United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
HONORABLE DAVID BRIONES, SENIOR UNITED STATES DISTRICT JUDGE.
day, the Court considered Defendant Nancy Love's
("Ms. Love") "Motion for Attorney's Fees
and Expenses Under the Hyde Amendment"
("Motion") filed in the above-captioned case on
August 12, 2019. Therein, Ms. Love requests that the Court
order the United States of America ("the
Government") to reimburse her for attorney's fees
and other expenses incurred as a result of this prosecution.
Mot. 1, ECF No. 701. On August 23, 2019, the Government filed
its "Response to Defendant Love's Motion for
Attorney's Fees" ("Response"). After due
consideration, the Court is of the opinion that Ms.
Love's Motion shall be denied.
Love's criminal case resulted from a long-running FBI
investigation into allegations that El Paso Independent
School District (EPISD) administrators conspired to falsify
and manipulate data that state and federal authorities used
to measure whether the district was providing all students
with a high-quality education. Response 1, ECF No. 703. Ms.
Love was an assistant principal at Austin High School (AHS)
in EPISD during the relevant period. Id. at 2.
investigation resulted in a six-count indictment against
eight defendants, including Ms. Love (collectively,
''the Defendants"). Indictment, ECF No. 1. The
investigation revealed that Ms. Love and
co-Defendants/co-Administrators John Tanner ("Mr.
Tanner"), Mark Tegmeyer ("Mr. Tegmeyer"), and
Diane Thomas ("Ms. Thomas") had purportedly
conspired to retaliate against two AHS teachers, including
Ruben Cordero ("Mr. Cordero"), who cooperated with
the FBI. Resp. 2, ECF No. 703. Ms. Love, Mr. Tanner, Mr.
Tegmeyer, and Ms. Thomas were all charged with conspiracy to
retaliate against a witness (18 U.S.C. §§ 371 &
1513(e)) ("retaliation count"). Indictment, ECF No.
the investigation, Ms. Love was called to appear before the.
grand jury and allegedly lied during her testimony. Resp. Ex.
6, ECF No. 703. When she testified before the grand jury, Ms.
Love falsely claimed that a student, Mr. Rodriguez, had
initiated contact with her and sought her help in pressing
charges against Mr. Cordero when, in actuality, she had
initially contacted Mr. Rodriguez. Id. at Ex. 3-6.
Ms. Love later admitted to EPISD Police Officer McBain
("Officer McBain") that she had been untruthful
before the grand jury and asked whether her attempt to
convince Mr. Rodriguez to pursue charges against Mr. Cordero
could be viewed as retaliation because her true motivation
for her actions was to protect her
co-defendant/co-administrator, Mr. Tanner. Id. at
Ex. 2, 6.
Love told her son, Mr. Allan, to reach out to his classmate
Mr. Rodriguez to convince Mr. Rodriguez to pursue charges
against Mr. Cordero. Id. at Ex. 6. Mr. Rodriguez
also told Federal Bureau of Investigations officers
("the FBI") that Mr. Allan had reached out to him
to discuss pressing charges against Mr. Cordero. Id.
at Ex. 3-4. Mr. Rodriguez revealed that after Mr. Allan
contacted him, Mr. Tegmeyer and Ms. Love encouraged him to
press charges, coaching him on what to say to Officer McBain.
Id. Mr. Rodriguez's phone records corroborated
his version of these events. Id. Pursuant to a
proffer agreement, Ms. Love also eventually admitted to the
FBI that she had lied to the grand jury. Id. at Ex.
6. Consequently, she was eventually charged with making a
false declaration before a grand jury (18 U.S.C. § 1623)
("false declaration count"). Indictment, ECF No. 1.
in this matter began on June 12, 2017. Minute Entry for Jury
Trial Proceedings, ECF No. 439-48. During the trial, the
Court heard testimony from several witnesses, including
independent auditors, an associate superintendent, a campus
director, a principal, vice principals, attendance clerks,
and students who all testified about Ms. Love's conduct.
