By Cate Berenato

In the published, criminal case United States v. Qazah, the Fourth Circuit affirmed the United States District Court for the Western District of North Carolina’s decision to convict Kamal Zaki Qazah and his uncle, Nazzer Kamal Aquza, of conspiracy and money laundering. The Fourth Circuit remanded the district court’s sentencing decisions.

During 2010 and 2011, Qazah conspired to purchase thousands of allegedly stolen Marlboro cigarettes from undercover agents. The agents said the cigarettes had been stolen from Philip Morris trucks in Virginia and Tennessee before being sold to convenience store operators and coconspirators in North and South Carolina. Alquza entered the conspiracy to launder the proceeds.

Law enforcement agents eventually arrested Qazah and Alquza and executed search warrants in their homes. Officers mistakenly attached a list of items to be seized from Qazah’s house to the warrant for Alquza’s house, despite having prepared two separate lists specific to each defendant’s home. The two lists included similar items but one specified Qazah home and the other specified Alquza home. The magistrate judge who approved the warrants reviewed via email the lists respective of each defendant, however she signed the hard copy of Alquza’s warrant to which the list for Qazah was mistakenly attached. Additionally, the officer who conducted the search of Alquza’s home based her search on a summary of the appropriate list. Prior to trial, Alquza moved to suppress the evidence based on the warrant with the mistaken attachment, but the district court denied the motion because the mistake was a clerical error and the officers behaved in good faith.

Additionally, Qazah stated at trial that he believed the cigarettes were counterfeit instead of stolen, causing the district court to charge him with perjury. A jury found Qazah and Alquza guilty of conspiring to transport stolen cigarettes across state lines, conspiring to commit money laundering, and money laundering. Qazah was also convicted of receiving cigarettes allegedly stolen in interstate commerce. The district court sentenced Qazah to 216 and Alquza to 108 months in prison. Both defendants objected to the sentencing because it was based on the retail value rather than the wholesale value of the cigarettes, but the district court rejected the argument.

Alquza challenged the district court’s denial of his motion to suppress and the evidentiary rulings made at trial. Qazah challenged the court’s denial of his motion to sever his trial from Alquza’s. Both defendants challenged their sentences.

The District Court’s Did Not Err in Denying Alquza’s Motion to Suppress

Alquza claimed that the search warrant for his home was not particular. He also claimed that the good faith exception should not apply to the erroneous attachment of the list that related to Qazah’s home because the magistrate was not neutral and the warrant was facially deficient. The Fourth Amendment requires that searches be based on warrants that particularly describe the place to be searched and persons or things to be seized. Evidence can be excluded if a magistrate abandoned her role or if the warrant is facially deficient. The exclusionary rule is meant to deter improper police conduct and does not apply if the officers acted in good faith. Here, the Fourth Circuit stated that the officers committed a technical error and the magistrate judge decided to sign the warrant based on an email containing the appropriate attachment. The warrant was not facially deficient because it correctly identified the place to be searched and included a list of many of the items to be seized. Additionally, the officer who conducted the search based the search on a summary of the correct version of the warrant. Excluding the evidence in this case would not deter the police because their mistake was based on simple negligence rather than willful wrongdoing.

The District Court Must Reconsider the Sentencing

 Defendants stated that the district court should have based the sentences on the wholesale value of the allegedly stolen cigarettes rather than their retail value. The district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to determine that the sentences should be based on retail value. The offense level should have been determined based on the actual loss or intended loss, according to U.S.S.G. § 2B1.1(b)(1). Loss is determined by the loss to the victim or intended victim of the offense. Here, the victim was likely Philip Morris, the cigarette manufacturer. The state and the legitimate retailers of cigarettes could also have been victims. The Fourth Circuit vacated and remanded the sentencing decision to the district court to determine the victims and their losses.

 The District Court Did Not Err In Making Other Trial and Sentencing Rulings

Alquza contended that the district court abused its discretion when it allowed the government to present evidence of statements he made to undercover officers and evidence of false identification documents found in his home. Federal Rule of Evidence 404(b)(1) states that evidence about a defendant’s character may be admissible to prove “motive, opportunity, intent,” etc. Thus, the district court acted within its discretion.

Alquza claimed that the district court abused its discretion when it allowed the government to present evidence that Alquza sent money overseas. He claimed this was highly prejudicial and irrelevant evidence. However, Alquza’s own attorney brought this evidence in when he asked an undercover officer about it.

Qazah claimed that the district court abused its discretion when it denied his motion to sever his trial from Alquza’s. Qazah said that evidence about Alquza cast Qazah in a bad light. Federal Rule of Criminal Procedure 14 states that courts should grant severance only if there is a risk that a joint trial would compromise a trial right of a defendant or if the jury would not be able to make a reliable judgment. The Fourth Circuit stated that Qazah proved neither of those requirements.

Qazah also claimed that the district court erred during sentencing when it enhanced his sentence because he committed perjury. To apply the enhancement, the district court needed to find facts that Qazah gave false testimony concerning a material matter with intent to deceive. Here, the district court did find that Qazah knew that the cigarettes were stolen. The central issue for the jurors was whether Qazah thought he was handling counterfeit or stolen cigarettes. Qazah also “categorically denied” knowing that the cigarettes were stolen.

Finally, both defendants claimed that the sentences were unreasonable. However, based on various factors, the district court reasonably selected sentences.

 Disposition

The Fourth Circuit affirmed the defendants’ convictions but vacated their sentences. The Court remanded to the district court to reevaluate sentencing.

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