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,
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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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