United States v. Bikundi

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Case No. 14-030 (BAH)

FLORENCE BIKUNDI, Judge Beryl A. Howell

MICHAEL D. BIKUNDI, SR.,

Defendants.

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

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join and adopt Florence Bikundi’s motions). For the reasons set forth below, the defendants’

four motions are denied.

I. BACKGROUND

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).

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Of the seven co-defendants, two remain fugitives (Christian S. Asongcha and Atawan Mundu John) and

five entered pleas of guilty to Count Two of the Superseding Indictment charging Health Care Fraud, in violation of

18 U.S.C. §§ 2, 1347. See Plea Agreement of Elvis Atabe, ECF No. 174; Plea Agreement of Melissa Williams, ECF

No. 186; Plea Agreement of Carlson Igwacho, ECF No. 179; Plea Agreement of Irene Igwacho, ECF No. 163; Plea

Agreement of Berenice Igwacho, ECF No. 240. A sixth cooperating defendant entered a plea in a separate case.

See United States v. White, No. 14-cr-216, Plea Agreement of Nicola White, ECF No. 8.

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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 was

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The Court ruled that the government would be permitted to use at trial for impeachment purposes, under

Federal Rule of Evidence 609(a)(2), Florence Bikundi’s conviction of Personal Identifying Information Theft upon

her plea of guilty in May 2003 in the Circuit Court of Maryland for Baltimore City, for which conviction she was

sentenced to one year imprisonment. See Minute Order (Sept. 18, 2015). The factual basis for this conviction was

that the defendant fraudulently used the personal identification information and Maryland Registered Nurse license

of a long-time acquaintance, without her consent, unlawfully to obtain employment as a registered nurse (“RN”)

through at least three nursing staff agencies. See Gov’t Notice, Ex. A, ECF No. 247-1. The government did not

seek to use the defendant’s two prior convictions for Theft of Property with less than $300.00 Value in District

Court for Montgomery County, or for Practicing Nursing without a License in Prince George’s County Circuit Court

in 1998 and 2002, respectively. See Gov’t Notice at 5 n.2, ECF No. 247. The record is not entirely clear whether

the defendant’s 1998 Maryland conviction prompted the revocation of her licensed practical nurse (“LPN”) license

in Virginia on August 4, 1999, see Gov’t Exs. 103, 104, but the Virginia revocation led to her indefinite exclusion

by HHS-OIG from participation in federal health care programs, see Gov’t Ex. 108.

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Prior to trial, the Court resolved, inter alia, the following motions: (1) granting (a) the United States’

Motion to Disqualify Sheryl Wood as Counsel for Michael Bikundi, ECF No. 78; (b) the United States’ Request for

Defendants to Provide Notice Whether They Intend to Seek Jury Determination on Forfeitability of Specific

Property, ECF Nos. 198, 213; (c) the United States’ Motion to Permit a Designated Law Enforcement Agent to be

Present at Counsel Table During Trial, ECF No. 259, as conceded; (d) the United States’ Motion to Forego Certain

Redactions in its Filings, ECF No. 260, as conceded; and (e) the United States’ Notice of Intent to Use Defendant’s

Conviction for Identity Theft as Impeachment Evidence, ECF No. 247; (2) denying (a) Michael Bikundi’s First

Motion to Sever His Case From Florence Bikundi Based Upon Disparity of Evidence, ECF No. 155; (b) Michael

Bikundi’s Motion to Sever Counts in the Indictment, ECF No. 208; (c) Florence Bikundi’s Motion to Dismiss

Indictment and/or Pretrial Release for Violation of her Statutory and Constitutional Rights to Speedy Trial, ECF No.

211; (d) Florence Bikundi’s Motion for Immediate Production of Brady Material, ECF No. 201; (e) Florence

Bikundi’s Motion to Strike Surplusage or in the Alternative to Preclude the Government From Introducing Evidence

at Trial, ECF No. 209, without prejudice to renew; (f) the United States’ Motion in Limine to Preclude the

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presented 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.

A. OVERVIEW OF REGULATORY REQUIREMENTS FOR D.C.

MEDICAID AND HOME PERSONAL CARE AIDS

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. Trial

Defendants From Arguing That the Government Targeted Family Members & From Commenting on the Status of

Co-Defendants Christian Asongcha & Atawan Mundu John, ECF No. 274; (g) the United States’ Motion to Forego

Redaction to Exhibit, ECF No. 275, with instructions to redact the child’s name; and (h) the United States’ Motion

in Limine to Exclude Defendant’s Proposed Experts From Trial, ECF No. 277; and (3) granting in part and denying

in part (a) the United States’ Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b),

ECF No. 206; (b) the United States’ Motion In Limine for Willful Blindness Instruction to Counts Thirteen &

Fourteen & Permission for the Government to Refer to Willful Blindness in its Opening Statement When Discussing

These Counts, ECF No. 205; and (c) Michael Bikundi’s Motion to Partially Vacate the Seizure Warrant & to Permit

Use of a Portion of Funds From Seized Bank Accounts for Purposes of Household Necessities, & Request for a

Pretrial Evidentiary Hearing, ECF No. 149. See Minute Order (July 31, 2015); Minute Order (Sept. 18, 2015);

United States v. Bikundi, 80 F. Supp. 3d 9 (D.D.C. 2015); United States v. Bikundi, No. 14-cr-030, 2015 U.S. Dist.

LEXIS 136768 (D.D.C. Oct. 7, 2015); United States v. Bikundi, No. 14-cr-030, 2015 U.S. Dist. LEXIS 114181

(D.D.C. Aug. 28, 2015).

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To be exact, 297 government exhibits were admitted and fifteen defense exhibits. The pending defense

motions challenge the admission of a single government exhibit.

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Tr. (“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 are

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For ease of reference, the name of the witness whose testimony is cited as well as docket numbers for trial

transcripts are provided throughout the opinion since these transcripts are numerous and not docketed in

chronological order.

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subject 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 confer

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with 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 provided as reflected on the timesheet.

See Tr. (Oct. 16, 2015 AM) at 7–8 (Shearer), ECF No. 311; Tr. (Oct. 16, 2015 AM) at 69

(Mebane), ECF No. 311. The HCA uses these certified timesheets to submit claims to D.C.

Medicaid for payment. Tr. (Oct. 22, 2015 PM) at 78 (Test. of Edward Mokam), ECF No. 320

(testifying that he submitted claims to D.C. Medicaid on Global’s behalf based on “timesheets

that they have given me and I assume that the timesheets are correct”). Personal care services

are billed in 15 minute increments, with each increment representing one unit of service. Tr.

(Oct. 15, 2015 AM) at 15 (Shearer), ECF No. 310. D.C. Medicaid authorizes a maximum of 32

units (or 8 hours) of personal care services per beneficiary per day, and a maximum of 64 units

(or 16 hours) of personal care services per beneficiary per day for beneficiaries who qualify for

the Elderly and Individuals with Physical Disabilities (“EPD”) waiver. Id. at 34–35, 38. Federal

law prohibits HCAs and PCAs from paying money to beneficiaries to either recruit or retain

them. Tr. (Oct. 16, 2015 AM at 37 (Shearer), ECF No. 311.

B. EXCLUSION OF FLORENCE BIKUNDI

The defendant Florence Bikundi obtained nursing licenses from Virginia and other

jurisdictions, including Washington, D.C., under her maiden name, “Florence Igwacho,” and the

revocation of her Virginia licenses led to her exclusion from participation in any federal health

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care program. 6 Specifically, by letter dated June 22, 1999, the Virginia Board of Nursing

notified Florence Bikundi (at the time “Florence Igwacho”) of a hearing regarding the revocation

of her licensed practical nurse (“LPN”) license from the Commonwealth of Virginia. Tr. (Oct.

26, 2015 PM) at 10–11 (Test. of Nancy Durrett), ECF No. 327; Gov’t Ex. 101. This letter was

sent to the defendant’s address at 9127 Edmonton Terrace, #304, Greenbelt, Maryland

(“Greenbelt address”). Gov’t Ex. 101. Subsequently, on August 4, 1999, the order revoking the

defendant’s LPN license was sent to the same Greenbelt address and required return of her

license. Tr. (Oct. 26, 2015 PM) at 12 (Durrett), ECF No. 327; Gov’t Ex. 104. The defendant

complied with the order and returned her license in a letter received by the Virginia Board of

Nursing on October 12, 1999. Tr. (Oct. 26, 2015 PM) at 13–14 (Durrett), ECF No. 327; Gov’t

Ex. 102. The return address of the defendant’s letter enclosing her license was the same

Greenbelt address. Id. Florence Bikundi applied to reinstate her license in 2004, but the

Virginia Board of Nursing denied this request in December 2004. Tr. (Oct. 26, 2015 PM) at 16

(Durrett), ECF No. 327.

HHS-OIG received notice of Virginia’s revocation of Florence Bikundi’s LPN license on

September 2, 1999. Tr. (Oct. 26, 2015 PM) at 23–24 (Test. of Teresa Hoffman), ECF No. 327.

On September 7, 1999, Teresa Hoffman, an HHS-OIG investigations analyst, sent a letter to

“Florence Igwacho” at the same Greenbelt address used by the Virginia Board of Nursing. Id. at

26; Gov’t Ex. 106. The HHS-OIG letter required the defendant to respond within 30 days. Tr.

(Oct. 26, 2015 PM) at 29 (Hoffman); Gov’t Ex. 106. Florence Bikundi did, in fact, respond to

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For example, the District of Columbia issued an LPN license to Florence Bikundi in the name of “Florence

Igwacho” in November 2002, and an RN license to her in the name of “Florence I. Ngwe” in September 2003. Tr.

(Nov. 2, 2015 PM) at 38–39 (Test. of Karen Scipio-Skinner), ECF No. 340. Both of these licenses were revoked in

May 2005 and have not been reinstated. Id.

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HHS-OIG in a letter, received by HHS on October 8, 1999, that used the same Greenbelt

address. Gov’t Ex. 107. In her response, the defendant requested that she be afforded additional

time to obtain an attorney and asked that she be informed of HHS’ decision. Id. Hoffman

testified that she attempted to call the defendant several times to discuss the requested extension,

but her calls were never returned. Tr. (Oct. 26, 2015 PM) at 29 (Hoffman), ECF No. 327.

Consequently, Hoffman proceeded with the exclusion process, which culminated in a letter sent

on March 31, 2000, to Florence Igwacho notifying her of her exclusion. Id. at 31–33; Gov’t Ex.

108. The letter was sent via U.S. Mail to the same Greenbelt address that the defendant used in

her letter requesting additional time to respond. Tr. (Oct. 26, 2015 PM) at 31–33 (Hoffman),

ECF No. 327.7 The letter was never returned to HHS as undeliverable. Id. at 33.

As a result, Florence Bikundi is excluded from participation in Medicare, Medicaid, and

all federal health care programs, as defined in 42 USC § 1320a-7b(f). Tr. (Oct. 26, 2015 PM) at

22, 32 (Hoffman), ECF No. 327. Persons “excluded” from federal health care programs cannot

be an administrator, director, or officer of any Medicaid provider. Id. at 19. An excluded person

may be an owner of a Medicaid provider, provided that he or she hold no more than a five

percent interest and are not involved in the day-to-day operations of the company. Id. HHS-OIG

makes publicly available the names of excluded individuals in an online database, which has

been available since March 1999. Tr. (Oct. 26, 2015) at 51, 56 (Test. of Joanne Francis), ECF

No. 327. In addition, from 1993 until December 2006, the agency published the names of

excluded persons in the Federal Register. Id. at 53, 56, 61.

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An attorney at HHS-OIG testified that certified mail was not required to be used for sending the notice of

exclusion that applied to Florence Bikundi and that the practice of HHS-OIG is to use regular mail to send such

notices. Tr. (Nov. 4, 2015 AM) at 128–29, 139 (Test. of Susan Gillin), ECF No. 344.

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C. GLOBAL’S CREATION AND OPERATIONAL PROBLEMS

In June 2009, Florence Bikundi, using the name “Florence Bikundi,” which was not the

name under which she had been excluded by HHS-OIG and, timing-wise, was several months

prior to her legal marriage to Michael Bikundi, see Gov’t Ex. 27 at 3 (Florence and Michael

Bikundi’s Virginia marriage certificate, dated September 5, 2009), submitted a D.C. Medicaid

provider application on behalf of Global to DHCF, along with a D.C. Medicaid provider

agreement, see Gov’t Ex. 1; Tr. (Oct. 29, 2015 AM) at 65 (Test. of Ernest Igwacho), ECF No.

332 (Florence Bikundi’s brother identifying handwriting as that of Florence Bikundi). As part of

the application, Global was required to identify all individuals “having direct or indirect

ownership or controlling interest” in the company, but none were listed. Gov’t Ex. 1. The

application and agreement were purportedly signed by “James Mbide” as Global’s authorized

representative, and contained other signatures of “individuals responsible to enforce compliance

with these conditions,” including the purported signatures of “James Mbide,” “Dr. Ernest

Igwacho,” and “Nicola White.” Id. These three individuals testified at trial that they did not sign

and did not authorize anyone to sign their names on this document, and were unaware that their

names had been used on this application until so advised by law enforcement agents in the course

of the investigation. Tr. (Oct. 16, 2015 PM) at 95–96 (Mbide), ECF No. 312; Tr. (Oct. 29, 2015

AM) at 65–67 (Ernest Igwacho), ECF No. 332; Tr. (Oct. 20, 2015 PM) at 37–38 (Test. of Nicola

White), ECF No. 316.

Donald Shearer, as the Director of Health Care Operations at DHCF approved the D.C.

Medicaid provider application and executed the D.C. Medicaid provider agreement on behalf of

D.C. Medicaid, effective on August 13, 2009, and Global was assigned a D.C. Medicaid provider

number to submit claims for PCA services. Tr. (Oct. 15, 2015 PM) at 89 (Shearer), ECF No.

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309. Shearer testified that had he known that the signatures on the agreement were forged, he

would not have approved the Global provider agreement. Id. at 7–8. Similarly, Sharon Mebane,

a HRLA program manager, testified that if, during Global’s initial licensing application, DOH

had learned or knew that the administrator, president or director of Global had been an excluded

person, “we would recommend that that entity not be licensed.” Tr. (Oct. 16, 2015 AM) at 40,

73 (Mebane), ECF No. 311.

Global’s difficulties in complying with requirements to maintain its HCA license were

noted by regulators conducting licensure surveys almost at the outset of its business operations

and continuously thereafter. These surveys were critical to the continued operation of Global,

and one former employee testified that Florence Bikundi “was always there during surveys.” Tr.

(Oct. 22, 2015 AM) at 48 (Atabe), ECF No. 319. During HRLA’s first annual survey of Global,

which took place from December 1 through 7, 2010, the HRLA surveyors noted major

deficiencies in Global’s record-keeping, its policies and procedures, and its employee and patient

files, including, for example, evidence that Global was missing complete background checks and

health certificates for employees and that patient services were not being provided consistent

with POCs. Tr. (Oct. 16, 2015 AM) at 57–63, 65–66, 70 (Mebane), ECF No. 311; Tr. (Oct. 22,

2015 PM) at 18–19 (Test. of Roland Follot), ECF No. 320; Gov’t Ex. 22.

In follow-up surveys conducted in February and September 2011, persistent significant

record-keeping deficiencies were reported by surveyors. Gov’t Exs. 23, 24. Roland Follot, a

HRLA surveyor who participated in these two follow-up surveys, testified about the changing

information provided to him in response to his questions. For example, during the February

2011 survey, Follot was given conflicting information by both defendants about the role of

James Mbide: Michael Bikundi told Follot that Mbide was a “director,” who had been out for

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six months, while Florence Bikundi said that Mbide was ill and had been working up until the

last week. Tr. (Oct. 22, 2015 PM) at 19–22 (Follot), ECF No. 320. Follot testified that Mbide’s

role “was hard to determine. I—I would get different answers on different days and I was

referring to different documents.” Id. at 23. Unbeknownst to Follot, Michael Bikundi had fired

Mbide several months prior to the survey, “towards the end of 2010.” Tr. (Oct. 16, 2015 PM) at

105 (Mbide), ECF No. 312; Tr. (Oct. 19, 2015 AM) at 23 (Mbide), ECF No. 314.

Also, on the first day of the survey, February 14, 2011, Follot met Florence Bikundi at

Global’s office and she avoided answering his question about her title, while Michael Bikundi

introduced himself as “just the president.” Tr. (Oct. 22, 2015 PM) at 11–13, 15 (Follot), ECF

No. 320. When Follot asked Florence Bikundi for her personnel file, she responded that she did

not have one, id. at 15–16, but the following day told Follet that Global employee Elke Johnson

had “shredded her file on the day before,” id. at 16, 27–28. Indeed, Elke Johnson confirmed

during her testimony that, during a survey, Michael Bikundi handed Florence Bikundi’s

personnel file containing “her driver’s license, it had her passport and her Social Security,” to

Johnson and instructed her to shred it, without explaining why, and Johnson complied with this

instruction. Tr. (Oct. 20, 2015 AM) at 55–58 (Test. of Elke Johnson), ECF No. 315. Any one of

those credentials in Florence Bikundi’s personnel file may have reflected her maiden name,

under which she had been excluded by HHS-OIG.

