on some different charge that the grand jury returned or a set of material allegations different
from the one that the grand jury considered.

The Court also rejects Alhalabi’s remaining arguments. First, there was sufficient
evidence that Alhalabi participated in a scheme to defraud as late as October 1998, even after he
purportedly sold the store (a claim which, we might add, the jury was not required to accept).
Among other things, there was evidence that Alhalabi continued to participate in the operation of
the store through October 1998. The jury reasonably could conclude from this that he continued
to participate during that period in the scheme he had begun to conduct some time earlier.
Whether Alhalabi was the person who actually swiped the cards of the recipients who traded
benefits for cash on the referenced dates is beside the point.

Second, there was sufficient evidence to show that fraudulent LINK card transactions
took place at Holyland on October 7 and 8, 1998, as alleged in Counts 1, 2, 4, and 5. The
government presented the testimony of witnesses whose LINK cards were used on those dates.
Though Alhalabi had ample ammunition with which to attack their credibility, the jury was
entitled to believe their testimony.

Third, there was sufficient evidence that fraudulent LINK card transactions took place on
October 9, 1998, as alleged in Counts 3 and 6. Although the cards of the testifying recipients
may not have been used on that date, other evidence, including among other things the huge
disparity between Holyland’s food purchases and its LINK card transactions, and the arguable
falsity of the explanations given by Alhalabi when interviewed by law enforcement, was
sufficient to permit the jury reasonably to infer that unauthorized transactions had taken place on

that date as they did on earlier dates.


government failed to prove the particular wire communications alleged in Counts 1 through 3.
These Counts each identified an electronic funds transfer from Austin, Texas to Firstar Bank in
Chicago for deposit into Holyland Foods’ account. See, e.g., Indictment, Count 1 411. Alhalabi
contends that the evidence shows that the only wire communications transmitted from Austin
were automated clearing house files that were sent not to Firstar Bank in Chicago but rather to
National City Bank in Kalamazoo, Michigan, which stripped out entries for retailers with
accounts at that Bank and then forwarded the files by wire to a Federal Reserve Bank, which in
turn forwarded the transmission to the various banks where funds were to be deposited, including
Firstar. According to Alhalabi, there was no wire transfer from Austin to Chicago; the wire sent
by National City was a different wire communication than the one sent from Austin; and the wire
from Austin was not itself an electronic funds transfer but rather was a request to make such a
transfer.

As the government argues, however, the evidence was sufficient to show that Alhalabi
caused Transactive Corporation to send a wire from Austin directing the making of an electronic
funds transfer into Holyland’s account in Chicago. It is of no consequence that the wire
communication did not go directly from Austin to Chicago. See United States v. Van
Cauwenberghe, 827 F.2d 424, 430 (9th Cir. 1987). The wire communication, considered as a
whole, began in Austin and ended at Firstar Bank, and any arguable variance resulting from the
fact that there were intermediate steps in no way prejudiced Alhalabi. See, e.g., United States v.
Martino, 648 F.2d 367, 398 (5th Cir. 1981). In addition, the fact that Transactive’s wire
communication was not itself a transfer of funds, but rather a direction to make a transfer, is

likewise immaterial. This is not a case in which there is a danger that the jury convicted Alhalabi


Finally, the evidence was sufficient to show that the electronic funds transfers into
Holyland’s bank account constituted LINK benefits and/or electronic benefit transfer food stamp
benefits. The wire communications, as described earlier, involved directions from Transactive
Corporation to transfer funds into Holyland’s account, and funds were in fact transferred to
Holyland’s account pursuant to those directions. The amounts of the transfers consisted of the
amounts of LINK card / food stamp benefits that had been redeemed at Holyland. Alhalabi
seems to suggest that the problem is that the funds transferred were not themselves food stamp
benefits. That is a distinction without a difference. Section 2024(b) covers both recipients who
present coupons or LINK cards in return for cash and retailers and others who give cash in return
for coupons or LINK cards without authorization.

3. Whether a new trial should be ordered

Alhalabi’s request for a new trial is based on two issues: the Court’s denial of his motion
to strike surplusage and the allegation that the indictment was constructively amended by the
evidence at trial. The Court has previously addressed the surplusage issue and need not repeat
that discussion here; it will suffice to say that Alhalabi’s arguments do not persuade the Court
that its earlier ruling was erroneous.

Alhalabi’s constructive amendment argument is likewise without merit. It was not error
to allow the government to present evidence of unauthorized LINK card transactions in addition
to those specifically alleged; that evidence was relevant and admissible to prove the scheme to
defraud alleged in Counts 1, 2, and 3. This evidence did not impermissibly broaden the basis for
a conviction on any of the charges. The Court has previously (in this ruling and during the trial)

dealt with Alhalabi’s other points on the issue of constructive amendment and reaffirms those


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Case No. 03 CR 971-1

ABDUL KARIM ALHALABI

MEMORANDUM OPINION AND ORDER

MATTHEW F, KENNELLY, District Judge:

Abdul Karim Alhalabi was convicted by a jury of three wire fraud charges and three food
stamp trafficking charges. He has moved for an order arresting judgment on the grounds that the
indictment failed to charge an offense; for a judgment of acquittal; or for a new trial.

