United States v. Imadeldin Khair ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-1297
________________
UNITED STATES OF AMERICA
v.
IMADELDIN AWAD KHAIR,
a/k/a Nadr Khair
Imadeldin Awad Khair,
Appellant
________________
On Appeal from the United States District
Court for the District of New Jersey
(D.C. Criminal No. 2-15-cr-00404-001)
District Judge: Honorable Susan D. Wigenton
________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 6, 2018
Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges
(Filed: February 28, 2018)
________________
OPINION *
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
Following a bench trial, Imadeldin Awad Khair was convicted of health care
fraud, obstruction of a federal audit, tax evasion, and money laundering. The District
Court sentenced Khair to a term of imprisonment of 216 months. Khair appeals his
conviction and sentence. In addition to raising three ineffective assistance of counsel
claims, Khair contends that the District Court applied the incorrect legal standard when it
convicted him of health care fraud. We will affirm.
I.
In 1999, Imadeldin Awad Khair and his company, I&I Invalid Coach, were
charged with health care fraud in New Jersey state court. As a result, Khair and his
company were suspended from the New Jersey Medicaid program. Khair was
subsequently employed by K&S Invalid Coach, a company registered by his brother,
Badr Awad, and partially owned by Khair. K&S applied and was approved to be a
Medicaid provider in 2000.
Khair pleaded guilty to the 1999 health care fraud charge in 2003, and the United
States Department of Health and Human Services sent Khair and his counsel preliminary
exclusion notices for a minimum period of five years. Khair also entered a consent order
of debarment, confirming that he was barred from Medicare and New Jersey Medicaid
for at least five years. Health and Human Services sent a final letter of exclusion to Khair
on January 30, 2004, barring him from participation in Medicare and Medicaid for a
minimum of eleven years and requiring him to apply for reinstatement. The letter was
sent to the Passaic County Jail, where Khair was no longer incarcerated, and to his
2
counsel.
Following his release from prison, Khair returned to work at K&S. To
demonstrate permitted employment, Khair had his friend, Ebrahim Hazin, place him on
the payroll at Hazin’s firm, K&K Automotive. During this time, Khair continued
working at K&S and was viewed as the boss by employees. Although Khair’s reported
salary was low, he received payments in checks written out to him and his wife from
K&S and checks written to cash.
In a seventeen-count Superseding Indictment returned on November 19, 2015, the
government charged Khair with one count of health care fraud, in violation of 18 U.S.C.
§ 1347; one count of obstruction of a federal audit, in violation of 18 U.S.C. § 1516(a);
eleven counts of tax evasion, in violation of 26 U.S.C. § 7201; and four counts of money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (A)(ii), and (B)(i). Before jury
selection, Khair sought to waive his right to a trial by jury. The District Court and the
parties finished jury selection, and Khair again requested a bench trial. Following a
sworn colloquy, the government consented, and the District Court granted Khair’s
request.
Khair’s bench trial began on July 25, 2016, and lasted seven days. Khair did not
testify at trial, but his attorney argued that, while Khair knew he was excluded from
federal health care programs for five years, he did not realize the bar extended to eleven
years. The District Court found Khair guilty on all counts. Khair’s Guidelines range was
210 to 262 months’ imprisonment. At sentencing, the District Court rejected Khair’s
challenges to the Guidelines calculation and his request for a downward variance and
3
imposed a sentence of 216 months’ imprisonment. Khair appealed, challenging his
conviction and sentence.
II. 1
Khair raises three ineffective assistance of counsel claims and alleges that the
District Court applied the wrong legal standard in convicting him of health care fraud.
Because the District Court applied the correct standard in convicting Khair, we will
affirm. Further, we conclude the ineffective assistance of counsel claims are not ripe for
review.
A.
As to Khair’s three ineffective assistance of counsel claims, “[w]e open with the
observation that ineffective assistance of counsel claims are generally not considered on
direct appeal.” United States v. Washington, 869 F.3d 193, 202 (3d Cir. 2017). That
general rule only gives way “when the trial record ‘is sufficient to allow determination of
ineffective assistance of counsel.’” Id. at 203 (quoting United States v. Polk, 577 F.3d
515, 520 & n.2) (3d Cir. 2009)). “Determining sufficiency is case- and claim-
dependent.” Id. at 203. 2
First, Khair contends that his counsel incorrectly advised him that he had a
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant “must show that
counsel’s representation fell below an objective standard of reasonableness” as measured
by “prevailing profession norms.” Id. at 688. Even if counsel’s performance was
deficient, those “deficiencies in counsel’s performance must be prejudicial to the defense
in order to constitute ineffective assistance under the Constitution.” Id. at 692.
