11-3744-cr
United States v. Barone
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of February, two thousand thirteen.
PRESENT:
CHESTER J. STRAUB,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 11-3744-cr
JOSEPH S. BARONE,
Defendant-Appellant.
__________________________________________
FOR APPELLANT: Joseph S. Barone, pro se, New Rochelle, New York.
FOR APPELLEES: Chi T. Steve Kwok, John T. Zach, and Jennifer G. Rodgers,
Assistant United States Attorneys, for Preet Bharara, United
States Attorney, New York, New York.
Appeal from an order of the United States District Court for the Southern District of
New York (Buchwald, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is AFFIRMED.
Appellant Joseph S. Barone, proceeding pro se, appeals from the denial of his
motion for attorney’s fees and expenses, brought pursuant to the Hyde Amendment, Pub.
L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes). We assume the parties’ familiarity with the underlying
facts, procedural history of the case, and issues on appeal.
This Court has not yet considered what standard of review applies to a district
court’s denial of a defendant’s request for attorney’s fees under the Hyde Amendment. All
of our sister circuits that have addressed the issue have reviewed the district court’s
determination whether to award fees for abuse of discretion. See United States v. Lain, 640
F.3d 1134, 1137 (10th Cir. 2011); United States v. Beeks, 266 F.3d 880, 883 (8th Cir. 2001)
(per curiam); United States v. Knott, 256 F.3d 20, 36 (1st Cir. 2001); United States v.
Wade, 255 F.3d 833, 839 (D.C. Cir. 2001); United States v. True, 250 F.3d 410, 421-22
(6th Cir. 2001); United States v. Lindberg, 220 F.3d 1120, 1123-24 (9th Cir. 2000); In re
1997 Grand Jury, 215 F.3d 430, 436 (4th Cir. 2000); United States v. Truesdale, 211 F.3d
898, 905 (5th Cir. 2000); United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999).
Under the abuse of discretion standard, this Court’s review is “highly deferential,”
Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir. 2001) (internal
quotation marks omitted), because “the district court . . . is intimately familiar with the
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nuances of the case, [and thus] is in a far better position to make [such] decisions,”
Goldberger v. Integrated Res., Inc., 209 F.3d 43, 48 (2d Cir. 2000) (second alteration in
original); see also Lindberg, 220 F.3d at 1124 (“A district court hears the evidence from
the beginning and is in a better position than [an appellate court] to distinguish between a
good faith prosecution that is thin on evidence and a prosecution that is so lacking in
support it can only be vexatious, frivolous, or in bad faith.”). A district court’s factual
findings, “including those based on documentary evidence and inferences drawn from other
facts,” are reviewed for clear error, and may only be reversed when the reviewing court is
“left with the definite and firm conviction that a mistake has been committed.” Garcia v.
Teitler, 443 F.3d 202, 211 (2d Cir. 2006) (internal quotation marks omitted). In the case
before us, we need not determine the applicable standard of review because the judgment
below may be affirmed under either an abuse of discretion standard or the more exacting de
novo standard.
The Hyde Amendment was enacted as part of the Commerce, Justice and State, the
Judiciary, and Related Agencies Appropriations act of 1998. See United States v.
Schneider, 395 F.3d 78, 85 (2d Cir. 2005). It provides that a court may award a
“reasonable attorney’s fee and other litigation expenses” to a defendant who prevails in a
criminal case “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. at 85-86 (quoting Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519).
“An acquittal, without more, will not lead to a successful Hyde Amendment claim, as it
was Congress’s intent to limit Hyde Amendment awards to cases of affirmative
prosecutorial misconduct rather than simply any prosecution which failed.” Id. at 88
(internal quotation marks omitted).
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Here, the district court did not err as a matter of law by denying Barone’s motion
for attorney’s fees and expenses. Although this Court has never “parse[d] the precise
meaning” of the terms “vexatious,” “frivolous,” or “bad faith,” see id. at 86, we need not
do so here because this case “clearly falls short of the type of abusive prosecutorial conduct
that would trigger Hyde Amendment liability.” Id. Barone argues that his long-standing
status as an FBI confidential informant, coupled with the fact that all three charges filed
against him resulted in either dismissal or acquittal, entitles him to attorney’s fees under the
Hyde Amendment. Without embarking on an analysis of the statutory language, it is clear
that the plain language of the Hyde Amendment requires more. “[W]here the government
has solid evidence of guilt and there is no evidence of significant dishonest or abusive
conduct on the government's part, [the government’s position] is not vexatious, frivolous,
or in bad faith within the meaning of the Hyde Amendment.” Id. at 90 (internal quotation
marks omitted).
We have considered all of Barone’s remaining arguments and find them to be
without merit. For the foregoing reasons, the order of the district court is hereby
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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