People v. Zaibak

Illinois Official Reports

Appellate Court

People v. Zaibak, 2014 IL App (1st) 123332

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption EMAD ZAIBAK, Defendant-Appellant.

District & No. First District, First Division
Docket No. 1-12-3332

Filed December 8, 2014

Held On appeal from defendant’s convictions for organizing a continuing
(Note: This syllabus financial crimes enterprise and predicate convictions for theft by
constitutes no part of the unauthorized control, theft by deception, and loan fraud, the appellate
opinion of the court but court held that defendant failed to establish that the “organizer of a
has been prepared by the continuing financial crimes enterprise” statute was unconstitutionally
Reporter of Decisions vague as applied to him, that the trial court properly admitted certain
for the convenience of loan files as business records, and that defendant was guilty of two
the reader.) counts of being an organizer of a continuing financial crimes
enterprise, but one count of being an organizer of a continuing
financial crimes enterprise and three predicate convictions of theft by
unauthorized control were vacated and the cause was remanded for
resentencing.

Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-2035-01;
Review the Hon. Stephen J. Connolly, Judge, presiding.

Judgment Affirmed in part and vacated in part. Cause remanded with directions.
 Counsel on Marc Martin, Ltd., of Chicago (Marc W. Martin, of counsel), and Law
Appeal Offices of John J. Eannace, of Palos Heights (John J. Eannace, of
counsel), for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michael Z. Zhu, and Brian K. Hodes, Assistant State’s Attorneys, of
counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.

OPINION

¶1 The circuit court convicted defendant, Emad Zaibak, after a bench trial of three counts of
organizing a continuing financial crimes enterprise. 720 ILCS 5/16H-55 (West 2006). Those
three counts, in turn, were based on defendant being convicted of the following predicate
convictions: three counts of theft by unauthorized control; three counts of theft by deception;
and three counts of loan fraud. Defendant raises the following issues for our review: (1)
whether the “organizer of a continuing financial crimes enterprise” statute (720 ILCS
5/16H-55 (West 2006)) is unconstitutionally vague; (2) whether the circuit court abused its
discretion when it admitted the contents of loan files from two banks, Washington Mutual
and Harris Bank, as business records; (3) whether the State provided sufficient evidence to
convict him of loan fraud (720 ILCS 5/16H-30 (West 2006)); and (4) whether the State
provided sufficient evidence to convict him of being an organizer of a continuing financial
crimes enterprise (720 ILCS 5/16H-55 (West 2006)). Additionally, the parties agree that
defendant’s conviction for being an organizer of a continuing financial crimes enterprise
based on the three predicate convictions of theft by unauthorized control should be vacated.
The parties, however, disagree on whether the matter needs to be remanded for resentencing.
¶2 We hold defendant has not satisfied his burden of proving that the “organizer of a
continuing financial crimes enterprise” statute (720 ILCS 5/16H-55 (West 2006)) is
unconstitutionally vague as applied to him. Further, the circuit court did not abuse its
discretion when it admitted the contents of the respective loan files as business records, and
the State presented sufficient evidence showing defendant committed loan fraud (720 ILCS
5/16H-30 (West 2006)) and two counts of being an organizer of a continuing financial crimes
enterprise (720 ILCS 5/16H-55 (West 2006)). We agree with the parties that one of
defendant’s convictions for being an organizer of a continuing financial crimes enterprise,
and the three predicate convictions of theft by unauthorized control that the conviction is
based on, must be vacated. Therefore, we vacate those convictions and remand the matter to
the circuit court solely for resentencing.

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¶3 JURISDICTION
¶4 The circuit court sentenced defendant on October 19, 2012. Defendant timely filed his
notice of appeal on October 20, 2012. Accordingly, this court has jurisdiction pursuant to
article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and
606, governing appeals from a final judgment of conviction in a criminal case entered below.
Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶5 BACKGROUND
¶6 A grand jury charged defendant and others with 33 fraud-related counts involving 10 real
estate loans on 8 properties. Codefendants Ocie Johnson, John Bobak, and Omar Alzaibak
entered guilty pleas and executed cooperation agreements. After defendant waived his right
to a jury trial, the circuit court conducted a bench trial on 12 counts, based on three 2007
financial transactions involving two properties: a mortgage and a home equity line of credit
for property located at 106 Forest Edge, in Palos Park, Illinois, and a mortgage for property
located at 221 Sawgrass in Palos Heights, Illinois. Codefendants Sam Elayyan and Nate
Morgan1 were also tried with defendant, although Elayyan had a jury trial. Relevant here,
counts IX, XI, and XIII of the indictment against defendant alleged theft by deception. Those
counts served as the predicate to count II, which alleged defendant was an organizer of a
continuing financial crimes enterprise. Counts XXVI through XXVIII alleged defendant
committed loan fraud, and also served as the predicate for count III, which contained another
allegation against defendant for being an organizer of a continuing financial crimes
enterprise.2

¶7 The Lending Center and Silver Key Lending and Investment Group
¶8 Around 2004, defendant and his colleague John Kocher opened a mortgage brokerage,
The Lending Center, as equal partners. Defendant became the president of the organization.
The Lending Center served as a loan originator but did not underwrite loans. Eventually,
Kocher and defendant’s relationship deteriorated, and Kocher dissociated himself from The
Lending Center in the spring of 2007. Kocher maintained a formal interest in the company
until May 8, 2009.
¶9 After defendant and Kocher’s relationship ended, defendant opened up Silver Key
Lending and Investment Group (Silver Key) with his childhood friend Youssef Allen.
Defendant and Allen set up Silver Key’s office at 744 North Wells Street, in Chicago,
Illinois. At first, Silver Key had four employees: defendant, Allen, Stella Brown, and
defendant’s uncle Aimen Rafati. Stella Brown had worked as a loan processor for The
Lending Center. Defendant later “started filling the office with people,” including Nate
Morgan. Brown did not remember what Morgan did, but recalls Rafati referred to Morgan as
one of defendant’s “boys.”

