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United States v. Capener

United States Court of Appeals for the Ninth Circuit

November 17, 2008, Argued and Submitted, San Francisco, California; January 8, 2010, Filed

Nos. 07-10359, 07-10372


 [*1061]  TRAGER, District Judge:

This case arises out of the failed prosecution of Dr. Mark Capener for health care fraud in violation of 18 U.S.C. § 1347, mail fraud in violation of 18 U.S.C. § 1341 and making false statements in violation of 18 U.S.C. § 1001. During the period relevant to this case, Dr. Capener was an otorhinolaryngologist in Nevada. The charges against him involved billing for surgeries that were allegedly either unnecessary, never performed or exaggerated for billing purposes ("upcoded"). After  [**2] an extended investigation and a lengthy trial, the district court dismissed many of the counts against Capener on the ground that they were insufficiently supported by the evidence and the jury acquitted Capener of the remaining counts.

Following the trial, Capener moved for an award of fees to cover his defense costs under the Hyde Amendment, 18 U.S.C. § 3006A note, which allows an award of fees to a defendant when the prosecution acted in a manner that was "vexatious, frivolous, or in bad faith . . . ." Id. The district court partially granted Capener's motion, awarding fees to cover the costs of defending against certain counts associated with one of the theories advanced by the government on the ground that this theory was frivolous.

Both parties appeal the district court's decision. The government argues that the district court erred by granting fees after considering the government's case piecemeal -- rather than viewing the case's alleged faults in the context of the case as a whole. The government also argues that, even viewed piecemeal, no part of government's prosecution meets the Hyde Amendment's standards for an award of fees. Capener cross-appeals, arguing that the district  [**3] court should have granted fees on the entire case. Capener also argues that the district court should have granted him discovery regarding his Hyde Amendment claim. For the reasons stated below, the district court is reversed and Capener's application for fees is denied in its entirety.


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590 F.3d 1058 *; 2010 U.S. App. LEXIS 426 **

UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross-Appellee, v. MARK CAPENER, Defendant-Appellee-Cross-Appellant.

Subsequent History: Rehearing denied by, Rehearing, en banc, denied by, Amended by United States v. Capener, 2010 U.S. App. LEXIS 12144 (9th Cir. Nev., June 9, 2010)

Amended by United States v. Capener, 608 F.3d 392, 2010 U.S. App. LEXIS 12147 (9th Cir. Nev., 2010)

US Supreme Court certiorari denied by Capener v. United States, 2011 U.S. LEXIS 895 (U.S., Jan. 18, 2011)

Prior History:  [**1] Appeal from the United States District Court for the District of Nevada. D.C. No. 3:05-CR-0114-RCJ-RAM. Robert C. Jones, District Judge, Presiding.

Disposition: No. 07-10359 (main appeal) REVERSED. No. 07-10372 (cross-appeal) AFFIRMED.


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Criminal Law & Procedure, Counsel, Costs & Attorney Fees, Governments, Federal Government, Claims By & Against, Standards of Review, Abuse of Discretion, Counsel, Discovery, Clearly Erroneous Review, Findings of Fact