MEMORANDUM
DALZELL, District Judge.
We here consider the final disposition of funds that were frozen almost eight years ago, well before the defendant’s indictment in this matter. After honoring the priority 18 U.S.C. § 3612(c) requires for payments of penalties and restitution from those funds, we are left with the question of disposing of the $276,930.75 that is left. Four claimants, asserting claims in excess of $560,821, have filed statements of claim,
and on May 31, 2007 we convened a hearing to consider these claims in order to make, at long last, final disposition of the remaining funds.
As will be seen, the procedural history in this matter is complex, and we rehearse it in some detail in order to put our adjudication into proper relief. We then turn to resolve the threshold question of whether, in fact, all of these funds belonged to the defendant, as all but one claimant assume.
I.
Factual Background
A.
Procedural History
On September 14, 1999, pursuant to the Anti-Fraud Injunction Statute, 18 U.S.C. § 1345, the Government filed a civil action and a motion for temporary restraining order (“TRO”) against Michael J. Grasso, Jr. (“Grasso” or “Michael”),
United States v. Grasso,
Civ. A. No. 99-4622 (E.D.Pa.) (hereinafter
“Grasso Civil”).
The next day, Judge John R. Padova, as Emergency Judge, granted the motion for a TRO, which,
inter alia,
froze all of Grasso’s accounts. On October 5, 1999, the parties filed a “Joint Motion for Entry of Agreed Upon Preliminary Injunction” with essen
tially the same provisions as the TRO. One day later, Judge Jay C. Waldman, the assigned Judge, granted the motion and entered the preliminary injunction in the form the parties submitted, which included a provision that the restraints would remain in effect until further order of the court or further stipulation of the parties.
In February of 2000, Grasso was indicted on mail fraud, wire fraud and several hundred counts of money laundering in
United States v. Grasso,
Crim. No. 00-51 (E.D.Pa.)
(“Grasso I”).
The New York law firm of Morvillo Abramovitz Grand Iason
&
Silberg initially represented him. In November of 2001, Grasso was indicted on new charges related to an attempt to gain access to the frozen funds in
United States v. Grasso,
Crim. No. 01-783 (E.D.Pa.)
(“Grasso II”).
The court scheduled trial in
Grasso I
for February of 2002. In December of 2001, Walter M. Phillips, Jr., then a partner of Hoyle Fickler Herschel & Mathes LLP, entered his appearance and took over the case from the Morvillo firm. At Mr. Phillips’s request, Judge Bruce W. Kauffman, who was presiding over
Grasso I,
released $200,000 from the frozen funds to the Hoyle law firm to be used for Grasso’s representation on the pending criminal charges.
After a two-week trial in February of 2002, the jury convicted Grasso on all counts in
Grasso I.
Grasso later entered a guilty plea on the obstruction of justice offenses in Grasso
II,
assigned to Judge Berle M. Schiller, and on June 21, 2002 that case was consolidated with
Grasso I
for purposes of sentencing. Shortly before sentencing, Judge Kauffman recused and the consolidated sentencing went forward on February 3, 2003 before Judge Schiller, who sentenced Grasso to a total of 102 months’ imprisonment (ninety-seven months in
Grasso I
and five consecutive months in
Grasso
II), imposed a fine and an assessment, and ordered restitution. Judge Schiller simultaneously entered an “Order of Forfeiture and Forfeiture Money Judgment” against Grasso in the sum of $2,844,591.17, which was “made part of the sentence and included in the judgment.” Forfeiture Order of Feb. 3, 2003, at ¶¶ 4, 7. That same day, Judge Schiller released an additional $100,000 to the Hoyle law firm for its representation of Grasso.
Grasso appealed his sentence. He argued,
inter alia,
that he was not guilty in
Grasso I of
money laundering under the Seventh Circuit’s decision in
United States v. Scialabba,
282 F.3d 475 (7th Cir.2002),
reh’g en banc denied, cert. denied,
537 U.S. 1071, 123 S.Ct. 671, 154 L.Ed.2d 565 (2002), and that the restitution and sentencing orders were flawed. Our Court of Appeals affirmed the money laundering conviction and sentence, but remanded the matter for further proceedings on the fine and restitution.
See United States v. Grasso,
381 F.3d 160 (3d Cir.2004).
Grasso petitioned for a writ of certiorari from the United States Supreme Court, challenging his money laundering conviction and sentence based on the split in the Circuits
Scialabba
presented. He also challenged his money laundering sentence under the then-recent case of
Blakely v.
Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After the Supreme Court decided
United States v. Booker,
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it vacated the Third Circuit’s judgment in
Grasso,
and remanded the case for further proceedings consistent with
Booker
without addressing the merits of the
Scialabba
issue.
See Grasso v. United States,
544 U.S. 945, 125 S.Ct. 1696, 161 L.Ed.2d 518 (2005). On June 13, 2005, the Third Circuit issued an order that “the sentence entered by the District Court is vacated and the case is remanded to the District Court for resentencing.” Order of June 13, 2005 (3d Cir.).
In September of 2005, Judge J. Curtis Joyner, who was assigned
Grasso Civil
on Judge Waldman’s death, dismissed that case with prejudice and by stipulation. Judge Joyner also approved a “Stipulated Permanent Injunction” providing that: “All funds which were frozen in this matter by Court Order dated October 6, 1999, shall be distributed by Court Order in connection with the. criminal case of
United States v. Michael Grasso,
CR 00-51-1.... ” Stip. & Order of Sept. 27, 2005, at ¶ 5.
The two criminal cases were reassigned to us when Judge Schiller recused in July of 2005. The following month we resen-tenced Grasso to ninety-seven months imprisonment in
Grasso I
and increased the sentence in
Grasso II
by five months; we imposed fines and restitution, but did
not
order forfeiture. We also ordered a mailing to be sent to a sample of Grasso’s victims to test the practicability of restitution. Our Court of Appeals affirmed the new sentence.
See United States v. Grasso,
197 Fed.Appx. 200 (3d Cir.2006).
In light of the promising results from the sample mailing, on June 5, 2006 we appointed a claims administrator to carry out the restitution program. The next day we ruled on Grasso’s motion to distribute the assets, which included a request to release certain funds to his mother, Mavin Honey Grasso (“Mavin”), and denied the motion without prejudice to its reassertion after the restitution program was completed.
During 2006 and early 2007, the claims administrator made restitution payments totalling $339,469.09 to just over half of Grasso’s victims.
Having completed the restitution program and satisfied the priority of 18 U.S.C. § 3612(c)
(i.e.,
special assessment, restitution, then fine), we turned to the question of how to disburse the over $275,000 remaining from the frozen assets, which had never been subject to final adjudication. We ordered that “[b]y May 8, 2007 all interested parties shall FILE statements of claim and state in detail the legal basis for their asserted entitlement to any portion of the Remaining Funds.” Order of Apr. 17, 2007, at ¶ 2. We convened a hearing on the matter on May 31, 2007. The remaining funds as of that date to-talled $276,930.75. Before assessing their proper disposition, we now summarize the claims of the four parties that submitted timely statements of claim.
B.
The
Claims
1.
Mavin Grasso
Mavin, Michael’s mother, seeks $105,000 plus unspecified interest, which represents the amount that she and her late husband, Michael Grasso, Sr. (“Senior”) invested in an account in their son’s name. Mavin is a seventy-two-year-old widow who lives with
her son, Patrick. Prom 1960 to 1980, she worked at a delicatessen that she owned on 22nd Street and Indiana Avenue in Philadelphia. Her husband died in early 2001. Senior was a truck driver until 1969, when the Veterans Administration found him totally disabled because of a condition resulting from his World War II service in Europe.
The undisputed testimony of Mavin and Michael is that, in late 1998 and early 1999, Mavin and Senior decided to increase their investment return by taking certificates of deposits as they matured and buying shares in a mutual fund where their son had an account. On November 10, 1998, Mavin and Senior combined $49,556.47 from their certificate of deposit at First Union Corporation
with about $5,000.00 from their checking account, and they directed First Union to issue a check for $55,000 to “PBHG Large Cap 20 Fund.”
See
Mot. to Free Assets, June 16, 2000, Ex. G First Union Bank Statement (10/22/98-11/23/98); Ex. H First Union Check # 093005018 to PBHG. On November 13, 1998, PBHG received the check and used it to purchase 3,179.191 shares of the Large Cap 20 Fund, which it placed in Michael’s account.
Id.
at Ex. I PBHG Statement of Account Activity.
On January 28, 1999, Mavin and Senior directed First Union to take $50,000 more from their account and issue a check to “PBHG LARGE CAP 20 FUND.”
Id.
at Ex. J First Union Bank Statement (1/1/99-1/31/99); Ex. K First Union Check # 093005392 to PBHG. On February 1, 1999 PBHG received the check and used it tó buy 2,098.196 shares of the Large Cap 20 Fund, which it again deposited in Michael’s account.
Id.
at Ex. L PBHG Statement of Account Activity. Thus, as of February 1, 1999, Michael’s parents had paid for 5,277.387 shares of the Large Cap 20 Fund that were deposited in his PBHG account.
