NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2128

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UNITED STATES OF AMERICA

v.

ABDOULAYE DIALLO,

 Appellant 

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-15-cr-00017-001)

District Judge: Hon. Cynthia M. Rufe

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Submitted Under Third Circuit LAR 34.1(a)

April 26, 2018

Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges

(Filed April 30, 2018)

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OPINION

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

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

JORDAN, Circuit Judge.

Abdoulaye Diallo appeals the judgment of conviction and sentence imposed by the 

United States District Court for the Eastern District of Pennsylvania, and his counsel

moves to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). For the 

reasons that follow, we will affirm the District Court’s judgment and sentence and will 

grant the motion to withdraw.

I. BACKGROUND

A superseding indictment charged Diallo with six counts of fraud and aiding and 

abetting fraud concerning the Supplemental Nutritional Assistance Program (“SNAP”), in 

violation of 7 U.S.C. § 2024(b) and 18 U.S.C. § 2, six counts of wire fraud, in violation 

of 18 U.S.C. § 1343, and one count of conspiracy to commit those offenses, in violation 

of 18 U.S.C. § 371. 

Diallo owned Brothers Food Market in Philadelphia, Pennsylvania. He enrolled 

his store in SNAP, which is sometimes called the food stamp program and is a federally 

funded means to provide assistance to low-income individuals and families so that they 

can purchase food. He participated in the program from September 10, 2011, to February 

4, 2015. As part of the application process, Diallo received training on how the program 

works, acknowledged in writing that he understood and agreed that he could not 

“[t]rad[e] cash for food stamp benefits[,]” (App. at 600), and acknowledged in writing 

that “[he was] the person responsible for any action taking place in [his] store,” (App. at 

603).
3

At trial, the government presented substantial evidence of its undercover 

investigation, which revealed a two-person scheme of fraudulent SNAP transactions at 

Brothers Food Market. On six different days, undercover agents obtained cash rather 

than food in exchange for SNAP benefits at the store. On each occasion, the agents

received in cash approximately half the value of SNAP benefits charged to the 

government.

In addition to that evidence, Diallo’s co-conspirator, Lassana Nianghane, testified 

for the government about the scheme he and Diallo used to trade SNAP benefits at a 

discount for cash. Nianghane testified that he was a street vendor who sold purses. 

When a customer would ask to exchange SNAP benefits for cash, Nianghane would take 

the customer’s SNAP electronic benefits transfer card (“EBT card”) and corresponding 

personal identification number (“PIN”), then he would call Diallo so that Diallo could 

charge the card. Because the information was being relayed to Diallo by phone, he did 

not have use of the EBT card to charge the SNAP account, so the fraudulent transactions 

were regularly processed by Diallo manually. Nianghane would give the customer cash 

in an amount that was about half the amount of the EBT charge, that discount being “the 

law of the street.” (App. at 286.)

Nianghane testified that he and Diallo would split the resulting profit, with Diallo 

taking 60% and Nianghane getting 40%. He also corroborated each of the six

transactions with the undercover investigators and testified that, while he was out of the 

country for most of June 2013 and November 2014, no one took his place in the scheme 
4

with Diallo. Records from the United States Customs and Border Protection confirmed 

Nianghane’s travel outside the United States during those months. 

The government also presented electronic records of the SNAP transactions that 

occurred at Brothers Food Market between September 2011 and December 2015. A

summary of the records showed that a high percentage of the dollar volume from SNAP 

transactions were processed manually and that there was a drop in the number of manual 

transactions in the months when Nianghane was out of the country. Diallo offered no 

evidence, and the jury convicted him on all counts.

At sentencing, Diallo did not object to the presentence investigation report 

(“PSR”), and the Court adopted the PSR’s method of calculating the fraud loss by 

estimating the dollar volume of SNAP transactions that were manually entered and 

connected to Nianghane. Based on evidence admitted at trial, the average monthly 

manual dollar volume when the scheme was active was $26,705.86. The average 

monthly manual dollar volume when the scheme was inactive was $765.82. The 

difference between those averages was $25,940.03 and represented the average monthly 

dollar volume due to the fraud. The scheme was active for forty-one months.

