United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, (Doc. No. 1), and on the
Government's Motion for Summary Judgment, (Doc. No. 5).
Petitioner Nasser Kamal Alquza and Qazah conspire to traffic
in stolen cigarettes and to launder the proceeds.
2010, Petitioner's nephew, Kamal Zaki Qazah, began
purchasing purportedly stolen cigarettes from undercover
officers. (Crim. Case No. 3:11-r-373-FDW-DSC-10, Doc. No. 289
at 108-09, 124-25: Trial Tr. I). In April 2011, Qazah told
undercover officers that, for a fee, his uncle (Petitioner)
could launder large amounts of cash, approximately $100, 000
every couple of months, by running the cash through different
businesses. (Id., Doc. No. 291 at 600-02: Trial Tr.
III). Petitioner and Qazah met with undercover officers in
May 2011 and discussed the sale of additional stolen
cigarettes, as well as options for concealing the nature and
source of the proceeds generated by those sales.
(Id. at 614-15). In Petitioner's presence, Qazah
discussed purchasing 800 or more cases of cigarettes per
month from the officers at prices between $1, 200 and $1, 500
per case. (Id. at 619-21). An undercover officer
commented during the discussion, “What's a few
stolen smokes amongst friends.” (Id. at 631).
Petitioner stated, “My nephew has been doing this job
[referring to his cigarette business] and then needed me and
then told me about it.” (Id. at 625).
Petitioner explained that he was “a moneyman, ”
id. at 633, and offered several different ways he
could launder cash, including writing checks from different
businesses that Petitioner owned or controlled. (Id.
at 623). For a larger fee, Petitioner offered to launder as
much as $200, 000 cash through overseas accounts that he
claimed to own in London, Jordan, and Paris. (Id. at
discussed his past money-laundering experience with the
undercover officers and gave them specific advice on how to
avoid law enforcement. (Id., Doc. No. 292 at 826-27:
Trial Tr. IV). Petitioner stated that he had previously
laundered money for people he trusted for “two or three
years.” (Id. at 773-74). Petitioner revealed
his past experience with stolen baby formula, which he
suggested was “something else [the officers] could get
into besides the stolen cigarettes business.”
(Id. at 775). Petitioner assured the officers,
“I have been doing this for a while. I have been doing
it while I was living in Kentucky for the same hot shit that
you guys do, and it was formula milk.” (Id. at
2011, undercover officers met with Petitioner to launder $50,
000 in cash from their sale of purportedly stolen cigarettes
to Qazah. (Id., Doc. No. 291 at 650). Petitioner
gave the officers five checks totaling $47, 000, drawn on
accounts in the name of Petitioner and his wife.
(Id. at 651-58). In July 2011, Qazah delivered
checks from Petitioner to replace two earlier checks that the
bank would not cash. (Id. at 668). Officers later
called Petitioner to confirm receipt and to advise Petitioner
that they had more cash from “hot smokes” to
launder. (Id. at 673-74). In August 2011, the
undercover officers met Petitioner at his pizza business,
Milano's Pizza, and gave him $75, 000 cash in exchange
for four checks totaling $70, 400. (Id., Doc. No.
292 at 798-802). Petitioner wrote “Subway Equipment,
” “Oven, ” and “Hood Installation,
” respectively, on the checks. (Id. at
a September 15, 2011, cigarette transaction at
Petitioner's shopping center, the undercover officers
discussed additional money laundering with both Petitioner
and Qazah. (Id. at 806-07, 817). Petitioner agreed
to take amounts up to $100, 000, but stated that any amount
over that would have to go “overseas.”
(Id. at 817). On October 20, 2011, undercover
officers brought $125, 000 cash in a toolbox to Petitioner
and Qazah at Milano's Pizza. (Id. at 825). In
exchange, Petitioner gave the officers six checks drawn on
his Subway business account, payable to JROX Construction-a
shell company. (Id. at 827-30). Petitioner had
suggested that the officers create entities and use different
business names and aliases that would not be associated with
them or their illegal operations. See
(Id.). The undercover officers had created JROX
after Petitioner told them their prior company name,
“Fast Eddie's Tobacco, ” was too closely
associated with their illegal business. See
(Id. at 753-54, 825-28, 898). During the meeting,
Petitioner also told officers that they “can't do
this forever as far as stolen cigarettes, ” but
suggested that “they could start a new business with
stolen baby formula and he had contacts that could help
them.” (Id. at 831-35).
November 2011, after officers had expressed skepticism about
dealing in baby formula, Petitioner drove the officers to a
local Walmart, where he showed them the brands of baby
formula that were the easiest to steal and sold the best on
the black market. (Id. at 836-37, 842). Petitioner
explained how undercover officers could make more money if
they had a secret location where they could bring hijacked
trailer loads of baby formula. (Id. at 842-43).
Petitioner and Qazah are arrested and charged with
trafficking in stolen goods and money laundering.
officers arranged to deliver more than $1 million in
cigarettes to Qazah at Petitioner's shopping center on
November 30, 2011. Undercover officers initially informed
Qazah that they could obtain 1, 377 master-cases, which they
would sell for $1.8 million. (Id. at 913). Qazah
said that he could only get $1.2 to $1.3 million, but that he
would come back later for the rest of the cigarettes.
