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John Pacenti's federal courts report

Daily Business Review

In this week's episode, John interviews attorney David Markus who is appealing the prosecutorial misconduct case of Dr. Ali Shaygan to the U.S. Supreme Court.

The Justice Department doesn't want the U.S. Supreme Court to hear a dispute over alleged prosecutorial misconduct, urging the court to keep in place a ruling that voided an award of more than $600,000 in attorney fees to a Miami doctor who was acquitted in a drug case.

Responding to the Justice Department, Dr. Ali Shaygan's lawyers continued their effort to persuade the high court to review the decision of the U.S. Court of Appeals for the Eleventh Circuit to dismiss the legal fee award.

At issue is this: Under what scenario is a criminal defendant allowed to recoup legal fees under the Hyde Amendment? Federal law says a defendant can try to obtain fees if the legal position of the United States was vexatious, frivolous or in bad faith. But those terms are not defined.

The Justice Department said in its Supreme Court papers that a defendant must show at the start that a case itself should never have been brought. David Markus, the chief lawyer for the former Miami Beach doctor, said Friday in response that the government is attempting to craft a new provision under the Hyde Amendment.

"In the government's view, a mere finding of probable cause by a grand jury is enough to insulate bad prosecutors," Markus of Markus & Markus in Miami said in court papers. "But the grand jury is simply not an effective protection for defendants."

Markus said the Justice Department's "fundamental revision of the Hyde Amendment's plain language is made without citation to the statute or a single case."

The government's brief in the high court said Shaygan is not entitled to fees "because the petition of the United States in prosecuting him was not taken in bad faith."

"An award of fees and costs under the Hyde Amendment presupposes the existence of a prosecution that the government should not have brought or pursued," the DOJ brief said. "When the government does bring or pursue such a prosecution and a defendant can establish that it did so for an improper purpose, the defendant can establish bad faith under the Hyde Amendment."

The trial judge, U.S. District Judge Alan Gold in Miami, ordered the government to pay nearly $602,000 in fees and costs as a sanction for alleged misconduct.

The judge pointed to the prosecution's initiation of a witness tampering probe targeting Shaygan's defense team and the government's violation of requirements to turn over certain information to Shaygan's counsel.

An Eleventh Circuit panel overturned the decision. Later, the full appeals court divided and declined to hear the case. Judge William Pryor Jr. wrote in denying full-court review, "The Hyde Amendment is concerned with wrongful prosecutions, not wrongs that occur in objectively reasonable prosecutions."

In August, more than 60 former judges and federal prosecutors, represented by Thomas Goldstein of Washington's Goldstein & Russell, filed a brief in support of Shaygan. The brief called the Eleventh Circuit ruling "a bolt from the blue."

The judges' and prosecutors' brief said the appellate court decision "sends a signal that prosecutors may pursue a vindictive agenda with impunity so long as they have reason to believe in the defendant's guilt."

Markus said in his brief that the Eleventh Circuit decision "insulates the government from sanctions in the face of extreme bad faith misconduct."

"When a defendant is found not guilty and can show that the government tried to convict by cheating, he should be able to recover his fees and costs," Markus said.

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