EDNY Judge Denies Motion of Acquitted Defendants for Attorneys’ Fees Under the Hyde Amendment

The Mitselmakher brothers, acquitted of extortion after trial, may not have won their motion for attorneys fees under the Hyde Amendment, but a published decision criticizing the “poor judgment” and “myopia” of the government’s prosecution of them must have been sweet compensation.  The Hyde Amendment permits an award of attorney’s fees and other litigation expenses to a prevailing defendant in a federal criminal case who retained counsel, when the court finds that the position of the United States was “vexatious, frivolous, or in bad faith.”  In United States v. Mitselmakher, 07 cr 37 (BMC), 2008 WL 5068609 (EDNY November 20, 2008), Judge Cogan sums of the issue and his holding neatly in his first paragraphs:

The Government made two crucial mistakes in bringing this case. First, it credited a story by a complainant who stood to gain exoneration from a $50,000 gambling debt if the Government bought his story of extortion. The complainant had no skin in the game; he was going to get out of his debt whether the jury accepted his testimony or not, and the Government did not appreciate how transparent the complainant's motivation would appear to the jury. Second, having bought the story, the Government performed a cursory investigation of the complainant's background despite indicators that there was more to look at. When defense counsel obtained publicly available records, they destroyed the credibility of the complainant at trial. He incredibly insisted at trial that prior lies he told under oath were in fact the truth, and even worse, the Government took the view, and still takes the view on this motion, that it was the truth. The result of these errors was a rapid acquittal.

Notwithstanding the inadequacies of the investigation and prosecution, I cannot find entitlement to recovery under the Hyde Amendment. The Hyde Amendment does not sanction poor judgment or myopia. It requires the prosecution of a defendant that is “vexatious, frivolous, or in bad faith.”  I do not see that on these facts, and accordingly, deny the motion.

Congrats to defense counsel, Andrew Frisch and Susan Kellman!