United States v. Haddad, Anwar ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3086
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANWAR HADDAD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 772—Robert W. Gettleman, Judge.
____________
ARGUED JUNE 5, 2006—DECIDED SEPTEMBER 14, 2006
____________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. A jury found Anwar Haddad
was guilty of one count of wire fraud and two counts of
money laundering, in violation of 18 U.S.C. § 1343 and 18
U.S.C. § 1957. Haddad’s store, R & F Grocery (“R&F”), was
authorized to sell certain approved food items for food
stamps. The evidence showed that he defrauded the United
States Department of Agriculture (“USDA”) by exchanging
food stamps for cash, keeping a cut of the transactions for
himself.
Haddad was sentenced to concurrent terms of 51 months’
imprisonment on all three counts and two years of super-
vised release. The district court ordered him to pay
2 No. 05-3086
$801,067.37 in restitution. Haddad appeals, arguing that
the district court erred when it denied his request to give an
entrapment instruction to the jury. He further con-
tends that the evidence was insufficient to support a
conviction under 18 U.S.C. § 1957. Haddad adds that the
district court erred in its supplemental jury instruction
for 18 U.S.C. § 1957. Finally, he appeals the district
court’s loss amount determination. We affirm the judgment
of the district court.
I. Background
In August of 1999, Haddad became a part owner in R&F,
a small, “mom and pop” business. In January of 2000 he
became the full owner. As part of the USDA’s Food Stamp
Program, R&F was an authorized vendor to sell food to
recipients of food stamp benefits. Food stamp benefits are
distributed to low-income families to help them buy cer-
tain staple food items. Rather than using paper food
stamps, in recent years the benefits have been provided
through an electronic transfer card (known as a LINK card
in Illinois) that operates like a debit card. Qualified families
receive benefits once a month, with the benefit amount
automatically transferred to a recipient’s LINK card around
the first of the month. The Food Stamp Program provides
authorized vendors with specialized, point-of-sale machines
that deduct money from the LINK card when food is
purchased. Once the recipient’s identity is confirmed by
entering his or her unique PIN number, the machine checks
the balance on the card and then authorizes or denies the
sale via a message on the point-of-sale machine. The food
stamp sales are totaled up in the machine at the end of
each day. The Food Stamp Program then reimburses the
store the following day through an electronic deposit of
funds that transfers directly into the store’s designated
business bank account.
No. 05-3086 3
The application process for the Food Stamp Program is
fairly rigorous, and requires vendors to submit supporting
documentation and appear at the Food and Nutrition
Service (a division of the USDA) for training. During the
training sessions, a program specialist describes the rules
and regulations of the Food Stamp Program, noting in
detail which items can and cannot be sold for food stamp
benefits. Applicants are specifically told that they cannot
sell ineligible items or exchange cash for food stamp
benefits, and that doing so could result in a permanent
disqualification from the program as well as criminal
prosecution. After the training, applicants must appear for
an interview with a program specialist. At the interview,
the program specialist reviews the application with the
applicant and ensures that the applicant understands the
Food Stamp Program’s rules and regulations. At the close
of the interview, the applicant signs two forms. The first
form, the “Retailer Training Acknowledgment”, states
that the applicant understands the rules and regulations of
the program, including the prohibition against exchanging
food stamps for cash. The second form acknowledges that
the applicant was trained on the point-of-sale machine and
the applicant agrees not to use it to process food stamps for
cash.
On behalf of R&F Grocery, Haddad filed an application in
1999 to continue R&F’s previous participation in the Food
Stamp Program with co-owner A. Saman. Haddad signed
the application himself and indicated in the application that
the gross sales for 1998 had been $192,868 and the eligible
retail food sales during that year had been $127,938.
In the summer of 2002, the Chicago Police Department
(“CPD”) alerted the United States Postal Inspection Service
(“USPIS”) and the USDA to suspected food stamp fraud at
R&F. The CPD reported that large numbers of people were
gathering outside R&F around midnight on the first of each
month. The agencies reviewed R&F’s food stamp redemp-
4 No. 05-3086
tions since 2000 and noticed an unusually high volume of
redemptions. As a result, the USPIS and the USDA initi-
ated a full investigation into R&F’s practices.
