United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
indictment, returned October 19, 2016, charges defendants
with a variety of federal crimes involving federal fraud,
bribery, and conspiracy relating to their dental practices.
(Doc. No. 1 [“Ind.”].) Defendants have filed a
series of pre-trial motions. The Court conducted a hearing on
these motions on December 14, 2017, at the conclusion of
which it took the motions under advisement. The Court is now
prepared to issue its rulings.
Defendants' Discovery Motions
defendants have sought early disclosure of Brady,
Giglio, and/or Jencks Act material. (Doc. Nos. 130,
131, 132, 137, 138, 165, 205, 208 [“Disc.
Mot.”].) The motions cite the complexity of the case,
the importance of testing/impeaching government witnesses
(especially those who have received promises in exchange for
their testimony), and the potential for delays if such
material is not produced in advance of trial. The government
filed a consolidated response to these discovery motions.
(Doc. No. 215 [“Disc. Mot. Opp'n”].)
opposition to these motions, the government represents that
it has and will continue to honor its affirmative obligation
to provide discovery. It notes that it produced the bulk of
discovery in December 2016 and January 2017. Each defendant
was provided with a four-terabyte hard drive that included
“a sub-set of documents identified by the government as
most relevant within the realm of discoverable
materials.” (Disc. Mot. Opp'n at 1636.) It also
provided copies of defendants' statements, grand jury
subpoenas, and executed search warrants and affidavits. Also
included was an index of other documents available for
inspection and copying by defense counsel upon request. The
government further discloses that it has no knowledge of
exculpatory evidence material, and that its efforts to
supplement discovery are ongoing. It also notes that it
intends to comply with the Court's trial court order that
provides that, “[u]nless there is a well-founded
concern for the safety of the witness, the parties are
strongly encouraged to provide Jencks and reciprocal Jencks
material no later than the close of proceedings the day
before the witness is expected to testify.” (Doc. No.
17 [“Tr. Order”] at 145.) In some cases, the
government plans to produce Jencks Act material weeks before
a witness testifies. (Disc. Mot. Opp'n at 1641.) At the
hearing, the government also confirmed that it has made no
promises, nor offered any deals, to any anticipated witnesses
in exchange for their testimony.
Rule 26.2, which incorporates the Jencks Act in the Federal
Rules of Criminal Procedure, after a witness has testified on
direct examination, the government or the defendant may
discover the witness' pretrial statements if the
statements are in the possession of the party calling the
witness and relate to the subject matter of the witness'
testimony. See also 18 U.S.C. § 3500. While it
is true that early disclosure of Jencks material
“avoids the inevitable delay of the trial when the
material is withheld until the witness concludes his direct
examination[, ]” United States v. Minksy, 963
F.2d 870, 876 (6th Cir. 1992), the government has the right
under the Jencks Act to withhold such material until the
witness has testified on direct. See id.; United States
v. Brazil, 395 F. App'x 205, 215 (6th Cir. 2010); 18
U.S.C. § 3500(b); see also United States v.
Presser, 844 F.2d 1275, 1283 (6th Cir. 1988) (“The
clear and consistent rule of this circuit is that the intent
of Congress expressed in the Act must be adhered to and,
thus, the government may not be compelled to disclose Jencks
Act material before trial.”) (citations omitted). As
for Brady, the government is only required to
provide exculpatory and impeachment evidence in time for
effective use at trial. See United States v.
Crayton, 357 F.3d 560, 569 (6th Cir. 2004) (citation
omitted). Further, “[w]hen Brady material
sought by a defendant is covered by the Jencks Act . . . the
terms of that Act govern the timing of the government's
disclosure.” United States v. Davis, 306 F.3d
398, 421 (6th Cir. 2002) (quotation marks and citation
hearing, counsel for the moving defendants conceded that they
had no evidence that the government has failed to meet its
discovery obligations to date. Instead, they merely
underscored the importance of receiving potential witness
statements as early as possible as they may be useful at
trial. The government has assured the Court and
defense counsel that it intends to provide all Jencks Act
material well in advance of trial. Therefore, defendants'
discovery motions are DENIED. The government
is encouraged to provide all required discovery materials as
early as possible so as to avoid any unnecessary delays at
Defendant Hills' Motion to Sever
Edward Hills (“Hills”) has filed a motion for an
order severing the proceedings against him from the trial of
his co-defendants. (Doc. No. 206 [“Mot. Sever”].)
The government opposes the motion. (Doc. No. 214 [“Mot.
Sever Opp'n”].) Hills does not suggest that he has
been misjoined with his co-defendants in violation of Fed. R.
