NO.
09-12129-FF
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA,
Appellant,
v.
ALI SHAYGAN,
Defendant/Appellee,
SEAN CRONIN and
ANDREA HOFFMAN,
non-party Appellants.
On Appeal from the United States District Court
for the Southern District of Florida
ANSWER BRIEF OF THE APPELLEE ALI SHAYGAN
D AVID O SCAR M ARKUS
R OBIN E LLEN K APLAN
D AVID O SCAR M ARKUS, PLLC
Attorneys for Appellee Ali Shaygan
169 E. Flagler Street, No. 1200
Miami, Florida 33131
Telephone No. (305) 379-6667
Facsimile No. (305) 379-6668
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
United States v. Ali Shaygan
No. 09-12129-FF
Appellant files this Certificate of Interested Persons and Corporate Disclosure
Statement, listing the parties and entities interested in this appeal, as required by 11th
Cir. R. 26.1.
Acosta, R. Alexander
Then-United States Attorney
Cronin, Sean Paul
Non-Party Appellant
Gilbert, Karen
Assistant United States Attorney
Gold, Alan S.
United States District Judge
Heller, Kirby A.
Assistant United States Attorney
Hoffman, Andrea G.
Non-Party Appellant
Josefsberg, Robert C.
Attorney for Andrea Hoffman
Kaplan, Robin E.
Attorney for Ali Shaygan
McAliley, Chris M.
United States Magistrate Judge
Markus, David O.
Lead Attorney for Ali Shaygan
Martinez, Roberto
Attorney for Sean Cronin
Pearson, William M.
Attorney for Andrea Hoffman
Rivero, Laura T.
Assistant United States Attorney
C-1 of 2
Seitles, Marc D.
Attorney for Ali Shaygan
Shaygan, Ali
Defendant/Appellee
Sloman, Jeff
Acting United States Attorney
Stamm, Edward M.
Assistant United States Attorney
C-2 of 2
STATEMENT REGARDING ORAL ARGUMENT
Ali Shaygan submits that oral argument is not necessary as the district court’s
comprehensive order lays out in detail what occurred, and the legitimacy of these
findings is apparent.
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . C-1
STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.
Course of Proceedings and Disposition Below.. . . . . . . . . . . . . . . . . . 6
II.
Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STANDARDS OF REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARGUMENT AND CITATIONS OF AUTHORITY. . . . . . . . . . . . . . . . . . . . . . 40
I.
The District Court Did Not Abuse its Discretion in Awarding
Fees and Costs Under the Hyde Amendment. . . . . . . . . . . . . . . . . . 40
II.
The District Court Did Not Abuse its Discretion in Publicly
Reprimanding Cronin and Hoffman. . . . . . . . . . . . . . . . . . . . . . . . . . 62
CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ii
TABLE OF CITATIONS
CASES:
Amlong & Amlong, P.A. v. Denny’s, Inc.
500 F.3d 1230 (11th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Anderson v. Bessemer City
470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Angel v. Consolidated Freightways, Inc.
71 F.3d 879 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,64
Baldwin Hardware v. FrankSu Enterprise
78 F.3d 550 (Fed. Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Barnes v. Dalton
158 F.3d 1212 (11th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Brady v. Maryland
373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Byrne v. Nezhat
261 F.3d 1075 (11th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Chambers v. NASCO, Inc.
501 U.S. 32 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,62,63
Eagle Hosp. Physicians v. SRG Consulting
2009 WL 613603 (11th Cir. March 12, 2009). . . . . . . . . . . . . . . . . . . . . . . 42
Four Seasons Hotel v,. Consorcio Barr
377 F3d 1164 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,64
Hall v. Cole
412 U.S. 1 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
iii
In re Mroz
65 F.3d 1567 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,66
In re Ocon
2009 WL 405370 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 66,70
In re Sunshine Jr. Stores
456 F.3d 1291 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 67
In re Walker
532 F.3d 1304 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Kleiner v. First National Bank of Atlanta
751 F.2d 1193 (11th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Kyles v. Whitley
514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Lasar v. Ford Motor Co.
399 F.3d 1101(9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66,67
MCI Telecomms Corp. v. Matrix Communications Corp.
135 F.3d 27 (1st Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Morrisette v. U.S.
342 US 246 (1952). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Rhodes v. MacDonald
2009 WL 3299817 (M.D. Ga. Oct. 13, 2009). . . . . . . . . . . . . . . . . . . . . . . 71
Rothenberg v. SEC. Mgmt. Co.
736 F.2d 1470 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Salmeron v. Enterprise Recovery Systems, Inc.
579 F.3d 787 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
iv
Sanchez-Velasco v. Department of Corrections
287 F.3d 1015 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Schledwitz v. United States
169 F.3d 1003 (6th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Sheppard v. River Valley Fitness
428 F.3d 1 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Schiavo v. Schiavo
403 F.3d 1223 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Stano v. Butterworth
51 F. 3d 942 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Stephens v. Hall
407 F.3d 1195 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
United States v. Adkinson
247 F.3d 1289 (11th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Alzate
47 F.3d 1103 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
United States v. Armedeo
487 F.3d 823 (11th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
United States v. Bagley
473 U.S. 667(1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
United States v. Bailey
175 F.3d 966 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
United States v. Blasco
702 F.2d 1315 (11th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
v
United States v. Bowman
380 F.3d 387 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Brown
53 F.3d 312 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
United States v. Chapman
524 F.3d 1073 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
United States v. Claro
2007 WL 2220980 (S.D. Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
United States v. Copeland
20 F.3d 412 (11th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
United States v. Frazier
387 F.3d 1244 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
United States v. Gardner
23 F. Supp. 2d 1283 (N.D. Okla. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Gilbert
198 F.3d 1293 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 37,41,42,56
United States v. Gonzalez
344 F.3d 1036 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
United States v. Hasting
461 U.S. 461 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
United States v. Heavrin
330 F.3d 723 (6th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Jones
620 F. Supp. 2d 163 (D. Mass. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
vi
United States v. Jordan
316 F.3d 1215 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
United States v. McLain
823 F.2d 1457 (11th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . 26,51,52,69
United States v. Meros
866 F.2d 1304 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,54
United States v. Nelson
309 Fed. Appx. 373 (11th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . 38,44
United States v. Nunez
801 F.2d 1260 (11th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
United States v. Pielago
135 F.3d 703 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
United States v. Quintana
2009 WL 3380612 (11th Cir. Oct. 22, 2009. . . . . . . . . . . . . . . . . . . . . . . . 38
United States v. Ranger Electronic Communications, Inc.
22 F. Supp. 2d 667 (W.D. Mich. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
United States v. Sigma International, Inc.
196 F.3d 1314 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
United States v. Sigma International, Inc.
300 F.3d 1278 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,73
United States v. Skeddle
45 Fed, Appx. 443 (6th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United State v. Todd
108 F.3d 1329 (11th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
vii
United States v. Von Schlieffen
2009 WL 577720 (S.D. Fla. March 5, 2009). . . . . . . . . . . . . . . . . . . . . . . . 56
Wainwright v. Witt
469 U.S. 412 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Wolters Kluwer Financial Services, Inc. v. Scivantage
564 F.3d 110 (2d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
STATUTORY AND OTHER AUTHORITIES:
18 U.S.C. § 3006A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
21 U.S.C. § 841(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Fed. R. Crim. P. 42(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
viii
STATEMENT OF JURISDICTION
Appellee Ali Shaygan filed a motion to dismiss Cronin’s and Hoffman’s appeals,
arguing that this Court lacks jurisdiction because the district court’s order was not final
as it relates to Cronin and Hoffman and because they lack standing. This Court denied
that motion, finding it had jurisdiction.
-1-
STATEMENT OF THE ISSUES
Where the district court concluded “without doubt,” after a month-long trial, a
two-day evidentiary hearing, and numerous rounds of briefing, that the U.S. Attorney’s
Office engaged in serious misconduct, which was delineated in a 50-page order,
including 21 single-spaced findings of facts, did the district court:
1.
abuse its discretion in awarding fees and costs under the Hyde
Amendment; or
2.
abuse its discretion in reprimanding prosecutors.
-2-
SUMMARY OF THE ARGUMENT
In the middle of a lengthy trial, a government witness blurted out that he had
surreptitiously recorded conversations with the lead defense attorney. Four days later,
because its hand had been forced, the government admitted that this witness, and
another, had made recordings of the defense team at the government’s instruction. This
revelation turned out to be only the tip of the iceberg.
Among other things, the prosecution:
•
unethically threatened the defense that if they proceeded with a motion to
suppress there would be a “seismic shift” in the prosecution;
•
superseded the indictment and added over 100 counts in bad faith after the
defense proceeded with the motion;
•
based on personal animus, secretly taped the defense lawyer and investigator
unlawfully and without cause while they interviewed witnesses;
•
failed to turn over exculpatory information to the defense, repeatedly violating
Brady, Giglio and Jencks;
•
disobeyed court orders;
•
twisted the words of witnesses;
•
asked the magistrate judge to engage in unethical deception of the defense and
the public;
-3-
•
prosecuted the case with a win-at-all-costs attitude, including withholding from
the judge, jury, and defense that two of its witnesses were actually confidential
informants and not neutral witnesses; and
•
lied at the evidentiary hearing addressing the misconduct.
Despite this bad faith and vexatious win-at-all-costs prosecution, Dr. Shaygan
was acquitted of all 141 counts. United States District Judge Alan Gold was so
troubled by the government’s conduct that he requested and received affidavits from
those involved and then conducted a two-day evidentiary hearing, after which he wrote
a 50-page order with detailed findings of fact. Ultimately, the court awarded Dr.
Shaygan his attorneys’ fees and costs from the date of the superseding indictment,
which it found was filed in bad faith.
The government admits that the district court was correct to award some fees and
costs pursuant to the Hyde Amendment because of its “serious mistakes” in the case.
Nonetheless, the government has appealed, attempting to narrowly cabin the remedy
to a limited aspect of the litigation. It asserts that because the original indictment was
filed in good faith, it need not pay fees for all of its other misdeeds—even the bad faith
addition of 118 extra counts. In the alternative, the government argues that Judge
Gold’s factual findings are clearly erroneous. Both arguments fail.
The Hyde Amendment was enacted specifically to compensate a defendant for
-4-
the type of bad faith actions engaged in here. The misconduct that was
uncovered—taken together or individually—supports the court’s conclusion that a
Hyde Amendment award was appropriate.
Judge Gold made extremely thorough findings and credibility determinations
after presiding over extensive litigation addressing the misconduct. Far from being
clearly erroneous, his findings are entirely accurate and complete.
The individual prosecutors responsible for the misconduct, Sean Cronin and
Andrea Hoffman, appeal Judge Gold’s use of his inherent authority to publicly
reprimand them, arguing that they were denied due process. This argument was waived.
But even on the merits, Cronin and Hoffman were on notice that it was their conduct
at issue during the sanctions hearing, and both not only had the opportunity to be heard,
but were heard.
-5-
STATEMENT OF THE CASE
Course of Proceedings and Disposition Below
On February 8, 2008, the government filed a 23-count indictment against Dr.
Shaygan, alleging that he 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). DE3. Contentious litigation followed. The government then superseded the
indictment on September 26, adding 118 counts. DE124.
Trial commenced on February 17, 2009, and lasted almost three weeks. Serious
government misconduct was revealed during the trial, and Dr. Shaygan moved to
dismiss the indictment based on the misconduct. DE250. In opposition, the government
filed pleadings, admitting to mistakes and arguing that a curative instruction should be
given to the jury and that the defense should be permitted to recall two witnesses. The
court agreed with this remedy, but reserved ruling on the motion to dismiss. After Dr.
Shaygan was acquitted of all 141 counts, DE284, the court agreed to entertain
Shaygan’s motion to dismiss as a motion for sanctions. DE287. The court also
explained in the courtroom after the acquittal that the individual prosecutors faced
sanctions. DE328:8.
The court held an evidentiary hearing on March 16 and 17. DE289,290. Before,
during, and after the hearing—both orally and through a number of pleadings—the
-6-
government admitted to “serious mistakes” and agreed to pay fees and costs under the
Hyde Amendment, but asked the court to limit payment only to the litigation regarding
the motion to dismiss the indictment and the motion for sanctions. DE299;DE290:1315,76,197-98. On April 9, the court found “without doubt, that [AUSA Sean] Cronin,
with the assistance of AUSA Hoffman ... 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.” DE320:4. The court
awarded $601,795.88 in fees and costs against the United States, and reprimanded
individual prosecutors. DE320.
