State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2003

State of Minnesota,
Respondent,

vs.

Nadeem Malik,
Appellant.

Filed April 13, 2020
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-18-2769

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorn ey, Mark V. Griffin, Senior Assistant
County Attorney, Morgan Kunz, Assistant County Attorney, Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from final judgmen t, appellant Nadeem Malik argues that his
conviction for wrongfully obtaining public assistance under Minn. Stat. § 256.98, subd. 1

2
(2012), must be reversed because (1) the conviction is barred by the three-year statute of
limitations because the state charged him with the offense in January 2018 and failed to
prove that he was ineligible for public assistance in January 2015; (2) the evidence is
insufficient to prove that he was ineligible to receive public assistance because the state
did not introduce evidence of his net income; and (3) the state failed to prove that he acted
with intent to defeat the purposes of every public assistance program listed in Minn. Stat.
§ 256.98, subd. 1, which, he argues, is an element of the statute. Malik also argues that the
district court’s restitution order must be re versed because the dist rict court failed to
consider his ability to pay $59,242 in restitution. We affirm.
FACTS
On January 31, 2018, the state charged Ma lik with the theft cr ime of wrongfully
obtaining public assistance in violation of Minn. Stat. § 256.98, subd. 1(1). The complaint
alleges that the offense took place on and between August 1, 2012, and January 31, 2015.
After a jury trial, the jury found Malik guilty of the charged offense and determined that
the amount of his theft exceeded $5,000. At sentencing, the district court stayed imposition
of a sentence for ten years and ordered Malik to pay restitution of $59,242, in installments
of $500 per month, to Hennepin County. The following facts were presented at trial.
1. Malik’s first application for public assistance
Malik first applied for public assistance in August 2012 after losing his job at EOS
Metals. On August 9, 2012, he submitted a combined application form for benefits through
Hennepin County, applying for Supplemen tal Nutrition Assistance Program (SNAP)
benefits and health care assistance for himself and his family, which includes his wife and

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three children. Eligibility for both programs depends on the applicant’s income. For SNAP,
there is no asset limit affecting eligibility. Fo r medical assistance, there was a household-
asset limit, but only for parents; children cannot be disqualified based on household assets.
At Malik’s trial, a few county human-services representatives testified regarding asset and
income classification for the purposes of public-assistance eligibility. They explained, for
example, that stocks and cas h in bank accounts are generally considered assets but
retirement accounts are typically not considered assets unless they are cashed out. If stocks
are traded and the gains withdrawn, those gains may be considered income. Irregular gifts
and loans are typically not considered income.
When Malik applied for assistance in August 2012, his monthly income needed to
be below $3,599 to qualify for SNAP and below $6,303 to qualify for medical assistance.
The combined application form asked whethe r he was self-employe d or expecting to
receive income from self-employment “this month or next month.” He answered “no.” In
a follow-up interview with a county eligibility worker, Malik confirmed that answer. The
eligibility worker testified that, had Malik disclosed self-e mployment, Malik would have
been instructed to fill out a self-employment report. The self-employment report asks the
applicant to list all their business income a nd expenses by m onth. The eligibility worker
testified that if a reported self-employment enterprise is new, he asks the applicant for three
months of this data and then takes an aver age to determine income for the purposes of
benefits eligibility. If the self-employment enterprise is more established, though, he asks
for the previous year’s tax return and looks at the annual net income, “divide[s] by 12,”
and uses that amount as a m onthly average for the purposes of benefits eligibility. The

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eligibility worker also testified that his office has a specialty team of self-employment case
workers. But because Malik answered “no” for self-employment, the eligibility worker did
not give him a form or refer him to that team.
The combined application form also contained questions about household expenses
and assets. Malik indicated that he had a monthly mortgage payment of $1,200 and that he
had bank accounts and either stocks, bonds , or annuities. When the county requested
verification of these items, Malik provided ba nk statements for his personal accounts and
a document regarding his retirement account. Ma lik’s application for SNAP benefits was
approved for the household, an d his application for medical assistance was approved for
his children but not for Malik and his wife.
2. Malik’s reporting and recertification fo r public assistance from January
2013 to July 2014

In order to continue receiving SNAP benefits and medical assistance, a recipient is
subject to a six-month review and an annual re certification. Six months after the initial
approval, the county mails a document to the recipient that asks them to report any changes
and requests new verification of income. One year after the initial approval, the recipient
must fill out a recertification application, wh ich looks exactly like th e initial application.
Malik filled out the six-month review form on January 24, 2013. He again answered “no”
when asked whether he is sel f-employed. He also answered “no” when asked if he owns
any stocks, bonds, retirement accounts, or ot her assets. To remain eligible, his monthly
income needed to be below $3,714 for SNAP benefits and below $6,303 for medical
assistance. Malik’s family continued receiving both.

