United States v. Mario Reyes-Romero ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 19-1923
__________
UNITED STATES OF AMERICA,
Appellant
v.
MARIO NELSON REYES-ROMERO
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 2:17-cr-00292-001)
Hon. Mark R. Hornak, Chief United States District Judge
__________
Argued March 3, 2020
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE,
Circuit Judges
(Filed: May 19, 2020)
Donovan J. Cocas [Argued]
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellant United States of America
Adrian N. Roe [Argued]
428 Boulevard of the Allies
First Floor
Pittsburgh, PA 15219
Counsel for Appellee Mario Nelson Reyes-Romero
__________
OPINION OF THE COURT
__________
KRAUSE, Circuit Judge.
Under the Hyde Amendment, a prevailing defendant in a
federal criminal prosecution can apply to have his attorney’s
fees and costs covered by the government. Such an award is
appropriate only if the defendant shows that “the position of
the United States” in the prosecution “was vexatious, frivolous,
or in bad faith.” Pub. L. No. 105-119, § 617, 111 Stat. 2440,
2519 (1997) (codified at 18 U.S.C. § 3006A app.). That stand-
ard is demanding, and it requires far-reaching prosecutorial
misconduct affecting the criminal case “as an inclusive whole.”
United States v. Manzo, 712 F.3d 805, 810 (3d Cir. 2013).
Short of that standard, the Hyde Amendment is not an
2
appropriate vehicle to criticize the conduct of law enforcement
officers or second-guess the management of a criminal prose-
cution.
The District Court here awarded attorney’s fees and costs
under the Hyde Amendment to Mario Nelson Reyes-Romero,
who was prosecuted for unlawful reentry in violation of
8 U.S.C. § 1326, on the grounds that the prosecution was friv-
olous and in bad faith. Although assuredly born of good inten-
tions and understandable frustration with faulty processes in
the underlying removal proceeding here, that award was not
based on the type of pervasive prosecutorial misconduct with
which the Amendment is concerned. Accordingly, we will re-
verse.
I. BACKGROUND
The relevant background can be divided into three stages.
First, Reyes-Romero, a noncitizen, 1 was subject to an admin-
istrative removal proceeding and removed from the country.
Second, he returned to the United States and was prosecuted
for unlawful reentry, a charge that he collaterally attacked un-
der 8 U.S.C. § 1326(d) and that the District Court ultimately
dismissed. Third, he sought and was awarded attorney’s fees
and costs under the Hyde Amendment. Because a complete
understanding of this history is crucial for analyzing the ques-
tion presented, we discuss each stage in some detail.
1
We follow the Supreme Court’s lead in using the term
“noncitizen” to “refer to any person who is not a citizen or na-
tional of the United States.” Pereira v. Sessions, 138 S. Ct.
2105, 2110 n.1 (2018).
3
A. 2011 Administrative Removal Proceeding
Reyes-Romero, an El Salvadoran national, entered the
United States unlawfully in 2004. In 2008, the Department of
Homeland Security (DHS) initiated removal proceedings on
the ground that he was “present in the United States without
[having] be[en] admitted or paroled,” 8 U.S.C.
§ 1182(a)(6)(A)(i). A year later, after Reyes-Romero pleaded
guilty to aggravated assault in New Jersey state court, 2 DHS
aborted the § 1182 proceeding and placed him in expedited ad-
ministrative removal on the ground that his conviction consti-
tuted an “aggravated felony,” 8 U.S.C. § 1228(b)(1), namely a
“crime of violence,” id. § 1101(a)(43)(F) (incorporating
18 U.S.C. § 16’s definition).
In 2011, DHS officers Trushant Darji and Jose Alicea con-
ducted Reyes-Romero’s administrative removal proceeding.
The officers first served him with a Form I-826, which sets out
a “Notice of Rights and Request for Disposition.” App. 180.
It is unclear why they did so, as the I-826 does not apply to
noncitizens in expedited removal because of an aggravated fel-
ony conviction. For instance, the I-826 instructed Reyes-
Romero he “ha[d] the right to a hearing before the Immigration
Court,” id., even though administrative removal is conducted
2
The statute under which Reyes-Romero was convicted
makes it a second-degree felony to “[a]ttempt[] to cause seri-
ous bodily injury to another, or cause[] injury purposely or
knowingly or under circumstances manifesting extreme indif-
ference to the value of human life recklessly cause[] such in-
jury.” N.J. Stat. Ann. § 2C:12-1(b)(1). He was sentenced to
time served (397 days) and three years’ supervised release.
4
by immigration officers outside of the Immigration Court, see
8 U.S.C. § 1228(a)(3), (b)(1). Adding to the confusion, two
boxes on the I-826 corresponding with contradictory declara-
tions were checked, indicating Reyes-Romero had both “re-
quest[ed] a hearing before the Immigration Court” to deter-
mine his right to remain in the country and had “give[n] up
[his] right to a hearing” so he could be returned to El Salvador.
App. 180.
The officers then presented Reyes-Romero with the appli-
cable form—a Form I-851, the “Notice of Intent to Issue a Fi-
nal Administrative Removal Order” that governs noncitizens
who are charged with having committed an aggravated felony.
App. 96–97. The I-851 informed Reyes-Romero of the
grounds for expedited removal, his ability to contest those
grounds, and the option to raise any “fear [of] persecution” re-
lated to his return to El Salvador. Id. That form indicated
Reyes-Romero conceded removability, “acknowledge[d] that
[he was] not eligible for any form of relief from removal,” and
waived judicial review. App. 97. But close examination of the
I-851 reveals it to be irregular. Reyes-Romero apparently ex-
ecuted the waiver of his rights at 9:00 AM—twenty minutes
before the time stamp next to a certification that the form had
been translated into Spanish for his benefit and forty minutes
before the time stamp accompanying the relevant DHS super-
visor’s issuing signature.
Reyes-Romero received a final administrative removal or-
der that afternoon and was later removed to El Salvador.
5
B. Unlawful Reentry Prosecution
Reyes-Romero returned to the United States without in-
spection and, after he was found and detained, a federal grand
jury returned an indictment charging him with unlawful reentry
in violation of 8 U.S.C. § 1326. He did not contest any of the
elements of that offense—that he had been “removed” and was
later “found in” the country without express consent, 8 U.S.C.
§ 1326(a).
Instead, Reyes-Romero moved to dismiss the indictment
under a statutory provision allowing him to “challenge the va-
lidity of the [removal] order” on which the prosecution was
based, 8 U.S.C. § 1326(d). Under § 1326(d), a defendant bears
the burden of showing that (1) he “exhausted any administra-
tive remedies that may have been available to seek relief
against the [removal] order”; (2) the removal proceedings “im-
properly deprived [him] of the opportunity for judicial re-
view”; and (3) the “entry of the [removal] order was fundamen-
tally unfair.” Richardson v. United States, 558 F.3d 216, 223
(3d Cir. 2009) (quoting 8 U.S.C. § 1326(d)(1)–(3)). “Funda-
mentally unfair” means “both [(a)] that some fundamental er-
ror occurred and [(b)] that as a result of that fundamental error
[the defendant] suffered prejudice.” United States v.
Charleswell, 456 F.3d 347, 358 (3d Cir. 2006).
Reyes-Romero’s motion advanced two arguments. First,
the 2011 administrative removal proceeding, with its contra-
dictory forms and the “inconsisten[t]” selections on the I-826,
“had an impermissible tendency to mislead” him and invali-
dated any waiver of his rights. App. 71. Second, the proceed-
ing was “fundamentally unfair” because he had not committed
6
an aggravated felony and therefore was entitled to a full hear-
ing before an immigration judge (IJ). 3 Ohio App. 72.
The Government resisted on both fronts. In its view,
Reyes-Romero’s I-851 waiver was valid and overcame any in-
consistency on the I-826, and as a result he had failed to ex-
haust administrative remedies or seek judicial review as re-
quired by § 1326(d)(1) and (2). And in any event he failed to
show prejudice as required by § 1326(d)(3) because he had not
demonstrated “a reasonable likelihood that the result”—i.e.,
the removal order—“would have been different” but for the er-
rors he identified. App. 225 (quoting Charleswell, 456 F.3d at
362).
The District Court held a hearing on the § 1326(d) motion.
It first addressed the I-851 waiver and its effect on § 1326(d)’s
3
In Baptiste v. Attorney General, 841 F.3d 601 (3d Cir.
2016)—a case involving the same offense of which Reyes-
Romero was convicted—we held that 18 U.S.C. § 16(b), the
“residual” clause of the federal crime-of-violence definition, is
void for vagueness. 841 F.3d at 615–21. Baptiste’s reasoning
was ultimately embraced by the Supreme Court in Sessions v.
Dimaya, 138 S. Ct. 1204, 1210 (2018). But Baptiste avoided
the question whether New Jersey second-degree aggravated as-
sault qualifies as a crime of violence under § 16(a), the crime-
of-violence definition’s “elements” clause. 841 F.3d at 606
n.4. As discussed below, that question turns on whether a state
crime capable of commission by reckless conduct can categor-
ically satisfy the elements clause, an issue that remains unre-
solved. See Borden v. United States, 140 S. Ct. 1262 (2020)
(granting certiorari on this issue).
7
exhaustion and judicial-review requirements. The Court ex-
pressed concerns not only with the “inconsistent” nature of the
I-826 and I-851 forms but also with the I-851’s time stamps
suggesting Reyes-Romero had been informed of his rights af-
ter signing the waiver—an argument Reyes-Romero had not
developed in his brief. The Court told Adam Hallowell, the
Assistant United States Attorney (AUSA) prosecuting the case,
that the Government was “in a deep hole” because the immi-
gration forms were “facially at odds with themselves.”
App. 283.
The Government called Officers Darji and Alicea as wit-
nesses. Each had no memory of Reyes-Romero or his proceed-
ing and had handled a substantial number of immigration cases
in the years since 2011, so they testified only to general prac-
tices. Darji explained that he often worked with native Spanish
speakers like Alicea to serve immigration forms on noncitizens
in DHS custody. Noncitizens charged with having committed
aggravated felonies would first receive the “more general”
I-826 form before receiving the I-851 form “specific to admin-
istrative removal.” App. 294. The noncitizen would typically
“hold the pen” and make necessary selections. App. 291. If
the noncitizen made contradictory or nonsensical selections,
the officers would confirm his intent but otherwise leave those
selections untouched.
