[00:00:03] Speaker 03:
Good morning.

[00:00:14] Speaker 00:
Good morning.

[00:00:17] Speaker 00:
May it please the court, my name is Andrew Goldsmith and I represent Florence Bocundi.

[00:00:22] Speaker 00:
I'll begin today with the Speedy Trial Act.

[00:00:25] Speaker 00:
The text of the Act, the Supreme Court's decision in Zedner, and this Court's decisions in Bryant and Sanders all require the District Court to explain on the record its reasons for finding that the ends of justice served by the granting of an H7A continuance outweigh the best interests of the public and the defendant in a Speedy Trial.

[00:00:46] Speaker 03:
And given that the Supreme Court has said we can look at the district court's opinion in denying the motion for a Sweeney trial, how could we find that the district court did not make adequate findings here?

[00:00:58] Speaker 00:
Because in this court, Your Honor, in denying the motion to dismiss, the district court did not add to its original findings.

[00:01:05] Speaker 00:
The district court recited its original findings.

[00:01:08] Speaker 00:
Had the district court in denying the motion to dismiss

[00:01:12] Speaker 00:
added to its findings and said that the interests outweighed the interests of the public.

[00:01:23] Speaker 03:
She talked about the interests of the public.

[00:01:25] Speaker 03:
And then in denying the motion for a speedy trial, she referred to it several times again, the interests of the public.

[00:01:33] Speaker 00:
Your Honor, in the beginning of her decisions, she recited that as the standard.

[00:01:38] Speaker 00:
And then in describing the findings, the factual findings that she's required to make, she described her previous findings.

[00:01:44] Speaker 00:
She did not make any additional fact finding.

[00:01:47] Speaker 03:
What more should she have said, just so I'm clear, about the interests of the public?

[00:01:51] Speaker 00:
Sure, Your Honor.

[00:01:52] Speaker 00:
She should have addressed the interest of the public in some way.

[00:01:56] Speaker 03:
Like saying what?

[00:01:58] Speaker 00:
She could have addressed it using that phrase explicitly, but I don't think that's required.

[00:02:02] Speaker 00:
In the Rice case, for example, which the government relies on, the district court referred generally to the need to get cases to trial as quickly as possible.

[00:02:11] Speaker 00:
I think that's fair.

[00:02:13] Speaker 00:
reference to the interests of the public.

[00:02:15] Speaker 03:
And the district court here said everybody's moving as expeditiously as possible to get the discovery done and the investigation done and giving defense counsel an opportunity to review what's discovered.

[00:02:28] Speaker 00:
Those are references, Your Honor, to the interests of the government in this particular case and the interests of the defendant in this particular case.

[00:02:35] Speaker 07:
Mr. Goldsmith, she did, the district court did refer to

[00:02:38] Speaker 07:
The district court talked about what would best conserve judicial resources and what would most efficiently use the time of the jury.

[00:02:50] Speaker 07:
Aren't those public interest factors?

[00:02:52] Speaker 00:
Your Honor, I think the district court referred to the interests of justice, which is part of the test that's required by the statute.

[00:03:00] Speaker 00:
But she did not weigh the interests of justice, the benefits to the interests of justice, against the interests of the public and the interests of the defendant.

[00:03:10] Speaker 03:
So if she had done what you think she should have done, which is hypothetical, what would she have found?

[00:03:17] Speaker 00:
Your Honor, there are four orders that we challenge.

[00:03:21] Speaker 03:
No, I know.

[00:03:21] Speaker 03:
But I want to know the sentence that is missing here, in your view, or the two sentences that are missing.

[00:03:28] Speaker 00:
Hypothetically, Your Honor, and I don't know that they would have been supported in this case, but the sentences would have been along the lines of, I've considered the interests of the public in a speedy trial in this case.

[00:03:40] Speaker 00:
And given the facts and circumstances of this case, the interests of the public,

[00:03:45] Speaker 00:
outweigh the interest in a speedy trial.

[00:03:49] Speaker 00:
And the court in Zedner and this court in its cases have talked about some of the interests of the public apart from the interests of the government and of a defendant in a particular case in proceeding with speedy trials.

[00:04:04] Speaker 00:
Just the last point I would make on this, Your Honor, is that this court, in the Lopez Sierra Gutierrez case, which the government also cited, in that case, the defendant argued that the district court stated reasons on the record were not its real reasons for granting continuances.

[00:04:22] Speaker 00:
This court rejected that argument, and it said, we take the district court at its word.

[00:04:27] Speaker 00:
We're asking for the same thing here.

[00:04:28] Speaker 00:
Taking the district court at its word, it did not do the balancing test that is required.

[00:04:34] Speaker 00:
Moving to the Speedy Trial Sixth Amendment argument, I want to focus for today on the fourth Barker factor, which is prejudice.

[00:04:43] Speaker 00:
Ms.

[00:04:43] Speaker 00:
Bukundi was incarcerated for 20 months before her trial, severely limiting her ability to confer with counsel.

[00:04:50] Speaker 00:
In this case, a very document-heavy case.

[00:04:52] Speaker 00:
There were thousands of documents involved, a relatively long time period for a criminal case.

[00:04:59] Speaker 00:
The government, meanwhile, benefited greatly from the delay.

[00:05:02] Speaker 00:
The government talks in its brief at page 22 about how it waited until the day it arrested my client to issue subpoenas to banks, and then it took more than six months, not surprisingly, to process those subpoenas.

[00:05:16] Speaker 00:
There was no reason to wait that long.

[00:05:18] Speaker 00:
Unlike other people and entities, banks are prohibited by statute from disclosing grand jury subpoenas that they receive.

[00:05:25] Speaker 00:
Issuing those subpoenas earlier would not have endangered this investigation.

[00:05:29] Speaker 00:
That should have been done earlier.

[00:05:30] Speaker 00:
Similarly, the government arrested my client the day after it searched Global's offices after collecting thousands of documents.

[00:05:38] Speaker 00:
There's no reason it couldn't have begun the processing of those documents, reviewed those documents before arresting my client.

[00:05:43] Speaker 00:
That would have preserved her ability to have a speedy trial.

[00:05:47] Speaker 00:
And of course, the government eventually, months after it told the district court it would do so, superseded the indictment, adding a number of defendants, most of whom ended up being witnesses against my client.

[00:05:58] Speaker 00:
And finally, during the trial, after the 21th delay, the government created and disclosed for the first time Exhibit 439, which my colleague Mr. Kirsch will address, which was of great prejudice to both defendants.

[00:06:14] Speaker 00:
Ms.

[00:06:14] Speaker 00:
Bocundi moved for bail repeatedly, which courts have recognized preserves the same interests or some of the same interests as a speedy trial.

[00:06:22] Speaker 00:
The district court here said that it was concerned about the time that discovery might take, given the nature of the case.

[00:06:29] Speaker 00:
She said that that circumstance called for, quote, unrelenting efforts by the government to process discovery and get ready for trial as promptly as possible, close quote.

[00:06:39] Speaker 00:
That was in response to my client's first motion for bail.

[00:06:42] Speaker 00:
the government did not heed the district court's warning.

[00:06:45] Speaker 00:
And that language comes from docket entry number 24 in the district court.

[00:06:51] Speaker 00:
Moving on to the money laundering substantive counts, concealment counts, all of those transactions that issue in those accounts move the money from a global account where the defendants were the only signatories, either directly or with respect to one of the counts indirectly, to another account where the defendants were the only signatories.

[00:07:10] Speaker 00:
Those transactions could not have been intended to conceal anything because the accounts were openly controlled.

[00:07:16] Speaker 04:
So the FBI informant testified otherwise, right?

[00:07:20] Speaker 04:
He said, when you have sham companies using money orders and rapid and repeated transfers, that creates an inference that you're trying to hide.

[00:07:33] Speaker 04:
There's no requirement in the case law that it'd be a perfect effort to hide, right?

[00:07:40] Speaker 00:
That's true, Your Honor, but I think the requirement is that there actually be evidence of an intent to hide.

[00:07:45] Speaker 04:
I'm not arguing that- But the- Your inference is here, right?

[00:07:49] Speaker 00:
Yes, Your Honor, I don't think that the fact of the transactions alone is sufficient.

[00:07:53] Speaker 00:
This court, I understand that that's what the agent said.

[00:07:56] Speaker 00:
This court said in the law- No, but it's the three together.

[00:07:58] Speaker 04:
It's sham companies, money orders, rapid repeated transfers.

[00:08:02] Speaker 04:
You don't just have one.

[00:08:03] Speaker 04:
Why couldn't a reasonable juror look at that and say, you know, they're trying to hide something here.

[00:08:09] Speaker 04:
First of all, Your Honor, the fact- It's not crazy.

[00:08:11] Speaker 04:
That's not crazy to think that.

[00:08:14] Speaker 00:
I think that that evidence is not sufficient, Your Honor.

[00:08:18] Speaker 07:
Thank you, Your Honor.

[00:08:21] Speaker 00:
The other companies through which some of the money traveled, to the extent those companies did not do other business, that helps the defendants, not the government.

[00:08:29] Speaker 00:
If the idea, the classic money laundering case as this Court has recognized in the Adafahinti case,

[00:08:35] Speaker 00:
is moving money from an illicit business into a legitimate business.

[00:08:40] Speaker 04:
What's the role of the cashier's check?

[00:08:42] Speaker 04:
Why would one use a cashier's check?

[00:08:43] Speaker 00:
Well, the one fact in the record, Your Honor, was that there was apparently fraud within the global accounts, fraud against global, against the defendants.

[00:08:53] Speaker 00:
The agent testified about that fact.

[00:08:56] Speaker 00:
And so that gives the defendants a perfectly good reason to want to move money out of accounts, to not rely on ordinary checks to take cashier's checks.

[00:09:05] Speaker 00:
There was in the record testimony that four checks that the agent found, global checks, bounced.

[00:09:10] Speaker 00:
In order to avoid that, the defendants may have wanted to use cashier's checks.

[00:09:13] Speaker 04:
And those are all reasonable inferences, but isn't it also a reasonable inference that when you put these three things together, it looks fishy.

[00:09:20] Speaker 04:
It looks like somebody's concealing something.

[00:09:22] Speaker 04:
And that's all we need to find.

[00:09:23] Speaker 04:
Right?

[00:09:24] Speaker 04:
On appeal.

[00:09:25] Speaker 04:
That's the nature of the inquiry for us.

[00:09:27] Speaker 00:
I don't think so, Your Honor, for two reasons.

[00:09:29] Speaker 00:
One is that this Court said in law that in money laundering prosecutions, in particular, the government is obliged to overcome innocent explanations for the conduct because of the fine line between criminal and non-criminal conduct here.

[00:09:43] Speaker 00:
Secondly, the court has also talked more than once about the fact that where the evidence is equivocal or where there's an equally plausible innocent explanation and guilty explanation, that that's not sufficient.

[00:09:57] Speaker 00:
Because in those circumstances, the only way to find guilt is to speculate, to choose one versus the other when the evidence is in equipoise.

[00:10:05] Speaker 00:
And that's in the Davis and Wilson cases that we cited in our briefs.

[00:10:14] Speaker 07:
Isn't the allegation here, the allegation isn't that...

[00:10:18] Speaker 07:
the defendants were trying to conceal their connection to the money.

[00:10:25] Speaker 07:
They were trying to make clear that this wasn't Medicaid money.

[00:10:31] Speaker 07:
They were trying to disconnect the money from Medicaid.

[00:10:34] Speaker 07:
So even though all the accounts were in their names and it was all transparent, their purpose was to launder the money.

[00:10:42] Speaker 07:
And why couldn't the jury have easily concluded that from this?

[00:10:47] Speaker 07:
The money went into the Integlobal's account, immediately went out to these two corporations that, you know, one was allegedly a real estate corporation, the other was international trade or something.

[00:11:02] Speaker 07:
The whole purpose of this was to cleanse it of any connection to the Medicaid fund.

[00:11:09] Speaker 07:
And the jury could quite easily conclude that from this, couldn't it?

[00:11:12] Speaker 00:
Well, Your Honor, I think that raises this issue of the sham companies and whether these other companies did business or not.

[00:11:18] Speaker 00:
The government argued that they didn't.

[00:11:21] Speaker 07:
And if they didn't, then that's not... But you agree with me that that's the question we have to look at, right?

[00:11:27] Speaker 07:
Their intent, the intent was the intent to launder the money so there was no connection to Medicaid, to make it look like the money came from other sources.

[00:11:39] Speaker 07:
That's the intent.

[00:11:40] Speaker 07:
Not that they wanted to...

[00:11:42] Speaker 07:
conceal their connection to the money.

[00:11:47] Speaker 07:
Is that what that's all about?

[00:11:48] Speaker 00:
I don't think that that can be inferred here, Your Honor.

[00:11:51] Speaker 00:
As the government says, Global did virtually no business other than D.C.

[00:11:55] Speaker 00:
Medicaid.

[00:11:56] Speaker 07:
As the government alleged that these other businesses... Right, and up to that point, you know, it's clearly a Medicaid connection.

[00:12:03] Speaker 07:
It's the next two companies.

[00:12:05] Speaker 00:
Well, Your Honor, I think I would also, again, point to the Adda Fahinti case.

[00:12:09] Speaker 00:
The which case?

[00:12:10] Speaker 00:
Adda Fahinti, which we discussed in our briefs.

[00:12:12] Speaker 00:
Right, yes.

[00:12:13] Speaker 00:
In that case, the defendants moved money into a corporate account, into personal accounts, and into cash.

[00:12:20] Speaker 00:
And this court said that those circumstances were not enough and reversed the convictions.

[00:12:25] Speaker 00:
Because the accounts, including the corporate account, were all obviously related.

[00:12:29] Speaker 04:
But we have more here than Adda Fahinti, right?

[00:12:33] Speaker 04:
We've got the sham, we've got the cashier's checks, we've got the repeated rapid transfers.

[00:12:40] Speaker 04:
We don't just have those bare facts, we've got more here.

[00:12:45] Speaker 00:
For the reasons I've said, Your Honor, I don't think that those add to the facts.

[00:12:49] Speaker 00:
I think those are all easily explainable facts.

[00:12:51] Speaker 00:
There are other money laundering cases where defendants tamper with records.

[00:12:57] Speaker 00:
You could easily imagine a money laundering case where there was some actual direct evidence of people talking about money laundering.

[00:13:04] Speaker 00:
There were numerous cooperating witnesses in this case who testified about the defendants.

[00:13:07] Speaker 00:
None of them said anything about laundering money or hiding proceeds.

[00:13:13] Speaker 07:
You know, the other difference, I'm just looking back at that, how do you pronounce this, what is it, this case?

[00:13:18] Speaker 00:
I think it's adafahinti, Your Honor, but I'm not certain.

[00:13:22] Speaker 07:
Okay, it's harder to pronounce than it is to understand.

[00:13:26] Speaker 07:
So you're right.

[00:13:28] Speaker 07:
In that case,

[00:13:29] Speaker 07:
There were fake entities just like here, but the fake entities there had a connection to the illegal real estate scheme.

[00:13:38] Speaker 07:
Here, these two companies, if you just look at these two companies, you know, they're articles of incorporation or whatever.

[00:13:46] Speaker 07:
You would think the money here came from either real estate or some sort of international trade deal.

[00:13:52] Speaker 07:
It had nothing to do with Medicaid.

[00:13:54] Speaker 07:
So that's the difference between this case and that unpronounceable case.

[00:13:58] Speaker 00:
I think not if those companies, as the government argued, in fact didn't do any other business, just based on the name of the company alone.

