety” petitions for grand jury disclosure. The rule was intended to provide a relia

ble statement of th

e law in this area, and would be rend

ered meaningle

ss if departures were freely sanctioned. We 37 judicial proceeding .” 29 Fed. R. Civ. P. 6(e)(3)(C)(i)(I). Although Rule 6(e)(

3) enumerate s the exceptions to the traditional rule of grand jury sec

recy, the Sup

reme Court an

d this Court have recognized that the district courts have

inherent power bey

ond the literal wor

ding of Rule 6(e)(3)

to disclose grand jury material and that Rule 6(e)(3) is but declaratory of that authority. Pittsburgh Plate Glass Co. v. United States , 360 U.S. 395, 398-99, 79 S. Ct. 1237, 1240-41 (195 9); Petition to Inspect a nd Copy Grand Jur

y Materials , 735 F.2d 1261, 1268 (11th Cir. 1984) (hereinafter “ Appeal of Hastings ”). 30 Nonetheless, we

also have indicated t

hat courts “ar

e not empower

ed to act outside of Rule 6(e ) in other t han except ional circ umstances co nsonant wi th the rule ’s policy and spirit.” Appeal of Hastings , 735 F.2d at 1269; see id. at 1272. 31 Thus,assume that courts are not empowered to act outside Rule 6(e) in other than exceptional ciruc

mstances consona

nt with the rule’s p

olicy and spi

rit. Id. at 1269.

32 Since Appeal of Has tings was decided, the United States Supreme Court in Carlisle v. United States , 517 U.S. 416, 116 S. Ct. 1460 (1996), stated that district courts lack “inherent supervisory power” to develop rules that circumvent or conflict with the Fe deral Rules of Criminal Procedure. Id. at 425-26, 116 S. Ct. at 1466. The government contends that the district court’s disclosure decision conflicts with Rule 6(e) and is per se beyond the court’s inher ent authority. We need not decide this issue because, as explained later, the district court exceeds any inhere

nt authority

it has in any e

vent. 38 while district cour

ts have inherent auth

ority to act outsi

de Rule 6(e)(3),

any inherent disclosure authority is exceedingly narrow and exists only in exceptional circumstances. See id. at 1272 (concluding that “a petition by a judicial investigating committee presents one of the occasions when a district court may act outside the strict boundaries of Rule 6(e)”). 32

The Aisenbergs se

ek to uphold the grand j ury disclosure ba sed both on the district court’s inh erent authority and on t he exception in Rul e 6(e)(3)(C)(i)(I). The guidelines for d

etermining whe

n grand jury se

crecy ma y be broken are

well settled and apply in b oth situations. Sp ecifically, parties seeking disc losure must show: (1) “that the m

aterial they se

ek is needed to avoid a

possible injustice i

n another judicial proceeding”;39

(2) “that the need for disclosure is greater than the need for continued secrecy”; an

d, (3) “that their request is st ructured to cover on ly material so needed.” Douglas Oil Co. , 441 U.S. at 222 , 99 S. Ct. at 1674 ; United Kingdom v. United States , 238 F.3d 1312, 1320- 21 (11th Cir. 2001); United States v. B urke , 856 F.2d 1492, 1495-96 (11th Cir

. 1988); United States v. E lliott , 849 F.2d 554, 557 (1 1th Cir. 1988); Appeal of Hastings , 735 F.2d at 1273. These same de

manding standard

s apply even after

the grand jury has concluded its op erations. Douglas Oil Co. , 441 U.S. at 222 , 99 S. Ct. at 1674 (stating that “[ s]uch a showing m ust be made eve

n when the grand ju

ry whose transcripts are so

ught has concluded its op erations, as it had in Dennis [v. United States , 384 U.S. 855, 86 S. Ct. 1840 (1966)]”); Elliott , 849 F.2d at 557 (same); Burke , 856 F.2d at 1496 (sa me). “[ I]n considering the

effects of disclos

ure on grand jury proceedings, the cour ts must consider not only the im mediate effe

cts upon a particular gr

and jury, but a

lso the possible effe

ct upon the functioning o f future grand juries.” Douglas Oil Co. , 441 U.S. at 222 , 99 S. Ct. at 1674

. Further, the burde

n of demonstrati

ng that the need for di sclosure outweighs the need for, and pu

blic interest in, se

crecy rests upon the private party seeking disclosure

. Id. at 223, 99 S. Ct. at 1675; United States v. Liuzzo , 739 F.2d 541,33 Our precedent i n this area stems in

part from Allis-Chalmers , where the Fift h Circuit held: that

disclosure of grand jury testimony is prope rly granted wher

e there i s a compelling need for such disclosure and s uch disclosure is required by the ends of justice. Disclosure even in these circumsta

nces must be close

ly confined to the limitedportions of the tes

timony for wh

ich there is

found tobe a particularized need. 323 F.2d at 242. This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981).

