[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-10543

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ANNAMALAI ANNAMALAI, 

a.k.a. Dr. Commander Selvam, 

a.k.a. Swamiji Sri Selvam Siddhar, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:13-cr-00437-TCB-CMS-1

____________________

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2 Opinion of the Court 20-10543

Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.

PER CURIAM:

In 2014, following a lengthy trial, a jury convicted 

Annamalai Annamalai of 34 criminal offenses, including conspiracy 

to commit bank fraud, bank fraud, filing a false federal income tax 

return, conspiracy to commit bankruptcy fraud, bankruptcy fraud, 

money laundering, making a false statement in writing, 

obstruction of justice, making false statements under oath during a 

bankruptcy proceeding, and conspiracy to harbor a fugitive. See 

United States v. Annamalai, 939 F.3d 1216, 1221–22 (11th Cir. 2019) 

(Annamalai I). On appeal, we reversed his convictions for 

conspiracy to commit bankruptcy fraud, bankruptcy fraud, money 

laundering, and conspiracy to harbor a fugitive. Id. at 1225–35. We 

affirmed his remaining convictions and remanded for resentencing. 

Id. at 1221, 1238–39. 

Following our decision and prior to resentencing,

Annamalai filed a motion for attorney’s fees under the Hyde 

Amendment for the counts that we reversed on direct appeal, 

along with a related motion for summary judgment and a motion 

to compel production of documents. The district court denied 

these motions, and Annamalai appealed. After review and with the 

benefit of oral argument, we affirm.

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20-10543 Opinion of the Court 3

I. Background 

A. Annamalai’s Trial and Direct Appeal

Annamalai, “a self-proclaimed Hindu priest,” ran the Hindu 

Temple and Community Center of Georgia, Inc. in Norcross, 

Georgia from 2005 to 2009. United States v. Annamalai, 939 F.3d 

1216, 1221 (11th Cir. 2019). “The Hindu Temple generated income 

in part by charging fees for religious and spiritual products and 

services, including religious ceremonies and horoscopes.” Id. 

“The evidence at trial showed that Mr. Annamalai used the Hindu 

Temple as part of a criminal scheme to defraud his followers and 

commit bank fraud.” Id. Specifically, he made unauthorized 

transactions on his followers’ credit cards, and then, if they

complained, he would cite to the temple’s “no refund” policy. Id. 

He also submitted false documents and information to banks and 

law enforcement to justify the charges. Id. He “used the fraud 

proceeds to fund a lavish lifestyle, including multiple homes and 

expensive cars.” Id. The Hindu Temple filed for Chapter 11 

bankruptcy in 2009 and the bankruptcy trustee closed the temple. 

Id. at 1221–22. Meanwhile, Annamalai incorporated a new temple, 

which also provided religious and spiritual products and services 

for a fee. Id. at 1222. 

In 2013, a grand jury in the Northern District of 

Georgia returned an indictment against Mr. 

Annamalai and others. The government 

subsequently obtained two superseding indictments. 

The second superseding indictment charged Mr. 

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4 Opinion of the Court 20-10543

Annamalai with 34 criminal offenses: conspiracy to 

commit bank fraud in violation of 18 U.S.C. §§ 1349 

and 1344 (Count 1); bank fraud in violation of 18 

U.S.C. §§ 1344 and 2 (Counts 2–8); filing a false federal 

income tax return in violation of 26 U.S.C. § 7206(1) 

(Count 9); conspiracy to commit bankruptcy fraud in 

violation of 18 U.S.C. §§ 371 and 152(1) (Count 10); 

bankruptcy fraud in violation of 18 U.S.C. §§ 152(1) 

and 2 (Counts 11–20); money laundering in violation 

of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts 21–30); 

making a false statement in writing in violation of 18 

U.S.C. §§ 1001(a)(3) and 2 (Count 31); obstruction of 

justice in violation of 18 U.S.C. §§ 1503 and 2 (Count 

32); making false statements under oath in a 

bankruptcy proceeding in violation of 18 U.S.C. 

§§ 152(2) and 2 (Count 33); and conspiracy to harbor 

a fugitive in violation of 18 U.S.C. §§ 1071 and 371 

(Count 34).

