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United States v. Hills

United States District Court, N.D. Ohio, Eastern Division

April 4, 2018




         The 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.

         I. Defendants' Discovery Motions

         Various 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”].)

         In 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[1].) 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.

         Under 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 omitted).

         At the 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.[2] 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 trial.

         II. Defendant Hills' Motion to Sever

         Defendant 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.

         In his 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)).

         At the 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.

         III. Defendant Alqsous' Motion to Suppress Evidence from Residential Search

         Alqsous 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.[3]

         On 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.)

         The 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 extensive interviews).

         Stale Evidence

         Alqsous 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). ‚ÄúThus the critical question is whether the information contained in the affidavit, when presented to the . . . judge, established that there was a fair probability ...

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