United States District Court, District of Columbia
BERYL A. HOWELL UNITED STATES DISTRICT JUDGE
The defendants Florence Bikundi and her husband, Michael D. Bikundi, Sr., are charged in a multi-count Superseding Indictment for allegedly conspiring to defraud and defrauding the District of Columbia Medicaid Program. Their trial is scheduled to begin on October 13, 2015. A motions hearing and pretrial conference were held in this matter on July 31, 2015, and September 18, 2015, respectively, during which oral argument was heard on pretrial motions and a number of those motions were resolved for the reasons stated on the record. See Minute Order (July 31, 2015); Minute Order (Sept. 18, 2015). Pending before the Court are two remaining pretrial evidentiary motions: (1) the United States’ Motion in Limine to Admit Certain Exhibits Pursuant to Federal Rule of Evidence 404(b) (“Gov’t’s Mot.”), ECF No. 273; and (2) the defendant Florence Bikundi’s Motion in Limine to Exclude Certain Evidence and/or Testimony (“Def.’s Mot.”), ECF No. 276. For the reasons discussed below, the government’s motion is granted and the defendant’s motion is granted in part and denied in part.
The Superseding Indictment alleges that defendant Florence Bikundi, a former licensed practical nurse, see Superseding Indictment ¶¶ 36, 38, ECF No. 44, was excluded in or around April 2000 by the United States Department of Health and Human Services Office of Inspector General from participating in Medicare, Medicaid, and all Federal health care programs, and thereby “prohibited . . . from submitting or causing the submission of claims to, and receiving funds from, Federal health care programs such as Medicaid, ” id. ¶ 45. Despite her exclusion, however, Florence Bikundi allegedly “was a director, administrator, officer, and primary owner/stockholder of three [home care agencies], ” which, between July 2007 and December 2014, received over $78 million in payments from Medicaid programs. Id. ¶ 20.
One of the home care agencies, Global Healthcare, Inc. (“Global”), see Id. ¶ 21, was “registered to do business in the District of Columbia, ” “licensed in the District of Columbia as a home care agency[, ] . . . enrolled as a provider in D.C. Medicaid[, ]” and “purported to provide personal care services to D.C. Medicaid beneficiaries, ” id. ¶ 29(a). A second home care agency shared the same name, Global Healthcare, Inc. (“Global Maryland”), but was incorporated in Maryland, licensed in Maryland as a “resident service agency, ” enrolled as a provider in the Maryland Medicaid program, and “purported to provide personal care services to Maryland Medicaid beneficiaries.” Id. ¶¶ 29(c), 31. A third home care agency, Flo-Diamond, Inc. (“Flo-Diamond”) was similarly incorporated in Maryland, licensed in Maryland as a resident service agency, enrolled as a provider in Maryland Medicaid, and “purported to provide personal care services to Maryland Medicaid beneficiaries.” Id. ¶¶ 30-31. Florence Bikundi’s husband and codefendant, Michael Bikundi, “was an executive officer and part owner” of Global. Id. ¶ 21.
The defendants are both charged with, from about August 2009 to about February 2014, conspiring to commit health care fraud and committing health care fraud by submitting and causing to be submitted false and fraudulent claims for payment to the D.C. Medicaid program, in violation of 18 U.S.C. §§ 2, 1347, 1349, see Superseding Indictment ¶¶ 67-75 (Counts One and Two); conspiring to commit money laundering and committing money laundering to conceal proceeds illegally derived from the health care fraud, in violation of 18 U.S.C. §§ 2, 1956(a)(1)(B)(i), 1956(h), see Superseding Indictment ¶¶ 83-89 (Counts Fifteen through Twenty-Two); and engaging in monetary transactions with proceeds illegally derived from the health care fraud, in violation of 18 U.S.C. §§ 2, 1957, see Superseding Indictment ¶¶ 90-91 (Counts Twenty-Three through Twenty-Five). Defendant Florence Bikundi is additionally charged with, during the same time period, committing health care fraud by concealing her exclusion from participation in all Federal health care programs and making other false and fraudulent representations to obtain payments from the D.C. Medicaid program, in violation of 18 U.S.C. §§ 2, 1347, and 42 U.S.C. § 1320a-7b(a)(3), see Superseding Indictment ¶¶ 78-82 (Counts Thirteen and Fourteen).
