United States v. Ali Shaygan ( 2012 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 10, 2012
No. 09-12129
JOHN LEY
CLERK
D. C. Docket No. 08-20112-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
ANDREA G. HOFFMAN,
SEAN PAUL CRONIN,
Interested-Parties-Appellants,
versus
ALI SHAYGAN,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
ON PETITION FOR REHEARING EN BANC
Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, CARNES,
BARKETT, HULL, MARCUS, WILSON, PRYOR, and MARTIN, Circuit
Judges.*
BY THE COURT:
The court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the
Suggestion of Rehearing En Banc and the Petition for Rehearing are DENIED.
/s/ JOEL F. DUBINA
CHIEF JUDGE
*
Judge Adalberto Jordan did not participate in the en banc poll.
2
PRYOR, Circuit Judge, respecting the denial of rehearing en banc:
I reluctantly write this opinion respecting the denial of rehearing en banc to
respond to the dissenting opinion that follows. Judge Henry Friendly once
observed that the practice of publishing a dissent about a decision in which the
dissenter “did not participate” and “the Court has declined to review . . . en banc”
is “of dubious policy.” United States v. New York, New Haven & Hartford R.R.
Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J., concurring in denial of reh’g
en banc, joined by Lumbard, C.J.). And Judge Raymond Randolph, who clerked
for Judge Friendly, perhaps put it best: “[D]enials of rehearing en banc are best
followed by silence. They should not serve as the occasion for an exchange of
advisory opinions, overtures to the Supreme Court, or press releases.” Indep. Ins.
Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.).
But, alas, “dissents from denial of rehearing en banc are now routine.” Indraneel
Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006
Wis. L. Rev. 1315, 1317; see also Sahyers v. Prugh, Holliday & Karatinos, P.L.,
603 F.3d 888, 889 (11th Cir. 2010) (Edmondson, J., concurring in denial of reh’g
en banc) (questioning “the fashion” of filing “dissents regularly when en banc
rehearing is denied”).
3
The original panel opinion speaks for itself, but I write, as the author of that
opinion, to set the record straight about a matter that the dissent misunderstands.
The Hyde Amendment allows for the extraordinary remedy of invading the public
fisc to pay an acquitted criminal defendant’s attorney’s fees, and this rare waiver
of sovereign immunity applies only when a court determines that the entire
“position of the United States was vexatious, frivolous, or in bad faith.” Pub. L.
No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes). The “position” of the United States is expressed as
a singular term for obvious reasons. Congress expected a court to assess the
overall prosecution of a defendant and not base an award of fees only on discrete
actions that took place during that prosecution. Traditional sanctions exist for
discrete wrongs like discovery violations that occur during an otherwise
reasonable prosecution, but an award of attorney’s fees under the Hyde
Amendment is not one of those sanctions. The Hyde Amendment is concerned
with wrongful prosecutions, not wrongs that occur during objectively reasonable
prosecutions. The district court erred in when it held otherwise, and the dissent
fails to grasp this distinction.
I. BACKGROUND
4
The panel opinion provides a thorough discussion of the facts underlying
this appeal, United States v. Shaygan, 652 F.3d 1297, 1302–10 (11th Cir. 2011),
but some of those facts, which are unmentioned in the dissent, merit special
review. Most notably, the United States began its investigation and prosecution of
Ali Shaygan with more than good cause: it all started with a suspicious death.
On June 9, 2007, James Brendan Downey died from an overdose of various
drugs including methadone and cocaine. An autopsy revealed that the level of
methadone in Downey’s blood was alone enough to kill him. Two days before
Downey died, Dr. Shaygan had prescribed methadone to Downey.
Downey’s girlfriend, Crystal Bartenfelder, testified that she had visited
Shaygan’s office with Downey on June 7, 2007, and that Shaygan had not
conducted any kind of physical examination of Downey. She testified that, during
the same visit, Downey asked Shaygan for more oxycodone than he had
previously been prescribed. She testified that Shaygan expressed concern that the
increased amount of oxycodone would look suspicious, so Shaygan suggested
methadone, which Downey accepted. Bartenfelder was with Downey the night he
died, and she testified that he died in his sleep after taking the methadone.
After Downey’s death, the Drug Enforcement Administration conducted an
undercover investigation of Shaygan. Two local police officers posed as
5
prospective patients to determine how easily they could obtain prescriptions of
controlled substances from Shaygan. They recorded their conversations and
obtained prescriptions for several controlled substances during their first visits to
Shaygan’s office. The officers presented no medical records and were given
minimal physical examinations during these visits.
On February 8, 2008, the government filed an indictment that charged in 23
counts that Shaygan had distributed and dispensed controlled substances outside
the scope of professional practice and not for a legitimate medical purpose in
violation of federal law. See 21 U.S.C. § 841(a)(1). When the indictment was
filed, the government had not yet identified any of Shaygan’s other patients. On
February 11, 2008, Administration agents arrested Shaygan and obtained his
consent to search his office. The agents seized patient files and Shaygan’s day
planner. The agents used information from the day planner to identify additional
patients of Shaygan, and evidence regarding these patients formed the basis for
additional counts contained in a superseding indictment filed on September 26,
2008.
Before trial began, Sean Cronin, one of the two prosecutors on the case,
suspected that Shaygan’s defense team might be tampering with potential
witnesses. He and his fellow prosecutor, Andrea Hoffman, spoke with their
6
supervisor at the United States Attorney’s Office, Karen Gilbert, who permitted
Drug Enforcement Agent Christopher Wells to ask two potential government
witnesses to record calls with the defense team. Gilbert instructed Cronin that she
would be responsible for the collateral investigation and that Cronin and Hoffman
should take no part in the investigation. Gilbert also instructed Agent Wells not to
disclose information about the collateral investigation to Cronin or Hoffman.
