United States v. Michael Bikundi, Sr. , 926 F.3d 761 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2018 Decided June 11, 2019
No. 16-3066
UNITED STATES OF AMERICA,
APPELLEE
v.
MICHAEL D. BIKUNDI, SR.,
APPELLANT
Consolidated with 16-3067
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cr-00030-2)
(No. 1:14-cr-00030-1)
Andrew E. Goldsmith, appointed by the court, argued the
cause for appellant Florence Bikundi. Steven R. Kiersh,
appointed by the court, argued the cause for appellant Michael
D. Bikundi Sr. With them on the joint briefs were Bradley E.
Oppenheimer and Albert Pak, all appointed by the court.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,
2
and Christopher B. Brown, Assistant U.S. Attorneys. Nicholas
P. Coleman and Elizabeth H. Danello, Assistant U.S.
Attorneys, entered appearances.
Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.
Opinion for the Court PER CURIAM.
Concurring Opinion by JUDGE ROGERS.
TABLE OF CONTENTS
INTRODUCTION
I. REGULATORY AND FACTUAL BACKGROUND
II. SPEEDY TRIAL RIGHTS
A. Speedy Trial Act
B. Sixth Amendment
III. SEVERANCE
IV. ADMISSION OF EXHIBIT 439
V. SUFFICIENCY OF THE EVIDENCE
A. Money Laundering and Conspiracy
B. Exclusion-Based Health Care Fraud
C. Health Care Fraud and Conspiracy
VI. JURY INSTRUCTIONS
A. Unanimity
B. Aiding-and-Abetting Health Care Fraud
VII. SENTENCING
A. Restitution
B. Forfeiture
C. Sentencing Enhancements
1. Loss Amount
2. Abuse of Trust
3. Managerial Role
4. Violation of Administrative Order
3
PER CURIAM: Florence Bikundi and Michael Bikundi
appeal their convictions by a jury of health care fraud,
conspiracy to commit health care fraud, money laundering, and
conspiracy to commit money laundering. Suggesting that the
government’s case was premised on the misconduct of a
handful of employees rather than an entire fraudulent business,
appellants challenge the denial of Florence Bikundi’s motion
to dismiss the indictment for violation of her statutory and
constitutional rights to a speedy trial; the denial of Michael
Bikundi’s motion to sever his trial pursuant to Rule 14(a) of the
Federal Rules of Criminal Procedure; and the mid-trial
admission of a government report pursuant to Rule 16 of the
Federal Rules of Criminal Procedure. They also challenge their
enhanced sentences, the forfeiture and restitution orders, and
the denial of their motions for judgment of acquittal
notwithstanding the verdicts pursuant to Rule 29(c) of the
Federal Rules of Criminal Procedure. For the following
reasons, we affirm.
I.
Florence and Michael Bikundi (hereinafter separately
“Florence” and “Michael”) operated Global Healthcare, Inc.
(“Global”) to provide home care services that were funded
through the D.C. Medicaid program, which, in turn, is funded
in part by the federal government, to provide free or low-cost
health services to low-income individuals. See 42 U.S.C.
§ 1396-1; D.C. Code § 4-204.05; 42 C.F.R. §§ 435.900–
435.965.
A.
The D.C. Department of Health Care Finance (“DHCF”)
administers the D.C. Medicaid program. D.C. Code § 7-
4
7701.07. Home care service entities assist D.C. Medicaid
beneficiaries in performing daily living activities, such as
getting out of bed, bathing, and eating. D.C. Mun. Regs. tit. 22
§ 3915. Because these services are typically not provided by
registered nurses or other medical professionals, home care
service entities are required to conduct background checks
prior to hiring their aides. DHCF also periodically audits home
care service entities for conformance with physician-approved
home care plans, and DHCF will withhold future payments
upon finding non-compliance with regulatory requirements.
To be eligible to receive D.C. Medicaid payments, home
care service entities must be licensed by the Health Regulation
and Licensing Administration in the D.C. Department of
Health. D.C. Mun. Regs. tit. 22 § 3900. As part of this process,
a home care service entity must submit a provider application
and enter into a provider agreement. When reviewing the
application, the Health and Regulation Licensing
Administration determines whether any individual holding a
five percent or greater ownership in the entity has been
excluded from participation in any federal health care program
by checking an “exclusion list” published by the U.S.
Department of Health and Human Services (“HHS”). The
Administration also conducts annual licensure surveys to
ensure that licensed home care entities operate in accordance
with D.C. regulations.
To qualify for personal care services covered by D.C.
Medicaid, a beneficiary must obtain a prescription from a
licensed physician. The beneficiary presents the prescription to
the home care services entity, which assigns a personal care
aide to the beneficiary. A registered nurse conducts an
assessment of the beneficiary’s needs for purposes of preparing
an individualized plan of care. A licensed physician must
5
approve the plan of care within thirty days and typically is to
re-certify the plan every six months. A personal care aide
administers the services in the plan of care. Generally, a
registered nurse must visit the beneficiary at home at least once
every 30 days to determine if the beneficiary is receiving
adequate services.
Personal care aides providing services to D.C. Medicaid
beneficiaries are to keep track of the services provided on
timesheets. Each timesheet must be signed by the personal care
aide and the beneficiary to certify that the stated services were
provided. The home care services entity uses these timesheets
in support of claims submitted to DHCF for payment.
B.
Florence was indicted for health care fraud and money
laundering in February 2014. A superseding indictment filed in
December 2014, added eight co-defendants, including Michael
Bikundi. The 27-count indictment charged Florence and
Michael with health care fraud, conspiracy to commit health
care fraud, seven counts of money laundering, money
laundering conspiracy, and engaging in monetary transactions
in property derived from unlawful activity.1 It charged
Florence with health care fraud based on her exclusion from
federal health care programs and making false statements
involving federal health care programs.2 Five other co-
1
18 U.S.C. § 1347 (health care fraud); id. § 1349 (conspiracy to
commit health care fraud); id. § 1956(a)(1)(B)(i) (money
laundering); id. § 1956(h) (money laundering conspiracy); id. § 1957
(engaging in monetary transactions in property derived from
specified unlawful activity); id. § 2 (aiding and abetting).
2
18 U.S.C. § 1035 (false statements in health care matters); 42
U.S.C. § 1320a-7b (Medicaid fraud).
6
defendants entered into plea agreements that required them to
cooperate with the government.3
Viewing the evidence in the light most favorable to the
government, as we must, see, e.g., Jackson v. Virginia, 443
U.S. 307, 319 (1979), reveals overwhelming evidence of
pervasive fraud by comprehensive alteration of employee and
patient records in connection with services claimed to have
been provided by Global. The government presented
documentary and testimonial evidence, including the testimony
of eight former employees of Global.
Global had a shaky beginning in view of Florence’s formal
exclusion from participation in federal health care funding
programs as a result of the revocation of her nursing license by
the Commonwealth of Virginia in 1999. 42 U.S.C. § 1320a-7.
The parties dispute whether Florence received the letter
notifying her of the exclusion decision, but Florence certainly
received and responded to a letter informing her that exclusion
proceedings had been initiated. Her license had been issued in
her maiden name, “Florence Igwacho,” and that name appears
on the “exclusion list” published both online and in the Federal
Register by HHS. Yet in June 2009, Florence submitted a D.C.
Medicaid provider application on behalf of Global Healthcare,
Inc. to DHCF that listed “Florence Bikundi” as Global’s chief
executive officer and listed “Florence Igwacho Bikundi” as a
contact person. Although Florence and Michael were not
married until September 2009, Florence began using the name
3
Two of the co-defendants had not yet been arrested and
remained fugitives at the time of trial. Two former Global employees
who were not named as co-defendants in the indictment separately
entered into plea agreements that required cooperation with the
government. Two former Global employees testified under
government assurances that they would not be prosecuted.
7
“Bikundi” when they became engaged in 2005. According to
defense testimony by her father, it is customary in Cameroon,
Florence and Michael’s home country, for a woman to begin
using a man’s last name when he provides a dowry, which
Michael did before they became engaged. DHCF approved
Global’s application on July 30, 2009.
At Global, Florence and Michael hired and fired
employees, approved employee paychecks, and reviewed the
timesheets that were used in support of D.C. Medicaid claims
submitted to DHCF. During multiple licensure surveys,
surveyors from the Health Regulation and Licensing
Administration found deficiencies in Global’s record-keeping
and personnel files. At trial, former Global employees testified
about rampant falsification of records that they had made at the
direction of Florence and Michael. Employees testified that to
show Global had complied with licensure surveys, they
falsified employee files and patient records. For employee files,
they altered dates on employees’ certifications, included fake
credentials for employees who were undocumented
immigrants, and created false background checks on them. For
patient records, employees created falsified nurse notes, altered
dates on physician prescriptions, and altered physician
signatures on plans of care.
Global employees also testified about falsification of
timesheets submitted to DHCF and unlawful payments to D.C.
Medicaid beneficiaries. The employees testified about multiple
situations where Florence and Michael were aware that aides
were not actually providing services during time periods
claimed on timesheets. Although Florence and Michael did on
occasion withhold employee paychecks and told personal care
aides to cease billing for services they did not provide, neither
Florence nor Michael attempted, according to these employees,
8
to return the money to the D.C. Medicaid Program. Employees
also testified about making payments to D.C. Medicaid
beneficiaries to sign false timesheets in order to show Global
had provided them with home care services.
From November 2009 to February 2014, D.C. Medicaid
paid Global a total of $80.6 million. An investigation by the
Federal Bureau of Investigation showed that millions of
dollars’ worth of the D.C. Medicaid payments were deposited
directly into three Global bank accounts, for which Florence
Bikundi and Michael Bikundi were the sole signatories. Within
two days, and usually on the same day, Florence and Michael
transferred these funds to separate Global bank accounts and a
bank account for Flo-Diamond, Inc., a company incorporated
by Florence that was registered to provide home care services
to Maryland Medicaid recipients. From these secondary
accounts, Florence and Michael transferred the D.C. Medicaid
funds to many of the over one hundred other financial accounts
that they controlled. Among these accounts, Florence and
Michael transferred funds to three accounts in the name of CFC
Home & Trade Investment, LLC (“CFC”) and Tri-Continental
Trade & Development (“Tri-Continental”); Florence and
Michael were signatories on these banks accounts as well. CFC
and Tri-Continental both generated no income and had no
business relationship with Global. Ultimately, checks were
written on these bank accounts to Florence and Michael
personally.
The jury found Florence and Michael guilty as charged,
except on Counts 23, 24, and 25 for engaging in monetary
transactions in property derived from unlawful activity. The
district court sentenced Florence to 120 months’ imprisonment
and 36 months’ supervised release, and Michael to 84 months’
imprisonment and 36 months’ supervised release. The district
9
court required them to pay restitution in the amounts of
$80,620,929.20, jointly and severally. The district court also
required each of them to forfeit $39,989,956.02 (for the money
laundering offenses) and $39,701,764.42 (for the health care
fraud offenses), assessed concurrently. The district court
denied their motions for acquittal notwithstanding verdicts, and
they appeal.
We begin by examining Florence’s speedy trial claims,
then address Michael’s severance claim, and thereafter turn to
their evidentiary objections and jury instructions challenges.
Finally, we address their challenges to their sentences.
II.
Speedy Trial. Florence raises both statutory and
constitutional speedy trial claims. The statutory claim focuses
on the length of the delay and district court’s findings about
that delay, the constitutional claim on the length of the delay.
A.
Speedy Trial Act. The Speedy Trial Act provides that “the
trial of a defendant . . . shall commence within seventy days
from the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before
a judicial officer of the court in which such charge is pending,
whichever date last occurs.” 18 U.S.C. § 3161(c)(1). Certain
periods of delay are to be excluded from the seventy-day
maximum, including any period of delay resulting from an
“ends-of-justice” continuance. Id. § 3161(h)(7).
For an “ends-of-justice” continuance, the district court
must “set forth, in the record of the case, either orally or in
10
writing, its reasons for finding that the ends of justice served
by the granting of such continuance outweigh the best interests
of the public and the defendant in a speedy trial.” Id.
§ 3161(h)(7)(A). Although the “substantive balancing
underlying the decision” to grant an ends-of-justice
continuance is “entrusted to the district court’s sound
discretion,” United States v. Rice, 746 F.3d 1074, 1078 (D.C.
Cir. 2014), the findings requirement imposes “procedural
strictness,” Zedner v. United States, 547 U.S. 489, 509 (2006).
At the minimum, the district court’s findings “must indicate
that it ‘seriously weighed the benefits of granting the
continuance against the strong public and private interests
served by speedy trials.’” Rice, 746 F.3d at 1078 (quoting
United States v. Bryant, 523 F.3d 349, 361 (D.C. Cir. 2008)).
