UNITED STATES OF AMERICA, Appellant v. MARIO NELSON REYES-ROMERO
No. 19-1923
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Filed: May 19, 2020
PRECEDENTIAL. On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2:17-cr-00292-001). Hon. Mark R. Hornak, Chief United States District Judge. Argued March 3, 2020.
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 19-1923
UNITED STATES OF AMERICA, Appellant
v.
MARIO NELSON REYES-ROMERO
On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2:17-cr-00292-001) Hon. Mark R. Hornak, Chief United States District Judge
Argued March 3, 2020
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges
(Filed: May 19, 2020)
Donovan J. Cocas [Argued]
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellant United States of America
Adrian N. Roe [Argued]
428 Boulevard of the Allies
First Floor
Pittsburgh, PA 15219
Counsel for Appellee Mario Nelson Reyes-Romero
KRAUSE, Circuit Judge.
Under the Hyde Amendment, a prevailing defendant in a federal criminal prosecution can apply to have his attorney‘s fees and costs covered by the government. Such an award is appropriate only if the defendant shows that “the position of the United States” in the prosecution “was vexatious, frivolous, or in bad faith.”
The District Court here awarded attorney‘s fees and costs under the Hyde Amendment to Mario Nelson Reyes-Romero, who was prosecuted for unlawful reentry in violation of
I. BACKGROUND
The relevant background can be divided into three stages. First, Reyes-Romero, a noncitizen,1 was subject to an administrative removal proceeding and removed from the country. Second, he returned to the United States and was prosecuted for unlawful reentry, a charge that he collaterally attacked under
A. 2011 Administrative Removal Proceeding
Reyes-Romero, an El Salvadoran national, entered the United States unlawfully in 2004. In 2008, the Department of Homeland Security (DHS) initiated removal proceedings on the ground that he was “present in the United States without [having] be[en] admitted or paroled,”
In 2011, DHS officers Trushant Darji and Jose Alicea conducted Reyes-Romero‘s administrative removal proceeding. The officers first served him with a Form I-826, which sets out a “Notice of Rights and Request for Disposition.” App. 180. It is unclear why they did so, as the I-826 does not apply to noncitizens in expedited removal because of an aggravated felony conviction. For instance, the I-826 instructed Reyes-Romero he “ha[d] the right to a hearing before the Immigration Court,” id., even though administrative removal is conducted by immigration officers outside of the Immigration Court, see
The officers then presented Reyes-Romero with the applicable form—a Form I-851, the “Notice of Intent to Issue a Final Administrative Removal Order” that governs noncitizens who are charged with having committed an aggravated felony. App. 96–97. The I-851 informed Reyes-Romero of the grounds for expedited removal, his ability to contest those grounds, and the option to raise any “fear [of] persecution” related to his return to El Salvador. Id. That form indicated Reyes-Romero conceded removability, “acknowledge[d] that [he was] not eligible for any form of relief from removal,” and waived judicial review. App. 97. But close examination of the I-851 reveals it to be irregular. Reyes-Romero apparently executed the waiver of his rights at 9:00 AM—twenty minutes before the time stamp next to a certification that the form had been translated into Spanish for his benefit and forty minutes before the time stamp accompanying the relevant DHS supervisor‘s issuing signature.
Reyes-Romero received a final administrative removal order that afternoon and was later removed to El Salvador.
B. Unlawful Reentry Prosecution
Reyes-Romero returned to the United States without inspection and, after he was found and detained, a federal grand jury returned an indictment charging him with unlawful reentry in violation of
Instead, Reyes-Romero moved to dismiss the indictment under a statutory provision allowing him to “challenge the validity of the [removal] order” on which the prosecution was based,
Reyes-Romero‘s motion advanced two arguments. First, the 2011 administrative removal proceeding, with its contradictory forms and the “inconsisten[t]” selections on the I-826, “had an impermissible tendency to mislead” him and invalidated any waiver of his rights. App. 71. Second, the proceeding was “fundamentally unfair” because he had not committed an aggravated felony and therefore was entitled to a full hearing before an immigration judge (IJ).3 App. 72.
The Government resisted on both fronts. In its view, Reyes-Romero‘s I-851 waiver was valid and overcame any inconsistency on the I-826, and as a result he had failed to exhaust administrative remedies or seek judicial review as required by
The District Court held a hearing on the
The Government called Officers Darji and Alicea as witnesses. Each had no memory of Reyes-Romero or his proceeding
The District Court, interposing its own questions at the hearing, pressed Officer Darji about Reyes-Romero‘s forms:
THE COURT: . . . [A]m I reading the[se forms] accurately that within moments of 9 o‘clock in the morning on June 23rd, 2011, several things had occurred pretty much all at once. This defendant was told he had a right to request a hearing. He requested a hearing. He said he didn‘t want a hearing. And he was told he couldn‘t have a hearing. Am I reading those forms correctly, sir?
THE WITNESS: Yes.
THE COURT: Does that make any sense at all to you, sir?
