United States v. Alquzah, 3:11–cr–0373–FDW–DSK.
| Decision Date | 13 March 2015 |
| Docket Number | No. 3:11–cr–0373–FDW–DSK.,3:11–cr–0373–FDW–DSK. |
| Citation | 91 F.Supp.3d 818 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | UNITED STATES of America, Plaintiff, v. Nasser Kamal ALQUZAH (10), Defendant. Petition of May S. Hassouneh. |
Michael E. Savage, William A. Brafford, U.S. Attorney's Office, Charlotte, NC, for Plaintiff.
THIS MATTER is before the Court on the Government's Motion to Dismiss the petition in part and for partial summary judgment (Doc. No. 549) as to properties which have been preliminarily forfeited in this case. Petitioner is Defendant's wife. Except for Petitioner's partial interests in two real properties located in Kentucky and in one bank account, the Government moved to dismiss her petition for lack of standing or, in the alternative, for summary judgment.
For the reasons which follow, the Government's motion for partial summary judgment is GRANTED.
Defendant was convicted at trial of conspiracy in violation of 18 U.S.C. § 371 to commit violations of 18 U.S.C. § 2314 () and § 2315 (), as well as money laundering conspiracy under 18 U.S.C. § 1956(h) and substantive money laundering crimes. The property consisted of cigarettes which were represented to be stolen as part of a “sting” operation by undercover law enforcement agents. See 18 U.S.C. § 21.
The following assets were listed in the Preliminary Order of Forfeiture (Nunc Pro Tunc) (the “Preliminary Order”) filed herein on February 10, 2014, (Doc. 446), and have been contested by Petitioner:
In addition, Petitioner has claimed certain other assets not listed in the Preliminary Order, which need not be addressed at this time.
For purposes of summary judgment, except as otherwise noted, the material facts appear from the record and are found primarily in (1) the Stipulations and Unopposed Representations for Forfeiture Hearing, which was filed on January 31, 2014, (Doc. 443–1), in connection with sentencing; (2) the Government's Memorandum in Support of the present motion (Doc. 550); and (3) the exhibits supporting these two documents. Petitioner has not denied or challenged these facts, and they are therefore undisputed.
Petitioner's name appears on the title document for only one of the assets, a jointly-held bank account, although she did sign a mortgage for the real property located at 1479 Boardwalk, Lexington, Kentucky.
The Boardwalk property (“Boardwalk”) was deeded to Defendant on January 24, 2006, and was refinanced on February 13, 2009. Regarding Boardwalk, the Government is seeking a partial summary judgment that would allow forfeiture of slightly more than two-thirds of the net equity value of this property, representing the approximate value of Defendant's interest. As a result of this forfeiture, the Government argues that the estimated value of Petitioner's interest, which is an inchoate dower interest under Kentucky law, would be released to her at the proper time. See 21 U.S.C. § 853(g) (). One such “other action,” is contemplated by 18 U.S.C. § 983(d)(5) (), even though § 983(d)(5) is not directly applicable to criminal forfeiture.
Similarly, the house at 337 Whitfield Drive, Lexington, Kentucky, (“Whitfield Drive”), is titled solely in the name of Defendant. However, Petitioner also appears to have an inchoate dower interest in this property under Kentucky law. Therefore, the Court will allow the Government to sell this property, with the value of Petitioner's interest to be paid to her from the net proceeds of the sale.
The First Federal Charleston xxxxxx8587 account is a joint account in the name of Defendant “or” Petitioner. It was opened on February 6, 2010, which was after the charged conspiracy began1 but before Defendant became involved.2 The amount seized was $3,289.52. No other person has filed a petition regarding this account.
As to the remaining assets, title is held in the name of one or more persons or entities other than Petitioner.
The First Federal Charleston (“FFC”) xxxxxx8483 account is held in the name of Rania, Inc., and associated with a Subway restaurant in South Carolina, identified as Subway 22320; the names of Defendant, Ali Alqaza, and Amer Quzah, but not Petitioner, appear on the signature card for this account, from which the sum of $1,755.93 was seized. Ali Alqaza and Amer Quzah have filed third-party petitions herein but have not asserted an interest in this account.
