In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3423

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

BILLI ALAKA, 

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 CR 151-3—Elaine E. Bucklo, Judge.

ARGUED APRIL 20, 2010—DECIDED JULY 27, 2010

Before FLAUM, WOOD, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. Defendant-appellant Billi Alaka

participated in a conspiracy to steal identifying information from customers of Washington Mutual bank and

use it to make fraudulent transfers from their accounts.

Alaka pleaded guilty to being a part of this conspiracy,

but disputed the extent of his participation during his

sentencing hearing. The district court found him responsible for the entire loss caused by the operation. Appellant

claims that this decision amounted to clear error because
2 No. 09-3423

much of the damage was not foreseeable to him. We

now affirm. 

I. Background

Defendant-appellant Billi Alaka pleaded guilty to one

charge of conspiring to traffic and use one or more unauthorized access devices to obtain things of value aggregating $1000 or more, in violation of 18 U.S.C. § 1029(b)(2).

The conspiracy sought to defraud Washington Mutual

Bank (“WaMu”) and its customers by using stolen

account information to make unauthorized withdrawals.

The individuals involved in the conspiracy were Alaka,

Inyang Tomita, Jelil Adams, and James Arikpo. Arikpo

worked at Washington Mutual and had access to

personal account information. Tomita persuaded Arikpo

to provide the customer account information to him for

a fee. Tomita, Adams, and Alaka then used the customer

data to generate fake identification featuring the name

and personal details of a known WaMu account holder

next to a photograph of a conspirator, open fraudulent

accounts on behalf of the customers, or establish online access to the real accounts without notifying their

owners. Appellant and his co-conspirators used these

methods to siphon money out of the target accounts via

online transfers, counterfeit checks, and withdrawals

where a conspirator pretended to be the account owner.

At sentencing, the government contended that the

conspiracy caused a total loss of $267,227. The district

court agreed, holding Alaka, Arikpo, and Tomita each

responsible for the full scope of the scheme. Alaka now
No. 09-3423 3

argues that evidence ties him only to discrete withdrawals amounting to about $100,000, and that he could

not reasonably foresee the remainder of the transactions.

Thus, while Alaka admits responsibility for the loss

attributable to unauthorized withdrawals he personally

made and the withdrawals made by Tomita while Alaka

was present, he denies responsibility for any loss associated with online transfers and counterfeit checks.

At Alaka’s sentencing hearing, the government relied

on appellant’s own post-arrest statements and the testimony of United States Secret Service Special Agent Brian

Speedy. Agent Speedy described the investigation into

the conspiracy and the individual transactions that comprised it. With respect to losses borne by individual

account holders injured by the scheme, his testimony

established the following:

Eva Lichtenberg: James Arikpo accessed Lichtenberg’s

account, leading to a loss of $32,300 through several

methods of withdrawal. One online bill payment was

made from her account to a Citi Mastercard held in the

names of Jillian Campione and Travis Tolle. The government subsequently found a fake ID with Alaka’s photograph and the name “Travis Tolle.” There was also an

online transfer and an online bill payment from the

Lichtenberg account to an account in the name of David

Butler, which one of the co-conspirators admitted to

opening. The government was able to trace money that

flowed into the Butler account through several other

accounts and eventually to Alaka, who admitted withdrawing the funds and giving them to Adams.
4 No. 09-3423

Carol Krashen: A phone call was made to transfer money

from Krashen’s account to another account under the

same name at Washington Mutual. A counterfeit check

was then written in the amount of $65,100. This check was

deposited into a bank account in New York under the

name Nova Depalois. Agent Speedy did not testify to

any direct connections between the conspiracy and this

check at the sentencing hearing. However, the government contends, and Alaka does not contest, that this

account had been accessed by Arikpo prior to the loss.

Doug McMillian: McMillian incurred a loss of $16,514.47

through online transfers. One of the transfers went to

an account under the name David Butler. Jelil Adams

opened this account and used it to initiate a series of

transfers that culminated in some of the money appearing

in an account owned by Alaka. 

David Williams: Williams lost $14,912.66 from his WaMu

account through online transfers and bill payments.

Initially, someone transferred $35,600 from Williams’

genuine account to another one fraudulently created

in his name. The perpetrators then sent online checks

totalling $20,500 from that dummy account to an account

at Fifth Third Bank under the name “Il Sin.” Alaka

was photographed accessing the Il Sin account at Fifth

Third Bank.

Brian Adams: Adams’s account had a loss of $9,800 from

two counterfeit checks. One of the checks was returned,

but the other went through and was deposited in a

TCF account belonging to James White, Jr. On another

occasion, Alaka used a fake ID bearing his picture and the
No. 09-3423 5

name “James White, Jr.” to withdraw $4500 from a Washington Mutual account. In his post-arrest statement,

Alaka also admitted to using the personal identification

information for James White, Jr. to open a separate account at a different, unspecified bank. 

Ray Anthony White: White’s account had a loss of $2,800

from an online check that went to pay off a Master Card

held in the names of Jillian Campione and Travis Tolle.

This same credit card was implicated with transfers

from the Lichtenberg account. “Travis Tolle” is a known

alias of Alaka. 

Cahn Tran: The Tran account had a loss of $59,000 in the

form of online transfers and online bill payments. Two

of the bill payments went to an account at Charter

One under the name “Il Sin.” A photograph shows

Adams, a co-conspirator, withdrawing money from this

account. Alaka had previously withdrawn money from

an account belonging to “Il Sin” at Fifth Third Bank. Two

other online transfers from the Tran account went

through a Chase account and eventually ended up in an

account opened by Alaka. 