The District Court, interposing its own questions at the
hearing, pressed Officer Darji about Reyes-Romero’s forms:
THE COURT: . . . [A]m I reading the[se forms] accu-
rately that within moments of 9 o’clock in the morning
on June 23rd, 2011, several things had occurred pretty
much all at once. This defendant was told he had a right
8
to request a hearing. He requested a hearing. He said
he didn’t want a hearing. And he was told he couldn’t
have a hearing. Am I reading those forms correctly, sir?
THE WITNESS: Yes.
THE COURT: Does that make any sense at all to you,
sir?
THE WITNESS: No, Your Honor.
App. 331. The District Court took Officer Darji’s response to
mean that “the process that was used” in Reyes-Romero’s re-
moval proceeding did not “ma[k]e . . . sense.” App. 476.
Based on that concession and the defects in Reyes-
Romero’s forms, the District Court made clear it was “highly
likely . . . [to] conclude that there was no voluntary and intelli-
gent waiver” and therefore that “the first two prongs of
[§ 1326(d)] will have been fulfilled.” App. 474–75.
The parties’ attention therefore turned to the “only open is-
sue”: prejudice. App. 543. At first, Reyes-Romero repeated
the argument he had advanced in his brief: that the misidenti-
fication of his crime of conviction as an aggravated felony it-
self constituted prejudice. But after the District Court pressed
him about “the reasonable likelihood of some different result”
in the removal proceeding, App. 442, he switched gears, argu-
ing that he could have sought asylum or withholding of re-
moval. To bolster that novel argument, he offered testimony
from relatives who had suffered abuses in El Salvador or in
neighboring Honduras. Seeking more support, Reyes-Romero
requested his relatives’ A-files, and the parties set out on a mul-
tiweek process to get them from DHS. The Court held Reyes-
9
Romero’s motion while that process was underway and re-
quested supplemental briefing to be filed once it was complete.
While his § 1326(d) motion was pending, Reyes-Romero
moved for bond. The District Court expressed concern that,
were Reyes-Romero to be released, DHS officials would detain
him, reinstate the 2011 removal order, and remove him to El
Salvador. The Court also wondered aloud whether DHS would
take different action if Reyes-Romero were released after the
Government had “move[d] to dismiss the indictment,”
App. 566.
The Government soon came back with a surprise: a motion
to dismiss the indictment with prejudice under Federal Rule of
Criminal Procedure 48. 4 It explained that based on the evi-
dence at the first hearing “and on additional factual information
that ha[d] come to [its] attention” since then, dismissal was “in
the interests of justice.” App. 603. In another surprise, Reyes-
Romero opposed the Government’s motion, contending the
District Court should grant it only if it also intervened in future
immigration proceedings by expressly “barr[ing] [the Govern-
ment] from removing [him] on the basis of the [2011 removal]
[o]rder.” App. 608.
When the parties convened for a hearing to address the
Government’s motion to dismiss, the Government clarified
that the “additional . . . information” to which it had referred
came from Reyes-Romero’s relatives’ A-files, some of which
“support[ed] the testimony” he had offered in support of relief
4
“The government may, with leave of court, dismiss an in-
dictment . . . .” Fed. R. Crim. P. 48(a).
10
from removal. App. 645. The Government’s decision to seek
dismissal, it explained, was based on the “litigation risk to th[e]
[§ 1326(d)] affirmative defense” and the “time and expense”
necessary to continue the prosecution. App. 646. But the Dis-
trict Court was hesitant, asking the Government whether
Reyes-Romero risked detention or removal even after dismis-
sal with prejudice, to which the Government replied that it
“c[ould] [not] speak for DHS,” App. 617. The Court also noted
its views that the DHS officers’ testimony had been “bizarre”
and possibly untruthful, App. 634–35, and that Reyes-
Romero’s 2011 removal “was not . . . consistent with the high-
est traditions of the American legal system,” App. 657. Still,
the Court made clear it was not accusing the prosecution “of
any wrongdoing whatsoever,” App. 634, and suggested the
Government’s decision not to proceed with the prosecution
was “how we want the system to work,” App. 635.
Yet when the hearing resumed the next day, the District
Court’s assessment had evolved. It now expressed the view
that the DHS officers’ testimony was not just “bizarre,” but a
mix of “lies” and “law enforcement outrageousness.”
App. 677. And it recalled Officer Darji’s answer to its line of
questioning to have meant not just that “the process . . . used”
in the removal proceeding did not “ma[k]e any sense,”
App. 476, but that “his [own] testimony made no sense,”
App. 678 (emphasis added). Most significant, the Court no
longer deemed AUSA Hallowell blameless, but as needing to
make a “choice” about whether he would “continue to rely on
th[e] [officers’] testimony.” App. 678–79. Even if the prose-
cution was not responsible for errors in the removal proceed-
ing, it said, there “come[s] a point where” the Government
11
“adopt[s]” those errors as its own. App. 679. The Court again
held all motions open pending further briefing.
In an effort to respond to the concerns voiced by the District
Court, the Government filed a supplemental brief raising two
points: First, the District Court lacked jurisdiction to condition
a Rule 48 dismissal on the actions of an independent depart-
ment—here, on DHS’s forgoing future removal proceedings
based on the 2011 order. Second, the Government made un-
ambiguous that it was not “rely[ing] on or adopt[ing]” the DHS
officers’ testimony and was no longer contesting any element
of the § 1326(d) defense “other than the issue of prejudice.”
App. 755.
But the Government’s brief came with yet another surprise.
At the start of the prosecution, the U.S. Attorney’s Office had
received black-and-white copies of Reyes-Romero’s A-file
from DHS and had shared those files with Reyes-Romero’s
counsel. Neither counsel had previously asked to inspect the
originals. But before filing its supplemental brief, the prose-
cution obtained the original documents, which revealed that the
two inconsistent checks on the I-826—one requesting a hear-
ing, the other waiving it—were made in different colors. And
based on the ink color, it appeared the DHS officer who signed
the form had filled in the box corresponding to Reyes-
Romero’s waiver of rights. Even more odd, the waiver box
featured a blue mark drawn over a pre-printed black “x,” sug-
gesting the DHS officers had given Reyes-Romero a pre-filled
form. AUSA Hallowell immediately disclosed the color ver-
sions of the documents to Reyes-Romero’s counsel and to the
Court.
12
After reviewing the color copies, the District Court was
“more convinced than ever” that the DHS officers’ testimony
was a “combination of nonsense . . . [and] lies.” App. 792.
And it continued to criticize the prosecution. The Court took
issue, for instance, with AUSA Hallowell’s repeated state-
ments that, as an AUSA assigned to a criminal prosecution, he
could not unilaterally bind DHS to a specific course of conduct
in future immigration proceedings. It also criticized the Gov-
ernment for not adequately “disclaim[ing]” the DHS officers’
testimony:
MR. HALLOWELL: Your Honor, we are saying that
we will not rely on that testimony moving forward in
this case.
THE COURT: Why? Why won’t you rely on it?
MR. HALLOWELL: Your Honor, we don’t feel that
that testimony can support a verdict for the Government
on the first two prongs of [§ 1326(d)].
THE COURT: If believed, it’s legally insufficient? Or
I shouldn’t believe it?
MR. HALLOWELL: We understand that Your Honor
will make the final decision as to whether that testimony
could be believed or not. . . .
THE COURT: Well, I understand that. I’m asking the
lawyer for the United States of America, should I be-
lieve that testimony?
MR. HALLOWELL: Your Honor, you should give it
as much weight as you see fit.
13
Ohio App. 795, 797. In the Court’s view, AUSA Hallowell’s refusal
to “take a[] position” on the testimony conflicted with his ob-
ligations as a prosecutor. App. 798–99. And the District Court
suggested that the Government had moved to dismiss in “bad
faith” to ensure DHS officials could use the 2011 order in fu-
ture immigration proceedings against Reyes-Romero rather
than instituting a new removal proceeding through service of a
notice to appear (NTA). App. 822–24.
In response, the Government pointed out that months ear-
lier, DHS officials had attempted to do just that, offering
Reyes-Romero an NTA that would have led to new proceed-
ings before an IJ rather than reinstatement of the 2011 admin-
istrative removal order. But Reyes-Romero had rejected it. He
gave two reasons for having done so: a theory that the Govern-
ment’s choice to prosecute him for unlawful reentry precluded
it from starting new removal proceedings 5 and a desire to
5
In support, Reyes-Romero cited several district court
opinions holding that if a noncitizen is prosecuted for a crimi-
nal offense and is granted pretrial release, he cannot be seized
by DHS officials under an immigration detainer during the
criminal proceeding. E.g., United States v. Hernandez-Bour-
dier, No. 16-cr-222-2, 2017 WL 56033, at *11 (W.D. Pa.
Jan. 5, 2017). That line of cases is contrary to what we and our
sister circuits have had to say on the matter, see, e.g., United
States v. Soriano Nunez, 928 F.3d 240, 247–27 (3d Cir. 2019);
United States v. Lett, 944 F.3d 467, 470–71 (2d Cir. 2019) (col-
lecting decisions and joining the consensus), and in any event,
nothing in those cases suggests the decision to bring a § 1326
prosecution forfeits DHS’s right to pursue immigration
14
ensure that the District Court would reach the merits of his
§ 1326(d) motion.
With the District Court’s continued deferral of a ruling, the
parties filed supplemental briefing on prejudice. Reyes-
Romero’s supplemental brief expanded the argument that but
for the defects in his 2011 removal proceeding, there was “a
reasonable likelihood,” Charleswell, 456 F.3d at 362, that he
would have received asylum, withholding of removal, or pro-
tection under the Convention Against Torture (CAT). The
Government responded that Reyes-Romero was ineligible for
asylum because his assault conviction qualified as an aggra-
vated felony; that he was ineligible for withholding of removal
because the assault offense was a “particularly serious crime,”
8 U.S.C. § 1231(b)(3)(B)(ii); and that he was not reasonably
likely to prevail in seeking CAT protection or any other form
of relief from removal. In his reply brief, Reyes-Romero un-
earthed a new argument: dicta from Charleswell, an early de-
cision on § 1326(d), suggesting “[t]here may be some cases
where the agency’s violations of a [noncitizen’s] rights [ar]e so
flagrant, and the difficulty of proving prejudice so great, that
prejudice may be presumed.” 456 F.3d at 362 n.17 (citation
omitted).
