United States v. Manzo

• Citation: 712 F.3d 805
• Decision Date: 05 March 2013
• Docket Number: No. 12–2294.,12–2294.
• Parties: UNITED STATES of America v. Louis MANZO, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

712 F.3d 805

UNITED STATES of America

v.Louis MANZO, Appellant.

No. 12–2294.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

LAR 34.1(a) March 5, 2013.

Filed: March 25, 2013.

Louis Manzo, Belmar, NJ, Appellant, Pro Se.

Mark E. Coyne, Esq., Mark J. McCarren, Esq., Office of United States Attorney, Newark, NJ, Glenn J. Moramarco, Esq., Office of United States Attorney, Camden, NJ, for Appellee.

Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Under a statutory provision known as the “Hyde Amendment,” a district court in criminal cases “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.” Pub. L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in18 U.S.C. § 3006A, Statutory Note. Louis Manzo appeals a decision of the United States District Court for the District of New Jersey denying him such relief. For the following reasons, we will affirm.

I. Background

In October 2009, a grand jury returned a six-count indictment against Manzo, charging him with four counts of conspiring and attempting to commit extortion, in violation of 18 U.S.C. §§ 1951(a) & 2 (the “Hobbs Act”), and two counts of traveling in interstate commerce to promote and facilitate bribery, in violation of 18 U.S.C. §§ 1952(a)(3) & 2 (the “Travel Act”). In pertinent part, the Hobbs Act defines “extortion” as “the obtaining of property from another, with his consent, induced ... under color of official right.” Id. § 1951(b)(2). The relevant portions of the Travel Act criminalize “travel [ ] in interstate ... commerce ... with intent to ... promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity.” Id. § 1952(a)(3). An “unlawful activity” includes “bribery” as established by “the laws of the State in which [the bribery is] committed.” Id. § 1952(b).

The government alleged that Manzo, while he was a candidate for mayor of Jersey City, New Jersey, sought cash payments and campaign contributions from Solomon Dwek, who was posing as a real estate developer, and that, in exchange, Manzo indicated he would help Dwek in the future with matters involving Jersey City's government. According to the indictment, Manzo and his brother, Ronald Manzo, accepted as bribes three cash payments prior to the election, totaling $27,500. The indictment also alleged that Dwek had agreed to pay additional money after the election, assuming Manzo won (which he did not). Unbeknownst to the Manzo brothers, Dwek was a government informant.

On May 18, 2010, following a motion to dismiss filed by Manzo, the District Court dismissed each count alleging that Manzo had violated the Hobbs Act. The Court held that the alleged extortion did not constitute a violation of the Act because Manzo was not a public official at the time of the conduct and therefore could not have acted “ ‘under color of official right.’ ” (Order on Motion in Limine at 24 (D.N.J. May 18, 2010), ECF No. 33 (quoting 18 U.S.C. § 1951(a)).) The Court did not dismiss the remaining Travel Act charges, however, reasoning that “the plain reading of” New Jersey's bribery statute (Supplemental App. at 166)—which provides that “[i]t is no defense to prosecution ... that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office ... or for any other reason,” N.J. Stat. Ann. § 2C:27–2—“is that it encompasses prosecutions where the person whom the action was sought to influence was not yet qualified or [able] to act” (Supplemental App. at 166).

The government filed an interlocutory appeal pursuant to 18 U.S.C. § 3731 challenging the dismissal of the Hobbs Act charges, and we affirmed. See United States v. Manzo, 636 F.3d 56 (3d Cir.2011). Although we acknowledged that whether the Hobbs Act applies to a candidate for public office (as opposed to someone who is already in office) is “a significant and novel question” that was “creatively framed and well-presented by the government,” id. at 61, we ultimately affirmed the holding of the District Court, reasoning that, “[i]n accordance with the legislative history, the congressional purpose underlying the Hobbs Act and centuries of interpretation of the phrase ‘under color of official right,’ ” Manzo and his brother “were not acting ‘under color of official right,’ as defined in the Hobbs Act,” id. at 65.

