[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 31, 2008
No. 06-14328 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00251-CR-J-25-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE CHANDLER,
JEROME PEARL,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(March 31, 2008)
Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.
PER CURIAM:
George Chandler and Jerome Pearl appeal from a judgment of the United States
District Court for the Middle District of Florida, denying their motions for an award
of attorney’s fees and costs, pursuant to the Hyde Amendment, Pub. L. No. 105-119,
§ 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006, historical and
statutory notes). This statute confers discretion on a district judge in a criminal case
to “award [ ] 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.” Id.
Chandler and Pearl were both found guilty of a single count of an indictment
charging them with conspiracy to commit mail fraud. The judgments of conviction
entered on the jury verdict were reversed on appeal because the evidence was
insufficient to establish that the defendants were guilty of mail fraud and because the
evidence established the existence of multiple conspiracies rather than the single
overarching conspiracy alleged in the indictment. United States v. Chandler, 388
*
Honorable Edward Korman, United States District Judge for the Eastern District of New
York, sitting by designation.
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F.3d 796 (11th Cir. 2004), substituted on reh’g for United States v. Chandler, 376
F.3d 1303 (11th Cir. 2004). A motion for an award of attorney’s fees and costs
followed.
The application was denied by the district judge who presided over the trial.
Specifically, he found that the prosecution for conspiracy to commit mail fraud,
with which Chandler and Pearl had been charged, “was not done in bad faith, but
rather with an honest purpose, and was certainly not the conscious doing of a
wrong,” and that “this prosecution was not frivolous, and was in no way brought
to annoy or embarrass the Defendants.” Record Excerpts Ex. D at 2. The district
judge continued that,
while the Eleventh Circuit has determined that the government failed
to prove . . . the single mail fraud conspiracy, this Court finds that the
prosecution itself was based on reasonable or probable cause. While
ultimately rejected, the government’s theory of the case centered on
each of the Defendants fraudulently representing themselves to
McDonald’s as “legitimate winners” when they in fact knew they
were not.
Id. This theory, the district judge concluded, gave the government “a reasonable
basis to pursue this prosecution.” Id.
As we held in United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999),
we review denial of an award under the Hyde Amendment under an abuse of
discretion standard. Id. at 1298. “An abuse of discretion occurs if the judge fails
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to apply the proper legal standard or to follow proper procedures in making the
determination, or bases an award [or a denial] upon findings of fact that are clearly
erroneous.” Id. (internal citation and quotation marks omitted). Under the facts
and circumstances presented in this case we cannot conclude that the district court
abused its discretion in denying the motions of relief pursuant to the Hyde
Amendment. Accordingly, we AFFIRM.
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