U.S. v. Shaygan

• Decision Date: 09 April 2009
• Docket Number: Case No.: 08-20112-CR.
• Citation: 661 F.Supp.2d 1289
• Parties: UNITED STATES of America, Plaintiff, v. Ali SHAYGAN, Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1289

661 F.Supp.2d 1289

UNITED STATES of America, Plaintiff, v. Ali SHAYGAN, Defendant.

Case No.: 08-20112-CR.

United States District Court, S.D. Florida.

April 9, 2009.

As Amended April 14, 2009.

Sean Paul Cronin, Andrea G. Hoffman, Arimentha R. Walkins, Edward N. Stamm, United States Attorney's Office, Miami, FL, for Plaintiff.

ORDER ON DEFENDANT'S MOTION FOR SANCTIONS UNDER HYDE AMENDMENT

ALAN S. GOLD, District Judge.

I. GENERAL BACKGROUND

THIS MATTER is before the Court on the Defendant Ali Shaygan's Motion for Sanction [DE 287] pursuant to the Hyde Amendment and for other miscellaneous relief. 18 U.S.C. § 3006A. The United States has filed a response [DE 299] acknowledging that the United States "made serious mistakes in a collateral investigation that was an offshoot of this case and stands ready to pay the additional attorneys' fees and costs incurred by the defendant as a result." [DE 299 at 1, 2].

The United States acknowledges that it initiated a collateral investigation into witness tampering and authorized two witnesses, Carlos Vento and Trinity Clendening, to tape their discussions with members of the defense team in violation of United States Attorney's Office policy; that, although there were efforts made to erect a "taint wall," the wall was imperfect and was breached by the trial prosecutors AUSA Sean Paul Cronin and Andrea Hoffman, at least in part, because the case agent, DEA Special Agent Christopher Wells, was initially on both sides of the wall; and that, because the United States violated its discovery obligations by not disclosing to the defense "(a) that witnesses Vento and Clendening were cooperating with the government by recording their conversations with members of the defense team, and (b) Vento's and Clendening's recorded statements at the time of their trial testimony." Finally, the United States "acknowledges and regrets" that, "in complying with the Court's pre-trial order to produce all DEA-6 reports for in camera inspection on February 12, 2009 (Court Ex. 6), the government failed to provide the Court with the two DEA-6 reports regarding the collateral investigation, specifically Agent Wells' December 12, 2008 report (Court Ex. 2) and Agent Brown's January 16, 2009 report (Court Ex. 3)." [DE 299 at 2, 3].

The United States' position is that none of these mistakes were done in "bad faith" and that immediate efforts were taken to investigate, report and rectify the matter once it came to light during the cross-examination of Trinity Clendening. Accordingly, the Government argues that the payment of fees and costs associated with the entire prosecution is not warranted under the Hyde Amendment. In his reply, Defendant argues that while the United States has acknowledged some degree of misconduct, it fails to concede that various actions taken by the prosecution team were motivated by ill will and personal animus. Defendant argues, therefore, that the United States' concession of liability under the Hyde Amendment is too narrow and that the payment of fees and costs from the date of the Superseding Indictment was filed in this case is warranted. [DE 309].

On March 12, 2009, after a four-week trial, the jury rendered a "not guilty" verdict on all one-hundred and forty-one (141) counts of the Superseding Indictment within three hours of deliberation. On March 16 and 17, 2009, following the jury's verdict, I held an evidentiary hearing ("Sanctions Hearing") on the Defendant's Motion for Sanctions. At the Sanctions Hearing, the following witnesses testified: Michael Graff, the defense investigator; Courtney Beth Tucker, the witness whose telephone call to DEA Special Agent Wells triggered the collateral investigation; DEA Special Agents Christopher Wells and James Brown; and AUSA Karen Gilbert and Sean Cronin.

