As reported in the Wall Street Journal Law Blog, the government has opposed former MLB pitcher Roger Clemens' request for reimbursement of the legal fees and costs incurred by him in the government's prosecution of Clemens for perjury, false statements and obstruction of justice. Clemens' trial in the U.S. District Court for the District of Columbia ended in a mistrial in July after the prosecution played a video to the jury which referenced statements by fellow Yankees pitcher Andy Pettitte that Clemens allegedly admitted to using human growth hormone, evidence which the Court had ruled was excluded from trial. Clemens is currently scheduled to be retried in April 2012.
Following the mistrial, Clemens filed a Motion for the Award of Fees and Costs Associated with Mistrial. The government has filed a response in opposition, arguing that Clemens' request is barred by the doctrine of sovereign immunity.
In criminal cases, the sole mechanism for recovering fees and costs is under the Hyde Amendment, 18 U.S.C. § 3006A Note. The Hyde Amendment imposes considerable hurdles to reimbursement, however. It provides, in relevant part, that "[t]he court, in any criminal case... may award to a prevailing party... 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." Therefore, a defendant must first prevail against all charges. Second, he or she must demonstrate that the government's position in the prosecution was "vexatious, frivolous, or in bad faith"--that is, lacking any reasonable grounds or from an improper motive. Lastly, the Amendment permits the government to argue that any award would be unjust. Clemens' lawyers did not invoke the Hyde Amendment, as the government's response points out, and could not do so in any event since he faces re-trial and has not yet prevailed.
Despite having been in effect for nearly 14 years, Courts have rarely awarded defendants fees pursuant to the Hyde Amendment. See United States v. Aisenberg, 358 F.3d 1327, 1335 (11th Cir. 2004) (reducing award of $2,680,602.22 in attorney’s fees to $1,298,980.00 in attorney’s fees and litigation expenses of $195,670.32, where the appellees were prosecuted for alleged false statements in relation to the disappearance of their daughter, and the government dismissed the indictment against the appellees after the district court found that investigating county detectives made false statements, statements in reckless disregard for the truth, and omitted material facts in wiretap applications; failed to inform the state circuit court that they had not yet interviewed several witnesses and that they were still waiting for the crime lab to process evidence and for a financial analysis of the appelleees; reported and quoted alleged telephone conversations in their wiretap applications which were either not present or not intelligible on the tapes and “deliberately or with reckless disregard summarized conversations out of context,” intercepted communications which were unrelated to the offenses and failed to minimize the recordings of conversations not otherwise subject to the interception authorization); United States v. Sherburne, 249 F.3d 1121, 1125 (9th Cir. 2001) (affirming the trial court’s award of attorney’s fees under the Hyde Amendment to the defendants who had charges against them relating to alleged abuses in the construction of a housing development on an Indian reservation dismissed, observing that the government had “distorted the truth,” “ignored evidence,” and failed to present facts establishing any false representations); United States v. Braunstein, 281 F.3d 982, 996 (9th Cir. 2002) (concluding that the government’s position that the defendant had engaged in wire fraud, interstate transportation of goods obtained by fraud, and money laundering in selling discounted computers to domestic distributors and resellers, despite evidence that computer company was aware of the defendant’s actions and had no agreement with the defendant, “was so obviously wrong as to be frivolous”); United States v. Claro, No. Crim. H-04-126-1 2007 WL 2220980, *6 (S.D.Tex. Jul 31, 2007) (Opinion on Defense Fees and Expenses) (unpublished), affirmed in part, vacated in part by, United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (awarding $391,292.29 in fees and expenses under the Hyde Amendment where court had dismissed indictment for conspiracy, mail fraud, and money laundering against the defendant, observing that the government had no evidence to support its allegations and that “[the defendant] defended himself for nearly sixteen months from fifty-four counts derived from shifting legal theories and inaccurate representations of the facts”).
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