[00:14:06] Speaker 00:
It was also apparent that they were the defendant's companies.

[00:14:09] Speaker 00:
I think the one other case that I want to bring to the Court's attention on this is the Stoddard case, which we wrote a 28-J letter to the Court about, where I think the evidence was much stronger of an intent to conceal, and the Court reversed the convictions.

[00:14:23] Speaker 00:
This was a case where the defendant was effectively a straw purchaser for a car.

[00:14:28] Speaker 00:
He bought a car that was to be used by his friend who was a drug dealer.

[00:14:32] Speaker 00:
The defendant bought it in his own name even though it was to be used by his friend.

[00:14:37] Speaker 00:
He paid for the car with drug money that his friend put into his account for that purpose.

[00:14:44] Speaker 00:
And this court said that that wasn't sufficient.

[00:14:47] Speaker 00:
The reason it wasn't sufficient was that the defendant and the drug dealer went to the dealership together to set up the purchase of this car.

[00:14:54] Speaker 00:
Similarly here, all of these accounts are tied directly and obviously to the defendants.

[00:15:01] Speaker 03:
Didn't the evidence also show it wasn't simply putting the money into the three global accounts?

[00:15:10] Speaker 03:
Griffith has recounted, but there were hundreds of accounts.

[00:15:16] Speaker 00:
There were a large number of accounts, Your Honor.

[00:15:19] Speaker 00:
I think one explanation for that could be the large amount of business that this company was doing.

[00:15:23] Speaker 00:
There's no dispute that Medicaid paid the company $80 million over several years.

[00:15:29] Speaker 00:
It had up to 800 or more than 800 clients at certain points.

[00:15:36] Speaker 00:
It was a large company.

[00:15:39] Speaker 00:
people could have perfectly reasonably wanted to spread their money among multiple banks, multiple accounts, just as a matter of protecting the money.

[00:15:51] Speaker 00:
Not that if you think that through really that that necessarily makes sense, but that's a perfectly rational thing I think for an ordinary

[00:15:58] Speaker 00:
person, which is really what we're dealing with here, ordinary person to try to do to protect themselves.

[00:16:04] Speaker 03:
So I know that's the way you started your brief and how much evidence was before the jury about the defendants or particularly your clients' other operations, business operations?

[00:16:20] Speaker 00:
Other operations besides Global, Your Honor?

[00:16:23] Speaker 00:
Yes.

[00:16:24] Speaker 00:
There was a little bit of evidence regarding a previous company called Flow Diamond, which was also a healthcare company that Ms.

[00:16:33] Speaker 00:
Bukundi, my client, operated before Global.

[00:16:35] Speaker 00:
Right.

[00:16:37] Speaker 03:
That was in the same area, right?

[00:16:40] Speaker 00:
I was in Maryland, Your Honor, as opposed to Global, which was in the distance.

[00:16:43] Speaker 00:
Yes, I think it was slightly different in the sense that it was more of a subcontractor for other companies I believe it provided.

[00:16:52] Speaker 03:
In other words, I thought your brief when it opened was trying to paint a picture of almost a multi-corporate operation here as opposed to, you know,

[00:17:04] Speaker 03:
I know $80 million is a ton of government money, but still a relatively confined operation.

[00:17:10] Speaker 03:
But I didn't see any follow through on that, so to the extent

[00:17:14] Speaker 03:
for the three reasons Judge Griffith mentioned, plus the fact there were hundreds of accounts.

[00:17:23] Speaker 03:
I mean, I might see that with General Motors, but I didn't see the facts here for that.

[00:17:29] Speaker 00:
Well, Your Honor, I think the evidence was clear in the record and came up more than once that there were more than 800 clients of Global by the end of its time.

[00:17:39] Speaker 00:
that it employed or- That's global.

[00:17:42] Speaker 06:
That's my point.

[00:17:43] Speaker 00:
That's global.

[00:17:43] Speaker 00:
Yes, Your Honor.

[00:17:44] Speaker 00:
Yes.

[00:17:45] Speaker 00:
And that it employed or contracted with some 700 home health aides.

[00:17:52] Speaker 00:
It was a very large company.

[00:17:53] Speaker 00:
It was.

[00:17:54] Speaker 00:
It was not General Motors, certainly.

[00:17:55] Speaker 03:
No, no.

[00:17:56] Speaker 03:
But it's one, and then the jury heard about this other operation that she had, and that's it.

[00:18:04] Speaker 00:
That's correct, Your Honor.

[00:18:08] Speaker 00:
I'm probably well over my time.

[00:18:11] Speaker 00:
I can address the other issues, but I would like to save some time for rebuttal.

[00:18:19] Speaker ?:
Good.

[00:18:19] Speaker 03:
All right, thank you.

[00:18:20] Speaker 00:
You're welcome.

[00:18:28] Speaker 01:
Good morning, Your Honors.

[00:18:28] Speaker 01:
May it please the court, Katherine Kelly on behalf of the United States.

[00:18:32] Speaker 03:
Good morning.

[00:18:32] Speaker 03:
I just want to clarify one thing with counsel.

[00:18:35] Speaker 01:
Oh, certainly.

[00:18:36] Speaker 03:
I'm sorry.

[00:18:37] Speaker 03:
Counsel, you want to save your time, but you intend or do you intend to make the arguments that you listed regarding the sentences?

[00:18:50] Speaker 00:
I can, Your Honor, briefly in four or five minutes talk about money laundering and the sentencing issues.

[00:18:56] Speaker 03:
Well, all I'm getting at is the nature of rebuttal versus presenting your argument.

[00:19:03] Speaker 03:
I know our questions have taken up some time, so do you just want to make it clear what you want to emphasize about your sentencing objections?

[00:19:11] Speaker 00:
Sure, Your Honor.

[00:19:14] Speaker 00:
And I would confine rebuttal to responding to what the government says.

[00:19:19] Speaker 00:
With respect to restitution, Your Honor, the MVRA said very clearly that the burden of demonstrating the amount of loss sustained by a victim as a result of the offense shall be on the attorney for the government.

[00:19:33] Speaker 00:
This court, in fare, said that that sentence means what it says.

[00:19:36] Speaker 00:
The government here tries to escape that sentence by saying that because it's the defendant's fault that it was impossible to figure out how much of the billing was legitimate versus fraudulent.

[00:19:47] Speaker 00:
The defendants should bear the burden.

[00:19:48] Speaker 04:
But there's a sentence in fair that seems to open the door, though, doesn't it, for court to shift the burden and to place the

[00:19:58] Speaker 04:
obligation on the perpetrator, the alleged perpetrator, if that perpetrator's in a better position to know what was legitimate and what was not.

[00:20:08] Speaker 04:
How should we think about that language in theory?

[00:20:11] Speaker 04:
I'm with you on the language of the statute.

[00:20:13] Speaker 04:
I'm not talking about

[00:20:14] Speaker 00:
That sentence is fair.

[00:20:17] Speaker 00:
Yes, sir.

[00:20:17] Speaker 00:
I think that the burden shifting that's talked about here and in other sentencing context typically is a burden of production, not a burden of proof or burden of persuasion that remains with the government.

[00:20:29] Speaker 00:
And here, I would say the defendants met the burden of production because the evidence was full of, the record was full of evidence that there was legitimate billing.

[00:20:40] Speaker 00:
All of the government's witnesses, cooperating witnesses, testified to that fact.

[00:20:44] Speaker 00:
The aides said that they provided legitimate services to legitimate clients.

[00:20:49] Speaker 07:
So if there's a burden shifting... But weren't the defendants in the best positions to prove the value of those services?

[00:20:57] Speaker 07:
How could the government disprove

[00:21:00] Speaker 00:
Your Honor, the government did bring a certain number of witnesses who testified about cooperating witnesses, who testified about services they provided or did not provide.

[00:21:12] Speaker 00:
They brought a certain number of clients who testified about services they received or did not receive.

[00:21:18] Speaker 00:
The government could have attempted a quantification of what it could actually prove.

[00:21:23] Speaker 00:
It didn't do that.

[00:21:24] Speaker 00:
It brought a handful of witnesses, again, keeping in mind that there were 700-some aides, 800-some clients.

[00:21:32] Speaker 00:
It brought 10 employees, 5 aides.

[00:21:35] Speaker 00:
and they testified to what they testified to.

[00:21:38] Speaker 00:
And if the government wants to be content with that, then it can be, but it has asserted that it can make much broader generalizations that just aren't supported by the record.

[00:21:48] Speaker 04:
If we were to disagree with you and to affirm the district court on the sufficiency of the evidence, but then we were talking about restitution, if we went in your direction and vacated

[00:21:59] Speaker 04:
the restitution order.

[00:22:00] Speaker 04:
Doesn't that give quite a windfall to the Pekundis, who, if we affirm that they committed this fraud?

[00:22:10] Speaker 00:
Well, I guess the question, Your Honor, is what the fraud is.

[00:22:12] Speaker 00:
The court might affirm the convictions.

[00:22:15] Speaker 00:
The conspiracy count, for example, of course, is very broad and could be supported by

[00:22:22] Speaker 00:
a relatively small conspiracy or a relatively large conspiracy.

[00:22:25] Speaker 00:
But then when we get to restitution, when we get to compensating the government as the victim.

[00:22:32] Speaker 00:
In this case, the DC Medicaid is the victim.

[00:22:35] Speaker 00:
The government, the US Attorney's Office, has to prove the extent to which it actually was a victim.

[00:22:39] Speaker 00:
That's what the statute says.

[00:22:40] Speaker 00:
That's what FAIR says.

[00:22:42] Speaker 00:
The government hasn't done that.

[00:22:43] Speaker 00:
The government has asserted that the fraud was very widespread.

[00:22:49] Speaker 00:
And, but concedes that it was not complete, that there was legitimate business going on, legitimate services being provided.

[00:22:55] Speaker 00:
The court, district court, found that, that there were legitimate services being provided, and it found that it couldn't identify the scope of those services.

[00:23:03] Speaker 00:
That's at page 1830 of the joint appendix.

[00:23:06] Speaker 00:
Those two findings

[00:23:08] Speaker 00:
say that the government has not proven and cannot prove the scope of any over billing fraud here.

[00:23:15] Speaker 00:
They can't do it.

[00:23:16] Speaker 03:
So the district court also found, did it not, that the fraud was so pervasive that the alterations were made not only to patient records, billing records, employee records, so that the implication of that finding

[00:23:36] Speaker 03:
although I realize one circuit has rejected it, was that it was an impossible task and therefore at least, piggybacking on Judge Tatel's question, a burden on the defenders to proffer, come forward, not bear the burden of proof, but simply proffer that

[00:24:01] Speaker 03:
Either there was a way or there were records.

[00:24:04] Speaker 03:
Sort of an accountant who keeps double books.

[00:24:07] Speaker 03:
Now, there may not have been double books here, but was there any pressure on the government to indicate what it had tried to do to calculate?

[00:24:18] Speaker 03:
what legitimate services were provided.

[00:24:23] Speaker 00:
To my knowledge, Your Honor, the government made no attempt in that direction.

[00:24:27] Speaker 03:
And did the defense press the district court on that point?

[00:24:32] Speaker 00:
The defense argued, Your Honor, that the government had not proven that the size of the offense was the $80 million, the full amount.

[00:24:39] Speaker 00:
paid by Medicaid and that's hardly disputed.

[00:24:43] Speaker 00:
The government didn't say that all of that was fraud.

[00:24:46] Speaker 00:
It said that it couldn't figure out what was fraud and what wasn't.

[00:24:50] Speaker 00:
And I think in that respect, I would point to the court to the Ninth Circuit's decision in Rutgard.

[00:24:54] Speaker 03:
Yeah, that's the one I referred to.

[00:24:56] Speaker 00:
In that case, the district court said that the defendant's business was permeated with fraud.

[00:25:03] Speaker 00:
And the Ninth Circuit accepted that characterization and said it wasn't enough, either for conviction or for sentencing, that that wasn't enough.

[00:25:11] Speaker 00:
The government has to prove, in the context of restitution, where it is saying that the D.C.

[00:25:16] Speaker 00:
Medicaid is a victim, it has to prove the extent to which it is a victim.

[00:25:20] Speaker 00:
In forfeiture, where the government wants to claw back ill-gotten gains by the defendants, the government has to prove the extent of those ill-gotten gains.

[00:25:30] Speaker 00:
It has to prove that they were actually gained

[00:25:32] Speaker 00:
by the defendants.

[00:25:34] Speaker 00:
And if it doesn't prove that, then it can't take that money.

[00:25:40] Speaker 00:
And it applies as well to loss calculation.

[00:25:42] Speaker 04:
It works a little differently on loss calculation though, doesn't it?

[00:25:45] Speaker 04:
I mean, as I understand it, the government makes up the prime efficient case by submitting the receipts

[00:25:54] Speaker 04:
So we start here, we have $80 million in tainted receipts, right?

[00:25:59] Speaker 00:
Not quite, Your Honor.

[00:26:00] Speaker 00:
I think that that application note says that the amount of the fraudulent bills, that's the language in the note, fraudulent bills, that that's a prima facie showing

[00:26:09] Speaker 00:
of intended loss.

[00:26:11] Speaker 00:
But my point here is that the government hasn't proven... Didn't tell us which are fraudulent and which are not.

[00:26:16] Speaker 04:
Correct.

[00:26:17] Speaker 04:
Would you speak to what note 3E does in our loss calculation?

[00:26:21] Speaker 00:
Yes, so 3E1 says that the defendants are entitled to a reduction of any loss calculation for the fair market value of the services rendered.

[00:26:34] Speaker 00:
That's the pieces of the language that would apply here.

[00:26:37] Speaker 00:
And I think they do apply here.

[00:26:40] Speaker 00:
There's plenty of evidence that there were services rendered.

[00:26:43] Speaker 00:
And the governments are entitled, first the government has to prove an amount of loss, which it hasn't done.

[00:26:49] Speaker 00:
But even if it did do that, that amount would have to be reduced by the services rendered.

[00:26:53] Speaker 00:
And the government in its brief characterizes that note as having to do with legitimate services rendered.

[00:26:59] Speaker 00:
The note doesn't say that.

[00:27:01] Speaker 00:
The word legitimate is not there.

[00:27:02] Speaker 00:
For a perfectly good reason, this is a criminal sentencing statute.

[00:27:05] Speaker 00:
It assumes that there's some amount of illegitimacy.

[00:27:08] Speaker 00:
That's why we're here.

[00:27:09] Speaker 00:
But the point is, if actual services are provided, the DC... So if we were to remand on that, what would it look like at the district court?

[00:27:17] Speaker 00:
Well, Your Honor, I think the district court, as I mentioned,

[00:27:19] Speaker 00:
has already found that it is impossible to determine the amount of loss.

[00:27:24] Speaker 00:
So I would not concede that on remand that this report can take that back and give the government another chance.

[00:27:33] Speaker 04:
How about in a hypothetical case?

[00:27:35] Speaker 04:
What does it look like?

[00:27:36] Speaker 04:
Who has the burden on that?

[00:27:38] Speaker 04:
If you go back to engage in a 3E inquiry, who has the burden?

[00:27:43] Speaker 04:
Well, I think first, Your Honor, the government has to make out a loss number.

[00:27:47] Speaker 04:
Right.

[00:27:48] Speaker 04:
In my hypothetical, let's imagine that's done.

[00:27:50] Speaker 04:
But now we're having a 3E hearing, if there's such a thing.

[00:27:53] Speaker 04:
What does that look like?

