664 F.3d 155 (7th Cir. 2011), 11-2248, United States v. Hussein

Docket Nº:11-2248.
Citation:664 F.3d 155
Opinion Judge:MANION, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Naeil HUSSEIN, Defendant-Appellant.
Attorney:David E. Bindi, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee. William S. Stanton, Attorney, Law Office of William S. Stanton, Michael P. Gillespie, Attorney, Michael P. Gillespie, Ltd., Chicago, IL, for Defendant-Appellant.
Judge Panel:Before EASTERBROOK, Chief Judge, and MANION and ROVNER, Circuit Judges.
Case Date:December 13, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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664 F.3d 155 (7th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Naeil HUSSEIN, Defendant-Appellant.

No. 11-2248.

United States Court of Appeals, Seventh Circuit

December 13, 2011

Argued Oct. 5, 2011.

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[Copyrighted Material Omitted]

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David E. Bindi, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

William S. Stanton, Attorney, Law Office of William S. Stanton, Michael P. Gillespie, Attorney, Michael P. Gillespie, Ltd., Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and MANION and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Naeil Hussein and his girlfriend, Lisa Bazian, operated what appeared to be convenience stores on the south side of Chicago. In fact they were little more than fronts where the couple rang up phony sales for food-stamp recipients looking to exchange their benefits for discounted amounts of cash. When federal investigators discovered the fraudulent scheme at one location, the pair simply obtained government authorization to accept food stamps at a different address where they continued their operation. Through a surrogate Hussein opened a third store and even attempted to qualify an ineligible restaurant. Hussein eventually pleaded guilty to eight counts of wire fraud, 18 U.S.C. § 1343, and was sentenced to a total of 60 months' imprisonment and ordered to pay almost $1.7 million in restitution. On appeal he challenges the amount of loss and a 4-level leadership adjustment used in calculating his offense level, as well as the reasonableness of his prison term. We affirm the judgment.

I.

Hussein and Bazian launched their scam at The Spot Food Mart (" Spot Mart" ), a store that Bazian had acquired in the Englewood neighborhood of Chicago. In 2003 Bazian applied to the United States Department of Agriculture on behalf of Spot Mart to participate in the federal Food Stamp Program. The program supplies low-income persons with debit cards, known in Illinois as LINK cards, that can be used to purchase food.1 The USDA approved Spot Mart's application but not before making Bazian send proof that she was not connected to the store's prior owner, who had accepted food stamps but later

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was sanctioned for abusing the program. Spot Mart brought in a little more than $2,000 in benefits in June 2004, its first month with a LINK scanner, but by October 2005, the monthly total had ballooned more than 60-fold to nearly $130,000. Near the end of that month, a USDA informant twice used a LINK card at Spot Mart to trade food-stamp benefits for lesser amounts of cash. The description the informant gave of the clerk who processed one of those fraudulent transactions matched Hussein. The next week federal agents executed a search warrant at the store. During that search a USDA agent interviewed Hussein, the store manager, who denied trading cash for food-stamp benefits. The USDA disqualified Bazian from the program but took no action against Hussein.

About three months later Hussein applied to the Food Stamp Program on behalf of a second Englewood store, Halsted Food Mart (" Halsted" ). Despite his role as manager at Spot Mart, the USDA approved the application. Again using an informant, the USDA developed evidence that the new location, like the old, was nothing more than a front for swapping benefits for cash. Once more authorization to participate in the program was revoked, but not before the Halsted scam had run for more than two years and at its height brought in over $100,000 a month in benefits.

In addition, shortly before federal agents executed a search warrant at Halsted, one of Hussein and Bazian's employees, Dwight Fleming, applied to the program on behalf of a third Englewood location, Route 69 Palace. Fleming represented on the application that he owned Route 69 but later admitted that Hussein, the true owner, had paid him to claim ownership. The USDA developed evidence that Hussein and Bazian were trading cash for benefits at Route 69, though not before the pair had run their scam there for more than seven months. Hussein also applied to the Food Stamp Program on behalf of a fourth Englewood business, Spot Chicken Fish & Pizza (" Spot Chicken" ), but the USDA rejected that application, presumably because benefits generally cannot be used at restaurants. See 7 C.F.R. § 278.1(b)(1)(iv). Still, for reasons that are unclear from the record, food-stamp recipients were able to trade their benefits for cash at Spot Chicken. In total, Hussein and Bazian ran their fraud for more than four years.

According to bank records for Spot Mart and Halsted, the two locations brought in a total of $1,859,939 in LINK benefits. The government calculated that, during roughly that same time period, Hussein and Bazian wrote checks for food inventory totaling $164,660 from the accounts where LINK funds were deposited. Route 69 took in $128,198 in LINK benefits, and checks for food totaling $49,043 were drawn on the account where those benefits were deposited during the time the store had a LINK scanner. According to the government, Spot Chicken brought in another $228,497 in LINK receipts despite having no authorization to accept LINK cards.

Following Hussein's guilty plea, the probation officer recommended in the presentence report that the district court assess the loss from the fraud as $1,695,250 and apply a 16-level increase. See U.S.S.G. § 2B1.1(b)(1)(I). The probation officer reached this figure by subtracting the checks Hussein and Bazian wrote for food inventory at Spot Mart and Halsted from the amount of LINK redemptions at those locations. The probation officer's total inexplicably ignores the LINK receipts at Route 69 and Spot Chicken, but still Hussein objected that

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the loss calculation was too high. His lawyer contended, without explanation, that inventory costs for food exceeded those listed in the presentence report and argued that the government's formula failed to account for " legitimate profit" on food sales. But Hussein did not present evidence of additional inventory costs, nor did he attempt to quantify the authorized food items sold at Spot Mart and Halsted. Instead, counsel simply asserted without explanation that the government's loss was about...

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