Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEVIN M. RAPP Assistant U.S. Attorney Arizona State Bar No. 014249 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-261-PHX-FJM Plaintiff, v. Ibrahim Hassan Elrawy, Defendant. Comes now the government, by and through undersigned counsel, on behalf of the United GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRE-SENTENCE REPORT AND SENTENCING RECOMMENDATION

15 States, and hereby responds to the Defendant's Objection to the Pre-Sentence Report and 16 provides a sentencing recommendation. 17 This motion is based on the attached memorandum of Points and Authorities, the files and 18 records of this case, and on such further argument and evidence as may be adduced at 19 sentencing. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///

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MEMORANDUM OF POINTS AND AUTHORITIES GOVERNMENT'S RESPONSE TO DEFENSE OBJECTIONS TO PRESENTENCE REPORT ("PSR"). A. Relief Status

4 1. ¶ 11 5 The defense argues that Elrawy should receive credit for the time that he has been in 6 custody since September 17, 2003. However, Elrawy is not entitled to this credit. The 7 Bureau of Prisons has sole authority to make credit determinations and District Courts do not 8 have authority to order the Bureau of Prisons to grant or deny credit. The United States v. 9 Wilson, 503 U.S. 329, 334-5, 1992; See also United States v. Moore, 54 F. Appx. 632, 633, 10 11 Southern District of Texas since September 17, 2003. But the time period that he has been in 12 custody has been credited against another sentence, and therefore, cannot be credited against 13 14 Accordingly, this objection should be overruled. 15 B. The Offense Conduct 16 1. ¶ 6 17 Like the other trial defendants, Elrawy objects to the characterization that there 18 existed a network of businesses owned and operated by foreign nationals or naturalized U.S. 19 citizens, of Middle Eastern descent, who were engaged in the trafficking of stolen infant 20 formula. At trial, the testimony of Osamah Yacoub, Tarek Awad, Abdelsalam Abdelsalam, 21 Shariff Hamdan and Tamer Swailem detailed that those who were at the top tier of organized 22 shoplifting generally were of Middle Eastern descent. Attached as Exhibit A are a number of 23 newspaper articles that detail the investigations of organized infant formula shoplifting of 24 numerous individuals across the United States -- many with Middle Eastern surnames. It is 25 true, however, that there was evidence that at the shoplifting level Hispanics and Caucasians 26 27 28
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Ninth Cir. Ct. 2002 (9th Cir. 2002). Here, Elrawy has been in custody on a writ from the

the sentence that will likely be imposed for this case. See 18 U.S.C. § 3585(b)(2) 1/ .

See PSR ¶s 3 and 30.
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1 were also involved. The government leaves this amendment of the PSR to the discretion of 2 the court. 3 Lastly, the defendant maintains his innocence to the charges, noting that he is a

4 legitimate businessman. The evidence at trial was to the contrary. Specifically, Ricky 5 Garcia ("Garcia"), Marlon Rodriguez ("Rodriguez") and Osama Yacoub ("Yacoub") testified 6 that Elrawy was engaged in the organized theft and resale of infant formula. The PSR should 7 remain unchanged with respect to Elrawy's involvement in the criminal activity. 8 The defense argues that the business relationship between Elrawy and Samih Jamal

9 ("Jamal") is misleading in the PSR. The defense attempts to minimize the business 10 relationship between Elrawy and Jamal by suggesting that the contract between Jamal, 11 Hamzaoui and Elrawy was simply for "any merchandise" not necessarily limited to infant 12 formula. However, Hamzaoui has cooperated with the government and advised investigating 13 agents that the merchandise referred strictly to infant formula. (See Exhibit B; FBI 14 Investigative Report.) The contract resulted in Elrawy being paid $150,000 to act as a 15 supplier to Jamal and Hamzaoui of infant formula. The infant formula in the Houston, Texas 16 area was almost entirely stolen and, therefore, Elrawy was in a good position to provide 17 cheap infant formula. According to Hamzaoui, Elrawy provided three shipments of formula. 18 Contrary to the assertion of defense counsel, Elrawy had more than a limited