1
Morgan was charged in a separate but similar indictment.
2
As discussed supra, the parties agree that counts I, VIII, IX, and X should be vacated, but disagree
on whether this court should remand the matter for resentencing.

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¶ 10 106 Forest Edge Property
¶ 11 John Bobak, a builder doing business as J.B. Builders, purchased a lot at 106 Forest Edge
in Palos Park, Illinois, and built a home on it. He hired Laura Burns, a real estate agent, to
sell the home. Defendant told Burns that he was interested in the house for his parents. Bobak
showed defendant the house, which defendant liked. On May 5, 2007, defendant and Bobak
met at Burns’ office and negotiated a contract for the purchase of the property for $2.2
million, which included extras and improvements. Burns drafted the contract as a ministerial
agent for both parties. The contract lists Bobak as the seller and defendant’s father and
codefendant Omar Alzaibak as the buyer. The defendant is not a buyer in the contract. Bobak
signed the contract and defendant, using his father’s initials, initialized each page of the
contract. At that time, Burns and Bobak had not met Alzaibak, and Alzaibak did not attend
the meeting or provide any input to Burns about what should go into the contract.
¶ 12 The contract designated The Lending Center as the mortgage company. Defendant
arranged for Washington Mutual to provide $1.7 million in mortgage financing for Alzaibak.
Defendant had Alzaibak sign the mortgage application, which Alzaibak did not read or
understand. The application falsely stated that Alzaibak made $38,000 a month as the
chairman of the board of Zaibak Center for Dentistry. Defendant’s brother, Zyad Zaibak,
operated a dental practice named Zaibak Center for Advanced Dentistry, but he did not
employ or pay Alzaibak. The application also falsely stated that Alzaibak made $30,000 a
month as the chairman of Lina Enterprises. Alzaibak did own a grocery store in 2005 named
Lina Enterprises, but he did not make $30,000 a month from operating it. The application
also falsely stated Alzaibak shared a Harris Bank account with his ex-wife that had a balance
of $855,322.81 on April 9, 2007, and $446,110.81 on May 9, 2007. Alzaibak admitted that
the information on the loan application was not true. According to the application, Alzaibak
also owned property at 14007 South 84th Street in Orland Park, Illinois, without
encumbrance, which was untrue as he relinquished his interest in the property in 2002 by
conveying it in a quitclaim deed to his ex-wife and defendant. Defendant falsely documented
Alzaibak’s financial condition with fabricated Harris Bank records showing the purchases of
a $450,000 cashier’s check; a remaining balance of $446,110, a false earnest money cashier’s
check, and a letter from Alzaibak’s former accountant, Adnan Elhaj, of HAJ Financial, Inc.,
falsely attesting to Alzaibak’s employment. Elhaj testified that the documents submitted
using HAJ Financial’s letterhead regarding Alzaibak’s financial situation were false. He was
never asked to prepare any letters regarding Alzaibak’s finances to Washington Mutual or
Harris Bank.
¶ 13 On June 4, 2007, the closing occurred for the sale of the 106 Forest Edge property. The
closing was a “dry closing” in that legal documents were signed but no money changed
hands. Defendant, his parents, Rafati, Bobak, and Bobak’s attorney were in attendance.
Defendant directed Alzaibak what to sign and initial. Washington Mutual disbursed
$1,767,853 to various parties, including: $1,063,324 to Archer Bank to pay Bobak’s first
mortgage; $611,598 to Bobak as seller’s proceeds; $61,250 to Bobak’s agent, Century 21;
and $15,804 to The Lending Center. The proceeds that went to The Lending Center were
deposited into defendant’s personal account.
¶ 14 Bobak, as reflected in the contract and the settlement sheet at closing, was to receive
$450,000 in earnest money from Alzaibak. Defendant and Bobak agreed in advance that the
contract would falsely state that Alzaibak tendered the $450,000 in earnest money in order to

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 induce Washington Mutual into providing more funding than it typically would have done.
The Washington Mutual loan file included a Harris Bank cashier’s check that paid Bobak
$450,000 earnest money that was used to apply for the mortgage at 106 Forest Edge. Bobak
testified he had never seen the check before. Defendant and Bobak had a side agreement
whereby Bobak would complete various improvements on the house for $100,000.
Washington Mutual would have denied financing had this been part of the sale agreement.
Bobak subsequently tried to collect from defendant and Alzaibak. He eventually placed an
$80,000 lien on the house.

¶ 15 Home Equity Line of Credit
¶ 16 After the closing of 106 Forest Edge, defendant contacted Harris Bank manager Rami
Haleem to obtain a home equity line of credit on the property. Defendant told Haleem the
property was worth $2.65 million. Defendant explained in a June 7, 2007, email to Angel
Ulan, a banker managed by Haleem, that he needed the home equity line of credit to be
obtained quickly, stating: “My dad owns this house free and clear. However, we need [a
home equity line of credit] as soon as possible. I have an investment coming up on the 15th
of June that I will need close to million dollars for. Please help me in expediting this.”
Defendant sent Ulan a uniform residential loan application and other documents for the home
equity line of credit.
¶ 17 The home equity line of credit loan application was submitted under a program that
extended credit based on credit history as opposed to documentation. The application falsely
identified Alzaibak as the senior vice president of The Lending Center for the previous 4½
years. It also indicated that he earned $66,000 a month and had $700,000 in liquid assets.
Defendant also sent Ulan a false settlement statement indicating that Alzaibak paid $1.75
million in cash and $450,000 in earnest money at closing. When Harris Bank ran Alzaibak’s
credit report on June 7, 2007, it had not yet reflected the $1.75 million mortgage to
Washington Mutual because it usually takes about 30 days for a loan to appear on a credit
report.
¶ 18 Harris Bank approved a $1.4 million home equity line of credit to Alzaibak on June 15,
2007. On June 29, 2007, defendant directed Alzaibak to complete paperwork at an Orland
Park, Illinois, branch of Harris Bank. Alzaibak, after completing the paperwork, authorized a
request from defendant to have the entire home equity line of credit placed in defendant’s
Harris Bank account. On July 7, 2007, Harris Bank disbursed $1.4 million directly into
defendant’s checking account.
¶ 19 Defendant, Alzaibak, and other family members moved into the home at 106 Forest
Edge. Alzaibak was under the impression that defendant was making the mortgage payments.
The mortgage went into default in less than a year.

