Special Fee Shifting Statute: Fee Recovery Under Hyde Amendment Overturned

Ninth Circuit Finds Government Reliance on Expert Opinion Not Tantamount to Misconduct.

     Here is a rare one for you federal criminal practitioners.

     The Hyde Amendment, 18 U.S.C. § 3006A, permits the court to award attorney’s fees to a defendant in a criminal prosecution where the government has acted in a manner that was “vexatious, frivolous, or in bad faith ….”

     In U.S. v. Capener, 2010 L.A.D.J. DAR 392 (2010), the Ninth Circuit overturned a fee award under the Hyde Amendment, finding that it was not misconduct for the government to rely on an expert opinion for a certain theory even though the criminal charges were ultimately dismissed. The record simply contained no facts showing that further investigation was needed or that bad faith was involved.