Although the findings requirement does not call for “magic
words” in weighing the competing interests, id. at 1079, mere
reference to “some rough justice basis” is insufficient, United
States v. Sanders, 485 F.3d 654, 659 (D.C. Cir. 2007).
Similarly, mere “passing reference to the case’s complexity” is
insufficient, and a district court’s failure to make the requisite
finding means the delay is to be counted against the defendant’s
speedy-trial period. Zedner, 547 U.S. at 507.
The court’s review of Speedy Trial Act claims is de novo
on questions of law and for clear error for factual findings.
United States v. Lopesierra-Gutierrez, 708 F.3d 193, 202 (D.C.
Cir. 2013).
Florence’s Speedy Trial Act clock began running on
February 21, 2014, when she was arraigned on the initial
indictment. The district court granted five ends-of-justice
continuances in the period between her arraignment and the
filing of the superseding indictment eighteen months later.
Florence challenges the sufficiency of the district court’s
11
findings for the last three continuances, on June 16, July 22,
and September 5. She maintains that the district court merely
relied on the fact that the case was “complex” without properly
acknowledging or weighing the countervailing interests of the
defendant and the public. Our review is limited to those time
periods. See Rice, 746 F.3d at 1077–78.
Florence did not object to any of the continuances until
July 1, 2015, when she moved to dismiss the superseding
indictment. The district court denied the motion while
acknowledging that for ends-of-justice continuances, it had to
find on the record that “the interest[s] in that continuance
outweigh the best interests of the public and the defendant in a
speedy trial.” Tr. 106 (July 31, 2015 AM). The district court
found that the best interests of justice would be served by
excluding the time periods “[g]iven the complexity of this case
and the reasons stated in open court.” Id. at 109.
To appreciate the thoroughness with which the district
court addressed the ends-of-justice continuances, it is worth
noting that in granting the first such continuance, on March 7,
2014, the district court concluded the interests of justice
outweighed “the interests of the parties and the public in a
speedier trial” because the purpose of the continuance was to
“permit defense counsel and the government time to both
produce discovery and review discovery.” Tr. 5 (Mar. 7, 2014
AM). The court thereby accounted for the nature of the alleged
charges, including the complexity of discovery for a conspiracy
lasting over five years in which Florence and Michael were
alleged to have altered and created false documents in support
of their claims for Medicaid reimbursement and in moving
reimbursed funds in and out of multiple accounts. On April 24,
and again on June 16, the district court concluded that the need
for more time remained, referencing “the complexity of the
12
case and the amount of discovery.” Tr. 52 (June 16, 2014 AM).
The district court granted a fourth continuance, with Florence’s
consent, on July 22, as counsel advised that they planned to
engage in further meetings and discussions and assured the
district court that they had been diligent in reviewing discovery
and discussing the case. In granting the final ends-of-justice
continuance, the district court noted that Florence was still
“sitting in jail” and pressed the government to move quickly in
procuring a superseding indictment, while also recognizing that
the government still had to produce more documents to the
defense. Succinctly, the district court stated, its “finding that
this is a complex case continues to hold,” Tr. 15 (Sept. 5, 2014
AM), and ruled that the Speedy Trial Act was tolled due to the
“complex” nature of the case, id. at 22.
The district court’s findings on the record in support of the
ends-of-justice continuances are similar to those in Rice and
Lopesierra-Gutierrez that were held to satisfy the statutory
findings requirement. In Rice, the district court justified
granting the delay based on the “large number of defendants,
the many hours of wiretaps to be transcribed and translated, and
the absence of certain defendants still awaiting extradition.”
746 F.3d at 1079. The district court took the defendants’
interests into consideration by noting that the defense would
not be in a position to adequately provide representation until
the wiretaps were complete. In Lopesierra-Gutierrez, the
district court justified the grant of the ends-of-justice
continuance on the basis of “the complexity of the case, the
nature of the prosecution, and that it would be unreasonable to
expect adequate preparation for pretrial proceedings or for the
trial itself within the time limits established under the Act.” 708
F.3d at 205. In both cases, the district court’s conclusion that a
continuance would give the defendant more time to review
discovery and to prepare for trial demonstrated that the district
13
court seriously weighed the defendant’s interest. See Rice, 746
F.3d at 1079; Lopesierra-Gutierrez, 708 F.3d at 205.
Similarly, in granting the first continuance, the district
court found that due to the large volume of discovery
underlying the charges in the initial indictment, a continuance
would “permit defense counsel and the government time to
both produce discovery and review discovery and evaluate the
evidence against [Florence].” Tr. 5 (Mar. 7, 2014 AM). This
finding shows the district court weighed Florence’s interest by
considering that a continuance would give her more time to
prepare her defense. The allegations in the initial indictment
spanned a period of six years, involving numerous submissions
of Medicaid claims. Florence concedes that the district court’s
findings to support this continuance satisfy the statutory
requirements. Appellants’ Br. 37 n.18.
Although “best practice” warrants contemporaneous,
specific explanation by the district court, see Zedner, 547 U.S.
at 507 n.7, and the district court often did so, in the
circumstances here, the court does not understand the statute to
require the district court to repeat all of the details of its
findings on the record each time it grants an ends-of-justice
continuance, particularly where the charged offenses indicate
why discovery would be prolonged. Not only were the
circumstances regarding discovery essentially unchanged
when the district court granted ends-of-justice continuances,
the district court expressly stated on June 16, 2014, that the
parties were making arrangements for “the most expeditious
way to get discovery into the hands of the defense counsel.” Tr.
52 (June 16, 2014 AM). In granting the last challenged ends-
of-justice continuance, the district court stated that its prior
reason for granting an ends-of-justice continuance continued to
apply because discovery was ongoing. Whatever ambiguity
14
may reside in the Speedy Trial Act about when the district court
must place its findings on the record, see Zedner, 547 U.S. at506–07, we hold that the district court’s consideration of the
lengthy time needed for discovery and its impact on defense
counsel’s ability to prepare for trial demonstrates that the
district court adequately weighed Florence’s interests when
considering the complexity of the case.
The district court also adequately addressed the public
interest. Florence concedes that the district court’s statements
in support of granting the first two continuances, which
referenced the interests of “the public,” satisfied the statutory
requirements. Tr. 5 (Mar. 7, 2014 AM); Tr. 9 (Apr. 24, 2014
AM); Appellants’ Br. 37 n.18. But she maintains that the
district court’s findings in support of the last three continuances
were insufficient. Yet the district court’s concern that adequate
time was needed for the defense to review the documents
produced in discovery and to prepare the defense was directly
related to the public interest that trial not proceed prematurely.
Florence consented to the next-to-last continuance, and in
granting the final continuance, the district court referenced the
fact that the underlying circumstances regarding discovery had
not changed. When asked by this court during oral argument
what rule was being sought, Florence’s counsel responded that
specific findings to support an ends-of-justice continuance
would require the district court to state on the record something
to the effect that “I’ve considered the interests of the public in
a speedy trial in this case, and given the facts and circumstances
of this case, the interests of the public outweigh the interests in
a speedy trial.” Oral Arg. 3:34–3:50. The words are slightly
different, but the district court’s on-the-record findings are to
the same effect: considering the public interest in a speedy trial
in light of affording defense counsel the opportunity to prepare
a defense to a complex fraud involving $80 million in health
15
care payments. Florence neither suggests her trial counsel
should have proceeded to trial before discovery was completed
nor challenges the district court’s statement that the parties
were arranging for the “most expeditious way to get discovery
into the hands of defense counsel.” Tr. 52 (June 16, 2014 AM).
The combination of the district court’s references to the public
interest and the efficient use of resources suffice to show that
the district court seriously weighed the public’s interests.
Therefore, Florence fails to show that the pretrial
proceedings were delayed so as to violate her statutory speedy
trial rights.
B.
Sixth Amendment. The Sixth Amendment to the United
States Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy . . .
trial.” U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S.
514, 530 (1972), the Supreme Court articulated a four-factor
balancing test for determining whether a defendant has been
deprived of this speedy trial right: the “[l]ength of delay, the
reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.” No single factor is necessary or
sufficient to find a deprivation of the right to a speedy trial
because the factors are related and must be considered together.
Id. at 533. To trigger the speedy trial analysis, the length of
delay between accusation and trial must “cross[] the threshold
dividing ordinary from ‘presumptively prejudicial’ delay.”
Doggett v. United States, 505 U.S. 647, 651–52 (1992).
Generally, a delay of one year is presumptively prejudicial. Id.at 652 n.1.
16
The court reviews the district court’s application of the
Barker factors de novo. See United States v. Tchibassa, 452
F.3d 918, 924 (D.C. Cir. 2006).
Although the delay of approximately eighteen months in
Florence’s case triggered the inquiry, the Barker factors on
balance favor the government. As to the first and second
factors, “the delay that can be tolerated for an ordinary street
crime is considerably less than a serious, complex conspiracy
charge.” Barker, 407 U.S. at 531. In Lopesierra-Gutierrez, this
court held that a three-and-a-half year delay was justifiable for
a complex conspiracy charge with complicated evidence and
multiple defendants. 708 F.3d at 203. Given the complex
conspiracy charges at issue here, with voluminous discovery
and multiple defendants, a delay of eighteen months was
justifiable. Florence also filed multiple pretrial motions as well
as an interlocutory appeal and she consented to continuances
granted on July 22, 2014, and October 7, 2014. Although not
all of her motions delayed the trial, they still contributed to the
length of proceedings. Florence does not maintain that the
government acted in bad faith in seeking ends-of-justice
continuances. See id.
As to the third factor, the fact that Florence did not assert
her speedy trial rights until she filed a motion to dismiss sixteen
months after her arraignment also weighs in the government’s
favor. The circumstances here are like those in United States v.
Taplet, 776 F.3d 875, 881 (D.C. Cir. 2015), where the
defendant “either joined in or requested many of the
continuances, and he waited fourteen months after his
arraignment before filing a motion to dismiss under the Speedy
Trial Act.” The court held no Sixth Amendment violation
occurred. Similarly, Florence consented to exclusion of time
17
under the Speedy Trial Act and did not assert her speedy trial
rights early or often.
Finally, the fourth factor favors the government. The
“presumptive prejudice” arising from delay of trial for over one
year “cannot alone carry a Sixth Amendment claim without
regard to the other Barker criteria.” Doggett, 505 U.S. at 655–
56; see also Taplet, 776 F.3d at 881. Florence offers no
explanation of how the delay impaired her defense, and thus
fails to show that her Sixth Amendment right to a speedy trial
was violated.
III.
Severance. There is a preference in the federal system for
joint trials. Zafiro v. United States, 506 U.S. 534, 537 (1993).
Rule 8(b) of the Federal Rules of Criminal Procedure permits
joinder of defendants in the same indictment when the
defendants “are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions,
constituting an offense or offenses.” Rule 14(a), however,
permits a district court to sever the defendants’ trials if the
joinder of “offenses or defendants in an indictment . . . or a
consolidation for trial appears to prejudice a defendant or the
government.” District courts retain significant flexibility to
determine how to remedy a potential risk of prejudice,
including ordering lesser forms of relief such as limiting jury
instructions. United States v. Moore, 651 F.3d 30, 95 (D.C. Cir.
2011) (per curiam). Still, the Supreme Court has cautioned that
“a district court should grant a severance motion under Rule 14
only if there is a serious risk that a joint trial would compromise
a specific trial right of one of the defendants, or prevent the jury
18
from making a reliable judgment about guilt or innocence.”
Zafiro, 506 U.S. at 539.
Michael contends that the district court erred in denying
his Rule 14(a) motion because of the unfair prejudice due to
spillover effect as a result of the disparity of evidence against
him as compared to that against Florence and the fact that they
were married. In particular, he points to the evidence that
Florence’s nursing license was revoked and the repeated
references at trial to Florence and Michael as a single unit,
“they.” The court reviews the district court’s denial of a Rule
14(a) motion for abuse of discretion, id. at 542, and we find
none.
In conspiracy trials, severance is generally not mandated
despite a disparity in evidence when there is “substantial and
independent evidence of each [defendant’s] significant
involvement in the conspiracy.” Moore, 651 F.3d at 96(quoting United States v. Tarantino, 846 F.2d 1384, 1399 (D.C.
Cir. 1988)). That is the situation here given the extensive
overlapping evidence against Florence and Michael on all
charges besides those based on Florence’s exclusion. So,
although Florence alone was charged with making false and
fraudulent representations on the Medicaid Provider
Agreement, and no evidence connected Michael to that charge,
the government presented abundant independent evidence of
Michael’s culpable conduct in operating the Global
conspiracies to commit health care fraud and money
laundering. Employees testified that he instructed them to alter
patient records and even to create records for employees that
included false information.
