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Elgawhary v. United States

United States District Court, D. Maryland

January 11, 2018

ASEM M. ELGAWHARY
v.
UNITED STATES OF AMERICA Civil Action No. DKC 17-1762

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution is a motion to vacate sentence filed by Petitioner Asem Elgawhary (“Petitioner”). (ECF No. 87). For the following reasons, the motion to vacate will be denied.

         I. Background

         A. Factual Background

         Petitioner was an employee of Bechtel Corporation (“Bechtel”), a global corporation involved in engineering, construction, and project management. In 1993, Bechtel established a joint venture with the Egyptian government's electrical company, Egyptian Electricity Holding Company (“EEHC”), called Power Generation Engineering and Services Company (“PGESCo”). EEHC subcontracted with private companies to perform services on its behalf and PGESCo provided technical and management assistance in the engineering, design and construction of power projects, including for EEHC. PGESCo assisted EEHC in identifying possible subcontractors, soliciting bids and awarding contracts to perform work for EEHC. From 1996 to 2011, Petitioner was “assigned by Bechtel to be the General Manager at PGESCo. During that time, . . . [Petitioner] was employed by both Bechtel and PGESCo.” (ECF No. 64-1, at 1). His responsibilities included oversight of the competitive bidding process and assisting in selecting companies for subcontracting work. He had access to information about the bidding process and access to key decision makers at EEHC who had final responsibility for selecting the subcontractors.

         From 2003 until 2011, various companies paid Petitioner money “for the purpose of attempting to secure a competitive and unfair advantage in the bidding process.” (ECF No. 64-1, at 3). Petitioner received over $5, 000, 000 in payments. Petitioner concealed all information about these payments from his employers. Petitioner also conspired to move the money he obtained from these payments through financial institutions to “disguise the nature and source of the funds.” (Id. at 5). To cover-up the source of the payments further, Petitioner told employees of the Internal Revenue Service that the money he deposited into his savings accounts were from foreign relatives and not from companies bidding on contracts with his employers.

         On December 4, 2014, Petitioner pled guilty to mail fraud, conspiracy to launder money, and interference with the administration of the Internal Revenue laws and was sentenced to 42 months imprisonment, followed by one year of supervised release.

         B. Procedural History

         On June 26, 2017, Petitioner filed a motion to vacate sentence. Petitioner argued that after the decision of the Supreme Court of the United States in McDonnell v. United States, 136 S.Ct. 2355 (2016), the conduct Petitioner pled guilty to no longer constituted a crime. (ECF No. 87, at 8). Accordingly, Petitioner challenged the validity of his plea. The Government responded, (ECF No. 98), and Petitioner replied. (ECF No. 101).

         II. Cause & Prejudice Exception to Procedural Default A. Standard of Review

An issue may only be raised in a motion to vacate pursuant to 28 U.S.C. § 2255 if it has not been procedurally defaulted. If a claim could have been raised on direct appeal, and was not, the general rule is that “claims not raised on direct appeal may not be raised on collateral review[.]” Massaro v. United States, 538 U.S. 500, 504 (2003). “The Supreme Court has recognized an equitable exception to the bar, however, when a habeas applicant can demonstrate cause and prejudice[.]” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010). To demonstrate cause, the petitioner must show a reason for a procedural default based “on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). The petitioner must also demonstrate that he suffers “actual prejudice” if his claim is not reviewed. Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003).

         B. Analysis

         Petitioner's motion was filed well after the normal one year period for filing, but he claims that the motion is timely because it was filed within a year of the new rule of law announced in McDonnell. The Government concedes timeliness, but it argues that the motion to vacate is procedurally barred because Petitioner failed to raise the issue on direct appeal.

         Failing to raise an argument on direct appeal is excused, and the procedural bar removed, when, at the time of the plea, the argument was not reasonably available. An argument is reasonably available when counsel would have known of the issue and could advise whether a client's interest would be best served by making the argument or not. Reed v. Ross, 468 U.S. 1, 14 (1984). If a petitioner makes a “tactical decision to forgo a procedural opportunity - for instance an opportunity to object at trial or to raise an issue on appeal, ” then the petitioner cannot later show “cause” to excuse the procedural default. Id.

         In Bousley v. United States, 523 U.S. 614 (1998), a petitioner pled guilty to “using” a firearm in violation of 18 U.S.C. § 924(c)(1). After the guilty plea, the Supreme Court narrowed the conduct included under the definition of “use, ” and the petitioner filed a petition for a writ of habeas corpus arguing that his actions no longer fit the definition of “use.” The petitioner argued that “the legal basis for his claim was not reasonably available to counsel at the time his plea was entered” and therefore that his failure to raise the issue on appeal should be excused. Id. at 622. The Court concluded the argument was reasonably available because “at the time of [the] petitioner's plea, the Federal Reporters were replete with cases involving challenges to the notion that ‘use' is synonymous with mere ‘possession.'” Id. at 622-23.

         Here, Petitioner pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341. Petitioner contends that the argument that the conduct the Government identified did not constitute official acts performed in exchange for specific benefits was not reasonably available. (ECF No. ...


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