NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0812n.06 Filed: November 6, 2006
Nos. 05-3293/05-4160
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE MARTIN T. WILLIAMS, ) NORTHERN DISTRICT OF OHIO ) Defendant-Appellee. )
Before: BOGGS, Chief Circuit Judge, and DAUGHTREY, Circuit Judge, and MILLS,* District Judge.
PER CURIAM. This case is before us on appeal by the government following a jury
verdict finding the defendant, Martin T. Williams, guilty of all five counts of an indictment
charging him and two co-defendants with conspiracy to commit mail fraud, wire fraud, and
healthcare fraud and with committing wire fraud and healthcare fraud involving certain
illegal billing practices. Williams filed a motion for a new trial, in which he alleged that the
government had failed to provide him with certain information that could have been used
to impeach prosecution witnesses. The district court eventually granted the motion on that
ground, but did so only after the government had filed a timely notice of appeal from an
* The Hon. Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation. Nos. 05-3293/05-4160 United States v. Williams
earlier ruling on the same motion, thereby depriving the district court of continuing
jurisdiction in the case. We conclude that both rulings by the district court must be
reversed, one due to error and the other for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Following the return of the indictment in January 2002 against Williams, Dr. Lal
Rohira, and Sharonne Szyrej, the district court granted a partial severance, ordering that
Szyrej and Rohira be tried together, with Williams’s trial “to follow.” Szyrej eventually
pleaded guilty to the crimes charged, thus avoiding trial altogether. Rohira then proceeded
to trial alone and was found guilty by a jury of all charges in July 2003. Some five months
later, in late December 2003, Williams went to trial and he, too, was found guilty of all
charges listed in the indictment.
Williams filed timely post-trial motions for judgment of acquittal and for a new trial
with the court. In the latter filing, he alleged that the prosecution had failed to disclose a
letter sent by the government to two prosecution witnesses, a letter that Williams contends
constituted a “secret agreement” not to prosecute the witnesses in exchange for their
testimony against Rohira and Williams, despite the witnesses’ own guilt in the fraudulent
billing scheme. According to the defendant, such non-disclosure violated the mandates
of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972), Supreme Court decisions requiring the prosecution to provide criminal defendants
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with evidence in the government’s possession that could be considered exculpatory or that
could serve to impeach the credibility of prosecution witnesses.
Over a year later, on February 4, 2005, the district court addressed not only
Williams’s motions for judgment of acquittal and for a new trial, but also Rohira’s similar
motions that had remained unresolved during the pendency of Williams’s trial. In ruling
upon those motions in separate decisions, however, the district judge focused upon an
issue that had not been raised by either Williams or Rohira. In Williams’s case, the district
court noted:
The prosecution called FBI Special Agent Graupmann to testify about the amount of financial loss caused by the defendant’s alleged billing fraud; through a dubious method . . ., he estimated the loss at over $1 million. Under Booker and Blakely, that is a fact that must be admitted by the defendant or expressly found by the jury beyond a reasonable doubt before it may be used to help convict him or to increase his sentence.
United States v. Williams, 355 F. Supp. 2d 903, 908 (N.D. Ohio 2005) (footnote omitted),
(citing United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S.
296 (2004)). Because the defendant’s “jury was never expressly charged with finding the
amount of loss,” the district judge “concluded that Williams is entitled to a new trial under
Booker and Blakely.” Williams, 355 F. Supp. 2d at 909-10. The court “also note[d] that the
prosecution’s alleged Brady violation might entitle Williams to a new trial as well,” id. at
904, but, having already relied upon Booker and Blakely to grant relief to the defendant,
ruled that “Williams’s motion for a new trial on the ground of the prosecution’s alleged
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violation of Brady v. Maryland . . . and his motion for judgment of acquittal due to
insufficient evidence . . . are denied without prejudice.” Id. at 910.