Id. The monies received by the new temple served as the basis for 

the bankruptcy fraud charges. Id. A jury convicted Annamalai of 

all 34 counts. Id.

On appeal, we reversed Annamalai’s convictions for 

substantive bankruptcy fraud (Counts 11–20), conspiracy to 

commit bankruptcy fraud (Count 10), money laundering (Counts 

21–30), and conspiracy to harbor a fugitive (Count 34). Id. at 1228–

35. As to sentencing, we determined that the district court erred in 

its loss-amount determination related to the bank fraud counts, 

which affected the guidelines’ calculation and required 

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20-10543 Opinion of the Court 5

resentencing. Id. at 1235–38. We affirmed the other sentencing 

enhancements and remanded the case for further proceedings. Id.

at 1238–39 & n.5. 

B. The Hyde Amendment Proceedings

 Following our decision in Annamalai I and prior to 

resentencing, Annamalai filed a pro se motion for attorney’s fees 

and expenses under the Hyde Amendment, seeking to recover fees 

and expenses incurred in defending against the counts of 

conviction that we reversed on direct appeal. He maintained that 

the government’s prosecution on those counts was “frivolous, 

[v]exatious, or in bad faith” and “utterly without foundation in law 

or fact.” That same day, he filed a pro se notice stating that he had 

served the government with a request for admissions under 

Federal Rule of Civil Procedure 36. 

Approximately a month later, he filed a pro se motion for 

summary judgment on the Hyde Amendment claim. He asserted 

that the government had not answered his request for admissions,

and, therefore, all were deemed admitted, and he was entitled to 

summary judgment on his Hyde Amendment motion.1 

Annamalai also filed a motion to compel production of certain 

documents, including any e-mails, excluding privileged materials, 

1 One of the requests for admissions was that all of the charges against 

Annamalai were “bogus, and brought with a vexatious and bad faith intent,” 

and that the government had “orchestrated a massive malicious prosecution” 

against him. 

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6 Opinion of the Court 20-10543

that related to him, his wife, his former business partner, and any 

Hindu temples or business entities with which any of those 

individuals were involved—which he claimed was related to his 

Hyde Amendment motion. 

The district court denied all three motions in an omnibus 

order, explaining that the Hyde Amendment 

allows attorney’s fees if a prosecution is brought 

vexatiously, in bad faith, or so utterly without legal or 

factual foundation as to be frivolous. This is not the 

case here. A jury convicted Annamalai of [the 

reversed] counts and, although the Eleventh Circuit 

reversed the conviction[s], it is a far stretch from the 

type of prosecution for which the Hyde Amendment 

provides relief. 

(internal citations omitted). Annamalai, proceeding pro se, 

appealed. Meanwhile, he awaited resentencing. We appointed 

counsel to represent Annamalai and held oral argument.

During the pendency of this appeal, the district court held 

the resentencing hearing and resentenced Annamalai to 216 

months’ imprisonment, followed by five years’ supervised release. 

With this procedural background in mind, we turn to the 

arguments on appeal.2 

2 We issued a jurisdictional question, asking the parties to address whether the 

district court’s omnibus order was a final order or otherwise immediately 

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20-10543 Opinion of the Court 7

II. Standard of Review 

We review the district court’s award or denial of attorney’s 

fees and costs under the Hyde Amendment for abuse of discretion. 

United States v. Adkinson, 247 F.3d 1289, 1290 (11th Cir. 2001); 

United States v. Gilbert, 198 F.3d 1293, 1296–98 (11th Cir. 1999). 

“An abuse of discretion occurs if the judge fails to apply the proper 

legal standard or to follow proper procedures in making the 

determination, or bases an award or a denial upon findings of fact 

appealable. We have appellate jurisdiction over only “final decisions of the 

district courts.” 28 U.S.C. § 1291. 

Annamalai argued that the district court’s order was final and 

appealable under § 1291 because a Hyde Amendment motion constituted a 

separate, ancillary civil proceeding, and the order ended the litigation on the 

Hyde Amendment motion. The government, on the other hand, argued that 

we lacked jurisdiction to review the order because the Hyde Amendment 

motion is part of the underlying criminal action and, therefore, the order 

would be final only upon Annamalai’s resentencing. 