THE WITNESS: No, Your Honor.
App. 331. The District Court took Officer Darji‘s response to mean that “the process that was used” in Reyes-Romero‘s removal proceeding did not “ma[k]e . . . sense.” App. 476.
Based on that concession and the defects in Reyes-Romero‘s forms, the District Court made clear it was “highly likely . . . [to] conclude that there was no voluntary and intelligent waiver” and therefore that “the first two prongs of [
The parties’ attention therefore turned to the “only open issue“: prejudice. App. 543. At first, Reyes-Romero repeated the argument he had advanced in his brief: that the misidentification of his crime of conviction as an aggravated felony itself constituted prejudice. But after the District Court pressed him about “the reasonable likelihood of some different result” in the removal proceeding, App. 442, he switched gears, arguing that he could have sought asylum or withholding of removal. To bolster that novel argument, he offered testimony from relatives who had suffered abuses in El Salvador or in neighboring Honduras. Seeking more support, Reyes-Romero requested his relatives’ A-files, and the parties set out on a multiweek process to get them from DHS. The Court held Reyes-Romero‘s motion while that process was underway and requested supplemental briefing to be filed once it was complete.
While his
The Government soon came back with a surprise: a motion to dismiss the indictment with prejudice under
When the parties convened for a hearing to address the Government‘s motion to dismiss, the Government clarified that the “additional . . . information” to which it had referred came from Reyes-Romero‘s relatives’ A-files, some of which “support[ed] the testimony” he had offered in support of relief from removal. App. 645. The Government‘s decision to seek dismissal, it explained, was based on the “litigation risk to th[e] [
Yet when the hearing resumed the next day, the District Court‘s assessment had evolved. It now expressed the view that the DHS officers’ testimony was not just “bizarre,” but a mix of “lies” and “law enforcement outrageousness.” App. 677. And it recalled Officer Darji‘s answer to its line of questioning to have meant not just that “the process . . . used” in the removal proceeding did not “ma[k]e any sense,” App. 476, but that “his [own] testimony made no sense,” App. 678 (emphasis added). Most significant, the Court no longer deemed AUSA Hallowell blameless, but as needing to make a “choice” about whether he would “continue to rely on th[e] [officers‘] testimony.” App. 678–79. Even if the prosecution was not responsible for errors in the removal proceeding, it said, there “come[s] a point where” the Government “adopt[s]” those errors as its own. App. 679. The Court again held all motions open pending further briefing.
In an effort to respond to the concerns voiced by the District Court, the Government filed a supplemental brief raising two points: First, the District Court lacked jurisdiction to condition a
But the Government‘s brief came with yet another surprise. At the start of the prosecution, the U.S. Attorney‘s Office had received black-and-white copies of Reyes-Romero‘s A-file from DHS and had shared those files with Reyes-Romero‘s counsel. Neither counsel had previously asked to inspect the originals. But before filing its supplemental brief, the prosecution obtained the original documents, which revealed that the two inconsistent checks on the I-826—one requesting a hearing, the
After reviewing the color copies, the District Court was “more convinced than ever” that the DHS officers’ testimony was a “combination of nonsense . . . [and] lies.” App. 792. And it continued to criticize the prosecution. The Court took issue, for instance, with AUSA Hallowell‘s repeated statements that, as an AUSA assigned to a criminal prosecution, he could not unilaterally bind DHS to a specific course of conduct in future immigration proceedings. It also criticized the Government for not adequately “disclaim[ing]” the DHS officers’ testimony:
MR. HALLOWELL: Your Honor, we are saying that we will not rely on that testimony moving forward in this case.
THE COURT: Why? Why won‘t you rely on it?
MR. HALLOWELL: Your Honor, we don‘t feel that that testimony can support a verdict for the Government on the first two prongs of [
§ 1326(d) ].THE COURT: If believed, it‘s legally insufficient? Or I shouldn‘t believe it?
MR. HALLOWELL: We understand that Your Honor will make the final decision as to whether that testimony could be believed or not. . .
THE COURT: Well, I understand that. I‘m asking the lawyer for the United States of America, should I believe that testimony?
MR. HALLOWELL: Your Honor, you should give it as much weight as you see fit.
App. 795, 797. In the Court‘s view, AUSA Hallowell‘s refusal to “take a[] position” on the testimony conflicted with his obligations as a prosecutor. App. 798–99. And the District Court suggested that the Government had moved to dismiss in “bad faith” to ensure DHS officials could use the 2011 order in future immigration proceedings against Reyes-Romero rather than instituting a new removal proceeding through service of a notice to appear (NTA). App. 822–24.