Crim. P. 8. Instead, he claims that discretionary severance
is warranted under Rule 14 because one of his co-defendants,
Sari Alqsous (“Alqsous”), made incriminating
statements about Hills to the FBI in an interview on
September 8, 2016.
motion, Hills maintains that he may suffer substantial
prejudice if he is not severed from Alqsous because the
introduction of his co-defendant's statement, without the
benefit of cross-examination, would violate the Sixth
Amendment as set forth in Bruton v. United States,
391 U.S. 123, 132, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The
government concedes that the “use at a joint trial of a
confession made by a defendant which also implicates a
co-defendant violates due process.” (Mot. Sever
Opp'n at 1627, citing Bruton, supra). Still, the
government insists that severance is not necessary because it
does not intend to, and cannot by the terms of the proffer
agreement entered into with Alqsous, use this evidence in its
case-in-chief. (Id.) While it envisions that it
could use the statement if Alqsous elects to testify and
testifies in manner that contradicts his proffer, the
government notes that Hills would have the right to
cross-examine, rendering the argument under Bruton
moot. (Id. at 1628.) Further, the government posits
that potential Bruton violations can be avoided
through redaction “by replacing the co-defendant's
name with a neutral pronoun or other generalized
phrase.” United States v. Winston, 55 F.
App'x 289, 294 (6th Cir. 2003) (citing, among authority,
Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140
L.Ed.2d 294 (1998)).
hearing, counsel for Hills agreed that, based upon the
government's representations, any possible prejudice to
her client from the unlikely introduction of Alqsous'
proffer statement can be ameliorated through proper redaction
Accordingly, the Court shall DENY WITHOUT
PREJUDICE Hills' motion and shall revisit the
issue if, and when, the government introduces Alqsous'
statement at trial. Prior to such introduction, the
government shall advise the Court and opposing counsel so
that the Court may make the appropriate ruling at that time.
Defendant Alqsous' Motion to Suppress Evidence from
seeks to suppress all evidence seized during a search of his
home and cellular phone, owing to what he perceives as
insufficiencies in the warrant and Master Affidavit offered
in support of the warrant. (Doc. No. 207 [“Mot.
Supp.”].) Specifically, Alqsous argues that: (1) the
Master Affidavit lacked the requisite nexus between the
places to be searched and the evidence to be seized, and (2)
the warrant was based on stale evidence. The government
rejects each attack upon the warrant and supporting
affidavit. (Doc. No. 213 [“Mot. Supp.
Opp'n”].) In the event that the Court finds
probable cause lacking, the government also argues that the
searches should be upheld under the good faith exception to
the exclusionary rule.
September 16, 2015, a warrant application was submitted for
the search of several businesses and private residences, in
connection with an ongoing investigation into healthcare
fraud. Among the locations to be searched were Alqsous'
residence at 1422 E. 15th Street, Cleveland, Ohio, and the
business address for his clinic, Nobel Dental Clinic, at 2140
Noble Road, East Cleveland, Ohio. The application was
supported by a Master Affidavit prepared by FBI Special Agent
(SA) Kirk Spielmaker and totaling 70 pages. (Doc. No. 207-2
(Master Affidavit [“Master Aff.”]).) The Master
Affidavit provided that it sought to search and seize records
in both hard copy and digital formats, including any found in
a computer or smartphone. The Master Affidavit contained
information derived from the special agent's
investigation, including information from individuals with
first-hand information, confidential informants, and
contributions from various federal and state law enforcement
agencies. In swearing out the affidavit, SA Spielmaker also
drew from his years of experience investigating “public
corruption and government fraud matters” in presenting
the information to the neutral magistrate. (Master Aff. at
1351-52.) The warrant signed by the magistrate judge
authorized federal agents to recover from Alqsous'
residence various documents and records, including:
accounting, tax, and financial records; government contracts
involving MetroHealth and others healthcare providers;
documentation of things of value given or received; and
communications, written and electronic, with co-conspirators.
(Id., Attach. B3; Doc. No. 207-2 (Warrant),
beginning at 1471, Attach. B3.)
Fourth Amendment mandates that there must be probable cause
for any search and seizure. U.S. Const. amend. IV.
“Probable cause has been defined as ‘reasonable
grounds for belief, supported by less than prima facie proof
but more than mere suspicion.'” United States
v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995) (quoting
United States v. Bennett, 905 F.2d 931, 934 (6th
Cir. 1990)). “To demonstrate probable cause to justify
the issuance of a search warrant, an affidavit must contain
facts that indicate a fair probability that evidence of a
crime will be located on the premises of the proposed
search.” United States v. Frazier, 423 F.3d
526, 531 (6th Cir. 2005) (quotation marks and citation
omitted). “Probable cause is based on the totality of
the circumstances; it is a ‘practical, non-technical
conception that deals with the factual and practical
considerations of everyday life.'” United
States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006)
(quoting Frazier, 423 F.3d at 531); see United
States v. Lazar, 604 F.3d 230, 241-42 (6th Cir. 2010)
(trial judge properly found probable cause in common-sense
manner where affidavit was based on two-year involvement in
the case, personal visits to locations, review of bills, and
first challenges the warrant on the ground that it was based
on stale evidence. The probable cause requirement for a
search warrant “is concerned with facts relating to a
presently existing condition.” Abboud, 438
F.3d at 572 (quotation marks and citations omitted).
“Thus the critical question is whether the information
contained in the affidavit, when presented to the . . .
judge, established that there was a fair probability ...