United States v. Jammal

• Decision Date: 09 February 2015
• Docket Number: Civil Action No. 3:12–7925.
• Parties: UNITED STATES of America, Plaintiff, v. Samih Fadl JAMMAL, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

90 F.Supp.3d 618

UNITED STATES of America, Plaintiff

v.Samih Fadl JAMMAL, Defendant.

Civil Action No. 3:12–7925.

United States District Court, S.D. West Virginia.

Signed Feb. 9, 2015.

Jacob Max Weintraub, U.S. Department of Justice, Jessica A. Dawgert, U.S. Department of Justice Ben Franklin Station, Washington, DC, John Fulton Gianola, United States Attorney's Office, Charleston, WV, for Plaintiff.

Raymond A. Nolan, Nolan Law Firm, Huntington, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

Pending before the Court is Plaintiff United States of America's Motion for Summary Judgment, filed July 21, 2014. ECF No. 24. Plaintiff contends that Defendant Jammal was ineligible to naturalize as a United States citizen, and based on the material, undisputed facts in the record, it is entitled to judgment as a matter of law. For reasons explained below, Plaintiff's motion is GRANTED.

I. FACTUAL BACKGROUND

This dispute concerns Defendant's naturalization as a United States citizen. According to Plaintiff's Complaint, and undisputed by Defendant, Samih Fadl Jammal was born in and a citizen of Lebanon. Jammal first came to the United States in January 1992. Having married a United States citizen in March 1992, by October 1992, Jammal's status was adjusted to lawful permanent resident.

In August 1994, Jammal was invited to participate in an infant formula repackaging business involving other individuals and Lexington Wholesale Company, Inc. (“Lexington Wholesale”). Factual Basis for Guilty Plea, Def. Ex. A, ECF No. 24–2 at 3 (hereinafter “Factual Basis”). Shortly thereafter, he began repackaging infant formula on behalf of Lexington Wholesale. Id. at 4. For that purpose, Defendant Jammal operated through Jammal & Misbah Trading Company (as co-owner) and Jammal Trading Company (as sole-proprietor). Id. The principal place of business for both companies was located at 1210 West Alameda Drive, Suite 103, Tempe, Arizona. Id.

Through these businesses, Defendant arranged the acquisition of loose cans of infant formula from retail outlets. Id. The infant formula was later repackaged “in cases designed to look virtually identical to the cases used by infant formula manufacturers” and sold to Lexington Wholesale. Id. These cases were provided by Lexington Wholesale and Rocky Mountain General Wholesale, Inc. (“Rocky Mountain”) and “bore the various trademarks used by the manufacturers, such as product names and designs.” Id. According to Defendant, he believed at that time that Lexington Wholesale had permission from the manufacturers to create identical packaging. Aff. of Samih Fadl Jammal, ECF No. 6–1 (hereinafter “Def.'s Aff.”). Some of these cases were already marked with a date on the outside of the case, and Jammal or his agents added such a date to the outside of cases that did not already bear one. Factual Basis, ECF No. 24–2. With respect to these dates, Jammal explained:

I knew that this date was supposed to represent the “use by” or expiration date of the cans contained within the cases. I was aware that the infant formula manufacturers placed a “use by” date (also known as an expiration date) on each can of infant formula that they manufactured. I was also aware that infant formula manufacturers placed a “use by” or expiration date on the outside of each case packed with cans of infant formula.... The manufacturers placed only cans bearing the same expiration date in a given case and placed that “use by” or expiration date on the outside of the case to allow distributors and purchasers of cases of infant formula to verify at a glance the current shelf life of the product.

Unlike the infant formula manufacturers, I did not sort cans of infant formula by “use by” or expiration date and place only cans bearing the same date in a single case. As a result, the “use by” or expiration date that appeared on the outside of each case did not accurately reflect the “use by” or expiration date appearing on each individual can of infant formula in the case.

Id. at 5–6. Between October 1994 and February 1995, Lexington Wholesale paid Defendant approximately $1,725,394 “for repackaging infant formula in Arizona on their behalf” as described above. Id. at 4.