40 545 (11th Cir. 1984).In order to carry this burden, the par

ty seeking disclos

ure of grand jury material must show a compelling and particularized n eed for disclosure. United States v. P

rocter & Gam

ble Co. , 356 U.S. 677, 682, 78 S. Ct. 983, 986 (1958) (stating that t

he “‘indispen

sable secrecy

of grand jury

proceedings’ m

ust not be broken except where there is a compelling necessity,” and that instances where the need outw

eighs the countervail

ing policy mus

t “be shown wit

h particularity

”) (internal cita

tion omitted); United States v. Sells Eng’g, Inc. , 463 U.S. 418, 443, 1 03 S. Ct. 3133, 3148 (1983) (stating that, “[w]e ha ve consistently construed [Rule 6(e)(3)(C)(i)(I)] . . . to require a strong showing of particularized need for grand jur

y materia ls before any di sclosure will be pe rmitted”); United Kingdom v. United States , 238 F.3d at 1320-21; Cox v. Adm’ r U.S. Steel & Carnegie , 17 F.3d 1386, 1421 ( 11th Cir. 1994); Burke , 856 F.2d at 1496; Elliott , 849 F.2d at 557; United States v. Cole , 755 F.2d 748, 758-5 9 (11th Cir. 1985); In re Grand Jury

Proceedings , 613 F.2d 501, 506 (5 th Cir. 1980); Allis-Chalmers Mfg. Co. v. City of Fort Pierce , 323 F.2d 233, 242 (5th Cir. 1963). 3341

To show a compe

lling and particular

ized need, the pri

vate party m

ust show “‘circum stances had create

d certain difficul

ties peculiar to this

case, which coul

d be alleviated by

access to specificgrand jury m aterials, withou

t doing disproportionate har

m to the salutar

y purpose of secr

ecy embodie

d in the grand jury process.’” Elliott , 849 F.2d at 558 (quot ing Liuzzo , 739 F.2d at 545). As we stated in Cox , “‘disclosure of grand jury testim ony is properly granted where there is a compelling ne

ed for such disclosur

e and such disclosure is required by th e ends of justice.’” Cox , 17 F.3d at 1421 (quot ing Allis-Chalmers , 323 F.2d at 242). Even when persons r

equesting disclosure h

ave carried the bu

rden of showing that they have a compelling and particular need for the grand jury material in or

der to avoid an injus

tice and that their n

eed for disclosure o

utweighs the secrecy ne

ed, access is lim

ited and covers only those materials actuall y needed. Cox , 17 F. 3d at 1 421 (“‘ Disclosure even in t hese circumst

ances must be c

losely confined to the limited portions of the testimony for which there is found to be a particularized ne

ed. ’”) (empha

sis in original) (quoti

ng Allis-Chalmers , 323 F.2d at 242); In re Subpoena to T estify Direc

ted to Custodian of Re

cords , 864 F.2d 1559, 1562 (11th Cir. 1989) (stating that “[e]ven when the person requesting such disclosure has shown a

particularized ne

ed for the mate

rials, access is limited and

covers only

those materia

ls actually nee

ded”); Liuzzo , 739 F.2d at 545 ( noting that42

when particulariz

ed need is shown, “

access to grand ju

ry mater ials must still be ‘discrete[] and limited[],’ and must be ‘structured to cover only the material needed’”) (alt

erations in original)

