Opinion
No. 02 Cr. 1519 (RCC).
January 18, 2006
MEMORANDUM ORDER
Eliot Sash ("Sash") has moved for damages under the Hyde Amendment, Pub.L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 U.S.C. § 3006A, seeking in excess of $100,000.00 of attorneys' fees and expenses based upon his claims that he was the subject of false criminal allegations and the victim of a selective, malicious, and vindictive prosecution, notwithstanding his guilty plea to two felony counts in this matter. For the following reasons, Sash's claim is DENIED without a hearing.
I. BACKGROUND
On June 26, 2003, Sash appeared before a magistrate judge to waive indictment and enter a plea of guilty, without a plea agreement, to a two-count Superseding Information that charged him in Count One with unlawfully transferring counterfeit New York City Police Department ("NYPD") badges and in Count Two with using counterfeit bar codes to defraud K-Mart stores (by returning merchandise for more money than their sale prices). Sash allocuted to both charges at the time, but in light of Sash's equivocations during the allocution regarding Count One of the Superseding Information, Sash appeared again before the magistrate judge on September 30, 2003 to enter a guilty plea to Count Two of a Superseding Indictment, which charged him with unlawfully producing false identification documents, specifically NYPD identification cards and badges. On October 20, 2003, the Court accepted Sash's pleas to Count Two of the Superseding Information and Count Two of the Superseding Indictment. On January 13, 2004, the Court imposed a sentence of 27 months' imprisonment. Sash's Hyde Amendment claim is predicated on, inter alia, the dismissal, at the time of his sentencing, of the various open counts that remained in the Indictment, Superseding Indictment, and Superseding Information against him, which Sash alleges constitutes "favorable termination of the 45 dismissed counts in the Petitioner's favor" and thereby renders him a "prevailing party" under the Hyde Amendment, despite his guilty plea and conviction. (See Def. Pet. ¶ 16.)
II. DISCUSSION
The Hyde Amendment dictates that a court may, in a criminal case, "award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith. . . ." Pub.L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 U.S.C. § 3006A; United States v. Schneider, 395 F.3d 78, 85 (2d Cir. 2005).
The Court is unaware of any other court that has ever awarded relief under the Hyde Amendment to a criminal defendant who was not, at a minimum, acquitted at trial. Even "[a]n acquittal, without more, will not lead to a successful Hyde Amendment claim, as it was Congress's intent to `limit Hyde Amendment awards to cases of affirmative prosecutorial misconduct rather than simply any prosecution which failed.'" Schneider, 395 F.3d at 88 (quoting United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001)) (upholding the denial of a criminal defendant's motion for damages under the Hyde Amendment despite the defendant's acquittal at trial); see also United States v. Gladstone, 141 F. Supp. 2d 438, 444 (S.D.N.Y. 2001) (denying an acquitted criminal defendant's motion for attorney's fees and expenses, "regardless of what the jury concluded," because there was no evidence from the trial record to support his position that the prosecution was "vexatious, frivolous, or in bad faith" as required by the Hyde Amendment).
Sash may very well be the first criminal defendant in the limited history of the Hyde Amendment to seek damages following a prosecution in which he was convicted, and is almost certainly the first to seek such following a conviction based upon a guilty plea. The Government's prosecution of Sash — a prosecution that resulted in a plea to two felony counts — was not only not "vexatious, frivolous, or in bad faith," it was both justified and successful, as acknowledged by Sash's guilty pleas without any plea agreement. The open counts that were dismissed at the time of sentencing all arose from either Sash's identification-document fraud or his access-device fraud, and almost all of the dismissed counts concerned other subsections of the two felony statutes to which Sash entered guilty pleas, 18 U.S.C. §§ 1028, 1029. Moreover, the dismissal of the open counts, a common occurrence at a sentencing, had no effect on the applicable sentencing guidelines range or the 27-month sentence imposed by the Court given that Sash's guilty pleas encompassed his offense conduct. Accordingly, there was no victory for Sash in the Government's voluntary dismissal of overlapping charges. Sash's case not only falls far short of the "abusive prosecutorial conduct" that would trigger Hyde Amendment liability, see Schneider, 395 F.3d at 86, it is meritless, and Sash has failed to meet his burden of proving otherwise,see Gladstone, 141 F. Supp. 2d at 445-46.
Because Sash's claim for damages is entirely without merit, there is no need for the Court to conduct a hearing. See Schneider, 395 F.3d at 85, 90 (concluding that there was no need for the district court to conduct "an evidentiary hearing or other compulsion of evidence" under the Hyde Amendment where it was clear that the position of the government was not substantially or significantly vexatious, frivolous, or in bad faith); see also Gladstone, 141 F. Supp. 2d at 446 (holding that no hearing was required where the defendant had "utterly failed in his burden to establish anything suggesting that [his prosecution] was not a good faith prosecution or was not instituted with reasonable cause, or was not well-grounded and was brought to embarrass the defendant").
III. CONCLUSION
For the foregoing reasons, Sash's request for a Hyde Amendment award is DENIED without a hearing.
So Ordered.