The USDA compiled a comprehensive list of R&F’s food
stamp redemptions beginning on February 1, 2000. R&F’s
monthly food stamp redemptions steadily increased from
February of 2000, when the monthly redemption was
$13,587.81, until July of 2002, when R&F redeemed
$63,587.81 in food stamp benefits. In the first five days of
August 2002 alone, R&F redeemed $22,269.24. Redemp-
tions for the entire 30-month period of the scheme to
defraud totaled $1,117,325.15. Essentially, R&F’s sales
went from an average of $10,661.50 per month in 1998 to
an average of $37,244.17 per month for the 30-month period
charged in the indictment.
A significant part of the investigation occurred on the
days surrounding August 1, 2002. Detective William Lesko
of the CPD’s Financial Crimes Unit videotaped the
activity immediately outside R&F from 11:30 p.m. on
July 31, 2002 until 2:30 a.m. on August 1, 2002. The
videotape showed customers lining up outside of the store
prior to midnight on August 1. Shortly before midnight, an
individual exited the store and motioned for the crowd to
move over to one side. The crowd grew around midnight,
with the parking lot so full of people that the crowd spilled
out into the street. When customers left the store, hardly
anyone carried bags of food even though R&F’s records
show an average of $49.99 per transaction in food stamp
charges for the two-hour period.
At trial, CPD Sergeant Stanley Snarkis testified that he
and two other officers went to R&F after midnight on
August 1, 2002, and observed 75 to 100 people in the
parking lot. The officers tried to get in the store around 1:45
a.m. but had a hard time because 15 to 20 people were “jam
packed” into a small vestibule in the store. Sergeant
No. 05-3086 5
Snarkis observed two lines of people, one to the cash
register and a second line off to one side. He identified
Haddad as the individual operating the cash register.
Later in the day, around 9:40 p.m., a confidential infor-
mant (“CI”) went into R&F and exchanged food stamp
benefits for cash with Haddad. Prior to the exchange,
USPIS inspector Lee Jones equipped the CI with a con-
cealed recording device and gave her a LINK card with
$366 worth of food stamp benefits. Jones monitored the
transaction. When the CI returned, she handed Jones the
recording device, the LINK card, and $180 cash along
with eight LINK transaction receipts. The receipts showed
that R&F charged $366.64 on the LINK card. The CI did
not purchase any food.
The recorded conversation between Haddad and the CI
was played at trial. The CI asked Haddad if she could “do
[her] LINK.” Haddad told her, “not right now.” She asked if
she could come back tomorrow because she needed money.
He asked where her man was, and she told Haddad that he
was in jail. The CI also told him that she had a three-year-
old child. Haddad asked her what kind of work she did and
the CI said “I hustle.” Haddad said, “come on in, dear, I’m,
I’m going to help you today.” He asked her, “How much you
gonna do?” and she replied, “All of it.” Haddad then charged
$366.64 to her card and provided her with $180 in cash.
Also on August 1, 2002, USPIS agents went to R&F to
identify the employees working at the store and to deter-
mine if they understood the Food Stamp Program rules.
Haddad was working behind the counter. Inspector Alvin
Dvorak asked Haddad if he would complete a USDA
questionnaire with him regarding the Food Stamp Program.
During the interview Dvorak asked the questions in English
and noted Haddad’s answers on the form because Haddad
said he could not read or write in English. Inspector Dvorak
rephrased questions if Haddad indicated that he did not
understand them.
6 No. 05-3086
On August 5, 2002, federal agents from the USDA and the
USPIS arrested Haddad outside of R&F. Other agents
effected a search warrant for the R&F premises and seized
invoices and business documents in the store. Haddad was
then taken to USPIS headquarters for processing and
questioning.
Haddad gave a statement admitting that he had been
trafficking in food stamps using the point-of-sale machine
at R&F foods. He stated that his employees exchanged food
stamp benefits for cash on August 1, 2002, starting around
12:30 a.m. and ending at around 1:30 a.m., for a total of
$7,000 to $9,000 in charges. Haddad admitted that he
instructed his employees to exchange food stamps for cash
and that he had been making similar transactions for about
a year.
At trial, Daniel Berwick, an IRS special agent, explained
the financial analysis he had conducted from R&F’s bank
records and other financial data. His goal was to determine
if any money laundering had occurred and to see whether
R&F’s food inventory purchases justified its food stamp
benefit redemptions. He examined the bank records for the
R&F account at Marquette National Bank, the account
Haddad listed on his Food Stamp Program application for
food stamp benefit reimbursements. Haddad and his wife
Ferial were the only signatories on the account.
