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Parker Argues in U.S. v. Capener in 9th Circuit Court of Appeals

On November 17, Professor Jeffrey Parker argued before the 9th Circuit Court of Appeals for physician Mark L. Capener in U.S. v. Capener. The case involves an appeal by the government and a cross-appeal by the defendant from the district court's decision partially granting Dr. Capener's application for fees and expenses under the Hyde Amendment, a 1997 law that grants federal criminal defendants the opportunity to recover attorneys' fees when the government's prosecution was "vexatious, frivolous, or in bad faith."

Capener, an otolaryngologist then practicing in Elko, Nevada, was indicted in 2005 by a federal grand jury on 52 criminal counts of health care fraud, mail fraud, and giving false statements after an investigation initiated by an insurance company and joined by the FBI at the request of the Nevada attorney general's office.

At trial in the Fall of 2006, the U.S. District Court for the District of Nevada threw out half of the counts as unfounded, and the jury acquitted Dr. Capener on all remaining counts. Following the acquittals, in mid-2007 the district awarded partial fees to Dr. Capener, on the ground that the Justice Department's case was "frivolous" in part, because its primary expert witness' testimony was both false and inadequately investigated by the prosecutors. That order was subject of the appeals argued on November 17, 2008.

Capener's defense costs had amounted to $1.4 million, of which the district court awarded $280,000, or 20%, in compensation. Parker argued that the actions of the prosecution produced an unacceptable risk of unjust conviction on faulty evidence and asked the court for fully compensable fees and expenses under the Hyde Amendment, as well as for recovery of fees and expenses of the appeal. The Justice Department's appeal sought to overturn the lower court's partial fee award.

Listen to an audio file of oral arguments in the case

Read the briefs: Brief for the United States, Opening Brief-CapenerReply Brief-United States, Reply Brief-Capener