1. Whether the indictment charged an offense

The Court rejects Alhalabi’s argument that the wire fraud charges (Counts 1, 2, and 3)
failed to charge an offense. These counts’ charging paragraphs alleged that Alhalabi, for the
purpose of executing a scheme to defraud, knowingly caused food stamp benefits to be
transmitted for payment and redemption by wire communication in interstate commerce,
specifically, certain identified electronic funds transfers. See, e.g., Indictment, Count | 11.
These allegations met the requirements of the wire fraud statute. 18 U.S.C. § 1343. Alhalabi’s
argument that the identified electronics funds transfers were not truly payments or redemptions of
food stamp benefits is an argument about the sufficiency of the evidence, not the adequacy of the
indictment.

Alhalabi’s argument regarding the food stamp charges has some surface appeal but also

fails. Counts 4, 5, and 6 alleged that Alhalabi had violated 7 U.S.C. § 2024(b) & (c). These are



tulings.'
Conclusion
For the reasons stated above, the Court denies defendant’s motion in arrest of judgment,
for a judgment or acquittal, or for a new trial [docket # 90-1, 90-2, & 90-3]. Sentencing will

proceed as scheduled on April 19, 2005 at 1:30 p.m.

“WALLA

MATTHEW F. se ug

United States District Judg
Date: April 8, 2005

' The Court notes that contrary to Alhalabi’s contention, the jury was not instructed that
it could convict him on Counts 4 through 6 if it was proved that he “knowingly redeemed food
stamp benefits in exchange for cash through the use of an access device.” Rather, the
instructions, as noted above, required the jury to find that Alhalabi had “knowingly acquired Link
card benefits in a manner contrary to law,” which was consistent with the allegations of Counts 4
through 6, not a constructive amendment of those charges.

7


two distinct offenses, and for this reason the charges were arguably duplicitous. See, e.g, United
States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001) (duplicity consists of the joining of two
charges in a single count). But Alhalabi did not argue before trial, and does not argue now, that
these particular charges were duplicitous. In any event, any potential prejudice from the
duplicitousness of these charges was cured by the jury instructions, which effectively limited the
jury to consideration of a charge under § 2024(b). See Instructions Given to the Jury at 26
(requiring the government to prove that Alhalabi “knowingly acquired Link card benefits in a
manner contrary to law”). See Buchmeier, 255 F.3d at 425 (duplicitous indictment cured by jury
instructions that required jury to convict defendant of a single offense); United States v. Cherif,
943 F.2d 692, 701 (7th Cir. 1991).

Section 2024(b) prohibits the knowing use, transfer, acquisition, alteration, or possession
of “coupons, authorization cards, or access devices in any manner not authorized by this chapter
or the regulations issued pursuant to this chapter.” An “access device” is a “card, plate, code,
account number, or other means of access that can be used, along or in conjunction with another
access device, to obtain payments, allotments, benefits, money, goods, or other things of value,
or that can be used to initiate a transfer of funds” under the Food Stamp Act. 7 U.S.C. § 2012(t).

Counts 4, 5, and 6 each alleged that Alhalabi “did knowingly acquire, transfer, and
possess United States Department of Agriculture Electronic Transfer Card benefits, namely
LINK benefits,” in that he caused payments to be made to his company’s bank account, knowing
the LINK benefits to have been received, transferred, and used in an unauthorized manner. See,
e.g., Indictment, Count 4 4 2. Alhalabi contends that payments into a bank account are not

“coupons, authorization cards, or access devices” and that these Counts thus fail to charge an


offense.

The Court again concludes that Alhalabi’s argument is an argument about the sufficiency
of the evidence, not the sufficiency of the indictment. An indictment charges an offense if it
alleges the elements of the offense, see, e.g., United States v. Sandoval, 347 F.3d 627, 633 (7th
Cir. 2003); whether the proof measures up is a separate matter. The indictment’s allegation that
Alhalabi knowingly acquired, transferred, and possessed electronic transfer card benefits, though
perhaps not as precise as one might want to see in an indictment, was sufficient to state an
offense under § 2024(b), as Alhalabi’s acquisition, transfer, and possession of electronic transfer
card benefits may be said to be an unauthorized use, acquisition, transfer, and possession of an
“access device” — i.e., a LINK card. It may also be said to be an unauthorized use, acquisition,
transfer, and possession of a “coupon,” defined in the Food Stamp Act as including both
“authorization card[s]” and “access device[s], including ... electronic benefit transfer card[s].” 7
U.S.C. § 2012(d).

2. Whether the evidence was sufficient

In deciding a motion for judgment of acquittal, the Court must view the evidence in the
light most favorable to the government, see, e.g., United States v. Arocho, 305 F.3d 627, 639 (7th
Cir. 2002), and may grant the motion only if no rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. See, e.g., Untied States v. Griffin, 310 F.3d 1017,
1022 (7th Cir. 2002), The evidence was sufficient to permit the jury to convict Alhalabi of each
of the charges.

Alhalabi’s primary argument for a judgment of acquittal on the wire fraud charges is a

reprise of an argument that the Court rejected during the course of the trial, specifically, that the