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United States v. Love

United States District Court, W.D. Texas, El Paso Division

October 23, 2019




         On this 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.


         Ms. 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.

         The 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. 1.

         During 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.

         Ms. 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.

         Trial 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.

         This 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.


         In 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.


         The 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 substantially justified.").

         The 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).

         Courts 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 ...

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