Statement of the Facts
Appellants’ extensive statements of facts bear no relationship to “the profoundly
disturbing events” at issue in this appeal. DE320:4. Reading the appellants’ briefs
would lead one to believe that Dr. Shaygan was convicted at trial and that the
misconduct leading to the order on appeal was minor and inconsequential. What
actually occurred is far different.
Although the jury swiftly and unanimously rejected the government’s theory of
prosecution at trial—that Dr. Shaygan did not conduct proper medical examinations on
his patients and that his methadone prescription to patient James Downey caused his
death—the government continues to beat that dead horse. See, e.g., Govt.Br. at 3-7-
4;Cron.Br. at 3-4.1 In fact, the defense proved that Dr. Shaygan did conduct thorough
medical exams of his patients, DE313:31,131-39; DE316:92,169; DE318:31;
DE302:30-33; DE301:202, and that cocaine (or one of the many other drugs in Mr.
Downey’s system), not methadone, likely killed him. DE325:19,56-57.
Appellants’ briefs even cite to the testimony of Cronin or Agent Wells as
uncontested fact even when that testimony was expressly rejected by the district court.
Compare, e.g., Govt.Br. at 10; Cron.Br. at 7 (stating that defense investigator led
Tucker to believe she was facing criminal charges if she testified) with DE320:11 (“I
categorically reject that Graff told Tucker at any time” that she was facing charges).
At issue presently is the behavior of the prosecution, not that of the defendant.
A.
Seeds of Discord: A Prior Encounter.
The prosecutors assigned to Dr. Shaygan’s case (Cronin and Hoffman) had lost
a prior, unrelated case to Marc Seitles, a member of Shaygan’s defense team. Seitles
represented defendant Evelio Conde in United States v. Conde, No. 07-20973-CrAltonaga. After a particularly “acrimonious trial,” DE320:6-7, Mr. Conde was
acquitted. Within hours, the prosecutors filed frivolous witness tampering charges
against Mr. Conde. After a meeting with senior members of the U.S. Attorney’s Office,
1
Hoffman adopted Cronin’s statement of the facts. Hoff.Br. at 3.
-8-
the charges were voluntarily dismissed. Id. The prosecutors evidently held a grudge
against the defense team that had nothing to do with Dr. Shaygan or his case, palpably
straining relations between the parties. DE320:7.
B.
A “Seismic Shift in the Prosecution”—The Motion to Suppress.
On February 11, 2008, DEA agents arrested Dr. Shaygan. They interrogated him
and subsequently prepared a DEA-6 reflecting Shaygan’s purported post-arrest
statements. The DEA-6 omitted any reference to Shaygan’s invocation of his right to
counsel. DE320:7.
Dr. Shaygan moved to suppress the statements, alleging that the interrogation
was in violation of his Miranda rights. Shaygan explained that, while two agents stood
guard, “a third agent came in and out of the room several times interrogating [the
Defendant], using scare tactics and repeatedly made clicking noises with his firearm ...
[and] that same agent brandished his firearm in front of Dr. Shaygan, intimidating him.”
DE68:2.
On May 29, the government, through Cronin, filed a responsive memorandum,
asserting that Dr. Shaygan did not “unequivocally” invoke his right to counsel, but
rather asked “should I call my attorney?” or, “don’t I need to call my attorney?” DE76.
According to Cronin, DEA Agent Chris Wells advised Dr. Shaygan that he absolutely
had a right to his attorney and also advised that “in no way would he be denied his right
-9-
to an attorney,” and that “he could invoke his right to an attorney and not answer any
questions, or he could instead cooperate with law enforcement and answer their
questions.”
Id.
Shaygan
contested
these
new
assertions
by
the
agent.
DE122,123,139,172.
On July 31, the parties participated in a discovery conference, during which
Cronin warned Shaygan’s counsel that pursuing the suppression motion would result
in a “seismic shift in the prosecution” because “his agent” did not lie. DE320:7. Cronin
did not elaborate on what he meant by a “seismic shift.” Id. At the sanctions hearing,
Cronin explained that he and Wells had worked on numerous cases together and were
friends. Id. (citing DE290:132). He tried to explain his “seismic shift” statement as
meaning that his “happy-go-lucky” attitude would go away and his level of cooperation
would diminish. Id. (citing DE290:113-14). Judge Gold did “not credit Cronin’s
explanation and, instead, [found] that the use of the phrase ‘seismic shift’ was a
harbinger for events to come. Virtually all actions undertaken by Cronin throughout the
remainder of the prosecution demonstrated the aftershocks of the seismic shift. Even
if construed narrowly, it is not possible to square the threat with a good faith
prosecution of this case.” DE320:7-8.2
2
The government has cited this sentence and two others from Judge Gold’s order
as evidence that the court’s “findings are lifted almost verbatim from the defense
-10-
Despite Cronin’s threat, the defense maintained its position throughout a two-day
suppression hearing before Magistrate Judge Chris McAliley. DE122,123,139. At the
hearing, Wells stated that he could not remember the exact words used by Shaygan.
DE150:4. Although Wells prepared a lengthy DEA-6 report of the events surrounding
the arrest, he made no mention of Dr. Shaygan’s invocation of counsel.
The Magistrate Judge concluded that Dr. Shaygan’s post-arrest interrogation
should be suppressed because he had invoked his right to counsel. The court credited
the recollection and testimony of a third-party witness over that of Wells. Moreover,
the Magistrate Judge found that the “credibility of [the agents’] recollection is
undermined by the fact that, rather than being interviewed and prepared separately [by
Mr. Cronin] to testify at the suppression hearing, government counsel [Cronin]
prepared the agents together for the hearing.” Id. at 16.
On December 5, Cronin filed a 21-page objection to the R&R (DE159), arguing
that “the unimpeached testimony of law enforcement officers establishes that the
Defendant did not invoke his right to counsel,” and that “in discounting the memories
of these two agents, the Magistrate Court erroneously based [its] findings on incorrect
sanction motions.” Govt.Br. at 37, n.9. Such an assertion is absurd. The district court’s
order is 50 pages, half of which are single spaced findings of fact. Less than one quarter
of one percent of Judge Gold’s order is similar to three sentences in two defense
pleadings.
-11-
assumptions not supported by the record.” Id. at 2,5. Upon de novo review, Judge Gold
adopted and affirmed the R&R in its entirety. DE192. Far from “abandoning” his
position as the government claims, Govt.Br. at 39, Cron.Br. at 39, Shaygan pursued
and won his motion to suppress.
C.
Attempted Deception Of The Defense—The Brady Motion.
The defense also filed a number of motions for Brady material. DE66,68,
290:109. With respect to one specific Brady request, Cronin asked the Magistrate
Judge to allow him to mislead the defense about what evidence was in the
government’s possession. Judge McAliley found that his request would have
“require[d] this Court to engage in deception” of the defense team and the public.
DE103:3. Not surprisingly, Judge McAliley rejected the government’s request to
engage in deception. DE103:3-4.
D.
The Superseding Indictment, a product of “ill-will” and “bad faith”.
Because Shaygan persisted with his motion to suppress and because of the
personal animus the prosecutors had built up in the case, the government on September
26, filed a 141-count Superseding Indictment, adding 118 counts. DE124.3 Judge Gold
3
“The patients that were included in the Superseding Indictment were known to
the government long before the motion to suppress was litigated, yet no Superseding
Indictment was sought at an earlier time.” DE320:11-12.
-12-
specifically found “that the first manifestation of the ‘seismic shift’ was the filing of the
Superseding Indictment, which took place after the commencement of the hearing on
the motion to suppress.” DE320:11. Judge Gold discredited Cronin’s claim “that the
filing of the Superseding Indictment was innocuous,” and found “that the decision to
file the Superseding Indictment was significantly motivated by ill-will.” DE320:11-12.
Judge Gold also found that “the effect of the Superseding Indictment was to greatly
increase the time and cost of the trial. The adding of 118 more counts resulted in the
defense having to request additional continuances which kept Dr. Shaygan under strict
conditions of house arrest. It also added to the ‘weight’ of the indictment and the
seriousness of the offenses as presented to the jury.” DE320:12.
E.
Winning at all costs: Intimidation of witness Courtney Tucker.
On August 15, Agent Wells interviewed patient Courtney Tucker, and the DEA-
6 report he prepared contained a number of positive statements about Dr. Shaygan,
which undermined the government’s case. Specifically, Wells wrote that as to her initial
appointment with Dr. Shaygan, Tucker “brought her MRI and other medical records
with her for Shaygan to review;” “Shaygan conducted a thorough examination to
include flexibility exercises” and performed a urinalysis test; and “Shaygan seemed
very interested in her well being.” Tucker’s fiancé Wayne McQuarrie also had an
appointment with Dr. Shaygan that day and “Tucker stated Shaygan also conducted a
-13-
thorough examination of McQuarrie.”
On August 20, five days after Wells interviewed her, defense investigator
Michael Graff contacted Tucker by phone and immediately sent the defense team an
email documenting their conversation. DE320:10. He characterized Tucker as
“awesome” and recounted Tucker’s complaints about her August 15 interview with
Agent Wells. She specifically indicated Wells was “throwing around his weight,”
“strong armed her,” tried to put a “negative spin” on her statements, and “kept trying
to put words in her mouth.” Id. Moreover, Tucker expressed concern that Wells had
implied falsely that she was “addicted to pain meds” and “did favors for [Shaygan] in
return for scripts.” Id., DX1.
Tucker was insistent that she was not addicted but had legitimate needs for the
medications. Tucker told Graff and testified that she expressed to the DEA that she had
“absolutely nothing but the most positive things to say about Ali as a person and a
physician,” that Dr. Shaygan was “extra professional and extra caring of his patients
[sic] well-being,” and that his exams “were always thorough.” DE320:10 (quoting
DX1). Graff concluded that Tucker had “the most positive things to say about Ali and
was very turned off by the DEA and their tactics.” Id. This August conversation was
Graff’s last contact with Tucker. DE320:10. Tucker had not yet been named in the
indictment against Shaygan. Id.
-14-
Graff then spoke with McQuarrie a week later who stated that McQuarrie
“highly doubts the DEA will bother Courtney again because she is so pro-Shaygan.”
DE320:10-11,DX2. Finally, in mid-October, Graff was able to set up an in-person
interview between Tucker and Robin Kaplan, a member of the defense team, which
took place on October 23. As coordination of this meeting was Graff’s ultimate goal,
he had no further contact with Tucker. Id. (citing DE289:12-14;DX2).
At the meeting with Ms. Kaplan, Tucker recounted her interview with Wells.
Tucker told Kaplan that Wells made her feel threatened, that he put a “negative spin
on all the nice things that I thought [Shaygan] did.” DE320:11;DE297-2:7,8. None of
the defense lawyers contacted Tucker again after the in-person interview. DE320:11.
The district court “f[ou]nd Graff’s emails, and his related testimony at the
Sanctions Hearing, [to be] credible and accurate for a number of reasons.” DE320:11.
The court “categorically reject[ed] that Graff told Tucker at any time that the
government would be attempting to portray her as a drug abuser during trial, and that
she was possibly subject to federal prosecution based on her involvement with the
Defendant.” Id.
F.
The bad-faith and ill-will continues: the decision to tape the defense team.
On November 21, Tucker left a voice message for Wells, who immediately
returned her call. They spoke for ten minutes. Given her previous discussion about
-15-
Shaygan with Wells, she was confused as to why the prosecution subpoenaed her.
DE320:12 (citing DE289:61:13-22). She felt, “if anything, we would be on the defense
side.” Id. (quoting DE289:63,67-68).
Wells’ account to Cronin of this conversation occurred four days after Judge
McAliley’s unfavorable recommendation on the motion to suppress. DE320:13.4
After speaking to Tucker,5 Wells told Cronin that “he was concerned that Tucker
was ‘going south’ as a witness and may be showing signs of reluctance in cooperating
with the government in its prosecution of Dr. Shaygan.... At no point did Wells ever
state or allude to Cronin that there was potential ‘witness tampering.’” DE320:15
(citing DE289:122).
Cronin himself testified that Wells did not allude to witness tampering. Cronin
said it was his own idea to explore the possibility of taping the defense team through
4
Yet another glaring example of Cronin’s appellate brief misstating the facts is
found at page 6, where he says that Tucker “stated that during the year and half she and
her boyfriend, Wayne McQuarrie, were treated by Shaygan, their meetings gradually
became shorter and shorter, with Shaygan becoming more interesting in making money
than in her overall health (DE320:9).” It is true that Wells wrote that in his report, but
Tucker testified that she never told Wells that. Judge Gold found her testimony
credible and Wells’ testimony not credible. DE320:10. Cronin’s brief is replete with
these sorts of citations to reports and testimony that Judge Gold rejected as untruthful.
