                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 17 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10472

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00212-DCB-
                                                 BPV-4
  v.

DWAYNE LEQUIRE,                                  MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                           Submitted January 14, 2014**
                             San Francisco, California

Before: WALLACE and BYBEE, Circuit Judges, and RESTANI, Judge.***

       Dwayne Lequire appeals from the district court’s denial of his motion for

attorney fees under the Hyde Amendment, 18 U.S.C. § 3006A, after our court

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
reversed his convictions for embezzlement and conspiracy to commit

embezzlement under 18 U.S.C. §§ 1033 and 371. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      We review the denial of attorney fees under the Hyde Amendment for abuse

of discretion. United States v. Lindberg, 220 F.3d 1120, 1124 (9th Cir. 2000).

“[U]nder the Hyde Amendment, a victorious defendant may be able to recover

legal fees upon showing that the position of the United States was either vexatious,

frivolous or in bad faith.” United States v. Capener, 608 F.3d 392, 400–01 (9th

Cir. 2010). To prevail, such a defendant must make a showing of “prosecutorial

misconduct, not prosecutorial mistake.” Id. at 401 (citation omitted). For purposes

of the Hyde Amendment, a “frivolous” case is one that is “groundless” because the

“government’s position was foreclosed by binding precedent or so obviously

wrong as to be frivolous.” United States v. Manchester Farming P’ship, 315 F.3d

1176, 1183 (9th Cir. 2003) (citation omitted).

      The district court did not abuse its discretion in concluding that the

prosecution was “based on a mistake in law” that was not disclosed until we, as a

matter of first impression, defined the term “embezzlement” as used in 18 U.S.C. §

1033(b)(1) pursuant to Arizona law. Capener, 608 F.3d at 401; see also United




                                          2
States v. Lequire, 672 F.3d 724, 729–31 (9th Cir. 2012). Thus, the government’s

case was not “frivolous” when filed.

      Lequire also argues that the district court erred by denying the evidentiary

hearing he requested. Reviewing for abuse of discretion, Capener, 608 F.3d at

400, we reject this argument. The district court did not abuse its discretion in

concluding that there was no need for an evidentiary hearing, insofar as the briefs

had provided Lequire with “ample opportunity” to present any evidence in support

of his claim. See Lindberg, 220 F.3d at 1126.

      AFFIRMED.




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