                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF                          Nos. 18-10216
 AMERICA,                                       18-10272
       Plaintiff-Appellee,
                                              D.C. No.
               v.                    4:14-cr-00631-JGZ-LAB-1

 WYNONA MIXON, AKA
 Wynonna Mixon,                                OPINION
    Defendant-Appellant.


         Appeal from the United States District Court
                  for the District of Arizona
         Jennifer G. Zipps, District Judge, Presiding

             Argued and Submitted June 13, 2019
                  San Francisco, California

                        Filed July 22, 2019

   Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
      Judges, and Benita Y. Pearson,* District Judge.

                     Opinion by Judge Ikuta




    *
      The Honorable Benita Y. Pearson, United States District Judge for
the Northern District of Ohio, sitting by designation.
2                    UNITED STATES V. MIXON

                            SUMMARY**


                Criminal Law / Attorneys’ Fees

    The panel affirmed the district court’s denial of a motion
for attorneys’ fees under the Hyde Amendment and a motion
for reconsideration filed by a criminal defendant following
her acquittal.

    Agreeing with the Eighth Circuit, the panel held that a
defendant is eligible for attorneys’ fees under the Hyde
Amendment only where there is egregious prosecutorial
misconduct that renders the litigating position of the United
States as a whole “vexatious, frivolous, or in bad faith.” The
panel held that the appellant was not eligible for attorneys’
fees because she conceded that there was no prosecutorial
misconduct in her case.


                             COUNSEL

A. Bates Butler III (argued), Tucson, Arizona, for Defendant-
Appellant.

Bradley G. Silverman (argued), Special Attorney; Helen H.
Hong, Chief, Appellate Section; United States Attorney’s
Office, San Diego, California; for Plaintiff-Appellee.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. MIXON                      3

                         OPINION

IKUTA, Circuit Judge:

    Wynona Mixon appeals the district court’s order denying
her motion for attorneys’ fees under the Hyde Amendment
and the denial of her motion for reconsideration of that order.
A defendant is eligible for attorneys’ fees under the Hyde
Amendment only when there is egregious prosecutorial
misconduct that renders the litigating position of the United
States as a whole “vexatious, frivolous, or in bad faith.”
18 U.S.C. § 3006A note. Because Mixon concedes that there
was no prosecutorial misconduct in her case, we affirm.

                               I

    Mixon was employed as a case manager on the sex
offender yard at a maximum security federal penitentiary in
Tucson, Arizona. While employed as a case manager, she
was the subject of two investigations.

    In 2006, an inmate alleged that Mixon was smuggling
drugs to inmates at the prison. The Department of Justice’s
Office of the Inspector General (OIG) and the Federal Bureau
of Prisons (BOP) opened an investigation into this allegation.
While federal agents concluded there was insufficient
independent evidence to substantiate the allegation, they also
determined that Mixon made a material false statement in an
affidavit to investigators, and referred the alleged false
statement to the U.S. Attorney’s Office in Tucson for possible
prosecution. Prosecutors declined to charge Mixon for the
alleged falsehood, but BOP initiated internal disciplinary
proceedings and gave Mixon a fifteen-day suspension. While
this investigation was pending, Mixon alleged to two officials
4                   UNITED STATES V. MIXON

of her union that the BOP investigators, including Lieutenant
Alfonso Mendez, had coerced inmates into making false
statements against her. BOP’s investigation into Mixon’s
complaint found no evidence to support her charges, and
concluded that Mixon’s allegations “appear to be an attempt
to taint an investigation on herself.”

    A second incident occurred in 2011, after a new inmate,
Harold Goins, was assigned to the sex offender yard, under
Mixon’s supervision. On August 11, 2011, Mixon reported
to her BOP supervisor, Scott Pennington, that Goins had
raped her in the staff restroom. Pennington reported the
incident to Lieutenant Mendez, who was still a BOP
investigator for the penitentiary. OIG and Federal Bureau of
Investigation (FBI) agents commenced an investigation into
this rape allegation. The investigation eventually began
focusing on evidence that Mixon had instigated the sexual
relations with Goins in violation of 18 U.S.C. § 2243(b).1

    Mixon claims that one of the FBI agents, John DeSouza,
engaged in misconduct during the course of this investigation.
According to Mixon, in September 2011, Agent DeSouza
interviewed her without informing her that the FBI suspected
her of misconduct, which Mixon claims was improper.
Further, Mixon claims that Agent DeSouza took steps to
bolster Goins’s credibility as a witness. First, in January
2012, Agent DeSouza contacted an FBI agent who was
investigating Goins for misconduct at a federal penitentiary
in Phoenix, and asked that the agent and the U.S. Attorney’s


    1
      18 U.S.C. § 2243(b) makes it a crime for any person in a federal
prison to “knowingly engage[] in a sexual act with another person who is
– (1) in official detention; and (2) under the custodial, supervisory, or
disciplinary authority of the person so engaging.” 18 U.S.C. § 2243(b).
                     UNITED STATES V. MIXON                               5

Office in Phoenix delay proceeding against Goins “until our
matter here in Tucson is disposed of.” Second, in the course
of his investigation, Agent DeSouza concluded that Goins
should not have been characterized as a sex offender, and
attempted to have Goins’s National Crime Information Center
profile updated accordingly.