In response, the Government pointed out that months earlier, DHS officials had attempted to do just that, offering Reyes-Romero an NTA that would have led to new proceedings before an IJ rather than reinstatement of the 2011 administrative removal order. But Reyes-Romero had rejected it. He gave two reasons for having done so: a theory that the Government‘s choice to prosecute him for unlawful reentry precluded it from starting new removal proceedings5 and a desire to ensure that the District Court would reach the merits of his
The District Court ultimately granted Reyes-Romero‘s
Given that disposition, the District Court denied as moot Reyes-Romero‘s pending motion for bond. But it did not do the same with the Government‘s pending motion to dismiss. Instead, it took the “unusual” step, App. 1030, of proceeding to analyze the Government‘s motion on the merits and denying it as “clearly contrary to manifest public interest.” Id. (quoting In re Richards, 213 F.3d 773, 787 (3d Cir. 2000)). The Court found that the Government‘s subjective motivation for its motion to dismiss was a desire to guarantee that DHS could rely on the 2011 removal order in future immigration proceedings. That motivation, it explained, “taint[ed]” the Government‘s effort to have the case dismissed. App. 1032-33. Similarly problematic, the Court continued, was the Government‘s “taking . . . a noncommittal position as to the credibility of Officers Darji and Alicea, which the Court deemed inconsistent with the Government‘s duty to correct a witness‘s statement that is “obvious[ly]” untrue. App. 1037–38 (quoting United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974)).
The District Court thus dismissed the indictment with prejudice. The Government did not appeal the District Court‘s rulings on the motions to dismiss or the order of dismissal.6
Following that dismissal, Reyes-Romero timely applied to the District Court for attorney‘s fees and costs under the Hyde Amendment.7 Relying heavily on the findings in the Court‘s opinion resolving the parties’ motions to dismiss, Reyes-Romero argued the Government had pursued an “egregious” prosecution that was “vexatious, frivolous, [and] in bad faith.” App. 1052-53 (citation omitted).
The District Court awarded Reyes-Romero fees and costs, a decision it reached in five steps: First, because the Government did not appeal the order resolving the motions to dismiss, the Court deemed any “findings and conclusions in that . . . Opinion and Order final.” App. 4. Second, the Court determined that in assessing “the position of the United States,”
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under
We review a Hyde Amendment award for abuse of discretion, United States v. Manzo, 712 F.3d 805, 809–10 (3d Cir. 2013), “which occurs if the district court‘s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law[,] or an improper application of law to fact,” Ferreras v. Am. Airlines, Inc., 946 F.3d 178, 182 n.1 (3d Cir. 2019) (citation omitted).
III. DISCUSSION
A defendant seeking fees and costs under the Hyde Amendment bears the burden, United States v. Manzo, 712 F.3d 805, 810 (3d Cir. 2013), of showing that the “position of the United States was vexatious, frivolous, or in bad faith,”
That obstacle is insurmountable here. Although Reyes-Romero attempts to limit our review, contending that the District Court‘s previous fact-finding is preclusive and that the Government has waived several of its arguments, we conclude those attempts are futile. And once we assess the complete record, we perceive no basis for a Hyde Amendment award. From the inception of the prosecution and throughout the extensive briefing and hearings, the Government had objectively reasonable arguments that Reyes-Romero was not prejudiced by errors in his 2011 removal proceeding and thus could not prevail on his
A. Threshold Issues
Reyes-Romero does not defend the District Court‘s decision directly. Instead, he advances two arguments that, if accepted, would restrict our review of the bases for that decision. Neither is persuasive.
1. Issue preclusion
Reyes-Romero contends that findings and conclusions in the District Court‘s opinion resolving the parties’ motions to dismiss were rendered “final and binding” by the Government‘s decision to appeal not those rulings but only the award of fees and costs. Appellee‘s Br. 1. In support, he cites cases involving the doctrine of issue preclusion, which holds that “a prior judgment. . . foreclose[es] successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment.” Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019) (alterations in original) (citation omitted). But issue preclusion does not apply here for three independent reasons.
Reyes-Romero‘s criminal prosecution and Hyde Amendment application are, at least for these purposes, part of the “same litigation,” Hull, 991 F.2d at 90. The Amendment authorizes fee-shifting “in . . . criminal case[s],”
That doctrine, however, is of no help to Reyes-Romero because “[a]n appellate court‘s function is to revisit matters decided in the trial court.” Musacchio v. United States, 136 S. Ct. 709, 716 (2016). As a result, we are “not bound by district court rulings under the law-of-the-case doctrine,” id.; see Koppers Co. v. Aetna Cas. & Sur. Co., 158 F.3d 170, 173 n.4 (3d Cir. 1998) (“[T]he district court‘s reference to ‘law of the case’ cannot bind this Court on appeal.“), and we owe no deference—beyond what the clear error standard of review demands—to findings in the District Court‘s previous opinion.
Second, issue preclusion “cannot apply when the party against whom the earlier decision is asserted did not have a full and fair opportunity to litigate that issue.” Heart Sol., 923 F.3d at 316 (quoting Allen, 449 U.S. at 95). Without an “incentive to obtain a full and fair adjudication” of an issue, a party will not be bound by the court‘s resolution of it. 1 Restatement (Second) of Judgments § 28(5).
