United States v. Bikundi ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Criminal Case No. 14-030 (BAH)
v. Judge Beryl A. Howell
FLORENCE BIKUNDI,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is a motion filed by the defendant, Florence Bikundi, to revoke
the pre-trial detention order of a Magistrate Judge and to release the defendant into the High
Intensity Supervision Program pending trial. Def.’s Mem. Supp. Def.’s Mot. Reconsid.
Detention Def. Florence Bikundi (“Def.’s Mem.”) at 1, ECF No. 18-1. For the reasons set forth
below, this motion is denied.
I. BACKGROUND
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
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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 Magistrate Judge Alan Kay. 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, pursuant to 18 U.S.C. § 3142, Def.’s Mot. Reconsid.
Detention Def. Florence Bikundi (“Def.’s Mot.”) at 1, ECF No. 18, and consented to scheduling
a detention hearing on June 13, 2014, 1 see Minute Entry, May 29, 2014. The government has
filed a memorandum in opposition. Gov’t Mem. Opp’n Mot. Def.’s Mot. (“Gov’t Opp’n”),
ECF No. 20. The Court held a hearing on the motion on June 16, 2014, at the conclusion of
which the Court issued an oral ruling denying the defendant’s motion. See Minute Entry, June
16, 2014. This Memorandum Opinion sets forth in further detail the basis for the Court’s ruling.
See 18 U.S.C. § 3142(i)(1) (requiring that detention order “include written findings of fact and a
written statement of the reasons for the detention”); see also United States v. Nwokoro, 651 F.3d
108, 109 (D.C. Cir. 2011) (noting that Bail Reform Act requires pretrial detention order be
1
At the defendants’ request, the June 13, 2014 hearing was continued until June 16, 2014 to allow counsel an
opportunity to review certain documents provided by the government.
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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, No. 13-274, 2013 WL 5916783, at *2 (D.D.C. Nov. 5, 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
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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)).
III. DISCUSSION
The Court sets out below 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 here.
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 Indictment. These are
serious felony offenses and, if convicted, the defendant faces a substantial period of
incarceration. For example, if the defendant is convicted of the charged offenses, she would face
up to twenty years’ incarceration on the money laundering counts, under 18 U.S.C. §
1956(a)(1)(B)(i). Conviction of the charged offenses would also result in a substantial advisory
sentencing Guideline range under the U.S. Sentencing Commission Guidelines Manual
(“U.S.S.G.”). Specifically, assuming, arguendo, that the defendant has a Criminal History
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Category I, 2 her total offense level, absent any departures or mitigating circumstances, may reach
thirty-five, see U.S.S.G. §§ 2S1.1(a)(1); 2B1.1(a)(1), (b)(1)(M), (b)(7)(iii) (using a base offense
level seven, plus twenty-four levels for the amount of the loss plus four levels for the amount of
loss to the government for health care fraud), resulting in an advisory guideline range of 168 to
210 months’ incarceration on the money laundering counts, see U.S.S.G. Sentencing Table, Zone
D, which carry the highest statutory maximum penalty. This considerable punishment gives the
defendant “a substantial incentive to flee the United States.” United States v. Vo, 978 F. Supp.
2d 41, 43 (D.D.C. 2013) (finding detention appropriate for defendant facing stiff penalties for
bribery and visa fraud); United States v. Ali, 793 F. Supp. 2d 386, 391 (D.D.C. 2011) (denying
release pending trial and noting lengthy sentence that would accompany conviction was factor
that increased flight risk of defendant); see also United States v. Dupree, 833 F. Supp. 2d 241,
253–54 (E.D.N.Y. 2011) (finding, in context of due process challenge to pretrial detention, bank
fraud involving “millions of dollars” to be “serious charges” such that pretrial release not
warranted).
Moreover, according to the description of the fraud scheme in the Indictment, the
defendant allegedly had the sophistication to set up several companies, navigate the application
process for those companies to obtain authorization for payments as a Medicaid provider and
then to funnel monies among multiple bank accounts to conceal the unlawful activity. See
Indictment ¶¶ 10–19. The government has a valid basis for concern that “[t]he charges against
the defendant, together with access to potentially significant amounts of financial resources,
provide a strong incentive to flee the United States.” Gov’t Opp’n at 2 (citing United States v.
Anderson, 384 F. Supp. 2d 32, 35 (D.D.C. 2005) (finding that no condition or combination of
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The defendant has prior convictions which may result in a higher Criminal History Category, but this review of the
potential determination of the defendant’s advisory guideline sentencing range is merely an estimate for purposes of
evaluating the seriousness of the offense.
