United States v. Truesdale

REVISED - June 2, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-10096
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JAMES TRUESDALE; RONALD HAMILTON

Defendants - Appellants

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
May 5, 2000

Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

KING, Chief Judge:

Defendants-Appellants James Truesdale and Ronald Hamilton

appeal from the district court’s denial of their joint

application for reimbursement of attorney’s fees. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case revisits the story of an offshore sports wagering

enterprise that is well-chronicled in one of our previous

opinions. See United States v. Truesdale, 152 F.3d 443 (5th Cir.

1998). Defendants-Appellants James Truesdale and Ronald Hamilton
(“Appellants”), along with two others, were indicted and tried on

multiple charges, including conspiracy, money laundering, and

conducting an illegal gambling operation. There was evidence at

trial that bets were placed over toll-free numbers that

terminated in offices offshore, where such activity is legal;

however, toll-free numbers also terminated at Appellants’ homes,

but these lines were used for information purposes only. There

was also evidence that Appellants received money in Texas to

establish betting accounts, that they deposited the money

received in Texas bank accounts, and that they paid winners out

of accounts held in Texas. Appellants and their co-defendants

were convicted of several of the charges, including conducting an

illegal gambling operation. On direct appeal, we reversed their

convictions on all counts. See id. at 450.

18 U.S.C. § 1955 was the basis for the illegal gambling

operation charge. It prohibits “conduct[ing], financ[ing],

manag[ing], supervis[ing], direct[ing], or own[ing] all or part

of an illegal gambling business.” 18 U.S.C. § 1955(a) (1994).

An illegal gambling business is defined, in part, as one that “is

in violation of the law of the State or political subdivision in

which it is conducted.” 18 U.S.C. § 1955(b)(1)(i) (1994). As we

explained in the direct appeal of Appellants’ and their co-

defendants’ convictions:

In order to meet the first prong (violation of state
law), the indictment alleged that appellants’ gambling
operation was being conducted in violation of Chapter 47,

2
 Gambling, of the Texas Penal Code. The indictment did not
cite a specific provision within this chapter, but it
alleged only “bookmaking.” Additionally, the government’s
case focused entirely on and the jury charge instructed only
on the “bookmaking” provisions of Chapter 47. Chapter 47
defines “bookmaking” as follows:

(A) to receive and record or to forward more than five
bets or offers to bet in a period of 24 hours;
(B) to receive and record or to forward bets or offers
to bet totaling more than $1,000 in a period of 24
hours; or
(C) a scheme by three or more persons to receive,
record, or forward a bet or an offer to bet.

Tex. Penal Code § 47.01(2)(A)-(C).

Under Texas law “bookmaking” is illegal, and if a
person intentionally or knowingly commits “bookmaking,” he
commits the offense of gambling promotion. Tex. Penal Code
§ 47.03(a)(2). Bookmaking, however, is not the only
activity that constitutes gambling promotion. Section
47.03(a) lists five separate categories of activity
(including “bookmaking”) each of which can constitute
gambling promotion. Section 47.03(a) makes it a separate
offense for an individual, for gain, to “... become[ ] a
custodian of anything of value bet or offered to be bet[.]”
Tex. Penal Code § 47.03(a)(3). In this case, neither the
indictment nor the jury charge nor the government’s argument
alluded to this section. The indictment only mentioned
bookmaking and the jury charge only tracked the language of
sections 47.01(2) and 47.03(a)(2).

Truesdale, 152 F.3d at 446-47. The evidence in the case

indicated “that the bookmaking activities occurred outside the

United States” and not in the state of Texas, as § 1955 requires.

Id. at 447. There was evidence that Appellants had the

capability to accept bets in Texas and that callers attempted to

place bets in Texas, and a notebook seized at Hamilton’s

residence could have indicated that bets were being taken in

Texas. However, the opinion noted that Appellants went to great

3
lengths to ensure that their business was conducted legally. See

id. at 448. In sum, “the circumstantial evidence . . . [did] not

furnish an adequate basis from which a reasonable juror could

conclude beyond a reasonable doubt that the appellants were

engaged in bookmaking.” Id. at 448-49. We indicated that there

may have been some evidence that Appellants became custodians of

gambling money in violation of section 47.03(a)(3), but the

government did not indict them on that section, try them on that

section, or instruct the jury on that section.

