United States District Court, D. Columbia.
For FLORENCE BIKUNDI, also known as FLORENCE NGWE, also known as FLORENCE IGWACHO, Defendant: William R. Martin, LEAD ATTORNEY, Kerry Brainard Verdi, Sasha Elizabeth H.W. Battle, MARTIN & GITNER, PLLC, Washington, DC.
For USA, Plaintiff: Theodore L. Radway, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, Washington, DC; Anthony D. Saler, Lionel Andre, U.S. ATTORNEY'S OFFICE, Washington, DC; Dangkhoa T. Nguyen, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Michael Justin Friedman, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
BERYL A. HOWELL, United States District Judge.
On December 18, 2014, a federal grand jury indicted Carlson Igwacho, his step-father, Michael Bikundi, his mother, Florence Bikundi, and others, for their role in an alleged scheme to defraud the District of Columbia Medicaid Program.[*] See Indictment (" Superseding Indictment" ), ECF No. 44. Now pending before the Court is the Government's motion to disqualify counsel for Mr. Bikundi, because his lawyer, Sheryl Wood, previously represented Mr. Igwacho, his codefendant, in connection with the Government's investigation of the pending charges. See Gov't's Mot. Disqualify Sheryl Wood as Counsel for Def. Michael Bikundi, Sr. (" Gov't's Mot." ), ECF No. 78. For the reasons stated below, the Government's motion is granted.
The Superseding Indictment alleges that Mr. Igwacho and Mr. Bikundi conspired together and with others to defraud the D.C. Medicaid Program through the submission of false and fraudulent claims and other paperwork. Prior to seeking the original indictment, and prior to the superseding indictment in this case, the Government investigated the relevant parties. As detailed below, at various points during the investigation and subsequent criminal proceedings, Ms. Wood represented Mr. Igwacho, Mr. Bikundi, and six of the companies under investigation.
A. Factual Background
1. Ms. Wood's Representation of Mr. Igwacho
On July 23, 2014, the Government notified Mr. Igwacho that he was the subject of a federal investigation, advised him to obtain counsel, and requested an opportunity to meet with him in order to discuss the investigation. See Ex. A, Gov't's Suppl. Mot. Disqualify Sheryl Wood as Counsel for Def. Michael Bikundi, Sr. (" Gov't's Suppl." ), ECF No. 89. Shortly thereafter, on August 7, 2014, Ms. Wood advised the Government via letter that she had been retained to represent Mr. Igwacho. See Ex. B., Gov't's Suppl.
On September 5, 2014, Ms. Wood met individually with the Government to discuss the ongoing investigation into the alleged healthcare fraud. See Gov't's Suppl. at 2. During the meeting, the Government disclosed to Ms. Wood evidence that it had obtained regarding potentially fraudulent Medicaid billings. Id. Subsequently, on September 26, 2014 and October 1, 2014, the Government interviewed Mr. Igwacho regarding the investigation. Id. at 2-3. In her capacity as Mr. Igwacho's counsel, Ms. Wood attended both interview sessions. Id. Ms. Wood also spoke privately with Mr. Igwacho prior to the first interview session and after both interview sessions. See Rough Transcript of Hearing (January 16, 2015) (" Jan. 16, 2015 Tr." ), at 106-07. Following the second meeting, the Government attempted to schedule a third interview with Mr. Igwacho. After originally scheduling a follow-up interview for October 6, 2014, Ms. Wood cancelled due to a scheduling conflict and the interview was never subsequently conducted. See Ex. A., Decl. of Sheryl R. Wood (" Wood Decl." ), Def. Michael D. Bikundi Sr.'s Opp'n Gov't's Mot. and Suppl. to Disqualify Sheryl Wood as Counsel (" Def.'s Opp'n" ), ECF No. 98.