5
Wells did not take notes during this conversation or immediately after, and did
not prepare a DEA-6 until three weeks later, on December 10. DE320:14 (citing CX2,
DE289:100-01).
-16-
a witness tampering investigation. DE320:15 (citing DE289:126-127; DE290:84). See
also DE320:15 (citing DE289:122-23) (Wells: “I did not feel that [witness tampering
occurred] at all. In fact, that term had not been mentioned to me until I spoke to Mr.
Cronin”). Cronin charged ahead even though he had doubts—which he never shared
with his supervisor Juan Gonzalez or Narcotics Chief Karen Gilbert— about whether
there was witness tampering. DE320:16 (citing DE290:86-87).
Instead, he labeled Tucker’s concerns as tampering and decided that taping the
defense was the appropriate way to proceed. DE320-16-17. Judge Gold found “that
there did not exist at this juncture sufficient facts for the United States to proceed in
good faith on a collateral prosecution for witness tampering,” DE320:17, and
concluded that
Cronin acted, at this stage, with implicit bias, and in bad faith, in
participating any further in this collateral matter after receiving the phone
call from Wells, especially given his past acrimony with the defense team.
Accordingly, Cronin was duty-bound to tell Wells to report the contact to
his superiors and to not involve himself any further, let alone to set in
motion what Cronin (not Wells) characterized as a “witness tampering
investigation.” The fact that Cronin initiated an earlier “witness
tampering” investigation involving a defendant represented by this same
defense team is too coincidental to ignore.
DE320:15-16 (emphasis added).
Judge Gold explained that “Tucker did not tell Agent Wells that the defense
investigator or anyone else from the defense team had tried to intimidate her in any
-17-
manner, had warned her that she would be subject to federal prosecution, or told her
that the government would attempt to portray her as a drug abuser. To the contrary, the
Government’s portrayal of her as a drug abuser or addict was a concern she had on her
own.” DE320:12 (emphasis in origin) (citing DE289:64-65). When Tucker “voiced her
concern that the government would portray [her] negatively, Wells said it would be the
defense team that would seek to do so.” DE320:13 (emphasis in original) (citing
DE289:74-75). In all her interactions with the defense team, Tucker “was never made
to feel uncomfortable, her words were not being twisted, and she was treated very
nicely.” DE320:13 (citing DE289:73-74). On the other hand, Tucker believed the DEA
was trying to twist her words and was both intimidated and uncomfortable. Id.(citing
DE289:74) (“I just felt like -- like I was really being pulled [by the DEA] or trying to
have my words twisted into a way I wasn't conveying it or I wasn't meaning for them
to be or that really wasn't the truth about how it was. I felt intimidated. I felt
uncomfortable and nervous and like I was going to say or do the wrong thing where the
defense was telling me just to be honest, just tell the truth and everything will work out
fine.”).
-18-
G.
Flouting their own rules: The taping of the defense team is not properly
authorized.
The government has admitted that taping the defense violated USAO procedures
because AUSA Cronin did not seek approval from the required supervisors. See
DE290:36; DE299; CX5. Individual prosecutors are not authorized to commence an
investigation of opposing counsel on their own initiative. “The purpose of the policy
is to provide safeguards on any matter which could negatively reflect on a defense
attorney who has become a target or subject of an investigation.” DE320:18 (citing
CX5). Pursuant to the notification process, senior members of the USAO would have
the opportunity to overrule further investigation if necessary. Id.
H.
Actual Deception of Senior Supervisory Prosecutors.
Even though defense counsel did not know about these secret recordings,
defense counsel met with senior members of the United States Attorney’s Office (the
criminal chief of the office and Mr. Cronin’s direct supervisor, Juan Gonzalez) to voice
its concerns that the obvious personal tension between members of the prosecution
team and defense counsel was affecting the prosecution team’s judgment. DE320:8
(citing DE290:94:12-19). Even though AUSA Gonzalez knew about the secret taping
of defense counsel at that time, he did not advise the criminal chief of it even as the
defense inquired about animus between the parties. DE290:60,94; DE299:2;
-19-
DE302:216.
On February 12, 2009, the criminal chief assured the defense by email that he
had spoken with the prosecutors and that there was no personal animus directed at
defense counsel. At the time those assurances were made, the criminal chief was
unaware that the prosecution team had been secretly recording members of the defense
team without obtaining appropriate approval from senior members of the U.S.
Attorney’s Office as required. DE290:12-16;DE299:2. That is, while the prosecution
team and their supervisor were assuring the criminal chief that there was no personal
animosity with the defense, they concealed from him that they had orchestrated an
invasion of the defense camp to investigate non-existent claims of witness tampering.
DE290:12-19,94; DE320:8.
I.
Winning at all costs: The “taint wall” is established and breached.
On November 24, Cronin authorized Wells to have other patients, Vento and
Clendening, record calls with the defense team, even though Cronin was supposed to
be “walled off” from speaking to Wells about the collateral matter. DE320:18;
DE270-2. Cronin told Wells that the USAO would look into the allegations of witness
tampering and that Wells was authorized to permit Vento and Clendening to record
“any” incoming phone conversation of members of the defense team, including the
defense attorneys. DE320:18. Contrary to DEA policy, Wells did not have either Vento
-20-
or Clendening formally established as confidential informants. DE320:19 (citing
DE289:242);DE250.6
Chief of Narcotics Karen Gilbert attempted to establish a “wall,” DE320:19, but
Wells continued to act as the case agent in the Shaygan case and the point person in the
collateral investigation. Id. On top of that, Cronin and Hoffman breached the taint wall
numerous times.
On December 1, Wells advised Vento to record conversations with the defense
team. Wells explained that he “never experienced anything like this before,” and that
it was “definitely unusual.” DE320:19 (citing DE289:111-12). Clendening was asked
to also record conversations. According to Wells, no reports were made for either
contact. Id.
On December 9, Vento told Wells that he had recorded his conversation with the
defense investigator. That same day, Wells told Cronin about the recording. Wells
testified that both Cronin and Hoffman knew that Vento made the recording. DE320:19
(citing DE289:137).
6
Judge Gold found that Wells’ failure to obtain confidential informant
agreements, which Cronin and Hoffman would have had to turn over to the defense,
“raises the disturbing inference that Wells was instructed not to do so.” DE320:19
(citing DE290:118) (Markus: “Whether...confidential informant agreements were
entered into, that fact alone you agree with me is Giglio? Cronin: I think, now that I
think of it in those terms, yes, it is.”).
-21-
Judge Gold found
without doubt that, as of December 9, 2008, both Cronin and Hoffman
knew that Vento had made a recording of a member of the defense team.
Cronin also well knew that Wells would prepare a DEA-6 regarding the
Vento recording. In fact, Wells prepared the DEA-6 on December 11,
2008 which included reference to both the Tucker conversation and the
Vento recording of Graff. See Court’s Exhibit 2. This was one of the
DEA-6, that was not produced by Cronin as ordered by the Court, and
neither Cronin nor Hoffman brought to my attention that Vento had made
such a recording before he testified as a witness. I find that the failure
to provide this information was knowing and in bad faith. This is
especially true given that the defense was requesting before trial the
DEA-6s which contained Brady material. DE212:6-7.
DE320:19-20 (emphasis added).
J.
More Bad Faith: The “Investigation” Continues.
On December 10, Wells and Narcotics Chief Karen Gilbert listened to the
recording of investigator Graff and Vento. On the recording, Graff explained that, as
the investigator for the defense team, he had been attempting to contact Vento by
telephone and wanted to set up a “face-to-face” meeting with Dr. Shaygan’s lawyers
as soon as possible. Vento specifically attempted to elicit a bribe from Graff by
explaining that he needed money, DE320:20, (citing CX1:6-7) (“I’m doing real, real,
real, bad with money...You know what I am saying?”), and requested that he be
permitted to speak directly with Dr. Shaygan by telephone. Id. at 11, 12.
The defense refused and flatly told him that he had to tell the truth and that they
-22-
were only interested in hearing what he had to say. DE320:20. Wells claimed that
neither Vento or Clendening were given any instructions to ask for a bribe, but did tell
them (the so-called “neutral witnesses”) that “some tampering with witnesses was
going on.” DE320:19.
After listening to the conversation, both Wells and Gilbert concluded that Graff
had done nothing wrong. DE320:20-21 (citing DE289:130;DE270-4). Even Wells was
concerned about continuing the investigation based on several “red flags.” First, Wells
concluded from the tape that Vento was a “loose cannon” because he tried to solicit a
bribe and also asked Graff to have Dr. Shaygan call him, all contrary to Wells’
instructions. DE320:21 (citing DE289:136). Second, Wells’ major “red flag” was that,
although there was nothing incriminating on the tape, “there was the green light or the
go-ahead ... to record the defense attorneys.” Id. (citing DE289:135). Wells was
concerned about proceeding with the collateral investigation “because of the fact that
there was potential that attorneys were going to be involved in this.” Id. (citing
DE289:114:6-11);DE290:33:12-23. Despite these red flags, Gilbert, without consulting
her superiors, allowed the investigation to continue based on what Cronin told her.
DE320:21. Gilbert did not know that Cronin had invented this idea of “witness
tampering” on his own. DE320:21 (citing DE290:50). Gilbert also did not know that
the relationship between the prosecution and the defense was acrimonious. Had Cronin
-23-
been honest with her about these issues, Gilbert explained that it might have affected
her decision to continue with the investigation. DE320:21 (citing DE290:50:19-51:4).
On December 21, Wells received a voice mail from Clendening saying that he
attempted to record a conversation with Shaygan’s lead defense lawyer but that his
device came unplugged so only a small portion was recorded. DE320:22;
DE250-2,¶10. Wells did not listen to that recording. DE320:22;DE250-2,¶11.
Clendening made a second recording of defense counsel, which first came to
light during trial. On this call, counsel explained to Clendening that he simply wanted
the truth and would not pay any money for the testimony. DE320:22;DE250:5
As the lead agent in the main case, Wells continued to interact with Cronin on
a regular basis, and Judge Gold concluded “that Cronin intentionally desired Wells to
participate in the collateral proceedings. Although Cronin claims he did not think about
it as a violation of the ‘taint wall,’ [Judge Gold] d[id] not credit his testimony given that
Cronin, who is an extremely bright and sophisticated prosecutor, well-understood the
implication and benefits of continuing his regular contact with Wells as lead agent
while the collateral investigation was proceeding.” DE320:18.
K.
Even more bad faith: the investigation proceeds and the taint wall continues
to be breached.
Six weeks into the collateral investigation, after it became crystal clear that the
-24-
investigation was unfounded and that the defense has done nothing wrong, DEA Agent
James Brown was assigned to replace Wells. DE320:17. Wells remained the case agent
in the underlying Shaygan case. Gilbert conceded that “in retrospect, I should have
urged DEA to assign a ‘walled off’ agent” from the beginning. DE270.
Agent Brown pushed forward with the investigation, first contacting Vento and
Clendening to formally establish them as confidential informants as required by DEA.
DE320:22 (citing DE250). On January 16, 2009, Vento signed a confidential
informant’s agreement. CX4. The government agent then instructed Vento to set up a
face-to-face conversation with the defense team and “kind of see what happened” even
though each of the previous encounters with the defense had shown no wrongdoing.
DE320:23 (citing DE289:246). Brown prepared a DEA-6 on Vento, but “[t]his crucial
DEA-6 was not turned over to the court as ordered prior to trial.” DE320:23.
On February 9, 2009, Cronin and Hoffman called Agent Brown, in violation of
the “taint wall,” to make him aware that the trial was to commence on February 17, and
that he had better proceed quickly with his investigation. DE320:23 (citing
DE290:251). According to Brown, the prosecutors “wanted to know what was going
on” and what “progress” or “success” he had in arranging face-to-face meetings
between Vento or Clendening and the defense team. Id. (citing DE289:261-62).
Judge Gold found “[t]he significance here is that (a) Cronin and Hoffman were
-25-
advising Brown that he had eight days to conclude his investigation; and (b) Cronin and
Hoffman well-knew that Vento and Clendening were operating as confidential (not
neutral) witnesses and never disclosed it to the defense or the court.” DE320:23
(internal citation omitted). Even Brown acknowledged that because “they were the trial
attorneys involved in the case,” he “wasn’t sure if [he] was supposed to talk with them
or not.” DE320:23-24 (citing DE289:263:21-264:3). Judge Gold found it “[o]f grave
concern ... that Cronin did not include this conversation with Brown in his affidavit that
was filed with the court.” DE320:24 (citing DE270-2).
