good morning mike may it please the court my name is bates butler and i represent the appellant wynona mixon this is a hyde amendment case in point go further i'd like to reserve about two minutes if i can please watch the clock ok this is a hyde amendment case that was filed after mr nixon was found not guilty on all eight counts the standard of review here is abuse of discretion here it's clear the district court judge abused her discretion in denying miss nixon's hide claim because her ruling is without support or inferences that may be drawn from the record facts in the record the order neither draws neither support nor inferences from the record as the order makes no reference to the trial record therefore the hixon case informs that this court can be said to have a definite and firm conviction that the trial court abused its discretion  best support for your position here well there is no direct citation that says that the hyde amendment is strictly limited to prosecutorial misconduct and we're relying on the language of the statute itself which talks about the united states and the united states is clearly larger and more expansive than prosecutors when you you say leads up to the prosecution or even now just using prosecutorial misconduct are you speaking about the actions of the assistant united states attorneys prosecuting the case or leading up to the event known as a prosecution leading up to the event that's known as the prosecution we're not talking about the acts of the assistant u s attorney in this case here and that's the place where i believe we're both trying to drill down how low is it that you believe it can go i mean verdict to sustain a hyde amendment claim right now it appears that you believe now just prosecutors but agents would be subject to my right that's correct if they're limit a floor i would think that there there is a floor and what it is it's clearly somewhere below the agents that let i mean these agents here that were complaining about their actions helped frame the indictment cause i mean the agent mendez from the b o p had been investigating this mix and with the purpose of trying to get rid of her in the b o p beginning in two thousand and six the only thing i saw out and as was that he involved in the investigation where he was involved in more than the multiple investigations between two thousand and six and actually two thousand and fourteen on she got to work got raped in august of two  and five days later mendez instituted oh i g a investigation he participated in where he claimed that it was going to the rapist who was the victim and not m so so what you're telling us is he was involved in various investigations but what evidence suggests that this is exchanges because all of those investigations ultimately resulted in no prosecution in this mix and except for this one and he was clearly we think based on if you look at the reply memo that we filed and it's at our talents excerpts of record sixty pages six eight lays out in more detail than i could ever do here today all of the actions of mendez and that were designed really just to force her out of the job and they had a contentious relationship that hit as a result of all these investigations and i mean she ended up filing a complaint against him and he was after her and what happened at akron play against him and nothing mendez was ultimately and i hated for lying to investigators about stolen government property and perjury jury and he owes me hearing was was he convicted he pled guilty to perjury and the other one the other one the other agent was to sue so so there were apparently there were two different prosecutions have is that incorrect i'm sorry of mendez i'm only familiar with just one quick quick question for you if you have any case that says the fact that the prosecution didn't bring the prosecutions means that the investigation was vexatious no and i asked that because normally we consider prosecutors have prosecutorial discretion and they can declined to prosecute someone even when they have plenty of cause to do it if they want i agree with that and i don't have any cases that say what you just proposed but nor are there any cases that say that the hyde amendment does not reach down to agents whose actions help frame the very prosecution that we claim not only showed an intent on the part of the united states to harass but that the case had no merit i mean if the case had merit one would assume that the trial judge in her order would have referenced the trial record all she did was say that there were she said seven witnesses listed you losing time if you could briefly distinguish what appears to be maybe workplace harassment with what you believe rises to the level of fixations conduct on behalf of the as rape victim interview we think in a vexatious way they brought her in believing her believing this mix and believe that she was the victim she was being treated as the victim whereas d'souza well knew and i assume the other agents did too that there was this parallel investigation going on by the o m g of miss nixon where they claimed you know i g was looking at her as the victim d'souza had worked with the oil g agents in conducting interviews of inmates in august he decides to give all of his reports to the oh i g to help further their investigation of her as the perpetrator of the crime whereas he's claiming to her and letting her believe that in fact she's the victim so they bring her into this interview where she thinks she's being treated as the victim and without having any kind of notice that she was being looked at as the perpetrator and we think that i mean before when she had been investigated she had and had been interviewed by the bureau of prisons she had always been advised that that she was being in or you know being looked at as a possible perpetrator and i'm  thank you yours  calling your honor in this case the united states did not rely on the agent's investigative behavior the united states put on the testimony of the underlying witnesses who the agent spoke to the jury was never asked to evaluate the region's characterizations of the witnesses statements the jury heard directly from the witnesses but here are it's telling isn't it that this is a norman testified possibly because there was no or something like that that would have had to have been revealed that is that is correct your honor i've had the agents did not testify in this case but that is just not material to the hyde amendment standard which looks to the government's litigating position now as it stands there are other vehicles that a person who feels aggrieved by government agents can use to obtain some sort of redress there's a big if it's action there's a federal tort claims action potentially a high demand claim just isn't the right vehicle for a claim directed solely at agent misconduct as this court has recognized the hyde amendment is targeted toward prosecutorial misconduct and in the only case that really addresses this issue the th circuit and united states v monson held that even where there prosecutorial misconduct unless the star even where there is even misconduct unless the prosecutors themselves participate in that wrongdoing the hyde amendment claim won't lie there the agents obtain a search warrant through and after using an affidavit that contained frank's errors and the district the district court ended up dismissing the indictment the defendant moved for hyde amendment fees the th circuit held that even though there had been a franks violation in order to determine whether hyde amendment liability would lie you would need to look beyond just the actions of the agents and toward the prosecutors and whether they had participated in that wrongful behavior now so dr doolittle if i could ask you a question could mixon still at this point filed that at the time i'm not sure she could file that in this case because this is a criminal docket and the hyde amendment motion arises out of a criminal case she might need to she would need to file a separate action separate lawsuit that is correct your honor thank you now in this case your honor the miss mixing concedes that the assistant u s attorneys involved in this prosecution did nothing wrong in her words both the objective and the subjective showings and if there are no further questions your honor i know no question thank you nixon for instance he wrote reports claim the she refused to give a statement and when she had he wrote that brokaw an inmate who had was in a secure area had clean the bathroom after the infinite as ordered by mixon but d'souza never even asked brokaw whether or not that happened what he did d'souza wrote inners report what goings told him and credited those words to brokaw but the back on the whole issue of of the language if in fact the hyde amendment was designed to only look at prosecutorial misconduct one would have assumed that that language would be in there rather than the