The PBHG records authenticated at the hearing show that on May 25, 1999 Michael closed out the position in the Large Cap 20 Fund for $21.74 a share, and thus his parents’ 5,277.387 shares were on that day worth $114,730.
Id.
at Ex. M PBHG Statement of Account Activity. With his parents’ and his own proceeds, Michael immediately purchased shares in the PBHG Technology & Communication Fund at a price of $26.13 per share.
Id.
Thus, Mavin and Senior’s $114,730 purchased 4,390.739 of the 14,183.785 shares Michael acquired on May 25,1999.
As noted, in September of 1999, all of Michael’s assets, including the PBHG account, were frozen pursuant to the TRO and stipulated injunction. As of the September 15, 1999 freeze order, Mavin and Senior’s shares were worth $155,651.69.
They twice tried to recover their investments from the frozen assets. On June 16, 2000, they filed a motion to free assets to allow them access to their shares of the Pilgrim Baxter Technology & Communications Fund, and they attached exhibits of statements from their bank and PBHG documenting their transactions. On October 20, 2000, Judge Waldman, without convening a hearing, found in a brief Order in
Grasso Civil
that “they have not shown that the Fund actually deposited the cheeks they wrote or that the proceeds from the checks were deposited into defendant’s account and actually used to purchase the claimed shares.”
See
Order of Oct. 20, 2000. Mavin and Senior then filed a motion to vacate that Order. In denying the motion in a brief Order, Judge Wald-man found that the deposit slips were not a basis for reconsideration under Fed. R.Civ.P. 60(b)(1), were not “newly discovered evidence” within the meaning of Rule 60(b)(2), and were (in his view) illegible in the pertinent portions.
See
Order of Feb. 23, 2001.
2.
Hoyle, Fickler, Herschel & Mathes LLP
From February of 2001 until April 8, 2005, Hoyle, Fickler, Herschel & Mathes LLP, through its partner, Walter M. Phillips, Jr., represented Grasso. Mr. Phillips, senior associate Kevin Kotch, and a junior associate performed the bulk of the work. When Mr. Phillips left the Hoyle firm in April of 2005, Grasso owed that firm $247,-826.94-$247,101.21 in fees and $725.73 in expenses — which it now seeks to recover.
See
Hoyle Statement of Claim, Ex. A, List of fifteen invoices from April 4, 2002 to Mar. 11, 2005; Hoyle Supp. Statement of Claim, Ex. A Statement of payments and credits. Those fees were related to sentencing and the certiorari petition.
3.
Obermayer Rebmann Maxwell & Hippel LLP
When Mr. Phillips left the Hoyle firm in April of 2005, he moved to the firm of Obermayer Rebmann Maxwell & Hippel LLP. At Obermayer, Mr. Phillips continued to represent Grasso, who now owes that firm $192,667.50 in fees and $3,213.67 in expenses, for a total of $195,881.17.
See
Obermayer Statement of Claim 6. The
Obermayer firm has not received any compensation for its representation.
The fees requested include time that Mr. Phillips and his colleagues spent on: (1) representing Grasso in the resentenc-ing; (2) working on the appeal of the August 2005 sentence; and (3) addressing the issue of restitution. The resentencing involved some issues not addressed at the original sentencing, including the interplay of the Supreme Court’s decision in
Booker
and the now-advisory sentencing guidelines. The appeal of the August 2005 sentence also involved issues not presented in the original appeal, such as
Booker’s
import and the constitutionality of the increased sentence we imposed. Because of the protracted and complex nature of the case and Grasso’s potential exposure, Mr. Phillips asserts that his firm’s fees and expenses were reasonable and necessary.
4.Jenkins, Siergiej & Smith
Before the Government filed
Grasso Civil,
Michael F. Smith, Esquire, of Jenkins, Siergiej & Smith represented Grasso in “various miscellaneous matters ... related to enjoining the Defendant from using the mails to carry out those activities that ultimately resulted in the filing of the indictments.” Jenkins Statement of Claim ¶ 3. These matters included claims against Grasso from the Internal Revenue Service and Lower Gwynedd Township related to his business privilege taxes. Mr. Smith provided services from August of 2001 until April of 2006, when he finished Grasso’s defense against the Township’s tax claims and filed the necessary tax returns for the years in question. The Jenkins firm submits two invoices totaling $12,113.85: (1) $1,945.00 from Lower
Gwynedd Township (Invoice # 064486, which includes a previous payment of $1,100), and (2) $10,168.85 from IRS Tax Lien (Invoice # 064487, which includes
previous payment of $501.40). The Jenkins firm asserts that it “is entitled to be compensated as such creditor to the funds held by the Court which appear to be in excess of fines, penalties and restitution.”