Additionally, Follot sought, as part of the February 2011 survey, to review board of

director minutes in order to assess Global’s compliance with “the plan of correction for the

December survey,” in which Global had been “cited . . . for various policy issues for which the

board of directors was responsible.” Tr. (Oct. 22, 2015 PM) at 25 (Follot), ECF No. 320.

Florence Bikundi told Follot that the board of directors had met since the December 2010 survey

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and, variously, that Nicola White or James Mbide had taken notes at the meeting. Id. at 24, 29.

After two days of asking for the minutes, White finally handed the purported board minutes to

the surveyors. Id. at 26. Although Follot was unaware at the time, those board minutes were

fabricated. Global’s board of directors meeting minutes, dated January 8, 2010 and January 28,

2011, show “Nicola White” as the “Recording Secretary,” and the latter minutes further indicate

that White was present at the meeting. Gov’t Exs. 270, 271. White testified, however, that she

had never been asked to join the board, was not the recording secretary and had never attended a

Global board meeting. Tr. (Oct. 20, 2015 PM) at 41–44 (White), ECF No. 316. Moreover,

White was not familiar with the names listed for several other board members purportedly

present at the same meeting with her. Id. She admitted to signing the January 28, 2011 minutes

at the instructions of Florence Bikundi, id. at 43, but denied that she had signed her name on

subsequent board minutes that nevertheless reflected her purported signature, id. at 46–48, 50.

Similarly, James Mbide, whose attendance at board meetings is noted on certain board minutes

reflecting his purported signature, denied that he was ever a member of the Global board,

attended any board meetings or signed any minutes. Tr. (Oct. 19, 2015 AM) at 23–26 (Mbide),

ECF No. 314; Gov’t Exs. 271, 272.

A follow-up survey scheduled for August 30, 3011 had to be “aborted” because Global

employees advised that the requested files were not available. Gov’t Ex. 26; Tr. (Oct. 22, 2015

AM) at 101–02 (Test. of Theresa Waters), ECF No. 319.

At the next follow-up survey in September 2011, Follot issued a notice of infraction,

which was sent to Michael Bikundi, due to continuing major deficiencies related to missing

health certificates for employees, and a missing comprehensive background check in one of the

sampled employee files. Tr. (Oct. 22, 2015 PM) at 44–48 (Follot), ECF No. 320; Gov’t Ex. 18.

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The surveyors observed that it took a noticeably long time for the Global employees to provide

the files randomly selected by the surveyors to review. Id. at 41–42 (Follot); Tr. (Oct. 22, 2015

AM) at 102 (Waters), ECF No. 319. The explanation for the delay was revealed by former

Global employees who testified about the flurry of document alterations underway even when

the surveyors were present in other parts of Global’s offices.

D. FALSIFICATION OF GLOBAL PATIENT AND EMPLOYEE RECORDS

In addition to forged signatures on Global’s Medicaid application and agreement and the

fraudulent Global board of directors minutes presented to HRLA surveyors, each of the

cooperating Global employees, six of whom entered guilty pleas in connection with this case, see

supra n.1, testified about the rampant falsification of patient and employee records at Global in

order to avoid Medicaid licensure issues for the company during surveys and to ensure

reimbursement from D.C. Medicaid. The falsified documents for patients included POCs,

recertifications for POCs, nursing notes and, as discussed in more detail infra in Part I.E, PCA

timesheets. The falsified documents for Global employees included key records in PCA

personnel files, such as health certificates, training certificates, and background checks. Further,

these witnesses detailed the intimate involvement of both Florence and Michael Bikundi in

falsifying records to facilitate this fraud scheme.

1. James Mbide

James Mbide is a registered nurse (“RN”) and was identified as Global’s Director of

Nursing on Global’s Medicaid provider application. Gov’t Ex. 1. He was hired for that position

by Florence Bikundi in late 2009. Tr. (Oct.16, 2015 PM) at 89–90 (Mbide), ECF No. 312. He

had met Florence Bikundi earlier in 2009, when she was using her maiden name, Florence

Igwacho, and operating Flo-Diamond in Maryland. Id. Sometime after the defendants got

14

married, Michael Bikundi became Global’s CEO, id. at 101, and Mbide continued to work full-

time as Global’s Director of Nursing until Michael Bikundi dismissed him at the end of 2010, id.

at 105, at which point Mbide continued to provide services to Global through his own staffing

agency, Eban Health Service (“Eban”), id. at 106. At Florence Bikundi’s request, in the summer

of 2012, Mbide returned to work part-time, two days per week as Global’s Director of Nursing.

Id. at 103–06.

Mbide testified about his own and others’ activity during his tenure at Global in falsifying

records for patient files in order to appear compliant for surveys “[s]o that the company will not

be charged to do reimbursement.” Id. at 83. If Mbide was not in the Global office when the

surveyors arrived, either Florence or Michael Bikundi would call Mbide to come to Global’s

offices to assist by creating missing nurse notes to say that a nurse visit was done, even when it

was not, and to recertify a patient’s continuing need for PCA services. Id. at 80–84; see also Tr.

(Oct. 19, 2015 AM) at 12–15 (Mbide), ECF No. 314. Mbide testified that Florence Bikundi

offered and paid Mbide $15 per false recertification and nurse note. Tr. (Oct. 16, 2015 PM) at

81–83 (Mbide), ECF No. 312; Tr. (Oct. 19, 2015 PM) at 49 (Mbide), ECF No. 313. Florence

Bikundi also instructed Mbide that when he created fake nurse notes for patients whom he had

not actually visited, he was supposed to write down that the PCA was present, because this was a

Medicaid requirement. Tr. (Oct. 16, 2015 PM) at 84–85 (Mbide), ECF No. 312; Tr. (Oct. 19,

2015 AM) at 19–20 (Mbide), ECF No. 314. Mbide testified that Florence Bikundi assisted in the

creation of fake nurse notes, and sat at a table with him and other Global nurses to create fake

nurse notes for visits that did not take place. Tr. (Oct. 19, 2015 AM) at 13–14 (Mbide), ECF No.

314.

15

Mbide confirmed that Michael Bikundi was present when he and other Global nurses

were creating nurse notes in preparation for surveys. Id. at 14–15. Either of the defendants

“would go through charts. If they found out there was a hole in the charts . . . he would give it to

me or to anybody around to do the notes.” Tr. (Oct. 16, 2015 PM) at 84 (Mbide), ECF No. 312.

In one instance, Mbide testified that, after Michael Bikundi told him that $3,000 had been

returned to Medicaid due to a lapsed POC for a patient funneled to Global through Eban, Mbide

observed Elvis Atabe creating counterfeit documents by “cutting and pasting” and backdating

POCs for the same patient. Tr. (Oct. 19, 2015 AM) at 31–32 (Mbide), ECF No. 314. Elvis

Atabe informed Mbide that Michael Bikundi had given him the patient’s file “to . . . cut and

paste” and backdate. Id. at 32.

In addition to fake nurse notes, Mbide testified about the falsification of other Global

records in employee files, including annual physicals and CPR certificates for nurses and PCAs,

to make the documents appear current, which was a Medicaid requirement for those who had

patient contact. Id. at 33–35.

Mbide recounted a conversation with Michael Bikundi about how the Global business

was to be operated. At a meeting with Michael Bikundi and another Global employee, Mbide

advised that some Medicaid beneficiaries “appeared not to be qualified to receive personal care

services” because they were “able-bodied,” and that they needed to be discharged. Id. at 21–22.

Mbide testified that he asked Michael Bikundi, “Give me the authority. Let me go out there, and

let me do a reassessment so that we can begin to discharge some of the patients.” Id. at 22. In

response, Michael Bikundi asked Mbide “to put a business hat on [his] head,” which Mbide

understood to mean “I’m here to make money, don’t interrupt.” Id. Thereafter, Mbide never

16

complained to Michael Bikundi again because Michael Bikundi had “established what he

want[ed] to do for his business.” Id.

2. Elvis Atabe

In April 2011, Elvis Atabe applied to work at Global. Tr. (Oct. 21, 2015 AM) at 109–10

(Atabe), ECF No. 318. On the day of his interview, James Mbide introduced Atabe to Florence

Bikundi, who then sent him to be interviewed by Michael Bikundi, who actually hired him. Id.

at 111–12. Atabe started work at Global about a week later and was advised by Florence

Bikundi that he would be doing quality assurance. Id. at 113–14. Atabe shared an office with

Florence Bikundi. Id. at 114. A few days after he started at Global, Atabe “was introduced to

the various things like wiping out, changing signatures on the computer, and all that.” Tr. (Oct.

21, 2015 PM) at 94–95 (Atabe), ECF No. 317. Atabe testified that when he found discrepancies

in patient folders given to him by Florence Bikundi to review, Florence Bikundi showed him

what he was “supposed to do.” Tr. (Oct. 21, 2015 AM) at 114–15 (Atabe), ECF No. 318.

Florence Bikundi explained that if a POC did not conform to the 30-day period required by

Medicaid, he was to use white-out to alter the dates to make sure the dates conform to

Medicaid’s requirements. Id. In his presence, Florence Bikundi used white-out to alter patient

files. See id. at 115–16. Afterwards, Nicola White showed Atabe how to erase a signature on a

computer and put in another signature, although Atabe told Nicola White that he was not very

good with the computer. Id. at 116. Atabe testified that, at times, he sat with Florence Bikundi

and Irene Igwacho—one of Florence Bikundi’s sisters—“in that little office” to try to figure out

ways to better alter the documents. Id. at 119. Atabe and Florence Bikundi sat side by side, with

their chairs “rubbing each other” while they created fake documents. Id. at 120. Irene Igwacho,

Nicola White, and Eveline Takang assisted in creating fake documents too. Id. at 120–21.

17

According to Atabe, Global had so many charts, that when surveyors were coming, one

person could not do the job of fixing the charts, “it was like a [sic] teamwork.” Id. at 121. Atabe

further testified that POCs mailed to Global’s offices were delivered to Michael Bikundi and, if

the dates “were not good enough,” Michael Bikundi directed Atabe to alter the dates. Id. at 125.

Atabe testified that the “whole system was bad in Global.” Tr. (Oct. 21, 2105 PM) at 25

(Atabe), ECF No. 317. Office workers participated in the fraudulent scheme at various levels.

Id. at 25–26. Elke Johnson altered personnel files and Eveline Takang created false nurse visit

notes. Id. at 26–28. Atabe created cut-outs of doctors’ signatures that were used by nurses to do

corrections on the POCs that were not signed with compliant dates. Id. at 31; Gov. Ex. 413. The

use of cut-outs was kept a secret from the surveyors. Tr. (Oct. 21, 2105 PM) at 32 (Atabe), ECF

No. 317. Michael Bikundi knew that Global employees were using the cut-outs “because he

used to come and oversee sometimes what we are doing.” Id. at 32–33. Florence Bikundi knew

that Atabe used the cut-outs to alter documents because he did it “right in front of her.” Id. at 33.

Atabe further stated that Irene Igwacho, Nicola White and Chris Asongcha knew that Global was

using the cut-outs because “we were doing it together.” Id. During surveys, while surveyors

were in another part of the office, Atabe and other Global employees, including Irene Igwacho,

James Mbide, Eveline Takang and Vanessa Sona sat in the chart room, where patient files were

maintained, and created fake documents, such as nurse visit notes, to help Global pass the

surveys. Id. at 57–58. Michael Bikundi knew that the Global employees were in the chart room

altering documents while the surveyors were in the other room waiting for the files because

“once in a while” he would walk around to check on the progress. Id. at 84.

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3. Elke Johnson

Elke Johnson, who is an undocumented immigrant, started working for Florence Bikundi

at Flo-Diamond in 2005, before working at Global as the HR Coordinator. Tr. (Oct. 19, 2015

PM) at 139–41 (Johnson), ECF No. 313; Tr. (Oct. 20, 2015 AM) Tr. at 8, 14, 85 (Johnson), ECF

No. 315. Johnson testified that Florence Bikundi and Michael Bikundi hired as PCAs other

undocumented immigrants, who used fake credentials that actually belonged to people

authorized to work in this country, and who were paid less than documented workers. Tr. (Oct.

20, 2015 AM) at 14–18 (Johnson), ECF No. 315. Background checks for undocumented PCAs

were performed using the credentials of the assumed identity, not the actual PCA. Id. In

preparation for surveys, both Florence and Michael Bikundi directed Johnson to make sure that

she altered expired dates on any CPR or physical examinations in employee files so that Global

would not be cited by the surveyors since such citations could result in a fine of as much as $500

per employee file. Id. at 51–53. To alter the dates, Johnson “would Wite-Out the current date,

make a photocopy, then put a present date to make it look like it’s valid, and then make another

copy and put it in the file.” Id.; see also id. at 86–87. In preparation for surveys, Johnson

observed Irene Igwacho altering dates on POCs, id. at 53–54, 88, and testified that Michael

Bikundi told the employees “to get everything in order, do whatever it takes to make them right”

because he did not “want to be cited,” id. at 55.

4. Nicola White

Nicola White began working for Florence and Michael Bikundi at Flo-Diamond in 2006,

when Elke Johnson worked there, and both White and Johnson continued working for the

defendants at Global. Tr. (Oct. 20, 2015 PM) at 25–28, 34 (White), ECF No. 316. White was an

administrative assistant at Global responsible for collecting the employees’ timesheets, preparing

19

their checks and putting the checks together with the timesheets to present to the Bikundi’s for

approval and signature. Id. at 50. She testified that when the Medicaid surveyors were expected,

Florence Bikundi told her “to actually fix the POC” and alter any dates that were out of

compliance. Id. at 70–72. She would also change doctors’ signatures on POCs by cutting and

pasting doctors’ signatures onto POCs, so that they would appear to have been approved by the

doctors. Id. at 73.

White testified that she heard “an argument” between Florence and Michael Bikundi,

during which Michael Bikundi complained that White’s “cut and paste” jobs on the computer did

not look “real enough.” Id. at 73–74. In an effort to improve the apparent authenticity of the

fake documents, Florence Bikundi would take the forged POCs and fax them to one of Flo-

Diamond’s offices and have them faxed back to her so that the POCs would look “more real.”

Id. at 74–75. On another occasion, Florence Bikundi told White that “Mr. Michael Bikundi

saying that the documents that -- you know, the way how I’m doing it, it doesn’t even look real

enough because of whenever I do the signature, it appear bigger than what the original signature

looked like.” Id. at 75. After that, Elvis Atabe took over the task of altering doctors’ signatures

on POCs. Id. at 75–76. Michael Bikundi instructed White to order all of the supplies that Atabe

needed, such as white-out and different pens to perform this document alteration task. Id.

In addition to altering POCs, White also changed dates on employees’ CPR certifications

“to make it current,” in accordance with Florence Bikundi’s direction “to make sure all of those -

- everything is okay, or during the survey we will have -- we will just make those document

changes and then bring it to the surveyors.” Id. at 77. The alteration of these documents would

sometimes occur with the surveyors in Global’s offices. Id.

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On two occasions when White was on maternity leave from August through November,

2011, Florence and Michael Bikundi went to White’s home to retrieve POCs that White had

created. Id. at 95–97; Tr. (Oct. 21, 2015 AM) at 82–83 (White), ECF No. 318. The POCs were

so numerous that they could not be emailed and did not fit into an envelope. Tr. (Oct. 20, 2015

PM) at 96–97 (White), ECF No. 316; Tr. (Oct. 21, 2015 AM) at 84 (White), ECF No. 318.

White corroborated the testimony of Atabe, Mbide and others that Florence Bikundi directed her,

as well as other employees, to falsify documents when the surveyors were still present in

Global’s offices to avoid the imposition of fines. Tr. (Oct. 20, 2015 PM) at 76–77 (White), ECF

No. 316.

5. Melissa Williams

Melissa Williams first began working for Florence Bikundi as a PCA at Flo-Diamond,

using false credentials since she was an undocumented immigrant. Tr. (Oct. 29, 2015 PM) at

32–33 (Test. of Melissa Williams), ECF No. 334. Florence Bikundi was aware of her

undocumented status since she provided Williams with paychecks under Williams’ assumed

name used for credentials. Id. at 36–37. Williams continued her PCA work at Global after she

received her work authorization in December 2008. Id. at 42. Through her relationship with

Michael Bikundi’s son, Williams is the mother of Michael Bikundi’s grandchild and calls

Michael Bikundi “Dad.” Id. at 102.

In approximately April 2011, Florence Bikundi permitted Williams to work in Global’s

office rather than working with patients as a PCA and promoted her to Human Resources

Coordinator. Id. at 53–55, 78. During the first survey that Williams observed at Global, she saw

nurses creating false nurse notes when notes were missing from patient files. Id. at 60–61.

