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Dr. Shaygan's Saga: Prosecutorial Misconduct in the War on Pain Docs [FEATURE]

Submitted by David Borden on (Issue #757)
Politics & Advocacy

special to Drug War Chronicle by investigative journalist Clarence Walker, [email protected]

Part 4 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

In what could become an historic case, a Florida doctor acquitted of drug dealing charges over his prescribing practices is asking the US Supreme Court to reinstate a $600,000 award made to him by a lower court after federal prosecutors were found to have engaged in misconduct that was "vexatious, frivolous, or in bad faith." That language comes from the Hyde Amendment, enacted in 1997, which gives federal judges the power to force the government to pay attorney's fees to acquitted defendants if the actions of those prosecutors met that standard of misconduct.

Dr. Ali
The case of Florida physician Dr. Ali Shaygan has been closely watched by pain-management doctors -- an area in which the federal government has waged a fierce "war on prescription doctors" -- a war fueled by a rising death toll in recent years from prescription drug overdoses in America, but also preceding that rise. Since 2003, according to DEA, hundreds of physicians across the nation have been charged in federal or state court for illegally dispensing narcotic pain medicine to patients.

This past August, the 11th US Circuit Court of Appeals overturned the trial court decision awarding the money to Shaygan, who had operated a Miami pain clinic. He was acquitted in March 2009 of 141 counts of illegally distributing narcotics to patients, including one case where a patient died of an overdose.

Shaygan's attorneys charged that two Assistant US Attorneys, Sean Cronin and Andrea Hoffman, as well as a DEA agent, had acted "vexatiously" and withheld materially important evidence after Shaygan was originally charged in a 23-count indictment. US Circuit Court Judge Alan Gold, who presided over the high-profile trial, agreed that prosecutors violated disclosure requirements by withholding information from the defense and the court and ordered the cash award.

Judge Gold also accused the government of launching a separate "tactical" effort to disqualify the doctor's attorney, David Markus, shortly before the trial began. In that effort, which Gold characterized as part of a scheme to undermine the defendant's rights to a fair trial, the prosecutors failed to notify the defense that the DEA had attempted to manipulate two witnesses in the case into trying to entrap Markus into paying off witnesses to give favorable testimony at the trial to help the doctor beat the rap.

Following a sanction hearing after the doctor's acquittal in 2009, Judge Gold issued a scathing ruling against the prosecutors. The government conduct was so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute," Gold concluded.

After Gold requested that the Justice Department investigate the government's misconduct, prosecutor Cronin conceded to the Miami Herald, "We should have done a better job," but insisted that "at no time was I acting in bad faith."

He said he authorized secret recordings of attorney Markus because a witness, Courtney Tucker, had told a DEA agent the defense might be trying to tamper with her testimony. Yet Tucker contradicted Cronin's claim when she testified that a DEA agent had tried to pressure her to tailor her testimony to bolster the prosecution's case against Dr. Shaygan.

When federal prosecutors appealed the cash award to the 11th Circuit, a sharply divided panel overturned it, holding that Gold had overreached and wrongly interpreted the Hyde Amendment by applying the incorrect legal standard for awarding the fees under the statue. The appeals court majority also held that "as long as a prosecutor had an objectively reasonable basis in law (not frivolous and not vexatious), an award of attorney fees under the Hyde Amendment is improper." One judge concluded that the overall prosecution and allegations on the original indictment were "objectively valid."

But in a harsh dissent, Judge Beverly Martin wrote that the majority opinion "will render trial judges mere spectators of extreme government misconduct."

Markus told the Chronicle the appeals court reversal was not what he expected. "The decision was surprising given how the oral argument went and how thorough Judge Gold's order was," Markus said, adding that he was appealing to the Supreme Court.

Now a coalition of former federal judges and prosecutors, organized by the bipartisan group the Constitution Project has signed onto an amicus brief supporting Markus's writ of certiorari asking the Supreme Court to overturn the appeals court decision and reinstate the cash award in US v. Shaygan.

"When a court bends the law to excuse a prosecutor's bad faith, public confidence in the criminal justice system suffers," the Constitution Project brief said.

Just Another Pain Doctor Prosecution

The wheels of justice in Dr. Shaygan's case began turning on June 9, 2007, when one of the long-term patients at his pain clinic, James Brendan Downey, died of a drug overdose from a fatal combination of prescribed methadone and illegal cocaine. Shaygun had prescribed the methadone to Downey two days before he died, and an autopsy found that the levels of methadone in his blood alone were enough to kill him.