Agent Wells spoke with the two witnesses, who agreed to record conversations
with the defense team. One of the witnesses, Carlos Vento, later signed a
confidential informant agreement. Agents filed DEA-6 reports that documented
that Vento and the other witness, Trinity Clendening, had recorded conversations
with the defense team and that Vento had signed a confidential informant
agreement.
At a status conference the week before trial, the district court ordered the
government to turn over any DEA-6 reports so that the court could read them
before trial to determine if they contained any exculpatory material that should be
given to the defense under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
Two days later, Cronin filed DEA-6 reports for several witnesses. Cronin had
asked Agent Wells for all DEA-6 reports, but Cronin did not ask specifically for
7
those generated in the collateral investigation. The government did not produce
the DEA-6 reports related to the collateral investigation.
At trial, the government presented a wealth of evidence to suggest that
Shaygan had distributed and dispensed controlled substances outside the scope of
professional practice and not for a legitimate medical purpose in violation of
federal law. See Shaygan, 652 F.3d at 1305–06. Downey’s girlfriend testified that
Shaygan, without conducting any physical examination, prescribed Downey the
methadone that killed Downey two days later. Id. at 1305. Three of Shaygan’s
former associates testified that Shaygan routinely wrote them prescriptions for
controlled substances without any legitimate medical purpose. Id. The two
undercover police officers testified. The government played tape recordings of
their conversations with Shaygan for the jury, and the officers explained how
Shaygan had provided them prescriptions for controlled substances. Id. Four of
Shaygan’s former patients gave testimony consistent with the prosecution’s
theory. Id. at 1305–06. Two other patients gave testimony that did not support the
prosecution’s theory, but the patients’ earlier statements and evidence from their
medical files did. Id. at 1306.
During the cross-examination of Clendening, Clendening mentioned a
recording he had of a conversation with one of Shaygan’s attorneys. The next day,
8
the government explained to the court the recordings and the collateral
investigation. The district court allowed the defense to call Vento and Clendening
again for cross-examination. The court instructed the jury that the defense did
nothing wrong and that “the United States had acted improperly in not turning
over the necessary discovery materials and also by allowing recordings to occur in
the first place.” Id. at 1307–08.
Shaygan was represented by an elite defense attorney, and Shaygan’s superb
counsel took advantage of the opportunity to focus the attention of the jury on the
alleged misconduct by the government in the collateral investigation. During the
new cross-examinations of Vento and Clendening, Shaygan’s counsel accused
them of not telling the whole truth to the jury because they had not revealed that
they had been asked to record conversations with the defense team. In closing
argument, Shaygan’s counsel compared the alleged misconduct by the government
to the Salem witch trials. Shaygan’s counsel reminded the jury that the district
court had instructed them that the “United States [had] acted improperly,” and
argued that the jurors had been misled by the government. Shaygan’s counsel
argued that innocent women had been convicted and hung in the Salem witch
trials “because there were no jurors,” and he urged the jury to say “no” and to
9
“make sure the Salem, Massachusetts[,] witch trials never happen again.” Id. at
1308.
The jury returned a verdict of not guilty on all counts. Immediately after the
jury was dismissed, the district court ordered the government to appear on the
following Monday. The court stated that it would “hear alternative requests for
sanctions,” including whether a sanction in the form of attorney’s fees and costs
should be awarded under the Hyde Amendment. Id. The court at no time stated
that it was considering sanctions against the individual prosecutors.
The district court granted Shaygan’s motion under the Hyde Amendment
and ordered the United States to reimburse Shaygan in the amount of $601,795.88
for attorney’s fees and costs from the date of the superseding indictment. The
court held that the superseding indictment, though supported by newly discovered
evidence, was filed in bad faith because it came after a heated discussion between
Cronin and Shaygan’s counsel. The court also highlighted the discovery
violations related to the collateral investigation and held that “discovery violations
in the course of a prosecution can form a basis for the award of attorney’s fees
under the Hyde Amendment.” Id. at 1310. The district court virtually ignored the
substantial evidence that supported the charges against Shaygan.
10
Without providing notice to the prosecutors that they were facing individual
sanctions and without even hearing from Hoffman, the district court also entered a
public reprimand “against the United States Attorney’s Office and specifically
against AUSA Karen Gilbert, Sean Cronin, and Andrea Hoffman.” Id. The
district court ordered the United States Attorney’s Office to provide “the contact
information for the relevant disciplinary body of the Bar(s) of which AUSA
Cronin and Hoffman are members,” and stated that it would request that
disciplinary action be taken against Cronin and Hoffman. Id. The prosecutors
were never given an opportunity to contest the allegations the court made against
them.
Although the dissent mentions the “vital and laudatory role,” Dissenting Op.
at 21, of prosecutors and opines that the district judge “performed his assigned
role with great care,” id. at 23, the dissent neglects to mention the grievous wrong
that the district court committed against the trial prosecutors, Sean Cronin and
Andrea Hoffman, in this case. By ignoring this matter, the dissent understandably
refrains from defending the inquiry by the district court that led to the public
reprimand of these prosecutors without affording them the two rudiments of the
fundamental civil right of due process: notice and an opportunity to be heard.
About that error, the panel opinion was unanimous. See Shaygan, 652 F.3d at
11
1318–19, 1326. We vacated the sanctions by the district court and refused to
affirm any finding that the trial prosecutors had engaged in any misconduct. Id.
The dissent does not contest our ruling, but instead ignores it altogether.
The dissent states that “this Court’s opinion in Shaygan does not set aside the
findings of fact that undergirded Judge Gold’s Hyde Amendment analysis.