Florence Bikundi, Chis Asongcha and Elvis Atabe were in the chart room at the time that the

21

fake nurse notes were created and then inserted into the patient files. Id. at 61–62. Williams also

observed Elvis Atabe change dates on POCs in Florence Bikundi’s presence, id. at 64–65, and

Chris Asongcha alter employee physical examinations and CPR certificates in employee files in

Florence Bikundi’s presence, id. at 66. Williams testified that “we knew that we had an

obligation to make sure that our folders were kept updated at all times. And whenever we had a

survey and it was not so, it was expected of us to forge the paperwork.” Tr. (Nov. 2, 2015 AM)

at 12 (White), ECF No. 338; id. at 22–23 (testifying that, for every survey, “it was always the

same thing, just with my employees’ folders, just making the adjustments for whatever folders

that the surveyors needed that were not updated . . . [meaning they] Frauded the paperwork”).

During surveys, Florence Bikundi supervised this activity of Global employees “making

adjustments, Wite-Out, whatever it is, to the physical or whatever paperwork that needed to be

updated in the eyes of the surveyors” and, on one occasion asked Chris Asongcha why a

document was not done and approved Williams altering the document. Id. at 13.

Williams testified that in order to manage costs, Florence Bikundi canceled Global’s

contract with Kroll—a company with which it had contracted to conduct criminal background

checks on PCAs—and required PCAs to provide their own background checks. Tr. (Oct. 29,

2015 PM) at 84–86 (Williams), ECF No. 334; Tr. (Oct. 20, 2015 PM) at 83 (White), ECF No.

316. Subsequently, during surveys, when criminal background checks were missing from

employee files, Chris Asongcha and Nicola White started creating phony criminal background

checks to insert in the employee files. Tr. (Oct. 29, 2015 PM) at 86–87 (Williams), ECF No.

334; see also Tr. (Nov. 2, 2015 AM) at 115 (Williams), ECF No. 338. This aspect of Williams’

testimony was corroborated by Nicola White, who admitted to making fraudulent background

checks for Global employees, see Tr. (Oct. 20, 2015 PM) at 84 (White), ECF No. 316, as well as

22

by a Kroll representative, who testified that out of 31 Kroll background checks in Global

employee files, a review confirmed that only three were authentic, see Tr. (Nov. 2, 2015 PM) at

15 (Test. of Craig Olsen), ECF No. 340; Gov’t Ex. 440.

E. FALSIFICATION OF TIMESHEETS AND ILLEGAL PAYMENTS TO

GLOBAL PATIENTS

In addition to the fraudulent alteration of patient and employee files that took place

within Global’s offices, extensive testimony was provided at trial about the kickbacks paid to

beneficiaries for their false certification of PCA timesheets for work that was not performed and

about the defendants’ knowledge of these kickbacks and fraudulent timesheets. Florence and

Michael Bikundi required that the timesheets supporting each employee’s work be attached to

the employee’s paycheck before the paycheck would be approved and signed. Tr. (Oct. 20, 2015

PM) at 50 (White), ECF No. 316; Tr. (Oct. 21, 2015 AM) at 78, 90 (White), ECF No. 318; Tr.

(Nov. 2, 2015 AM) at 122 (Williams), ECF No. 338; Tr. (Oct. 20, 2015 AM) at 39 (Johnson),

ECF No. 315. Thus, the defendants were aware of which PCAs claimed to work 16-hour days

and which PCAs claimed on their timesheets to be providing services to a beneficiary when

those PCAs were actually on vacation, in the office, in school or at another job. When Florence

or Michael Bikundi concluded that PCAs had submitted timesheets for services not provided,

they would at times withhold the PCAs’ paychecks but would not terminate them, void the

claims or initiate reversals to repay Medicaid for the hours that Global billed for these aides. Tr.

(Oct. 19, 2015 AM) at 39–40 (Mbide), ECF No. 314; Tr. (Oct. 20, 2015 AM) at 39–40, 49–50,

110 (Johnson), ECF No. 315; Tr. (Oct. 20, 2015 PM) at 120–21 (White), ECF No. 316; Tr. (Oct.

28, 2015 PM) at 31–32 (Test. of Carlson Igwacho), ECF No. 335; Tr. (Nov. 2, 2015 AM) at 35–

39 (Williams), ECF No. 338. Summarized below is testimony from the cooperating witnesses

and beneficiaries about the fraudulent timesheets and kickbacks to Global’s patients.

23

1. Melissa Williams

While working as a PCA at Global, Melissa Williams was assigned, by Elke Johnson, to

patient Carolyn Baldwin (beneficiary no. xxxx2921, see Def. FB’s R. 29 Mem. at 11;

Superseding Indictment ¶ 75(3)). Tr. (Oct. 29, 2015 PM) at 44 (Williams), ECF No. 334. After

a few weeks of working with Baldwin, Baldwin demanded money from Williams. Id. Baldwin

explained to Williams that she had been previously receiving money from Elke Johnson and

Florence Bikundi, id. at 45–46, and if she were not paid, “she would leave Global and go to a

different home health aide company,” id. at 46. Williams stated that she gave Baldwin money

from her paycheck and money given to her by Johnson. Id. at 46.

Carolyn Baldwin largely corroborated the testimony of Johnson and Williams. She

testified that Florence Bikundi came to her house with her then-boyfriend, “a tall fellow,” to

recruit her as a patient. Tr. (Nov. 3, 2015 AM) at 30 (Test. of Carolyn Baldwin), ECF No. 343.

At the time, Florence Bikundi told her, “I take care of my girls.” Id. When Baldwin asked what

that meant, Florence Bikundi replied, “you know, I give them a little money.” Id. at 31.

Thereafter, Baldwin became a patient and Florence Bikundi mailed Baldwin a check of about

$75 to $150. Id. Baldwin recalled picking up money from “Elke” one time when the business

was located on Georgia Avenue, id., and also from Williams, who was assigned to be her PCA,

id. at 32–33, 44–45.

Williams explained the reason for the kickbacks to Global patients was “[i]n order to

maintain or keep these patients, because the patients will tell you that -- just even as an aide, if

you don’t pay me, I’m going to take my services somewhere else. So in order to keep the

patient, money would be given to the patient . . . . So in order for the patient to stay with the

company, which is Global, the -- Florence would -- because she wouldn’t want the patient to go

24

to a different agency where services would be rendered under a different company name, then

she would pay to keep the patients happy.” Tr. (Nov. 2, 2015 AM) at 20 (Williams), ECF No.

338.

Williams provided details about the blatant nature of this fraud activity. For example, she

saw Irene Igwacho socializing with Michael and Florence Bikundi at times when Irene Igwacho

was supposed to be providing PCA services to Global patients. Tr. (Oct. 29, 2015 PM) at 103–

04 (Williams), ECF No. 334. The defendants were aware of this since Michael Bikundi did not

sign Irene Igwacho’s paychecks without seeing the timesheets, because “without time sheets, you

don’t get paid.” Id. at 104. Similarly, Berenice Igwacho—another of Florence Bikundi’s

sisters—attended social functions at the defendants’ residence at times that coincided with when

she claimed on timesheets to be providing PCA services to Global patients. Id. at 105. Both

Florence and Michael Bikundi observed Berenice Igwacho at the social functions. Id. In another

instance Williams testified that, from December 22, 2012 through January 6, 2013, she

accompanied Florence Bikundi, Michael Bikundi, Carlson Igwacho, who is Florence Bikundi’s

son, Violet Igwacho, who is Carlson Igwacho’s wife, and others on a family vacation to

California, and timesheets for this period were submitted by certain of the vacationers for PCA

services. Id. at 105–07. As another example, Williams testified that there were times that she

submitted timesheets indicating she had provided home health services to a patient at certain

hours that coincided with the hours that she was actually working in the office. Tr. (Nov. 2,

2015 AM) at 116 (Williams), ECF No. 338. At one point, Florence Bikundi told Williams that

Williams could no longer work with the patient, but did not fire Williams. Id.

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2. Nicola White

Nicola White testified that she would submit timesheets for working with patients during

the week and weekends, despite working full-time in the office during the week and not working

on the weekends. Tr. (Oct. 20, 2015 PM) at 89–90, 94 (White), ECF No. 316; Tr. (Oct. 21, 2015

AM) at 78 (White), ECF No. 318. Michael and Florence Bikundi knew that Nicola White was

working full-time in the office yet also submitting timesheets used to bill Medicaid for PCA

services. Tr. (Oct. 20, 2015 PM) at 94–95 (White), ECF No. 316. Although Michael Bikundi

told her to stop, he did not ask for return of the money or initiate a refund to D.C. Medicaid. Id.

at 95. White’s testimony was corroborated by Williams, who testified that when Michael

Bikundi learned that White had submitted a timesheet claiming that she had provided services to

a Global patient while White was actually in Jamaica, Michael Bikundi decided that he was not

going to allow Global office workers to work as PCAs on the weekends anymore. Tr. (Nov. 2,

2015 AM) at 32–33 (Williams), ECF No. 338.

Nicola White testified about the regular, “numerous of times” that Florence Bikundi

asked her to cash checks and “[s]he would normally give me a list with the total amount for each

individual and write the check in my name.” Tr. (Oct. 21, 2015 AM) at 92 (White), ECF No.

318. “Sometimes she would be the one to give to those individuals and sometimes she asked me

to do it.” Id. at 93. Cash would be paid to “aides that weren’t legally to work in the United

States,” to Carlson Igwacho, and “every two weeks” to Medicaid beneficiaries who “actually

come to the office for it; some of the time they will send a family member.” Id.

3. Elke Johnson

Elke Johnson testified that Florence Bikundi gave her cash to pay at least three Medicaid

beneficiaries—Carolyn Baldwin, William Smith, and Gary Miller—for becoming or remaining

26

clients of Global in order “to build her list of recipients.” Tr. (Oct. 20, 2015 AM) at 27–28

(Johnson), ECF No. 315. Florence Bikundi instructed Johnson to pay $300 to William Smith

(beneficiary no. xxxx4279, see Def. FB’s R. 29 Mem. at 10, Superseding Indictment ¶ 75(1)), a

patient of Carlson Igwacho, when Carlson Igwacho was in Cameroon and his timesheet, which

falsely reflected the provision of PCA services during that period, had already been submitted for

reimbursement from Medicaid. Id. at 30–32. In other words, Carlson Igwacho submitted post-

dated timesheets for the beneficiary which contained the beneficiary’s signature in advance of

him leaving on a trip to Cameroon. Id. at 31.

Johnson further testified that Berenice, Irene, Carlson and Violet Igwacho were working

in the office or attending school at times they indicated on timesheets that they were performing

PCA work. Id. at 46–48.

4. Francis James

Francis James testified that, after his girlfriend Elke Johnson suggested that he become a

home health aide, he met with Florence Bikundi, who told him that she had a patient for him,

Gary Miller (beneficiary no. xxxx0062, see Def. FB’s R. 29 Mem. at 11; Superseding Indictment

¶ 75(2)), whom she had already been paying. Tr. (Oct. 19, 2015 PM) at 74–75, 107 (Test. of

Francis James), ECF No. 313. James already had a full-time job working in construction, and

Florence Bikundi told James that he did not have to see his patient for the full eight hours each

day that Medicaid would be billed, id. at 75, 86–88, 106; see also id. at 84 (“Miss Florence told

me, it’s okay for to go – for to work and – I mean, I could put eight hours and I don’t have to

work.”). James paid his patient $100 to $150 every pay period in return for the patient certifying

timesheets weekly for services that James did not perform. Id. at 77, 80, 107. After James began

working at Global, Michael Bikundi told him that he would have to pay Michael Bikundi $300

27

every two weeks, which James understood he would be required to do in order to keep his job.

Id. at 88–89, 120, 125. James therefore paid Michael Bikundi the $300 kickback every two

weeks, either by the office building or by a Kentucky Fried Chicken. Id. at 89, 107, 115, 120,

125.

5. Irene Igwacho

Irene Igwacho, who is an RN and the sister of Florence Bikundi, testified about

submitting false timesheets for two Global patients, Joan Gross and Sergio Zuniga (beneficiary

no. xxxx7041, see Def. FB’s R. 29 Mem. at 12; Superseding Indictment ¶ 75(9)), reflecting time

she had purportedly performed work when she was actually in school, as Florence Bikundi was

well aware. Tr. (Oct. 27, 2015 AM) at 44–45 (Test. of Irene Igwacho), ECF No. 328. Gross

agreed to sign the timesheets falsely certifying that Irene Igwacho had performed work in return

for biweekly payments of $150. Id. at 47. Irene Igwacho never met Sergio Zuniga even though

she was supposed to provide PCA services to him on the weekends and submitted timesheets

reflecting that work. Id. at 53. She simply paid another aide $50 to have Zuniga sign the

timesheets, including for time periods when Irene Igwacho was traveling out of the country and

both defendants knew this. Id. at 53, 55–56.

Irene Igwacho’s testimony was corroborated by Sergio Zuniga, who suffers from a spinal

deformity. Tr. (Oct. 20, 2015 PM) at 4–5 (Test. of Sergio Zuniga), ECF No. 316. Zuniga

testified that he was recruited to use Global for PCA services through an aide named Darnell

Williams. Id. at 5, 19. Darnell Williams would visit Zuniga “roughly every two weeks,” and

give him $175, which helped him financially. Id. at 7–8. Zuniga “signed the timesheets to

basically continue receiving the help that he was . . . giving.” Id. at 11. Darnell Williams also

told Zuniga that a different aide, Irene Igwacho, would be assigned to work with him on the

28

weekends, but that aide never went to see him and the timesheets for that aide’s work did not

contain his signature. Id. at 15–16. After Darnell Williams stopped paying him every two week,

Zuniga never sought another home health aide. Id. at 18.

6. Carlson Igwacho

Carlson Igwacho, the son of Florence Bikundi, is an RN and worked as a Global PCA in

May 2009, following his discharge from military service. See Tr. (Oct. 28, 2015 AM) at 129–30,

132 (Carlson Igwacho), ECF No. 329. He denied recognizing a number of documents, including

a health certificate, school certificates and other information contained in his Global personnel

file, some of which documents reflected his forged signature. Id. at 135–39. He also denied that

he was aware of having an ownership interest in Flo-Diamond, as reflected in the Medicaid

provider agreement that Flo-Diamond had with Maryland. Id. at 140.

Carlson Igwacho testified that he was assigned to work eight hours per day, seven days

per week with beneficiary William Smith, who appeared to know Florence Bikundi by asking

“How’s Miss Flo?” Tr. (Oct. 28, 2015 PM) at 9, 15 (Carlson Igwacho), ECF No. 335. Smith

told Carlson Igwacho that he did not want his PCA around all of the time and threatened to use a

different HCA unless he received payments. Id. at 10–13. Carlson Igwacho visited him only

one to two days per week, and paid him to certify false timesheets reflecting PCA services for 56

hours per week. Id. at 13–15.

Carlson Igwacho also paid other beneficiaries, Glenn Scott and Mary Drayton

(beneficiary no. xxxx2282, see Def. FB’s R. 29 Mem. at 11; Superseding Indictment ¶ 75(5)), for

falsely certifying timesheets for PCA work not performed. Id. at 21–26. He paid Mary Drayton

$300 every pay period to sign fraudulent timesheets stating that she received 56 hours of services

per week from him. Id. at 25. In sum, from January 2010 to March 2012, Carlson Igwacho

29

submitted timesheets reflecting that he worked 16 hours per day, every day, divided into eight

hour shifts between Mary Drayton and William Smith, even though during this same time period,

from Fall 2009 through Spring 2011, and in the summer, he was (1) attending school, for which

Florence Bikundi contributed funds; (2) had alcohol-related arrests, about which the defendants

were aware; (3) was hospitalized for malaria; and (4) traveled to Cameroon, a trip Florence

Bikundi knew about, and on vacation with the defendants. See id. at 27–40, 43–48; Gov’t Ex.

245.

This testimony was corroborated by multiple witnesses. Nicola White testified that

Carlson Igwacho was assigned to work as a PCA with two patients, for a total of sixteen hours

every day. Tr. (Oct. 20, 2015 PM) at 100–01 (White), ECF No. 316. Melissa Williams

recounted a conversation between herself and Nicola White, during which White informed her

that Florence Bikundi had assigned Carlson Igwacho to be the PCA for Mary Drayton, who had

previously been assigned to White. Tr. (Nov. 2, 2015 AM) at 21 (Williams), ECF No. 338.

White explained that because Mary Drayton had been a former client of Flo-Diamond, Florence

Bikundi knew she would accept money to certify false timesheets and had sent money over to

Mary Drayton. Id. Likewise, Elke Johnson confirmed that, during a period when Carlson

Igwacho was in Cameroon and unable to visit his patient, Florence Bikundi told Johnson to pay

the patient $300 because Carlson Igwacho’s timesheet, which falsely indicated that he had

provided services to the patient, had already been submitted. Tr. (Oct. 20, 2015 AM) at 30–32

(Johnson), ECF No. 315. Finally, Mary Drayton, the beneficiary herself, confirmed that she, and

her son, R.C., were both paid money in exchange for signing timesheets that falsely indicated

that Carlson Igwacho (and, for some period, Violet Igwacho), had provided sixteen hours of

service every day. Tr. (Oct. 28, 2015 AM) at 39–44 (Test. of Mary Drayton), ECF No. 329.