On February 14, 2005, Rohira filed with the district court a timely motion for
reconsideration. In that filing, Rohira asked, in the interest of judicial economy, for a ruling
by the court on his unresolved request for judgment of acquittal and for a new trial on
grounds that he had originally identified in his post-trial motion, including a Brady violation,
prosecutorial misconduct, and ineffective assistance of counsel. Eight days later, on
February 22, Williams filed his own motion for reconsideration, referencing “the reasons
more fully elucidated” by Rohira.
Concluding that Williams’s motion for reconsideration was untimely and, thus, was
not an impediment to the district court’s February 4 ruling becoming final, the United States
filed an appeal to this court on March 3, 2005 (docketed here as No. 05-3293). On August
9, 2005, however, the district judge issued a decision addressing Williams’s motion for
reconsideration and specifying that the prosecution’s failure to “turn over a letter which
could readily be construed as a promise of nonprosecution in exchange for the testimony
of two key government witnesses” did indeed result in a constitutional violation that entitled
the defendant to a new trial. The district court also concluded, however, that Williams’s
motion for judgment of acquittal should be denied ‘[b]ecause the jury’s guilty verdicts are
supported by substantial and competent evidence.” The government then filed a second
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appeal to this court that challenged only the propriety of the August 9 ruling (docketed here
as No. 05-4160). The two matters have now been consolidated for appeal.
DISCUSSION
Case Number 05-3293
The government’s initial appeal challenges, on both a factual and a legal basis, the
correctness of the district court’s decision to grant Williams a new trial based upon a
perceived violation of the mandates of Blakely and Booker. The district judge concluded
that such an error occurred in the defendant’s trial because the conclusions of FBI Agent
Graupmann regarding the financial loss attributable to the defendant’s criminal actions
were neither admitted by Williams nor found by the jury beyond a reasonable doubt.
We review the grant of a motion for a new trial only for an abuse of discretion. See,
e.g., Bell v. Johnson, 404 F.3d 997, 1002 (6th Cir. 2005). “Under this standard, we will
reverse a decision granting a new trial when we have a ‘definite and firm conviction . . . that
the court below committed a clear error of judgment . . . .’” Id. at 1003 (quoting Holmes v.
City of Massillon, 78 F.3d 1041, 1045 (6th Cir. 1996)).
Such a clear error has been committed in this litigation. Initially, as noted by the
government in its appellate brief, the district court was mistaken in its identification of the
factual underpinning of its decision. The district judge’s grant of a new trial was fueled in
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no small measure by the court’s conclusion that Agent Graupmann’s testimony concerning
his estimate of the applicable monetary loss suffered by the victims of the fraud was
“poorly supported,” “unreliable but seemingly credible,” “flawed,” and “shocking.” Williams,
355 F. Supp. 2d at 909. An examination of the testimony offered by Graupmann at
Williams’s trial, however, leads to the inescapable conclusion that the agent never testified
regarding the total amount of the loss attributable to the criminal conspiracy. Graupmann
also testified at Rohira’s separate trial, and it is possible that the loss-estimate testimony
to which the district judge referred was offered in that earlier proceeding; such testimony
was, nevertheless, not placed before the defendant’s jury.
Furthermore, the district court’s initial ruling on the new trial motion was legally
incorrect. Indeed, before this court, Williams himself concedes in his brief in case number
05-3293 “that the trial court erred in granting a new trial based upon an alleged Booker
violation – an issue he never raised nor argued.” The district judge’s confusion in this
regard is understandable, given the fact that the ruling on Williams’s motion for new trial
was filed only three weeks after the issuance of the Supreme Court’s Booker decision,
when the federal courts were still struggling to comprehend and implement the teachings
from the Supreme Court’s Apprendi-Blakely-Booker line of cases.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant entered a guilty plea
to an offense that carried a possible prison term of five-to-ten years. At sentencing,
however, the state trial court concluded that Apprendi’s conduct could be considered a
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racially-motivated “hate crime.” Consequently, the state court imposed an enhanced 12-
year sentence upon Apprendi for that offense. The Supreme Court invalidated the
punishment, holding that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id. at 490.