[00:27:54] Speaker 00:
Well, I think that the court has to determine

[00:27:58] Speaker 00:
the value of services rendered.

[00:28:01] Speaker 00:
And I think I would go back to what we talked about earlier about the burden of production and persuasion.

[00:28:05] Speaker 00:
The defendant here can point to the extensive evidence in the record that there were services rendered.

[00:28:13] Speaker 00:
And then I think it remains that the burden, the final burden remains with the government to prove whatever number it wants to attach.

[00:28:22] Speaker 03:
What I'm getting, I think we're trying to struggle with this a little bit in terms of

[00:28:26] Speaker 03:
In a normal paper trail, the government would just review the records.

[00:28:33] Speaker 03:
You're positing a situation almost as though, hypothetically, let's assume the records are destroyed in terms of their value to the government in trying to estimate the legitimate services.

[00:28:50] Speaker 03:
So the government is left with the obligation to,

[00:28:56] Speaker 03:
A, interview anybody they can identify.

[00:29:01] Speaker 03:
But at a minimum, since they proffered these defendants as witnesses of their own, they had to acknowledge that to the extent they proffered evidence that there were legitimate services, at least that amount has to be credited.

[00:29:20] Speaker 03:
Whatever it is, $100, $200, $2,000,

[00:29:26] Speaker 03:
So it just can't be that the $80 million is the beginning and the end.

[00:29:35] Speaker 03:
Now, the note talks about the bills.

[00:29:39] Speaker 03:
And here, the district court focused not on the bills, but on the actual amount received.

[00:29:48] Speaker 03:
Does that sort of solve some of the problems?

[00:29:53] Speaker 00:
I don't think so, Your Honor.

[00:29:54] Speaker 00:
The number, and I will be frank, that the number that we're talking about here is the number that was received by Global.

[00:30:00] Speaker 00:
It was not the amount that was billed by Global, which is somewhat higher.

[00:30:03] Speaker 00:
But I think still the government needs to show that bills that led to those payments were fraudulent and that's what it hasn't done.

[00:30:12] Speaker 00:
Either with respect to the over billing or with respect I'd add to the exclusion fraud that's alleged against my client.

[00:30:18] Speaker 00:
There are two points I want to make on that.

[00:30:20] Speaker 00:
First, there was never any allegation that Mr. Bakundi knew about the exclusion fraud, had anything to do with the exclusion fraud.

[00:30:27] Speaker 00:
So that can't be a basis for any sentencing of Mr. Bakundi.

[00:30:31] Speaker 00:
As to Ms.

[00:30:31] Speaker 00:
Bakundi, my client, I'd point to a number of cases that we cited in the briefs from the third, fourth, fifth, and seventh circuits that all held that fraud in obtaining a contract does not taint all the money that is later paid as a result of the contract.

[00:30:47] Speaker 00:
and so similarly here.

[00:30:50] Speaker 03:
Well, that's not necessarily.

[00:30:53] Speaker 00:
Well, fair enough, Your Honor, and I think these facts match quite well, the facts in those cases.

[00:31:00] Speaker 00:
Those were all cases where defendants misrepresented their qualifications for whatever contract it was.

[00:31:06] Speaker 00:
There were

[00:31:08] Speaker 00:
minority-owned business programs, et cetera.

[00:31:12] Speaker 04:
None of those were health care fraud cases, right?

[00:31:14] Speaker 00:
That's correct, Your Honor.

[00:31:16] Speaker 00:
But to the extent that the government wants to take this idea that global's application for a provider number taints everything that went after.

[00:31:23] Speaker 00:
I think those cases are all good analogies.

[00:31:25] Speaker 00:
Those are criminal cases where people

[00:31:28] Speaker 00:
improperly obtained contracts, and that's one thing, but then what they got paid through those contracts for actual work that was actually done is something else, and the two, one does not taint the other.

[00:31:40] Speaker 03:
All right, why don't we go ahead.

[00:31:42] Speaker 04:
So I want to ask you, you raise on the, on the forefile, you talk about the ability to pay.

[00:31:50] Speaker 04:
Did you raise that below?

[00:31:54] Speaker 00:
Your Honor, I'm not certain whether that was.

[00:31:57] Speaker 04:
It's the excessive fines argument, right?

[00:31:58] Speaker 00:
Yes.

[00:31:59] Speaker 00:
Well, the excessive fines argument was certainly, was certainly raised.

[00:32:02] Speaker 00:
Was raised below?

[00:32:02] Speaker 00:
Yes, it was, Your Honor.

[00:32:05] Speaker 00:
defendants argued extensively that it violated the excessive fines clause.

[00:32:11] Speaker 04:
Because it restricted the ability, because they didn't have the ability to pay?

[00:32:15] Speaker 04:
Was that the argument?

[00:32:16] Speaker 04:
I'm not sure that that argument in particular was made wrong.

[00:32:18] Speaker 03:
Was the argument made that the implication was sentencing to a life of debt, indebtedness?

[00:32:28] Speaker 00:
Well, Your Honor, I think that the district court found with respect to Mr. Bukundi that he didn't have the ability to pay a fine.

[00:32:37] Speaker 00:
I don't think it explicitly found that as to Ms.

[00:32:39] Speaker 00:
Bukundi, but it did not impose a fine on her.

[00:32:43] Speaker 04:
What I was getting at is I don't think you brazed the ability to pay argument until here.

[00:32:50] Speaker 04:
And so then I was going to ask, that's plain error review, do we?

[00:32:54] Speaker 04:
How, given the precedent?

[00:32:55] Speaker 00:
That's fair, Your Honor, and I don't think that that point is a necessary point to the argument.

[00:33:05] Speaker 00:
On the excessive fines point, Your Honor, the two points that I would make are that under

[00:33:11] Speaker 00:
There are two issues, whether the fine is punitive and whether it is grossly disproportional to the offense.

[00:33:19] Speaker 00:
I think in this case it is both.

[00:33:21] Speaker 00:
It is punitive because, as we've discussed, the government hasn't proven the amount of any loss, and any amount beyond any amount of loss is punitive.

[00:33:29] Speaker 00:
It's grossly disproportional for effectively the same reason.

[00:33:32] Speaker 00:
In order to figure out if it's proportional, you'd have to look at the scope of the offense.

[00:33:36] Speaker 03:
The government hasn't proven the scope of the offense.

[00:33:48] Speaker 01:
Good morning, Your Honor.

[00:33:48] Speaker 01:
May it please the court, Katherine Kelly again for the United States.

[00:33:52] Speaker 01:
If Your Honor would like, I'll start with the Speedy Trial Act issue.

[00:33:57] Speaker 01:
There's no need for the district court here to add anything to the findings that she made in regard to why the time was properly excluded from the Speedy Trial Clock.

[00:34:08] Speaker 01:
As this court stated in Rice, the findings under 3161H7 do not call for any magic words.

[00:34:16] Speaker 01:
When the court ultimately denied the dismissal motion in July of 2015, the court stated the full standard

[00:34:26] Speaker 01:
interest of justice for all the periods involved at issue and the hearing, recited the full legal standard, and then denied the motion.

[00:34:34] Speaker 01:
And it therefore applies to all the periods at issue.

[00:34:38] Speaker 01:
In a finding at the dismissal motion stage, in making the rulings at the time, the court also included her reasons on the record.

[00:34:49] Speaker 01:
There is no requirements that.

[00:34:54] Speaker 04:
There's no magic words requirement, but it's simply reciting the standard is inadequate right in the cases tell us we need to see that the district court judge grappled with the fact that's correct.

[00:35:06] Speaker 04:
So where do you see her grappling?

[00:35:09] Speaker 01:
We see her grappling with that when she's doing the hearings where the parties are explaining how much discovery is being turned over, how many voluminous documents they've received and how they're processing those, reviewing them, scanning them, having them put on searchable databases for the defense and so forth.

[00:35:29] Speaker 01:
And in this case, that sort of findings and that sort of discussion shows that the court was weighing all the necessary interests.

[00:35:38] Speaker 01:
In particular, in the Rice and the Lopez-Sierra Gutierrez case, the court found the findings by

[00:35:47] Speaker 01:
the district court sufficient, even though in neither of those cases did the district court mention the public's interest specifically.

[00:35:54] Speaker 01:
In those cases, the court had considered the complexity of the case as one of their considerations in both the interests of the defendant and so forth.

[00:36:04] Speaker 01:
And that's exactly what happened here.

[00:36:06] Speaker 01:
The Lopez-Sierra case talked about the ample discovery that was going on and so forth.

[00:36:11] Speaker 01:
So those are the same considerations that the district court was weighing in this case and explained on the record.

[00:36:18] Speaker 01:
And in that regard, and I believe it was the Rice case also that said in addition to not the magic words that sometimes when you actually look at what is the court examining, that's more important than seeing this

[00:36:33] Speaker 01:
It just wrote recitation of the standard under 31H7.

[00:36:39] Speaker 03:
Now, Ms.

[00:36:41] Speaker 03:
MacCundy makes the argument that Hearst PD Trial was violated for various reasons.

[00:36:50] Speaker 03:
And I know the government disputes that.

[00:36:53] Speaker 03:
But hypothetically, if Hearst PD Trial and the government's obligation

[00:37:02] Speaker 03:
to bring her to trial within 70 days plus any proper exclusions.

[00:37:12] Speaker 03:
Then her right was violated.

[00:37:20] Speaker 03:
You get where I'm going on this.

[00:37:21] Speaker 03:
I'm saying it awkwardly.

[00:37:22] Speaker 03:
But my point is, her 70 days plus valid exclusion, she argued, expired before a superseding indictment was filed.

[00:37:34] Speaker 03:
And the argument, sort of, is that, well, you file a superseding indictment, you add defendants, and the clock starts again.

[00:37:41] Speaker 03:
I didn't see any case, though, that really deals with this factual situation.

[00:37:47] Speaker 03:
Had you come along,

[00:37:49] Speaker 03:
Any such case?

[00:37:51] Speaker 03:
That is where the originally indicted defendant's time expires, but they're held over because the government is contemplating a superseding indictment.

[00:38:03] Speaker 01:
We did not find in doing our research for the case any case that squarely addressed this point either.

[00:38:09] Speaker 01:
The closest that I was able to find was the Chen Sheng Lu case from the Ninth Circuit where there was a

[00:38:16] Speaker 01:
and obviously a very old indictment in California that seemed to cover the same conspiracy that was later indicted in Nevada.

[00:38:25] Speaker 01:
And given the very long time between those two indictments, it would appear that the original speedy trial clock would have run on the California case.

[00:38:36] Speaker 03:
So it's your understanding of the law, though, that hypothetical case?

[00:38:40] Speaker 03:
The initially indicted defendant's speeding trial right expires at day 71, in my hypothetical, and the government must dismiss the indictment.

[00:38:54] Speaker 01:
Well, the government, if there was an improper, there was a violation of the Speedy Trial Act, then the dismissal, as Zedner says, is dismissal either with or without prejudice.

[00:39:07] Speaker 03:
That's what I'm getting at.

[00:39:09] Speaker 03:
So it can be a dismissal without prejudice?

[00:39:12] Speaker 01:
Correct.

[00:39:13] Speaker 01:
And that's up to the district court to decide.

[00:39:15] Speaker 01:
And what was unusual about this case is that it wasn't until about six months after the superseding indictment was filed in this case that Ms.

[00:39:27] Speaker 01:
Pecundi moved for dismissal under the Speedy Trial Act and complained then about periods only in regard to the time on the original indictment, which put the district court in a very difficult position because it

[00:39:42] Speaker 01:
There was at no time was the district court faced with the old indictment and making a decision in a timely manner on whether or not to dismiss with or without prejudice.

[00:39:54] Speaker 01:
So it was a very unusual situation in that regard.

[00:40:00] Speaker 01:
As the court in ruling on that motion to dismiss, first of all, just clearly explained what her rationale was, explained what the legal standards were, and then denied the motion to dismiss.

[00:40:15] Speaker 01:
So when the issue really is here, whether or not

[00:40:19] Speaker 01:
sufficient findings were made under age seven based on that ruling, plus all the rulings that the court made in excluding the time as they were coming up in the first place, we believe that sufficient language was placed in the record.

[00:40:35] Speaker 01:
And therefore, there was no speedy trial violation at all.

[00:40:38] Speaker 03:
I'll save my questions for that case.

[00:40:40] Speaker 03:
Thank you.

[00:40:41] Speaker 01:
Thank you.

[00:40:41] Speaker 01:
In regards to the Sixth Amendment SPD trial issue, just briefly on the fourth prong, the defense in its briefing of the issue did not say that there was specific

[00:40:52] Speaker 01:
prejudice to Mrs. Bikundi's defenses, it's not in their briefing that Mrs. Bikundi was having difficulty, for instance, conferring with her client, as was argued here today.

[00:41:04] Speaker 01:
In the briefing, they simply referred back to a presumptive prejudice under the first prong, saying since this was a delay of over a year,

[00:41:14] Speaker 01:
We don't need to say anymore.

[00:41:16] Speaker 01:
There's nothing in the record that I'm aware of where Mrs. Bikundi's attorney was ever saying that there was any difficulty communicating with his client.

[00:41:26] Speaker 03:
Do you know physically where she was held?

[00:41:30] Speaker 01:
I believe she was in the DC jail during that time.

[00:41:33] Speaker 01:
She was present for numerous status hearings and so forth.

[00:41:37] Speaker 01:
So that's my impression from the record, Your Honor.

[00:41:40] Speaker 01:
In regard to the money laundering convictions,

[00:41:45] Speaker 01:
As we've pointed out in our brief, it's unnecessary to hide the relationship between Mr. and Mrs. Bikundi and the bank accounts and the corporations.

[00:41:54] Speaker 01:
But what makes this case different is they're disguising, they're attempting to disguise the source of the funds, that this money came from D.C.

[00:42:01] Speaker 01:
Medicaid.

[00:42:02] Speaker 01:
And it's a series of things that make this a valid case to show or to

[00:42:12] Speaker 01:
show that they did, in fact, have an intent to hide the source.

[00:42:16] Speaker 01:
Each of the transactions that was charged, they're running DC Medicaid money.

[00:42:22] Speaker 01:
in the course of one to four days at the outset through the global account that takes in the money, through a second global account, in one instance through another Flo Diamond account, and then during that one to four days, that money is then going either to CFC's accounts or Tri-Continental's accounts, both of which were sham companies, as the record showed at trial.

[00:42:45] Speaker 01:
They did no business in the case of Tri-Continental,

[00:42:48] Speaker 01:
And they certainly did no business at all with Global, had no contracts with them, and so forth.

[00:42:54] Speaker 01:
The Thayer case and the Bolden case that we've cited in our briefs are both situations where money transferred through sham corporations was indicative of money laundering and supported that finding.

[00:43:07] Speaker 01:
In addition to that, the money then went into numerous accounts, mainly held in personal accounts by the Bikundis, and they used in

[00:43:18] Speaker 01:
a number of instances cashier's checks to transfer money from accounts that they owned into other accounts that they owned, which as Agent Henson testified was very unusual, given that they could have done it in a traceable manner very easily.

[00:43:33] Speaker 01:
As far as their innocent explanation that they come up with now saying there was some sort of fraud on the global accounts, Agent Hinson investigated that during her investigation in unwinding all these transactions and testified that she interviewed numerous witnesses about some potential of fraud on global accounts and no one was ever able to tell her anything more about it.

[00:43:58] Speaker 01:
No one ever had any additional information as stated at Joint Appendix, page 1660.

