10-4734-cr
United States v. Hiralall

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30th day of December, two thousand eleven.

PRESENT: REENA RAGGI,
         SUSAN L. CARNEY,
                   Circuit Judges,
         MARK R. KRAVITZ,
                   District Judge.*

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UNITED STATES,
                                       Appellee,
                             v.                                                         No. 10-4734-cr

MEERADAI HIRALALL,
                                       Defendant-Appellant,
                             v.

AMAR KUMAR BALKARAN,
                 Defendant.**
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           *
        Judge Mark R. Kravitz of the United States District Court for the District of
Connecticut, sitting by designation.
           **
                The Clerk of the Court is directed to amend the official caption to read as shown
above.
FOR APPELLANT:              Frederick H. Cohn, Esq., New York, New York.

FOR APPELLEE:               Winston M. Paes, Susan Corkery, Assistant United States
                            Attorneys, Of Counsel, for Loretta E. Lynch, United States
                            Attorney for the Eastern District of New York, Brooklyn, New
                            York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sandra L. Townes, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on November 15, 2010, is AFFIRMED.

       Defendant Meeradai Hiralall, who was sentenced to 24 months’ imprisonment, three

years’ supervised release, and $1,435,307.11 in restitution for her commission of food stamp

fraud, see 7 U.S.C. § 2024(c), challenges the restitution component of her judgment on the

grounds that (1) her fraudulent conduct did not cause the United States any loss, and (2) the

district court failed to consider her ability to pay. “We review an order of restitution

deferentially, and we will reverse only for abuse of discretion. To identify such abuse, we

must conclude that a challenged ruling rests on an error of law, a clearly erroneous finding

of fact, or otherwise cannot be located within the range of permissible decisions.” United

States v. Aumais, 656 F.3d 147, 151 (2d Cir. 2011) (internal quotation marks omitted). We

assume familiarity with the underlying facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.




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1.     Loss to the United States

       Hiralall pleaded guilty to orchestrating a scheme whereby, as the proprietor of a

grocery store approved to participate in the federal food stamp program, she bought food

stamps with cash, usually paying only a fraction of the full value that she received from the

United States upon redemption. Although Hiralall admits that the United States was the

victim of her fraud and that she diverted $1,435,307.11 in food stamps from their intended

use, she maintains that she should not have been ordered to pay restitution under 18 U.S.C.

§ 3663 because the United States did not sustain a loss. As Hiralall reasons, regardless of

whether food stamp recipients use their benefits legitimately or illegitimately, the United

States receives nothing in return; therefore, “the government, in terms of pecuniary loss, was

in exactly the same position after the fraud, that it would have been had there been no fraud.”

Def.’s Br. 6.

       This court has previously rejected this argument, holding that when food stamps are

converted into cash, the United States suffers a loss because federal program benefits are

diverted from their intended use. See United States v. Uddin, 551 F.3d 176, 179–81 (2d Cir.

2009) (affirming district court’s restitution order calculating total loss caused by food stamp

fraud in terms of the estimated amount of food stamps converted into cash); United States

v. Cheng, 96 F.3d 654, 657–58 (2d Cir. 1996) (affirming district court’s order of restitution

based on “actual loss” to United States, i.e., amount of government benefits diverted from

intended use). Thus, the district court appropriately determined that the government

sustained a loss and that Hiralall should pay restitution under 18 U.S.C. § 3663.

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2.     Ability to Pay

       Hiralall contends that the district court erred by failing to consider her ability to pay.

See 18 U.S.C. § 3663(a)(1)(B)(i) (“The court, in determining whether to order restitution

under this section, shall consider . . . the financial resources of the defendant [and] the

financial needs and earning ability of the defendant and the defendant’s dependents . . . .”).

Hiralall did not raise this objection at sentencing, and we therefore review for plain error.

See United States v. Marino, 654 F.3d 310, 316 (2d Cir. 2011). We identify no such error

here because the district court considered Hiralall’s ability to pay restitution.

       Specifically, the district court adopted the Presentence Investigation Report’s (“PSR”)

findings, with one amendment in defendant’s favor, regarding Hiralall’s net worth and

monthly cash flow. See United States v. Thompson, 113 F.3d 13, 15 (2d Cir. 1997) (stating

that district court’s adoption of PSR that adequately sets forth defendant’s financial resources

and earning ability “tends to support a finding that the court in fact considered the [statutory]

factors” (internal quotation marks omitted)). The PSR’s amended findings establish that

Hiralall had a net worth of $275,761.20, and Hiralall did not submit opposing evidence of

restricted future earning capacity. See United States v. Ben Zvi, 242 F.3d 89, 100 (2d Cir.

2001) (“[I]n the absence of a defendant showing a restricted future earnings potential by a

preponderance of the evidence, it is entirely reasonable for a district judge to presume future

earnings in ordering restitution.”).      Finally, the district court imposed a payment

schedule—$25 per quarter while in custody, and 10% of her monthly gross income upon

release—that accommodated Hiralall’s inability to pay the restitution immediately. In sum,

                                               4
the district court satisfied its § 3663(a)(1)(B)(i) obligation to consider Hiralall’s ability to pay

in ordering restitution.

3.     Conclusion

       For the foregoing reasons, the judgment of conviction is AFFIRMED.

                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, Clerk of Court




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