United States District Court, D. Nevada
January 6, 2017
United States of America, Plaintiff
Marc Brattin, Defendant
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
MOTION FOR ATTORNEY'S FEES [ECF NO. 62, 68]
JENNIFER A. DORSEY UNITED STATES DISTRICT JUDGE.
Brattin moves for attorney's fees and litigation expenses
under the Hyde Amendment after the government voluntarily
dismissed the two-count indictment against him in this case.
Magistrate Judge Foley recommends that I deny Brattin's
motion because it is both untimely and fails on the merits.
Brattin objects. I review the magistrate judge's findings
and conclusions de novo, affirm and adopt them, overrule
Brattin's objections, and deny Brattin's motion for
attorney's fees and litigation expenses.
magistrate judge's order provides a thorough overview of
the background of this case, and I do not repeat it here.
Essentially, Brattin was indicted in two criminal cases in
this district, each arising out of the same fraudulent
scheme. The first case was filed in 2013; this case followed
in 2015. After plea negotiations failed in the 2013 case,
Brattin pleaded guilty to the charges without the benefit of
a plea agreement. The parties then engaged in post-plea
negotiations to resolve the potential charges in this case,
which had not yet been brought before the grand jury. The
record reveals that Brattin failed to agree to the post-plea
agreement by the government's deadline because that
deadline was inadequately communicated to defense counsel by
the United States Attorney. As a result, the government went
to the grand jury, which then returned the indictment in this
moved to dismiss the second indictment for vindictive
prosecution, prosecutorial misconduct, and double-jeopardy
violations. Magistrate Judge Foley issued a report
recommending that the motion be denied but expressing
displeasure with the government's conduct. The magistrate
judge noted that he was “very tempted to recommend
dismissal of the indictment” but concluded that the
extremely high standards for involuntary dismissal were not
met on these facts. In its response to the magistrate
judge's recommendation to deny the suppression motion,
the government indicated that it would dismiss the indictment
if Brattin withdrew his then-pending appeal in the 2013 case.
Brattin withdrew his appeal, and the government moved to
dismiss the indictment in this case under Federal Rule of
Criminal Procedure 48(2).
February 19, 2016, I granted the government's motion to
dismiss, denied as moot all other pending motions in this
case, and instructed the Clerk to close this
case. Brattin filed this motion for
attorney's fees and litigation expenses under the Hyde
Amendment seven months later. Magistrate Judge Foley
recommends that I deny Brattin's motion because it is
untimely and because it fails on the merits: Brattin is not a
prevailing party under the Hyde Amendment and has not shown
that the government's position was vexatious, frivolous,
or in bad faith.
Standards of Review
district court reviews objections to a magistrate judge's
proposed findings and recommendations de
novo. “The district judge may accept,
reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” The standard of review applied to the
unobjected-to portions of the report and recommendation is
left to the district judge's discretion. Local Rule IB
3-2(b) requires de novo consideration of specific
Attorney's fees under the Hydge Amendment
“prevailing party” in a privately defended
criminal cases may recover attorney's fees under the Hyde
Amendment if he can show “that the position of the
United States was vexatious, frivolous, or in bad
faith.” The movant must submit an application for
fees within 30 days of final judgment in the
action. A judgment becomes final when the time to
magistrate judge correctly determined that Brattin's
request for fees is time-
argues that the magistrate judge erred in concluding that his
motion is time-barred. Brattin argues that, because the
charges against him were dismissed and there was no judgment
of conviction, there was no “final judgment” in
this case and the 30-day clock never started to run. He cites
to no controlling authority that supports this proposition in
the context of the Hyde Amendment.
February 19, 2016, I granted the government's motion for
voluntary dismissal, denied all other pending motions as
moot, and instructed the Clerk to close this
case. I agree with the magistrate judge that
that order was the final judgment in this case. The 30-day
clock to request attorney's fees thus began to run when
the time for appealing that order expired on March 19,
2016.Brattin did not file his motion for fees
until nearly six months later. Accordingly, the magistrate
judge properly recommended denying Brattin's motion as
magistrate judge correctly determined that Brattin has failed
to show that the government's
position was vexatious or in bad faith.
argues that the magistrate judge erred in finding that the
government's conduct was not vexatious or in bad faith.
