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United States v. Temple

United States District Court, D. South Dakota, Western Division

February 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CURTIS TEMPLE, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE

         INTRODUCTION

         On 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).

         Shortly 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. Id.

         Pursuant 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.

         ANALYSIS

         I. Legal Standards

         The 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)).

         “The 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.

         “A prosecution is vexatious if it is ‘without reasonable or probable cause or excuse.' ”[1] 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).

         II. Hyde Amendment

         The 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. ...


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