U.S. v. Bahna, M 05-2537M-VBK.

• Decision Date: 20 December 2005
• Docket Number: No. M 05-2537M-VBK.,M 05-2537M-VBK.
• Citation: 413 F.Supp.2d 1095
• Parties: U.S. v. Hanny Fouad BAHNA.
• Court: U.S. District Court — Central District of California

Page 1095

413 F.Supp.2d 1095

U.S. v. Hanny Fouad BAHNA.

No. M 05-2537M-VBK.

United States District Court, C.D. California.

December 20, 2005.

Michael Proctor, Los Angeles, CA, for Defendant.

Proceedings: DECISION RE: DEFENDANT'S MOTION TO DISMISS COMPLAINT

KENTON, United States Magistrate Judge.

On December 15, 2005, United States Magistrate Judge Paul L. Abrams signed a Complaint charging Defendant Hanny Fouad Bahna ("Hanny") with a violation of 18 U.S.C. § 371 (conspiracy), and issued a warrant for Hanny's arrest. Hanny made her initial appearance following her arrest before United States Magistrate Judge Victor B. Kenton on December 16, 2005. At that time, at the request of Hanny's counsel, the detention hearing [the Government moved for detention] was continued to December 20, 2005 at 3:00 p.m., Hanny was temporarily detained pending this hearing. Hanny's counsel reserved his right to move to dismiss the Complaint for failure of probable cause, and the Court ordered that Hanny's motion be filed by December 19, 2005 and the Government's opposition by December 20, 2005. The Court has now received Hanny's Memorandum of Points and Authorities re: Probable Cause, and the Government's Opposition to Hanny's Motion to Dismiss the Complaint.

F.R.Crim.P 4(a) requires that a criminal complaint and supporting affidavit set forth "probable cause to believe an offense has been committed and that the defendant has committed it." Hanny now moves to dismiss the Complaint based on lack of probable cause. Although Hanny cites authority pertaining to warrantless arrests (see Memorandum at 3), the Government has addressed Hanny's arguments on the merits.¹

Since the pending Motion will be decided based on the "four corners" of the Complaint and Affidavit, the Court will summarize the allegations contained in those documents.

The Complaint charges Hanny with a violation of 18 U.S.C. § 371, alleging that from October 12, 2005 to the present, Hanny and others known and unknown conspired and agreed to knowingly and intentionally harbor a fugitive, Mandouh S. Bahna. The accompanying Affidavit² indicates that Mandouh S. Bahna, M.D. ("Bahna") was indicted in this District on October 11, 2005 for conspiracy to commit health care fraud and 14 counts of health care fraud. (¶ 4.) An Arrest Warrant was issued for Bahna on October 11, 2005. (¶ 6.) Bahna had made arrangements through his counsel to self-surrender on the Arrest Warrant on October 12, 2005, but failed to appear. (¶¶ 7, 8.) On October 12, 2005, agents went to Bahna's residence to look for him, and spoke with Bahna's adult son, Michael. Agents informed Michael that they had an Arrest Warrant for Bahna, and searched the residence, but were unable to find him. (¶ 9.) Also on October 12, 2005, agents went to Bahna's business office to search for him, and informed Bahna's biller, Doina Florescu ("Doina") that they had an Arrest Warrant for Bahna. (¶ 10.) On October 12, 2005, agents again returned to Bahna's house, searching for him (¶ 11), and again went to his business office. (¶ 12.) Both searches were unsuccessful. While at the business office, agents telephoned Hanny, Bahna's wife, and told her that an Arrest Warrant had been issued for Bahna. (Id.) On that same date, the AUSA received a telephone call from attorney Michael Proctor indicating that he had been hired to represent Hanny, and all of Bahna's adult children in connection with the Government's efforts to find Bahna. (¶ 13.)

