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)
2

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 standard 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 
3

appropriate vehicle to criticize the conduct of law enforcement 

officers or second-guess the management of a criminal prosecution.

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 frivolous and in bad faith. Although assuredly born of good intentions 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 reverse.

I. BACKGROUND

The relevant background can be divided into three stages. 

First, Reyes-Romero, a noncitizen,1 was subject to an administrative 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 under 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 question 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 national of the United States.” Pereira v. Sessions, 138 S. Ct. 

2105, 2110 n.1 (2018). 
4

A. 2011 Administrative Removal Proceeding

Reyes-Romero, an El Salvadoran national, entered the 

United States unlawfully in 2004. In 2008, the Department of 

Homeland Security (DHS) initiated removal proceedings on 

the ground that he was “present in the United States without 

[having] be[en] admitted or paroled,” 8 U.S.C. 

§ 1182(a)(6)(A)(i). A year later, after Reyes-Romero pleaded 

guilty to aggravated assault in New Jersey state court,2 DHS 

aborted the § 1182 proceeding and placed him in expedited administrative removal on the ground that his conviction constituted an “aggravated felony,” 8 U.S.C. § 1228(b)(1), namely a 

“crime of violence,” id. § 1101(a)(43)(F) (incorporating 

18 U.S.C. § 16’s definition).

In 2011, DHS officers Trushant Darji and Jose Alicea conducted Reyes-Romero’s administrative removal proceeding. 

The officers first served him with a Form I-826, which sets out 

a “Notice of Rights and Request for Disposition.” App. 180. 

It is unclear why they did so, as the I-826 does not apply to 

noncitizens in expedited removal because of an aggravated felony conviction. For instance, the I-826 instructed ReyesRomero he “ha[d] the right to a hearing before the Immigration 

Court,” id., even though administrative removal is conducted

2 The statute under which Reyes-Romero was convicted

makes it a second-degree felony to “[a]ttempt[] to cause serious bodily injury to another, or cause[] injury purposely or 

knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly cause[] such injury.” N.J. Stat. Ann. § 2C:12-1(b)(1). He was sentenced to 

time served (397 days) and three years’ supervised release.
5

by immigration officers outside of the Immigration Court, see

8 U.S.C. § 1228(a)(3), (b)(1). Adding to the confusion, two 

boxes on the I-826 corresponding with contradictory declarations were checked, indicating Reyes-Romero had both “request[ed] a hearing before the Immigration Court” to determine his right to remain in the country and had “give[n] up 

[his] right to a hearing” so he could be returned to El Salvador. 

App. 180.

The officers then presented Reyes-Romero with the applicable form—a Form I-851, the “Notice of Intent to Issue a Final Administrative Removal Order” that governs noncitizens

who are charged with having committed an aggravated felony. 

App. 96–97. The I-851 informed Reyes-Romero of the

grounds for expedited removal, his ability to contest those 

grounds, and the option to raise any “fear [of] persecution” related to his return to El Salvador. Id. That form indicated

Reyes-Romero conceded removability, “acknowledge[d] that 

[he was] not eligible for any form of relief from removal,” and 

waived judicial review. App. 97. But close examination of the 

I-851 reveals it to be irregular. Reyes-Romero apparently executed the waiver of his rights at 9:00 AM—twenty minutes 

before the time stamp next to a certification that the form had 

been translated into Spanish for his benefit and forty minutes 

before the time stamp accompanying the relevant DHS supervisor’s issuing signature.

Reyes-Romero received a final administrative removal order that afternoon and was later removed to El Salvador.
6

B. Unlawful Reentry Prosecution

Reyes-Romero returned to the United States without inspection and, after he was found and detained, a federal grand 

jury returned an indictment charging him with unlawful reentry 

in violation of 8 U.S.C. § 1326. He did not contest any of the 

elements of that offense—that he had been “removed” and was 

later “found in” the country without express consent, 8 U.S.C. 

§ 1326(a). 

Instead, Reyes-Romero moved to dismiss the indictment 

under a statutory provision allowing him to “challenge the validity of the [removal] order” on which the prosecution was

based, 8 U.S.C. § 1326(d). Under § 1326(d), a defendant bears 

the burden of showing that (1) he “exhausted any administrative remedies that may have been available to seek relief 

against the [removal] order”; (2) the removal proceedings “improperly deprived [him] of the opportunity for judicial review”; and (3) the “entry of the [removal] order was fundamentally unfair.” Richardson v. United States, 558 F.3d 216, 223 

(3d Cir. 2009) (quoting 8 U.S.C. § 1326(d)(1)–(3)). “Fundamentally unfair” means “both [(a)] that some fundamental error occurred and [(b)] that as a result of that fundamental error 

[the defendant] suffered prejudice.” United States v. 

Charleswell, 456 F.3d 347, 358 (3d Cir. 2006). 

Reyes-Romero’s motion advanced two arguments. First, 

the 2011 administrative removal proceeding, with its contradictory forms and the “inconsisten[t]” selections on the I-826, 

“had an impermissible tendency to mislead” him and invalidated any waiver of his rights. App. 71. Second, the proceeding was “fundamentally unfair” because he had not committed 
7

an aggravated felony and therefore was entitled to a full hearing before an immigration judge (IJ).

3

 App. 72. 

The Government resisted on both fronts. In its view, 

Reyes-Romero’s I-851 waiver was valid and overcame any inconsistency on the I-826, and as a result he had failed to exhaust administrative remedies or seek judicial review as required by § 1326(d)(1) and (2). And in any event he failed to 

show prejudice as required by § 1326(d)(3) because he had not 

demonstrated “a reasonable likelihood that the result”—i.e.,

the removal order—“would have been different” but for the errors he identified. App. 225 (quoting Charleswell, 456 F.3d at 

362). 

The District Court held a hearing on the § 1326(d) motion. 

It first addressed the I-851 waiver and its effect on § 1326(d)’s

3 In Baptiste v. Attorney General, 841 F.3d 601 (3d Cir. 

2016)—a case involving the same offense of which ReyesRomero was convicted—we held that 18 U.S.C. § 16(b), the 

“residual” clause of the federal crime-of-violence definition, is 

void for vagueness. 841 F.3d at 615–21. Baptiste’s reasoning 

was ultimately embraced by the Supreme Court in Sessions v. 

Dimaya, 138 S. Ct. 1204, 1210 (2018). But Baptiste avoided 

the question whether New Jersey second-degree aggravated assault qualifies as a crime of violence under § 16(a), the crimeof-violence definition’s “elements” clause. 841 F.3d at 606 

n.4. As discussed below, that question turns on whether a state 

crime capable of commission by reckless conduct can categorically satisfy the elements clause, an issue that remains unresolved. See Borden v. United States, 140 S. Ct. 1262 (2020)

(granting certiorari on this issue).
8

exhaustion and judicial-review requirements. The Court expressed concerns not only with the “inconsistent” nature of the 

I-826 and I-851 forms but also with the I-851’s time stamps 

suggesting Reyes-Romero had been informed of his rights after signing the waiver—an argument Reyes-Romero had not 

developed in his brief. The Court told Adam Hallowell, the 

Assistant United States Attorney (AUSA) prosecuting the case, 

that the Government was “in a deep hole” because the immigration forms were “facially at odds with themselves.” 

App. 283. 

The Government called Officers Darji and Alicea as witnesses. Each had no memory of Reyes-Romero or his proceeding and had handled a substantial number of immigration cases 

in the years since 2011, so they testified only to general practices. Darji explained that he often worked with native Spanish 

speakers like Alicea to serve immigration forms on noncitizens 

in DHS custody. Noncitizens charged with having committed 

aggravated felonies would first receive the “more general” 

I-826 form before receiving the I-851 form “specific to administrative removal.” App. 294. The noncitizen would typically 

“hold the pen” and make necessary selections. App. 291. If 

the noncitizen made contradictory or nonsensical selections, 

the officers would confirm his intent but otherwise leave those

selections untouched.

The District Court, interposing its own questions at the 

hearing, pressed Officer Darji about Reyes-Romero’s forms:

THE COURT: . . . [A]m I reading the[se forms] accurately that within moments of 9 o’clock in the morning 

on June 23rd, 2011, several things had occurred pretty 

much all at once. This defendant was told he had a right 
9

to request a hearing. He requested a hearing. He said 

he didn’t want a hearing. And he was told he couldn’t 

have a hearing. Am I reading those forms correctly, sir?

THE WITNESS: Yes.

THE COURT: Does that make any sense at all to you, 

sir?

THE WITNESS: No, Your Honor.

App. 331. The District Court took Officer Darji’s response to 

mean that “the process that was used” in Reyes-Romero’s removal proceeding did not “ma[k]e . . . sense.” App. 476. 

Based on that concession and the defects in ReyesRomero’s forms, the District Court made clear it was “highly 

likely . . . [to] conclude that there was no voluntary and intelligent waiver” and therefore that “the first two prongs of 

[§ 1326(d)] will have been fulfilled.” App. 474–75.

The parties’ attention therefore turned to the “only open issue”: prejudice. App. 543. At first, Reyes-Romero repeated 

the argument he had advanced in his brief: that the misidentification of his crime of conviction as an aggravated felony itself constituted prejudice. But after the District Court pressed 

him about “the reasonable likelihood of some different result” 

in the removal proceeding, App. 442, he switched gears, arguing that he could have sought asylum or withholding of removal. To bolster that novel argument, he offered testimony 

from relatives who had suffered abuses in El Salvador or in 

neighboring Honduras. Seeking more support, Reyes-Romero 

requested his relatives’ A-files, and the parties set out on a multiweek process to get them from DHS. The Court held Reyes-
10

Romero’s motion while that process was underway and requested supplemental briefing to be filed once it was complete. 