Here, however, the Government had no incentive to contest the District Court‘s findings or appeal its gratuitous denial of the Government‘s motion to dismiss. By the time the District Court resolved the parties’ motions to dismiss, the Government had long disclaimed reliance on the DHS officers’ testimony and abandoned any argument on
Third, issue preclusion applies only where the issue in question was “essential to the prior judgment.” Nat‘l R.R. Passenger Corp. v. Pa. Pub. Util. Comm‘n, 342 F.3d 242, 252 (3d Cir. 2003) (citation omitted). That limitation “is rooted in principles of fairness” and “ensures that preclusive effect is not given to determinations that did not receive close judicial attention . . . or that were unappealable by virtue of being incidental to a decision.” Jean Alexander Cosmetics, Inc. v. L‘Oreal USA, Inc., 458 F.3d 244, 250 (3d Cir. 2006) (internal quotation marks and citation omitted). In defining whether an issue was “essential,” we ask whether it “was critical to the judgment or merely dicta.” O‘Leary v. Liberty Mut. Ins. Co., 923 F.2d 1062, 1067 (3d Cir. 1991).
The findings on which Reyes-Romero relies were not “critical to the judgment,” O‘Leary, 923 F.2d at 1067, and thus are not entitled to preclusive effect. The dispositive parts of the District Court‘s opinion were its determinations that Reyes-Romero had satisfied each of the prongs of
2. Waiver
Of course, even if our review is not limited by issue preclusion or the law of the case, it “may well be constrained by other doctrines such as waiver [or] forfeiture.” Musacchio, 136 S. Ct. at 716. Reyes-Romero seizes on those doctrines, arguing that the Government waived several arguments it advances on appeal by not pressing them before the District Court at the Hyde Amendment stage. We disagree.
Reyes-Romero identifies only two arguments he contends are waived: (i) that the delayed production of color copies of Reyes-Romero‘s immigration forms was a “snafu” attributable to Reyes-Romero‘s counsel‘s failure “to inspect the originals,” Appellant‘s Br. 48; and (ii) that the District Court‘s finding that Officer Darji had lied under oath hinged on a “misread[ing]” of his testimony,10 id. at 45. Reyes-Romero is correct in a limited sense: Those arguments do not appear in the Government‘s response to his Hyde Amendment application. And at least as a general matter, “[a]rguments not raised in the district courts are waived on appeal,” United States v. Tyler, 956 F.3d 116, 124 n.9 (3d Cir. 2020), such that we cannot consider them “absent exceptional circumstances,” United States v. James, 955 F.3d 336, 345 (3d Cir. 2020) (citation omitted).
But our case law does not require parties to relitigate previously decided issues before the district court where doing so “would be an exercise in wasteful formality.” United States v. Hoffecker, 530 F.3d 137, 165 (3d Cir. 2008) (citation omitted); see Chassen v. Fidelity Nat‘l Fin., Inc., 836 F.3d 291, 293 (3d Cir. 2016) (“[A] litigant [need not] engage in futile gestures merely to avoid a claim of waiver.” (second alteration in original) (citation omitted)). Here, by the time the District Court had ruled on the parties’ motions to dismiss and Reyes-Romero had applied for costs and fees, the Court‘s views on the prosecutor‘s conduct and the DHS officers’ candor were beyond doubt, and relitigating them would have been nothing more than a “futile gesture[],” Chassen, 836 F.3d at 293. Faced with a court “more convinced than ever” on those points, App. 792, the Government‘s choice not to relitigate them was therefore reasonable and did not constitute waiver or forfeiture.
B. Merits of the Hyde Amendment Application
Having dispensed with those threshold issues, we now turn to the merits of the Hyde Amendment award. For the reasons we explain below, we conclude that AUSA Hallowell, acting on behalf of the Government, satisfied the high ethical and professional standards to which we hold prosecutors, and the District Court mistakenly extrapolated from errors on the part of DHS to make findings about the prosecution that the record cannot support.
We start with two clarifications about the applicable legal framework and then explain why the Government‘s position was neither frivolous nor in bad faith.11
The Hyde Amendment applies where, “in a[] criminal case[,] . . . the position of the United States was vexatious, frivolous, or in bad faith.”
i. The meaning of “position of the United States”
Notwithstanding its reference to “the position of the United States,”
Our sister circuits share that view. The Second Circuit, for instance, reads “the position of the United States” for Hyde Amendment purposes “to mean . . . the government‘s general litigation stance: its reasons for bringing a prosecution, its characterization of the facts, and its legal arguments.” United States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018). The Ninth Circuit reads the Amendment as requiring an assessment of “the government‘s litigating position as a whole,” not of “other types of bad conduct by government employees during the course of an investigation.” United States v. Mixon, 930 F.3d 1107, 1111 (9th Cir. 2019); see id. at 1112 (requiring “serious misconduct on the part of prosecutors” (emphasis added)). Several others have agreed, see, e.g., Monson, 636 F.3d at 439-40 (holding that a ruling for the defendant under Franks v. Delaware, 438 U.S. 154 (1978), which “constitutes a finding that law enforcement deliberately lied or recklessly disregarded the truth,” “does not necessarily mean that the prosecution against the defendant was frivolous or vexatious“), and we are aware of no precedential appellate decision taking a different approach.