(quoting Procter & Gam ble , 356 U.S. at 683 , 78 S. Ct. at 987, a

nd Douglas Oil Co. , 441 U.S. at 222, 99 S. Ct. at 16 74). Accordingly, a “blanket request for all . . . grand jur y materia ls . . . cannot be described as the kind

of particularize

d request required f

or the production of otherwise secret information.” United Kingdom v. United States , 238 F.3d at 1321. Finally, the di strict court has “substantial discreti on” in determini

ng whether grand jury materials sho uld be released. Douglas Oil Co. , 441 U.S. at 223, 99 S. Ct. at 1 675; see also Pittsburgh Plate G lass Co. , 360 U.S. at 399, 79 S. Ct. at 1240 (1959); United Kingdom v. United States , 238 F.3d at 1320; Coronado v. BankAtlantic BanCorp, Inc. , 222 F.3d 1315, 1322 (11th Cir. 2000). We now apply these principles to this case.
E. Grand Jury Transc ripts in Aisenb ergs’ Case At the outset, we

note that the distric

t court did not rule on t

he Aisenbergs’ requests for grand j ury transcript s until its attorney ’s fees order of January 31, 2003. By this time, the indictment had been dismissed, the governm ent had conceded that attor

ney’s fees w

ere due under the H

yde Amendm

ent, and the34 The district court’s attorney’s fees order barely referred to Rule 6(e) and did not mention Rule 6(e)(

3)(C)(i)(I ) at all. Inste

ad, the district co

urt originally

appeared to ac

t under its inherent supervi

sory author

ity. In it s subsequent stay

order, however

, the district cour

t did mention Rule 6(e) and that the Aisenbergs’ “pursuit of rights they a ssert against the United States are impaired by

continuing non-d

isclosure.” This a

ppears to refer

ence the Aisenbe

rgs’ civil lawsuit against t

he government.

The Aisenberg

s seek to uphold the

disclosure under

both Rule 6(e)(3)(C)(i)

(I) and the d

istrict court’s inh

erent authority

. Thus, we have co

nsidered both grounds in reaching our conclusion in this case. 43 district court had determined the amount of those fees. The district court even acknowledged that it

had deferred ruli

ng on the Aisenbergs’ grand jury re quest until after the fee award was m ade because liabili

ty was concede

d and the grand jury discovery was most likely unneces sary. Aisenberg , 247 F. Supp. 2d at 132 2. Nonetheless, the district court ordered disclosure. We conclude that the district court erred in orde

ring disclosure of al

l grand jury tr

anscripts for sever

al reasons. 34 First, the distric

t court’s order r

elies heavily on the fact that Hy de Amendme

nt attorney’s

fees have been aw

arded in this case a

nd that public taxpayers must pay them. Based on these facts, the district court concluded that the public has a “ strong interest” in i nspecting this troubled

prosecution through the Aisenbergs gain ing access to the gran d jury materials. Aisenberg , 247 F. Supp. 2d at 1323-24. A

lthough acknowledging t he Aisenbergs’ b

urden to show entitlement to g

rand jury m

aterials, the dist

rict court in effe

ct used its Hyde Amendme

nt award as the pri

ncipal means to justify grand j ury disclosure.The district court sugges

ted in a footnote that “[p]erhaps an award under the

Hyde44

Amendme

nt ought to tilt decisive

ly the balance o f considerations unde r Rule 6(e) . . . to the

extent that public disc

losure of grand jur

y proceedings is t

he presumptive cons equence absent som e persuasive reaso

n for non-disclosure of all or part of the grand jury transcript.” Aisenberg , 247 F. Supp. 2d at 1324 n.34. In essence, this shift

s the burden to the gover

nment in Hy

de Amendm

ent cases to show a compelling and particularized need for non-disclosure of grand jury transcripts, as opposed to the Aisenbergs having the burden to show such a need for disclosure. We decline to ca

rve out new rules f

or Hyde Am

endment cases.

Nothing in the Hyde Am

endment itself

modifies the ab ove well-establish ed legal standards for discovery of

sealed grand jury

materials. See Gilbert , 198 F.3d at 1304-05 (addressing failur

e to introduce exculp atory evidence before the grand j ury and stating that “[n

]othing in the text or

legislative history

of the Hyde A

mendment indicates that Congr

ess intended to modify the law r elating to discovery

in criminal cases, to expand the Brady doctrine, or to categorize as prosecutorial misconduct actions which clearly were not misconduct under existing law”). If anything, the Hyde Amendment furthers th e protection of gran d jury secrecy. Specifically