While his § 1326(d) motion was pending, Reyes-Romero 

moved for bond. The District Court expressed concern that,

were Reyes-Romero to be released, DHS officials would detain 

him, reinstate the 2011 removal order, and remove him to El 

Salvador. The Court also wondered aloud whether DHS would 

take different action if Reyes-Romero were released after the 

Government had “move[d] to dismiss the indictment,” 

App. 566. 

The Government soon came back with a surprise: a motion 

to dismiss the indictment with prejudice under Federal Rule of 

Criminal Procedure 48.4

 It explained that based on the evidence at the first hearing “and on additional factual information 

that ha[d] come to [its] attention” since then, dismissal was “in 

the interests of justice.” App. 603. In another surprise, ReyesRomero opposed the Government’s motion, contending the 

District Court should grant it only if it also intervened in future 

immigration proceedings by expressly “barr[ing] [the Government] from removing [him] on the basis of the [2011 removal]

[o]rder.” App. 608.

When the parties convened for a hearing to address the 

Government’s motion to dismiss, the Government clarified 

that the “additional . . . information” to which it had referred 

came from Reyes-Romero’s relatives’ A-files, some of which 

“support[ed] the testimony” he had offered in support of relief 

4 “The government may, with leave of court, dismiss an indictment . . . .” Fed. R. Crim. P. 48(a). 
11

from removal. App. 645. The Government’s decision to seek 

dismissal, it explained, was based on the “litigation risk to th[e] 

[§ 1326(d)] affirmative defense” and the “time and expense” 

necessary to continue the prosecution. App. 646. But the District Court was hesitant, asking the Government whether 

Reyes-Romero risked detention or removal even after dismissal with prejudice, to which the Government replied that it 

“c[ould] [not] speak for DHS,” App. 617. The Court also noted 

its views that the DHS officers’ testimony had been “bizarre” 

and possibly untruthful, App. 634–35, and that ReyesRomero’s 2011 removal “was not . . . consistent with the highest traditions of the American legal system,” App. 657. Still, 

the Court made clear it was not accusing the prosecution “of 

any wrongdoing whatsoever,” App. 634, and suggested the

Government’s decision not to proceed with the prosecution

was “how we want the system to work,” App. 635.

Yet when the hearing resumed the next day, the District 

Court’s assessment had evolved. It now expressed the view 

that the DHS officers’ testimony was not just “bizarre,” but a 

mix of “lies” and “law enforcement outrageousness.” 

App. 677. And it recalled Officer Darji’s answer to its line of 

questioning to have meant not just that “the process . . . used” 

in the removal proceeding did not “ma[k]e any sense,” 

App. 476, but that “his [own] testimony made no sense,” 

App. 678 (emphasis added). Most significant, the Court no 

longer deemed AUSA Hallowell blameless, but as needing to 

make a “choice” about whether he would “continue to rely on 

th[e] [officers’] testimony.” App. 678–79. Even if the prosecution was not responsible for errors in the removal proceeding, it said, there “come[s] a point where” the Government 
12

“adopt[s]” those errors as its own. App. 679. The Court again 

held all motions open pending further briefing. 

In an effort to respond to the concerns voiced by the District 

Court, the Government filed a supplemental brief raising two

points: First, the District Court lacked jurisdiction to condition 

a Rule 48 dismissal on the actions of an independent department—here, on DHS’s forgoing future removal proceedings 

based on the 2011 order. Second, the Government made unambiguous that it was not “rely[ing] on or adopt[ing]” the DHS 

officers’ testimony and was no longer contesting any element 

of the § 1326(d) defense “other than the issue of prejudice.” 

App. 755.

But the Government’s brief came with yet another surprise. 

At the start of the prosecution, the U.S. Attorney’s Office had 

received black-and-white copies of Reyes-Romero’s A-file

from DHS and had shared those files with Reyes-Romero’s 

counsel. Neither counsel had previously asked to inspect the 

originals. But before filing its supplemental brief, the prosecution obtained the original documents, which revealed that the 

two inconsistent checks on the I-826—one requesting a hearing, the other waiving it—were made in different colors. And 

based on the ink color, it appeared the DHS officer who signed 

the form had filled in the box corresponding to ReyesRomero’s waiver of rights. Even more odd, the waiver box 

featured a blue mark drawn over a pre-printed black “x,” suggesting the DHS officers had given Reyes-Romero a pre-filled 

form. AUSA Hallowell immediately disclosed the color versions of the documents to Reyes-Romero’s counsel and to the 

Court. 
13

After reviewing the color copies, the District Court was 

“more convinced than ever” that the DHS officers’ testimony 

was a “combination of nonsense . . . [and] lies.” App. 792. 

And it continued to criticize the prosecution. The Court took 

issue, for instance, with AUSA Hallowell’s repeated statements that, as an AUSA assigned to a criminal prosecution, he 

could not unilaterally bind DHS to a specific course of conduct 

in future immigration proceedings. It also criticized the Government for not adequately “disclaim[ing]” the DHS officers’ 

testimony:

MR. HALLOWELL: Your Honor, we are saying that 

we will not rely on that testimony moving forward in 

this case.

THE COURT: Why? Why won’t you rely on it?

MR. HALLOWELL: Your Honor, we don’t feel that 

that testimony can support a verdict for the Government 

on the first two prongs of [§ 1326(d)].

THE COURT: If believed, it’s legally insufficient? Or 

I shouldn’t believe it?

MR. HALLOWELL: We understand that Your Honor 

will make the final decision as to whether that testimony 

could be believed or not. . . .

THE COURT: Well, I understand that. I’m asking the 

lawyer for the United States of America, should I believe that testimony?

MR. HALLOWELL: Your Honor, you should give it 

as much weight as you see fit.
14

App. 795, 797. In the Court’s view, AUSA Hallowell’s refusal 

to “take a[] position” on the testimony conflicted with his obligations as a prosecutor. App. 798–99. And the District Court 

suggested that the Government had moved to dismiss in “bad 

faith” to ensure DHS officials could use the 2011 order in future immigration proceedings against Reyes-Romero rather 

than instituting a new removal proceeding through service of a 

notice to appear (NTA). App. 822–24. 

In response, the Government pointed out that months earlier, DHS officials had attempted to do just that, offering

Reyes-Romero an NTA that would have led to new proceedings before an IJ rather than reinstatement of the 2011 administrative removal order. But Reyes-Romero had rejected it. He 

gave two reasons for having done so: a theory that the Government’s choice to prosecute him for unlawful reentry precluded 

it from starting new removal proceedings5 and a desire to 

5 In support, Reyes-Romero cited several district court 

opinions holding that if a noncitizen is prosecuted for a criminal offense and is granted pretrial release, he cannot be seized

by DHS officials under an immigration detainer during the 

criminal proceeding. E.g., United States v. Hernandez-Bourdier, No. 16-cr-222-2, 2017 WL 56033, at *11 (W.D. Pa. 

Jan. 5, 2017). That line of cases is contrary to what we and our 

sister circuits have had to say on the matter, see, e.g., United 

States v. Soriano Nunez, 928 F.3d 240, 247–27 (3d Cir. 2019); 

United States v. Lett, 944 F.3d 467, 470–71 (2d Cir. 2019) (collecting decisions and joining the consensus), and in any event,

nothing in those cases suggests the decision to bring a § 1326 

prosecution forfeits DHS’s right to pursue immigration 
15

ensure that the District Court would reach the merits of his 

§ 1326(d) motion. 

With the District Court’s continued deferral of a ruling, the 

parties filed supplemental briefing on prejudice. ReyesRomero’s supplemental brief expanded the argument that but 

for the defects in his 2011 removal proceeding, there was “a 

reasonable likelihood,” Charleswell, 456 F.3d at 362, that he 

would have received asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The 

Government responded that Reyes-Romero was ineligible for 

asylum because his assault conviction qualified as an aggravated felony; that he was ineligible for withholding of removal 

because the assault offense was a “particularly serious crime,” 

8 U.S.C. § 1231(b)(3)(B)(ii); and that he was not reasonably 

likely to prevail in seeking CAT protection or any other form 

of relief from removal. In his reply brief, Reyes-Romero unearthed a new argument: dicta from Charleswell, an early decision on § 1326(d), suggesting “[t]here may be some cases 

where the agency’s violations of a [noncitizen’s] rights [ar]e so 

flagrant, and the difficulty of proving prejudice so great, that 

prejudice may be presumed.” 456 F.3d at 362 n.17 (citation 

omitted).

The District Court ultimately granted Reyes-Romero’s 

§ 1326(d) motion. It ruled that the I-826 and I-851 forms were 

“shams” and that any waiver on those forms was invalid; that, 

“in light of the invalid waivers,” any failure to exhaust administrative remedies or seek judicial review as required by

proceedings against the noncitizen after the criminal prosecution ends. 
16

§ 1326(d)(1) and (2) must be excused; that the irregularities in 

Reyes-Romero’s removal proceeding constituted fundamental 

errors; and that those errors caused him prejudice, both because 

his claims for relief from removal were reasonably likely to 

succeed and because “the procedural defects were so central . . . that prejudice must be presumed” under footnote 17 of 

Charleswell. The Court therefore granted Reyes-Romero’s 

motion to dismiss “on the merits.” App. 1028. Doing so, the 

Court explained, would “serve[] to limit [Reyes-Romero’s] exposure to future” immigration proceedings “reliant on the . . . 

2011” order. App. 1031. 

Given that disposition, the District Court denied as moot 

Reyes-Romero’s pending motion for bond. But it did not do 

the same with the Government’s pending motion to dismiss. 

Instead, it took the “unusual” step, App. 1030, of proceeding 

to analyze the Government’s motion on the merits and denying 

it as “clearly contrary to manifest public interest.” Id. (quoting 

In re Richards, 213 F.3d 773, 787 (3d Cir. 2000)). The Court

found that the Government’s subjective motivation for its motion to dismiss was a desire to guarantee that DHS could rely 

on the 2011 removal order in future immigration proceedings. 

