888 F.3d 606
2d Cir.2018Background
- Gerald E. Bove was tried on Hobbs Act extortion and conspiracy charges and was acquitted by a jury.
- After acquittal, Bove moved under the Hyde Amendment (1997) for reimbursement of attorney’s fees and litigation expenses, claiming the government’s position was vexatious, frivolous, or in bad faith.
- The District Court (W.D.N.Y.) denied Bove’s Hyde Amendment application, finding the government’s prosecution did not meet the statutory standard.
- Bove appealed, arguing the government’s Hobbs Act theory was legally erroneous, the evidence (notably witness Phillip Hale) was insufficient or unreliable, and that prosecutors committed misconduct.
- The Second Circuit reviewed the denial for abuse of discretion and considered whether the government’s theory and conduct satisfied the Hyde Amendment’s demanding standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for Hyde appeals | Bove challenged denial (implicit request for de novo?) | Government: abuse of discretion | Court: abuse of discretion is the correct standard |
| Whether prosecution was "vexatious, frivolous, or in bad faith" due to novel legal theory | Bove: government’s Hobbs Act theory was contrary to clear law and district rulings, thus frivolous/vexatious | Government: theory had arguable support in precedent and was approved by DOJ experts; not frivolous | Court: theory was arguable and not foreclosed by controlling precedent; not frivolous or vexatious |
| Whether insufficient or unreliable evidence (Hale) made prosecution in bad faith | Bove: Hale’s grand jury testimony contradicted earlier statements, so prosecutors knew testimony was not credible | Government: credibility is for jury; government submitted affidavit and other evidence | Court: witness credibility issues do not show bad faith; Schneider controls; no abuse of discretion |
| Alleged prosecutorial misconduct (Grand jury omissions, tardy disclosures) | Bove: failure to present exculpatory statements to grand jury and alleged "sandbagging" on disclosure showed bad faith/vexatiousness | Government: no duty to present exculpatory evidence to grand jury; disclosures were timely under Jencks Act | Court: no duty violated; disclosures timely; allegations do not show misconduct warranting Hyde relief |
Key Cases Cited
- United States v. Truesdale, 211 F.3d 898 (5th Cir. 2000) (supports abuse-of-discretion standard for Hyde appeals)
- United States v. Schneider, 395 F.3d 78 (2d Cir. 2005) (witness credibility issues do not alone show prosecution was vexatious, frivolous, or in bad faith)
- United States v. Mulder, 273 F.3d 91 (2d Cir. 2001) (discusses Hobbs Act in labor/union context; source for government’s arguable theory)
- United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999) (discusses legislative history and demanding Hyde standard)
- United States v. Williams, 504 U.S. 36 (1992) (government has no duty to present exculpatory evidence to the grand jury)