II. SUMMARY OF ORDER

I begin by acknowledging that the United States has acted responsibly, in part, by offering to pay the reasonable attorney's fees and costs associated with Dr. Shaygan's motions to dismiss and for sanctions, and by referring this matter to the Department of Justice's Office of Professional Responsibility on March 6, 2009 for an independent investigation and recommendations regarding disciplinary actions. I also acknowledge that the United States Attorney and his senior staff members had no direct knowledge of the events that I will describe.¹ Finally, I agree that the original indictment in this case was filed in "good faith," especially given the circumstances surrounding the death of Dr. Shaygan's patient, James Downey.²

Nonetheless, I enter a public reprimand against: (1) the United States Attorney and his senior staff members, for failure to exercise proper supervision over AUSA Karen Gilbert, the head of the Narcotics Section of the United States Attorney's Office; (2) AUSA Gilbert and her deputies for acting with gross negligence with regard to the events which ensued; and (3) the two prosecutors assigned in this case, AUSA Sean Paul Cronin and Andrea G. Hoffman. I conclude, without doubt, that AUSA Cronin, with the assistance of AUSA Hoffman, along with DEA Special Agent Christopher Wells, acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed and by knowingly and willfully disobeying the orders of this Court. These lawyers are publically reprimanded and shall be sanctioned, as set forth in this Order.³

The events surrounding the prosecution of Dr. Shaygan are described in detail in this Order. These events are profoundly disturbing. They raise troubling issues about the integrity of those who wield enormous power over the people they prosecute. As stated in a recent editorial in the Miami Herald, "How many times does it need to be said? The job of prosecutors is to obtain justice, not merely to secure convictions." Editorial, Miami Herald, April 3, 2009, at 14A (addressing the case against former Alaska Senator Ted Stevens). I concur with the Herald's sentiment in that it embodies the essence of the oft-quoted words of Justice Sutherland in Berger v. United States, which are set forth at page 27 below.

Therefore, I write in detail to make clear what happened here because it is necessary to get to the bottom of what went wrong. I do so in hope that it will not happen again. Our system of criminal justice cannot long survive unless prosecutors strictly adhere to their ethical obligations, avoid even the appearance of partiality, and directly obey discovery obligations and court orders. Of fundamental importance, the United States may not callously invade the sanctity of a defendant's Sixth Amendment right to counsel, in an ongoing prosecution, by engaging in collateral witness tampering proceedings involving the defense lawyers and investigators without strictly complying with all constitutional and related guarantees.

Initially, it is the responsibility of the United States Attorney and his senior staff to create a culture where "win-at-any-cost" prosecution is not permitted. Indeed, such a culture must be mandated from the highest levels of the United States Department of Justice and the United States Attorney General. It is equally important that the courts of the United States must let it be known that, when substantial abuses occur, sanctions will be imposed to make the risk of non-compliance too costly.

For reasons stated in this Order, I grant full relief under the Hyde Amendment and impose individual sanctions against AUSA Cronin and Hoffman. I order the United States to reimburse the Defendant for his entire attorney's fees and costs in this case from the date of the filing of the Superseding Indictment. Based on the information submitted by the defense, the actual amount of fees incurred since the filing of the Superseding Indictment for work performed totaled over $1,074,300.00. With adjustments as required by the Hyde Amendment, the United States is ordered to pay attorney's fees in the amount of $493,764.00 and other litigation expenses, including expert fees and costs, in the amount of $108,031.88, for a total award of $601,795.88.

Besides the public reprimand, I also enjoin the United States Attorney's Office for the Southern District of Florida from engaging in future witness tampering investigation of defense lawyers and team members in any ongoing prosecution before me without first bringing such matters to my attention in an ex parte proceeding. The United States Attorney also shall report his efforts toward enhanced supervision of his attorneys, and all changes to the "taint wall" policies within the United States Attorney's Office and the Drug Enforcement Administration.

III. FINDINGS OF FACT

1. On February 8, 2008, the United States filed an indictment [DE 3] against Dr. Ali Shaygan, setting forth 23 counts alleging that Dr. Shaygan distributed and dispensed 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) et seq. Also included was one count alleging that such distribution resulted in the death of James Brendan Downey. Id. At the time of the original indictment, the 23 counts addressed prescriptions written only to James Brendan Downey and two undercover officers, Matthew Drake and Paul Williams. The lead prosecutor at the time of the filing of the indictment was AUSA Sean Paul Cronin. He was assisted by AUSA Andrea G. Hoffman.

2. This was not AUSA Cronin or Hoffman's first encounter with members of Dr. Shaygan's defense team. In early 2008, co-counsel Marc Seitles represented defendant Evelio Conde in United States v. Conde, Case No. 07-20973-CALTONAGA. Although the Conde case was unrelated to Dr. Shaygan's, the prosecutors were the same (AUSA Cronin and Hoffman) as in this case. After what was characterized as an "acrimonious trial," Mr. Conde was acquitted of all charges. Shortly after, AUSA Cronin and Hoffman filed a complaint alleging...