Behiry v. United States

Background

After a six-week trial, a jury convicted Hatem Behiry of 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. The court sentenced him to 24 months in prison on each count, to run concurrently, followed by three years of supervised release.

Behiry later filed a motion under 18 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence. He claimed that his trial lawyer provided ineffective assistance by failing to challenge certain videos, address statements that contradicted the videos, adequately review an FBI agent’s interview notes, and call four witnesses. The court denied that motion in an opinion dated February 11, 2022.

Motion for reconsideration

Behiry, representing himself, moved under Federal Rule of Evidence 59(e) for reconsideration of the denial. He argued that the court had overlooked two points: that trial counsel failed to seek suppression of the video evidence because of an alleged discovery violation, and that counsel admitted violating professional rules and legal authorities by failing to investigate the case reasonably or challenge the videos.

The court explained that reconsideration is available only when the moving party identifies an intervening change in controlling law, newly available evidence, or a need to correct clear error or prevent manifest injustice. It is not a way to relitigate old issues, present arguments that could have been raised earlier, or obtain another hearing on the merits.

The court found that Behiry had not identified any change in controlling law, new evidence, clear error, or injustice. It also found that both arguments were new arguments that could have been raised in the original § 2255 motion.

Court’s analysis

The court additionally addressed the arguments on their merits. It held that producing digital evidence in a format different from the original recording did not by itself violate the government’s discovery obligations. Federal Rule of Criminal Procedure 16(a) did not require electronic files to be produced in their original format, and neither Behiry nor his counsel had requested production in that format. Because the court found no discovery violation, it concluded that counsel could not have been ineffective for failing to make a motion that would have been futile.

The court also said that Behiry’s authentication arguments had already been considered and rejected. In the earlier opinion, the court found that the government adequately authenticated the videos through an FBI special agent who directly controlled, managed, and created the recordings. The court also noted corroborating evidence concerning the fraudulent physical therapy sessions.

Regarding counsel’s alleged failure to investigate, the court said Behiry was reframing arguments already considered and rejected. It stated that counsel’s declaration, which had been filed with the original § 2255 motion, did not characterize the conduct as violations of professional rules or Supreme Court authority. The court further held that, even assuming counsel’s performance was deficient, Behiry had not shown a reasonable probability that the trial’s result would have been different. The court pointed to patient records and testimony from numerous fact witnesses as other evidence sufficient to prove guilt beyond a reasonable doubt.

The court rejected Behiry’s argument that the § 2255 motion had been premature because his direct appeal was pending when he filed it. It explained that a pending direct appeal does not prevent a district court from deciding a § 2255 motion. Here, the direct appeal concerned issues other than ineffective assistance of counsel and therefore did not make the § 2255 proceeding pointless. The opinion states that the Court of Appeals had affirmed the conviction.

Certificate of appealability and disposition

A certificate of appealability is required for an appeal from the denial of a § 2255 motion and issues only when the applicant makes a substantial showing that a federal constitutional right was denied. The court concluded that Behiry had not made that showing.

The order states that Behiry’s motion for reconsideration or, alternatively, a certificate of appealability, is DENIED. The Clerk of Court was directed to close the motions on the civil and criminal dockets and mail a copy of the order to Behiry.