                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10274

                Plaintiff-Appellee,             D.C. No.
                                                2:11-cr-00453-LDG-CWH-1
 v.

DAVID M. MARK,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Lloyd D. George, District Judge, Presiding

                     Argued and Submitted October 10, 2018
                           San Francisco, California

Before: MURGUIA and FRIEDLAND, Circuit Judges, and HINKLE,** District
Judge.

      In United States v. Mark, 795 F.3d 1102 (9th Cir. 2015), we reversed

Appellant David M. Mark’s conviction and directed the district court to dismiss the

indictment with prejudice. Mark now appeals the district court’s denial of his

motion for prevailing party attorney’s fees under the Hyde Amendment, 18 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Robert L. Hinkle, United States District Judge for the

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§ 3006A. “We review a district court’s denial of a Hyde Amendment motion for

abuse of discretion. An abuse of discretion is an error of law or a determination

based on a clearly erroneous finding of fact.” United States v. Chapman, 524 F.3d

1073, 1089 (9th Cir. 2008) (quoting United States v. Manchester Farming P’ship,

315 F.3d 1176, 1181, amended on denial of reh’g, 326 F.3d 1028 (9th Cir. 2003)).


      The district court did not abuse its discretion in holding that Mark had not

established the Government acted in bad faith. “‘[B]ad faith’ . . . implies the

conscious doing of a wrong because of dishonest purpose or moral obliquity; it

contemplates a state of mind affirmatively operating with furtive design or ill will.”

Manchester Farming, 315 F.3d at 1185 (alteration omitted) (quoting United States

v. Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999)). Mark had the burden of

establishing bad faith, United States v. Braunstein, 281 F.3d 982, 994 (9th Cir.

2002), and “we will not reverse unless we have a firm conviction that the district

court committed a clear error of judgment,” United States v. Lindberg, 220 F.3d

1120, 1124 (9th Cir. 2000).


      Based largely on credibility assessments of the live testimony during the

attorney’s fees hearing, the district court concluded that Mark had not established

that Pugh acted in bad faith by indicting Mark or by testifying that Mark had



Northern District of Florida, sitting by designation.

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breached his immunity agreement. The district court also concluded that Pugh did

not intentionally conceal Mark’s immunity agreement from either Mark or his

counsel. The court held that Pugh’s failure to document Mark’s immunity

agreement and alleged breach strongly suggested that Pugh was not diligent, and

may even have been negligent, but that Pugh’s errors did not reflect bad faith or

intentional conduct.


      The district court’s factual findings were supported by the record and were

not clearly erroneous. The district court also applied the correct legal definition of

bad faith in this context. The district court therefore did not abuse its discretion in

concluding that Mark had not established bad faith, a prerequisite to an award of

attorney’s fees under the Hyde Amendment.1


      AFFIRMED.




      1
        Because we conclude that the district court did not abuse its discretion in
finding that Mark had not established bad faith, we need not reach the question of
whether Mark qualifies as a prevailing party for purposes of the Hyde Amendment.


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