, the Hyde Am

endment allows

the government t

o defend itself agai

nst Hyde Ame

ndment motio

ns and protect confid

ential informa

tion by submitt

ing45

certain evidence e

x parte, in cam

era, and under sea

l, such as the nam

es of confidential info rmants and evidence of matters o ccurring before the gr and jury. Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical

and statutory note s); see United States v. T ruesdale , 211 F.3d at 907 (stating that “the provision [in the Hyde Amendment] for in camera review of evidence was inc

luded to enable the gove

rnment to defe

nd itself against Hy

de Amendment motions and at the same tim e protect confidential information”). Second, to the exte

nt that the district court properly left the burden on the Aisenbergs, the di strict court abused i ts discretion by f

ailing to follow the w

ellestablished and dem

anding legal standard

s regarding what the

Aisenbergs mus

t show to be entitled to secret grand jury material. As outlined above, whether relying on the cou

rt’s inherent aut

hority or Rule 6(

e)(3)(C)(i)(

I), the Aisenber

gs have the burden to show : (1) “that the material the

y seek is needed to avoid a possible injustice i

n another proceeding

”; (2) “that th

e need for disclosur

e is greater tha n the need for contin ued secrecy”; and (3) “that [the Aisenb ergs’] request is structured to cover only material so needed.” Douglas Oil Co. , 441 U.S. at 222, 99 S. Ct. a

t 1674. The Aisenbe

rgs did not satisfy

any of these thr

ee prongs, and the district co urt erred in not requi ring them to do so. For example,

the Aisenbergs have

not shown a compe

lling and35 Due to the gover nment’s voluntary

disclosure, the ma

gistrate judge ’s discovery orders, or their own investigation, the Aisenbergs already have the following evidence: (1) the wiretap application and e

xtension requests; (

2) the wiretap ta

pes; (3) the handw

ritten transcrip

ts of those tapes upon which th

e county de

tectives relied;

(4) the govern

ment’s transcrip

ts of those tapes, including the FB

I’s work note

s; (5) all written a

nd recorded sta

tements of the Aise

nbergs, including excerp

ts of investigativ

e reports contai

ning the substanc

e of their stateme

nts, their polygraph exams, and their grand jury testimony; (6) testimony of forty witnesses during the Franks hearing; (7) voluminous exhibits from the Franks hearing, including videotapes and photographs of Sa

brina at the Nove

mber 23, 1997, birt

hday party

, summaries of the c

ounty detectives’ interviews, and a doctor’s report relied on by county detectives; (8) statements given to law enforcement by family, friends, and neig hbors ; (9) the state special prosecutor’s report outlining “substantial errors” by county la w enforcement and his investigative file, including approximately 3,000 documents from the state attorney’s off ice and the United States Attorney’s office; (10) affidavits by attendees of the November 23, 1997, birthday party indicating that Sabrina was content and did not have bruises nor missing hair; (11) sworn statements of the Aisenbergs’ babysitter and friends indicating that Sabrina w as in good condition without missing hair or bruises da

ys before t

he missing child r

eport; (12) polic

e interviews and

sworn statements by a hair stylist shop’s employ ees indicating Sabrina’s condition and, in some instances, noting misstatements in the police reports; (13) a forensic audio specialist’s affidavit opining that the wiretap tapes did

not contain the wor

d “cocaine” nor

the phrase “I

wish I hadn’t h

armed her;” (14) a doctor’s affidavit stating that the photographs of Sabrina at the November 23, 1997, birthday party do not indicate inflicted injuries; and (15) a witness’ affidavit describing questions ask ed o f her befo re t he gr and jur y.

36 In its January 31, 2003, order, the district court stated: “For re asons conspicuous in the record of this extraordinary case, the United States of America conc edes liability – apparently the only such co

ncession by

the Department of

Justice since enac

tment of the Hy

de Amendment – for a prosecution that was either ‘vexatious, frivolous, or in bad faith’ within the meaning of the Hyde Amendment.” Aisenberg , 247 F. Supp. 2d at 1275. 46 particularized ne

ed for any porti

ons of the grand jur

y transcripts f

or their civil lawsuit. Instead

, the Aisenbergs a

lready have a w

ealth of evidence a

bout the government’s

conduct. 35 Indeed, the overwhelming nature of this evidence apparently led even the governm ent to move to dismiss the indict ment and to concede that attorn

ey’s fees w

ere owed under the

Hyde Am

endment. 36 Third, the d istrict co urt also er red in conc luding th at the gov ernment’s47

