COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71334 IN THE MATTER OF: : NABIL GHALI : : Petitioner : JOURNAL ENTRY : AND vs. : OPINION : GERALD T. McFAUL, SHERIFF : : Respondent : DATE OF ANNOUNCEMENT : OCTOBER 15, 1996 OF DECISION : CHARACTER OF PROCEEDING : HABEAS CORPUS JUDGMENT : WRIT GRANTED UPON POSTING : BOND WITH CONDITIONS. DATE OF JOURNALIZATION : APPEARANCES: For Petitioner: W. CRAIG BASHEIN, ESQ. ANTHONY P. SOUGHAN, ESQ. TIMOTHY POTTS, ESQ. 1200 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Respondent: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DEBORAH NAIMAN L. CHRISTOPHER FREY DAVID ZIMMERMAN Assistant Prosecuting Attorneys 1200 Ontario Street Cleveland, Ohio 44113 - 3 - JAMES M. PORTER, P.J.: On September 27, 1996, the petitioner, Nabil Ghali, commenced this habeas corpus action against the respondent, Gerald T. McFaul, Sheriff of Cuyahoga County, claiming that he is being held on excessive bail ($5 million) in violation of his rights under the United States and Ohio Constitutions. The writ issued, and following receipt of briefs and a transcript of the proceedings below, on October 3, 1996, the Court conducted an evidentiary hearing and heard arguments of counsel. For the following reasons, this Court grants relief by ordering that the amount of bond in the underlying case, State of Ohio v. Nabil Ghali, Cuyahoga County Common Pleas Court Case No. Cr. 343055, be reduced to $3 million, by execution of a bail bond with sufficient solvent sureties as required by Crim. R. 46(C)(4) and subject to the further conditions that defendant surrender his United States passport to the Cuyahoga County Prosecutor and refrain from travel outside the boundaries of Cuyahoga County pending the outcome of the criminal proceedings. On September 18, 1996, petitioner was indicted on twenty-one counts, including ten counts of felonious sexual penetration, which are non-probational, aggravated felonies of the first degree, punishable by a term of incarceration from 5, 6, 7, 8, 9, 10 to 25 years. The other counts allege kidnapping, felonious assault and gross sexual imposition, felonies of the first, second and third degree, respectively. The State alleges that these counts arise out of relationships petitioner is alleged to have had with female - 4 - patients in the course of unlicensed treatment at his medical clinic, the Academy Medical Center. It was estimated that conviction on these counts would lead to incarceration from 50 to 250 years, subject to parole in 15 years, at the earliest. The arraignment judge continued bond of $6 million set by the municipal court. This was subsequently reduced by the assigned judge to $5 million on September 25, 1996. The instant action followed. The following facts were offered at the evidentiary hearing or appear from the hearing transcript or submissions of the parties. Mr. Ghali, age 62, a widower, was born in Egypt and received his medical degree in Cairo. He has been a naturalized United States citizen for approximately thirty years and has lived in Cleveland since 1989. He is the sole shareholder of Academy Management, Inc. This corporation owns real property at 11710 Shaker Blvd. in Cleveland, valued at approximately $500,000. Defense counsel represented that the corporation owns the property free and clear and exhibited a satisfaction of mortgage which he intended to file promptly to clear the title of record. For a number of years, Mr. Ghali operated a medical clinic at the Shaker Blvd. property. This was recently closed by the City of Cleveland. In several states Mr. Ghali is no longer licensed to practice medicine. His Ohio license to practice medicine was revoked in February 1993. Since then, Mr. Ghali claims to have operated the clinic by employing two licensed physicians. - 5 - Mr. Ghali claims to live in an apartment at 1620 East 79th Street in an area known as Lexington Village in Cleveland. He originally told the police he lived at his medical clinic. However, on execution of a search warrant at the clinic, the police found no furnishings, clothes or personal effects that would indicate he was living there. He also has contacts with Florida; his car, a Cadillac, carries Florida license plates. Furthermore, in his application to this Court he admits he owns real estate in Covington, Kentucky of undetermined value. Mr. Ghali has no family or relatives in the Cleveland area or elsewhere in the United States except for his twenty-one year old son who is attending college in Missouri. He has a fiancee who is a resident of Florida. Mr. Ghali acknowledged that he has a brother living in Egypt. Mr. Ghali has been convicted of a misdemeanor in Kentucky involving sexual activity with a minor. He apparently made all necessary appearances in that case. He has faced numerous legal proceedings in Florida, and among the reasons for Florida revoking his medical license is his misrepresentation of facts to the state medical authorities. His