1

 The PSR 

calculated the government’s loss from the scheme by multiplying the average monthly

 

1

 The scheme was active from September 2011 through March 2015, but not

when Nianghane was out of the country in June 2013 and November 2014, which is a 

total of forty-one months. 
5

dollar volume due to the fraud by the number of months that the scheme was active, 

resulting in a total of $1,063,541.23.

2

 

After considering the traditional sentencing factors, the District Court imposed a 

sentence of forty-two months of imprisonment, three years of supervised release, a 

special assessment of $1300, and restitution of $1,063,541. Diallo timely appealed, and 

the Court appointed new counsel for him on appeal. 

II. DISCUSSION3

As allowed by Anders, a criminal defendant’s counsel may seek to withdraw from 

representing the defendant on appeal if there are no nonfrivolous issues to address. 386 

U.S. at 744. When Anders is invoked, first, we determine whether counsel has

“adequately fulfilled” the requirements of our Local Appellate Rule 109.2(a),4and, 

second, we examine “whether an independent review of the record presents any 

 

2 The PSR incorrectly transposed the digits in tenths and hundredths places, 

thereby overstating the total fraud loss amount by eleven cents, but that de minimis

mistake was eliminated because the Court based its sentence and restitution on a loss 

amount rounded down to the nearest whole dollar, that is, $1,063,541. 

3

 The District Court had jurisdiction under 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

4 The Third Circuit Local Appellate Rule 109.2(a) states:

Where, upon review of the district court record, counsel is persuaded that the 

appeal presents no issue of even arguable merit, counsel may file a motion 

to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 

738 (1967), which must be served upon the appellant and the United States. 

The United States must file a brief in response. Appellant may also file a 

brief in response pro se. After all briefs have been filed, the clerk will refer 

the case to a merits panel. If the panel agrees that the appeal is without merit, 

it will grant counsel’s Anders motion, and dispose of the appeal without 
6

nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Whether

an issue is frivolous is informed by the standard of review for each potential claim raised. 

See United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002) (concluding issue on 

appeal would be frivolous when reviewed for plain error). 

At the first step of our review of an Anders brief, we consider whether counsel has

satisfactorily established that he or she “has thoroughly examined the record in search of 

appealable issues” and “explain[ed] why [those] issues are frivolous.” Youla, 241 F.3d at 

300. Although “[c]ounsel need not raise and reject every possible claim[,] ... at a 

minimum, he or she must meet the ‘conscientious examination’ standard set forth in 

Anders.” Id. (citation omitted). If the Anders brief appears adequate on its face, then, at

the second step of our review, we will “confine our scrutiny to those portions of the 

record identified by ... [the] Anders brief” and “those issues raised in Appellant’s pro se

brief.” Id. at 301. Regardless of the adequacy of the Anders brief, we may affirm the 

conviction and sentence without appointing new counsel, if we find that “the appeal is 

patently frivolous.” United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009).

A. Counsel’s Anders Brief Is Adequate, And Our Independent Review 

Reveals No Nonfrivolous Issues.

 

appointing new counsel. If the panel finds arguable merit to the appeal, or 

that the Anders brief is inadequate to assist the court in its review, it will

appoint substitute counsel, order supplemental briefing and restore the case 

to the calendar. The panel will also determine whether to continue the 

appointment of current counsel or to direct the clerk to discharge current 

counsel and appoint new counsel.
7

The first step of our review reveals that counsel’s Anders brief contains an 

adequate examination of the record and of issues that arguably might support an appeal. 

Counsel represents that he has reviewed Diallo’s case and concluded that it lacks any 

nonfrivolous issue because of the following: all of Diallo’s objections at trial were 

sustained; there were no issues of plain error under Federal Rule of Criminal Procedure 

52; the District Court did not abuse its discretion when it sustained one government 

objection at trial; there were no unresolved defense objections to the PSR; the District 

Court considered the sentencing factors as set forth in 18 U.S.C. § 3553(a); the sentence 

was calculated correctly; and the evidence at trial against Diallo was substantial, 

including thoroughly corroborated testimony from Diallo’s co-conspirator. We are 

satisfied that counsel has correctly assessed the record.

Because counsel’s Anders brief is adequate, at the second step of our inquiry, we 

only review the portions of the record identified in the Anders and pro se briefs. Our 

examination of the record relating to the issues raised by counsel reveals no nonfrivolous 

arguments. We therefore limit further inquiry to the issues in Diallo’s pro se brief.