That motivation, it explained, “taint[ed]” the Government’s effort to have the case dismissed. App. 1032–33. Similarly 

problematic, the Court continued, was the Government’s “taking . . . a noncommittal position as to the credibility of” Officers Darji and Alicea, which the Court deemed inconsistent with 

the Government’s duty to correct a witness’s statement that is 

“obvious[ly]” untrue. App. 1037–38 (quoting United States v. 

Harris, 498 F.2d 1164, 1169 (3d Cir. 1974)). 
17

The District Court thus dismissed the indictment with prejudice. The Government did not appeal the District Court’s rulings on the motions to dismiss or the order of dismissal.

6

C. Hyde Amendment Application

Following that dismissal, Reyes-Romero timely applied to 

the District Court for attorney’s fees and costs under the Hyde 

Amendment.7

 Relying heavily on the findings in the Court’s

6 After the dismissal, DHS officers served Reyes-Romero 

with an NTA, initiating new removal proceedings in Immigration Court. Before the IJ, Reyes-Romero conceded removability but applied for asylum, withholding of removal, CAT relief, 

and cancellation of removal. The IJ denied his applications and 

ordered him removed, and the Board of Immigration Appeals 

(BIA) dismissed his appeal. His petition for review before the 

Sixth Circuit remains pending. Reyes-Romero v. Barr, No. 19-

03784 (6th Cir. Aug. 15, 2019).

7 Hyde Amendment awards are subject to “the procedures 

and limitations . . . under section 2412 of title 28,” 18 U.S.C. 

§ 3006A app., one of which is that the application must be filed 

“within thirty days of final judgment,” 28 U.S.C. 

§ 2412(d)(1)(B). That thirty-day deadline “begins when the 

government’s right to appeal the order has lapsed.” Johnson v. 

Gonzales, 416 F.3d 205, 208 (3d Cir. 2005) (citation omitted). 

Here, the District Court granted Reyes-Romero’s motion to 

dismiss the indictment on July 2, 2018; the Government’s window to appeal closed on August 1, 2018, see Fed. R. App. 

P. 4(b)(1)(B); and Reyes-Romero moved for a Hyde Amendment award on August 7, 2018. 
18

opinion resolving the parties’ motions to dismiss, ReyesRomero argued the Government had pursued an “egregious” 

prosecution that was “vexatious, frivolous, [and] in bad faith.” 

App. 1052–53 (citation omitted). 

The District Court awarded Reyes-Romero fees and costs, 

a decision it reached in five steps: First, because the Government did not appeal the order resolving the motions to dismiss, 

the Court deemed any “findings and conclusions in 

that . . . Opinion and Order final.” App. 4. Second, the Court 

determined that in assessing “the position of the United 

States,” 18 U.S.C. § 3006A app., it would consider not only

“the litigation position of the [Department of Justice (DOJ)]

through th[e] . . . U.S. Attorney’s Office” but also “the actions 

taken (or not taken) by the federal agency upon which the criminal case is based”—that is, DHS, including “the actions of 

DHS Officers in 2011.” App. 26–27. Third, borrowing a 

phrase used in the indictment, the Court deemed the deficiencies in Reyes-Romero’s immigration forms so apparent that it 

was “frivolous” for the Government to prosecute him on the 

ground that he “had been previously . . . removed from the 

United States pursuant to law.” App. 31 (citation omitted). 

Fourth, although the Court acknowledged that the Government’s arguments on § 1326(d)(3)’s prejudice requirement 

“did not brush up against any prosecutorial misconduct” and 

“were largely reasonable and based in law,” it reasoned that 

“this ‘good’ . . . [does not] sufficiently outweigh[] the ‘bad.’” 

App. 42. Finally, the Court found that the Government’s behavior “before and during the criminal prosecution . . . demonstrated conscious wrongdoing,” making the prosecution one 

brought “in bad faith” under the Amendment. App. 28. So the 

Court ordered the Government to pay Reyes-Romero’s costs 
19

and attorney’s fees, which it later calculated as $73,757.00. 

This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. § 3231, 

and we have jurisdiction under 28 U.S.C. § 1291. Despite a 

circuit conflict over whether an appeal from a Hyde Amendment application is civil or criminal for purposes of Federal 

Rule of Appellate Procedure 4, compare, e.g., United States v. 

Truesdale, 211 F.3d 898, 902–04 (5th Cir. 2000) (civil), with, 

e.g., United States v. Robbins, 179 F.3d 1268, 1269–70 (10th 

Cir. 1999) (criminal), we are assured of our jurisdiction and 

need not decide the issue because Reyes-Romero’s notice of 

appeal was timely filed even under Rule 4(b)’s shorter deadline. See United States v. True, 250 F.3d 410, 421 n.8 (6th Cir. 

2001) (taking this approach).

We review a Hyde Amendment award for abuse of discretion, United States v. Manzo, 712 F.3d 805, 809–10 (3d Cir. 

2013), “which occurs if the district court’s decision rests upon 

a clearly erroneous finding of fact, an errant conclusion of 

law[,] or an improper application of law to fact,” Ferreras v. 

Am. Airlines, Inc., 946 F.3d 178, 182 n.1 (3d Cir. 2019) (citation omitted).

III. DISCUSSION

A defendant seeking fees and costs under the Hyde Amendment bears the burden, United States v. Manzo, 712 F.3d 805, 

810 (3d Cir. 2013), of showing that the “position of the United 

States 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.). Those grounds for a cost- and fee-
20

shifting award were “curtailed significantly” from those in the 

more permissive Equal Access to Justice Act (EAJA) provision 

on which the Hyde Amendment was generally modeled.

United States v. Gilbert, 198 F.3d 1293, 1302–03 (11th Cir. 

1999). As a result, a criminal defendant seeking costs and fees

under the Hyde Amendment faces a “daunting obstacle.” 

Manzo, 712 F.3d at 810 (quoting United States v. Isaiah, 

434 F.3d 513, 519 (6th Cir. 2006)).

That obstacle is insurmountable here. Although ReyesRomero attempts to limit our review, contending that the District Court’s previous fact-finding is preclusive and that the 

Government has waived several of its arguments, we conclude 

those attempts are futile. And once we assess the complete

record, we perceive no basis for a Hyde Amendment award. 

From the inception of the prosecution and throughout the extensive briefing and hearings, the Government had objectively 

reasonable arguments that Reyes-Romero was not prejudiced 

by errors in his 2011 removal proceeding and thus could not 

prevail on his § 1326(d) challenge. The Government’s position, therefore, was not frivolous—a high bar requiring that the 

prosecution be “utterly without foundation in law or fact.” 

United States v. Monson, 636 F.3d 435, 440 (8th Cir. 2011) 

(citation omitted). Nor was the prosecution brought or maintained in bad faith—an equally high bar requiring an objective 

showing of “dishonest purpose or moral obliquity.” Manzo, 

712 F.3d at 811 (quoting Gilbert, 198 F.3d at 1299). Below, 

we address issue preclusion and waiver before turning to the 

merits of the Hyde Amendment application.
21

A. Threshold Issues

Reyes-Romero does not defend the District Court’s decision directly. Instead, he advances two arguments that, if accepted, would restrict our review of the bases for that decision. 

Neither is persuasive.

1. Issue preclusion

Reyes-Romero contends that findings and conclusions in 

the District Court’s opinion resolving the parties’ motions to 

dismiss were rendered “final and binding” by the Government’s decision to appeal not those rulings but only the award 

of fees and costs. Appellee’s Br. 1. In support, he cites cases 

involving the doctrine of issue preclusion, which holds that “a 

prior judgment . . . foreclose[es] successive litigation of an issue of fact or law actually litigated and resolved in a valid court 

determination essential to the prior judgment.” Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019) (alterations in original) 

(citation omitted). But issue preclusion does not apply here for 

three independent reasons.

First, as Reyes-Romero recognizes, issue preclusion applies only “in a subsequent action.” Appellee’s Br. 9 (quoting 

1 Restatement (Second) of Judgments § 27 (Am. Law Inst. 

1982)); see United States ex rel. Doe v. Heart Sol., PC, 

923 F.3d 308, 316 (3d Cir. 2019) (requiring that the issues be 

resolved in an “earlier case” (quoting Allen v. McCurry, 

449 U.S. 90, 95 (1980))); Hawksbill Sea Turtle v. FEMA, 

126 F.3d 461, 474 (3d Cir. 1997) (requiring that they be “decided in a previous action”); see also United States v. Briseno, 

843 F.3d 264, 270 (7th Cir. 2016) (noting that issue preclusion 

“applies to rulings in different proceedings, and not simply different stages within the same proceeding”). “Relitigation of 
22

issues previously determined in the same litigation,” on the 

other hand, “is controlled by principles of the law of the case 

doctrine rather than [issue preclusion].” Hull v. Freeman, 

991 F.2d 86, 90 (3d Cir. 1993) (emphasis added). 

Reyes-Romero’s criminal prosecution and Hyde Amendment application are, at least for these purposes, part of the 

“same litigation,” Hull, 991 F.2d at 90. The Amendment authorizes fee-shifting “in . . . criminal case[s],” 18 U.S.C. 

§ 3006A app. (emphasis added), and an application must be 

submitted “within thirty days of final judgment,” 28 U.S.C. 

§ 2412(d)(1)(B); see 18 U.S.C. § 3006A app. Although the issues involved in deciding a defendant’s guilt or innocence and 

those involved in a Hyde Amendment application are not identical, the latter flow directly from the former. An application 

for attorney’s fees and costs under the Amendment, therefore, 

is merely a “different stage[] within the same proceeding,” 

Briseno, 843 F.3d at 270 (emphasis omitted). So under Hull, 

if the District Court’s previous findings are to have binding effect, that effect must flow not from issue preclusion, but from 

the law-of-the-case doctrine.

That doctrine, however, is of no help to Reyes-Romero because “[a]n appellate court’s function is to revisit matters decided in the trial court.” Musacchio v. United States, 136 S. 

