United States of America v. Dwayne Lequire

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE LEQUIRE,
Defendant - Appellant.
No. 12-10472
D.C. No. 4:08-cr-00212-DCB-
BPV-4
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted January 14, 2014 **
San Francisco, California
Before: WALLACE and BYBEE, Circuit Judges, and RESTANI, Judge. ***
Dwayne Lequire appeals from the district court’s denial of his motion for
attorney fees under the Hyde Amendment, 18 U.S.C. § 3006A, after our court
FILED
JAN 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.

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reversed his convictions for embezzlement and conspiracy to commit
embezzlement under 18 U.S.C. §§ 1033 and 371. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
We review the denial of attorney fees under the Hyde Amendment for abuse
of discretion. United States v. Lindberg, 220 F.3d 1120, 1124 (9th Cir. 2000).
“[U]nder the Hyde Amendment, a victorious defendant may be able to recover
legal fees upon showing that the position of the United States was either vexatious,
frivolous or in bad faith.” United States v. Capener, 608 F.3d 392, 400–01 (9th
Cir. 2010). To prevail, such a defendant must make a showing of “prosecutorial
misconduct, not prosecutorial mistake.” Id. at 401 (citation omitted). For purposes
of the Hyde Amendment, a “frivolous” case is one that is “groundless” because the
“government’s position was foreclosed by binding precedent or so obviously
wrong as to be frivolous.” United States v. Manchester Farming P’ship, 315 F.3d
1176, 1183 (9th Cir. 2003) (citation omitted).
The district court did not abuse its discretion in concluding that the
prosecution was “based on a mistake in law” that was not disclosed until we, as a
matter of first impression, defined the term “embezzlement” as used in 18 U.S.C. §
1033(b)(1) pursuant to Arizona law. Capener, 608 F.3d at 401; see also United
2

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States v. Lequire, 672 F.3d 724, 729–31 (9th Cir. 2012). Thus, the government’s
case was not “frivolous” when filed.
Lequire also argues that the district court erred by denying the evidentiary
hearing he requested. Reviewing for abuse of discretion, Capener, 608 F.3d at
400, we reject this argument. The district court did not abuse its discretion in
concluding that there was no need for an evidentiary hearing, insofar as the briefs
had provided Lequire with “ample opportunity” to present any evidence in support
of his claim. See Lindberg, 220 F.3d at 1126.
AFFIRMED.
3

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