United States v. Bikundi

• Decision Date: 12 November 2014
• Docket Number: Criminal Case No. 14–030 BAH
• Citation: 73 F.Supp.3d 51
• Parties: United States of America v. Florence Bikundi, Defendant.
• Court: U.S. District Court — District of Columbia

73 F.Supp.3d 51

United States of America

v.Florence Bikundi, Defendant.

Criminal Case No. 14–030 BAH

United States District Court, District of Columbia.

Signed November 12, 2014

Michelle A. Zamarin, Theodore L. Radway, Anthony D. Saler, Dangkhoa T. Nguyen, United States Attorney's Office, Lionel Andre, Michael Justin Friedman, U.S. Department of Justice, Washington, DC, for United States of America.

Danny C. Onorato, Stuart Alexander Sears, Schertler & Onorato LLP, William R. Martin, Kerry Brainard Verdi, Sasha Elizabeth H.W. Battle, Martin & Gitner, PLLC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Pending before the Court is a renewed motion filed by the defendant, Florence Bikundi, to revoke the pre-trial detention order entered first by a Magistrate Judge and, following de novo review, by this Court, to impose conditions of release, pursuant to 18 U.S.C. § 3142. Def.'s Renewed Mot. Reconsid. Ord. Detention and Impose Conditions of Release (“Def.'s Mot.”) at 1, ECF No. 30. For the reasons set forth below, this motion is denied.

I. BACKGROUND

The facts of this case are explained in detail in this Court's previous Memorandum Opinion regarding the defendant's first motion for reconsideration of the detention order, see United States v. Bikundi, No. 14–030, 47 F.Supp.3d 131, 132–33, 2014 WL 2761209, at *1 (D.D.C. June 18, 2014), and thus will be only briefly repeated here before addressing the events that have occurred since the entry of that Order. Defendant Florence Bikundi was indicted on February 19, 2014, for one count of health care fraud, in violation of 18 U.S.C. § 1347 ; one count of Medicaid fraud, in violation of 42 U.S.C. § 1320a–7b(a)(3) ; four counts of laundering monetary instruments, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) ; and three counts of engaging in monetary transaction with monies derived from the specified unlawful activities of health care and Medicaid fraud, in violation of 18 U.S.C. § 1957. Indictment ¶¶ 56–65, ECF No. 1.

According to the allegations in the Indictment, the defendant engaged in a massive fraud spanning almost seven years, from January 2008 until her arrest in 2014, to conceal her exclusion from participation in federal health care programs by using fraudulent forms and thereby obtain unauthorized Medicaid payments totaling over $75,000,000. See generally Indictment.

Following her arrest on February 21, 2014, the defendant was ordered temporarily detained, at the government's request, by a Magistrate Judge. Minute Entry, Feb. 21, 2014. The government subsequently filed a Motion for Pretrial Detention of the defendant, pursuant to 18 U.S.C. §§ 3142(d)(1)(B), (e)(1), and (f)(2)(A), “because defendant Bikundi poses a serious flight risk and there is no release condition or combination of conditions that will reasonably assure her appearance in court as required.” Gov't Mot. for Pretrial Detention at 1, ECF No. 8. The defendant did not oppose this motion and was, consequently, ordered by the Magistrate Judge to be held without bond pending trial. Minute Entry, Feb. 25, 2014.

The defendant thereafter, on May 28, 2014, filed a Motion for Reconsideration of the Magistrate Judge's detention order.See Def.'s Mot. Reconsid. Detention of Def. Florence Bikundi at 1, ECF No. 18. After a hearing on the motion on June 16, 2014, the Court issued an oral ruling denying the defendant's motion without prejudice. See Minute Entry, June 16, 2014. A Memorandum Opinion setting forth the basis of that ruling in further detail was issued on June 18, 2014. See generally Bikundi, 47 F.Supp.3d 131, 2014 WL 2761209.

The defendant and government counsel have, since June, engaged in “four months of ongoing discovery, pre-trial motion preparation and trial preparation.” Def.'s Mem. Supp. Def.'s Mot. (“Def.'s Mem.”) at 1, ECF No. 30–1. Although the government indicated it would be filing a superseding indictment—and reiterated its commitment to do so at both hearings on the instant motion—no such indictment has yet been filed, due in part to ongoing plea negotiations. See Gov't's Opp'n Def.'s Mot. (“Gov't's Opp'n.”) at 3, ECF No. 31.

