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United States v. Bikundi

United States Court of Appeals, District of Columbia Circuit

June 11, 2019

United States of America, Appellee
Michael D. Bikundi, Sr., Appellant

          Argued October 23, 2018

          Appeals from the United States District Court for the District of Columbia (No. 1:14-cr-00030-2) (No. 1:14-cr-00030-1)

          Andrew E. Goldsmith, appointed by the court, argued the cause for appellant Florence Bikundi.

          Steven R. Kiersh, appointed by the court, argued the cause for appellant Michael D. Bikundi Sr. With them on the joint briefs were Bradley E. Oppenheimer and Albert Pak, all appointed by the court.

          Katherine M. Kelly, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Christopher B. Brown, Assistant U.S. Attorneys. Nicholas P. Coleman and Elizabeth H. Danello, Assistant U.S. Attorneys, entered appearances.

          Before: Rogers, Tatel, and Griffith, Circuit Judges.


          PER CURIAM.

         Table of Contents


         I. Regulatory and Factual Background

         II. Speedy Trial Rights

A. Speedy Trial Act
B. Sixth Amendment

         III. Severance

         IV. Admission of Exhibit 439

         V. Sufficiency of the Evidence

A. Money Laundering and Conspiracy
B. Exclusion-Based Health Care Fraud
C. Health Care Fraud and Conspiracy

         VI. Jury Instructions

A. Unanimity
B. Aiding-and-Abetting Health Care Fraud

         VII. Sentencing

A. Restitution
B. Forfeiture
C. Sentencing Enhancements
1. Loss Amount
2. Abuse of Trust
3. Managerial Role
4. Violation of Administrative Order

         Florence Bikundi and Michael Bikundi appeal their convictions by a jury of health care fraud, conspiracy to commit health care fraud, money laundering, and conspiracy to commit money laundering. Suggesting that the government's case was premised on the misconduct of a handful of employees rather than an entire fraudulent business, appellants challenge the denial of Florence Bikundi's motion to dismiss the indictment for violation of her statutory and constitutional rights to a speedy trial; the denial of Michael Bikundi's motion to sever his trial pursuant to Rule 14(a) of the Federal Rules of Criminal Procedure; and the mid-trial admission of a government report pursuant to Rule 16 of the Federal Rules of Criminal Procedure. They also challenge their enhanced sentences, the forfeiture and restitution orders, and the denial of their motions for judgment of acquittal notwithstanding the verdicts pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. For the following reasons, we affirm.


         Florence and Michael Bikundi (hereinafter separately "Florence" and "Michael") operated Global Healthcare, Inc. ("Global") to provide home care services that were funded through the D.C. Medicaid program, which, in turn, is funded in part by the federal government, to provide free or low-cost health services to low-income individuals. See 42 U.S.C. § 1396-1; D.C. Code § 4-204.05; 42 C.F.R. §§ 435.900- 435.965.


         The D.C. Department of Health Care Finance ("DHCF") administers the D.C. Medicaid program. D.C. Code § 7- 7701.07. Home care service entities assist D.C. Medicaid beneficiaries in performing daily living activities, such as getting out of bed, bathing, and eating. D.C. Mun. Regs. tit. 22 § 3915. Because these services are typically not provided by registered nurses or other medical professionals, home care service entities are required to conduct background checks prior to hiring their aides. DHCF also periodically audits home care service entities for conformance with physician-approved home care plans, and DHCF will withhold future payments upon finding non-compliance with regulatory requirements.

         To be eligible to receive D.C. Medicaid payments, home care service entities must be licensed by the Health Regulation and Licensing Administration in the D.C. Department of Health. D.C. Mun. Regs. tit. 22 § 3900. As part of this process, a home care service entity must submit a provider application and enter into a provider agreement. When reviewing the application, the Health and Regulation Licensing Administration determines whether any individual holding a five percent or greater ownership in the entity has been excluded from participation in any federal health care program by checking an "exclusion list" published by the U.S. Department of Health and Human Services ("HHS"). The Administration also conducts annual licensure surveys to ensure that licensed home care entities operate in accordance with D.C. regulations.

         To qualify for personal care services covered by D.C. Medicaid, a beneficiary must obtain a prescription from a licensed physician. The beneficiary presents the prescription to the home care services entity, which assigns a personal care aide to the beneficiary. A registered nurse conducts an assessment of the beneficiary's needs for purposes of preparing an individualized plan of care. A licensed physician must approve the plan of care within thirty days and typically is to re-certify the plan every six months. A personal care aide administers the services in the plan of care. Generally, a registered nurse must visit the beneficiary at home at least once every 30 days to determine if the beneficiary is receiving adequate services.

