United States v. Hills

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: RALPH B. GUY, JR., Circuit Judge.
• Citation: United States v. Hills, 27 F.4th 1155 (6th Cir. 2022)
• Decision Date: 03 March 2022
• Docket Number: Nos. 19-3372/3549/3573/20-3160,s. 19-3372/3549/3573/20-3160
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward R. HILLS (19-3372); Yazan B. Al-Madani (19-3549); Sari Alqsous (19-3573 & 20-3160), Defendants-Appellants.

27 F.4th 1155

UNITED STATES of America, Plaintiff-Appellee,

v.Edward R. HILLS (19-3372); Yazan B. Al-Madani (19-3549); Sari Alqsous (19-3573 & 20-3160), Defendants-Appellants.

Nos. 19-3372/3549/3573/20-3160

United States Court of Appeals, Sixth Circuit.

Argued: October 26, 2021

Decided and Filed: March 3, 2022

ARGUED: Russell S. Bensing, Cleveland, Ohio, for Appellant Hills. Jonathan A. Bartel, BARTELL, GEORGALAS & JUAREZ, Independence, Ohio, for Appellant Al-Madani. Robert L. Sirianni, Jr., BROWNSTONE, P.A., Winter Park, Florida, Alan M. Dershowitz, HARVARD LAW SCHOOL, Cambridge, Massachusetts, for Appellant Alqsous in 19-3573. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Russell S. Bensing, Cleveland, Ohio, for Appellant Hills. Jonathan A. Bartel, BARTELL, GEORGALAS & JUAREZ, Independence, Ohio, Richard H. Drucker, MARGARET WONG & ASSOCIATES, Cleveland, Ohio, for Appellant Al-Madani. Robert L. Sirianni, Jr., BROWNSTONE, P.A., Winter Park, Florida, for Appellant Alqsous in 19-3573 and 20-3160. Alan M. Dershowitz, HARVARD LAW SCHOOL, Cambridge, Massachusetts, for Appellant Alqsous in 19-3573. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: GUY, MOORE, and GIBBONS, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge.

Dr. Edward Hills, Dr. Sari Alqsous, and Dr. Yazan Al-Madani were convicted by a jury of various fraud and related offenses connected to their employment in the Dental Department of a publicly owned hospital located in Cuyahoga County, Ohio. Dr. Tariq Sayegh—who also was convicted of several bribery-related counts—has voluntarily dismissed his appeal. The three defendants before us challenge their convictions and sentences on various and, at times, overlapping grounds. For the reasons that follow, we affirm.

OVERVIEW

Dr. Hills started at MetroHealth as a dental resident in 1993, and rose quickly to serve as Chair of the Dental Department from 1997 until his discharge at the end of December 2014. Hills was called upon to address the hospital's financial losses in 2007, and was credited with a turn around that resulted in net gains of $89 million over the next eighteen months. Hills also served as MetroHealth's COO from 2010 until his departure and as interim CEO during his last year with MetroHealth. Drs. Al-Madani, Alqsous, and Sayegh—as well as unindicted coconspirator Dr. Hussein Elrawy—were first dental residents and then attending dentists under the direct supervision of Dr. Hills.¹ Most of the charges in the 33-count indictment related to seven fraudulent schemes, which also served as predicate offenses for the RICO conspiracy charge (Count 1). A brief roadmap of the schemes and their related counts of conviction follows:

• Stream of Benefits Bribery Scheme. From 2009 through 2014, Hills solicited and received bribes (in cash and other things of value) from Alqsous, Al-Madani, and Elrawy in exchange for favorable treatment with respect to their employment at MetroHealth (i.e. , bonuses, schedules, and an accommodation for a preferred candidate for residency). The jury found Hills, Alqsous, and Al-Madani each guilty of Conspiracy to Commit Hobbs Act bribery (Count 2).

• Dental Resident Bribery Scheme. From 2008 until 2014, Alqsous, Al-Madani, and Sayegh solicited and/or accepted bribes from dentists applying to the dental residency program at MetroHealth. Hills, however, was not charged in any counts related to this scheme. Alqsous, Al-Madani, and Sayegh were each convicted of Conspiring to Commit Bribery Concerning a Program Receiving Federal Funds (Count 3) and Conspiring to Commit Honest Services Mail and Wire Fraud (Count 4). This scheme also resulted in substantive convictions for federal-program bribery: one count against Alqsous and Sayegh (Count 5) and two counts against Al-Madani and Sayegh (Counts 6 and 7).²

• Oral Health Enrichment (OHE) Scheme. From 2009 through 2013, Hills and unindicted business partner Julie Solooki operated Oral Health Enrichment (OHE) to provide training for dentists with discipline or performance issues. Some of OHE's business was accomplished using MetroHealth personnel, equipment, or facilities without permission or compensation. Hills, Alqsous, and Al-Madani were convicted of Conspiracy to Commit Money or Property Mail and Wire Fraud (Count 8). Hills was also convicted of four related substantive counts of Money and Property Mail Fraud (Counts 9-12). Alqsous and Al-Madani were acquitted of those same substantive charges.³