¶ 20 221 Sawgrass Property
¶ 21 Ocie Johnson earned $8 an hour in early 2007 and lived at his mother’s house in Dolton,
Illinois. Johnson boasted to Eric Peoples, an auto shop owner, that he had a good credit score.
Peoples introduced Johnson to Nate Morgan later that week. Morgan, Johnson, and Peoples
discussed his credit score and employment situation. Morgan told Johnson that they “could
do business” due to his good credit score. Morgan asked Johnson to send him a copy of his

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 driver’s license and social security information, which Johnson did. Several weeks later,
Morgan had Johnson open a credit card account at Home Depot. Morgan also had Johnson
open an account up at J.P. Morgan Chase. When Johnson received his credit card in the mail,
he gave it to Morgan.
¶ 22 Several weeks later, Morgan drove Johnson to Silver Key’s office at 744 North Wells
Street in Chicago and met defendant. Defendant told Johnson that he helped people,
including professional athletes, purchase houses. He gave Johnson his Silver Key business
card. After Morgan and defendant talked with one another, defendant told Johnson that he
had some papers for him to sign and initial. Upon Johnson’s signing of the documents,
Morgan turned them face side down. Morgan handed all of the documents to defendant.
Johnson did not read or understand the documents he signed, but he was told by Morgan that
the documents were for the house they were “getting.” About a week later, Morgan called
Johnson and informed him that a driver would pick him up. The driver drove Johnson to
defendant’s office, where Johnson met defendant and Morgan. Johnson signed more
documents given to him by defendant. Morgan again collected the documents in the same
manner as before and handed them to defendant.
¶ 23 On September 7, 2007, Morgan drove Johnson to defendant’s office. While driving,
Morgan told Johnson that they were “about to get the house.” After going to defendant’s
office, defendant, Johnson, Morgan, and one other person took a cab to what Johnson thought
was the upstairs room of a bank. Codefendant Sam Elayyan and several other people were
there. Morgan introduced Johnson to Elayyan as the owner of Dupont Motors and Fresh
Wear clothing store. A woman told Johnson she was his attorney and showed him where to
initial and sign several documents. Afterwards, Morgan told Johnson that he got “his money”
and that he would give Johnson his share.
¶ 24 Johnson had purchased a $2.45 million home from Elayyan located at 221 Sawgrass in
Palos Heights, Illinois. Silver Key prepared and submitted the mortgage loan application to
Washington Mutual for Johnson. Defendant is listed as the interviewer who prepared
Johnson’s application. The application falsely lists Johnson as renting his residence at 1620
South Michigan Avenue, No. 1107, in Chicago, Illinois for $4,700 a month. Defendant
owned this property, and Johnson never lived there. The application also falsely listed
Johnson as a manager at Dupont Motors. It stated he made $39,000 a month. It also stated he
had a J.P. Morgan Chase account with a balance of $665,000. The application also stated that
Johnson had paid $490,000 in earnest money and planned to use the property as his primary
residence. Silver Key documents falsely stated Johnson’s financial status with false bank
statements from J.P. Morgan Chase, a false earnest money check, false utility bills from 1620
South Michigan Avenue, and false rent verification. The Washington Mutual file shows a fax
from Dupont Motors verifying Johnson’s employment from February of 2004.
¶ 25 Washington Mutual approved the loan and disbursed $1.96 million. Included in this
disbursement was $1,303,635 to pay Elayyan’s first mortgage; $94,255 to pay Elayyan’s
second mortgage; $540,496 to Elayyan as seller’s proceeds; and $53,936 to Silver Key for
being the broker. Elayyan endorsed the $540,496 seller’s proceeds check to defendant.
Defendant gave $100,000 to Morgan. Defendant, by wire transfer from his personal Harris
Bank account, paid $330,500 to Elayyan’s account. Morgan wrote Johnson a $7,000 check.
Although he visited the property at 221 Sawgrass two times, Johnson never lived there.

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 Johnson thought Morgan was making the mortgage payments because he lived there. In
January of 2008, the property went into foreclosure.

¶ 26 Loan Files
¶ 27 Prior to trial, defendant objected to the admission of the loan files for the 221 Sawgrass
property and the 106 Forest Edge property under the business records rule. After argument,
the court allowed the loan files to be admitted as business records.
¶ 28 At trial, the State presented Washington Mutual’s loan files through the testimony of
Brett Hellstrom. Hellstrom testified he was employed by J.P. Morgan Chase as a loan review
quality analyst, which he described as a “form of underwriting.” He had been employed with
Washington Mutual as a senior mortgage underwriter before the federal government shut it
down. Once J.P. Morgan Chase bought Washington Mutual, Hellstrom began working for
J.P. Morgan Chase and authorized him as the keeper of the records for Washington Mutual’s
2007 loan files. Hellstrom testified Washington Mutual kept the records in the ordinary
course of business. He reviewed the loan files before and at trial. The contents of the loan
files were admitted for the purchase of 221 Sawgrass and 106 Forest Edge as business
records. The files also documented the pay history and servicing of the loans. J.P. Morgan
Chase also made Hellstrom keeper of the records for records it kept in the ordinary course of
business for documents admitted into evidence including separate bank account statements
for Elayyan and Johnson.
¶ 29 Julie Krecji, who was authorized by Harris Bank as custodian of its records, supplied a
business records affidavit of certification for Harris Bank statements of defendant,
defendant’s mother Aida Rafati, and Alzaibak. Krecji, in the certificate of authenticity of
business records, stated that the documents were original records made at or near the time of
the occurrence and were kept in the ordinary course of business.
¶ 30 The circuit court found defendant guilty of all 12 counts at issue. Defendant filed a
motion for a new trial, which the circuit court denied. Relevant here, defendant again
objected to the admission of the business records as testified to by Brett Hellstrom and as
attested to by Julie Krecji. The circuit court sentenced defendant to concurrent 12-year prison
terms for being an organizer of a financial crime enterprise, theft and loan fraud. The State
nol-prossed the remaining 21 counts against defendant and also charges brought against him
under case number 10 CR 15492. Defendant timely appealed.

