Full opinion text
ORDER MERRYDAY, District Judge. Steven and Marlene Aisenberg (the Ai-senbergs) seek recovery of “a reasonable attorney’s fee and other litigation expenses” pursuant to Section 617 of Public Law Number 105-119, 111 Stat. 2440, 2519 (1997) (the Hyde Amendment). For reasons conspicuous in the record of this extraordinary case, the United States of America concedes liability — apparently the only such concession by the Department of Justice since enactment of the Hyde Amendment — for a prosecution that was either “vexatious, frivolous, or in bad faith” within the meaning of the Hyde Amendment. The United States’ unprecedented concession leaves for determination only the correct statutory measure of the “reasonable attorney’s fee and other litigation expenses” available under the Hyde Amendment. THE AISENBERG PROSECUTION By a telephone call to the “911” emergency service, Marlene Aisenberg reported the disappearance of her daughter Sabrina in the early morning on November 24, 1997. Law enforcement responded promptly and in the next days an intense and thorough “manhunt” occurred but failed to recover Sabrina. (The Aisen-bergs insist with distinctive force that this search was mainly a search for Sabrina’s dead body, rather than a search for a living child. The United States contests this interpretation. In either event, an enormous effort occurred.) Sabrina remains missing. On December 12, 1997, eighteen days after Sabrina’s disappearance and after developing suspicions directed at the Ai-senbergs, the Hillsborough County Sheriffs Office applied successfully to the circuit court in Hillsborough County, Florida, for authorization to intercept oral communication, including telephonic communication, in the Aisenbergs’ home. Authorities furtively placed electronic interception devices throughout the Aisenbergs’ home the next day, December 13, 1997. Owing to extensions of the interception authority, for which law enforcement applied on January 9 and again on February 6, 1998, the surveillance remained active until March 2, 1998, yielding seventy-nine days of surveillance, including approximately 2,600 conversations recorded on fifty-five audio recordings (the interception protocol included minimization at two minutes and cessation of the bedroom interception between midnight and 7:00 a.m.). On September 9, 1999, about twenty-one months after Sabrina’s disappearance and about eighteen months after discontinuation of the state-authorized interception in the Aisenbergs’ home, a federal grand jury returned a twenty-seven page, six-count indictment alleging (1) that both in the Aisenbergs’ initial report and during the consequent investigation the Aisenbergs violated 18 U.S.C. §§ 1001 and 1002 by, among other things, uttering “false, fictitious, or fraudulent statements” to law enforcement respecting Sabrina’s disappearance and (2) that the Aisenbergs conspired to effect the deceptions that violated Sections 1001 and 1002. The indictment begins in part A, paragraphs one through eight, by alleging some unusual details, including the Aisen-bergs’ exact street address, the name of the Aisenbergs’ pet dog (“Brownie”), the number of bedrooms and bathrooms in the house, the existence of certain physical features at and near the Aisenbergs’ home (a cut-de-sac, a wooden fence, a concrete wall, a nearby road, street lights), and the presence of both the Aisenbergs’ alarm system and an accompanying exterior sign, which warns prospective intruders and other passersby about the alarm system. In paragraph two the indictment refers for the first time to Sabrina Aisenberg, and the indictment’s author elects to designate Sabrina as “Baby Sabrina” (presumably to capture whatever sensational and evocative value attaches to an alleged crime against an innocent infant). Paragraph nine of. the indictment alleges that: In November 1997, Baby Sabrina suffered from ear infections and perforated ear drums, requiring medical treatment. STEVEN B. AISENBERG and MARLENE J. AISENBERG missed two follow-up medical appointments for Baby Sabrina on November 10, 1997 and November 17,1997. (The obvious thrust of paragraph nine, which eventually proves wholly unjustified and misleading because Sabrina saw the pediatrician during her siblings’ appointments and the Aisenbergs canceled Sabrina’s separate appointments, is to project to the reader an image of parental disregard and disinterest in Sabrina’s medical welfare, presumably only days before her disappearance.) In part B the indictment succinctly charges a conspiracy between the Aisen-bergs to violate Section 1001 and continues into part C, which alleges in twelve paragraphs the “manner and means” by which the Aisenbergs implemented the alleged conspiracy, including falsely reporting both the kidnapping and the “circumstances of the disappearance,” failing to comply with law enforcement’s requests for certain cooperation, providing false and misleading information to law enforcement, agreeing between themselves not to “tell anyone the truth concerning the disappearance of Baby Sabrina,” and diverting toward their “personal expenses” the money received from others to assist in the search for Sabrina. (This latter accusation presumably evidences the Aisenbergs’ supposed moral laxity rather than an identified federal crime.) In part D the indictment specifies fifty-nine “overt acts” (counting one per paragraph) allegedly undertaken by the Aisen-bergs in furtherance of their conspiracy to deceive law enforcement. The “overt acts” begin with an allegedly false report to police about the time of Sabrina’s disappearance and with the allegedly conflicting reports concerning the details. The “overt acts” section of the indictment contains much that has caused controversy and rancor throughout this case. Some of the allegations seem trivial; for example, Brownie’s alleged and suspicious failure to bark on the night of Sabrina’s disappearance. Some of the allegations seem almost gratuitous; for example, the repeated (and undoubtedly embarrassing) reference to Marlene Aisenberg’s involuntary urination when she found Sabrina missing. Some of the allegations seem redundant or, at least, unnecessarily elongated; for example, the detailed account of the Aisenbergs’ alleged lethargy and disinterest in law enforcement’s investigation. In sum, the indictment of the Aisenbergs is unaccountably lengthy and replete with matters that are (at best) mere surplusage and unnecessary to the essential purpose of an indictment, which is to provide a “plain, concise, and definite written statement of the essential facts constituting the offense charged,” as prescribed by Rule 7(c)(1), Federal Rules of Criminal Procedure. This purpose is properly accomplished by an orderly and businesslike account of “only those facts and elements of the alleged offense necessary to sufficiently inform the accused of the charge and to safeguard the accused from double jeopardy.” United States v. Gold, 743 F.2d 800, 812 (11th Cir.1984). An indictment is an instrument designed to fairly notify a defendant of the essential facts comprising an offense against a specified law. An indictment is not an opportunity for the United States to marshal all available details of the inculpatory evidence, to advance arguments (especially tendentious or highly provocative arguments) and promote inferences in support of conviction, or to unnecessarily defame, embarrass, or— more to the particular point of the Hyde Amendment — gratuitously vex the defendant. Admittedly, no distinct boundary exists distinguishing a merely lengthy or a “speaking” indictment from an indictment purposefully swollen with unduly suggestive detail. The prosecutor enjoys some latitude and, of course, an indictment is neither likely to nor intended to flatter a defendant. However, a fair reading of the Aisenberg indictment (independent of any consideration of the events that follow the indictment, which events adulterate one’s view dramatically) leaves the disinterested observer with reinforced skepticism about the intention of the indictment’s author. This troubling suspicion is compounded and further reinforced by a series of allegations of dubious relevance, detached context, or questionable veracity, for example, that Marlene Aisenberg “feigned a catatonic state in front of law enforcement agents,” that the Asenbergs “failed to provide the requested lists for law enforcement,” that “Marlene J. Asenberg ... denied that there was a bald spot on Baby Sabrina’s head ...,” that the Asenbergs “retreated into their bedroom in the Asen-berg residence and turned the stereo on loudly ...,” that Steven Asenberg told his wife “what happens in this house stays in this house ...,” that Marlene Asenberg told her husband that “she doesn’t like lying to her father concerning the disappearance of Baby Sabrina ...,” that, as alleged in paragraph thirty-one of the indictment (in its entirety): On or about December 23, 1997, at approximately 10:00 a.m., STEVEN B. AI-SENBERG and MARLENE J. AISEN-BERG conducted a press conference at the office of the attorney, read from a prepared statement, and refused to answer any questions posed by the media. ... or that, as alleged in paragraph forty-one of the indictment (also, in its entirety): On or about January 12,1998, STEVEN B. AISENBERG rehearsed and taped a statement that he planned to give and later gave to a Tampa radio station, WFLA 970. (This latter allegation is based upon an obvious misinterpretation of a recorded telephone conversation between Steven A-senberg and a member of the defense team.) A more precise account or characterization of the indictment’s degree of prolixity is unnecessary because a different aspect of the indictment presents problems that supersede the troubling matters already reviewed in this order. Several paragraphs of the indictment purport to quote incriminating statements attributed to the Asenbergs. Among those paragraphs, each paragraph of which is a separate “overt act,” are paragraphs thirty-two and thirty-three: On or about December 23, 1997, at approximately 7:20 p.m., MARLENE J. AISENBERG and STEVEN B. AI-SENBERG discussed the death of Baby Sabrina and possible stories that they could tell the police about how they came up with the kidnapping story. MARLENE J. AISENBERG then told STEVEN B. AISENBERG, “The baby’s dead and buried! It was found dead because you did it! The baby’s dead no matter what you say — you just did it!” On or about December 23, 1997, at approximately 7:20 p.m., STEVEN B. AI-SENBERG replied, “Honey, there was nothing I could do about it. We need to discuss the way that we can beat the charge. I would never break from the family pact and our story even if the police were to hold me down. We will do what we have to do.” ... paragraphs thirty-six and thirty-seven: On or about December 24, 1997, at approximately 11:20 p.m., STEVEN B. AI-SENBERG and MARLENE J. AISEN-BERG discussed the possibility of neighbors being witnesses against STEVEN B. AISENBERG. STEVEN B. AISENBERG told MARLENE J. AI-SENBERG, “They can’t hang me, the other four neighbors. They can’t hang me unless you attack me before the evidence.” On or about December 24, 1997, at approximately 11:20 p.m., MARLENE J. AISENBERG stated, “Oh, Steve! I tried to save her, she died and ah we can’t confuse them, but we’ll try it Hon, you know.” MARLENE J. AISEN-BERG further stated, “I don’t think I have to wait for Joe Sarge to take me to jail ....” STEVEN B.. AISENBERG replied, “None of us expects that, I don’t expect that to happen .... ” Then STEVEN B. AISENBERG and MARLENE J. AISENBERG discussed their “time-line goof up.” ... paragraphs forty-seven and forty-eight: On or about January 21,1998, at approximately 9:00 p.m., STEVEN B. AISEN-BERG told MARLENE J. AISEN-BERG, “I wish I hadn’t harmed her.” On or about January 21,1998, at approximately 9:00 p.m., MARLENE J. AI-SENBERG told STEVEN B. AISEN-BERG, “I just can’t take the rap for this.” ... and, finally, paragraphs fifty-three and fifty-four: On or about February 10, 1998, MARLENE J. AISENBERG told STEPHEN B. AISENBERG that she was concerned about what a friend of hers would tell the federal grand jury concerning what MARLENE J. AISEN-BERG had told her friend the morning Baby Sabrina was reported missing. Later, STEVEN B. AISENBERG told MARLENE J. AISENBERG, “We’re in hot water thanks to you.” MARLENE J. AISENBERG replied that if the police indicated that the police know where Sabrina is, “I guess we’ll just tell that, that they know Sabrina is out there in the water and they have to stay looking for her .... ” On or about February 17, 1998, STEVEN B. AISENBERG and MARLENE J. AISENBERG discussed the Baby Sabrina situation, and the fact that “HRS” and the federal grand jury were still attempting to obtain proof. STEVEN B. AISENBERG told MARLENE J. AISENBERG, “They don’t know the truth, right?”, to which MARLENE J. AISENBERG responded, “Yeah.” MARLENE J. AISENBERG further told STEVEN B. AISENBERG, “So, so in a way, you know, that means nobody knows what we did still.” STEVEN B. AISENBERG replied, “Exactly.” These paragraphs and others among the “overt acts” in the indictment, in combination with the balance of the indictment, convey unmistakably and purposefully to the reader the conclusion (1) that Steven Aisenberg is responsible for the death of Sabrina by some mechanism and under circumstances known to the Aisenbergs and (2) that Marlene Aisenberg is unwilling to share legal responsibility (“take the rap”) for the acts of Steven Aisenberg, although she is willing to assist in shielding the facts from discovery. The indictment bears every indication that conveying these two messages was the author’s manifest intent. In addition to the return of an indictment against the Aisenbergs, September 9, 1999, featured another significant event in the Aisenbergs’ prosecution. On that day, consequent upon the indictment in Florida, the Aisenbergs were arrested in Maryland, Steven Aisenberg’s childhood home, to which the Aisenbergs moved after Sabrina’s disappearance. (The need to conserve money and the desire to avoid the harsh glare of local publicity arising from Sabrina’s disappearance impelled the Aisen-bergs’ return to Steven Aisenberg’s parents’ home in Maryland.) The Aisenbergs appeared that day before United States Magistrate Judge Charles B. Day in Maryland. Appearing in Maryland and urging the magistrate judge to require the Aisen-bergs to submit to urinalysis and to require intervention by a “social services professional” to protect the Aisenbergs’ other two children, an Assistant United States Attorney from the Middle District of Florida, offered this representation in behalf of the United States: The Government has in its possession a taped statement in which Steven Aisenberg states, among other things, “I wish hadn’t harmed her. It was the cocaine.” The Government also has, Your Honor, other taped statements of both Steven Aisenberg and Marlene Aisen-berg that indicate, based on the quality their statements and their behavior, — you can hear that they are drugged. (The “taped statements” to which this Assistant United States Attorney alludes were not played for the magistrate judge; they were only described. In fact, as now is apparent, no such “taped statements” exist.) Notwithstanding the representations of the United States, the Aisenbergs were released on bond. Since the indictment, arrest, and arraignment, the Aisenbergs and the United States have contested this matter with great energy and determination and, consequently, at great length. A detailed account of the proceedings (although quite instructive) is beyond the scope of this order, which concerns a “reasonable attorney’s fee and other litigation expenses” under the Hyde Amendment. However, in summary, three issues dominated the litigation from the day of the indictment. (1) The United States sought to disqualify the Aisenbergs’ defense counsel and compel retention of separate, independent counsel for each defendant. (2) The Aisenbergs attacked the audibility of the recordings that the United States intended to offer as evidence at trial and attacked the validity of the transcripts that the United States prepared for submission to the jury in tandem with the recordings. (3) In an effort that proceeded pari passu with the audibility issue, the Aisenbergs sought a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and attacked the state warrants— an initial warrant and two extensions— authorizing the installation of listening devices and the interception of oral communications in the Aisenbergs’ home. By reference, the disqualification issue and the Franks issue proceeded before United States Magistrate Judge Mark A. Pizzo; the audibility issue proceeded before the district judge. I. First, the United States sought to disqualify defense counsel by alleging that “joint representation” creates an irresolvable conflict of interest that overrides the Aisenbergs’ right to counsel of their choice. (Doc. 22) The United States claimed that the Aisenbergs possessed inconsistent defenses (for example, the United States suggests in its motion to disqualify that “ ... Marlene Aisenberg could attempt to explain [that] some of her conduct, statements, or inaction charged in the indictment was the result of the direction ... of ... Steven Aisenberg ... ”) and were entitled to independent opportunities to plea bargain. The United States further suggested that defense counsel “may become a witness at the trial” because of his putative knowledge of events both occurring after the disappearance of Sabrina and constituting a violation of Sections 1001 and 1002. The United States characterized the prospect of defense counsel’s testifying for the Aisenbergs as “very likely.” The Aisenbergs responded (Doc. 24) and the United States’ motion was denied after a finding of “good cause to believe that no conflict of interest is likely to arise.” II. Second, the Aisenbergs initiated an early effort to secure a prompt “audibility hearing” with respect to any recordings intended for use in evidence at trial. (Doc. 93) (The recordings intended for trial were fewer than all the recordings and fewer than those involved in the Franks hearing). The Aisenbergs’ initial motion concerning the issue of audibility explained the Aisenbergs’ perceived need for an audibility hearing: Several Overt Acts alleged in the indictment are based on conversations intercepted pursuant to a state Order Authorizing the Interception of Oral Communications, signed by Chief Judge Dennis Alvarez on December 12, 1997. It may be assumed that the government will attempt to introduce evidence of intercepted conversations alleged in the 24 Overt Acts by playing tapes generated by the intercept. The government has provided the defense with cassette tape copies of tapes generated during the intercept, digital copies of the conversations cited in the indictment, and, within the past few days, original tapes generated by the intercept. The defense has spent over 350 hours reviewing portions of the tapes and attempting to generate its own transcripts of the conversations. This process has included expert Altering of the tapes to remove background noises, using high-tech sound equipment to slow down and speed up the tape, and listening to specific words and phrases numerous times (over 30 per phrase or sentence). Even with this process, the defense has been unable to locate many conversations alleged by the government, and where transcripts have been made, they are often completely different from that alleged by the government. In most instances, the tapes are so inaudible that no complete and accurate transcript can be generated. The United States’ response in opposition (Doc. 138) submitted on April 17, 2000, with respect to recordings in the possession of law enforcement since March, 1998, states: If at all, the Court should conduct an audibility hearing only for those tape recordings that the United States will seek to introduce at trial and that the defendants claim are so unintelligible as to render the recordings as a whole untrustworthy. If such an audibility hearing is conducted, the Court should be able to conduct the hearing in a day’s time shortly before the trial. The defendants would have this Court believe that every one of the intercepted conversations referenced in the indictment is so inaudible that it should not be admitted into evidence. See Doc. 93 at 2-9. They assert that “no complete and accurate transcripts can be generated” and that “where transcripts have been made, they are often completely different from that alleged by the government.” Id. at 2. The transcripts of the intercepted conversations referenced in the indictment and the applications for extension of the oral interception order, which are filed in camera herewith, belie the defendants’ contention. As evidenced by such transcripts, the government has prepared complete transcripts of the defendants’ intercepted conversations. The transcripts clearly show that the tapes are “not inadmissible per se” because there are no “unintelligible portions [that] are so substantial as to render the recording[s] as a whole untrustworthy.” U.S. v. Avila, 443 F.2d 792, 795 (5th Cir.1971); see U.S. v. Pope, 132 F.3d 684, 688 (11th Cir.1998); U.S. v. Lively, 803 F.2d 1124, 1129 (11th Cir.1986). The government’s transcripts are also accurate. To the extent that the defendants assert that the government’s transcripts are not accurate, their remedy is to prepare their own versions of the transcripts for consideration by the jury at trial. See Doc. Nos. 62 and 67. It is the jury’s responsibility to decide which version of the transcript, if any, is accurate. See id. (footnote omitted). In other words, the United States (by then undoubtedly fully familiar with the “contents” of