Four years later, the Court extended the Apprendi-based Sixth Amendment
protections in the context of a state sentencing scheme in Blakely v. Washington.
Although the crime to which Blakely pleaded guilty was punishable by a term of
imprisonment that could, by statute, extend up to ten years, other provisions of applicable
state law “mandated a ‘standard’ sentence of 49-to-53 months, unless the judge found
aggravating facts justifying an exceptional sentence.” Booker, 543 U.S. at 232 (citing
Blakely, 542 U.S. at 298). When the trial court did, in fact, find that Blakely acted with
“deliberate cruelty,” it imposed a 90-month sentence, a punishment that the Supreme Court
ultimately invalidated, reasoning “that the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. Thus, without an
admission by the defendant that he acted with “deliberate cruelty,” or a similar jury finding
based upon evidence satisfying the constitutional, beyond-a-reasonable-doubt standard,
Blakely could not be sentenced to more than 53 months in prison.
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Finally, on January 12, 2005, the Supreme Court logically extended the rationale of
Blakely from the Washington state sentencing scheme to the United States Sentencing
Guidelines. After recognizing that “there is no distinction of constitutional significance
between the Federal Sentencing Guidelines and the Washington procedures at issue in”
Blakely, the Court reaffirmed its holding in Apprendi that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 233, 244.
A five-justice majority of the court then concluded that any Sixth Amendment violation
resulting from the application of the guidelines could be cured by excising from the federal
sentencing statutes any provision making the guidelines mandatory rather than advisory.
See id. at 245.
Booker and its predecessors did not, however, outlaw all judicial fact-finding in
sentencing. In fact, in United States v. Cook, 453 F.3d 775, 777 (6th Cir. 2006), we
specifically noted that “[b]ecause the guidelines are now advisory and not mandatory, a
District Court may rely on extra-verdict facts or on those other than which the defendant
has specifically admitted when it calculates his sentence.” See also United States v.
Stone, 432 F.3d 651, 654-55 (6th Cir. 2005), cert. denied, ___ S.Ct. ___, 2006 WL
1591782 (Oct. 2, 2006) (Judicial fact-finding is still appropriate after Booker. Now,
however, district courts have “the option, after calculating the Guideline range, to sentence
a defendant outside the resulting Guideline range.”).
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In Williams’s case, no Booker error was committed because the district court never
imposed sentence upon the defendant. Furthermore, the verdict rendered by the jury in
this case in no way depended upon a precise determination of the amount of the loss
suffered as a result of the criminal activities of the defendant. Pursuant to the provisions
of 18 U.S.C. § 371, in fact, any conspiracy to defraud the United States, combined with
commission of “any act to effect the object of the conspiracy,” is punishable by up to five
years in prison, a fine, or both, regardless of the amount of loss. The jury in this matter
concluded beyond a reasonable doubt that Williams conspired with another individual to
defraud the government, among other entities. Furthermore, by its verdict finding the
defendant guilty of three counts of wire fraud, the jury also determined, again beyond a
reasonable doubt, that Williams actually took the necessary steps to effectuate the
underlying fraudulent acts. Contrary to the ruling of the district court, therefore, Booker and
its mandates are not implicated in the jury’s resolution of the issues presented to it. The
district court thus erred in granting Williams’s motion for a new trial on Blakely and Booker
grounds.
Case Number 05-4160
Although defendant Williams concedes that the district judge erred in granting him
a new trial on Blakely and Booker grounds, he nevertheless contends that we should affirm
the district court’s August 9, 2005, order granting a new trial based upon the withholding
of impeachment evidence in violation of Brady v. Maryland and Giglio v. United States
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should be affirmed. But, because the district court had no jurisdiction to issue this second
decision granting Williams a new trial on alternate grounds, the defendant is not now
entitled to the relief he seeks.