Indeed, the opinion assumes that the prosecutors did and said everything that
Judge Gold found to be true. Neither does it point to error in Judge Gold’s
findings of fact that the prosecutors acted in violation of their ethical obligations
as representatives of our government.” Dissenting Op. at 33. The panel opinion
did not need to decide whether the findings of alleged misconduct as they related
to the award of fees under the Hyde Amendment were clearly erroneous, as the
government argued, because the alleged misconduct, even if true, could not
constitute “the position of the United States.” But the findings of misconduct, as
they were used to support the reprimands of the prosecutors, were vacated by the
unanimous panel as “unreliable because [they] w[ere] developed, after all, without
affording either [prosecutor] due process.” Shaygan, 652 F.3d at 1319. The panel
refused as follows to endorse any findings of misconduct: “It is not apparent to us
that either attorney necessarily violated any ethical rule or any constitutional or
statutory standard.” Id. These public servants deserve better.
12
II. DISCUSSION
When it awarded Shaygan fees under the Hyde Amendment, the district
court erred in two ways. First, as the panel opinion explains more thoroughly, the
superseding indictment was not brought in “bad faith” because there was an
objectively reasonable basis for bringing it. See Shaygan, 652 F.3d at 1312–15.
That is, the government uncovered new evidence of additional unlawful activity
when agents discovered Shaygan’s day planner. The day planner led the agents to
new patients and witnesses, and based on information from these patients, the
government filed the superseding indictment. Shaygan never denied that the
superseding indictment was supported by new and sufficient evidence. The
prosecutors were doing their job, and when “[w]hen public officials do their jobs,
it is a good thing.” Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir. 1996). Second,
the district court erred when it held that discovery violations alone can support an
award of attorney’s fees under the Hyde Amendment. The term “position of the
United States” refers broadly to the overall litigating position of the United States,
not to isolated instances of misconduct in an otherwise justifiable prosecution.
Because the prosecution of Shaygan was objectively reasonable, the district court
did not have discretion to award attorney’s fees under the Hyde Amendment.
13
The panel opinion held that the Hyde Amendment is reserved for a specific
kind of wrong. The Amendment applies when the government brings a
prosecution that is objectively wrong, not when the prosecutor commits wrongs
during a reasonable prosecution. Although the dissent expresses fear that the
panel opinion will leave courts without the power to check prosecutorial
misconduct, checks on prosecutorial misconduct existed long before the Hyde
Amendment and remain in force. For example, as a sanction of prosecutors for
discovery violations, a district court can prohibit the government from introducing
the undisclosed evidence or “enter any other order that is just under the
circumstances.” Fed. R. Crim. P. 16(d)(2)(C)–(D). A court also can publically
reprimand prosecutors for misconduct, though it must afford them due process,
which the district court failed to do here. But a court can grant the extraordinary
remedy of an award of attorney’s fees only when it establishes that a wrongful
prosecution has occurred. No comparable remedy existed before the enactment of
the Hyde Amendment. The dissent suggests that “Congress sought to respond to
patterns of prosecutorial misconduct” when it used the phrase “the position of the
United States,” Dissenting Op. at 34, as if Congress intended the Hyde
Amendment to supplant extant remedies for prosecutorial misconduct. But that
interpretation makes no sense.
14
Our interpretation of the Hyde Amendment is consistent with the decision
of the Sixth Circuit in United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003). In
that case, the district court had awarded a defendant attorney’s fees and costs
under the Hyde Amendment on the ground that some of the charges against him
were frivolous, but the Sixth Circuit reversed. The Sixth Circuit ruled that the
district court had erred when it awarded attorney’s fees and costs without
“assess[ing] the case as an inclusive whole.” Id. at 731. The Sixth Circuit
reasoned that “[a] count-by-count analysis” was inconsistent with the Hyde
Amendment because its plain language refers to the “position” of the United States
in the singular. Id. at 730. It concluded that, “[w]hen assessing whether the
position of the United States was vexatious, frivolous, or in bad faith, the district
court should . . . make only one finding, which should be based on the case as an
inclusive whole.” Id. (internal quotation marks omitted).
The dissent misinterprets the panel opinion and states that it “collapses the
Hyde Amendment inquiry into only a single question: were the charges against the
defendant baseless?” Dissenting Op. at 33. But the panel opinion holds that the
appropriate inquiry under the Hyde Amendment is as follows: was it reasonable to
prosecute this case? Plainly these are different questions.
15
It is not difficult to imagine a prosecution that begins with objectively
reasonable charges and later becomes unreasonable to prosecute. For example, the
government could bring a case that was objectively reasonable at the outset and
later discover evidence that proved that a defendant was not guilty. If the
government continued to prosecute the case, the litigating position of the United
States would be in bad faith. Nothing in the panel opinion contradicts this
interpretation.
The dissent states that the Hyde Amendment requires a court to consider “a
case as an inclusive whole,” Dissenting Op. at 35, and “not fail to see the forest for
the trees,” id. at 36, but the dissent then rests its case on alleged discovery
violations related to two witnesses’ roles in a collateral investigation. The dissent
fails to explain how these alleged wrongs represent the entire “position of the
United States.” The dissent ignores the wealth of evidence that supported both the
initial and superseding indictments of Shaygan, including documentary evidence
and testimony from former employees, former patients, and two undercover police
officers. The dissent cautions against taking a narrow view of the case, but then
makes that very mistake.
The dissent’s argument is based heavily on a snippet of legislative history of
the Hyde Amendment, but that snippet provides a perfect example of why, “when
16
we consult legislative history, we [must] do so with due regard for its well-known
limitations and dangers.” Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d
1242, 1247 (11th Cir. 2008). The dissent notes that, when Representative Henry
Hyde introduced the first version of the Hyde Amendment, he spoke of instances
when prosecutors “keep information from [the defendant] that the law says they
must disclose,” “hide information,” and “suborn perjury.” Dissenting Op. at 34
(quoting 143 Cong. Rec. H7786-04, at H7791 (daily ed. Sept. 24, 1997) (statement
of Rep. Hyde)). The dissent reasons that “it seems Congress clearly understood
that the presence of probable cause does not, and should not, excuse patterns of
gross prosecutorial misconduct.” Dissenting Op. at 34–35.