[00:44:04] Speaker 01:
And so for all of these reasons, there is sufficient evidence of money laundering in this case.

[00:44:12] Speaker 01:
In turning, Your Honors, to the restitution and loss amount, it may make more sense to start with the loss amount.

[00:44:20] Speaker 01:
Here the loss amount under the statute only needs to be a reasonable estimate of the loss based on the available information.

[00:44:28] Speaker 01:
This Court has said so in the Bissong case.

[00:44:30] Speaker 01:
Particularly in regards to federal health care fraud cases such as this, the fraudulent bills submitted by the government in the health care fraud program constitutes prima facie evidence of the amount of the intended loss and it's sufficient to establish the amount of the intended loss if not rebutted.

[00:44:49] Speaker 01:
So that's what we're dealing with in this case.

[00:44:53] Speaker 01:
The court here found two-fold reasons for saying the $80.6 million was

[00:45:00] Speaker 01:
The proper amount of loss and then ultimately the proper amount of restitution.

[00:45:06] Speaker 01:
First of all, the court found that since global unlawfully became a Medicaid provider in the first place.

[00:45:14] Speaker 01:
All the money it received through that Medicaid provider agreement was, therefore, fraudulent.

[00:45:20] Speaker 04:
And then on top of that, the court... But the district court recognized there was some work done, right?

[00:45:26] Speaker 04:
The court recognized that there was... Yeah, so it's got to be less than $80 million, right?

[00:45:31] Speaker 04:
There was some work done.

[00:45:32] Speaker 01:
Well, the question is whether or not that was legitimate, and the way the court framed it in the district court, the court said that it found that... I'm sorry, whether what was legitimate.

[00:45:41] Speaker 04:
I thought we agreed there was some work done.

[00:45:43] Speaker 01:
Some work done, but my point is that legitimate versus some work was done are two different things.

[00:45:49] Speaker 01:
The court found that there was...

[00:45:51] Speaker 01:
That's the question.

[00:45:52] Speaker 01:
Some services render here.

[00:45:54] Speaker 01:
The question is whether they would be considered legitimate is another question given that the Medicaid fund... In other words, the lady got her medication.

[00:46:00] Speaker 01:
I'm sorry, Your Honor, I didn't hear.

[00:46:01] Speaker 07:
I'm just trying to... The court recognized that there was legitimate business.

[00:46:05] Speaker 07:
That's why she gave those downward departures.

[00:46:09] Speaker 01:
That was in giving the downward departure not in figuring the law.

[00:46:12] Speaker 07:
But there she acknowledged that there had been that was one of the reasons she gave for giving the downward departure is that she says we acknowledge there was some aren't I right about that that there was legitimate business she acknowledged it.

[00:46:25] Speaker 01:
The court said that there were some services provided, but what the court also found in regard to the loss amount itself was that it was impossible to determine what if any services were legitimate.

[00:46:36] Speaker 01:
Those were the court's words.

[00:46:37] Speaker 07:
I agree with that, but that's different from you saying she never found there were some legitimate services.

[00:46:43] Speaker 07:
You're totally right.

[00:46:43] Speaker 07:
She said, I can't distinguish between them, but there were some.

[00:46:49] Speaker 07:
That's what she acknowledged.

[00:46:50] Speaker 01:
I think my point is, Your Honor, I'm not saying that the court did not acknowledge that some patients did get care from AIDS and so forth.

[00:46:58] Speaker 01:
That is correct based on the trial evidence.

[00:47:01] Speaker 01:
My point is whether or not you would consider those legitimate in a manner that you should take away from the loss amount is a different question.

[00:47:08] Speaker 03:
I interjected and I meant to say that that is part of the question, because courts have made this distinction.

[00:47:18] Speaker 03:
All right, Florence had no right to get the agreement.

[00:47:26] Speaker 03:
All right.

[00:47:27] Speaker 03:
Right.

[00:47:28] Speaker 03:
But having received this fraudulent agreement, she provided services to some people.

[00:47:40] Speaker 03:
And the government's own witnesses acknowledged that.

[00:47:45] Speaker 03:
And the district court acknowledged it.

[00:47:47] Speaker 03:
So what effort was made by the government to quantify those services?

[00:47:54] Speaker 01:
It was frankly impossible for the government to quantify those services.

[00:47:57] Speaker 01:
Why?

[00:47:58] Speaker 03:
Because of the- You had employees who testified as to what they did.

[00:48:03] Speaker 03:
You had clients who testified as to the services they received.

[00:48:10] Speaker 03:
So even if it's a low dollar amount, not anywhere near 80 million, doesn't-

[00:48:17] Speaker 03:
that amount have to be taken into account, at least in the restitution?

[00:48:23] Speaker 01:
The problem is that there's no way to quantify that.

[00:48:26] Speaker 01:
And if the court would allow me to explain, what happened here is the government received all this documentation and search warrants and so forth.

[00:48:33] Speaker 01:
And the fraud was so rife, as the district court explained, that the scope of the fraud spilled over into documentation potentially for every global patient and employee.

[00:48:44] Speaker 01:
Here's what I'm getting at.

[00:48:46] Speaker 03:
I understand that can be an argument, but at least one circuit has rejected it.

[00:48:52] Speaker 03:
And the point is it's easier for the government if it has records and it can just add up the numbers.

[00:49:03] Speaker 03:
It doesn't have records here, but it has human beings.

[00:49:07] Speaker 03:
And they testified, and the doctors could testify as to what their prescriptions were.

[00:49:14] Speaker 03:
The nurses could testify as to what programs they approved.

[00:49:19] Speaker 03:
The patients could say, I receive my pills every other day.

[00:49:23] Speaker 03:
It's laborious, all right?

[00:49:28] Speaker 03:
But that may be the nature of the beast, is what I'm trying to get you to address.

[00:49:34] Speaker 01:
And the problem that makes this case different, Your Honor, is a situation where the aides were going to some patients and saying, here, sign this timesheet, and I'll pay you a couple of hundred dollars.

[00:49:47] Speaker 01:
We can pretend I was here.

[00:49:48] Speaker 01:
So we won't count that.

[00:49:50] Speaker 03:
In other words, what I'm getting at is sometimes the government's burden is difficult to meet.

[00:49:57] Speaker 03:
But that is different from saying it's impossible to me.

[00:50:02] Speaker 03:
It's not as though the records had been destroyed in fire, that all the clients were dead, that all the doctors who issued prescriptions had no records.

[00:50:14] Speaker 03:
I'm just trying to get an understanding of what we're dealing with.

[00:50:18] Speaker 03:
I mean, the government's burden

[00:50:20] Speaker 03:
may be very, very, very, very, very, very difficult, but that doesn't necessarily mean it's impossible 100 percent, does it?

[00:50:31] Speaker 01:
It doesn't mean it's necessarily impossible, but the lost amount of course has to be a reasonable estimate based on the available information.

[00:50:38] Speaker 01:
The problem here is the available information is when you

[00:50:41] Speaker 01:
Open the patient files.

[00:50:43] Speaker 01:
There's forged plans of care.

[00:50:45] Speaker 03:
I'm with you on that.

[00:50:46] Speaker 03:
I'm trying to get beyond that.

[00:50:48] Speaker 03:
You have the doctors who wrote the prescriptions.

[00:50:50] Speaker 01:
Well, there are no doctors writing prescriptions.

[00:50:53] Speaker 03:
There were, according to this program.

[00:50:56] Speaker 03:
There were prescriptions.

[00:50:58] Speaker 03:
There were programs.

[00:51:00] Speaker 03:
The programs were approved.

[00:51:02] Speaker 03:
And who is it who did those audits, wrote reports about deficiencies, et cetera?

[00:51:07] Speaker 01:
That was HRLA.

[00:51:09] Speaker 01:
That's the licensure board from the District of Columbia.

[00:51:13] Speaker 01:
They went in.

[00:51:14] Speaker 01:
They found vast amounts of problems in the records.

[00:51:18] Speaker 01:
And at the same time, as the surveyors are in one room, Mr. Pecundi, in other instances,

[00:51:25] Speaker 01:
Mrs. Bikundi are in another room overseeing employees as they're doctoring the files that HRLA is asking for.

[00:51:33] Speaker 03:
So following up on a point Judge Tatel's question made, I won't attribute this to him, but if the burden of production then would shift to the defendants where the government says, for all the reasons you've just recounted, it's impossible for us to figure out,

[00:51:51] Speaker 03:
the amount of legitimate services, legitimate in quotes here.

[00:51:57] Speaker 03:
Yes.

[00:51:58] Speaker 03:
Then it's a burden, not a burden of proof, but a burden shifts at least to production for the defendants to say, in fact, we offered the following services to these patients.

[00:52:15] Speaker 03:
And there was some proffer

[00:52:18] Speaker 03:
made by the defendant.

[00:52:20] Speaker 03:
It's not comprehensive, as I understand it.

[00:52:23] Speaker 03:
But there was some proffer, wasn't there?

[00:52:24] Speaker 01:
I'm sorry.

[00:52:27] Speaker 01:
I'm not understanding what you mean by proffer, Your Honor.

[00:52:30] Speaker 03:
proffer that they provide legitimate services to some of their clients?

[00:52:36] Speaker 01:
At the time of sentencing, all they said was something like that.

[00:52:40] Speaker 01:
There's some legitimate services.

[00:52:41] Speaker 01:
There was never any attempt to quantify.

[00:52:44] Speaker 01:
And of course, even when the burden of production shifts, as the Opitz Court said in the Third Circuit, the Ayuwala case in the First Circuit said, it's up to the defense when that

[00:52:53] Speaker 01:
production burden shifts for the defense to come up with some evidence.

[00:52:58] Speaker 01:
And they did not do that here.

[00:52:59] Speaker 01:
They just said, we can't give you a loss amount number.

[00:53:02] Speaker 01:
There's no loss amount number that applies at all in this case.

[00:53:06] Speaker 01:
So they didn't meet even a burden of production.

[00:53:08] Speaker 04:
And where in the statute does it authorize the shifting

[00:53:10] Speaker 04:
of any burden away from the government to the defendant.

[00:53:14] Speaker 04:
It's the government's burden here to show actual, provable loss.

[00:53:21] Speaker 04:
And if the government can't carry that burden, it loses.

[00:53:25] Speaker 04:
Where is the authority in the statute to shift that burden somehow to the defendant?

[00:53:31] Speaker 04:
I know a couple of courts have done that.

[00:53:32] Speaker 04:
I'm asking you where

[00:53:34] Speaker 01:
The authority that we're relying on is the application note 3F8 for fraud in federal health care insurance cases where the government

[00:53:46] Speaker 01:
is putting forth the fraudulent bills submitted is the prima facie evidence of the amount of the intended loss, which is sufficient evidence to establish.

[00:53:55] Speaker 04:
That's loss under sentencing, right?

[00:53:56] Speaker 04:
Isn't that a different inquiry than the rescue?

[00:53:58] Speaker 01:
Well, that's what we're talking about now.

[00:54:00] Speaker 01:
I'm sorry.

[00:54:01] Speaker 04:
I thought I was thinking about the restitution issue.

[00:54:04] Speaker 04:
Oh, I'm sorry.

[00:54:04] Speaker 01:
And I'm happy to go on to restitution, Your Honor.

[00:54:07] Speaker 04:
I'm sorry.

[00:54:07] Speaker 04:
I'm sorry.

[00:54:07] Speaker 01:
That may be my confusion.

[00:54:08] Speaker 01:
But the loss amount is calculated.

[00:54:11] Speaker 01:
We're relying on application note 3F8 of the sentencing guidelines to be 1.1.

[00:54:18] Speaker 01:
In regard to restitution, again, we're on plain error review on this restitution argument because the methodology was not questioned in the district court.

[00:54:27] Speaker 01:
Ms.

[00:54:28] Speaker 01:
Pecundi just said in a one-liner in her sentencing filings that we object to the restitution and forfeiture that is

[00:54:36] Speaker 01:
being proffered by the government, and Mr. Bikundi said nothing.

[00:54:40] Speaker 01:
So what we're doing in restitution is we're following the statutes 18.3664 and 3663A.

[00:54:47] Speaker 01:
Well, let me just ask you, so I'm clear about this.

[00:54:57] Speaker 03:
The defendant objects.

[00:54:59] Speaker 03:
All right.

[00:55:00] Speaker 03:
So that raises the issue.

[00:55:05] Speaker 03:
restitution properly, was it correct?

[00:55:11] Speaker 03:
Was it proper?

[00:55:13] Speaker 01:
It was correct under the law, Your Honor, because as the statute says, the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court.

[00:55:23] Speaker 01:
And that's 366, 3664F.

[00:55:25] Speaker 01:
Can you see the problem here?

[00:55:28] Speaker 03:
I'm trying to understand this.

[00:55:31] Speaker 03:
Once you prove health care fraud,

[00:55:35] Speaker 03:
And if it's fraud that goes to the alteration of records, then you just show the dollar amount received and the government sits down.

[00:55:46] Speaker 01:
Well, the dollar amount received here by global was, again, all fraudulent because it was provided by DC Medicaid under a fraudulent

[00:55:55] Speaker 02:
If we accept that legal analysis.

[00:56:01] Speaker 01:
Moving beyond that, what we have is a case where the documentation at Global's offices was so rife with fraud that it's impossible to figure out how

[00:56:13] Speaker 01:
you can reduce any amount of either restitution or loss by some sort of, unquote, legitimate services provided.

[00:56:22] Speaker 01:
The Fair case said, actually, in certain cases, such as when the defendant is in a much better position than the government to ascertain particular facts at issue, partial shifting of the burden to the defendants is appropriate.

[00:56:33] Speaker 03:
I know, and I read that to be burden of production.

[00:56:37] Speaker 03:
not trying to amend the statute to say, now the descendant has the burden of proof.

[00:56:43] Speaker 01:
Well, sure, sure.

[00:56:44] Speaker 01:
But even here, if you look at it as a burden of production.

[00:56:47] Speaker 03:
No, I get your point.

[00:56:48] Speaker 03:
They didn't meet their burden of production.

[00:56:50] Speaker 03:
They didn't meet it.

[00:56:51] Speaker 03:
But that's what I understood us to be saying.

[00:56:54] Speaker 03:
Maybe I'm wrong about this, but I didn't understand us to say the burden of proof itself was shifting.

[00:57:01] Speaker 01:
No, I understood it as a burden of production as well.

[00:57:04] Speaker 01:
And we're not saying that the government doesn't have the burden of proof.

[00:57:08] Speaker 01:
We have it through a preponderance of the evidence standard at sentencing, however.

[00:57:13] Speaker 01:
And given the full amount of the billings that DC Medicaid paid to global, it is a valid

[00:57:22] Speaker 01:
measure of that victim's losses in this case.

[00:57:27] Speaker 01:
Particularly, I would cite the court to the Mellott case from the 10th Circuit where there was a defendant who made false statements on an application for agricultural subsidies.

[00:57:35] Speaker 01:
And the court, in that situation, ordered restitution in the full amount of subsidies that the defendant received because he was ineligible to receive any subsidies due to the fraud in his application.

[00:57:47] Speaker 03:
Well, what could he proffer?

[00:57:53] Speaker 01:
I'm sorry, Your Honor, I've been here.

[00:57:54] Speaker 03:
What could the receiver of the subsidy proffer?

[00:57:58] Speaker 03:
I don't believe he proffered it.

[00:58:00] Speaker 03:
No, but that's a different situation.

[00:58:02] Speaker 03:
I don't know what he could proffer.