the intercept recordings yet continuing to assert confidently both the audibility of the recordings and the accura-of the transcripts) suggests either delaying the audibility hearing until trial or, preferably, directly submitting both the recordings and the United States’ and the Aisenbergs’ transcripts for consideration the jury without an audibility hearing without respect to either the audibility of the recordings or the accuracy of the transcripts. Eventually, the United States submitted for review in camera by the district court all the recordings intended for use at trial in the form of thirty-two compact discs, accompanied by a purported transcript of the contents of each disc. Both the United States and the Aisenbergs proposed details respecting the forthcoming determination of audibility. At a hearing on September 28, 2000, the parties again discussed the scheduled audibility hearing. The United States opposed the playing of the intercept recordings at the audibility hearing to the extent that, as the United States stated, “[I]f the Court is inclined to have a hearing and to play the tapes in open court ... the case law that I have looked at makes it clear that the media is not entitled to hear anything that is deemed inadmissible .... ” (In other words, the United States suggested that a hearing to determine audibility was a practical impossibility in the presence of the press because only admissible evidence could be revealed at a pre-trial hearing.) The Aisenbergs’ counsel, who by that moment had heard the intercept recordings, responded: We [the defendants] have no problem with the public hearing everything on those tapes. And the public will finally get an opportunity to see what this case is really about. So the media, we welcome them. We are not worried about any prejudice. And I can assure you that the prejudice that occurred in this case has already occurred. (The history of the Aisenberg prosecution reveals many other moments, from early until late, at which the United States wanted the intercept recordings to remain secret and the defense demanded the broadcast of the recordings for the public to hear.) Also at the September 28, 2000, hearing, the Court confirmed that the Assistant United States Attorneys had listened to the recordings in the same or comparable manner to that offered to the Court. As to the first prosecutor: THE COURT: [H]ave you listened to what I listened to? AUSA # 1: Yes, Your Honor. THE COURT: You have listened to the same discs? AUSA # 1: I have. THE COURT: Have you listened to it on the same equipment? AUSA # 1: Yes, I have, Your Honor. I have listened to at least some of the CDs on the very same equipment, and I believe all of them. And X have also listened to them on other equipment. THE COURT: Does the United States have any need to or desire to come to my office and listen to what I listened to on the equipment and in the manner that I listened to it to confirm the similarity — that’s not the right word — the equality of the two? AUSA # 1: No, Your Honor. Tr. of Hr’g, Sept. 28, 2000, (Doc. 247) at 9. The results were consistent with the second prosecutor: THE COURT: Have you listened to these tapes ... ? AUSA # 2: Yes, sir, X have. THE COURT: In the manner that I listened to them? AUSA # 2: Yes, sir. Actually, Judge, not every one of them on the compact disc, but on actual tape recordings themselves I have, and a number of them on the compact discs. Tr. of Hr’g, Sept. 28, 2000. (Doc. 247) at 18. On October 6, 2000, the audibility hearing was set for October 23, 2000. (Doc. 249) The United States moved successfully to continue the audibility hearing on October 18, 2000. (Docs. 261, 264) Again on November 1, 2000 (Doc. 276), the United States sought to continue the audibility hearing but without success. (Doc. 280) Before the September 28, 2000, hearing, I had thoroughly reviewed the thirty-two compact discs intended for use by the United States as evidence against the Ai-senbergs at trial. I had played each disc in sequence until completion. As I reviewed the recordings, I recalled that the United States had expressed repeatedly that the recordings were the motive force and principal support for its case against the Aisenbergs. The lengthy indictment included strongly inculpatory quotations attributed to the Aisenbergs, quotations avowedly derived from the thirty-two compact discs and prominently featured by the United States at a conspicuous news conference held to announce the indictment a year earlier. But after careful review, I heard none of it. I heard many audible utterances, none of them decidedly and reliably inculpatory. I promptly began another extended review of the recordings, now employing the transcripts provided by the United States and the Aisenbergs. I listened to the recordings and compared what I heard with the transcripts provided by the United States. The disparity was shocking. The Aisenbergs’ transcripts were much closer to what I heard. But, the passages I could hear (and some passages were quite audible) were inconsequential in any criminal sense. With respect to the supposedly inculpatory matters quoted in the indictment, invoked at the Maryland arraignment, broadcast proudly by the United States at the news conference to announce the indictment, and republished nationwide by the print and broadcast media, I heard none of it. Alerted to the prospect that one or more Assistant United States Attorneys might have advanced an ill-conceived prosecution, I expressed publicly at a hearing my (purposefully generalized) concern about the recordings. That concern, for example, explains my order requiring the United States to file transcripts of the grand jury testimony (in an effort to determine what, if anything, supported the indictment and what role the recordings and transcripts played in the grand jurors’ deliberations). However, after my final review of the recordings and transcripts. I issued an order (which resolved no pending motion and was entirely sua sponte) explaining (principally to the United States) my studied view of the law governing the audibility of electronic recordings, explaining that particularized reasons sometimes allow for admissibility of relevant recordings even if highly inaudible and, more to the point of the present Hyde Amendment dispute, announcing for the first time formally and publicly that the recordings were “largely inaudible.” The order (Doc. 288) states in part: The Court listened to these recordings by several methods. I listened at least twice without the aid of any extrinsic matter. I subsequently reviewed certain transcripts offered by both the United States and the Aisenbergs. I listened repeatedly and to some extent compared the sounds on the recordings to the competing transcripts. Accordingly, I made a gradual assessment of the quality of the recordings and the quality of the transcripts and remained acutely conscious of any influence from the transcripts. (Although I have reviewed the Aisenbergs’ experts’ affidavits, they will play no part in my determination.) I have reviewed these recordings thoroughly and attentively. The quality of these recordings general-is poor. The recordings contain background and foreground interference, other random noise, and prominent