The dissent’s argument about this legislative history is unavailing for at
least two reasons. First, Congressman Hyde’s statements were made in support of
the first version of the Amendment, which was patterned after the Equal Access to
Justice Act. See 143 Cong. Rec. H7786-04, H7791 (Sept. 24, 1997) (statement of
Rep. Hyde). In that earlier version, any acquitted defendant would have been able
to receive attorney’s fees unless the government could establish that its position
was “substantially justified.” United States v. Gilbert, 198 F.3d 1293, 1300 (11th
Cir. 1999) (quoting 143 Cong. Rec. H7786-04, H7791 (Sept. 24, 1997) (statement
of Rep. Hyde)). “[I]n response to concern that the initial version of the Hyde
17
Amendment swept too broadly, the scope of the provision was curtailed
significantly” by replacing the old standard with the current standard. Id. at 1302.
Thus, Congressman Hyde’s statements were made in support of a more lenient
standard that Congress rejected. His statements tell us little about the “daunting
obstacle” that Congress ultimately adopted. Id. Second, even if Congressman
Hyde’s statements were relevant, when taken as a whole, they support the view
that the Amendment applies only to wrongful prosecutions, not isolated wrongs
during reasonable prosecutions. Congressman Hyde warned against the
circumstances where the government “charges you with a criminal violation, even
gets an indictment and proceeds, but they are wrong. They are not just wrong,
they are willfully wrong, they are frivolously wrong.” 143 Cong. Rec. H7786-04,
H7791 (Sept. 24, 1997) (statement of Rep. Hyde). The government might engage
in various types of prosecutorial misconduct, “[b]ut they lose the litigation, the
criminal suit, and they cannot prove substantial justification. In that circumstance
. . . you should be entitled to your attorney’s fees reimbursed and the costs of
litigation . . . . That, my friends, is justice.” Id. (emphasis added). Congressman
Hyde’s statements referred to instances where an entire prosecution is wrong, not
instances where a prosecutor commits only a discovery violation or only dislikes a
defendant.
18
The dissent also argues that “the First Circuit has recognized that, under the
Hyde Amendment, an award may properly be based on ‘an array of government
conduct both before the indictment and during litigation,’” Dissenting Op. at 36
(quoting United States v. Knott, 256 F.3d 20, 31 (1st Cir. 2001)), but the dissent’s
assertion is misleading to the extent that it suggests that Knott allows an award
under the Hyde Amendment whenever a defendant’s right to discovery is violated.
In the same paragraph quoted by the dissent, the First Circuit stated that it would
“consider the conduct of the investigation in order to provide a context in which to
assess whether a prosecution was ‘vexatious.’” Knott, 256 F.3d at 31 (emphasis
added). Again, the proper inquiry encompasses the whole prosecution—the forest,
not the trees. The First Circuit concluded in Knott that because “[t]he government
had ample reason to investigate and pursue charges against the defendants . . . an
award of attorneys’ fees under the Hyde Amendment [wa]s clearly not warranted.”
Id. at 34.
If, as the dissent argues, the Hyde Amendment was meant “to respond to
patterns of prosecutorial misconduct,” Dissenting Op. at 34, then Congress’s
requirement that a defendant be acquitted before an award may be even considered
would be unnecessary. If the alleged discovery violations in Shaygan’s
prosecution were the kinds of wrongs Congress sought to address with the Hyde
19
Amendment, then Shaygan should be entitled to attorney’s fees whether the jury
found him guilty or not. An award of fees, after all, would be a powerful check on
prosecutorial power. But Congress did not open the federal treasury to convicted
felons.
The extraordinary remedy provided by the Hyde Amendment applies only
when a prosecution, assessed as an inclusive whole, is wrong. The prosecution of
Shaygan, triggered by the death of his patient and supported by substantial
evidence, was not wrong. The Hyde Amendment does not entitle Shaygan to an
award of fees of $601,795.88.
20
MARTIN, Circuit Judge, dissenting from the denial of rehearing en banc, in which
BARKETT, Circuit Judge, joins:
Prosecutors perform a vital and laudatory role for our society. To help them
carry out this role, we give them enormous power. This, even to such an extent
that they have authority to decide whether our government will seek to take the
life of a given criminal defendant. Our federal prosecutors are taught—and often
reminded—that the “interest” of the United States “in a criminal prosecution is not
that it shall win a case, but that justice shall be done.” Strickler v. Greene, 527
U.S. 263, 281, 119 S. Ct. 1936, 1948 (1999) (quotation marks omitted). My
observation is that prosecutors almost always do their job so as to bring honor to
the remarkable criminal justice system that is ours. At the same time, our system
of government is one of checks and balances, and no public official was intended
to have power without end.
In 1997, Congress enacted just such a check on prosecutors in a statute
commonly referred to as the Hyde Amendment. The legislation was widely
understood to be Congress’s response to the prosecution of former Congressman
21
Joseph McDade, who had served seventeen terms in Congress. After a lengthy
federal investigation and trial, a jury acquitted Mr. McDade. During the
development of that legislation, Congressman Henry Hyde, then Chairman of the
House Judiciary Committee, referred to “someone we all know who went through
hell, if I may use the term, for many years of being accused and finally prevailed at
enormous expense, one he will never get out from under.” 143 Cong. Rec.