¶ 31 ANALYSIS
¶ 32 Defendant first argues that the “organizer of a financial crimes enterprise” statute (720
ILCS 5/16H-55 (West 2006)) is unconstitutionally vague because it fails to define the
following terms contained therein: “organizer”; “supervisor”; “financier”; and “other position
of management.” In response, the State maintains that the statute is constitutional and argues
that none of the authority defendant puts forth in his brief is relevant as cases defendant relies
upon deal with federal sentencing guidelines.
¶ 33 Challenges to the constitutionality of a statute are questions of law subject to de novo
review. People v. Masterson, 2011 IL 110072, ¶ 23. Statutes are presumed to be
constitutional. People v. Johnson, 225 Ill. 2d 573, 584 (2007). Whenever reasonably possible,
courts of review are to uphold the constitutionality of a statute. Masterson, 2011 IL 110072,

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 ¶ 23. The challenging party has the burden of proving the unconstitutionality of a statute.
People v. Molnar, 222 Ill. 2d 495, 509 (2006). Whenever reasonably possible, we have a duty
to construe a statute to uphold its validity and constitutionality. People v. Bailey, 167 Ill. 2d
210, 225 (1995). When interpreting a statute in the face of a constitutional challenge, we
must remember to “ascertain and give effect to the legislature’s intent in enacting the
statute.” Bailey, 167 Ill. 2d at 225. Accordingly, “an interpretation that renders a statute valid
is always presumed to have been intended by the legislature.” Id.
¶ 34 A statute is unconstitutionally vague, and violates due process, “only if the terms of the
statute are so ill-defined ‘that the ultimate decision as to its meaning rests on the opinions and
whims of the trier of fact rather than any objective criteria or facts.’ ” People v. Molnar, 222
Ill. 2d 495, 524 (2006) (quoting People v. Burpo, 164 Ill. 2d 261, 265-66 (1995)). A
vagueness challenge fails, and due process is satisfied, where: “(1) the statute’s prohibitions
are sufficiently definite, when measured by common understanding and practices, to give a
person of ordinary intelligence fair warning as to what conduct is prohibited; and (2) the
statute provides sufficiently definite standards for law enforcement and triers of fact that its
applications do not depend merely on their private conceptions.” Molnar, 222 Ill. 2d at
524-25. “An act is not, however, unconstitutionally vague simply because one can conjure up
a hypothetical dispute over the meaning of some of the act’s terms.” People v. Greco, 204 Ill.
2d 400, 416 (2003).
¶ 35 We note that defendant has not shown that his vagueness challenge implicates the first
amendment. Our supreme court has held that “[t]o prevail on a vagueness challenge to a
statute that does not implicate first amendment concerns, a party must demonstrate that the
statute was vague as applied to the conduct for which the party is being prosecuted.” Bailey,
167 Ill. 2d at 228. As previously stated, it is defendant’s burden to prove the
unconstitutionality of a statute. Molnar, 222 Ill. 2d at 509. Defendant here, however, has not
shown how his challenge implicates the first amendment. Accordingly, we will consider his
challenge as applied to his conduct for which he was prosecuted.
¶ 36 The “organizer of a financial crimes enterprise” statute, section 16H-55, part of the
Illinois Financial Crime Law, provides:
“(a) A person commits the offense of being an organizer of a continuing financial
crimes enterprise when the person:
(1) with the intent to commit an offense under this Article, or, if involving a
financial institution, any other felony offense established under this Code, agrees
with another person to the commission of that offense on 3 or more separate
occasions within an 18 month period, and
(2) with respect to the other persons within the conspiracy, occupies a position
of organizer, supervisor, or financier or other position of management.
(b) The person with whom the accused agreed to commit the 3 or more offenses
under this Article, or, if involving a financial institution, any other felony offenses
established under this Code, need not be the same person or persons for each offense,
as long as the accused was a part of the common scheme or plan to engage in each of
the 3 or more alleged offenses.” (Emphasis added.) 720 ILCS 5/16H-55 (West 2006).
¶ 37 The General Assembly, in its legislative declaration for the Illinois Financial Crime Law,
provided:

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 “It is the public policy of this State that the substantial burden placed upon the
economy of this State resulting from the rising incidence of financial crime is a matter
of grave concern to the people of this State who have a right to be protected in their
health, safety and welfare from the effects of this crime.” 720 ILCS 5/16H-5 (West
2006).
¶ 38 After reviewing the statute, as applied to defendant’s status as an organizer, supervisor, or
manager, we hold the statute’s terms, i.e., whether a person “occupies a position of organizer,
supervisor, *** or other position of management,” are sufficiently definite to give a person of
ordinary intelligence warning of what conduct is prohibited under the “organizer of a
continuing financial crimes enterprise” statute and provides definite standards for application
by law enforcement or a trier of fact. 720 ILCS 5/16H-55 (West 2006); Molnar, 222 Ill. 2d at
524-25. The clear terms of the statute specify that the person has to be an organizer or
supervisor or in another position of management. We cannot say that an ordinary person
would have any difficulty determining whether someone organized, supervised, or managed
a continuing financial crimes enterprise. Defendant had the burden of proving that the
statute’s terms “are so ill-defined ‘that the ultimate decision as to [their] meaning rests on the
opinions and whims of the trier of fact rather than any objective criteria or facts.’ ” Molnar,
222 Ill. 2d at 524 (quoting Burpo, 164 Ill. 2d at 265-66). We hold that he has not carried that
burden here as the terms of the statute are not unconstitutionally vague as applied to him.