19 relationship with Jamal. In addition to the contract he also did a transaction that resulted in a 20 payment from Jamal to Elrawy in the amount of $26,000. Additionally, it was--according to 21 Yacoub--Elrawy who stole a truckload of infant formula from Jamal. (See Exhibit C; RT 22 Pgs. 68-70). 23 Elrawy further objects to the suggestion that he paid large amounts of money to

24 shoplifters in Texas to steal formula. He maintains that he was a legitimate businessman and 25 never directed anybody to steal formula. This argument is not supported by the testimony at 26 trial. Again, the testimony from Garcia and Rodriguez-- both burglarized warehouses on 27 behalf of Elrawy­testified that they observed Elrawy directing individuals to steal formula. 28
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Moreover, the payment receipts for infant formula from Elrawy to individuals

2 supplying him formula demonstrated that he was paying them $5 per can. The government's 3 theory at trial and apparently embraced by the jury was that $5 was so absurdly below the 4 retail price of formula that one would know that it was stolen. 5 Additionally, the defense maintains that Rodriguez' testimony was false and

6 motivated by self interest. However, the defense is unable to demonstrate anything that 7 would suggest that Rodriguez was receiving a benefit for his testimony as he had already 8 been sentenced and was expected to be released. In the final analysis, Elrawy does not 9 accept responsibility for his criminal activity and the jury verdict demonstrates that he is 10 guilty beyond a reasonable doubt. 11 12 2. ¶ 15 The defense again argues that he did not conspire to commit interstate transportation

13 or receipt of stolen property in the amount of $4,213, 560. However, the government 14 presented substantial evidence that Elrawy was involved in the conspiracy and the jury found 15 him guilty of his criminal activity. And, the government presented evidence that the 16 defendant paid out in excess of $4,000,000 to shoplifters. Although at trial Elrawy did not 17 have to put on a defense. But he has failed to rebut any of the government's evidence for 18 sentencing. Accordingly, Elrawy should be held accountable for a loss amount exceeding 19 $4,000,000. 20 21 3. ¶ 20 Base Offense Level Based on the arguments set forth above, the defendant again has failed to present any

22 evidence that would rebut a finding that the loss amount exceeded $4,000,000. 23 The defense further argues that the offense for which Elrawy was convicted was not

24 sophisticated pursuant to U.S.S.G. § 2B1.1b(9)(C). But here, the scheme was clearly 25 sophisticated in nature. First, it involved multiple districts and states. And, even the 26 shoplifting of the formula employed a scheme of identifying an inexperienced cashier and 27 then misrepresenting the number of cans in the grocery cart, to obtain a portion by theft. 28
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1 Additionally, the use of fraudulent receipts that reflected a price that did not exist and 2 seeking a price match was sophisticated in nature. While each instance of such conduct by 3 itself may not be duly complex, the repetitive nature of it allows a finding of sophistication. 4 United States v. Kopietz, 126 F.Appx. 708, 711 (6th Cir. 2005). Accordingly, the defendant's 5 criminal activity warrants a two level increase for sophistication. 6 7 4. ¶ 21 Specific Offense Characteristic The defendant objects to an increase or an upward adjustment pursuant to 18 U.S.C. §

8 1956. Here, Elrawy was convicted of a conspiracy to commit money laundering pursuant to 9 § 1956. The jury found that Elrawy used the proceeds of Interstate Transportation of Stolen 10 Property to purchase additional quantities of stolen infant formula. As a result, he is subject 11 to a two level increase pursuant to U.S.S.G. § 2S1.1(b)(2)(B). 12 13 5. ¶ 23 Adjustments for Role in the Offense The defendant objects to a two level increase for his role as a manager or supervisor in