In sum: The Hyde Amendment demands we “[f]ocus[] on the prosecutors’ conduct,” Monson, 636 F.3d at 439 (emphasis added), and ask whether the alleged prosecutorial misconduct was so “pervasive” as to “render the government‘s litigating position as a whole vexatious, frivolous, or in bad faith,” Mixon, 930 F.3d at 1112 (emphasis added).
The District Court, however, understood the “position of the United States,”
That understanding was mistaken. It assumes that, because the EAJA‘s “procedures and limitations” are incorporated into the Hyde Amendment,
And there are good reasons not to compare EAJA apples to Hyde Amendment oranges. For one thing, we took a contrary view in Manzo, emphasizing “the government‘s position underlying the prosecution” and asking whether it was “objectively []reasonable for the government to attempt to prosecute” the defendant. 712 F.3d at 810, 813 (emphasis added) (citation omitted); see also, e.g., Mixon, 930 F.3d at 1111 (defining “position of the United States” under the Hyde Amendment without reference to the EAJA definition); Bove, 888 F.3d at 608 & n.10 (noting that the phrase “position of the United States” “cannot mean precisely the same thing in both” the Hyde Amendment and the EAJA). For another, the EAJA covers a much broader swath of litigation, including civil actions arising from agency enforcement or adjudication. See
To be clear, misconduct by law enforcement officers or other executive departments can be relevant to a Hyde Amendment application if prosecutors leverage that misconduct to further a prosecution that has no factual or legal basis or that is brought for purposes of harassment. But because the Amendment is concerned only with prosecutorial misconduct, see Mixon, 930 F.3d at 1112 (“A defendant is not entitled to attorneys’ fees under the Hyde Amendment due to law enforcement misconduct; rather, the focus is on the prosecutors . . . .“), alleged misconduct by DHS or its officers cannot independently create liability for attorney‘s fees and costs.
ii. The meaning of “vexatious, frivolous, or in bad faith”
The Hyde Amendment applies where the Government‘s litigation position “was vexatious, frivolous, or in bad faith.”
When we conduct that analysis on this record and consider the Hyde Amendment case law on frivolousness and bad faith, we conclude Reyes-Romero is not entitled to an award.
2. The position of the United States was not frivolous
We and our sister circuits have laid extensive groundwork for analyzing frivolousness under the Hyde Amendment. For the Government‘s position to be frivolous, the prosecution it pursues must be “groundless[,] with little prospect of success.” Manzo, 712 F.3d at 810 (alteration in original) (quoting Gilbert, 198 F.3d at 1299). Said differently, the position must be “foreclosed by binding precedent or . . . obviously wrong,” id. at 811 (quoting United States v. Capener, 608 F.3d 392, 401 (9th Cir. 2010)), and a prosecution based on an unresolved but reasonable legal argument cannot be frivolous, id. See Bove, 888 F.3d at 608 (frivolousness requires a prosecution that is “[m]anifestly insufficient or futile” (alteration in original) (citation omitted)); Monson, 636 F.3d at 440 (to be frivolous, a prosecution must be “utterly without foundation in law or fact” (citation omitted)). In assessing frivolousness, therefore, we view the prosecution through the lens of the elements of the criminal
We also find guidance in Hyde Amendment case law addressing vexatiousness, which—though a distinct ground for awarding fees, see supra note 11—overlaps with frivolousness to the extent it too requires that the prosecution be “objectively deficient, [meaning] lack[ing] [in] either legal merit or factual foundation.” Manzo, 712 F.3d at 810. In Manzo, for instance, the defendant argued the government had made “blatantly false” allegations about his receipt of a cash bribe. Id. at 812. In that decision, we assumed he had not received the cash and that the government had knowingly presented false testimony. See id. Even so, we explained, the charges against the defendant “did not require the government to prove that he physically received a cash bribe,” and because the government could “plausibly argue that Manzo was aware of the cash payment. and played a role in facilitating it,” it maintained a viable—and thus objectively nonfrivolous—pathway to conviction. See id.
Manzo controls here. Reyes-Romero did not contest either element required for conviction under
We agree with the characterization of the Government‘s prejudice arguments as reasonable and based in law, and we briefly highlight some of the complexities on which those arguments turned. The first was whether Reyes-Romero‘s conviction qualified as a “crime of violence,”
We need not review every step in the District Court‘s analysis. It is enough to say we agree that whatever the merits of Reyes-Romero‘s arguments on prejudice, the Government‘s arguments in response were “reasonable and based in law,” App. 42—or, put another way, were far from “foreclosed by binding precedent or . . . obviously wrong,” Manzo, 712 F.3d at 811 (citation omitted). As a result, the Government at all times maintained a viable path to conviction, making its litigation position nonfrivolous under the Hyde Amendment.