The District Court ultimately granted Reyes-Romero’s
§ 1326(d) motion. It ruled that the I-826 and I-851 forms were
“shams” and that any waiver on those forms was invalid; that,
“in light of the invalid waivers,” any failure to exhaust admin-
istrative remedies or seek judicial review as required by
proceedings against the noncitizen after the criminal prosecu-
tion ends.
15
§ 1326(d)(1) and (2) must be excused; that the irregularities in
Reyes-Romero’s removal proceeding constituted fundamental
errors; and that those errors caused him prejudice, both because
his claims for relief from removal were reasonably likely to
succeed and because “the procedural defects were so cen-
tral . . . that prejudice must be presumed” under footnote 17 of
Charleswell. The Court therefore granted Reyes-Romero’s
motion to dismiss “on the merits.” App. 1028. Doing so, the
Court explained, would “serve[] to limit [Reyes-Romero’s] ex-
posure to future” immigration proceedings “reliant on the . . .
2011” order. App. 1031.
Given that disposition, the District Court denied as moot
Reyes-Romero’s pending motion for bond. But it did not do
the same with the Government’s pending motion to dismiss.
Instead, it took the “unusual” step, App. 1030, of proceeding
to analyze the Government’s motion on the merits and denying
it as “clearly contrary to manifest public interest.” Id. (quoting
In re Richards, 213 F.3d 773, 787 (3d Cir. 2000)). The Court
found that the Government’s subjective motivation for its mo-
tion to dismiss was a desire to guarantee that DHS could rely
on the 2011 removal order in future immigration proceedings.
That motivation, it explained, “taint[ed]” the Government’s ef-
fort to have the case dismissed. App. 1032–33. Similarly
problematic, the Court continued, was the Government’s “tak-
ing . . . a noncommittal position as to the credibility of” Offic-
ers Darji and Alicea, which the Court deemed inconsistent with
the Government’s duty to correct a witness’s statement that is
“obvious[ly]” untrue. App. 1037–38 (quoting United States v.
Harris, 498 F.2d 1164, 1169 (3d Cir. 1974)).
16
The District Court thus dismissed the indictment with prej-
udice. The Government did not appeal the District Court’s rul-
ings on the motions to dismiss or the order of dismissal. 6
C. Hyde Amendment Application
Following that dismissal, Reyes-Romero timely applied to
the District Court for attorney’s fees and costs under the Hyde
Amendment. 7 Relying heavily on the findings in the Court’s
6
After the dismissal, DHS officers served Reyes-Romero
with an NTA, initiating new removal proceedings in Immigra-
tion Court. Before the IJ, Reyes-Romero conceded removabil-
ity but applied for asylum, withholding of removal, CAT relief,
and cancellation of removal. The IJ denied his applications and
ordered him removed, and the Board of Immigration Appeals
(BIA) dismissed his appeal. His petition for review before the
Sixth Circuit remains pending. Reyes-Romero v. Barr, No. 19-
03784 (6th Cir. Aug. 15, 2019).
7
Hyde Amendment awards are subject to “the procedures
and limitations . . . under section 2412 of title 28,” 18 U.S.C.
§ 3006A app., one of which is that the application must be filed
“within thirty days of final judgment,” 28 U.S.C.
§ 2412(d)(1)(B). That thirty-day deadline “begins when the
government’s right to appeal the order has lapsed.” Johnson v.
Gonzales, 416 F.3d 205, 208 (3d Cir. 2005) (citation omitted).
Here, the District Court granted Reyes-Romero’s motion to
dismiss the indictment on July 2, 2018; the Government’s win-
dow to appeal closed on August 1, 2018, see Fed. R. App.
P. 4(b)(1)(B); and Reyes-Romero moved for a Hyde Amend-
ment award on August 7, 2018.
17
opinion resolving the parties’ motions to dismiss, Reyes-
Romero argued the Government had pursued an “egregious”
prosecution that was “vexatious, frivolous, [and] in bad faith.”
App. 1052–53 (citation omitted).
The District Court awarded Reyes-Romero fees and costs,
a decision it reached in five steps: First, because the Govern-
ment did not appeal the order resolving the motions to dismiss,
the Court deemed any “findings and conclusions in
that . . . Opinion and Order final.” App. 4. Second, the Court
determined that in assessing “the position of the United
States,” 18 U.S.C. § 3006A app., it would consider not only
“the litigation position of the [Department of Justice (DOJ)]
through th[e] . . . U.S. Attorney’s Office” but also “the actions
taken (or not taken) by the federal agency upon which the crim-
inal case is based”—that is, DHS, including “the actions of
DHS Officers in 2011.” App. 26–27. Third, borrowing a
phrase used in the indictment, the Court deemed the deficien-
cies in Reyes-Romero’s immigration forms so apparent that it
was “frivolous” for the Government to prosecute him on the
ground that he “had been previously . . . removed from the
United States pursuant to law.” App. 31 (citation omitted).
Fourth, although the Court acknowledged that the Govern-
ment’s arguments on § 1326(d)(3)’s prejudice requirement
“did not brush up against any prosecutorial misconduct” and
“were largely reasonable and based in law,” it reasoned that
“this ‘good’ . . . [does not] sufficiently outweigh[] the ‘bad.’”
App. 42. Finally, the Court found that the Government’s be-
havior “before and during the criminal prosecution . . . demon-
strated conscious wrongdoing,” making the prosecution one
brought “in bad faith” under the Amendment. App. 28. So the
Court ordered the Government to pay Reyes-Romero’s costs
18
and attorney’s fees, which it later calculated as $73,757.00.
This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291. Despite a
circuit conflict over whether an appeal from a Hyde Amend-
ment application is civil or criminal for purposes of Federal
Rule of Appellate Procedure 4, compare, e.g., United States v.
Truesdale, 211 F.3d 898, 902–04 (5th Cir. 2000) (civil), with,
e.g., United States v. Robbins, 179 F.3d 1268, 1269–70 (10th
Cir. 1999) (criminal), we are assured of our jurisdiction and
need not decide the issue because Reyes-Romero’s notice of
appeal was timely filed even under Rule 4(b)’s shorter dead-
line. See United States v. True, 250 F.3d 410, 421 n.8 (6th Cir.
2001) (taking this approach).
We review a Hyde Amendment award for abuse of discre-
tion, United States v. Manzo, 712 F.3d 805, 809–10 (3d Cir.
2013), “which occurs if the district court’s decision rests upon
a clearly erroneous finding of fact, an errant conclusion of
law[,] or an improper application of law to fact,” Ferreras v.
Am. Airlines, Inc., 946 F.3d 178, 182 n.1 (3d Cir. 2019) (cita-
tion omitted).
III. DISCUSSION
A defendant seeking fees and costs under the Hyde Amend-
ment bears the burden, United States v. Manzo, 712 F.3d 805,
810 (3d Cir. 2013), of showing that the “position of the United
States was vexatious, frivolous, or in bad faith,” Pub. L.
No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (codified at
18 U.S.C. § 3006A app.). Those grounds for a cost- and fee-
19
shifting award were “curtailed significantly” from those in the
more permissive Equal Access to Justice Act (EAJA) provision
on which the Hyde Amendment was generally modeled.
United States v. Gilbert, 198 F.3d 1293, 1302–03 (11th Cir.
1999). As a result, a criminal defendant seeking costs and fees
under the Hyde Amendment faces a “daunting obstacle.”
Manzo, 712 F.3d at 810 (quoting United States v. Isaiah,
434 F.3d 513, 519 (6th Cir. 2006)).
That obstacle is insurmountable here. Although Reyes-
Romero attempts to limit our review, contending that the Dis-
trict Court’s previous fact-finding is preclusive and that the
Government has waived several of its arguments, we conclude
those attempts are futile. And once we assess the complete
record, we perceive no basis for a Hyde Amendment award.
From the inception of the prosecution and throughout the ex-
tensive briefing and hearings, the Government had objectively
reasonable arguments that Reyes-Romero was not prejudiced
by errors in his 2011 removal proceeding and thus could not
prevail on his § 1326(d) challenge. The Government’s posi-
tion, therefore, was not frivolous—a high bar requiring that the
prosecution be “utterly without foundation in law or fact.”
United States v. Monson, 636 F.3d 435, 440 (8th Cir. 2011)
(citation omitted). Nor was the prosecution brought or main-
tained in bad faith—an equally high bar requiring an objective
showing of “dishonest purpose or moral obliquity.” Manzo,
712 F.3d at 811 (quoting Gilbert, 198 F.3d at 1299). Below,
we address issue preclusion and waiver before turning to the
merits of the Hyde Amendment application.
20
A. Threshold Issues
Reyes-Romero does not defend the District Court’s deci-
sion directly. Instead, he advances two arguments that, if ac-
cepted, would restrict our review of the bases for that decision.
Neither is persuasive.
1. Issue preclusion
Reyes-Romero contends that findings and conclusions in
the District Court’s opinion resolving the parties’ motions to
dismiss were rendered “final and binding” by the Govern-
ment’s decision to appeal not those rulings but only the award
of fees and costs. Appellee’s Br. 1. In support, he cites cases
involving the doctrine of issue preclusion, which holds that “a
prior judgment . . . foreclose[es] successive litigation of an is-
sue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment.” Herrera v. Wy-
oming, 139 S. Ct. 1686, 1697 (2019) (alterations in original)
(citation omitted). But issue preclusion does not apply here for
three independent reasons.
