United States v. Bikundi
| Decision Date | 04 August 2021 |
| Docket Number | CRIMINAL 14-30-2 (BAH) |
| Parties | UNITED STATES OF AMERICA, v. MICHAEL D. BIKUNDI, SR., Defendant. |
| Court | U.S. District Court — District of Columbia |
For his role in a massive and long-running Medicaid fraud, defendant Michael D. Bikundi, Sr. was found guilty by a jury of ten counts of fraud, money laundering, and conspiracy. Michael Bikundi Judgment (“Judgment”) at 1-2, ECF No 542. His sentence included forfeiture of tainted proceeds periods of incarceration and supervised release, and restitution in the amount of $80, 620, 929.20 to be paid jointly and severally with his coconspirators. Judgment at 7-9. Defendant, who is not a U.S. citizen, was instructed, as a condition of supervised release, to “comply with the Bureau of Immigration and Customs Enforcement's immigration process, ” and the Probation Office was directed to submit the presentence investigation report and judgment to the Bureau of Immigration and Customs Enforcement “to facilitate any deportation proceedings.” Judgment at 6. Defendant remains in this country, however despite perpetrating a massive fraud scheme. See 8 U.S.C § 1227(a)(2)(A)(iii) (); Id. § 1101(a)(43)(M) (defining “aggravated felony” include an offense “involv[ing] fraud or deceit in which the loss to the victim or victims exceeds $10, 000”).
Pending before the Court is defendant's petition for writ of coram nobis, in which he asks to be relieved of his “extraordinary restitution” obligation. Def.'s Pet. for Writ of Coram Nobis (“Def.'s Pet.”) at 9, ECF No. 661.[1] Defendant argues that his trial, post-conviction, and appellate counsel, attorney Steven Kiersh, was ineffective because Kiersh failed to argue that defendant had a lesser role in the fraud than defendant's wife and co-defendant, Florence Bikundi, Def.'s Pet. at 11-13. In opposing defendant's petition, the government argues that defendant should have raised his claims under 18 U.S.C. § 2255 and, on the merits of the petition, that the “record belies the defendant's specific claims of deficiency” of counsel. Gov't's Opp'n to Def.'s Pet. for Writ of Coram Nobis (“Gov't's Opp'n”) at 2, ECF No. 675. Regardless of whether coram nobis is the correct vehicle for defendant's claim, it fails on the merits. For the reasons set forth below, defendant's petition is denied.
The full factual and extensive procedural background for this case has been set out in prior decisions of this Court and the D.C. Circuit. See generally United States v. Bikundi (Bikundi III), Case No. 14-cr-30-2 (BAH), 2020 WL 3129018 (D.D.C. June 12, 2020) (); United States v. Bikundi (Bikundi II), 926 F.3d 761 (D.C. Cir. 2019) (affirming defendant's conviction and sentence); United States v. Bikundi (Bikundi I), Case No. 14-cr-30 (BAH), 2016 WL 912169 (D.D.C. Mar. 7, 2016) (denying defendant's motions for acquittal notwithstanding the verdict and for a new trial). Only the facts and procedural background most relevant to the pending petition are described below.
Defendant was indicted in December 2014 on thirteen counts of a 27-count, 9-defendant indictment alleging expansive health care fraud and money laundering activities, see generally Superseding Indictment, ECF No. 44, and was tried jointly with his wife, Florence Bikundi, Bikundi I, 2016 WL 912169, at *45. At trial, defendant's counsel repeatedly argued that the evidence against defendant and Florence Bikundi was dissimilar and reminded the jury that “even though two people are being . . . tried together, it's really two separate trials, ” Trial Tr. (Nov. 10, 2015 AM) at 9:5-7, ECF No. 377, and that some of the allegations and “much of the evidence did not apply to Michael Bikundi, ” id. at 9:17-18. At the conclusion of a month-long trial, the jury found defendant guilty on ten counts and not guilty on the other three. Judgment at 1-2.[2] Defendant was sentenced to ten concurrent terms of 84 months' imprisonment to be followed by 36 months' supervised release, id at 3-4, and ordered to pay $80, 620, 929.20 in restitution, jointly and severally with his co-conspirators, id. at 9.