On October 28, 2014, the defendant filed the instant renewed motion for reconsideration, and the Court heard brief argument regarding the motion at a status conference held on October 31, 2014. At the October 31 hearing, the government was granted additional time in which to file any additional evidence or information in support of its contention that no combination of conditions exist that provide a reasonable assurance that the defendant will appear for further hearings and trial. See Gov't's Suppl. Mem. Opp'n Def. Florence Bikundi's Renewed Mot. Reconsider (“Gov't's Suppl. Mem.”) at 1, ECF No. 32. The Court heard further argument at a hearing on the defendant's Motion held November 6, 2014, after which decision on the Motion was reserved.

The following constitutes the finding of facts and statement of reasons required by 18 U.S.C. § 3142(i)(1). See United States v. Nwokoro, 651 F.3d 108, 109 (D.C.Cir.2011) (noting that Bail Reform Act requires pretrial detention order be supported by “a clear and legally sufficient basis for the court's determination” in written findings of fact and a written statement of the reasons for the detention or in “the transcription of a detention hearing”) (quoting United States v. Peralta, 849 F.2d 625, 626 (D.C.Cir.1988) ) (per curiam).

II. LEGAL STANDARD

A motion under 18 U.S.C. § 3145(b) for review of a Magistrate Judge's detention order requires that the Court review de novo whether conditions of release exist that “will reasonably assure the defendant's appearance in court or the safety of any other person or the community.” United States v. Hassanshahi, 989 F.Supp.2d 110, 113 (D.D.C.2013) (citing 18 U.S.C. § 3142(e)(1) ). “ ‘The Court is free to use in its analysis any evidence or reasons relied on by the magistrate judge, but it may also hear additional evidence and rely on its own reasons.’ ” United States v. Hubbard, 962 F.Supp.2d 212, 215 (D.D.C.2013) (quoting United States v. Sheffield, 799 F.Supp.2d 18, 20 (D.D.C.2011) ); see also United States v. Hitselberger, 909 F.Supp.2d 4, 7 (D.D.C.2012).

The Bail Reform Act requires release of a defendant prior to trial unless a judicial officer determines, after a hearing, that “no condition or combination of conditions will reasonably assure the appearance of the person[.]” 18 U.S.C. § 3142(e)(1). In determining whether any conditions of release will reasonably assure the appearance of the person as required, the court must “take into account the available information concerning” four factors set out in 18 U.S.C. § 3142(g). These factors are:

“(1) the nature and circumstances of the offense charged, ...;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including ... the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and ...;

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.”

18 U.S.C. § 3142(g).

The government is required to demonstrate the appropriateness of pretrial detention because the defendant poses a risk of flight “by a preponderance of the evidence.” See United States v. Simpkins, 826 F.2d 94, 96 (D.C.Cir.1987) ; United States v. Vortis, 785 F.2d 327, 329 (D.C.Cir.1986). “That preponderance must, of course, go to the ultimate issue: that no combination of conditions—either those set out in the Bail Reform Act itself or any others that the magistrate or judge might find useful—can ‘reasonably’ assure that the defendant will appear for trial.” United States v. Xulam, 84 F.3d 441, 442 (D.C.Cir.1996) (citing 18 U.S.C. § 3142(c) ).

A court may reconsider its decision regarding pretrial detention “at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time and that has a material bearing on the issue” of whether there exist conditions for release that would “reasonably assure the appearance of such person as required.” 18 U.S.C. § 3142(f)(2)(B) ; accord United States v. Moore, No. 13–330, 2014 WL 1273439, at *1 (D.D.C. Mar. 31, 2014).

III. DISCUSSION

At the outset, the defendant does not allege that there is any new information “that was not known to [her] at the time” of the initial hearing on pretrial detention or the subsequent reconsideration hearing in this Court. See generally Def.'s Mem. Aside from the passage of time, the defendant does not assert that anything of any substance has occurred since the defendant's last motion. As the D.C. Circuit has noted, the mere passage of time, without a substantial change in the “underlying reasons for this court's prior decisions” regarding pretrial detention is generally not sufficient to warrant reconsiderations, particularly where, as here, a trial date has been set in the near future. See United States v. Ali, 534 Fed.Appx. 1, 2 (D.C.Cir.2013) (per curiam).¹ To be sure, the fact that the defendant, who is presumed innocent, has now been held for nearly nine months pending trial is troubling. No significant change in circumstances has occurred, however, since the Court last ruled on this issue such that reconsideration is warranted. See id. An evaluation of each of the four factors, under 18 U.S.C. § 3142(g), that must be considered in determining whether pretrial detention is warranted is set out below.

A. Nature and Circumstances of the Charged Offenses

With respect to the nature and circumstances of the offense, the Indictment alleges that the defendant engaged in a massive fraud in which she and organizations she operated obtained over $75,000,000 in funds from the Medicaid program. See generally I...