4
Constitutional right to inclusion of people of Muslim faith on his jury. He claims, as a
result of that advice, he unknowingly and unintelligently waived his right to a trial by
jury. Second, Khair states that his counsel was ineffective in failing to call his former
attorney as a witness during trial. Khair claims that his prior attorney would have
testified he never forwarded or informed Khair of the letter stating he was excluded from
federal programs for eleven years. Third, Khair claims that his counsel did not
adequately address the sentencing factors under 18 U.S.C. § 3553(a) in submissions or
argument to the District Court.
We are not presented with “the uncommon case where resolving an
ineffectiveness claim on direct appeal is both feasible and efficient.” Id. at 203. We will
not address Khair’s ineffective assistance of counsel arguments. Khair may assert them
in an appropriate collateral proceeding. See 28 U.S.C. § 2255.
B.
Khair also challenges his conviction, contending that the District Court applied the
incorrect legal standard for health care fraud under 18 U.S.C. § 1347. While we exercise
plenary review over a District Court’s conclusions of law, United States v. Perez, 280
F.3d 318, 336 (3d Cir. 2002), we review here for plain error because Khair did not object
before the District Court, United States v. Pisello, 877 F.2d 762, 766 (9th Cir. 1989); cf.
United States v. Sussman, 709 F.3d 155, 176 (3d Cir. 2013) (applying plain error review
to unraised challenges to jury instructions). 3 Under that standard, Khair must show:
3
The parties agree plain error review applies. Appellee’s Br. at 27; Appellant’s Reply
Br. at 21.
5
“(1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial
rights.” United States v. Ferguson, 876 F.3d 512, 514 (3d Cir. 2017) (quoting United
States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008)). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only if
. . . the error seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 514 (alterations in original) (quoting Goodson, 544 F.3d at 539)).
In support of his assertion that the District Court applied an erroneous legal
standard, Khair highlights one statement during the District Court’s findings of fact and
conclusions of law: “there were funds that came from Medicare and Medicaid when Mr.
Khair was involved in the business when he knew or certainly should have known he was
precluded from engaging in any type of business where a substantial amount of money
was coming from Medicare and Medicaid.” App. 15 (emphasis added). Relying on the
statement “certainly should have known,” Khair contends that the District Court
determined his guilt “based upon a non-criminal mental state.” Appellant’s Br. at 29.
But a thorough review of the District Judge’s statements belies that assertion.
Among other statements, the District Court found that Khair knew (1) “he had an
exclusion and that exclusion was for the 11-year period,” App. 9; (2) “he had an
obligation to request reinstatement” but “never made any efforts whatsoever to be
reinstated,” App. 9; (3) he “was involved in the business in a position and in a role that
was unequivocally precluded and prohibited by HHS and OIG and [ ] was certainly aware
of that,” App. 11; and (4) he was excluded, which “prompted obviously all of the
misrepresentations and the lies that were taking place,” App. 13. The District Court
6
found Khair’s conduct constituted “willful conduct and certainly conduct that evidences a
consciousness of guilt on the part of Mr. Khair.” App. 12. Based on the District Court’s
repeated statements concerning both Khair’s knowledge and willfulness, we conclude a
stray comment by the District Court, taken out of context, does not constitute plain error
in this case. Accordingly, we will affirm Khair’s conviction for health care fraud. 4
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
4
Because we will affirm Khair’s conviction for health care fraud, we need not reach his
argument concerning his convictions for money laundering. That argument was
contingent on overturning Khair’s health care fraud conviction. See Appellant’s Br. at 48
(“In the event the Court overturns Khair’s conviction on Count One . . . then it must also
overturn his convictions for Counts Fourteen through Seventeen for money laundering
pursuant to 18 U.S.C. § 1956(a)(1)(A)(i), (ii) and (B)(i).”).
7