                              PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 12-2294
                   _____________

          UNITED STATES OF AMERICA

                          v.

                  LOUIS MANZO,
                              Appellant
                  _______________

    On Appeal from the United States District Court
           for the District of New Jersey
               (D.C. No. 09-cr-00759)
        District Judge: Hon. Jose L. Linares
                  _______________

      Submitted Under Third Circuit LAR 34.1(a)
                   March 5, 2013

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

               (Filed: March 25, 2013)
                  _______________
Louis Manzo
409 8th Avenue
Belmar, NJ 07719
      Appellant, Pro Se

Mark E. Coyne, Esq.
Mark J. McCarren, Esq.
Office of United States Attorney
970 Broad Street – Rm. 700
Newark, NJ 07102

Glenn J. Moramarco, Esq.
Office of United States Attorney
Camden Federal Building
401 Market Street, Fourth Floor
Camden, New Jersey 08101
      Counsel for Appellee
                      _______________

                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 in 18
U.S.C. § 3006A, Statutory Note. Louis Manzo appeals a




                              2
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




                               3
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




                              4
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

       1
           That statute provides:

           Whoever, having knowledge of the actual
           commission of a felony cognizable by a court
           of the United States, conceals and does not as
           soon as possible make known the same to
           some judge or other person in civil or
           military authority under the United States,
           shall be fined under this title or imprisoned
           not more than three years, or both.

       18 U.S.C. § 4.
       2
        The Court dismissed the misprision of a felony
charge because, given its dismissal of the Hobbs Act and




                                    5
       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 in 18 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,


Travel Act charges, neither Manzo nor his brother had
committed any “felony” that was “cognizable by a court of
the United States.” 18 U.S.C. § 4.




                              6
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 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




                              7
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.
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). To establish that the government‟s prosecution was
“vexatious,” a petitioner must show “both … that the criminal
case was objectively deficient, in that it lacked either legal
merit or factual foundation, and … that the government‟s
conduct, when viewed objectively, manifests maliciousness
or an intent to harass or annoy.” Knott, 256 F.3d at 29.




                               8
        Courts have interpreted a “frivolous” action as one that
is “groundless[,] with little prospect of success.” Gilbert, 198
F.3d at 1299 (alteration and internal quotation marks
omitted); see also Heavrin, 330 F.3d at 728 (adopting the
Gilbert court‟s definition of “frivolous”); United States v.
Braunstein, 281 F.3d 982, 995 (9th Cir. 2002) (same); In re
1997 Grand Jury, 215 F.3d 430, 436 (4th Cir. 2000) (same).
“[A] case is frivolous when the government‟s position was
foreclosed by binding precedent or [is] obviously wrong … .”
Capener, 608 F.3d at 401 (first alteration in original) (internal
quotation marks omitted). “Just because the government
lacks „precedent‟ does not automatically mean that its
position is frivolous.” Heavrin, 330 F.3d at 729. “The
government should be allowed to base a prosecution on a
novel argument, so long as it is a reasonable one, without fear
that it might be setting itself up for liability under the Hyde
Amendment.” Id. Thus, “[a] frivolous position is one lacking
a reasonable legal basis or where the government lacks a
reasonable expectation of attaining sufficient material
evidence by the time of trial.” Id. A “frivolous” position can
be distinguished from a “vexatious” one in that “the term
„vexatious‟ embraces the distinct concept of being brought for
the purpose of irritating, annoying, or tormenting the
opposing party.” Id.

       Finally, “bad faith” means “not simply bad judgment
or negligence, but rather it 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.” Gilbert, 198 F.3d at 1299
(omission in original) (internal quotation marks omitted); cf.
Franks v. Delaware, 438 U.S. 154, 171 (1978) (defining bad
faith in the law enforcement context to include “reckless




                               9
disregard for the truth”). Courts engage in an objective
inquiry when determining whether a prosecution was pursued
in “bad faith.” See Shaygan, 652 F.3d at 1313-14.

     Against that legal background, we examine each of
Manzo‟s arguments.

