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Nasrallah v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 1, 2017

ALI FAYEZ NASRALLAH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogbum Jr., United States District Judge

         THIS MATTER is before the Court on petitioner's Motion to Vacate, Correct, or Set Aside Conviction and Sentence pursuant to 28 U.S.C. § 2255 (#1). Petitioner, who is represented by counsel, contends inter alia that the plea he entered to a Bill of Information in United States v. Nasrallah, 3:13cr189 (“Nasrallah”), was both unknowing based on a language barrier and involuntary based on coercion of counsel and the government. After consideration of the testimony and the exhibits presented at an evidentiary hearing, the Court determines that the petition is not supported by the evidence and the relief sought will be denied, all for the reasons that follow.

         I.

         Petitioner was charged in a Bill of Information with conspiracy to traffic and attempt to traffic in counterfeit goods from 2007 through December 2010, in violation of 18 U.S.C. §§ 371 and 2320(a). In addition, petitioner was charged with making false statements on his 2008 tax return, in violation of 26 U.S.C. § 7206(1). Nasrallah (#11). Petitioner, as part of a plea agreement waived indictment (id. (#13)) and entered a guilty plea to both counts of the Information. Id. (#12).

         Honorable David S. Cayer, United States Magistrate Judge, conducted a Rule 11 proceeding and accepted the plea. Id. (#14). After the plea hearing, petitioner's retained counsel, Mr. Verby, withdrew (Oral Motion 8/19/2017) and this Court appointed Mr. Terpening inasmuch as petitioner was then indigent. CJA 20 (#17). Mr. Terpening represented petitioner throughout the presentence, sentencing, and appellate process, and continues to represent petitioner on collateral review.

         After a presentence investigation and the completion of a presentence report, id. (#20), a sentencing hearing was conducted. No objections to the Presentence Report were filed and none were expressed at sentencing. At sentencing, this Court asked petitioner “were the answers you gave the judge that day true and correct? Did you tell him the truth?” Petitioner answered “Yes, sir.” Sentencing Transcript (“S.Tr.”) (#36) at 3. Petitioner was then asked “[i]f I were to ask you those same questions that he asked that day, would your answers be the same?” Petitioner answered “Yes, sir.” Id. When this Court asked defendant whether he was in fact guilty of the crimes he was pleading guilty to, defendant answered “yes.” Id. The Court then reaffirmed the magistrate judge's acceptance of the plea. Id.

         During sentencing, the Court adopted without objection the facts as provided in the Presentence Report and accepted the advisory guidelines range contained in the PSR. It was determined that petitioner's conduct carried a Total Offense Level of 23 and that he had a Criminal History of I, resulting in an advisory guidelines range of 46 to 57 months. The Court sentenced petitioner at the bottom of the advisory guidelines range to 46 months imprisonment on Count One and 36 months on Count Two, with both sentences running concurrently. Also relevant to the instant petition, the Court imposed restitution in the amount of $623, 826.75 in accordance with the Mandatory Victim Restitution Act, which was precisely the amount of restitution determined in the unobjected-to PSR (#20 at pp. 8-9).

         After entry of the Judgment (#26), defendant filed a Notice of Appeal (#28). The Court of Appeals for the Fourth Circuit reappointed Mr. Terpening to represent petitioner on appeal. Petitioner filed a motion to voluntarily dismiss the appeal, which was granted by the appellate court. Nasrallah v. United States, No. 14-4879 (4th Cir. May 28, 2015); Nasrallah (#40).

         II.

         In this Section 2255 proceeding, petitioner has asserted three claims. First, petitioner contends that his plea was not knowing and voluntary because: (1) it resulted from prosecutorial misconduct; (2) it was based on a misunderstanding of the terms of the plea agreement due to language barriers; and (3) it was attained through threats to his family by the government and his attorney (Mr. Verby) if he refused to sign the agreement. Second, he argues that he received ineffective assistance of trial counsel (Mr. Verby) based on statements made to him by his attorney, including statements regarding the maximum amount of time in prison or on probation that petitioner would face if he signed the proposed plea agreement. Third, petitioner argues that his plea was not knowing and voluntary because he was not afforded the assistance of an Arabic translator during plea negotiations or court proceedings, which is somewhat duplicative of the part two of the first contention.

         In their moving papers, the parties have presented the Court with conflicting affidavits. Significantly, petitioner and his former counsel offered competing statements as to: (1) counsel's representations about the maximum sentence petitioner would face if he cooperated with the government and entered a plea in this case; (2) petitioner's abilities to understand the English language; (3) statements regarding potential prosecution of petitioner's family members; and (4) petitioner's understanding of his waiver of appellate rights. Due to factual discrepancies between the competing affidavits, an evidentiary hearing was conducted to aid the Court in determining the merits of petitioner's claims. See 28 U.S.C. § 2255(b) (providing that an evidentiary hearing is required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief”). Based on petitioner's allegations of a language barrier, the Court directed the Clerk of Court to have an Arabic/English interpreter available at the evidentiary hearing.