interest in grand j ury secrecy was “min

imal” (in its a

ttorney’s fe

es order) and constituted “no in

terest” (in its sta

y order), and

that the governm

ent’s only inte

rest was “to avoid a full airing of the episode.” Aisenberg , 247 F. Supp. 2d at 132 4. Although the prior grand jury’s deliberations are concluded, this case involves an unsolved, serious cr

ime – the m

ysterious disappe

arance of a five-

month old child from a private

home with no for

ced entry. E

ven if the governm

ent’s investigation is, as the district court aptly said, “essentially at a standstill,” id. , the governme nt still has a substantial

interest in keeping t

he grand jury m

aterial secret un

til this serious crime

is solved and while it

s investigation continue s. Release of gr and jury transcr

ipts will tell the pe

rpetrator precis ely what the gove rnment has and what it lacks. E

ven if, as the Aise

nbergs argue, m

uch of this inform

ation is already public through other means, release of t he sealed grand ju

ry mater ials will give the perpetrato r a virtual roadmap to evad e detection and capt ure. In addition, future prospective witnesses would be hesitant to come forward and would be less like

ly to testify

fully and frank

ly, knowing that

the prior grand jury testim

ony about this sam

e missing child ha

s been made publi

c. Those witnesses would anticipate that those against whom they testify may similarly later be made awar

e of their testim

ony. As the Sup

reme Court ha

s explained, “

in considering the eff

ects of disclosure on

grand jury pr

oceedings, the cour

ts must48

consider not only t

he immedia

te effects upon a pa

rticular grand j ury, but also the possible effect upon the functioning of future grand juries.” Douglas Oil Co. , 441 U.S. at 222, 99 S. Ct. at 1674. The Supreme Court further instructed that “[p]ersons called upon to testify will consider the li

kelihood that their te stimony may one day be disclosed to outside parties,” and because “[f] ear of future retribution or socia

l stigma ma

y act as power

ful deterrents to th

ose who would come forwar

d and aid the grand j ury in the perfo rmance of its duties,” “the interests in grand j ury secrecy , although reduced,

are not elimina

ted merely because the grand jury has ended its activities.” Id

. The government, as well as the public and the Ais enbergs, have a str ong interest in solving t

his serious, missing child cri

me, in future

witnesses not being r

eluctant to testify

about this crime before

the grand jury

, and thus in the secr

ecy of the gran

d jury not being broken. The unique circum stances of this case

strongly counsel i

n favor of grand jury secrecy in the interest of solving this serious crime. Fourth, and mos

t importantly

, we agree wit

h the district court t

hat the public and the Aisenbergs h

ave a strong interes

t in any bad faith

prosecution being full

y exposed. We als o agree that the insul ation of such prosecut

ions forms no par

t of the justification f

or grand jury secrecy. H

owever, the conduc

t in this prosecution already has been publicly aire d at great length not on

ly in extensive he

arings49

before the ma

gistrate judge and district court, but also by the com prehensive orders and reports e

ntered by the m

agistrate judge,

the district court,

and the state special prosecutor. Those orders an d reports exhaustivel

y examine t

he evidence of the government’ s conduct and elucidat e in great detail the

troublesome eve

nts in this case. Furthe

r, as recounted a

bove, the Aisenber

gs already have

a wealth of evidence exposing the

government’ s conduct in this case.Given that the government’s conduct already has been revealed and publicly aired, the district court erred in concluding that the grand jury transcripts must be disclosed so that the public can know a

bout this misdirec

ted prosecution. T

he public already knows. For all these rea

sons, the district court erred in order ing disclosure of the grand jury transcripts. IV. CONCLUSION We reverse and

vacate the distric

t court’s January

31, 2003, order to th

e extent it granted the

Aisenbergs’ $2, 680,602.22 in attorne y’s fees. On remand, t

he district court shall

enter judgme

nt in favor of the Ai senbergs for $1,298, 980.00 in attorney’s f

ees, plus litigation e

xpenses of $195,670.3 2, for a total of $1,494,650.32. W

e also reverse and

vacate the distric

t court’s January

31, 2003, order to the extent it granted the Aisenbergs’ motion for release of the grand jury50

transcripts in issue and order that these grand jury tr

anscripts shall rem

ain sealed. REVERSED and VACATED IN PART; REMANDED.