[00:58:04] Speaker 03:
He got the subsidy, all right, and he grew corn or whatever, mined mineral.

[00:58:12] Speaker 03:
But here, you have the situation where, you know, it's just like a major corporation.

[00:58:19] Speaker 03:
It's operating perfectly, but it's got this one fraudulent unit.

[00:58:25] Speaker 01:
And again, it has to be the victims lost by a preponderance of the evidence.

[00:58:31] Speaker 01:
And given the rife fraud that was going on at Global, it's impossible for anybody to say what allegedly legitimate service was provided and how that loss did not incur to.

[00:58:45] Speaker 03:
So let me understand.

[00:58:46] Speaker 03:
Your reading of the statute and the application notes would be?

[00:58:51] Speaker 01:
And I'm sorry, are we talking loss, Your Honor, or restitution at this point?

[00:58:54] Speaker 01:
The notes.

[00:58:55] Speaker 03:
I'm happy to talk about either, actually.

[00:58:58] Speaker 03:
But I want to understand what the government's understanding of its burden of proof is.

[00:59:05] Speaker 03:
And I'm at sentencing.

[00:59:07] Speaker 03:
And the government, let's assume, has already proven beyond a reasonable doubt that the defendants are guilty of health care fraud.

[00:59:21] Speaker 03:
So at sentencing, the government can show the loss amount is the $80 million.

[00:59:26] Speaker 03:
As to restitution, is it able to rely on that as well, given the conviction of health care fraud?

[00:59:44] Speaker 01:
I believe we are, Your Honor.

[00:59:46] Speaker 01:
We are allowed to rely on that.

[00:59:48] Speaker 03:
That can't be the law, though.

[00:59:50] Speaker 03:
That's what we're trying to stretch you on, because if that's the end of it, then there wouldn't be all this language about the district court finding there were some legitimate services rendered.

[01:00:08] Speaker 03:
In other words, I understood what the district court did here.

[01:00:11] Speaker 03:
She got in a situation where the sentencing guidelines were telling her life, 36 years to life, and she said,

[01:00:20] Speaker 03:
I'm going to depart.

[01:00:22] Speaker 03:
Correct.

[01:00:23] Speaker 03:
So she drops it down to 10 and seven years respectively for each defendant.

[01:00:31] Speaker 03:
And so trying to figure out the calculation, et cetera, is pretty impossible.

[01:00:38] Speaker 03:
And I just wonder sort of what the principle that would be established by this case would say

[01:00:49] Speaker 03:
In other words, any time the district court departs downward, then the government is relieved of any burden beyond the prima facie case, even though the government's own witnesses testified that they did receive health care services.

[01:01:15] Speaker 01:
No, Your Honor, we're not arguing that the fact of the downward departure relieves the government's burden to show loss amounts is a reasonable estimate of the loss based on the available information.

[01:01:27] Speaker 03:
Well, I hear that that's sort of where you're going, given our questions.

[01:01:31] Speaker 03:
And we're pressing you.

[01:01:32] Speaker 03:
I realize you don't want to give at all.

[01:01:35] Speaker 03:
But that's what I'm concerned about in terms of where we end up here.

[01:01:40] Speaker 03:
And is it just that at sentencing,

[01:01:44] Speaker 03:
you know the district court did what was required under the sentencing guidelines and then decided to depart and that's really all we need to look at.

[01:01:54] Speaker 01:
I mean that's all the court really could do in this case because as the court recognized it was impossible really for anybody to figure out what sort of value might be applied to those

[01:02:08] Speaker 01:
not very common occasions based on the trial evidence where it went and actually provided services to somebody.

[01:02:16] Speaker 01:
And for that reason, the court took 3E into consideration and said, I'm going to down or depart, but left the loss amount what it was because that's under 3F8, what the standards applied to the facts showed, and restitution in the full amount because there was fraud in receiving the contract in the first place.

[01:02:39] Speaker 01:
and because the government had shown the eight-page chart.

[01:02:42] Speaker 07:
Yeah, I do.

[01:02:42] Speaker 07:
I want to ask a quick question about money laundering, the forfeiture for the money laundering.

[01:02:48] Speaker 01:
Yes, Your Honor.

[01:02:49] Speaker 07:
Okay, 9821.

[01:02:52] Speaker 07:
It says that there's a linkage in this statute.

[01:02:58] Speaker 07:
Forfeit any property involved in such events or any property traceable.

[01:03:06] Speaker 07:
So the district court made this linkage finding based on the seven substantive counts.

[01:03:19] Speaker 07:
But there were thousands of other transactions for which there's no evidence that they're involved in or traceable too.

[01:03:36] Speaker 07:
So how can, I mean, there's no, other than the seven that she, that the district court linked, found direct or traceable.

[01:03:48] Speaker 07:
There's no evidence with respect to the thousands of other transactions.

[01:03:52] Speaker 07:
So, I mean, we can't really say that all 80 million was involved in or traceable to money laundering.

[01:04:07] Speaker 07:
We can't say that on this record.

[01:04:11] Speaker 01:
So your honor's question is, since there was a finite number of money laundering transactions, they can't come up with an $80 million number and divide it in half?

[01:04:19] Speaker 07:
Well, the district were made findings with respect to seven.

[01:04:22] Speaker 07:
But there's thousands of others.

[01:04:26] Speaker 01:
There were numerous transactions.

[01:04:28] Speaker 01:
And the other point, Count 15, on which the forfeiture was also based on money laundering, was money laundering conspiracy.

[01:04:37] Speaker 07:
But you can see there's thousands of other transactions for which there's no finding at all.

[01:04:41] Speaker 07:
We can't make the judgment with respect to all $80 million that they are traceable to or

[01:04:54] Speaker 07:
that they're involved in are traceable, too.

[01:05:00] Speaker 07:
We can't say that about the 80 million.

[01:05:03] Speaker 01:
I believe we can, Your Honor, because again, all the money that Global received, the 80 million.6, was from their fraudulent contract with D.C.

[01:05:15] Speaker 01:
Medicaid.

[01:05:15] Speaker 07:
So you think her basic finding on the substantive counts, that this was all infected by fraud is enough?

[01:05:22] Speaker 07:
Because this language is so different.

[01:05:25] Speaker 01:
It is all infected by fraud, Your Honor, and in addition to that.

[01:05:28] Speaker 07:
But this statute requires a finding that it's involved in or traceable to.

[01:05:35] Speaker 07:
So your position is that her global finding about all about, your global finding that this was just infected with fraud is enough to satisfy 9821?

[01:05:51] Speaker 01:
I would say, Your Honor, that given that these were the same 39 million was imposed for the 982 offense and under 982A1, that since it's a concurrent amount, even if there isn't a full, if the court is finding that the insufficient information is in regards to the money laundering, you still have the exact same amount that's imposed for the healthcare fraud, which would be the 81 million.

[01:06:21] Speaker 01:
Thank you.

[01:06:23] Speaker 03:
Anything further?

[01:06:27] Speaker 03:
All right, Council for Florence.

[01:06:31] Speaker 00:
Thank you, Your Honor.

[01:06:33] Speaker 00:
If I could just briefly respond to a few of the points that the government made.

[01:06:36] Speaker 00:
With respect to the Speedy Trial Act, the government suggested that it's not a magic words test.

[01:06:44] Speaker 00:
I just want to make clear we agree with that.

[01:06:47] Speaker 00:
We're not asking for a magic words test.

[01:06:49] Speaker 00:
I think Rice and Lopez, he are Gutierrez.

[01:06:53] Speaker 00:
help us in both of those respects.

[01:06:55] Speaker 00:
Some other approximate language like that used in Rice would be sufficient.

[01:07:00] Speaker 00:
As the court said in Lopez, Sierra Gutierrez, nonetheless, we have to take the district court at its word.

[01:07:08] Speaker 00:
The government suggested that the district court in those cases did not

[01:07:12] Speaker 00:
address the public interest.

[01:07:15] Speaker 00:
I don't think that's right.

[01:07:17] Speaker 00:
In Rice, it did it in the sort of approximate way that I mentioned.

[01:07:20] Speaker 00:
In Lopez Sierra Gutierrez, it did it explicitly.

[01:07:24] Speaker 00:
It explicitly referred to the public interest.

[01:07:28] Speaker 00:
We talked with the government about the superseding indictment, I think getting indictment

[01:07:32] Speaker 00:
And the reason for that is once the clock expires, as the government said, the indictment is to be dismissed and the district court must decide whether that dismissal is with or without prejudice.

[01:07:45] Speaker 00:
And there are standards for doing that that are set out in the statute.

[01:07:48] Speaker 00:
The government prevents the district court from making that assessment if its superseding indictment resets the clock.

[01:07:55] Speaker 00:
The district court, had the statute been applied absent the superseding indictment, could have decided to dismiss with prejudice.

[01:08:03] Speaker 00:
The government, if superseding indictment resets the clock, that takes that power away from the district court, though it is given to the court by the statute.

[01:08:15] Speaker 00:
With respect to

[01:08:19] Speaker 00:
whether the prejudice on the constitutional issue, most of the points that I discussed here previously were discussed in the briefs.

[01:08:28] Speaker 00:
As I said, the government itself is the one that talked about the time it took to handle what it received from its subpoena.

[01:08:36] Speaker 00:
Its bank subpoena is issued on the date of the arrest.

[01:08:39] Speaker 00:
That's on page 22 of its brief.

[01:08:41] Speaker 00:
We did talk in our brief about the fact that the defendant was incarcerated.

[01:08:45] Speaker 00:
All of the cases that talk about the Speedy Trial talk about

[01:08:48] Speaker 00:
the inherent difficulty that that places on the defendant to confer with counsel in any case.

[01:08:54] Speaker 00:
And of course we talked a great deal in our brief about Government Exhibit 439 and the prejudice that the defendant suffered by its late creation and late disclosures.

[01:09:12] Speaker 00:
With respect to the question of whether there was this fraud, other fraud within the global accounts, the defendants did raise that point repeatedly at the trial, so much so that the government responded to it in its questioning of the witnesses and in its closing arguments.

[01:09:28] Speaker 00:
So that point that there was fraud in the underlying accounts was definitely raised at trial.

[01:09:33] Speaker 00:
There was talk about bounced checks.

[01:09:35] Speaker 00:
There was talk about a fraudulent check.

[01:09:38] Speaker 00:
And there was talk more generally about fraud.

[01:09:43] Speaker 00:
The government said a couple of times that the district court is entitled to estimate loss.

[01:09:48] Speaker 00:
The loss number for sentencing guidelines can be an estimate of the loss.

[01:09:52] Speaker 00:
The number we're talking about here, $80 million, is very explicitly not an estimate of the loss.

[01:09:58] Speaker 00:
The district court said it could not figure out the amount of any actual loss, and it just took the full number of the amount that was paid by DC Medicaid.

[01:10:06] Speaker 00:
That's not an estimate in any way.

[01:10:11] Speaker 00:
With respect to restitution, the government suggested that this is a plain error on appeal.

[01:10:17] Speaker 00:
We don't agree with that.

[01:10:18] Speaker 00:
The government, in its restitution briefing, said, with no further explanation, the restitution number should be $80 million.

[01:10:26] Speaker 00:
The defendants responded in kind.

[01:10:28] Speaker 00:
They objected in exactly the same way.

[01:10:32] Speaker 00:
And in any event, we think it is plain error, given the text of the statute and this Court's decision in fair.

[01:10:40] Speaker 00:
The government mentioned a 10th circuit decision, Mellot, M-E-L-O-T, in response to the cases that I talked about earlier where the acquisition of a contract by fraudulent means doesn't taint the money later paid through that contract.

[01:10:57] Speaker 00:
Mellot is very different.

[01:10:59] Speaker 00:
Mellot is a case where a defendant applied repeatedly for agricultural subsidies.

[01:11:06] Speaker 00:
That wasn't applying in order to get a contract to provide services later and then get paid for those services.

[01:11:12] Speaker 00:
They were discrete applications, direct applications for specific subsidies which were then paid.

[01:11:17] Speaker 00:
That's a fraud carried out in getting those specific payments.

[01:11:20] Speaker 00:
It's very different from what we have here and from the cases cited in our briefs.

[01:11:33] Speaker 00:
If the court has nothing further, I'll rest.

[01:11:40] Speaker 06:
All right.

[01:11:46] Speaker 05:
May it please the court, Stephen Kersh on behalf of Michael Boconde.

[01:11:50] Speaker 05:
I first want to make a preliminary remark in response to a comment made by Miss Kelly.

[01:11:55] Speaker 05:
Before the trial even began, the defendants made an agreement, and this was acknowledged by the court, that any objection made by one defendant would automatically be adopted by the other defendant unless the other defendant specifically said they're not adopting that objection.

[01:12:11] Speaker 05:
And this relates to the restitution issue.

[01:12:14] Speaker 05:
So all of the objections have been adopted by each defendant.

[01:12:18] Speaker 05:
But I do want to start out with the Rule 16 issue.

[01:12:22] Speaker 05:
We were three weeks into a complex trial and this was a trial that involved literally hundreds of thousands of documents.

[01:12:32] Speaker 05:
We were one witness away from the government's last witness when all of a sudden this incredibly prejudicial report, Exhibit 439, was dropped on us.

[01:12:42] Speaker 05:
So we had to make very quick decisions as to how we were going to deal with it and what we were going to do with this report.

[01:12:48] Speaker 05:
The trial court acknowledged that there was a problem with the timing of the report.

[01:12:53] Speaker 05:
The trial court also acknowledged that something had to be done to cure the delay.

[01:12:58] Speaker 05:
And Judge Howell specifically said, this is not great timing.

[01:13:02] Speaker 05:
Well, it wasn't just a question of great timing.

[01:13:04] Speaker 05:
It was a question of the prejudice, the severe prejudice that Michael Baconde suffered as a result of this report.

[01:13:11] Speaker 03:
Well, let me ask you about that.

[01:13:13] Speaker 03:
Now, the district court said all that you just mentioned.

[01:13:16] Speaker 03:
And then she said, I'll give you

[01:13:18] Speaker 03:
24 hours.

[01:13:22] Speaker 03:
Who objected?

[01:13:24] Speaker 03:
In other words, where did the defense argue, as you're arguing today,

[01:13:34] Speaker 03:
that we need a lot more time, we need to do this investigation, this hits us at the last moment, all that sort of thing.

[01:13:41] Speaker 05:
Well, we did make that objection.

[01:13:43] Speaker 05:
And I specifically did not accept the court's invitation for a 24-hour recess to further investigate this matter.

[01:13:52] Speaker 05:
Donald Shearer, who was the witness that this exhibit was introduced to, who testified about this exhibit, he knew nothing about the underlying data.

[01:14:02] Speaker 05:
Interviewing Donald Shearer was of absolutely no use.

[01:14:06] Speaker 05:
Counsel for Ms.

[01:14:06] Speaker 05:
Pecundi actually did interview Mr. Shearer, and I was present during that interview, but I specifically stayed away from asking any questions because I wanted to make the point on the record.

[01:14:16] Speaker 05:
There was absolutely no point in interviewing this man because... Excuse me.

[01:14:20] Speaker 07:
Can I just ask you a factual question?

[01:14:22] Speaker 07:
Sorry.

[01:14:22] Speaker 07:
Are you talking about the district court?

[01:14:25] Speaker 07:
The district court said, okay, we're going to postpone this for a day, and you can talk to the witness.

[01:14:30] Speaker 07:
in the next 24 hours, right?

[01:14:32] Speaker 06:
Yes.

[01:14:32] Speaker 07:
Is that what you're talking about?