14 the criminal activity. His only argument in opposition to this increase is that he was a 15 legitimate business man conducting legitimate business transactions. But again, the evidence 16 at trial supports the two level increase in his adjusted offense level. Elrawy directed both 17 Garcia and Rodriguez to commit criminal acts; including the theft of $60,000 worth of 18 formula from a warehouse. Also, there was evidence that Elrawy directed Garcia to 19 transport and deliver a truckload of infant formula to Tempe, Arizona, in 1997. Lastly, and 20 more significant, there was substantial evidence that Elrawy was directing shoplifters on how 21 to steal infant formula. As a result, he was a manger and/or a supervisor in the criminal 22 activity. A two level increase pursuant to § 3B1.1B is warranted. 23 24 6. ¶ 26 Adjusted Offense Level The defendant has failed to accept responsibility for his criminal activity and therefore

25 he is not eligible for a three level decrease in his adjusted offense level. 26 // 27 // 28
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7. ¶ 27 Total Offense Level The PSR has correctly calculated the defendant's adjusted offense level as 33 in a

3 criminal history category II with a guideline range of 151-188 months. 4 5 6 C. The Defendant's Criminal History 1. ¶ 32 Other Criminal Conduct The defense objects to the characterization of other criminal conduct that includes

7 his criminal activity with Garcia. Because the jury found the defendant guilty it is clear that 8 they believed the testimony of both Garcia and Rodriguez that Elrawy was involved in other 9 criminal activity. This other criminal activity included thefts from warehouses to obtain 10 stolen products other than infant formula. 11 12 2. ¶ 34 Pending Charges The defendant is facing additional criminal charges arising from his involvement in

13 burglarizing warehouses in Texas. Those charges are detailed in PSR paragraphs 32 and 33. 14 At the conclusion of the proceedings in Arizona, Elrawy will be extradited to Texas to stand 15 trial on those charges. 16 17 18 D. Offender Characteristics 1. ¶ 40 The defendant maintains that his first marriage was not fraudulent and for the

19 purposes for gaining legal resident alien status in the United States. Although this does not 20 necessarily change the applicable guideline level, upon information and belief, the defendant 21 did marry Laura Lewis in order to gain legal resident status in the United States. (See 22 Exhibit D.) 23 // 24 // 25 // 26 // 27 // 28
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Conclusion Based on the foregoing, the government recommends a sentence of 188 months.

Respectfully submitted this ______ day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ Kevin M. Rapp KEVIN M. RAPP Assistant U.S. Attorney

11 CERTIFICATE OF SERVICE 12 13 14
Dwane Maxwell Cates

:

I hereby certify that on __10/4/05_, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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Clark L Derrick Patricia Ann Gitre Rena Pauline Glitsos Thomas E Haney Nancy L Hinchcliffe Richard L Juarez Robert J Kavanagh Lawrence I Kazan George F Klink David L Lockhart David M Ochoa Jose S Padilla Mark A Paige Kevin M Rapp Philip A Seplow Robert Storrs Loyd C Tate

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Marc Jeffrey Victor Robert J Weber Antonio Rodriguez Zuniga

:

I hereby certify that on _10/4/05_, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System:

5 Andrew R Alex 6 1717 E Bell Rd., Ste 1 7
Phoenix, AZ 85022-6200 Eugene Gerald Iredale Doherty & Alex

8 Law Offices of Eugene Iredale 9 San Diego, CA 92101 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
8 105 W F St., 4th Floor S/ Lea R. Lucy LEA R. LUCY

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**Note Certificate is applied to the last page**
I hereby certify that on ______________, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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S/

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** IF NEEDED**
I hereby certify that on _____________, I served the attached document by ________________________________ (insert service method: mail, courier, in-person delivery) on the following, who are not registered participants of the CM/ECF system:

3
S/

3

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. ORDER CR-3

3,
Defendant3. Pursuant to the foregoing motion, and good cause appearing, IT IS HEREBY ORDERED 3 Excludable delay under 18 U.S.C. § 3161(h)____ is found to commence on ____________________________ for a total of ___________ days. Dated this ____________ day of ____________________________, 20 ___.

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