With the dismissal of the Hobbs Act charges, the case was remanded to the District Court. In the meantime, the grand jury returned a second superseding indictment charging Manzo with two counts of Travel Act violations, and one count of misprision of a felony, in violation of 18 U.S.C. § 4.¹ On February 17, 2012, however, the District Court reversed its earlier position and held that the receipt of something of value by an unsuccessful candidate for public office in exchange for a promise of future official conduct does not constitute bribery under the New Jersey bribery statute and therefore does not qualify as an “unlawful activity” under the Travel Act. The Court accordingly dismissed all remaining charges against Manzo.²

After all of the charges against him had been dismissed, Manzo filed a pro se petition on March 14, 2012, seeking attorney fees pursuant to the Hyde Amendment, which, as earlier quoted, permits an award of fees and expenses to a party subjected to vexatious, frivolous, or bad faith prosecution. Pub.L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in18 U.S.C. § 3006A, Statutory Note. The District Court denied that petition, holding that Manzo had not borne his burden of demonstrating that the prosecution in this case fits the criteria of the Hyde Amendment. Manzo then filed this timely appeal of that order.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We have not considered what standard of review applies to a district court's denial of a defendant's request for attorney fees under the Hyde Amendment, but all of the Courts of Appeals that have considered the issue have concluded that review is 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); 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, 1124 (9th Cir.2000); In re 1997 Grand Jury, 215 F.3d 430, 436 (4th Cir.2000); United States v. Truesdale, 211 F.3d 898, 905–06 (5th Cir.2000); United States v. Gilbert, 198 F.3d 1293, 1297–98 (11th Cir.1999). We agree and will review the District Court's order under that standard.

III. Discussion

Manzo contends that the District Court abused its discretion in denying him “a reasonable attorney's fee and other litigation expenses” for what he claims was a “vexatious, frivolous, or ... bad faith” prosecution by the government. Pub. L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997). Although we have not interpreted the Hyde Amendment, many of our sister circuits have. According to those courts, the Hyde Amendment “places a daunting obstacle before defendants who seek to obtain attorney fees and costs from the government following a successful defense of criminal charges.” United States v. Isaiah, 434 F.3d 513, 519 (6th Cir.2006) (internal quotation marks omitted). In particular, a “defendant must show that the government's position underlying the prosecution amounts to prosecutorial misconduct—a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous.” United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.1999). “The defendant bears the burden of meeting any one of the three grounds under the statute, and acquittal by itself does not suffice.” Isaiah, 434 F.3d at 519;see also United States v. Shaygan, 652 F.3d 1297, 1311–12 (11th Cir.2011) (“[T]he Hyde Amendment place[s] the burden” of showing that a prosecution is “vexatious, frivolous, or in bad faith” on “the defendant, not on the government” (internal quotation marks omitted)); United States v. Capener, 608 F.3d 392, 401 (9th Cir.2010) (noting that “the burden is on the defendant” (internal quotation marks omitted)); United States v. Knott, 256 F.3d 20, 28 (1st Cir.2001) ( “[T]he Hyde Amendment places the burden of proof on the defendant to demonstrate that the government's position was vexatious, frivolous, or in bad faith.” (internal quotation marks omitted)).

That burden is made more difficult by the approach courts take in assessing the government's litigation position. In determining whether a position is vexatious, frivolous or in bad faith, courts “make only one finding, which should be based on the case as an inclusive whole. A count-by-count analysis is inconsistent with this approach.” United States v. Heavrin, 330 F.3d 723, 730 (6th Cir.2003) (citation and internal quotation marks omitted). In addition, when the legal issue is one of first impression, a court should be wary of awarding fees and costs so as not to “chill the ardor of prosecutors and prevent them from prosecuting with earnestness and vigor. The Hyde Amendment was not intended to do that.” Gilbert, 198 F.3d at 1303.

With respect to the three grounds for relief under the statute, courts have held that a “vexatious” position is one that is “without reasonable or probable cause or excuse.” Id. at 1298–99 (internal quotation marks omitted); see also United States v. Lain, 640 F.3d 1134, 1137 (10th Cir.2011) (same); United States v. Monson, 636 F.3d 435, 439 (8th Cir.2011) (same)....