United States v. Bove

Summary

The United States Court of Appeals for the Second Circuit affirmed the denial of Gerald E. Bove’s application for attorney’s fees and litigation expenses under the Hyde Amendment. The court held that abuse of discretion is the applicable standard of review and concluded that the government’s prosecution was not vexatious, frivolous, or conducted in bad faith. The court rejected challenges based on the prosecution’s legal theory, the sufficiency and credibility of the evidence, and alleged prosecutorial misconduct.

Holdings

1. An appellate court reviews a district court's denial of an application for attorney's fees and other litigation expenses under the Hyde Amendment for abuse of discretion.
2. A prosecution qualifies as vexatious, frivolous, or in bad faith when it is brought to hector or intimidate the defendant on shaky factual or legal grounds, lacks even a reasonably arguable factual and legal basis, or includes intentional deceit or dishonesty.
3. The government's prosecution theory was not frivolous or vexatious because no controlling precedent definitely foreclosed it, some circuit precedent arguably supported it, the district court had considered and rejected a challenge to it during the prosecution, and the theory had been reviewed by government legal authorities.
4. The district court did not abuse its discretion in rejecting Bove's argument that the government's evidence was insufficient or that a witness was not credible; an unsuccessful prosecution or arguably noncredible witness does not alone establish vexatiousness, frivolousness, or bad faith.
5. The district court did not abuse its discretion in rejecting Bove's prosecutorial-misconduct arguments because the government had no duty to present exculpatory evidence to the grand jury and the challenged Jencks Act material was disclosed before trial.

Questions Presented

1. What standard of review applies to an appeal from the denial of a Hyde Amendment application for attorney's fees and litigation expenses?
2. Whether the district court abused its discretion in concluding that the government's prosecution was not vexatious, frivolous, or in bad faith under the Hyde Amendment.
3. Whether the government's unsuccessful legal theory, allegedly insufficient evidence, and alleged prosecutorial misconduct required an award under the Hyde Amendment.

Disposition

affirmed