Following our decision, Appellants’ co-defendants moved the

district court for reimbursement of attorneys’ fees under the so-

called Hyde Amendment,1 and Appellants soon followed suit. The

1
The Hyde Amendment was passed in order to provide the
reimbursement of attorney’s fees to defendants in certain
criminal cases. It provides:

During fiscal year 1998 and in any fiscal year thereafter,
the court, in any criminal case (other than a case in which
the defendant is represented by assigned counsel paid for by
the public) pending on or after the date of the enactment of
this Act, 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. Such awards shall be granted
pursuant to the procedures and limitations (but not the
burden of proof) provided for an award under section 2412 of
title 28, United States Code. To determine whether or not
to award fees and costs under this section, the court, for
good cause shown, may receive evidence ex parte and in
camera (which shall include the submission of classified
evidence or evidence that reveals or might reveal the
identity of an informant or undercover agent or matters
occurring before a grand jury) and evidence or testimony so
received shall be kept under seal. Fees and other expenses

4
district court denied their co-defendants’ motion, which denial

was never appealed, and it further denied Appellants’ motion in

an order entered on December 22, 1998. Appellants filed a notice

of appeal (“NOA”) on January 20, 1999, twenty-nine days after the

district court’s order was entered. Before reaching the merits

of Truesdale and Hamilton’s appeal, we must decide whether their

NOA was timely filed.

II. APPELLATE JURISDICTION: RULE 4(a) OR 4(b)?

Federal Rule of Appellate Procedure 4 governs the time

period during which an NOA may be filed. “A timely notice of

appeal is necessary to the exercise of appellate jurisdiction.”

United States v. Cooper, 135 F.3d 960, 961 (5th Cir. 1998)

(citing United States v. Robinson, 361 U.S. 220, 224 (1960)).

Simply put, if a notice of appeal is untimely, we cannot

entertain the merits of a case. In order to establish the

timeliness of the NOA filed in the instant appeal, we must begin

by determining whether it is governed by Rule 4(a)2 or Rule

awarded under this provision to a party shall be paid by the
agency over which the party prevails from any funds made
available to the agency by appropriation. No new
appropriations shall be made as a result of this provision.

Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997),
reprinted in 18 U.S.C. app. § 3006A (Supp. III 1997).
2
Rule 4(a) provides, in pertinent part, that, “[i]n a civil
case, . . . the notice of appeal . . . must be filed with the
district clerk within 30 days after the judgment or order
appealed from is entered.” FED. R. APP. P. 4(a)(1)(A). This time

5
4(b).3 Only one other court of appeals has addressed this issue.

In United States v. Robbins, the Court of Appeals for the Tenth

Circuit held that an appeal from a district court’s denial of a

motion filed under the Hyde Amendment is governed by Rule 4(b).

See 179 F.3d 1268, 1270 (10th Cir. 1999).

At the outset, what is most important here is to establish a

clear rule governing NOAs in cases like this one. Unfortunately,

however, the text of the Hyde Amendment does not clearly

establish whether Rule 4(a) or 4(b) should apply. A compelling

case can be made that Rule 4(b) should apply to this case and

others like it. The Hyde Amendment clearly states that “the

court, in any criminal case . . . may award to a prevailing party

. . . a reasonable attorney’s fee . . . .” Pub. L. No. 105-119,

§ 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 U.S.C. app.

§ 3006A (Supp. III 1997) [hereinafter “Hyde Amendment”]. This

language can be read as signaling that a Hyde Amendment motion

arises in a criminal case. See Robbins, 179 F.3d at 1270. On

the other hand, the language can be read as simply signaling that

the provision is intended to provide relief when, “in any

criminal case . . . the court finds that the position of the

period is extended to 60 days when the United States is a party.
See FED. R. APP. P. 4(a)(1)(B).
3
Rule 4(b) provides, in pertinent part, that, “[i]n a
criminal case, a defendant’s notice of appeal must be filed in
the district court within 10 days after . . . the entry of either
the judgment or the order being appealed . . . .” FED. R. APP. P.
4(b)(1)(A).

6
United States was vexatious, frivolous, or in bad faith.” Id.

The latter reading does not necessitate the conclusion that the

motion itself is a part of the underlying criminal case. For the

reasons that follow, we conclude that the latter reading is

appropriate. We are consequently unable to join the Tenth

Circuit’s conclusion and decide that Rule 4(a) governs an appeal

from a district court’s ruling on a motion filed under the Hyde

Amendment.

