United States v. Bikundi
| Decision Date | 07 March 2016 |
| Docket Number | Criminal Case No. 14-030 (BAH) |
| Parties | UNITED STATES OF AMERICA, v. FLORENCE BIKUNDI, MICHAEL D. BIKUNDI, SR., Defendants. |
| Court | U.S. District Court — District of Columbia |
MEMORANDUM OPINION
Following their conviction at a jury trial of conspiring to defraud and defrauding the District of Columbia Medicaid program, in violation of 18 U.S.C. §§ 2, 1347 and 1349, and conspiring to engage in and engaging in the laundering of monetary instruments, in violation of 18 U.S.C. §§ 2, 1956(a)(1)(B)(i), 1956(h), the defendants Florence Bikundi and her spouse, Michael D. Bikundi, Sr. ("Michael Bikundi"), filed separately the pending motions for a judgment of acquittal or, alternatively, a new trial, under Federal Rules of Criminal Procedure 29(a) and 33(a), respectively. Michael Bikundi's Mot. New Trial ("Def. MB's R. 33 Mot."), ECF No. 391; Michael Bikundi's Renewed Mot. J. Acquittal ("Def. MB's R. 29 Mot."), ECF No. 392; Florence Bikundi's Renewed R. 29 Mot. J. Acquittal ("Def. FB's R. 29 Mot."), ECF No. 393; Florence Bikundi's Mot. New Trial ("Def. FB's R. 33 Mot."), ECF No. 394. The defendants also joined in each other's motions. See Minute Order (Dec. 15, 2016) (granting Florence Bikundi's motions, ECF Nos. 395, 396, to join and adopt Michael Bikundi's motions); Minute Order (Jan. 6, 2016) (granting Michael Bikundi's motion, ECF No. 412, to join and adopt Florence Bikundi's motions). For the reasons set forth below, the defendants' four motions are denied.
Ten months after the original indictment was returned against only defendant Florence Bikundi, Indictment, ECF No. 1, the government filed a multi-count Superseding Indictment against Florence Bikundi, her spouse and co-defendant at trial, Michael Bikundi, and seven additional co-defendants, Superseding Indictment, ECF No. 44.1 Both Florence and Michael Bikundi were charged in thirteen counts, with, from about August 2009 to about February 2014, conspiring to commit health care fraud and committing health care fraud by, inter alia, submitting and causing to be submitted false and fraudulent claims for payment to the D.C. Medicaid program, in violation of 18 U.S.C. §§ 2, 1347, 1349, id. ¶¶ 67-75 (Counts One and Two); conspiring to commit money laundering and committing money laundering to conceal proceeds illegally derived from the health care fraud, in violation of 18 U.S.C. §§ 2, 1956(a)(1)(B)(i), 1956(h), id. ¶¶ 83-89 (Counts Fifteen through Twenty-Two); and engaging in monetary transactions with proceeds illegally derived from the health care fraud, in violation of 18 U.S.C. §§ 2, 1957, id. ¶¶ 90-91 (Counts Twenty-Three through Twenty-Five).
Defendant Florence Bikundi was also charged separately in two counts with committing health care fraud by concealing her exclusion from participation in all federal health care programs and making other false and fraudulent representations to obtain payments from the D.C. Medicaid program, in violation of 18 U.S.C. §§ 2, 1347, and 42 U.S.C. § 1320a-7b(a)(3).Id. ¶¶ 78-82 (Counts Thirteen and Fourteen, respectively). The latter two charges were based on allegations that Florence Bikundi, a former licensed practical nurse, id. ¶¶ 36, 38, was excluded in April 2000 by the United States Department of Health and Human Services Office of Inspector General ("HHS-OIG") from participating in all federal health care programs, and thereby "prohibited . . . from submitting or causing the submission of claims to, and receiving funds from, Federal health care programs such as Medicaid," id. ¶ 45. Despite her exclusion, Florence Bikundi allegedly "was a director, administrator, officer, and primary owner/stockholder of" Flo-Diamond, Inc. ("Flo-Diamond") and Global Healthcare, Inc. ("Global"), which between July 2007 and December 2014, received over $78 million in payments from Medicaid programs. Id. ¶ 20.2
Following extensive motions practice, the case proceeded to trial against Florence and Michael Bikundi on October 13, 2015.3 Over the course of the month-long trial, the jury waspresented with over three hundred exhibits and heard from forty witnesses, three of whom were called by the defendants.4 Among the witnesses were local and federal officials responsible for administering federal health care programs, the D.C. Medicaid program, and the licensing of home care agencies ("HCAs") and nurses; cooperating witnesses and co-defendants, who were formerly employed at Global, which was owned and managed by Florence and Michael Bikundi; beneficiaries of the D.C. Medicaid program, who received personal care services through Global and admitted to receiving regular kickback payments from Global employees to certify timesheets of personal care aids ("PCAs") that falsely indicated the number of hours worked by the PCAs; and Special Agents of the various law enforcement agencies that participated in the execution of search warrants on Global's office and defendants' homes and the analysis of seized records. The voluminous trial evidence is only briefly summarized below as necessary to assess the defendants' pending motions challenging the sufficiency of the evidence and provide context for review of the challenged rulings before and during trial.