30

7. Other PCAs Falsifying Timesheets

The testifying former Global employees admitted to paying kickbacks to patients for

certifying false timesheets and also provided evidence of other Global employees who engaged

in the same illegal activity. In addition to beneficiaries Carolyn Baldwin, Mary Drayton and

Sergio Zuniga, other former Global patients testified about being recruited to be Global patients

and the kickbacks they received to certify false timesheets. Tywonda Fenner (beneficiary no.

xxxx0699, see Def. FB’s R. 29 Mem. at 12; Superseding Indictment ¶ 75(8)) testified that

initially, when she told a prospective home health aide about attending class during the day, the

aide’s “boss,” a female, advised Fenner over the telephone that services could not be provided

unless Fenner were home. Tr. (Nov. 2, 2015 PM) at 43–45 (Test. of Tywonda Fenner), ECF No.

340. Nevertheless, Berenice Igwacho subsequently showed up with doctors’ forms for Fenner to

sign. Id. at 47–48, 59. Berenice Igwacho paid Fenner approximately $140 every two weeks and,

in exchange, Fenner signed Berenice Igwacho’s timesheets. Id. at 49–51. Fenner did not ever

receive any PCA services from any Global PCA. See id.

Another Global patient, Alma McPherson (beneficiary no. xxxx4210, see Def. FB’s R. 29

Mem. at 13; Superseding Indictment ¶ 75(14)), testified that a woman named “Yvette” visited

her at home to ask if she wanted to make some extra money. Id. at 62–63, 75 (Test. of Alma

McPherson). Sometime thereafter, McPherson, along with two others, went to a clinic with

Yvette, who told McPherson to walk with a cane, even though she did not need one. Id. at 63–

66. She met with a doctor who prescribed home health services that she did not need. Id. at 65–

67. After the doctor visit, “Yvette” paid McPherson $100. Id. at 66. Thereafter, McPherson and

her husband were each assigned a PCA, who came approximately once a week and had

McPherson sign a timesheet. See id. at 67–70. “Linda,” Yvette’s sister, or, at times, Yvette

herself, would then pay McPherson $200 in exchange for the signed timesheets. See id.

31

F. EVIDENCE SUPPORTING MONEY LAUNDERING CHARGES

The government presented the testimony of Department of Justice Special Agent Nicole

Hinson of the U.S. Attorney’s Office for the District of Columbia, along with underlying bank

and financial records, to support the money laundering charges against the defendants. Tr. (Nov.

3, 2015 AM) at 113 (Test. of Nicole Hinson), ECF No. 343. From November 2009 to February

2014, D.C. Medicaid paid Global a total of $80,620,929.20. Id. at 130; Gov’t Ex. 5. Over this

time period, D.C. Medicaid payments to Global increased from $1,359,726.88 in 2009, to

$9,956,505.60 in 2010, to $14,277,324.23 in 2011, to $23,696,990.89 in 2012, and to

$27,166,587.08 in 2013. Tr. (Nov. 3, 2015 AM) at 89–90 (Hinson), ECF No. 343; Gov’t Ex.

133. In January and February 2014, alone, D.C. Medicaid paid a total of $4,193,079.12 to

Global. Tr. (Nov. 3, 2015 AM) at 90 (Hinson), ECF No. 343; Gov’t Ex. 133.

D.C. Medicaid payments were transferred directly to three different Global accounts—

PNC Bank (“PNC”) account #5874, and Bank of America (“BOA”) account #2254 and account

#2241 (“Intake Accounts”)—for which Florence and Michael Bikundi were the sole signatories.

Tr. (Nov. 3, 2015 AM) at 132–33 (Hinson), ECF No. 343; Gov. Ex. 184. These defendants then

moved D.C. Medicaid funds from these three Intake Accounts into additional Global corporate

accounts to pay operational expenses and into two Flo-Diamond accounts (BOA account #2267

and PNC account #6271). Tr. (Nov. 3, 2015 AM) at 133–34 (Hinson), ECF No. 343; Gov. Ex.

184. From these secondary accounts, Florence and Michael Bikundi distributed the D.C.

Medicaid funds to over one hundred other financial accounts they controlled, where they

conducted “tens of thousands of transactions,” including to pay for personal expenses. Tr. (Nov.

3, 2015 AM) at 130–31, 134 (Hinson), ECF No. 343; Tr. (Nov. 4, 2015 AM) at 72–73 (Hinson),

ECF No. 344; Tr. (Oct. 20, 2015 PM) at 125–26 (White), ECF No. 316; Gov. Ex. 184.

32

Approximately ninety percent of the funds that went into the defendants’ accounts came from

D.C. Medicaid. Tr. (Nov. 3, 2015 AM) at 131 (Hinson), ECF No. 343.8

The types of financial institution accounts controlled by Florence and Michael Bikundi

included accounts in the names of multiple corporations, personal bank accounts, life insurance

accounts, investment accounts, trust accounts, college savings plans, annuities, IRAs, and

international bank accounts. Id. at 119, 127–30; Gov’t Ex. 184. From November 2009 to

February 2014, the defendants purchased over $7,700,000 in cashier’s checks from funds from

some of these accounts. Tr. (Nov. 3, 2015 PM) at 27, 93–94 (Hinson), ECF No. 342; Gov’t Ex.

154. Among the accounts to which the defendants transferred D.C. Medicaid funds were three

accounts in the name of CFC Home Trade & Investment, LLC (“CFC”) and two accounts in the

name of Tri-Continental Trade & Development (“Tri-Continental”). Tr. (Nov. 3, 2015 AM) at

139, 143 (Hinson), ECF No. 343; Gov’t Exs. 151, 152, 184, 250. Agent Hinson expressed her

belief that “the use of Tri-Continental and CFC were attempts to use a false name” to conceal the

source of illegal funds and make it appear that the funds were coming from another corporation,

and that tracing the funds could not be easily accomplished by those without the “ability to

subpoena all the records involved.” Tr. (Nov. 4, 2015 AM) at 28, 32, 69, 71–72 (Hinson), ECF

No. 344; id. at 79 (testifying that “essentially that is important in money laundering because

money coming from Global Health Care is being provided to Florence Bikundi and Michael

Bikundi under the name of a second company”). No evidence was uncovered that these two

companies, CFC and Tri-Continental, which were formed to conduct altogether different lines of

business than Global, generated any income on their own. Id. at 78.

8

Agent Hinson testified that she spent months of working seven days per week to trace all of the funds in the

accounts controlled by the defendants. Tr. (Nov. 4, 2015 AM) at 74 (Hinson), ECF No. 344. Indeed, she detailed

that she obtained over 80 seizure warrants for financial institution accounts and five cars traceable to funds paid

from D.C. Medicaid to Global. Tr. (Nov. 3, 2015 AM) at 118 (Hinson), ECF No. 343.

33

1. CFC Accounts

According to its Articles of Organization, dated October 17, 2012, CFC was a real estate

investment business. Gov’t Ex. 249. Carlson Igwacho testified that he formed this company

with his mother, Florence Bikundi, and Chris Asongcha, with the name “CFC” derived from the

first letters of each of their first names, and with the intent to do residential real estate business in

Baltimore, Maryland. Tr. (Oct. 28, 2015 PM) at 66–67 (Carlson Igwacho), ECF No. 335. 9 He

testified, however, that, to his knowledge, CFC never actually did any business because he could

not borrow the money needed to invest in real estate. Id. A property in Baltimore was titled in

the name of CFC, but was purchased on June 5, 2013, with funds transferred from Global Intake

Account, BOA account #2254. Gov’t Ex. 172; Tr. (Oct. 29, 2015 PM) at 23–27 (Test. of

Andrew Levy), ECF No. 334; Tr. (Nov. 3, 2015 AM) at 141–43 (Hinson), ECF No. 343.

Although the registered agent listed on CFC’s Articles is Carlson Igwacho, someone else

signed his name on the Articles and “one of Global’s office[]” addresses was listed as the CFC

company address. Gov. Ex. 249; Tr. (Oct. 28, 2015 PM) at 68–70 (Carlson Igwacho), ECF No.

335. Florence and Michael Bikundi were listed as CFC’s “managing members” and were both

signatories on CFC’s three bank accounts. Gov’t Ex. 250; Tr. (Nov. 3, 2015 AM) at 143

(Hinson), ECF No. 343. Review of these CFC accounts revealed no payments to title or

insurance companies, home inspectors, or cleaning services, and no deposits from tenants or

property sales. Tr. (Nov. 3, 2015 AM) at 144 (Hinson), ECF No. 343. The only expenditures

from the three CFC accounts consistent with real estate investment were three checks totaling

approximately $40,000 that may have been related to home renovations. Id. at 143–44.

9

Michael Bikundi was not supposed to have a role in CFC, which is why his name was not included in the

company name. See Tr. (Oct. 29, 2015 AM) at 5 (Carlson Igwacho), ECF No. 332.

34

Although no evidence indicates that any business relationship existed between Global

and CFC, or that CFC provided any services to Global, id. at 149, over $6,300,000 was

transferred to CFC’s BOA account #6749, which was opened on April 25, 2013, and closed on

February 20, 2014, from four different Global accounts controlled by the defendants, id. at 145;

Gov’t Ex. 151 at 1. During that time period, an additional $150,000 was transferred from a Tri-

Continental account, Citibank account #3303, to the same CFC BOA account #6749. Gov’t Ex.

151 at 1; Tr. (Nov. 3, 2015 AM) at 146 (Hinson), ECF No. 343 (Hinson). A total of

$6,653,612.08 was deposited into that CFC account. Id.

As support for Count Nineteen, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $463,131.90 deposited on May 10, 2013 by DHCF into Global Intake

Account, BOA account #2241. Tr. (Nov. 3, 2015 PM) at 46–47 (Hinson), ECF No. 342; Gov’t

Ex. 177. The same day, $460,000 was wire transferred from that intake account to a secondary

Global account, from which $370,000 was then wire transferred the same day to CFC’s BOA

account #6749. Tr. (Nov. 3, 2015 PM) at 46–47 (Hinson), ECF No. 342.

As support for Count Twenty, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $503,224.44 deposited on June 7, 2013 by DHCF into Global Intake

Account, BOA account #2241. Id. at 47–48; Gov’t Ex. 178. The same day, $450,000 was wire

transferred from that intake account to a secondary Global account and a check for $400,000

signed by Florence Bikundi from that secondary Global account was deposited into CFC’s BOA

account #6749. Tr. (Nov. 3, 2015 PM) at 47–48 (Hinson), ECF No. 342.

As support for Count Twenty-One, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $511,481.30 deposited on June 21, 2013 by DHCF into Global Intake

Account, BOA account #2241. Id. at 48–49; Gov’t Ex. 179. The same day, $510,000 was wire

35

transferred from that intake account to a secondary Global account and a check for $240,000

signed by Florence Bikundi from that secondary Global account was deposited into CFC’s BOA

account #6749. Tr. (Nov. 3, 2015 PM) at 48–49, ECF No. 342.

As support for Count Twenty-Two, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $530,052.90 deposited on August 2, 2013 by DHCF into Global Intake

Account, BOA account #2241. Id. at 49–50; Gov’t Ex. 180. The same day, $430,000 was wire

transferred from that intake account to a secondary Global account and a check for $360,000

signed by Florence Bikundi from that secondary Global account was deposited into CFC’s BOA

account #6749. Tr. (Nov. 3, 2015 PM) at 49–50 (Hinson), ECF No. 342.

Approximately $2,390,000 in checks were written from CFC’s BOA account #6749 to

Florence Bikundi and $517,000 in checks were written to Michael Bikundi. Gov’t Ex. 151 at 2–

57; Tr. (Nov. 3, 2015 AM) at 146 (Hinson), ECF No. 343. These checks included a $50,000

check payable to Florence Bikundi referencing “mortgage;” a $150,000 check payable to

Florence Bikundi referencing “Citibank savings/checking;” a $300,010 check payable to

Florence Bikundi referencing “M&T Savings;” a $10,000 check payable to Michael Bikundi

referencing “contractor pay [b]onus;” a $10,000 check payable to Florence Bikundi referencing

“pay [b]onus;” a $91,000 check payable to Florence Bikundi; a $100,000 check payable to

Florence Bikundi referencing “Money Market Savings (M&T Bank);” a $30,000 check payable

to Florence Bikundi referencing “contractor’s pay;” a $15,000 check payable to Michael

Bikundi; and a $300,000 check payable to Florence Bikundi. Gov’t. Ex. 151 at 7–8, 11, 18–19,

21, 30, 40, 48, 53; Tr. (Nov. 3, 2015 AM) at 147–49 (Hinson), ECF No. 343.

36

2. Tri-Continental Account

According to its Articles of Incorporation, Tri-Continental was an import/export business,

created in May 2008 and located at the same address as Flo-Diamond. Tr. (Nov. 3, 2015 AM) at

135–36 (Hinson), ECF No. 343; Gov’t Ex. 187. Florence Bikundi served as the resident agent.

Id. Tri-Continental had two bank accounts, for which both Florence and Michael Bikundi were

signatories. Tr. (Nov. 3, 2015 AM) at 139 (Hinson), ECF No. 343. Citibank account #3303 in

the name of Tri-Continental was opened on August 23, 2012, and closed on February 20, 2014.

Gov’t Ex. 152 at 1; Tr. (Nov. 3, 2015 AM) at 136 (Hinson), ECF No. 343. During that time

period, a total of $6,390,028.31 was deposited into the account. Gov’t Ex. 152 at 1; Tr. (Nov. 3,

2015 AM) at 137 (Hinson), ECF No. 343.

Although no evidence indicates any business relationship existed between Global and

Tri-Continental or that Tri-Continental provided any services to Global, over $3,000,000 was

deposited into Tri-Continental’s Citibank account #3303 from two different Global accounts,

almost $1,400,000 from a Flo-Diamond account, and $30,000 from a CFC account, all

controlled by the defendants. Gov’t Ex. 152; Tr. (Nov. 3, 2015 AM) at 136–37 (Hinson), ECF

No. 343; Tr. (Nov. 4, 2015 AM) at 77–78 (Hinson), ECF No. 344.

As support for Count Sixteen, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $528,552.72 deposited on November 5, 2012 by DHCF into Global

Intake Account, PNC account #5874. Tr. (Nov. 3, 2015 PM) at 42–43 (Hinson), ECF No. 342;

Gov’t Ex. 174. The next day, $531,000 was wire transferred from that intake account to a

secondary Global account; then $400,000 was wire transferred to a Flo-Diamond account; and a

check from the Flo-Diamond account was written in the same amount for deposit into Tri-

Continental’s Citibank account #3303. Tr. (Nov. 3, 2015 PM) at 42–43 (Hinson), ECF No. 342.

37

As support for Count Seventeen, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $524,354.30 deposited on March 15, 2013 by DHCF into Global Intake

Account, BOA account #2241. Id. at 44–45; Gov’t Ex. 175. The same day, $500,000 was wire

transferred from that intake account to a secondary Global account, and then Michael Bikundi

wrote a check in the amount of $500,000 from the secondary Global account for deposit into Tri-

Continental’s Citibank account #3559. Tr. (Nov. 3, 2015 PM) at 44–45 (Hinson), ECF No. 342.

As support for Count Eighteen, Agent Hinson summarized the flow of D.C. Medicaid

funds in the amount of $478, 958.40 deposited on April 26, 2013 by DHCF into Global Intake

Account, BOA account #2241. Id. at 45–46; Gov’t Ex. 176. The same day, $400,000 was wire

transferred from that intake account to a secondary Global account and, three days later, Florence

Bikundi wrote a check in the amount of $400,000 from the secondary Global account for deposit

into Tri-Continental’s Citibank account #3303. Tr. (Nov. 3, 2015 PM) at 45–46 (Hinson), ECF

No. 342.

Agent Hinson also testified about various transactions supporting Counts Twenty-Three

through Twenty-Five, but the defendants were acquitted of those charges. 10

G. DEFENSE CASE

The defendants called three witnesses. First, Joseph Igwacho testified that his daughter,

Florence Bikundi, started using “Bikundi” over ten years ago, about the same time that Michael

Bikundi, who had been Florence Igwacho’s boyfriend, expressed his intentions to marry her by

providing a gift of dowry in “[a]bout 2003, 2005, thereabout,” in accord with Cameroonian

10

At the close of the government’s case-in-chief, the defendants moved for judgment of acquittal, under

Federal Rule of Criminal Procedure 29(a), on all charges, which motion was denied in part and reserved in part. Tr.

(Nov. 4, 2015 PM) at 3–8, 10–18, ECF No. 345. Specifically, the Court reserved decision, under Federal Rule of

Criminal Procedure 29(b), on the defendants’ motions for acquittal on all the money laundering charges in Counts

Sixteen through Twenty-Five. Id. at 18.