Similarly, the FFC xxxxxx1906 account is in the name of Dina, Inc., and associated with Subway 22598 as a restricted account (controlled by the Marshals Service) for funds transferred from FFC xxxxxx1782, the restaurant's operating account, which is also in the name of Dina, Inc. The names of Defendant, Ali Alqaza and Amer Quzah, but not Petitioner, appear on the signature card for FFC xxxxxx1782. The balance in this account on October 31, 2012, was $8,724.48. Quzah has filed a third-party petition to assert an interest in this account, which is pending, but Alqaza has not done so. More recently, according to the Government, the Marshals Service has reported that the account balance is $8,228.34, but additional rent and other Subway expenses may be paid out of this account until final resolution of all claims to this asset and the related restaurant.
The Wells Fargo xxxxxxxxx2464 account is titled solely in the name of Defendant. The amount seized was $213.69.
The real property located at 1609 Oakhurst Dr., Mt. Pleasant, South Carolina, (“Oakhurst Drive”), is titled solely in the name of Defendant. This house is or has been the residence of Defendant, Petitioner, and their children. It was appraised at $495,000.00 and is subject to a mortgage which is in default, with a reported recent balance of $392,356.75. The Government and the lender, CitiMortgage, Inc., have agreed to a settlement of the mortgage interest, which was filed on December 8, 2014 (Docs. 544 and 545). Under this settlement, any remaining net equity value following forfeiture and satisfaction of the mortgage will stand as a substitute res for the value of the property.
Petitioner also asserts an interest in the commercial property located at 3724 Covenant Road, Columbia, South Carolina, titled in the name of Kamal, LLC. Wells Fargo Bank N.A. commenced foreclosure on this property. The Government and Wells Fargo agreed that any net proceeds remaining after foreclosure would stand as a substitute res for that property. However, the Government has represented, and Petitioner has not disputed, that there was no upset bid, and therefore no proceeds are available either for forfeiture or for Petitioner. As a result of the foreclosure, therefore, both the forfeiture and Petitioner's alleged interest in this property are now moot.
The Wells Fargo xxxxxxxxx8779 account is in the name of Miriam Adam LLC and associated with Subway 12311, located at Dorchester Square Shopping Center, North Charleston, South Carolina. Defendant sold this Subway to Shady Moustafa in March 2001. See Doc. 443–1, at 6. Defendant and Shady Moustafa are listed as “owners” on a signature card for this account dated December 20, 2007, but Petitioner's name does not appear on the card. The amount seized was $8,236.88.
Petitioner states that she “has legal and possessory rights to much of the property listed on the Preliminary Order.” She alleges that she and Defendant were married in May 1997; that they have four children; that she is now the sole caregiver and provider for the children; that she “was in no way aware of” Defendant's criminal activity; that the seized accounts were both personal and business in nature and “belonged jointly” to her and Defendant; that all of the properties were acquired prior to “any allegation of criminal activity”; that the primary residence of Petitioner and the children is 1609 Oakhurst Drive, where “all of the tax bills and bank statements are sent”; that, “as Alquzah's spouse, Petitioner possesses a superior legal interest to the Government in any and all of the property and accounts seized”; and that, in the event of seizure and forfeiture, she “would be placed in dire straits and unable to provide for her family.” Further, she states on information and belief that, “while unable to produce at this time, Petitioner believes the Government has bank documentation reflecting her ownership and interest” in the seized bank accounts. Petition (Doc. 463) at 1–5.
To the extent that these allegations are factual in nature, they are either undisputed or, as explained infra, immaterial for purposes of summary judgment. Petitioner's broad statements regarding her joint ownership and superior interest in the property are legal conclusions. Her claim “on information and belief” that the Government has “bank documentation reflecting her ownership and interest in those accounts,” apparently referring to some of the seized accounts, remains unsupported ...
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