                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-4044
                                  ___________

United States of America,              *
                                       *
                  Appellee,            * Appeal from the United States
                                       * District Court for the Southern
      v.                               * District of Iowa.
                                       *
Lawrence Charles Bowman,               *      [PUBLISHED]
                                       *
                  Appellant.           *
                                  ___________

                             Submitted: May 11, 2004
                                 Filed: August 24, 2004
                                 ___________

Before MURPHY and FAGG, Circuit Judges, and GOLDBERG,* Judge of the United
      States Court of International Trade.
                                   ___________

PER CURIAM.

       In February 2003 an Iowa grand jury indicted Lawrence Charles Bowman on
federal drug charges. An arrest warrant was sent to California, where Bowman was
living. The warrant did not describe Bowman or provide any identifying information
other than his name. On March 3, 2003, Bowman was arrested in Sacramento,
California. At his initial appearance there, Bowman was represented by appointed
counsel and waived the opportunity for a hearing to determine whether he was the

      *
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
same person named in the indictment or warrant and thus show the Government
charged the wrong person. See Fed. R. Crim. P. 5(c)(3)(D)(ii). Bowman was
released on bond and directed to report to the Southern District of Iowa for
arraignment a week later. Bowman waived his personal appearance at arraignment.

       On March 24, 2003 Bowman retained Iowa counsel who entered an
appearance. On May 22, 2003, Bowman filed a motion for continuance of trial,
which the district court** granted. Finally, on July 18, 2003, more than four months
after Bowman’s arrest, Bowman’s attorney sent the Government a letter stating:
       We have reviewed the discovery in the Bowman file. It appears that
       there is insufficient evidence to establish that my client . . . is the same
       individual in question with regard to the criminal activity outlined in the
       indictment. If you have other information that supports your
       identification in this matter, I would certainly appreciate receiving it.
       Further, if you have any photographs of any type that support your
       position, I would like to review [them].

Without waiting for a response to the letter, Bowman sought and received a second
continuance later that month. In August, Bowman filed a notice of alibi, a motion in
limine, and notice of intent to use business records. He filed a trial brief and
exhibit/witness list. Then, on August 22, Bowman’s attorney sent the prosecutor a
letter stating:
        We talked last week concerning a resolution of Mr. Bowman’s case. As
        I have indicated to you in the past, we believe the government has the
        wrong person indicted in this case. As a matter of fact, I spoke with the
        co-defendant’s attorney from Michigan. It was the third time that he and
        I had spoken about this issue. I asked him for a description from his
        client of what Mr. Bowman looked like. The description does not in any
        way match my client . . . . We have been able to document Mr.
        Bowman’s whereabouts on each occasion when the government is


      **
        The Honorable Ronald L. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.

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      alleging that he engaged in illegal conduct. . . . I am asking the
      government to drop all charges against Mr. Bowman and that it be done
      immediately. . . . Please review your file and let me know if you would
      like the photographs of Mr. Bowman in order that we can substantiate
      that he is not the same person who was in fact distributing drug
      paraphernalia around the United States.

The Drug Enforcement Administration (DEA) investigated and presented a
photographic spread to a cooperating witness in mid-September. On September 23,
2003, the prosecutor was notified the witness could not identify Bowman as the
person involved in the criminal activity. The next day, the Government informed
defense counsel of its intent to drop the charges against Bowman and, at the
Government’s request, the district court dismissed the charges on October 1, 2003.
The Government later determined the proper defendant was one Lawrence Carl
Bowman.

       Bowman then filed a request for attorney’s fees under the Hyde Amendment,
which authorizes federal courts to “award to a prevailing party [in a criminal case],
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.” 18 U.S.C. § 3006A. Bowman asserted the Government’s position had been
frivolous, the Government knew of its mistake as early as March of 2003 or by July
2003 at the latest, and the Government’s action or lack of action was not reasonable.
Bowman did not contend the Government lacked a reasonable basis for the
indictment, but instead argued the Government did not act quickly enough to dismiss
the charges. To support his Hyde Amendment claim, Bowman sought an ex parte
hearing. See id. (to decide whether or not to award fees or costs under the Hyde
Amendment, “the court, for good cause shown, may receive evidence ex parte and in
camera”). Along with his motions seeking fees and a hearing, Bowman presented
exhibits including an Internal Revenue Service (IRS) interview from the
Government’s discovery file containing a physical description of the proper defendant

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that did not match Bowman’s mug shot after his arrest, and statements by his
codefendant’s attorney that by July 2003, the codefendant had informed the
Government that Bowman was not the person involved in the criminal activity.
Bowman pointed out the warrant for his arrest did not contain a description, address,
or other identifying information; he lived in Northern California and had no
connection with the place identified by the Government informant as the proper
defendant’s place of residence in Southern California; and no search warrant was ever
issued for his residence. The district court denied a hearing and the request for fees,
noting Bowman had waived his right to an identity hearing and the Government had
taken reasonable and prompt steps to resolve the issue after Bowman raised the
identity issue on July 18, 2003. Bowman appeals the denial of his Hyde Amendment
claims, and we affirm.