Citing United States v. Young, 966 F.2d 164, 165 (5th Cir.

1992), and United States v. De Los Reyes, 842 F.2d 755, 757 (5th

Cir. 1988),4 the government argues that, like a motion to correct

sentence under Federal Rule of Criminal Procedure 35, “a motion

for reimbursement of attorney’s fees and costs, pursuant to the

Hyde Amendment, should be considered part and parcel of the

criminal matter rather than a separate civil proceeding.”

Government’s Brief at 19. The government provides no support for

4
In each of those cases, the defendant appealed from the
district court’s disposition of a motion to correct sentence
under Rule 35 of the Federal Rules of Criminal Procedure, and in
both cases, the notice of appeal was filed outside of the window
allowed by Rule 4(b) but inside the window allowed by Rule 4(a).
We recognized that “[a]n appeal from a ruling on a Rule 35 motion
is considered part of the original criminal proceeding and must
be taken within the ten days provided by [Rule 4(b)].” De Los
Reyes, 842 F.2d at 757. We also recognized in each case that the
same motion could have been raised in a proceeding under 28
U.S.C. § 2255, in which case the sixty-day window in Rule
4(a)(1)(B) would have applied. Citing “the liberality accorded
to pro se filings,” id., we decided to treat the ill-styled
motions as § 2255 motions and found jurisdiction to entertain the
appeals.

7
this argument, and after comparing a motion under the Hyde

Amendment to a Rule 35 motion, we cannot agree. A Rule 35 motion

deals directly with the movant’s liberty interest, precisely the

sort of consideration that has been cited to support the shorter

filing period under Rule 4(b). See United States v. Craig, 907

F.2d 653, 656 (7th Cir. 1990) (“The shorter time limit for

criminal appeals furthers the public interest in the prompt

resolution of criminal proceedings. Neither the interests of

society nor of individual criminal defendants are served by a

plodding appellate process that could change the results of a

trial, often while the defendant has already begun to serve a

sentence of incarceration.”). A motion under the Hyde Amendment,

on the other hand, does not implicate the movant’s liberty

interest. Indeed, as we discuss shortly, the interests it

implicates are identical to those implicated by a motion for

attorney’s fees under 28 U.S.C. § 2412, the Equal Access to

Justice Act (the “EAJA”), the procedures and limitations of

which, with a few exceptions, are made applicable to proceedings

under the Hyde Amendment. The longer time period provided in

Rule 4(a) applies to proceedings under the EAJA. We find the

comparison of a motion filed pursuant to the Hyde Amendment to

one filed under the EAJA a closer analogy than the Rule 35

comparison provided by the government on brief.

We have in the past used this sort of analogy to decide

which Rule 4 time period to apply. For example, United States v.

8
Cooper, 876 F.2d 1192 (5th Cir. 1989), dealt with a petition for

a writ of error coram nobis. We determined that such a petition

was equivalent to a motion under 28 U.S.C. § 2255, the difference

being that a § 2255 motion is made by a person in federal custody

and a petition for a writ of error coram nobis is filed by a

person who has been released. We explained that the rules

governing § 2255 cases state specifically that Rule 4(a) applies

to such motions, see Rule 11 Governing § 2255 Proceedings for the

United States District Courts, 28 U.S.C. app. § 2255 (1994), and

concluded that Rule 4(a) should apply to an appeal from the

denial of the petition, just as the Rules Governing § 2255

Proceedings specifically apply Rule 4(a) to an appeal from a

denial of a § 2255 motion. Two cases cited by Appellants from

the Court of Appeals for the Seventh Circuit similarly apply Rule

4(a) after comparing the proceeding at issue to a § 2255

proceeding. See Betts v. United States, 10 F.3d 1278 (7th Cir.

1993) (petition for a certificate of innocence); United States

v. Craig, 907 F.2d 653 (7th Cir. 1990) (petition for a writ of

error coram nobis).