By analyzing the source of the deposits, Agent Berwick
determined that of the $1,057,342.72 deposited in the
account from April 7, 2000 through August, 2002,
$1,056,962.41 consisted of electronic reimbursements from
the Food Stamp Program and only $345.31 were from cash
deposits. Agent Berwick then analyzed the withdrawal
and debits on the account. He prepared a schedule that
sorted the withdrawals and debits into several categories,
essentially breaking down Haddad’s business account.
Agent Berwick also prepared a chart that itemized
No. 05-3086 7
Haddad’s inventory into two categories: “inventory non-
eligible items” and “inventory eligible items.” By analyzing
these two categories he compared the food inventory that
could be purchased legally with a LINK card (the inventory
eligible items) with the total LINK card deposits in the R&F
account to determine if the inventory matched
the reimbursements for LINK card transactions. He
determined that only $45,748.34 in the account was used to
purchase “inventory eligible items.” On the other hand, the
Haddads received $708,546.14 from the account in the form
of checks written to themselves or to their personal account
at First Savings Bank of Hegewisch.
The two checks that formed the basis for the Section 1957
charges were signed by the Haddads and both checks were
in excess of $10,000. Check number 1797, dated June 4,
2002, was for $16,000 and was payable to First Savings
Bank of Hegewisch. It was signed by both Anwar and Ferial
Haddad. Check number 1812, dated July 6, 2002, was for
$15,000, and was payable to Anwar Haddad and signed by
Anwar and Ferial Haddad. Almost all (99.96%) of the
deposits into the R&F account at Marquette Bank were for
food stamp reimbursements. After deducting the costs for
the purchase of food inventory, Agent Berwick could not
account for over one million dollars of food stamp reim-
bursements in R&F’s records.
II. Analysis
A. Entrapment
Haddad argues that the district court erred by barring the
defense of entrapment at trial. We review a district court’s
refusal to instruct the jury on entrapment de novo. United
States v. Santiago-Godinez, 12 F.3d 722, 726 (7th Cir.
1993).
Prior to trial, Haddad filed a motion notifying the district
court and the government that he planned to use the
8 No. 05-3086
defense of entrapment. Haddad argued that in his post-
arrest interview, he denied ever engaging in food stamp
trafficking prior to the transaction with the CI and that
both he and his employees refused requests to traffic in food
stamps prior to August 1, 2002. He explained that he only
relented because the CI persisted at length, implied that
she was a prostitute (“I hustle”), and said that she really
needed the money. The government moved to bar the
defense of entrapment, arguing that Haddad’s proffered
facts were insufficient as a matter of law. Judge Robert
Gettleman deferred ruling on the government’s motion until
he had considered the evidence at trial. Haddad based his
defense on the tape-recorded conversation between the CI
and Haddad.
Judge Gettleman refused to give the entrapment in-
struction. He explained that Haddad needed to offer other
evidence of entrapment because the tape recording alone
was not enough to justify an entrapment instruction.
In order to warrant an entrapment instruction, a defen-
dant must “present sufficient evidence upon which a
rational jury could have inferred that he was entrapped into
committing the crimes charged.” Santiago-Godinez, 12 F.3d
at 727. If the defendant meets this minimum threshold,
only then can he present the question of entrapment to the
jury. Id. To raise the entrapment defense, the defendant
must show evidence for each of the two prongs of entrap-
ment: government inducement of the crime and a lack of
predisposition on the part of the defendant to engage in the
crime. Mathews v. United States, 485 U.S. 58, 63 (1988).
The burden of defeating the entrapment defense shifts to
the government only when the defendant can establish both
inducement and a lack of predisposition. Santiago-Godinez,
12 F.3d at 728.
Here the evidence and testimony showed that Haddad
was predisposed to trafficking in food stamps well before
No. 05-3086 9
the CI approached him. In his post-arrest statement,
Haddad admitted that he had been engaging in food stamp
fraud for at least one year before his arrest. Further, he
admitted that his employees had begun exchanging cash for
LINK card transactions around midnight on August 1,
2002, that they had accepted several LINK cards (approxi-
mately 80), and had exchanged between $5,000 and $6,000
in cash for approximately $7,000 to $9,000 in food stamp
benefits within a two-hour period. Casting doubt on
Haddad’s claims, the food stamp transactions in the early
morning hours of August 1 were almost all for $49.99, the
transactions were often only 30 seconds apart, and the
majority of customers were not carrying bags of food when
they left the store. All of this activity occurred several hours
before the CI approached Haddad.