Ct. 709, 716 (2016). As a result, we are “not bound by district 

court rulings under the law-of-the-case doctrine,” id.; see Koppers Co. v. Aetna Cas. & Sur. Co., 158 F.3d 170, 173 n.4 (3d 

Cir. 1998) (“[T]he district court’s reference to ‘law of the case’ 

cannot bind this Court on appeal.”), and we owe no deference—beyond what the clear error standard of review demands—to findings in the District Court’s previous opinion.
23

Second, issue preclusion “cannot apply when the party 

against whom the earlier decision is asserted did not have a full 

and fair opportunity to litigate that issue.” Heart Sol., 923 F.3d 

at 316 (quoting Allen, 449 U.S. at 95). Without an “incentive 

to obtain a full and fair adjudication” of an issue, a party will 

not be bound by the court’s resolution of it. 1 Restatement 

(Second) of Judgments § 28(5). 

Here, however, the Government had no incentive to contest 

the District Court’s findings or appeal its gratuitous denial of 

the Government’s motion to dismiss. By the time the District 

Court resolved the parties’ motions to dismiss, the Government 

had long disclaimed reliance on the DHS officers’ testimony

and abandoned any argument on § 1326(d)’s exhaustion or judicial-review prongs. And given that the Government had 

agreed the prosecution should be dismissed, it comes as no surprise that it chose not to appeal the Court’s order of dismissal. 

We cannot impute to the Government an “incentive to . . . adjudicat[e],” 1 Restatement (Second) of Judgments § 28(5), factual findings made en route to a disposition it sought. Nor 

would it be prudent to do so, as a contrary rule “would force 

the [Government] to abandon . . . prudential concerns and to 

appeal every adverse decision in order to avoid foreclosing further review,” United States v. Mendoza, 464 U.S. 154, 161 

(1984), of any issues that might bear on a Hyde Amendment 

application.

Third, issue preclusion applies only where the issue in 

question was “essential to the prior judgment.” Nat’l R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 342 F.3d 242, 252 (3d 

Cir. 2003) (citation omitted). That limitation “is rooted in principles of fairness” and “ensures that preclusive effect is not 
24

given to determinations that did not receive close judicial attention . . . or that were unappealable by virtue of being incidental to a decision.” Jean Alexander Cosmetics, Inc. v. 

L’Oreal USA, Inc., 458 F.3d 244, 250 (3d Cir. 2006) (internal 

quotation marks and citation omitted). In defining whether an 

issue was “essential,” we ask whether it “was critical to the 

judgment or merely dicta.” O’Leary v. Liberty Mut. Ins. Co., 

923 F.2d 1062, 1067 (3d Cir. 1991).

The findings on which Reyes-Romero relies were not “critical to the judgment,” O’Leary, 923 F.3d at 1067, and thus are 

not entitled to preclusive effect. The dispositive parts of the 

District Court’s opinion were its determinations that ReyesRomero had satisfied each of the prongs of § 1326(d), which 

together entitled him to dismissal of the indictment. But none 

of those prongs demanded an assessment of prosecutorial motives: Section 1326(d) focuses on exhaustion, judicial review, 

and fundamental unfairness in relation to underlying removal

proceedings, and the Government’s motivation in bringing or 

maintaining a prosecution years later has no bearing on those 

issues.8

 Nor does the District Court’s decision to address and 

8 Nor do the findings related to the immigration officers’ 

misconduct in 2011 have preclusive effect because they contributed to the District Court’s determination that ReyesRomero had satisfied § 1326(d)’s exhaustion and judicial-review requirements. That is because, even beyond what we 

have already explained, issue preclusion applies only where the 

issue is “the same as that involved in the prior action.”

Karns v. Shanahan, 879 F.3d 504, 514 n.3 (3d Cir. 2018) (citation omitted). Here, however, there is a “lack of total identity,” 1 Restatement (Second) of Judgments § 27 cmt. c, 
25

deny the Government’s motion to dismiss give rise to preclusion. Indeed, once the Court granted Reyes-Romero’s 

§ 1326(d) motion on the merits, the Government’s own motion 

to dismiss became moot—a dynamic the District Court recognized with respect to the issue of release on bond—so the 

Court’s ruling on that motion and attendant findings were, in 

any event, beyond its jurisdiction.

9

between a finding of misconduct as related to the § 1326(d) 

affirmative defense and a finding of misconduct as it bears on 

whether the government’s litigation position was in bad faith 

under the Hyde Amendment.

9 We briefly address and reject two additional arguments. 

First, we have held “that independently sufficient alternative 

findings should be given preclusive effect” even where those 

findings “do not fulfill the necessity requirement . . . in a strict 

sense.” Jean Alexander Cosmetics, 458 F.3d at 255. But comments made in the course of denying the Government’s motion 

to dismiss cannot be viewed as alternative bases for the result 

here, which was a dismissal of the indictment. Second, although we have recognized that district courts have an “independent responsibilit[y]” to examine whether a Rule 48 motion 

to dismiss is “clearly contrary to manifest public interest,” 

App. 1030–31 (quoting In re Richards, 213 F.3d 773, 787–88 

(3d Cir. 2000)), we have never suggested that responsibility 

extends where the court has already granted a defendant’s separate motion to dismiss on the merits, leaving it with no live 

controversy with respect to the government’s motion. 
26

For these reasons, we reject Reyes-Romero’s argument that 

we are bound by findings or conclusions in the District Court’s

previous order. 

2. Waiver

Of course, even if our review is not limited by issue preclusion or the law of the case, it “may well be constrained by other 

doctrines such as waiver [or] forfeiture.” Musacchio, 136 S. 

Ct. at 716. Reyes-Romero seizes on those doctrines, arguing 

that the Government waived several arguments it advances on 

appeal by not pressing them before the District Court at the 

Hyde Amendment stage. We disagree.

Reyes-Romero identifies only two arguments he contends 

are waived: (i) that the delayed production of color copies of 

Reyes-Romero’s immigration forms was a “snafu” attributable

to Reyes-Romero’s counsel’s failure “to inspect the originals,” 

Appellant’s Br. 48; and (ii) that the District Court’s finding that 

Officer Darji had lied under oath hinged on a “misread[ing]” 

of his testimony,10 id. at 45. Reyes-Romero is correct in a limited sense: Those arguments do not appear in the Government’s response to his Hyde Amendment application. And at 

least as a general matter, “[a]rguments not raised in the district 

courts are waived on appeal,” United States v. Tyler, 956 F.3d 

116, 124 n.9 (3d Cir. 2020), such that we cannot consider them 

10 Although Reyes-Romero’s brief identifies a third argument—that Reyes-Romero “wanted to drop his claim for asylum,” Appellee’s Br. 13 (citing Appellant’s Br. 53)—a review 

of the Government’s brief reveals no such argument.
27

“absent exceptional circumstances,” United States v. James,

955 F.3d 336, 345 (3d Cir. 2020) (citation omitted).

But our case law does not require parties to relitigate previously decided issues before the district court where doing so 

“would be an exercise in wasteful formality.” United States v. 

Hoffecker, 530 F.3d 137, 165 (3d Cir. 2008) (citation omitted); 

see Chassen v. Fidelity Nat’l Fin., Inc., 836 F.3d 291, 293 (3d 

Cir. 2016) (“[A] litigant [need not] engage in futile gestures 

merely to avoid a claim of waiver.” (second alteration in original) (citation omitted)). Here, by the time the District Court 

had ruled on the parties’ motions to dismiss and Reyes-Romero 

had applied for costs and fees, the Court’s views on the prosecutor’s conduct and the DHS officers’ candor were beyond 

doubt, and relitigating them would have been nothing more 

than a “futile gesture[],” Chassen, 836 F.3d at 293. Faced with 

a court “more convinced than ever” on those points, App. 792, 

the Government’s choice not to relitigate them was therefore

reasonable and did not constitute waiver or forfeiture.

B. Merits of the Hyde Amendment Application

Having dispensed with those threshold issues, we now turn 

to the merits of the Hyde Amendment award. For the reasons 

we explain below, we conclude that AUSA Hallowell, acting 

on behalf of the Government, satisfied the high ethical and professional standards to which we hold prosecutors, and the District Court mistakenly extrapolated from errors on the part of 

DHS to make findings about the prosecution that the record 

cannot support.
28

We start with two clarifications about the applicable legal 

framework and then explain why the Government’s position 

was neither frivolous nor in bad faith.11

1. The applicable legal framework

The Hyde Amendment applies where, “in a[] criminal 

case[,] . . . the position of the United States was vexatious, frivolous, or in bad faith.” 18 U.S.C. § 3006A app. The District 

Court examined a wealth of case law on the Amendment and

accurately summarized much of the applicable legal framework. But we must clarify two aspects of that framework at 

the outset, one concerning “the position of the United States” 

and the other the requirement that that position be “vexatious, 

frivolous, or in bad faith.”

11 Although Reyes-Romero argued in the District Court that 

the Government’s position was also vexatious, the Court found 

only frivolousness and bad faith, and Reyes-Romero has not 

specifically argued vexatiousness on appeal. To the extent that 

argument is implicit in his others, however, we reject it on the 

same grounds. Vexatiousness embodies two elements: (i) “that 

the criminal case was objectively deficient, in that it lacked either legal merit or factual foundation”; and (ii) “that the government’s conduct, when viewed objectively, manifests maliciousness or an intent to harass or annoy.” Manzo, 712 F.3d at 

810 (citation omitted). The former roughly corresponds to 

frivolousness and the latter to bad faith, so our analysis here 

essentially covers all three grounds for a Hyde Amendment

award.
29

i. The meaning of “position of the United 

States”

Notwithstanding its reference to “the position of the United 

States,” 18 U.S.C. § 3006A app., the Hyde Amendment is not 

a tool to combat misconduct by the federal government writ 

large. It applies only “in a[] criminal case,” id., which directs 

us to focus on “the government’s position underlying the prosecution,” Manzo, 712 F.3d at 810 (emphasis added) (quoting 

Gilbert, 198 F.3d at 1299). The Amendment thus reaches

“prosecutorial misconduct” affecting the “case as an inclusive 

whole,” id. (citations omitted), not misconduct in distinct government proceedings nor isolated “errors” by individual law 

enforcement officers in the course of the investigation or prosecution, id. at 813. 