Michael fails to demonstrate the health care fraud charges
based on Florence’s nursing license revocation involved
19
significantly more serious charges with prejudicial spillover
effect than other evidence of his own culpability. The evidence
regarding Florence’s license and the Medicaid Provider
Agreement was part of the same overall fraudulent scheme, in
which the government’s evidence showed Florence’s and
Michael’s direct involvement. As the evidence regarding
Florence was presented at trial, the jury could readily
appreciate that the evidence about the license and Medicaid
Provider Agreement involved only Florence.
Additionally, it is not exactly uncommon for a husband
and wife to be tried together when they are charged with
committing the same or similar crimes. See, e.g., United States
v. Johnson, 569 F.2d 269, 271 (5th Cir. 1978); United States v.
Cianciulli, 476 F. Supp. 845, 848 (E.D. Pa. 1979); see also
United States v. Carbajal-Nieto, 390 F. App’x 295, 296 (4th
Cir. 2010). Here, the district court instructed the jury to
consider each defendant’s guilt separately:
[E]ach defendant is entitled to have the issue of his or
her guilt as to each of the crimes for which he or she is
on trial determined from his or her own conduct and
from the evidence that applies to him or her as if he or
she were being tried alone. You should, therefore,
consider separately each offense, and the evidence
which applies to it, and you should return separate
verdicts as to each count of the Indictment, as well as
to each defendant.
Tr. 27 (Nov. 9, 2015 AM). Further, the jury was instructed that:
The fact that you may find one defendant guilty or not
guilty on any one count of the Indictment should not
influence your verdict with respect to any other count
20
of the Indictment for that defendant. Nor should it
influence your verdict with respect to any other
defendant as to that count or any other count in the
Indictment. Thus, you may find any one or more of the
defendants guilty or not guilty on any one or more
counts of the Indictment, and you may return different
verdicts as to different defendants [and] as to different
counts.
Id. at 27–28. The jury is presumed to follow the instructions
absent evidence to doubt that they did, Weeks v. Angelone, 528
U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 U.S.
200, 211 (1987)), and Michael points to no such evidence here.
The verdict form was structured to facilitate a decision on each
defendant’s guilt separately, listing all of the charges against
Florence and Michael separately within each count.
In view of the abundant evidence of Michael’s
involvement in the Global conspiracies, the references at trial
to Florence and Michael as “they,” even when considered in
combination with the license and Medicaid Provider
Agreement evidence against Florence, do not demonstrate that
the district court abused its discretion in denying his Rule 14(a)
motion for a separate trial.
IV.
Admission of Exhibit 439. Rule 16 of the Federal Rules
of Criminal Procedure broadly mandates disclosure of material
documents within the government’s control upon a defendant’s
request. Rule 16(a)(1)(E) provides:
Upon a defendant’s request, the government must
permit the defendant to inspect or copy or photograph
21
books, papers, documents, data, photographs, tangible
objects, buildings or places . . . if the item is within the
government’s possession, custody, or control and (i) the
item is material to preparing the defense; (ii) the
government intended to use the item in its case-in-chief
at trial; or (iii) the item was obtained from or belongs to
the defendant.
Additionally, Rule 16(c) provides:
A party who discovers additional evidence or material
before or during trial must promptly disclose its
existence to the other party or the court if (1) the
evidence or material is subject to discovery or
inspection under this rule; and (2) the other party
previously requested, or the court ordered, its
production.
Defense counsel sought discovery well before trial began
in September and yet it was not until three weeks into the trial,
almost at the end of the government’s case-in-chief, that the
government disclosed Exhibit 439. A month before trial, the
prosecutor asked Don Shearer, the Director of Health Care
Operations at DHCF, if it was possible to quantify the amount
of actual fraud at Global, and Shearer prepared the report,
which purported to show that 567 D.C. Medicaid beneficiaries
for whom Global received Medicaid reimbursements did not
receive personal care services after Global closed. See
Concurring Op. at 1–2 (Rogers, J.). Defense counsel objected
to admission of Exhibit 439 on the grounds that doing so would
be “unfair” sandbagging and that identification and production
of the report was “untimely.” Tr. 16 (Nov. 3, 2015 PM). On
appeal, appellants contend that the government was obligated
under Rule 16 to disclose Exhibit 439 and the underlying data,
22
and that its admission with less than one day’s notice violated
their substantial rights. The government responds that it did not
have an obligation to disclose Exhibit 439 until it received the
report.
The court need not decide whether the government’s
terribly late production of Exhibit 439 constituted
impermissible sandbagging under Rule 16. See United States
v. Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998). Even if the
government violated Rule 16, there is no basis to conclude that
the district court abused its discretion by not excluding the
report. On cross-examination, defense counsel raised doubts
about the probative value of Exhibit 439 for quantifying the
health care fraud. Shearer, who prepared the report, admitted
that he did not know how many of Global’s previous
beneficiaries were no longer receiving Medicaid services
because they were deceased or disqualified as a result of
increased income.
Cross-examination thus took some of the sting out of the
report, much as the district court anticipated in referring to the
report as “ripe fodder” for cross-examination. Tr. 112 (Nov. 3,
2015 PM). Defense counsel objected that the district court’s
suggestion of an overnight postponement so defense counsel
could interview Shearer would not suffice. But defense counsel
did not request a continuance or move for a mistrial. Instead
defense counsel objected to admission of Exhibit 439 into
evidence. Rule 16(d) vests broad authority in the district court
to regulate discovery, including by “grant[ing] a continuance”
where “a party failed to comply with th[e] rule,” and the district
court found no bad faith by the government in the late
production of Exhibit 439. See Tr. 111 (Nov. 3, 2015 PM).
Under the circumstances, even assuming a Rule 16 violation,
appellants fail to establish the requisite prejudice to their
23
substantial rights for the court to conclude that the district court
abused its discretion by not excluding Exhibit 439.4
V.
Sufficiency of the Evidence. Florence and Michael
challenge the sufficiency of the evidence on multiple fronts,
arguing that because the government failed to prove guilt
beyond a reasonable doubt the district court erred in denying
their motions for judgment of acquittal on various counts. We
review “de novo the denial of a motion for acquittal, viewing
the evidence in the light most favorable to the Government.”
United States v. Stoddard, 892 F.3d 1203, 1213 (D.C. Cir.
2018).
A.
Money Laundering and Conspiracy. Florence and
Michael first claim that the government failed to prove beyond
a reasonable doubt they had the requisite criminal intent to
commit money laundering (Counts 16–22). To overcome this
argument, the government had to present evidence from which
a reasonable jury could find that the transactions were
“designed in whole or in part . . . to conceal or disguise the
nature, the location, the source, the ownership, or the control of
the proceeds of specified unlawful activity.” 18 U.S.C.
§ 1956(a)(1)(B)(i).
4
To the extent appellants argue the report was inadmissible
under the Federal Rules of Evidence, this argument is insufficiently
developed, Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005), and in any event, the objections come too late, see United
States v. White, 116 F.3d 903, 923 (D.C. Cir. 1997).
24
The government based the seven money laundering
convictions on seven transactions. All seven have the same
basic structure: almost immediately after D.C. Medicaid
deposited reimbursement funds into a Global intake account,
Florence and Michael moved a substantially identical amount
of money to a different Global corporate account (and, for one
transaction, from that corporate account to an account owned
by Florence’s Maryland business, Flo-Diamond). From there,
Florence and Michael quickly transferred the money to an
account associated with one of two other corporations: CFC or
Tri-Continental. Both Florence and Michael are signatories to
every bank account involved in these transactions.
According to Florence and Michael, “[n]o rational juror
could conclude” the charged “transactions were designed to
conceal the nature or source of the funds” because each
transaction “transferred money to accounts on which
Appellants had signing authority” and “that were owned by
companies that Appellants openly owned.” Appellants’ Br. 47–
48. A fundamental logical disconnect lurks in this argument:
even if Florence and Michael made no effort to conceal the
money’s ownership, they are still guilty if they tried to hide the
money’s source. Cf. United States v. Warshak, 631 F.3d 266,
320 (6th Cir. 2010) (finding sufficient evidence of intent to
conceal “the exact source of the proceeds” even when “a
number of the transactions were made under relatively open
circumstances”).
And, in fact, the evidence betrayed that Florence and
Michael were attempting to conceal the money’s provenance.
CFC and Tri-Continental had no obvious connection to the
home health care industry or, for that matter, any legitimate
raison d’être. CFC’s articles of incorporation listed its purpose
25
as “real estate investment” and Florence’s son, Carlson
Igwacho, as the company’s resident agent. Carlson, however,
testified that he never signed CFC’s articles and that the
company “didn’t do any business.” Tr. 67 (Oct. 28, 2015 PM).
Records confirmed that — despite its putative concern with
“real estate” — CFC owned a single piece of real property,
purchased with Global funds, and had no significant
expenditures associated with real estate. The record is devoid
of evidence that CFC had any independent income or clients.
Tri-Continental’s story is much the same: although its listed
purpose was the “import/export business,” there is no evidence
it ever imported or exported anything at all.
In a nutshell, the jury had ample basis to conclude that
CFC and Tri-Continental were classic sham corporations,
created for cleansing the money passing through them of any
association with D.C. Medicaid. This court has recognized that
such “funneling” of “illegal funds through various fictitious
business accounts” is a hallmark of money laundering. United
States v. Adefehinti, 510 F.3d 319, 323 (D.C. Cir. 2007)
(quoting United States v. Esterman, 324 F.3d 565, 572 (7th Cir.
2003)).
Other hallmarks of an intent to conceal populate the
broader landscape of Florence’s and Michael’s finances. For
instance, Florence and Michael routinely engaged in
“convoluted financial transactions” and “inter-company
transfers” with no clear purpose. Id. (quoting Esterman, 324
F.3d at 572). All told, Florence and Michael controlled at least
122 bank accounts, only a fraction of which had any immediate
connection to the health care industry. Nonetheless, over a five-
year period, a towering ninety percent of the money passing
through those accounts came from D.C. Medicaid (with
Maryland Medicaid being one of the “main sources” of the
26
remaining ten percent). Tr. 131 (Nov. 3, 2015 AM). In that
same period, Florence and Michael engaged in many
transactions — indeed, over seven million dollars’ worth —
involving cashier’s checks. As the government’s agent
testified, one advantage of cashier’s checks, from a money
launderer’s perspective, is that the “recipient wouldn’t know
the actual source that’s funding the check.” Tr. 96 (Nov. 4,
2015 AM). Predictably, then, aspiring launderers “frequently
use . . . cashier’s checks to . . . make the transfers that are
charged as money laundering.” United States v. Willey, 57 F.3d
1374, 1386 n.23 (5th Cir. 1995). A reasonable jury could find
based on the frequent use by Florence and Michael of such
checks, considered alongside their various other financial
maneuvers, that they sought to conceal the source of these
funds.
Florence and Michael search in vain for aid from the
handful of cases where this court has reversed money
laundering convictions. First, they invoke the principle,
articulated in United States v. Law and United States v.
Stoddard, that “when faced with an innocent explanation
sufficiently supported by the evidence to create a reasonable
doubt about the defendant’s guilt, the [g]overnment’s burden is
to present evidence sufficient to dispel that doubt.” Stoddard,
892 F.3d at 1214 (quoting Law, 528 F.3d 888, 896 (D.C. Cir.
2008)). But neither of the two explanations offered by Florence
and Michael for the transactions creates such doubt. First, they
claim the companies were Global’s “corporate siblings.” That
threadbare explanation raises more questions than it answers:
why is Global, a company with real human clients and an
independent revenue stream, sending millions of dollars to its
“siblings” that apparently do no business at all? Second,
Florence and Michael claim that they sought to avoid becoming
victims of fraud themselves after someone attempted to draw a
27
fraudulent check on a Global account. This explanation is
equally far-fetched: it might explain why they sought to move
money out of the targeted account, but it does nothing to clarify
why they created sham corporations.
