United States v. Shaygan
| Decision Date | 02 April 2012 |
| Docket Number | No. 09-12129,D. C. Docket No. 08-20112-CR-ASG,09-12129 |
| 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 |
[PUBLISH]
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,
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.
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 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 theHouse 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) (). Thus, we in the judicial branch were given our own 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 HydeAmendment 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 disputes none of Judge Gold's findings of misconduct by the prosecutors, but relieves them of all sanctions imposed, holding that sanctions were not permitted as a matter of law. Specifically, the opinion holds that so long as a prosecutor has a good faith basis for charging a defendant in the first place, any prosecutorial misconduct that follows is immune from sanctionunder 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.
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 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.
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.2
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. Within a few days, Mr. Vento secretly recorded a conversation with ...
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