Kindness to Criminal Wasted

Insurance Fraud Violates Probation

Some people are criminals and no amount of kindness, attempts at rehabilitation, or probation change the fact that the person is an incurable criminal.

In United States Of America v. Roben Casey Bykovny, Criminal Case No. 15-36-DLB-CJS-7, United States District Court Eastern District Of Kentucky Northern Division At Covington (June 15, 2018) defendant Bykovny appeared for a hearing regarding revocation of probation earlier granted him for other crimes. The proceeding started with a conviction for aiding and abetting insurance fraud which resulted in probation only to find he violated the terms of the probation.

At the Final Revocation Hearing, the parties informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to admit to the violations set forth in the January 22, 2018 Violation Report and April 17, 2018 Addendum and, in exchange, the Government agreed to a recommended sentence of 14 months of imprisonment with no supervised release to follow.

FACTS

On September 10, 2015, a federal grand jury returned an indictment charging Defendant and eleven others with aiding and abetting co-Defendant Charles Whitney Benson with insurance fraud by cashing checks issued on false claims made against automobile insurance policies. While awaiting trial, Defendant was released on an Own Recognizance Bond, with conditions. On December 28, 2015, Defendant’s bond was revoked based on his stipulation that he had violated the conditions of his pretrial release by removing his GPS monitoring unit without permission, absconding supervision, and failing to contact the Warren County Probation Office or the U.S. Pretrial Office in Cincinnati until he was located and arrested on or about October 21, 2015.

On February 25, 2016, Defendant pleaded guilty to three counts of aiding and abetting insurance fraud. On May 13, 2016, Defendant was sentenced to time served (the 138 days he had been incarcerated following revocation of his bond) with a 3-year term of supervised release to follow. Defendant was released from prison immediately following his sentencing and placed on home detention with electronic monitoring for the first seven months of his supervised release.

On June 24, 2016, Defendant was administered a drug test which returned positive for suboxone. Defendant was not prescribed suboxone at the time and admitted that he received the suboxone from a friend to help him with his craving for heroin.

Defendant subsequently admitted at the final revocation hearing to using methamphetamine the day prior to his March 1, 2017 drug testing at the U.S. Probation Office in Cincinnati.

Defendant admitted to the following violations of his supervised release and the factual circumstances set forth below:

Violation No. 1: You shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician. (Grade C violation)

At Final Revocation Hearing, Defendant admitted to having tested positive for methamphetamine upon drug screen performed January 9, 2018 and admitted that his use of methamphetamine violated the above condition of his federal supervision.

Violation No. 2: You shall not commit another federal, state, or local crime. (Grade B violation)

Defendant admitted that having used methamphetamine, he was also in possession of methamphetamine on or about January 9, 2018. Under Sixth Circuit precedent, use is equivalent to possession. Therefore, given Defendant’s criminal history, his possession of methamphetamine is considered a violation of federal law.

Sentencing

Classification of Defendant’s underlying criminal offense results in a maximum term of incarceration upon revocation of his supervised release of 2 years, the underlying offense being a Class C felony.

As explained above, the parties have agreed to a recommended sentence of 14 months of incarceration with no supervised release to follow. This is Defendant’s second revocation proceeding before the Court and for conduct occurring shortly after his release from incarceration for his first revocation. Therefore, a sanction at the high end of the Guidelines range is appropriate.

Defendant has requested that the Court recommend he be placed at the federal facility in Manchester, Kentucky or, in the alternative, at a federal facility near the Greater Cincinnati area. The Court informed Defendant that it cannot require the Bureau of Prisons to house him at any particular location, but stated it would make the recommendation on his behalf.

Conclusion and Recommendations

Defendant Roben Casey Bykovny BE FOUND to have violated the terms of his supervised release as set forth in the January 22, 2018 Violation Report and April 17, 2018 Addendum; Defendant’s supervised release BE REVOKED; Defendant BE SENTENCED to the custody of the Attorney General for a term of imprisonment of 14 months, with credit for time served since his detention on the supervised release violation charges, and with no supervised release to follow.

ZALMA OPINION

Bykovny couldn’t help himself. He was convicted of insurance fraud and the court, being nice – believing no one is really hurt by insurance fraud other than a rich insurance company – was granted time served and probation. Unable to give up his criminal career, Bykovny, violated the terms of his probation and was incarcerated. The prosecutor and court – still kind – gave him only 14 months in prison and no supervised release since they were probably sure he would violate it again. It doesn’t help the public to be kind to insurance criminals.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Books from Full Court Press

Full Court Press continues to publish expert secondary content. This time it’s a new collection of ew insurance law treatises from consultant, expert witness, arbitrator, and mediator Barry Zalma.

Barry Zalma practiced law in California for more than 44 years as an insurance coverage and claims-handling lawyer, and has spent more than 50 years in the insurance business. We welcome his deskbooks as the first published under our Full Court Press imprint. Three titles are available in ePub and MOBI format, as well as on the Fastcase legal research platform.

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California Insurance Law Deskbook: California has long led the way when it comes to insurance jurisprudence in the United States, and few know more about California insurance law than Barry Zalma. The California Insurance Law Deskbook is intended to help law students, practitioners, insurance lawyers, professional claims personnel, insured persons, and anyone else involved in insurance. Similar to Barry Zalma’s general Insurance Law Deskbook, this title focuses on the state where the author has long resided and practiced as an expert in California law. The book, published for the first time under Full Court Press, includes the full texts or digests of insurance-related decisions of the U.S. Supreme Court, the U.S. District Courts of Appeal, and California appellate courts, as well as vital explanatory chapters and historical context.

Insurance Bad Faith and Punitive Damages Deskbook: Understand the relationship between insurance, the tort of bad faith, and why punitive damages are awarded to punish insurers. Previously, a person suing an insurance company in the United States could only recover contract damages, but when the tort of bad faith was created by the courts contract law was enormously affected, allowing insureds to sue insurers for both contract and tort damages, including punitive damages. Read a thoughtful analysis of how punitive damages apply in the United States to insurance bad faith suits, and why some states allow judges and juries to award punitive damages against insurers in civil litigation.

An annual subscription to secondary content on the Fastcase platform includes new editions and updates published by the author as they are rolled out, so you can rest assured that your research is up to date. Go to fastcase.com for more detail and how to use the material on-line as part of your legal or insurance research or as stand-alone e-books. Details on the three new e-books are available at https://www.fastcase.com/product-category/fcp/ Subscribers to fastcase.com can search the three books as they do case law.

An annual subscription to secondary content on the Fastcase platform includes new editions and updates published by the author as they are rolled out, so you can rest assured that your research is up to date. Go to fastcase.com for more detail and how to use the material on-line as part of your legal or insurance research or as stand-alone e-books.

Mr. Zalma’s books available as Kindle books or paperbacks at Amazon.com can be reached at http://zalma.com/zalma-books/

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/bzalma  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

 

 

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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