¶ 39 Business Records
¶ 40 Defendant next argues that the circuit court erred when it admitted the contents of the
loan files as business records because the State did not lay a proper foundation for them and
they contained multiple levels of hearsay. The State disputes defendant’s contention and
argues that the circuit court did not abuse its discretion where it admitted the contents of the
loan files for purposes beyond the scope of hearsay.
¶ 41 Rule 902 of the Illinois Rules of Evidence provides a list of self-authenticated evidence,
where “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not
required.” Ill. R. Evid. 902 (eff. Jan. 1, 2011). Rule 902(11) provides, in relevant part:
“(11) Certified Records of Regularly Conducted Activity. The original or a
duplicate of a record of regularly conducted activity that would be admissible under
Rule 803(6) if accompanied by a written certification of its custodian or other
qualified person that the record
(A) was made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of these matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The word ‘certification’ as used in this subsection means with respect to a
domestic record, a written declaration under oath subject to the penalty of perjury
***. A party intending to offer a record into evidence under this paragraph must
provide written notice of that intention to all adverse parties, and must make the
record and certification available for inspection sufficiently in advance of their offer
into evidence to provide an adverse party with a fair opportunity to challenge them.”
Ill. R. Evid. 902(11) (eff. Jan. 1, 2011).

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¶ 42 Rule 803 of the Illinois Rules of Evidence, in turn, provides a list of hearsay exceptions
that are not excluded by the hearsay rule, even though the declarant is unavailable. Rule
803(6) provides, in relevant part:
“(6) Records of Regularly Conducted Activity. A memorandum, report, record, or
data compilation, in any form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the memorandum, report,
record or data compilation, all as shown by the testimony of the custodian or other
qualified witness, or by certification that complies with Rule 902(11), unless the
source of information or the method or circumstances of preparation indicate lack of
trustworthiness, but not including in criminal cases medical records.” Ill. R. Evid.
803(6) (eff. Jan. 1, 2011).
¶ 43 It is within the circuit court’s discretion to admit evidence, and we will not reverse the
circuit court’s decision absent an abuse of that discretion. People v. Becker, 239 Ill. 2d 215,
234 (2010). “An abuse of discretion occurs where the trial court’s decision is arbitrary,
fanciful or unreasonable [citation] or where no reasonable person would agree with the
position adopted by the trial court [citations].” Id.
¶ 44 At trial, Washington Mutual’s loan files were presented through the testimony of Brett
Hellstrom while Harris Bank’s loan documents were entered into evidence through a Rule
902(11) business records affidavit of certification from Julie Krecji. Hellstrom testified he
was the authorized keeper of the records for Washington Mutual’s mortgage underwriting
files for the year 2007. He described his position at Washington Mutual and his eventual
employment with J.P. Morgan Chase after Washington Mutual’s demise. He testified that he
had reviewed the files, which were kept in the ordinary course of business. He had also been
made keeper of the records for J.P. Morgan Chase’s records kept in the ordinary course of
business regarding the bank accounts of Elayyan and Johnson. Krecji stated in her affidavit
that the documents were original records made at or near the time of the occurrence and kept
in the normal course of business.
¶ 45 Our review of the record shows that the circuit court did not abuse its discretion when it
admitted the relevant loan documents into evidence as attested to by the representatives of
Washington Mutual and Harris Bank. The State laid a proper foundation, as shown above,
and the circuit court admitted the documents, not to prove the truth of the matter asserted,
but, rather, they were introduced to show that they were contained in Washington Mutual’s
and Harris Bank’s files. Defendant does not dispute that he had the opportunity to review the
documents or that Hellstrom and Krecji were authorized as custodial record keepers by
Washington Mutual and Harris Bank. After reviewing Hellstrom’s testimony and Krecji’s
affidavit, we cannot say that the circuit court’s decision to admit their respective testimony
was arbitrary, fanciful, or unreasonable. Becker, 239 Ill. 2d at 234. Accordingly, we hold the
circuit court did not abuse its discretion when it admitted loan documents contained in the
files of the victims of this case, Washington Mutual and Harris Bank.

¶ 46 Sufficiency of the Evidence
¶ 47 Defendant challenges the sufficiency of the evidence of his convictions for being an
organizer of a continuing financial crime and for loan fraud. Defendant does not contest his

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 convictions for theft by deception under counts IX, X, and XI, which served as the predicate
offenses for his conviction for being an organizer of a continuing financial crime under count
II. Accordingly, defendant challenges the sufficiency of the evidence for his convictions for
being an organizer of a continuing financial crime under counts II and III, and for loan fraud
under counts XXVI through XXVIII.
¶ 48 Defendant argues that de novo review is appropriate here because he is not asking this
court to reweigh the evidence or make a credibility determination. Rather, he is asking this
court to analyze the elements of a criminal statute to determine its essential elements. The
State agrees that this court’s review of what a statute proscribes is subject to de novo review,
but it argues that defendant’s challenge to the sufficiency of the evidence proving the
elements of the crime is subject to the standard of review put forth in Jackson v. Virginia, 443
U.S. 307 (1979), i.e., “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Emphasis in original.) Id. at 319. We agree with the State and
will use de novo review when determining matters of statutory construction, but we will use
the Jackson standard of review to determine whether the State presented sufficient evidence
to satisfy the elements of the crime charged. Accordingly, we will first review the issues
defendant raises that require statutory interpretation before determining whether the State
presented sufficient evidence to convict defendant of loan fraud as alleged in counts XXVI
through XXVIII and being an organizer of a continuing financial crimes enterprise as alleged
in counts II and III.
¶ 49 The interpretation of a statute’s provisions is a question of law reviewed de novo. People
v. Davis, 199 Ill. 2d 130, 135 (2002). When construing a statute, we must determine the
legislature’s intent by looking at the plain and ordinary meaning of the language of the
statute. Molnar, 222 Ill. 2d at 518. Statutory language that is clear and unambiguous will be
applied without reliance on aids of statutory construction. Id. at 518-19. We will view the
statute as a whole and not isolate words and phrases. Id. at 519. We must also keep in mind
the legislature’s objectives in enacting the statute. Davis, 199 Ill. 2d at 135. “Moreover,
criminal or penal statutes are to be strictly construed in favor of the accused, and nothing
should be taken by intendment or implication beyond the obvious or literal meaning of the
statute.” Id.

