For the Defense - Vol. 7, Issue 4 - 49

withholding of exculpatory information from the defendant
should constitute sufficient misconduct to warrant the granting
of attorneys' fees.3
dismissed due to a Brady4
Therefore, a defendant whose case was
or Giglio5
violation should consider
filing a Hyde Amendment motion.
The Hyde Amendment was modeled after the Equal Access
to Justice Act ( " EAJA " ), which allows for the recovery of
reasonable attorneys' fees and litigation costs by a prevailing
party against the United States in a civil action.6
There are
three major differences between the EAJA (civil) and the Hyde
Amendment (criminal). First, under the EAJA, the court may
grant relief if the government cannot show that its position was
substantially justified. The Hyde Amendment standard, however,
is much higher. To prevail, the defendant must prove that the
government's position was vexatious, frivolous or in bad faith.7
Second, under the EAJA, the government bears the burden of
demonstrating that it had substantial justification in proceeding
with the litigation.8
Conversely, under the Hyde Amendment,
the defendant bears the burden of proving the government's
misconduct.9
Third, under the EAJA, the government's position
includes not only the position taken by the government, but also
the " action or failure to act by the agency upon which the civil
action is based. " 10
The Hyde Amendment uses a much narrower
definition of the position of the government to limit actionable
misconduct to the conduct of the prosecutors. Under the Hyde
Amendment, the government's misconduct pertains exclusively
to the misconduct of the prosecutors and not any misconduct of
law enforcement.11
The Hyde Amendment requires the movant to meet other
conditions that mirror the EAJA. The requirements include: the
defendant must have a net worth of less than $2 million (or less
than $7 million and fewer than 500 employees for corporations
or other organizations, except if it is a non-profit organization, in
which case there is no monetary limit); the motion for attorneys'
fees must be filed within 30 days of the judgement; the attorney
must be retained and not appointed by the court; and, there
must be no special circumstances that make the award unjust.12
The granting of a Hyde Amendment motion is infrequently
granted because the defendant's standard of proof-that
the government's position was frivolous, vexatious, or in bad
faith-is so high. The Third Circuit has described a defendant's
burden as a " daunting obstacle. " 13
It adopted the Eighth Circuit's
definition of frivolous as " utterly without foundation in law or
fact. " 14
with little prospect of success. " 15
It added Manzo's definition of frivolity as " groundless[,]
It also adopted the definition
of " bad faith " from the Eleventh Circuit as " dishonest purpose
or moral obliquity. " 16
The Third Circuit stated that, in assessing
the standard, it " view[s] the prosecution through the lens of the
elements of the criminal charge and the evidence required to
satisfy those elements. " 17
In defining the term " vexatiousness, "
the court explained that it " overlaps with frivolousness to
the extent it too requires that the prosecution be 'objectively
deficient, [meaning] lack[ing] [in] either legal merit or factual
foundation.' " 18
Reyes-Romero was an immigration case that started as a civil
removal administrative action but resulted in criminal charges
for unlawful reentry into the United States.19
In his criminal
case, the defendant filed a motion to dismiss and argued that
the removal hearing before the administrative judge was
fraught with infirmities, challenging the validity of the removal
order.20
hearing.21
The District Court
At the hearing on the defendant's motion, agents from
the Department of Homeland Security testified about the facts
underlying the administrative
found that the agents " lied " at the administrative hearing and
also found that law enforcement's conduct was outrageous.22
Consequently, the government dismissed the criminal case with
prejudice.23
The defendant filed a motion to recover attorneys'
fees, claiming that the government had pursued a prosecution
that was frivolous, vexatious, or in bad faith.24
court granted the motion, and the Third Circuit reversed.25
The district
The
District Court explained that, in assessing the defendant's Hyde
Amendment claim, it was required to look at the prosecution's
case as a whole, i.e., from start to finish, rather than focusing
on just one particular hearing.26
It also held that examination
of the government's alleged misconduct was limited to the
criminal prosecution itself, not to the related civil proceedings
even though they were the basis for the criminal prosecution.27
The Court held that, regardless of the merits of the defendant's
claim, the government's arguments in response were reasonable
and based in law; in other words, they were not obviously
wrong.28
It further stated that, " where reasonable minds may
differ, and where the Government made objectively reasonable
and defensible choices throughout the prosecution, there can be
no Hyde Amendment liability. " 29
As Reyes-Romero demonstrates, it is difficult for a defendant
to prevail on a Hyde Amendment motion. Nevertheless, there are
cases where the court has held that the defendant has satisfied his
or her burden of proof. For instance, in United States v. Braunstein,
supra, the court found that the prosecution of the defendant for
fraud was frivolous because the government had in its possession
documents and testimony demonstrating that the alleged victim
knew of, and actively endorsed, the defendant's actions thereby
negating " any well-founded prosecution " based on fraud.30
The
Court reasoned that the alleged victim could not be deceived
about practices it actively endorsed.31
Temple,32 the defendant was indicted for destroying government
property maintained by the Bureau of Indian Affairs.33
The
District Court held that the government should have known that,
according to " Indian law, " land held in trust on behalf of tribal
nations and individual Native Americans are held in " naked legal
title in trust " for the Native Americans and the Native Americans
are the actual beneficial owners.34
As the government did not
own the land it charged the defendant with degrading, the
Court held that the prosecution of the defendant " was frivolous
under the Hyde Amendment and defendant may well be entitled
to attorney's fees. " 35
The Court ordered the defendant to file a
supplemental briefing showing that no special circumstances
existed that merited the denial of the motion.
Similarly, in United States v
Vol. 7, Issue 4 l For The Defense 49
For the Defense - Vol. 7, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 4