[01:14:33] Speaker 06:
Yes.

[01:14:34] Speaker 07:
Oh, I was under the impression that defense, you tried this case, right?

[01:14:40] Speaker 05:
Yes.

[01:14:40] Speaker 07:
I was under the impression that you said that wasn't necessary.

[01:14:43] Speaker 07:
You actually didn't eat with him that night?

[01:14:45] Speaker 05:
Well, I met in the same room with him, but I didn't talk to him.

[01:14:49] Speaker 05:
I didn't ask him any questions.

[01:14:51] Speaker 05:
Mr. Cundy's counsel did the questioning.

[01:14:53] Speaker 07:
Oh.

[01:14:54] Speaker 07:
But all of the info and they also she also gave they also gave you a copy of the unredacted version of it with all the names right.

[01:15:04] Speaker 05:
Yes that's correct.

[01:15:06] Speaker 05:
But but so I'm sorry.

[01:15:09] Speaker 05:
Well, again, the report was useless.

[01:15:13] Speaker 05:
Donald Shearer was useless in terms of addressing the report because he had no understanding, no information about the underlying data.

[01:15:23] Speaker 04:
Did you ever ask for the underlying data?

[01:15:26] Speaker 04:
It doesn't rule 16 require that.

[01:15:29] Speaker 05:
Well, we asked for it and it wasn't produced.

[01:15:31] Speaker 05:
All we got was... When did you ask for that?

[01:15:33] Speaker 05:
I'm not sure.

[01:15:34] Speaker 05:
Maybe we didn't make a specific request.

[01:15:36] Speaker 07:
Did you do the cross examination of him?

[01:15:38] Speaker 05:
Excuse me?

[01:15:38] Speaker 07:
Did you do the cross for him?

[01:15:40] Speaker 07:
Yes.

[01:15:40] Speaker 07:
You did a really good job because, you know, you got him to admit all of that.

[01:15:45] Speaker 07:
On cross, he admitted.

[01:15:46] Speaker 07:
He admitted that he didn't know how many of these people had been interviewed at all to determine whether they replaced the service.

[01:15:55] Speaker 07:
And you got him to concede that he didn't know any of the reasons why any of them stopped.

[01:16:00] Speaker 07:
I mean, it looks to me like you totally neutralized the thing.

[01:16:04] Speaker 07:
And then in your...

[01:16:10] Speaker 07:
And then you did the closing before the jury, right?

[01:16:13] Speaker 07:
Yes.

[01:16:13] Speaker 07:
You did a really good job there too, right?

[01:16:16] Speaker 07:
You said, you told the jury that the government was over, over, overusing it, that they hadn't interviewed any of the mission issuaries, right?

[01:16:25] Speaker 07:
It was, I mean, it was hardly,

[01:16:29] Speaker 07:
Why isn't that sufficient to say, look, yeah, even if there was a Rule 16 violation, you took care of it.

[01:16:36] Speaker 07:
The jury couldn't possibly have relied on this document.

[01:16:39] Speaker 05:
Let me first respond to a question from Judge Griffin.

[01:16:42] Speaker 05:
There was no underlying data.

[01:16:43] Speaker 05:
There was what?

[01:16:44] Speaker 05:
There was no underlying data.

[01:16:46] Speaker 03:
Wait, wait, wait.

[01:16:47] Speaker 03:
Just Judge Patel, he said he was responding to Judge Griffin's question first.

[01:16:51] Speaker 03:
Oh, I'm sorry.

[01:16:51] Speaker 03:
I'm just pulling an arrow.

[01:16:53] Speaker 03:
I'm sorry.

[01:16:53] Speaker 05:
I misunderstood.

[01:16:54] Speaker 05:
It's all right.

[01:16:55] Speaker 05:
There was no underlying data.

[01:16:56] Speaker 05:
OK.

[01:16:57] Speaker 05:
But Donald Scheer just took raw data.

[01:16:59] Speaker 05:
and took 567 patients and said, well, they're no longer receiving Medicaid.

[01:17:06] Speaker 05:
But he had no idea at all about why they weren't receiving Medicaid.

[01:17:11] Speaker 05:
And in response to your question, Judge Tatel, the reason why Michael Baconde was so severely prejudiced is that we were deprived of the opportunity, and this is addressed in the United States versus Marshall, to go out and try to interview

[01:17:25] Speaker 05:
these witnesses because we could we were deprived of the ability to go out and maybe bring in a witness who said well i'm no longer on medicaid because my income is too high so did you tell that to the district court judge yes very specifically we object we objected you needed time to interview

[01:17:45] Speaker 05:
I am very clear that I made a very strenuous objection to this report and that I believe that a continuance was not appropriate in the context of this particular trial and that what we needed to do, which would take a very lengthy period of time, is to get out

[01:18:02] Speaker 05:
and interview these witnesses.

[01:18:04] Speaker 05:
And I would also add to the court that prior to trial, I went out personally with my best friend knocking on doors trying to locate beneficiaries.

[01:18:13] Speaker 05:
So this is not something that was some fantasy.

[01:18:16] Speaker 05:
This is part of what we did, but we had no idea that this issue was going to arise during the course of the trial.

[01:18:23] Speaker 03:
And this issue being what?

[01:18:25] Speaker 05:
I'm sorry?

[01:18:26] Speaker 03:
What do you mean when you say this issue, quote unquote?

[01:18:29] Speaker 05:
The issue of whether or not the court provided an appropriate sanction, rule 16 sanction for a violation.

[01:18:35] Speaker 03:
No, no, no.

[01:18:35] Speaker 03:
But the issue was, had your client provided services,

[01:18:41] Speaker 03:
that he was receiving this Medicaid money for.

[01:18:45] Speaker 03:
So that issue was on the books, wasn't it?

[01:18:47] Speaker 05:
Well, the issue was whether or not of these 567 patients, maybe a certain percentage of them dropped out of Medicaid for reasons other than global being shut down.

[01:18:57] Speaker 05:
And Mr. Shearer acknowledged that there's a litany of reasons why they could have dropped out of the Medicaid program.

[01:19:05] Speaker 05:
All of that, so we were able to elicit that across, but we weren't able to put on affirmative evidence of individuals who had dropped out of Medicaid for legitimate purposes.

[01:19:16] Speaker 05:
That's where the prejudice arose.

[01:19:18] Speaker 07:
Let me go back to what happened in that 24 hours, you know, when the district court said, okay, we're going to postpone this, you can talk to him, and here's an unredacted list, unredacted chart, right?

[01:19:30] Speaker 07:
So, did you ever say when you looked at that, well, Judge, we need more time to go interview these people?

[01:19:38] Speaker 05:
I'm confident that that's the representations that were made, because we said... You did?

[01:19:45] Speaker 07:
Can you show me... I'll just ask you a second question also, together.

[01:19:50] Speaker 07:
So, and your clients were sitting right there, right?

[01:19:54] Speaker 07:
Yes.

[01:19:54] Speaker 07:
And you could have showed them the list and said,

[01:19:57] Speaker 07:
Look, do you know any of these, do you recognize any of these names?

[01:20:00] Speaker 07:
I mean, were any of these legitimate, can you tell me now, were these legitimate people?

[01:20:05] Speaker 07:
And then, I mean, legitimate patients, and then you could have said to the judge, look, my clients look at this, they say, a whole bunch of these people are legitimate, we need time to go interview these people.

[01:20:12] Speaker 05:
Well, there's two answers.

[01:20:13] Speaker 05:
But you didn't do anything.

[01:20:15] Speaker 05:
There's two answers to that question.

[01:20:16] Speaker 05:
Michael Baconde, in the records, clearly had nothing to do with the patients.

[01:20:19] Speaker 05:
He never spoke to the patients.

[01:20:21] Speaker 05:
He never interviewed the patients.

[01:20:22] Speaker 05:
But Florence did.

[01:20:24] Speaker 05:
Well, but I can't account for what Florence did.

[01:20:26] Speaker 05:
But Michael Baconde did not.

[01:20:28] Speaker 05:
That was not his role in this whole endeavor.

[01:20:32] Speaker 05:
But then the other answer to the question from Your Honor is that would be burden shifting for us then to have to take this information and go out and introduce these witnesses.

[01:20:43] Speaker 05:
For instance, I interviewed a number of witnesses pre-trial who I got valuable information from, but I didn't call them as witnesses.

[01:20:50] Speaker 05:
I used the information I was able to obtain from them for cross-examination.

[01:20:54] Speaker 05:
So, sitting with Michael Baconde and going through this list would have been a useless endeavor because he didn't know who they were.

[01:21:01] Speaker 05:
He couldn't identify a single beneficiary in the program.

[01:21:05] Speaker 05:
That wasn't his role.

[01:21:07] Speaker 05:
And again, I go back to Marshall, because Marshall involved two jail visitations that the government produced during trial.

[01:21:17] Speaker 05:
And in Marshall, there was a four-day recess.

[01:21:24] Speaker 05:
There was two weekend days, and then a holiday came up.

[01:21:27] Speaker 05:
And in Marshall, I said, OK, well, will they have an opportunity to clean this up?

[01:21:30] Speaker 05:
This violation was far more egregious than what we have in Marshall.

[01:21:36] Speaker 05:
And a two day, a four day, a two week, a two month continuance would not have satisfied our need to be able to confront the information that was contained in this exhibit.

[01:21:48] Speaker 03:
So the district court says, I'll give you time to interview the government's witness.

[01:21:58] Speaker 03:
And then Judge Cato was exploring with you that effectively you demolished the value of the report since the witness knew nothing.

[01:22:15] Speaker 03:
So then where is the prejudice?

[01:22:17] Speaker 05:
The prejudice is still that we could not bring on or at least interview and then make a determination as to whether or not to introduce actual people

[01:22:27] Speaker 05:
to the jury who would get on the stand, hypothetically, because we didn't have the opportunity to investigate, but get on the witness stand and say, no, I dropped out of Medicaid for a legitimate reason.

[01:22:37] Speaker 05:
And had we had the opportunity to do that, we would have done that, because it would have rebutted the government's case in an even stronger manner.

[01:22:46] Speaker 05:
And the other part I emphasize, and it's sort of subjective, but the government had this long list of witnesses.

[01:22:51] Speaker 05:
They brought on witness after witness after witness.

[01:22:54] Speaker 05:
We certainly would have preferred, in our case, in Michael Bacardi's case, to put on witnesses to the contrary.

[01:23:01] Speaker 05:
So we clearly, that's where the prejudice lies, in that the inability to investigate and the inability to confront, in a complete fashion, the government's evidence.

[01:23:12] Speaker 03:
So as you know, the district court has considerable discretion in the remedy, assuming a Rule 16 violation.

[01:23:21] Speaker 03:
So was there a report back to the district court judge after the interview?

[01:23:30] Speaker 03:
I mean, did the judge know what had been uncovered in the interview?

[01:23:36] Speaker 05:
Mr. Martin, trial counsel, may I have said something to the judge?

[01:23:40] Speaker 05:
But I am not.

[01:23:41] Speaker 03:
It's not on the record.

[01:23:42] Speaker 05:
Well, it would have been ex parte.

[01:23:44] Speaker 05:
And it's not something that I would have been involved with because I tried to make the record as clear as can be that I'm not accepting any remedy as appropriate short of a mistrial.

[01:23:56] Speaker 05:
And the other point I would emphasize.

[01:23:58] Speaker 03:
Well, the district court decides she's not going to grant a mistrial.

[01:24:03] Speaker 03:
Then what?

[01:24:04] Speaker 05:
Well, then the only alternative would be a seven, eight, nine month continuance.

[01:24:09] Speaker 03:
Yeah, that's what I thought.

[01:24:10] Speaker 05:
And that wouldn't have been acceptable either.

[01:24:12] Speaker 05:
And the reason that wouldn't have been acceptable is we were 95% done with the government's case.

[01:24:18] Speaker 05:
We were through all their major witnesses.

[01:24:20] Speaker 04:
But you didn't ask for that, did you?

[01:24:23] Speaker 04:
You objected to it coming in.

[01:24:26] Speaker 04:
Yes.

[01:24:27] Speaker 04:
You objected to the 24-hour.

[01:24:29] Speaker 04:
Yes.

[01:24:30] Speaker 04:
But you didn't ask for anything beyond that.

[01:24:32] Speaker 04:
I don't believe I did ask for the mistrial.

[01:24:34] Speaker 04:
But here's the problem.

[01:24:35] Speaker 05:
No, I didn't say for mistrial.

[01:24:37] Speaker 05:
You didn't ask for any longer time.

[01:24:39] Speaker 05:
No, I definitely did not ask for a longer time.

[01:24:41] Speaker 05:
But it would have been impractical.

[01:24:42] Speaker 05:
And other than the impracticality of it, the fact is that at the end of the government's case,

[01:24:47] Speaker 05:
The defense lawyer is going to sit down and we were 95% through.

[01:24:50] Speaker 05:
You're going to assess how you believe you discredited the government's case.

[01:24:56] Speaker 05:
Do you believe that you adequately demonstrated a bias?

[01:25:00] Speaker 05:
You adequately demonstrated some sort of motivation for their testimonies?

[01:25:04] Speaker 05:
Because that's what we had with the government's witnesses, is to attack their credibility.

[01:25:09] Speaker 05:
And at that point in time, we felt that we had done a very good job of attacking their credibility.

[01:25:15] Speaker 05:
So we did not want, I did not want, on behalf of Mr. Burgundy, this lengthy

[01:25:20] Speaker 05:
because the effectiveness of your cross examination is going to be diminished over time.

[01:25:26] Speaker 05:
We wanted to keep going and keep taking it to the jury.

[01:25:30] Speaker 05:
And that's why a lengthy continuance, which would have been out of necessity, was not appropriate in this case.

[01:25:39] Speaker 05:
I'm going to move on to the healthcare fraud.

[01:25:42] Speaker 05:
I realize I'm over my time.

[01:25:43] Speaker 03:
Yes, but we've been exploring this.

[01:25:46] Speaker 05:
Thank you.

[01:25:47] Speaker 05:
There are certain facts that are not in dispute with respect to Michael Baconde.

[01:25:51] Speaker 05:
Again, this relates to the severance motion, but he stood in a very, very different posture than Florence Baconde did.

[01:25:59] Speaker 05:
The record is clear that Michael Baconde did not sign

[01:26:04] Speaker 05:
the Medicaid provider agreement in 2009.

[01:26:06] Speaker 05:
And that's a critical piece of evidence because that's what gets the ball rolling.

[01:26:12] Speaker 05:
That's how this started with that Medicaid provider agreement.

[01:26:17] Speaker 05:
And it was Florence Baconde who signed it.

[01:26:19] Speaker 05:
It was James Ambide who signed it.

[01:26:22] Speaker 05:
And it was another government witness.

[01:26:24] Speaker 05:
I believe it was Carlos Iguacho.

[01:26:25] Speaker 05:
And I may be mistaken on that.

[01:26:27] Speaker 05:
But what I'm not mistaken about is that Michael Baconde did not sign this agreement.

[01:26:33] Speaker 05:
In that agreement,

[01:26:34] Speaker 05:
There's forgeries.

[01:26:35] Speaker 05:
There's forged names in that agreement.

[01:26:38] Speaker 05:
That was attributed to Florence Baconde.

[01:26:40] Speaker 03:
All right, but let's go beyond that.

[01:26:42] Speaker 03:
Let's go to the evidence that there was against your client that the government offered.

[01:26:47] Speaker 05:
There was.

