United States v. Behiry ( 2021 )

20-3697-cr
United States v. Behiry
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 20th day of December, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
EUNICE C. LEE,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 20-3697-cr
v.
HATEM BEHIRY,
Defendant-Appellant,
MUSTAK Y. VAID, PAUL J. MATHIEU, EWALD J.
ANTOINE, MARINA BURMAN, ASHER OLEG KATAEV,
AKA OLEG KATAEV, ALLA TSIRLIN, LINA ZHITNIK,
EDUARD MISELEVICH, IVAN VOYCHAK,
Defendants.
FOR APPELLEE: STEPHEN J. RITCHIN, Assistant United
States Attorney (Timothy V. Capozzi,
David Raymond Lewis, Thomas McKay,
Assistant United States Attorneys, on the
1
brief), for Audrey Strauss, United States
Attorney, Southern District of New York,
New York, NY.
FOR DEFENDANT-APPELLANT: JEFFREY CHABROWE, The Law Office of
Jeffrey Chabrowe, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Lorna G. Schofield, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Hatem Behiry appeals from a judgment of conviction, following a jury trial, of (1) conspiracy
to commit health care fraud, mail fraud, and wire fraud, in violation of 18 U.S.C. § 1349; (2) health
care fraud, in violation of 18 U.S.C. § 1347; (3) mail fraud, in violation of 18 U.S.C. § 1341; (4) wire
fraud, in violation of 18 U.S.C. § 1343; and (5) conspiracy to make false statements, in violation of
18 U.S.C. § 371. Behiry argues that he should have been permitted to cross-examine an FBI agent
about debriefing statements made by an informant—who died before trial—to cast doubt on the
reliability of video footage gathered by the informant and introduced by the Government at trial.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
The district court properly excluded this testimony as hearsay. See Fed. R. Evid. 802. First,
it was not admissible as an “admission[ ] by the agent of a party opponent” because we have held
that such “out-of-court statements of a government informant are not admissible in a criminal trial
pursuant to Rule 801(d)(2)(D).” United States v. Yildiz, 355 F.3d 80, 82 (2d Cir. 2004); see Fed. R.
Evid. 801(d)(2)(D). Second, we held regarding the then-effective “residual exception” that it could
“be utilized only if notice of an intention to rely upon it is given in advance of trial,” which Behiry
did not provide. United States v. Ruffin, 575 F.2d 346, 358 (2d Cir. 1978); see United States v. Oates, 560
F.2d 45, 73 n.30 (2d Cir. 1977) (noting that “Congress intended that the requirement of advance
notice be rigidly enforced.”); Fed. R. Evid. 807(b) (2019).
The Rules underlying these decisions are not “arbitrary or disproportionate to the purposes
they are designed to serve.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citation and internal
quotation marks omitted). “Out-of-court statements are traditionally excluded because they lack . . .
conventional indicia of reliability . . . .” Chambers v. Mississippi, 410 U.S. 284, 298 (1973). The Rules
except an opposing party’s statement offered against the declarant because “the adversary process
. . . leaves each party to bear the consequences of its own acts.” United States v. McKeon, 738 F.2d 26,
32 (2d Cir. 1984). But “statements by informers” do not “fall under the rule, given [informers’]
tenuous relationship with the police officers with whom they work.” Yildiz, 355 F.3d at 82 (internal
2
quotation marks omitted). And the pre-trial notice requirement of the former Rule 807 “prevent[ed]
abuse” and served as a procedural check on the “possible overbreadth” of the residual exception.
Oates, 560 F.2d at 73 n.30. Thus, the district court excluded this testimony pursuant to “reasonable
restrictions,” which did not interfere with Behiry’s “meaningful opportunity to present a complete
defense.” United States v. Al Kassar, 660 F.3d 108, 122–23 (2d Cir. 2011) (citations omitted).
Finally, even if these Rules are constitutionally unsound, Behiry—who did not raise his
constitutional objection at trial—has not “met [his] burden of showing prejudice under Rule 52(b).”
United States v. Olano, 507 U.S. 725, 734 (1993) (describing review for plain error under Fed. R. Crim.
P. 52(b)). The Government’s cooperator testified to the brevity of Behiry’s typical evaluations, his
insistence that patients stay at the office longer than 10 to 15 minutes in case someone was
monitoring them, and his practice of calling therapists to sign medical charts—including for patients
they had not seen—to avoid having a single therapist sign more than 20 charts. In light of this
testimony, Behiry has not demonstrated that the testimony at issue would have created reasonable
doubt to overcome the evidence against him, which the district court described as “overwhelming,
even without the consultation shown on the video.” Gov’t’s Br. 44.
We have reviewed all of the arguments raised by Behiry on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the October 6, 2020, judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3