Our sister circuits share that view. The Second Circuit, for 

instance, reads “the position of the United States” for Hyde 

Amendment purposes “to mean . . . the government’s general 

litigation stance: its reasons for bringing a prosecution, its 

characterization of the facts, and its legal arguments.” United 

States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018). The Ninth 

Circuit reads the Amendment as requiring an assessment of 

“the government’s litigating position as a whole,” not of “other 

types of bad conduct by government employees during the 

course of an investigation.” United States v. Mixon, 930 F.3d 

1107, 1111 (9th Cir. 2019); see id. at 1112 (requiring “serious 

misconduct on the part of prosecutors” (emphasis added)). 

Several others have agreed, see, e.g., Monson, 636 F.3d at 439–

40 (holding that a ruling for the defendant under Franks v. Delaware, 438 U.S. 154 (1978), which “constitutes a finding that 

law enforcement deliberately lied or recklessly disregarded the 

truth,” “does not necessarily mean that . . . the prosecution 
30

against the defendant was frivolous or vexatious”), and we are 

aware of no precedential appellate decision taking a different 

approach.

In sum: The Hyde Amendment demands we “[f]ocus[] on 

the prosecutors’ conduct,” Monson, 636 F.3d at 439 (emphasis 

added), and ask whether the alleged prosecutorial misconduct 

was so “pervasive” as to “render the government’s litigating 

position as a whole vexatious, frivolous, or in bad faith,” 

Mixon, 930 F.3d at 1112 (emphasis added). 

The District Court, however, understood the “position of 

the United States,” 18 U.S.C. § 3006A app., to include both

“the litigation position of the DOJ through th[e] . . . U.S. Attorney’s Office and the actions taken (or not taken) by” DHS 

officers, App. 26 (emphasis added), including as far back as 

Reyes-Romero’s administrative removal proceeding in 2011. 

In assessing Reyes-Romero’s Hyde Amendment application, 

for example, the Court found that DHS officers “railroaded 

[him] out of the country in 2011” in a manner that was “lacking 

in any reasonable factual or legal basis” and was therefore frivolous, App. 28–29, and that the officers’ testimony in 2018 

“demonstrate[d] clear bad faith” on their part, App. 29.

That understanding was mistaken. It assumes that, because 

the EAJA’s “procedures and limitations” are incorporated into 

the Hyde Amendment, 18 U.S.C. § 3006A app., and because 

the EAJA defines “position of the United States” to include, 

“in addition to the position taken by the United States in the 

civil action, the action or failure to act by the agency upon 

which the civil action is based,” 28 U.S.C. § 2412(d)(2)(D), the 

Hyde Amendment must also incorporate that definition. But

the EAJA’s substantive definition of “position of the United 
31

States” is neither a “procedure[]” nor a “limitation[],” so it cannot be read into the Hyde Amendment. 

And there are good reasons not to compare EAJA apples to 

Hyde Amendment oranges. For one thing, we took a contrary 

view in Manzo, emphasizing “the government’s position underlying the prosecution” and asking whether it was “objectively []reasonable for the government to attempt to prosecute” 

the defendant. 712 F.3d at 810, 813 (emphasis added) (citation 

omitted); see also, e.g., Mixon, 930 F.3d at 1111 (defining “position of the United States” under the Hyde Amendment without reference to the EAJA definition); Bove, 888 F.3d at 608 & 

n.10 (noting that the phrase “position of the United States” 

“cannot mean precisely the same thing in both” the Hyde 

Amendment and the EAJA). For another, the EAJA covers a 

much broader swath of litigation, including civil actions arising

from agency enforcement or adjudication. See 28 U.S.C. 

§ 2412(a)(1); see also Taylor v. Heckler, 835 F.2d 1037, 1040 

(3d Cir. 1987) (under the EAJA, the “position of the United 

States” necessarily includes “not only the litigation position . . . but also the agency position [that] made the lawsuit 

necessary” (alterations in original) (citation omitted)). Yet a 

criminal prosecution for unlawful reentry does not fit that paradigm: Although a previous removal order is “a necessary element to the [§ 1326] charge,” App. 27, the criminal prosecution is distinct from and collateral to the immigration proceeding that led to the order and thus unlike agency enforcement 

actions that directly lead to civil actions in federal court. For 

these reasons,12 we reaffirm the principles set out in Manzo and 

12 In interpreting the “position of the United States” to include actions of DHS and its officers, the District Court also 
32

cited two out-of-circuit district court opinions—United States v.

Holland, 34 F. Supp. 2d 346 (E.D. Va. 1999), and United 

States v. Gardner, 23 F. Supp. 2d 1283 (N.D. Okla. 1998)—

both of which were decided before we or many of our sister 

circuits had a chance to construe the Amendment. In Holland, 

the court considered the defendants’ application for costs and 

fees to flow not from the Hyde Amendment as bounded by the 

“procedures and limitations” of § 2412(d), but from a distinct 

open-ended EAJA provision holding the United States “liable 

for such fees and expenses to the same extent that any other 

party would be liable under the common law,” 18 U.S.C. 

§ 2412(b). See 34 F. Supp. 2d at 356–59. As the District Court 

recognized elsewhere in its opinion, Holland’s analysis deviates from the “consensus among circuits that the Hyde Amendment incorporates only those procedures and limitations in 

subpart (d).” App. 25. And although the Holland court originally found “vexatious misconduct” on the part of the Federal 

Deposit Insurance Corporation (FDIC) as well as DOJ, it later 

vacated that portion of its award after concluding the FDIC had 

lacked “sufficient notice that . . . fees and litigation expenses 

might be assessed against it.” United States v. Holland, 48 F. 

Supp. 2d 571, 581 (E.D. Va. 1999). In Gardner, the district 

court ruled that the EAJA’s broad definition of “position of the 

United States” is a “procedure or limitation incorporated into 

the Hyde Amendment” and therefore that executive agencies 

like the Internal Revenue Service can be swept into that definition. 23 F. Supp. 2d at 1293–95. But that analysis was not 

based on a rigorous analysis of the Amendment’s statutory 

text, has never been cited favorably by any court of appeals, 

and is contrary to both Manzo and our conclusion today. 
33

hold that the “position of the United States” for purposes of the 

Hyde Amendment refers only to the position taken by the department and officers charged with administering the prosecution—here, DOJ and AUSA Hallowell.

To be clear, misconduct by law enforcement officers or 

other executive departments can be relevant to a Hyde Amendment application if prosecutors leverage that misconduct to 

further a prosecution that has no factual or legal basis or that is 

brought for purposes of harassment. But because the Amendment is concerned only with prosecutorial misconduct, see 

Mixon, 930 F.3d at 1112 (“A defendant is not entitled to attorneys’ fees under the Hyde Amendment due to law enforcement 

misconduct; rather, the focus is on the prosecutors . . . .”), alleged misconduct by DHS or its officers cannot independently 

create liability for attorney’s fees and costs. 

ii. The meaning of “vexatious, frivolous, or in 

bad faith”

The Hyde Amendment applies where the Government’s litigation position “was vexatious, frivolous, or in bad faith.” 

18 U.S.C. § 3006A app. (emphasis added). We have taken the 

Amendment’s use of the disjunctive “or” to mean that each 

ground must be assessed separately, see Manzo, 712 F.3d at 

810–11 (laying out different standards for each), and several of 

our sister circuits agree, see, e.g., Monson, 636 F.3d at 438–39; 

United States v. Manchester Farming P’ship, 315 F.3d 1176, 

1182 (9th Cir. 2003). While the three grounds meaningfully

“overlap,” United States v. Terzakis, 854 F.3d 951, 955, 956 

n.3 (7th Cir. 2017), analyzing each on its own helps courts focus only on relevant factors and not on a nebulous sense of 

government impropriety.
34

When we conduct that analysis on this record and consider

the Hyde Amendment case law on frivolousness and bad faith,

we conclude Reyes-Romero is not entitled to an award.

2. The position of the United States was not 

frivolous

We and our sister circuits have laid extensive groundwork 

for analyzing frivolousness under the Hyde Amendment. For 

the Government’s position to be frivolous, the prosecution it 

pursues must be “groundless[,] with little prospect of success.” 

Manzo, 712 F.3d at 810 (alteration in original) (quoting Gilbert, 198 F.3d at 1299). Said differently, the position must be 

“foreclosed by binding precedent or . . . obviously wrong,” id.

at 811 (quoting United States v. Capener, 608 F.3d 392, 401 

(9th Cir. 2010)), and a prosecution based on an unresolved but 

reasonable legal argument cannot be frivolous, id. See Bove, 

888 F.3d at 608 (frivolousness requires a prosecution that is

“[m]anifestly insufficient or futile” (alteration in original) (citation omitted)); Monson, 636 F.3d at 440 (to be frivolous, a 

prosecution must be “utterly without foundation in law or fact” 

(citation omitted)). In assessing frivolousness, therefore, we 

view the prosecution through the lens of the elements of the 

criminal charge and the evidence required to satisfy those elements.

We also find guidance in Hyde Amendment case law addressing vexatiousness, which—though a distinct ground for 

awarding fees, see supra note 11—overlaps with frivolousness 

to the extent it too requires that the prosecution be “objectively 

deficient, [meaning] lack[ing] [in] either legal merit or factual 

foundation.” Manzo, 712 F.3d at 810. In Manzo, for instance, 

the defendant argued the government had made “blatantly 
35

false” allegations about his receipt of a cash bribe. Id. at 812. 

