United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
April 18, 2017, a grand jury returned an indictment charging
defendant Curtis Temple with destroying government property
in violation of 18 U.S.C. § 1361. (Docket 1). The
indictment alleged defendant overgrazed land
“maintained” by the Bureau of Indian Affairs
(“BIA”) between March 25, 2013, and the date of
the indictment. Id. Defendant is also the plaintiff
in two civil actions pending in this court stemming from the
conduct at issue in the indictment. See Temple v. Her
Many Horses et al., Civ. 15-5062; Temple v. United
States, Civ. 17-5075. Defendant moved to dismiss the
indictment against him and the court referred his motion to
Magistrate Judge Daneta Wollmann for a report and
recommendation (“R&R”). (Dockets 18 &
20). The magistrate judge recommended the court dismiss the
indictment. (Docket 35).
after the magistrate judge issued the R&R, the government
moved to dismiss the indictment on the grounds “that
the interest of justice will best be served by
dismissing” the indictment. (Docket 37). In a joint
status conference for the three cases involving defendant,
held on May 24, 2018, counsel for the government stated it
did not intend to re-indict defendant if the court granted
its motion to dismiss the indictment against him. (Docket
42). The court dismissed the indictment without prejudice.
to the Hyde Amendment, defendant now seeks attorney's
fees relating to his defense against the indictment. Docket
43; see Act of Nov. 26, 1997, Pub. L. No. 105-119, §
617, 111 Stat. 2440, 2519, reprinted as statutory note in 18
U.S.C. § 3006A. Defendant argues the government's
prosecution of him was “frivolous, vexatious, and in
bad faith.” (Docket 43 at p. 4). He seeks approximately
$90, 000 in attorney's fees for three separate attorneys,
supported by two affidavits detailing an itemized list of
litigation expenses. (Dockets 44 & 45). The government
resists defendant's motion, asserting its prosecution was
based on a reasonable interpretation of the law. (Docket 52
at p. 4). For the reasons given below, the court determines
the prosecution of defendant was frivolous and orders the
parties to more fully brief certain matters before the court
rules on defendant's motion.
Hyde Amendment provides in full:
During fiscal year 1998 and in any fiscal year thereafter,
the court, in any criminal case (other than a case in which
the defendant is represented by assigned counsel paid for by
the public) pending on or after the date of the enactment of
this Act, 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. 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. 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. Fees and other expenses awarded under this
provision to a party shall be paid by the agency over which
the party prevails from any funds made available to the
agency by appropriation. No. new appropriations shall be made
as a result of this provision.
Act of Nov. 26, 1997, Pub. L. No. 105-119, § 617, 111
Stat. 2440, 2519, reprinted as statutory note in 18 U.S.C.
§ 3006A. In a previous case, the court discerned seven
separate elements from the statutory text. They are:
(1) the case was pending on or after the enactment of the
Hyde Amendment; (2) the case was a criminal case; (3) the
defendant was not represented by assigned counsel paid for by
the public; (4) the defendant was the prevailing party; (5)
the prosecution was vexatious, frivolous, or in bad faith;
(6) the attorney's fees were reasonable; and (7) no
special circumstances exist that would make an award unjust.
United States v. Henrikson, No. 15-CR-50084, Docket
92 (D.S.D. June 5, 2017) (citing United States v.
Gomez, No. 10-CR-1326, 2012 WL 2899715, at *3 (W.D. Tex.
July 9, 2012)).
intent of the Hyde Amendment is to deter prosecutorial
misconduct, not prosecutorial mistake.” United
States v. Monson, 636 F.3d 435, 439 (8th Cir. 2011)
(citing United States v. Bowman, 380 F.3d 387, 391
(8th Cir. 2004)). Congress limited “Hyde Amendment
awards to cases of affirmative prosecutorial misconduct
rather than simply any prosecution which failed.”
United States v. Knott, 256 F.3d 20, 29 (1st Cir.
2001). “Requiring proof of prosecutorial misconduct
thus means that a defendant seeking to prove entitlement to a
Hyde Amendment award faces a ‘daunting obstacle.'
” Monson, 636 F.3d at 439 (quoting United
States v. Gilbert, 198 F.3d 1293, 1302 (11th Cir.
1999)). “The defendant bears the burden of proving that
the United States's position was vexatious, frivolous, or
in bad faith.” Id. at 438 (citing United
States v. Porchay, 533 F.3d 704, 711 (8th Cir. 2008).
Defendant also “has the burden to show there are no
special circumstances making the award unjust.”
Bowman, 380 F.3d at 391. “Because the text of
the Hyde Amendment uses the terms ‘vexatious,'
‘frivolous,' and ‘in bad faith'
disjunctively, courts have recognized that each term has an
independent meaning and that proof of any of the terms may
entitle a prevailing defendant to an award pursuant to the
Hyde Amendment.” Monson, 636 F.3d at 438-439.
prosecution is vexatious if it is ‘without reasonable
or probable cause or excuse.' ” Id. at
439 (citing Porchay, 533 F.3d at 711).
“A prosecution is frivolous if it is ‘utterly
without foundation in law or fact.' This standard
requires a consideration of the legal merit to a
prosecution.” Id. (citing
Porchay, 533 F.3d at 711). The Court of Appeals for
the Eighth Circuit, in considering the Hyde Amendment's
frivolity prong, cited approvingly cases from two other
Courts of Appeals defining frivolous prosecutions as
“foreclosed by binding precedent, ”
“obviously wrong” or “groundless . . . with
little prospect of success.” United States v.
Braunstein, 281 F.3d 982, 995 (9th Cir. 2002);
United States v. Bunn (In re 1997 Grand Jury), 215
F.3d 430, 436 (4th Cir. 2000). The Eighth Circuit has not
defined bad faith in the Hyde Amendment context. Other Courts
of Appeals have looked to Black's Law Dictionary to
conclude “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.” Gilbert, 198 F.3d at 1299
(quoting Black's Law Dictionary 138 (6th ed. 1990);
see also United States v. True, 250 F.3d 410, 423
(6th Cir. 2001) (same); Bunn, 215 F.3d at 436 (same).
parties agree the main contested element is whether the
prosecution was vexatious, frivolous, or in bad faith.
(Dockets 43 at p. 2 & 52 at p. 2). Three of the elements
necessary for defendant to prevail on his Hyde Amendment
motion are unchallenged. This is a criminal case with
retained counsel pending after 1997. The parties argue the
additional three elements- whether defendant is the
prevailing party, whether the attorney's fees sought are
reasonable, and whether special circumstances exist that
would make an award unjust-either minimally or not at all.