      Bowman first contends the district court should have held an ex parte hearing
before deciding his Hyde Amendment claim. Bowman seeks to learn from
Government counsel and several DEA agents when they knew Bowman’s identity
was an issue. The district court held that Bowman failed to establish good cause for
a hearing because, in light of Bowman’s waiver of an identification hearing, it was
unnecessary to determine if the government knew identity was an issue before July
18, 2003. In the district court’s view, the waiver led the Government to believe it
had indicted the correct person and, until put on notice by Bowman in July, the
Government had no reason to look into the identification issue.

      Given the discretionary language of the Hyde Amendment and the district
court’s unique familiarity with the litigation, we defer to a district court’s Hyde
Amendment rulings. United States v. Beeks, 266 F.3d 880, 883 (8th Cir. 2001) (per
curiam). In this case, we simply cannot say the district court abused its discretion in
concluding Bowman failed to show good cause warranting a hearing. See id.
Although the Government’s discovery file contained a description of the proper
defendant in a three-year-old IRS interview, the description was not at total odds with

                                         -4-
Bowman’s mug shot. Further, given Bowman’s waiver of his personal appearance
in Iowa, the prosecutor had not seen Bowman and had no reason to question his
identity until July, when the prosecutor received Bowman’s letter and learned
Bowman did not match a description given by the codefendant of the person involved
in the criminal activity. The mere fact that the Government charged the wrong
defendant without more does not establish good cause for an ex parte hearing,
particularly as here, when Bowman asserts the only issue is when the Government
knew it had the wrong person and its reasonableness afterwards, not that the
government acted without a basis to believe the charge could not be proven.

       Bowman also argued that if the district court did not grant an ex parte hearing,
the district court should hold the record open until his codefendant’s criminal matter
was resolved, so the codefendant could state when he informed the DEA agent that
Bowman was not the correct codefendant. The district court had no reason to allow
a fishing expedition, however. Bowman had no idea what the codefendant would say,
and the codefendant’s attorney did not give the conflicting description of the proper
defendant to Bowman’s attorney until July.

       Aside from the district court’s refusal to grant a hearing, Bowman also
contends the district court abused its discretion in declining to award fees under the
Hyde Amendment. Bowman contends the Government’s prosecution of him was
frivolous, a term that is not defined in the statute. We have stated a position is
frivolous for the purposes of the Hyde Amendment when the position is utterly
without foundation in law or fact. Beeks, 266 F.3d at 883-84; see United States v.
Knott, 256 F.3d 20, 29-30 (1st Cir. 2001) (distinguishing the terms “vexatious” and
“frivolous” in Hyde Amendment; for frivolousness, no improper motive need be
shown); United States v. Heavrin, 330 F.3d 723, 729 (6th Cir. 2003) (same); United
States v. Sherburne, 249 F.3d 1121, 1126 n.4 (9th Cir. 2001) (same). Thus, although
the Hyde Amendment targets prosecutorial misconduct rather than prosecutorial
mistake, United States v. Braunstein, 281 F.3d 982, 995 (9th Cir. 2002), we stated in

                                         -5-
Beeks that “a prosecution . . . so utterly without foundation in law or fact as to be
frivolous’” amounts to prosecutorial misconduct. Beeks, 266 F.3d at 883-84.

       Here, we do not know whether the Government’s case against Bowman was
utterly without foundation in fact rendering it frivolous, see Beeks, 266 F.3d at 883-
84, because Bowman has failed to show the prosecution was pursued without any
reasonable foundation for the belief that the Government might prevail on the
indictment. See Heavrin, 330 F.3d at 729; Knott, 256 F.3d at 29-30. We need not
determine this issue, however, because Bowman’s Hyde Amendment claim fails on
another ground. To prevail on his Hyde Amendment claim, Bowman also has the
burden to show there are no special circumstances making the award unjust.
Braunstein, 281 F.3d at 994; see United States v. Aisenberg, 358 F.3d 1327, 1339
n.18 (11th Cir. 2004).        Although the district court focused on whether the
Government’s conduct in prosecuting Bowman was frivolous, it is clear from the
court’s opinion that it believed a fee award would be unjust in this case. The court
observed that when Bowman finally gave the Government notice in July that he was
the wrong defendant, the Government acted reasonably in investigating the matter
and dismissing the charges against Bowman before trial. We agree. Until Bowman
first questioned his identification in a July letter, and brought evidence that the
Government had charged the wrong person to the prosecutor’s attention in July and
August, the Government was justified in relying on Bowman’s waiver of the
identification issue at his initial appearance before a magistrate following his arrest
in California. Once put on notice by Bowman, the Government took Bowman’s
claim seriously, confirmed Bowman was the wrong defendant, and asked the district
court to dismiss the case. Given that Bowman did not bring the identity issue to the
attention of the Government until more than four months after his arrest, and the case
was dismissed after an investigation revealed the Government had indeed charged the
wrong person, it would be unjust to hold the Government responsible for the payment
of fees that would have been avoided if Bowman had put the Government on notice
of its mistake sooner.

                                         -6-
      Because we conclude the district court did not abuse its broad discretion in
denying Bowman’s Hyde Amendment claim, see Beeks, 266 F.3d at 883, we affirm.
                    ______________________________




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