¶ 50 Common Scheme of the Three Predicate Offenses
¶ 51 Defendant argues that section 16H-55 of the Illinois Financial Crime Law requires that
the State prove that all three predicate offenses were part of the same common plan or
scheme. Accordingly, defendant contends the State failed to show any linkage or connection
between the predicate offenses. Defendant also argues that the State failed to show how the
parties involved in the predicate offenses were at all connected to each other. The State
disputes defendant’s contention and argues that defendant fails to recognize the plain
language of subsection (b) of section 16H-55 of the Illinois Financial Crimes Law.
¶ 52 A person is an organizer of a continuing financial crimes enterprise when he or she
commits three or more predicate offenses within an 18-month period and occupies a position
of organizer, supervisor, financier, or other management position with respect to the other
persons in the conspiracy. 720 ILCS 5/16H-55 (West 2006). Subsection (b) of the statute
provides that “[t]he person with whom the accused agreed to commit the 3 or more offenses

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 *** need not be the same person or persons for each offense, as long as the accused was a
part of the common scheme or plan to engage in each of the 3 or more alleged offenses.” 720
ILCS 5/16H-55(b) (West 2006).
¶ 53 We disagree with defendant’s interpretation of the language of section 16H-55 of the
Illinois Financial Crime Law. Specifically, defendant contends that each of the predicate
offenses must be linked in a common scheme. Our review of the plain language of section
16H-55, and specifically subsection (b), shows that the common element is whether the
defendant is part of a common scheme of each of the predicate offenses. Absent from
subsection (b) is any language indicating that all of the predicate offenses and people, other
than the accused, needed to be linked to a common scheme. Rather, subsection (b) specifies
that the other people involved in the predicate offenses need not be the same people “as long
as the accused was a part of the common scheme or plan to engage in each of the 3 or more
alleged offenses.” (Emphasis added.) 720 ILCS 5/16H-55(b) (West 2006). Accordingly, we
reject defendant’s interpretation of section 16H-55. We hold that this section specifically
requires only that the accused be part of the common scheme for each of the predicate
offenses. It follows that defendant can commit the offense of being an organizer of a
continuing financial crimes enterprise by agreeing to commit each of the three predicate
offenses with three different people.
¶ 54 As applied to the facts of this case, count II alleged defendant organized a continuing
financial crimes enterprise for committing the three predicate offenses of theft by deception
in counts IX, XI, and XIII. In count IX, he committed the predicate crime with Alzaibak and
Bobak; while in count XI he did so with only Alzaibak; and in count XIII he committed theft
by deception with Elayyan and Johnson. Similarly, in count III, the State alleged defendant
committed loan fraud in counts XXVI through XXVIII. In count XXVI, he committed the
predicate crime with Alzaibak and Bobak; while in count XXVII he did so with only
Alzaibak; and in count XXVIII he committed loan fraud with Elayyan and Johnson. In this
case, as alleged in the indictment, defendant was part of the common scheme in each of the
three predicate offenses of theft by deception as alleged in count II. Defendant was also part
of the common scheme in each of the three predicate offenses of loan fraud as alleged in
count III. Defendant is the linkage between the three predicate crimes for both counts of
being an organizer of a continuing financial enterprise. This is consistent with subsection (b)
of section 16H-55, which allows other people to be involved in the predicate offenses “as
long as the accused was a part of the common scheme or plan to engage in each of the 3 or
more alleged offenses.” 720 ILCS 5/16H-55(b) (West 2006).

¶ 55 Enterprise or Common Scheme Apart From the Predicate Offenses
¶ 56 Defendant next argues that the State failed to prove the existence of an enterprise,
common scheme, or plan apart from the predicate offenses. Similar to his argument regarding
a common scheme or plan for the three predicate offenses, defendant again argues that the
State did not show that any of defendant’s codefendants operated as a structured unit or
worked together for a common purpose. Defendant again argues that the State failed to show
that the properties involved were linked. The State disputes defendant’s contention and again
argues that defendant fails to recognize the plain language of subsection (b) of section
16H-55 of the Illinois Financial Crime Law.

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¶ 57 We disagree with defendant’s contention that the State needed to show that defendant’s
codefendants were part of a structured unit or worked together for a common purpose as it
conflicts with the plain language of subsection (b) of section 16H-55 of the Illinois Financial
Crime Law. Subsection (b) of section 16H-55 specifically provides that “[t]he person with
whom the accused agreed to commit the 3 or more offenses *** need not be the same person
or persons for each offense, as long as the accused was a part of the common scheme or plan
to engage in each of the 3 or more alleged offenses.” 720 ILCS 5/16H-55 (West 2006). As
previously stated, the accused only has to be a part of the common scheme of each of the
three predicate offenses, even if the other people involved are different. Furthermore,
defendant’s argument overlooks that the enterprises or common scheme as alleged in the
indictment was theft by deception for count II and loan fraud for count III. Specifically,
defendant, as the organizer, manager, or supervisor, was part of the common scheme or plan
of three predicate offenses that showed he was an organizer of a continuing financial crimes
enterprise. Under count II, the continuing financial crimes enterprise was theft by deception.
Under count III, the continuing financial crimes enterprise was loan fraud.