H7786-04, at H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Henry Hyde,
Chairman, H. Comm. on Judiciary). In that same discussion, Congressman Hyde
described the concerns motivating the law which bears his name:
What if Uncle Sam sues you, charges you with a criminal violation, even
gets an indictment and proceeds, but they are wrong. They are not just
wrong, they are willfully wrong, they are frivolously wrong. They keep
information from you that the law says they must disclose. They hide
information. They do not disclose exculpatory information to which you
are entitled. They suborn perjury.
Id. As it was ultimately passed, the Hyde Amendment permits federal courts to
award reasonable attorneys fees to criminal defendants who are acquitted if “the
position of the United States was vexatious, frivolous, or in bad faith.” Pub. L.
No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes). Thus, we in the judicial branch were given our own
22
role to play in this system of checks and balances to protect against prosecutorial
misconduct.
The trial judge in this case performed his assigned role with great care. U.S.
District Judge Alan S. Gold’s comprehensive fifty-page Order awarding Hyde
Amendment attorneys fees to Dr. Ali Shaygan was “crowded with thorough
findings of fact” detailing government misconduct that took place in his
prosecution. United States v. Shaygan, 652 F.3d 1297, 1321 (11th Cir. 2011)
(Edmondson, J., concurring in part and dissenting in part). Judge Gold entered his
exhaustive Order after (1) shepherding the case through the more than fifteen
months between the time when Dr. Shaygan was indicted, until this appeal was
filed; (2) presiding over the four-week jury trial of Dr. Shaygan which culminated
in the jury acquitting the doctor of all 141 counts in the indictment, after a mere
three hours of deliberation, see United States v. Shaygan, 661 F. Supp. 2d 1289,
1291 (S.D. Fla. 2009), and (3) presiding over an extensive two-day evidentiary
hearing held after the acquittal, on Dr. Shaygan’s motion seeking relief under the
Hyde Amendment, see id.
This Court’s opinion sets aside none of Judge Gold’s findings of
misconduct by the prosecutors, but relieves the government of all Hyde
Amendment sanctions, holding that the attorneys fees were not permitted as a
23
matter of law. Specifically, the opinion holds that so long as a prosecutor has an
objective basis for charging a defendant, even patterns of serious prosecutorial
misconduct are immune from sanction under the Hyde Amendment. See Shaygan,
652 F.3d at 1317.1 To get to this result, the opinion rewrites the statute by limiting
the term “the position of the United States” to mean only the basis for bringing
charges. The statute will now be enforced in our Circuit in a way that places
precisely the type of prosecutorial misconduct Congressman Hyde highlighted as
motivating passage of the Hyde Amendment beyond its scope. This Court’s
opinion also strips our federal trial judges of a rarely needed, but critical tool for
deterring and punishing prosecutorial misconduct. And the prosecutorial
misconduct that happened in Dr. Shaygan’s case deserved punishment.2
I.
Dr. Shaygan was a medical doctor practicing in Miami. Prosecutors from
the U.S. Attorney’s Office in the Southern District of Florida sought, and the
Grand Jury returned, a twenty-three count indictment charging Dr. Shaygan with
1
The opinion does devise a single exception to this rule. Where a prosecutor uses a
constitutionally impermissible factor—such as race or religion—in deciding to bring charges, the
opinion permits Hyde Amendment sanctions even if the charges are supported by probable cause.
See Shaygan, 652 F.3d at 1312–13. I find the basis for this lone exception nowhere in either the text
of the Hyde Amendment or the statute’s legislative history.
2
I do not contest the panel’s decision to vacate the public reprimands against the prosecutors
on due process grounds. What I object to is the majority’s Hyde Amendment analysis.
24
distributing controlled substances outside the scope of professional practice and
not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1).
Shaygan, 661 F. Supp. 2d at 1293. The indictment also charged that Dr.
Shaygan’s improper prescribing practices resulted in the death of one of his
patients. Id. Judge Gold found that the bringing of the original indictment was
“not frivolous or commenced in bad faith.” Id. at 1321. However, the prosecution
of Dr. Shaygan ran into problems, and the prosecutors responded with tough
tactics that deteriorated into disobeying Court Orders, hiding evidence, and
shirking the longstanding obligations imposed upon federal prosecutors by Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Giglio v. United States, 405 U.S.
150, 92 S. Ct. 763 (1972), and the Jencks Act, 18 U.S.C. § 3500.
Early on in his prosecution, Dr. Shaygan refused to withdraw his ultimately
successful motion to suppress certain statements taken from him by investigators
in violation of his Miranda rights. The prosecutors responded by taking their case
against Dr. Shaygan back to the Grand Jury, to get a Superseding Indictment
which added, by my count, 118 counts to the original charges. Shaygan, 661 F.
Supp. 2d at 1298. This is the path by which the jury was ultimately presented with
a 141-count indictment against Dr. Shaygan. As I have said, the jury quickly
acquitted him of every count.
25
Judge Gold’s Order tells of how it came to pass that prosecutors enlisted
two of their most important witnesses, Carlos Vento and Trinity Clendening
(former patients of Dr. Shaygan), to secretly record conversations with Dr.
Shaygan’s lawyers and their investigator. The lead prosecutor promoted these
surreptitious recordings based on a report he got from his own investigator, an
agent of the Drug Enforcement Agency (DEA). The DEA agent reported that a
third prosecution witness, another patient named Courtney Tucker, was “going
south” and “showing signs of reluctance” about testifying against Dr. Shaygan.
Id. at 1301. The DEA agent advised that Ms. Tucker was wary of cooperating
with the government in Dr. Shaygan’s case, because she feared the government
would portray her as a drug addict during her testimony at Dr. Shaygan’s trial and
might even prosecute her in the future. See id. at 1300. Based on this report, the
lead prosecutor concluded that Dr. Shaygan’s lawyers were behind Ms. Tucker’s
reluctance to testify and were engaging in “witness tampering.” See id. at 1302.
