In 2014, a federal jury acquitted Gerald E. Bove of one count of Hobbs Act conspiracy and one count of Attempted Hobbs Act extortion.  Following his acquittal, Bove applied for reimbursement of the attorney’s fees and expenses he incurred in defending the criminal charges, pursuant to a rarely-litigated statutory provision known as the Hyde Amendment of 1997,[1] codified at 18 U.S.C. § 3006A.  On April 26, 2008, the Second Circuit (Cabranes, Livingston, Carney, Js.) affirmed the district court’s denial of Bove’s application, and in doing so confirmed that the standard for criminal defendants to recover fees and costs is high, and the discretion afforded district courts presented with Hyde Amendment applications is wide.

The Hyde Amendment provides in relevant part that:

the court, in any criminal case . . . may award to a prevailing party, other than the United States, a reasonable attorney’s fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.

18 U.S.C. § 3006A (statutory note).  Enacted in 1997—one year after a jury acquitted U.S. Representative Joseph McDade (R-Pa) of racketeering and conspiracy following a highly publicized eight-year investigation—the Hyde Amendment sought to provide a narrow avenue for vindicated federal criminal defendants to receive reasonable attorney’s fees in cases of extreme prosecutorial misconduct.  In the civil context, the Equal Access to Justice Act (“EAJA”) already authorized a mandatory award of fees and costs to individuals who prevailed against the U.S. government, unless the position of the government was “substantially justified.”  28 U.S.C. § 2412(d)(1).

But though federal acquittals are rare, Hyde Amendment awards are rarer still.  Even if a defendant qualifies for an award under the Hyde Amendment because he retained counsel and was the prevailing party, the defendant faces a substantial hurdle in proving, by a preponderance of the evidence, that his prosecution was frivolous, vexatious, or in bad faith within the meaning of the Hyde Amendment.  See United States v. Schneider, 395 F.3d 78, 85 (2d Cir. 2005).

The bulk of the Second Circuit’s decision in Bove is dedicated to defining those three terms.  Slip Op. 5–7 (citations omitted).  Relying on the Oxford English Dictionary and Webster’s Third New International Dictionary, the Second Circuit held that for the government’s position to be “vexatious, frivolous, or in bad faith,” the prosecution must have been brought “to hector or intimidate the defendant on shaky factual or legal grounds (vexatious);” “without even a reasonably arguable factual and legal basis (frivolous);” or “with an element of intentional deceit or dishonesty (in bad faith).”  Slip Op. 6–7.

The Second Circuit then turned its attention to Bove’s case and his specific allegations of misconduct.  First, Bove argued that the government’s theory of liability was “vexatious” because it was contrary to “clear law” on the Hobbs Act.  But although the government’s theory was admittedly novel, there was some supporting precedent and no precedent foreclosing it—and the theory was approved both by superiors within the U.S. Attorney’s Office and by labor racketeering experts at the Criminal Division of the U.S. Department of Justice.  Further, the Second Circuit found no evidence that the government had adopted this theory for the purpose of vexing or harassing Bove.  Slip Op. 9–11.

Second, Bove argued that the government’s position was in bad faith simply because the evidence against him was limited and not credible.  But the Second Circuit has firmly held that, to the contrary, this kind of claim of insufficient evidence does not support a Hyde Amendment application.  Slip Op. 13 (citing Schneider, 395 F.3d at 87).

Lastly, Bove argued that the prosecution’s position was in bad faith and vexatious because the government had failed to present evidence to the grand jury that contradicted a witness’s testimony, and the government had turned that impeachment evidence over to Bove in an allegedly untimely manner.  However, the Second Circuit observed that the government was under no obligation to do either of the things that Bove identified in his challenge.

The Second Circuit also used Bove’s case as an opportunity to join the other Circuit Courts of Appeals and confirm that it reviews a district court’s denial of a Hyde Amendment application for an abuse of discretion only.  This standard of review is consistent with fee awards under the EAJA, and good sense: being closer to the prosecution’s case and the evidence proffered against the defendant, the federal trial court is better situated to cleave instances of “prosecutorial misconduct,” which may serve as the basis for a Hyde Amendment fee award, from “prosecutorial mistake,” which cannot.  See United States v. Bowman, 380 F.3d 387, 391 (8th Cir. 2004).  Applying this deferential standard, the Second Circuit easily concluded that the district court was well within its discretion to deny Bove’s application under the Hyde Amendment.

Early in its decision, the Second Circuit observed that the standard for awarding fees under the Hyde Amendment is “intentionally demanding.”  Slip Op. 8 n.12.  Faced with substantial opposition from the then-administration and the U.S. Department of Justice, the drafters of the Hyde Amendment were cognizant of the pressure to prevent a deluge of federal payments every time the government lost a criminal prosecution.  Id.  While the latter concern has not been realized in practice, nor have many acquitted defendants found relief under the Hyde Amendment, and the limited judicial decisions applying the Hyde Amendment cannot have added significantly to the standard of conduct for federal prosecutors.  There are, of course, other ethical, professional, political, and financial incentives against bad-faith prosecutions, and the judiciary remains a pervasive bulwark against the injuries of prosecutorial misconduct.  These incentives and judicial enforcement of the rules have proven a better safeguard against wrongdoing than the Hyde Amendment.

[1] The Hyde Amendment of 1997 is unrelated to legislative provisions that restrict the use of federal funds for abortion services, and which are colloquially referred to as “Hyde Amendment(s),” although both Hyde Amendments originated with Representative Henry Hyde (R-Il 1975–2007).