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No Prosecutorial Misconduct? No Hyde Amendment Payout

By Robyn Hagan Cain on April 03, 2013 | Last updated on March 21, 2019

Under the Hyde Amendment, a district court in a 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.”

Louis Manzo thinks he deserves a Hyde Amendment payout. The Third Circuit Court of Appeals disagrees.

In October 2009, a grand jury returned a six-count indictment against Manzo, charging him with four counts of conspiring and attempting to commit extortion, in violation of the Hobbs Act, and two counts of traveling in interstate commerce to promote and facilitate bribery in violation of the Travel Act.

(The government alleged that Manzo -- while he was a candidate for mayor of Jersey City, New Jersey -- solicited and accepted bribes.)

The district court dismissed the Hobbs Act counts in 2010, holding that the alleged extortion did not constitute a violation of the Act because Manzo was not a public official at the time of the conduct and therefore could not have acted "under color of official right."

In 2012, the district court dismissed the Travel Act counts as well, holding that the receipt of something of value by an unsuccessful candidate for public office in exchange for a promise of future official conduct does not constitute bribery under the New Jersey bribery statute and does not qualify as an "unlawful activity" under the Travel Act. That's when Manzo demanded attorney's fees.

In its first stab at interpreting the Hyde Amendment, the Third Circuit turned to its sister circuits for a little guidance. The court noted that the Eleventh Circuit says that a fee-seeking defendant must show that "the government's position underlying the prosecution amounts to prosecutorial misconduct -- a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous."

It also referenced a Sixth Circuit holding that says the defendant bears the burden of meeting any one of the three grounds under the statute; acquittal by itself does not suffice.

Here, Manzo failed to meet any of those three grounds, so the Third Circuit denied his request for fees.

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