Reyes-Romero argues to the contrary, urging us to accept the District Court‘s reasoning. We address each argument below.
We start with language from Reyes-Romero‘s indictment stating that he had been “removed from the United States pursuant to law.” App. 31 (quoting App. 63). Reyes-Romero seizes on that language, arguing that if a removal proceeding violated DHS‘s rules or a noncitizen‘s rights, the noncitizen was not removed “pursuant to law” and thus cannot be prosecuted for unlawful reentry regardless whether he can show that those errors caused him prejudice. But that argument runs aground on our precedent, which holds that “prejudice is a necessary component under [§] 1326(d)(3).” Charleswell, 456 F.3d at 358. In plain terms, a criminal defendant who concedes the elements of
Reyes-Romero‘s argument to the contrary is essentially that when a defendant has a good case on some but not all the elements of an affirmative defense, the Government must concede the rest and consent to dismissal on his terms. That simply is not the law. Although our criminal justice system depends on prosecutors’ discretion to decide which cases to pursue, their choice to pursue an objectively valid prosecution is immune from scrutiny by the federal courts. Put another way, our “constitutional framework” is such that “we cannot read the Hyde Amendment to license judicial second-guessing of prosecutions that are objectively reasonable,” United States v. Shaygan, 652 F.3d 1297, 1314 (11th Cir. 2011)—as this prosecution undoubtedly was.
As a last resort, Reyes-Romero suggests we deem the prosecution frivolous because prejudice must be “presume[d].” Arg. Tr. 31-32. He relies for this proposition on Charleswell, where we stated that “some procedural defects may be so central or core to a proceeding‘s legitimacy, . . . and the difficulty of proving prejudice so great[,] that prejudice may be presumed.” 456 F.3d at 362 n.17 (internal quotation marks and citation omitted).
That language, however, is dicta in a footnote. We have never given effect to the possibility we left open in Charleswell, nor (to our knowledge) has any other court of appeals. Nor need we address that possibility today; the point, rather, is that where no appellate court has so held to date, we cannot say the Government lacked a “reasonable legal basis” for contending
In sum, the Government at all times had a legally defensible and factually supported basis for prosecuting Reyes-Romero for unlawful reentry. The “position of the United States,”
3. The position of the United States was not in bad faith
Nor did the Government initiate or prolong Reyes-Romero‘s criminal prosecution in bad faith.
On this issue, too, we benefit from a well-developed line of precedent. Bad faith requires more than “bad judgment or negligence“; it demands “the conscious doing of a wrong because of dishonest purpose or moral obliquity.” Manzo, 712 F.3d at 811. And in assessing whether
The District Court identified seven points throughout the prosecution that in its view constituted “evidence of bad faith,” App. 36, on the part of AUSA Hallowell and, by extension, DOJ. We address them one by one. Although we generally owe deference to factual findings, any finding that “is implausible based on the record” is clearly erroneous and thus “unsustainable.” Capener, 608 F.3d at 403; see United States v. Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (reversal of a Hyde Amendment award is required where the reviewing court is left with “a definite and firm conviction” that “a mistake has been made” (citation omitted)).
i. Obtaining the indictment
First, we disagree that the Government relied on “facially invalid waivers,” App. 31, to seek an indictment and proceed with the prosecution against Reyes-Romero. Even if we were to accept that the Government was “mistaken at the time of [the] [i]ndictment,” App. 31, “the Hyde Amendment [is] targeted at prosecutorial misconduct, not prosecutorial mistake,” Capener, 608 F.3d at 401 (alteration in original) (citation omitted). And here, the contents of Reyes-Romero‘s A-file gave the Government probable cause to believe that he fell within the facial elements of the
ii. The DHS officers’ testimony
Nor are we persuaded that Officers Darji and Alicea gave false testimony or that the Government‘s refusal to label it as such violated its obligations under Napue v. Illinois, 360 U.S. 264 (1959).
We start with the most frequently quoted portion of the testimony: Officer Darji‘s acknowledgment that the forms in Reyes-Romero‘s A-file did not “make any sense.” App. 331. It is not the case that Officer Darji “admitted on the stand that his testimony
In context, Officer Darji‘s comment was a candid admission that he could not explain away the apparent problems with Reyes-Romero‘s removal proceeding. And, at least initially, the District Court agreed, summarizing that Officer Darji had admitted that “the process that was used here” did not “ma[ke] . . . sense.” App. 476. The quite different notion that Darji admitted that he had lied in his testimony, however, “is a kind of [factual] Lohengrin,” in that we do not “know whence it came,” IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975). Because that notion finds no support in the record, we reject it.
As a result, nothing in Officer Darji‘s concession triggered Napue obligations on the part of AUSA Hallowell. Those obligations spring to life only when the prosecutor “knows that his witness is giving testimony that is substantially misleading” and where the misleading nature of the testimony is “obvious.” United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974). A candid admission of the kind Officer Darji gave does not fit those criteria.