Moreover, Haddad was not an unwilling participant in the
exchange of food stamp benefits for cash. When the CI
requested the transaction, Haddad said not right now, and
then a moment later went ahead with the exchange. A
defendant is not entitled to offer an entrapment defense
solely by asserting that he hesitated when offered the
opportunity to commit the crime. We have previously held
that “[w]henever a criminal defendant so promptly avails
himself of a criminal opportunity, it is unlikely that an
entrapment defense will warrant a jury instruction.” United
States v. Mahkimetas, 991 F.2d 379, 386 (7th Cir. 1993).
Regarding the inducement prong, Haddad argues that the
CI induced him into exchanging food stamp benefits
for cash by pleading with him and explaining her despera-
tion for money. Further, Haddad contends, the CI flirted
with him and indicated that she was a prostitute, which
hinted at her willingness to engage in sexual activity if he
helped her out. But, our precedent is clear that if the
defendant accepts a criminal offer without being offered
extraordinary promises, he demonstrates his predisposition
to commit the type of crime involved. United States v.
10 No. 05-3086
Evans, 924 F.2d 714, 718 (7th Cir. 1991). For an entrap-
ment defense to be proper, Haddad needed to show an
extraordinary inducement, “the sort of promise that would
blind the ordinary person to his legal duties.” Evans, 924
F.2d at 717. If a person takes advantage of a simple,
ordinary opportunity to commit a crime—“not an extraordi-
nary opportunity, the sort of thing that might entice an
otherwise law-abiding person”—then the person is not
entrapped. Id.Haddad reaped only an ordinary profit from his transac-
tion with the CI (that is, he took his usual cut of approxi-
mately half of the charged food stamp transaction). He
argues that the CI’s flirting and subtle hints of prostitution
escalated the matter to an extraordinary opportunity, but
the transcript indicates that the CI never made an offer of
sex for the LINK card cash exchange. Rather, the CI flirted
with Haddad and only after he made the cash for food
stamp benefits transaction did she say she would come by
later in the evening to see him. We agree with Judge
Gettleman that these facts did not rise to the level of an
extraordinary promise and thus Haddad’s entrapment
defense was properly denied.
B. Sufficiency of the Evidence
Haddad next argues that the evidence was insufficient to
support his conviction on two counts of money laundering
under 18 U.S.C. § 1957. The statute imposes criminal
sanctions for knowingly engaging in or attempting to
engage in a monetary transaction in criminally derived
property that is valued greater than $10,000 and is derived
from specified unlawful activity. 18 U.S.C. § 1957(a). We
must determine “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
No. 05-3086 11
307, 319 (1979). We review the district court’s interpreta-
tion of the statute de novo. United States v. Shriver, 989
F.2d 898, 901 (7th Cir. 1992).
The government based the Section 1957 charges against
Haddad on check numbers 1797 (dated June 4, 2002) and
1812 (dated July 6, 2002). The checks were drawn on
Haddad’s account at Marquette National Bank and were for
$16,000 and $15,000, respectively. The court admitted the
bank statements for the R&F account, including the
statements for June and July 2002. The June 2002 state-
ment reflected a beginning balance of $6,309.55, and after
the transfer of funds for food stamp reimbursements in the
first five days of June, the total amount in the account
was $23,578.82. Checks totaling $5,450 were deducted from
the account before check number 1797 was posted. There-
fore, at the time check 1797 was posted, there was
$18,128.82 in the account. The July 2002 statement re-
flected a beginning balance of $2,107.66 and after the
transfer of funds for food stamp reimbursements from
July 1-8, the total amount deposited in the account on
July 8, 2002 was $27,333.53. Checks totaling $6,784.62
were deducted from the account before check number 1812
was deducted. At the time check number 1812 posted on
July 8, 2002, there was $20,548.91 in the account.
According to the USDA’s records, nearly 100% (99.96%) of
the deposits into the R&F account consisted of food stamp
reimbursements from electronic benefit transfers. Only
$345.31 in cash was deposited into the account between
April of 2000 and August of 2002 and no checks were
deposited into the account. Agent Berwick’s inventory
calculations revealed that after deducting the costs for
the purchase of food inventory, R&F’s records cannot
account for $1,012,358.10 of food stamp reimbursements.
