Defendant’s Attorneys Seeking Certiorari Grant by U.S. Supreme Court, With Several Amici Curiae Briefs Having Been Filed in Support of Defendant’s Position.
In 1997, the Hyde Amendment was enacted, giving federal district judges the authority to award fees and other expenses to criminal defendants proving gross misconduct on the part of federal prosecutors (who undertook actions in a vexatious, frivolous, or bad faith manner). Many practitioners had believed that the scope of the Amendment also extended to unethical conduct.
The Eleventh Circuit, in a 2-1 opinion, in United States v. Shaygan, 652 F.3d 1297 (11th Cir. 2011) disagreed, finding that the Hyde Amendment only applies to prosecution conduct that was clearly unfounded. Among other things, the prosecutors threatened the defense with a “seismic shift” if a motion to suppress was brought and then increased criminal charges from 23 to 141 for apparent retaliation when the suppression motion was brought. Circuit Judge Edmonson dissented, finding that the prosecutor’s behavior qualified for fee recovery, given that defendant had won a $602,000 fee/costs recovery in the trial court level under the Hyde Amendment which was reversed by the majority’s opinion.
Judge Pryor introduced the majority’s opinion as follows: “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.” 652 F.3d at 1301.
Defendant has filed a petition for writ of certiorari with the United State Supreme Court, and has garnered quite a few amici curiae briefs in support. We will let you know what happens.