Here, a motion under the Hyde Amendment is equivalent to a

motion under the EAJA. In each case, the movant is seeking an

award of attorney’s fees based upon a litigating strategy

employed by the government that, the movant claims, conflicts

with certain statutorily defined notions of fair play. It makes

little sense that the time period during which the movant may

9
file an NOA from the denial of such a motion should differ

depending upon whether the government’s potentially offensive

litigation strategy was employed in a civil case or a criminal

case. Our comparison of Hyde Amendment motions to EAJA motions

is bolstered by Congress’ direction that the procedures and

limitations of the EAJA are, with limited exceptions,

incorporated into the Hyde Amendment.5

Finally, it could prove problematic for the government were

we to hold that a motion filed pursuant to the Hyde Amendment is

part and parcel of the underlying criminal case and therefore

subject to the Rule 4(b) filing period. As a general rule, the

government cannot, without statutory authority, appeal from a

decision in a criminal case. See United States v. Sanges, 144

U.S. 310, 312 (1892). While the question is not before us, we

are aware of no statute that authorizes the government to appeal

from a ruling on a motion for an award of fees in a criminal

case.6 We anticipate that holding as the government argues would

5
We agree that application of the Rule 4(a) appeals period
is not a procedure contained directly within the text of the
EAJA. But, as we see it, Congress’ direction that the procedures
of the EAJA should apply to proceedings under the Hyde Amendment
evinces its intent that, absent statutory direction to treat the
proceedings differently, the case giving rise to the motion for
an award of fees does not control, and Hyde Amendment proceedings
and EAJA proceedings should be conducted in a like manner.
6
We suspect that because of the Tenth Circuit’s
construction of 28 U.S.C. § 3731, which authorizes the government
to appeal in certain criminal cases, this concern was not
apparent to the panel that decided Robbins. Compare United
States v. Prescon Corp., 695 F.2d 1236, 1240 (10th Cir. 1982)

10
create a situation in this circuit where a movant would be

entitled to appeal from an adverse ruling on a motion filed

pursuant to the Hyde Amendment, but the government would not be

afforded the same privilege. We cannot imagine that the Congress

intended such a result and are unwilling, absent clearer

statutory direction, to establish precedent in this circuit

lending support to such an outcome. If Congress had indeed

desired these sorts of proceedings to be treated as part and

parcel of the underlying criminal case, we would have expected a

path to have been established for the government to appeal. We

conclude that Rule 4(a) applies to an appeal from a ruling on a

motion pursuant to the Hyde Amendment.

Having so decided, we are left with one last jurisdictional

question: Is the NOA in this case fatally premature? Rule

4(a)(1)(B) provides that when the United States is a party to a

civil case, the NOA “may be filed . . . within 60 days after the

judgment or order appealed from is entered.” Rule 4(a)(2)

provides that an NOA “filed after the court announces a decision

or order--but before the entry of the judgment or order--is

treated as filed on the date of and after the entry.” Under Rule

4(a), entry occurs “when [the judgment or order] is entered in

(section 3731 authorizes any government appeal from a final order
that does not implicate the Double Jeopardy Clause) with United
States v. Denson, 588 F.2d 1112, 1125, adopted en banc, 603 F.2d
1143, 1145 (5th Cir. 1979) (section 3731 only authorizes appeals
from orders similar to those in it).

11
compliance with Rules 58 and 79(a) of the Federal Rules of Civil

Procedure.” FED. R. APP. P. 4(a)(7).

Federal Rule of Civil Procedure 79(a) requires that the

decision of the district court be recorded on the civil docket.

Here, the ruling below was recorded on the criminal docket. It

has therefore never been entered in strict compliance with Rule

4(a)(7), and an argument can be made that an appeal is not

perfected under Rule 4(a)(2) until so entered. Neither party has

argued, however, that our appellate jurisdiction is defeated by

the failure of the clerk of the district court to record the

ruling in this case on the civil docket, and we can see no reason

why our jurisdiction should be so defeated. Were we to dismiss

this action for lack of jurisdiction, “the district court would

simply [enter its judgment on the civil docket], from which a

timely appeal would then be taken. Wheels would spin for no

practical purpose.” Bankers Trust Co. v. Mallis, 435 U.S. 381,

385 (1978). We find it unnecessary to dismiss this action for

two reasons.

First, what is important is that the judgment of the

district court be final,7 which it obviously was in this case,

and the appellee, the government here, not be misled or

7
“For a ruling to be final, it must end the litigation on
the merits and the judge must clearly declare his intention in
this respect.” Firstier Mortgage Co. v. Investors Mortgage Ins.
Co., 498 U.S. 269, 273-74 (1991) (citations and internal
quotation marks omitted).