He instituted the secret recordings to investigate. Id.3
3
This was not the first allegation of witness tampering made by these very prosecutors related
to Dr. Shaygan’s defense team. These same two prosecutors earlier brought a case against Evelio
Cervantes Conde, which resulted in Mr. Conde being acquitted. See United States v. Conde, No.
07-cr-20973 (S.D. Fla. July 18, 2008) (entering judgment of acquittal). Mr. Conde was represented
by Mark Seitles, who later became one of Dr. Shaygan’s lawyers. After the Conde acquittal, the two
prosecutors filed a criminal complaint against Mr. Conde, charging him with witness tampering.
Shaygan, 661 F. Supp. 2d at 1293. Mr. Seitles contested the charge with supervisors in the U.S.
Attorney’s Office, and the witness tampering case against Mr. Conde was dropped without an
26
Among the problems with this premise for the surreptitious recording of the
defense team is that the defense team never did say these things to Ms. Tucker,
and neither did Ms. Tucker ever tell the DEA agent that they had. See id. at 1299.
On this point, Judge Gold heard testimony from all involved, and made a finding
that Ms. Tucker did not tell the DEA agent that anyone from the defense team had
ever warned her that she would be subject to federal prosecution or that the
government would attempt to portray her as a drug addict. Id. Judge Gold
credited Ms. Tucker’s testimony that the defense team never tried to intimidate
her. Id. Indeed, the evidence indicated that it was the government that fabricated
Ms. Tucker’s purported bad statements about Dr. Shaygan when it included things
Ms. Tucker did not say in the DEA-6 report (DEA-6). See id. at 1298.
Once the ball got rolling on this baseless “witness tampering” investigation,
the detour from the path to justice veered further. The government identified Mr.
Vento and Mr. Clendening to the defense team as merely former Shaygan patients
who would serve as neutral witnesses to the facts of the case. In truth, the lead
prosecutor directed that Mr. Vento and Mr. Clendening be enlisted to record any
conversations they might have with Dr. Shaygan’s defense team, see id. at 1304,
and Mr. Vento was provided with a recording device for that purpose, id. at 1305.
indictment. Id.
27
Within a few days, Mr. Vento secretly recorded a conversation with Michael
Graff, who was the investigator working for Dr. Shaygan’s lawyers. Id. Later, at
the government’s request, but using his own equipment, Mr. Clendening secretly
recorded his conversation with David Markus—one of Dr. Shaygan’s lawyers.
See id. at 1308. These recordings were kept secret from the defense team and the
District Court.
The prosecutors violated direct Orders of the Court. Judge Gold ordered the
government to give him all DEA-6s so that he could review them, in camera,
before the trial began. See id. at 1300–01. Even so, the prosecutors did not turn
over the DEA-6 which reported that Mr. Vento had recorded his conversation with
Mr. Graff and also documented the DEA agent’s interview of Ms. Tucker. See id.
at 1306. Neither did the government provide any DEA-6 which reported that Mr.
Clendening had recorded his conversation with Mr. Markus. See id. at 1310
(noting the prosecutor “did not disclose that he knew Clendening, who testified for
the Government after Vento, was working with [the DEA agent] and that he had
agreed to make recordings”). Also not produced was the “crucial DEA-6”
reflecting that Mr. Vento had entered into a confidential informant agreement with
28
the government on January 16, 2009. Id. at 1309.4 As Judge Gold noted, if these
DEA-6 reports had been produced to him as he had ordered, Dr. Shaygan and the
Court would have known about the recording of the defense team, and that Mr.
Vento and Mr. Clendening were serving as DEA informants, instead of appearing
as neutral witnesses. See id. at 1317.
Beyond these violations of the Court’s Orders, the prosecutors also violated
their duties under Brady, Giglio and the Jencks Act.5 For example, the prosecutors
knew of information given by Dr. Shaygan’s patients that was favorable to him,
but withheld it. See id. at 1317–18. This was important because it went directly
to the prosecution’s theory that Dr. Shaygan was not a legitimate doctor. See id. at
1318. Giglio was violated, for example, when the prosecution never disclosed to
4
Dr. Shaygan’s trial began on February 17, 2009. The fact of Mr. Vento’s January 16, 2009
confidential informant agreement with the government was not written in the form of a DEA-6 until
March 3, 2009, which was during the trial, and after the defense had already learned about Mr.
Vento’s recording of Mr. Graff. See Shaygan, 661 F. Supp. 2d at 1309.
5
Judge Gold’s fifty-page Order makes so many findings that it is not practical to set them
all out here. Beyond what is set out in the main text of this dissent, Judge Gold delineated his
findings of (1) instances in which the prosecutors offered live testimony which varied from their own
written affidavits previously given to the Court, see Shaygan, 661 F. Supp. 2d at 1302, 1306; (2)
instances in which various members of the U.S. Attorney’s Office and law enforcement agents gave
differing accounts of the same events, see id. at 1302; (3) policies of the U.S. Attorney’s Office
regarding investigations of opposing counsel being violated, see id. at 1303–04; and (4) members
of the U.S. Attorney’s Office “casually” discussing with a group of people at dinner, the fact that
while he was testifying during Dr. Shaygan’s trial, Mr. Clendening blurted out that he had recorded
his conversation with Dr. Shaygan’s lawyer, when no member of the prosecution had ever disclosed
the existence of these recordings to the Court, see id. at 1312–13.
29
Dr. Shaygan that it had contacted a Florida prosecutor on behalf of Mr.
Clendening—who was facing felony drug charges in Florida state court—to
communicate that Mr. Clendening had been assisting the federal government in its
efforts to prosecute Dr. Shaygan. See id. at 1309. The government violated the
Jencks Act, when it possessed recorded statements of Mr. Vento and Mr.
