Behiry v. United States

Background

Hatem Behiry filed a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to ask the sentencing court to vacate, set aside, or correct a conviction or sentence on specified grounds. Behiry sought to overturn his conviction or his 24-month sentence based on alleged ineffective assistance of trial counsel.

Behiry had been convicted after a six-week jury trial of participating in a scheme involving fraudulent billing to Medicare and New York State Medicaid for physical therapy, occupational therapy, and other medical services and supplies. The charges included conspiracy to commit health care fraud, mail fraud, and wire fraud; conspiracy to make false statements relating to health care matters; and health care fraud, mail fraud, and wire fraud. He was sentenced to 24 months’ imprisonment on each count, to run at the same time, followed by three years of supervised release.

The government presented testimony, patient records, and covert video recordings concerning brief patient visits that were billed as longer or more substantial physical therapy services. The government also presented evidence about the preparation of patient records and the conduct of clinic employees. Behiry’s trial counsel cross-examined FBI Special Agent Liam McElearney about discrepancies involving the video recordings. A witness whose statements Behiry wanted to use, Boris Levin, had developed dementia and died before trial.

Claims and analysis

Behiry argued that his trial counsel was ineffective for failing to:

To establish ineffective assistance under the standard from Strickland v. Washington, Behiry had to show both that counsel’s performance fell below an objectively reasonable standard and that the alleged errors created a reasonable probability of a different result.

Video authentication

The court rejected Behiry’s argument that counsel should have challenged the videos as unauthenticated. The government had introduced testimony from McElearney, who operated and controlled the recording device, explained how the recordings were made, and saw no indication that the device had been tampered with. Other clinic workers also identified the people and locations shown in the recordings.

The court stated that the alleged timing and length discrepancies went to the weight of the video evidence—how much the jury should trust it—rather than to its basic admissibility. Because an authentication challenge would have had little chance of success, counsel was not ineffective for failing to make it.

Levin’s debriefing statements

The court rejected Behiry’s claim concerning statements recorded by McElearney after Levin’s clinic visits. The court noted that the Court of Appeals had already held in a prior related proceeding that the statements were properly excluded. The district court also found that their exclusion was not prejudicial because the statements were more incriminating than helpful: they indicated that Levin received about ten minutes of services on two dates, while Behiry’s records billed approximately 50 minutes.

McElearney’s notes

Behiry identified 10- to 15-minute differences between times in McElearney’s notes and times announced on recordings for four days when the government did not introduce or rely on video evidence. The court found that counsel’s decision not to pursue those discrepancies was a reasonable strategic choice. The court also found no reasonable probability that reviewing or using the notes would have changed the result given the other evidence, including the content of the videos, patient records, and testimony from fact witnesses.

The court further rejected Behiry’s argument that counsel was required to review the notes and all discovery materials with him.

Potential defense witnesses

Behiry argued that counsel should have called Ramy Ahmed, Mohammed Attya, Ahmed Fekry Mahmoud, and Sayed Said. The court found that not calling them was reasonable trial strategy. According to the opinion, some of the witnesses’ statements to the government could have harmed Behiry by suggesting that his evaluations were unusually short or that he did not perform them. Their proposed testimony that they had not personally witnessed fraud also would not have disproved the videos or the testimony of other witnesses.

The court therefore found that Behiry failed to show either deficient performance or prejudice concerning these witnesses.

Other arguments and hearing request

The court also rejected Behiry’s additional arguments about cross-examination, missing debriefing notes, absent videos, and who created a fraudulent billing record. The court concluded that these arguments did not show a reasonable probability of a different trial outcome in light of the other evidence.

The court denied Behiry’s request for an evidentiary hearing because the petition and the existing case records conclusively showed that he was not entitled to relief.

Disposition

The Petition was denied. The court stated that Behiry had not made a substantial showing that a federal right had been denied, that appellate review was not warranted, and that any appeal would not be taken in good faith. The clerk was directed to close the case.