However, Annamalai’s resentencing is now complete. Accordingly, 

we have jurisdiction under § 1291 to review the district court’s denial of the 

Hyde Amendment motion. See United States v. Curry, 760 F.2d 1079, 1079–

80 (11th Cir. 1985) (explaining that, in a criminal case, a “premature notice of 

appeal is effective to perfect an appeal as of the date the sentence is entered as 

the judgment”); see also OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 

F.3d 1344, 1356, 1359 (11th Cir. 2008) (explaining that “when [an] appeal is 

from a final judgment, the fact that the appeal substantively concerns an 

interlocutory ruling is no bar to jurisdiction”). Therefore, we need not decide 

whether the filing of a Hyde Amendment motion constitutes a separate civil 

proceeding or is part of the underlying criminal action.

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8 Opinion of the Court 20-10543

that are clearly erroneous.” Gilbert, 198 F.3d at 1298 (alterations 

adopted) (quotations omitted).

III. Discussion 

Annamalai argues that the district court abused its discretion 

in denying his Hyde Amendment motion because it applied the 

wrong legal standard and because the government’s unanswered 

request for admissions established that Annamalai was entitled to 

relief. 

The Hyde Amendment provides in pertinent part:

[T]he court, in any criminal case (other than a case in 

which the defendant is represented by assigned 

counsel paid for by the public) . . . may 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, unless the court finds that special circumstances 

make such an award unjust. Such awards shall be 

granted pursuant to the procedures and limitations 

(but not the burden of proof) provided for an award 

under section 2412 of title 28, United States Code.

Pub. L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 

18 U.S.C. § 3006A, historical and statutory notes). The criminal 

defendant bears the burden of proving by a preponderance of the 

evidence that he is entitled to the fee award. Adkinson, 247 F.3d at

1291. In order to be entitled to a Hyde Amendment award, the 

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20-10543 Opinion of the Court 9

defendant must do more than show that he “prevailed at the 

pre-trial, trial, or appellate stages of the prosecution.” Gilbert, 198 

F.3d at 1299. Rather, a defendant faces the “daunting obstacle” of 

“show[ing] that the government’s position underlying the 

prosecution amounts to prosecutorial misconduct—a prosecution 

brought vexatiously, in bad faith, or so utterly without foundation 

in law or fact as to be frivolous.” Id. at 1299, 1302. 

For Hyde Amendment purposes, 

[v]exatious means without reasonable or probable 

cause or excuse. A frivolous action is one that is 

[g]roundless . . . with little prospect of success; often 

brought to embarrass or annoy the defendant. [B]ad 

faith is not simply bad judgment or negligence, but 

rather it implies the conscious doing of a wrong 

because of dishonest purpose or moral obliquity; . . . 

it contemplates a state of mind affirmatively 

operating with furtive design or ill will. 

United States v. Shaygan, 652 F.3d 1297, 1312 (11th Cir. 2011) 

(second and third alterations in original) (internal citations and 

quotations omitted). “[T]he Supreme Court has explained that, in 

all but an exceptional case, ‘so long as the prosecutor has probable 

cause to believe that the accused committed an offense defined by 

statute, the decision whether or not to prosecute, and what charge 

to file or bring before a grand jury, generally rests entirely in his 

discretion.’” Id. at 1315 (quoting Bordenkircher v. Hayes, 434 U.S. 

357, 364 (1978)).

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10 Opinion of the Court 20-10543

The district court denied Annamalai’s Hyde Amendment 

related motions, concluding that his prosecution was not brought 

vexatiously, in bad faith, or legally frivolous. The district court’s 

decision was correct because Annamalai failed to demonstrate his 

entitlement to a fee award. 

Although Annamalai argues that our opinion on direct 

appeal reversing the bankruptcy fraud convictions demonstrated 

that the government’s position was legally frivolous as a matter of 

law, his argument is meritless. We reversed Annamalai’s 

bankruptcy fraud convictions after determining that inclusion of 

the post-bankruptcy petition monies received by the new temple—

the only basis for the bankruptcy fraud charges—would contravene 

the plain language of relevant bankruptcy statutes that defined the 

bankruptcy estate. Annamalai I, 939 F.3d at 1228–29. Accordingly, 

the bankruptcy fraud charges could not stand. Id. But our 

conclusion in Annamalai I does not demonstrate that the 

government’s position was legally frivolous. 