12
prejudiced by the fact that the judgment was recorded on the

criminal docket. See Mallis, 435 U.S. at 387; Firstier Mortgage

Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991).

The government was neither misled nor prejudiced in this case.

Second, in the past we have not found our jurisdiction

defeated by a judment being entered on the wrong docket. In

Smith v. Smith, 145 F.3d 335 (5th Cir. 1998), we were confronted

with an appeal from a criminal contempt ruling that was entered

on the civil docket. We determined that we did not need to

decide whether Rule 4(a) or 4(b) applied, because the notice of

appeal was timely in either case. See id. at 339. Implicit in

that decision was a determination that the entry of judgment on

the civil docket did not defeat jurisdiction if the case was

criminal and Rule 4(b) applied. It follows that the converse

should hold true in this case, and we determine that we have

jurisdiction to entertain the appeal.

III. STANDARD OF REVIEW

In Pierce v. Underwood, the Supreme Court determined that a

district court’s decision regarding an award of attorney’s fees

under the EAJA was subject to appellate review under the abuse of

discretion standard. See 487 U.S. 552, 563 (1988). Appellants

argue that the factors articulated in Pierce militate against an

abuse of discretion standard and support de novo review in this

13
case. We disagree and conclude that the close ties between the

EAJA and the Hyde Amendment coupled with an application of the

factors relied upon by the Court in Pierce support an application

of the abuse of discretion standard.8

Awards made pursuant to the Hyde Amendment “shall be granted

pursuant to the procedures and limitation (but not the burden of

proof) provided for an award under [the EAJA].” Hyde Amendment,

supra. The proper standard of appellate review is not one of the

procedures and limitations of the EAJA, but the language of the

Hyde Amendment indicates Congress’ intent to have proceedings

under the Hyde Amendment treated similarly to those under the

EAJA. While the language quoted above does not conclusively

determine the proper standard of review, the tie-in between the

two provisions lends support to finding that the same standard

applies in both situations.

In Pierce, the Supreme Court considered several factors in

determining the correct standard of review for EAJA proceedings.

First, the Court looked to the language of the statute itself.

The EAJA

provides that attorney’s fees shall be awarded “unless the
court finds that the position of the United States was
substantially justified.” 28 U.S.C. § 2412(d)(1)(A)
(emphasis added). This formulation, as opposed to simply

8
In United States v. Gilbert, the Court of Appeals for the
Eleventh Circuit, the only other circuit court to consider the
proper standard of review for Hyde Amendment cases, likewise
determined that an abuse of discretion standard was appropriate.
See 198 F.3d 1293, 1298 (11th Cir. 1999).

14
 “unless the position of the United States was substantially
justified,” emphasizes that the determination is for the
district court to make, and thus suggests some deference to
the district court on appeal.

Pierce, 487 U.S. at 559. The Hyde Amendment similarly provides

that “the court . . . may award . . . a reasonable attorney’s fee

. . . where the court finds that the position of the United

States was vexations, frivolous, or in bad faith . . . .” Hyde

Amendment, supra (emphasis added). The similar language in the

Hyde Amendment supports deference to the district court’s

decision as well.

The Court in Pierce also considered whether “‘one judicial

actor is better positioned than another to decide the issue in

question.’” 487 U.S. at 560 (quoting Miller v. Fenton, 474 U.S.

104, 114 (1985)). The Court noted that some aspects of the

government’s litigating strategy may be known only to the

district court. Also, the circuit court may have to spend

inordinate time becoming more familiar with the record than is

usually required for appeals in order to evaluate not only the

merits of the case, but also the government’s litigating

strategy. While the Hyde Amendment deals with criminal cases

rather than civil cases, we find these considerations weigh

equally in favor of applying a deferential level of review in

Hyde Amendment appeals. The district court is much more familiar

with the ins-and-outs of the case, and its judgment will often

reflect its unique perspective. Applying a less deferential

15
standard of review would show disrespect for that unique

perspective.

Finally, the Supreme Court recognized that flexibility was

needed in the area in order for the “substantially justified”

standard to develop. “[T]he question . . . is . . . little

susceptible, for the time being at least, of useful

generalization, and likely to profit from the experience that an

abuse-of-discretion rule will permit to develop.” Id. at 562.