In that decision, we assumed he had not received the cash and 

that the government had knowingly presented false testimony. 

See id. Even so, we explained, the charges against the defendant “did not require the government to prove that he physically 

received a cash bribe,” and because the government could 

“plausibly argue that Manzo was aware of the cash payment . . . and played a role in facilitating it,” it maintained a 

viable—and thus objectively nonfrivolous—pathway to conviction. See id. 

Manzo controls here. Reyes-Romero did not contest either 

element required for conviction under § 1326(a)—that he was 

removed and later found in the country without the Attorney 

General’s consent. Rather, he sought to attack the removal order collaterally under § 1326(d), which we have treated as akin 

to an affirmative defense. See Richardson v. United States, 

558 F.3d 216, 222 (3d Cir. 2009); United States v. Charleswell, 

456 F.3d 347, 358 (3d Cir. 2006). Yet at every point in the 

prosecution, from the return of the indictment through the decision resolving the parties’ motions to dismiss, the Government had—at minimum—a reasonable argument that ReyesRomero could not show prejudice under § 1326(d)(3) and thus 

could not make out the affirmative defense. The District Court 

even recognized as much, characterizing the Government’s position on prejudice as “largely reasonable and based in law.”

App. 42.

We agree with the characterization of the Government’s

prejudice arguments as reasonable and based in law, and we

briefly highlight some of the complexities on which those arguments turned. The first was whether Reyes-Romero’s 
36

conviction qualified as a “crime of violence,” 8 U.S.C. 

§ 1101(a)(43)(F) (incorporating 18 U.S.C. § 16’s definition), 

and thus an aggravated felony rendering him ineligible for asylum, id. § 1158(b)(2)(A)(ii), (B)(i), and cancellation of removal, id. § 1229b(a)(3). Although § 16(b)’s residual clause

has been held void for vagueness, Sessions v. Dimaya, 138 S. 

Ct. 1204, 1210 (2018); Baptiste v. Att’y Gen., 841 F.3d 601, 

615–21 (3d Cir. 2016), those decisions were not in place in 

2011, and the Government argued prejudice must be assessed

as of the underlying removal proceedings rather than as of the 

collateral challenge to those proceedings. Even setting § 16(b)

aside, Reyes-Romero would remain ineligible for asylum and 

cancellation if his offense fit within § 16(a)’s elements clause, 

which in turn depended on whether an offense capable of commission through reckless conduct can satisfy that clause—a 

difficult and open question the Supreme Court recently agreed 

to resolve, see supra note 3. A related question was whether 

Reyes-Romero’s offense qualified as a “particularly serious 

crime” rendering him ineligible for withholding of removal, 

8 U.S.C. § 1231(b)(3)(B)(ii). At the time of his removal, our 

precedent held “that an offense must be an aggravated felony 

in order to be classified as a ‘particularly serious crime.’” 

Alaka v. Att’y Gen., 456 F.3d 88, 105 (3d Cir. 2006). But we 

have since revisited Alaka, holding that “the phrase ‘particularly serious crime’ . . . includes but is not limited to aggravated 

felonies.” Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 266–67 

(3d Cir. 2019) (en banc). And the notion that second-degree 

aggravated assault under New Jersey law could have qualified 

as particularly serious was not out of the question. See, e.g., 

Aguilar v. Att’y Gen., 665 F. App’x 184, 185–86, 188–89 (3d 
37

Cir. 2016) (per curiam) (upholding the BIA’s designation of 

that offense as particularly serious).13 

We need not review every step in the District Court’s analysis. It is enough to say we agree that whatever the merits of 

Reyes-Romero’s arguments on prejudice, the Government’s 

arguments in response were “reasonable and based in law,” 

App. 42—or, put another way, were far from “foreclosed by 

binding precedent or . . . obviously wrong,” Manzo, 712 F.3d 

at 811 (citation omitted). As a result, the Government at all 

times maintained a viable path to conviction, making its litigation position nonfrivolous under the Hyde Amendment.

Reyes-Romero argues to the contrary, urging us to accept 

the District Court’s reasoning. We address each argument below.

13 There is also the matter of Reyes-Romero’s evidence 

showing fear of persecution or torture if returned to El Salvador. The District Court concluded Reyes-Romero had shown

a reasonable likelihood of obtaining relief from removal, but it 

did so only after an extensive review of the evidence and the 

case law, and only after reaching favorable conclusions on 

close issues such as the cognizability of Reyes-Romero’s family unit as a particular social group, the relevance of incidents 

that took place in Honduras, and whether the private violence 

he feared would qualify as torture for CAT protection. That 

both the IJ and BIA in Reyes-Romero’s subsequent removal 

proceeding rejected his applications for relief from removal, 

see supra note 6, further suggests the Government’s arguments 

were not beyond the pale.
38

We start with language from Reyes-Romero’s indictment

stating that he had been “removed from the United States pursuant to law.” App. 31 (quoting App. 63). Reyes-Romero 

seizes on that language, arguing that if a removal proceeding 

violated DHS’s rules or a noncitizen’s rights, the noncitizen

was not removed “pursuant to law” and thus cannot be prosecuted for unlawful reentry regardless whether he can show that 

those errors caused him prejudice. But that argument runs 

aground on our precedent, which holds that “prejudice is a necessary component under [§] 1326(d)(3).” Charleswell, 

456 F.3d at 358. In plain terms, a criminal defendant who concedes the elements of § 1326(a) but cannot satisfy 

§ 1326(d)(3)’s prejudice requirement—which, we have held, 

generally requires a showing of “a reasonable likelihood that 

the result would have been different if the error in the [removal] proceeding had not occurred,” id. at 362 (citation omitted)—is guilty of unlawful reentry, and the Government’s 

prosecution of that charge cannot be “groundless,” Manzo, 

712 F.3d at 810 (citation omitted).

Reyes-Romero’s argument to the contrary is essentially 

that when a defendant has a good case on some but not all the 

elements of an affirmative defense, the Government must concede the rest and consent to dismissal on his terms. That

simply is not the law. Although our criminal justice system 

depends on prosecutors’ discretion to decide which cases to 

pursue, their choice to pursue an objectively valid prosecution 

is immune from scrutiny by the federal courts. Put another 

way, our “constitutional framework” is such that “we cannot 

read the Hyde Amendment to license judicial second-guessing 

of prosecutions that are objectively reasonable,” United 
39

States v. Shaygan, 652 F.3d 1297, 1314 (11th Cir. 2011)—as 

this prosecution undoubtedly was.

Nor was the Government bound to abandon the prosecution 

because it shined a light on an administrative removal proceeding that, as the Government acknowledges, was something of 

a “botched job.” Arg. Tr. 15. To the contrary, “[i]t is the responsibility of the Department of Justice to enforce the law 

vigorously[,] and it cannot abdicate this duty because of possible embarrassment to other agencies of the government.” U.S. 

Dep’t of Justice, Justice Manual § 9-2.159 (2018),

https://www.justice.gov/jm/justice-manual. Despite signs that 

DHS might have mishandled Reyes-Romero’s administrative 

removal, AUSA Hallowell nonetheless maintained a nonfrivolous pathway to conviction throughout the prosecution, and under those circumstances we cannot fault him or the office he 

represents for continuing to seek such a conviction.

As a last resort, Reyes-Romero suggests we deem the prosecution frivolous because prejudice must be “presume[d].” 

Arg. Tr. 31–32. He relies for this proposition on Charleswell, 

where we stated that “some procedural defects may be so central or core to a proceeding’s legitimacy, . . . and the difficulty 

of proving prejudice so great[,] that prejudice may be presumed.” 456 F.3d at 362 n.17 (internal quotation marks and 

citation omitted). 

That language, however, is dicta in a footnote. We have 

never given effect to the possibility we left open in 

Charleswell, nor (to our knowledge) has any other court of appeals. Nor need we address that possibility today; the point, 

rather, is that where no appellate court has so held to date, we 

cannot say the Government lacked a “reasonable legal basis” 
40

for contending § 1326(d)(3)’s prejudice prong could not be satisfied. Manzo, 712 F.3d at 811 (citation omitted); see id. (“The 

government should be allowed to base a prosecution on a novel 

argument, so long as it is a reasonable one, without fear that it 

might be setting itself up for liability under the Hyde Amendment.” (citation omitted)). It would also be especially perverse 

to fault the Government for ignoring this possibility here given

that Reyes-Romero—who carries the burden on each of 

§ 1326(d)’s elements—failed to mention it until his supplemental reply brief filed months after his initial § 1326(d) motion. 

In sum, the Government at all times had a legally defensible 

and factually supported basis for prosecuting Reyes-Romero 

for unlawful reentry. The “position of the United States,”

18 U.S.C. § 3006A app., therefore, was not frivolous.14

14 In analyzing a Hyde Amendment application, the district 

court’s task is to “make only one finding . . . based on the case 

as an inclusive whole” rather than engaging in “[a] count-bycount analysis.” Manzo, 712 F.3d at 810 (citation omitted). 

Here, that task is straightforward because Reyes-Romero was 

charged with only one offense. We therefore have no occasion 

to address the implications of a multicount prosecution where 

only one or some counts are viable. Cf. United States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003) (noting that a Hyde 

Amendment award may be appropriate “[e]ven if the district 

court determines that part of the government’s case has merit” 

so long as “the government’s ‘position’ as a whole was vexatious, frivolous, or in bad faith”).
41

3. The position of the United States was not in 

bad faith

Nor did the Government initiate or prolong ReyesRomero’s criminal prosecution in bad faith. 

