As the double jeopardy decision in the Roger Clemens case, discussed in this blog previously here, here, and here, demonstrates, meaningful sanctions for prosecutorial misconduct are rarely imposed. Last week, the Eleventh Circuit, in overturning a district court order that the government reimburse approximately $600,000 in legal fees to an acquitted physician under the Hyde Amendment, (Pub. L.　105-119, 111 Stat. 2519, reprinted in 18 U.S.C. § 3006(A), Historical and Statutory Notes), re-emphasized that successful actions under that provision will be exceedingly rare. The Hyde Amendment provides that the court may award a defendant in a criminal case attorney’s fees and litigation expenses when the court finds that "the position of the United States was vexatious, frivolous, or in bad faith."

In United States v. Shaygan, 2011 WL 3795469 (11th Cir., August 29, 2011), the Court considered a government appeal of a district court Hyde Amendment sanction for prosecutorial misconduct by acting "vexatiously and in bad faith" in filing a superseding indictment after the defense vigorously pursued a motion to suppress despite a prosecutorial warning that such an attack would lead to a "seismic shift" in the government’s position, in conducting a witness tampering investigation involving surreptitiously recording conversations with a defense investigator and lawyer, and in violating discovery orders. The district court accepted that the initiation of the prosecution and the original indictment was in good faith.

The Circuit Court, seemingly determined to reinforce the "narrow scope" of the Amendment, started its opinion on a dramatic note:

The stakes in this appeal are high: they involve the sovereign immunity of the United States, the constitutional separation of powers, and the civil rights and professional reputations of two federal prosecutors.

The Court found that the district court abused its discretion and held that Hyde Act awards may be granted only when the government’s "overall litigating position" was vexatious, frivolous or in bad faith. Thus, discovery violations and collateral wrongdoing by the prosecutors are not subject to Hyde Act sanctions.

Perhaps more importantly, said the court, the subjective ill-will of the prosecutor, while relevant, is not determinative of whether the government acted in bad faith. "Bad faith is an objective standard that is satisfied when an attorney knowingly or recklessly pursues a frivolous claim." Essentially, the Court, relying on the use in United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999) of Black’s Law Dictionary definitions of the three key terms in the Amendment – "vexatious, frivolous or in bad faith" – conflated them so that each required that the action be groundless or without reasonable or probable cause. (Compare United States v. Heavrin, 330 F.3d 723 (2003)), which, citing Webster’s Third International, noted that "vexatious" included "the concept of being brought for the purpose of irritating, annoying, or tormenting the opposite party." Id. at 729).

Thus, as long as the prosecution is not objectively baseless or frivolous (or does not violate a constitutional restraint, such as a prosecution because of a defendant’s race), under Shaygan no matter how vindictive or political the prosecutor’s motivation in bringing it or how outrageous his or her conduct in litigating it, the court may not make a discretionary award under the Hyde Amendment to a prevailing defendant. Compare Whren v. United States, 517 U.S. 806 (1996) (subjective intention of officer no basis to invalidate traffic stop which is supported by objective probable cause).

Legal fees for representation in white-collar criminal cases are often astronomical. Sometimes, these fees are reimbursed by an employer or insurance company, but, often, they are borne entirely by the individual defendant. Thus, even defendants whose cases result in dismissal or acquittal are often in a financial sense (among others) punished severely. The Shaygan case reinforces the view that any hope for reimbursement from the government is remote.

(Goldman)