At the conclusions of their separate jury trials, Rohira and Williams filed with the
district court separate, timely motions for judgments of acquittal and for new trials. Rohira’s
motion for a new trial, filed on September 30, 2003, argued that the requested relief was
justified “because the government failed to disclose critical exculpatory and impeachment
material to Dr. Rohira, . . . because of a pattern of prosecutorial misconduct . . ., and
because of the ineffective assistance of Dr. Rohira’s trial counsel.” Williams’s motion for
a new trial was filed on January 6, 2004, and contended only that exculpatory and
impeachment evidence was not provided to him as required by Brady and Giglio. As
previously indicated, the district court considered the motions together, but issued separate
decisions more than a year later, on February 4, 2005, granting new trials in light of the
Supreme Court’s then-recent Blakely and Booker decisions. See United States v. Rohira,
355 F. Supp. 2d 894 (N.D. Ohio 2005); Williams, 355 F. Supp. 2d 903. Additionally, the
Williams decision suggested that “the prosecution’s alleged Brady violation might entitle
Williams to a new trial as well.” Williams, 355 F. Supp.2d at 904. Nevertheless, the district
judge concluded explicitly that “Williams’s motion for a new trial on the ground of the
prosecution’s alleged violation of Brady v. Maryland [doc. no. 139] and his motion for
judgment of acquittal due to insufficient evidence [doc. no. 138] are denied without
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prejudice.” Id. at 910 (emphasis added). Similar comments were included in the published
decision in Rohira’s case. See Rohira, 355 F. Supp. 2d at 895, 902.
Aware that the government planned to appeal the district court’s decision that
Booker mandated the grant of a new trial, defendant Rohira filed a motion for
reconsideration of the district court’s decision within ten days of the new trial ruling. In that
motion for reconsideration, Rohira requested specifically that the district court address his
motion for judgment of acquittal and the alternate grounds raised in his initial new trial
motion. Williams filed a similar motion for reconsideration, seeking relief “for the reasons
set forth in the attached Brief and in Defendant Lal Rohira’s recent Motion by the same
title.” Williams’s motion was not filed until February 22, however, 18 days after the
issuance of the district court’s first ruling. Because it considered Williams’s motion for
reconsideration untimely and, thus, ineffective in preventing the February 4 order from
becoming final, the government filed its appeal of that district court decision to this court
on March 3, 2005.
The United States now argues that its first notice of appeal in the Williams litigation
deprived the district court of further jurisdiction over the matter such that the subsequent
district court order filed on August 9, 2005, was a nullity. It is indeed “settled law that filing
a notice of appeal with the district court divests the district court of jurisdiction to act in a
case, except on remedial matters unrelated to the merits of the appeal.” Fort Gratiot
Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res., 71 F.3d 1197, 1203 (6th Cir. 1995).
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Thus, “expansion of a district court’s judgment [is] not permitted while an appeal is
pending.” NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). This
general rule applies “unless that appeal is untimely, is an appeal from a non-appealable
non-final order, or raises only issues that were previously ruled upon in that case by the
appellate court.” Rucker v. United States Dep’t of Labor, 798 F.2d 891, 892 (6th Cir.
1986).
Williams does not contend that the district court’s additional actions undertaken after
the filing of the government’s notice of appeal involved “remedial matters unrelated to the
merits of the appeal.” In fact, the district court itself, in its August 9 ruling, used language
making clear that its resolution of the motion for reconsideration was an “expansion” of its
prior ruling. The district court began its discussion of the issues presented in the motion
by stating, “While Williams is entitled to a new trial under Booker and Blakely, this court
now holds that he is also entitled to a new trial on another ground as well.” Furthermore,
in concluding the decision, the district court explained that “[i]n addition to and independent
of the Blakely/Booker grounds articulated in this court’s earlier opinion and order,” Williams
was entitled to a new trial because of the prosecution’s failure to provide defense counsel
with exculpatory or impeachment evidence.