On this issue, too, we benefit from a well-developed line of 

precedent. Bad faith requires more than “bad judgment or negligence”; it demands “the conscious doing of a wrong because 

of dishonest purpose or moral obliquity.” Manzo, 712 F.3d at 

811. And in assessing whether the “position of the United 

States was . . . in bad faith,” 18 U.S.C. § 3006A app., we may

not “delve into the minds and motivations of individual prosecutors,” Manzo, 712 F.3d at 813. Instead, we must “engage in 

an objective inquiry,” Manzo, 712 F.3d at 811 (citing Shaygan, 

652 F.3d at 1313–14), asking whether “[u]nder th[e] circumstances” the government’s litigation strategy was “objectively 

unreasonable” in light of the facts and “binding case law.” Id.

at 813. And in doing so, we must be wary to leave prosecutors 

the breathing space necessary to pursue justice with vigor. A 

Hyde Amendment award is not available simply because a defendant was acquitted or because the government engaged in 

“contentious and hard-fought” litigation tactics. United 

States v. Schneider, 395 F.3d 78, 88 (2d Cir. 2005). To the 

contrary, “government attorneys are entitled to be zealous advocates of the law on behalf of the . . . people of the United 

States,” and “[w]hile a prosecutor is not at liberty to strike foul 

blows, he may strike hard ones . . . —indeed, he should.” 

United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001) (internal 

quotation marks and citation omitted). 

The District Court identified seven points throughout the

prosecution that in its view constituted “evidence of bad faith,”
42

App. 36, on the part of AUSA Hallowell and, by extension, 

DOJ. We address them one by one. Although we generally 

owe deference to factual findings, any finding that “is implausible based on the record” is clearly erroneous and thus “unsustainable.” Capener, 608 F.3d at 403; see United States v. 

Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (reversal of a Hyde 

Amendment award is required where the reviewing court is left 

with “a definite and firm conviction” that “a mistake has been 

made” (citation omitted)). 

i. Obtaining the indictment

First, we disagree that the Government relied on “facially 

invalid waivers,” App. 31, to seek an indictment and proceed 

with the prosecution against Reyes-Romero. Even if we were 

to accept that the Government was “mistaken at the time of 

[the] [i]ndictment,” App. 31, “the Hyde Amendment [is] targeted at prosecutorial misconduct, not prosecutorial mistake,” 

Capener, 608 F.3d at 401 (alteration in original) (citation omitted). And here, the contents of Reyes-Romero’s A-file gave 

the Government probable cause to believe that he fell within

the facial elements of the § 1326(a) offense. Although a defendant in Reyes-Romero’s position may bring a collateral 

challenge under § 1326(d), that challenge is akin to an affirmative defense, and it is up to the defendant to assert and prove 

it. That defense does not turn on whether the removal was 

“pursuant to law,” App. 31; it requires (among other things) 

prejudice, Charleswell, 456 F.3d at 358, and there was nothing 

in the A-file to suggest Reyes-Romero could show a reasonable 

likelihood of any outcome other than removal. When viewed 

objectively, therefore, the decision to indict and prosecute 

Reyes-Romero does not give rise to an inference of bad faith.
43

ii. The DHS officers’ testimony

Nor are we persuaded that Officers Darji and Alicea gave 

false testimony or that the Government’s refusal to label it as 

such violated its obligations under Napue v. Illinois, 360 U.S. 

264 (1959).

We start with the most frequently quoted portion of the testimony: Officer Darji’s acknowledgment that the forms in 

Reyes-Romero’s A-file did not “make any sense.” App. 331.

It is not the case that Officer Darji “admitted on the stand that 

his testimony (given just moments before) was, in fact, nonsense.” App. 32 (emphasis added). Officer Darji had no specific memory of Reyes-Romero’s proceeding, and thus offered

testimony only about the “normal practice” in his DHS unit, 

App. 319. In the leadup to Officer Darji’s oft-quoted admission, the District Court took over questioning and presented 

him with the irregularities in Reyes-Romero’s forms, asking 

whether it was “reading those forms correctly.” App. 331. The 

Court then asked whether “that”—the antecedent of which was 

the content of “those forms”—“ma[de] any sense,” and Darji 

admitted it did not. Id. 

In context, Officer Darji’s comment was a candid admission that he could not explain away the apparent problems with 

Reyes-Romero’s removal proceeding. And, at least initially,

the District Court agreed, summarizing that Officer Darji had 

admitted that “the process that was used here” did not 

“ma[ke] . . . sense.” App. 476. The quite different notion that 

Darji admitted that he had lied in his testimony, however, “is a 

kind of [factual] Lohengrin,” in that we do not “know whence 

it came,” IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 
44

1975). Because that notion finds no support in the record, we 

reject it.

As a result, nothing in Officer Darji’s concession triggered

Napue obligations on the part of AUSA Hallowell. Those obligations spring to life only when the prosecutor “knows that 

his witness is giving testimony that is substantially misleading” 

and where the misleading nature of the testimony is “obvious.” 

United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974). 

A candid admission of the kind Officer Darji gave does not fit 

those criteria.

Nor do the remaining portions of the DHS officers’ testimony. To be sure, both officers, testifying years later and with 

no specific memory of Reyes-Romero’s removal proceeding, 

gave testimony that was at times equivocal, confusing, or inconsistent. Officer Darji, for instance, changed an answer he 

gave about whether a prior signature was required to authorize 

service of the I-851 on noncitizens. For his part, Officer Alicea 

gave difficult-to-reconcile answers in response to questions 

about when in the process the I-851’s contents would be read 

to the noncitizen in Spanish. But to the extent the officers’ 

testimony was somewhat “convoluted,” App. 43 (citation omitted), it reflects at least in part the byzantine nature of the administrative removal system and in part the circumstances of 

their questioning. Given that the District Court assumed the 

questioning and raised a line of inquiry about the time stamps 

on the I-851 that Reyes-Romero had not flagged and for which 

the Government and its witnesses likely had not prepared, it is 

unsurprising the officers were in some respects ill equipped to 

explain the contents of Reyes-Romero’s A-file. In short, while 

we recognize certain weaknesses in the officers’ testimony, we 
45

discern no basis in the record to conclude that the officers were 

deliberately perjuring themselves. At most, they exhibited the 

kind of inconsistency that is the normal stuff of cross-examination and that might lead a trier of fact to discount their testimony—but not to assume the sort of deliberate dishonesty that 

would require a prosecutor to correct the record. In our judgment, that distinction is critical here not only because of the 

effect on AUSA Hallowell’s obligations but also because of 

the severe reputational, professional, and legal consequences 

that could flow from a finding that Officers Darji and Alicea 

deliberately lied under oath. That finding was unjustified here.

At bottom, the Napue argument comes to this: that because 

the District Court ultimately decided not to credit the officers’

testimony, the Government must have been obligated to disclaim it mid-trial. That does not follow. In presenting the testimony of government witnesses, a prosecutor need not “play 

the role of defense counsel . . . and ferret out ambiguities in his 

witness’ responses on cross-examination.” Harris, 498 F.2d at 

1169. He also cannot supplant the role of the finder of fact in 

assigning weight to testimony as he deems appropriate. We 

therefore discern no violation of AUSA Hallowell’s Napue obligations and no basis here to infer bad faith. 

iii. Litigating exhaustion and judicial review

We next confront the idea that the Government exhibited 

bad faith by continuing to litigate exhaustion and judicial review even after the extent of the irregularities in ReyesRomero’s A-file came to light. A review of the record reveals 

the opposite: that AUSA Hallowell promptly and appropriately

abandoned all arguments on § 1326(d)(1) and (2).
46

The initial two-day hearing on Reyes-Romero’s § 1326(d) 

motion took place in early January 2018. During the second 

day, the District Court informed the parties it was “highly 

likely” to rule in Reyes-Romero’s favor on exhaustion and judicial review. App. 474–75. That left prejudice as “the only 

open issue,” App. 543, on which the District Court requested 

additional briefing. The parties twice requested more time to 

submit a schedule for that briefing and did not settle on such a 

schedule until late January. A month later—and before its supplemental brief was due—the Government moved to dismiss 

under Rule 48. No doubt the Government expected its motion 

would be the end of the case. But after the District Court continued to press the Government on the merits of the § 1326(d) 

motion, it promptly filed a brief in mid-March making its position clear: It would “not rely on or adopt th[e officers’] testimony” and, if pushed to litigate the § 1326(d) motion, 

“w[ould] not present argument on any elements . . . other than 

the issue of prejudice.” App. 755. And it reinforced that position at the next hearing. 

AUSA Hallowell’s response was prompt, unambiguous, 

and consistent with the best traditions and standards of his office. That it occurred “over two months” after the initial hearing, App. 32, was a product of the parties’ agreed briefing 

schedule, the Court’s unexpected reservations about the Government’s motion to dismiss, and its ongoing inquiry into the 

effect of a dismissal on future immigration proceedings. The 

Government was still “act[ing] promptly to correct [any] error,” United States v. Lain, 640 F.3d 1134, 1139 (10th Cir. 

2011), and its response is inconsistent with a finding of bad 

faith. 
47

iv. Interactions between DOJ and DHS

We likewise see no signs of bad faith in AUSA Hallowell’s 

inability to tell the District Court whether, if the prosecution 

were dismissed, DHS would detain Reyes-Romero or seek reinstatement of the 2011 removal order. In asserting that he 

could not “speak for DHS . . . or what [it] would do” in future 

immigration proceedings against Reyes-Romero, App. 617, 

AUSA Hallowell was faithfully representing our precedent to 

the District Court. See United States v. Igbonwa, 120 F.3d 437, 

443–44 (3d Cir. 1997) (holding that an AUSA cannot bind 

DHS in future immigration proceedings absent DHS’s consent). Had the Court granted the Government’s motion to dismiss, any relevance of the 2011 order would have been left to 

DHS in the first instance (in deciding whether to pursue a new 

NTA or seek reinstatement) and, if necessary, to other administrative adjudicators and a different Article III court.

