
    UNITED STATES of America, Plaintiff-Appellee, v. David DIAZ, Defendant-Appellant.
    No. 03-50999.
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided July 21, 2004.
    Susan J. Park, U.S. Department of Justice, Mary Kathryn Butler, U.S. Department of Justice, Criminal Division Public Integrity Sec., Washington, DC, for Plaintiff-Appellee.
    Ronald H. Tonkin, Houston, TX, for Defendant-Appellant.
    Before SMITH, DeMOSS, and STEWART, Circuit Judges.
   PER CURIAM:

David Diaz appeals from the district court’s denial of his application for attorney’s fees and litigation expenses under the so-called Hyde Amendment, 18 U.S.C. § 3006A. Having reviewed the record and the brief on appeal, we conclude that the magistrate judge did not abuse his discretion in denying Diaz’s application for attorney’s fees and litigation expenses. United States v. Truesdale, 211 F.3d 898, 905 (5th Cir.2000); United States v. Gilbert, 198 F.3d 1293, 1298-1303 (11th Cir.1999). The record supports the magistrate judge’s determination that the prosecution was not frivolous, vexatious, or in bad faith. Truesdale, 211 F.3d at 909. The Government’s theory of the case was novel and one of first impression, and there was some evidence suggesting that the offense charges in the indictment occurred.

Nor did the magistrate judge abuse his discretion in failing to hold an evidentiary hearing. A prevailing defendant is not entitled to a hearing as a matter of right on an application for reimbursement of attorney fees under the Hyde Amendment, and the district court does not abuse its discretion in ruling on a defendant’s motion without first holding a hearing where, as here, no hearing was requested. See id. at 906-07.

AFFIRMED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     