U.S. v. Lain

• Decision Date: 12 May 2011
• Docket Number: No. 10–3201.,10–3201.
• Citation: 640 F.3d 1134
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kenneth G. LAIN, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

640 F.3d 1134

UNITED STATES of America, Plaintiff–Appellee,

v.Kenneth G. LAIN, Jr., Defendant–Appellant.

No. 10–3201.

United States Court of Appeals, Tenth Circuit.

May 12, 2011.

John R. Osgood, Lee's Summit, MO, for Defendant–Appellant.Christopher J. Allman, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff–Appellee.Before HOLMES and BALDOCK, Circuit Judges, and JOHNSON, District Judge.^*BALDOCK, Circuit Judge.

A jury acquitted Defendant Kenneth G. Lain, Jr., of one count of delivering a firearm without a federal license in violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D). After his acquittal, Defendant filed a motion for attorney's fees under the Hyde Amendment, Pub.L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997) (codified at 18 U.S.C. § 3006A Note). The district court denied his motion, and Defendant appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

During a traffic stop in September 2009 in Shawnee, Kansas, police discovered Defendant possessed a .40 caliber Glock pistol (“Glock”) owned by Thomas Skiver. Law enforcement personnel conducted additional inquiries into Defendant's activities. Upon further investigation, an agent with the Bureau of Alcohol, Tobacco, and Firearms (ATF) learned Skiver let Defendant borrow the Glock, ostensibly for target practice. Instead, Defendant convinced Thomas Hart to let him borrow a .38 caliber Smith & Wesson revolver (“S & W”), the gun at issue in the prosecution below, by giving Hart the Glock as “collateral.” Defendant and Hart were at Defendant's house in Missouri in August 2009 when Hart let Defendant borrow his S & W in exchange for the Glock.

Later in August 2009, Defendant took the S & W to Kansas, where he gave it to Carroll Hill. Defendant told Hill the S & W was a gift. Hill knew the S & W previously belonged to Hart but thought Defendant had legally acquired it from Hart and intended to present it to Hill as a gift. Both Hill and Defendant claimed they were unaware that federal law requires transfers of firearms from state to state to be done through licensed firearm dealers. Some time after this transfer, Defendant requested that Hart return the Glock because it actually belonged to Skiver. Hart did so, and Defendant thus possessed the Glock during the traffic stop in September 2009. Hill continued to retain the S & W at that time.

Based on these circumstances, a grand jury returned an indictment in February 2010 charging Defendant with willfully transferring a firearm (the S & W) across state lines without the proper license to another individual who also lacked the proper license, in violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D). The Government then discovered Defendant had been indicted for one count of possession of a stolen firearm in Missouri. Because Defendant told the district court he was about to be deployed to Iraq through his service in the reserves, the district court placed him on pretrial diversion. Rather than determine whether the indictment was still pending, the Government relied on its knowledge of standard practices in United States Attorney's offices to conclude that defendants generally remain under indictment while on diversion. ¹ Accordingly, in April 2010, the Government presented the grand jury with a superseding indictment, this time including both the original count and a second count charging Defendant with committing the first count while under indictment for another crime punishable by a term of imprisonment exceeding one year.

Unfortunately for the Government, the Missouri indictment had actually been dismissed long before the superseding indictment was filed. After he was placed on diversion, Defendant moved for a dismissal of the indictment, which was granted in 2008. Because Defendant did not transfer the S & W until 2009, he did not commit the offense charged in the superseding indictment while under indictment in the Missouri case. As soon as the Government discovered the Missouri indictment had, in fact, been dismissed, the Government moved to dismiss the second count of the superseding indictment. The district court did so.

