                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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



                                            -2-
Nos. 05-3293/05-4160
United States v. Williams

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


                                            -3-
Nos. 05-3293/05-4160
United States v. Williams

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




                                             -4-
Nos. 05-3293/05-4160
United States v. Williams

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



                                             -5-
Nos. 05-3293/05-4160
United States v. Williams

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


                                            -6-
Nos. 05-3293/05-4160
United States v. Williams

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.




                                            -7-
Nos. 05-3293/05-4160
United States v. Williams

       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.”).

                                            -8-
Nos. 05-3293/05-4160
United States v. Williams

       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


                                             -9-
Nos. 05-3293/05-4160
United States v. Williams

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



                                            - 10 -
Nos. 05-3293/05-4160
United States v. Williams

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).


                                              - 11 -
Nos. 05-3293/05-4160
United States v. Williams

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


                                              - 12 -
Nos. 05-3293/05-4160
United States v. Williams

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



                                             - 13 -
Nos. 05-3293/05-4160
United States v. Williams

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.

                                                       - 14 -
Nos. 05-3293/05-4160
United States v. Williams

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.




                                           - 15 -