Haddad argues that the government did not sufficiently
prove that at least $10,000 of the checks in question
12 No. 05-3086
contained illegitimate funds. Yet, as the government
illustrated with Agent Berwick’s analyses and testimony,
Haddad commingled legitimate and illegitimate business
funds in the R&F business account at Marquette Bank.
Although this is a question of first impression for our
Circuit, some of our sister circuits have addressed the issue
of commingled funds and the sufficiency of the evidence in
18 U.S.C. § 1957 cases. In similar cases, under 18
U.S.C. § 1956, we have reasoned that “[w]e cannot believe
that Congress intended that participants in unlawful
activity could prevent their own convictions under the
money laundering statute simply by commingling funds
derived from both ‘specified unlawful activities’ and other
activities.” United States v. Baker, 227 F.3d 955, 965-66 (7th
Cir. 2000) (citation omitted). The government does not need
to trace every dollar of income and connect it to a specific
instance of laundering. Id. See also United States v. Smith,
223 F.3d 554, 576 (7th Cir. 2000) (the government need only
show that the transaction involved some funds which were
derived from some illegal activity).
The Fourth and Fifth Circuits employ an analogous
approach to commingled funds in Section 1957 cases. In
United States v. Moore, the Fourth Circuit held that “where
the funds used in the particular transaction originated from
a single source of commingled illegally-acquired and legally-
acquired funds or from an asset purchased with such
commingled funds, the government is not required to prove
that no ‘untainted’ funds were involved, or that the funds
used in the transaction were exclusively derived from the
specified unlawful activity.” 27 F.3d 969, 976 (4th Cir.
1994).
The Fifth Circuit’s similar approach in United States v.
Davis is also instructive. 226 F.3d 346 (5th Cir. 2000). In
Davis, the Fifth Circuit applied its approach for commingled
transferred funds to the commingling of funds for money
No. 05-3086 13
laundering convictions. As the Fifth Circuit explained,
“when tainted money is mingled with untainted money in
a bank account, there is no longer any way to distinguish
the tainted from the untainted because money is fungible.”
Id. at 357.
While Haddad urges us to adopt the Ninth Circuit’s
approach to Section 1957 cases, we find that framework
untenable. In United States v. Rutgard, the Ninth Circuit
held that in the case of a withdrawal of funds from a
commingled account, the government could only prove that
illegitimate funds were withdrawn if all of the funds in
the account are proven to be criminally derived. United
States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997). We have
held in the analogous area of Section 1956 cases that the
Rutgard “all or nothing” approach is unworkable. See
United States v. Jackson, 935 F.2d 832, 840 (7th Cir. 1991)
(Explaining that the government need not trace all the
funds in a bank account to the illegal transaction).
In this case, the government proved aggregate withdraw-
als of far more than $10,000 above the amount of clean
funds available; the vast majority of funds transferred to
the Haddad’s business account from the food stamp reim-
bursements were not supported by evidence of legitimate
food sales. We adopt the Fourth and Fifth Circuit ap-
proaches to the Section 1957 cases and therefore find that
the evidence to convict Haddad on money laundering was
sufficient.
C. Supplemental Jury Instruction
Haddad next argues that the supplemental jury instruc-
tion for the Section 1957 charges violated his rights under
the Fifth and Sixth Amendments. At the close of the trial,
Judge Gettleman instructed the jury that in order to find
defendant guilty for the two counts charged under 18
U.S.C. § 1957, the government needed to prove beyond a
14 No. 05-3086
reasonable doubt that, “[f]irst, the defendant engaged or
attempted to engage in a monetary transaction. Second, the
defendant knew the transaction involved criminally derived
property. Third, the property had a value greater than
$10,000. Fourth, the property was derived from wire fraud.
Fifth, the transaction occurred in the United States.”
During their deliberations, the jury sent a note asking “as
to the fourth proposition that the property is derived from
wire fraud: If some part of the source was legitimate funds,
and some part was not, is money drawn on the combined
moneys considered derived from wire fraud?”
