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Jul. 06, 2006
Copyright © Las Vegas Review-Journal


SECURITIES FRAUD CASE: Attorneys demand legal fees

No ruling pending appeal

By ADRIENNE PACKER
REVIEW-JOURNAL

Three attorneys cleared in a multimillion-dollar securities fraud case claim they deserve to be reimbursed for their legal fees and on Wednesday lashed out at the government for its misconduct during an abbreviated trial.

"We won. They lost," defendant Herbert Jacobi shouted angrily, pointing to prosecutors during a court hearing before U.S. District Judge James Mahan. "They lost by being bad people. They lost by being bad lawyers. They lost because they had zero ethics."

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Jacobi and co-defendants Daniel Chapman and Sean Flanagan were celebrating in February after Mahan dismissed multiple charges related to an alleged $14 million fraud scheme.

After 12 days of testimony, Mahan took the unusual step when prosecutors didn't turn over to defense attorneys 600 pages worth of evidence.

But the case isn't over for Jacobi, Chapman and Flanagan, who were accused of creating public shell corporations and causing their securities to be sold in public markets.

On Wednesday, the defendants fought to keep the government from appealing the case and argued for reimbursement of more than $2 million in legal fees. Mahan ruled against the three on both issues.

On their way out of the courtroom, they expressed confidence that the 9th U.S. Circuit Court of Appeals will uphold Mahan's decision to throw out the charges.

"I am surprised and disappointed," Jacobi said. "I think Judge Mahan is a superb judge. I am disappointed he is leaving us in this literally untenable position."

The defendants said they're entitled to the legal fees because they were the prevailing party in a case where the judge ruled the government acted in bad faith.

But on Wednesday, Mahan said the government acted in bad faith on the discovery aspect of the case, not the entire investigation. He said it is impossible to determine whether the case had merit since the trial was stopped prematurely.

"Because of what Judge Mahan did, I don't know the merits of this case," Mahan said.

The government argued that because it is appealing the judge's ruling, there is no prevailing party.

"Until the dust settles and there is a final, nonappealing judgment, they are not considered the prevailing party," said Christopher Toepp, a certified law clerk on the prosecution team.

Chapman told Mahan that since the indictment was handed up, he has sold his home to pay lawyers, has lived in isolation and his career has been destroyed. When he typed his name and "Las Vegas" into a search engine, the government's news release touting the indictment was the first document to appear, Chapman said.

"Being under indictment does not have a lot of resume appeal," he told Mahan.

The defendants said if the 9th Circuit overturns Mahan's dismissal, they will struggle to come up with the money to pay their legal costs.

"Government agents have the authority to destroy people's lives," Chapman told Mahan. "With that authority comes the responsibility to show there was reason to do so. It's called probable cause."

The defendants also told Mahan that he was rewarding the prosecution for bad conduct by allowing the appeal to move forward. Flanagan suggested that future prosecution teams might purposely act in bad faith so they can appeal a case knowing the defendants depleted their legal funds.

"The whole prosecution from Day One was reprehensible," Flanagan said.

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