The “vexatious, frivolous, or in bad faith” standard of the Hyde

Amendment, along with the “for good cause shown” standard that

governs whether the court may receive evidence in camera and ex

parte, will similarly benefit from the experience envisioned by

the Supreme Court in Pierce. We conclude that an abuse of

discretion standard should apply to appeals from judgments in

Hyde Amendment proceedings.

Legal determinations underlying the district court’s

decision are, however, reviewed de novo. See Spawn v. Western

Bank-Westheimer, 989 F.2d 830, 839 (5th Cir. 1993). “As Judge

Friendly has stated, ‘[i]t is not inconsistent with the

discretion standard for an appellate court to decline to honor a

purported exercise of discretion which was infected by an error

of law.’” Id. (quoting Abrams v. Interco, Inc., 719 F.2d 23, 28

(2d Cir.1983)).

16
 IV. APPELLANTS’ RIGHT TO DISCOVERY AND A HEARING

We begin by disposing of Appellants’ argument that the Hyde

Amendment entitles them to discovery and a hearing as a matter of

right. For this proposition, Appellants cite United States v.

Gardner, 23 F. Supp. 2d 1283 (N.D. Okla. 1998). There, however,

the court explained that the movant had requested discovery and

the government opposed that request. See id. at 1295-96. That

is not the case here. Appellants do not allege that they moved

for discovery or a hearing in the district court, and our

independent review of the record likewise reveals no such motion.

The scope of discovery allowable or required upon request of a

movant for attorney’s fees pursuant to the Hyde Amendment is

therefore not an issue we need address in this case. We must

decide only whether the district court abused its discretion by

ruling on Appellants’ motion without granting discovery or a

hearing, despite the fact that neither was requested.

The Hyde Amendment provides that, “[t]o determine whether or

not to award fees and costs under this section, the court, for

good cause shown, may receive evidence ex parte and in camera

. . . and evidence or testimony so received shall be kept under

seal.” Hyde Amendment, supra. The Amendment, as originally

introduced by Representative Hyde, included no such provision.

See 143 Cong. Rec. H7786-04, H7791 (daily ed. Sept. 24, 1997).

17
The provision was added in response to concerns voiced by some

members of the House regarding

the after-the-fact exercise required under [the Hyde
Amendment] to determine justification for prosecution. . . .
There may be evidence that was relied upon in good faith by
the prosecution in coming to its decision to prosecute, but
was later suppressed at trial; there may be disclosure or
required disclosure and compromise of confidential sources
or law enforcement techniques . . . .

Id. at H7793 (remarks of Representative Rivers). See also

Gilbert, 198 F.3d at 1300-01.

Appellants assert that Representative Rivers’s remarks were

made at a time when the government was expected to bear the

burden of proof under the Amendment. They argue that the burden

was changed to the defendant, yet the Amendment still provides

for the confidential submission of evidence. They conclude that

it “stand[s] to reason that Congress intended for the claimant to

have access to evidence except such evidence which is

confidential, and such evidence is to be presented to the court

in camera.” Appellants’ Brief at 21-22. We disagree. It

appears the provision for in camera review of evidence was

included to enable the government to defend itself against Hyde

Amendment motions and at the same time protect confidential

information. We do not read the Amendment as providing for

discovery and a hearing as a matter of right.

The EAJA, the procedures and limitations of which are

incorporated into the Hyde Amendment, provides that:

18
 Whether or not the position of the United States was
substantially justified shall be determined on the basis of
the record (including the record with respect to the action
or failure to act by the agency upon which the civil action
is based) which is made in the civil action for which fees
and other expenses are sought.

28 U.S.C. § 2412(d)(1)(B) (1994). The government argues that

this provision is a procedure contained in the EAJA, and that it

is therefore incorporated into the Hyde Amendment, except to the

extent that the latter provides otherwise. The government

contends that the language of the Hyde Amendment “suggests that a

district court has latitude to permit an expansion of the record,

for good cause, beyond that available under the EAJA, while at

the same time providing necessary safeguards.” Government’s

Brief at 31. The government’s reading of the Amendment seems

reasonable, but we need not today determine the situations under

which discovery or a hearing is allowed or required, assuming

either is allowed at all. It is clear that the Amendment,

especially when read in conjunction with the EAJA, does not

provide for discovery or a hearing as a matter of right. The

district court, therefore, did not abuse its discretion in ruling

on Appellants’ motion without first affording them an opportunity

for discovery or a hearing, because no motion for either was ever

filed with the court.