Because the crime with which Defendant was charged requires a willful violation of the statute, his knowledge was the primary issue at trial. See 18 U.S.C. § 924(a)(1)(D) (providing penalties for anyone who “willfully violates any other provision of this chapter”). The Defendant argued he should be acquitted because he did not know his conduct was unlawful. The jury acquitted Defendant. He then moved for attorney's fees under the Hyde Amendment. After the district court denied his motion, he appealed. On appeal, the only issue is whether the district court erred by failing to grant Defendant attorney's fees under the Hyde Amendment, which permits defendants in criminal cases to recover attorney's fees when the Government's position was vexatious, frivolous, or in bad faith.²

II.

We have 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. The Hyde Amendment indicates fee awards should be given pursuant to the procedures and limitations of the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA). We review a district court's determinations on EAJA fee awards for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 559–63, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1109 (10th Cir.2007). The parties agree the same standard should apply here. Additionally, all our sister circuits that have addressed the relevant standard of review have concluded an abuse of discretion review is appropriate. See 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 (5th Cir.2000); United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999). We agree and hold that we review a district court's determination of a defendant's request for attorney's fees under the Hyde Amendment for an abuse of discretion.

III.

We now consider whether the district court abused its discretion when it denied Defendant's claim for attorney's fees under the Hyde Amendment after he was acquitted. To interpret the Hyde Amendment, we turn first to its text. See Conrad v. Phone Directories Co., Inc., 585 F.3d 1376, 1381 (10th Cir.2009). We apply the plain and ordinary meaning of the statutory text and may consult a dictionary to determine that meaning. Id. The text of the Hyde Amendment provides that attorney's fees and costs are available to a defendant when the district court finds the Government's position was “vexatious, frivolous, or in bad faith.” Pub.L. 105–119, § 617, 111 Stat. 2440, 2519 (1997) (codified at 18 U.S.C. § 3006A Note). Vexatious means “without reasonable or probable cause or excuse; harassing; annoying.” Black's Law Dictionary 1596 (8th ed.2004). Frivolous means “[l]acking a legal basis or legal merit; not serious; not reasonably purposeful.” Id. at 692. Bad faith means “[d]ishonesty of belief or purpose.” Id. at 149. In this appeal, Defendant argues the Government's position was vexatious, frivolous, and in bad faith because the prosecutor (1) had an improper motive, (2) wrongly sought the superseding indictment, and (3) prosecuted Defendant without any evidence that he willfully violated federal gun laws.

A.

To demonstrate improper motive, Defendant relies on Hill's testimony about his meeting with the prosecutor. Hill testified:

[S]he told me she realized that “a lot of people transfer guns across State lines but that was not the real issue”.... She told me she was “concerned about Lain going all postal” and that was really her concern and “why she filed the case.” She said she was more concerned “about the way Lain acted.” She also did not seem to believe he acquired the .38 he gave me the way that Mr. Hart explained it happened.

Appellant's App. at 129. Defendant argues these facts demonstrate selective or vindictive prosecution because (1) someone similarly situated (Hill) was not prosecuted and (2) the decision to prosecute was based on the impermissible ground of “depriv[ing] him of Second Amendment rights because of his non-charge related conduct and alleged bizarre behavior and perceived fascination with firearms.” Appellant Br. at 23 n.2. See United States v. Deberry, 430 F.3d 1294, 1299 (10th Cir.2005) (outlining the standard for selective prosecution claims). Defendant did not move for dismissal of the indictment based on selective prosecution but seems to rely on this concept to demonstrate the Government's position was vexatious, frivolous, and in bad faith.

The Government argues it did not prosecute Defendant on the basis of any discriminatory purpose. Rather, it emphasizes prosecutors' ability to bring criminal charges as long as they have “probable cause to believe that the accused committed an offense defined by statute.” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). As the district court noted, “to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present ‘clear evidence to the contrary.’ ” Id. at 465, 116 S.Ct. 1480(quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).

We agree with the district court that Defendant failed to present clear evidence of selective or vindictive prosecution. Hill was not similarly situated to Defendant because he received the S & W as a gift, with no reason to suspect anything suspicious or unlawful had taken place. Defendant, on the other hand, engaged in a...