5
Malik applied for annual recertification on July 5, 2013, and filled out a new
combined application from. Again, he denied being self-employed. He reported a monthly
household income of $0. To be eligible at this time, his monthly income needed to be below
$3,791 for SNAP benefits and below $6,433 for medical assistance. His family continued
receiving assistance. On July 23, 2013, though, Malik received a request for verification of
information from the county, which asked for bank statements for his wife’s checking and
savings accounts. He received this request because the county’s debt-establishment unit—
which works on overpayment claims in benefits cases—had discovered information about
Malik’s family or finances that it did not think had been reported to the agency.1
On January 1, 2014, Malik filled out the next six-month report. He again denied
being self-employed, reported a monthly household income of $0, and continued receiving
benefits.
On July 5, 2014, Malik again applied for annual recertification. He again answered
“no” to being self-employed and reported $0 in income. He repor ted having household
cash, checking, or savings in the amount of $712 and a monthly mortgage payment of
$1,160. He also reported that he had received a one-time gift of $1,200 from his brother to
help pay his bills. He answered “no” to the question asking whether he has any stocks,
bonds, or annuities. A few days later, Malik met with an eligibility worker regarding his
application, and the eligibility worker aske d him to explain how he was meeting his
family’s monthly expenses with no income. Malik indicated that he had received the $1,200

1 It is unclear from the record whether Malik provided the debt-establishment unit with any
responsive documents upon this request.

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gift from his brother and that he was using savings and credit cards. This eligibility worker
also testified that, had Malik reported self-employment income, he would have then asked
Malik for verification of any gross income and expenses to determine his net income. The
eligibility worker also testified that he is currently on the county’s self-employment team
and emphasized the importance of accurate re porting to the process of assessing benefits
eligibility for self-employed workers.
3. County’s verification request and term ination of Malik’s public-assistance
benefits

On December 15, 2014, the county sent Malik another verification request. The
request form stated that the county had received information from the state that Malik had
an undisclosed Scottrade acco unt and had made an estimated $949,130 in stock trades
while receiving public assistance. On December 22, 2014, Malik delivered a signed release
of information for his Scottrad e account to the county. On December 29, 2014, the debt-
establishment unit submitted a fraud referral form regarding Malik’s receipt of public
assistance to the county’s fraud unit for further inves tigation. The form noted a
“preliminary overpayment” esti mate of $59,242.67, for Malik’s receipt of $15,859 in
SNAP benefits and $43, 383.67 in medical assistance fr om August 2012 through January
2015.
Meanwhile, on January 5, 2015, Malik submitted another six-month report to renew
his benefits. For self-employment, he repor ted $800 in expected annual income from
“buying and selling used cars.” He also reported owning stocks with Scottrade. To qualify
for SNAP, his monthly income had to be below $3,838, and to qualify for medical

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assistance, his monthly income had to be below $3,491. In February 2015, Malik’s SNAP
benefits were terminated because the county had not received verifi cation of his income.
Malik appealed that decision, and a hearing took place on March 10, 2015.
4. Malik’s appeal hearing following th e termination of his benefits
Malik’s appeal hearing was held before a human services judge.2 A county appeals
representative attended on behalf of the county, and that same representative testified at
Malik’s trial. The appeal hearing was audio recorded, and the reco rding was entered as
evidence and played for the jury.
At the appeal hearing, Malik reported th at he had $40,000 to $50,000 in his
Scottrade account, and that th e $949,000 figure represented total trades. He said he had
only taken $30,000 out of the acco unt and that he gave it all to his brother. He stated that
he had made income from day trading in 2013 but had losses in 2014 and 2015. Malik went
on to reveal that he owned a company called Orient International and that he had owned it
since 2005. He also stated that he had purchased a cell phone company a few weeks before
the hearing for about $7,000.
The county appeals representative repeated ly asked Malik at the hearing how he
pays his family’s living expenses when he allegedly has zero income. He was continually
evasive. When pressed by bo th the representative and judg e, though, Malik eventually

2 Human services judges are appointed by the commissioner of human services pursuant to
Minn. Stat. § 256.045, subd. 1 (2018). They conduct agency hearings for appeals arising
from an array of programs administered by th e department of human services, including
hearings for appeals of a person’s reduction or termination of public assistance. Id., subd.
3(a)(1) (2018).