Id.
at ¶ 8.
II.
Analysis
The claimants have not cited any law, nor are we aware of any, that governs the priority of claims as to frozen funds where the financial aspects of a federal criminal judgment have been satisfied.
We therefore look to the equities to allocate the remaining funds.
A.
Mavin Grasso’s Claims
We must first consider the claim of Mavin Grasso because she raises at the threshold the question of whether, in fact, all of the frozen funds were Michael’s. She contends now, as she has for many years, that the shares she and her late husband purchased through her son’s account were meant to be investments for her and Senior, and were
not
a gift to her son. The Government, while it contends that Mavin has not substantiated her claim and relies on Judge Waldman’s rulings, does not dispute the truth of her representation about the character of the transactions.
Ordinarily, a transfer of assets between a parent and a child is presumed to be a gift:
If a parent furnishes the purchase money and title to property is taken in the name of a child, a presumption arises that the parent intended the funds to be a gift.... The presumption has its genesis in the Restatement (Second) of Trusts, § 443, which provides:
Where a transfer of property is made to one person and the purchase price is paid by another, and the transferee is a wife, child, or other natural object of bounty of the person by whom the purchase price is paid, and the latter manifests an intent that the transferee should not have the beneficial interest in the property, a resulting trust arises.
Hornyak v. Sell,
427 Pa.Super. 356, 629 A.2d 138, 140 (1993) (internal quotation and citation omitted).
Thus, under the Restatement of Trusts, a resulting trust arises if the transferor intends it to.
See Mermon v. Mermon,
257 Pa.Super. 228, 390 A.2d 796, 798 (1978) (“it is the intention of the payor at the time of the transfer and not at some subsequent time which determines whether a resulting trust arises”) (quoting Comment a. Restatement of Trusts 2nd, § 443). One rebuts the presumption of a gift by “clear, explicit, and unequivocal] evidence” of a contrary intention, thereby establishing the existence of a resulting trust.
Id.
at 799.
As noted earlier, in the context of seeking relief from the stipulated preliminary
injunction, Judge Waldman on October 20, 2000 denied Mavin and Senior’s motion to release to them their shares in Pilgrim Baxter Technology & Communications Fund, which at the time of that Order were worth $318,943.28.
It may be that Judge Waldman came to this harsh conclusion because he did not have the benefit of a hearing that would have revealed to him, as it was to us on May 31, 2007, that no party disputed the fact that Mrs. Grasso and her late husband had in fact remitted two bank checks totaling $105,000 in favor of “PBHG Large Cap 20 Fund,” and
not
in favor of their son, Michael.
Both Mavin and Michael testified before us without contradiction that these funds were intended only for his parents’ investment, and not as a gift to Michael.
See
Hr’g Tr. 17:19-18:11, 28:6-29:11. Michael understood that he was to invest the funds with his own in the Pilgrim Baxter mutual fund he thought most suitable.
None of the money his parents invested came from Michael or had anything whatsoever to do with what ultimately turned out to be criminal on Michael’s part. In short, there is no dispute that this couple, of very modest means, entrusted these funds to their son for investment purposes only.
She relied on her son’s advice that she would be better served investing with him in shares which could appreciate in value.
The shares that ultimately were invested in the Technology and Communications Fund thus belonged exclusively to the parents. Under §§ 404 and 443
of the Restatement (Second) of Trusts and under Pennsylvania law,
a resulting trust has been in existence in favor of Mavin and Senior since their first check bought the first tranche of PBHG mutual fund shares on November 13, 1998. Their part of the frozen funds was never Michael’s.
But what, exactly, is this part worth today? We know beyond peradventure that Mavin and Senior’s shares were worth $318,943.28 when Judge Waldman, without a hearing, determined not to return the shares, which was well before Michael’s criminal trial.
We also know from the
published share value of the mutual fund’s successor — Old Mutual Columbus Circle Technology and Communication Fund
— that as of the date of the hearing the closing price was $14.02, which would have made 4,390.755 shares worth $61,558.39, a loss since October 20, 2000 of $270,821.76. It would be intolerably inequitable for Mavin to suffer such a loss when she and her late husband had done everything in their power to prevent it. It may be all well and good for the Government in 2000 to advise Judge Waldman, in effect, that there was insufficient documentary proof that Mavin and Senior invested the $105,000 in their son’s care. It is quite another matter for a different Assistant United States Attorney on May 31, 2007 not to dispute the authenticity of a single record that amply documents the reality, at all times, of Mavin and Senior’s contentions.
