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Case: 1:14-cv-05617 Document #: 20 Filed: 08/26/15 Page 1 of 6 PageID #:244

UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATE OF AMERICA,

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Plaintiff,
v.
ENAAM M. ARNAOUT,
Defendant.

Case No. 14-cv-5617


Judge Joan B. Gottschall

ORDER
Plaintiffs motion for judgment on the pleadings [16] is denied. Status set for September
25, 2015 at 9:30 a.m.

STATEMENT
A. BACKGROUND
In this action, the Government seeks to denaturalize defendant, Enaam M. Arnaout
(Arnaout), a native of Syria and U.S. citizen, on the basis of his guilty plea, docketed February
10, 2003. The Government contends that Arnaouts plea collaterally estops him from denying
that he engaged in criminal activity during the pendency of his application for naturalization, and
that such criminal activity mandates his denaturalization. Before analyzing this contention, the
court briefly summarizes the pertinent allegations in the Governments complaint.
1. Arnaouts Naturalization
Arnaout entered the United States on June 20, 1990 and applied for naturalization with
the Immigration and Naturalization Service (INS) on April 8, 1993. Arnaout signed his
application form, INS Form N-400, under the penalty of perjury that the information he provided
was true and correct. Among the questions Arnaout answered in the negative included whether
he had ever knowingly committed any crime for which he had not been arrested. On September
8, 1993, an INS officer interviewed Arnaout under oath regarding his naturalization application.
The INS approved Arnaouts application on November 1, 1993. Arnaout became a U.S. citizen
on March 10, 1994, when he took the Oath of Allegiance to the United States and received a
Certificate of Naturalization.
2. Arnaouts Criminal Plea

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On January 22, 2003, the United States indicted Arnaout for, among other offenses,
engaging in a conspiracy to commit racketeering in violation of 18 U.S.C. 1962(d) between
1992 and May 2002. Arnaout pled guilty to this count, Count I, of his second superseding
indictment on February 10, 2003. Both the written plea agreement and the Governments oral
presentation at Arnaouts plea allocution summarized the evidence that supported the agreement.
Arnaouts written plea provided:
Defendant admits that beginning in or about 1993 and continuing to in or about
May 2002, in Palos Hills, Worth, and other locations in the Northern District of
Illinois, Eastern Division, and elsewhere, defendant, being employed by and
associated with an enterprise, namely Benevolence International Foundation, Inc.
and its affiliated overseas offices, . . . did conspire with others to conduct and
participate, directly and indirectly, in the conduct of the affairs of the enterprise
through a pattern of racketeering activity. . . .
Specifically, defendant admits that in 1992, Adel Batterjee and others
incorporated Benevolence International Foundation, Inc. (BIF) in Illinois. In or
about March 1993, BIF received status as a tax-exempt organization from the
Internal Revenue Service. Beginning in or about May 1993, defendant was
responsible for and directed BIFs operations in the United States.
Defendant admits that starting in May 1993, BIF solicited donations from the
public by purporting that BIF and its related overseas offices was a charitable
organization involved solely in humanitarian work for the benefit of civilian
populations, including refugees and orphans, with a small amount being used for
administrative expenses. Defendant admits that he and others agreed to conceal
from donors, potential donors, and federal and state governments in the United
States that a material portion of the donations received by BIF based on BIFs
misleading representations was being used to support fighters overseas.
Defendant admits that the support he and others agreed to provide included: boots
intended for ultimate use by fighters in Chechnya; and boots, tents, uniforms, and
an ambulance intended for ultimate use by soldiers in Bosnia-Herzegovina.
Defendant further admits that he used donor funds to purchase uniforms for a
department of a provisional but unrecognized government in Chechnya despite
representations otherwise to donors.
Defendant admits that he and others agreed to use the United States Mails to
distribute from Palos Hills, Illinois the multiple, misleading solicitations
described above, and to cause the use of the United States Mails to receive
donations from misled donors.
See Plea Agreement at 2-4, ECF No. 16-1 (emphasis added).
Counsel for the Government commented on this information at the plea allocution,
stating that:

