United States v. Hills

• Decision Date: 17 August 2018
• Docket Number: CASE NO. 1:16CR329
• Parties: UNITED STATES OF AMERICA, PLAINTIFF, v. EDWARD R. HILLS, et al., DEFENDANTS.
• Court: U.S. District Court — Northern District of Ohio

UNITED STATES OF AMERICA, PLAINTIFF, v. EDWARD R. HILLS, et al., DEFENDANTS.

CASE NO. 1:16CR329

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

August 17, 2018

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court are the motions of defendants, Edward R. Hills ("Hills"), Yazan B. Al-Madani ("Al-Madani"), and Sari Alqsous ("Alqsous"), to reconsider the Court's order of remand and for release from detention pending sentencing. (Doc. No. 343 ["Hills Mot."]; Doc. No. 344 ["Al-Madani Mot."]; and Doc. No. 346 ["Alqsous Am. Mot."].) The government opposes the motions. (Doc. No. 348 ["Opp'n"].)

I. BACKGROUND

On July 27, 2018, after a five week trial, the jury returned 16 or more guilty verdicts against each of the moving defendants. The jury also returned 5 guilty verdicts against a fourth defendant, Tariq Sayegh ("Sayegh"). The charges related to defendants' employment as dentists at MetroHealth Hospital, a public hospital receiving federal and state funding. The crimes of which defendants were found guilty included: RICO conspiracy, conspiracy to commit mail and wire fraud and honest services mail fraud, Hobbs Act conspiracy, bribery concerning programs receiving federal funds, solicitation or receipt of healthcare kickbacks, and obstruction of justice. Hills was also convicted of multiple counts of filing false tax returns, and Al-Madani was separately convicted of making false statements to a federal officer. (Doc. No. 337 (Hills Verdicts); Doc. No. 338 (Alqsous Verdicts); Doc. No. 339 (Al-Madani Verdicts).) Sentencing for the moving defendants and Sayegh is currently set for November 27, 2018.

Immediately following the verdict, the government moved to revoke the bond of each defendant, and the Court conducted a bond revocation hearing, at which time the Court entertained oral argument from counsel. At the conclusion of the hearing, the Court granted the government's motion, and remanded the defendants into the custody of the U.S. Marshals. In revoking bond, the Court determined that it could not make the requisite finding by clear and convincing evidence that the defendants would not pose a flight risk. In reaching this conclusion, the Court emphasized the fraudulent and obstructive nature of the crimes for which the defendants had been convicted, as well as the deceptive behavior underlying these convictions. The Court also noted the substantial financing resources of each defendant, and, with respect to Al-Madani and Alqsous, the Court observed that both men were of foreign citizenship and had ties abroad.

Through the present motions, Hills, Al-Madani, and Alqsous move for release from detention. They seek to be free on bond through sentencing. In support of release, each defendant reiterates his compliance with pre-trial bond conditions, his timely appearance in court, and his strong network of family and friends. The moving defendants do not, however, identify any new circumstances that have developed since the Court revoked bond on July 27, 2018.

II. GOVERNING LAW AND DISCUSSION

The pending motions are governed by 18 U.S.C. § 3143(a)(1), which provides:

(a)(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence . . . be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c).

The statute creates a presumption in favor of detention, United States v. Poulsen, No. CR2-06-129, 2008 WL 928566, at *1 (S.D. Ohio April 7, 2008) (citing 27 Moore's Federal Practice § 646.13 (Matthew Bender 3d ed.) ("[T]he Bail Reform Act creates a presumption in favor of detaining a convicted defendant pending sentence or appeal.")). The burden rests with a defendant to prove by clear and convincing evidence that he does not pose a danger to the community and that he is not likely to flee. See United States v. Vance, 851 F.2d 166, 169 (6th Cir. 1988) (quotation marks and citation omitted).