       A.     Continued Prosecution After Dismissal of
              Hobbs Act Charges

       Manzo contends that his prosecution was either
vexatious or frivolous because, even after we affirmed the
District Court‟s dismissal of the Hobbs Act charges, the
government continued to pursue him on the remaining Travel
Act and misprision of a felony charges. Manzo insists that,
by nonetheless proceeding with its prosecution, the
government “was nothing less th[a]n defiant, and the second
superseding indictment no longer supported a position of first
impression.” (Manzo‟s Opening Br. at 19.)

       That charge fails to establish an abuse of discretion.
The District Court dismissed the Hobbs Act charges because,
during the time of the alleged conduct, Manzo was only a
candidate for public office and therefore did not act “„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)).) At the same time, however, the Court declined
to dismiss the Travel Act charges and expressly rejected
Manzo‟s argument that, because he was “merely a candidate
and not one that was at least elected,” his conduct did not fall
within New Jersey‟s bribery statute. (Supplemental App. at
166.) The Court opined that, under a “plain reading,” the
bribery statute “encompasses prosecutions where the person




                              10
whom the action was sought to influence was not yet
qualified or [able] to act in a desired way for any reason.”
(Supplemental App. at 166.) As noted earlier, we affirmed on
interlocutory appeal the dismissal of the Hobbs Act charges.
It was only then that, upon reconsideration, the District Court
dismissed the Travel Act charges because it concluded that
New Jersey‟s bribery statute does not criminalize bribes to
candidates for public office (as opposed to officeholders).

       Given the District Court‟s original ruling on the
applicability of the New Jersey bribery statute, the
government‟s continued prosecution of Manzo under the
remaining Travel Act charges was clearly not vexatious, since
it was not “objectively deficient.” Knott, 256 F.3d at 29. Nor
was it frivolous. “Once a district court judge accepts the
government‟s legal position it will be extremely difficult to
persuade us that the issue was not debatable among
reasonable lawyers and jurists, i.e., that it was frivolous.”
Gilbert, 198 F.3d at 1304. In fact, the District Court‟s
original ruling on the applicability of the New Jersey bribery
statute left the government with an objectively reasonable
belief that its legal position would prevail. We accordingly
reject Manzo‟s argument that the government‟s continued
prosecution was vexatious or frivolous.




                              11
      B.      Manzo’s Claim that the Government Knew that
              Its Factual Allegations Were False


       Manzo also argues that the allegations in the
indictment were “blatantly false,” that the government knew
they were false, and that the government‟s prosecution was
therefore in bad faith, as well as being vexatious and
frivolous. (Manzo‟s Opening Br. at 6.) Those assertions rely
primarily on the fact that, when he testified in a separate
corruption trial, Ronald Manzo said he never physically gave
his brother $10,000 in cash that he had received from Dwek.

       That testimony does not conclusively prove that the
government‟s accusations were false, much less that they
were knowingly false. Nor does the testimony prove that the
District Court abused its discretion. As the Court noted,
despite Ronald‟s testimony, the government was prepared to
present recordings “during which both Ronald Manzo and
[Louis Manzo] acknowledged that [Louis Manzo] had
received money from Mr. Dwek.” (Supplemental App. at
14.) In addition, even if Ronald‟s testimony were true, the
charges against Manzo did not require the government to
prove that he physically received a cash bribe, only that he
traveled in interstate commerce with the intent to “promote,
manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on of” a bribe, 18
U.S.C. § 1952(a)(3), which, under New Jersey law,
encompasses the “indirect[]” acceptance of “[a]ny benefit as
consideration for a decision, opinion, recommendation, vote
or exercise of discretion of a public servant,” N.J. Stat. Ann.
§ 2C:27-2.     The recordings would have allowed the




                              12
government to plausibly argue that Manzo was aware of the
cash payment to his brother and played a role in facilitating it.
Thus, Ronald‟s testimony that Manzo never received the cash
payments, even if we assume it to be true, is insufficient to
show that the government‟s prosecution in light of that
testimony was vexatious, frivolous, or in bad faith.