    The FBI and OIG investigation of Mixon’s rape
allegations uncovered material evidence that Mixon had
induced Goins to engage in sex with her on multiple
occasions in exchange for contraband and promises of
protection. Based on this evidence, the U.S. Attorney’s
Office obtained a grand jury indictment charging Mixon with
knowingly engaging in a sexual act with a prisoner she was
supervising in violation of 18 U.S.C. § 2243(b).2

    At Mixon’s trial, 26 witnesses testified for the
government. Goins testified that Mixon had induced him to
engage in sexual acts with her in the staff restroom on several
occasions. One inmate testified that he served as a lookout
while Goins and Mixon were engaging in sexual acts. That
inmate also testified that Mixon called Goins to her office on
several other occasions, and that Goins returned from these
encounters with contraband.            Pennington, Mixon’s
supervisor, testified regarding his observations of Mixon’s
unruffled demeanor on the day she claimed she had been
raped. Neither Lieutenant Mendez nor Agent DeSouza
testified at Mixon’s trial.


    2
       A second superseding indictment charged Mixon with four
violations of 18 U.S.C. § 2243(b) for four alleged sexual encounters with
Goins, three counts of making false statements to investigators in violation
of 18 U.S.C. § 1001, and one count of submitting false answers to
interrogatories in violation of 18 U.S.C. § 1519.
6                UNITED STATES V. MIXON

    At the close of the government’s case, the court denied
Mixon’s motion for judgment of acquittal, concluding,
“[w]ith the exception of one subsection of one count, . . . a
rational juror, viewing the evidence in the light most
favorable to the government, could find all of the essential
elements of the charges beyond a reasonable doubt.” The
jury began deliberations on February 4, 2016, and returned
not guilty verdicts on all counts on February 9, 2016.

    Mixon then filed a motion for an award of attorneys’ fees
under the Hyde Amendment, which allows a court to make
such an award to a prevailing defendant when “the position
of the United States was vexatious, frivolous, or in bad faith.”
18 U.S.C. § 3006A note. The district court denied Mixon’s
motion, and Mixon filed a timely notice of appeal.

    We have jurisdiction to review a final order of the district
court under 28 U.S.C. § 1291. We review a district court’s
ruling on a motion for attorneys’ fees under the Hyde
Amendment for an abuse of discretion, and “cannot reverse
unless [we have] a definite and firm conviction that the
district court committed a clear error of judgment.” United
States v. Braunstein, 281 F.3d 982, 992 (9th Cir. 2002).
Moreover, we may affirm the district court on any basis
supported by the record, even if “the district court reached its
conclusion through a different analysis.” United States v.
Campbell, 291 F.3d 1169, 1172 (9th Cir. 2002).

                               II

    The Hyde Amendment provides that the court “in any
criminal case (other than a case in which the defendant is
represented by assigned counsel paid for by the public) . . .
may award to a prevailing party, other than the United States,
                     UNITED STATES V. MIXON                               7

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 note.3

    This fee-shifting provision “was enacted as a method
through which to sanction the Government for ‘prosecutorial
misconduct.’” United States v. Manchester Farming P’ship,
315 F.3d 1176, 1182 (9th Cir.), as amended on denial of
reh’g, 326 F.3d 1028 (9th Cir. 2003); see also United States
v. Pocklington, 831 F.3d 1186, 1188 (9th Cir. 2016) (holding
“it is clear that, even in its earliest form, the Hyde
Amendment was targeted at prosecutorial misconduct, not
prosecutorial mistake” (cleaned up)). Thus, in order for a
defendant to be eligible for attorneys’ fees under this
amendment, a court must determine that the defendant has
carried the burden of proving that the “position of the United
States,” meaning “the government’s litigating position” as a
whole, was vexatious, frivolous, or in bad faith. United
States v. Sherburne, 249 F.3d 1121, 1128 (9th Cir. 2001); see
also Position of the United States, Black’s Law Dictionary
(11th ed. 2019) (defining “position of the United States” as
“[t]he legal position of the federal government in a lawsuit”).
Our sister circuits have likewise characterized the Hyde
Amendment as permitting fee shifting only when the




    3
       The Hyde Amendment was enacted by Congress as part of a 1998
appropriations bill and is located in a statutory note to 18 U.S.C. § 3006A.
Braunstein, 281 F.3d at 994; Pub. L. No. 105-119, Title VI, § 617, 111
Stat. 2440, 2159, codified at 18 U.S.C. § 3006A note.
8                    UNITED STATES V. MIXON

government’s litigating position as a whole meets the
statutory criteria.4

    In this case, Mixon concedes that the prosecutors “were
extremely professional and did nothing that resembled
prosecutorial misconduct.” She does not make any allegation
that the government’s litigating position was vexatious,
frivolous, or in bad faith. Instead, she argues that the conduct
of the government agents who investigated her case,
Lieutenant Mendez and Agent DeSouza, was vexatious, and
that she is entitled to attorneys’ fees due to their role in
preparing the case.