First, as Reyes-Romero recognizes, issue preclusion ap-
plies only “in a subsequent action.” Appellee’s Br. 9 (quoting
1 Restatement (Second) of Judgments § 27 (Am. Law Inst.
1982)); see United States ex rel. Doe v. Heart Sol., PC,
923 F.3d 308, 316 (3d Cir. 2019) (requiring that the issues be
resolved in an “earlier case” (quoting Allen v. McCurry,
449 U.S. 90, 95 (1980))); Hawksbill Sea Turtle v. FEMA,
126 F.3d 461, 474 (3d Cir. 1997) (requiring that they be “de-
cided in a previous action”); see also United States v. Briseno,
843 F.3d 264, 270 (7th Cir. 2016) (noting that issue preclusion
“applies to rulings in different proceedings, and not simply dif-
ferent stages within the same proceeding”). “Relitigation of
21
issues previously determined in the same litigation,” on the
other hand, “is controlled by principles of the law of the case
doctrine rather than [issue preclusion].” Hull v. Freeman,
991 F.2d 86, 90 (3d Cir. 1993) (emphasis added).
Reyes-Romero’s criminal prosecution and Hyde Amend-
ment application are, at least for these purposes, part of the
“same litigation,” Hull, 991 F.2d at 90. The Amendment au-
thorizes fee-shifting “in . . . criminal case[s],” 18 U.S.C.
§ 3006A app. (emphasis added), and an application must be
submitted “within thirty days of final judgment,” 28 U.S.C.
§ 2412(d)(1)(B); see 18 U.S.C. § 3006A app. Although the is-
sues involved in deciding a defendant’s guilt or innocence and
those involved in a Hyde Amendment application are not iden-
tical, the latter flow directly from the former. An application
for attorney’s fees and costs under the Amendment, therefore,
is merely a “different stage[] within the same proceeding,”
Briseno, 843 F.3d at 270 (emphasis omitted). So under Hull,
if the District Court’s previous findings are to have binding ef-
fect, that effect must flow not from issue preclusion, but from
the law-of-the-case doctrine.
That doctrine, however, is of no help to Reyes-Romero be-
cause “[a]n appellate court’s function is to revisit matters de-
cided in the trial court.” Musacchio v. United States, 136 S.
Ct. 709, 716 (2016). As a result, we are “not bound by district
court rulings under the law-of-the-case doctrine,” id.; see Kop-
pers Co. v. Aetna Cas. & Sur. Co., 158 F.3d 170, 173 n.4 (3d
Cir. 1998) (“[T]he district court’s reference to ‘law of the case’
cannot bind this Court on appeal.”), and we owe no defer-
ence—beyond what the clear error standard of review de-
mands—to findings in the District Court’s previous opinion.
22
Second, issue preclusion “cannot apply when the party
against whom the earlier decision is asserted did not have a full
and fair opportunity to litigate that issue.” Heart Sol., 923 F.3d
at 316 (quoting Allen, 449 U.S. at 95). Without an “incentive
to obtain a full and fair adjudication” of an issue, a party will
not be bound by the court’s resolution of it. 1 Restatement
(Second) of Judgments § 28(5).
Here, however, the Government had no incentive to contest
the District Court’s findings or appeal its gratuitous denial of
the Government’s motion to dismiss. By the time the District
Court resolved the parties’ motions to dismiss, the Government
had long disclaimed reliance on the DHS officers’ testimony
and abandoned any argument on § 1326(d)’s exhaustion or ju-
dicial-review prongs. And given that the Government had
agreed the prosecution should be dismissed, it comes as no sur-
prise that it chose not to appeal the Court’s order of dismissal.
We cannot impute to the Government an “incentive to . . . ad-
judicat[e],” 1 Restatement (Second) of Judgments § 28(5), fac-
tual findings made en route to a disposition it sought. Nor
would it be prudent to do so, as a contrary rule “would force
the [Government] to abandon . . . prudential concerns and to
appeal every adverse decision in order to avoid foreclosing fur-
ther review,” United States v. Mendoza, 464 U.S. 154, 161
(1984), of any issues that might bear on a Hyde Amendment
application.
Third, issue preclusion applies only where the issue in
question was “essential to the prior judgment.” Nat’l R.R. Pas-
senger Corp. v. Pa. Pub. Util. Comm’n, 342 F.3d 242, 252 (3d
Cir. 2003) (citation omitted). That limitation “is rooted in prin-
ciples of fairness” and “ensures that preclusive effect is not
23
given to determinations that did not receive close judicial at-
tention . . . or that were unappealable by virtue of being inci-
dental to a decision.” Jean Alexander Cosmetics, Inc. v.
L’Oreal USA, Inc., 458 F.3d 244, 250 (3d Cir. 2006) (internal
quotation marks and citation omitted). In defining whether an
issue was “essential,” we ask whether it “was critical to the
judgment or merely dicta.” O’Leary v. Liberty Mut. Ins. Co.,
923 F.2d 1062, 1067 (3d Cir. 1991).
The findings on which Reyes-Romero relies were not “crit-
ical to the judgment,” O’Leary, 923 F.3d at 1067, and thus are
not entitled to preclusive effect. The dispositive parts of the
District Court’s opinion were its determinations that Reyes-
Romero had satisfied each of the prongs of § 1326(d), which
together entitled him to dismissal of the indictment. But none
of those prongs demanded an assessment of prosecutorial mo-
tives: Section 1326(d) focuses on exhaustion, judicial review,
and fundamental unfairness in relation to underlying removal
proceedings, and the Government’s motivation in bringing or
maintaining a prosecution years later has no bearing on those
issues. 8 Nor does the District Court’s decision to address and
8
Nor do the findings related to the immigration officers’
misconduct in 2011 have preclusive effect because they con-
tributed to the District Court’s determination that Reyes-
Romero had satisfied § 1326(d)’s exhaustion and judicial-re-
view requirements. That is because, even beyond what we
have already explained, issue preclusion applies only where the
issue is “the same as that involved in the prior action.”
Karns v. Shanahan, 879 F.3d 504, 514 n.3 (3d Cir. 2018) (ci-
tation omitted). Here, however, there is a “lack of total iden-
tity,” 1 Restatement (Second) of Judgments § 27 cmt. c,
24
deny the Government’s motion to dismiss give rise to preclu-
sion. Indeed, once the Court granted Reyes-Romero’s
§ 1326(d) motion on the merits, the Government’s own motion
to dismiss became moot—a dynamic the District Court recog-
nized with respect to the issue of release on bond—so the
Court’s ruling on that motion and attendant findings were, in
any event, beyond its jurisdiction. 9
between a finding of misconduct as related to the § 1326(d)
affirmative defense and a finding of misconduct as it bears on
whether the government’s litigation position was in bad faith
under the Hyde Amendment.
9
We briefly address and reject two additional arguments.
First, we have held “that independently sufficient alternative
findings should be given preclusive effect” even where those
findings “do not fulfill the necessity requirement . . . in a strict
sense.” Jean Alexander Cosmetics, 458 F.3d at 255. But com-
ments made in the course of denying the Government’s motion
to dismiss cannot be viewed as alternative bases for the result
here, which was a dismissal of the indictment. Second, alt-
hough we have recognized that district courts have an “inde-
pendent responsibilit[y]” to examine whether a Rule 48 motion
to dismiss is “clearly contrary to manifest public interest,”
App. 1030–31 (quoting In re Richards, 213 F.3d 773, 787–88
(3d Cir. 2000)), we have never suggested that responsibility
extends where the court has already granted a defendant’s sep-
arate motion to dismiss on the merits, leaving it with no live
controversy with respect to the government’s motion.
25
For these reasons, we reject Reyes-Romero’s argument that
we are bound by findings or conclusions in the District Court’s
previous order.
2. Waiver
Of course, even if our review is not limited by issue preclu-
sion or the law of the case, it “may well be constrained by other
doctrines such as waiver [or] forfeiture.” Musacchio, 136 S.
Ct. at 716. Reyes-Romero seizes on those doctrines, arguing
that the Government waived several arguments it advances on
appeal by not pressing them before the District Court at the
Hyde Amendment stage. We disagree.
Reyes-Romero identifies only two arguments he contends
are waived: (i) that the delayed production of color copies of
Reyes-Romero’s immigration forms was a “snafu” attributable
to Reyes-Romero’s counsel’s failure “to inspect the originals,”
Appellant’s Br. 48; and (ii) that the District Court’s finding that
Officer Darji had lied under oath hinged on a “misread[ing]”
of his testimony, 10 id. at 45. Reyes-Romero is correct in a lim-
ited sense: Those arguments do not appear in the Govern-
ment’s response to his Hyde Amendment application. And at
least as a general matter, “[a]rguments not raised in the district
courts are waived on appeal,” United States v. Tyler, 956 F.3d
116, 124 n.9 (3d Cir. 2020), such that we cannot consider them
10
Although Reyes-Romero’s brief identifies a third argu-
ment—that Reyes-Romero “wanted to drop his claim for asy-
lum,” Appellee’s Br. 13 (citing Appellant’s Br. 53)—a review
of the Government’s brief reveals no such argument.
26
“absent exceptional circumstances,” United States v. James,
955 F.3d 336, 345 (3d Cir. 2020) (citation omitted).
But our case law does not require parties to relitigate previ-
ously decided issues before the district court where doing so
“would be an exercise in wasteful formality.” United States v.
Hoffecker, 530 F.3d 137, 165 (3d Cir. 2008) (citation omitted);
see Chassen v. Fidelity Nat’l Fin., Inc., 836 F.3d 291, 293 (3d
Cir. 2016) (“[A] litigant [need not] engage in futile gestures
merely to avoid a claim of waiver.” (second alteration in orig-
inal) (citation omitted)). Here, by the time the District Court
had ruled on the parties’ motions to dismiss and Reyes-Romero
had applied for costs and fees, the Court’s views on the prose-
cutor’s conduct and the DHS officers’ candor were beyond
doubt, and relitigating them would have been nothing more
than a “futile gesture[],” Chassen, 836 F.3d at 293. Faced with
a court “more convinced than ever” on those points, App. 792,
the Government’s choice not to relitigate them was therefore
reasonable and did not constitute waiver or forfeiture.
B. Merits of the Hyde Amendment Application
Having dispensed with those threshold issues, we now turn
to the merits of the Hyde Amendment award. For the reasons
we explain below, we conclude that AUSA Hallowell, acting
on behalf of the Government, satisfied the high ethical and pro-
fessional standards to which we hold prosecutors, and the Dis-
trict Court mistakenly extrapolated from errors on the part of
DHS to make findings about the prosecution that the record
cannot support.
