11th Circuit Overturns Sanctions Levied Against Federal Prosecutors
On August 29, 2011, the United States Court of Appeals for the Eleventh Circuit, in a divided decision, overturned a $602,000 sanction and public reprimand of federal prosecutors for prosecutorial misconduct. The 11th Circuit held that the district court abused its discretion when it “imposed sanctions against the United States for a prosecution that was objectively reasonable.” The Circuit Court also held that Judge Gold (of the United States District Court for the Southern District of Florida in Miami) violated the due process rights of the two lead federal prosecutors when he issued public reprimands without notice of charges and an opportunity to be heard. Additionally, the Courts opinion may have reshaped the bounds of prosecutorial conduct sanctionable under the Hyde Amendment. A copy of the 11th Circuits opinion can be read here.
The sanctions and reprimand were ordered by Judge Gold in 2009 for actions federal prosecutors took in the case of United States v. Ali Shaygan. Dr. Shaygan was a pain-management doctor who was indicted on 23 counts of distribution of controlled substance outside the scope of his medical practice in violation of 21 U.S.C. § 841(a)(1). However, Dr. Shaygan filed a motion to suppress statements made after his arrest because D.E.A. agents continued questioning after Dr. Shaygan invoked his right to counsel. In reaction to the motion to suppress, lead federal prosecutor Sean Cronin warned defense attorneys that “pursing the motion to suppress would result in a Ëœseismic shift” in the case against Shaygan. Id. at 7.
Following the prosecutors “seismic shift” comments, the government filed a superseding indictment of 141 counts. Prosecutors also began a collateral investigation into Dr. Shaygans defense team for witness tampering. During its investigation, federal prosecutors enlisted Dr. Shaygans former patients as confidential informants and authorized them to tape phone conversations with the defense attorneys. However, prosecutors failed to comply with internal policy of the U.S. Attorneys Office because they did not receive authorization for the investigation or the recordings from the United States Attorney. Additionally, the prosecutors failed to turn over discovery related to witness tampering investigation.
Ultimately, the jury found Dr. Shaygan not guilty on all counts. However, following the trial, Judge Gold ordered the federal prosecutors trying the case, Mr. Cronin and Ms. Andrea Hoffman, to appear for a sanctions hearing. As a result, Judge Gold ordered the United States to pay $601,795.88 in attorneys fees to the defense and publicly reprimanded both attorneys.
The basis for Judge Golds award of attorneys fees was the Hyde Amendment. The Hyde Amendment, which was passed as part of the Appropriations Act of 1998, permits the court, in a criminal case, to award to the defendant, if he is the prevailing party, reasonable attorneys fees where the court finds the position of the United States was “vexatious, frivolous, or in bad faith.” Judge Gold found that the prosecutors acted in bad faith following the motion to suppress when they filed the superseding indictment, launched the witness tampering investigation, and violated discovery rules by failing to disclose the information of the investigation to the defense.
In reversing Judge Golds Order, the 11th Circuit held that the District Court applied an incorrect legal standard for awarding fees under the Hyde Amendment. The 11th Circuit found that subjectively motivated ill-will of an individual prosecutor “alone cannot support a sanction against the United States under the Hyde Amendment.” Id. at 28. Instead, bad faith is viewed under an objective standard. As such, as long as a prosecutor had an “objective reasonable basis” in law, i.e. not frivolous, and fact, i.e. not vexatious, an award of attorneys fees under the Hyde Amendment is improper. Id. at 30-32. The Court stated: “A rule that would allow a determination of bad faith whenever a prosecutor uses harsh words, such as Ëœseismic shift, and harbors some ill-will toward the defense would chill the ardor of prosecutors and prevent them from prosecuting with earnestness and vigor. The Hyde Amendment was not intended to do that.” Id. at 37.
The 11th Circuit also disagreed with Judge Golds reasoning that discovery violations alone can support an award for attorneys fees under the Hyde Amendment. Rather, the decision of whether the position of the United States is sanctionable should be based on the case as a whole. Id. at 41. The Court also held that the District Court denied the prosecutors due process when publically reprimanding them: “Due process requires that the attorney (or party) be given fair notice that his conduct may warrant sanctions and the reasons why.”
Judge Edmondson of the Eleventh Circuit dissented from the Courts majority opinion regarding its interpretation of whether the award for attorneys fees was appropriate under the Hyde Amendment. Judge Edmondson wrote that the phrase “or bad faith” in the Hyde Amendment “covers, and was intended to cover, prosecutorial positions beyond those positions that are baseless or exceed constitutional constraints: the limit that [the majority] imposes.” Id. at 49. According to Judge Edmondson, the Hyde Amendment encompasses not only instances where prosecutors lack a reasonable basis in law and fact, but also situations where prosecutors pursue objectively reasonable prosecutions motivated by ill-will. “The idea that litigation can be conducted in a manner that is both proper in form and, at the same time, wrongful “ because of the bad ulterior motive for which the litigation is used “ is no innovative idea in the law. . . . I have little doubt that a crafty lawyer can act with improper motive and, at the same time, appear to stay technically within the outside borders of the law.” Id. at 52 n. 5.
The Miami Herald has reported that Dr. Shaygans defense attorneys will seek a rehearing before the 11th Circuit en banc. The Miami Heralds article can be read here.
This decision raises interesting issues involving the bounds of sanctionable prosecutorial conduct in criminal investigations. Fuerst Ittleman will continue to monitor the progress of these issues in this case. For more information, contact us at firstname.lastname@example.org.