Paul Battaglia: Battaglia lost $24,200 in the form of online

bill payments and a counterfeit check. Online payments

were directed to a Charter One account held under the

name “Il Sin,” a known alias of Alaka. An additional

online bill payment went to the Chase account from

which payments to Alaka originated following withdrawals from Tran.

These losses total $224,627.13. Alaka admits responsibility

for taking an additional $42,600 from Sean Williams,
6 No. 09-3423

The specific amount of loss for which Alaka acknowledges 1

responsibility is unclear from appellant’s brief, but does not

affect the resolution of this case.

James White, Thomas Michael, and Michael Su. Together,

the two amounts add up to $267,227.13. The district court

found the conspiracy as a whole to be liable for $267,227

in losses.

The Presentencing Investigation Report (“PSR”) recommended a guideline sentencing range for Alaka of 24-30

months. The district court sentenced Alaka to 24 months

and ordered restitution in the amount of $267,000, for

which appellant was jointly and severally liable with

his co-conspirators. Alaka appeals, arguing that he is

responsible only for less than $200,000 in losses, which 1

would have yielded a guideline sentencing range of 18-

24 months.

II. Discussion

Alaka contends that the district court’s determination

that he was responsible for the entire loss attributable

to the conspiracy was faulty and requires a remand

for resentencing. We review the district court’s factual

findings at sentencing for clear error. United States v.

Severson, 569 F.3d 683, 689 (7th Cir. 2009). We will hold

a district court’s finding of fact to be clearly erroneous

if, based upon the entire record, “we are left with the

definite and firm conviction that a mistake has been

committed.” United States v. Carani, 492 F.3d 867, 875 (7th
No. 09-3423 7

Cir. 2007). The district court’s determination that Alaka,

through the conspiracy, was responsible for $267,000

in loss is not clearly erroneous.

The government did not have to prove that Alaka

personally engaged in or benefitted from every transaction that resulted in the $267,000 loss. Rather, the government had to establish only that activities leading to

the loss were reasonably foreseeable to Alaka as part of

the charged conspiracy. United States v. Bustamante, 493

F.3d 879, 887-88 (7th Cir. 2007) (“[I]n the case of jointly

undertaken criminal activity, a defendant’s base offense

level ‘shall be determined on the basis of . . . all reasonably

forseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity.’ ”). Agent

Speedy’s testimony indicated that Alaka worked with his

co-conspirators to obtain personal information, created

false identification cards, and even traveled to certain

branches with Tomita to withdraw money. The government also showed that Alaka lived with Adams while

the conspiracy was taking place and that appellant withdrew money for or transferred money to Adams on

several occasions. On this record, the district court

reached the permissible conclusion that all of the fraudulent transactions described above were reasonably foreseeable to Alaka and carried out in furtherance of the

same conspiracy to use access devices. See United States v.

Adeniji, 221 F.3d 1020, 1028 (7th Cir. 2000) (finding an

inference of a joint undertaking proper where the defendant “took virtually identical” steps as co-conspirators

in perpetuating the fraud and coordinated his activities

via phone).
8 No. 09-3423

Appellant disputes this conclusion. He alleges that he

restricted his own conduct to withdrawing funds from

certain victim accounts by using a fake ID, and could not

expect his cohorts to use counterfeit checks or online

transfers to do the same. Alaka also claims that he could

not foresee the attacks his co-conspirators mounted

on accounts when he was not around. The district court

duly considered both positions at sentencing and rejected

them. On the record before us, we find no fault in this

outcome. Alaka is responsible for the actions of his

co-conspirators even when he is not present for them,

so long as the actions are reasonably foreseeable. United

States v. Nubuor, 274 F.3d 435, 443 (7th Cir. 2001) (“[A]

defendant who has conspired with others may be sentenced for drug quantities that he did not handle, so

long as he could reasonabl[y] foresee that the drug transaction would occur.”). Bits of money withdrawn from a

number of the accounts described above eventually

trickled down to Alaka, and he never questioned or

attempted to investigate the source of this income.

Alaka’s picture was on several fake pieces of identification, and his various aliases kept popping up in the

complex schemes the group set up to funnel money

from legitimate accounts into their own pockets. This

evidence provided an adequate foundation for the

district court’s factual findings.

To the extent that the conclusions of the district court

contain any error cognizable as a matter of law, said

error is limited to the finding that Alaka was responsible

for loss from the Krashen account. The fraud leading to

the $65,100 loss on behalf of that individual did not
No. 09-3423 9

appear to involve any of the fake identities, proxy accounts, or withdrawal locations used by the conspiracy

elsewhere. Under the deferential review we accord to

district court sentencing decisions, however, this error is

harmless because the other, properly established fraud

totals more than $200,000 and pushes Alaka into the

24-30 month guideline range. Cf. United States v. Abbas,

560 F.3d 660, 667 (7th Cir. 2009). But see United States v.

Eubanks, 593 F.3d 645, 655-56 (7th Cir. 2010) (holding

that where a properly calculated guideline range did not

include the sentence handed down by the district court

and the district court did not provide reasons for

handing down a non-guideline sentence, a guidelinescalculation error was not harmless).

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

7-27-10