In a subsequent undercover sting operation, two Florida police officers posed as potential patients at Shaygan's office to determine how easily they could obtain prescribed narcotics. Federal prosecutors said both officers obtained a prescription for controlled substances on their first visit without presenting medical records, and that Shaygan only administered minimal physical examination.

Judge Gold
On February 8, 2008, the Southern Florida US Attorneys Office filed a 23-count indictment against Shaygan alleging that "the doctor distributed and dispensed controlled substances outside the scope of professional practice unintended for legitimate medical purposes in violation of 21 U.S.C. 841."

Three days later, DEA agents arrested Shaygan at his office. Agents seized Shaygan's active patient files and even confiscated his leather-bound daily planner. Prosecutors said that DEA agents reported that Shaygan allegedly made a statement to the effect, "I want to cooperate." On May 14, Markus filed a motion to suppress his client's statement during his arrest.

At a post-hearing on the suppression motion held on August 2008, Markus clashed with lead prosecutor Cronin over Markus's attempt to keep his client's alleged statement from being heard by the jury. Cronin threatened Markus with an enhanced prosecution of his client if he persisted in that strategy.

"Cronin told me that if we litigated the suppression issues, there would be no more plea discussions, and that if I went after his witnesses (DEA agents), there would be a 'seismic shift' in the way he would prosecute the case against Mr. Shaygan," Markus said.

Markus dismissed Cronin's threat and forged ahead with the suppression hearing, offering up damaging testimony by Shaygan, who testified that DEA agents, while flashing their weapons, continued to interrogate him, despite his request to speak with a lawyer. Agents denied this happened. After hearing from a defense witness that he overheard Shaygan say, "May I please have my lawyer," Judge Gold granted the motion to suppress, which barred prosecutors from using Shaygan's statements during the trial.

Then, playing legal hardball, prosecutor Cronin made good on his threat, filing an additional 108 drug charges against Shaygan totaling hundreds of years in prison and bringing the total number of charges filed against him to 131. Cronin filed the extra charges after DEA agent Chris Wells located and interviewed Shaygan's former patients Carlos Vento, Trinity Clendening, Courtney Tucker and Andrew McQuarrie. These former patients would play a pivotal role in the misconduct allegations against federal prosecutors Cronin and Hoffman.

Before trial, prosecutors Cronin and Hoffman received a tip from DEA agent Wells that Shaygan's defense team might be tampering with the witnesses. Wells said one witness, Courtney Tucker, "was about to go south and not testify." Prosecutors relayed this new information to Karen Gilbert, the Assistant US Attorney in charge of the narcotics unit. Gilbert authorized DEA agent Wells to ask witnesses Tucker and Carlos Vento to record phone calls with the defense team and for the witnesses to ask attorney Markus for funds to testify that Dr. Shaygan had not overprescribed medication that killed James Downey. Vento later signed a confidential informant agreement with the DEA.

Trial Shenanigans

During a three-week trial in beginning in 2009, prosecutors characterized Dr. Shaygan as a drug dealer who recklessly sold prescriptions for dangerous narcotic painkillers, such as oxycodone and methadone, to increase his wealth. Prosecutor Cronin told the jury the government would prove that Shaygan's illegal distribution of methadone contributed to Mr. Downey's death. Jurors viewed evidence showing prescription bottles from Shaygan found in Downey's bedroom, where he died in his sleep. Downey's girlfriend, testifying for the government, said her boyfriend had obtained methadone from Shaygan hours before he died.

But the girlfriend also undercut the prosecution's case by testifying that Shaygan had questioned and cautioned Downey about the large amount of methadone he had requested. Defense attorney Markus further undercut the prosecution case by presenting evidence of additional medicine bottles at the scene prescribed by other doctors.

For the defense, renowned expert forensic pathologist Dr. Michael Baden testified that when Downey used multiple prescribed drugs there was no verifiable way to conclude the drugs given to him by Dr. Shaygan actually caused his death.

Then, in a dramatic twist right out of Perry Mason, former Shaygan patient and government witness Trinity Clendening let slip that he had recorded for the DEA a telephone call he made to to Markus's office to solicit payment for testifying on Shaygan's behalf. A recording later heard in court showed that that Markus had directly refused to offer bribes. "I am not paying money for anything," he said on the tape.