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stated that he had borrowed $50,000 from his brother, borrowed from a line of equity,
borrowed $25,000 from his brother-in-law, and borrowed $10,000 from a friend. He later
stated that he has two lines of credit: a hom e equity line for $35,000 and a small business
line for $50,000 to $55,000. He also admitted that he failed to report to the county that he
had cashed out his retirement account in 2012. The human services judge instructed Malik
to send the county verification of everything that he had disclosed at the hearing.
The appeals representative testified at trial that, after the appeals hearing, Malik sent
her many documents and that, based solely on his reported current income, the county
reinstated his SNAP benefits. She testified that she did not look at assets “or the transfer of
money back and forth,” as “the fraud unit had gotten involved at that point.”
5. The fraud-unit investigation
After the debt-establishment unit submitted Malik’s case to the fraud unit at the end
of December 2014, the case was assigned to investigator Amanda Lange. Lange was the
state’s primary witness at trial, describing he r investigation and findings for the jury. Her
investigation revealed the following.
Orient International
At the beginning of her investigation, Lange checked the secretary of state records
to see if Malik had any business holdings and found his privately owned company, Orient
International. Orient International sells scra p metal. The metal is bought in the U.S. and
then sold or traded overseas. Lange visited the address th at the secretary of state records
listed for Orient Internationa l and found only an old ware house. The owners of the
warehouse told Lange that there had never been a scrap metal business there.

9
Malik’s personal and business financial accounts
Next, Lange served search warrants on U.S. Bank, Wells Fargo, Scottrade, Think
Bank, and American Express, requesting all records for accounts related to Malik. In
response, she learned that, at U.S. Bank, th e accounts related to Malik included (1) an
account for Orient International, (2) a persona l account, (3) a joint ac count with his wife,
(4) an account for his wife, (5) a money mark et savings account, a nd (6) an account for
“Mobile Repair Hub.” Malik also had an equi ty line of credit, a small business line of
credit, and four credit cards with U.S. Bank. At Wells Fargo, the responsive accounts were
(1) a checking account for Orient Internati onal, (2) a savings account for Orient
International, (3) a business market rate sa vings account for Orient International, (4)-
(5) two accounts for Mobile Repair Hub, and (6) a credit card. Think Bank had no accounts
responsive to the warrant. The state entered the bank records from all of these accounts as
evidence at trial. It also entered account statements from Saturna Capital regarding Malik’s
retirement account. The Saturna Capital records showed that Malik had funds wired out for
early distribution once in July 2012 (in the amount of $12, 000) and twice in September
2012 (in the amounts of $19,832 and $13,170). Lange cross-referenced these transactions
with the bank account statemen ts and found that the July distribution was deposited in
Malik’s personal U.S. Bank account and that both September distributions were deposited
into his Orient International U.S. Bank account.
Lange summarized her review of all of the transactions in Malik’s business and
personal bank accounts for the jury, in part, by presenting an exhibit listing every “third
party” deposit into any of these accounts between August 1, 2012, and December 3, 2014.

10
Malik frequently transferred money back an d forth between his business and personal
checking accounts and lines of credit, but Lange did not include these “internal transfers”
in this summary exhibit. She explained that she tracked the money going in and out of all
the accounts, and where it was coming from, to avoid any duplications. This summary
exhibit showed the following deposits into the Orient Inte rnational U.S. Bank account
between September 2012 and November 2014:
09/07/12 13,170.70 Saturna Capital (401K) 3
09/07/12 19,831.87 Saturna Capital (401K)
09/21/12 14,000.00 Gwala Import Export
09/26/12 32,745.50 Endless Solutions
10/03/12 1,086.64 Gwala Import Export
02/28/13 14,581.82 American Family Insurance
(accident settlement)
03/08/13 6,599.70 Consumer Loan Service
06/14/13 25,000.00 cash-out: Scottrade
07/30/13 25,000.00 cash-out: Scottrade
09/20/13 12,000.00 cash-out: Scottrade
10/08/13 13,174.00 Rajput International General
Trading
12/30/13 11,517.50 DOD Surplus, Scottsdale, AZ
02/21/14 131.20 General Metals, Chicago
05/02/14 25,000.00 BB&T Wilson (Maleeha Hassan)
— l o a n
11/17/14 10,000.00 Faisal Masood—loan