Judge Gold further concluded “that Cronin and Hoffman were contacting Brown,
and urging progress on the face-to-face contacts with the defense lawyers and
investigators, for the bad faith purpose of seeking to disqualify the defense lawyers for
conflict-of-interest immediately prior to trial.” DE320:24. Cronin conceded that he
considered the McLain issue as it related to the defense lawyers and that recusal by the
defense team would have been necessary if this matter came to light.7 DE320:24(citing
DE290:111-12).8
Cronin acknowledged that any such conflict issues would have to be filed
7
United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir. 1987).
8
Throughout the hearing, Cronin attempted to shift the blame to others, which the
court found “disconcerting.” He continues that tactic in his brief, repeatedly pointing
the finger at Karen Gilbert. Cron.Br. at 8,28,30,51,53.
-26-
“immediately” with the court. When asked by the court if that was “tactical” on his
part, he answered, “No, absolutely not, your Honor.” The court followed up: “If I find
it tactical, then it would be bad faith, wouldn’t it?” Cronin replied, “I believe it would,
your Honor.” DE320:25 (citing DE290:112-13). Cronin’s actions were, of course,
tactical:
The effect of such a motion to recuse, if granted before trial, would have
been catastrophic. Cronin already knew that Dr. Shaygan was having
significant psychological problems as a result of strict home detention and
electronic monitoring based upon the prior defense motions filed to lift
such restrictions. Cronin also well-knew that if Markus and his
investigators were recused, new lawyers and investigators would have
had to be appointed at a great cost, and the trial would have been
continued for an unknown time period—all to the detriment of Dr.
Shaygan and, in my view, to force him to plead guilty which he
consistently refused to do. I find Cronin’s efforts in this regard were
tactical and in bad faith.
DE320:25 (emphasis added).
L.
Brady, Jencks, Giglio and Court Orders: The deception and bad faith affect
the trial.
Before and during trial, the defense continually requested production under
Brady and Giglio. Many of the violations of Brady and Giglio, as well as court orders,
have already been discussed above. For example, the prosecutors did not disclose DEA
reports of interviews with witnesses who supported Shaygan’s defense and refuted the
government’s allegations (including Tucker, McQuarrie, Betancort, and Andrew
-27-
Gribben). DE320:35. The district court found that the failure to disclose these reports
to the defense violated Brady.
At the start of trial, on February 12, 2009, the court ordered the government to
produce to the court all DEA-6 reports in connection with the case. DE320:14; CX6.
Despite Appellants’ current arguments to the contrary, Cronin testified that he
“understood the order to be all interviews” of government and defense witnesses, even
“witnesses who weren’t going to be called.” DE290:99. Cronin “wanted to get [Judge
Gold] all of the 6s.” Id. Cronin confirmed that he recognized that he should have asked
the agents and prosecutors to gather the reports from the collateral investigation
because the court wanted those as well. Id. at 100; see also id. at 101.
Even though the prosecution had it, DE320:14 (citing DE289:102), and even
though Cronin understood that the report had to be disclosed, DE290:110, 117-18, the
DEA-6 of Wells’ interview of Tucker that prompted the collateral investigation (CX2)
was not produced to the court. Judge Gold specifically “reject[ed] that Wells did not
understand that Tucker’s supplemental DEA-6 was required to be turned over, and that
he and Cronin did not discuss it.” DE320:14.
That undisclosed DEA-6 revealed that witness Carlos Vento, at the
government’s request, had recorded his conversation with the defense investigator,
Michael Graff. Accordingly:
-28-
if this DEA-6 was turned over to the court, Vento’s digital recording of
the defense investigator would have been made known to the court and,
therefore, to the defense prior to trial. This would have lead to the
disclosure that Vento was acting as a confidential DEA informant which
also was not disclosed to the court and the defense.... I find that the
failure to turn over Tucker’s DEA-6 ... was willful, vexatious and in
bad faith.
DE320:14 (emphasis added).
Also in violation of the order, Cronin did not produce the reports that dealt with
Vento or Clendening becoming confidential informants or taping the defense team.
Although Cronin testified that it did not occur to him to find out whether these reports
existed, Judge Gold did “not find Cronin’s testimony that ‘it did not occur to him’ that
DEA-6s existed for the collateral investigation to be credible.” DE320:25.
Cronin acknowledged that the U.S. Attorney’s Office as a whole had an
institutional obligation to respond to the court’s order. DE320:26 (citing DE290:124)
(Court: “Doesn’t the office itself, together with the agents under the law, have an
obligation to be aware of these things and inform the Court? Cronin: “Absolutely. I
completely agree and, Your Honor, we should have done a better job. There is no
doubt about that.”). Judge Gold, however, did not find “that the issue is just whether
the USAO should have done a better job. Rather, I find what occurred here was
tactical. Cronin’s attempt at cover and finger pointing to Davis is not credible.”
-29-
(internal quotations omitted).9
M.
The Collateral Investigation Comes to Light.
Both Vento and Clendening testified as government witnesses at trial, and the
government presented both as neutral fact witnesses. At no point either before trial, or
even during the testimony of Vento and Clendening, did the prosecution team reveal
that these witnesses were cooperating government informants who had voluntarily
agreed to record members of the defense team. DE290:47-48,58; DE299:2; DE320:26.
Thus, as if the unwarranted taping of the defense camp was not problematic enough,
the government exacerbated its deception by concealing the status of these witnesses,
and the recordings themselves, from the defense and the court.
The defense and the district court first learned of the recording on February 19,
9
This and every one of Judge Gold’s credibility findings is supported by a
detailed specific explanation:
First, according to Brown, Davis, on February 13th, was told by Brown that he
had signed up Vento as a confidential informant. It is incredible that Davis
would not tell this to Cronin in response to the Court’s order. Second, Cronin
already knew that Vento had made a recording. At the Sanctions Hearing,
Cronin said he was not “thinking about” the fact that a DEA-6 would have had
to be made of the recording,” although he was aware it was “normal procedure”
to have a DEA-6 of the recording. [DE290:103:23-104:11]. For Cronin to claim,
as he did, that “he was not thinking about it” is blatantly inconsistent with the
fact that he called Brown before trial to check on the status of the collateral
investigation—a fact that was patently omitted from Cronin’s own affidavit.
-30-
2009, during lead defense attorney Markus’s cross-examination of Clendening and after
Vento’s testimony was complete. When Markus questioned Clendening on the stand
about his failed attempt to solicit a bribe from Markus, Clendening claimed to have
recorded the conversation and denied asking for money. Wells, Cronin, and Hoffman
were in the courtroom during this exchange, but none made any move to disclose that
this and other recordings existed and had been made at the direction of the government.
Instead, they remained silent, leading the defense, the court, and jury to believe that
Clendening was lying about the tape or had acted without the government’s
involvement or knowledge.10
Four days after Clendening testified, the government disclosed for the first time
that it had initiated the Vento and Clendening recordings. During a court recess, Gilbert
told Markus that the tapes existed and that no one on the defense had done anything
wrong. Judge Gold
f[ou]nd it purposeful that even though Cronin knew that Vento made a
recording and knew that he was working with Wells, he did not reveal the
information to the Court or to the defense even during trial, and, most
telling, purposefully steered clear of it in his questioning of Vento on
10
Judge Gold pointedly observed that other prosecutors like AUSA Dustin Davis
“knew, without doubt, that Vento was operating as a confidential informant under a
formal agreement.” These prosecutors “took no steps to ensure that notice of these
circumstances were given to the defense once the Shaygan trial commenced on
February 17.” DE320:25.
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direct examination. DE290:116:12-14. Further Cronin did not disclose
that he knew Clendening, who testified for the Government after Vento,
was working with Wells and that he had agreed to make recordings.
DE290:116:18-25.
Judge Gold was notably disturbed by the fact that this deception and flouting of
Supreme Court precedent as well as court orders would not have come to light if the
witness had not blurted it out: “[T]he United States did not come forward in good faith
to disclose what had transpired until its hand was forced by the statement that slipped
out during Clendening’s testimony.” DE320:26. Even after Clendening revealed the
existence of the tape during his testimony, Cronin and Hoffman had no intention of
disclosing their misconduct or even formally notifying their superiors. It was Gilbert
who recognized the government’s obligation at a social gathering. Gilbert testified that
“it was merely by accident .... We were out at a restaurant Thursday evening talking
about work and that’s how it came up. It was not a, ‘Let me notify you as my boss.’
I happened to be with a group of people, Mr. Cronin and Ms. Hoffman were there and
told the story. It was the first I heard of it.” DE320:26 (quoting DE290:47-48)
(emphasis in district court’s order).
Judge Gold correctly found that the prosecutors intended to flout the court’s
orders and that they believed that USAO culture would approve. The court found it
“astounding that Cronin and Hoffman would casually discuss the matter at a restaurant
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... and not immediately disclose the matter to the Court once it occurred. Because they
did not even officially report the matter to Gilbert, let alone the Court, the strong
inference is that they were “bragging” to their colleagues about what they were getting
away with....Cronin and Hoffman’s failure to disclose to the Court was not the result
of inadvertence or mistake, but was knowing and intentional.” DE320:26.
Cronin also did not disclose the benefits Clendening was receiving in his state
case for his federal cooperation. Cronin told Clendening’s state prosecutor before
Clendening’s state sentencing and prior to his testimony in this case that Clendening
was cooperating with the federal government. DE320:23. Cronin conceded that he may
have spoken with Clendening’s lawyers as well. Id.(citing DE290:119:10-13,18-24).
The state court judge also was informed about Clendening’s role in the Shaygan
prosecution. Id. Accordingly, Judge Gold “reasonabl[y] infer[red] that Clendening
received some benefit from the state prosecutor and state judge after being advised of
his role in the Shaygan trial. Cronin did not bring these facts to the defense’s attention.
Rather, it was the defense that put the state plea proceedings into evidence during the
trial, following Gilbert’s disclosure to the Court.” DE320:23.
At the sanctions hearing, when asked by the court whether there were “flagrant
violations of Brady, Giglio and the like,” the senior attorney representing the
government responded that “there [we]re serious violations ... yes.” DE290:198. The
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government lawyer acknowledged that the violations were “so serious” that it had done
the right thing by “urg[ing] some sort of instruction putting some of the blame on us.”
Id. When asked further about what could have happened had these events not come to
light, the government responded that it had “never denied its significance.” Id. at 199.
N.
A failed attempt to accept responsibility—the government’s filings and the
evidentiary hearing.
After Dr. Shaygan was acquitted, Judge Gold conducted a two-day evidentiary
hearing to get to the bottom of what occurred and to determine whether the prosecutors
had acted in bad faith. Although the court already possessed the affidavits of the
prosecutors and agents, he decided to go a step further and allow testimony so that a
full record could be developed. He specifically put the individual prosecutors on notice
that they could be sanctioned: “One of the sanctions I’ll consider is whether under the
Hyde Amendment I should award attorney fees and costs against the United States. ...
I will also consider other alternative sanctions that may be requested. I am going to
put on the table whatever sanctions would be appropriate in the event I make such
findings [that the prosecutors engaged in bad faith].” DE328:8 (emphasis added).
By the end of the sanctions hearing, at which the parties were free to call
whomever they desired, it was abundantly clear that Judge Gold was deeply troubled
by the actions of the government lawyers. DE320:193-201. Nevertheless, the court did
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not immediately rule. It allowed additional papers to be filed and stated in open court
that it intended to write an opinion based on the conduct of Cronin, Hoffman, and
others. Although they could have, Cronin and Hoffman did not individually file
anything with the court. The government filed a 14-page pleading, arguing that Cronin
and Hoffman did not proceed in bad faith. DE299.
The government “accepted responsibility” for (1) violating the United States
Attorney’s Office policy; (2) creating an “imperfect” taint wall and allowing it to be
“breached”; (3) violating “its discovery obligations” by not disclosing Brady and
Giglio material; and (4) violating the court’s pre-trial order to produce all DEA-6
reports.” DE299:2-3. The government also acknowledged that the facts warranted a
referral to the Department of Justice’s Office of Professional Responsibility for
investigation. Finally, the government agreed that because of “the seriousness of the
mistakes made in this case, the United States stands ready to pay reasonable attorneys’
fees and costs associated with Shaygan’s motions to dismiss and for sanctions and
related proceedings.” DE299:4. The government concluded: “The United States takes
responsibility for commencing the witness tampering investigation on the basis of the
facts provided, continuing the investigation after the Vento recording demonstrated no
misconduct by the defense, and failing to make the required disclosures relating to the
collateral investigation.” DE299:13.
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O.
The final order.