[01:26:48] Speaker 05:
And I would submit to the court that there's a balancing that should be done here.

[01:26:54] Speaker 05:
And we outline this in the brief in great detail.

[01:26:57] Speaker 03:
But we must view the evidence most favorably to the government.

[01:27:00] Speaker 05:
Right.

[01:27:01] Speaker 05:
Even with that standard.

[01:27:02] Speaker 05:
There were so many inconsistencies with the government witnesses.

[01:27:06] Speaker 05:
They were so biased.

[01:27:08] Speaker 05:
Every one of them had a motive to come and testify.

[01:27:12] Speaker 05:
Almost every one of them had admitted to fraud.

[01:27:15] Speaker 05:
Almost everyone had admitted to committing crimes.

[01:27:17] Speaker 05:
Almost everyone admitted to being deeply involved in this whole conspiracy.

[01:27:22] Speaker 05:
And so, for instance, if you have Nicola White on the one hand saying that Michael Baconde was being involved in things, you also have Nicola White saying that Michael Baconde specifically told her, don't submit fraudulent timesheets.

[01:27:34] Speaker 05:
So all of these witnesses were really all over the place.

[01:27:39] Speaker 05:
And so I would submit to the court that they do not deserve the benefit of the doubt in this case, and that the court should look at the totality of the circumstances and reach for a debt.

[01:27:49] Speaker 05:
Michael Bacondi, because he was not involved at the critical time, and that's the inception of the corporation or the inception of the Medicaid provider agreement,

[01:28:00] Speaker 05:
He was simply a guy who was working in that office, who happened to be married to Florence Baconde.

[01:28:07] Speaker 03:
Who could have quit?

[01:28:09] Speaker 07:
Well, he could have quit.

[01:28:11] Speaker 07:
What about all the evidence about

[01:28:16] Speaker 07:
He was involved in the faking and destroying of documents during the audits.

[01:28:23] Speaker 07:
He directed this employee to erase these expired CPR things.

[01:28:29] Speaker 07:
He told someone to shred Florence's personnel file.

[01:28:36] Speaker 07:
I mean, there's a lot of evidence.

[01:28:37] Speaker 07:
You're right.

[01:28:38] Speaker 07:
He wasn't involved at the beginning, but there's a lot of evidence he was involved in the fraud.

[01:28:42] Speaker 05:
And that testimony came from someone that I would submit to the court was so totally biased that that person was not deserving of the benefit of the doubt, of the reasonableness and the accuracy of his testimony.

[01:28:57] Speaker 05:
And the record is the record.

[01:29:00] Speaker 05:
And these people came in and said what they were going to say.

[01:29:03] Speaker 05:
But they were cross-examined.

[01:29:04] Speaker 05:
They were challenged.

[01:29:06] Speaker 05:
And there were just tremendous inconsistencies that are all outlined in the brief.

[01:29:10] Speaker 05:
And again, it's a judgment call, obviously, as to whether or not that type of testimony, those types of testimonies, adds up to adequate proof.

[01:29:21] Speaker 05:
Or are they so biased that they ought not to be believed?

[01:29:27] Speaker 07:
That's really hard for an appellate court.

[01:29:29] Speaker 05:
Excuse me?

[01:29:29] Speaker 05:
That's really a tough call.

[01:29:30] Speaker 07:
It is a tough call.

[01:29:31] Speaker 07:
I mean, the jury listened to it and accepted it.

[01:29:37] Speaker 07:
That's a really, really tough thing for an appellate court to do.

[01:29:42] Speaker 05:
I understand that.

[01:29:44] Speaker 05:
That's really hard.

[01:29:44] Speaker 05:
We tried to be as specific as possible.

[01:29:46] Speaker 05:
No, you did.

[01:29:46] Speaker 07:
You were very specific in your brief.

[01:29:48] Speaker 07:
It was very helpful.

[01:29:49] Speaker 07:
But as you acknowledge, this is among the toughest decisions

[01:29:56] Speaker 07:
an appellate court has to make in a criminal case.

[01:30:00] Speaker 05:
This is really hard stuff.

[01:30:02] Speaker 05:
Last, I'll get to the severance based upon the disparity of the evidence.

[01:30:06] Speaker 05:
And I would submit to the court that this case, this investigation, when it was born, the target was Florence Pecundi.

[01:30:15] Speaker 05:
She was the person that the government was looking at.

[01:30:17] Speaker 05:
And we know that because, bless you.

[01:30:21] Speaker 05:
Miss Baconde was arrested 10 months before Michael Baconde and anybody else was.

[01:30:27] Speaker 05:
So you had a 10-month period of time which they had.

[01:30:30] Speaker 05:
They had all of these documents, these hundreds of thousands of documents that they seized during the search.

[01:30:38] Speaker 05:
So had they wanted to go after Michael Baconde during this 10-month period, they could have.

[01:30:44] Speaker 05:
But they didn't.

[01:30:45] Speaker 05:
So 10 months after Florence Baconde is arrested, Michael Baconde is brought into the case.

[01:30:52] Speaker 05:
And where the exclusion counts against Florence Baconde, I would submit to the court with the foundation of the indictment and the foundation of the government's trial.

[01:31:02] Speaker 05:
And Michael Baconde had absolutely nothing to do with the exclusion.

[01:31:07] Speaker 05:
And that's not disputed.

[01:31:08] Speaker 05:
Everybody agreed that that was not Michael Baconde's problem.

[01:31:13] Speaker 05:
He wasn't charged with that.

[01:31:15] Speaker 05:
But yet, by virtue of his being married to Florence Baconde, obviously, they're connected to each other.

[01:31:22] Speaker 05:
And Michael Baconde never met with any of the patients.

[01:31:27] Speaker 05:
He just was not involved with them.

[01:31:29] Speaker 05:
That was not what he was doing.

[01:31:31] Speaker 05:
And he was frequently not in the office.

[01:31:34] Speaker 03:
Anything further?

[01:31:35] Speaker 05:
No, I would submit and just reserve two minutes for rebuttal then.

[01:31:38] Speaker 03:
All right.

[01:31:39] Speaker 03:
Thank you.

[01:31:39] Speaker 03:
Let us hear from the government.

[01:31:46] Speaker 01:
Thank you again, Your Honor.

[01:31:47] Speaker 01:
Katherine Kelly on behalf of the United States.

[01:31:49] Speaker 01:
In regard to government exhibit 439, it's important to remember that the district court here, both at trial and then again in its post-trial ruling, found that there had been no violation of rule 16 in the first place.

[01:32:03] Speaker 01:
So we don't even get to the point of whether or not the sanction here was appropriate.

[01:32:08] Speaker 01:
What was the basis for that ruling?

[01:32:10] Speaker 01:
The basis for that ruling was the fact that the government did not have government exhibit 439 or the data underlying it in its possession.

[01:32:19] Speaker 03:
Yeah, but it told Mr. Shearer to get it together.

[01:32:22] Speaker 01:
It asked Mr. Shearer in the month before trial to see if he could figure out a way to try and quantify the fraud.

[01:32:30] Speaker 03:
Well, the government could have said we need this by 30 days from now.

[01:32:35] Speaker 03:
He could have asked them to do it earlier.

[01:32:37] Speaker 01:
The government could have asked to do it earlier, but that's not what Rule 16 looks at.

[01:32:41] Speaker 03:
This is classic.

[01:32:43] Speaker 03:
What Rule 16 is trying to prevent major reports coming in at the end of the trial.

[01:32:51] Speaker 01:
Well, first of all, we would not say that this is a major report.

[01:32:54] Speaker 01:
It was a helpful piece of evidence.

[01:32:55] Speaker 03:
Well, you heard counsel's argument.

[01:32:57] Speaker 03:
If you didn't think it was major, maybe you wouldn't have risked putting it in.

[01:33:01] Speaker 01:
The point is, Your Honor, in Rule 16, it contemplates that investigation can still continue during trial as it did in the Marshall case.

[01:33:09] Speaker 01:
And that's exactly what was going on here.

[01:33:11] Speaker 03:
So was the defense counsel alerted to the fact this report was coming?

[01:33:17] Speaker 01:
No, it was not alerted.

[01:33:18] Speaker 01:
But again, Rule 16 doesn't require that either.

[01:33:21] Speaker 03:
I understand all that.

[01:33:22] Speaker 03:
But you see the problem.

[01:33:23] Speaker 03:
Suppose the district court had granted a mistrial.

[01:33:26] Speaker 03:
The government has to start all over again.

[01:33:28] Speaker 01:
That's correct.

[01:33:29] Speaker 01:
But no one here- It's in the government's interest.

[01:33:32] Speaker 03:
Now, to have this situation on less, it's just a strategy.

[01:33:37] Speaker 01:
It was not a strategy in this case.

[01:33:39] Speaker 03:
Well, you sit here long enough and you begin to wonder.

[01:33:42] Speaker 03:
I mean, it's obvious what the government was trying to do.

[01:33:46] Speaker 03:
And isn't this important evidence to the government?

[01:33:49] Speaker 03:
Since you had all these witnesses who had their own motivations for testifying as they did.

[01:33:55] Speaker 01:
Mr. Shear was not a member of the prosecution team.

[01:33:58] Speaker 01:
His testimony at trial was that he met once with the government.

[01:34:01] Speaker 03:
He was preparing this report at the prosecution's instruction.

[01:34:06] Speaker 03:
Is that correct?

[01:34:07] Speaker 01:
He gathered evidence.

[01:34:08] Speaker 01:
Is that a yes or no?

[01:34:11] Speaker 01:
It's actually not a yes or no because the way... The government did not tell him to generate this report?

[01:34:18] Speaker 01:
No, it did not.

[01:34:19] Speaker 03:
So he did it on his own, so the sponte?

[01:34:22] Speaker 01:
The government asked him to see if he could figure out a way to quantify the fraud in some manner.

[01:34:27] Speaker 01:
He did not say, please generate this particular exhibit.

[01:34:31] Speaker 01:
It was Mr. Shearer who came up with a way to do that.

[01:34:32] Speaker 03:
He comes back and says, I thought of a way of doing it.

[01:34:35] Speaker 01:
Exactly.

[01:34:36] Speaker 03:
And the government says, oh, that's interesting.

[01:34:38] Speaker 01:
Exactly.

[01:34:39] Speaker 01:
And he came back and said, I thought of a way to do it, and handed government exhibits the document that became government exhibit 439 to the government that very day.

[01:34:48] Speaker 03:
So you think that he thought the government was just making

[01:34:52] Speaker 03:
sort of what, an aside, see if you can quantify this.

[01:35:00] Speaker 01:
They asked him to see if they could quantify it, yes.

[01:35:02] Speaker 03:
And that's not asking him to prepare a report if he can quantify it, I just want to be clear.

[01:35:08] Speaker 03:
Magic words here?

[01:35:10] Speaker 01:
No, it's not magic words, Your Honor, but he was asked to see if he could quantify it.

[01:35:13] Speaker 01:
What he came up with in doing so was what turned out to be government exhibit 439.

[01:35:18] Speaker 01:
And as Mr. Shearer explained during his testimony, it took him a while to figure out how he was going to try and do searches in the D.C.

[01:35:25] Speaker 01:
government agencies on the computer.

[01:35:27] Speaker 04:
Was the district court concerned about

[01:35:29] Speaker 04:
that perhaps bad faith or manipulation of evidence had occurred.

[01:35:33] Speaker 04:
No, it wasn't wrong.

[01:35:34] Speaker 04:
Did it address that issue at all?

[01:35:35] Speaker 01:
The court did address the issue, and the court found that there was no bad faith and that there hadn't been any allegations by the defense of bad faith.

[01:35:42] Speaker 01:
That's in its post-trial ruling.

[01:35:45] Speaker 01:
So there wasn't gamesmanship.

[01:35:47] Speaker 01:
The defendants did not allege gamesmanship, and the district court found none.

[01:35:51] Speaker 01:
That's the way that came out in the post-trial ruling.

[01:35:55] Speaker 03:
So even assuming there was a rule,

[01:35:59] Speaker 03:
16 violation, your argument is that the district court acted reasonably here.

[01:36:10] Speaker 01:
And the district court did allow a continuance overnight, allowed the defendant's counsel to interview Mr. Shearer.

[01:36:18] Speaker 03:
Now, I haven't seen this in the record, but candidly, I haven't looked for it either.

[01:36:26] Speaker 03:
But we heard counsel tell us that objections were made on the record to the district court indicating that interviewing Mr. Shearer would be useless and that a mistrial was required.

[01:36:44] Speaker 01:
There's no evidence that I have seen in the record that anybody moved for a mistrial.

[01:36:49] Speaker 01:
All right.

[01:36:50] Speaker 01:
I believe that Mr. Buccundi's attorney said that he didn't think it would be useful to interview Mr. Shearer.

[01:37:00] Speaker 03:
But as I found out today, he... The way I had read the record on the point generally was the district court said, I'll give you 24 hours, and nobody asked for more time.

[01:37:08] Speaker 01:
No one asked for more time, which seems to be what

[01:37:12] Speaker 01:
is now being said was the wrong thing.

[01:37:15] Speaker 01:
And what happened here?

[01:37:17] Speaker 04:
Does Rule 16 require that the defendant request the basis for the information, basis for the report?

[01:37:25] Speaker 01:
The basis for the report, Your Honor?

[01:37:27] Speaker 01:
Yeah.

[01:37:27] Speaker 04:
Is it that there's some obligation on the part of the defendant?

[01:37:30] Speaker 04:
If the defendant is going to invoke Rule 16, doesn't the defendant need it?

[01:37:36] Speaker 04:
Does it start with the defendant requesting information, or am I reading that wrong?

[01:37:42] Speaker 04:
And there's no request made here, as I understand it.

[01:37:44] Speaker 01:
I'm not sure the issue, as it was presented, was them requesting the underlying data.

[01:37:51] Speaker 04:
No, but that's what I'm getting at.

[01:37:53] Speaker 04:
Doesn't Rule 16 require of a defendant to make such a request?

[01:37:58] Speaker 01:
Yeah, the rule is premised, and the language says, upon defendant's request, the government must permit inspection or copying of an item if it's within the government's possession, custody, or control.

[01:38:07] Speaker 01:
So there is a request.

[01:38:09] Speaker 01:
As I believe it was Florence Becundi's attorney pointed out in his rule 33 post-trial filings, the government in fact did offer to provide all the backup data to the defense prior to Mr. Scheer's testimony.

[01:38:27] Speaker 01:
So there isn't any question that the government was withholding information in that regard.

[01:38:32] Speaker 01:
Could I ask?

[01:38:35] Speaker 07:
Judge Tatel has a question.

[01:38:37] Speaker 07:
I was just going to pursue your question.

[01:38:39] Speaker 07:
I was going to pursue Judge Rogers' question, assume for a minute that we think there is a Rule 16 violation.

[01:38:49] Speaker 07:
Given, and we focused a little bit on the fact that, well, we focused a lot on the fact that the district court, the district judge gave defense counsel 24 hours and all that.

[01:39:03] Speaker 07:
Shear testified that during this month and a half period, these patients on this list received $30 million worth of Medicaid services, and that from March until then, afterwards, they got none.

[01:39:30] Speaker 07:
In the closing, the government says this is strong circumstantial evidence, strong circumstantial evidence that these people on the list weren't getting legitimate services.

[01:39:50] Speaker 07:
And it said the chart, it called the chart, I'm just looking through my notes here, compelling evidence.

[01:39:59] Speaker 07:
And then even in the rebuttal, they emphasized.