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If the case proceeded to trial, the government would present witness testimony
and documents demonstrating that beginning in or about 1993 and continuing to
in or about May 2002 . . . this defendant, being employed by and associated with
an enterprise, namely the Benevolence International Foundation, Incorporated,
and its affiliated overseas offices which engaged in and the activities of which
affected interstate and foreign commerce did conspire with others to conduct and
participate, directly and indirectly, in the conduct of the affairs of the enterprise
through a pattern of racketeering activity. . . .
See 02/10/03 Transcript of Proceedings at 17:24-18:20, ECF No. 18-1 (Plea Allocution Tr.)
(emphasis added).
The court entered a conviction against Arnaout on February 10, 2003. On August 18,
2003, the court subsequently found Arnaout guilty of an offense under 18 U.S.C. 1962(d) and
sentenced him to 136 months imprisonment. On February 17, 2006, the court resentenced him to
120 months imprisonment.
B. LEGAL STANDARD
1. Rule 12(c)
In ruling on a motion for judgment on the pleadings pursuant to Rule 12(c), when the
movant seeks to dispose of the case on the basis of the underlying substantive merits . . . . the
appropriate standard is that applicable to summary judgment, except that the court may consider
only the contents of the pleadings. Alexander v. City of Chi., 994 F.2d 333, 336 (7th Cir. 1993).
The pleadings include the complaint, the answer, and any documents attached as exhibits, such
as affidavits, letters, and contracts. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163
F.3d 449, 452-53 (7th Cir. 1998). The court may also take judicial notice of documents that are
critical to the complaint and referred to in it. Geinosky v. City of Chi., 675 F.3d 743, 745 n.1
(7th Cir. 2012). The court should grant a Rule 12(c) motion for judgment on the pleadings only if
no genuine issues of material fact remain to be resolved and the movant is entitled to
judgment as a matter of law. Alexander, 994 F.2d at 336.
2. The Immigration and Nationality Act
To prevail in a denaturalization proceeding, the Government must prove its charges by
clear, unequivocal and convincing evidence which does not leave the issue in doubt. Klapprott
v. United States, 335 U.S. 601, 612 (1949). Under 8 U.S.C. 1451(a), the Government may
seek denaturalization if a naturalized citizen either (1) illegally procured naturalization, or
(2) procured naturalization by concealing a material fact or by willful misrepresentation.
Naturalization is illegally procured if any statutory requirement is not met at the time
naturalization is granted. United States v. Kairys, 782 F.2d 1374, 1376 n.1 (7th Cir. 1986)
(citing Fedorenko v. United States, 449 U.S. 490, 506 (1981)). Naturalization is procured by
concealment or willful misrepresentation if four independent requirements are satisfied: the
naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or
concealment must have been willful, the fact must have been material, and the naturalized citizen
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must have procured citizenship as a result of the misrepresentation or concealment. Kungys v.


United States, 485 U.S. 759, 767 (1988). [D]istrict courts lack equitable discretion to refrain
from entering a judgment of denaturalization against a naturalized citizen whose citizenship was
procured illegally or by willful misrepresentation of material facts. Fedorenko, 449 U.S. at 517.
C. DISCUSSION
8 U.S.C. 1427(a) proscribes the naturalization of an individual unless he or she during
all the periods referred to in this subsection has been and still is a person of good moral
character. . . . The statutorily prescribed period for good moral character includes the period
between the examination and the administration of the oath of allegiance. 8 C.F.R. 316.10.
Here, the statutory period that applied to Arnaout began on April 8, 1988, five years
before he submitted his application for naturalization, and ran to March 10, 1994, the date he was
naturalized (the statutory period). The Government argues that Arnaouts plea proves that he
engaged in criminal conduct during the statutory period that would have precluded him from
proving his good moral character.
Critically, Arnaout does not dispute that he conspired to conduct the affairs of an
enterprise through a pattern of racketeering in violation of Section 1962(d). See Arnaouts
Resp. at 3, ECF No. 18 (citing Plea Allocution Tr. at 18-19). Instead, Arnaout argues that his
plea agreement did not definitively confirm when he joined the conspiracy. Arnaout further
contends that the Government failed to demonstrate that he is collaterally estopped from
litigating the date on which he entered the conspiracy.
The Government insists that Arnaout relinquished his right to challenge the conspiracy
when he pled guilty. (Mot. at 6, ECF No. 16) (citing United States v. Tolson, 988 F.2d 1494,
1500 (7th Cir. 1993)). Even if the Government is correctand Arnaout is barred from
contradicting the admissions he made in his pleathe court still could not grant the
Governments motion for judgment on the pleadings because Arnaouts plea does not clearly and
convincingly identify when he joined conspiracy.1 The plain language of the plea agreement is
1

