United States v. Imadeldin Khair

• Court: Court of Appeals for the Third Circuit
• Decided: February 28, 2018
• Docket: 17-1297
• Status: Unpublished

Opinion

NOT PRECEDENTIAL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