Are Federal Prosecutors Above the Law?

April 20, 2009 - PRLog -- ”Federal Prosecutors are not above the law—even if they think they are!”, says Michael Frantz a leading Federal Prison Consultant for Jail Time Consulting in South Florida. A story is currently unfolding concerning an alleged case of prosecutorial misconduct on the part of federal prosecutors as they secretly taped phone calls between a defendant’s defense team and government witnesses. The defendant, Dr. Ali Shaygun, is charged with writing prescriptions for methadone which allegedly caused the overdose death of a West Palm Beach man. If the 36 year old Dr. Shaygun is convicted, he faces at least twenty years in federal prison.


Michael Frantz contends that it is a fascinating case because the government claims that the taped phone calls were necessary and proper because of alleged witness tampering by Dr. Shaygun’s defense team.  A complaint was filed in late 2008 by a Drug Enforcement Administration agent named Christopher Wells. The defense team, headed by Attorney David O. Markus, claims the government invented the complaint to justify spying on the defense. Apparently, these are not new allegations involving governmental wrongdoings.


This case has been a very hard fought case and relations between the defense team of David O. Markus, Marc Seitles, and Robin Kaplan and the federal prosecutors Sean Cronin and Andrea Hoffman have been strained to say the least. U.S. Attorney Alex Acosta issued a statement which said the recordings showed no evidence of any wrongdoing by the defense team. He also noted that the recordings were made in violation of his office’s policy. The appropriate policy requires that the federal prosecutors first seek permission and authorization from the U.S. Attorney, Mr. Acosta, before undertaking any such targeted measures. Consultant Frantz said that federal prosecutors Hoffman and Cronin apparently sought no such authorization and simply took matters into their own hands. Michael Frantz said, "It seems that they thought they were above the law and could do anything that they wanted to do."  U.S. Attorney Alex Acosta further stated that the matter has been referred to the Justice Department’s Office of Professional Responsibility for investigation. Michael Frantz notes that it will be interesting to see if any further sanctions come from Sean Cronin and Andrea Hoffman’s illegal acts. Some people believe it will be swept under the rug and summarily dismissed. Frantz for one certainly hopes not. Michael Frantz insists that illegal acts by government prosecutors and their agents must stop and should be dealt with sternly. Their purported purpose of upholding the law and furthering of justice can hardly be accomplished if they break the very laws they are directed to uphold. Especially, as in this case, if they use fabricated evidence and a fictitious complaint as an excuse to spy on the defense team.


U.S. District Judge Alan Gold is another person who believes this is a serious matter. In a statement Judge Gold said, “This is an important matter and I’m not going to let this linger.” Judge Gold ordered the government to respond quickly to the defense team’s allegations and turn over all related documents.


Attorney Marcus, in his motion to dismiss, said, ''Dr. Shaygan respectfully submits that the government's conduct in this case is so outrageous and was undertaken with such flagrant disregard for Dr. Shaygan's constitutional rights that dismissal is the appropriate remedy.'' Frantz also agrees. In the dismissal motion, Markus said federal prosecutor Karen Gilbert, supervisor of the Shaygan case, authorized two government witnesses to put recording devices on their phones after a third witness claimed a private investigator for the defense was ''tampering'' with her. Frantz ponders why no recorder was placed on that witness' phone. Michael Frantz states, “If this was a legitimate claim, why wasn’t a recording device put on the third witness’s telephone? After all, she was the individual making the alleged claim.” He also questions why case supervisor Karen Gilbert didn’t follow appropriate government policy and seek authorization from Acosta, his first assistant, and criminal division chief before undertaking her illegal actions? Their approval—which wasn't granted in the Shaygan case — is required before "taking any action against an attorney". At issue is not only an apparent violation of policy in the U.S. attorney's office, but, more significant, possible breaches of attorney-client privilege under the Constitution's Sixth Amendment.


U.S. Attorney Acosta simply said, ''We regret the policy was not followed, we deeply regret it.”  Perhaps in this case, U.S. Attorney Acosta should offer a little more than simply “regret”. In this person’s opinion, this case should be dismissed due to the illegal, unethical, and improper actions of the federal prosecutors. Any other action would send a clear message to government prosecutors that anything goes.

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About Jail Time Consulting: Michael Frantz is a leading national Federal Prison Consultant with Jail Time Consulting. He has authored a book on Federal Prison titled, "Jail Time, What you need to know...Before you go to federal prison!" as well as 35 JT Special Reports© on various prison issues affecting both inmates and their families. He writes a daily blog on the JT Consulting website http://jailtimeconsulting.com.

Jail Time Consulting is a Federal Prison Consulting firm providing consulting services, research, sentence reduction techniques, and client positioning for BOP programs. JT Consulting offers solutions to the problems that men and women facing federal prison are confronted with. We work closely with our clients and their attorneys to provide the lowest possible net sentence. We prepare and position our clients for admission to the 500-Hour Residential Drug Abuse Program which offers the inmate a 12 month sentence reduction and a 6 month halfway house designation.