B. Diallo’s Pro Se Brief Does Not Raise Any Nonfrivolous Arguments.

In his pro se brief, Diallo raises three issues. First, he argues that the 

government’s evidence at trial was insufficient to prove that he knew about the alleged 

fraudulent SNAP transactions. Second, he says that the government’s pre-indictment 

delay in prosecuting prejudiced him for purposes of sentencing. And third, he argues that 

the Court’s calculation of the loss amount for purposes of sentencing was flawed. We 

review each of those for plain error because he failed to lodge any objection to them at 
8

the District Court.5 See United States v. Wilson, 880 F.3d 80, 88 (3d Cir. 2018) (“We 

review an unpreserved objection for plain error.” (citation omitted)); United States v. 

Hart, 273 F.3d 363, 375 (3d Cir. 2001) (applying plain error review to defendant’s 

contention, for first time on appeal, that the district court should have used a different 

method for calculating loss amount). All of Diallo’s claims are frivolous.

1. The Government’s Evidence At Trial Was Sufficient To Prove 

That Diallo Knew About Fraudulent SNAP Transactions.

Diallo contends that “the Government failed to produce sufficient evidence to 

support a finding, beyond a reasonable doubt, that he knew ... that the SNAP transactions 

... were illegal transactions[.]” (Pro Se Br. at 11.) That claim cannot survive plain error 

review.

“[I]n reviewing a sufficiency-of-the-evidence claim, we must examine the totality 

of the evidence, both direct and circumstantial.” United States v. Miller, 527 F.3d 54, 62

(3d Cir. 2008) (internal quotation marks and citation omitted). “The burden on a 

defendant who raises a challenge to the sufficiency of the evidence is extremely high[,]” 

and “the government may defeat a sufficiency-of-the-evidence challenge on 

circumstantial evidence alone.” United States v. Iglesias, 535 F.3d 150, 155-56 (3d Cir. 

2008). In making our determination, we “interpret the evidence in the light most 

 

5

“A plain error has occurred when there is (1) [an] error, (2) that is plain or 

obvious, and (3) that affects a defendant’s substantial rights.” United States v. Wilson, 

880 F.3d 80, 88 (3d Cir. 2018) (alteration in original) (internal quotation marks and 

citation omitted). “If all three conditions are met, [we] may then exercise [our] discretion 

to notice a forfeited error, but only if ... the error seriously affect[s] the fairness, integrity, 

or public reputation of judicial proceedings.” Id. (alterations in original) (citation 

omitted).
9

favorable to the government ... and do not weigh evidence or determine the credibility of 

witnesses[.]” Miller, 527 F.3d at 60 (internal quotation marks and citations omitted). 

“[W]e must uphold a jury’s verdict if there is substantial evidence from which a rational 

trier of fact could find guilt beyond a reasonable doubt.” Id. (internal quotation marks 

and citation omitted).

Here, the evidence at trial was more than sufficient for a jury to find that Diallo 

knew of fraudulent SNAP transactions occurring at his store.6 The government presented 

evidence that investigators determined fraudulent SNAP transactions occurred at Diallo’s 

store, that Diallo acknowledged in writing that he was responsible for all SNAP 

transactions at his store, and that Diallo further acknowledged in writing that SNAP 

benefits could not be traded for cash. Then there was Nianghane’s testimony on Diallo’s 

involvement in the scheme to exchange SNAP benefits for cash. That testimony alone 

may have been sufficient to convict. See United States v. Alhalabi, 443 F.3d 605, 613 

(7th Cir. 2006) (concluding jury had reasonable evidence to convict grocery store owner 

of wire fraud and food stamp fraud based on testimonial evidence that owner was 

exchanging cash for customers’ benefits). But it was not alone; it was corroborated by 

evidence from the undercover officers and the evidence of dramatic variation in fraud 

activity when Nianghane was not available to assist Diallo in the scheme. Because the 

evidence at trial was far more than sufficient to support the jury’s finding that Diallo 

 

6

 It is unclear which counts Diallo challenges as having insufficient evidence of 

his knowledge. Nevertheless, the evidence at trial was sufficient to support the jury’s 

finding of Diallo’s knowledge of all alleged illegal conduct and, therefore, his guilt 

beyond a reasonable doubt on all counts.
10

knew of fraudulent SNAP transactions occurring at his store, his claim to the contrary is 

frivolous.

