U.S. v. Bowman, 03-4044.

• Decision Date: 24 August 2004
• Docket Number: No. 03-4044.,03-4044.
• Citation: 380 F.3d 387
• Parties: UNITED STATES of America, Appellee, v. Lawrence Charles BOWMAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

380 F.3d 387

UNITED STATES of America, Appellee, v. Lawrence Charles BOWMAN, Appellant.

No. 03-4044.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2004.

Filed: August 24, 2004.

Appeal from the United States District Court for the Southern District of Iowa, Ronald L. Longstaff, Chief Judge.

Alfredo Parrish, argued, Des Moines, Iowa, for appellant.

Mary Clare Luxa, argued, Des Moines, Iowa ( Richard L. Richards, Des Moines, Iowa on the brief), for appellee.

Before MURPHY and FAGG, Circuit Judges, and GOLDBERG,^* Judge of the United States Court of International Trade.

PER CURIAM.

In February 2003 an Iowa grand jury indicted Lawrence Charles Bowman on federal drug charges. An arrest warrant was sent to California, where Bowman was living. The warrant did not describe Bowman or provide any identifying information other than his name. On March 3, 2003, Bowman was arrested in Sacramento, California. At his initial appearance there, Bowman was represented by appointed counsel and waived the opportunity for a hearing to determine whether he was the same person named in the indictment or warrant and thus show the Government charged the wrong person. See Fed.R.Crim.P. 5(c)(3)(D)(ii). Bowman was released on bond and directed to report to the Southern District of Iowa for arraignment a week later. Bowman waived his personal appearance at arraignment.

On March 24, 2003 Bowman retained Iowa counsel who entered an appearance. On May 22, 2003, Bowman filed a motion for continuance of trial, which the district court ^** granted. Finally, on July 18, 2003, more than four months after Bowman's arrest, Bowman's attorney sent the Government a letter stating:

We have reviewed the discovery in the Bowman file. It appears that there is insufficient evidence to establish that my client... is the same individual in question with regard to the criminal activity outlined in the indictment. If you have other information that supports your identification in this matter, I would certainly appreciate receiving it. Further, if you have any photographs of any type that support your position, I would like to review [them].

Without waiting for a response to the letter, Bowman sought and received a second continuance later that month. In August, Bowman filed a notice of alibi, a motion in limine, and notice of intent to use business records. He filed a trial brief and exhibit/witness list. Then, on August 22, Bowman's attorney sent the prosecutor a letter stating:

We talked last week concerning a resolution of Mr. Bowman's case. As I have indicated to you in the past, we believe the government has the wrong person indicted in this case. As a matter of fact, I spoke with the co-defendant's attorney from Michigan. It was the third time that he and I had spoken about this issue. I asked him for a description from his client of what Mr. Bowman looked like. The description does not in any way match my client.... We have been able to document Mr. Bowman's whereabouts on each occasion when the government is alleging that he engaged in illegal conduct.... I am asking the government to drop all charges against Mr. Bowman and that it be done immediately.... Please review your file and let me know if you would like the photographs of Mr. Bowman in order that we can substantiate that he is not the same person who was in fact distributing drug paraphernalia around the United States.

The Drug Enforcement Administration (DEA) investigated and presented a photographic spread to a cooperating witness in mid-September. On September 23, 2003, the prosecutor was notified the witness could not identify Bowman as the person involved in the criminal activity. The next day, the Government informed defense counsel of its intent to drop the charges against Bowman and, at the Government's request, the district court dismissed the charges on October 1, 2003. The Government later determined the proper defendant was one Lawrence Carl Bowman.

Bowman then filed a request for attorney's fees under the Hyde Amendment, which authorizes federal courts to "award to a prevailing party [in a criminal case], 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." 18 U.S.C. § 3006A. Bowman asserted the Government's position had been frivolous, the Government knew of its mistake as early as March of 2003 or by July 2003 at the latest, and the Government's action or lack of action was not reasonable. Bowman did not contend the Government lacked a reasonable basis for the indictment, but instead argued the Government did not act quickly enough to dismiss the charges. To support his Hyde Amendment claim, Bowman sought an ex parte hearing. See id. (to decide whether or not to award fees or costs under the Hyde Amendment, "the court, for good cause shown, may receive evidence ex parte and in camera"). Along with his motions seeking fees and a hearing, Bowman presented exhibits including an Internal Revenue Service (IRS) interview from the Government's discovery file containing a physical description of the proper defendant that did not match Bowman's mug shot after his arrest, and statements by his codefendant's attorney that by July 2003, the codefendant had informed the Government that Bowman was not the person involved in the criminal activity. Bowman pointed out the warrant for his arrest did not contain a description, address, or other identifying information; he lived in Northern California and had no connection with the place identified by the Government informant as the proper defendant's place of residence in Southern California; and no search warrant was ever issued for his residence. The district court denied a hearing and the request for fees, noting Bowman had waived his right to an identity hearing and the Government had taken reasonable and prompt steps to resolve the issue after Bowman raised the identity issue on July 18, 2003. Bowman appeals the denial of his Hyde Amendment claims, and we affirm.

Bowman first contends the district court should have held an ex parte hearing before deciding his Hyde Amendment claim. Bowman seeks to learn from Government counsel and several DEA agents when they knew Bowman's identity was an issue. The district court held that Bowman failed to establish good cause for a hearing because, in light of Bowman's waiver of an identification hearing, it was unnecessary to determine if the government knew identity was an issue before July 18, 2003. In the district court's view, the waiver led the Government to believe it had indicted the correct person and, until put on...