27
We start with two clarifications about the applicable legal
framework and then explain why the Government’s position
was neither frivolous nor in bad faith. 11
1. The applicable legal framework
The Hyde Amendment applies where, “in a[] criminal
case[,] . . . the position of the United States was vexatious, friv-
olous, or in bad faith.” 18 U.S.C. § 3006A app. The District
Court examined a wealth of case law on the Amendment and
accurately summarized much of the applicable legal frame-
work. But we must clarify two aspects of that framework at
the outset, one concerning “the position of the United States”
and the other the requirement that that position be “vexatious,
frivolous, or in bad faith.”
11
Although Reyes-Romero argued in the District Court that
the Government’s position was also vexatious, the Court found
only frivolousness and bad faith, and Reyes-Romero has not
specifically argued vexatiousness on appeal. To the extent that
argument is implicit in his others, however, we reject it on the
same grounds. Vexatiousness embodies two elements: (i) “that
the criminal case was objectively deficient, in that it lacked ei-
ther legal merit or factual foundation”; and (ii) “that the gov-
ernment’s conduct, when viewed objectively, manifests mali-
ciousness or an intent to harass or annoy.” Manzo, 712 F.3d at
810 (citation omitted). The former roughly corresponds to
frivolousness and the latter to bad faith, so our analysis here
essentially covers all three grounds for a Hyde Amendment
award.
28
i. The meaning of “position of the United
States”
Notwithstanding its reference to “the position of the United
States,” 18 U.S.C. § 3006A app., the Hyde Amendment is not
a tool to combat misconduct by the federal government writ
large. It applies only “in a[] criminal case,” id., which directs
us to focus on “the government’s position underlying the pros-
ecution,” Manzo, 712 F.3d at 810 (emphasis added) (quoting
Gilbert, 198 F.3d at 1299). The Amendment thus reaches
“prosecutorial misconduct” affecting the “case as an inclusive
whole,” id. (citations omitted), not misconduct in distinct gov-
ernment proceedings nor isolated “errors” by individual law
enforcement officers in the course of the investigation or pros-
ecution, id. at 813.
Our sister circuits share that view. The Second Circuit, for
instance, reads “the position of the United States” for Hyde
Amendment purposes “to mean . . . the government’s general
litigation stance: its reasons for bringing a prosecution, its
characterization of the facts, and its legal arguments.” United
States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018). The Ninth
Circuit reads the Amendment as requiring an assessment of
“the government’s litigating position as a whole,” not of “other
types of bad conduct by government employees during the
course of an investigation.” United States v. Mixon, 930 F.3d
1107, 1111 (9th Cir. 2019); see id. at 1112 (requiring “serious
misconduct on the part of prosecutors” (emphasis added)).
Several others have agreed, see, e.g., Monson, 636 F.3d at 439–
40 (holding that a ruling for the defendant under Franks v. Del-
aware, 438 U.S. 154 (1978), which “constitutes a finding that
law enforcement deliberately lied or recklessly disregarded the
truth,” “does not necessarily mean that . . . the prosecution
29
against the defendant was frivolous or vexatious”), and we are
aware of no precedential appellate decision taking a different
approach.
In sum: The Hyde Amendment demands we “[f]ocus[] on
the prosecutors’ conduct,” Monson, 636 F.3d at 439 (emphasis
added), and ask whether the alleged prosecutorial misconduct
was so “pervasive” as to “render the government’s litigating
position as a whole vexatious, frivolous, or in bad faith,”
Mixon, 930 F.3d at 1112 (emphasis added).
The District Court, however, understood the “position of
the United States,” 18 U.S.C. § 3006A app., to include both
“the litigation position of the DOJ through th[e] . . . U.S. At-
torney’s Office and the actions taken (or not taken) by” DHS
officers, App. 26 (emphasis added), including as far back as
Reyes-Romero’s administrative removal proceeding in 2011.
In assessing Reyes-Romero’s Hyde Amendment application,
for example, the Court found that DHS officers “railroaded
[him] out of the country in 2011” in a manner that was “lacking
in any reasonable factual or legal basis” and was therefore friv-
olous, App. 28–29, and that the officers’ testimony in 2018
“demonstrate[d] clear bad faith” on their part, App. 29.
That understanding was mistaken. It assumes that, because
the EAJA’s “procedures and limitations” are incorporated into
the Hyde Amendment, 18 U.S.C. § 3006A app., and because
the EAJA defines “position of the United States” to include,
“in addition to the position taken by the United States in the
civil action, the action or failure to act by the agency upon
which the civil action is based,” 28 U.S.C. § 2412(d)(2)(D), the
Hyde Amendment must also incorporate that definition. But
the EAJA’s substantive definition of “position of the United
30
States” is neither a “procedure[]” nor a “limitation[],” so it can-
not be read into the Hyde Amendment.
And there are good reasons not to compare EAJA apples to
Hyde Amendment oranges. For one thing, we took a contrary
view in Manzo, emphasizing “the government’s position un-
derlying the prosecution” and asking whether it was “objec-
tively []reasonable for the government to attempt to prosecute”
the defendant. 712 F.3d at 810, 813 (emphasis added) (citation
omitted); see also, e.g., Mixon, 930 F.3d at 1111 (defining “po-
sition of the United States” under the Hyde Amendment with-
out reference to the EAJA definition); Bove, 888 F.3d at 608 &
n.10 (noting that the phrase “position of the United States”
“cannot mean precisely the same thing in both” the Hyde
Amendment and the EAJA). For another, the EAJA covers a
much broader swath of litigation, including civil actions arising
from agency enforcement or adjudication. See 28 U.S.C.
§ 2412(a)(1); see also Taylor v. Heckler, 835 F.2d 1037, 1040
(3d Cir. 1987) (under the EAJA, the “position of the United
States” necessarily includes “not only the litigation posi-
tion . . . but also the agency position [that] made the lawsuit
necessary” (alterations in original) (citation omitted)). Yet a
criminal prosecution for unlawful reentry does not fit that par-
adigm: Although a previous removal order is “a necessary el-
ement to the [§ 1326] charge,” App. 27, the criminal prosecu-
tion is distinct from and collateral to the immigration proceed-
ing that led to the order and thus unlike agency enforcement
actions that directly lead to civil actions in federal court. For
these reasons, 12 we reaffirm the principles set out in Manzo and
12
In interpreting the “position of the United States” to in-
clude actions of DHS and its officers, the District Court also
31
cited two out-of-circuit district court opinions—United States v.
Holland, 34 F. Supp. 2d 346 (E.D. Va. 1999), and United
States v. Gardner, 23 F. Supp. 2d 1283 (N.D. Okla. 1998)—
both of which were decided before we or many of our sister
circuits had a chance to construe the Amendment. In Holland,
the court considered the defendants’ application for costs and
fees to flow not from the Hyde Amendment as bounded by the
“procedures and limitations” of § 2412(d), but from a distinct
open-ended EAJA provision holding the United States “liable
for such fees and expenses to the same extent that any other
party would be liable under the common law,” 18 U.S.C.
§ 2412(b). See 34 F. Supp. 2d at 356–59. As the District Court
recognized elsewhere in its opinion, Holland’s analysis devi-
ates from the “consensus among circuits that the Hyde Amend-
ment incorporates only those procedures and limitations in
subpart (d).” App. 25. And although the Holland court origi-
nally found “vexatious misconduct” on the part of the Federal
Deposit Insurance Corporation (FDIC) as well as DOJ, it later
vacated that portion of its award after concluding the FDIC had
lacked “sufficient notice that . . . fees and litigation expenses
might be assessed against it.” United States v. Holland, 48 F.
Supp. 2d 571, 581 (E.D. Va. 1999). In Gardner, the district
court ruled that the EAJA’s broad definition of “position of the
United States” is a “procedure or limitation incorporated into
the Hyde Amendment” and therefore that executive agencies
like the Internal Revenue Service can be swept into that defi-
nition. 23 F. Supp. 2d at 1293–95. But that analysis was not
based on a rigorous analysis of the Amendment’s statutory
text, has never been cited favorably by any court of appeals,
and is contrary to both Manzo and our conclusion today.
32
hold that the “position of the United States” for purposes of the
Hyde Amendment refers only to the position taken by the de-
partment and officers charged with administering the prosecu-
tion—here, DOJ and AUSA Hallowell.
To be clear, misconduct by law enforcement officers or
other executive departments can be relevant to a Hyde Amend-
ment application if prosecutors leverage that misconduct to
further a prosecution that has no factual or legal basis or that is
brought for purposes of harassment. But because the Amend-
ment is concerned only with prosecutorial misconduct, see
Mixon, 930 F.3d at 1112 (“A defendant is not entitled to attor-
neys’ fees under the Hyde Amendment due to law enforcement
misconduct; rather, the focus is on the prosecutors . . . .”), al-
leged misconduct by DHS or its officers cannot independently
create liability for attorney’s fees and costs.
ii. The meaning of “vexatious, frivolous, or in
bad faith”
The Hyde Amendment applies where the Government’s lit-
igation position “was vexatious, frivolous, or in bad faith.”
18 U.S.C. § 3006A app. (emphasis added). We have taken the
Amendment’s use of the disjunctive “or” to mean that each
ground must be assessed separately, see Manzo, 712 F.3d at
810–11 (laying out different standards for each), and several of
our sister circuits agree, see, e.g., Monson, 636 F.3d at 438–39;
United States v. Manchester Farming P’ship, 315 F.3d 1176,
1182 (9th Cir. 2003). While the three grounds meaningfully
“overlap,” United States v. Terzakis, 854 F.3d 951, 955, 956
n.3 (7th Cir. 2017), analyzing each on its own helps courts fo-
cus only on relevant factors and not on a nebulous sense of
government impropriety.
33
When we conduct that analysis on this record and consider
the Hyde Amendment case law on frivolousness and bad faith,
we conclude Reyes-Romero is not entitled to an award.
2. The position of the United States was not
frivolous
We and our sister circuits have laid extensive groundwork
for analyzing frivolousness under the Hyde Amendment. For
the Government’s position to be frivolous, the prosecution it
pursues must be “groundless[,] with little prospect of success.”
