                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                       July 21, 2004

                                                             Charles R. Fulbruge III
                                                                     Clerk
                              No. 03-50999
                            Summary Calendar



                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

                                DAVID DIAZ,

                                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                    USDC No. EP-02-CR-1618-1-MC
                        --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      David Diaz appeals from the district court’s denial of his

application for attorney’s fees and litigation expenses under the

so-called Hyde Amendment, 18 U.S.C. § 3006A.         Having reviewed the

record and the brief on appeal, we conclude that the magistrate

judge did not abuse his discretion in denying Diaz’s application

for   attorney’s   fees   and   litigation    expenses.   United    States

v. Truesdale, 211 F.3d 898, 905 (5th Cir. 2000); United States v.

Gilbert, 198 F.3d 1293, 1298-1303 (11th Cir. 1999).           The record

      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
supports the magistrate judge’s determination that the prosecution

was not frivolous, vexatious, or in bad faith. Truesdale, 211 F.3d

at 909.   The Government’s theory of the case was novel and one of

first impression, and there was some evidence suggesting that the

offense charges in the indictment occurred.

     Nor did the magistrate judge abuse his discretion in failing

to hold an evidentiary hearing.      A prevailing defendant is not

entitled to a hearing as a matter of right on an application for

reimbursement of attorney fees under the Hyde Amendment, and the

district court does not abuse its discretion in ruling on a

defendant’s motion without first holding a hearing where, as here,

no hearing was requested.   See id. at 906-07.

     AFFIRMED.




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