         Personal care aides providing services to D.C. Medicaid beneficiaries are to keep track of the services provided on timesheets. Each timesheet must be signed by the personal care aide and the beneficiary to certify that the stated services were provided. The home care services entity uses these timesheets in support of claims submitted to DHCF for payment.


         Florence was indicted for health care fraud and money laundering in February 2014. A superseding indictment filed in December 2014, added eight co-defendants, including Michael Bikundi. The 27-count indictment charged Florence and Michael with health care fraud, conspiracy to commit health care fraud, seven counts of money laundering, money laundering conspiracy, and engaging in monetary transactions in property derived from unlawful activity.[1] It charged Florence with health care fraud based on her exclusion from federal health care programs and making false statements involving federal health care programs.[2] Five other co- defendants entered into plea agreements that required them to cooperate with the government.[3]

         Viewing the evidence in the light most favorable to the government, as we must, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319 (1979), reveals overwhelming evidence of pervasive fraud by comprehensive alteration of employee and patient records in connection with services claimed to have been provided by Global. The government presented documentary and testimonial evidence, including the testimony of eight former employees of Global.

         Global had a shaky beginning in view of Florence's formal exclusion from participation in federal health care funding programs as a result of the revocation of her nursing license by the Commonwealth of Virginia in 1999. 42 U.S.C. § 1320a-7. The parties dispute whether Florence received the letter notifying her of the exclusion decision, but Florence certainly received and responded to a letter informing her that exclusion proceedings had been initiated. Her license had been issued in her maiden name, "Florence Igwacho," and that name appears on the "exclusion list" published both online and in the Federal Register by HHS. Yet in June 2009, Florence submitted a D.C. Medicaid provider application on behalf of Global Healthcare, Inc. to DHCF that listed "Florence Bikundi" as Global's chief executive officer and listed "Florence Igwacho Bikundi" as a contact person. Although Florence and Michael were not married until September 2009, Florence began using the name "Bikundi" when they became engaged in 2005. According to defense testimony by her father, it is customary in Cameroon, Florence and Michael's home country, for a woman to begin using a man's last name when he provides a dowry, which Michael did before they became engaged. DHCF approved Global's application on July 30, 2009.

         At Global, Florence and Michael hired and fired employees, approved employee paychecks, and reviewed the timesheets that were used in support of D.C. Medicaid claims submitted to DHCF. During multiple licensure surveys, surveyors from the Health Regulation and Licensing Administration found deficiencies in Global's record-keeping and personnel files. At trial, former Global employees testified about rampant falsification of records that they had made at the direction of Florence and Michael. Employees testified that to show Global had complied with licensure surveys, they falsified employee files and patient records. For employee files, they altered dates on employees' certifications, included fake credentials for employees who were undocumented immigrants, and created false background checks on them. For patient records, employees created falsified nurse notes, altered dates on physician prescriptions, and altered physician signatures on plans of care.

         Global employees also testified about falsification of timesheets submitted to DHCF and unlawful payments to D.C. Medicaid beneficiaries. The employees testified about multiple situations where Florence and Michael were aware that aides were not actually providing services during time periods claimed on timesheets. Although Florence and Michael did on occasion withhold employee paychecks and told personal care aides to cease billing for services they did not provide, neither Florence nor Michael attempted, according to these employees, to return the money to the D.C. Medicaid Program. Employees also testified about making payments to D.C. Medicaid beneficiaries to sign false timesheets in order to show Global had provided them with home care services.

         From November 2009 to February 2014, D.C. Medicaid paid Global a total of $80.6 million. An investigation by the Federal Bureau of Investigation showed that millions of dollars' worth of the D.C. Medicaid payments were deposited directly into three Global bank accounts, for which Florence Bikundi and Michael Bikundi were the sole signatories. Within two days, and usually on the same day, Florence and Michael transferred these funds to separate Global bank accounts and a bank account for Flo-Diamond, Inc., a company incorporated by Florence that was registered to provide home care services to Maryland Medicaid recipients. From these secondary accounts, Florence and Michael transferred the D.C. Medicaid funds to many of the over one hundred other financial accounts that they controlled. Among these accounts, Florence and Michael transferred funds to three accounts in the name of CFC Home & Trade Investment, LLC ("CFC") and Tri-Continental Trade & Development ("Tri-Continental"); Florence and Michael were signatories on these banks accounts as well. CFC and Tri-Continental both generated no income and had no business relationship with Global. Ultimately, checks were written on these bank accounts to Florence and Michael personally.