• Patient Referral Kickback Scheme. In March 2014, Hills announced that MetroHealth's dental patients could be referred to Buckeye Dental Clinic—a private clinic owned by Alqsous and Al-Madani—for which Hills received payments that included seven checks notated "consulting fees." This resulted in the convictions of Hills, Alqsous, and Al-Madani for Conspiracy to Solicit, Receive, Offer and Pay Health Care Kickbacks (Count 13) and Conspiracy to Commit Honest Services and/or Money and Property Mail Fraud (Count 28). The seven checks from Noble Dental—another private clinic owned by Alqsous and Al-Madani—were the basis of the substantive convictions (1) of Hills for receipt of the kickbacks (Counts 14-20) and (2) of Alqsous and Al-Madani for offering or paying such kickbacks (Counts 21-27).

• Obstruction of Justice Scheme. Hills, Alqsous, and Al-Madani were each convicted of Conspiracy to Obstruct Justice after the FBI investigation commenced in May 2014 (Count 29). Evidence of that conspiracy included recorded discussions during a dinner meeting, a warning to one of the bribing residents to stay quiet, preparing a 1099 to hide the "kickback" payments to Hills, and telling a grand jury witness to "forget about" seeing envelopes of cash. Al-Madani also was convicted of making false statements to the FBI in connection with the investigation (Count 30).

The RICO Conspiracy count alleged two additional schemes that were not the subject of any separate charges:

• Jordan Dental Work Scheme . Between 2008 and 2011, Hills arranged for his attorney Anthony Jordan to receive extensive dental work at MetroHealth without charge for which Jordan paid Hills personally instead (Count 1).

• Free Labor Scheme. For the period from 2008 through 2010, Hills assigned MetroHealth residents, including Alqsous and Al-Madani, to work at Noble Dental for which they were compensated personally (Count 1).⁴

Finally, Hills also was convicted of filing false tax returns for 2011-2013, but he does not challenge those convictions or the portion of the restitution he was ordered to pay that represented $80,426 in unpaid taxes. (Counts 31-33).

After trial, the district court denied defendants’ renewed Rule 29 motions for judgment of acquittal, as well as Alqsous's Rule 33 motion for new trial. A two-day hearing was conducted regarding the common sentencing issues before any of the defendants’ individual sentencing hearings. The district court imposed aggregate terms of imprisonment of: 188 months for Hills, 151 months for Alqsous, and 121 months for Al-Madani. They were also ordered to pay restitution, some jointly and severally, in amounts approaching $1 million. These appeals followed.⁵

I. UNTIMELY APPEAL

A procedural wrinkle forms the basis of Alqsous's separate untimely appeal. Alqsous had filed a notice of appeal prior to the judgment, a separate notice of appeal from the restitution order, and a third notice of appeal once judgment was entered. When Alqsous filed a motion to amend his previous motion for judgment of acquittal or new trial, this court held his appeal in abeyance. (No. 19-3573, Doc. 3.) But when the district court denied that motion on the merits, Alqsous did not file a new (or amended) notice of appeal from that order. Alqsous moved for an extension of time to appeal, which the district court denied. We review the denial of such a motion for abuse of discretion. See Nicholson v. City of Warren , 467 F.3d 525, 526 (6th Cir. 2006).

Rule 4(b)(4) allows an extension of time upon a finding of "excusable neglect or good cause" "not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)." FED. R. APP. P. 4(b)(4). "Good cause will be found where forces beyond the control of the appellant prevented [him or] her from filing a timely notice of appeal." Nicholson , 467 F.3d at 526 (citation omitted). Here, counsel says he misunderstood the abeyance of the appeal to mean that this court "would issue an order expanding the record to include the trial court's disposition" of the pending motion. (Alqsous's Br., p. 12.) The notice did not suggest that; nor could it. See Manrique v. United States , ––– U.S. ––––, 137 S. Ct. 1266, 1271, 197 L.Ed.2d 599 (2017) ; see United States v. Shehadeh , 962 F.3d 1096, 1099 (9th Cir. 2020). Nothing prevented Alqsous from filing a timely appeal.

Excusable neglect is determined by balancing several factors: the danger of prejudice to the other party; the length of the delay and potential impact on the proceedings; the reason for the delay, including whether it was within the party's reasonable control; and whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd ., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ; see also Stutson v. United States , 516 U.S. 193, 195-97, 116 S.Ct. 600, 133 L.Ed.2d 571 (1996) (discussing Pioneer ’s application in criminal cases). The district court weighed those factors, finding the most important to be the reason for the delay. It was not an abuse of discretion to conclude that counsel's purported misapprehension or misunderstanding of Rule 4(b) ’s requirements was insufficient to establish excusable neglect. See Pioneer , 507 U.S. at 392, 113 S.Ct. 1489 (explaining that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect").

II. SUFFICIENCY OF EVIDENCE⁶

Hills, Alqsous, and Al-Madani...