After presiding over extensive litigation and reviewing numerous submissions
before and after the hearing on the misconduct, Judge Gold issued a 50-page opinion
with detailed findings of fact based on his credibility determinations. DE320. The court
“conclude[d], without doubt, that Cronin, with the assistance of 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.”
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STANDARDS OF REVIEW
I.
This Court reviews a district court's award of Hyde Amendment fees and
costs for an abuse of discretion. United States v. Gilbert, 198 F.3d 1293, 1298 (11th
Cir. 1999). “An abuse of discretion occurs if the judge fails to apply the proper legal
standard or to follow proper procedures in making the determination, or bases an award
... upon findings of fact that are clearly erroneous.” Id. (internal citation and quotation
omitted).
Courts generally do not disturb a trial court’s determination of whether sanctions
under the Hyde Amendment are appropriate because a district court has “unique
familiarity with [Hyde Amendment] litigation.” United States v. Bowman, 380 F.3d 387
(8th Cir. 2004). “The district court, having conducted the entire trial and witnessed the
government’s case, is in a far superior position to evaluate whether the government’s
position was vexatious, frivolous, or in bad faith. The court has a fresh recollection of
the government’s conduct that this court’s review of the cold record simply cannot
provide.” United States v. Skeddle, 45 Fed. Appx. 443, 446 (6th Cir. 2002).
Findings of fact are reviewed under the clearly erroneous standard, which
requires this Court to uphold any district court determination that falls within a broad
range of permissible conclusions. See, e.g., Anderson v. Bessemer City, 470 U.S. 564,
573-574 (1985) (“If the district court's account of the evidence is plausible in light of
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the record viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous”).
When findings are based on determinations regarding the credibility of witnesses,
the law demands even greater deference to the trial court’s findings because only the
trial judge can be aware of the variations in demeanor and tone of voice that bear so
heavily on the listener's understanding of and belief in what is said. Wainwright v. Witt,
469 U.S. 412 (1985). See also Stano v. Butterworth, 51 F.3d 942 (11th Cir. 1995);
United States v. Nelson, 309 Fed. Appx. 373 (11th Cir. 2009).
As the government
recognizes in its brief (pgs. 32-33), the Court “will not ordinarily review the
factfinder’s determination of credibility.” United States v. Copeland, 20 F.3d 412, 413
(11th Cir. 1994) (per curiam). “In summarizing the facts, [this Court is] mindful that
[it] must review the record in the light most favorable to the prevailing party.” United
States v. Quintana, 2009 WL 3380612 (11th Cir. October 22, 2009).
II.
“When reviewing the imposition of sanctions, the primary question before
[this Court] is whether the sanctioning court abused its discretion.” In re Mroz, 65 F.3d
1567 (11th Cir. 1995). See also Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991)
(“We review a court’s imposition of sanctions under its inherent power for abuse of
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discretion.”).
When a party fails to raise an argument or issue below, this Court generally
deems the issue to be waived. See, e.g., Four Seasons Hotels v. Consorcio Barr, 377
F.3d 1164, 1168 (11th Cir. 2004).
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ARGUMENT
I.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
AWARDING FEES AND COSTS UNDER THE HYDE AMENDMENT.
After presiding over lengthy pretrial litigation and a month-long trial, and after
conducting a two-day evidentiary hearing to “get to the bottom” of what happened, the
district court found “without doubt” that the government “acted vexatiously and in bad
faith in prosecuting Dr. Shaygan for events occurring after the original indictment.”
DE320. The court made such a finding after applying the proper legal standard and
procedures under the Hyde Amendment, repeatedly stating its concerns about what was
coming to light, allowing both sides to present evidence, reviewing pleadings before
and after the hearing, and then making detailed and lengthy findings of fact. The district
court’s order is far from an abuse of discretion; it is entirely correct.
The inescapable conclusion from the numerous improper actions taken by the
government is that the prosecution, at least from the time of the superseding indictment,
was infected with ill-will and misconduct. Under the Hyde Amendment, a successful
criminal defendant who can demonstrate that the position of the United States was
“vexatious, frivolous, or in bad faith” can recover reasonable attorney’s fees and costs.
18 U.S.C. § 3006A. “Vexatious means without reasonable or probably cause or
excuse... [B]ad faith if not simply bad judgment or negligence, but rather it implies the
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conscious doing of a wrong because of dishonest purpose or moral obliquity; ... it
contemplates a state of mind affirmatively operating with furtive design or ill-will.”
United States v. Adkinson, 247 F.3d 1289, 1291 (11th Cir. 2001). As the district court
explained: this case is a prime example of a vexatious and bad faith prosecution.
The Hyde Amendment is “targeted at prosecutorial misconduct ... [such as]
keeping information from [the defendant] that the law says [the government] must
disclose, hiding information, not disclosing exculpatory information and suborning
perjury.” United States v. Gilbert, 198 F.3d 1293, 1304 (11th Cir. 1999) (quoting 143
Cong. Rec. H7786-04, H7791 (Sept. 24, 1997)). These are exactly the actions the
district court found the government to have committed.
While not taking issue with the procedures that the court employed, the
government argues that the Hyde Amendment sanction was inappropriate because “the
position of the United States as a whole was not vexatious or in bad faith.” Govt.Br.
at 44.11 The government agrees, as it must, that even if a portion of the prosecution has
11
The government agreed below that it was liable for Hyde Amendment fees for
the litigation that resulted from the collateral investigation. DE299. And the government
has argued in other cases, contrary to its argument in this case, that the “position of the
United States” includes only what occurs after the indictment is filed. United States
v. Gardner, 23 F.Supp.2d 1283, 1294 (N.D. Okla. 1998). In any event, Gardner held
that “the position of the United States” includes the activities of the agency involved
and is not limited to the litigation position taken by DOJ. Id. at1283.
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merit, a defendant may still recover under the Hyde Amendment if the “position ... as
a whole” is in bad faith. Id. See also United States v. Heavrin, 330 F.3d 723 (6th Cir.
2003).
A.
The government’s overall “position” merits Hyde Amendment
sanctions.
The district court here found the overall position of the government to be in bad
faith: “I conclude that the position ... in filing the superseding indictment, initiating and
pursing the collateral investigation based on unfounded allegations, suppressing
information about the roles of two key government witnesses as cooperating witnesses
in the collateral investigation; and attempting to secure evidence from the collateral
investigation that would have jeopardized the trial and severely prejudiced the
Defendant, constitute bad faith.” DE320:41. This conclusion was amply supported by
the record. “There were conscious and deliberate wrongs that arose from the
prosecutors’ moral obliquity and egregious departures from the ethical standards to
which prosecutors are held.” DE320:41-42 (citing Gilbert, 198 F.3d at 1299) (noting
that bad faith in the law enforcement context is defined to include “reckless disregard
for the truth”); Eagle Hosp. Physicians v. SRG Consulting, 2009 WL 613603 (11th
Cir. March 12, 2009) (finding “bad faith” for secretly monitoring emails from other
side, resulting in severe sanction of dismissal of civil case, which was necessary to
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deter future misconduct”).12
To the extent that the government suggests that the Hyde Amendment is
inapplicable so long as the original indictment was filed in good faith, this is incorrect.
“[S]uch an interpretation would undermine the very purpose of the Hyde Amendment
to target prosecutorial misconduct.” DE320:42(citing cases). The district court
exhaustively detailed the “egregious abdication of the[] [prosecutors’] ethical
obligations” in attempting to deceive the magistrate judge, threatening the defense with
the “seismic shift” comment, filing the superseding indictment in bad faith, engaging
in an unfounded collateral investigation into the defense because of personal animus,
failing to disclose the existence of the investigation to the court; engaging in “win-atall-cost” behavior, and breaching Brady, Giglio, and Jencks. DE320:27-39. Looking
at this conduct as a whole, the court did not abuse its discretion in finding an award
under the Hyde Amendment to be appropriate.
12
See also Hall v. Cole, 412 U.S. 1 (1973) (“[B]ad faith may be found, not only
in the actions that led to the lawsuit, but also in the conduct of the litigation.”);
Rothenberg v. SEC. Mgmt. Co., 736 F.2d 1470 (11th Cir. 1984) (“In determining the
propriety of a bad faith fee award, ‘the inquiry will focus primarily on the conduct and
motive of a party, rather than on the validity of the case.’”). The government can cite
to no case for its assertion that bad faith means something different for lawyers in civil
cases. On the contrary, when Congress uses a term of art in a statute, “it presumably
knows and adopts the cluster of ideas that were attached....” Morisette v. United States,
342 U.S. 246, 263 (1952).
-43-
Stripped of its legal argument, the government is left to challenge the district
court’s factual findings. But great deference is due these findings, see United States v.
Nelson, 309 F. Appx. 373 (11th Cir. 2009), especially in the Hyde Amendment context.
See, e.g., Angel v. Consolidated Freightways, Inc., 71 F.3d 879 (5th Cir. 1995) (courts
are free to discredit lawyers’ explanations for alleged misconduct: “the district court
is in the best position to determine whether a particular error by an attorney was
committed in bad faith.”).
B.
The filing of the superseding indictment merits Hyde Amendment
sanctions.
The government has conceded that the “Hyde Amendment can be sustained”
without more if, as the court found, “the superseding indictment was filed in bad faith.”
Id. at 48. During the evidentiary hearing, the district judge asked numerous questions
of the witnesses about the decision to supersede and made credibility findings based
on these answers. Judge Gold expressly asked Cronin why he filed the superseding
indictment and had a chance to see his demeanor and weigh his answers against the
evidence. Cronin was asked directly a number of times about whether his actions were
done in good faith or bad faith. DE290:113,135-36,159. The district judge was in the
best position to assess Cronin’s credibility. Cf. United States v. Brown, 53 F.3d 312
(11th Cir. 1995) (holding that fact-finder could find sufficient evidence beyond a
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reasonable doubt merely based on disbelief of defendant’s testimony). The court
determined that the superseding indictment was filed in bad faith, DE290:126130;DE320:11-12, and this factual finding, based on credibility of the witnesses, is not
clearly erroneous and should not be disturbed on appeal.
The court’s determination is supported by the record and common sense. Cronin
warned defense counsel that if Dr. Shaygan pursued his motion to suppress, there
would be a “seismic shift” in how he prosecuted the case. Cronin testified that what he
meant by this comment was that his “happy-go-lucky” personality would “go away.”
DE290:114. The district court did not credit this testimony. DE320:7.13 Moreover, it
is evident that Cronin’s comment referred not only to his attitude, but also his actions.
Indeed, virtually every action he took throughout the remaining prosecution of this case
demonstrated this seismic shift, including the filing of the superseding indictment.
Appellants now argue that their decision to supersede the indictment was (1)
unrelated to Shaygan’s motion to suppress and (2) that the “seismic shift” was
unnecessary because the defense did not challenge the government agents at the hearing
13
This is a prime example of why credibility findings are generally not disturbed
on appeal. Having observed Cronin’s behavior throughout the litigation—before,
during, and after trial—the district judge was in a position to know whether there ever
was a “happy-go-lucky” Sean Cronin. When asked by the government attorney, even
Cronin admitted that he “would not describe [him]self as having a happy-go-lucky
personality in general.” DE290:145.
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in the same way they were challenged in the written motion. This does not ring true. All
of the patients included in the superseding indictment were known to the government
long before the motion to suppress was litigated, yet no superseding indictment was
sought at that time,14 and the defense was never advised that a superseding indictment
was forthcoming (as typically it would be).
Likewise, Shaygan’s position at the hearing was not different than the position
staked out by Shaygan in his motion to suppress. The defense never “abandoned” the
arguments in its motion to suppress. Govt.Br. at 39. To the contrary, Shaygan and his
lawyers vigorously argued and won the motion after two days of hearings before the
magistrate judge and after litigating the government’s objections in the district court.15
In fact, the magistrate judge agreed with Shaygan and found that Wells was not
being truthful at the suppression hearing. The court specifically found his testimony
14
These witnesses were known to the government at a very early date. The
argument that the patients needed to be interviewed before the superseding indictment
was filed is a red-herring as it included certain patients (e.g., David Falcon) who had
not been interviewed.
15
Defense counsel informed the magistrate judge about the “seismic shift”
comment: “[Cronin] made it very clear to me and said in no uncertain terms that if I
went after [Cronin’s] witnesses, and to use his words there would be a seismic shift in
the way he would prosecute the case. I was taken aback. ... I had Dr. Shaygan
polygraphed because I wanted to make sure before I proceeded with this hearing,
before I cross-examined agents, based upon what he said to me that what my client was
telling me and what the witnesses were telling me was correct.” DE122:126-27.
Shaygan passed the polygraph exam. DE106;DE122:130.