In support of continued detention, the government offers several reasons why it believes that each moving defendant is likely to flee. It notes that all three defendants share the following risk factors: (1) the fraudulent and deceptive nature of their crimes, (2) access to substantial resources, and (3) the fact that they are each facing a lengthy prison sentence. With respect to the last reason, the government represents that a conservative estimate of any sentence the defendants may receive falls within either the 235-292 or the 292-365 month range. (Opp'n at 5986.) Such substantial ranges provide "powerful incentive to flee that did not exist pre-trial[.]" United States v. Londono-Villa, 898 F.2d 328, 329 (2d Cir. 1990) (denying pre-sentence bond, in part, because defendant's conviction and accompanying guidelines range was 292-364 months imprisonment); see, e.g., United States v. Castiello, 878 F.2d 554, 556 (1st Cir. 1989) (per curiam) (summarily dismissing defendant's appeal of detention order "in view of the potential sentence [he faced] and "strong inducement" to flee). The potential lengthy sentence awaitingHills is especially troubling. At age 58, Hills is facing the possibility of a lengthy prison term that may result in him spending much of the remainder of his life in custody, and giving him every incentive to flee the jurisdiction. See United States v. Madoff, 316 F. App'x 58, 59 (2d Cir. 2009) (affirming district court's denial of Madoff's motion for pre-sentencing release, noting that the "incentive to flee (based on his age and exposure to a lengthy imprisonment) . . . naturally bears upon and increases the risk of flight"); United States v. Dimora, No. 1:10CR387, 2012 WL 1409396, at *4 (N.D. Ohio Apr. 23, 2013) (56 year old defendant was denied pre-sentencing release because he posed a risk of flight given that he was "facing considerable time in prison" and "a drastic change in lifestyle in the form of incarceration").

As to the second cited factor, the record shows that each of the moving defendants has access to considerable resources that could facilitate any flight from this district. According to the pre-trial services report, Hills has approximately $900,000 in his pension funds, $100,000 in a Raymond James retirement account, separate $600,000 and $350,000 residences, businesses valued in excess of $2,000,000 and a monthly net cash flow in excess of $21,000 (though this amount may have diminished recently). Alqsous has $430,587.78 in various retirement assets, not including the equity in his residences, and by his own admissions and evidence at trial, he earns over $2,000/month in rental income from one of his properties, and averages monthly net income in excess of $20,000 from his dental practices. Finally, Al-Madani has more than $500,000 in liquid assets from five different accounts, a residence worth in excess of $640,000, a separate parcel of land worth more than $150,000, and he enjoys a monthly net cash flow of approximately $38,200 from his dental practices. Additionally, Alqsous and Al-Madani appear tohave resolved and satisfied any debts associated with their businesses. (See Doc. No. 225-2 (Satisfaction of Judgment).)

It is not surprising that courts have recognized that defendants who have significant financial means simultaneously have the ability to flee and thereby pose an increased risk of flight. Madoff, 316 F. App'x at 59 ("[T]he district court's finding that [Madoff] has the means—and therefore the ability—to flee was not clear error."); United States v. Khanu, 370 F. App'x 121, 121-22 (D.D.C. 2010) (affirming post-conviction detention order due, in part, to defendant's "extensive financial resources" and concurrent flight risk); see, e.g., United States v. Poulsen, 521 F. Supp. 2d 699, 704 (S.D. Ohio 2007) ("When one considers further the apparently substantial resources that [Lance] Poulsen has available, which could be used to finance his flight, the conclusion that he poses at least some risk of absconding becomes—no pun intended—inescapable.")

The fact that defendants have involuntarily forfeited their passports does not serve to eviscerate the risk of flight. See, e.g., United States v. Bonilla, 388 F. App'x 78, 80 (2d Cir. 2010) (affirming district court's detention order "even though [defendant] offered some evidence to challenge the statutory presumption of flight" based on surrender of his passport); United States v. Jinwright, No. 3:09-cr-67, 2010 WL 2926084, at *5 (W.D.N.C. July 23, 2010) (voluntary surrender of passport did not overcome presumption that convicted defendant posed a flight risk). Given their substantial resources and the universal nature of their skills as dentists, it is not fanciful to suggest that defendants could find gainful employment in any of the number of countries around the world that do not have an extradition treaty with the United States. SeeUnited States v. MacDonald, 485 F. Supp. 1087, 1088 (E.D.N.C. 1979) (denying bail pending appeal for physician who could practice anywhere in the world).

When the first factor cited by the government—the nature of the crimes—is factored into the equation, the possibility of flight becomes even more likely. While all three defendants point to their limited or non-existent criminal records, the evidence at trial demonstrated that defendants' conduct was no momentary aberration. Rather, it was the result of an on-going eight-year long racketeering conspiracy in which defendants undertook multiple opportunities to engage in unlawful conduct for their own benefit. See Dimora, 2012 WL 1409396, at *3 (noting that defendant's conduct "did not involve a momentary lapse in judgment, but represented repeated, concerted acts over a number of years"). That these same crimes involved fraudulent, dishonest, and obstructive...