USA v. Monson
| Decision Date | 13 April 2011 |
| Docket Number | No. 10-2188,10-2188 |
| Parties | United States of America, Plaintiff - Appellee, v. Dejay Monson, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Nebraska.
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
Nebraska law enforcement executed a warrant to search the property of Dejay Monson and seized dozens of firearms, a significant amount of marijuana, and hundreds of marijuana plants. As a result, a grand jury indicted Monson on several offenses. However, the district court later found that the warrant was not supported by probable cause and suppressed the firearms, marijuana, and marijuana plants. After the government voluntarily dismissed its prosecution against Monson without prejudice, Monson filed a motion to recover attorney's fees and expenses pursuant to the Hyde Amendment, Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 U.S.C. § 3006A. The district court1 denied the motion. Monson now appeals, arguing that the district court abused its discretion by not awarding him attorney's fees and expenses pursuant to the Hyde Amendment. We affirm.
In September 2008, Carvin Housh contacted Jamie Keatts, a deputy with the Burt County, Nebraska Sheriff's Office. Housh told Keatts that he had information concerning criminal activity in the area. During a meeting on September 15, Housh told Keatts that Monson possessed around fifty guns and that Monson would be willing to trade or sell them for cash, property, or drugs.
Chris Nelson, a deputy with the Washington County, Nebraska Sheriff's Office, corroborated Housh's information. While Nelson was operating in an undercover role in August 2007, Housh—who was unaware of the fact that Nelson was a deputy sheriff—took him to Monson's home. Housh showed Nelson several of Monson's guns that Housh said Monson was willing to trade or sell for money and maybe marijuana. Nelson said that Monson, communicating through Housh, offered him a "Tommy gun" and "Tech-9" for $1,600. Housh said the guns were "dirty," which Nelson believed meant the guns had been stolen.
On September 16, 2008, Housh agreed to be an unpaid "cooperating individual" in an investigation of Monson. Housh's cooperation entailed trying to arrange a deal with Monson later that evening to exchange marijuana and cash for a firearm. Law enforcement planned to search Monson's home if the deal occurred.
Based on this plan, Keatts prepared an affidavit and application for a search warrant. The affidavit indicated that Keatts believed Monson possessed stolen guns, drugs, and drug paraphernalia at his home. The affidavit recounted the meetings with Housh that Nelson had in August 2007 and that Keatts had the previous day. The affidavit also indicated that Housh had met with Monson in a bar on September 12, 2008, during which time they had discussed dealing firearms. The affidavit closed with the following paragraph:
On September 16th, 2008 at about 1715 hours [Housh ("CI")] made arrangements with Munson [sic] for an exchange of cash money and Marijuana for a firearm, [sic] Between the hours of 1730 hours and 2400 hours CI made contact with Munson via the telephone. CI set up with Munson a trade of cash and Marijuana to Munson for a firearm. CI will make this trade at the Munson residence located at [Monson's home address].
Immediately prior to faxing the affidavit to a state-court judge at 5:00 p.m., Keatts telephoned the judge to discuss the future search. Keatts claims he told the judge that "if [the] trade was completed with the cash and marijuana and the gun was purchased we were going to execute the anticipatory warrant." At 5:15 p.m., Housh called Monson's home, but Monson was unavailable. Then, at approximately 5:50 p.m., the judge issued a search warrant. At 7:00 p.m., Housh called Monson and gauged his interest in trading cash and marijuana for firearms. Housh then went to Monson's house and purchased a gun for $400 and an ounce of marijuana. After the transaction, law enforcement executed the search warrant. The search resulted in the seizure of thirty-three firearms, sixty-seven pounds of marijuana, and 266 marijuana plants.
On September 23, a criminal complaint was filed that charged Monson with possessing 100 kilograms or more of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and for possessing a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). At a preliminary hearing on September 26, a magistrate judge found there was probable cause to believe Monson had committed both crimes. On October 22, a grand jury indicted Monson for (1) possessing 100 kilograms or more of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) manufacturing or attempting to manufacture 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1); and (3) being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3).