         The jury found Florence and Michael guilty as charged, except on Counts 23, 24, and 25 for engaging in monetary transactions in property derived from unlawful activity. The district court sentenced Florence to 120 months' imprisonment and 36 months' supervised release, and Michael to 84 months' imprisonment and 36 months' supervised release. The district court required them to pay restitution in the amounts of $80, 620, 929.20, jointly and severally. The district court also required each of them to forfeit $39, 989, 956.02 (for the money laundering offenses) and $39, 701, 764.42 (for the health care fraud offenses), assessed concurrently. The district court denied their motions for acquittal notwithstanding verdicts, and they appeal.

         We begin by examining Florence's speedy trial claims, then address Michael's severance claim, and thereafter turn to their evidentiary objections and jury instructions challenges. Finally, we address their challenges to their sentences.


         Speedy Trial.

         Florence raises both statutory and constitutional speedy trial claims. The statutory claim focuses on the length of the delay and district court's findings about that delay, the constitutional claim on the length of the delay.


         Speedy Trial Act.

         The Speedy Trial Act provides that "the trial of a defendant . . . shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). Certain periods of delay are to be excluded from the seventy-day maximum, including any period of delay resulting from an "ends-of-justice" continuance. Id. § 3161(h)(7).

         For an "ends-of-justice" continuance, the district court must "set forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." Id. § 3161(h)(7)(A). Although the "substantive balancing underlying the decision" to grant an ends-of-justice continuance is "entrusted to the district court's sound discretion," United States v. Rice, 746 F.3d 1074, 1078 (D.C. Cir. 2014), the findings requirement imposes "procedural strictness," Zedner v. United States, 547 U.S. 489, 509 (2006). At the minimum, the district court's findings "must indicate that it 'seriously weighed the benefits of granting the continuance against the strong public and private interests served by speedy trials.'" Rice, 746 F.3d at 1078 (quoting United States v. Bryant, 523 F.3d 349, 361 (D.C. Cir. 2008)). Although the findings requirement does not call for "magic words" in weighing the competing interests, id. at 1079, mere reference to "some rough justice basis" is insufficient, United States v. Sanders, 485 F.3d 654, 659 (D.C. Cir. 2007). Similarly, mere "passing reference to the case's complexity" is insufficient, and a district court's failure to make the requisite finding means the delay is to be counted against the defendant's speedy-trial period. Zedner, 547 U.S. at 507.

         The court's review of Speedy Trial Act claims is de novo on questions of law and for clear error for factual findings. United States v. Lopesierra-Gutierrez, 708 F.3d 193, 202 (D.C. Cir. 2013).

         Florence's Speedy Trial Act clock began running on February 21, 2014, when she was arraigned on the initial indictment. The district court granted five ends-of-justice continuances in the period between her arraignment and the filing of the superseding indictment eighteen months later. Florence challenges the sufficiency of the district court's findings for the last three continuances, on June 16, July 22, and September 5. She maintains that the district court merely relied on the fact that the case was "complex" without properly acknowledging or weighing the countervailing interests of the defendant and the public. Our review is limited to those time periods. See Rice, 746 F.3d at 1077-78.

         Florence did not object to any of the continuances until July 1, 2015, when she moved to dismiss the superseding indictment. The district court denied the motion while acknowledging that for ends-of-justice continuances, it had to find on the record that "the interest[s] in that continuance outweigh the best interests of the public and the defendant in a speedy trial." Tr. 106 (July 31, 2015 AM). The district court found that the best interests of justice would be served by excluding the time periods "[g]iven the complexity of this case and the reasons stated in open court." Id. at 109.

         To appreciate the thoroughness with which the district court addressed the ends-of-justice continuances, it is worth noting that in granting the first such continuance, on March 7, 2014, the district court concluded the interests of justice outweighed "the interests of the parties and the public in a speedier trial" because the purpose of the continuance was to "permit defense counsel and the government time to both produce discovery and review discovery." Tr. 5 (Mar. 7, 2014 AM). The court thereby accounted for the nature of the alleged charges, including the complexity of discovery for a conspiracy lasting over five years in which Florence and Michael were alleged to have altered and created false documents in support of their claims for Medicaid reimbursement and in moving reimbursed funds in and out of multiple accounts. On April 24, and again on June 16, the district court concluded that the need for more time remained, referencing "the complexity of the case and the amount of discovery." Tr. 52 (June 16, 2014 AM). The district court granted a fourth continuance, with Florence's consent, on July 22, as counsel advised that they planned to engage in further meetings and discussions and assured the district court that they had been diligent in reviewing discovery and discussing the case. In granting the final ends-of-justice continuance, the district court noted that Florence was still "sitting in jail" and pressed the government to move quickly in procuring a superseding indictment, while also recognizing that the government still had to produce more documents to the defense. Succinctly, the district court stated, its "finding that this is a complex case continues to hold," Tr. 15 (Sept. 5, 2014 AM), and ruled that the Speedy Trial Act was tolled due to the "complex" nature of the case, id. at 22.