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incredible, while crediting Shaygan’s independent witness. DE150. Judge Gold
affirmed the R&R, finding that Wells lied about whether Shaygan had invoked his right
to counsel, just as Shaygan claimed in his initial motion to suppress (and the response
to government’s objections, DE172).16 DE192; DE359:12-13,16 (explaining in detail
why “objectively Wells knew ... that the defendant wanted a lawyer”).
The government also argues that the filing of the superseding indictment was
harmless to Dr. Shaygan because it did not expose him to an increased sentence.
Govt.Br. at 36, Cron.Br. at 42. But as the district court recognized, the simple fact that
the jury would be presented with a 141-count indictment, 118 counts more than the
initial indictment, was itself highly detrimental to Dr. Shaygan’s case. DE290:128.
Appellants make light of this finding, arguing that the additional 118 counts did not
significantly change the trial. Cronin goes so far as to assert that being charged with
these extra counts “inured to Shaygan’s benefit.” Cron.Br. at 42. No attorney practicing
in criminal court could make this argument with a straight face. Of course defending a
case with 141 counts is much more difficult and expensive than a shorter indictment.
16
Shaygan also maintained at the motion hearing that the agents attempted to
intimidate him by making clicking noises with their guns, which was corroborated by
another witness. DE122:105. The government argued that the witness could not be
believed on this point. DE159; DE139:71. The magistrate judge and the district court
disagreed. DE150:11-12; DE192.This is further evidence that Shaygan did not abandon
his position.
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The defense had to expend resources investigating and preparing for these additional
counts, both in terms of attorney hours, expert hours, and investigative hours.
Moreover, as the Appellants concede, the trial had to be continued, DE154. The defense
also had to change its strategy as conviction on any one count would ruin Dr. Shaygan’s
life. And of course, the time of the trial increased as the government now had to prove
up each of those counts through witnesses and documents.
Finally, the government argues that the superseding indictment was not filed in
bad faith because Cronin’s supervisors reviewed and approved it. Govt.Br. at 43. But
the supervisors’ decision to sign off was uninformed, as Cronin’s supervisors were kept
in the dark on much of this case—from the seismic shift threat to the decision to tape
the defense team. DE290:13, 14, 18, 50, 55, 63, 96; DE320:18.
As the record demonstrates and as the district court found, the government’s
decision to supersede was motivated primarily by Cronin’s ill-will towards Dr. Shaygan
and his counsel. Having presided over the case and seen the demeanor of the witnesses,
the district judge had ample basis for his findings, which are not clearly erroneous and
should not be overturned.
C.
The “collateral investigation” merits Hyde Amendment sanctions.
The most blatant manifestation of the government’s malice was the decision to
investigate Dr. Shaygan’s defense team, which Judge Gold found was initiated,
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conducted, and covered up in bad faith. Indeed, the government has never even
attempted to justify it, and this investigation alone supports the Hyde Amendment
award.
Parting ways with the United States, Cronin asserts in his brief that because
witness tampering is “a very serious charge,” the investigation was justified. Cron.Br.
at 9, 28-33. True, witness tampering is very serious, but there was no charge of witness
tampering here. The district judge rejected the contention that Ms. Tucker actually made
any such charge. DE320:15. 17 Putting aside Tucker’s testimony that she never accused
the defense of doing anything wrong or threatening her, and putting aside the district
court’s findings in this regard, Wells, who spoke to Courtney Tucker, did not believe
witness tampering occurred. It was Cronin alone who created this “very serious charge”
out of whole cloth.
Moreover, even the most serious charge does not afford a basis for
commandeering the machinery of the federal government for an unsanctioned
investigation of opposing counsel. Cronin did not even call Tucker to find out what
17
Cronin’s repeated emphasis of this quote is intended to obscure that Judge
Gold’s point was that such a charge, if made, should have resulted in a very different
course of action than the one Cronin followed. In fact, Judge Gold was discussing the
DEA-6 to point out that if he had been provided with it, as ordered, the report would
have been disclosed to the defense.
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occurred. Instead, he plowed ahead without the appropriate approvals, converting two
unrelated neutral witnesses into confidential informants and enlisting them to record the
defense. The U.S. Attorney himself said that the investigation was unfounded and
inappropriate and referred the matter to OPR before the district court entered any
findings. DE299:4
The government argues that the investigation, although improper, did not
undermine the prosecution enough to warrant Hyde Amendment sanctions. Govt.Br. at
48-49. The district court correctly rejected this argument, finding that the collateral
investigation was intertwined with the discovery abuses and other misconduct, all of
which was “committed to avoid weakening the government’s case-in-chief and for the
purpose of severely prejudicing the interests of Dr. Shaygan.” DE320:43. The district
court accurately found that there was no good faith explanation for the decision to tape
the defense team interviewing what were supposed to be neutral fact witnesses.18 See
Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (finding that “the pursuit of a
claim without reasonable inquiry into the underlying facts can be the basis for a finding
of bad faith”).
18
The fact that the defense team was investigated can never be erased and will
always be of record. Although this investigation was done in the absence of any
legitimate provocation whatsoever, it will continue unfairly taint Dr. Shaygan and
counsel. DE309:2,n.1.
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Putting aside that it was the government that attempted to “twist the words” of
the witness who started to “go south,” and that the witness tampering investigation was
completely unfounded, it became clear that Cronin “unilaterally proceeded” in the
“pursuit of the collateral investigation” in an attempt “to improperly secure incriminating
evidence against the defense team to his advantage.” DE320:29.
Though it should have been revealed to the court before trial, the fact of the
investigation could have resulted in severe prejudice to Dr. Shaygan: “Such an
unfounded investigation is all the more egregious given the severity of prejudice to the
defendant, facing a count carrying a minimum sentence of twenty (plus) years, that
would have resulted from disclosure to this court close to the start of trial that the
defense team was under investigation by the USAO for witness tampering.” Id. Cronin
conceded that he was thinking about these McLain issues, and the court found that
“[s]uch a development would have deprived the defendant of a defense team that had
become intimately familiar with his defense, causing him severe prejudice.” Id. at 3031.19
19
Appellants misunderstand the court’s point when they argue that because they
intended to keep secret the investigation, they did not implicate McLain. The court
properly found that the prosecutors initiated and pursued the collateral investigation in
the hopes of having the defense team disqualified (under McLain). Notably, the
prosecutors were calling Agent Brown a week before trial, urging him to push forward
with face-to-face meetings before trial started. If those meetings had produced anything
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Perhaps worse, “Cronin ... [and] Hoffman did not intend to bring the existence
of the collateral investigation to [the court’s] attention.” Id. The government did not
come forward to disclose what had transpired until its hand was forced by the statement
that slipped out during Clendening’s testimony. Even after Clendening revealed the
existence of the tape during his testimony, this matter came to light only “by accident.”
Gilbert testified as follows:
Q. [by the Court] What was your next contact? Somebody came in and said,
“Ms. Gilbert, we got a problem here,” right?
A. I don’t hear anything that's happening until February 19 th which was the day
my verdict came in, in the Judge Huck case, and the day that Mr. Clendening
testified, I believe, here and made the comment about the tape recording
existing.
Q. So, why did any -- and I will get into this in a moment as to who did—but
why did any AUSA come to you? You are not responsible any more. You assign
two other deputies.
A. It was merely by accident, sir. We were out at a restaurant Thursday evening
talking about work and that's how it came up. It was not a, “Let me notify you
as my boss.” I happened to be with a group of people. Mr. Cronin and Ms.
Hoffman were there and told the story. That’s the first I heard of it.
DE290:46-47 (emphasis added). Even after Cronin and Hoffman were “reminded” by
Clendening’s testimony that he had been acting as a government informant and had
close to the line, the prosecutors could have set in motion potential disqualification
under McLain. Cronin admitted that he had McLain on his mind, DE290:11, and the
district court’s findings that Cronin and Hoffman were attempting to get the defense
disqualified are not clearly erroneous.
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secretly recorded defense conversations, they not only failed to immediately bring this
to the court’s attention, but they did not intend to address the issue at all, even with their
own supervisors. It was only Gilbert’s decision to follow up that resulted in the
disclosures to the court and the defense team, demonstrating that Judge Gold’s findings
regarding Cronin’s and Hoffman’s state of mind were correct.
If not for Clendening blurting it out on the stand, followed by Cronin’s and
Hoffman’s passing comment to Gilbert during the telling of a war story in a dinner
conversation, none of this would have been known to the court (or the defense).
DE320:31; DE290:117. More significantly, none of this would have been known to the
jury, and it might well have resulted in a wrongful conviction and a severe sentence.
DE320:31; DE290:117,199.
D.
Violations of Brady, Giglio, Jencks, and Court Orders merit Hyde
Amendment sanctions.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court placed an
affirmative duty on the prosecution to reveal any “evidence [that] is material either to
guilt or to punishment 373 U.S. at 87. This duty covers “[i]mpeachment evidence . . . as
well as exculpatory evidence.” United States v. Bagley, 473 U.S. 667, 676 (1985). The
Brady rule applies to evidence possessed by the prosecution team, which includes both
the investigators and prosecutors. See United States v. Meros, 866 F.2d 1304, 1309 (11th
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Cir. 1989).
The Court explained the discovery violations in detail at pages 31-39 of its order.
The violations include:
<
failure to disclosure to the defense in violation of Brady and Giglio and the court
(in violation of its order) of the two DEA-6 reports discussing Vento’s recording
of the defense (DE320:33), which undermined the testimony of this critical
government witness;20
<
failure to disclose to the defense and the court that Vento and Clendening were
confidential informants. DE290:116-118;21
<
failure to disclose DEA-6 reports, including those of interviews with Tucker,
McQuarrie, Andrew Gribben, and Enrique Betancourt, DE320:35, which
supported Dr. Shaygan’s defense and were material because they directly rebutted
20
Vento and Clendening were critical witnesses for the prosecution’s theory that
Dr. Shaygan prescribed medication to Brendan Downey that resulted in his death. The
district court correctly found these reports fell squarely within Brady and Giglio
because the DEA-6 reports, which indicated that Vento was a “federal cooperating
witness” and had successfully recorded his conversation with a member of the defense
team, and that he ultimately was signed up as a confidential source, would have been
a significant factor in a jury’s determination of Vento’s credibility. These DEA-6s also
revealed Clendening’s role in the collateral investigation. DE320:34.
21
See Schledwitz v. United States, 169 F.3d 1003 (6th Cir. 1999) (Brady
violation by failing to disclose that its key witness, who was portrayed as neutral and
disinterested, had for years actually been actively involved in investigating defendant).
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the prosecution’s theory that the defendant was not a legitimate doctor;22
<
failure to disclose that Clendening’s role as an informant in the Shaygan matter
was made known to the judge in the state court prosecution, DE325:100-01;
<
failure to disclose Vento’s and Clendening’s recorded statements at the time of
their trial testimony. The government has admitted that this failure constituted a
violation of Jencks. DE299:2;DE320:39.
The government conceded below that it had made “serious mistakes” with regard
to discovery. DE290:190; DE299:2-3,10-11. As a remedy it suggested that the court
reopen cross-examination of the witnesses and instruct the jury as to why this needed to
occur (and the court followed this suggestion). DE258; DE324:255. At the sanctions
hearing, Cronin admitted to these violations. DE290:101,142. And the government
admitted to discovery abuses in its post-sanctions hearing pleading. DE299:2-3,10-11.23
These discovery violations alone would be sufficient for Hyde Amendment
22
See also id. at n. 9 (explaining some of the favorable information in each of
these reports). Just by way of example, Tucker spoke about the quality of care she
received—specifically that Dr. Shaygan provided “thorough examinations including
flexibility exercises,” “seemed very interested in her well being,” and had prescribed
her “antibiotics for a urinary tract infection.”
23
Even Cronin testified that although he did not initially see how certain items
were Brady or Giglio material, after seeing what happened in this case, it was “vividly
illustrated” to him “that things that [he] may not believe are Brady or Giglio might for
a defense lawyer be fertile ground for cross-examination or for argument.” DE290:118.
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recovery. This Court cited approvingly in Gilbert to United States v. Ranger Electronic
Communications, Inc., 22 F. Supp. 2d 667 (W.D. Mich. 1998) (reversed on other
grounds), for the proposition that “violation of [the] Brady doctrine was [an] example of
bad faith justifying [the] award of fees under the Hyde Amendment.” Gilbert, 198 F.3d
at 1304 (summarizing Ranger); see also United States v. Chapman, 524 F.3d 1073 (9th
Cir. 2008) (“The legislative history of the Hyde Amendment makes clear that it was
intended to protect against some types of disclosure violations.”); United States v. Von
Schlieffen, 2009 WL 577720 (S.D. Fla. March 5, 2009) (awarding $356,824 under Hyde
Amendment where “the Government’s failure to monitor informants and its failure to
disclose what it knew and had a duty to know about the informants, constituted bad faith
under the Hyde Amendment.”); United States v. Claro, 2007 WL 2220980 (S.D. Tex.
