     11-3744-cr
     United States v. Barone



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



             At a stated term of the United States Court of Appeals for the Second Circuit, held
     at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
     York, on the 4th day of February, two thousand thirteen.

     PRESENT:
                 CHESTER J. STRAUB,
                 PETER W. HALL,
                 CHRISTOPHER F. DRONEY,
                       Circuit Judges.
     _________________________________________

     UNITED STATES OF AMERICA,

                                    Appellee,

                        v.                                               11-3744-cr

     JOSEPH S. BARONE,

                             Defendant-Appellant.
     __________________________________________

     FOR APPELLANT:                 Joseph S. Barone, pro se, New Rochelle, New York.

     FOR APPELLEES:                 Chi T. Steve Kwok, John T. Zach, and Jennifer G. Rodgers,
                                    Assistant United States Attorneys, for Preet Bharara, United
                                    States Attorney, New York, New York.
       Appeal from an order of the United States District Court for the Southern District of

New York (Buchwald, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the district court is AFFIRMED.

       Appellant Joseph S. Barone, proceeding pro se, appeals from the denial of his

motion for attorney’s fees and expenses, brought pursuant to the Hyde Amendment, Pub.

L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,

historical and statutory notes). We assume the parties’ familiarity with the underlying

facts, procedural history of the case, and issues on appeal.

       This Court has not yet considered what standard of review applies to a district

court’s denial of a defendant’s request for attorney’s fees under the Hyde Amendment. All

of our sister circuits that have addressed the issue have reviewed the district court’s

determination whether to award fees 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)

(per curiam); United States v. Knott, 256 F.3d 20, 36 (1st 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, 1123-24 (9th Cir. 2000); In re

1997 Grand Jury, 215 F.3d 430, 436 (4th Cir. 2000); United States v. Truesdale, 211 F.3d

898, 905 (5th Cir. 2000); United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999).

Under the abuse of discretion standard, this Court’s review is “highly deferential,”

Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir. 2001) (internal

quotation marks omitted), because “the district court . . . is intimately familiar with the



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nuances of the case, [and thus] is in a far better position to make [such] decisions,”

Goldberger v. Integrated Res., Inc., 209 F.3d 43, 48 (2d Cir. 2000) (second alteration in

original); see also Lindberg, 220 F.3d at 1124 (“A district court hears the evidence from

the beginning and is in a better position than [an appellate court] to distinguish between a

good faith prosecution that is thin on evidence and a prosecution that is so lacking in

support it can only be vexatious, frivolous, or in bad faith.”). A district court’s factual

findings, “including those based on documentary evidence and inferences drawn from other

facts,” are reviewed for clear error, and may only be reversed when the reviewing court is

“left with the definite and firm conviction that a mistake has been committed.” Garcia v.

Teitler, 443 F.3d 202, 211 (2d Cir. 2006) (internal quotation marks omitted). In the case

before us, we need not determine the applicable standard of review because the judgment

below may be affirmed under either an abuse of discretion standard or the more exacting de

novo standard.

       The Hyde Amendment was enacted as part of the Commerce, Justice and State, the

Judiciary, and Related Agencies Appropriations act of 1998. See United States v.

Schneider, 395 F.3d 78, 85 (2d Cir. 2005). It provides that a court may award a

“reasonable attorney’s fee and other litigation expenses” to a defendant who prevails in a

criminal case “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.” Id. at 85-86 (quoting Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519).

“An acquittal, without more, will not lead to a successful Hyde Amendment claim, as it

was Congress’s intent to limit Hyde Amendment awards to cases of affirmative

prosecutorial misconduct rather than simply any prosecution which failed.” Id. at 88

(internal quotation marks omitted).
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       Here, the district court did not err as a matter of law by denying Barone’s motion

for attorney’s fees and expenses. Although this Court has never “parse[d] the precise

meaning” of the terms “vexatious,” “frivolous,” or “bad faith,” see id. at 86, we need not

do so here because this case “clearly falls short of the type of abusive prosecutorial conduct

that would trigger Hyde Amendment liability.” Id. Barone argues that his long-standing

status as an FBI confidential informant, coupled with the fact that all three charges filed

against him resulted in either dismissal or acquittal, entitles him to attorney’s fees under the

Hyde Amendment. Without embarking on an analysis of the statutory language, it is clear

that the plain language of the Hyde Amendment requires more. “[W]here the government

has solid evidence of guilt and there is no evidence of significant dishonest or abusive

conduct on the government's part, [the government’s position] is not vexatious, frivolous,

or in bad faith within the meaning of the Hyde Amendment.” Id. at 90 (internal quotation

marks omitted).

       We have considered all of Barone’s remaining arguments and find them to be

without merit. For the foregoing reasons, the order of the district court is hereby

AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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