         The district court's findings on the record in support of the ends-of-justice continuances are similar to those in Rice and Lopesierra-Gutierrez that were held to satisfy the statutory findings requirement. In Rice, the district court justified granting the delay based on the "large number of defendants, the many hours of wiretaps to be transcribed and translated, and the absence of certain defendants still awaiting extradition." 746 F.3d at 1079. The district court took the defendants' interests into consideration by noting that the defense would not be in a position to adequately provide representation until the wiretaps were complete. In Lopesierra-Gutierrez, the district court justified the grant of the ends-of-justice continuance on the basis of "the complexity of the case, the nature of the prosecution, and that it would be unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established under the Act." 708 F.3d at 205. In both cases, the district court's conclusion that a continuance would give the defendant more time to review discovery and to prepare for trial demonstrated that the district court seriously weighed the defendant's interest. See Rice, 746 F.3d at 1079; Lopesierra-Gutierrez, 708 F.3d at 205.

         Similarly, in granting the first continuance, the district court found that due to the large volume of discovery underlying the charges in the initial indictment, a continuance would "permit defense counsel and the government time to both produce discovery and review discovery and evaluate the evidence against [Florence]." Tr. 5 (Mar. 7, 2014 AM). This finding shows the district court weighed Florence's interest by considering that a continuance would give her more time to prepare her defense. The allegations in the initial indictment spanned a period of six years, involving numerous submissions of Medicaid claims. Florence concedes that the district court's findings to support this continuance satisfy the statutory requirements. Appellants' Br. 37 n.18.

         Although "best practice" warrants contemporaneous, specific explanation by the district court, see Zedner, 547 U.S. at 507 n.7, and the district court often did so, in the circumstances here, the court does not understand the statute to require the district court to repeat all of the details of its findings on the record each time it grants an ends-of-justice continuance, particularly where the charged offenses indicate why discovery would be prolonged. Not only were the circumstances regarding discovery essentially unchanged when the district court granted ends-of-justice continuances, the district court expressly stated on June 16, 2014, that the parties were making arrangements for "the most expeditious way to get discovery into the hands of the defense counsel." Tr. 52 (June 16, 2014 AM). In granting the last challenged ends-of-justice continuance, the district court stated that its prior reason for granting an ends-of-justice continuance continued to apply because discovery was ongoing. Whatever ambiguity may reside in the Speedy Trial Act about when the district court must place its findings on the record, see Zedner, 547 U.S. at 506-07, we hold that the district court's consideration of the lengthy time needed for discovery and its impact on defense counsel's ability to prepare for trial demonstrates that the district court adequately weighed Florence's interests when considering the complexity of the case.

         The district court also adequately addressed the public interest. Florence concedes that the district court's statements in support of granting the first two continuances, which referenced the interests of "the public," satisfied the statutory requirements. Tr. 5 (Mar. 7, 2014 AM); Tr. 9 (Apr. 24, 2014 AM); Appellants' Br. 37 n.18. But she maintains that the district court's findings in support of the last three continuances were insufficient. Yet the district court's concern that adequate time was needed for the defense to review the documents produced in discovery and to prepare the defense was directly related to the public interest that trial not proceed prematurely. Florence consented to the next-to-last continuance, and in granting the final continuance, the district court referenced the fact that the underlying circumstances regarding discovery had not changed. When asked by this court during oral argument what rule was being sought, Florence's counsel responded that specific findings to support an ends-of-justice continuance would require the district court to state on the record something to the effect that "I've considered the interests of the public in a speedy trial in this case, and given the facts and circumstances of this case, the interests of the public outweigh the interests in a speedy trial." Oral Arg. 3:34-3:50. The words are slightly different, but the district court's on-the-record findings are to the same effect: considering the public interest in a speedy trial in light of affording defense counsel the opportunity to prepare a defense to a complex fraud involving $80 million in health care payments. Florence neither suggests her trial counsel should have proceeded to trial before discovery was completed nor challenges the district court's statement that the parties were arranging for the "most expeditious way to get discovery into the hands of defense counsel." Tr. 52 (June 16, 2014 AM). The combination of the district court's references to the public interest and the efficient use of resources suffice to show that the district court seriously weighed the public's interests.

         Therefore, Florence fails to show that the pretrial proceedings were delayed so as to ...

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