U.S. v. Terzakis

Dist. Ct. did not err in denying defendant’s request for attorney fees under Hyde Amendment, even though govt. conceded that its key witness was no longer available to testify at trial, which in turn led govt. to dismiss criminal charge against defendant. Defendant failed to show that govt.’s decision to drop instant criminal charge was anything but exercise of prosecutorial discretion in face of challenges to securing conviction at trial. Moreover, while key witness had cognitive problems associated initially with his Asperger condition and then with his brain cancer condition, defendant could not show that govt.’s prosecution of instant case was vexatious, frivolous or in bad faith for purposes of award of attorney fees, where: (1) record suggested that govt.’s case against defendant was sufficiently strong without key witness’ testimony to convince grand jury to find probable cause to indict defendant; and (2) simply having either Asperger syndrome or brain cancer did not disqualify key witness from testifying on date of said diagnoses, so as to support defendant's contention that govt.’s subsequent prosecution of case was in bad faith.