Shifting gears, Florence and Michael turn to United States
v. Adefehinti where this court held that the money laundering
statute “has no application to the transparent division or deposit
of” criminal proceeds. 510 F.3d at 322. The court applied that
principle to the proceeds of a real estate fraud scheme in which
the defendants flipped properties from fake sellers to fake
buyers. Id. at 321. The charged transaction in Adefehinti began
with a settlement check from one of these fictional sellers. Id.
at 322. The check included the address of the property sold and
identified the funds as the sale’s proceeds. Id. After being
endorsed to yet another fictional person (unconnected to the
original real estate transaction), the same check was negotiated
in person at a bank. Id. “Immediately thereafter,” the proceeds
were split four ways: into two accounts for which the
defendants were signatories, into one unrelated account, and
into cash. Id. Observing that these were “simple transactions
that can be followed with relative ease,” this court held that no
juror could find an intent to conceal the source of the funds
because “all the proceeds of the initial check were either cashed
or went directly into accounts in the name of defendants or their
associates without passing through any other person’s
account.” Id. at 323 (internal quotation marks omitted).
The instant case differs fundamentally from Adefehinti.
True, both involve fake entities beyond those participating in
the initial fraud (there, the fake person negotiating the check;
here, CFC or Tri-Continental). Crucially, however, in
Adefehinti the check used to settle the transaction and later
deposited into the defendants’ accounts retained a visible link
28
to the source of the funds — the real estate transaction — until
it entered the defendants’ personal accounts. Not so here. As
the investigating agent testified, once the money went into a
CFC or Tri-Continental account, observers “would have
absolutely no way of knowing that the money . . . came from
the D.C. Government to Global Health Care.” Tr. 75 (Nov. 4,
2015 AM). And although Florence and Michael also claim that,
as in Adefehinti, the investigator admitted she could easily trace
the transactions at issue, that position rests on a
mischaracterization of the agent’s testimony. True, the agent
said that the necessary records were “readily accessible,” Tr.
97 (Nov. 3, 2015 PM), but she also clarified that the job of
actually untangling the Bikundis’ complicated finances was
laborious, requiring “many months . . . working on it seven
days a week for probably eight, ten hours a day,” Tr. 74 (Nov.
4, 2015 AM).
Having woven such an intricate web, Florence and
Michael were doing more than just divvying up or spending the
proceeds of fraud — conduct which might have given them a
better claim for acquittal under Adefehinti. Instead, the
government presented evidence on which a reasonable jury
could find that Florence and Michael created an elaborate
network of bank accounts involving two sham corporations and
funneled money into them, effacing any obvious link to D.C.
Medicaid or the health care business. Nor were these “simple
transactions . . . followed with relative ease,” 510 F.3d at 323;
nothing in Adefehinti requires a jury to acquit when the
defendants’ schemes are vulnerable to dogged investigation.
The government’s evidence allowed a reasonable jury to find
Florence and Michael had the intent to conceal, and the
substantive money laundering convictions must therefore be
affirmed.
29
Florence and Michael also challenge their money
laundering conspiracy convictions (Count 15). The jury found
that, as objects of the conspiracy, Florence and Michael
planned to conceal the source of the funds, in violation of 18
U.S.C. § 1956, and to engage in transactions using the proceeds
of their fraudulent conduct, in violation of 18 U.S.C. § 1957.
As long as the evidence is sufficient to support one of those two
objects, the court must affirm. See United States v. Johnson,
216 F.3d 1162, 1165 (D.C. Cir. 2000) (“[A] verdict cannot be
overturned on the ground that the evidence is sufficient as to
[only] one of [multiple charged acts].”). Florence and
Michael’s sole challenge to the concealment object entirely
duplicates their argument on the substantive money laundering
charges, namely that no reasonable juror could conclude the
transactions were designed to conceal the nature or ownership
of the D.C. Medicaid proceeds, and those arguments are
equally unsuccessful in the conspiracy context. We therefore
affirm the conspiracy convictions for the same reasons we
affirm their substantive convictions, without reaching the
§ 1957 object.
B.
Exclusion-Based Health Care Fraud. Florence claims that
the two counts premised on founding and operating Global
despite her exclusion from federal health care programs —
health care fraud in Count 13 and making false statements in a
health care matter in Count 14 — cannot be sustained because
the government failed to prove beyond a reasonable doubt that
she knew about that exclusion.
As the parties agree, to convict on both counts, the
government had to prove beyond a reasonable doubt that
Florence had knowledge of her federal exclusion. See 18
30
U.S.C. § 1347(a) (Count 13); 42 U.S.C. § 1320a-7b(a)(3)
(Count 14). Direct evidence of knowledge being rare, the
government is likely to rely on circumstantial evidence. United
States v. Torres, 894 F.3d 305, 311 (D.C. Cir. 2018). “Such
indirect evidence might include a defendant’s conduct before,
during, or after the charged criminal acts, or the facts and
circumstances known to [her] when [s]he acted.” Id.The government’s strongest, even compelling, evidence is
a Global employee’s resume, seized from Florence’s house,
featuring two handwritten notations nearly side-by-side. Gov.
Ex. 428 at 1. The first appears to be a reminder related to a
different employee’s resume. Id. (“Need Resume of
Administrator (James Mbide)”). The second is the complete
URL web address linking to the HHS’s searchable online
database of everyone who has been excluded from federal
health care programs — a database that includes Florence’s
maiden name. Id. (“http://oig.hhs.gov/fraud/exclusions.asp”).
Florence’s own brother testified that the handwriting on the
first notation, written in the same color as the URL address,
belonged to Florence. Florence fights the obvious inference
that she penned the second notation too, noting that her brother
was unable to identify the URL handwriting as hers. Worse
still, she claims, the jury heard no expert testimony at all about
the handwriting. These arguments needlessly make the perfect
the enemy of the good — the jury required no definitive
identification or expert analysis to apply its own common
sense. Cf. 28 U.S.C. § 1731 (“The admitted or proved
handwriting of any person shall be admissible, for purposes of
comparison, to determine genuineness of other handwriting
attributed to such person.”); Fed. R. Evid. 901(b)(3) (“A
comparison with an authenticated specimen by an expert
witness or the trier of fact” may satisfy “the requirement of
authenticating or identifying an item of evidence.” (emphasis
31
added)). Given our standard of review, the key question is what
“rational juror[s]” could conclude, not what they had to
conclude. United States v. Williams, 836 F.3d 1, 7 (D.C. Cir.
2016). And a reasonable juror — looking at the annotated
resume found in Florence’s house and armed with her brother’s
testimony — reasonably could find that Florence wrote the
website address herself.
Having identified the handwriting as Florence’s, the jury
could then reasonably infer that Florence actually visited the
listed site and typed her own maiden name into the database.
Indeed, it is more difficult to reach the opposite conclusion,
knowing as we do that Florence indisputably learned her
eligibility was in serious jeopardy when she received a letter
HHS telling her as much. That small step furnishes the final
piece of the puzzle: typing her name into the database would
have put Florence on actual notice that she was excluded from
federal health care programs, including Medicaid.
The government correctly argues that Florence’s habit of
using her married name on health care-related forms (well
before she was actually married) further supports the inference
of guilty knowledge. It takes no logical leap to conclude that
such a practice was designed to avoid triggering a hit when
regulators cross-checked Florence’s paperwork against the
HHS database. As Florence points out, she deviated from this
pattern on certain occasions, including once on Global’s
Medicaid provider application form. But a jury could
reasonably find that these isolated incidents resulted from
sloppiness rather than innocence. Florence also tells us that her
use of “Bikundi” aligns with the Cameroonian custom of using
a married name after a dowry has been paid. Superficially
attractive, this explanation falls apart on closer scrutiny.
Indeed, Florence signed one non-health care form (a mortgage
32
application) using her maiden name just days before her
wedding, years after Michael supposedly paid the dowry.
Combined with the resume notation, and viewing the evidence
as favorably as possible for the government as we must,
Florence’s selective use of “Bikundi” on health care-related
forms suggests she actually knew that using “Igwacho” might
trigger a hit in the exclusion database. Added to the rest, the
evidence is more than adequate to sustain Florence’s exclusion-
based convictions.
C.
Health Care Fraud and Conspiracy. Michael claims there
was insufficient evidence to support his conviction by the jury
on health care fraud (Count 2) and the two objects of the health
care fraud conspiracy (Count 1). Once again, it is common
ground that both charges require proof Michael intended to
defraud D.C. Medicaid. See 18 U.S.C. §§ 1347(a), 1349.
Michael’s position is that he had no such goal.
According to Michael, the district court should have
inferred that he lacked the necessary intent based on a laundry
list of things he did not personally do, including creating
Global, recruiting or paying off bogus beneficiaries, or
falsifying certain categories of documents. See Appellants’
Br. 79. To call this argument cherry-picking would be a
considerable understatement. Michael asks us to ignore heaps
of relevant evidence showing that he intended to defraud D.C.
Medicaid authorities. To hit just some of the highlights:
(1) Michael knew about and encouraged Global’s efforts
to fake or destroy records. For example, he supervised the
progress of nurses who used white-out to alter patient records
while auditors were on site waiting for those records. On
33
another occasion, he gave Florence’s personnel file to a Global
employee and instructed her to shred it just one day after
auditors requested it.
(2) Regardless of whether Michael personally recruited or
paid patients, he knew about and tolerated Global’s practice of
keeping patients ineligible for Medicaid benefits on its rolls. In
fact, when one employee suggested reassessing and
discharging some potentially unfit patients, Michael demurred,
telling the employee to “put a business hat on [his] head.” Tr.
22 (Oct. 19, 2015 AM).
(3) Michael knew that at least some Global employees
lacked current qualifications required by D.C. regulations. He
directed one staff member to erase and replace expired dates on
employee certifications.
(4) Michael once argued with Florence about the quality
of Global’s document alteration, staking out the less-than-
virtuous position that the results did not look real enough.
Given this evidence, Michael’s claim that his case is just
like United States v. Rufai, 732 F.3d 1175 (10th Cir. 2013),
fails. There, the defendant, Olalekan Rufai, assisted a long-time
acquaintance by setting up a company that the acquaintance
concededly used to defraud Medicare. Id. at 1193. The Tenth
Circuit reversed Rufai’s health care fraud conviction,
concluding the prosecution “presented no evidence that Mr.
Rufai interacted with Medicare” or “knew that [his
acquaintance] was planning to or did submit false bills for
Medicare reimbursement,” and Rufai was “never on site when
[the company] was billing Medicare.” Id. How different a
position Michael finds himself in: the government’s evidence
showed Michael did interact with D.C. Medicaid, he did know
34
Global was falsifying records, and he was on site for billing
and other fraudulent practices.
Perhaps sensing the uphill nature of his climb, Michael
claims for the first time in his reply brief that multiple
government witnesses who testified about his misdeeds at
Global were “inherently incredible.” Appellants’ Reply Br. 32.
As we must view the evidence in the light most favorable to the
government, Stoddard, 892 F.3d at 1213, the bar Michael must
clear to succeed on the inherently incredible argument,
assuming it is not forfeited, is high indeed. Credibility
determinations are properly entrusted to the jury. See Johnson
v. United States, 426 F.2d 651, 655 (D.C. Cir. 1970) (en banc)
(“Of all the issues which are in the highest order for a jury one
is hard pressed to suggest one more firmly intended and more
plainly suited for jury determination than that of credibility.”).
Michael misses that bar by a mile. His argument rests primarily
on the fact that several of the government’s witnesses were
cooperating co-defendants. But here their cooperator status
alone cannot mean that the testimony was necessarily
“inherently incredible.” His remaining objections amount to
nothing more than quibbles that the government’s evidence
could have been even stronger on certain issues, but that tells
us nothing about whether the evidence the government actually
presented was strong enough to convict.
Simply put, the government provided ample evidence for
the jury to find beyond a reasonable doubt that Michael
intended to defraud D.C. Medicaid. That finding, in turn,
suffices to sustain his substantive health care fraud conviction
and at least one object of the health care fraud conspiracy count
(namely, the very health care fraud that is the basis of the
substantive conviction). As with the money laundering
conspiracy, then, we need not address whether the evidence
35
was sufficient to support the second object the jury found
(making false statements in a health care matter). See Johnson,
216 F.3d at 1165. Michael’s health care fraud convictions must
therefore be affirmed.
VI.
Jury Instructions. Florence and Michael attempt two
challenges to the jury instructions. First, they claim that the jury
should have been charged that it had to agree unanimously on
a single health care fraud incident. Second, Michael protests
the district court’s decision to give an instruction on aiding and
abetting health care fraud. Because they failed to raise these
issues in the district court, our review is for plain error. These
arguments can only succeed if “(1) the District Court erred, (2)
the error was clear or obvious, (3) the error affected [their]
substantial rights, and (4) the error ‘seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings.’” United States v. Moore, 703 F.3d 562, 569
(D.C. Cir. 2012) (quoting United States v. Olano, 507 U.S. 725,
732–36 (1993) (second alteration in original)).
A.