¶ 58 Defendant as an Organizer, Supervisor, Financier, or Manager
¶ 59 Defendant next argues that the State had to show that defendant had both a leadership
role and control over every other person in the conspiracy. The State responds that defendant
fails to recognize that the evidence only had to show he occupied one of the roles proscribed
by the statute because the terms of the statute are used disjunctively. Specifically, the State
argues it only had to show that defendant was an organizer, supervisor, or financier or in
another position of management.
¶ 60 The first part of section 16H-55 provides that the offense of being an organizer of a
continuing financial crimes enterprise occurs when three or more separate predicate offenses
within an 18-month time period are committed by a defendant. 720 ILCS 5/16H-55(a)(1)
(West 2006). Subsection (a)(2) of section 16H-55, however, requires that “with respect to the
other persons within the conspiracy, occupies a position of organizer, supervisor, or financier
or other position of management.” (Emphases added.) 720 ILCS 5/16H-55(a)(2) (West
2006).
¶ 61 After reading the plain language of subsection (a)(2) of section 16H-55, we hold the
statute does not make any mention that a defendant had to have had both a leadership role
and control over every other person in the conspiracy. Rather, a defendant only has to have
occupied one of the following roles: organizer, supervisor, or financier, or be in another
position of management. Defendant’s interpretation of the requirements of subsection (a)(2)
of section 16H-55 is inconsistent with the statute’s plain language. In construing a statute, we
must look to the statutory terms according to their plain and ordinary meaning. Molnar, 222
Ill. 2d at 518.

¶ 62 Sufficiency of the Evidence
¶ 63 The due process clause of the fourteenth amendment to the United States Constitution
ensures that an accused defendant is not convicted of a crime “except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
In re Winship, 397 U.S. 358, 364 (1970); People v. Carpenter, 228 Ill. 2d 250, 264 (2008);

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 People v. Brown, 2013 IL 114196, ¶ 52 (“the State bears the burden of proving beyond a
reasonable doubt each element of a charged offense and the defendant’s guilt”). It is not,
however, the function of this court to retry a defendant when reviewing whether the evidence
at trial was sufficient to sustain a conviction. People v. Hall, 194 Ill. 2d 305, 329-30 (2000).
Rather, our review is focused on “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt.” People v. Baskerville, 2012 IL 111056, ¶ 31. This
standard applies to both circumstantial and direct evidence as well as to both jury and bench
trials. People v. Ehlert, 211 Ill. 2d 192, 202 (2004); Brown, 2013 IL 114196, ¶ 48.
¶ 64 “The testimony of a single witness, if it is positive and the witness credible, is sufficient
to convict.” People v. Smith, 185 Ill. 2d 532, 541 (1999). Circumstantial evidence alone can
support a criminal conviction. Brown, 2013 IL 114196, ¶ 49. Although the trier of fact is
accorded great deference, its decision is not binding or conclusive. People v. Wheeler, 226 Ill.
2d 92, 115 (2007). As such, a conviction will be reversed where the evidence is so
unsatisfactory, unreasonable, or improbable that it raises a reasonable doubt as to defendant’s
guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).

¶ 65 Loan Fraud
¶ 66 We will first discuss defendant’s challenge to his conviction for loan fraud under counts
XXVI through XXVIII as they served as predicate offenses for his conviction for being the
organizer of a continuing financial crimes enterprise under count III. Defendant argues the
State failed to introduce competent proof that the victims of the loan fraud, i.e., Washington
Mutual and Harris Bank, as alleged in counts XXVI through XXVIII were financial
institutions. In response, the State argues that at all relevant times in 2007, Washington
Mutual and Harris Bank were banks and, therefore, financial institutions.
¶ 67 The Illinois Financial Crime Law defines the offense of loan fraud as follows:
“A person commits the offense of loan fraud when the person knowingly, with intent
to defraud, makes any false statement or report, or willfully overvalues any land,
property or security, for the purpose of influencing in any way the action of a
financial institution to act upon any application, advance, discount, purchase,
purchase agreement, repurchase agreement, commitment, or loan, or any change or
extension of any of the same, by renewal, deferment of action or otherwise, or the
acceptance, release, or substitution of security.” (Emphasis added.) 720 ILCS
5/16H-30 (West 2006).
The Illinois Financial Crime Law defines the term “financial institution,” as follows:
“ ‘Financial institution’ means any bank, savings bank, savings and loan association,
credit union, trust company, currency exchange, or a depository of money, or medium
of savings and collective investment.” 720 ILCS 5/16H-10(b) (West 2006).
¶ 68 After reviewing the record, we hold the State presented sufficient evidence that
Washington Mutual and Harris Bank were financial institutions as defined by the Illinois
Financial Crime Law. 720 ILCS 5/16H-10 (West 2006). We remind defendant that
circumstantial evidence alone can support a criminal conviction. Brown, 2013 IL 114196,
¶ 49. The major part of the testimony of several witnesses involved financial transactions that
either Washington Mutual or Harris Bank performed. For example, Rami Haleem testified he

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 was a “bank manager” with Harris Bank in 2007. He supervised Angel Ulan, whom Haleem
described as “one of my bankers.” Haleem then described the circumstances of the home
equity line of credit that Harris extended to Alzaibak after discussion with defendant. Harris
Bank even includes the term “Bank” in its name, lending further support to the State’s
position that it was in fact a bank in 2007. Regarding Washington Mutual, Brett Hellstrom
provided testimony describing underwriting, which he described as making “loan decisions.”
He testified further that he performed underwriting functions for Washington Mutual in
2007, and he described those functions. Those financial transactions, mortgages from
Washington Mutual and a home equity line of credit from Harris Bank, are transactions
typically performed by banks. The State presented evidence that Washington Mutual
provided the mortgages for both of the properties at issue here and that Harris Bank provided
the home equity line of credit for the property at 106 Forest Home Edge. We are of the
opinion that a reasonable trier of fact could conclude, based on the abundance of evidence
that Washington Mutual and Harris Bank performed transactions that banks commonly
perform, i.e., mortgages and home equity lines of credit, that Washington Mutual and Harris
Bank were both financial institutions as defined by the Illinois Financial Crime Law during
the year 2007 when the transactions occurred.
¶ 69 We note that defendant has not provided any argument addressing any of the other
elements of loan fraud. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are
waived and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing.”). Accordingly, since we reject defendant’s argument that the State failed to prove
that Washington Mutual and Harris Bank were financial institutions as defined by the Illinois
Financial Crime Law, we hold that the State presented sufficient evidence that defendant
committed loan fraud as stated in counts XXVI through XXVIII of the indictment.