Nor do the remaining portions of the DHS officers’ testimony. To be sure, both officers, testifying years later and with no specific memory of Reyes-Romero‘s removal proceeding, gave testimony that was at times equivocal, confusing, or inconsistent. Officer Darji, for instance, changed an answer he gave about whether a prior signature was required to authorize service of the I-851 on noncitizens. For his part, Officer Alicea gave difficult-to-reconcile answers in response to questions about when in the process the I-851‘s contents would be read to the noncitizen in Spanish. But to the extent the officers’ testimony was somewhat “convoluted,” App. 43 (citation omitted), it reflects at least in part the byzantine nature of the administrative removal system and in part the circumstances of their questioning. Given that the District Court assumed the questioning and raised a line of inquiry about the time stamps on the I-851 that Reyes-Romero had not flagged and for which the Government and its witnesses likely had not prepared, it is unsurprising the officers were in some respects ill equipped to explain the contents of Reyes-Romero‘s A-file. In short, while we recognize certain weaknesses in the officers’ testimony, we discern no basis in the record to conclude that the officers were deliberately perjuring themselves. At most, they exhibited the kind of inconsistency that is the normal stuff of cross-examination and that might lead a trier of fact to discount their testimony—but not to assume the sort of deliberate dishonesty that would require a prosecutor to correct the record. In our judgment, that distinction is critical here not only because of the effect on AUSA Hallowell‘s obligations but also because of the severe reputational, professional, and legal consequences that could flow from a finding that Officers Darji and Alicea deliberately lied under oath. That finding was unjustified here.
At bottom, the Napue argument comes to this: that because the District Court ultimately decided not to credit the officers’
iii. Litigating exhaustion and judicial review
We next confront the idea that the Government exhibited bad faith by continuing to litigate exhaustion and judicial review even after the extent of the irregularities in Reyes-Romero‘s A-file came to light. A review of the record reveals the opposite: that AUSA Hallowell promptly and appropriately abandoned all arguments on
The initial two-day hearing on Reyes-Romero‘s
AUSA Hallowell‘s response was prompt, unambiguous, and consistent with the best traditions and standards of his office. That it occurred “over two months” after the initial hearing, App. 32, was a product of the parties’ agreed briefing schedule, the Court‘s unexpected reservations about the Government‘s motion to dismiss, and its ongoing inquiry into the effect of a dismissal on future immigration proceedings. The Government was still “act[ing] promptly to correct [any] error,” United States v. Lain, 640 F.3d 1134, 1139 (10th Cir. 2011), and its response is inconsistent with a finding of bad faith.
iv. Interactions between DOJ and DHS
We likewise see no signs of bad faith in AUSA Hallowell‘s inability to tell the District Court whether, if the prosecution were dismissed, DHS would detain Reyes-Romero or seek reinstatement of the 2011 removal order. In asserting that he could not “speak for DHS . . . or what [it] would do” in future immigration proceedings against Reyes-Romero, App. 617, AUSA Hallowell was faithfully representing our precedent to the District Court. See United States v. Igbonwa, 120 F.3d 437, 443-44 (3d Cir. 1997) (holding that an AUSA cannot bind DHS in future immigration proceedings absent DHS‘s consent). Had the Court granted the Government‘s motion to dismiss, any relevance of the 2011 order would have been left to DHS in the first instance (in deciding whether to pursue a new NTA or seek reinstatement) and, if
To be sure, it is possible for an AUSA, after having obtained “prior authorization from [DHS],” Justice Manual, supra, § 9-73.510, to come to a binding agreement with respect to future immigration proceedings against a noncitizen defendant. But an AUSA lacks the power to do so on his own. More important, whether and under what circumstances he reaches out to DHS to explore such an arrangement is committed to his discretion—he is not bound to do so. And even if he does seek authorization from DHS, he cannot demand that the agency give it, and if the agency declines the AUSA cannot be held responsible. When viewed through an objective lens, therefore, the absence of such an arrangement between DOJ and DHS with respect to future proceedings against Reyes-Romero also does not support an inference of bad faith.
Two related issues must be addressed. First, we do not consider significant that DHS and DOJ were to some extent “intertwin[ed] . . . in this case,” App. 37 (emphasis omitted), insofar as DOJ and DHS kept in contact about Reyes-Romero or a line-level DHS official was present at counsel table for all but one of the hearings before the District Court. Coordination between DOJ and other executive departments is by no means unusual, but it does not obviate the line between those departments or between a criminal prosecution and subsequent administrative proceedings. We therefore see no support for the notion that the Government here attempted to use its collaboration with DHS as both a sword and a shield against Reyes-Romero.