Unanimity. Florence and Michael claim that the district
court erred in failing, without prompting, to instruct the jurors
that they not only had to unanimously find Florence and
Michael guilty of health care fraud in general, they also all had
to agree on the same particular fraudulent claim for
reimbursement. It is unclear whether they ground this objection
in the Fifth Amendment’s protection against duplicitous
indictments or the Sixth Amendment’s requirement for a
unanimous jury verdict. Either way, however, the argument
fails.
36
We do not consider this issue on a blank slate. In an
unbroken line of precedent stretching back over thirty years,
addressing both Fifth and Sixth Amendment concerns, this
court has repeatedly declined to find plain error under similar
circumstances. United States v. Brown, 892 F.3d 385, 393
(D.C. Cir. 2018) (“Because there is no precedent of the
Supreme Court or this court requiring a district court to give a
special unanimity instruction sua sponte in circumstances like
those in this case, the district court’s failure to do so cannot
constitute plain error.”); United States v. Hurt, 527 F.3d 1347,
1352–56 (D.C. Cir. 2008) (“The district court did not plainly
err in failing to deliver a sua sponte special unanimity
instruction.”); United States v. Klat, 156 F.3d 1258, 1266–67
(D.C. Cir. 1998) (“We cannot conclude that it was plain error
not to give a special unanimity instruction” where “an
indictment charges more than one act.”); United States v.
Mangieri, 694 F.2d 1270, 1281 (D.C. Cir. 1982) (“We cannot
conclude, however, that it was plain error not to give the more
particularized [unanimity] instruction in this case.”).
Florence and Michael have not pointed to any intervening
legal developments that have changed that conclusion. They
cite three cases to support their claim that this error was plain,
but none help. Two of these cases — United States v. Bruce,
89 F.3d 886, 890 (D.C. Cir. 1996), and United States v. Clark,
208 F. App’x 137, 141 (3d Cir. 2006) — approved of a district
court’s decision to give a special unanimity instruction; neither
addressed whether failure to give such an instruction would
have been error. The third, United States v. Adkinson, 135 F.3d
1363, 1377–78 (11th Cir. 1998), does say, in dicta, that failing
to give such an instruction was plain error. But Adkinson relies
chiefly on United States v. Gipson, 553 F.2d 453 (5th Cir.
1977), which a plurality of the Supreme Court has cast
37
significant doubt on, see Schad v. Arizona, 501 U.S. 624, 635
(1991) (“We are not persuaded that the Gipson approach really
answers the question.”). The Supreme Court’s misgivings
ultimately led this circuit to reject Gipson’s reasoning in United
States v. Harris, 959 F.2d 246, 255–56 (D.C. Cir. 1992) (per
curiam). Regardless of whether Schad and Harris leave open
the possibility that unanimity might be required under a theory
different from Gipson’s, the district court here did not plainly
err by failing, sua sponte, to apply out-of-circuit precedent with
such a dubious pedigree. Accordingly, the failure to give a
special unanimity instruction was not plain error.
B.
Aiding-and-Abetting Health Care Fraud. Michael further
claims that the district court plainly erred when it gave an
aiding and abetting instruction on the health care fraud count.
But giving the instruction was not error — much less a plain
one — because the evidence supported it. See supra pp. 30–31
(listing evidence of Michael’s involvement in facilitating
Global’s health care fraud). Moreover, any error was harmless
because the evidence was also sufficient to convict Michael as
a principal. See id; United States v. Smith, 697 F.3d 625, 637
(7th Cir. 2012) (aiding and abetting instruction was not
prejudicial where the “evidence overwhelmingly supported the
jury’s guilty verdict based on [the defendant] acting as the
principal”). The aiding and abetting instruction provides no
basis to overturn the jury’s verdict.
VII.
Sentencing. Finally, Florence and Michael challenge their
sentences, specifically the restitution orders, forfeiture
38
judgments, and sentencing enhancements imposed by the
district court. We reject each of these challenges.
A.
Restitution. As restitution, the district court ordered
Florence and Michael each to pay D.C. Medicaid
approximately $80.6 million. This sum, the district court found,
represented the total payments from D.C. Medicaid to Global
— and thus the total loss suffered by D.C. Medicaid due to
Florence and Michael’s fraud. Florence and Michael were
ordered to make restitution “jointly and severally” with each
other and the other defendants, meaning each defendant is
liable for D.C. Medicaid’s entire loss, but D.C. Medicaid may
recover no more than that amount from all of the defendants
combined. See 18 U.S.C. § 3664(h); Honeycutt v. United
States, 137 S. Ct. 1626, 1631–32 (2017); United States v.
Cano-Flores, 796 F.3d 83, 95 (D.C. Cir. 2015). We review
restitution orders for abuse of discretion. United States v. Fair,
699 F.3d 508, 512 (D.C. Cir. 2012).
The Mandatory Victims Restitution Act (“MVRA”)
directs federal courts to impose restitution when sentencing
defendants convicted of various crimes, including certain
frauds in which an identifiable victim suffered a monetary loss.
18 U.S.C. § 3663A(c)(1). In such cases, the district court “shall
order” the defendant to “make restitution to [each] victim of
the offense” in “the full amount of each victim’s losses as
determined by the court and without consideration of the
economic circumstances of the defendant.” Id. §§ 3663A(a)(1),
3664(f)(1)(A). Restitution is “essentially compensatory,” not
punitive: it simply “restore[s] a victim, to the extent money can
do so, to the position [the victim] occupied before sustaining
injury.” Fair, 699 F.3d at 512 (quoting United States v.
39
Boccagna, 450 F.3d 107, 115 (2d Cir. 2006)). Thus, restitution
is “limited to the actual, provable loss suffered by the victim
and caused by the offense conduct.” Id. The burden of proving
“the amount of the loss” is borne by the government, but the
“burden of demonstrating such other matters as the court deems
appropriate shall be upon the party designated by the court as
justice requires.” 18 U.S.C. § 3664(e). The amount of
restitution ordered by a district court must be supported by a
preponderance of the evidence. Id.Florence and Michael contest the amounts of their
restitution. They argue that the government did not carry its
burden of proving loss because the evidence failed to
distinguish between fraudulent services and “legitimate
services” performed by Global. Appellants’ Br. 85–87. By
legitimate services, Florence and Michael appear to mean the
necessary services that Global personal care aides actually
provided to real Medicaid beneficiaries. See id. at 85. Amounts
paid for such services, they argue, were not “losses” suffered
by D.C. Medicaid. After all, in exchange for such payments,
beneficiaries received necessary services covered by D.C.
Medicaid, and if the payments had not gone to Global, they
simply would have gone to a different provider. Thus, because
D.C Medicaid did not lose the entire $80.6 million it paid to
Global, restitution in that amount violates the MVRA. See id.at 86–88.
As the district court acknowledged, there was testimony
presented at trial about legitimate services being both needed
and provided by Global personal care aides to D.C. Medicaid
beneficiaries. But the district court found that “the defendants’
fraud makes it impossible to determine what, if any, services
were legitimately rendered, let alone what the [values]
associated with those legitimate services are.” Tr. 34 (June 1,
40
2016 AM). “Not only were the time sheets falsified, but the
defendants also supervised and directed the creation of phony
employee background checks, fake nurse notes, and fraudulent
plans of care.” Id. This “rampant fraud . . . permeated Global’s
operations,” potentially infecting “every patient and employee
file there.” Id. at 36.
Due to the pervasive fraud, Florence and Michael were “in
a much better position than the government to ascertain the
particular facts at issue,” specifically whether any services
were truly legitimate. Fair, 699 F.3d at 515. Indeed, on this
record, only they know the full extent of their fraudulent
operations, so they were far better-equipped to identify any
services that were unaffected by fraud in licensing, care plans,
provision, or billing.
In such circumstances, although the ultimate burden of
proving loss always remains with the government, the MVRA
authorizes the district court to place on the defendant a burden
of producing evidence of any legitimate services. 18 U.S.C.
§ 3664(e); see Fair, 699 F.3d at 515 (citing United States v.
Archer, 671 F.3d 149, 173 (2d Cir. 2011)). If the defendant
carries this burden of production, the prosecution must then
prove the fraudulent nature of those services. See Archer, 671
F.3d at 173. But, if the defendant does not produce evidence of
legitimate services, the prosecution need not show that each
and every service was fraudulent. Rather, the prosecution may
rely on the existence of a pervasive fraud to argue that all
services were infected by fraud in some way, and therefore that
payments for all services represent loss under the MVRA. See
id. at 173–74. The district court then determines the amount
lost by a preponderance of the evidence. 18 U.S.C.
§§ 3663A(a)(1), 3664(e). This approach helps ensure that
fraudsters do not benefit from the comprehensive alteration of
41
their own records. See Fair, 699 F.3d at 515; United States v.
Hebron, 684 F.3d 554, 563 (5th Cir. 2012).
Here, against significant evidence of pervasive fraud,
Florence and Michael failed to produce any specific evidence
of the value of any legitimate services. Indeed, the district court
found that they “haven’t even attempted to undertake that
daunting task because they likely can’t tell” whether any
services were legitimate. Tr. 35 (June 1, 2016 AM). “Certainly,
no witness at trial . . . who worked at Global was able to say
which employee or patient files might have been completely
legitimate and clean of fraud.” Id. Because Florence and
Michael did not carry their burden of production as to any
legitimate services, the district court properly concluded that
the $80.6 million in payments from D.C. Medicaid to Global
constituted loss under the MVRA.
B.
Forfeiture. The district court also ordered Florence and
Michael each to forfeit approximately $39.7 million (for the
health care fraud offenses) and $40.0 million (for the money
laundering offenses) to be assessed concurrently, meaning that
money forfeited by Florence counts toward her forfeiture
judgments for both health care fraud and money laundering,
and the same goes for Michael. In total, therefore, each must
forfeit approximately $40.0 million.
To calculate the forfeitures, the district court first found
that Global’s Medicaid proceeds of approximately $80 million
(less a few minor deductions) were subject to forfeiture under
the statutes for both health care fraud, 18 U.S.C. § 982(a)(7),
and money laundering, id. § 982(a)(1). The court then divided
the approximately $80 million equally between Florence and
42
Michael, reasoning that they were “equally responsible” and
should each forfeit half of the funds because they “jointly
obtained . . . the illicit funds through their shared management
and control over Global, and they effectively treated the
proceeds as joint property.” Tr. 27–28 (Apr. 27, 2016 AM).
The court also ordered Florence and Michael to forfeit specific
pieces of property, including cash, vehicles, jewelry, and real
property, with the values of the forfeited properties to be
credited on a fifty-fifty basis toward each of their forfeiture
money judgments. Reviewing such forfeiture judgments, we
examine the district court’s fact finding for clear error and its
legal interpretations de novo. United States v. Emor, 785 F.3d
671, 676 (D.C. Cir. 2015).
Florence and Michael contest the forfeiture judgments in
three ways; none is persuasive. First, they argue that the
relevant statutes do not authorize forfeiture of the entire $80
million. A defendant convicted of health care fraud must forfeit
property “that constitutes or is derived, directly or indirectly,
from gross proceeds traceable to the commission of the [health
care fraud] offense.” 18 U.S.C. § 982(a)(7). This does not
cover Global’s total proceeds, they maintain, because the
Medicaid payments for certain legitimate services were not
connected to the health care fraud offenses.
Their argument overlooks the breadth of the forfeiture
statute: “Gross proceeds traceable to” the fraud include “the
total amount of money brought in through the fraudulent
activity, with no costs deducted or set-offs applied.” United
States v. Poulin, 461 F. App’x 272, 288 (4th Cir. 2012); cf.
United States v. DeFries, 129 F.3d 1293, 1313–15 (D.C. Cir.
1997) (rejecting the argument that forfeiture of RICO
“proceeds” should be reduced to reflect defendants’ tax
payments). And whereas other forfeiture statutes allow credit
43
for “lawful services,” see, e.g., 18 U.S.C. § 981(a)(2)(B), the
statute for health care fraud does not. Here, the district court
found that Global “would not have operated but for [each]
defendant’s fraud,” and that the approximately $80 million
“was only paid due to the defendants’ persistent and rampant
fraudulent conduct.” Preliminary Order of Forfeiture
(“Florence POF”), United States v. Florence Bikundi, No. 1:14-
cr-0030-1 (D.D.C. Apr. 22, 2016), ECF No. 493 at 3 (emphasis
added); Preliminary Order of Forfeiture (“Michael POF”),
United States v. Michael Bikundi, No. 1:14-cr-0030-2 (D.D.C.
