United States District Court, D. Maryland
ASEM M. ELGAWHARY
UNITED STATES OF AMERICA Civil Action No. DKC 17-1762
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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).
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).
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
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.
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.
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.