Defendant's counsel filed a motion for acquittal notwithstanding the verdict and a motion for new trial, arguing in part that “the disparity of evidence between [defendant and Florence Bikundi] was overwhelming and created a spillover effect” on to defendant. Def.'s Mem. Supp. Mot. New Trial (“Def.'s New Trial Mem.”) at 47, ECF No. 391. Both motions were denied in full. Bikundi I, 2016 WL 912169, at *49-50. On appeal, defense counsel argued that defendant was “enormously prejudiced by joinder with Florence Bikundi, ” Defs.-Appellants Joint Reply Br. at 27, Bikundi II, 926 F.3d 761 (No. 16-3066), and that the restitution amount was improper because the “government has never asserted, much less proved, that [defendant] participated in” all the same fraudulent activities as Florence Bikundi, id. at 38. The D.C. Circuit affirmed defendant's conviction and sentence in all respects. Id. at 801.
In the early weeks of the COVID-19 pandemic, defendant petitioned for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) due to his particular susceptibility to COVID-19. Bikundi III, 2020 WL 3129018 at *1.[3] This motion was granted, and defendant was released 47 months into his 84-month term of incarceration. Id. at *2, 5. Shortly after transitioning to supervised release, the Probation Office recommended that defendant's restitution payments be suspended, Probation Pet., ECF No. 674 (sealed), and the Court suspended defendant's monthly restitution payment obligation “until the probation office determines he has the ability to pay, ” Min. Order (Apr. 30, 2021). Defendant also filed the pending petition for a writ of coram nobis, which is now ripe for resolution. See Gov't's Opp'n; Def.'s Reply Supp. Pet. for Writ of Coram Nobis (“Def.'s Reply”), ECF No. 676.
An “extension of the original proceeding, ” a petition for a writ of coram nobis is “an extraordinary tool” allowing a trial court to correct a “legal or factual error.” United States v. Denedo, 556 U.S. 904, 912-13 (2009); see also Baxter v. Claytor, 652 F.2d 181, 184 (D.C. Cir. 1981) (). The writ provides a way “‘to collaterally attack a criminal conviction for a person . . . who is no longer “in custody” and therefore cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241, '” United States v. Newman, 805 F.3d 1143, 1146 (D.C. Cir. 2015) (quoting Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013)).[4] The authority to grant a writ of coram nobis is “conferred by the All Writs Act, which permits ‘courts established by Act of Congress' to issue ‘all writs necessary or appropriate in aid of their respective jurisdictions.'” Denedo, 556 U.S. at 911 (quoting 28 U.S.C. § 1651(a)).
Although “the precise contours of coram nobis have not been well defined, ” id. at 910 (internal quotation marks omitted), and “the D.C. Circuit's precedent in this area is thin, ” United States v. Williams, 630 F.Supp.2d 28, 32 (D.D.C. 2009), the Supreme Court has identified three key factors to guide a district court's consideration of coram nobis relief: (1) “no other remedy [is] available;” (2) the error is “of the most fundamental character;” and (3) “sound reasons exist[] for failure to seek appropriate relief earlier, ” United States v. Morgan, 346 U.S. 503, 512 (1953). Petitioners must also establish (4) that “adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III.” United States v. Verrusio, Case No. 09-cr-64 (BAH), 2017 WL 1437055, at *9 (D.D.C. Apr. 21, 2017) (quoting United States v. Faison, 956 F.Supp.2d 267, 269 (D.D.C. 2013)); see also United States v. Lee, 84 F.Supp.3d 7, 9 (D.D.C. 2015) (); accord United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007); Bereano v. United States, 706 F.3d 568, 576 (4th Cir. 2013); Klein v. United States, 880 F.2d 250, 254 (10th Cir. 1989); see also United States v. Rutigliano, 887 F.3d 98, 108 (2d Cir. 2018) (); cf. Newman, 805 F.3d at 1146 ().
Defendant argues that his petition “satisfies the four-part [Hansen] analysis that is required by this district for Writ of Coram Nobis to be an appropriate means of relief.” Def.'s Pet. at 9. The government argues that defendant fails on...
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