To be sure, it is possible for an AUSA, after having obtained “prior authorization from [DHS],” Justice Manual, supra, § 9-73.510, to come to a binding agreement with respect 

to future immigration proceedings against a noncitizen defendant. But an AUSA lacks the power to do so on his own. More 

important, whether and under what circumstances he reaches 

out to DHS to explore such an arrangement is committed to his 

discretion—he is not bound to do so. And even if he does seek 

authorization from DHS, he cannot demand that the agency 

give it, and if the agency declines the AUSA cannot be held 

responsible. When viewed through an objective lens, therefore, the absence of such an arrangement between DOJ and 

DHS with respect to future proceedings against Reyes-Romero

also does not support an inference of bad faith.
48

Two related issues must be addressed. First, we do not consider significant that DHS and DOJ were to some extent “intertwin[ed] . . . in this case,” App. 37 (emphasis omitted), insofar as DOJ and DHS kept in contact about Reyes-Romero or 

a line-level DHS official was present at counsel table for all but 

one of the hearings before the District Court. Coordination between DOJ and other executive departments is by no means 

unusual, but it does not obviate the line between those departments or between a criminal prosecution and subsequent administrative proceedings. We therefore see no support for the 

notion that the Government here attempted to use its collaboration with DHS as both a sword and a shield against ReyesRomero.

Second, we are equally unpersuaded that the AUSA exhibited bad faith by focusing on the criminal offense with which 

Reyes-Romero was charged, the evidence necessary to prove 

that offense, and the elements of Reyes-Romero’s affirmative 

defense. Those were, after all, the only live issues over which 

the District Court had jurisdiction. Even so, AUSA Hallowell 

did his best to assist the Court in its consideration of matters 

well beyond that jurisdiction, most notably the effect that various dispositions might have on future immigration proceedings against Reyes-Romero. The AUSA’s responsiveness, 

candor, and professionalism in answering unanticipated questions bespeak good faith on his part and in the “position of the 

United States,” 18 U.S.C. § 3006A app. And in general, the 

AUSA offered candid and accurate assistance to the tribunal; 

was forthright about the weaknesses in the case; and, once he 

had received additional evidence bolstering Reyes-Romero’s 

arguments on prejudice and once the prosecution had exhausted more time and resources than was expected, sensibly 
49

reevaluated it and decided dismissal was in the best interests of 

justice. There is much to commend in the way the prosecution

litigated this case, and certainly nothing of the “dishonest purpose or moral obliquity,” Manzo, 712 F.3d at 811 (citation 

omitted), required to justify a Hyde Amendment award.

v. The Government’s motion to dismiss

We now come to a central premise of the Hyde Amendment 

award: that the Government’s motion to dismiss was motivated

by, and evidence of, bad faith.

There is good reason for skepticism: It is ironic indeed that 

the government’s decision to move to dismiss a criminal case 

with prejudice would be held up as proof of ill will toward the 

defendant. Normally, if circumstances arise making it clear 

that the Government’s case is weaker than it once appeared and 

the “Government act[s] promptly to correct [that] error,” a 

court will be hard pressed to find bad faith. Lain, 640 F.3d at 

1139. The District Court recognized this dynamic, correctly 

stating that if an AUSA “conclude[s] that a criminal prosecution should not proceed” and moves to dismiss, that is an appropriate exercise of prosecutorial discretion and precisely 

“how we want the system to work.” App. 635. But it proceeded to find that motion was evidence of bad faith on two 

grounds.

The first was that the motion was designed “to shield the 

2011 Removal Order from an adjudication of invalidity” and 

thereby interfere with future immigration proceedings against 

Reyes-Romero. App. 36. In other words, because the Government agreed the prosecution should be dismissed, it had no 
50

non-malicious reason for refusing “to not oppose the bare 

granting of Reyes-Romero’s motion to dismiss.” App. 4.

Implicit in that analysis is that there is no meaningful difference between (i) exercising discretion to dismiss the prosecution because of some “litigation risk” on the prejudice prong, 

App. 646, and (ii) conceding outright that Reyes-Romero has 

satisfied the prejudice prong. Not so. A prosecutor may have 

probable cause to believe an element of an affirmative defense 

is triable but still conclude that, because of the closeness of the 

question as well as other considerations such as expenses and 

the time a defendant has already been in custody, the interests 

of justice would not be well served by continuing to pursue the 

prosecution. That is, indeed, how the system should work. 

And, most critical, the Government must be free to do so without having to concede away the merits of the criminal charge 

or any affirmative defenses, which would have been the effect 

of endorsing Reyes-Romero’s § 1326(d) motion.

Nor can we agree that the Government was “[n]ever 

asked . . . to stipulate to ‘prejudice’” and could have opted to 

“‘not oppose’ the granting of Reyes-Romero’s motion.” 

App. 15–16. Because dismissal under § 1326(d) requires prejudice, see 8 U.S.C. § 1326(d)(3); Charleswell, 456 F.3d at 358, 

the Government cannot agree to a § 1326(d) dismissal without 

acknowledging that the prejudice requirement has been met. 

And given the closeness of the prejudice question, see supra

pp. 35–37 & n.13, it strikes us as objectively reasonable that 

the Government elected not to do so.

The second ground for the finding that the Government 

moved to dismiss in bad faith was that the reasons it offered in 

support of its motion were pretextual. After a review of the 
51

record, we conclude the Government’s reasons were sensible 

and consistent. It explained, for instance, that its motion to 

dismiss was motivated in part by a desire to preserve litigation 

resources. That is no surprise given that the single-count prosecution had already lasted months and generated many hearings and briefs. True, the Government “then expended substantial resources on continuing to oppose Reyes-Romero’s 

motion to dismiss” while its own motion remained pending. 

App. 39. But that was only because the Government’s motion 

was held open, requiring that it continue to litigate the merits 

of Reyes-Romero’s § 1326(d) defense. The Government’s explanation can be viewed as contradictory only if we assume 

there was no difference between acceding to Reyes-Romero’s 

motion and proceeding on the Government’s motion—an idea 

we have already rejected. 

vi. Production of the color copies

Next, we see no evidence to support the idea that the latein-the-game production of color copies from Reyes-Romero’s 

A-file suggests bad faith on the Government’s part. Under the 

line of cases springing from Brady v. Maryland, 373 U.S. 83 

(1963), prosecutors have an affirmative duty to disclose material evidence favorable to the defendant. Dennis v. Sec’y, 

834 F.3d 263, 284 (3d Cir. 2016) (en banc). But there is no 

question that AUSA Hallowell, after having received the color 

copies, promptly shared them with Reyes-Romero’s counsel 

and with the District Court. That he did so was consistent with 

his Brady obligations as well as good faith in the management 

of the prosecution. 

Nor is there anything to suggest the Government exhibited 

bad faith by producing the color copies months into the 
52

prosecution rather than at the outset. To begin, our precedent 

on the timing of Brady disclosures requires only that the government “make[] [the] evidence available during the course of 

a trial in such a way that a defendant is able effectively to use 

it.” United States v. Moreno, 727 F.3d 255, 262 (3d Cir. 2013) 

(citation omitted). Reyes-Romero was certainly able to use the 

color copies of the forms to his benefit; those copies fed into 

the District Court’s decision granting his § 1326(d) motion. 

More to the point, there was no reason why AUSA Hallowell—

or, for that matter, Reyes-Romero’s counsel, who was given an 

opportunity to access or request the original files—could have 

anticipated that the color copies would contain meaningful, relevant evidence that the black-and-white reproductions did not. 

Under those circumstances, AUSA Hallowell lacked “actual or 

constructive possession” of the information contained in the 

color copies, Hollman v. Wilson, 158 F.3d 177, 180 (3d Cir. 

1998), and accordingly that he did not request or produce them 

earlier in the litigation does not give rise to an inference of bad 

faith. 

We end by addressing the assertion that the production of

black-and-white copies was “a clear implication of conscious 

wrongdoing,” App. 40, on the part of unnamed DHS officials. 

Because the Hyde Amendment is concerned only with prosecutorial misconduct, even such unscrupulous conduct by an independent executive department could not be laid at the prosecution’s feet without a reasonable and logical basis for doing 

so. Moreover, a review of the record here reveals nothing apart 

from speculation suggesting that DHS’s production of blackand-white copies was intended to shield Reyes-Romero’s

A-file from scrutiny—rather than, for instance, being the 
53

product of an outdated photocopier or cost-saving printing procedures. So thin a reed cannot justify a Hyde Amendment 

award.

vii.Litigation delay

Finally, we disagree that the criminal proceeding was “unnecessarily drawn out by the various litigation tactics taken by 

the Government.” App. 43. The time between ReyesRomero’s motion to dismiss and the decision granting that motion was roughly seven and a half months. If that period is 

longer than in the typical § 1326 prosecution, the reasons are 

many, including the ongoing evolution of Reyes-Romero’s arguments on prejudice, mutual delays in the briefing schedule, 

complicated legal and factual questions and, above all, a willingness on the part of the District Court to hold outstanding 

motions open and solicit supplemental briefing. Those reasons

for delay are unexceptional and understandable. But unwarranted delay on the part of the Government was not one of 

them.

* * *

Ultimately, with great respect for the District Court and its 

careful administration of this prosecution, we nonetheless conclude based on our review of the record that “a mistake has 

been made.” Heavrin, 330 F.3d at 727 (citation omitted). 

There is no viable evidence that the “position of the United 

States,” as that term is properly understood in the Hyde 

Amendment, was frivolous or in bad faith.

We share the District Court’s view that Reyes-Romero’s 

2011 expedited removal proceeding deviated from the ordered, 

sensible process we demand of those who enforce the nation’s 
54

immigration laws. Indeed, that is the Government’s view as 

well. And reasonable minds may differ about precisely how 

the prosecution should have reacted once those issues became 

apparent. But where reasonable minds may differ, and where 

the Government made objectively reasonable and defensible 

choices throughout the prosecution, there can be no Hyde 

Amendment liability.

IV. CONCLUSION

For these reasons, we will reverse the District Court’s orders awarding Reyes-Romero attorney’s fees and costs under 

the Hyde Amendment.