¶ 70 Organizer of a Continuing Financial Crimes Enterprise
¶ 71 Defendant challenges the sufficiency of the evidence against him for his convictions of
being an organizer of a continuing financial crimes enterprise. The State argues that it
presented sufficient evidence showing that defendant committed the offense of being an
organizer of a continuing financial crimes enterprise under counts II and III of defendant’s
indictment.
¶ 72 The offense of being an organizer of a continuing financial crimes enterprise is
committed when a person agrees with another person in committing three or more predicate
offenses within an 18-month time period, and “with respect to the other persons within the
conspiracy, occupies a position of organizer, supervisor, or financier or other position of
management.” 720 ILCS 5/16H-55(a)(1), (2) (West 2006). As previously discussed, “[t]he
person with whom the accused agreed to commit the 3 or more offenses *** need not be the
same person or persons for each offense, as long as the accused was a part of the common
scheme or plan to engage in each of the 3 or more alleged offenses.” 720 ILCS 5/16H-55(b)
(West 2006).

¶ 73 Count II
¶ 74 Count II of the indictment against defendant alleged he committed the offense of being an
organizer of a continuing financial crimes enterprise for committing three predicate offenses

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 of committing theft by deception as alleged in counts IX, XI, and XIII of the indictment.
Defendant does not challenge the three predicate offenses of theft by deception before this
court, only that the State failed to prove count II of the indictment. As defendant concedes
the sufficiency of the evidence of the three predicate offenses of theft by deception as alleged
in counts IX, XI, and XIII, we need only address whether the State presented sufficient
evidence showing that those three predicate offenses showed that defendant organized a
continuing financial crimes enterprise under count II of the indictment.
¶ 75 We hold the State presented sufficient evidence under count II of the indictment to prove
defendant organized a continuing financial crimes enterprise. Under count IX, defendant
agreed with Bobak and Alzaibak to commit theft by deception regarding the mortgage with
Washington Mutual for the property located at 106 Forest Edge. Defendant and Bobak had
agreements regarding the earnest money and various house improvements not disclosed to
Washington Mutual, the victim. In relation to Bobak, defendant performed the role of
organizer because he organized the purchase of the property by deceiving Washington
Mutual. Defendant occupied the role of both organizer and supervisor in regard to Alzaibak,
as the evidence showed he directed Alzaibak to sign the various documents in order to
deceive Washington Mutual. Under count XI, defendant again occupied the role of organizer
and supervisor to Alzaibak as he organized the home equity loan with Harris Bank and
directed Alzaibak where to sign the relevant paperwork and to eventually transfer the money
to him. Under count XIII, defendant occupied the role of organizer and supervisor by again
organizing the preparation of the various documents needed to deceive Washington Mutual.
The evidence showed one of defendant’s “boys,” Morgan, recruited Johnson. Defendant
directed Johnson regarding what documents to sign. It is undisputed that the offenses in
question occurred within an 18-month time period. Accordingly, the State presented
sufficient evidence showing that on three separate occasions within an 18-month time period,
defendant committed a predicate offense where he occupied the role of organizer or
supervisor. We hold the State presented sufficient evidence showing defendant organized a
continuing financial crimes enterprise by committing three separate thefts by deception
within an 18-month time period and occupied the role of organizer or supervisor.

¶ 76 Count III
¶ 77 Count III of the indictment against defendant alleged he committed the offense of being
an organizer of a continuing financial crimes enterprise for committing three predicate
offenses of loan fraud as alleged in counts XXVI through XXVIII of the indictment. As we
have already held that the State presented sufficient evidence that defendant committed the
predicate offenses of loan fraud as alleged in counts XXVI through XXVIII, we need only
address whether the State presented sufficient evidence showing that those three predicate
offenses showed that defendant organized a continuing financial crimes enterprise under
count III of the indictment.
¶ 78 Similar to count II above, we also hold the State presented sufficient evidence showing
defendant organized a continuing financial crimes enterprise for committing three incidents
of loan fraud within an 18-month period. The evidence showed that defendant, through his
association with The Lending Center and Silver Key, served as the organizer of the three
separate incidents of loan fraud as alleged in counts XXVI through XXVIII. Through his
direction, he obtained the mortgage and home equity line of credit at 106 Forest Edge and the

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 mortgage at 221 Sawgrass. His role in procuring the required documentation, as well as
directing both Alzaibak and Johnson where to sign the relevant documents, resulted in
Washington Mutual providing mortgages at the properties and for Harris Bank to supply a
home equity line of credit. As in count II, it is undisputed that the three occurrences occurred
within an 18-month time period. Accordingly, we also hold the State presented sufficient
evidence showing defendant organized a continuing financial crimes enterprise for
committing three incidents of loan fraud within an 18-month period under count III of the
indictment.

¶ 79 Counts I, VIII, X, and XII
¶ 80 The parties agree that counts I, VIII, X, and XII need to be vacated. Count I of the
indictment alleged defendant organized a continuing financial crimes enterprise by
committing three instances of theft based on unauthorized control as alleged in counts VIII,
X, and XII of the indictment. The parties disagree, however, on whether the matter should be
remanded for resentencing. The State argues, in the interest of judicial economy, that this
court should vacate the convictions in counts I, VIII, X, and XII, and correct the mittimus,
but not remand the matter for resentencing because defendant received concurrent sentences
on the remaining counts. Defendant argues that we should remand the matter for resentencing
because one third of the counts against him need to be vacated. Alternatively, he asks that we
reduce his overall sentence by 33%.
¶ 81 Due to the number of counts to be vacated, and the circuit court being in the better
position to determine sentencing in this matter, we are of the opinion that the appropriate
remedy in this instance is to remand the matter to the circuit court for resentencing.
Accordingly, we vacate defendant’s convictions under counts I, VIII, X, and XII; we affirm
the judgment of the circuit court in all other respects; and remand the matter for resentencing.

¶ 82 CONCLUSION
¶ 83 The judgment of the circuit court of Cook County is affirmed in part, vacated in part, and
the matter is remanded with directions.

¶ 84 Affirmed in part and vacated in part. Cause remanded with directions.

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