Unable to argue that the filing of the notice of appeal did not divest the district court
of jurisdiction because the district court’s subsequent ruling was remedial only, Williams
instead contends that the district court retained jurisdiction over his motion for
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reconsideration because the government’s notice of appeal was premature. Specifically,
the defendant insists that the notice of appeal was filed prior to a final ruling on Williams’s
motion for judgment of acquittal and prior to a ruling on his claim that the United States
withheld impeachment evidence from him. This argument is, however, patently without
merit. In its February 4 ruling, the district court explicitly and unequivocally concluded,
“Williams’s motion for a new trial on the ground of the prosecution’s alleged violation of
Brady v. Maryland [doc. no. 139] and his motion for judgment of acquittal due to insufficient
evidence [doc. no. 138] are denied without prejudice.” Williams I, 355 F. Supp. 2d at 910
(emphasis added). Consequently, although the district court did not address the merits of
those claims, it clearly disposed of them in such a manner as to render the court’s
judgment a final, appealable order.
In a final effort to legitimize the district court’s August 9 order granting a new trial on
grounds not included in the prior order, the defendant maintains that the government’s
notice of appeal was prematurely filed because Williams’s February 22 motion for
reconsideration was still pending before the district court at that time. Without question,
“a motion for rehearing in a criminal case, like a motion for rehearing in a civil case,
renders an otherwise final decision of a district court not final until it decides the petition
for rehearing.” United States v. Ibarra, 502 U.S. 1, 6 (1991) (discussing United States v.
Healy, 376 U.S. 75 (1964)). See also United States v. Dotz, 455 F.3d 644, 648 (6th Cir.
2006). The time for filing a notice of appeal in a criminal case is tolled, however, only if the
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post-judgment motion is itself timely. See United States v. Correa-Gomez, 328 F.3d 297,
299 (6th Cir. 2003).
In Correa-Gomez, this court held:
[A] motion for reconsideration or rehearing of a final judgment in a criminal case must be filed within the period provided by Fed. R. App. P. 4(b)(1) unless the local rules of the district court provide otherwise. Effectively, this means that criminal defendants must file such motions within ten days of the judgment entry, Fed. R. App. P. 4(b)(1)(A)(i), and the government must file such motions within thirty days. Fed. R. App. P. 4(b)(1)(B)(i). Id. Pursuant to the provisions of Rule 26(a)(2) of the Federal Rules of Appellate
Procedure, however, when the period of time provided by rule allots “less than 11 days”
for any action, a party may exclude any weekend day or legal holiday from the calculation.
Thus, because Williams had only ten days from the resolution of his motion for new trial
on February 4 to request reconsideration, the defendant was actually allowed to file such
motion within ten business days, or at any time up to and including February 18, 2005. His
February 22 filing was, therefore, still untimely and ineffective in tolling the period of time
before a proper notice of appeal could be filed.1 The government’s March 3 notice of
appeal was, consequently, not premature and served to divest the district court of
jurisdiction over this matter from that date forward. As a result, the district judge’s August
1 W illiam s contends that, although his m otion for reconsideration was untim ely, Rohira’s sim ilar m otion was tim ely and should serve to bring before the district court any issues that W illiams sought to advance. The defendant and Rohira are separate individuals, however, were convicted in separate trials, and were entitled to m ake separate decisions regarding the conduct of their post-trial proceedings. W illiam s was thus responsible for the tim ely filing of any m otions he wished to have the court consider. No rule or precedent of this court would allow the defendant to “intervene” in Rohira’s proceedings after the tim e for W illiam s to file his own post-trial m otions had expired.
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9 order was a legal nullity. Of course, because the district court originally denied without
prejudice the defendant’s motion for a new trial based upon alleged Brady/Giglio violations,
Williams remains free to file any subsequent collateral attack upon his convictions that he
deems proper.
CONCLUSION
For the reasons set out above, we REVERSE the grant of a new trial in case
number 05-3293, VACATE the judgment in case number 05-4160, REINSTATE Williams’s
convictions, and REMAND this matter for sentencing.
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