Clendening speaking to members of the Shaygan defense team, but did not turn
over those statements in connection with Vento and Clendening’s testimony at
trial. See id. at 1319–20. All this the government failed to do even in the face of
specific defense requests for Brady, Giglio and Jencks material, and a standing
Court Order to produce it.
II.
As with the factual inquiry, Judge Gold diligently undertook the
responsibility imposed on him by the Hyde Amendment to determine whether this
misconduct by the government amounted to a position that was vexatious,
frivolous or in bad faith. As I have said, he made findings after hearing oral
testimony and receiving written affidavits from all involved. He found generally
that the two Shaygan prosecutors “exhibited a pattern of ‘win-at-all-cost’ behavior
. . . that was contrary to their ethical obligations as prosecutors and a breach of
their ‘heavy obligation to the accused.’” Id. at 1315. Judge Gold’s finding in this
30
regard was supported by countless evidentiary details which cannot all be restated
here. I will only briefly summarize.
Among Judge Gold’s specific findings of bad faith was his finding that the
lead prosecutor undertook the surreptitious recordings in the so-called witness
tampering investigation “for the bad faith purpose of seeking to disqualify the
defense lawyers for conflict-of-interest immediately prior to trial.” Id. at 1310.
Judge Gold found that the lead prosecutor knew that if key defense lawyers for Dr.
Shaygan could be disqualified just before the trial, they would have to step down
immediately. See id. at 1311. That “catastrophic” blow, it was hoped, would
“force” Dr. Shaygan to plead guilty. Id.
Judge Gold also undertook an extensive discussion of how the lead
prosecutor failed to follow either the policies of his U.S. Attorney’s Office or the
specific instruction given him to remove himself from the investigation he had
initiated against opposing counsel. Noting how the strict “taint wall” between the
Shaygan prosecution and the investigation of Dr. Shaygan’s defense team had
been repeatedly breached for “tactical” purposes, id. at 1311, Judge Gold found
that the lead prosecutor acted with “implicit bias and in bad faith” in this regard as
well. Id. at 1302.
31
Judge Gold drew a “strong inference[]” that the Superseding Indictment
adding 118 counts to the twenty-three counts of the original indictment was
“significantly motived by ill-will.” Id. at 1298. Judge Gold found that the
addition of so many charges was designed to compel a guilty plea from Dr.
Shaygan by “greatly increas[ing] the time and cost of the trial” and by delaying the
trial so as to prolong the “strict conditions of house arrest” which were exacting a
heavy psychological toll on Dr. Shaygan. Id.
Finally, Judge Gold found that the prosecution’s failure to turn over the
DEA-6 documenting that Mr. Vento had recorded the defense team was “knowing
and in bad faith.” Id. at 1306. He found that the prosecution’s failure to turn over
the DEA-6 report of the interview of Ms. Tucker was “willful, vexatious and in
bad faith.” Id. at 1301. These actions and many others, Judge Gold concluded,
were “conscious and deliberate wrongs” arising from “the prosecutors’ moral
obliquity.” Id. at 1321. And far from isolated wrongs, he emphasized, they fit
into a “pattern” of desperate conduct designed to save a case that had become
weak from getting even weaker. See id. at 1315, 1322. It was this pattern of
32
misconduct that led Judge Gold to conclude sanctions were warranted. See id. at
1321–22.6
III.
As I have said, this Court’s opinion in Shaygan does not set aside the
findings of fact that undergirded Judge Gold’s Hyde Amendment analysis.
Indeed, the opinion assumes that the prosecutors did and said everything that
Judge Gold found to be true. See Shaygan, 652 F.3d at 1311, 1315–16. Neither
does it point to error in Judge Gold’s findings of fact that the prosecutors acted in
violation of their ethical obligations as representatives of our government. See id.7
Rather, the opinion assumes that the only factor that reflects the position of the
government (other than the narrow exception I have mentioned) is the basis for the
charges against the defendant. See id. at 1311–16. This astoundingly narrow
reading of the term “the position of the United States” collapses the Hyde
Amendment inquiry into only a single question: were the charges against the
6
This Court’s Shaygan opinion implies that the District Court rested the award on “discovery
violations alone.” 652 F.3d at 1315. That is a plainly incorrect characterization of Judge Gold’s
Hyde Amendment analysis. Judge Gold found that the sum total of the prosecutors’ conduct
supported the award.
7
Judge Pryor says in his concurrence that Judge Gold’s findings of misconduct “were vacated
by the unanimous panel.” Concurring Op. at 12. However, I do not read the panel opinion this way.
The only thing that the majority opinion does is to question in passing the reliability of the record
after vacating the public reprimands on due process grounds. See Shaygan, 652 F.3d at 1319.
33
defendant baseless? See id. at 1311–13. If the answer to that question is no, then
“the prosecution is objectively reasonable,” and the Hyde Amendment inquiry
comes to an abrupt halt. Id. at 1317.
Applying this test, the opinion concludes that solely because probable cause
supported the charges in the Superseding Indictment, the prosecution of Dr.
Shaygan was “objectively reasonable” and therefore not in bad faith. See id. at
1313, 1315–16. This approach makes all of the prosecutorial misconduct found by
Judge Gold irrelevant. And by this route, the opinion reaches the remarkable
holding that the District Court had “no discretion to award Shaygan attorney’s fees
and costs.” Id. at 1317 (emphasis added). Yet, this holding contradicts what
Congress said when it passed the Hyde Amendment and renders the statute
incapable of doing what Congress intended. As a result, and not surprisingly, it
marks an unwarranted departure from the decisions of our sister Circuits and from
Supreme Court precedent.
