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On November 13, 2012, the United States Supreme Court denied a petition for a writ of certiorari in the case of U.S. v. Shaygan, involving the Eleventh Circuit’s decision to vacate the District Court’s award of $601,795.88 in attorneys’ fees and costs under the Hyde Amendment, Pub. L. No. 105-119, § 617 (1997) (reprinted in 18 U.S.C. § 3006A). Though the Supreme Court declined to comment, the case received much attention following the filing of several amicus briefs in support of Shaygan by groups including a group of former federal judges, prosecutors, and members of Congress, the National Association of Criminal Defense Lawyers, the Association of American Physicians & Surgeons, and the Constitution Project. Many contend that allowing the Eleventh Circuit’s majority opinion to stand essentially erodes the protections the Hyde Amendment provides against prosecutorial misconduct and, as Judge Beverly Martin of the Eleventh Circuit has written, “strips our federal trial judges of a rarely needed, but critical tool for deterring and punishing prosecutorial misconduct.”

This case stems from a 2008 indictment filed against Dr. Ali Shaygan, a Florida pain management physician, alleging that Dr. Shaygan distributed and dispensed control substances outside the scope of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). The 23 count indictment was filed following an undercover Drug Enforcement Administration investigation of Shaygan, conducted after one of Shaygan’s patients, James Brendan Downey, died from an overdose of various drugs including methadone and cocaine. According to the Eleventh Circuit, the government discovered during its investigation that, among other things, Shaygan had met with patients, including Downey, in a local Starbucks and prescribed medication to patients without conducting medical examinations. The government later superseded its original indictment on September 26, 2008, adding 118 counts.

After a three week trial on the 141 count Superseding Indictment, the jury acquitted Shaygan on all counts. Following trial, the District Court granted a motion by Shaygan for an award of attorneys’ fees and costs under the Hyde Amendment, which allows for an award of attorneys’ fees and costs “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith.” The District Court awarded Shaygan just under $602,000, and ordered public reprimands against the U.S. Attorney’s Office and several individual Assistant U.S. Attorneys (“AUSAs”). In so doing, the District Court examined comments made by one AUSA to defense counsel during the litigation and other allegations of prosecutorial misconduct. Specifically, Shaygan alleged that the AUSA in question warned the defense that the prosecution would undergo a “seismic shift” if the defense pursued a pending motion to suppress, that the prosecution had failed to disclose that certain witnesses had cooperated with the prosecution, and that members of the defense team allegedly had been secretly recorded during conversations with the witnesses. The District Court based its decision in large part on the “seismic shift” comment and found that it was the AUSA’s “displeasure and ill-will toward defense counsel as a result of [Shaygan’s] Motion to Suppress, as evidenced by his ‘seismic shift’ comment [] [that] led to the filing of the Superseding Indictment.”

The Eleventh Circuit disagreed, and vacated the award of attorneys’ fees and costs after finding that the District Court had abused its discretion. Noting that “a finding of bad faith under the Hyde Amendment cannot rest on evidence of displeasure or subjective ill-will alone,” the Eleventh Circuit held that the filing of the Superseding Indictment was not done in bad faith, since the Superseding Indictment was heavily supported by newly discovered evidence, and in short, did not constitute prosecutorial misconduct. The Eleventh Circuit also vacated the public reprimands of the AUSAs in question, finding that the District Court violated the civil rights of the AUSAs by depriving them of a meaningful hearing, and therefore, due process. Shaygan petitioned the Eleventh Circuit for a rehearing en banc, but was denied.

As it stands, the Eleventh Circuit’s opinion shows that even those defendants who endure harsh and aggressive prosecution tactics, yet are acquitted on all counts, face an uphill battle in recovering under the Hyde Amendment for prosecutorial misconduct. A full copy of the Eleventh Circuit’s majority opinion can be found here.

This legal update was prepared by Nutter's Government Investigations and White Collar Defense practice group with primary authorship by Shagha Tousi. For more information, please contact Shagha or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.