15‐1999‐cr United States v. Moughawech

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of October, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

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UNITED STATES OF AMERICA, Appellee,

v. 15‐1999‐cr

KHALIL MOUGHAWECH, Defendant‐Appellant,

MAJID HADDAD, Defendant.

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* Judge Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation.

FOR APPELLEE: Daniel P. Filor, Adam S. Hickey, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: Theodore S. Green, Green & Willstatter, White Plains, New York.

Appeal from the United States District Court for the Southern District of

New York (Briccetti, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Following a jury trial in the district court, defendant‐appellant Khalil

Moughawech was convicted of conspiracy to commit food stamp fraud involving at

least $100 in nutrition benefits and $1,000 in public funds, in violation of

and 641 and

(b)(1), and four associated substantive counts, in

violation of

(b)(1). Moughawech appeals a judgment entered June 16,

2015, sentencing him principally to 24 monthsʹ imprisonment. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

Moughawechʹs convictions arise from a scheme whereby Moughawech,

the manager of a dollar store in Yonkers, New York, and his co‐defendant, Majid

Haddad, the owner of the store, defrauded the federal Supplemental Nutrition

Assistance Program (ʺSNAPʺ) by allowing individuals to redeem their nutritional

benefits (colloquially known as ʺfood stampsʺ) for cash, in exchange for about a third of

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the benefits. On appeal, Moughawech argues that the district court abused its

discretion in declining to charge the jury on lesser included offenses. We review a

district courtʹs denial of a request for a jury instruction on a lesser included offense for

abuse of discretion. See United States v. Abreu,

, 188‐89 (2d Cir. 2003).

The relevant Federal Rule of Criminal Procedure provides that a jury may

return a verdict convicting a defendant of ʺan offense necessarily included in the offense

charged.ʺ Fed. R. Crim. P. 31(c)(1). ʺ[A] defendant is entitled to a lesser‐included

offense instruction under federal law only if (1) the elements of the lesser offense are a

subset of the elements of the charged offense, and (2) the evidence at trial permits a

rational jury to find the defendant guilty of the lesser offense and acquit him of the

greater.ʺ United States v. Diaz,

(2d Cir. 1999) (citations omitted); see also

Abreu,

.

The operative statutes,

and

(b)(1), punish as

felonies the stealing or conversion of more than $1,000 of government funds and the

unauthorized transfer or acquisition of at least $100 worth of SNAP benefits,

respectively. Each has, as a lesser included offense, a misdemeanor offense if the

individual is found to have stolen or converted $1,000 or less of government funds,

, or transferred or acquired SNAP benefits of less than $100,

(b)(1).

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Moughawech argues that a rational jury could find that his activity did

not meet the threshold amounts based on his challenges to the governmentʹs proof as

developed through cross examination. Accordingly, he contends that he was entitled to

instructions on the lesser included offenses. We disagree.

The district court did not abuse its discretion in denying Moughawechʹs

request for the instructions. First, the district court reasonably concluded that the trial

evidence could not support a rational finding that Moughawech conspired to transfer or

acquire SNAP benefits and did so on four occasions, but for only less than $100 worth

of benefits each time. The Government presented evidence of at least four video‐

recorded, undercover purchases made by confidential informants working with the U.S.

Department of Agriculture who made cash exchanges and purchased non‐food items

from Moughawech, each transaction in excess of $100. Moughawechʹs argument that

the Government witness, a case agent with the Department of Agriculture, did not

properly document and preserve items received from her sources fails to explain the

remaining evidence in the form of customer receipts, video‐recordings depicting the

absence of purchases of authorized goods, SNAP transaction data, the storeʹs written

records documenting the unauthorized transactions, and Moughawechʹs post‐arrest

confession to making exchanges far in excess of the threshold amounts. A rational juror

could not conclude that the evidence supported the convictions under § 2024, but for

amounts less than $100.

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Second, Moughawech urges us to conclude that the district court erred in

declining to give a lesser included offense instruction with respect to Count 1, the

conspiracy charge. But there was insufficient evidence to permit a rational jury to find

that Moughawech conspired with Haddad to defraud the Government only for $1,000

or less. Our discussion above regarding the individual transactions rebuts the

contention that a lesser conspiracy between Moughawech and Haddad could have been

found, because the amounts involved and the number of transactions reflected by the

evidence aggregate resoundingly to over $1,000. The district court was therefore not

obligated to charge any lesser conspiracy crime on this theory.

Moughawech argues additionally that the district court should have given

a lesser included conspiracy charge because a rational jury could find that there was

insufficient evidence of any conspiracy between Moughawech and Haddad, and

instead, a jury could find multiple individual conspiracies between Moughawech and

customers such that no single conspiracy involved defrauding the Government of more

than $1,000. But Count 1 of the indictment charged Moughawech with a single

conspiracy, and Moughawech neither requested a multiple conspiracies charge nor

proposed to the district court specific language for a lesser included offense charge for

the conspiracy count that would address his current argument. And, even if, as

Moughawech now argues, a rational jury could find that Moughawech conspired

serially with customers, rather than with Haddad, we think it extremely unlikely that a

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jury would do so on this record in light of the language of the indictment, the

instructions the jury received, and the overt acts alleged. See Abreu,

(affirming district courtʹs decision not to charge lesser included offense when a

ʺreasonable juror would be extremely unlikely to believeʺ defendantʹs theory under

which he would be liable for the lesser and not the greater crime). Accordingly, the

district court did not abuse its discretion in failing to give a lesser included offense

instruction even if a rational jury could find that Moughawechʹs conspiracy did not

include Haddad.

For the reasons set forth above, the district court did not abuse its

discretion in declining to give the lesser included offense instructions on either Count 1

or the remaining counts. See United States v. Busic,

(2d Cir. 1978) (ʺ[A]

defendant is not entitled to a lesser‐offense charge merely because he formally contests

elements of the greater charge which distinguish it from the lesser. The contest must be

real. He must produce enough evidence to justify a reasonable juror in concluding that

he committed the lesser offense but did not commit the greater offense.ʺ).

We have considered all of defendantʹs additional arguments and find

them to be without merit. For the reasons stated herein, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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