United States v. Hills
Decision Date | 03 March 2022 |
Docket Number | Nos. 19-3372/3549/3573/20-3160,s. 19-3372/3549/3573/20-3160 |
Citation | 27 F.4th 1155 |
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. |
Court | U.S. Court of Appeals — Sixth Circuit |
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.
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.
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:
The RICO Conspiracy count alleged two additional schemes that were not the subject of any separate charges:
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
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) ( ). 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 ( ).
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