U.S. v. Shaygan

• Decision Date: 29 August 2011
• Docket Number: No. 09–12129.,09–12129.
• Citation: 23 Fla. L. Weekly Fed. C 305,652 F.3d 1297
• Parties: UNITED STATES of America, Plaintiff–Appellant,Andrea G. Hoffman, Sean Paul Cronin, Interested–Parties–Appellants,v.Ali SHAYGAN, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

652 F.3d 1297

23 Fla. L. Weekly Fed. C 305

UNITED STATES of America, Plaintiff–Appellant,Andrea G. Hoffman, Sean Paul Cronin, Interested–Parties–Appellants,

v.Ali SHAYGAN, Defendant–Appellee.

No. 09–12129.

United States Court of Appeals, Eleventh Circuit.

Aug. 29, 2011.

Robert C. Josefsberg, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Anne R. Schultz, Asst. U.S. Atty., Laura Thomas Rivero, Miami, FL, Roberto Martinez, Maureen Elizabeth Lefebvre, Susan Tarbe, Colson, Hicks, Eidson, Coral Gables, FL, Kirby A. Heller, Washington, DC, for Appellants.David O. Markus, David Oscar Markus, PLLC, Miami, FL, for Appellee.G. Richard Strafer, G. Richard Strafer, P.A., Miami, FL, for American Civil Liberties Union of Florida, amicus curiae.H. Scott Fingerhut, Miami, FL, for National Association of Criminal Defense Lawyers, amicus curiae.Appeals from the United States District Court for the Southern District of Florida.Before EDMONDSON, PRYOR and BARKSDALE,^* Circuit Judges.

PRYOR, Circuit Judge:

The stakes in this appeal are high: 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. The United States appeals an award of $601,795.88 in attorney's fees and costs under the Hyde Amendment, Pub.L. No. 105–119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes), and two attorneys, Sean Cronin and Andrea Hoffman, appeal public reprimands entered against them based on their work as Assistant United States Attorneys in an underlying criminal action marked by hard adversarial tactics. A grand jury indicted Dr. Ali Shaygan for distributing and dispensing controlled substances outside the scope of professional practice, 21 U.S.C. § 841(a)(1). The Drug Enforcement Administration had conducted an undercover investigation of Shaygan after one of his patients died from a lethal combination of prescription and illegal drugs. After Shaygan's arrest, the government discovered additional evidence of violations of federal law, and Shaygan moved to suppress statements he had made to federal agents who, Shaygan contended, had violated his right to counsel. In response to that motion, Cronin warned Shaygan's lead counsel of an impending “seismic shift” in the prosecution of Shaygan. Soon afterward, the government filed a superseding indictment with additional charges and supported those charges at trial with the testimony of several witnesses and documentary evidence. Near the end of trial, the district court allowed a second cross-examination of two witnesses for the government after it came to light that those witnesses had cooperated in a collateral investigation about potential witness tampering by members of the defense team. The district court instructed the jury that the reopening of cross-examination was necessary to address misconduct by the government. In closing argument, Shaygan's counsel compared that alleged misconduct to the Salem witch trials. After the jury acquitted Shaygan of all charges, the district court held an inquiry about sanctions under the Hyde Amendment. The district court found that the prosecutors “acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed.” The district court awarded Shaygan attorney's fees and costs, publicly reprimanded Cronin and Hoffman, and referred those attorneys to disciplinary authorities.

The United States, Cronin, and Hoffman contend that the district court abused its discretion and committed fundamental errors. The United States argues that the district court erroneously ruled that the superseding indictment was “brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.1999), and that the district court erroneously concluded that an award of attorney's fees and costs under the Hyde Amendment could be supported by discrete incidents of bad faith, such as discovery violations, without regard to the overall litigating position of the United States. Cronin and Hoffman argue that the district court violated their right to due process, under the Fifth Amendment, when it denied them notice and an opportunity to be heard before it entered public reprimands of them.