38

custom. Tr. (Nov. 4, 2015 PM) at 21–22 (Test. of Joseph Igwacho), ECF No. 345. Second, the

defense called Special Agent Christopher Steinbauer, who testified that an active arrest warrant

was outstanding for Chris Asongcha for his role in the Global health care fraud case. Id. at 32–

33 (Test. of Christopher Steinbaughter). Finally, the defense called Paul Toulouse, an attorney

who was retained by Michael Bikundi to handle civil and regulatory matters for Global. Id. at

35–36 (Toulouse). He testified about his successful representation of Global to defeat the

District’s efforts to revoke Global’s license as a home care agency. See id. at 34–36, 39–41, 51–

53. Global continued to operate until execution of search warrants in connection with the

investigation of this case in February 2014. Id. at 53. 11

H. THE VERDICT

The jury returned guilty verdicts against both Florence and Michael Bikundi on: Count

One (conspiracy to commit health care fraud), finding unanimously that the object of the

conspiracy was to violate 18 U.S.C. §§ 1347 and 1035, and that Florence Bikundi also conspired

to violate 42 U.S.C. § 1320a-7b(b), Verdict Form at 1, ECF No. 361; Count Two (health care

fraud), id. at 2; Count Fifteen (money laundering conspiracy), finding unanimously that the

object of the conspiracy was to violate 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1957, id.; and Counts

Sixteen through Twenty-Two (laundering of monetary instruments), id. at 3–4. Florence

Bikundi was also found guilty of Counts Thirteen (health care fraud – exclusion from program)

and Fourteen (Medicaid fraud – false statements, concealing and failing to disclose). Id. at 2.

The jury acquitted the defendants of Counts Twenty-Three through Twenty-Five

(engaging in monetary transactions in property derived from specified unlawful activity) related

11

At the close of all the evidence, the defendants renewed their motions for judgment of acquittal, which the

Court denied as to Counts One, Two, Thirteen and Fourteen, and reserved as to the money laundering charges. See

Minute Entry (Nov. 5, 2015).

39

to checks, dated January 28, 2013, June 24, 2013 and July 2, 2013, drawn on accounts into which

Global funds had allegedly been deposited. Id. at 5. 12

* * *

In accordance with the briefing schedule set by the Court, the parties timely filed their

pending post-trial motions. 13

II. LEGAL STANDARDS

A. RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL

Federal Rule of Criminal Procedure 29(a) requires a court to grant a defendant’s motion

for a judgment of acquittal of any “offense for which the evidence is insufficient to sustain a

conviction” and, further, authorizes the court “on its own” to “consider whether the evidence is

insufficient to sustain a conviction.” FED. R. CRIM. P. 29(a). The Supreme Court has

emphasized that, in evaluating the sufficiency of the evidence, “[t]he reviewing court considers

only the ‘legal’ question ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Musacchio v. United States, 136 S. Ct. 709, 715 (2016) (emphasis

in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see United States v.

Thompson, 279 F.3d 1043, 1050–51 (D.C. Cir. 2002) (“[T]he court need only determine whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”); United States

v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983) (articulating standard as “whether, viewing

12

After the jury returned its verdict, the Court denied the defendants’ motions for acquittal, which had

previously been reserved, on the money laundering charges in Counts Sixteen through Twenty-Two. Minute Entry

(Nov. 12, 2015).

13

A motion for new trial under Rule 33 must be filed within 14 days after the verdict, unless the motion is

“grounded on newly discovered evidence,” in which case the motion must be filed within three years. FED. R. CRIM.

P. 33(b). The Court granted the defendants’ motion for additional time to file any motion for a new trial until

December 7, 2015. Minute Order (Nov. 16, 2015).

40

the evidence in the light most favorable to the Government, according the Government the

benefit of all legitimate inferences, and recognizing that it is the jury’s province to determine

credibility and to weigh the evidence, a reasonable jury must necessarily entertain a reasonable

doubt on the evidence presented” (emphasis omitted)); see also United States v. Shmuckler, 792

F.3d 158, 161–62 (D.C. Cir. 2015) (same); United States v. Gooch, 665 F.3d 1318, 1326 (D.C.

Cir. 2012) (same).

This standard preserves “the factfinder’s role as weigher of the evidence” and “gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319. As “expressed more fully,” the role of a reviewing court “faced with a record of

historical facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133

(2010) (quoting Jackson, 443 U.S. at 326); see also United States v. Bostick, 791 F.3d 127, 137

(D.C. Cir. 2015) (noting that “evidence need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt” to suffice to

sustain guilty verdict) (quoting United States v. Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir.

1991)); United States v. Laureys, 653 F.3d 27, 31 (D.C. Cir. 2011) (noting that even when

“evidence in this case may be susceptible of more than one interpretation, . . . we cannot say it

was insufficient for the jury to find the necessary intent beyond a reasonable doubt”). Thus, the

evidence does “not need to be overwhelming” to clear the bar for the sufficiency of evidence.

United States v. Pasha, 797 F.3d 1122, 1135 n.9 (D.C. Cir. 2015). In short, “[t]he standard for

such challenges is very high.” Id.

41

B. RULE 33 MOTION FOR NEW TRIAL

Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant’s motion, the

court may vacate any judgment and grant a new trial if the interest of justice so requires.” FED.

R. CRIM. P. 33(a). As reflected by the use of the word “may” in Rule 33, “[t]rial courts enjoy

broad discretion in ruling on a motion for a new trial.” United States v. Wheeler, 753 F.3d 200,

208 (D.C. Cir. 2014) (citing Gaither v. United States, 413 F.2d 1061, 1078 (D.C. Cir. 1969)).

While the rules “do not define ‘interests of justice,’” the D.C. Circuit has instructed that

“granting a new trial motion is warranted only in those limited circumstances where ‘a serious

miscarriage of justice may have occurred.’” Wheeler, 753 F.3d at 208 (quoting United States v.

Rogers, 918 F.2d 207, 213 (D.C. Cir. 1990)).

A new trial motion based, in particular, on the sufficiency of the evidence, requires the

court to “weigh[] the evidence and evaluate[] the witnesses’ credibility and decide[] whether ‘a

serious miscarriage of justice may have occurred.’” United States v. Dale, 991 F.2d 819, 838

(D.C. Cir. 1993) (quoting Rogers, 918 F.2d at 213)). When “the court denies the new trial

motion because the court’s decision accords with the jury’s,” any appellate “review of the

district court’s decision is particularly narrow.” Id.; see also United States v. Pettiford, 517

F.3d 584, 591 (D.C. Cir. 2008) (“In reviewing the District Court’s decision on a new trial

motion, [the D.C. Circuit] appl[ies] a deferential standard, and will reverse only if the court

abused its discretion or misapplied the law.” (quoting United States v. Lafayette, 983 F.2d 1102,

1105 (D.C. Cir. 1993))); United States v. Kelly, 748 F.2d 691, 701 (D.C. Cir. 1984) (holding

that, as long as the weight of the evidence clearly weighs in favor of conviction, not against it,

there is no abuse of discretion in denying a new trial motion).

42

III. DISCUSSION

Florence and Michael Bikundi generally raise overlapping arguments in support of their

motions for acquittal and for a new trial, including their claims that the government presented

insufficient evidence to support their convictions, with related arguments regarding the inherent

unbelievability of the government’s witnesses, the prejudicial impact of admitting one of the

government’s almost three hundred exhibits, a supposed variance in proof on the health care

fraud conspiracy charge in Count One, and the purported need for a unanimity instruction on the

substantive health care fraud charge in Count Two. See generally Florence Bikundi’s Mem.

Supp. Mot. New Trial (“Def. FB’s R. 33 Mem.”), ECF No. 394-1; Florence Bikundi’s Mem.

Supp. Mot. J. Acquittal (“Def. FB’s R. 29 Mem.”), ECF No. 393-1; Def. MB’s R. 33 Mot.14

Michael Bikundi also seeks a new trial for failure to sever his trial from that of his spouse and for

selective prosecution. Def. MB’s R. 33 Mot. at 47–53. Each of these arguments is addressed

below.

A. CHALLENGES TO HEALTH CARE FRAUD CONVICTIONS

As noted, the defendants raise a number of inter-related arguments regarding the

sufficiency of the evidence presented to support their convictions for conspiracy to commit and

committing health care fraud. For the reasons discussed below, these arguments are unavailing.

1. Cooperators’ Testimony Was Not “Inherently Incredible”

As a threshold issue, Florence and Michael Bikundi attack the credibility of the

government’s cooperating witnesses in an effort to have this testimony discounted or put aside in

14

Since each defendant joined any argument made by the other in support of their motions, the arguments

will generally be considered as made by both defendants. See Minute Order (Dec. 15, 2016) (granting Florence

Bikundi’s motions to join and adopt Michael Bikundi’s motions); Minute Order (Jan. 6, 2016) (granting Michael

Bikundi’s motion to join and adopt Florence Bikundi’s motions); see also Def. MB’s R. 29 Mot. ¶ 4 (adopting “all

relevant arguments made on behalf of co-defendant Florence Bikundi”); Def. FB’s R. 33 Mem. at 3 n.1 (adopting

“arguments made in Mr. Michael Bikundi’s Rule 29(c) and Rule 33 Motions, as to the arguments that apply to Mrs.

Bikundi as well”).

43

evaluating the sufficiency of the evidence supporting the defendants’ convictions on Counts One

and Two. They urge that their health care fraud conspiracy and substantive charges be vacated

due to the “questionable” credibility of the cooperating witnesses, whose testimony they

characterize as “inherently incredible.” Def. FB’s R. 33 Mem. at 10; see also Michael Bikundi’s

Reply Opp’n Renewed Mot. J. Acquittal (“Def. MB’s R. 29 Reply”) at 8, ECF No. 416 (“[T]he

inherently incredible testimony of the cooperators should be disregarded as it was in its entirety

highly questionable and utterly lacking in belief.”). As support, these defendants revive

arguments about the credibility of multiple “purported co-conspirators,” who “had a previous

health care fraud experience prior to joining Global” by “engag[ing] in identical conduct in their

prior employment.” Def. FB’s R. 33 Mem. at 10. These same arguments were made at trial,

rejected by the jury, see, e.g., Tr. (Nov. 9, 2015 PM) at 98–113, ECF No. 376 (Florence

Bikundi’s summation); Tr. (Nov. 10, 2015 AM) at 11–30, ECF No. 377 (Michael Bikundi’s

summation), and certainly fare no better under more stringent standards applicable to the

doctrine of inherent unbelievability invoked by the defendants.

Consistent with the standard to be applied in evaluating the sufficiency of the evidence—

i.e., “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt,” Wright v. West, 505 U.S. 277, 284 (1992) (emphasis omitted) (quoting Jackson, 443 U.S.

at 319)—the defendants’ invocation of the inherent unbelievability doctrine essentially asks this

Court to conclude that no rational juror could have relied upon the challenged testimony. Accord

Millar v. FCC, 707 F.2d 1530, 1539 (D.C. Cir. 1983) (noting “that a witness’s testimony may be,

under the circumstances of the case, so incredible, or contrary evidence may be so

overwhelming, that demeanor could not convince a reasonable factfinder that the witness was

44

telling the truth”). This is a heavy burden, since generally the jury has the responsibility “fairly

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from the basic facts to ultimate facts.” Jackson, 443 U.S. at 319. As the Supreme Court

“[e]xpressed more fully, this means” that when the record contains “facts that support[]

conflicting inferences,” a reviewing court “must presume . . . that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.” McDaniel, 558 U.S.

at 133 (quoting Jackson, 443 U.S. at 326).

Thus, the D.C. Circuit has rejected defense claims that testimony must be set aside as

inherently incredible based upon lack of clarity in timing or chronology of events or

inconsistencies, which “are not so glaring that the . . . testimony must be a fabrication.” United

States v. Streater, 70 F.3d 1314, 1318 (D.C. Cir. 1995) (internal quotation omitted); see also

Johnson v. United States, 426 F.2d 651, 654 (D.C. Cir. 1970) (“Having made this determination

based on testimony which was not inherently incredible, the case was for the trier and not the

trial judge, and the motion for a directed verdict of acquittal was properly denied.”); accord

Farrar v. United States, 275 F.2d 868, 869 (D.C. Cir. 1959) (reversing rape conviction upon

finding that “[i]t is nearly or quite incredible that appellant could have used a knife as

extensively as the girl said he did without her ever seeing it”). In Jackson v. United States, 353

F.2d 862 (D.C. Cir. 1965), which involved review of judicial, rather than jury, fact-finding, the

Court explained that the inherently incredible doctrine may apply “if the person whose testimony

is under scrutiny made allegations which seem highly questionable in the light of common

experience and knowledge, or behaved in a manner strongly at variance with the way in which

we would normally expect a similarly situated person to behave.” Id. at 867.

45

Set against these legal principles, the defendants are unable to demonstrate anything in

the testimony of the government’s cooperating witnesses that is inherently improbable or simply

too incredible for a rational juror to accept. Specifically, Florence Bikundi points out that

Melissa Williams denied that Florence Bikundi knew about her fraudulent patient sharing

activities with four other Global employees and for a patient at another company, Vizion One. 15

Def. FB’s R. 33 Mem. at 11; Def. FB’s R. 29 Mem. at 4–5. This testimony that Williams did not

actively broadcast her illegal schemes within the Global office to her bosses, Florence and

Michael Bikundi, may be exculpatory of the defendants but that does not make the testimony

“incredible.” In addition, Florence Bikundi challenges Williams’ testimony about being present

with Florence Bikundi during surveys as belied by the fact that Williams was not working in the

office for the December 2010 survey or a follow-up survey in February 2011, and Florence

Bikundi was not present during the September 2011 survey. Def. FB’s R. 33 Mem. at 11; Def.

FB’s R. 29 Mem. at 5. The three dates cited by Florence Bikundi were not, however, the only

visits of the surveyors to the Global offices since they also conducted (or attempted to conduct)

surveys in Global’s offices on August 30, 2011 and March 13–15, 2012. See, e.g., Gov’t Ex. 21

at 6 (noting face-to-face meeting on March 13, 2012, with “Administrator . . . [and] Office

Manager/Human Resource Coordinator”); Gov’t Ex. 26 (noting “a follow-up survey was

initiated on August 30, 2011” but “had to be aborted due to the agency’s failure to have files

available for review”). At most, Florence Bikundi’s attack on Melissa Williams’s testimony that

she helped Florence Bikundi falsify documents for HRLA surveys shows a lack of clarity in the

15

Williams testified about “patient sharing” with other PCAs and described the arrangements to be that

Williams and the other PCAs would all contribute to the kickbacks and benefit from the patients’ false certification

of timesheets. See, e.g., Tr. (Nov. 2, 2015 AM) at 6–9, 39–40 (Williams), ECF No. 338.

46

witness’ recollection of survey timing that was fully disclosed during Williams’ testimony. Tr.

(Nov. 2, 2015 AM) at 82 (Williams), ECF No. 338.

Florence Bikundi also challenges the testimony of Francis James, who recounted his

conversation with Florence Bikundi when he was hired as a Global PCA. According to James,

Florence Bikundi “gave [him] the job” as a PCA and told him that “she have a client and she

would assign me to him,” but “that I don’t have to go and work the whole time. And she already

paid -- pays him, and if I want, I could just use discretion and give him a little something.” Tr.

(Oct. 19, 2015 PM) at 74 (James), ECF No. 313. James testified he understood that although the

patient, Gary Miller, was supposed to have PCA services eight hours per day, James did not have

to work those hours. Id. at 75.

Florence Bikundi proffers what she describes as a “more plausible explanation” for

James’ employment as a PCA, Def. FB’s R. 33 Mem. at 12, that places all the blame on Elke

Johnson, who “[a]s staffing coordinator, . . . brought Mr. James into Global, falsified his

documents and set him up with a patient. Elke Johnson explained to Mr. James how to fill out

timesheets, and even filled them out for him at times,” Def. FB’s R. 29 Mem. at 8; see also Def.

FB’s R. 33 Mem. at 12. Elke Johnson conceded her role in using James’ credentials to get paid

as a PCA and recruiting him to join her in the Global fraud scheme of paying patients to sign-off

on false timesheets in order to bill D.C. Medicaid for PCA service not performed. Tr. (Oct. 20,

2015 AM) at 49 (Johnson), ECF No. 315. This does not render “incredible” that Florence

Bikundi spoke to James with assurances that he could continue his full-time construction work

while also submitting false timesheets to enable Global to increase its billing to D.C. Medicaid

for PCA services. See generally Tr. (Oct. 19, 2015 PM) at 74–86 (James), ECF No. 313.

Indeed, Florence Bikundi was aware from reviewing Elke Johnson’s timesheets that Johnson

47

used Francis James’ name, and his pertinent credentials, to get paid. See Tr. (Oct. 20, 2015 AM)

at 15, 49 (Johnson), ECF No. 315.

The defendants next describe Elvis Atabe as “an admitted perjurer.” Def. FB’s R. 33

Mem. at 12; see Def. MB’s R. 33 Mot. at 22. As such, the defendants urge that Atabe’s

testimony that Florence Bikundi would show him how to create false documents “within weeks

of being hired at Global” be rejected as “inherently incredible.” Def. FB’s R. 33 Mem. at 12; see

Def. FB’s R. 29 Mem. at 7 (“[T]here is no juror that could have found beyond a reasonable doubt

that after a couple weeks of working at Global, Mrs. Bikundi would sit in a chart room with Mr.