2. The Government Did Not Delay Its Prosecution of Diallo, And

Diallo Was Not Prejudiced.

Diallo next raises a claim of prejudicial pre-indictment delay in violation of his 

due process rights.7 He argues that the government delayed its indictment to charge him 

with a large amount of loss, “which substantially prejudiced him for sentenc[ing]

purposes.” (Pro Se Br. at 21-22.) That claim also fails on plain error review.

To establish a claim of pre-indictment delay under the Due Process clause, a 

defendant must show “that the government deliberately delayed bringing the indictment 

in order to obtain an improper tactical advantage or to harass him” and “that the delay 

between the crime and the federal indictment actually prejudiced his defense[.]” United 

States v. Beckett, 208 F.3d 140, 150-51 (3d Cir. 2000). “The Due Process Clause does 

not require prosecutors to file charges as soon as probable cause exists, or even ... [when]

the government’s investigation, though incomplete, has assembled sufficient evidence to 

prove guilt beyond a reasonable doubt.” Id. at 151. “The mere possibility of prejudice 

inherent in any extended delay,” such as unavailable witnesses or lost evidence, is not 

enough to demonstrate actual prejudice. United States v. Ismaili, 828 F.2d 153, 168 (3d 

Cir. 1987).

 

7

 Diallo also claims that pre-indictment delay violated his Sixth Amendment 

rights, but such a claim is not cognizable under the Sixth Amendment. See United States 

v. Marion, 404 U.S. 307, 313 (1971) (“[T]he Sixth Amendment speedy trial provision has 

no application until the putative defendant in some way becomes an ‘accused,’ an event 

that occurred in this case only when the appellees were indicted[.]”).
11

Here, Diallo has not shown that the government deliberately delayed its indictment 

to gain an improper tactical advantage or to harass him. The investigation included 

undercover exchanges of SNAP benefits for cash on several dates between September 10, 

2011, and February 4, 2015. The agents used different tactics on different days in their

investigative efforts to obtain more evidence. The government was under no obligation 

to indict Diallo as soon as its evidence was sufficient to show probable cause or guilt 

beyond a reasonable doubt. 

Moreover, Diallo has not claimed that the alleged delay caused him to lose access 

to any evidence, that it made witnesses unavailable, or that it resulted in faded memories. 

He complains that, because the investigation extended over more than three years, the 

government caused him to be liable for a larger loss amount. That is an odd way to view 

where the responsibility for mounting losses lies. The loss amount was due to Diallo’s 

choice to continue stealing from the government, not from the government’s efforts to

gather more evidence before prosecuting him. There was no prejudicial pre-indictment 

delay, and the claim that there was is also frivolous.

3. The Court’s Calculation Of The Loss Amount Was Not 

Unreasonable.

Finally, Diallo disagrees with the Court’s method for calculating the loss amount

for purposes of sentencing. The loss amount can be calculated as “the amount of money 

the victim has actually lost,” United States v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999)

(citation omitted), and it must be proved by a preponderance of the evidence, United 

States v. Ali, 508 F.3d 136, 145 (3d Cir. 2007). “The court need only make a reasonable 
12

estimate of the loss” and “the court’s loss determination is entitled to appropriate 

deference.” U.S.S.G. § 2B1.1, cmt. n.3(C).

Here, the loss amount in the PSR was a reasonable estimate of the actual loss to 

the government resulting from Diallo’s scheme to exchange SNAP benefits for cash. 

Diallo’s scheme defrauded the government out of the full value of the SNAP benefits

because SNAP recipients did not receive any food. Thus, the amount of SNAP benefits 

that Diallo received from fraudulent transactions is a reasonable assessment of the loss to 

the government. 

The calculation method was reasonable because it relied on evidence that was 

admitted at trial, was limited to manual transactions at the Brothers Food Market, 

excluded a reasonable estimate of legitimate manual transactions, and was confined to the 

period when the fraud scheme was active. Diallo contends that the District Court should 

have used a different method that would have used accounting data from his store and 

those from comparable stores. But just because there may have been other methods to 

calculate the loss amount does not mean that the Court’s chosen method was 

unreasonable. Thus, because the loss calculation was plainly reasonable, that claim also

is frivolous.

III. CONCLUSION

For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm 

the District Court’s judgment of conviction and sentence.