V. THE BURDEN AND LEVEL OF PROOF

19
 Both parties argue that in order to recover attorney’s fees

as a prevailing party, the Appellants bear the burden of proof

under the Hyde Amendment to show by a preponderance of the

evidence that the government’s position was vexatious, frivolous,

or in bad faith. We agree. The Hyde Amendment provides that

awards under it “shall be granted pursuant to the procedures and

limitation (but not the burden of proof) provided for an award

under [the EAJA].” Hyde Amendment, supra. It is clearly

established that, under the EAJA, the government bears the burden

of proof with regard to its litigating position. See United

States v. 5,507.38 Acres of Land, 832 F.2d 882, 883 (5th Cir.

1987). The language of the Hyde Amendment expresses a desire to

shift that burden to the movant. The only other court of appeals

that has addressed this issue agrees that the movant bears the

burden of proof. See Gilbert, 198 F.3d at 1304.

Under the EAJA, the government must prove by a preponderance

of the evidence that its position was substantially justified.

See United States v. One Parcel of Real Property, 960 F.2d 200,

208 (1st Cir. 1992). The Hyde Amendment changes only the party

with whom burden of proof lies, not the level of proof by which

the claim must be established. We conclude that a party moving

for an award of attorney’s fees under the Hyde Amendment must

establish by a preponderance of the evidence that the

government’s position was vexatious, frivolous, or in bad faith.

20
 VI. THE VEXATIOUS, FRIVOLOUS, OR IN BAD FAITH STANDARD

The EAJA directs courts to award “to a prevailing party

other than the United States fees and other expenses . . .

incurred by that party in any civil action . . . unless the court

finds that the position of the United States was substantially

justified or that special circumstances make an award unjust.”

28 U.S.C. § 2412(d)(1)(A) (1994) (emphasis added). The Supreme

Court has interpreted the phrase substantially justified to mean

“justified to a degree that could satisfy a reasonable person.”

Pierce, 487 U.S. at 565. The Court equated a substantially

justified position with one having a “reasonable basis in law and

fact.” Id. at 566 n.2. The Hyde Amendment, on the other hand,

allows a district court in a criminal case to “award to a

prevailing party, other than the United States, a reasonable

attorney’s fee and other litigating 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.” Hyde Amendment, supra

(emphasis added). Appellants suggest that, other than the

switched burden of proof, the standards in the EAJA and the Hyde

Amendment are the same; a movant may succeed under the Hyde

Amendment if he establishes that the prosecution was not

substantially justified. The language of the two provisions and

the legislative history prove otherwise.

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 The Hyde Amendment, as originally introduced on the floor of

the House, made attorney’s fees available absent special

circumstances making such an award unjust, “unless the court

finds that the position of the United States was substantially

justified.” 143 Cong. Rec. H7786-04, H7791 (daily ed. Sept. 24,

1997). In discussing the proposed Amendment, Representative Hyde

drew parallels between it and the EAJA. As far as the standard

applicable in such proceedings, he stated that the Amendment

“ought to protect anybody who is abused by a suit that is not

substantially justified. . . . What is the remedy, if not this,

for somebody who has been unjustly, maliciously, improperly,

abusively tried by the Government . . . .” Id. at H7792.

Representative David Skaggs responded to these comments, stating,

“I think the gentleman proves too much. Were the words

‘malicious’ and ‘abusive’ in his amendment, and maybe those are

criteria that also ought to be introduced, it would be a

different matter.” Id. The standard was eventually changed to

“vexatious, frivolous, or in bad faith” in the Conference

Committee. See Gilbert, 198 F.3d at 1301-02. This change

signifies Congress’ desire to limit the scope of the Amendment.

A movant under the Hyde Amendment must prove more than just that

the government’s position was not substantially justified. See

id. at 1302, 1304; cf. Pierce, 487 U.S. at 566 (“To be

‘substantially justified’ means, of course, more than merely

undeserving of sanctions for frivolousness . . . .”).