He argues that even if the government's position was not
vexatious or in bad faith when it filed the second
indictment, it became so once the government became aware of
the relief requested by Brattin in his appeal in the first
case-dismissal of the indictment in the second case-in
November 2015 and nonetheless continued to prosecute this
case until February 2016.
magistrate judge observed, the Hyde Amendment does not define
“vexatious, frivolous, or in bad faith, ” but the
Ninth Circuit has developed definitions for these
terms. The government acts vexatiously if it
acts “maliciously or with an intent to harass”
the defendant and the suit is objectively “deficient or
without merit.” Bad faith “is not simply bad
judgment or negligence;” it requires “the
conscious doing of a wrong because of a dishonest purpose or
moral obliquity” and “contemplates a state of
mind affirmatively operating with furtive design or ill
with the magistrate judge that Brattin has not shown that the
government acted vexatiously or in bad faith. Brattin has
not shown that the government's position in this case was
at any time objectively “deficient or without merit,
” as is required for a finding of
vexatiousness.Though the government certainly became
aware of Brattin's position that this case was deficient,
the government prevailed on Brattin's motion to dismiss
the indictment based on vindictive prosecution, prosecutorial
misconduct, and double-jeopardy violations, in which he
raised similar arguments.Stripped of these legal
arguments, Brattin does not argue that the underlying charges
were factually unsupported or without merit. That Brattin
opposed the charges at his sentencing and on appeal in his
first case does not make them objectively “deficient or
without merit.” Accordingly, Brattin has not shown that
the government's position was or became vexatious.
has also not established that the government acted in bad
faith, which requires “the conscious doing of a
wrong” for a “dishonest purpose or moral
obliquity.” As the magistrate judge noted in his
recommendation to deny Brattin's motion to suppress, the
charges in this case “were filed as the result of
ongoing, but unsuccessful, plea
negotiations” and were not the result of vindictive
prosecution or prosecutorial misconduct. Though the
government may have acted negligently by inadequately
communicating the deadline to accept the plea negotiations to
prevent the filing of the charges in this case and may have
also exercised bad judgment by filing the charges anyway,
negligence and bad judgment are simply not enough to support
a finding of bad faith.
I find that Brattin's motion is time-barred and fails on
the merits because he has not shown that the government's
position was vexatious or in bad faith, I decline to address
his remaining argument that the magistrate judge improperly
concluded that he was not a “prevailing party”
under the Hyde Amendment.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
Brattin's objections [ECF No. 69] are OVERRULED, the
magistrate judge's report and recommendation [ECF No. 68]
is ADOPTED, and Brattin's motion for attorney's fees
and litigation expenses [ECF No. 62] is DENIED.
 ECF No. 27.
 ECF No. 50 at 24.
 ECF No. 59.
 United States v. Reyna-Tapia,
328 F.3d 1114, 1121-22 (9th Cir. 2003) (a “district
judge must review the magistrate judge's findings and
recommendations de novo if objection is made, but
not otherwise.”) (emphasis in original).
 See Nevada L.R. IB 3-2(b)
(requiring de novo consideration of specific
objections only); Carillo v. Cate, 2009 WL 2575888,
at *1 (S.D. Cal. Aug. 17, 2009) (noting that
“generalized objections” do not require de
 Pub. L. No. 105-119, § 617, 111
Stat. 2440, 2519 (1997).
 28 U.S.C. §
 Melkonyan v. Sullivan, 501
U.S. 89, (1991).
 ECF No. 69 at 8.
 ECF No. 59.
 Defendants must file a notice of
appeal within 14 days of the judgment or order being appealed
and the government has 30 days. Fed R. App. P.
 ECF No. 69 at 14. He also argues
that the prosecution became vexatious or in bad faith when
Brattin's counsel complained about the government's
conduct in this case at sentencing in the first case in May
 ECF No. 68 at 8.
 United States v. Manchester
Farming Partnership, 315 F.3d 1176, 1182 (9th Cir. 2003)
(internal citations omitted).
 Id. at 1185 (internal
citations and quotation marks omitted) (adopting the Eleventh
Circuit's definition of “bad faith” under the
 Brattin does not argue in his motion
for fees or his objections that the government's position
 Manchester Farming
Partnership, 315 F.3d at 1182 (internal citations
 ECF No. 50.
 Id. at 1185.
 ECF No. 50 at 17.
 Id. at 22.
 Manchester Farming
Partnership, 315 F.3d at 1185.