         In advance of the hearing, the Court advised petitioner that he had the right to retain counsel of his own choosing, but, in an abundance of caution, appointed counsel based on petitioner's request for counsel found on page 13 of AO 243 (Petition (#1) at 12) and earlier affidavit of indigency in the underlying criminal action.[1] While Mr. Terpening was again appointed to represent petitioner, the Court directed that a new attorney, unaffiliated with the criminal action, be appointed. The Clerk of Court appointed Richard Tomberlin. Thereafter, petitioner retained Mr. Terpening and Mr. Herrmann, who appeared pro hac vice with Mr. Moors (Mr. Terpening's law partner). Mr. Tomberlin then withdrew. The government then filed a Motion to Disqualify (#14) Mr. Terpening as a potential witness, which this Court denied as moot based on Mr. Moors' presence as additional local counsel and petitioner's waiver of any conflict. See Order (#19). By the time of the hearing, the Court was satisfied that petitioner was well represented by conflict-free counsel (and/or counsel as to whom any conflict had been waived). Mr. Terpening was not called to testify at the hearing.

         III.

         An evidentiary hearing was conducted May 11, 2016, in Charlotte, North Carolina, at which petitioner appeared and was represented by Messrs. Terpening, Moors, and Herrmann. The government was also present and represented by Mr. O'Malley and Ms. Greenough. At the hearing, Mr. Nasrallah was the only witness called to testify on behalf of the petitioner. The government called: (1) defendant's former attorney, Mr. Verby; (2) petitioner's last pretrial services, Mr. Stoltenberg; (3) the case agent on the counterfeit goods trafficking, Homeland Security Special Agent Boze; and (4) the case agent on the tax charge, IRS Special Agent Ripley. The Court heard the testimony of each witness, observed the demeanor of each witness, and asked clarifying questions when clarification was needed. After the conclusion of the hearing, the Court allowed each side an opportunity to file post-hearing briefs after the official transcript (#21) was made available. Respective counsel fully complied with such post-hearing requirements and filed timely briefs. The issues are now ripe for resolution.

         IV.

         Inasmuch as a number of petitioner's allegations cut across the contentions identified above, the Court will address those concerns first.

         Foremost among those concerns is petitioner's claim that his plea was unknowing because neither his attorney nor this Court provided him with an Arabic/English interpreter. The Court notes from the outset that at no point did petitioner raise language concerns with any of the three judges who addressed him in the underlying criminal proceedings. Indeed, no judge, including the undersigned, perceived any difficulty in communicating with petitioner. At the sentencing hearing, petitioner was provided with an opportunity to allocate, and he said the following:

Good morning, Your Honor. In 2010 police officer come to my house. They try to search my house. I cooperate with them. Whatever they asked me, I answer. They ask me if I know the suppliers. I took them to three places where all the supplies -- where they supply the goods and they know that, what it is. And this is why -- we buy the merchandise from the Chinese people and they have warehouses. Sometimes they change their warehouses, but we go buy from them wherever they go. This is all the suppliers I have. I don't have no information I hidden from them. If I help -- also I couldn't help because they ask me if you know somebody. I tell them no, this is all I have. And they ask me if you know some people get merchandise from China. No, I don't know because I buy my merchandise from those people. This is all I know. I am being told that but they don't believe me. This is all I could say about this. And I make a mistake. Okay. I should be punished for that. But to me it's no problem. I could be punished, but about my family. That is all.

Nasrallah (#36) S.Tr. at 20-21. The Court had no problem understanding petitioner at the time of sentencing and the Court perceived no problem on petitioner's part in understanding the Court inasmuch as he appropriately answered the Court's preliminary inquiries. See id. at pp. 2-5. While petitioner brought his own interpreter to the evidentiary hearing in addition to the interpreter hired by the Court, it was readily apparent to the Court as the hearing progressed that petitioner's claim that he did not sufficiently understand English to make a knowing plea was untrue. Indeed, while petitioner leaned heavily on the interpreters during direct examination, during cross his ability to understand English improved markedly to the point where the interpreters were no longer used. In fact, petitioner responded quickly and appropriately (albeit sometimes evasively) to most questions asked by the government.

         Petitioner explained that his English language skills had improved after going to prison for a year and that he had taken an English language course in prison; however, the overwhelming evidence from everyone else who testified was that he had no problem communicating in English before he went to prison. Perhaps most compelling was the testimony from his former attorney, Mr. Verby, who testified that he perceived no problems in communicating with petitioner and that he would not have hesitated to employ an interpreter if he detected any inability on defendant's part to communicate in English. Mr. Verby testified that practicing law in New York involved clients who spoke a multitude of languages and that hiring interpreters was an everyday occurrence and that if one was needed, he would have hired one. The Court found Mr. Verby's testimony to be highly credible. Petitioner's credibility was further harmed when he testified that he could not understand the Southern accent of Judge Cayer who conducted the Rule 11, but could understand the undersigned's questions as sentencing because the undersigned talked slower. Based on the entirety of petitioner's testimony, the inconsistency of that testimony with the testimony of the other witnesses, the implausibility of his testimony, and his demeanor, the Court concludes that his claims of inability to understand written or spoken English are without merit.

         Second, in both his pleadings and his testimony, petitioner painted his former attorney, Mr. Verby, as incompetent and implied that he had abandoned him for months due to treatment for drug or alcohol addiction. In addition, he contended that his plea was involuntary as it was coerced by threats from law enforcement and ...


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