On December 2, 2005, agents learned that Bahna had visited a physician on October 3, 2005, and that health insurance documents had been submitted. These documents reflected that Bahna visited the physician for complaints related to chest pain, and that the physician prescribed three medications, Lipitor, Ambien, and Plavix, which were filled on November 9, 2005, about a month after Bahna failed to self-surrender. (¶ 14.) On December 2, 2005, agents spoke with a pharmacist who told them that he had filled a prescription on November 9, 2005 for these drugs, and that one of his employees walked the medications over to Bahna's office and left it with "Maria" and Doina. A refill had been called in on November 28, 2005, but had been denied because of insurance policy requirements. (¶ 15.) On December 14, the pharmacist called the case agent to indicate that Doina had called the pharmacy to have Bahna's prescriptions for the three medications refilled that afternoon. (¶ 16.) On December 14, 2005, at approximately 4:15 p.m., agents saw a silver BMW in the parking lot at Bahna's business office. Hanny had been observed driving this vehicle in the past. (¶ 17.) Agents confirmed that Bahna's prescription had been filled on that date and dropped at his business office. (¶ 18.) Agents observed Hanny leaving the parking lot, and they surveilled her as she drove home to Bahna's residence. (¶ 20.) The Assistant United States Attorney ("AUSA") spoke with Doina's attorney and learned that on December 14, 2005, Hanny came to Bahna's business office and asked Doina to order Bahna's "heart medications" from the pharmacy which Doina did. After the pharmacy employee dropped the medications off, Hanny took the prescriptions and left the office. (¶ 21.)

The Government obtained a search warrant for Hanny and Bahna's residence on December 14, 2005. (¶ 22.) That evening, the Search Warrant was executed, and the following items were located at the residence:

1. Three empty prescription bottles dated December 14, 2005 for the three medications were located in a trash can in the kitchen;

2. On a table in the downstairs hallway were three plastic sandwich bags, each filled with pills, labeled "Plavix" and "Lipitor." The Plavix bag and a third unlabeled bag were located within the "Lipitor" bag. Also in that bag was an American Advantage credit card in the name of "M. S. Bahna" with an expiration date of 12/31/08;

3. On that same table was a letter that instructs the recipient to notarize two marriage certificates and send them to the Egyptian Embassy in "S.F."; renew the passport if it is not valid; and have the original birth certificates for "the three kids" and have them translated into Arabic. The letter instructed the recipient to mail all of these items to an address written in a foreign language and further instructed the recipient to "Delete your e-mail coming from me as soon as you read it. Just respond as a new document. Keep notes for yourself on a piece of paper if you need to." The letter states in a final paragraph, "I miss you a lot. What do you think about coming to Cairo or going to Greece. Once I am here, I will need to go to New Zealand from here. My love and greetings to Mom."

4. Finally, on the same table, was a document from the First Caribbean International Bank (Cayman) Limited dated November 22, 2005 reflecting a money wire transfer of $25,000 (U.S.dollars) to Dr. Mandouh Bahna in Cairo, Egypt. (¶ 23.)

ANALYSIS

According to Ninth Circuit Model Jury Instructions 8.16, conspiracy has the following elements:

1. An agreement between two or more persons to commit at least one crime;

2. That the defendant became a member of the conspiracy knowing its object and intending to help accomplish it; and

3. One of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy.

In this case, the underlying crime alleged is the offense set forth under 18 U.S.C. § 1071, which provides, in pertinent part as follows:

"Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be [punished]."

The elements of proof under 18 U.S.C. § 1071 are, therefore, the following:

1. That a federal warrant had been issued for the fugitive's arrest;

2. That the defendant had knowledge that a federal warrant had been issued;

3. That the defendant harbored or concealed the fugitive;

4. That by such actions the defendant intended to prevent the fugitive's discovery or arrest.

(See United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir.1988)).

Hanny first contends that there can be no support for a conspiracy charge because there is no evidence that Hanny conspired with another person to take part in any criminal conspiracy. The Court rejects that argument, finding that there is sufficient evidence in the Affidavit that Doing Florescu, who had been specifically advised by agents of the existence of an Arrest Warrant for Bahna, complied with Hanny's request to her to order Bahna's medications, received these medications from the pharmacy, and then, on December 14, 2005, provided them to Hanny at the business office. The more fundamental question presented by Hanny's Motion is whether the Complaint and Affidavit supply probable cause to make out a violation of conspiracy to violate 18 U.S.C. § 1071. The Government argues that probable cause is demonstrated by the acts of Doina and Hanny in filling Bahna's prescription medications on two occasions. (See Government's Opposition at 3.) The Government points to two occasions on which the pharmacy delivered these prescriptions to Bahna's business office: November 9, 2005 and December 14, 2005. There is no apparent evidence in the Affidavit that Hanny had any involvement in the November 9, 2005 prescription. In any event the Government also points out that Hanny repackaged the medication "in a manner consistent with mailing the medication" and then "added to the package a credit card in [Bahna's] name." (Government's Opposition at 3-4.) The Government also notes that in close physical proximity to these repackaged drugs and the credit card there was a receipt for the November 22, 2005 money wire transfer from the First Caribbean International Bank (Cayman) Limited to...