Apr. 22, 2016), ECF No. 494 at 3 (emphasis added); Tr. 27
(Apr. 27, 2016 AM) (emphasis added); see also Tr. 33 (June 1,
2016 AM) (incorporating Tr. 25 (Apr. 27, 2016 AM): Global’s
“continuing operations were maintained based on fraudulent
records in employee and patient files and fraudulent timesheets
submitted for reimbursement”). Because the pervasive fraud
was integral to each and every Medicaid payment to Global,
the district court properly determined that the total payments
“constitute[d]” or were “derived, directly or indirectly” from
“gross proceeds traceable” to each of their health care fraud
offenses. 18 U.S.C. § 982(a)(7).
Florence and Michael also argue that neither of their
concurrent forfeitures for money laundering are authorized by
statute. A defendant convicted of money laundering must
forfeit “any property, real or personal, involved in such offense,
or any property traceable to such property.” Id. § 982(a)(1).
The district court calculated these forfeitures by starting with
approximately $80.6 million, i.e., “the total value of D.C.
Medicaid payments” deposited into three Global Intake
Accounts. Florence POF at 4; Michael POF at 4. The district
court then reduced that sum by the balance remaining in the
Global Intake Accounts, which represented “the value of
property that was not transferred out of a Global Intake
44
Account into other financial accounts controlled by the
defendants.” Id. This left a “forfeiture amount” of
approximately $80 million ($79,979,712.05, to be exact),
which the court divided equally between Florence and Michael
by ordering each to forfeit approximately $40 million. Id.
Florence and Michael challenge this calculation by
pointing out that the government showed only that seven
transactions (amounting to $2.61 million) constituted actual
money laundering. This argument was not raised in the district
court, so we review its merits for plain error. See Brown, 892
F.3d at 397.
This argument ignores that the money laundering
forfeiture statute applies not only to funds that are actually
laundered — here, the $2.61 million — but also to those more
broadly “involved in” money laundering. 18 U.S.C.
§ 982(a)(1). The statute sweeps broadly because “money
laundering largely depends upon the use of legitimate monies
to advance or facilitate the scheme.” United States v. Puche,
350 F.3d 1137, 1153 (11th Cir. 2003) (quoting United States v.
Tencer, 107 F.3d 1120, 1135 (5th Cir. 1997)). Although we
have not addressed the issue, other circuits have held that funds
“involved in” money laundering include those that “facilitate”
the money laundering scheme, which encompasses
unlaundered funds when they are transferred “in order to
conceal the nature and source” of fraudulent proceeds. See id.;
United States v. McGauley, 279 F.3d 62, 76–77 (1st Cir. 2002);
United States v. Baker, 227 F.3d 955, 969–70 (7th Cir. 2000);
United States v. Bornfield, 145 F.3d 1123, 1135 (10th Cir.
1998); Tencer, 107 F.3d at 1134–35. The government offered
evidence that Florence and Michael used unlaundered funds to
facilitate the money laundering conspiracy and conceal their
proceeds by, for example, “shuffl[ing] fraud proceeds and
45
commingled untainted funds through multiple corporate,
personal, investment, trust, and international accounts” and
“utiliz[ing] commingled funds in corporate accounts in the
name of CFC and Tri-Continental to create the appearance that
they had a legitimate real estate investment business and an
import-export business.” Gov’t Mot. for Preliminary Order of
Forfeiture, United States v. Florence Bikundi, No. 1:14-cr-
0030-1 (D.D.C. Jan. 21, 2016), ECF No. 426 at 18–20; Gov’t
Mot. for Preliminary Order of Forfeiture, United States v.
Michael Bikundi, No. 1:14-cr-0030-2 (D.D.C. Jan. 21, 2016),
ECF No. 427 at 18–20. Based on this evidence, the district
court found that the funds transferred out of Global’s Intake
Accounts were “involved in” the offense because they
facilitated the money laundering conspiracy, and the funds
were thus subject to forfeiture under § 982(a)(1). Florence POF
at 4; Michael POF at 4. Given the lack of controlling precedent
in our circuit and the state of the law elsewhere, we cannot say
the district court plainly erred.
Second, Florence and Michael contend that the forfeiture
judgments are inconsistent with Honeycutt v. United States,
137 S. Ct. 1626 (2017), because they impose joint and several
liability. There, the Supreme Court held that the drug-crime
forfeiture statute does not authorize joint and several liability;
instead, such forfeiture “is limited to property the defendant
himself actually acquired as the result of the [drug] crime.” Id.
at 1635. Florence and Michael maintain that Honeycutt’s logic
extends to the forfeiture statutes at issue here, limiting their
forfeitures to the criminal proceeds personally attributable to
each defendant and “no other.” Appellants’ Br. 89–90 & n.37
(citing United States v. Sanjar, 876 F.3d 725, 749 (5th Cir.
2017), which applied Honeycutt in the context of a forfeiture
under § 982(a)(7)).
46
The forfeiture statutes at issue in this case arguably define
forfeitable property more broadly than that in Honeycutt, so it
is unclear whether Honeycutt’s logic extends to Florence’s and
Michael’s forfeitures. Compare 18 U.S.C. § 982(a)(1), (7)
(subjecting to forfeiture the property “involved in” money
laundering and the “gross proceeds traceable to” a health care
fraud), with 21 U.S.C. § 853(a)(1) (subjecting to forfeiture the
drug-crime proceeds “obtained” by a defendant). But we need
not resolve that question because the forfeitures here do not
impose joint and several liability. In calculating the forfeitures
under both § 982(a)(1) and § 982(a)(7), the district court found
that both Florence and Michael were integrally involved with
Global’s fraudulent operations, and thus they “jointly
obtained” and were “equally responsible for” the criminal
proceeds. Tr. 27–28 (Apr. 27, 2016 AM). Based on that
finding, the court ordered each defendant to forfeit half of the
criminal proceeds. That’s not joint and several liability, but
rather an equal division of liability between the two
masterminds of the conspiracy. And since Florence and
Michael “effectively treated the proceeds as joint property,”
id., ordering them each to forfeit half of the proceeds
reasonably ensured that the forfeiture judgments did not exceed
an amount that each defendant “actually acquired,” Honeycutt,
137 S. Ct. at 1635.
Third, Florence and Michael argue that the forfeiture
judgments violate the Eighth Amendment, which prohibits
“excessive fines.” U.S. Const. amend. VIII. “[A]t the time the
Constitution was adopted, the word ‘fine’ was understood to
mean a payment to a sovereign as punishment for some
offense.” United States v. Bajakajian, 524 U.S. 321, 327 (1998)
(internal quotation marks omitted). The Excessive Fines
Clause thus “limits the government’s power to extract
payments, whether in cash or in kind, as punishment for some
47
offense.” Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (quoting
Bajakajian, 524 U.S. at 328). “Our analysis under the
Excessive Fines Clause entails two steps: (1) determining
whether the government extracted payments for the purpose of
punishment; and (2) assessing whether the extraction was
excessive. The first step determines whether the Excessive
Fines Clause applies, and the second determines if the Clause
was violated.” Consol. Commc’ns of Cal. Co. v. FCC, 715 F.
App’x 13, 15 (D.C. Cir. 2018) (unpublished per curiam)
(citation omitted); see Bajakajian, 524 U.S. at 328, 334.
At the first step, the district court held that the Clause does
not apply because the forfeitures were not punitive, but rather
“purely remedial.” Tr. 32–33 (Apr. 27, 2016 AM). Florence
and Michael argue that this was error, see Appellants’ Br. 91–
92, but we need not address the issue. For even if the forfeitures
are punitive and thus the Excessive Fines Clause applies, the
forfeitures do not run afoul of the Clause at the second step.
A punitive forfeiture violates the Excessive Fines Clause
“if it is grossly disproportional to the gravity of a defendant’s
offense.” Bajakajian, 524 U.S. at 334. At the outset, we “note
the Court’s admonition that, though this is a constitutional
injury, ‘judgments about the appropriate punishment for an
offense belong in the first instance to the legislature.’” Collins
v. SEC, 736 F.3d 521, 527 (D.C. Cir. 2013) (quoting
Bajakajian, 524 U.S. at 336). In authorizing large forfeiture
judgments for the crimes of which Florence and Michael were
convicted, Congress determined that the offenses are grave,
which carries significant weight in our analysis. See id.Moreover, the total forfeiture levied against Florence and
Michael for health care fraud corresponds one-to-one to the
amount they derived from their fraud, and the total forfeiture
levied concurrently for money laundering likewise corresponds
48
one-to-one to funds involved in that crime. Given the close
match between the amounts of the illicit funds and the ensuing
judgments, the penalties were not “grossly disproportional” to
Florence’s and Michael’s crimes.
Bajakajian confirms this conclusion. There, the Supreme
Court discussed four factors: (1) the essence of the crime; (2)
whether the defendant fit into the class of persons for whom the
statute was principally designed; (3) the maximum sentence
and fine that could have been imposed; and (4) the nature of
the harm caused by the defendant’s conduct. See Bajakajian,
524 U.S. at 337–40; see also United States v. Varrone, 554 F.3d
327, 331 (2d Cir. 2009) (describing the four factors). These
factors “hardly establish a discrete analytic process,” but we
have “review[ed] them briefly to see if there are danger
signals” when upholding a civil penalty challenged under the
Excessive Fines Clause. Collins, 736 F.3d at 526–27.
All four factors confirm that the forfeitures imposed
against Florence and Michael do not violate the Excessive
Fines Clause. (1) The essence of their crime was grave. They
personally orchestrated a sprawling fraud involving falsified
licenses, timesheets, and bills. And far from being a one-off
violation, the scheme lasted for years and involved numerous
misdeeds. (2) Florence and Michael fall squarely within the
class of criminals targeted by the relevant forfeiture statutes:
health care fraudsters and money launderers. (3) The statutes
of conviction and the Sentencing Guidelines authorize heavy
prison sentences and fines. See 18 U.S.C. § 1347(a) (10-year
maximum prison sentence for health care fraud); id.§ 1956(a)(1) (20-year maximum sentence for money
laundering, along with a fine of twice the value of the property
involved in the money laundering transaction); U.S.S.G.
§§ 2B1.1, 3B1.1, 3B1.3, 2S1.1, 5A. (4) Florence and Michael
49
caused significant harm by defrauding D.C. Medicaid out of
millions of dollars meant for the needy. Such harm is unlike
that deemed “minimal” in Bajakajian, where the defendant
failed to follow a reporting requirement, “[t]here was no fraud
on the United States, and [the defendant] caused no loss to the
public fisc.” 524 U.S. at 339.
Florence and Michael ask us to consider one more factor:
their ability to pay the forfeitures. On their telling, the
forfeitures are grossly disproportional because the forfeitures
are “so large that Appellants will surely never be able to pay
them,” and they effectively “sentence Appellants to lifetimes
of bankruptcy.” Appellants’ Br. 91.5 Because Florence and
Michael did not raise this argument in the district court, we will
reverse only if the district court plainly erred, meaning that the
error must be “obvious” or “clear under current law.” Hurt, 527
5
Although most circuits assess proportionality without
considering a defendant’s ability to pay, see, e.g., United States v.
Beecroft, 825 F.3d 991, 997 n.5 (9th Cir. 2016); United States v.
Smith, 656 F.3d 821, 828–29 (8th Cir. 2011); United States v. 817
N.E. 29th Drive, 175 F.3d 1304, 1311 (11th Cir. 1999), appellants’
argument draws support from the First Circuit, see United States v.
Levesque, 546 F.3d 78, 84–85 (1st Cir. 2008), and from scholarship
arguing that the original meaning of the Excessive Fines Clause
prohibits fines so severe as to deprive a defendant of his or her
“contenement” or livelihood, understood as the ability to secure the
necessities of life, see Nicholas M. McLean, Livelihood, Ability to
Pay, and the Original Meaning of the Excessive Fines Clause, 40
Hastings Const. L.Q. 833, 854–72 (2013). In a similar vein, the
Supreme Court recently described the Clause as tracing its
“venerable lineage” back to Magna Carta, which safeguarded the
“contenement” of Englishmen and “required that economic
sanctions . . . not be so large as to deprive an offender of his
livelihood.” Timbs, 139 S. Ct. at 687–88 (citations, internal quotation
marks, and brackets omitted).
50
F.3d at 1356; United States v. Sumlin, 271 F.3d 274, 281 (D.C.
Cir. 2001). That did not occur here. The Excessive Fines
Clause does not make obvious whether a forfeiture is excessive
because a defendant is unable to pay, and “[n]either the
Supreme Court nor this court has spoken” on that issue. Hurt,
527 F.3d at 1356; see Timbs, 139 S. Ct. at 688 (noting that the
Supreme Court has “tak[en] no position on the question
whether a person’s income and wealth are relevant
considerations in judging the excessiveness of a fine” (citing
Bajakajian, 524 U.S. at 340 n.15)). Thus, the district court did
not plainly violate the Excessive Fines Clause by ordering
forfeitures without considering Florence’s and Michael’s
ability to pay them.
