                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                  FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________  ELEVENTH CIRCUIT
                                                         March 31, 2008
                          No. 06-14328                 THOMAS K. KAHN
                    ________________________                CLERK


              D. C. Docket No. 01-00251-CR-J-25-MCR


UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                versus

GEORGE CHANDLER,
JEROME PEARL,


                                                    Defendants-Appellants.


                    ________________________

             Appeals from the United States District Court
                  for the Middle District of Florida
                   _________________________

                          (March 31, 2008)
Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.

PER CURIAM:

       George Chandler and Jerome Pearl appeal from a judgment of the United States

District Court for the Middle District of Florida, denying their motions for an award

of attorney’s fees and costs, pursuant to the Hyde Amendment, Pub. L. No. 105-119,

§ 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006, historical and

statutory notes). This statute confers discretion on a district judge in a criminal case

to “award [ ] a prevailing party, 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.” Id.

       Chandler and Pearl were both found guilty of a single count of an indictment

charging them with conspiracy to commit mail fraud. The judgments of conviction

entered on the jury verdict were reversed on appeal because the evidence was

insufficient to establish that the defendants were guilty of mail fraud and because the

evidence established the existence of multiple conspiracies rather than the single

overarching conspiracy alleged in the indictment. United States v. Chandler, 388



       *
         Honorable Edward Korman, United States District Judge for the Eastern District of New
York, sitting by designation.

                                              2
F.3d 796 (11th Cir. 2004), substituted on reh’g for United States v. Chandler, 376

F.3d 1303 (11th Cir. 2004). A motion for an award of attorney’s fees and costs

followed.

      The application was denied by the district judge who presided over the trial.

Specifically, he found that the prosecution for conspiracy to commit mail fraud,

with which Chandler and Pearl had been charged, “was not done in bad faith, but

rather with an honest purpose, and was certainly not the conscious doing of a

wrong,” and that “this prosecution was not frivolous, and was in no way brought

to annoy or embarrass the Defendants.” Record Excerpts Ex. D at 2. The district

judge continued that,

      while the Eleventh Circuit has determined that the government failed
      to prove . . . the single mail fraud conspiracy, this Court finds that the
      prosecution itself was based on reasonable or probable cause. While
      ultimately rejected, the government’s theory of the case centered on
      each of the Defendants fraudulently representing themselves to
      McDonald’s as “legitimate winners” when they in fact knew they
      were not.

Id. This theory, the district judge concluded, gave the government “a reasonable

basis to pursue this prosecution.” Id.

      As we held in United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999),

we review denial of an award under the Hyde Amendment under an abuse of

discretion standard. Id. at 1298. “An abuse of discretion occurs if the judge fails

                                          3
to apply the proper legal standard or to follow proper procedures in making the

determination, or bases an award [or a denial] upon findings of fact that are clearly

erroneous.” Id. (internal citation and quotation marks omitted). Under the facts

and circumstances presented in this case we cannot conclude that the district court

abused its discretion in denying the motions of relief pursuant to the Hyde

Amendment. Accordingly, we AFFIRM.




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