Govt's Witness List, ECF No. 472. A mistrial was declared
on June 28, 2017, due to the Government's withholding of
material, potentially exculpatory evidence. Order Granting
Mistrial, ECF No. 471. After the mistrial, the Defendants
moved to dismiss the indictment, arguing that a retrial
should be barred by double jeopardy due to the
government's misconduct. Mem. Op. 2-3, ECF No. 578. After
a hearing on June 14, 2018, this Court dismissed the
retaliation count against Ms. Love with prejudice.
Id. at 1, 4. In dismissing this count, the Court
found that while "there was no prosecutorial misconduct
because there was no intentional withholding of discovery
materials," the Government was "at the very least
negligent." Id. at 3-4.
Court dismissed Ms. Love's remaining false declaration
count on July 11, 2019, after the completion of a pretrial
diversion agreement. Order of Dismissal, ECF No. 697. The
pretrial diversion agreement did not require an admission of
guilt, nor did it incorporate any finding of guilt. Pretrial
Diversion Agreement, ECF No. 631. Dismissal was not entered
with prejudice, Order of Dismissal, ECF No. 697, though it
would be a violation of the Pretrial Diversion Contract for
the government to bring charges again. Pretrial Diversion
Agreement 2, ECF No. 631.
1997, Congress enacted the "Hyde Amendment." Pub.
L. No. 105-119, § 617, 111 Stat. 2440 (1997). It states:
During fiscal year 1998 and in any fiscal year thereafter,
the court, in any criminal case (other than a case in which
the defendant is represented by assigned counsel paid for by
the public) pending on or after the date of the enactment of
this Act, may award to 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. Such awards shall be granted pursuant
to the procedures and limitations (but not the burden of
proof) provided for an award under section 2412 of title 28,
United States Code.
purpose of the Hyde Amendment is "to penalize [the]
government for prosecutorial abuses and to deter such
inappropriate conduct." United States v.
Schneider, 395 F.3d 78, 86 (2d Cir. 2005). Accordingly,
Congress limited the award of fees to "affirmative
prosecutorial misconduct rather than simply any prosecution
which failed." United States v. Knott, 256 F.3d
20, 29 (1st Cir. 2001); see also United States v.
Truesdale, 211 F.3d 898, 908 (5th Cir. 2000) (citations
omitted) ("A movant under the Hyde Amendment must prove
more than just that the government's position was not
Hyde Amendment "was enacted by Congress ... to allow
wrongfully prosecuted criminal defendants a means to sanction
the Government for prosecutorial misconduct" and allows
a district court to award a prevailing party attorney's
fees only where it "finds that the position of the
United States was vexatious, frivolous, or in bad
faith." Pub. L. No. 105-119, § 617, 111 Stat. 2440
(1997). "The criminal defendant bears the burden of
proving this by a preponderance of the evidence, as well as
establishing that he is otherwise qualified for the award
under the law." United States v. Adkinson, 247
F.3d 1289, 1291 (11th Cir. 2001); see also
Truesdale, 211 F.3d at 908. A defendant seeking fees
under the Hyde Amendment must also comply with the procedural
requirements of the Equal Access to Justice Act (EAJA) found
in 28 U.S.C § 2142(d). United States v. Claw,
579 F.3d 452, 463 (5th Cir. 2009).
have determined that seven elements must be met for a
defendant to receive relief under the Hyde Amendment. They
are: (1) the case was pending on or after the enactment of
the Hyde Amendment; (2) the case was a criminal case; (3) the
defendant was not represented by assigned counsel paid for by
the public; (4) the defendant was the prevailing party; (5)
the prosecution was vexatious, frivolous, or in bad faith;
(6) the attorney's fees were reasonable; and (7) no
special circumstances exist that would make an award unjust.
United States v. Gomez, No. 10-CR-1326, 2012 WL
2899715, at *3 (W.D. Tex. July 9, 2012) (citing In re
1997 Grand Jury,215 F.3d 430, 436 n.8 (4th Cir. 2000)).
These elements are separate and independent of each other,
they do ...