distortions, which together materially obscure large portions of most or all of these recordings. Considered in gross, these recordings are largely inaudible. least some of the matters appearing quotation marks in the indictment are inaudible. United States v. Aisenberg, 120 F.Supp.2d 1345, 1352 (M.D.Fla.2000). This order was intended principally to signal to the responsible supervision at the office of the United States Attorney (who, perhaps, lacked first-hand knowledge of the matter) that the presiding district judge harbored an informed view that the recordings upon which the United States relied in this prosecution were apparently insubstantial as evidence (although the order invites any pertinent reassurance in the event that the purpose of the recordings was not visible from my vantage). Finally, the order continued the audibility hearing in deference to the schedule established by the magistrate judge for the Franks hearing (if the recordings were suppressed, an audibility determination was superfluous). The audibility hearing never occurred; the results of the magistrate judge’s inquiry into the Franks issue intruded decisively. III. Third, the Aisenbergs sought to suppress the proceeds of the electronic surveillance in their home. Based on Franks, the Aisenbergs asserted that the affidavits supporting the application to the state circuit judge for interception authority were supported by information provided by law enforcement with reckless disregard for the truth. The extended Franks hearing included the testimony of investigating officers and other persons involved in procuring the warrant, a review in open court of the recordings that resulted from the interceptions in the Aisenbergs’ home, and expert testimony concerning the recordings. The magistrate judge’s report and recommendation (Doc. 336) is attached to this order and incorporated by reference in its entirety into this order. The magistrate judge painstakingly detailed the troubled history of law enforcement’s management of the interception. His conclusions are compelling: The Aisenbergs paint a consistent pattern, and they proved this pattern beyond a preponderance of the evidence at the Franks hearing. The detectives report conversations no reasonably prudent listener can hear, quote conversations that do not appear in the supporting transcript at all or in the manner described, and deliberately or with reckless disregard summarize conversations out of context. The government steadfastly rejects all of this. It does so against a record showing: systemic, technical problems producing recordings plagued by distortion, interference, and mechanical noises; application transcripts that make no sense; revised transcripts that continue to make no sense; revised transcripts that contradict the application transcripts in material respects; a continual effort to amend transcripts (to purportedly improve them) up to and through the date of this report; admissions, as evidenced by the government’s transcripts, that significant amounts of particular conversations cannot be understood or were not recorded (due to minimizations); and the government’s tacit acknowledgment that certain recordings are so poor or so irrelevant it will not offer them as evidence at trial. As detailed at length by the magistrate judge, the officials responsible for the warrant applications left a trail of reckless disregard for the truth and, of course, for the rights and well-being of the Aisen-bergs. The magistrate judge observed that: The government hears what no reasonably prudent listener can; it interprets what can be heard as no reasonably prudent listener would. Faced with the quality and nature of the recordings so far presented in this case, it is doubtful any judge, no matter how skilled and dedicated, could parse the conversations into its component parts looking for evidence of murder, sale of a minor child, child neglect with great bodily harm, or aggravated child abuse.... [I]n this case, the nature and quality of the recordings make it impossible. Moreover, the reality is that if evidence of these crimes existed, if the Defendants’ intercepted conversations proved they had done these things to their child, they would not be in the dock of a federal court charged with false statement violations .... ... The government’s central theme is the Defendants falsely reported their daughter had been kidnapped. Obviously, it proposes to use the Defendants’ intercepted conversations to prove something else likely happened to the child. The indictment, like the intercept applications, insinuates two possible scenarios: the Defendants either murdered or sold their child. If the government’s approach at the Franks hearing is indicative, the government is not wedded to a specific theory. Either supposition, murder or sale of a child, will suffice, so long as it is plausible enough to convince a jury beyond a reasonable doubt the Defendants lied to investigators as charged. Yet, the intercepted conversations do not support probable cause to believe the Defendants murdered their child, the only offense authorized by Fla. Stat. § 934.07 (1997). Nor do these conversations provide probable cause to believe the Defendants committed the other crimes listed in the applications. In the end, the magistrate judge recommended granting the Aisenbergs’ motion to suppress the recordings arising from the three orders issued in state court — an initial warrant and two extensions. The United States’ motion to dismiss the indictment against the Aisenbergs followed the magistrate judge’s recommendation by only a few days. Although neither party lodged objections to the magistrate judge’s report and recommendation and no formal review by the district judge occurred (the dismissal mooted review), my subsequent detailed review of the papers pertinent to the Franks hearing and the testimony and exhibits received by the magistrate judge during the Franks hearing reveals no misapprehension by the magistrate judge of either fact or law and no basis on which to disagree with his studied conclusions. (Of course, this dismissed action provides no present occasion for objections by the parties or formal acceptance or rejection of the magistrate judge’s report and recommendation.) Similarly, I find no reason to fault the magistrate judge’s choice of words and phrases in his writing. Admittedly, the conclusions at which he arrives are starkly expressed and unmistakable, without undue gloss, evasion, or deflection. The magistrate judge’s choice of direct and focused language serves admirably to convey the force of the disturbing reality that produced the present Hyde Amendment controversy. In fact, the magistrate judge’s order — although unsettling — is a temperate, fair, and cogent expression of the history he discovered during the Franks hearing and during his contemplation of his ruling. After my review of this matter, including the Franks hearing and its aftermath, over many months, I confirm that history; I join the magistrate judge in each of his words. The magistrate judge issued his report and recommendation on February 14, 2001. (Doe. 336) One week later, on February 21, 2001, the United States moved for leave to dismiss the indictment against the Aisenbergs. (Doc. 341) The