Second, we are equally unpersuaded that the AUSA exhibited bad faith by focusing on the criminal offense with which Reyes-Romero was charged, the evidence necessary to prove that offense, and the elements of Reyes-Romero‘s affirmative defense. Those were, after all, the only live issues over which the District Court had jurisdiction. Even so, AUSA Hallowell did his best to assist the Court in its consideration of matters well beyond that jurisdiction, most notably the effect that various dispositions might have on future immigration proceedings against Reyes-Romero. The AUSA‘s responsiveness, candor, and professionalism in answering unanticipated questions bespeak good faith on his part and in the “position of the United States,”
v. The Government‘s motion to dismiss
We now come to a central premise of the Hyde Amendment award: that the Government‘s motion to dismiss was motivated by, and evidence of, bad faith.
There is good reason for skepticism: It is ironic indeed that the government‘s decision to move to dismiss a criminal case with prejudice would be held up as proof of ill will toward the defendant. Normally, if circumstances arise making it clear that the Government‘s case is weaker than it once appeared and the “Government act[s] promptly to correct [that] error,” a court
The first was that the motion was designed “to shield the 2011 Removal Order from an adjudication of invalidity” and thereby interfere with future immigration proceedings against Reyes-Romero. App. 36. In other words, because the Government agreed the prosecution should be dismissed, it had no non-malicious reason for refusing “to not oppose the bare granting of Reyes-Romero‘s motion to dismiss.” App. 4.
Implicit in that analysis is that there is no meaningful difference between (i) exercising discretion to dismiss the prosecution because of some “litigation risk” on the prejudice prong, App. 646, and (ii) conceding outright that Reyes-Romero has satisfied the prejudice prong. Not so. A prosecutor may have probable cause to believe an element of an affirmative defense is triable but still conclude that, because of the closeness of the question as well as other considerations such as expenses and the time a defendant has already been in custody, the interests of justice would not be well served by continuing to pursue the prosecution. That is, indeed, how the system should work. And, most critical, the Government must be free to do so without having to concede away the merits of the criminal charge or any affirmative defenses, which would have been the effect of endorsing Reyes-Romero‘s
Nor can we agree that the Government was “[n]ever asked . . . to stipulate to ‘prejudice‘” and could have opted to “‘not oppose’ the granting of Reyes-Romero‘s motion.” App. 15-16. Because dismissal under
The second ground for the finding that the Government moved to dismiss in bad faith was that the reasons it offered in support of its motion were pretextual. After a review of the record, we conclude the Government‘s reasons were sensible and consistent. It explained, for instance, that its motion to dismiss was motivated in part by a desire to preserve litigation resources. That is no surprise given that the single-count prosecution had already lasted months and generated many hearings and briefs. True, the Government “then expended substantial resources on continuing to oppose Reyes-Romero‘s motion to dismiss” while its own motion remained pending. App. 39. But that was only because the Government‘s motion was held open, requiring that it continue to litigate the merits of Reyes-Romero‘s
vi. Production of the color copies
Next, we see no evidence to support the idea that the late-in-the-game production of color copies from Reyes-Romero‘s A-file suggests bad faith on the Government‘s
Nor is there anything to suggest the Government exhibited bad faith by producing the color copies months into the prosecution rather than at the outset. To begin, our precedent on the timing of Brady disclosures requires only that the government “make[] [the] evidence available during the course of a trial in such a way that a defendant is able effectively to use it.” United States v. Moreno, 727 F.3d 255, 262 (3d Cir. 2013) (citation omitted). Reyes-Romero was certainly able to use the color copies of the forms to his benefit; those copies fed into the District Court‘s decision granting his
We end by addressing the assertion that the production of black-and-white copies was “a clear implication of conscious wrongdoing,” App. 40, on the part of unnamed DHS officials. Because the Hyde Amendment is concerned only with prosecutorial misconduct, even such unscrupulous conduct by an independent executive department could not be laid at the prosecution‘s feet without a reasonable and logical basis for doing so. Moreover, a review of the record here reveals nothing apart from speculation suggesting that DHS‘s production of black-and-white copies was intended to shield Reyes-Romero‘s A-file from scrutiny rather than, for instance, being the product of an outdated photocopier or cost-saving printing procedures. So thin a reed cannot justify a Hyde Amendment award.
vii. Litigation delay
Finally, we disagree that the criminal proceeding was “unnecessarily drawn out by the various litigation tactics taken by the Government.” App. 43. The time between Reyes-Romero‘s motion to dismiss and the decision granting that motion was roughly seven and a half months. If that period is longer than in the typical
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Ultimately, with great respect for the District Court and its careful administration of this prosecution, we nonetheless
We share the District Court‘s view that Reyes-Romero‘s 2011 expedited removal proceeding deviated from the ordered, sensible process we demand of those who enforce the nation‘s immigration laws. Indeed, that is the Government‘s view as well. And reasonable minds may differ about precisely how the prosecution should have reacted once those issues became apparent. But where reasonable minds may differ, and where the Government made objectively reasonable and defensible choices throughout the prosecution, there can be no Hyde Amendment liability.
IV. CONCLUSION
For these reasons, we will reverse the District Court‘s orders awarding Reyes-Romero attorney‘s fees and costs under the Hyde Amendment.