The record is unclear as to precisely when Ms. Wood's representation of Mr. Igwacho terminated. On October 8, 2014, after canceling the scheduled third interview session, Ms. Wood advised the Government that she no longer represented Mr. Igwacho. Gov't's Suppl. at 3. Nevertheless, according to the Government, on November 10, 2014, Ms. Wood advised the Government that she might be able to continue her representation of Mr. Igwacho, and the parties once again scheduled a third interview session. Id. The next day, November 11, 2014, Ms. Wood advised the Government that she could not represent Mr. Igwacho and the proposed interview session was again cancelled. Id.
During the period from October 17, 2014 through at least November 12, 2014, Ms. Wood assisted Mr. Igwacho in obtaining counsel from the Federal Public Defenders Office. See Wood Decl. at ¶ ¶ 8-12. Mr. Igwacho was approved for representation by the Federal Public Defender's Office on November 25, 2014. See id. at ¶ 19. At some point during November 2014, Ms. Wood represents that she discussed with Mr. Igwacho her potential representation of Mr. Bikundi if the latter were indicted, and that Mr. Igwacho indicated that he " would provide his informed consent . . . if [Mr. Bikundi] were charged." See Wood Decl. at ¶ 13. Following Mr. Bikundi's arrest, Ms. Wood received a telephone call from Mr. Igwacho indicating that Ms. Wood needed to see Mr. Bikundi. Ms. Wood " understood" the call to be consistent with " Mr. Igwacho's willingness to provide his informed consent for [Ms. Wood] to represent Mr. Bikundi." Wood Decl. ¶ 16. Ms. Wood " did not pursue reaffirming [Mr. Igwacho's] informed consent." Id. Ms. Wood has not submitted any documentation confirming that Mr. Igwacho provided his informed consent to her subsequent representation of Mr. Bikundi.
On December 18, 2014, a grand jury issued a superseding indictment against Mr. Igwacho charging: (1) conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349; (2) health care fraud, in violation of 18 U.S.C. § 1347; and (3) two counts of making false statements relating to heath care matters, in violation of 18 U.S.C. § 1035. See Superseding Indictment.
2. Ms. Wood's Representation of Mr. Bikundi
On October 6, 2014, the Government served Mr. Bikundi with a letter in his individual capacity and in his capacity as President of Global Healthcare, Inc. informing him that he was the subject of a federal investigation, advising him to obtain counsel, and requesting an opportunity to meet with him in order to discuss the investigation. See Ex. D., Gov't's Suppl. Ms. Wood learned of the letter the following week but did not initially represent Mr. Bikundi. See Wood Decl. at ¶ 9. Mr. Bikundi originally retained Karl Chen to represent him and Mr. Chen attended a meeting with the Government regarding the charges against Mr. Bikundi. See Gov't's Suppl. at 3.
On December 16, 2014, Ms. Wood contacted the Government via email and requested that the Government return certain travel documents to Mr. Bikundi in order to permit Mr. Bikundi to visit his ailing mother in Cameroon. See Ex. E, Gov't's Suppl. The next day, on December 17, 2014, the Government responded by email to Ms. Wood and informed her that the Government would only speak with Mr. Bikundi's criminal counsel with respect to his case. On December 18, 2014, Ms. Wood informed the Government by letter that she was specifically retained by Mr. Bikundi " to represent him in his efforts to have his travel documents . . . returned to him" and that Mr. Chen " only represents Mr. Bikundi with regard to the debrief letter that he received . . . ." Id. The next day, on December 19, 2014, Mr. Chen notified the Government that he no longer represented Mr. Bikundi. See Ex. G., Gov't's Suppl. Following Mr. Bikundi's indictment, Ms. Wood entered a notice of appearance on his behalf on December 23, 2014.
The superseding indictment charges Mr. Bikundi with: (1) conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349; (2) health care fraud, in violation of 18 U.S.C. § 1347; (3) two counts of money laundering, in violation of 18 U.S.C. § 1956; and (4) engaging in monetary transactions in property derived from ...