indictment was dismissed the next day. (Doc. 342) On March 26, 2001, the Aisenbergs moved for an award under the Hyde Amendment. (Doc. 367) The United States responded in opposition on July 2, 2001. (Doc. 378) The Aisenbergs filed a reply on August 21, 2001. (Doc. 382) After a court-ordered mediation resulted in an impasse, the parties filed numerous supplemental papers. The parties presented their arguments in a four-day hearing on October 21, 22, 23, and 25, 2002, followed by an additional round of supplemental papers, leaving for present determination the issue of the Aisenbergs’ award of a “reasonable attorney’s fee and litigation expenses” under the Hyde Amendment. THE HYDE AMENDMENT In United States v. Gilbert, 136 F.3d 1451 (11th Cir.1998), the defendant was indicted after expiration of the statute of limitations, and the resulting conviction was reversed. On remand, the defendant unsuccessfully sought an award of attorney’s fees and expenses under the Hyde Amendment. In United States v. Gilbert, 198 F.3d 1293 (11th Cir.1999), the circuit court affirmed the denial of fees because the legal issue that resulted in reversal of the conviction was a question of first impression, with respect to which the district court agreed (erroneously) with the United States. (As the circuit court noted, “Once a district court judge accepts the government’s legal position it will be extremely difficult to persuade us that the issue was not debatable among reasonable lawyers and jurists, i.e., that it was frivolous.” 198 F.3d at 1304.) Gilbert’s interpretation of the Hyde Amendment, expounded by Judge Carnes in his opinion for the court, is controlling in the Eleventh Circuit (and favorably cited elsewhere throughout the United States by both appellate and trial courts). Gilbert includes both a review of the legislative history of the Hyde Amendment and an elaboration of the statutory terms “vexatious, frivolous, or in bad faith.” “Vexatious” means “without reasonable or probable cause or excuse.” Black’s Law Dictionary 1559 (7th ed.1999); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (describing “vexatious” conduct in the Title VII context as being “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith”). A “frivolous action” is one that is “[groundless ... with little prospect of success; often brought to embarrass or annoy the defendant.” Black’s Law Dictionary 668 (6th ed.1990); see also Fed. R.Civ.P. 11. Finally, “bad faith” “is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; ... it contemplates a state of mind affirmatively operating with furtive design or ill will.” Black’s Law Dictionary 139 (6th ed.1990); see also Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (defining bad faith in the law enforcement context to include “reckless disregard for the truth”). 198 F.3d at 1298-99. In this instance, the United States concedes that the prosecution of the Aisenbergs warrants the award of both a reasonable attorney’s fee and other litigation expenses because the Ai-senbergs suffered a prosecution that was either “frivolous, vexatious, or in bad faith.” The amount of the resulting award, which depends upon proper application of the Hyde Amendment, remains in controversy. The Hyde Amendment, as explained in Gilbert, passed through Congress with relative alacrity and left little, if any, meaningful legislative history. Gilbert judges the statutory language unambiguous and unaffected by the vagaries of its minimal legislative history. The Hyde Amendment’s salient provision prescribes an “award to a prevailing party” of “a reasonable attorney’s fee and other litigation expenses” after an unsuccessful criminal prosecution that the court finds “vexatious, frivolous, or in bad faith.” (The statute immediately excepts undefined “special circumstances [that] make such an award unjust,” a provision inapplicable to the Ai-senbergs’ prosecution.) The phrase “reasonable attorney’s fee” is familiar to the law and subject to clarification by established principles elaborated in a plentiful supply of appellate opinions. See, e.g., Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir.1988); Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir.1974). Only phrases such as “reasonable doubt” or “proximate cause” are equally familiar in the law. Few, if any, phrases in the language of the law are more readily recognized, more frequently litigated, or more familiar to judges, lawyers, and litigants in the United States. No one familiar with the law, lawyers, or litigation is unfamiliar with the phrase “reasonable fee.” The phrase “reasonable fee” recurs in all jurisdictions, state and federal, in contract disputes and tort disputes, in civil cases and criminal cases, in cases great and small, in the trial courts and the appellate courts, and in lawyers’ offices and clients’ conference rooms. The law of professional responsibility applicable in each of the states pervasively and jealously enforces the notion of a “reasonable fee” in every legal engagement. Congress presumably understood the phrase “reasonable attorney’s fee” to bear the definition established under the governing law. As stated in Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952): And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them. See also Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir.2002) (“Congress is presumed to know the settled legal meaning of the terms it uses in enacted statutes and to use those terms in the settled sense.”). The Hyde Amendment’s statutory award of a “reasonable attorney’s fee and other litigation expenses” is followed by this sentence: Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of Title 28, United States Code. In other words, the awards specified in the first sentence of the Hyde Amendment are “pursuant to the procedures and limitations” of “section 2412,” which is the Equal Access to Justice Act (EAJA), a statute that provides for fee awards in certain civil cases. The Hyde Amendment neither further defines nor further specifies the particular “procedures and limitations” to which the statute refers. To which “procedures and limitations” does the Hyde Amendment refer? This question presents an issue of signal importance both to the Aisenbergs and to every other victim of a prosecution that is “vexatious, frivolous, or in bad faith.” The principal issue of present importance (given, in this case, the concession by the United States that the Hyde Amendment applies) is whether, as the United States contends, the Hyde Amendment incorporates the $125 per hour cap on attorney’s fees that appears in a parenthetical in Section 2412(d)(2)(A) and, if so, whether the $125 per hour cap supersedes the Hyde Amendment’s award of a “reasonable attorney’s fee.” To illustrate the pertinent issue of statutory construction, consider this hypothetical: (1) Assume that the primary statute under consideration grants to a prevailing criminal defendant a remedial “award” of $100 if the court finds a prosecutor maliciously maintained a criminal action against the prevailing defendant but assume that the primary statute is silent concerning the time within which a claimant must apply. (2) Assume also that the primary statute provides that the “award” granted in the primary statute is “pursuant to” the “procedures and limitations” specified in a secondary statute (situated in a different title of the pertinent code), which governs compensatory awards if a court finds that an entirely different and less offensive circumstance has occurred in a civil action. (3) Assume further that the “award” in the secondary statute governing the civil action is specifically limited to only $10 and to only those claims submitted in writing within thirty days. (4) Assume finally that the pertinent claimant is a prevailing party under the primary statute and that the prevailing party’s claim is $100. Assuming these matters, is the claimant entitled to the $100 awarded in the primary statute or to only the $10 provided in the secondary statute? Is the claimant party required to apply within thirty days? This order adopts a construction (1) by which the primary statute entitles the prevailing party to $100 in accord with the primary statute’s heartland grant (notwithstanding the more restrictive grant of the secondary statute to which the primary statute refers) and (2) by which the prevailing party must apply in writing within thirty days, as required by only those “procedures and limitations” (a) that are incorporated by reference into the primary statute and prescribed in the secondary statute and (b) that implement and advance, but neither contradict nor negate, the preeminent grant of the primary statute. In summary, evaluation of the Hyde Amendment in its relation to Section 2412 reveals three alternative interpretations, each of which leads to the same result in the circumstances of the Aisenberg prosecution. First, although the Hyde Amendment purports to incorporate certain “procedures and limitations” prescribed in the Section 2412, not all available “procedures and limitations” are incorporated because some are irreconcilable with the plain terms of the Hyde Amendment. With respect to attorney’s fees, the Hyde Amendment grants a “reasonable attorney’s fee and other litigation expenses.” The inconsistent provisions of Section 2412 (limiting the award to $125 per hour) are not incorporated into the Hyde Amendment. Second (and alternatively), to the extent that the Hyde Amendment incorporates the “procedures and limitations” of Section 2412 with respect to attorney’s fees, the question recurs whether Section 2412 contains any limitation applicable to an award to the Aisenbergs, who are the victims of a prosecution that was “vexatious, frivolous, or in bad faith.” Because a “vexatious, frivolous, or bad faith” prosecution is more nearly within the purview of the “bad faith” that the common law compensates by a reasonable fee under Section 2412(b) than the term “substantially unjustified” under Section 2412(d), no applicable limitation appears in Section 2412, which provides, exactly as the Hyde Amendment provides, for a “reasonable attorney’s fee” in instances of “bad faith.” In other words, although Section 2412(d) provides for a $125 per hour cap in the event of a “substantially unjustified” action, Section 2412(b) provides for “reasonable attorney’s fees” in instances of “bad faith,” which is the circumstance encountered by the Ai-senbergs. Therefore, in “bad faith” cases, Section 2412 contains no applicable limitation on attorney’s fees and awards a “reasonable fee,” precisely the award granted by the Hyde Amendment. Third (again alternatively), even if the limitation of Section 2412 is incorporated and the incorporation includes the $125 per hour cap, the Aisenbergs’ prosecution presents a compelling array of “special factors” that permit a departure from the $125 per hour cap and that warrant the award of a reasonable attorney’s fee to compensate the Aisenbergs. A detailed explanation follows. I. A subsection-by-subsection review of Section 2412 confirms that the $125 per hour cap imposed on an attorney’s fee in Section 2412(d)(2)(A) is inapplicable to the Hyde Amendment. More specifically, a detailed (and, unfortunately, somewhat laborious) review of Section 2412 reveals several statutory provisions within Section 2412 that are fairly within the scope of the phrase “procedures and limitations” that appears in the Hyde Amendment and are, accordingly, arguably candidates for incorporation into the Hyde Amendment. Some standard must govern whether all of these provisions, none of these provisions, or only some of these provisions in Section 2412 are incorporated into the Hyde Amendment. Congress undoubtedly enjoys the power to incorporate all of them, none of them, or some of them; the pertinent question is answered by discerning congressional intent (i.e., the statutory purpose) in this particular instance. Section 2412(a) deals with “costs and fees.” Section 2412(a) presents no “procedure” or “limitation” except that cost awards against the United States are limited to “reimbursing in whole or in part the prevailing party for the costs incurred by such a party in the litigation.” The consequent interpretive question is whether the broad term “other litigation expenses” in the first sentence of the Hyde Amendment is limited by the term “costs” used in Section 2412(a). The most reasonable interpretation is that the principal purpose of the Hyde Amendment, exactly as the statute provides in its dominant first sentence, is to provide for the award of “a reasonable attorney’s fee and other litigation expenses” in the circumstances described in the Hyde Amendment. The incidental reference to “costs” embedded in a part of Section 2412 governing “costs” in civil actions involving the United States, although arguably a “limitation,” neither impliedly amends nor otherwise diminishes the essential purpose of the Hyde Amendment, which is to authorize an award of a “reasonable attorney’s fee and other litigation expenses.” This “limitation” in Section 2412(a) is inapplicable to the Hyde Amendment because importing the “limitation” contravenes the Hyde Amendment illogically, reducing the statute’s work to a nullity, a disfavored and incongruous result. Section 2412(b) contains no explicit “procedure” or “limitation,” but Section 2412(e) provides for payment of a judgment for “costs” or “attorney’s fees and expenses of litigation” as provided in Sections 2414 and 2517, which allow for payment of judgments against the United States by the Secretary of the Treasury, sometimes with approval by the Attorney General. Section 2412(c) also creates an exception “if the basis for the award is a finding that the United States acted in bad faith,” in which instance “the award shall be paid by any agency found to have acted in bad faith.... ” Is this limitation to only “bad faith” cases a “limitation” or a “procedure” of Section 2412 that applies to the Hyde Amendment, which requires the Department of Justice to answer for fees and expenses incurred by a defendant in a “vexatious, frivolous, or bad faith” prosecution? The only reasonable interpretation is that a statute that requires the Department of Justice to pay fees and expenses in the event of a “vexatious, frivolous, or bad faith prosecution” is not limited by the requirements of Section 2412 that the Secretary of the Treasury pays except in cases of “bad faith,” even if the Hyde Amendment purports to defer to the “limitations” of Section 2412. The central commands