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conditions would have reasonably assured the appearance of the defendant where the offenses
demonstrate “substantial familiarity with the commercial and financial laws of other countries,
sophistication in arranging international financial transactions and in moving money across
borders, and a facility for concealing the existence and location of significant quantities of
money and other assets”). 3
At the hearing on June 16, 2014, the government indicated that a superseding indictment
containing additional fraud charges against the defendant is forthcoming. See Rough Hrg. Tr.,
June 16, 2014, (“Tr.”) at 29:3-7. 4 This may only compound the seriousness of the offenses faced
by the defendant. The defendant contends that, despite the huge amount of fraud loss charged in
the Indictment of “in excess of $75 million,” Indictment ¶ 59(e), the charges hinge almost
entirely on a single disputed fact: whether the defendant knew and had received notice that her
nursing license had been revoked in Virginia and that she had been excluded by the Department
of Health and Human Services from participation in Medicare, Medicaid and all Federal Health
care programs. See id. at 36:17–37:9. The government is correct, however, that this critical
disputed fact “doesn’t negate the seriousness of the offense.” Id. at 36:25–37:1. Consequently,
the Court finds that the first factor favors pretrial detention, as the alleged fraud is quite complex
and the potential monetary loss to the government is substantial.
B. Weight of the Evidence Against the Defendant
With respect to the weight of the evidence against the defendant, a grand jury has
returned an indictment establishing that probable cause exists to find that the defendant
3
The government alleges that the defendant “use[d] . . . aliases in her efforts to defraud D.C. Medicaid,” Gov’t Mot.
Pretrial Detention at 5, ECF No. 8, but this allegation appears to be slight hyperbole. As alleged in the Indictment,
the defendant appears to have used only variations on her maiden and married name. For example, the defendant
used the name “Florence N. Igwacho” in 1996 and 2002, and the name “Florence I. Ngwe” in 2003, to apply for and
obtain licensed practical nurse licenses from the District of Columbia, Indictment ¶¶ 25–27, and the name “Florence
Bikundi” when applying for a Medicaid provider number to obtain Medicaid payments, id. ¶¶ 36–41.
4
The parties have not requested formal transcripts from the court reporter. Accordingly, the Court relies on the
court reporter’s rough transcript of the June 16, 2014 hearing in this Memorandum Opinion.
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committed the charged offenses. See generally Indictment. The defendant challenges the weight
of the evidence, contending that, contrary to the government’s allegations, the millions of dollars
in Medicaid reimbursements allegedly received by the defendant’s company Global Healthcare
were not fraudulent but “legitimate business expenses,” Def.’s Mem. at 5, and fully reported on
income tax returns, without any effort to conceal them, Tr. at 5:8-23. Thus, the defendant argues
that the millions of dollars paid by Medicaid to this company do not “in and of themselves
constitute a crime.” Def.’s Mem. at 5. This is a good point, but even if the fraud loss amount
does not amount to over $75,000,000, as alleged in the Indictment, this is only one aspect of
evaluating both the seriousness of the offense and the weight of the evidence. The government
has built its case on documentary evidence and, as detailed in the Indictment, has documented
the defendant’s multiple revoked nursing licenses in multiple jurisdictions, including the
revocation in Virginia, which was the basis for her exclusion from participation in all Federal
Health Care programs and her ineligibility to operate her companies as a Medicaid provider. See
Indictment ¶¶ 21-35. This documentary support for the government’s allegations appears very
weighty.
Indeed, the parties have regularly updated the Court on the processing of the volume of
documents at issue in this case in order for the government to comply with its discovery
obligations. The defendant highlights one significant concern over the amount of material seized
by the government, namely, “300 boxes of documents that were seized from three locations” as
well as digital material from seized computers. Def.’s Mem. at 4-5. Specifically, defense
counsel pointed out at a May 29, 2014 status hearing that the defendant’s ability to assist in
review of the material is adversely affected by her incarceration pending trial. The Court has
similar concerns about how long discovery will take in this case, particularly while the defendant
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remains incarcerated pending trial. The remedy for that concern, however, is not pretrial release
when the statutory conditions are not met, but unrelenting efforts by the government to process
discovery and get ready for trial as promptly as possible.
C. History and Characteristics of the Defendant
With respect to the “history and characteristics of the [defendant],” the defendant points
out that she has lived in this country for over sixteen years, is raising her three children here, and
has a number of relatives, including her parents, residing in this country. See Def.’s Mem. at
5-7; Tr. at 16:11-19. These ties to the United States generally, and to this area specifically, are
substantial and would normally militate strongly in favor of release of the defendant.
In this case, however, the defendant’s strong familial and community ties to the United
States are significantly undercut by three salient facts. First, the “defendant is not a citizen of the
United States and does not have legal status in the United States.” Gov’t Opp’n at 3. Indeed, as
the defendant concedes, Immigration Customs and Enforcement (“ICE”) has lodged an
immigration detainer against her. Def.’s Mem. at 6. Even were she to be released pending trial
in this case, she would consequently face detention on the immigration detainer unless she
successfully obtains bail before an Immigration Judge. See id.
Second, the government proffers that it has seized from the defendant, or the companies
she controlled, only approximately $10.5 million, a fraction of the funds defrauded from the
Medicaid program, with the remaining amounts “unaccounted for[.]” Gov’t Opp’n at 2. More
troubling is that the government has seized documents connecting the defendant “to at least one
bank account in Cameroon.” Id. Specifically, evidence seized from the defendant indicates that
she maintains a Cameroonian bank account (Acct. no. XXXXX001-16), which, on February 4,
2012, had a balance of 91,252,000 in West African Francs, which amounts to approximately
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$190,304 in U.S. dollars. Id. at 3; id. at 3 n.2. The defendant challenges this proffer, contending
that the Cameroonian bank account attributed to the defendant belongs to the defendant’s
husband, who is also from Cameroon, and that the defendant is merely a beneficiary of the
account. See Tr. at 44:1–6. The government has countered, explaining that among the
documents seized from the defendant were her “last will and testament where she talks about the
account and property.” Id. at 43:21-22.