2007) (finding Hyde Amendment award appropriate where prosecution, among other
things, violated Brady and orders of the court).
Although it admitted to the discovery abuses below, the government now argues
on appeal that there were no Brady or Giglio violations 24 because (1) the material
eventually was disclosed during trial; (2) the defense had interviewed the witnesses pretrial; (3) Dr. Shaygan was not prejudiced; and (4) the information was cumulative and
24
The government does not contest that it violated Jencks.
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not material. The government’s position, in other words, is “no harm, no foul.” But this
backward-looking analysis is not correct.25
Appellants overlook the fact that the prosecution did not come forward to disclose
what had transpired until its hand was forced by the statement that slipped out during
Clendening’s testimony. Even Cronin admitted that had Clendening not slipped, the facts
surrounding the Vento and Clendening would not have been revealed. DE290:17. United
States v. Jordan, 316 F.3d 1215, 1253 (11th Cir. 2003) (impeachment evidence must be
disclosed in time to permit defense counsel to use it effectively in cross-examining
witness).
Likewise, the prosecutors did not disclose the Brady material during trial because
they realized that they were obligated to do so. Rather, their hands were forced by the
court and the witnesses, after the fact. That the defense may have interviewed these
witnesses pre-trial does not alleviate the prosecution from its Brady obligations. The
prosecutors were not aware of everyone the defense was interviewing or what those
witnesses were saying to the defense (other than the times it tape-recorded the defense
25
The government has cited law discussing whether a Brady/Giglio violation
requires a new trial. Of course that standard is not applicable here because Shaygan
was acquitted. Under the government’s theory, an acquittal totally vitiates any Brady
violation because the defendant avoided prejudice. Under such reasoning, only those
falsely convicted would be entitled to Hyde Amendment sanctions. That is not the law.
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interviews).
The cases the government cites discuss whether the failure to disclose was
harmless because the defense was able to get the information on its own, but this is
irrelevant to whether the prosecution engaged in bad faith at the time in failing to turn
over the information. Under the government’s harmless error analysis, prosecutors would
rarely turn over favorable information to the defense. When a prosecutor finds out
information that is helpful to the defense, it must turn that information over. It cannot
gamble that the defense may discover the information on its own or that the defendant
may be acquitted.
Moreover, the government did not preserve an objection to the court’s finding that
there were Brady and Giglio violations; to the contrary, it expressly conceded such
violations below. As such, this argument has been waived.
E.
Other wrongful activities merit Hyde Amendment sanctions.
The government also wrongly contends that the other egregious ethical violations
do not themselves warrant an award under the Hyde Amendment.
As an initial matter, the government’s attempt to parse the prosecutors’
misconduct fails because, as the district court found, the misconduct was all intertwined.
The “seismic shift” threat, the request made to the magistrate to deceive the defense and
the public, the idea to tape the defense team, the breach of the taint wall, the failure to
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turn over favorable information, the disregard of court orders, the omitting of critical
facts from their affidavits, the lying at the sanctions hearing, and even the arrogant
individual appellate briefs that still do not accept responsibility, all taken together
demonstrate a “win-at-all-cost” course of conduct “that was contrary to their ethical
obligations as prosecutors,” DE320:31, “motivated in part by ... personal animus against
the defense team and fueled by ... deliberate failure to exercise independent and objective
judgment.” DE320:29. This course of conduct turned the case into a bad faith
prosecution, warranting Hyde Amendment sanctions.
The government does not address many of these actions in its brief. Just as an
example, in the course of a hearing regarding Dr. Shaygan’s motion for certain Brady
information before the magistrate, an issue arose regarding the disclosure of a witness
report. At the time of the request, the government apparently had not yet interviewed the
witness. Rather than simply revealing this relatively innocuous fact in open court,
however, Cronin made an in camera filing designed to deceive the defense and the
public. In her order, Judge McAliley found that Cronin sought to enlist the court to
“engage in deception,” stating: “The government led the Defendant (and anyone else
who might be following the public record of these proceedings) to believe that it would
give the Court an interview report of [the witness], and the Court told the parties that it
would inform them whether any part of that report must be disclosed as Brady material.
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. . . Thus, the Court cannot remain silent on the matter.” DE103:3-4. This unnecessary
and inappropriate exercise, which was just one of a host of unnecessary skirmishes,
transpired shortly after Cronin’s promise of a “seismic shift” in the prosecution of the
case.
There were a number of other misdeeds that still have not been acknowledged by
the government, which also demonstrate that the position of the United States was
vexatious and in bad faith: 1) the failure to make contemporaneous reports of critical
conversations; 2) the decision to continue the investigation even after the initial recording
revealed no misconduct; 3) the decision to use Vento and Clendening in the first place,
and the decision to continue using them after they disregarded Wells’ instructions by
asking for money and asking to speak to Shaygan directly; 4) the decision to continue the
investigation, secretly, even after defense counsel brought to the attention of the trial
team’s superiors that there was a concern about undue animus; 5) the fact that Cronin
and Hoffman urged Agent Brown to proceed with the collateral investigation just before
trial began, while still “overlooking” the obligation to disclose the investigation to the
defense and the court; and 6) the failure to immediately come sidebar to advise the court
of what had transpired upon such time as Clendening referenced the recording in his
testimony, rather than waiting four days over a long weekend and then springing the
news on defense counsel at the morning break just before an important cross-60-
examination. These actions taken together demonstrate that the position of the United
States was vexatious and in bad faith.
F.
Conclusion.
The Court should affirm Judge Gold’s Hyde Amendment award in this case. Such
a sanction is critical in ensuring that prosecutors faithfully observe their legal and ethical
obligations. Judge Gold painstakingly explained “what happened here because it [wa]s
necessary to get to the bottom of what went wrong ... in hope that it will not happen
again.” DE320:5. As he eloquently put it: “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.” Id.
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II.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
PUBLICLY REPRIMANDING CRONIN AND HOFFMAN.
A.
District courts have broad discretion to use their inherent authority
to enforce basic ethical norms.
The district court, after making extensive findings of misconduct, concluded that
it was appropriate to sanction Cronin and Hoffman by publicly reprimanding them.
DE320:46-49. The court was well within its power to do so under its inherent
authority.26 In re Sunshine Jr. Stores, 456 F.3d 1291, 1304 (11th Cir. 2006); Kleiner
v. First National Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985) (“The inherent
power of a court to manage its affairs necessarily includes the authority to impose
reasonable and appropriate sanctions upon errant lawyers practicing before it.”); United
States v. Sigma, 196 F.3d 1314, 1322 n.8 (11th Cir. 1999), vacated on other grounds,
300 F.3d 1278 (11th Cir. 2002) (en banc) (finding that “a court may reprimand a
prosecutor through a published opinion to deter misconduct”).
A court may exercise its inherent power to punish bad faith conduct. Chambers
v. NASCO, Inc., 501 U.S. 32, 46 (1991). “In this regard, if a court finds ... ‘that the very
26
We have no stake in whether the prosecutors are personally sanctioned, and
therefore we took no position on this matter below. But we feel compelled to respond
to the assertions made in the individual prosecutors’ briefs because they misstate the
law and facts, and because the district court’s decision to issue sanctions was well
within its discretion.
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temple of justice has been defiled,’” the court may impose sanctions against the
responsible party. Id. Sanctions are “especially appropriate where counsel takes
frivolous legal positions supported by scandalous accusations.” Amlong & Amlong, P.A.
v. Denny’s, Inc., 500 F.3d, 1230, 1238 (11th Cir. 2007). “This power is derived from
the court's need ‘to manage [its] own affairs so as to achieve the orderly and expeditious
disposition of cases.’” Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001) (citing
Chambers, 501 U.S. at 43).27
The exercise of the court’s inherent authority is reviewed for an abuse of
discretion. Sunshine Jr. Stores, 456 F.3d at 1304; United States v. Frazier, 387 F.3d
1244, 1259 (11th Cir. 2004) (en banc). This standard “recognizes there is a range of
choice within which [the Court] will not reverse the district court even if [it] might have
reached a different decision.” Schiavo v. Schiavo, 403 F.3d 1223, 1226 (11th Cir.
2005).
Despite the broad discretion a district court has to control its courtroom and to
sanction misbehaving lawyers, Cronin and Hoffman appeal, arguing that they were
27
See also Salmeron v. Enterprise Recovery Systems, Inc., 579 F.3d 787 (7th
Cir. 2009) (“[A] district court’s inherent power to sanction for violations of the judicial
process is permissibly exercised not merely to remedy prejudice to a party, but also to
reprimand the offender and to deter future parties from trampling upon the integrity of
the court.”).
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denied due process. This argument fails for a number of related reasons.28
B.
Cronin and Hoffman waived their due process claim.
Because their due process argument is being presented for the first time on
appeal, it has been waived and should not be reviewed. Where a party fails to raise
claims in the district court, this Court will ordinarily not consider them on appeal. See
United State v. Todd, 108 F.3d 1329, 1333 (11th Cir. 1997). Unlike criminal cases,
where newly-raised arguments are reviewed for plain error, see United States v.
Pielago, 135 F.3d 703, 708 (11th Cir. 2003), in civil cases, arguments not raised in the
district court are ordinarily deemed waived. See Four Seasons, 377 F.3d at 1168.
This is also true in the sanctions arena. Angel v. Consolidated Freightways, 71
F.3d 879 n.2 (5th Cir. 1995) (“The district court apparently [sanctioned plaintiff]
without notice or opportunity to [be heard]. Because Angel did not argue to the district
court or in her brief that the dismissal violated her due process rights, we cannot
consider this argument.”); Sheppard v. River Valley Fitness, 428 F.3d 1, 12-13 (1st Cir.
2005) (affirming sanctions where lawyer waived issue below).
The district court at the conclusion of the hearing allowed for supplemental
28
The other sanctioned agents and prosecutors—Wells, then-U.S. Attorney
Alexander Acosta, and AUSAs Karen Gilbert, Jeffrey Sloman, Robert Senior, Antonio
Gonzalez, and Dustin Davis—have not appealed or challenged the sanctions.
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briefing and stated that it would “write an opinion on this case.” Id. at 202. Yet, Cronin
and Hoffman did not even then submit any papers though it was crystal clear that the
court was extremely concerned about their actions. Although Cronin and Hoffman allege
a lack of due process, they fail to identify how a different process would have afforded
a different result. Instead, they vaguely claim in their briefs that they possess not-yet
presented evidence, which demonstrate that Gilbert, and not them, is to blame. Cron.Br.
at 26; Hoff.Br. at 19-20. The time to have presented that evidence was during the
sanctions hearing, or in a motion for reconsideration. Any such claim now, without even
stating with any specificity what that evidence is, is too late.
As we have previously pointed out, Cronin’s entire fact section is replete with
misstatements, which ignore the actual record in favor of Cronin’s discredited version
of events (which he put before the district court during his testimony). If Cronin wanted
to address those factual findings, he needed to do so with the court below in the first
instance. He could have intervened. Or filed a paper asserting his position, before or
after the hearings. Or appeared through counsel at the hearing. Or moved for
reconsideration. Or objected. He did none of these things, nor did Ms. Hoffman.
By neglecting to seek intervention as parties in the proceeding called for the very
purpose of allowing the district court to assess the propriety of their actions, either at
the time of the hearing or after the court’s issuance of its ruling, through written or oral
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objections or other filings, Cronin and Hoffman deprived the district court of the ability
to address the concerns they now seek to raise for the first time on appeal. See MCI
Telecomms Corp. v. Matrix Communications Corp., 135 F.3d 27, 33 (1st Cir. 1998)
(party’s unexplained failure to file motion for reconsideration is further evidence of
waiver). Instead, they attempt to enlist this Court’s assistance in effectively making a
strategic end-run around the district court and its inherent authority to discipline
attorneys appearing before it.
C.
Cronin and Hoffman received due process.