As we noted in Annamalai I, the bankruptcy trustee 

incorrectly opined that the receivables of the new temple were 

property of the bankruptcy estate. Id. at 1229. Additionally, the 

government believed that the Hindu temple and the new temple 

were essentially alter egos—i.e., that they were the same business. 

Id. at 1230–31. Although we determined on direct appeal that 

those conclusions were incorrect and based on a misunderstanding 

of bankruptcy law, id., an incorrect interpretation of the law or a 

misunderstanding of the law does not make a prosecution legally 

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20-10543 Opinion of the Court 11

frivolous. Thus, because the government legitimately believed, 

albeit erroneously, that the post-petition receivables of the new 

temple were part of the bankruptcy estate and that the Hindu 

temple and the new temple were alter egos, its prosecution was not 

vexatious, in bad faith, or legally frivolous. Shaygan, 652 F.3d at 

1315, 1317. Accordingly, the district court had no discretion to 

award Annamalai fees or costs under the Hyde Amendment.

Annamalai argues that the district court applied an improper 

legal standard in denying his Hyde Amendment motion because 

the district court based its denial on the fact that he was convicted 

by a jury. He maintains that there is no limitation on Hyde 

Amendment relief for defendants that were convicted by a jury but 

later prevailed on appeal, and that it is entirely plausible that the 

government can convince a jury to convict in a legally frivolous 

case—as it did in his case. His argument is unpersuasive. 

Although the district court mentioned in the order denying 

the Hyde Amendment motion that Annamalai had been convicted 

by a jury, the court did not improperly apply that fact in its 

determination of his entitlement to the fee award. Rather, the 

district court properly identified that the Hyde Amendment 

“allows attorney’s fees if a prosecution is brought vexatiously, in 

bad faith, or so utterly without legal or factual foundation as to be 

frivolous”—which is the correct legal standard. And it applied that 

legal standard when it determined that Annamalai’s case was “a far 

stretch from the type of prosecution for which the Hyde 

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12 Opinion of the Court 20-10543

Amendment provides relief.” Accordingly, the district court did 

not apply an improper legal standard. 

Alternatively, Annamalai argues that the district court erred 

in denying his Hyde Amendment motion and his related motion 

for summary judgment and motion to compel because it ignored 

the fact that the government failed to respond to his Rule 36 

request for admissions and therefore those admissions—which 

included three statements that the government’s prosecution was 

malicious, in bad faith, vexatious, and frivolous—were admitted. 

Accordingly, he claims that he made the required showing for a fee 

award. Annamalai’s argument is meritless. Even assuming that 

Rule 36 applies to his case—a question on which we express no 

opinion because we do not reach whether a Hyde Amendment

motion is a separate civil proceeding or part of the underlying 

criminal action—a party cannot use Rule 36 to request admissions 

to legal conclusions. See Fed. R. Civ. P. 36(a)(1) (authorizing a 

party to request admissions to “facts, the application of law to fact, 

or opinions about either”); see also Pickens v. Equitable Life 

Assurance Soc’y of the U.S., 413 F.2d 1390, 1393 (5th Cir. 1969) 

(holding that “requests for admissions as to central facts in dispute 

are beyond the proper scope of [Rule 36]”). And, regardless, even 

if the government were deemed to have made the alleged 

admissions, we are not bound to accept the government’s 

concessions. United States v. Watkins, 13 F.4th 1202, 1210 (11th 

Cir. 2021); see also United States v. Colston, 4 F.4th 1179, 1187 

(11th Cir. 2021) (explaining that courts are never bound by 

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20-10543 Opinion of the Court 13

concessions on questions of law). Rather, the determination of 

whether a government’s prosecution was vexatious, frivolous, 

malicious or in bad faith is reserved for the court.

Accordingly, we affirm the district court’s order.

AFFIRMED. 

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