license to practice medicine has also been revoked in Kentucky, Utah, New York and California. During the hearing on the petition for habeas corpus, the State maintained that petitioner is a defendant in numerous civil suits stemming from his alleged criminal activity and suspension of his medical licenses. The State contends he has no malpractice - 6 - insurance. Petitioner's counsel represented that the cost of defending these suits and this criminal action has virtually bankrupted petitioner. With his medical license under suspension and his clinic closed, it appears that petitioner currently has no reliable source of income. If petitioner were ultimately acquitted of the criminal charges, he would probably continue to face civil litigation for many years, with no apparent likelihood of earning money to pay for his defense. The State contends that petitioner has not been forthcoming about his finances. Despite claiming an inability to pay bail, petitioner's counsel admitted during the hearing that petitioner had $230,000 in numerous bank accounts. These accounts were not readily traceable because they listed post office boxes as addresses. It took the fraud division of the Cleveland Police Department to track down these accounts. Petitioner now claims he has virtually exhausted these accounts (he claimed only $20,000 remained) defending both the civil suits and this criminal action. The defense acknowledged that the funds in these accounts have been escrowed with his defense attorneys. In view of the charges for which he was indicted, and given his age, Mr. Ghali, if convicted, is facing the prospect of being incarcerated for the rest of his natural life. The prosecution argues that this makes him a likely candidate for flight and that he is likely to seek asylum in Egypt where his brother lives, but which has no extradition treaty with the United States. The State - 7 - asserts that Egypt recognizes dual citizenship which would allow petitioner to take up a new life and reestablish his medical practice. Counsel for Mr. Ghali represented that no one would write a bail bond for $5 million, and thus, such a bond would deny Mr. Ghali any bail. Moreover, counsel stated that Mr. Ghali's full participation is necessary to prepare his defense and such full participation would not be possible if he is in jail. This Court recently set forth the considerations which govern our review of claims of excessive bail on habeas corpus. In re Green (1995), 101 Ohio App.3d 726, 730, states as follows: The principles governing habeas corpus in these matters are well established. Under both the United States and Ohio Constitutions, "excessive bail shall not be required." The purpose of bail is to secure the attendance of the accused at trial. Crim.R. 46(A); Bland v. Holden (1970), 21 Ohio St.2d 238, 50 O.O.2d 477, 257 N.E.2d 397. In Ohio the writ of habeas corpus protects the right to reasonable bail. In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454 N.E.2d 987. A person charged with the commission of a bailable offense cannot be required to furnish bail in an excessive or unreasonable amount. In re Lonardo (1949), 86 Ohio App. 289, 41 O.O. 313, 89 N.E.2d 502. Indeed, bail set at an unreasonable amount violates the constitutional guarantees. Stack v. Boyle (1951), 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. Pursuant to Crim.R. 46, in determining what is reasonable bail, the trial court must weigh various factors: the nature and circumstances of the offense charged, the weight of the evidence, the accused's history of flight or failure to appear at court proceedings, his ties to the community, including his family, financial resources and employment, and his character and mental condition. After weighing these - 8 - factors, the trial judge sets the amount of bail within his sound discretion. In a habeas corpus action to contest the reasonableness of bond, this court must determine whether the trial court abused its discretion. In re Gentry; Jenkins v. Billy (1989), 43 Ohio St.3d 84, 538 N.E.2d 1045; Lewis v. Telb (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d 1376. The Court has also reviewed its other habeas corpus decisions cited in In re Green, as well as Balogh v. Sefcek (Dec. 14, 1994), Cuyahoga App. No. 68256, unreported and In the Matter of Hines v. McFaul (July 9, 1996), Cuyahoga App. No. 70923, unreported, in which excessive bails were reduced. The constitutional rationale behind the entitlement to bail was well stated in Stack v. Boyle (1951), 342 U.S. 1, 4-5: From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91 to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing the oath of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as an additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eighth Amendment. - 9 - The federal test which we must also consider in view of petitioner's contentions finds expression in United States v. Leisure (C.A.8, 1983), 710 