Markus was furious. During a hearing outside the presence of the jury, he hammered the witness. Clendening, now unraveling the government's deceit, revealed the whole scheme to set up Markus for a witness tampering charge. Markus attacked the prosecutors relentlessly over their withholding evidence of the scheme. In closing arguments, Markus rhetorically compared the prosecutorial misconduct in Shaygan's case with the infamous Salem Witch trials, and told the jury it had been misled by the government's flagrant violation of the law through withholding evidence that the defense had asked for under the law and not received.

Judge Gold instructed jurors that they were legally bound to consider the prosecutor's violations of the law during their deliberations over Shaygan's guilt or innocence. After deliberating four hours, the jury acquitted Dr. Shaygan on March 12, 2009.

Shaygan's relatives, friends and colleagues erupted with cheers after hearing the verdict, and jurors hugged Shaygan as he left the courtroom.

"I feel vindicated," Shaygan told the Miami Herald. "I feel that my life can move forward again."

"This verdict sends a message that justice prevails," Markus added.

But justice hasn't prevailed just yet. The federal prosecutors who engaged in the misconduct have not been punished for their actions, either criminally, professionally, or financially. The 11th Circuit Court of Appeals decision reversing the $600,000 award for misconduct that is "vexatious, frivolous, or in bad faith" remains the last word on the affair -- unless the Supreme Court agrees to take the case.

At least, Dr. Ali Shaygan is out from under his legal woes and, having had his license to prescribe medicine reinstated, he is once again helping patients.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Rick (not verified)

Just goes to show who the REAL CRIMINALS ARE. reminds me of the CHICAGO MOB DAYS when Law enforcement officials were All GUILTY.
Thu, 11/01/2012 - 12:43am Permalink
CJ (not verified)



and as for the acquittal...





i'd love to see Shaygan myself. A true hero. Markus as well. I intend to write a letter of congratulations. I hope the prosecutors involved burn in the final circle.... i hope, that just for them atleast, the idea of heaven and hell and God can be real (since it isn't, lol, sorry AA losers with your higher powers lol you idiots - anyway, i digress) and furthermore that the version of heaven hell God, Devil etc can be real in the way that Dante wrote it AND therefore, that Satan would have finally chewed Judas and Brutus to the bone and swallowed the bones therefore, in need of new persons to occupy those two spots, prosecutors Cronin and Hoffman thereby being the new residents of Dante's Satan's mouth to be chewed on for all eternity. I'd like that alot. a real lot. but not as much as i'd like a wopperoo of the diesel nevertheless not as much as I'd like the global end of prohibition. junkies unite, begin the Third Opium War, Junkies, Stoners, Crackheads, Basers, Sniffers, Whippers, Smokers, Tokers, Methheads, Fiends, Sleeping Pill lovers, those attracted to muscle relaxment, steroid heads, juice monkeys, dealer flunkies, dealers, wheelers, herbal healers, and all drug users, suppliers, providers, supporters, intellectuals etc. etc. and all people of that spectrum in between unite together to face prohibition in the Third Opium War aka WW3. Lets do it baby-waby and we wont accept anything less than unconditional surrender at which point we will have Nuremburg Part II whereby all DEA agents, all employees of the DEA, all Drug Czars current and former, all persons involved in propagating Drug Prohibition, all of them, they shall be tried with the same intensity and prejudice of the Nazi's of Nuremberg but given far worse penalties for they propagated a far longer genocide and destroyed far more victims than the Nazis ever did. There is no doubt about it that anybody who likes drugs is the modern day Intellectual to Pol Pot, Jew to Nazi, Black person to the KKK etc. etc. etc. etc. There is always genocide and idealist persecution in every era, our era is the persecution of the drug enthusiast. We will conquer in the Third Opium War and put people like Cronin and Andrea Hoffman to justice. But not after first forcing them to enjoy a toke of the finest bud, or a bang of the best china white. 


right or wrong? and if it's wrong, i dont never wana be right!

Thu, 11/01/2012 - 8:36am Permalink
Louis in Virginia (not verified)

Unfortunately I am one of the thousands and thousands of patients with an intractable chronic pain disorder.  For the last 2 years I have been on high-dose opioid therapy and feel better than I have in 40 years.  It works for me after having tried everything else.  It is obviously not a first try treatment.  I have my life back now and a high quality life at that.  I stay in an anxious state nearly all the time for fear of having this life-saving treatment.  If I had to go back to how I felt from ages 20 - 60 then suicide would be the only other option.