On September 11, 2009, Monson requested a hearing to determine whether the search warrant was constitutional pursuant to Franks v. Delaware, 438 U.S. 154 (1978). A magistrate judge2 found that Keatts made three false or misleading statements or omissions with a reckless disregard for their truth. First, although Keatts accurately noted that Housh was an "unwitting" informant when he showed Monson's guns to Nelson in August 2007, Keatts failed to indicate that Housh had become a "cooperating individual" in the hours leading up to the search. Second, Keatts stated that Housh met with Monson on September 12, 2008. In fact, no meeting occurred on this particular date. Third, in the court's opinion, the deal between Housh and Monson "never occurred" the way Keatts described in the final paragraph of the affidavit. After excising these portions of the affidavit, the magistrate judge found there was insufficient evidence to establish probable cause for the issuance of the warrant. Thus, the warrant was invalid pursuant to Franks. The district judge adopted these findings on February 18, 2010.
The government moved to dismiss its prosecution of Monson without prejudice on February 22, 2010. The district court granted the motion. Monson then filed a motion to receive an award of attorney's fees and expenses pursuant to the Hyde Amendment. The district court denied the motion. Monson now appeals, arguing that the district court abused its discretion by not awarding him attorney's fees and expenses pursuant to the Hyde Amendment.
Pursuant to the Hyde Amendment, a federal court "may" award "a reasonable attorney's fee and other litigation expenses" to a prevailing criminal defendant "where the court finds that the position of the United States was vexatious, frivolous, or in bad faith." 111 Stat. at 2519. The defendant bears the burden of proving that the United States's position was vexatious, frivolous, or in bad faith. United States v. Porchay, 533 F.3d 704, 711 (8th Cir. 2008). Because the text of the Hyde Amendment uses the terms "vexatious," "frivolous," and "in bad faith" disjunctively, courts have recognized that each term has an independent meaning and that proof of any of the terms may entitle a prevailing defendant to an award pursuant to the Hyde Amendment. See id. (); United States v. Manchester Farming P'ship, 315 F.3d 1176, 1182 (9th Cir. 2003) ()
The intent of the Hyde Amendment is to deter prosecutorial misconduct, not prosecutorial mistake. United States v. Bowman, 380 F.3d 387, 391 (8th Cir. 2004). Requiring proof of prosecutorial misconduct thus means that a defendant seeking to prove entitlement to a Hyde Amendment award faces a "daunting obstacle." United States v. Gilbert, 198 F.3d 1293, 1302 (11th Cir. 1999). Moreover, we review a district court's denial of a Hyde Amendment award for an abuse of discretion. Porchay, 533 F.3d at 711.
Monson argues that the government's prosecution against him was frivolous or vexatious. Monson does not argue that the prosecution against him was in bad faith.3
Monson first contends that his prosecution was vexatious or frivolous because the district court ruled that the search warrant violated Franks v. Delaware. We reject Monson's contention that a favorable Franks ruling necessarily means that a prosecution against a defendant was frivolous or vexatious. A favorable Franks ruling constitutes a finding that law enforcement deliberately lied or recklessly disregarded the truth when they included information in an affidavit used to obtain a warrant. Franks, 438 U.S. at 171. A Franks ruling does not necessarily mean that government prosecutors (assuming they did not participate in the preparation of the affidavit) deliberately lied or acted with a reckless disregard for the truth. Instead, when a district court finds that a search warrant violates Franks, rather than automatically concluding that the prosecution against the defendant was frivolous or vexatious, we must consider the individual facts of the case. This analysis requires considering whether the falsehoods producing the Franks violation were deliberately or recklessly made and whether (and to what extent) prosecutors participated in the preparation of the challenged warrant.
Focusing on the prosecutors' conduct, we first reject Monson's argument that the prosecution against him was vexatious. A prosecution is vexatious if it is "without reasonable or probable cause or excuse." Porchay, 533 F.3d at 711 (internal quotation marks omitted). Pursuant to this standard, if the government...
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