Manzo, 712 F.3d at 810 (alteration in original) (quoting Gil-
bert, 198 F.3d at 1299). Said differently, the position must be
“foreclosed by binding precedent or . . . obviously wrong,” id.
at 811 (quoting United States v. Capener, 608 F.3d 392, 401
(9th Cir. 2010)), and a prosecution based on an unresolved but
reasonable legal argument cannot be frivolous, id. See Bove,
888 F.3d at 608 (frivolousness requires a prosecution that is
“[m]anifestly insufficient or futile” (alteration in original) (ci-
tation omitted)); Monson, 636 F.3d at 440 (to be frivolous, a
prosecution must be “utterly without foundation in law or fact”
(citation omitted)). In assessing frivolousness, therefore, we
view the prosecution through the lens of the elements of the
criminal charge and the evidence required to satisfy those ele-
ments.
We also find guidance in Hyde Amendment case law ad-
dressing vexatiousness, which—though a distinct ground for
awarding fees, see supra note 11—overlaps with frivolousness
to the extent it too requires that the prosecution be “objectively
deficient, [meaning] lack[ing] [in] either legal merit or factual
foundation.” Manzo, 712 F.3d at 810. In Manzo, for instance,
the defendant argued the government had made “blatantly
34
false” allegations about his receipt of a cash bribe. Id. at 812.
In that decision, we assumed he had not received the cash and
that the government had knowingly presented false testimony.
See id. Even so, we explained, the charges against the defend-
ant “did not require the government to prove that he physically
received a cash bribe,” and because the government could
“plausibly argue that Manzo was aware of the cash pay-
ment . . . and played a role in facilitating it,” it maintained a
viable—and thus objectively nonfrivolous—pathway to con-
viction. See id.
Manzo controls here. Reyes-Romero did not contest either
element required for conviction under § 1326(a)—that he was
removed and later found in the country without the Attorney
General’s consent. Rather, he sought to attack the removal or-
der collaterally under § 1326(d), which we have treated as akin
to an affirmative defense. See Richardson v. United States,
558 F.3d 216, 222 (3d Cir. 2009); United States v. Charleswell,
456 F.3d 347, 358 (3d Cir. 2006). Yet at every point in the
prosecution, from the return of the indictment through the de-
cision resolving the parties’ motions to dismiss, the Govern-
ment had—at minimum—a reasonable argument that Reyes-
Romero could not show prejudice under § 1326(d)(3) and thus
could not make out the affirmative defense. The District Court
even recognized as much, characterizing the Government’s po-
sition on prejudice as “largely reasonable and based in law.”
App. 42.
We agree with the characterization of the Government’s
prejudice arguments as reasonable and based in law, and we
briefly highlight some of the complexities on which those ar-
guments turned. The first was whether Reyes-Romero’s
35
conviction qualified as a “crime of violence,” 8 U.S.C.
§ 1101(a)(43)(F) (incorporating 18 U.S.C. § 16’s definition),
and thus an aggravated felony rendering him ineligible for asy-
lum, id. § 1158(b)(2)(A)(ii), (B)(i), and cancellation of re-
moval, id. § 1229b(a)(3). Although § 16(b)’s residual clause
has been held void for vagueness, Sessions v. Dimaya, 138 S.
Ct. 1204, 1210 (2018); Baptiste v. Att’y Gen., 841 F.3d 601,
615–21 (3d Cir. 2016), those decisions were not in place in
2011, and the Government argued prejudice must be assessed
as of the underlying removal proceedings rather than as of the
collateral challenge to those proceedings. Even setting § 16(b)
aside, Reyes-Romero would remain ineligible for asylum and
cancellation if his offense fit within § 16(a)’s elements clause,
which in turn depended on whether an offense capable of com-
mission through reckless conduct can satisfy that clause—a
difficult and open question the Supreme Court recently agreed
to resolve, see supra note 3. A related question was whether
Reyes-Romero’s offense qualified as a “particularly serious
crime” rendering him ineligible for withholding of removal,
8 U.S.C. § 1231(b)(3)(B)(ii). At the time of his removal, our
precedent held “that an offense must be an aggravated felony
in order to be classified as a ‘particularly serious crime.’”
Alaka v. Att’y Gen., 456 F.3d 88, 105 (3d Cir. 2006). But we
have since revisited Alaka, holding that “the phrase ‘particu-
larly serious crime’ . . . includes but is not limited to aggravated
felonies.” Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 266–67
(3d Cir. 2019) (en banc). And the notion that second-degree
aggravated assault under New Jersey law could have qualified
as particularly serious was not out of the question. See, e.g.,
Aguilar v. Att’y Gen., 665 F. App’x 184, 185–86, 188–89 (3d
36
Cir. 2016) (per curiam) (upholding the BIA’s designation of
that offense as particularly serious). 13
We need not review every step in the District Court’s anal-
ysis. It is enough to say we agree that whatever the merits of
Reyes-Romero’s arguments on prejudice, the Government’s
arguments in response were “reasonable and based in law,”
App. 42—or, put another way, were far from “foreclosed by
binding precedent or . . . obviously wrong,” Manzo, 712 F.3d
at 811 (citation omitted). As a result, the Government at all
times maintained a viable path to conviction, making its litiga-
tion position nonfrivolous under the Hyde Amendment.
Reyes-Romero argues to the contrary, urging us to accept
the District Court’s reasoning. We address each argument be-
low.
13
There is also the matter of Reyes-Romero’s evidence
showing fear of persecution or torture if returned to El Salva-
dor. The District Court concluded Reyes-Romero had shown
a reasonable likelihood of obtaining relief from removal, but it
did so only after an extensive review of the evidence and the
case law, and only after reaching favorable conclusions on
close issues such as the cognizability of Reyes-Romero’s fam-
ily unit as a particular social group, the relevance of incidents
that took place in Honduras, and whether the private violence
he feared would qualify as torture for CAT protection. That
both the IJ and BIA in Reyes-Romero’s subsequent removal
proceeding rejected his applications for relief from removal,
see supra note 6, further suggests the Government’s arguments
were not beyond the pale.
37
We start with language from Reyes-Romero’s indictment
stating that he had been “removed from the United States pur-
suant to law.” App. 31 (quoting App. 63). Reyes-Romero
seizes on that language, arguing that if a removal proceeding
violated DHS’s rules or a noncitizen’s rights, the noncitizen
was not removed “pursuant to law” and thus cannot be prose-
cuted for unlawful reentry regardless whether he can show that
those errors caused him prejudice. But that argument runs
aground on our precedent, which holds that “prejudice is a nec-
essary component under [§] 1326(d)(3).” Charleswell,
456 F.3d at 358. In plain terms, a criminal defendant who con-
cedes the elements of § 1326(a) but cannot satisfy
§ 1326(d)(3)’s prejudice requirement—which, we have held,
generally requires a showing of “a reasonable likelihood that
the result would have been different if the error in the [re-
moval] proceeding had not occurred,” id. at 362 (citation omit-
ted)—is guilty of unlawful reentry, and the Government’s
prosecution of that charge cannot be “groundless,” Manzo,
712 F.3d at 810 (citation omitted).
Reyes-Romero’s argument to the contrary is essentially
that when a defendant has a good case on some but not all the
elements of an affirmative defense, the Government must con-
cede the rest and consent to dismissal on his terms. That
simply is not the law. Although our criminal justice system
depends on prosecutors’ discretion to decide which cases to
pursue, their choice to pursue an objectively valid prosecution
is immune from scrutiny by the federal courts. Put another
way, our “constitutional framework” is such that “we cannot
read the Hyde Amendment to license judicial second-guessing
of prosecutions that are objectively reasonable,” United
38
States v. Shaygan, 652 F.3d 1297, 1314 (11th Cir. 2011)—as
this prosecution undoubtedly was.
Nor was the Government bound to abandon the prosecution
because it shined a light on an administrative removal proceed-
ing that, as the Government acknowledges, was something of
a “botched job.” Arg. Tr. 15. To the contrary, “[i]t is the re-
sponsibility of the Department of Justice to enforce the law
vigorously[,] and it cannot abdicate this duty because of possi-
ble embarrassment to other agencies of the government.” U.S.
Dep’t of Justice, Justice Manual § 9-2.159 (2018),
https://www.justice.gov/jm/justice-manual. Despite signs that
DHS might have mishandled Reyes-Romero’s administrative
removal, AUSA Hallowell nonetheless maintained a nonfrivo-
lous pathway to conviction throughout the prosecution, and un-
der those circumstances we cannot fault him or the office he
represents for continuing to seek such a conviction.
As a last resort, Reyes-Romero suggests we deem the pros-
ecution frivolous because prejudice must be “presume[d].”
Arg. Tr. 31–32. He relies for this proposition on Charleswell,
where we stated that “some procedural defects may be so cen-
tral or core to a proceeding’s legitimacy, . . . and the difficulty
of proving prejudice so great[,] that prejudice may be pre-
sumed.” 456 F.3d at 362 n.17 (internal quotation marks and
citation omitted).
That language, however, is dicta in a footnote. We have
never given effect to the possibility we left open in
Charleswell, nor (to our knowledge) has any other court of ap-
peals. Nor need we address that possibility today; the point,
rather, is that where no appellate court has so held to date, we
cannot say the Government lacked a “reasonable legal basis”
39
for contending § 1326(d)(3)’s prejudice prong could not be sat-
isfied. Manzo, 712 F.3d at 811 (citation omitted); see id. (“The
government should be allowed to base a prosecution on a novel
argument, so long as it is a reasonable one, without fear that it
might be setting itself up for liability under the Hyde Amend-
ment.” (citation omitted)). It would also be especially perverse
to fault the Government for ignoring this possibility here given
that Reyes-Romero—who carries the burden on each of
§ 1326(d)’s elements—failed to mention it until his supple-
mental reply brief filed months after his initial § 1326(d) mo-
tion.
In sum, the Government at all times had a legally defensible
and factually supported basis for prosecuting Reyes-Romero
for unlawful reentry. The “position of the United States,”
18 U.S.C. § 3006A app., therefore, was not frivolous. 14
14
In analyzing a Hyde Amendment application, the district
court’s task is to “make only one finding . . . based on the case
as an inclusive whole” rather than engaging in “[a] count-by-
count analysis.” Manzo, 712 F.3d at 810 (citation omitted).
Here, that task is straightforward because Reyes-Romero was
charged with only one offense. We therefore have no occasion
to address the implications of a multicount prosecution where
only one or some counts are viable. Cf. United States v. Heav-
rin, 330 F.3d 723, 730 (6th Cir. 2003) (noting that a Hyde
Amendment award may be appropriate “[e]ven if the district
court determines that part of the government’s case has merit”
so long as “the government’s ‘position’ as a whole was vexa-
tious, frivolous, or in bad faith”).