Medicaid is a health insurance program administered at the federal level by the Centers for Medicare and Medicaid Services, an agency within HHS, and by each individual state. TrialTr. ("Tr.") (Oct. 15, 2015 PM) at 96-97 (Test. of Donald Shearer), ECF No. 309.5 In the District of Columbia, D.C. Medicaid is jointly funded by the federal and District of Columbia governments and administered by the D.C. Department of Health Care Finance ("DHCF"). Id. at 69; Tr. (Oct. 15, 2015 AM) at 4-5 (Shearer), ECF No. 310; Tr. (Nov. 4, 2015 PM) at 37 (Test. of Paul Toulouse), ECF No. 345. D.C. Medicaid provides health insurance coverage to beneficiaries, who are D.C. residents with incomes that fall below a certain financial threshold. Tr. (Oct. 15, 2015 AM) at 5 (Shearer), ECF No. 310. D.C. Medicaid is a "'health care benefit program' as defined in 18 U.S.C. § 24(b)," Superseding Indictment ¶ 1, and a "'Federal health care program' as defined in 42 USC § 1320a-7b(f)," id. See Tr. (Oct. 15, 2015 AM) at 5-6 (Shearer), ECF No. 310.
D.C.'s Department of Health ("DOH"), Health Regulation and Licensing Authority ("HRLA") licenses HCAs in the District of Columbia to provide home care services, including personal care services, to D.C. Medicaid beneficiaries. Id. at 12-13; Tr. (Oct. 16, 2015 AM) at 46 (Test. of Sharon Mebane), ECF No. 311. To become licensed, an HCA must submit a provider enrollment application and an executed provider agreement to HRLA to obtain a unique D.C. Medicaid provider number as an identifier for billing purposes. See Tr. (Oct. 15, 2015 AM) at 6-14, 22-24 (Shearer), ECF No. 310; Tr. (Oct. 15, 2015 PM) at 5-8 (Shearer), ECF No. 309. As part of the review of the application, DHCF checks that no individual holding a five percent or greater ownership with the applicant company has been excluded from participation in any federal health care program by comparing the names of affiliated individuals to an "Exclusion List" maintained by HHS-OIG. Tr. (Oct. 15, 2015 AM) at 7-10 (Shearer). Licensed HCAs aresubject to audits or annual licensure surveys to ensure that the company is operating within the rules and regulations of the District. Id. at 18; Tr. (Oct. 16, 2015 AM) at 46, 49-50 (Mebane), ECF No. 311.
PCAs employed by HCAs assist D.C. Medicaid beneficiaries in performing activities of daily living ("ADLs"), which are defined to include the ability to get in and out of bed, bathe, dress, eat, take medication prescribed for self-administration, and engage in toileting. Tr. (Oct. 15, 2015 AM) at 14, 18 (Shearer), ECF No. 310. To qualify for personal care services covered by D.C. Medicaid, a beneficiary must obtain a prescription from a licensed physician who has determined after a physical examination that the beneficiary has functional limitations in one or more ADLs, and that the medical, nursing, and social needs of the beneficiary could be adequately and safely met in the beneficiary's home. Id. at 17; Tr. (Oct. 16, 2015 AM) at 47 (Mebane), ECF No. 311. The prescription is then presented by the beneficiary to an HCA, which assigns a PCA to the beneficiary and arranges for a registered nurse to conduct an assessment of the beneficiary's functional status and needs in order to prepare a plan of care ("POC") that is tailored to address the individual needs of the beneficiary. Tr. (Oct. 15, 2015 AM) at 16-17 (Shearer), ECF No. 310; Tr. (Oct. 16, 2015 AM) at 47-48 (Mebane), ECF No. 311. Approval of the POC by a physician or advanced practice registered nurse is supposed to occur within thirty days after the start of personal care services being provided and must be recertified by the prescribing physician or advanced practice registered nurse at least once every six months thereafter. See Tr. (Oct. 15, 2015 PM) at 12, 16-19 (Shearer), ECF No. 309; see also Tr. (Oct. 21, 2015 AM) at 123 (Test. of Elvis Atabe), ECF No. 318; Tr. (Oct. 16, 2015 PM) at 81 (Test. of James Mbide), ECF No. 312. Generally, at least once every 30 days, a nurse is required to visit the patient at home to determine if the patient is receiving the requisite services and to conferwith the PCA to ensure that the required services are delivered competently. Tr. (Oct. 16, 2015 AM) at 48 (Mebane), ECF No. 311.
The PCAs providing personal care services to D.C. Medicaid beneficiaries in the beneficiary's home are required to document the services provided and the amount of time spent with the beneficiary on a timesheet submitted to the HCA. Tr. (Oct. 15, 2015 AM) at 14 (Shearer), ECF No. 310. The timesheet is required to be signed by both the PCA and the beneficiary to certify that personal care services were...
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