In U.S. v. Shaygan, No. 09-12129 (Aug. 29, 2011) (2-1) (Edmondson, J., dissenting in part), the Court reversed an award of attorneys’ fees to an acquitted criminal defendant.
The Court noted that under the Hyde Amendment, an award of attorneys’ fees to a criminal defendant is only warranted when a prosecution is “vexatious, frivolous, or in bad faith.” Rejecting the district court’s finding that the Superseding Indictment was filed as a result of a motion to suppress, and therefore in “bad faith,” the Court noted that the Superseding Indictment was filed with the support of newly discovered evidence. The prosecution was therefore “objectively reasonable.” The Court recognized the prosecutor’s threat that a “seismic shift” in the case would occur if the defense filed a motion to suppress, but found that this comment did not establish that the ensuing Superseding Indictment (which added 118 counts to the original indictment) was filed in subjective bad faith; “tough negotiating tactics and harsh words used by prosecutors cannot alone be grounds for a determination of bad faith under the Hyde Amendment.”
The Court also found that the district court violated the rights of the prosecutors when it publically reprimanded them without first affording them due process. The Court pointed out that the district court failed to give the prosecutors notice that it was considering a public reprimand. The prosecutors had no meaningful opportunity to be heard, or to cross-examine any witnesses. The Court remanded the case for further proceedings, and declined to assign the case to a different judge.
[Dissenting, Judge Edmondson argued that “the prosecutor’s personal vindictiveness prominently marked the Government’s [prosecution].” He therefore would have affirmed the attorneys’ fees award.]