F.2d 422, 425, as follows: "The test for excessiveness is not whether [the] defendant is financially capable of posting bond but whether the amount of bail is reasonably calculated to assure the defendant's appearance at trial." United States v. Veaman, 631 F.2d 85, 86 (6th Cir. 1980), Citing United States v. Wright, 483 F.2d 1068, 1070 (4th Cir. 1973). In particular, the amount of bail should not be used as an indirect, but effective, method of ensuring continued custody. As noted in United States v. Leathers, 134 U.S.App.D.C. 38, 412 F.2d 169, 171 (1969)(per curiam), The setting of bond unreachable because of its amount would be tantamount to setting no conditions at all. Conditions which are impossible to meet are not to be permitted to serve as devices to thwart the plain purposes of the [Bail Reform] Act, nor are they to serve as a thinly veiled cloak for preventive detention. With these authorities in mind, we address the petition at hand. There is no doubt that the State is correct in seeking a very substantial bail to assure the petitioner's presence at trial. There is also no question that the factors we are obliged to consider under Crim.R. 46(F) weigh heavily in favor of a high bail. The numerous and serious offenses charged in the indictment favor the prosecution's position. "[I]f an accused is charged with crimes the conviction for which would result in long incarceration, with little hope of early release or probation, the incentive to abscond is greater and the amount must be such as to discourage the - 10 - accused from absconding." Bland v. Holder (1970), 21 Ohio St.2d 238 (bail of $45,000 not excessive where petitioner charged with 17 counts, five each for rape, armed robbery, breaking and entering, and one each for burglary and malicious entry). We are obliged to give prima facie effect to the allegations of the indictment at this stage of the proceedings. "In considering the seriousness of the offense charged for the purpose of fixing bail, the court must assume the truth of the allegations of the indictment." In re Gentry (1982), 7 Ohio App.3d 143, 145 (bail of $150,000 not excessive where charge is aggravated murder). Petitioner has no family ties with the Cleveland area nor employment opportunities here since his medical license has been revoked and his clinic closed. He is facing substantial litigation, both civil and criminal, which he claims has exhausted his financial resources. He is presently without visible means of support. The revocation of his medical licenses in six states and conviction for molesting a thirteen year old girl in Kentucky make it extremely unlikely that he has a future in medicine in this country. The State contends, not without corroboration in the record, that petitioner is a liar, is not to be trusted and has a tarnished character. Thus, the trial court had, and this Court has, substantial evidence that petitioner faces a virtual life sentence, has no foreseeable means of practicing his livelihood in this country, has potential access to a foreign country where he might be viewed as a - 11 - citizen and able to practice medicine without fear of extradition. The State argues that petitioner may have undisclosed financial resources that could sustain him in another country. Petitioner's evasive conduct and non-disclosures tend to support the State's suppositions. Because of this evidence, we determine that the trial court correctly found that petitioner posed a significant threat to flee the jurisdiction. However, we nevertheless find that the trial court abused its discretion in setting bail at $5 million, which we find unreasonable under all the circumstances. Giving credence to all the evidence we have reviewed and heard, it would appear that the petitioner controls through his corporation real property with a market value of $500,000 and has access to cash in the amount of $230,000. The State is concerned that he may flee to escape trial and take these funds with him after arranging for liquidation of the real property through some third party. However, we are satisfied that a surety bond of $3 million is adequate to discourage such a scenario and assure his presence at trial. His assets will be stretched to the limit to collateralize such a bond. A $5 million bond is clearly excessive under our constitutional limitations and these circumstances. Although we recognize that each bail case must be judged on its own merits and the peculiar circumstances presented, we are also influenced by the fact that the State has failed to cite any authority, and our independent research has failed to find any authority among the reported Ohio cases, which justified a $5 million bond. The highest bond the State could cite below (Tr. 19) - 12 - was $2.5 million by extrapolating from a $250,000 cash bond approved in Jenkins v. Billy (1989), 43 Ohio St.3d 84, 85. We are not unmindful of the words of the late and respected Judge Charles McNamee of this Court