Criminal Procedure — EAJA

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — EAJA

Where the jury could have reasonably believed the government’s version of the facts, acquitted defendants are not entitled to attorney fees under the Equal Access to Justice Act.

“[T]he defendants first argue with some force that the government could never articulate a reasonable motive theory. After all, why would two men risk criminal and civil sanctions when they never received any benefits in return? Without a motive theory, the defendants contend that the government could not prove a lie or false claim, and without a lie, an FCA claim necessarily fails. Hindo, 65 F.3d at 613. Although the defendants attempt to construe the motive question as uncontested, this issue was subject to conflicting evidence and testimony such that a reasonable person could have accepted either version of events, which is all we require. Pierce, 487 U.S. at 565. For example, the government maintained throughout trial that Congos and Pecore were looking for a source of funds to keep the Menominee Roads Department in the black. The district court heard testimony to this effect. On the other hand, the defendants claim that the government’s ‘key’ motive witness unknowingly contradicted the government’s theory by suggesting that additional Roads Department funds were only spent three years after they were requested. The defendants construed this testimony as proof that the Roads Department never had an urgent need for additional funding, and thus, Pecore and Waniger were never motivated to falsify government invoices to obtain additional funding. In pointing to the version of events that the jury apparently believed, the defendants ignore the legitimate factual dispute that existed throughout the litigation. Instead, the defendants seem to simply rely on their trial victory. But this is not enough. Furthermore, even if we completely accept as true the defendants’ version of motive, it still does not directly contradict or disprove the government’s position that the Roads Department faced serious budget difficulties. Accordingly, the district court did not abuse its discretion in finding that the government’s motive theory was substantially justified, even though it apparently failed at trial.”

Affirmed.

10-2676 & 10-3599 U.S. v. Pecore

Appeals from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., kanne, J.