[01:40:05] Speaker 07:
So the government made a big deal of this, both at the trial and at the closing.

[01:40:14] Speaker 01:
The government relied on it in closing in two instances and mentioned it again in rebuttal.

[01:40:19] Speaker 07:
Yeah, but it's more than you call it, compelling evidence, right?

[01:40:22] Speaker 01:
The government said it was strong circumstantial evidence.

[01:40:24] Speaker 07:
Strong circumstantial evidence, compelling evidence that these people who got $30 million of Medicaid services and then after the place was closed down got none, that that's strong circumstantial evidence that all that was a fraud.

[01:40:38] Speaker 07:
Isn't that very strong evidence?

[01:40:40] Speaker 07:
I assume the government must have thought so.

[01:40:42] Speaker 01:
The government thought it was good evidence.

[01:40:44] Speaker 01:
I'm not refuting that.

[01:40:46] Speaker 07:
How do you make the argument that given that

[01:40:48] Speaker 07:
this rule 16 violation is not.

[01:40:52] Speaker 01:
Well, assuming there is a rule 16 violation at all, which we don't see.

[01:40:55] Speaker 01:
No, that's my question.

[01:40:57] Speaker 01:
You stick with my question.

[01:40:59] Speaker 01:
I do.

[01:41:00] Speaker 01:
OK.

[01:41:00] Speaker 01:
Florence Bacardi's response in closing and the questioning during cross-examination was sufficient to rebut that.

[01:41:10] Speaker 01:
But you just said that.

[01:41:10] Speaker 07:
It has not led to the defense of the bad guys.

[01:41:12] Speaker 07:
How do we write the sentence in an opinion that explains why it is?

[01:41:19] Speaker 07:
I know you can assert that.

[01:41:20] Speaker 01:
Why it's not a problem?

[01:41:21] Speaker 01:
Yeah.

[01:41:22] Speaker 01:
It's not a problem because, number one, the defense never sought any additional continuous to investigate who might have.

[01:41:28] Speaker 01:
No, no, I'm not asking you about that.

[01:41:29] Speaker 07:
I'm asking you about the fact of the testimony before the jury and the government statements during closing.

[01:41:35] Speaker 01:
The effect on the testimony, given the cross-examination of Mr. Shearer, put the defense in the exact same position as they were now trying to claim they could have been in had they investigated.

[01:41:47] Speaker 01:
They, during closing argument... Well, that's speculation, isn't it?

[01:41:54] Speaker 01:
But in this speculation, because we don't know, but what we did see in trial was the defense counsel on cross-examination making the exact sort of points that they're trying to say in their brief could have been brought out.

[01:42:06] Speaker 04:
But you said had they investigated, how do you know what they would have come up with had they been allowed to investigate?

[01:42:13] Speaker 04:
It could have been very different.

[01:42:16] Speaker 04:
And isn't that the point?

[01:42:18] Speaker 01:
It's not the point, Your Honor, because they never sought any additional time to investigate.

[01:42:23] Speaker 01:
And it's not a matter of what, hypothetically, if we think about it now, could possibly, which is not in the record, have ever come out of any sort of investigation.

[01:42:32] Speaker 01:
The points are that Donsher was questioned during cross-examination, and the points defense brought out was that there were

[01:42:41] Speaker 01:
Mr. Shearer conceded that he couldn't say how many of the 567 beneficiaries his office had even interviewed.

[01:42:47] Speaker 01:
He conceded that a small number of the beneficiaries on that chart had died.

[01:42:53] Speaker 01:
He didn't know why any of the beneficiaries listed on that chart no longer received services after global closed.

[01:43:00] Speaker 01:
He agreed that there were other reasons that he could come.

[01:43:02] Speaker 04:
Excuse me, your argument now is flying in the face of the closing argument that was made at trial, that this was really compelling evidence.

[01:43:09] Speaker 04:
Now you're saying, well, it really wasn't so much because it was a withering cross-examination by an attorney who didn't have an opportunity to interview the people?

[01:43:17] Speaker 01:
No, the point is that

[01:43:20] Speaker 01:
To show a Rule 16 violation that affects the convictions, the appellants have to show prejudice to their substantial rights.

[01:43:29] Speaker 01:
And what has not been shown here is any prejudice to their substantial rights, given that they never asked to do further investigation, that they got strong cross-examination opportunities that are laid out, in particular, page 75 of our brief.

[01:43:43] Speaker 01:
And then they, you know, despite that the government saying that this is compelling circumstantial evidence.

[01:43:50] Speaker 04:
You said they had strong cross-examination opportunities, but they had no chance

[01:43:56] Speaker 04:
to interview the people who were the basis for the report.

[01:44:01] Speaker 04:
How can you make a strong?

[01:44:03] Speaker 04:
They never sought that chance.

[01:44:04] Speaker 04:
I doubt that you or I would think that that sort of, if that was the cards that we were dealt with, we would think that we had a strong cross-examination opportunity.

[01:44:15] Speaker 04:
We had a chance to cross-examine, but it's not the strong one until you can go and talk to the people who were the basis of the 439 exhibit, right?

[01:44:25] Speaker 01:
And I would not concede that, your honor.

[01:44:27] Speaker 01:
This is a choice as you would go ahead.

[01:44:29] Speaker 04:
Okay, as hypothetically, hypothetically as a counsel, if you had an opportunity to interview the people that formed the basis for the 4 39 and you decided not to do that, you were just going to go in and cross examine Mr Sheeran without talking to those witnesses.

[01:44:48] Speaker 04:
You would do that.

[01:44:49] Speaker 01:
That's exactly what Mr. Pecundi told you today was done in this case.

[01:44:53] Speaker 04:
I know it was done, but I'm talking about you.

[01:44:55] Speaker 04:
Would you?

[01:44:55] Speaker 01:
Would I do that?

[01:44:56] Speaker 01:
I actually would.

[01:44:56] Speaker 01:
Given all the evidence that I have seen in this case, I would say because it's a matter of, but again, this is a matter of them trying to show prejudice to their substantial rights.

[01:45:07] Speaker 01:
And that may be one of those questions that one counsel would do something one way, another counsel would do something another way.

[01:45:13] Speaker 01:
What Mr. Pecundi's attorney has said here today is that

[01:45:16] Speaker 01:
They chose to go ahead and not take that route.

[01:45:18] Speaker 01:
They didn't want this information to become stale in the jury's mind.

[01:45:22] Speaker 01:
They didn't want a lengthy continuance.

[01:45:23] Speaker 01:
They wanted to get this to the jury as quickly as possible.

[01:45:27] Speaker 01:
And my point is that in closing, the defense made good use of the fact that Mr. Scheurer's report was extremely thin evidence, as thin evidence of fraud as they had seen, was the quote from Florence Pecundi's attorney.

[01:45:45] Speaker 03:
Okay.

[01:45:46] Speaker 03:
Are you finished on your response?

[01:45:48] Speaker 01:
I am if the court has no further questions.

[01:45:49] Speaker 01:
I have a question.

[01:45:50] Speaker 01:
Certainly.

[01:45:51] Speaker 03:
Mr. Shearer came up with this list of 437 people who had received or not received services.

[01:46:02] Speaker 03:
Is that correct?

[01:46:03] Speaker 01:
It was 567 people who from some period in 2012 through 2014 had

[01:46:12] Speaker 01:
payments had been made for those beneficiaries to Global during that time, and then after Global closed in the time period following that, I believe it was for the rest of 2014, no other agency billed DC Medicaid for services related to those beneficiaries.

[01:46:31] Speaker 03:
So presumably Defense Counsel Cross

[01:46:39] Speaker 03:
was strong subject to Judge Griffith's observations in the sense that Mr. Shearer was unable to say if any of these people had been interviewed.

[01:46:50] Speaker 01:
Is that correct?

[01:46:50] Speaker 01:
That's correct.

[01:46:51] Speaker 01:
That question about the interviews was that Mr. Shearer was testifying that Globe and several other health care agencies were closed the same day and they were left with approximately 3,200 Medicaid beneficiaries that

[01:47:04] Speaker 01:
weren't going to be receiving services.

[01:47:06] Speaker 01:
So his agency, a DC agency, was trying to contact as many beneficiaries as possible to see if they wanted services and needed help getting services from another agency.

[01:47:17] Speaker 03:
So I'm back to restitution.

[01:47:20] Speaker 03:
There was a list of the clients who could have been interviewed to figure out whether they received any services or not.

[01:47:30] Speaker 01:
There were clients that were listed that could be interviewed, but the question is then whether or not those services that had been provided were in fact legitimate services.

[01:47:44] Speaker 03:
Was there fraud in their files?

[01:47:49] Speaker 03:
Did they receive services?

[01:47:52] Speaker 01:
Some of them received services, but as one of the...

[01:47:55] Speaker 03:
They received from D.C.

[01:47:58] Speaker 03:
Medicaid $30 million.

[01:48:01] Speaker 01:
The beneficiaries did not receive money from Medicaid.

[01:48:03] Speaker 03:
No, no, I don't mean the beneficiaries.

[01:48:04] Speaker 03:
I mean the defendants received $30 million.

[01:48:09] Speaker 01:
Correct, for some period of time.

[01:48:10] Speaker 03:
So my point is it's not impossible to figure out.

[01:48:15] Speaker 01:
No, it is, Your Honor, because here's the difference.

[01:48:17] Speaker 03:
Mrs. Jones says I was there for two years and I got my pills every other day.

[01:48:23] Speaker 01:
Ms.

[01:48:23] Speaker 01:
Jones may have had an aide in her house that had fraudulent certifications that she had the education to provide the services.

[01:48:30] Speaker 03:
I know, because you want to do qualifications.

[01:48:32] Speaker 03:
I know.

[01:48:32] Speaker 01:
That's all important.

[01:48:34] Speaker 01:
That's part of the Medicaid agreement that you make, is that you're following the rules and regulations of Medicaid, like having providers go to people's homes.

[01:48:42] Speaker 01:
I know, Counsel.

[01:48:43] Speaker 03:
You want to argue a perfect system.

[01:48:44] Speaker 03:
I'm just trying to argue restitution.

[01:48:47] Speaker 03:
And I'm not even trying to argue it, but I'm trying to understand what's available to the government, where are we to send this back?

[01:48:54] Speaker 03:
And of course, counsel for appellants says the district court's already made this finding, so we can't send it back.

[01:49:02] Speaker 01:
But if we disagreed with that... I would disagree with that heavily, because they're relying on the fair case.

[01:49:09] Speaker 01:
I'm sorry, Your Honor.

[01:49:10] Speaker 03:
You would disagree with what?

[01:49:11] Speaker 01:
I would disagree that if the court is unhappy with the restitution amount that it could not be remanded at this point.

[01:49:17] Speaker 01:
They're relying on the fair case to say that.

[01:49:18] Speaker 03:
I don't think that's a question of our happiness or not, just so we're clear about that.

[01:49:24] Speaker 03:
But all I'm trying to understand is with the witnesses who testified as government witnesses, plus the records that DC Medicaid had

[01:49:36] Speaker 03:
there is a possibility of tracing whether or not services were provided.

[01:49:44] Speaker 03:
Did Mrs. Jones get her medication every other day?

[01:49:49] Speaker 03:
Did she get a bath every other day?

[01:49:50] Speaker 03:
Sort of thing.

[01:49:52] Speaker 03:
So it is not necessarily a situation that it is impossible for the government to meet its burden.

[01:50:04] Speaker 03:
That's what I'm trying to understand about this case.

[01:50:05] Speaker 01:
I understand, Your Honor, and I understand your point, but the case that I would ask the court to look at is the Jones case, I believe it was the Fifth Circuit, and they were talking about if you send somebody who is not qualified, I think that case was physical rehab aides,

[01:50:23] Speaker 01:
If you have somebody who's not qualified to provide that service, then Medicaid hasn't received something of value from that aid going to the house.

[01:50:34] Speaker 01:
And it's the same thing here.

[01:50:35] Speaker 01:
You have many, many instances where the qualifications of the aids were doctored in the employee files.

[01:50:44] Speaker 01:
You have numerous situations where plans of care under which

[01:50:49] Speaker 01:
the global company was supposed to provide services because they had been signed off on by a doctor saying this person needs services and here are the services that Medicaid should cover for this person.

[01:51:00] Speaker 01:
All of those had false dates and signatures where doctors maybe signed a plan once but then they were supposed to renew them every 30 days and so and they would just stick a new date on their files and forge doctor signatures and put cut and paste

[01:51:14] Speaker 01:
jobs together.

[01:51:15] Speaker 01:
So those are the reasons why there's so much fraud inherent in global files that even if you could interview somebody who said, yes, this lovely lady came to my house and gave me my medication, gave me my lunch every day, it is still not clear that Medicaid should have ever paid for those services if they were done by unqualified people under falsified plans of care.

[01:51:36] Speaker 01:
And that's the point we're making.

[01:51:37] Speaker 01:
Thank you.

[01:51:38] Speaker 03:
Anything further?

[01:51:40] Speaker 01:
Unless the court has any further questions, we would rely on the vast evidence that we've placed on the record in our brief as to sufficiency.

[01:51:48] Speaker 01:
And for those same reasons, there is no disparity of evidence that would support severance in this case either for Mr. Buccundi.

[01:51:55] Speaker 01:
Thank you.

[01:51:55] Speaker 01:
Thank you, Your Honors.

[01:51:56] Speaker 01:
All right.

[01:51:58] Speaker 03:
Helpful for Michael Buccundi.

[01:52:02] Speaker 05:
Just briefly, I did not ask for a mistrial, and I want to make that clear.

[01:52:08] Speaker 05:
And the reason I didn't ask for a mistrial is I specifically recall when this issue arose how I can make the best record in the context of the trial, in the context of what I consider to be a very significant Rule 16 violation.

[01:52:23] Speaker 05:
And I made the decision that it was not appropriate or the best record for me to ask for a mistrial, but I did very strongly object

[01:52:32] Speaker 05:
to the admission of this testimony and the admission of this report.

[01:52:38] Speaker 05:
And I specifically recall using the term ambushed.

[01:52:42] Speaker 05:
And talking about that with Judge Howell, that's exactly how we felt, that we were ambushed by this document that was in preparation for at least a month before trial.

[01:52:53] Speaker 05:
So in terms of the chronology and the objections that were made, that was my objection on behalf of Mr. McCundy, that this testimony should not be received by the court.

[01:53:02] Speaker 05:
And further, with respect to Mr. Shearer,

[01:53:06] Speaker 05:
He specifically testified that the government, the United States Attorney's Office, asked him, and Ms.

[01:53:12] Speaker 05:
Kelly talked about this, to quantify the fraud.

[01:53:15] Speaker 05:
He was given a specific task.

[01:53:17] Speaker 05:
He was working at the behest of the government, of the United States Attorney's Office.

[01:53:21] Speaker 05:
And it was the United States Attorney's Office that was trying this case, and that admitted this evidence.

[01:53:26] Speaker 05:
So for all of those reasons and every other reasons, we ask this court for appropriate relief.

[01:53:30] Speaker 03:
All right.

[01:53:30] Speaker 03:
Thank you.

[01:53:32] Speaker 03:
Anything further?

[01:53:33] Speaker ?:
No.

[01:53:33] Speaker 03:
We will take the case under advisement.

[01:53:41] Speaker 03:
I beg your pardon.

[01:53:45] Speaker 03:
We want to thank counsel for both appellants for the fine service they have rendered to the court in this complicated case.

[01:53:54] Speaker 03:
Thank you.

[01:53:57] Speaker 03:
This court now stands adjourned.