Thu, 11/01/2012 - 2:15pm Permalink
Louis in Virginia (not verified)

In reply to by Louis in Virginia (not verified)

  I stay in an anxious state nearly all the time for fear of having this life-saving treatment.


    I stay in an anxious state nearly all the time for fear of having this life-saving treatment taken from me.

Fri, 11/02/2012 - 2:49pm Permalink

This is one of the ways I don't understand how the world works.  Why would it harm the doctor's case to have entered in evidence a statement by him that he wanted to cooperate?  How could a show of good faith possibly have worked in his disfavor, especially to such a degree that the prosecutor would fabricate it?  Somebody comes in to arrest me, it would hurt if I told them I wanted to cooperate with them?

Fri, 11/02/2012 - 9:51pm Permalink
FL chronic Patient (not verified)

It's time that our federal government puts a STOP to the DEA they have went extremely overboard with harassing good doctors, pharmacists and innocent pain patients are paying the price and are now suffering because of this.
No one ever expected this pill mill crackdown to go as far harming people that are not apart of that problem.

Pharmacies are scared to fill prescriptions, we are losing doctors because they don't want the hassles.
Elderly, as well any age that has found some quality of life using pain medicines to reduce pain are suffering from all this craziness. Who said for the DEA to just go out and do all this? They are evil who ever allowed this and started this war. Now insurance companies are not allowing the filling of these medications with insurance. Some independent pharmacies will only accept CASH at 300% inflation! What the hell is going on? Consumers pay for their insurance. When a doctor prescribes a medicine it's always been accepted and filled. Since when is doctors professional opinions not honored?
Politics has no place in medicine. This between the patients and the doctors only. The HIPPA laws should be in place to stop this.
The government can't allow pain relief for over a decade and a half then just rip it away from all these people that are stable.  This not the American way. Stop cause such suffering is not humane.
I am so glad this doctor got off and made this agency pay for every single dollar they ran up in costs.
This proves that the DEA are most crooked agency in the USA. They should be taken out of the A/C offices and put back out on the streets.
They took away most all prescription pain medicines. Guess what happened? There were more deaths in this state after the removal of oxycodone than when it was around. So what does that tell you?
They have made methadone sound like a horrible medicine but it works great for pain, and yes with pain it sometimes requires higher doses. The idiot that died? Was taking cocaine with it. If this guy was opiate tolerant? The methadone didn't kill him. It may be high enough to kill someone but just because he took to much and added other substances with that his fault.

People are in some cases are killing themselves.. because the economy and quality of life living in this country that last 8 years has been the worst out most middle aged persons lives. If we have to suffer with pain because we can't out of pain? The death rates are going climb. Is this country and this state waiting for this happen before putting things back as were minus the pill mills? We do have the data base, and other things in place. What else is going to take to take for this BS to stop?
When legitimate pain patients can't get their medications, they can't work, feed their families, then foreclosures happen and then our state is in for more trouble, more homeless and more people heading to get on disability. Rick Scott and Pam Bondi did not plan for what was really going to happen. They have created a huge a mess because they went way overboard and they were getting high on the fact they were ruining lives.. while they were thinking they were making Florida look good. Get them out of office before they do more damage!!



Sun, 11/04/2012 - 1:53am Permalink
Nedmorlef (not verified)

To protect you the gov't takes away your pain medicine by arresting you or your doctor, to save you from yourself they pour out your unpastuerised milk. to save you they arrest your kid and destroy all his chances for college. To save you they take your home, shoot you and your dog,arrest your wife and confiscate your children. All of this to help us they kill us,steal and destroy.

 I have read the founding documents and I can't find a thing even remotely similar to the above protections.

Sun, 11/04/2012 - 1:59am Permalink
Louis in Virginia (not verified)

In reply to by Nedmorlef (not verified)

Well said and thanks for your contribution.  One of the biggest problems I have with this whole issue is the fact that the DEA is practicing medicine without a license.  Who do I trust for my well-being - my pain doctor that has been practicing medicine at his pain clinic since 1975 or the DEA?  Let's just call that a rhetorical question.

Mon, 11/05/2012 - 2:18pm Permalink
Joe Calloway (not verified)

The case below is another one from Florida wherein the only good served is for the prosecutor to add another conviction to the resume.

This case had 3 suppressed tapes of visits

Visits by two other agents were not disclosed 


the entire investigation was started without any grounds other than the doctor had had a patient who killed himself with Methamphetamine, Cocaine and other non prescribed substances in his urine and gastric contents.


Tue, 01/29/2013 - 1:26pm Permalink

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