United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-50999
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID DIAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1618-1-MC
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
David Diaz appeals from the district court’s denial of his
application for attorney’s fees and litigation expenses under the
so-called Hyde Amendment, 18 U.S.C. § 3006A. Having reviewed the
record and the brief on appeal, we conclude that the magistrate
judge did not abuse his discretion in denying Diaz’s application
for attorney’s fees and litigation expenses. United States
v. Truesdale, 211 F.3d 898, 905 (5th Cir. 2000); United States v.
Gilbert, 198 F.3d 1293, 1298-1303 (11th Cir. 1999). The record
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
supports the magistrate judge’s determination that the prosecution
was not frivolous, vexatious, or in bad faith. Truesdale, 211 F.3d
at 909. The Government’s theory of the case was novel and one of
first impression, and there was some evidence suggesting that the
offense charges in the indictment occurred.
Nor did the magistrate judge abuse his discretion in failing
to hold an evidentiary hearing. A prevailing defendant is not
entitled to a hearing as a matter of right on an application for
reimbursement of attorney fees under the Hyde Amendment, and the
district court does not abuse its discretion in ruling on a
defendant’s motion without first holding a hearing where, as here,
no hearing was requested. See id. at 906-07.
AFFIRMED.
2