40
3. The position of the United States was not in
bad faith
Nor did the Government initiate or prolong Reyes-
Romero’s criminal prosecution in bad faith.
On this issue, too, we benefit from a well-developed line of
precedent. Bad faith requires more than “bad judgment or neg-
ligence”; it demands “the conscious doing of a wrong because
of dishonest purpose or moral obliquity.” Manzo, 712 F.3d at
811. And in assessing whether the “position of the United
States was . . . in bad faith,” 18 U.S.C. § 3006A app., we may
not “delve into the minds and motivations of individual prose-
cutors,” Manzo, 712 F.3d at 813. Instead, we must “engage in
an objective inquiry,” Manzo, 712 F.3d at 811 (citing Shaygan,
652 F.3d at 1313–14), asking whether “[u]nder th[e] circum-
stances” the government’s litigation strategy was “objectively
unreasonable” in light of the facts and “binding case law.” Id.
at 813. And in doing so, we must be wary to leave prosecutors
the breathing space necessary to pursue justice with vigor. A
Hyde Amendment award is not available simply because a de-
fendant was acquitted or because the government engaged in
“contentious and hard-fought” litigation tactics. United
States v. Schneider, 395 F.3d 78, 88 (2d Cir. 2005). To the
contrary, “government attorneys are entitled to be zealous ad-
vocates of the law on behalf of the . . . people of the United
States,” and “[w]hile a prosecutor is not at liberty to strike foul
blows, he may strike hard ones . . . —indeed, he should.”
United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001) (internal
quotation marks and citation omitted).
The District Court identified seven points throughout the
prosecution that in its view constituted “evidence of bad faith,”
41
Ohio App. 36, on the part of AUSA Hallowell and, by extension,
DOJ. We address them one by one. Although we generally
owe deference to factual findings, any finding that “is implau-
sible based on the record” is clearly erroneous and thus “un-
sustainable.” Capener, 608 F.3d at 403; see United States v.
Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (reversal of a Hyde
Amendment award is required where the reviewing court is left
with “a definite and firm conviction” that “a mistake has been
made” (citation omitted)).
i. Obtaining the indictment
First, we disagree that the Government relied on “facially
invalid waivers,” App. 31, to seek an indictment and proceed
with the prosecution against Reyes-Romero. Even if we were
to accept that the Government was “mistaken at the time of
[the] [i]ndictment,” App. 31, “the Hyde Amendment [is] tar-
geted at prosecutorial misconduct, not prosecutorial mistake,”
Capener, 608 F.3d at 401 (alteration in original) (citation omit-
ted). And here, the contents of Reyes-Romero’s A-file gave
the Government probable cause to believe that he fell within
the facial elements of the § 1326(a) offense. Although a de-
fendant in Reyes-Romero’s position may bring a collateral
challenge under § 1326(d), that challenge is akin to an affirm-
ative defense, and it is up to the defendant to assert and prove
it. That defense does not turn on whether the removal was
“pursuant to law,” App. 31; it requires (among other things)
prejudice, Charleswell, 456 F.3d at 358, and there was nothing
in the A-file to suggest Reyes-Romero could show a reasonable
likelihood of any outcome other than removal. When viewed
objectively, therefore, the decision to indict and prosecute
Reyes-Romero does not give rise to an inference of bad faith.
42
ii. The DHS officers’ testimony
Nor are we persuaded that Officers Darji and Alicea gave
false testimony or that the Government’s refusal to label it as
such violated its obligations under Napue v. Illinois, 360 U.S.
264 (1959).
We start with the most frequently quoted portion of the tes-
timony: Officer Darji’s acknowledgment that the forms in
Reyes-Romero’s A-file did not “make any sense.” App. 331.
It is not the case that Officer Darji “admitted on the stand that
his testimony (given just moments before) was, in fact, non-
sense.” App. 32 (emphasis added). Officer Darji had no spe-
cific memory of Reyes-Romero’s proceeding, and thus offered
testimony only about the “normal practice” in his DHS unit,
App. 319. In the leadup to Officer Darji’s oft-quoted admis-
sion, the District Court took over questioning and presented
him with the irregularities in Reyes-Romero’s forms, asking
whether it was “reading those forms correctly.” App. 331. The
Court then asked whether “that”—the antecedent of which was
the content of “those forms”—“ma[de] any sense,” and Darji
admitted it did not. Id.
In context, Officer Darji’s comment was a candid admis-
sion that he could not explain away the apparent problems with
Reyes-Romero’s removal proceeding. And, at least initially,
the District Court agreed, summarizing that Officer Darji had
admitted that “the process that was used here” did not
“ma[ke] . . . sense.” App. 476. The quite different notion that
Darji admitted that he had lied in his testimony, however, “is a
kind of [factual] Lohengrin,” in that we do not “know whence
it came,” IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.
43
1975). Because that notion finds no support in the record, we
reject it.
As a result, nothing in Officer Darji’s concession triggered
Napue obligations on the part of AUSA Hallowell. Those ob-
ligations spring to life only when the prosecutor “knows that
his witness is giving testimony that is substantially misleading”
and where the misleading nature of the testimony is “obvious.”
United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974).
A candid admission of the kind Officer Darji gave does not fit
those criteria.
Nor do the remaining portions of the DHS officers’ testi-
mony. To be sure, both officers, testifying years later and with
no specific memory of Reyes-Romero’s removal proceeding,
gave testimony that was at times equivocal, confusing, or in-
consistent. Officer Darji, for instance, changed an answer he
gave about whether a prior signature was required to authorize
service of the I-851 on noncitizens. For his part, Officer Alicea
gave difficult-to-reconcile answers in response to questions
about when in the process the I-851’s contents would be read
to the noncitizen in Spanish. But to the extent the officers’
testimony was somewhat “convoluted,” App. 43 (citation omit-
ted), it reflects at least in part the byzantine nature of the ad-
ministrative removal system and in part the circumstances of
their questioning. Given that the District Court assumed the
questioning and raised a line of inquiry about the time stamps
on the I-851 that Reyes-Romero had not flagged and for which
the Government and its witnesses likely had not prepared, it is
unsurprising the officers were in some respects ill equipped to
explain the contents of Reyes-Romero’s A-file. In short, while
we recognize certain weaknesses in the officers’ testimony, we
44
discern no basis in the record to conclude that the officers were
deliberately perjuring themselves. At most, they exhibited the
kind of inconsistency that is the normal stuff of cross-exami-
nation and that might lead a trier of fact to discount their testi-
mony—but not to assume the sort of deliberate dishonesty that
would require a prosecutor to correct the record. In our judg-
ment, that distinction is critical here not only because of the
effect on AUSA Hallowell’s obligations but also because of
the severe reputational, professional, and legal consequences
that could flow from a finding that Officers Darji and Alicea
deliberately lied under oath. That finding was unjustified here.
At bottom, the Napue argument comes to this: that because
the District Court ultimately decided not to credit the officers’
testimony, the Government must have been obligated to dis-
claim it mid-trial. That does not follow. In presenting the tes-
timony of government witnesses, a prosecutor need not “play
the role of defense counsel . . . and ferret out ambiguities in his
witness’ responses on cross-examination.” Harris, 498 F.2d at
1169. He also cannot supplant the role of the finder of fact in
assigning weight to testimony as he deems appropriate. We
therefore discern no violation of AUSA Hallowell’s Napue ob-
ligations and no basis here to infer bad faith.
iii. Litigating exhaustion and judicial review
We next confront the idea that the Government exhibited
bad faith by continuing to litigate exhaustion and judicial re-
view even after the extent of the irregularities in Reyes-
Romero’s A-file came to light. A review of the record reveals
the opposite: that AUSA Hallowell promptly and appropriately
abandoned all arguments on § 1326(d)(1) and (2).
45
The initial two-day hearing on Reyes-Romero’s § 1326(d)
motion took place in early January 2018. During the second
day, the District Court informed the parties it was “highly
likely” to rule in Reyes-Romero’s favor on exhaustion and ju-
dicial review. App. 474–75. That left prejudice as “the only
open issue,” App. 543, on which the District Court requested
additional briefing. The parties twice requested more time to
submit a schedule for that briefing and did not settle on such a
schedule until late January. A month later—and before its sup-
plemental brief was due—the Government moved to dismiss
under Rule 48. No doubt the Government expected its motion
would be the end of the case. But after the District Court con-
tinued to press the Government on the merits of the § 1326(d)
motion, it promptly filed a brief in mid-March making its po-
sition clear: It would “not rely on or adopt th[e officers’] tes-
timony” and, if pushed to litigate the § 1326(d) motion,
“w[ould] not present argument on any elements . . . other than
the issue of prejudice.” App. 755. And it reinforced that posi-
tion at the next hearing.
AUSA Hallowell’s response was prompt, unambiguous,
and consistent with the best traditions and standards of his of-
fice. That it occurred “over two months” after the initial hear-
ing, App. 32, was a product of the parties’ agreed briefing
schedule, the Court’s unexpected reservations about the Gov-
ernment’s motion to dismiss, and its ongoing inquiry into the
effect of a dismissal on future immigration proceedings. The
Government was still “act[ing] promptly to correct [any] er-
ror,” United States v. Lain, 640 F.3d 1134, 1139 (10th Cir.
2011), and its response is inconsistent with a finding of bad
faith.
46
iv. Interactions between DOJ and DHS
We likewise see no signs of bad faith in AUSA Hallowell’s
inability to tell the District Court whether, if the prosecution
were dismissed, DHS would detain Reyes-Romero or seek re-
instatement of the 2011 removal order. In asserting that he
could not “speak for DHS . . . or what [it] would do” in future
immigration proceedings against Reyes-Romero, App. 617,
AUSA Hallowell was faithfully representing our precedent to
the District Court. See United States v. Igbonwa, 120 F.3d 437,
443–44 (3d Cir. 1997) (holding that an AUSA cannot bind
DHS in future immigration proceedings absent DHS’s con-
sent). Had the Court granted the Government’s motion to dis-
miss, any relevance of the 2011 order would have been left to
DHS in the first instance (in deciding whether to pursue a new
NTA or seek reinstatement) and, if necessary, to other admin-
istrative adjudicators and a different Article III court.