Overseas ties such as those proffered by the government, combined with a defendant’s
lack of legal status in this country militate strongly in favor of detention on grounds that the
defendant presents a flight risk. See Vo, 978 F. Supp. 2d. at 45-46 (D.D.C. 2013) (finding
defendant’s experience living overseas and extensive assets overseas favored pretrial detention);
United States v. Sheikh, No. 13-cr-305, 2014 WL 116535, at *4 (E.D.N.C. Jan. 10, 2014)
(finding defendant’s extended family overseas and prior travel overseas weighed against pretrial
release); United States v. Fata, No. 13-30484, 2013 U.S. Dist. LEXIS 149168, at *8–9 (E.D.
Mich. Oct. 11, 2013) (finding pretrial release unwarranted where defendant accused of
healthcare fraud had significant family ties to Lebanon and defendant’s parents lived in a home
in Lebanon purchased by defendant). The Court finds that the defendant has continuing
significant foreign ties to her country of origin, including potential access to funds located in
Cameroon, and that this raises a significant concern about her serious risk of flight.
Finally, as the defendant acknowledges, she has at least two prior convictions, including a
conviction for identity fraud. Def.’s Mem. at 5, see Gov’t Opp’n at 4 (noting that “[p]ublic
records indicate that defendant Bikundi has multiple prior convictions in the State of Maryland”).
While both convictions occurred over a decade ago, id., the nature of the identity fraud
conviction is particularly troubling. As the government describes the circumstances of this
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offense, the defendant used false identification to obtain employment as a registered nurse. See
Tr. at 26:16–20. The government has bolstered concern about the defendant’s trustworthiness by
citing various examples of the defendant’s “misrepresentations, omissions, and false statements
in dealing with others[.]” Gov’t Opp’n at 4. Specifically, the government describes
misrepresentations in various documents (1) as to her citizenship status on a bank account
information form, id.; (2) about her status as a convicted felon and whether she had ever filed for
bankruptcy, id. at 4-5; (3) about her prior marriages, id. at 5-6; and (4) about whether she had
previously owned real property in connection with a loan application, id. at 6. 5 The alleged
misrepresentations cited by the government and her prior criminal experience in using a false
identification contribute heavily to the government’s demonstration by a preponderance of the
evidence that the defendant poses a serious flight risk.
D. The Nature and Seriousness of the Danger to Any Person or the Community
That Would Be Posed by the Defendant's Release
Finally, with respect to the nature and seriousness of the danger that the defendant’s
release would pose to any person or the community, this is not the basis for the government’s
continued request for pretrial detention of the defendant. Thus, this factor has minimal relevance
in this case. See Vo, 978 F. Supp. 2d at 41 (finding that where detention request is based on risk
of flight “[t]his factor. . . has little bearing”). In any event, there is no allegation that the
defendant engaged in any violence or that she poses any risk of physical danger to another
person or the community. See generally Indictment. To the contrary, the defendant has
substantial support from her family and members of the community and her church, as shown by
5
At the June 16, 2014 detention hearing, the government also alleged that the defendant misrepresented aspects of
her personal history during her interview for preparation of the Pretrial Services Report. The Court’s review of the
same statements found the government’s characterization without basis and therefore accorded “no weight” to this
part of the government’s argument. Tr. at 40:21–41:14.
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the multiple affidavits and letters of support submitted on her behalf. See generally Def.’s Suppl.
Def.’s Mot. Ex. 1, ECF No. 22-1.
* * *
Upon consideration of the evidence and arguments presented in connection with the
pending motion, the factors set forth in 18 U.S.C. § 3142(g), and the possible release conditions
set forth in § 3142(c), the Court finds that the government has established by a preponderance of
the evidence that the defendant’s pretrial release would pose a serious risk that she would flee.
The defendant’s prior conviction involving identify theft, compounded by her alleged
sophistication with financial transactions, the scope of her alleged fraudulent activity in
connection with the charged offenses, the substantial period of incarceration that she faces if
convicted, her lack of legal status in the United States, and her alleged overseas ties and assets,
when considered together, favor of pretrial detention under 18 U.S.C. § 3142(f)(2)(A).
IV. CONCLUSION
For the foregoing reasons, the defendant shall remain in the custody of the Attorney
General for confinement in a corrections facility pending trial and the defendant’s motion for
reconsideration of the Magistrate Judge’s Order of Detention is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED. Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District
Court for the District of Columbia,
ou=District Court Judge,
email=howell_chambers@dcd.usc
ourts.gov, c=US
Date: 2014.06.18 16:59:18 -04'00'
DATED: June 18, 2014 ______________________
BERYL A. HOWELL
United States District Judge
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