C.
Sentencing Enhancements. Finally, Florence and Michael
challenge four of the sentencing enhancements imposed by the
district court. Both challenge the enhancements for (1)
committing crimes involving a loss of approximately $80
million and (2) abusing positions of trust. Michael challenges
his enhancement for (3) playing a managerial role in the
crimes, and Florence contests hers for (4) violating an
administrative order. Upon appeal of such enhancements,
“[p]urely legal questions are reviewed de novo; factual findings
are to be affirmed unless clearly erroneous; and we are to give
due deference to the district court’s application of the
[sentencing] guidelines to facts.” United States v. Vega, 826
F.3d 514, 538 (D.C. Cir. 2016) (quoting United States v. Day,
524 F.3d 1361, 1367 (D.C. Cir. 2008)). Due deference
“presumably falls somewhere between de novo and clearly
erroneous.” United States v. Bisong, 645 F.3d 384, 397 (D.C.
51
Cir. 2011) (quoting United States v. Kim, 23 F.3d 513, 517
(D.C. Cir. 1994) (alterations omitted)).
1.
Loss Amount. First, the enhancements for loss. The
Sentencing Guidelines provide that, for crimes such as
Florence and Michael’s fraud, the offense level is to be
increased based on the loss involved. See U.S.S.G.
§ 2B1.1(b)(1). The district court increased Florence’s and
Michael’s respective offense levels by twenty-eight points
based on a loss of approximately $80 million — the total
amount D.C. Medicaid paid to Global. See U.S.S.G.
§ 2B1.1(b)(1)(M) (24-point increase when loss exceeds $65
million); id. § 2B1.1(b)(7) (additional 4-point increase when
loss exceeds $20 million and the offense involves a federal
health care program). Reprising its earlier argument against the
MVRA loss, Florence and Michael contend that D.C. Medicaid
did not suffer a Guidelines loss of $80 million because Global
performed some legitimate services. Just as this argument
failed earlier, it fails here. The district court properly applied
the Guidelines’ rules for calculating loss, particularly the
general rule, the special rule, and the credit rule.
Under the “general rule” of Guidelines § 2B1.1, loss is
“the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1
cmt. n.3(A). Actual loss is “the reasonably foreseeable
pecuniary harm that resulted from the offense”; intended loss
is “the pecuniary harm that was intended to result from the
offense.” Id. cmt. n.3(A)(i)–(ii). The Guidelines also provide a
“special rule” that “shall be used to assist in determining loss”
when sentencing defendants “convicted of a Federal health care
offense involving a Government health care program.” Id. cmt.
n.3(F)(viii). There, “the aggregate dollar amount of fraudulent
52
bills submitted to the Government health care program shall
constitute prima facie evidence of the amount of the intended
loss.” Id. This evidence is “sufficient to establish the amount of
the intended loss, if not rebutted.” Id.
Here, the district court properly found that the pervasive
fraud at Global meant that approximately $80 million was
fraudulently billed. Indeed, as discussed already in Sections
VII.A and B, Global “would not have operated but for [each]
defendant’s fraud,” and approximately $80 million “was only
paid due to the defendants’ persistent and rampant fraudulent
conduct.” Florence POF at 3; Michael POF at 3; Tr. 27 (Apr.
27, 2016 AM). That amount constituted “the aggregate dollar
amount of fraudulent bills submitted to the Government health
care program.” U.S.S.G. § 2B1.1 cmt. n.3(F)(viii). Under the
special rule, these fraudulent billings are “sufficient to establish
the intended loss,” unless rebutted, which Florence and
Michael made no effort to do. Id. Approximately $80 million
was therefore the appropriate Guidelines loss.6
Florence and Michael object that they performed some
legitimate services, so the loss calculation should have been
reduced under what we will call the Guidelines’ “credit rule.”
See Appellants’ Br. 95–96. This rule directs that “loss shall be
reduced by . . . the fair market value of . . . the services
rendered . . . by the defendant or other persons acting jointly
6
One clarifying point: although Global billed D.C. Medicaid for
approximately $81 million, the district court calculated the
“fraudulent bills” as $80 million based on the amount D.C. Medicaid
paid to Global. That may have been an error because only fraudulent
bills, not actual payments, establish intended loss under the special
rule. See U.S.S.G. § 2B1.1 cmt. n.3(F)(viii). Any error, however, was
harmless because it resulted in a lower loss calculation:
approximately $80 million instead of $81 million.
53
with the defendant, to the victim before the offense was
detected.” U.S.S.G. § 2B1.1 cmt. n.3(E)(i).
The government suggests that the credit rule is overridden
by the special rule for calculating loss in health care fraud
cases. See Appellee’s Br. 112–13. On this point, however, we
agree that both rules apply in health care fraud cases. The
special rule states that it applies “[n]otwithstanding” the
general rule, but makes no such exception for the credit rule.
U.S.S.G. § 2B1.1 cmt. n.3(F). Furthermore, “the drafters of [the
loss rules] knew how to indicate that no credits would be
permitted.” United States v. Nagle, 803 F.3d 167, 182 (3d Cir.
2015). For example, the special rule for misrepresentation
schemes requires that loss be calculated without using the
credit rule to reduce loss according to the value of the
misrepresented services. See U.S.S.G. § 2B1.1 cmt. n.3(F)(v).
But not so for health care fraud cases. Because “the Sentencing
Commission speaks clearly when it wants to exempt specific
types of cases from the default practice of crediting against loss
the value of services rendered by the defendant,” the credit rule
applies here. United States v. Harris, 821 F.3d 589, 605 (5th
Cir. 2016); accord Nagle, 803 F.3d at 182.
Even under the credit rule, Florence and Michael fail to
show that the loss calculation should be reduced by the value
of services rendered. U.S.S.G. § 2B1.1 cmt. n.3(E)(i). The
overall burden of proving loss under the Guidelines always
remains with the government. See In re Sealed Case, 552 F.3d
841, 846 (D.C. Cir. 2009). But for the same reasons that the
district court may place on a defendant the burden of producing
evidence of legitimate services when calculating restitution,
see supra Section VII.A, the district court may impose on a
defendant the burden of producing evidence of “services
rendered” with a market value warranting credit under the
54
credit rule. As we previously explained, Florence and Michael
did not produce evidence of such services with any specificity,
see id., so the district court properly refused to use the credit
rule to reduce the loss calculation. We therefore affirm the
Guidelines loss calculation and the accompanying
enhancements.
2.
Abuse of Trust. Florence and Michael also challenge the
enhancements they received for abusing positions of trust,
which increased their offense levels by two points. This
enhancement applies if a defendant “abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.”
U.S.S.G. § 3B1.3. A position of trust is “characterized by
professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable
deference).” Id. cmt. n.1. “Persons holding such positions
ordinarily are subject to significantly less supervision than
employees whose responsibilities are primarily non-
discretionary in nature,” and the position “must have
contributed in some significant way to facilitating the
commission or concealment of the offense (e.g., by making the
detection of the offense or the defendant’s responsibility for the
offense more difficult).” Id. We have embraced the following
factors as guides in determining whether a defendant held a
position of trust:
The extent to which the position provides the freedom
to commit a difficult-to-detect wrong, and whether an
abuse could be simply or readily noticed; defendant’s
duties as compared to those of other employees;
defendants’ level of specialized knowledge;
55
defendant’s level of authority in the position; and the
level of public trust.
United States v. Robinson, 198 F.3d 973, 977 (D.C. Cir. 2000)
(quoting United States v. Shyllon, 10 F.3d 1, 5 (D.C. Cir.
1993)).
Until now, we have not addressed “whether those who
seek payment from the government for the provision of
medical services” — like Florence and Michael — “occupy
positions of trust vis-à-vis the government.” United States v.
Wheeler, 753 F.3d 200, 209 (D.C. Cir. 2014). The majority of
circuits that have considered the issue have held that certain
providers may, id. at 209–10 (citing four other circuits), but the
Eleventh Circuit has disagreed, see United States v. Williams,
527 F.3d 1235, 1250 (11th Cir. 2008).
Consistent with the majority of circuits, we hold that
Florence and Michael occupied and abused a position of trust.
DHCF depended on Florence and Michael to properly exercise
substantial discretion, which is the touchstone of our inquiry
under the Sentencing Guidelines. See U.S.S.G. § 3B1.3 cmt.
n.1. For example, although DHCF has some ability to police
home care agencies through licensing and audits, DHCF
entrusts agencies like Global with ensuring that actual
beneficiaries receive adequate services from qualified aides
based on appropriate plans of care, and DHCF relies on the
leaders of such agencies to maintain records and submit bills
that accurately reflect such services. These responsibilities are
not rote paperwork-processing. Rather, they call for decisions
and judgments that occur outside of DHCF’s “supervision” and
receive considerable “deference” from DHCF, id., leaving the
leaders of home care agencies with ample “freedom to commit
a difficult-to-detect wrong,” Robinson, 198 F.3d at 977
56
(internal quotation marks omitted). In exercising their
discretion, the leaders of home care agencies are invested with
weighty duties and a high “level of public trust,” id., because
their actions affect the receipt of necessary health care by
individual Medicaid beneficiaries and, more generally, the
continuing effectiveness of the D.C. Medicaid program.
Instead of honoring that public trust, Florence and Michael
used their positions to commit and conceal numerous offenses.
Florence and Michael claim that the enhancement can’t
apply because they had only “an arm’s-length business
relationship” with D.C. Medicaid, not the “fiduciary
relationship” commonly present in abuse-of-trust cases, such
as those involving doctors or other medical professionals.
Appellants’ Br. 102, 106. But the plain text of the Sentencing
Guidelines and their application notes do not require a
fiduciary relationship. Rather, they examine whether a
defendant’s position was characterized by “professional or
managerial discretion,” U.S.S.G. § 3B1.3 cmt. n.1, which may
be exercised by defendants who are not physicians and run
commercial entities, such as Global, see, e.g., United States v.
Adebimpe, 819 F.3d 1212, 1219 (9th Cir. 2016) (applying the
enhancement to medical equipment suppliers because
“Medicare entrusted [them] with ‘substantial discretionary
judgment’ in selecting the proper equipment, and gave them
‘considerable deference’ in submitting claims that accurately
reflected patients’ medical needs” (citing U.S.S.G. § 3B1.3
cmt. n.1)); United States v. Willett, 751 F.3d 335, 344–45 (5th
Cir. 2014) (medical equipment supplier); United States v.
Bolden, 325 F.3d 471, 504–05 (4th Cir. 2003) (nursing home
administrator); United States v. Gieger, 190 F.3d 661, 665 (5th
Cir. 1999) (ambulance company owners).
57
Florence and Michael also assert that they did not abuse a
position of trust because they did not submit bills directly to
DHCF, but rather used medical billing companies owned by
Edward Mokam. In support, Florence and Michael invoke an
Eleventh Circuit case, United States v. Garrison, which held
that a fiscal intermediary made the defendant’s relationship
with Medicare “too attenuated” for the abuse-of-trust
enhancement. 133 F.3d 831, 842 (11th Cir. 1998). Because this
argument is made for the first time on appeal, we review for
plain error. See Brown, 892 F.3d at 397.
We find no plain error because the case they invoke is from
another circuit and it is easily distinguishable from this case. In
Garrison, the intermediary was “charged with the
responsibility of ensuring that Medicare payments [were] made
to healthcare providers only for covered services.” 133 F.3d at
834. To that end, the intermediary shouldered a “specific
responsibility . . . to review and to approve requests for
Medicare reimbursement before submitting those claims to
Medicare for payment,” and the intermediary could reject or
adjust claims, including when it determined that the claims
involved fraud or willful misrepresentation. Id. at 834 & n.5,
841. The intermediary here, Mokam, lacked comparable
obligations. He submitted bills based on the timesheets and
documents provided by Global, which he assumed were
correct. Mokam was not responsible for investigating whether
services were legitimate, nor certifying that the information
contained in the bills was truthful. If anything, this case
resembles United States v. Adebimpe, which involved an
intermediary who performed only “limited review,” i.e.,
processing and certifying claims “as a matter of course, rather
than scrutinizing their validity.” 819 F.3d 1212, 1220 (9th Cir.
2016). Distinguishing Garrison, the Ninth Circuit explained
that the “mere presence” of such an intermediary “d[id] not
58
destroy the defendants’ position of trust with respect to
Medicare.” Id. This case is likewise distinguishable from
Garrison, which in any event is out-of-circuit authority. The
district court therefore did not plainly err in applying the abuse-
of-trust enhancement despite Mokam’s involvement.