in In re Lonardo (1949), 86 Ohio App. 289, 292-93: If, by adhering to the constitutional mandate, as we must, an advantage accrues to those who deserve it least, such a result is to be deplored. But greater potentialities for enduring harm lie in an evasion of judicial duty which would impair the integrity of one of the fundamental guaranties of liberty contained in the Bill of Rights. Accordingly, pursuant to Crim.R. 46(C), the writ of habeas corpus is granted and relief is ordered as follows: bail is reduced to $3 million and petitioner is ordered released only upon meeting the requirements of Crim.R. 46(C)(4) by posting a bail bond with sufficient solvent sureties in said amount, and further upon conditions that petitioner surrender his United States passport to the Cuyahoga County Prosecutor and refrain from any travel outside the confines of Cuyahoga County pending the outcome of criminal proceedings. Failure to comply with these conditions shall result in immediate revocation of bail and forfeiture of the bond. Respondent to pay costs. HARPER, J., CONCURS. JAMES M. PORTER PATTON, J., CONCURS WITH PRESIDING JUDGE CONCURRING OPINION. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71334 IN THE MATTER OF : PETITION FOR WRIT OF HABEAS CORPUS NABIL GHALI : : CONCURRING PETITIONER : : JOURNAL ENTRY -vs- : AND : OPINION GERALD T. McFAUL, SHERIFF : : RESPONDENT : : DATE: OCTOBER 15, 1996 PATTON, J., CONCURRING: I concur with the opinion and judgment of the court, but write separately to stress my understanding that the court is not making a blanket statement that certain dollar amounts will control the question whether an amount of bail is unconstitutionally excessive. Although the amount of bond we order in this case appears unprecedented, it is not the amount of bail, standing alone, that controls the issue here. When viewed in conjunction with the very real possibility that petitioner may flee the jurisdiction if released on a lesser bail, the bail is not excessive in relation to the state's asserted interest in compelling petitioner's presence at trial. - 2 - The constitutional right to bail is applied by considering the state's interest in compelling the accused's presence at trial. Section 9, Article I of the Ohio Constitution prohibits excessive bail; that is, any amount of bail that goes beyond that necessary to secure the presence of the accused at trial. See Crim.R. 46(A). When the state, as here, admits that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. United States v. Salerno (1987) 481 U.S. 739, 754; State ex rel. Baker v. Troutman (1990), 50 Ohio St.3d 270, 272. The only significant question for us on review concerns the amount of bail in relation to the risk that petitioner might flee the jurisdiction. Stated differently, what facts demonstrate petitioner might attempt to flee? Petitioner is currently facing twenty-one counts of felonious sexual penetration, gross sexual imposition, felonious assault and kidnapping. If convicted, the terms of incarceration would, at his age, constitute a virtual life sentence. Moreover, he faces numerous civil actions stemming not only from the alleged criminal conduct in this case, but from conduct in other states as well. His prior misdemeanor conviction in the commonwealth of Kentucky arose from the rape of a thirteen year old girl. Petitioner has strong ties to Egypt. The state alleged without contradiction that petitioner possessed dual citizenship that might permit him to seek asylum in that country, possibly - 3 - without fear of extradition. His contacts with Cuyahoga County are minimal -- his girlfriend lives in the state of Florida; his son attends college out of state. Petitioner's vehicle carries license plates from the state of Florida. Petitioner's medical license is currently revoked or suspended in at least six states, so he appears to have no visible means of supporting himself as a medical doctor in this country. He contradicted his original claim of poverty by admitting to ownership of several bank accounts in excess of $230,000. Those accounts were posted to addresses at post office boxes and it took the fraud unit of the police department to uncover them. In addition, he claims to be the sole shareholder of a corporation that owns a building valued at $500,000. Clearly, petitioner's financial resources are extensive. The amount of bail in this case is very high, but it is not excessive. The constitutional standard permits a great deal of flexibility in setting bail and strict comparison to other cases is largely futile. Given the varying nature of facts and circumstances in each case, the trial courts should not hesitate to forego slavish adherence to dollar figures set in other cases. Instead, they should set bail at an amount that will secure the accused's presence at trial. I believe this court's modification of bail meets that constitutional standard; therefore, I concur in the court's opinion and judgment. .