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 ...
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