To be sure, it is possible for an AUSA, after having ob-
tained “prior authorization from [DHS],” Justice Manual, su-
pra, § 9-73.510, to come to a binding agreement with respect
to future immigration proceedings against a noncitizen defend-
ant. But an AUSA lacks the power to do so on his own. More
important, whether and under what circumstances he reaches
out to DHS to explore such an arrangement is committed to his
discretion—he is not bound to do so. And even if he does seek
authorization from DHS, he cannot demand that the agency
give it, and if the agency declines the AUSA cannot be held
responsible. When viewed through an objective lens, there-
fore, the absence of such an arrangement between DOJ and
DHS with respect to future proceedings against Reyes-Romero
also does not support an inference of bad faith.
47
Two related issues must be addressed. First, we do not con-
sider significant that DHS and DOJ were to some extent “in-
tertwin[ed] . . . in this case,” App. 37 (emphasis omitted), in-
sofar as DOJ and DHS kept in contact about Reyes-Romero or
a line-level DHS official was present at counsel table for all but
one of the hearings before the District Court. Coordination be-
tween DOJ and other executive departments is by no means
unusual, but it does not obviate the line between those depart-
ments or between a criminal prosecution and subsequent ad-
ministrative proceedings. We therefore see no support for the
notion that the Government here attempted to use its collabo-
ration with DHS as both a sword and a shield against Reyes-
Romero.
Second, we are equally unpersuaded that the AUSA exhib-
ited bad faith by focusing on the criminal offense with which
Reyes-Romero was charged, the evidence necessary to prove
that offense, and the elements of Reyes-Romero’s affirmative
defense. Those were, after all, the only live issues over which
the District Court had jurisdiction. Even so, AUSA Hallowell
did his best to assist the Court in its consideration of matters
well beyond that jurisdiction, most notably the effect that var-
ious dispositions might have on future immigration proceed-
ings against Reyes-Romero. The AUSA’s responsiveness,
candor, and professionalism in answering unanticipated ques-
tions bespeak good faith on his part and in the “position of the
United States,” 18 U.S.C. § 3006A app. And in general, the
AUSA offered candid and accurate assistance to the tribunal;
was forthright about the weaknesses in the case; and, once he
had received additional evidence bolstering Reyes-Romero’s
arguments on prejudice and once the prosecution had ex-
hausted more time and resources than was expected, sensibly
48
reevaluated it and decided dismissal was in the best interests of
justice. There is much to commend in the way the prosecution
litigated this case, and certainly nothing of the “dishonest pur-
pose or moral obliquity,” Manzo, 712 F.3d at 811 (citation
omitted), required to justify a Hyde Amendment award.
v. The Government’s motion to dismiss
We now come to a central premise of the Hyde Amendment
award: that the Government’s motion to dismiss was motivated
by, and evidence of, bad faith.
There is good reason for skepticism: It is ironic indeed that
the government’s decision to move to dismiss a criminal case
with prejudice would be held up as proof of ill will toward the
defendant. Normally, if circumstances arise making it clear
that the Government’s case is weaker than it once appeared and
the “Government act[s] promptly to correct [that] error,” a
court will be hard pressed to find bad faith. Lain, 640 F.3d at
1139. The District Court recognized this dynamic, correctly
stating that if an AUSA “conclude[s] that a criminal prosecu-
tion should not proceed” and moves to dismiss, that is an ap-
propriate exercise of prosecutorial discretion and precisely
“how we want the system to work.” App. 635. But it pro-
ceeded to find that motion was evidence of bad faith on two
grounds.
The first was that the motion was designed “to shield the
2011 Removal Order from an adjudication of invalidity” and
thereby interfere with future immigration proceedings against
Reyes-Romero. App. 36. In other words, because the Govern-
ment agreed the prosecution should be dismissed, it had no
49
non-malicious reason for refusing “to not oppose the bare
granting of Reyes-Romero’s motion to dismiss.” App. 4.
Implicit in that analysis is that there is no meaningful dif-
ference between (i) exercising discretion to dismiss the prose-
cution because of some “litigation risk” on the prejudice prong,
App. 646, and (ii) conceding outright that Reyes-Romero has
satisfied the prejudice prong. Not so. A prosecutor may have
probable cause to believe an element of an affirmative defense
is triable but still conclude that, because of the closeness of the
question as well as other considerations such as expenses and
the time a defendant has already been in custody, the interests
of justice would not be well served by continuing to pursue the
prosecution. That is, indeed, how the system should work.
And, most critical, the Government must be free to do so with-
out having to concede away the merits of the criminal charge
or any affirmative defenses, which would have been the effect
of endorsing Reyes-Romero’s § 1326(d) motion.
Nor can we agree that the Government was “[n]ever
asked . . . to stipulate to ‘prejudice’” and could have opted to
“‘not oppose’ the granting of Reyes-Romero’s motion.”
App. 15–16. Because dismissal under § 1326(d) requires prej-
udice, see 8 U.S.C. § 1326(d)(3); Charleswell, 456 F.3d at 358,
the Government cannot agree to a § 1326(d) dismissal without
acknowledging that the prejudice requirement has been met.
And given the closeness of the prejudice question, see supra
pp. 35–37 & n.13, it strikes us as objectively reasonable that
the Government elected not to do so.
The second ground for the finding that the Government
moved to dismiss in bad faith was that the reasons it offered in
support of its motion were pretextual. After a review of the
50
record, we conclude the Government’s reasons were sensible
and consistent. It explained, for instance, that its motion to
dismiss was motivated in part by a desire to preserve litigation
resources. That is no surprise given that the single-count pros-
ecution had already lasted months and generated many hear-
ings and briefs. True, the Government “then expended sub-
stantial resources on continuing to oppose Reyes-Romero’s
motion to dismiss” while its own motion remained pending.
App. 39. But that was only because the Government’s motion
was held open, requiring that it continue to litigate the merits
of Reyes-Romero’s § 1326(d) defense. The Government’s ex-
planation can be viewed as contradictory only if we assume
there was no difference between acceding to Reyes-Romero’s
motion and proceeding on the Government’s motion—an idea
we have already rejected.
vi. Production of the color copies
Next, we see no evidence to support the idea that the late-
in-the-game production of color copies from Reyes-Romero’s
A-file suggests bad faith on the Government’s part. Under the
line of cases springing from Brady v. Maryland, 373 U.S. 83
(1963), prosecutors have an affirmative duty to disclose mate-
rial evidence favorable to the defendant. Dennis v. Sec’y,
834 F.3d 263, 284 (3d Cir. 2016) (en banc). But there is no
question that AUSA Hallowell, after having received the color
copies, promptly shared them with Reyes-Romero’s counsel
and with the District Court. That he did so was consistent with
his Brady obligations as well as good faith in the management
of the prosecution.
Nor is there anything to suggest the Government exhibited
bad faith by producing the color copies months into the
51
prosecution rather than at the outset. To begin, our precedent
on the timing of Brady disclosures requires only that the gov-
ernment “make[] [the] evidence available during the course of
a trial in such a way that a defendant is able effectively to use
it.” United States v. Moreno, 727 F.3d 255, 262 (3d Cir. 2013)
(citation omitted). Reyes-Romero was certainly able to use the
color copies of the forms to his benefit; those copies fed into
the District Court’s decision granting his § 1326(d) motion.
More to the point, there was no reason why AUSA Hallowell—
or, for that matter, Reyes-Romero’s counsel, who was given an
opportunity to access or request the original files—could have
anticipated that the color copies would contain meaningful, rel-
evant evidence that the black-and-white reproductions did not.
Under those circumstances, AUSA Hallowell lacked “actual or
constructive possession” of the information contained in the
color copies, Hollman v. Wilson, 158 F.3d 177, 180 (3d Cir.
1998), and accordingly that he did not request or produce them
earlier in the litigation does not give rise to an inference of bad
faith.
We end by addressing the assertion that the production of
black-and-white copies was “a clear implication of conscious
wrongdoing,” App. 40, on the part of unnamed DHS officials.
Because the Hyde Amendment is concerned only with prose-
cutorial misconduct, even such unscrupulous conduct by an in-
dependent executive department could not be laid at the pros-
ecution’s feet without a reasonable and logical basis for doing
so. Moreover, a review of the record here reveals nothing apart
from speculation suggesting that DHS’s production of black-
and-white copies was intended to shield Reyes-Romero’s
A-file from scrutiny—rather than, for instance, being the
52
product of an outdated photocopier or cost-saving printing pro-
cedures. So thin a reed cannot justify a Hyde Amendment
award.
vii. Litigation delay
Finally, we disagree that the criminal proceeding was “un-
necessarily drawn out by the various litigation tactics taken by
the Government.” App. 43. The time between Reyes-
Romero’s motion to dismiss and the decision granting that mo-
tion was roughly seven and a half months. If that period is
longer than in the typical § 1326 prosecution, the reasons are
many, including the ongoing evolution of Reyes-Romero’s ar-
guments on prejudice, mutual delays in the briefing schedule,
complicated legal and factual questions and, above all, a will-
ingness on the part of the District Court to hold outstanding
motions open and solicit supplemental briefing. Those reasons
for delay are unexceptional and understandable. But unwar-
ranted delay on the part of the Government was not one of
them.
* * *
Ultimately, with great respect for the District Court and its
careful administration of this prosecution, we nonetheless con-
clude based on our review of the record that “a mistake has
been made.” Heavrin, 330 F.3d at 727 (citation omitted).
There is no viable evidence that the “position of the United
States,” as that term is properly understood in the Hyde
Amendment, was frivolous or in bad faith.
We share the District Court’s view that Reyes-Romero’s
2011 expedited removal proceeding deviated from the ordered,
sensible process we demand of those who enforce the nation’s
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immigration laws. Indeed, that is the Government’s view as
well. And reasonable minds may differ about precisely how
the prosecution should have reacted once those issues became
apparent. But where reasonable minds may differ, and where
the Government made objectively reasonable and defensible
choices throughout the prosecution, there can be no Hyde
Amendment liability.
IV. CONCLUSION
For these reasons, we will reverse the District Court’s or-
ders awarding Reyes-Romero attorney’s fees and costs under
the Hyde Amendment.
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