    We disagree. The Hyde Amendment’s reference to the
government’s position makes clear that it is intended to shift
attorneys’ fees for egregious prosecutorial misconduct that
causes the government’s litigating position as a whole to be
vexatious, frivolous, or in bad faith, not for other types of bad
conduct by government employees during the course of an




    4
       See United States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018) (“We
understand ‘position’ to mean here the government’s general litigation
stance: its reasons for bringing a prosecution, its characterization of the
facts, and its legal arguments.”); United States v. Manzo, 712 F.3d 805,
810 (3d Cir. 2013) (courts analyzing Hyde Amendment claims assess “the
government’s litigation position”); United States v. Shaygan, 652 F.3d
1297, 1315 (11th Cir. 2011) (“The Hyde Amendment allows an award of
attorney’s fees and costs against the United States only when its overall
litigating position was vexatious, frivolous, or in bad faith.”); United
States v. Heavrin, 330 F.3d 723, 731 (6th Cir. 2003) (holding Hyde
Amendment requires a single holistic analysis of “the prosecution’s
position as a whole”).
                     UNITED STATES V. MIXON                              9

investigation.5 For instance, a defendant would not be
eligible for attorneys’ fees under the Hyde Amendment even
if a prosecutor relied on fabricated evidence cooked up by a
rogue agent, assuming no independent prosecutorial
misconduct. While using such evidence in the government’s
case would undoubtedly be a grievous mistake, we have made
clear that a prosecutor’s mistake cannot render the
government’s litigating position as a whole vexatious,
frivolous, or in bad faith. See United States v. Capener,
608 F.3d 392, 401 (9th Cir. 2010); see also Braunstein,
281 F.3d at 995. Only pervasive prosecutorial misconduct
could do so; “successful claimants . . . must show that the
prosecutors ‘are not just wrong, they are willfully wrong, they
are frivolously wrong.’” Braunstein, 281 F.3d at 994–95
(quoting 143 Cong. Rec. H7786-04, HH 7791 (Sept. 24,
1997) (statement of Rep. Hyde)). In sum, permitting an
award of attorneys’ fees where there has been no
prosecutorial misconduct runs counter to the text of the
amendment and our precedents construing its language.6

    The Eighth Circuit has reached the same conclusion. See
United States v. Monson, 636 F.3d 435, 439–40 (8th Cir.
2011). In Monson, a magistrate judge determined that a
search violated a defendant’s constitutional rights because
“law enforcement deliberately lied or recklessly disregarded
the truth when they included information in an affidavit used

    5
      Of course, there may be other avenues by which a defendant can
obtain sanctions against the government or its employees or agents for
misconduct.
    6
      Mixon’s broad reading of the Hyde Amendment also runs afoul of
the longstanding principle that “a waiver of the Government’s sovereign
immunity will be strictly construed, in terms of its scope, in favor of the
sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996).
10               UNITED STATES V. MIXON

to obtain a warrant.” Id. at 439 (citing Franks v. Delaware,
438 U.S. 154, 171 (1978)). Nevertheless, the Eighth Circuit
concluded that the defendant was not entitled to attorneys’
fees under the Hyde Amendment. Id. at 439–40. Even if
“law enforcement deliberately lied or recklessly disregarded
the truth when they included information in an affidavit used
to obtain a warrant,” this did not “necessarily mean that
government prosecutors” themselves “deliberately lied or
acted with a reckless disregard for the truth,” so long as “they
did not participate in the preparation of the affidavit.” Id. at
439. A defendant is not entitled to attorneys’ fees under the
Hyde Amendment due to law enforcement misconduct;
rather, the focus is on the prosecutors and whether the
prosecutors themselves engaged in vexatious conduct. See id.
at 439–40. Because the Eighth Circuit had “no trouble
concluding that the government possessed sufficient evidence
to show probable cause to believe that [the defendant]
committed the crimes charged,” it concluded that “the
position of the United States” did not warrant an award of
attorneys’ fees under the Hyde Amendment. Id. at 439–40,
442.

    We agree with the Eighth Circuit that unless there is
serious misconduct on the part of prosecutors—those
empowered to make litigation decisions on behalf of the
United States—a court could not hold that “the position of the
United States” as a whole was vexatious, frivolous, or in bad
faith. 18 U.S.C. § 3006A note. In other words, in the
absence of prosecutorial misconduct, a defendant cannot
make out a claim for attorneys’ fees under the Hyde
Amendment. Because Mixon has conceded that there was no
misconduct on the part of the prosecutors, the district court
                     UNITED STATES V. MIXON                             11

did not abuse its discretion in denying her motion for
attorneys’ fees.7

    AFFIRMED.




    7
       Mixon also appealed the district court’s order denying her motion
for reconsideration of the denial of attorneys’ fees. We affirm the district
court for the same reasons.