(Id.). Instead of delivering the cigarettes, law
enforcement officers arrested Petitioner and Qazah at
Qazah's residence, where they executed a search warrant
and found approximately $1.3 million. (Id. at
918-19). Officers also executed a search warrant at
Petitioner's residence, id., doc. no. 293 at
998-1010, where they recovered United States and Jordanian
passports in Petitioner's name; multiple identification
documents that bore Petitioner's picture, but the name
Saio Quza, whom Qazah identified at trial as Petitioner's
brother; social-security cards in the names of both
Petitioner and Qazah; and credit cards in Qazah's name.
(Id., Doc. No. 236 at 31). Officers also recovered
checkbooks and checks in Petitioner's name from several
banks, including those used for the transactions with the
undercover officers, a record of an international wire
transfer to Pakistan, and a statement from the Cairo Amam
Bank. (Id., Doc. No. 292 at 41; Doc. No. 293 at
1014-20, 1049-50). When Petitioner was interviewed shortly
after his arrest, he falsely informed an agent that he had
only a United States passport and that he no longer owned any
Subway restaurant franchises. (Id. at 1026-32).
jury indicted Petitioner and Qazah. (Id., Doc. No.
3: Indictment). In September 2012, Petitioner was charged in
a superseding indictment with conspiracy to receive and
transport stolen property in interstate commerce, in
violation of 18 U.S.C. § 371 (Count One); money
laundering conspiracy in violation of 18 U.S.C. §
1956(h) (Count Twenty); and money laundering and aiding and
abetting money laundering, in violation of 18 U.S.C.
§§ 1956(a)(3) and 2 (Count 22). (Id., Doc.
No. 192: Superseding Indictment). One of the allegations with
respect to Count One was that Petitioner had helped unload
cigarettes that were delivered on September 15, 2011.
(Id. at ¶ 27). Petitioner moved to suppress the
evidence obtained during the search of his residence.
(Id., Doc. No. 227). This Court denied his motion
after holding an evidentiary hearing. (Id., Doc. No.
289 at 52-64).
Petitioner rejects the Government's plea offer and is
convicted after trial.
December 2012, the Government offered Petitioner a plea
agreement under which he would have pleaded guilty to
conspiracy to commit money laundering (Count
the parties would have recommended to the Court that the
amount of loss attributable to Petitioner was between $1
million and $2.5 million; that a four-level enhancement for
being in the business of money laundering applied, and that
Petitioner would have been eligible for a three-level
reduction for acceptance of responsibility, as well as an
additional two-level reduction if he provided a truthful
debriefing. (Doc. No. 5-1 at 6: Swerling Aff.). As part of
this proposed plea agreement, the Government also agreed not
to seek a four-level enhancement for being in the business of
selling and receiving stolen property. (Id.). With
truthful debriefing, Petitioner's total offense level
would have been 21, which, with a criminal history category
of I, would have resulted in an advisory guidelines range of
37-46 months of imprisonment. Without truthful debriefing, a
46- to 57-month sentence would have applied.
counsel, Jack B. Swerling, met with Petitioner twice to
discuss the proposed plea agreement. (Id.). Swerling
advised Petitioner of the charge he would be pleading to, the
effect of any cooperation, the advisory guidelines, as well
as the service of his sentence. (Id. at 5). Swerling
also discussed with Petitioner the consequences of proceeding
to trial. (Id.). Petitioner rejected the proposed
plea agreement at both meetings, stating that he did not want
to cooperate and that the sentencing range was too high for
his alleged conduct. (Id. at 6). Swerling proposed
making counter-offers to the Government of a stipulation not
to apply the four-level enhancement for being in the business
of money laundering, or seeking an agreement to a two-year
sentence. (Id.). However, Petitioner rejected these
suggestions. (Id. at 6-7).
Petitioner's trial, this Court inquired whether the
parties had engaged in plea negotiations. (Id., Doc.
No. 291 at 430). The Government summarized the terms of the
December 2012 plea offer, and Petitioner told the Court that
his counsel had presented this plea deal to him, but that he
had rejected it after consulting with his family.
(Id. at 432-34). This Court found that Petitioner
“knowingly, intelligently and voluntarily rejected the
plea offer made by the United States.” (Id. at
and Qazah were tried together. During the six-day trial, the
Government presented extensive evidence of their guilt,
including testimony from the undercover officers who engaged
in cigarette-trafficking and money-laundering transactions
with the two men, as well as recordings and photographs of
these meetings. See, i.e. (Id., Doc. No.
289 at 123-27; Doc. No. 291 at 617-29, 650-60). Swerling
states in his affidavit that although he was suffering from
knee pain and took over-the-counter Ibuprofen during the
trial, his mind was clear and unaffected by the pain in his
knee or the pain medication. (Doc. No. 5-1 at 1-2). He did
not seek a continuance because his performance was
unaffected, and the Court allowed him to sit down when any
weight bearing caused him discomfort. (Id. at 2).
testified, but Petitioner did not. (Id., Doc. No.
293 at 1053-54). The defense had interviewed potential
witnesses identified by Petitioner--Abrahim Pace and Carlos
Hart--and had subpoenaed Pace to testify at trial. (Doc. No.
5-1 at 3-4). However, because the Government did not present
evidence that Petitioner had helped to unload the cigarettes
delivered on September 15, 2011, Swerling made the strategic
decision not to call Pace as a witness, in order to prevent
the Government from presenting such evidence on rebuttal.
(Id. at 4). Swerling used this to Petitioner's
advantage during closing argument, when he told the jury that
the Government had offered no evidence that Petitioner had