We agree with these arguments. The district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and the district court violated the constitutional right to due process of the two lead prosecutors, Cronin and Hoffman, when it denied them notice of any charges of misconduct and an opportunity to be heard. We vacate both the award of attorney's fees and costs against the United States and the public reprimands of Cronin and Hoffman, but we deny the request of Cronin and Hoffman that we reassign the case to a different district judge at this stage.

I. BACKGROUND

We address the background of this appeal in two parts. First, we discuss the prosecution of Shaygan and the collateral investigation of witness tampering. Second, we discuss the sanctions hearing, the award of attorney's fees and costs under the Hyde Amendment, and the public reprimands of Cronin and Hoffman.

A. The Prosecution of Shaygan and the Witness Tampering Investigation

On June 9, 2007, a patient of Dr. Ali Shaygan, James Brendan Downey, died from an overdose of various drugs including methadone and cocaine. Shaygan had prescribed methadone to Downey two days before his death. An autopsy revealed that the level of methadone in Downey's blood alone was enough to kill him.

After Downey's death, the Drug Enforcement Administration conducted an undercover investigation of Shaygan. Matthew Drake and Paul Williams, local police officers, posed as prospective patients of Shaygan to determine how easily they could obtain prescriptions of controlled substances. Drake and Williams recorded their conversations and obtained prescriptions for several controlled substances on their first visits to Shaygan. The officers presented no medical records and were given minimal physical examinations.

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. 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.

On May 14, 2008, Shaygan filed a motion to suppress statements made at the time of his arrest. In the motion, Shaygan alleged that, “[d]espite Dr. Shaygan's repeated, unequivocal requests to speak with a lawyer, the agents continued to interrogate him, ignoring his requests as if they did not exist.” He also alleged that an agent “us[ed] scare tactics and repeatedly ma[de] clicking noises with his firearm[ ] ... [and] brandished his firearm in front of Dr. Shaygan, intimidating him.” The government filed a response that contested the factual allegations in the motion to suppress. Instead of a clear request for an attorney, the government alleged that Shaygan asked, “[S]hould I call my attorney?” or “[D]on't I need to call my attorney?” According to the government, Shaygan was advised that he could either invoke his right to counsel and not answer any questions or he could choose to cooperate, and he stated that he wanted to cooperate and answered questions.

The government determined from Shaygan's day planner that he had met with Downey and several additional patients, including Andrew Gribben and Courtney Tucker, on the same day at a Starbucks coffee store. An Administration agent interviewed one of Shaygan's patients, Carlos Vento, on July 29, 2008. According to an Administration DEA–6 report, Vento stated that Shaygan had offered to pay him and another patient, Trinity Clendening, if they kept silent about Shaygan's role in Downey's death.

On July 31, 2008, the parties participated in a discovery conference at which the lead prosecutor confronted the lead defense attorney about the motion to suppress. As the parties argued about which version of the facts was correct, the lead prosecutor, Sean Cronin, stated to Shaygan's lead attorney, David Markus, that pursuing the motion to suppress would result in a “seismic shift.” Soon afterward, Markus had Shaygan take a polygraph test.

The Administration interviewed Clendening on August 8, 2008, and he corroborated Vento's accusations about Shaygan's offer to pay for their silence. On August 13, 2008, the Administration interviewed Gribben, who stated that he and a friend, David Falcon, had received prescriptions from Shaygan without medical examinations. Although the government was initially unable to locate Falcon, it eventually found him, and he testified at trial.

The Administration interviewed Tucker on August 15, 2008, and she identified her boyfriend, Wayne McQuarrie, as an additional patient of Shaygan. According to a DEA–6 report prepared by Administration Agent Christopher Wells about Tucker's interview, Tucker made positive statements about Shaygan, including that he “conducted a thorough examination” and “seemed very interested in her well being.” The DEA–6 report also contained negative statements attributed to Tucker concerning Shaygan, including that he “seemed to become more interested in making money than addressing her medical condition or improving her overall health during the year and a half that she purchased prescriptions from him.” Soon after Agent Wells interviewed Tucker, defense investigator Michael Graff spoke with Tucker on...