Judge Gettleman presented the note to the parties and
proposed a supplemental instruction that said, “For each of
the checks in question, at least $10,000 must be in crimi-
nally derived property.” Haddad’s counsel agreed and
stated, “yes. I think [ ] in order to convict, you must find
beyond a reasonable doubt that at least 10,000 of the checks
are derived from mail fraud—from wire fraud of the checks
in question.” Judge Gettleman then incorporated defen-
dant’s suggestions into the supplemental instructions so
that it stated, “For each of the checks in question in Counts
2 and 3, you must find beyond a reasonable doubt that at
least $10,000 is derived from wire fraud.”
Waiver occurs when a defendant intentionally relin-
quishes a known right and it precludes appellate review.
United States v. Murry, 395 F.3d 712, 717 (7th Cir. 2005).
Forfeiture occurs when a defendant accidentally or negli-
gently fails to assert his or her rights in a timely fashion.
Id. A forfeited error is reviewed for plain error. United
States v. Staples, 202 F.2d 992, 995 (7th Cir. 2000).
While the government urges us to find defendant’s
response to the supplemental jury instruction as waiver, it
seems to us that counsel’s agreement with the “at least
$10,000” part of the supplemental instruction was an
oversight and, therefore, was accidental rather than
No. 05-3086 15
deliberate. United States v. Jaimes-Jaimes, 406 F.3d 845,
848 (7th Cir. 2005). Yet, the supplemental instruction failed
to properly instruct as to a statutory element of the offense;
it should have defined the value of criminally derived
property as “in excess of $10,000.” But, the error is harm-
less if it is “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the
error.” Neder v. United States, 527 U.S. 1, 18 (1999).
Based on the evidence at Haddad’s trial, the error is
harmless. The case did not turn on whether exactly $10,000
versus $10,001 of the funds were processed. Rather, the
charges were for checks that were well in excess of the
$10,000 minimum, $16,000 for Count 2 and $15,000 for
Count 3. We conclude that a rational jury would have found
the defendant guilty absent the error.
IV. Loss Amount
Lastly, Haddad argues that the trial court erred in
accepting the government’s loss calculation at sentencing.
In the post-Booker era, we continue to review the district
court’s factual findings at sentencing for clear error and the
application of those facts to the Sentencing Guidelines de
novo. United States v. Arnaout, 431 F.3d 994, 998 (7th Cir.
2005).
At sentencing, Judge Gettleman determined that
Haddad’s offense level was 24 based on a loss amount of
$801,067.03 and a criminal history of Category I.
Judge Gettleman sentenced Haddad to 51 months’ impris-
onment and two years of supervised release.
To calculate loss amount in food stamp fraud cases, we
have held that a trial court may calculate the defendant’s
aggregate food stamp redemptions for the period in question
and subtract the estimated value of actual food sales.
United States v. Barnes, 117 F.3d 328, 334-35 (7th Cir.
16 No. 05-3086
1997). Thus, to calculate the loss amount, the government
estimated R&F’s actual food sales using Haddad’s reported
$127,938 in gross sales for 1998, financial records pertain-
ing to R&F, and R&F’s tax returns. At trial, Agent Berwick
testified that the government’s best estimate of Haddad’s
legitimate food purchases, based on an analysis of bank
records, receipts found in the store, and invoices subpoe-
naed from vendors, was $69,978. Factoring in a typical
grocery markup, Agent Berwick estimated that R&F’s gross
food sales were approximately $104,967.05. After subtract-
ing the estimated food sales from the food stamp redemp-
tions, Agent Berwick determined that $1,102,358.10 of the
food stamp redemptions could not be accounted for by R&F’s
food purchases during the relevant period of time. Thus,
after giving Haddad a substantial benefit of the doubt, the
loss figure of $801,067.30 represented the best estimate of
loss based on the reliable evidence available to the govern-
ment.
The method Agent Berwick used in this case is similar to
that used in United States v. Alburay, 415 F.3d 782, 798-90
(7th Cir. 2005). In Alburay, we noted that the use of the
estimated food sales in a store’s application to participate
in the Food Stamp Program is an adequate calculation of
legitimate food sales. After all, the estimate is used for the
store’s Food Stamp Program application and is on a “federal
form that he signed, swore to, and never sought to amend.”
Id. at 790. Although Haddad argues that his illiteracy
demonstrates that he cannot be responsible for the figure he
offered on his Food Stamp Program application, we con-
clude that he had the opportunity to change his application
when it was verbally reviewed with him during the applica-
tion process. The amount of loss figure therefore is not
clearly erroneous.
No. 05-3086 17
III. Conclusion
Accordingly, we AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-06