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 VII. APPELLANTS’ CASE

The district court seems to have agreed with Appellants’

position. It held that a motion filed pursuant to the Hyde

Amendment can succeed only if the movant can “establish that the

government did not possess sufficient evidence that could satisfy

a reasonable person to believe that the prosecution . . . had a

reasonable basis in law and fact.” Memorandum Opinion and Order

denying a motion by Richard Jones and Sandra Miller, filed

December 7, 1998, at 4, incorporated by reference in Order filed

Dec. 22, 1998. This conclusion was based on the district court’s

ruling that, “because the procedures and limitations of the EAJA

apply to the Hyde Amendment, a prevailing party is not entitled

to an award if the government’s position in the litigation was

‘substantially justified.’” Id.

We disagree with the district court that a movant need only

prove that the government’s position was not substantially

justified, i.e. that “a reasonable person considering the

government’s evidence could [not] find that the prosecution of

defendants had a rational basis in both law and fact.” Id. at 5.

As previously explained, the “vexatious, frivolous, or in bad

faith” standard is more demanding on a movant than the “not

substantially justified” standard. The district court was

correct, however, that if a movant is unable even to establish

that the prosecution was not substantially justified, he

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certainly cannot establish that it was vexatious, frivolous, or

brought in bad faith. The district court here concluded that

Appellants failed to establish that the government’s prosecution

of them was not substantially justified. If the district court

was correct in this conclusion, then it did not abuse its

discretion in denying Appellants’ Hyde Amendment motion, which

calls for an even more demanding standard.

Appellants first argue that the government knew, or should

have known, that they were not engaged in bookmaking in Texas,

and that, therefore, the government’s prosecution of them was

vexatious and frivolous. According to Appellants, the

government’s star witness testified that no bets were taken in

Texas. Appellants argue that this case “was clearly a situation

where [a Dallas police officer involved in the case] was saying

that the F.B.I. contended that the operation was illegal, and the

F.B.I. was saying that they were relying on [the Dallas police

officer’s] training and experience in illegal gambling

operations.” Appellant’s Brief at 33. Appellant’s own

description sounds more of confusion and sloppiness than

vexatiousness or frivolousness. This conclusion is supported by

the government’s argument that there was some evidence that

Appellants had broken state gambling laws by becoming custodians

of gambling proceeds, but the government neglected to proceed on

this theory, arguing instead only that Appellants broke state law

by engaging in bookmaking.

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 In reaching its conclusion that Appellants had failed to

establish that the government’s position was not substantially

justified, the district court relied on evidence that toll-free

numbers terminated at Appellants’ homes, Appellants paid out

winnings from Texas bank accounts, the notebook found in

Hamilton’s house contained betting information, several callers

attempted to place bets with federal agents on the toll-free

lines terminating at Appellants’ homes, and certain documents

seized from Truesdale’s home contained possible betting

information. The district court had previously tied the “not

substantially justified” standard to the “vexatious, frivolous,

or in bad faith” standard, and it ruled that “[a]lthough this

evidence was insufficient for a reasonable jury to find beyond a

reasonable doubt that [Appellants] had engaged in bookmaking

operations in Texas, it was sufficient evidence to indicate that

the government’s prosecution of Truesdale and Hamilton was

neither vexatious, frivolous, nor in bad faith.” Order filed

Dec. 22, 1998, at 2. While we disagree with the standard the

district court applied, we agree that Appellants failed to

establish even that the government’s position was not

substantially justified. “To be substantial, evidence must be

relevant and sufficient for a reasonable mind to accept as

adequate to support a conclusion; it must be more than a speck or

scintilla but it need not be a preponderance.” Taylor v. Bowen,

782 F.2d 1294, 1298 (5th Cir. 1986). Because Appellants failed

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even to establish that the government’s prosecution of them was

not substantially justified, they cannot establish that the

prosecution was vexatious, frivolous, or in bad faith. The

district court, therefore, did not abuse its discretion in

denying Appellants’ motion.

Finally, Appellants argue that the money laundering charges

against them were brought in bad faith. Our independent review

of the record reveals that Appellants failed to raise this issue

before the district court. If a party raises an issue for the

first time on appeal, it can prevail only if it shows that the

district court committed a plain error that affects the party’s

substantial rights. Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1423 (5th Cir. 1996) (en banc). If the trial court

committed a plain error that affects a party’s substantial

rights, we may correct the error only if it “seriously affects

the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993).

Appellants have not made the requisite showings in this case.9

VIII. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

9
We therefore need not address the issue of whether the
Hyde Amendment provides relief if just a portion of the
government’s prosecution is vexatious, frivolous, or brought in
bad faith.

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