11th Circ. on prosecutorial misconduct: what does ‘or’ mean?

By Alison Frankel
August 29, 2011

The three judges who heard the Justice Department’s appeal in a case called United States v. Ali Shaygan knew full well how consequential their ruling would be. The government wanted the appellate court to overturn a Miami federal judge’s imposition of $602,000 in sanctions for the U.S. Attorney’s prosecution of Shaygan, a physician accused of illegally writing prescriptions for controlled substances. And as Judge Pryor wrote in the majority opinion in the case, the issues on appeal were profound: “They involve the sovereign immunity of the United States, the constitutional separation of powers, and the civil rights and professional reputations of two federal prosecutors.”

That’s why it’s so compelling that the Eleventh Circuit’s ruling came down to an interpretation of the word “or” in the Hyde Amendment of the 1998 Appropriations Act. The Hyde Amendment says federal judges can sanction prosecutors when “the position of the United States was vexatious, frivolous, or in bad faith.” The majority in the Shaygan case — Eleventh Circuit judge William Pryor Jr. and Fifth Circuit judge Rhesa Barksale, sitting by designation — decided that the government’s prosecution of the doctor wasn’t vexatious or frivolous, so by definition it wasn’t conducted in bad faith. The majority vacated the $602,000 attorneys fee award, as well as a public reprimand of two of Shaygan’s prosecutors. But in a dissent, Chief Judge James Edmondson said the Hyde Amendment’s plain language means a prosecution can be undertaken in bad faith even if it isn’t vexatious or frivolous. He found Shaygan was prosecuted in bad faith, so the district court’s $602,000 fee award should have been upheld.

Shaygan’s lawyer, David Markus of Markus & Markus said he plans to ask the entire Eleventh Circuit to review the ruling en banc, and, if that is denied, to appeal to the U.S. Supreme Court. “The way Judge Pryor tried to rewrite the statute — the Eleventh Circuit or the Supreme Court is going to be very interested in that,” he told me.

Here’s the backstory. Shaygan was a pain-management specialist who came under government scrutiny when one of his patients died after taking a combination of methadone and illegal drugs. Shaygan was indicted for trafficking in illegal prescriptions. His lawyer, Markus, moved to suppress Shaygan’s statements to investigators, arguing that his client had asked for a lawyer before making the disclosures. Assistant U.S. attorney Sean Cronin warned Markus that the motion to suppress was going to result in a “seismic shift” in the case against Shaygan.

Sure enough, the government soon obtained a 141-count superseding indictment. And unbeknownst to Markus or his client, prosecutors began a side investigation of allegations that Shaygan was secretly offering patients money to influence their statements to investigators. Prosecutors signed up one of Shaygan’s former patients as a confidential informant and enlisted him to tape conversations with Shaygan and Markus.

Prosecutors never turned over discovery on the witness tampering investigation (which came up empty) to Markus. It came to light at Shaygan’s trial, through a slip in the testimony of the government’s confidential informant. Markus managed to turn the disclosure to Shaygan’s advantage, arguing that his client had been targeted in a government witch-hunt. The jury ended up acquitting Shaygan of all 141 counts in the indictment.

But that wasn’t the end of the case for the Miami U.S. Attorney’s office. In April 2009, Judge Alan Gold found that the government had acted in bad faith when it sought the superseding indictment, launched the witness tampering investigation, and then failed to disclose that investigation to the defense. Concluding that the superseding indictment and witness tampering investigation were retribution for defense counsel Markus’s motion to suppress, the judge ordered prosecutors to pay Shaygan’s legal fees. He also publicly reprimanded Cronin and another Miami assistant U.S. attorney, Andrea Hoffman.

On appeal, the Justice Department and private lawyers representing Cronin and Hoffman argued that Judge Gold had abused his discretion. The government conceded prosecutors made mistakes in the Shaygan case, but said there was plenty of witness testimony at trial to back their drug trafficking assertions.

The Eleventh Circuit majority agreed. Under the doctrines of sovereign immunity and separation of powers, the majority said, prosecutors have broad discretion, and the Hyde Amendment sets a high bar for sanctions against the U.S. “A defendant must show that the government’s position underlying the prosecution amounts to prosecutorial misconduct — a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” Judge Pryor wrote. Judge Gold, the majority concluded, erred when he found that the superseding indictment of Shaygan was a bad-faith response to the motion to suppress. “In light of the evidence that supported the superseding indictment, the charges against Shaygan were not objectively filed in bad faith,” the opinion said. “The record establishes that, regardless of [prosecutor] Cronin’s displeasure or subjective ill-will, the government had an objectively reasonable basis for superseding the indictment.”

In dissent, Chief Judge Edmondson said his colleagues had contravened Congress by taking the “or” out of the Hyde Amendment. “It is not decisive under the statute that a criminal prosecution was conducted in an objectively reasonable way (not vexatious) and that the prosecution had an objectively reasonable likelihood of success (not frivolous),” he wrote. “Congress, by adding the phrase ‘or in bad faith,’ was looking beyond litigation positions that were either vexatious or frivolous and addressing something different. We must not take the word ‘or’ out of the statute by reading ‘in bad faith’ as meaning the same thing as either ‘vexatious’ or frivolous.’”

Shaygan counsel Markus told me he’s “extremely disappointed” that Judge Pryor’s interpretation of the Hyde Amendment prevailed. “I think Judge Pryor is wrong as a matter of law that prosecutors can act in bad faith as long as they have an objectively reasonable basis for prosecution,” he said. “That’s basically giving prosecutors a blank check.”

All of the appellate judges agreed that prosecutors Cronin and Hoffman should not have been reprimanded without getting a chance to defend themselves before Judge Gold. Cronin was represented by Robert Josefsburg of Podhurst Orseck. Hoffman was represented by Roberto Martinez of Colson Hicks Eidson. Josefsburg didn’t return my call; Martinez said he hadn’t read the opinion yet. The Justice Department declined comment.

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