In the Seventh Circuit, a guilty plea in a criminal case can be used to establish collateral
estoppel in a later civil action. See United States v. 10652 S. Laramie, Oak Lawn, Ill., 774 F.
Supp. 518, 520 (N.D. Ill. 1991) (10652 S. Laramie) (citing Appley v. West, 832 F.2d 1021,
1026 (7th Cir.1987) (emphasis added)). As the party asserting estoppel, however, the
Government bears the burden of showing that 1) the party against whom estoppel is asserted
was a party to the earlier proceeding, 2) the issue was actually litigated and decided on the
merits, 3) the resolution of the particular issue was necessary to the result, and 4) the issues are
identical. Appley, 832 F.2d at 1025.
Here, Arnaout argues that the Government has failed to meet its burden because the court
neither determined when he entered into the conspiracy nor needed to make such a determination
in order to find him guilty of violating Section 1962(d). See United States v. Tello, 687 F.3d
785, 794 (7th Cir. 2012) (For an indictment to adequately set forth the elements of a
racketeering conspiracy, it need only chargeafter identifying a proper enterprise and the
defendants association with that enterprisethat the defendant knowingly joined a conspiracy,
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expressly inconclusive as to when Arnaout joined the conspiracy. It states that Arnaout
conspire[d] with others to commit racketeering in or about 1993. . . . See Plea Agreement at
2-3 (emphasis added).
This rough approximation of a year is not clear and convincing evidence that Arnaout
embraced the criminal objective of the conspiracy before or during the pendency of his
naturalization application. Likewise, Arnaouts other admissions in his plea agreement shed no
light on when he agreed to join the conspiracy. The plea is silent regarding, inter alia, when
Arnaout (1) agreed to provide . . . boots, tents, uniforms, and an ambulance to soldiers in
Bosnia-Herzegovina, (2) used donor funds to purchase uniforms for a department of a
provisional but unrecognized government in Chechnya, and (3) agreed to use the United States
Mails to distribute . . . the multiple misleading solicitations to obtain donations from donors.
See Plea Agreement at 2-4. At most, the plea verifies that Arnaout became associated with BIF
in or about May 1993, but associating with an enterpriseeven if the Government could prove
Arnaouts association with BIF began in May 1993is distinct from knowingly join[ing] a
conspiracy, the objective of which was to operate that enterprise through a pattern of
racketeering activity. Tello, 687 F.3d at 794. Although Arnaout admitted that BIF misled
donors as early as May 1993, he did not admit that he had joined the conspiracy by that time.
At the plea allocution, the Government similarly estimated the year in which Arnaout
joined the conspiracy. The Government forecasted that, If the case proceeded to trial, [it] would
present witness testimony and documents demonstrating that beginning in or about 1993 and
continuing to in or about May 2002, Arnaout conspired in the conduct of the affairs of the
enterprise through a pattern of racketeering activity. . . . Plea Allocution Tr. 17:24-18:20
the objective of which was to operate that enterprise through a pattern of racketeering activity.);
see also Appley, 832 F.2d at 1026 (We cannot say, after reviewing the transcripts of the plea
hearing and the sentencing hearing, that the issue of the amount of Ms. Appleys injury from Mr.
Wests acts was actually litigated and decided on the merits and that the amount of the injury
was necessary to the guilty plea. Collateral estoppel should not be applied when to do so would
work an unfairness on the party to be bound.); 10652 S. Laramie, 774 F. Supp. at 521 (noting
that the defendant for made a valid argument that collateral estoppel did not work to prevent
him from litigating a factual admission in his plea in a subsequent civil suit).
The Government, for its part, offered no analysis in its motion regarding whether the
elements of issue preclusion are met. Only in its reply memorandum did the Government
meaningfully address the applicability of issue preclusion to Arnaouts plea agreement. As a
result of the Governments strategy, Arnaout was deprived the opportunity to respond to the
Governments arguments as to why issue preclusion bars him from contesting that he agreed to
commit a prohibited act under 18 U.S.C. 1962 while his naturalization application was
pending.
Because the Government withheld its grounds for invoking issue preclusion, it would
prejudicial at this juncture to bar Arnaout from litigating the date when he joined the conspiracy.
Moreover, it is ultimately irrelevant whether issue preclusion applies to Arnaouts factual
admissions because none of the admissions conclusively establishes when he agreed to further
the conspiracy.
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(emphasis added). Absent from the Governments summary of the evidence were any dates that
informed the court when Arnaout engaged in an act for which the Government now seeks to
denaturalize him.
The Government argues in its reply brief that, even if no evidence shows Arnaout
committed unlawful acts during the statutory period, he remains liable for the conduct of [his
co-conspirators] from the beginning of the conspiracy, which predated and thus overlapped
with the statutory period of Arnaouts naturalization application. Reply at 9, ECF No. 19 (citing
Arnaouts Rep. and United States v. Covelli, 738 F.2d 847, 859 n.16 (7th Cir. 1984)). The
Government, however, cites no authority that suggests it can denaturalize a citizen for an act that
another person committed in furtherance of a conspiracy during the citizens statutory period,
when there is no evidence that the citizen (then an applicant) had joined the conspiracy by the
time the act was committed. Indeed, this proposition is inconsistent with a statement of law the
Government advances in its motion. The Government asserts that 8 U.S.C. 110(f)(1)-(8)
precludes an individual from showing the requisite good moral character if: (1) he committed a
[crime involving moral turpitude]; (2) during the statutory period; and (3) he was convicted of,
or admits committing, that [crime]. Mot. at 8 (emphasis added). The court agrees that, to strip
Arnaout of his citizenship, the Government must show by clear and convincing evidence that he
entered into a conspiracy during the statutory period. Because the government has not met its
burden of proof, its motion for judgment on the pleadings is denied.
D. CONCLUSION
For the reasons set forth herein, the Governments motion for judgment on the pleadings
is denied. Status set for September 25, 2015 at 9:30 a.m.
ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: August 26, 2015