Atabe, a man she does not know, and begin altering documents as part of a health care fraud

conspiracy.”). Yet, this focus on the short time Florence Bikundi had personally known Atabe

before engaging in illegal document alterations, ignores other salient information known to the

defendants about Atabe, namely that he was a friend of, and had been recruited to Global by,

James Mbide, who already knew the score about the fraudulent alteration of documents at

Global. See Tr. (Oct. 19, 2015 AM) at 5 (Mbide), ECF No. 314; Tr. (Oct. 21, 2015 PM) at 86,

93 (Atabe), ECF No. 317. Indeed, Atabe had worked with Mbide at another company, T&N

Reliable Nursing Services (“T&N”), where Mbide had engaged in the creation of false nurse

notes, Tr. (Oct. 16, 2015 PM) at 89 (Mbide), ECF No. 312, the same service he performed at

Global, Tr. (Oct. 19, 2015 PM) at 25, 48–49, 54 (Mbide), ECF No. 313. In other words, the jury

could reasonably conclude that Atabe was a known commodity when he was hired and, as a

result, the defendants trusted that Atabe would do what was necessary, including falsifying

documents, to extract money from D.C. Medicaid. This trust turned out to be well-placed since

Atabe testified about his creation of fake nurse notes and POCs at Global within his first week of

48

work there. Tr. (Oct. 21, 2015 AM) at 115–16 (Atabe), ECF No. 318; Tr. (Oct. 21, 2015 PM) at

48–58 (Atabe), ECF No. 317.

Similar to their challenge of Melissa Williams, the defendants contest Atabe’s testimony

that he assisted Florence Bikundi in falsifying documents during surveys since he only began

working at Global in April 2011. Def. FB’s R. 33 Mem. at 12. This does not render Atabe’s

testimony about the fraudulent survey-related activity “incredible” since the HRLA surveyors

made subsequent visits to Global on, at least, August 30, 2011, September 27, 2011, and March

13–15, 2012. See Gov’t Exs. 21, 26, 202.

Florence Bikundi expresses disbelief at “the demeanor and testimony of James Mbide,”

who despite his “sudden” shame had engaged “in falsifying documents not just at Global but also

at T&N Reliable.” Def. FB’s R. 33 Mem. at 13; see also Def. FB’s R. 29 Mem. at 6. To the

extent that the defendants seek to discount Mbide’s testimony about the defendants’ involvement

in the fraud scheme by ascribing Mbide’s illegal acts to his own efforts “to continue to

perpetuate his own fraud,” Def. FB’s Mem. at 13, they ignore the extensive corroboration by

other cooperating witnesses of Mbide’s testimony regarding Florence and Michael Bikundi’s

supervision of, and involvement in, falsifying documents and their management of Global’s

business to maximize reimbursements from D.C. Medicaid.

With respect to the beneficiaries’ testimony, Florence Bikundi dismisses Carolyn

Baldwin’s testimony about receiving pay-offs, explaining that Florence Bikundi “was not paying

Ms. Baldwin for signing timesheets, but instead for fixing a broken chair or providing a gift after

Ms. Baldwin’s husband passed away.” Def. FB’s R. 33 Mem. at 13. In light of the

corroborating testimony of Melissa Williams and Elke Johnson about payments from Florence

Bikundi to Baldwin for false timesheet certifications, the jury could have reasonably concluded

49

that Baldwin’s testimony on this issue was credible. See supra Parts I.E.1, 3. Florence Bikundi

also challenges beneficiary Alma McPherson’s testimony about complaining to Global about not

receiving PCA services when she “continued to collect money every week from her aides instead

of transferring to another agency to receive the services that she claimed she needed.” Def. FB’s

R. 33 Mem. at 13–14. Again, nothing about this testimony is “incredible.” Both Baldwin and

McPherson fully acknowledged that they used the payments made by the PCAs in return for

certifying false timesheets for services not performed. See Tr. (Nov. 2, 2015 PM) at 69

(McPherson), ECF No. 340 (testifying that she used the kickbacks on “food for the house” and

buy “dog food”); Tr. (Nov. 3, 2015 AM) at 53 (Baldwin), ECF No. 343 (testifying she used the

kickbacks “for myself” and “might have sent it to somebody in jail”); see also Tr. (Oct. 20, 2015

PM) at 6–9 (Zuniga), ECF No. 316 (testifying that, though he needed help because of his

disability, he also needed “help . . . financially”).

The defendants conveniently ignore the testimony from these and other witnesses that

demonstrates the defendants’ knowledge and direction of the overall fraud scheme and the

corroboration by the cooperating witnesses of key details of each other’s testimony. For

example, James Mbide, Elvis Atabe, Elke Johnson and Nicola White all corroborated each other

about their participation in and observations of others, including Florence Bikundi, actually

creating fake documents for both patient and Global employee files. Mbide also testified that

Michael Bikundi was present when false nurse notes were created to avoid problems with

surveys, Tr. (Oct. 19, 2015 AM) at 14 (Mbide), ECF No. 314, testimony further corroborated by

Nicola White who testified about Michael Bikundi being unsatisfied with the appearance of

falsified documents in the Global files, Tr. (Oct. 20, 2015 PM) at 73-74 (White), ECF No. 316.

Additionally, the testimony of the beneficiaries was confirmed by multiple cooperating

50

witnesses. Melissa Williams and Elke Johnson corroborate that they made payments to Carolyn

Baldwin, Tr. (Oct. 29, 2015 PM) at 46 (Williams), ECF No. 334; Tr. (Oct. 20, 2015 AM) at 27–

28 (Johnson), ECF No. 315, a beneficiary who testified that she was recruited directly by

Florence Bikundi, who was accompanied by her “tall” “boyfriend,” to be a patient of Flo-

Diamond and then became a patient of Global. Tr. (Nov. 3, 2015 AM) at 30 (Baldwin), ECF No.

343. After receiving payments from Florence Bikundi, Baldwin testified that she received

payments from “Elke” and from “Melissa.” Id. at 31–33, 45.

Moreover, the defendants’ post-trial challenges to the credibility of the government’s

witnesses were fully presented at trial, where the defendants had and exercised the opportunity to

impeach the witnesses about these subjects. “Simply put, credibility judgments are the sole

province of the jury,” which “ultimately decided whom to believe, and how important this issue

was to its verdict.” Radtke v. Lifecare Mgmt. Partners, 795 F.3d 159, 167 (D.C. Cir. 2015); see

United States v. Anderson, 498 F.2d 1038, 1039 n.1 (D.C. Cir. 1974) (affirming “trial court’s

refusal to grant a motion for judgment of acquittal” based on defense argument that “testimony

of the complaining witness was ‘inherently incredible,’” since “[t]he question of credibility was

for the jury” and sufficient evidence sustained the verdicts). Consequently, the defendants’

effort to persuade this Court to supplant the jury’s assessment of the credibility of any or all of

the government’s cooperating witnesses in evaluating the sufficiency of the evidence is rejected.

2. Ample Evidence Supports The Defendants’ Health Care Fraud

Convictions In Counts One And Two

Florence and Michael Bikundi contend that their health care fraud convictions in Counts

One and Two for conspiracy and substantive health care fraud, respectively, were not supported

by sufficient evidence, warranting a judgment of acquittal or a new trial. Def. FB’s R. 29 Mem.

51

at 3.16 Contrary to the defendants’ contention, the evidence of the defendants’ involvement in

the health care fraud scheme at Global was overwhelming and supported by the corroborating

testimony of multiple former Global employees and patients and documentary proof.

As summarized supra in Part I.C through E, Florence Bikundi initiated the health care

fraud at Global by submitting an application and agreement with fraudulent signatures, at a time

when she was excluded from participation in any federal health care program. She also issued

instructions to certain Global employees, including Francis James and Elke Johnson, to pay D.C.

Medicaid beneficiaries in return for certifying timesheets for services not performed. Francis

James admitted to submitting false timesheets for beneficiary Gary Miller (beneficiary no.

xxxx0062, see Def. FB’s R. 29 Mem. at 11; Superseding Indictment ¶ 75(2)), after Florence

Bikundi hired James, assigned a patient to him, told him she had already been paying the patient,

and told him that he should do the same and he would not have to go to work for the full eight

hours for which Medicaid would be billed. Tr. (Oct. 19, 2015 PM) at 74-75 (James), ECF No.

313. Elke Johnson testified that Florence Bikundi instructed her to pay $300 to beneficiary

William Smith (beneficiary no. xxxx4279, see Def. FB’s R. 29 Mem. at 10, Superseding

Indictment ¶ 75(1)), a patient of Carlson Igwacho’s who had signed timesheets, which had

already been submitted for payment, for a time period when Carlson Igwacho was in Cameroon.

Tr. (Oct. 20, 2015 AM) at 30-31 (Johnson), ECF No. 315. Thus, contrary to defendant’s

16

Michael Bikundi presents no explicit argument challenging the sufficiency of the evidence underlying the

health care fraud convictions but instead, as noted supra in note 14, “adopts any additional relevant arguments rasied

[sic] by co-defendant Florence Bikundi.” Def. MB’s R. 33 Mot. at 53 (emphasis omitted). The sufficiency

challenge to the defendants’ health care fraud convictions is, consequently, construed as applying to both

defendants. In addition, in response to the government’s contention that admission of an exhibit, even if erroneous,

was harmless, Michael Bikundi notes “the paucity of evidence introduced against Michael Bikundi” and “several

exculpatory items of information that were brought to the attention of the jury.” Michael Bikundi’s Reply Gov’t

Opp’n Mot. New Trial (“Def. MB’s R. 33 Reply”), at 6–7, ECF No. 417. The Court will consider these aspects of

the defendant’s argument as part of the challenge to the sufficiency of the evidence for the health care fraud

convictions.

52

assertion that there “was no evidence presented that Mrs. Bikundi knew that Carlson Igwacho

was not providing PCA services” to this patient, Def. FB’s R. 29 Mem. at 10, Elke Johnson’s

testimony establishes that Florence Bikundi had knowledge that Carlson Igwacho was not

providing the PCA services for which he was submitting timesheets.

Notwithstanding this evidence, Florence Bikundi contends that “there was insufficient

evidence to show that Mrs. Bikundi participated in these alleged kickbacks or aided and abetting

[sic] any of the other indicted or unindicted co-conspirators to do the same,” as charged in Count

Two. Def. FB’s R. 29 Mem. at 10–13. She is wrong. Both beneficiary, Carolyn Baldwin, and

Melissa Williams testified that Florence Bikundi had been paying Baldwin (beneficiary no.

xxxx2921, see Def. FB’s R. 29 Mem. at 11; Superseding Indictment ¶ 75(3)) before Melissa

Williams became Baldwin’s PCA and continued the payments for certification of false

timesheets. Tr. (Oct. 29, 2015 PM) at 46 (Williams), ECF No. 334; Tr. (Nov. 3, 2015 AM) at

31-33 (Baldwin), ECF No. 343. Both Carlson Igwacho and Violet Igwacho submitted timesheets

for PCA services to Mary Drayton (beneficiary no. xxxx2282, see Def. FB’s R. 29 Mem. at 11;

Superseding Indictment ¶ 75(5)), even when Violet Igwacho was on vacation in California with

Florence and Michael Bikundi. See Gov’t Ex. 443. Melissa Williams testified that she was

present at the defendants’ home with Irene Igwacho at times on the weekend when Irene

Igwacho should have been with her patient, Sergio Zuniga (beneficiary no. xxxx7041, see Def.

FB’s R. 29 Mem. at 12; Superseding Indictment ¶ 75(9)), who also confirmed that he falsely

certified timesheets in return for kickbacks. Tr. (Nov. 2, 2015 AM) at 99-100 (Williams), ECF

No. 338; Tr. (Oct. 20, 2015 PM) at 15-16 (Zuniga), ECF No. 316.

Other witnesses provided additional testimony about both defendants’ knowledge of the

fraudulent timesheets being submitted by PCAs. Both defendants required that timesheets be

53

submitted for approval of payroll checks and, thus, were aware of the dates and times when the

PCAs claimed on their timesheets to be providing services to patients. Tr. (Oct. 20, 2015 PM) at

50 (White), ECF No. 316; Tr. (Oct. 21, 2015 AM) at 78, 90 (White), ECF No. 318; Tr. (Nov. 2,

2015 AM) at 122 (Williams), ECF No. 338; Tr. (Oct. 20, 2015 AM) at 39 (Johnson), ECF No.

315. Yet, Melissa Williams, Irene Igwacho and Carlson Igwacho testified variously that they

worked in Global’s offices and attended school, vacations or family social events at the same

time that timesheets indicated they were providing PCA services. Tr. (Oct. 29, 2015 PM) at 103-

107 (Williams), ECF No. 334; Tr. (Oct. 27, 2015 AM) at 44-45 (Irene Igwacho), ECF No. 328;

Tr. (Oct. 28, 2015 PM) at 29-30, 34-37, 39-40 (Carlson Igwacho), ECF No. 335. Similarly,

Nicola White testified that, when Carlson Igwacho was assigned to work for a total of sixteen

hours every day of the week for two separate patients at the same time he was known to be

elsewhere, Florence Bikundi told White that she was just “trying to help Carlson” out. Tr. (Oct.

20, 2015 PM) at 100 (White), ECF No. 316.

Both Florence and Michael Bikundi also supervised Global employees in falsifying

records in patient and employee files, as well as other records necessary for maintaining Global’s

license as a D.C. Medicaid provider. Elvis Atabe testified that Florence Bikundi showed him

how to white-out documents. Tr. (Oct. 21, 2015 AM) at 114-115 (Atabe), ECF No. 318. Nicola

White testified that Florence Bikundi told her to cut and paste doctors’ signatures onto plans of

care, so that they would appear to have been approved by the doctors. Tr. (Oct. 20, 2015 PM) at

73 (White), ECF No. 316. White even heard Florence and Michael Bikundi arguing about

Michael Bikundi’s view that the documents did not look real enough. Id. at 73–74. Florence

Bikundi would then take the forged plans of care and fax them to one of Flo-Diamond’s offices

and have them faxed back to her so that the plans of care would look more real. Id. at 74–75.

54

White also testified about at least two occasions during her maternity leave when Florence

Bikundi was driven by Michael Bikundi to White’s home to retrieve so many altered POCs,

which White had created, that they could not be emailed or fit in an envelope for mailing. Id. at

95–97; Tr. (Oct. 21, 2015 AM) at 82–84 (White), ECF No. 318.

The defendants point to certain exculpatory testimony and evidence in a feeble effort to

undermine the vast amount of other evidence against them. Specifically, Michael Bikundi notes,

first, that his name was not on Global’s Medicaid Provider Agreement. Gov’t Ex. 1. Def. MB’s

R. 33 Reply at 6. Yet, the evidence is indisputable that Michael Bikundi was integrally involved

as a “boss” at Global: he exercised hiring and firing authority, including hiring Elvis Atabe and

firing James Mbide, see Tr. (Oct. 21, 2015 AM) at 109-110 (Atabe), ECF No. 318; Tr. (Oct. 16,

2015 AM) at 105 (Mbide), ECF No. 312; he reviewed timesheets and approved checks for

Global employees, see Tr. (Oct. 20, 2015 PM) at 50 (White), ECF No. 316; Tr. (Oct. 21, 2015

AM) at 90 (White), ECF No. 318; Tr. (Nov. 2, 2015 AM) at 122 (Williams), ECF No. 338; Tr.

(Oct. 20, 2015 AM) at 39 (Johnson), ECF No. 315; and he gave instructions to employees to

further the fraud scheme by checking the appearance of falsified documents for authenticity,

instructing Nicola White to order supplies for other Global employees to alter documents, Tr.

(Oct. 20, 2015 PM) at 75–76 (White), ECF No. 316, and instructing Elke Johnson to shred

Florence Bikundi’s personnel file to avoid review by surveyors, Tr. (Oct. 20, 2015 AM) at 55–58

(Johnson), ECF No. 315. See also Tr. (Oct. 19, 2015 PM) at 153 (Johnson), ECF No. 313

(testifying that Michael Bikundi would frequently say “I’m the boss here”); Tr. (Oct. 20, 2015

PM) at 28 (White), ECF No. 316 (testifying about Michael Bikundi that “I just know him as my

boss”).

55

Second, the defendants assert that they were not present and did not participate when

Global PCAs paid money to beneficiaries for certifying timesheets for services not performed.

Def. MB’s R. 33 Reply at 6; Def. FB’s R. 29 Mem. at 3, 10–13. The jury could reasonably have

found this assertion to be spurious since the defendants’ review of the timesheets as part of the

process of approving and signing paychecks would make apparent that multiple PCAs were

billing for time spent with Global patients when they were known to the defendants to be

elsewhere. The defendants also point out that Michael Bikundi instructed Elke Johnson “to

make sure [PCAs] were at work” and Nicola White to “stop the practice of billing for services

that were not provided,” and that he “fired aids for not going to work,” and hired field

supervisors to ensure PCAs were performing their work. Def. MB’s R. 33 Reply at 7. These

instructions by Michael Bikundi demonstrate only that he was fully aware of the fraudulent

timesheets being submitted for reimbursement by D.C. Medicaid and that, rather than return

money to D.C. Medicaid, he took minimal steps to address the problem. Finally, the defendants

cite Melissa Williams’ testimony that she did not tell Florence and Michael Bikundi about her

illegal schemes with other Global employees and at Vizion One for patient sharing and

kickbacks from job applicants. Def. FB’s R. 29 Mem. at 4. This testimony likely bolstered

rather than undermined Williams’ credibility since in other instances she provided evidence of

the defendants’ knowledge and participation in the ongoing fraud at Global.