       C.     Conflicts of Interest

        Manzo avers that the prosecutors in his case operated
under “overbearing conflicts of interest” and should have
recused themselves under “numerous” Department of Justice
guidelines. (Manzo‟s Opening Br. at 14.) Specifically, he
asserts that, while running for governor of New Jersey, then-
United States Attorney Chris Christie lauded his office‟s anti-
corruption prosecutions and publicly proclaimed that, as
Governor, he would hire several Assistant United States
Attorneys who had played a role in prosecuting over 40
individuals for corruption in Hudson County, New Jersey,
including Manzo.       According to Manzo, shortly after
candidate Christie made that statement, a number of
prosecutors donated to Christie‟s campaign. Despite those
donations and Christie‟s public statement that he would hire
them, the prosecutors, according to Manzo, “failed to recuse
themselves from an investigation and prosecution that
ultimately benefitted Christie‟s election, and by so doing,
enhanced their employment prospects for the jobs that they
were promised.” (Manzo‟s Opening Br. at 14.) Manzo
insists that the prosecutors‟ supposed failure to adhere to
recusal guidelines constitutes “bad faith.”

      The government vigorously denies that any of the
prosecutors violated recusal guidelines, which may well be




                               13
correct, but we need not address the issue. As already noted,
“Congress created an objective standard of bad faith to
govern an award of attorney‟s fees and costs under the Hyde
Amendment.” Shaygan, 652 F.3d at 1313. We accordingly
should not “read the Hyde Amendment to license judicial
second-guessing of prosecutions that are objectively
reasonable.” Id. at 1314. Thus, rather than attempting to
delve into the minds and motivations of individual
prosecutors when making political contributions or career
moves, the proper inquiry into a challenged prosecution is an
objective one.        Here, in a wide-ranging undercover
investigation, the FBI obtained recorded conversations in
which Manzo, a candidate for political office, agreed to
accept money in exchange for a promise of future official
action if elected. Under those circumstances, it was not
objectively unreasonable for the government to attempt to
prosecute him under the Hobbs Act and the Travel Act. At
the time of the indictment, there was no binding case law
holding that such prosecutions were improper, and it was
entirely legitimate for the government to initiate a federal
prosecution based on the underlying facts. The District Court
therefore did not abuse its discretion in rejecting Manzo‟s
conflict-of-interest argument.

      D.     Manzo’s      Remaining       Allegations      of
             Prosecutorial Misconduct

        Manzo‟s remaining miscellaneous allegations of bad
faith are also unavailing. He claims that the government
failed to present exculpatory evidence to the grand jury and
failed to preserve the instructions given to Dwek by the FBI
prior to his covert meetings with the Manzos. The District
Court rejected those claims, holding that Manzo had not




                             14
borne his burden of proof on them. But even if he had, those
failures would at most constitute prosecutorial errors, rather
than a basis to conclude that the prosecution was undertaken
and pursued in bad faith. “Sloppy work alone does not
support a claim of vexatiousness, frivolousness, or bad faith”
sufficient to justify attorney fees under the Hyde Amendment.
Lain, 640 F.3d at 1139. Moreover, as the District Court
noted, the second superseding indictment against Manzo was
dismissed prior to trial, and the Jencks Act requires
production of documents relied on by a government witness
only “[a]fter [the] witness called by the United States has
testified on direct examination” at trial. 18 U.S.C. § 3500(b).

       Manzo also argues that Dwek was not authorized
under Department of Justice guidelines to engage in
undercover activities with Manzo because Manzo was not yet
a public official. Whether that is correct is irrelevant, for,
even assuming that the government mishandled Dwek in
some respects, the alleged errors would not demonstrate that
the government‟s prosecution of Manzo was vexatious,
frivolous, or in bad faith, which is the standard that Manzo
must meet for an award of attorney fees. We find no abuse of
discretion in the District Court‟s decision.

IV.    Conclusion

       For the foregoing reasons, we will affirm the order of
the District Court.




                              15