On March 1–2, 1995, federal agents seized repackaged infant formula from Lexington Wholesale. Id. at 6. Immediately thereafter, on or about March 3, 1995, Defendant moved repackaged infant formula stored on behalf of Lexington Wholesale from States Warehouse, Inc. in Phoenix, Arizona, to Total Warehouse, Inc., also in Phoenix, Arizona.Id. Shortly thereafter, on the suggestion of the individual that had originally invited Defendant's participation in the scheme, Defendant transported repackaged infant formula from Total Warehouse, Inc. to Rocky Mountain General Wholesale in Denver, Colorado. Id. at 6–7. Defendant arrived at Rocky Mountain General Wholesale on March 18, 1995, but the truck loaded with repackaged infant formula was not unloaded because federal agents were then executing a search warrant at the premises. Id. at 7–8.

On March 20, 1995, Defendant ultimately moved the delivery truck—still containing repackaged infant formula—to the Denver Airport. Id. at 8. According to Defendant, upon learning that the federal government was “interested” in that truckload of repackaged infant formula, he “called the federal government and submitted the truck load to them at Denver Colorado Airport.” Def.'s Aff., ECF No. 6–1 at ¶ 11.

A few months later, on July 5, 1995, Jammal filed a Form N–400 application for naturalization with the agency then responsible for naturalization, the Immigration and Naturalization Service (“INS”).¹ Def.'s Ex. B, ECF No. 24–3. Question 15(a) on Form N–400 asks whether an applicant has ever “knowingly committed any crime for which [he has] not been arrested.” Id. In response to that question, Defendant answered “no.” Id. Consistent with that written assertion, on January 31, 1996, Defendant provided the same answer to the same question regarding his naturalization application, under oath, during an interview with an INS officer. Aff. of Agent Palmer, ECF No. 1–1 at ¶ 4; Def.'s Answer, ECF No. 17 at ¶¶ 35–36. On January 31, 1996, the INS approved Defendant's naturalization application and issued naturalization certificate number 21808838 to Defendant. Aff. of Agent Palmer, ECF No. 1–1 at ¶ 5; Def.'s Answer, ECF No. 17 at ¶ 38.

On April 2, 1998, Defendant was charged on 8–counts of 35–count indictment relating to repackaged infant formula. Indictment, Def.'s Ex. E, ECF No. 24–6. On January 29, 1999, the charges in the indictment were dismissed after Defendant pleaded guilty to a one count information charging aiding and abetting the introduction and delivery for introduction into interstate commerce misbranded food, specifically repacked infant formula worth approximately $1.5 million, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 331(a), 333(a)(1). Plea Agreement, Def.'s Ex. F, ECF No. 24–7. Defendant was sentenced to a three year term of probation and a $2,000 fine. Judgment, Def.'s Ex. G, ECF No. 24–8. Defendant maintains that he did not realize his involvement in repackaging infant formula was wrong or unlawful until April 1998.² Def.'s Aff. at ¶¶ 12–13.

Plaintiff moves for summary judgment, claiming that, as a matter of law, Defendant's naturalization must be revoked because involvement in the criminal scheme to repackage and distribute infant formula disqualified him from becoming a naturalized U.S. citizen, or, in the alternative, Defendant impermissibly concealed the material facts of his involvement during the naturalization process. See ECF No. 25. Defendant timely filed a Response to the Government's motion on August 28, 2014, ECF No. 28, the Government has timely filed a Reply, ECF No. 29, and the motion is ripe for disposition.

II. STANDARD OF REVIEW

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

“The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial....” 10 Wright and Miller, Federal Practice and Procedure, § 2739, p. 711. Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

“ ‘[W]here the moving party has the burden—the plaintiff on a claim for relief or the defendant on an affirmative defense—his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.’ ” Proctor v. Prince George's Hosp. Ctr., 32 F.Supp.2d 820, 822 (D.Md.1998) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) ). “Thus, if the...