Even if the claim was not waived, Cronin and Hoffman received the process they
were due. “Due process requires that the attorney be given fair notice from either the
court or the complaining party that his conduct may warrant sanction and an opportunity
to respond.” In re Ocon, 2009 WL 405370 (11th Cir. 2009) (internal quotations
omitted), quoting In re Mroz, 65 F.3d 1567, 1575 (11th Cir.1995). Reprimands require
less process than other more severe sanctions. Wolters Kluwer Financial Services, Inc.
v. Scivantage, 564 F.3d 110 (2d Cir. 2009) (full panoply of due process rights not
afforded where lawyer is merely being reprimanded as opposed to being help in
contempt, ordered to pay money, or other similar sanction). Indeed, evidentiary
hearings, like the one Judge Gold conducted, are not necessary, and the mere
“opportunity to brief the issue fully satisfies due process requirements.” Lasar v. Ford
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Motor Co., 399 F.3d 1101(9th Cir. 2005).29
Here, after the acquittal, Judge Gold scheduled the sanctions hearing and put
Cronin and Hoffman on notice that they were facing individual sanctions.DE328:8
(explaining that the court was considering sanctions in addition to Hyde Amendment if
there was a finding of bad faith).
This Court has rejected due process claims where the sanctioned party received
much less notice. In re Sunshine Jr. Stores, Inc., 456 F.3d 1291 (11th Cir. 2006),
concerned a due process claim that a party “did not receive adequate notice from the ...
court that its conduct could result in sanctions. ...The crux of [appellants’] argument is
that the court’s orders did not use the terms ‘sanction’ or ‘contempt.’” Because
appellants had to have known that their conduct was at issue and that “failure to obey
the [court’s] orders would result in punishment,” their assertion that they lacked notice
is “astounding.” This Court found that “blatant disregard for the ... court’s orders is
itself notice.” Id. at1307.
Here, Cronin and Hoffman had much more notice that they could be sanctioned
than the In Re Sunshine appellants. The sanctions hearing revolved expressly around
29
There are times when even a summary decision satisfies due process. See, e.g.,
Fed.R.Crim.P. 42(a) (permitting summary contempt without a hearing, counsel, or the
opportunity to call witnesses where judge observes contumacious behavior).
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their conduct in the case (as any Hyde Amendment hearing necessarily would). Clearly,
they were on notice that their conduct was at issue and that their credibility as to what
occurred would be addressed. In fact, Judge Gold ordered that they, and others, submit
affidavits detailing their version of events. DE302:226;DE250. And Judge Gold ordered
that they be present as witnesses for the hearing. DE324:239-40;DE275. Whether they
acted in bad faith concerning the prosecution of Ali Shaygan and concerning the
collateral investigation was exactly the issue the court was considering. The United
States Attorney’s Office and Shaygan engaged in multiple rounds of briefing, each
discussing in detail the propriety (or lack thereof) of Cronin’s and Hoffman’s actions.
The USAO vigorously put forth the prosecutors’ position at the evidentiary hearing and
in the pleadings before the court. It is no surprise that the arguments raised in those
papers and at the hearing are the same arguments being presented by Cronin and
Hoffman here. The hearing was set with plenty of notice. DE324:239. And subsequent
to the hearing, Judge Gold invited still further briefing.
This was not a proceeding on another subject that unexpectedly morphed into an
inquiry about prosecutorial misconduct. To the contrary, Cronin and Hoffman, the lead
prosecutors, were necessarily aware of the court’s concerns regarding not only the
government’s culpability but also their individual ethical and professional comportment
in relation to the criminal proceedings that, by the time of the hearing, had been
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concluded with an acquittal. See Baldwin Hardware v. FrankSu Enterprise, 78 F.3d 550
(Fed. Cir. 1996) (no due process violation where court sua sponte sanctioned attorney
after trial as party was aware of court's displeasure with actions and addressed them as
they came up).
Also, both prosecutors had the opportunity to be heard individually on whether
they engaged in misconduct and both were heard. Cronin testified (in addition to
submitting his affidavit and having the USAO present arguments), and Judge Gold left
no doubt that Cronin could be held accountable for his actions. Indeed, during such
questioning, Cronin admitted to many instances of wrongdoing on the stand. 30
Hoffman, too, was heard through her affidavit and the USAO. She was present
in the courthouse at the hearing and had an opportunity to testify or to have her
individual counsel speak for her, but did not avail herself of these options. She and her
30
See, e.g., DE290:97-98(Cronin initially stating he didn’t recall a conversation
with a DEA agent, but then recalling the conversation after Judge Gold said: “You are
a very bright man. You remember everything. You never use a note. So, please don’t
tell me your memory is faulty. ... Tell me the truth.”); pg. 106 (agreeing that Brady and
Giglio information “clearly” wasn’t turned over to the defense); pg. 111 (testifying that
he considered the McLain issues before trial even though he claims now that there were
no McLain issues); pg. 113 (conceding that if the court found that he acted tactically
then “it would be bad faith”); pg. 124 (saying that he “should have done a better job.
There is no doubt about that.”). The government also conceded that there were “serious
failing[s]” on the part of these prosecutors, id. at 197, and “flagrant violations of Brady,
Giglio, and the like,” id. at 198.
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lawyer, although aware that her conduct was at issue, decided not to ask to be heard at
the hearing, and did not file any pre or post-hearing papers.31 The USAO argued for her
(and Cronin) that the conduct at issue was not conducted in bad faith. See In re Ocon,
2009 WL 405370 (where counsel failed to respond to motion seeking sanctions, counsel
had due process).
Moreover, although Judge Gold excluded witnesses from the courtroom, nothing
prevented Cronin and Hoffman from having their lawyers present at the hearing. In fact,
in addition to the numerous lawyers present from the USAO, who were arguing that
Cronin and Hoffman did not engage in bad faith conduct, Wells and AUSA Karen
Gilbert had individual counsel present for the hearing, and Cronin and Hoffman were
entitled to the same.
Both Cronin and Hoffman had access to the hearing transcript, which left no
doubt that Judge Gold intended to issue an order squarely addressing their misconduct
and which did not give any comfort that sanctions would be limited to the USAO as
distinct from the individuals involved. See, e.g., DE290:173-202 (discussing in part
whether prosecutors should be “punished” to deter future misconduct).
Under Appellants’ theory, trial judges would be effectively stripped of authority
31
This was a litigation strategy and was made for good reason. Numerous
portions of her affidavit were demonstrably false.
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to supervise conduct in their courtrooms. The suggestion that a district court must
provide prior written notice before reprimanding an attorney appearing before it on a
Hyde Amendment motion concerning misconduct, and that such notice requirement is
not satisfied by the ordering of briefing and scheduling of a hearing on the matter, would
prevent district courts from enforcing appropriate standards of conduct and adherence
to ethical rules entirely. See, e.g., Rhodes v. MacDonald, 2009 WL 3299817 (M.D. Ga.
October 13, 2009) (sua sponte ordering $20,000 sanction for lawyer who repeatedly
took frivolous positions and finding “additional notice and hearing would have no
value”). No reputation-affecting remedy of any sort would be possible. Such a practice
would be entirely unworkable and moreover is unwarranted; by virtue of accepting bar
admission and applying for admission to practice in the district court, the attorney
already has submitted to the jurisdiction of the court and is on notice that he must
conduct himself in accordance with the rules of the court. Id.
Cronin and Hoffman seem to be arguing that because the order damaged their
reputation, they were entitled to an additional hearing. But using the prosecutors’ actual
names when their conduct is addressed in the context of a different proceeding, as this
and other courts have often done, is a common and encouraged practice to deter
misconduct. See, e.g., United States v. Hasting, 461 U.S. 461, 506 n. 5 (1983) (“The
Court also could have publicly chastened the prosecutor by identifying him in his
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opinion.”). This Court has never required additional hearings when naming prosecutors
in an opinion , even when such an opinion would damage a prosecutor’s reputation. See
United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995) (repeatedly naming individual
prosecutor stating that he engaged in misconduct for violating Brady). See also Kyles
v. Whitley, 514 U.S. 419 (1995) (identifying prosecutor responsible for Brady violation);
United States v. Blasco, 702 F.2d 1315 (11th Cir. 1983) (using name of prosecutor,
saying “her attitude and lack of respect for the court’s authority can best be described
as contemptuous” and that it was “astonished” at how “unprofessional” prosecutor was
in harming “integrity of the judicial process”; finding that district court did not do
enough in banishing prosecutor from the courtroom and that it should have issued “a
citation for contempt”); Stephens v. Hall, 407 F.3d 1195 (11th Cir. 2005) (naming
prosecutor Nancy Grace—now a cable TV host—and commenting that she “played fast
and loose” with her ethical duties); Sanchez-Velasco v. Department of Corrections, 287
F.3d 1015 (11th Cir. 2002) (naming attorney and stating that his appeal was not
“dedicated to [his client’s] best interests”); United States v. Jones, 620 F. Supp. 2d 163,
175 (D. Mass. 2009) (outlining when it is appropriate to publish decisions naming the
prosecutor who engaged in misconduct and explaining that “[e]xperience has educated
this court to understand that the usual means employed by judges to respond to
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prosecutorial misconduct are ineffectual”).32
The bottom line is that Cronin and Hoffman were on notice that the district court
was specifically addressing whether they engaged in bad faith litigation, and they had
the opportunity to be heard.
D.
If there is a remand, the case should not be reassigned.
Cronin’s and Hoffman’s suggestion that if there is a remand, this Court should
assign the matter to a different judge, is absurd. They point to no bias, only to the very
adverse rulings that they now appeal. As a general rule, a judge’s rulings in the same
case are not valid grounds for recusal. United States v. Armedeo, 487 F.3d 823, 828
(11th Cir. 2007) (“The bias or prejudice must be personal and extrajudicial; it must
derive from something other than that which the judge learned by participating in the
32
In other words, had the court not reprimanded Cronin and Hoffman but named
them throughout the Hyde Amendment order, they would not be able to appeal despite
the damage to their reputation. See Sigma, 300 F.3d at 1280 (acknowledging “that loss
of personal reputation alone does not implicate procedural due process”). Accordingly,
the prosecutors’ ability to challenge the district court’s order should be limited, at the
very most, to a challenge of whether given the district court’s factual findings, sanctions
may be imposed against them. The factual findings themselves, which form the entire
underpinning of the Hyde Amendment award and were the express purpose of the
briefing and hearing below, are not subject to challenge for the first time on appeal by
non-parties. United States v. Gonzalez, 344 F.3d 1036 (10th Cir. 2003) (critical
language of lawyers in an opinion is not appealable). Similarly, a referral to a state bar
disciplinary board for investigation is not considered a sanction or disciplinary measure.
See In re Walker, 532 F.3d 1304 (11th Cir. 2008).
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case.”); United States v. Bailey, 175 F.3d 966 (11th Cir. 1999) (“For a bias to be
personal, and therefore disqualifying, it must stem from an extra-judicial source.”).
Appellants do not bother to mention the closest case on point: United States v.
Nunez, 801 F.2d 1260 (11th Cir. 1986). In Nunez, this Court rejected the sanctioned
lawyer’s request to have a different judge assigned on remand where judge was
“frustrated with [the lawyer’s conduct],” but “the record [wa]s devoid of any evidence
of animosity.”
Cronin and Hoffman’s argument would transmute every adverse order entered by
any court into an example of bias or animosity. “Because a fully informed and objective
observer would not entertain significant doubt about [Judge Gold’s] impartiality in the
proceedings,” the case should not be reassigned. Id. at 909.
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CONCLUSION
Appellee Ali Shaygan respectfully requests that this Court affirm the district
court’s order in its entirety.
Respectfully submitted,
D AVID O SCAR M ARKUS, PLLC
169 East Flagler Street, Suite 1200
Miami, FL 33131
Tel: (305)379-6667
Fax: (305)379-6668
By:
_______________________
D AVID O SCAR M ARKUS
Florida Bar Number 119318
Dmarkus@MarkusLaw.com
R OBIN E LLEN K APLAN
Florida bar Number 773751
Rkaplan@MarkusLaw.com
CERTIFICATE OF COMPLIANCE
On November 3, 2009, this Court granted in part Appellee’s motion for leave to
file an oversized brief, allowing 17,000 total words. According to the WordPerfect
program on which it is written, the numbered pages of this brief contain 16,916 words,
exclusive of certificates of counsel.
_______________________
David Oscar Markus
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CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing was served by mail this 1st day of
December, 2009, upon William M. Pearson (attorney for Andrea Hoffman), 1221
Brickell Avenue, 16th Floor, Miami, Florida 33131, Robert C. Josefsberg (attorney
for Andrea Hoffman), 25 West Flagler Street, Suite 800, Miami, Florida 33130,
Roberto Martinez (attorney for Sean Paul Cronin), 255 Aragon Avenue, 2nd Floor,
Coral Gables, Florida 33134, Kirby A. Heller, Assistant United States Attorney, U.S.
Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530.
____________________
D AVID O SCAR M ARKUS
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