It is true that, had the $105,000 been invested at, say, five percent
since the assets were frozen on September 15, 1999 they would today be worth about $153,063. It is also true that the couple’s shares on September 15, 1999 had a market value of $155,651.69, which invested at five percent would be worth $229,322.31 today.
But there is nothing hypothetical about the reality that by October 20, 2000 Senior was less than five months from his death, Mavin was sixty-five years old, and the son who was entrusted to invest their money could no longer touch those funds. As of October 20, 2000, there is no question that Mavin and Senior’s interest totalled $318,943.28, and that, under the circumstances Mavin and Senior faced on October
20, 2000, they would scarcely have kept so large a portion of their modest means in a technology mutual fund. In short, it requires little imagination to expect that, had the Government acted in 2000 as it does now, Mavin and Senior would have had the shares and sold them so the income could help meet the pressing needs of Senior’s remaining months and Mavin’s retirement, not to mention assist with the catastrophe their son, Michael, then faced.
These funds were always Mavin and Senior’s. They did everything they could to get what was theirs, but faced a Government indifferent to their plight and (apparently) to the truth, as well as a tribunal that relied on that Government without giving them the process they only now have received. Though they should have on October 20, 2000 got their shares back — which at the time were worth $318,-943.28 — they had to wait almost seven years for the simple truth of their case to be recognized. Following Justice Story’s teaching that “equity will, for the purposes of justice, treat that to have been done, which ought to have been done,”
Taylor v. Longworth,
39 U.S. 172, 14 Pet. 172, 10 L.Ed. 405 (1840), we shall value their interest in the resulting trust as of October 20, 2000.
By now, however, we are $42,012.53 short of what the couple should have had in October of 2000. We shall therefore treat the balance of the funds on hand as Mavin’s by operation of the powerful equities we have found on this record.
B.
Law Finns’ Claims
Against the weighty equities that tip so heavily in Mavin’s favor, the law firms’ fee requests pale. Of the roughly $1 million that Grasso has accrued in paid and unpaid legal bills, the Government calculates that about $591,000 has already been paid— $416,823 to the Hoyle firm,
$150,000 to the Morvillo firm through a home equity loan that was repaid through Grasso’s accounts,
and about $25,000 to separate counsel in connection with the civil proceeding. Thus, on top of the $566,000 that has been paid for Grasso’s representation in the criminal matters, the law firms now seek an additional $455,821.96.
But Mr. Phillips, a most seasoned criminal defense practitioner, knew perfectly well what he was getting into when he replaced the Morvillo firm. And his partners at the Hoyle firm, and later at the Obermayer firm, are hardly naifs. Neither firm needs the Court’s assistance in protecting their interests when they take on a new client, and thus neither presents any equitable claim that could conceivably eclipse Mavin’s.
The Jenkins, Siergiej & Smith claim stands on no better footing than the other two firms. As that firm’s work had
nothing to do with the criminal prosecution here, we are fortified in our conclusion as to its priority being subordinate to Mavin’s claim.
C.
The Government’s Forfeiture Request
As to the Government’s request for forfeiture, no forfeiture order exists. To be sure, an order of forfeiture was part of Grasso’s original sentence, but in its June 13, 2005 Order, our Court of Appeals directed that “the sentence entered by the District Court is vacated and the case is remanded to the District Court for resen-tencing.” Because at our resentencing we did not impose an order of forfeiture, there remains no such order in this case.
In any event, there is certainly no need or equitable reason to impose one at Mavin Grasso’s expense. As is by now abundantly clear, she is a wholly innocent bystander whose assets were held hostage for almost eight years with the Government’s full support.
ORDER
AND NOW, this 4th day of June, 2007, upon consideration of the timely statements of claim of Mavin Honey Grasso; Hoyle, Fickler, Herschel & Mathes LLP; Obermayer Rebmann Maxwell & Hippel LLP; and Jenkins, Siergiej & Smith, the Government’s response to these statements, the supplemental statements of the Hoyle and Obermayer firms, and after a May 31, 2007 hearing on this matter, and in accordance with the findings of fact and conclusions of law set forth in the accompanying Memorandum, it is hereby ORDERED that:
1.The Statement of Claim of Mavin Honey Grasso is ALLOWED as calculated in the Memorandum;
2. All other claims to the frozen funds are DISALLOWED; and
3. The Clerk of Court shall DISBURSE all the frozen funds remaining in the Court’s Registry in connection with this case to Mavin Honey Grasso, c/o Joseph J. Hylan, Esquire, 525 Swede Street, Norristown, PA 19401.