In any event, the defendants made each of these points at trial and, as such, they were

subject to evaluation and weighing by the jury. To the extent this evidence may be considered

exculpatory, in light of the ample evidence presented of the defendants’ culpability, the jury

reasonably determined that the defendants were guilty of the charged health care fraud counts.

That jury determination will not be disturbed.

56

3. Ample Evidence Supports Florence Bikundi’s Health Care Fraud

Convictions In Counts Thirteen And Fourteen

Florence Bikundi was convicted in Count Thirteen of engaging in health care fraud by

“conceal[ing] her exclusion from participation in all federal health care programs in order to

make money through payments from D.C. Medicaid,” in violation of 18 U.S.C. § 1347,

Superseding Indictment ¶ 79; and in Count Fourteen of failing to disclose her exclusion with

intent fraudulently to secure payments from D.C. Medicaid, including by “actively participating

in the management and administration of GLOBAL while she was excluded” and “submit[ing]

D.C. Medicaid provider agreements that contained false and fraudulent representations and . . .

forged signatures of individuals responsible for certifying that all claims for payment submitted

to D.C. Medicaid by GLOBAL complied with” applicable regulations, in violation of 42 U.S.C.

§1320a-7b(a)(3), id. ¶ 82. To sustain a guilty verdict on these charges, the government had to

prove, beyond a reasonable doubt, that Florence Bikundi knew about her exclusion from

participation in all federal health care programs: for Count Thirteen, that she knowingly

attempted or carried out a scheme to conceal her exclusion; and, for Count Fourteen, that she

concealed or failed to disclose the exclusion with the fraudulent intent to secure a payment from

a federal health care program either in a greater amount than due or when no such payment was

authorized. See Jury Instructions at 20–21, ECF No. 350.

Underlying both charges in Counts Thirteen and Fourteen is the fact that Florence

Bikundi is excluded from participation in all federal health care programs. She does not contest

this fact; she contends only that the evidence was not sufficient to prove beyond a reasonable

doubt that she knew about her excluded status. Def. FB’s R. 29 Mem. at 13.

According to Florence Bikundi, even though she communicated with HHS-OIG using the

Greenbelt address regarding consideration of her exclusion on October 8, 1999, by the time that

57

HHS-OIG sent via regular mail the final decision of exclusion by letter, dated March 31, 2000, to

that address, “she was no longer living at the [Greenbelt] address and there is no evidence that

she received notice that she was in fact excluded.” Id. at 14. In support, the defendant cites two

documents showing that Florence Bikundi used an address on Cherryville Terrace in Beltsville,

Maryland (“Beltsville address”), on February 23, 2000 and March 8, 2000. Id. (citing Defs.’ Ex.

46 (stipulation that, on March 8, 2000, a lawsuit filed in District Court of Maryland for

Montgomery County showed this defendant’s address to be the Beltsville address) and Gov’t Ex.

112 (showing that the defendant’s application for a nursing license, dated February 23, 2000,

listed her Beltsville address)).

Notwithstanding these two documents reflecting the defendant’s use of an address other

than the Greenbelt address several weeks before HHS-OIG sent the exclusion notice to the

Greenbelt address, sufficient evidence was submitted at trial for the jury to conclude that

Florence Bikundi was fully aware of her exclusion. First, this defendant was indisputably aware

that proceedings were underway to exclude her since she communicated with HHS-OIG about

requesting additional time to respond in a letter, which was received by HHS-OIG on October 8,

1999, and reflected the same Greenbelt address. See Gov’t Ex. 107.

Second, the exclusion notice was not returned to HHS-OIG as undeliverable, Tr. (Oct. 26,

2015 PM) at 33 (Hoffman), ECF No. 327, lending support to the inference that if Florence

Bikundi had, in fact, moved from the Greenbelt address to the Beltsville address, her mail,

including the exclusion notice, was forwarded to her.

Third, information about the defendant’s exclusion was not limited to the notice sent to

her in the mail but was also publicly available, including online. HHS-OIG published notice of

the defendant’s exclusion in the Federal Register using the name, “Florence N. Igwacho.” Gov’t

58

Ex. 113 (65 Fed. Reg. 19008 (April 10, 2000)). In addition, her name is contained in an online,

searchable database maintained by HHS-OIG of excluded persons. Gov’t Exs. 114–17. Indeed,

a document seized from the defendant’s home reflects the handwritten web address for access to

the exclusion database, “http://oig.hhs.gov/fraud/exclusions.asp,” in the same red color ink as

other handwriting that the defendant’s own brother identified as written by the defendant. Gov’t

Ex. 428; Tr. (Oct. 29, 2015 AM) at 71 (Ernest Igwacho), ECF No. 332; Tr. (Oct. 29, 2015 AM)

at 51 (Test. of Robert Mosley), ECF No. 332.

Fourth, while disputing whether she received notice from HHS-OIG in March 2000 of

her exclusion, Florence Bikundi raises no dispute about her awareness of the revocation in May

2005 of both her D.C. LPN and RN licenses in the name of “Florence Ngwe aka Florence

Igwacho.” Gov’t Ex. 120; Tr. (Nov. 2, 2015 PM) at 38–39 (Test. of Karen Scipio-Skinner), ECF

No. 340. Given that Global required certain employees to execute “Certificates of Eligibility to

Participate in Federal Health Care Programs,” to certify that the employee was “not subject to

exclusion or debarment under federal law or designated in a nurse aid registry as having a

finding concerning abuse, neglect, or mistreatment of a patient or misappropriation of a patient’s

property,” Gov’t Ex. 119 (certificates, dated June 5, 2012, for five Global employees), the jury

could reasonably infer that Florence Bikundi, as Global’s owner and boss, was well versed in

this exclusion bar.

Finally, documents introduced as evidence at trial reflect that the defendant avoided using

her maiden last name “Igwacho,” under which she was excluded, in communications with

government agencies in connection with Global. 17 Instead, she used her married last name

“Bikundi,” before she was actually married in executing Global documents. See Gov’t Ex. 27 at

17

She also used her middle name “Ngwe” as her last name, rather than “Igwacho,” in the Flo-Diamond 2005

application, for a certificate of authority to transact business in D.C. See Gov’t Ex. 335.

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3 (Florence and Michael Bikundi’s Virginia marriage certificate, dated September 5, 2009); Tr.

(Nov. 3, 2015 AM) at 126 (Hinson), ECF No. 343. Global’s “Medicaid Provider Agreement”

was signed by “Florence Bikundi” on June 2, 2009, Gov’t Ex. 1.18 Likewise, when registering

Flo-Diamond as doing business in D.C., in April 2008, the defendant listed herself as a

“director” and signed her name as “Florence Bikundi.” Gov’t Ex. 335. At the same time that the

defendant used the last name “Bikundi” in communications with government agencies about

Global, she used her maiden name “Igwacho” in other contexts. See, e.g., Tr. (Oct. 16, 2015

PM) at 92 (Mbide), ECF No. 312 (Mbide testifying that when he first joined Global in 2009, the

defendant used the name “Florence Igwacho”).

In sum, when viewing the evidence in the light most favorable to the government, the

jury had ample evidence to find beyond a reasonable doubt that Florence Bikundi knew she was

excluded from federal health care programs under the name “Florence Igwacho” and, as the

government posits, deliberately used the name “Florence Bikundi” in order “to deceive Medicaid

officials regarding her true identity” and “obtain payments from D.C. Medicaid in violation of

her excluded status.” Gov’t Opp’n Def. Florence Bikundi’s Renewed R. 29 Mot. J. Acquittal

(“Gov’t Opp’n FB’s R. 29 Mot.”) at 33–34, ECF No. 405.

4. Government Utilization Report (Gov’t Ex. 439) Was Properly

Admitted

Florence and Michael Bikundi claim that the admission of Government Exhibit 439, a 13-

page document titled “Claim Summary for Dates of service 1/1/2012-2/28/2014 For

Beneficiaries receiving services in 2/2014,” out of nearly three hundred government exhibits,

18

Florence Bikundi asserts that Global’s “DDS Waiver Application actually lists Florence Igwacho as one of

the shareholders, and therefore the government should have known at the time of Global submitting its application

that Mrs. Bikundi was excluded.” Def. FB’s R. 29 Mem. at 15. This document was never admitted into evidence,

however. See Tr. (Oct. 16, 2015 AM) at 30, ECF No. 311 (government’s withdrawal of the exhibit).

60

was so “extremely” and “severely prejudicial” that a new trial is required in “the interests of

justice.” Def. FB’s R. 33 Mem. at 4, 7; Def. MB’s R. 33 Mot. at 38 (seeking new trial due to

“prejudicial impact” of Gov’t Ex. 439). The defendants’ hyperbole notwithstanding, this exhibit

was properly admitted.

The challenged exhibit, called the “PCA Services Utilization Report,” Tr. (Nov. 3, 2015

PM) at 13, ECF No. 342, was admitted, over defense objection, during the government’s case-in-

chief when DHCF’s Director of Health Care Operations Administration, Donald Shearer, was

recalled as a witness. Tr. (Nov. 4, 2015 AM) at 101, ECF No. 344 (ruling “allow[ing]

introduction of the report”). He testified that, on February 20, 2014, law enforcement conducted

search warrants at four HCAs, including Global, which together had billed D.C. Medicaid for

PCA services for 3,200 Medicaid beneficiaries. Tr. (Nov. 4, 2015 AM) at 99 (Shearer), ECF No.

344. When these four HCAs were shut down, D.C. Medicaid attempted to reach the Medicaid

beneficiaries, who were patients of the closed HCAs, to re-assign the beneficiaries to other

HCAs and ensure the continuation of needed services. Id. at 100. DHCF generated the PCA

Services Utilization Report to show the beneficiaries who received services from Global prior to

the execution of the search warrant, but who were not subsequently receiving services from

another HCA from March 31, 2014 through December 31, 2014. Id. at 100–01. The PCA

Services Utilization Report shows a total of 567 D.C. Medicaid beneficiaries for whom Global

was paid for providing services who did not continue to receive PCA services after February 28,

2014, id. at 100, excluding those beneficiaries who had died, id. at 115. This report also shows

the amount of $29,498,252.91, that D.C. Medicaid paid Global for these 567 beneficiaries from

January 2012 through February 2014. Id. at 104. After March 31, 2014, through December 31,

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2014, D.C. Medicaid paid no other HCA any money for the listed 567 Medicaid beneficiaries.

Id.

The defendants argue that the PCA Services Utilization Report should not have been

admitted (1) under Federal Rule of Criminal Procedure 16, due to the government’s untimely

disclosure, Def. FB’s R. 33 Mem. at 2, 6; Def. MB’s R. 33 Mot. at 29–34; (2) under Federal Rule

of Evidence 404(b), because the exhibit was used “for the improper purpose of demonstrating a

pattern and propensity for this type of activity,” Florence Bikundi’s Reply Gov’t Opp’n Def.’s R.

33 Mot. New Trial (“Def. FB’s R. 33 Reply”) at 2, ECF No. 418; and (3) under Federal Rule of

Evidence 403, because the exhibit misleadingly suggested that “567 beneficiaries listed in

Exhibit 439 . . . did not need services,” id. at 3, and “was speculative at best and subject to

numerous possible interpretations,” id. at 4; see Def. MB’s R. 33 Mot. at 36–38. Each of these

argument is addressed seriatim below.

(a) Timing Of Disclosure of Government Exhibit 439 Did Not Violate

Federal Rule Of Criminal Procedure 16

The defendants have a legitimate point about the timeliness of disclosure of the PCA

Services Utilization Report only the day before the close of the government’s case-in-chief. See

Tr. (Nov. 3, 2015 PM) at 14, ECF No. 342 (government counsel stating, “[t]hat report was

apparently ready today”); Tr. (Nov. 4, 2015 AM) at 113 (Shearer), ECF No. 344 (Shearer

testifying that report was generated “yesterday”). In response to the Court’s query about the

delay in production, the government explained that the report had been requested “before the

trial started,” but since “a lot of the information was commingled,” the effort apparently took

time. Tr. (Nov. 3, 2015 PM) at 17, ECF No. 342. Shearer subsequently confirmed during his

testimony that, in September, before the trial started government counsel requested that Shearer’s

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department “try to quantify the amount that we . . . could determine was the amount of actual

fraud.” Tr. (Nov. 4, 2015 AM) at 113 (Shearer), ECF No. 344.19

The government agreed to the Court’s suggestion to postpone the testimony of Shearer

until the next day and make this witness available for an interview by defense counsel, Tr. (Nov.

3, 2015 PM) at 18, ECF No. 342, and this schedule was imposed, id. at 111 (Court noting that

“the ability of defense counsel to talk to Mr. Shearer helps address some of the timeliness issues

with production of this particular report”). At no time did either defendant request a longer

continuance in order to respond to the information in the PCA Services Utilization Report. On

the contrary, counsel for Michael Bikundi expressed the view that no continuance would “cure

the problem,” of being “ambushed.” Id. at 19.

Under Rule 16(a)(1)(E), the government must disclose “documents, data . . . if the item is

within the government’s possession, custody, or control and . . . (ii) the government intends to

use the item in its case-in-chief at trial . . . .” FED. R. CRIM. P. 16(a)(1)(E). The sanction for

failure “to comply with this rule, may” include permitting discovery, subject to “just terms and

conditions,” a continuance, barring introduction of the undisclosed evidence or “any other order

that is just under the circumstances.” FED. R. CRIM. P. 16(d)(2). In this case, despite a timely

request to the local government agency to prepare a report before trial, the government simply

did not possess the PCA Services Utilization Report until the day the report was disclosed.

Based on the clear text of Rule 16, the D.C. Circuit has stressed that “the government

cannot be required to disclose evidence that it neither possesses nor controls.” United States v.

Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998). Thus, in Marshall, the Court held “that the United

19

Shearer indicated that, after he figured out a method for responding to government’s counsel’s request, the

task of compiling the information for, and then generating, the report, was completed in about two weeks. Tr. (Nov.

4, 2015 AM) at 114 (Shearer), ECF No. 344.

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States did not violate Rule 16 when it failed to turn over evidence it neither possessed nor

controlled,” which evidence was held by a local law enforcement agency and only uncovered

during a “new line of investigation” initiated during trial. Id. While the Court cautioned that

this holding “is not an invitation for the United States to engage in gamesmanship in discovery

matters” and that “a prosecutor may not sandbag a defendant by the simple expedient of leaving

relevant evidence to repose in the hands of another agency while utilizing his access to it in

preparing his case for trial,” id. at 69 (internal quotation omitted), no suggestion has been made

by the defendants in this case that any delay in production of the challenged report was the result

of bad faith or “gamesmanship,” and this Court perceives none.

In any event, the Court took appropriate steps to ensure that the defendants had an

opportunity to conduct an interview of Shearer prior to his testimony at trial and, as discussed

infra in Part III.A.4(c), they made good use of their cross-examination of this witness regarding

Government Exhibit 439. The complete prohibition on the government introducing this exhibit,

as requested by the defendants as a sanction for a Rule 16 disclosure violation, was not

warranted in these circumstances and certainly does not militate in favor of a new trial. 20

(b) Government Exhibit 439 Was Not Subject To Exclusion Under Rule

404(b)

Although Florence Bikundi made no mention of Federal Rule of Evidence 404(b) in her

moving papers, she asserts in reply that admission of Government Exhibit 439 amounted to an

“improper use of 404(b) evidence, for which the Government did not give notice” and, therefore,

20

Florence Bikundi’s relies on United States v. McCrory, 930 F.2d 63 (D.C. Cir. 1991), for the proposition

that “[t]he appropriate remedy” in the instant case “would have been to preclude the government from introducing

the evidence at trial as a violation of” Rule 16. Def. FB’s R. 33 Mem. at 6. The Court disagrees. In McCrory, the

D.C. Circuit concluded that the trial court had properly excluded undisclosed evidence, which was known to the

government before trial and rendered the defense theory at trial of misidentification “unavailable.” 930 F.2d at 68.

By contrast, in this case, the PCA Services Utilization Report was not available before trial and the defendants have

identified no defense theory rendered unavailable due to its admission.

64

this exhibit “should not have been admissible.” Def. FB’s R. 33 Reply at 2. The defendant

reasons that this exhibit supports the inference “that the 567 beneficiaries listed in the report . . .

did not need service,” when evidence presented at trial was somewhat different, namely: “that

there were certain beneficiaries who did not receive service” when, in fact, “they did need the

services.” Id. at 2–3 (emphasis in original). This belated argument first made in reply is

considered waived. See United States v. Bell, 795 F.3d 88, 100 n.14 (D.C. Cir. 2015) (“Because

his . . . Rule 403 argument is first made in his Reply, . . . the argument is waived.”); In re

Asemani, 455 F.3d 296, 300 (D.C. Cir. 2006) (finding argument “waived because it was made

for the first time in his reply brief”); Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 653 n.2 (D.C.