At the pretrial conference, following oral argument, the Court reserved ruling on two pretrial motions to give the parties an opportunity for supplemental briefing. Rough Transcript of Pretrial Conference Hearing (September 18, 2015) (“PTC Tr.”) at 56, 87. Having reviewed the government’s supplemental briefing, see Gov’t’s Supplemental Brief Supp. Mot. in Limine to Admit Certain Exhibits Pursuant to Federal Rule of Evidence 404(b) (“Gov’t’s Supp. Br.”), ECF No. 291; Gov’t’s Supplemental Mem. Opp’n Def.’s Motion in Limine to Exclude Evidence & Testimony Related to False Statements on Financial Documents (“Gov’t’s Supp. Opp’n”), ECF No. 292, the government’s Motion in Limine to Admit Certain Exhibits Pursuant to Federal Rule of Evidence 404(b), ECF No. 273, and the defendant Florence Bikundi’s Motion in Limine to Admit Exclude Certain Evidence and/or Testimony, ECF No. 276, are now ripe for consideration and are addressed below.
II. LEGAL STANDARD
The Supreme Court has recognized that “[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see id. at 40 n.2 (defining motion in limine “in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”). Indeed, Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means. Fed.R.Evid. 103(d). Pretrial motions in limine are an important mechanism to effectuate this goal of insulating the jury from inadmissible evidence and further the purpose of the rules, generally, to administer the proceedings “fairly . . . to the end of ascertaining the truth and securing a just determination.” Fed.R.Evid. 102; see Banks v. Vilsack, 958 F.Supp.2d 78, 82 (D.D.C. 2013) (citing Fed.R.Evid. 103(d) and determining that plaintiff’s motion to exclude certain evidence would be decided pretrial “[i]n the interest of conducting an efficient jury trial and preventing the jury from hearing inadmissible evidence”); Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003) (noting that motions in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present potentially prejudicial evidence in front of a jury”); 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5042, at 965 (2d ed. 2005) (noting that “the motion in limine . . . still remains a favorite method of the writers for satisfying Rule 103(c)”). Moreover, “[a] pre-trial ruling, if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations.” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).
In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402. “[T]he burden is on the introducing party to establish relevancy, ” Dowling v. United States, 493 U.S. 342, 351 n.3 (1990), as well as admissibility. Even relevant evidence may be deemed inadmissible and subject to exclusion on multiple grounds, including that “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “Assessing the probative value of [the proffered evidence] and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (alteration in original) (quoting United States v. Abel, 469 U.S. 45, 54 (1984)). “This is particularly true with respect to Rule 403.” Id.
Under Rule 403, the court must “engage in on-the-spot balancing of probative value and prejudice and . . . exclude even factually relevant evidence when it fails the balancing test.” United States v. Moore, 651 F.3d 30, 63 (D.C. Cir. 2011) (internal quotation marks omitted). This balancing test is “fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Nuskey v. Hochberg, 723 F.Supp.2d 229, 233 (D.D.C. 2010) (quoting Sprint/United Mgmt. Co., 552 U.S. at 387-88). Importantly, “unfair prejudice within [the Rule 403] context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” United States v. Ring, 706 F.3d 460, 472 (D.C. Cir. 2013) (quoting Fed.R.Evid. 403 advisory committee’s notes). Exclusion based on unfair prejudice is particularly important in the case of expert evidence, which “can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993) (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)); Parsi v. Daioleslam, 852 F.Supp.2d 82, 86 (D.D.C. 2012) (observing that “because ‘[e]xpert evidence can be both powerful and quite misleading, ’ a court has greater leeway in excluding expert testimony under Rule 403 than it does lay witness testimony.”) (quoting Daubert, 509 U.S. at 595).
Depending upon the nature of the evidentiary issue presented in a pretrial motion in limine, the court must also assess whether a ruling is appropriate in advance of trial or, instead, should be deferred until trial “‘[when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.’” Herbert v. Architect of the Capitol, 920 F.Supp.2d 33, 38 (D.D.C. 2013) (quoting Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. Ill. 2011)) (alteration in original). The timing of a decision on the admissibility of contested evidence is a matter within a trial judge’s discretion. Banks, 958 F.Supp.2d at 81-82; Barnes v. District of Columbia, 924 F.Supp.2d 74, 78-79 (D.D.C. 2013) (“The trial judge’s discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial.”); Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C. 2011).
The pending motions in limine are addressed s ...