In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3423
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ILLI A LAKA,
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.
A RGUED A PRIL 20, 2010—D ECIDED JULY 27, 2010
Before F LAUM, W OOD , and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Defendant-appellant Billi Alaka
participated in a conspiracy to steal identifying infor-
mation 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 respon-
sible 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 unau-
thorized access devices to obtain things of value aggre-
gating $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 on-
line 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 with-
drawals 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 associ-
ated with online transfers and counterfeit checks.
At Alaka’s sentencing hearing, the government relied
on appellant’s own post-arrest statements and the testi-
mony of United States Secret Service Special Agent Brian
Speedy. Agent Speedy described the investigation into
the conspiracy and the individual transactions that com-
prised 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 govern-
ment subsequently found a fake ID with Alaka’s photo-
graph 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 with-
drawing 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 govern-
ment 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 Wash-
ington Mutual account. In his post-arrest statement,
Alaka also admitted to using the personal identification
information for James White, Jr. to open a separate ac-
count 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 with-
drawals from Tran.
These losses total $224,627.13. Alaka admits responsibility
for taking an additional $42,600 from Sean Williams,
6 No. 09-3423
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”) recom-
mended 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,1 which
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
1
The specific amount of loss for which Alaka acknowledges
responsibility is unclear from appellant’s brief, but does not
affect the resolution of this case.
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 trans-
action that resulted in the $267,000 loss. Rather, the gov-
ernment 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 govern-
ment also showed that Alaka lived with Adams while
the conspiracy was taking place and that appellant with-
drew money for or transferred money to Adams on
several occasions. On this record, the district court
reached the permissible conclusion that all of the fraudu-
lent transactions described above were reasonably fore-
seeable 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 defen-
dant “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 sen-
tenced for drug quantities that he did not handle, so
long as he could reasonabl[y] foresee that the drug trans-
action 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 identifica-
tion, 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 ac-
counts, 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 guidelines-
calculation error was not harmless).
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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