Cir. 1991) (“Issues may not be raised for the first time in a reply brief.”).

In any event, this argument is without merit. The gravamen of the health care fraud

charges in Counts One and Two is that the defendants “submitted and caused to be submitted

false and fraudulent claims to D.C. Medicaid seeking payment for the costs of personal care

services that were not provided.” Superseding Indictment ¶¶ 70(f), 74 (f). Whether these

services were or were not actually needed is beside the point. Indeed, the government presented

testimony at trial both of D.C. Medicaid beneficiaries who actually needed personal care services

and those who did not. For example, Sergio Zuniga, Tywonda Fenner, Carolyn Baldwin and

Mary Drayton all testified about their underlying health reasons for needing PCA services. See,

e.g., Tr. (Oct. 20, 2015 PM) at 8 (Zuniga), ECF No. 316 (Sergio Zuniga testifying that, due to his

spina bifida condition and being in a wheelchair, there are times when he “really need[s] help”);

Tr. (Nov. 2, 2015 PM) at 43–44, 48 (Fenner), ECF No. 340 (Tywonda Fenner testifying, that due

to her diabetes and being “slow,” she needs help at home to take her medications); Tr. (Nov. 3,

2015 AM) at 35, 39 (Baldwin), ECF No. 343 (Carolyn Baldwin, who is in a wheelchair,

65

testifying that PCAs assist in her home); Tr. (Oct. 28, 2015 AM) at 39, 43 (Drayton), ECF No.

329 (Mary Drayton testifying that, after a “knee operation,” she needed an aide to help).

Another beneficiary testified about being recruited to become a Global patient even

though she did not need PCA services. See Tr. (Nov. 2, 2015 PM) at 64-66 (McPherson), ECF

No. 340 (Alma McPherson testifying about being paid $100, along with two other people, to visit

doctor “play acting” need for a cane and “to say that I had some kind of disease”). Likewise,

James Mbide testified that, based on his own observations, some Global patients did not need

PCA services and should have been discharged from D.C. Medicaid, but he was told by Michael

Bikundi to “put on his business hat,” which Mbide understood as an instruction to continue

billing D.C. Medicaid for the services when they were not needed. Tr. (Oct. 19, 2015 AM) at 22

(Mbide), ECF No. 314. Each of the beneficiary witnesses admitted to falsely certifying

timesheets for personal care services, which were not provided, in return for regular cash

payments. See Tr. (Oct. 20, 2015 PM) at 9-11 (Zuniga), ECF No. 316; Tr. (Oct. 28, 2015 AM) at

42-43 (Drayton), ECF No. 329; Tr. (Nov. 2, 2015 PM) at 49-50 (Fenner), ECF No. 340; Tr.

(Nov. 2, 2015 PM) at 68-69 (McPherson), ECF No. 340; Tr. (Nov. 3, 2015 AM) at 32-33, 41

(Baldwin), ECF No. 343.

Thus, even if the PCA Services Utilization Report were construed to support the

inference suggested by the defendants—that 567 Global patients did not need PCA services—

this evidence would only bolster the same point already made by other evidence presented at

trial. In other words, this exhibit would not be subject to Rule 404(b) and is instead plainly

intrinsic to the charged health care fraud offenses. Rule 404(b) bars the admission of another

“crime, wrong, or act” offered to “prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character,” FED. R. EVID. 404(b)(1), but permits

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such evidence to be admitted for “another purpose” as long as the government provides notice of

its intent to offer the evidence, FED. R. EVID. 404(b)(2), which gives the defense the opportunity

to request limiting instructions. These requirements do not apply, however, if the court

determines that the acts are intrinsic to the charged crime. As the D.C. Circuit recently

explained, “[a] threshold question in determining the admissibility of evidence of other crimes

and bad acts is whether the evidence, in actuality, relates to acts unconnected with those for

which the defendant is charged, or instead is intertwined with the commission of the charged

crimes. Acts ‘extrinsic’ to the crime charged are subject to Rule 404(b)’s limitations; acts

‘intrinsic’ to the crime are not.” United States v. McGill, No. 06-3190, 2016 U.S. App. LEXIS

3734, at *53 (D.C. Cir. Mar. 1, 2016); see also United States v. Moore, 651 F.3d 30, 63 (D.C.

Cir. 2011) (“When evidence of such acts is ‘intrinsic’ to the charged crime, it is not evidence of

‘other’ acts and is thus wholly unregulated by Rule 404(b).”); United States v. Bowie, 232 F.3d

923, 929 (D.C. Cir. 2000); FED. R. EVID. 404(b) advisory committee’s note to 1991 amendment

(“The amendment does not extend to evidence of acts which are ‘intrinsic’ to the charged

offense.” (citation omitted)). “Generally intrinsic evidence includes ‘act[s] that [are] part of the

charged offense’ or ‘some uncharged acts performed contemporaneously with the charged crime

. . . if they facilitate the commission of the charged crime.’” Bell, 795 F.3d at 100 (quoting

Bowie, 232 F.3d at 929).

To the extent that the PCA Services Utilization Report reflects patients for whom Global

received D.C. Medicaid reimbursements when the listed patients did not need PCA services, that

evidence is an integral part of the health care fraud charges, rather than evidence of “other” acts

subject to Rule 404(b). Consequently, admission of Government Exhibit 439 did not violate

Rule 404(b).

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(c) Government Exhibit 439 Was Not Unduly Prejudicial Under Federal

Rule Of Evidence 403

The defendants contend that admission of the PCA Services Utilization Report was

unduly prejudicial and erroneous under Federal Rule of Evidence 403. Def. FB’s R. 33 Mem. at

6; Def. MB’s R. 33 Mot. at 36. At the outset, the weakness in this argument is demonstrated by

simple comparison of the numbers at issue. To the extent that the challenged report suggests that

the level of the fraud committed at Global amounted to $29,498,252.91, this amount was less

than half the full amount of the fraud claimed by the government. Specifically, the government

argued at trial that, due to Florence Bikundi’s exclusion from participation in any federal health

care program, her status as an owner and manager of Global, and the fraudulent Medicaid

provider agreement (Gov’t Ex. 1), this company should never have been accepted as a Medicaid

provider and was not entitled to receive any funds, let alone over $80,000,000, from D.C.

Medicaid. Tr. (Oct. 15, 2015 AM) at 36–37 (Gov’t Opening Statement), ECF No. 347; Tr. (Nov.

9, 2015 AM) at 16 (Gov’t Closing Statement), ECF No. 376. The defendants ignore this obvious

point, that Government Ex. 439 shows a lower amount of overall fraud than the amount claimed

by the government, to argue nonetheless that this exhibit created undue prejudice. The

defendants’ argument is predicated on two inter-related points, neither of which is persuasive.

First, the defendants argue that Shearer could not and did not provide a definitive

explanation for “why [the 567 listed beneficiaries] were no longer receiving services from

Medicaid” leaving the jury “to speculate as to why the services were not provided.” Def. MB’s

R. 33 Mot. at 36. As support, the defendants note that “[t]he D.C. Government attempted to

reach all 3200 beneficiaries and place them with new agencies but they did not reach everyone,”

making Shearer’s testimony “inconclusive and speculative.” Def. FB’s R. 33 Mem. at 6. Since

no definitive explanation was given for why the beneficiaries listed on PCA Services Utilization

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Report stopped receiving services between March 1 and December 31, 2014, the jury could have

concluded “that the beneficiaries never needed the services to begin with,” which the

government argued “would establish the ‘full extent of the fraud.’” Id. at 5 (quoting government

counsel at Tr. (Nov. 3, 2015 PM) at 15, ECF No. 342).

The defendants’ argument ignores important context. Government Exhibit 439 was not

the only evidence that raised the issue of the scope of the fraudulent and corrupt activity at

Global and, in particular, the level of fraudulent billing to D.C. Medicaid and the defendants’

knowledge of this fraudulent scheme. Eight cooperating, former Global employees and five

cooperating, former Global patients, all testified about falsified Global patient records and

timesheets, which information was corroborated by the numerous record-keeping deficiencies

cited by HRLA surveyors and administrators. In addition to the testimony about Global patients

not receiving or needing PCA services, summarized supra in Part III.A.4(b), this issue was

highlighted in questions focused on the actual number of Global employees and/or patients

involved in the falsifying of records to ensure continued billing to D.C. Medicaid. For example,

Melissa Williams testified that about thirty percent of patients wanted payments to certify

timesheets, Tr. (Oct. 29, 2015 PM) at 121 (Williams), ECF No. 334, and that twenty-five PCAs

did not provide services, id. at 123. Nicola White testified that between 2009 and 2014, “about

50 percent of those” POCs in patient files were altered. Tr. (Oct. 21, 2015 AM) at 85–86

(White), ECF No. 318. Elke Johnson testified that when she made calls to patients’ homes to

check whether the PCA was present, she found about an eighty percent compliance on weekdays,

but less, about fifty to sixty percent, on the weekends. Tr. (Oct. 20, 2015 AM) at 37, 44, 77, 105

(Johnson), ECF No. 315. Thus, as the government points out, Government Exhibit 439 could not

be a “surprise” in light of the government’s—and the defendants’ on cross-examination—efforts

69

to quantify the extent of the fraud at Global. Gov’t Opp’n Def. Michael Bikundi’s R. 33 Mot.

New Trial (“Gov’t Opp’n MB’s R. 33 Mot.”) at 9, ECF No. 407.

Moreover, the defendants effectively exploited the opportunity on cross-examination to

detail the limits of any conclusions and inferences to be drawn from Government Exhibit 439.

On direct examination, Shearer made clear that not all 3,200 beneficiaries, who were patients of

the four HCAs shut down on execution of search warrants, were reached to determine if new

HCA assignments were needed. Tr. (Nov. 4, 2015 AM) at 100 (Shearer), ECF No. 344. He also

offered no opinion as why former Global patients “didn’t continue to get services after the

execution of the search warrants,” id. at 102–03, after D.C. Medicaid had paid Global

$29,498,252.91 for those 567 beneficiaries between January 1, 2012 and February 14, 2014, id.

at 104. On cross-examination, the defendants elicited testimony that Shearer did not know (1)

how many former Global patients were contacted, id. at 106; (2) how many former Global

patients were determined to need PCA services, id. at 108; (3) why the former Global patients

were no longer receiving services, id. at 115; (4) how many former Global patients were

excluded due to death, id.; and (5) how many former Global patients no longer received PCA

services because they were no longer eligible, possibly due to an increase in income, re-location

outside D.C., or the use of a family member to provide PCA services, id. at 115–16. The

defendants’ criticism of the limits of any conclusions to be drawn from Government Exhibit 439

are clearly probative of the weight to be given to this evidence rather than its admissibility.

Second, the defendants contend that if they “had been given time and had the ability to

investigate” why the listed beneficiaries were no longer receiving PCA services, the “jurors

could have been properly educated about . . . the usefulness of the report.” Def. MB’s R. 33

Mot. at 37; see also id. at 35 (asserting that defendant “was deprived of an ability to investigate

70

the substance of Exhibit 449 [sic]”); Def. FB’s R. 33 Mem. at 6 (acknowledging that “the Court

allowed Mrs. Bikundi overnight to speak with Mr. Shearer prior to his testimony the next

morning” but nevertheless contending she “was not allowed the appropriate time to investigate

and interview the beneficiaries listed in the report to determine whether they did in fact need the

services”). Yet, the defendants made no request for any continuance to conduct such an

investigation, choosing instead to ask only that the report be excluded. Moreover, as the

government points out, “the defense had access to the same claims data as the government and

could have interviewed any of the many Medicaid beneficiaries contained in that data.” Gov’t

Opp’n Def. Florence Bikundi’s R. 33 Mot. New Trial (“Gov’t Opp’n FB’s R. 33 Mot.”) at 8,

ECF No. 404; Gov’t Opp’n MB’s R. 33 Mot. at 9.

Accordingly, notwithstanding the defendants’ vigorous and continuing objection to

Government Exhibit 439, this document was properly admitted at trial and, thus, no new trial is

warranted on this basis.

5. The Defendants Fail To Show Any Variance In Proof For Charged

Health Care Fraud Conspiracy

Count One of the Superseding Indictment charged Florence and Michael Bikundi with

conspiring with six other Global employees (i.e., Christian Asongcha, Melissa Williams, Elvis

Atabe, Carlson Igwacho, Irene Igwacho and Berenice Igwacho), from August 2009 through

February 2014 “to unlawfully enrich themselves by submitting false and fraudulent claims to

D.C. Medicaid,” Superseding Indictment ¶ 69, in violation of 18 U.S.C. § 1347 (Health Care

Fraud), 18 U.S.C. § 1035 (False Statements in Health Care matters) and 42 U.S.C. § 1320a-7b(b)

(Illegal Payments in Connection with Federal Health Care Program). Having failed to make any

request at trial for a multiple conspiracy instruction, Florence Bikundi now urges that her guilty

verdict on this charge “be vacated and a new trial ordered in the interest of justice,” Def. FB’s R.

71

33 Mem. at 9, because the evidence “established multiple conspiracies rather than the single one

and this variance prejudiced Mrs. Bikundi,” id. at 8; see also Def. FB’s R. 29 Mem. at 3

(renewing acquittal motion because “evidence presented by the government demonstrates that

there were multiple conspiracies occurring that Mrs. Bikundi was neither aware of or a part

of”). 21

Specifically, Florence Bikundi points to evidence regarding illegal “patient sharing

arrangements” that Melissa Williams had with other PCAs at Global and another company,

Vizion One, to pay beneficiaries to sign-off on timesheets verifying more hours than the PCAs

had actually worked. Def. FB’s R. 33 Mem. at 9. In addition, Florence Bikundi complains of a

prejudicial “spillover effect” from other evidence that she claims revealed conspiracies in which

Chris Asongcha, who remains a fugitive in this case, Nicola White, Elvis Atabe and other Global

employees were involved and that were “distinct and varied from the conspiracy charged in the

superseding indictment” and had “nothing to do with Mrs. Bikundi.” Id. Contrary to the

defendant’s contention, “[f]rom the overwhelming evidence of the defendants’ common goal,

interdependence, and overlapping core of participants, a reasonable jury could easily conclude

that the defendants were part of a single . . . conspiracy.” Bostick, 791 F.3d at 138.

In evaluating a defendant’s challenge to a conspiracy conviction on grounds of a variance

between the single conspiracy charged and the purported proof of multiple conspiracies, courts

must determine whether “the evidence was sufficient for the jury to conclude that the

[defendants] joined in a single conspiracy.” United States v. Tarantino, 846 F.2d 1384, 1394

21

Florence Bikundi reiterates that insufficient evidence was submitted at trial that she participated “in any

conspiracy with Melissa Williams or any of the individuals named in the indictment” or that she “entered into an

unlawful agreement with any other individual to commit health care fraud.” Def. FB’s R. 33 Mem. at 8. This

challenge to the sufficiency of the evidence to support the defendants’ convictions on Count One is addressed,

supra, in Part III.A.2.

72

(D.C. Cir. 1988). The D.C. Circuit has identified “a variety of factors” to aid in this evaluation,

the “most important of these is whether the conspirators share a common goal.” Id. at 1393.

Additional factors include “the degree of dependence inherent in the conspiracy,” the

conspirators’ “link to other conspirators” and “the overlap of participants in the various

operations claimed to comprise a single conspiracy.” Id.; see also Bostick, 791 F.3d at 137–38

(“We consider three factors to determine whether the evidence supports a conclusion that the

defendants belonged to a single conspiracy: whether the alleged participants had (1) a common

goal, (2) interdependence, and (3) overlap, such as the presence of core participants linked to all

the defendants.” (internal quotation and citation omitted)); United States v. Eiland, 738 F.3d 338,

358 (D.C. Cir. 2013) (“In determining whether the evidence supports a finding of a single

conspiracy or instead only demonstrates multiple conspiracies, we look at whether the

defendants shared a common goal, any interdependence between the alleged participants, and

any overlap among alleged participants, such as the presence of core participants linked to all the

defendants.” (quoting United States v. Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996)). When

making a variance challenge, the defendant bears the burden of showing, first, a variance

between the charged single conspiracy and the existence of multiple conspiracies and, second,

that “because of the multiplicity of defendants and conspiracies, the jury was substantially likely

to transfer evidence from one conspiracy to a defendant involved in another.” Eiland, 738 F.3d

at 358 (quoting Tarantino, 846 F.2d at 1391). The defendants simply cannot meet this burden

here. 22

22

Without any discussion, Florence Bikundi cites United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988),

and Kotteakos v. United States, 328 U.S. 750 (1946), as support for her variance challenge. Def. FB’s R. 33 Mem.

at 9. These cases are not helpful to her argument for different reasons. In Tarantino, the D.C. Circuit rejected the

defendants’ claim of a prejudicial variance of multiple conspiracies, finding instead that “even though they may not

have known the precise identity of all the other conspirators” in the single charged narcotics distribution and money

laundering conspiracy, each defendant—like the defendants in the

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