of the Hyde Amendment cannot be adulterated by reference to limitations of another statute “pursuant to” which the terms of the Hyde Amendment are supposedly implemented. Those limitations can be imported into the Hyde Amendment only to the extent that the essential commands of the Hyde Amendment are unimpaired. (Actually, no conflict should exist between the Hyde Amendment and Section 2412(c) because the ' concept of “bad faith” under Section 2412 is sufficiently broad to include a prosecution that was either “vexatious, frivolous, or in bad faith.” But, if not, the Hyde Amendment’s requirement that the offending agency pay the award apparently yields to Section 2412’s requirement that the Department of Treasury pay the award except in “bad faith” cases, leaving the Department of Treasury to pay Hyde Amendment claims in frivolous and vexatious cases but not in bad faith cases — an absurdity.) Section 2412(d)(1)(A) first provides that, in addition to the costs awarded under Section 2412(a), a “prevailing party” is entitled to an award of “fees and other expenses ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Is “substantially justified” a “limitation” that the Hyde Amendment adopts by force of the reference to Section 2412? The Hyde Amendment fixes the standard of proof at “vexatious, frivolous, or in bad faith.” Although the Hyde Amendment purports to incorporate “procedures and limitations” from Section 2412, importation into the Hyde Amendment of the “substantially justified” standard would abrogate the essential grant that characterizes the Hyde Amendment and, consequently, apply the Hyde Amendment in unintended circumstances. Again, despite the literal terms of the Hyde Amendment, Section 2412’s limitation to “substantially unjustified” actions by the United States is inapplicable to the Hyde Amendment. Similarly, the question recurs whether the Hyde Amendment incorporates the exclusion in Section 2412(d)(1)(A) when “special circumstances make an award unjust.” Obviously, the Hyde Amendment contains exactly the same language. If the Hyde Amendment automatically incorporates the “special circumstances” language of Section 2412(d)(1)(A), the “special circumstances” language in the Hyde Amendment becomes mere surplusage, a useless redundancy. The law disfavors an interpretation that renders statutory words redundant, meaningless, or absurd. 2A Norman J. Singer, Statutes and Statutory Construction (“Sutherland Statutory Construction”) § 46:06 (6th ed.2000). If Congress directed that every “procedure and limitation” in Section 2412 was engrafted automatically into the Hyde Amendment, inclusion in the Hyde Amendment of the “special circumstances” phrase was a futile and unnecessary exertion. The sounder conclusion is that the “special circumstances” language was placed into the Hyde Amendment because congressional intent required inclusion, despite the phrase’s pre-existing presence in Section 2412. In other words, once again, to preserve the congressional intent and meaning of the words of the Hyde Amendment, a “procedure” or “limitation” from Section 2412 is not borrowed. Section 2412(d)(1)(B) presents the “procedures and limitations” most readily and reasonably applicable to the Hyde Amendment. Section 2412(d)(1)(B) requires submission within thirty days after final judgment (the statute says “thirty days of,” but presumably means “after”) of a detailed application both demonstrating the party’s entitlement and containing an “itemized statement” of the attorney’s and expert’s fees and other expenses. Of course, a party claiming a fee under Section 2412(d)(1)(A) must “allege that the position of the United States was not ‘substantially justified.’ ” However, in contrast to the easily assimilated “procedure” requiring a detailed, written application within thirty days, the last sentence of Section 2412(d)(1)(B) states: Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. This unquestionably presents a “limitation” (and, perhaps, also a “procedure”). In a proceeding to which this latter sentence applies the presiding judge is restricted to the record in the case to which the fee application pertains. In other words, the parties are allowed no further submissions. On the contrary, the Hyde Amendment provides that: To determine whether or not to award fees and costs under this section, the court, for good cause shown, may receive evidence ex parte and in camera (which shall include the submission of classified evidence or evidence that reveals or might reveal the identity of an informant or undercover agent or matters occurring before a grand jury) and evidence or testimony so received shall be kept under seal. Again, Section 2412(d)(1)(B) offers a “limitation” for possible incorporation into Hyde Amendment by force of the “procedures and limitations” clause. Should incorporation occur and thereby super-the possibility of the submission of “classified evidence” and the like expressly allowed by the Hyde Amendment? Rea-suggests that the language of the Amendment governs over inconsis-language in Section 2412(d)(1)(B) and, notwithstanding the language of the Hyde Amendment incorporating the “limitations” of Section 2412, the explicit and heartland grants of the Hyde Amendment, including the provision for additional submissions (including ex parte submissions), remain in force despite inconsistent provisions in Section 2412. Section 2412(d)(1)(C) provides that the court may “reduce” or “deny” a fee award “pursuant to this subsection” if the prevailing party “engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.” Of course, in awarding a “reasonable fee” under any statutory or contractual provision, a court is not bound to compensate for undue or unreasonable conduct, without respect to Section 2412(d)(1)(C). In that sense, Section 2412(d)(1)(C) is a congressional reminder disguised as a directive and contains no “procedure or limitation” pertinent to the Hyde Amendment. (One wonders at what moment a defendant’s resistance to a frivolous, vexatious, or bad faith prosecution becomes “undue.” One reasonable answer, subject to the dictates of law and ethics, is “Never.”) Section 2412(d)(1)(D), which applies to “a civil action brought by the United States” and “agency action” to enforce a statute or regulation, provides for an award of “fees and other expenses related to defending against [an] excessive demand” by the United States, except in instances of “willful violation of law,” “bad faith,” or “special circumstances” that “make an award unjust.” Is this “limitation” incorporated into the Hyde Amendment, which, literally construed, adopts without limitation the “procedures” and “limitations” of Section 2412? For example, if a criminal defendant willfully and demonstrably violated the criminal law but is vexatiously indicted after expiration of the statute of limitations, i.e., after the prosecution is barred, can the United States successfully resist the defendant’s consequent Hyde Amendment claim by asserting the defendant’s “willful violation” of the law, as provided in Section 2412(d)(1)(D)? Of course not. Common sense forbids the result. Notwithstanding the putative, wholesale incorporation by the Hyde Amendment of the “procedures and limitations” of Section 2412, the Hyde Ame