Finally, Florence and Michael point out that the Guidelines
prohibit the enhancement when “an abuse of trust . . . is
included in the base offense level or specific offense
characteristic.” U.S.S.G. § 3B1.3. Their federal health care
offenses, they say, already accounted for an abuse of trust. See
U.S.S.G. § 2B1.1(b)(7). We again review for plain error. See
Brown, 892 F.3d at 397.
Florence and Michael rely once more on Garrison, which
held in the alternative that the enhancement could not be used
when the conduct that formed the abuse of trust was also the
basis for the underlying fraud. See 133 F.3d at 843. But the
Eleventh Circuit itself has since called Garrison’s conduct-
based approach “dicta.” United States v. Bracciale, 374 F.3d
998, 1007, 1009 (11th Cir. 2004). And other circuits have
applied the enhancement to defendants convicted of Medicare
and Medicaid fraud, rejecting the argument that “an abuse of
trust is the essence of the crime and therefore is already
accounted for in the base level offense.” United States v.
Ntshona, 156 F.3d 318, 320 (2d Cir. 1998) (per curiam); see
also United States v. Loving, 321 F. App’x 246, 249 (4th Cir.
2008) (unpublished per curiam). Given this state of the law,
plain error did not occur. We affirm the abuse-of-trust
enhancements.
59
3.
Managerial Role. Although both Florence and Michael
received enhancements for their aggravating roles in the
conspiracy, only Michael challenges the enhancement on
appeal. Michael’s offense level was increased by three points
under the managerial-role enhancement, which applies if the
defendant “was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).
Applying this enhancement, courts “should consider” the
following factors:
[T]he exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
Id. cmt. n.4. No single factor is dispositive, but all defendants
receiving the enhancement “must exercise some control over
others.” United States v. Olejiya, 754 F.3d 986, 990 (D.C. Cir.
2014) (quoting United States v. Graham, 162 F.3d 1180, 1185
(D.C. Cir. 1998)).
Michael argues that he played “a lesser role” at Global and
did not control Global employees or manage the conspiracy.
Appellants’ Br. 107. But as explained in Section V, that is not
what the evidence showed. To the contrary, Michael managed
and supervised the health care fraud and money laundering
conspiracies through his control of Global employees. He was,
60
as the district court found, “integrally involved as a boss at
Global.” Tr. 54 (June 1, 2016 AM).
4.
Violation of Administrative Order. Finally, Florence
contests the two-level enhancement she received because her
fraud involved a knowing “violation of [a] prior, specific . . .
administrative order,” specifically the HHS order excluding her
from participating in federal health care programs. U.S.S.G.
§ 2B1.1(b)(9)(C) & cmt. n.8(c). To challenge this
enhancement, Florence reiterates that she did not know she had
been excluded. See Appellants’ Br. 107. The evidence,
however, supported that Florence knew. See supra Section
V.B.
For the foregoing reasons, we affirm the convictions and
sentences of Florence and Michael.
So ordered.
ROGERS, Circuit Judge, concurring: I join the court’s
opinion and write separately regarding the government’s
failure to comply with Rule 16 of the Federal Rules of Criminal
Procedure.
Rule 16 requires the government to produce, upon a
defendant’s request, “books, papers, documents, data,
photographs, tangible objects, buildings or places,” if the item
is “within the government’s possession, custody, or control
and: (i) the item is material to preparing the defense; (ii) the
government intended to use the item in its case-in-chief at trial;
or (iii) the item was obtained from or belongs to the defendant.”
Fed. R. Crim. Pro. 16(a)(1)(E). Over time, Rule 16 has been
amended to provide for broader discovery in criminal
prosecutions. Adv. Comm. Note to 1993 Amendment; Adv.
Comm. Note to 1966 Amendment; see also 2 CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 251 (4th ed. 2018). The Supreme Court and this
court have recognized that broad discovery promotes informed
plea decisions, minimizes unfair surprise, and helps ensure
guilt is accurately determined. Wardius v. Oregon, 412 U.S.
470, 473–74 (1973); United States v. Marshall, 132 F.3d 63,
69–70 (D.C. Cir. 1998); United States v. Machado-Erazo, 901
F.3d 326, 339–40 (D.C. Cir. 2018) (Rogers, J., concurring); see
also Adv. Comm. Notes to 1993 and 1974 Amendments.
In determining the scope of obligations under Rule 16, this
court has looked to “the plain language” of the Rule. For
instance, the court held that as written the Rule does not compel
the conclusion that inculpatory evidence is immune from
disclosure, reasoning that “just as important to the preparation
of a defense [is] to know its potential pitfalls as it is to know its
strengths.” Marshall, 132 F.3d at 67. Defense counsel in the
instant case requested well before trial, in July 2015, that the
government identify “all patients” alleged to be involved with
Global Healthcare’s Medicaid submissions and “false and
fraudulent claims.” The trial date was continued on multiple
2
occasions in order to enable the government to complete
discovery so that defense counsel could prepare for trial. Yet
three weeks into the trial, just before the government rested its
case-in-chief, the government disclosed for the first time a
report purporting to show that 567 D.C. Medicaid beneficiaries
for whom Global Healthcare had received Medicaid
reimbursements did not qualify for or did not receive personal
care services. A month before the trial the prosecutor had
requested that Don Shearer, the Director of Health Care
Operations at the D.C. Department of Health Care Finance
(“DHCF”), figure out how to “quantify” the scope of the fraud
by Florence and Michael Bikundi at Global Healthcare. Trial
Tr. 113 (Nov. 4, 2015 AM). The prosecutor proposed to
introduce the report into evidence through Mr. Shearer’s
testimony at trial. Defense counsel, caught unawares, objected
to admission of the report, claiming that allowing the report
into evidence at this point would be “unfair” sandbagging and
its identification and its production were “untimely” under
Rule 16. Trial Tr. 16 (Nov. 3, 2015 PM).
The district court judge acknowledged that the Assistant
U.S. Attorney’s timing in disclosing Mr. Shearer’s report after
the trial had been underway for three weeks was “not great.”
Id. The judge also acknowledged that the delay impaired the
defense’s “ability to scrutinize [the report] in terms of the
beneficiaries.” Id. at 110. Recognizing the difficult situation in
which the prosecutor had placed the defense and the trial court,
the judge proposed to delay Mr. Shearer’s testimony until the
next day in order to allow defense counsel the opportunity to
interview him. Defense counsel objected that an overnight
continuance would hardly “cure[] the problem,” because what
the defense needed was time to investigate the data and
conclusions in the report. Id. at 19. Defense counsel reiterated
that Florence and Michael were “being ambushed.” Id. The
3
judge ruled the report could be admitted into evidence and
delayed Mr. Shearer’s testimony until the next day, observing
that “any testimony from Mr. Shearer is ripe fodder for cross-
examination about the legitimacy of whatever conclusions can
be drawn from this exhibit.” Id. at 112.
Florence and Michael contend that, in response to their
pretrial discovery request, the government was obligated under
Rule 16 to disclose Mr. Shearer’s report and its underlying
data, and that “admission of the report on less than one day’s
notice to [them] violated their substantial rights” to mount a
defense. Appellants’ Br. 57. They pointed out that the
government had had control over the data, which was central
to the prosecution, and that the government had had access to
the data in preparing its case for trial. If the data had been
timely disclosed to the defense, Florence and Michael maintain
that they could have investigated the listed Global Healthcare
clients to determine whether they stopped making D.C.
Medicaid claims for legitimate reasons and thereby
“undermine[d] the inference [of fraud] the government asked
the jury to draw.” Id.
In response, the government properly does not maintain
that the report falls within the scope of the bar in Rule 16(a)(2)
of discovery of internal government documents, for the defense
is to be allowed to examine documents material to preparation
of its defense. See United States v. Armstrong, 517 U.S. 456,
463 (1996). The prosecutor’s pretrial efforts to obtain what he
knew would be “compelling evidence” of appellants’ fraud fits
comfortably within the mandatory disclosure obligations of
Rule 16(a)(1)(E). Trial Tr. 154 (Nov. 9, 2015 AM). Instead,
the government maintains it had no disclosure obligation under
Rule 16 until it received the report. When it did, it disclosed
the report to the defense and the district court during trial. This
4
is so, the government maintains, notwithstanding defense
counsel’s spot-on discovery request and the prosecutor’s
knowledge that Mr. Shearer was preparing an important report
in response to his pretrial request to show the full scope of
appellants’ fraud, and that the report was not in hand when the
trial began.
In maintaining it did not violate Rule 16, the government
asserts that the data used to prepare the report was not within
its control, relying on Marshall, 132 F.3d at 68. In Marshall,
the prosecutor had learned during trial of a prior arrest record
for the defendant from the Prince George’s County, Maryland
Police Department. See id. at 66. The district court judge
criticized the late disclosure of the county police records,
attributing it to the “sloppy police work and insufficient
investigation” by the U.S. Attorney’s Office. Id. at 67. But
finding the decision to conduct additional investigation mid-
trial was not a product of bad faith, the judge allowed testimony
about the police records at trial. On appeal, this court affirmed,
reasoning that the local Maryland county law enforcement
agencies were not under the control of the U.S. Attorney’s
Office for purposes of Rule 16 discovery. Id. at 68.
The government, at best, overreads Marshall. This court
may have held Rule 16 did not encompass documents that were
in possession of a state law enforcement agency, see id., but the
court did not suggest in Marshall that the local police
department had been centrally involved in the federal
investigation and prosecution, much less been asked to prepare
a report for introduction at the trial. Here, by contrast, the D.C.
Medicaid data and records of Global Healthcare were at the
heart of the federal government’s prosecution of Florence and
Michael. DHCF investigates Medicaid fraud and refers
investigations to the U.S. Attorney’s Offices for prosecution.
5
In the prosecution of Florence and Michael, Mr. Shearer was
also a key witness at trial. Significantly as well, unlike in
Marshall, 132 F.3d at 66, the new evidence in the form of his
report was not discovered during trial. On cross examination,
Mr. Shearer disclosed that prior to trial the prosecutor had
requested he prepare a report to “quantify the amount . . . of
actual fraud.” Trial Tr. 113 (Nov. 4, 2015 AM). Upon
producing the report at trial, the prosecutor acknowledged that
it was an important part of the government’s case-in-chief,
telling the judge that the report was “highly relevant” and
necessary “to establish the full extent of the fraud.” Trial Tr. 15
(Nov. 3, 2015 PM). In closing argument, the prosecutor told
the jury that the report provided “very compelling evidence that
Medicaid had to pay almost $29,500,000 for 567 people [who]
. . . did not qualify for or need personal care services.” Trial
Tr. 154 (Nov. 9, 2015 AM).
Today, the court is able to assume without deciding that
the government violated Rule 16’s mandates because of the
fortuitous circumstance that cross examination of Mr. Shearer
diminished much of the sting of his report. Not completely,
however, for the report laid out the scope of appellants’ fraud
in an organized form that the jury would readily comprehend.
But insofar as the report did not address whether there were
legitimate reasons the listed beneficiaries stopped receiving
services, the district court could reasonably conclude “any
testimony from Mr. Shearer is ripe fodder for cross-
examination” about the conclusions to be drawn from this
report. Trial Tr. 112 (Nov. 3, 2015 PM).
Of course, the fortuity of effective cross-examination to
ameliorate if not neutralize the prejudice arising from the Rule
16 violations does not mean the prosecutor’s pretrial request
and knowledge a report was being prepared were not material
6
to preparation of the defense. The district court judge’s
response at trial upon learning of the report makes this clear.
Any defense counsel would want to know the report was being
prepared before having it “sprung” at trial when, as any
prosecutor would be aware, a district court judge would be
unlikely to allow a lengthy delay of trial to afford the defense
time to investigate the data and conclusions in the report. By
proceeding as it did, the government defeated the aim of Rule
16 to avoid “gamesmanship.” In forceful terms, this court
instructed in Marshall, 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.” 132 F.3d at 69 (quotation
omitted). Regrettably, the court’s instruction was prescient of
what occurred in the prosecution of Florence and Michael. The
U.S. Attorney’s “interest . . . in a criminal prosecution is not
that it shall win a case, but that justice shall be done,” see
Berger v. United States, 295 U.S. 78, 88 (1935), and in
prosecuting with “vigor,” id., to do so in accordance with the
rules of criminal procedure, see id. In other circumstances,
such conduct as occurred here would raise concerns identified
by the Supreme Court and this court in view of the underlying
purposes of Rule 16 that would oblige a district court judge to
ensure an appropriate sanction for a violation of Rule 16.