Shaygan Order Out

Looks like it is coming back to Judge Gold for round 2:

Quite an interesting way to start for Judge Pryor:

"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."

I guess in your run-of-the-mill appeal where a defendant is sentenced to Life, the stakes aren't so high.

What is intersting/troubling about Pryor's opinion (as it relates to the Hyde Amendment Fees), is that he goes through this lengthy recitation of the facts, as though it is a Rule 29 appeal from a conviction (crediting everything in favor of the government), with zero discussion concerning the cross-examination and argument that had to have been made, that the government's witnesses were full of it.  There is not even a discussion, such as you might expect to see in a civil case, laying out both sides cases/version of events.  A magistrate judge found that law enforcement witnesses were lying and ordered evidence suppressed; the jury rejected the government's evidence; Judge Gold found that at least one of the prosecutors was not straight with the court, and yet, no credit to those findings from Pryor.

"We express no view about whether the district court should conduct further proceedings, but if the district court decides again to consider sanctions against Cronin or Hoffman, it must, of course, afford them due process. An attorney charged with misconduct is entitled to notice of the charge: that is, the attorney is
entitled to know the precise rule, standard, or law that he or she is alleged to have violated and how he or she allegedly violated it. Each of these attorneys also cannot be held responsible for the acts or omissions of others: Cronin, for example, cannot be held responsible for the acts or omissions of his superiors, such as
Gilbert, and Hoffman cannot be held responsible for Cronin’s acts or omissions.

Another reprimand also would be subject to another appeal to this Court. We do not mean to suggest or even hint that the district court should consider sanctions against either Cronin or Hoffman. It is not apparent to us that either attorney necessarily violated any ethical rule or any constitutional or statutory standard. The record before us is unreliable because it was developed, after all, without affording either of them due process.

The award of attorney’s fees and costs against the United States is VACATED. The public reprimands of Cronin and Hoffman are VACATED, and this matter is REMANDED."

Edmondson wrote an interesting dissent in which he essentially argued that the Court should rely on its prior precedent in reviewing bad faith issue:

"I conclude that the evidentiary record is sufficient as a whole to support the Hyde Amendment fact-findings of the District Judge, but I make two specific observations. First, the District Judge heard the testimony of the lead prosecutor and rejected the prosecutor’s explanation. I am aware that we uphold criminal convictions regularly based upon the sufficiency of evidence that proceeds from a criminal defendant’s testifying to his innocence. We say -- I believe entirely correctly -- that a fact-finder is entitled to believe the exact opposite of what a witness testifies to and, then, to treat this disbelieved testimony as substantive evidence of guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). I think the same thought process applies here: the prosecutor and the criminal investigator offered explanations for their questionable conduct; the District Judge rejected their explanations and determined that the opposite -- a prosecution hammered into shape “in bad faith” -- was the truth.8

8 This determination was not simply a matter of disbelief. The record reflects many irregularities in the Government’s handling of this case. For example: the magistrate judge, in recommending that the District Court grant Defendant’s motion to suppress, found the testifying DEA agents -- including the principal criminal investigator -- to lack credibility (and the District Court accepted that magistrate judge’s recommendation); the Government has admitted to multiple discovery violations; and the Government not only conducted an improper investigation of defense counsel, but kept this investigation from the District Court until the Government’s hand was forced by the revealing testimony of one Government witness. Plenty of evidence in the record corroborates the District Court’s finding of a prosecutorial position of bad faith and its finding that the prosecutor and criminal investigator lacked credibility.

...

By the way, no party to this case contends that the first Indictment in this case was filed in bad faith. I understand the Government not to dispute that, as a matter of law, the manner of advancing a prosecution can make the Government’s position in that prosecution a position “in bad faith,” even when the initial Indictment was not “in bad faith.” But whether the Government does or does not accept this legal proposition, I do. Moreover, the Government, by its very nature, can act only through agents who represent it, such as its Assistant United States Attorneys prosecuting criminal cases. The word “position,” as used in the Hyde Amendment, can easily apply to the way in which the Government conducts the prosecution, including the illwill state of mind that a prosecutor’s acts evidence; this definition is not a strained use of the word “position.” The Oxford English Dictionary defines “position” as “[m]ental attitude; the way in which one looks upon or views a subject or question.” XII OXFORD ENGLISH DICTIONARY 165 (2d ed. 1989). To me, in this sense the word “position” echoes Congress’s use of the phrase “in bad faith” in the statute."

...

"Pursuant to Rule 404(b), we routinely allow evidence of other crimes and wrongs to show the bad motive and bad intent that accompanied a criminal defendant’s conduct as he did something else. FED. R. EVID. 404(b). Especially applying the rationale of 404(b), it seems to me that the District Court had ample support to think that the filing of the Superseding Indictment was motivated by the same bad faith as the later acts of
discovery violations and improper investigation of the defense team."

...

"I also think the facts of prosecutorial misconduct in this case -- as found by the District Judge -- are exceptionally troubling: I do not believe we will often see cases involving fact-findings for this sort of extensively manifested prosecutorial ill will toward the defendant and defense lawyers."