In passing the Hyde Amendment Congress sought to respond to patterns of
prosecutorial misconduct, including instances where prosecutors “keep
information from [the defendant] that the law says they must disclose,” “hide
information” and “suborn perjury.” 143 Cong. Rec. H7786-04, at H7791 (daily
34
ed. Sept. 24, 1997) (statement of Rep. Hyde).8 Thus, it seems Congress clearly
understood that the presence of probable cause does not, and should not, excuse
patterns of gross prosecutorial misconduct. Indeed, the legislative history
expressly reflects that “a grand jury finding of probable cause to support an
indictment does not preclude a judge from [awarding attorney’s fees].” H.R. Rep.
No. 105-405, at 194 (1997) (Conf. Rep.), reprinted in 1997 U.S.C.C.A.N. 2941,
3045 (emphasis added).
To ensure that the basis for the charges alone does not limit the availability
of sanctions, Congress adopted the term “the position of the United States” from
the Equal Access to Justice Act (EAJA). See United States v. Gilbert, 198 F.3d
1293, 1300 (11th Cir. 1999) (noting that Congressman Hyde “patterned his
amendment after” the EAJA). The EAJA provides for attorneys fees to litigants
who prevail against the United States in civil cases where the government’s
position is not “substantially justified.” See 28 U.S.C. § 2412(d)(1)(A). By the
time Congress was considering Congressman Hyde’s proposal, and in the context
8
Remarkably, Judge Pryor’s concurrence to the denial of en banc review says that
Congressman Hyde’s statements are irrelevant as to what his own proposal means. See Concurring
Op. at 16–18. Judge Pryor emphasizes that Congressman Hyde’s statements were made in support
of an earlier version of the Amendment. Id. at 17. But, while Congress made several changes to the
statutory text between the first and final versions of the Hyde Amendment, none had anything to do
with the meaning of the term “the position of the United States,” which remained unchanged
throughout the legislative process. See United States v. Gilbert, 198 F.3d 1293, 1299–1302 (11th
Cir. 1999).
35
of awarding attorneys fees against the government, the term “the position of the
United States” had acquired a specific meaning. In Commissioner, INS v. Jean,
496 U.S. 154, 110 S. Ct. 2316 (1990), the Supreme Court held that the term
requires a court to consider “a case as an inclusive whole.” Id. at 161–62, 110 S.
Ct. at 2320.
Based on this expansive interpretation of the term “position,” the First
Circuit has recognized that, under the Hyde Amendment, an award may properly
be based on “an array of government conduct both before the indictment and
during litigation.” United States v. Knott, 256 F.3d 20, 31 (1st Cir. 2001). In the
same way, the Sixth Circuit has observed that under the Hyde Amendment,
“[w]hen assessing whether the position of the United States was vexatious,
frivolous, or in bad faith, the district court should [evaluate] the case as an
inclusive whole.” United States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003)
(quotation marks omitted). Rejecting the idea that the Hyde Amendment
contemplates “a precise litmus test,” the Sixth Circuit cautioned that courts “must
not fail to see the forest for the trees.” Id.
Decisions from other Circuits also reflect that the term “position” requires a
court to examine “a case as an inclusive whole,” Jean, 496 U.S. at 161–62, 110 S.
Ct. at 2320. See, e.g., United States v. Porchay, 533 F.3d 704, 707–08, 711 (8th
36
Cir. 2008) (examining whether government conduct following the dismissal of the
indictment was in bad faith); United States v. Manchester Farming P’ship, 315
F.3d 1176, 1185–86 & n.25 (9th Cir. 2003) (examining whether government
conduct both after the indictment was filed and during trial demonstrated bad
faith).
This Circuit stands alone in its now established rule that in order to discern
“the position of the United States,” a court need only examine the basis for the
charges. See Shaygan, 652 F.3d at 1312–16. I find great irony in that, under our
rule, the type of misconduct Congressman Hyde specifically decried in urging his
colleagues to adopt his amendment is now beyond the scope of the law. This new
and myopic view of what constitutes “the position of the United States” under the
Hyde Amendment leads to a particularly shocking result in this case. For me this
is most plainly manifested in the Court’s conclusion that these prosecutors’ pattern
of conduct—only part of which I have described here—was “objectively
reasonable.” Id. at 1317. I have no doubt this pattern of wrongs, undertaken to
save a failing case, amounted to “the position of the United States.”
IV.
In closing, I must say that I realize there are few less popular classes of
people for whom to advocate than those charged with federal crimes. One might
37
say that a person, like Dr. Shaygan, who has been acquitted has nothing to
complain about. But Congress thought differently. The rules that govern our
criminal justice system have developed over the life of our country to allow those
accused of crimes to know the evidence against them; to be advised of the
weaknesses in that evidence; and to be able to confront the witnesses against them
with full knowledge of information which might color their testimony. Just like
the rest of us, Dr. Shaygan was constitutionally entitled to all of this as he faced
the serious charges leveled against him. The government violated Dr. Shaygan’s
rights, and now, contrary to what Congress has provided, he is left alone to pay the
costs he suffered at the hands of these rule breakers.
It also strikes me as dangerous to render trial judges mere spectators of
extreme government misconduct. By enacting the Hyde Amendment, Congress
gave trial judges the responsibility to determine whether “the position of the
United States was vexatious, frivolous, or in bad faith.” I say Judge Gold
performed that unpleasant duty admirably, and he had every reason in law to
expect that his Order would be affirmed. Indeed, this Court has said “prosecutors
must expect that this court will support district judges who take reasonable steps
to correct prosecutorial conduct that is not right.” United States v. Wilson, 149
38
F.3d 1298, 1304 (11th Cir. 1998). This Court’s decision not to reconsider this
case en banc forsakes that principle. I respectfully dissent.
39