The summary exhibit also showed $19,426.97 worth of deposits from third-party sources
into Malik’s personal U.S. Bank account between August 1, 2012, and December 3, 2014,
and it showed the following deposits into his Orient International Wells Fargo account:
09/25/12 100.00 cash

3 Lange explained that she incl uded the Saturna tr ansfer, even though it is arguably an
internal transfer, because, when the retirement account was “sitting as an asset,” it did not
count against public assistance eligibility but, once cashed out, it became income that does
count.

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10/10/12 25,000.00 cash—Saleem Mafik
10/15/12 35,586.00 AL Raffay General Trading
10/23/12 49,335.00 AL Futooh Trading and Ren.
D e i r a
10/25/12 12,781.41 Scottrade
10/31/12 341.70 Gem Iron & Metal
11/05/12 32,498.00 AL Raffay General Trading
11/13/12 61,318.74 HSBC Bank Middle E/Abm.Corp
11/19/12 31,511.27 HSBC Bank Middle E/Abm.Corp
12/06/12 31,285.68 HSBC Bank Middle E/Abm.Corp
12/10/12 31,513.67 HSBC Bank Middle E/Abm.Corp
12/11/12 15,710.00 Westpac Banking Co/Dubai
Exchg
12/17/12 4,096.00 AL Raffay General Trading
01/03/13 18,776.00 AL Raffay General Trading
01/07/13 58,189.15 HSBC Bank Middle E/Abm.Corp
01/28/13 50,247.15 HSBC Bank Middle E/Abm.Corp
01/31/13 98,390.00 United Bank Limited/Asia Trader
02/06/13 2,000.00 cash
02/11/13 25,000.00 cash—Saleem Malik
02/25/13 17,313.41 HSBC Bank Middle E/Abm.Corp
02/26/18 34,3 34.72 Emirates Nbd Bank/Cannon
Enterprises
03/11/18 18,495.74 HSBC Bank Middle E/Abm.Corp
03/13/13 32,943.00 Barclays Bank/Shrezi Exchg
03/18/13 36,376.72 Emirates Nbd Bank/Cannon
Enterprises
03/21/13 17,795.17 Alfa Exchg/Dhajani Trading
03/25/18 38,940.97 HSBC Bank Middle E/Abm.Corp
04/03/13 15,535.39 Alfa Exchg/Dhajani Trading
04/18/13 13,759.37 HSBC Bank Middle E/Abm.Corp
07/09/13 15,7 87.72 Emirates Nbd Bank/Cannon
Enterprises
01/17/14 22,948.00 KS Metal Trader
02/21/14 23,929.00 National Westmin/AS Express
Service
05/12/14 37,701.11 Alfa Exch g/Rajput International
General Trading
05/22/14 5,000.00 Professional Drivers Corp.
05/29/14 2,760.00 Bank of America/Liquidity
Capital Assets
06/26/14 15,590.11 Alfa Exch g/Rajput International
General Trading

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07/24/14 500.00 cash
11/14/14 50,000.00 cash

Lange added up all of the third-party deposits made into the above accounts associated
with Malik between August 1, 2012, and March 9, 2015, an d found that they totaled
$1,262,345.75. Lange acknowledged, though, that she could not provide an accounting of
the money that Malik paid to obtain the scrap metal for Orient International. In other words,
while her total shows gross income, she was unable to subtract business expenses to reach
a net income for the business.
The state also entered as evidence two We lls Fargo business-account applications
filled out by Malik, one in 2012 and one in 2014, where Malik listed himself as the sole
owner of Orient International and reported $2, 000,000 in annual gro ss sales for the year
2011.
Lange also prepared an exhibit tracing tr ansfers between the Orient International
U.S. Bank account and Malik’s personal accounts. The spreadsheet shows money moving
between the Orient International account an d Malik’s personal checking accounts, credit
card accounts, lines of credit, and Scottrad e account between September 7, 2012, and
January 30, 2015. Lange balanced out all of the transactions and found that the net amount
of money Malik transferred out of Orient International into his personal accounts during
this time period was $190,192.06. She divided this number by the total amount of months
reflected (29 months) to reach an average of $6,558.35 per month.

13
Malik’s stock trading activity
Lange also served a search warrant on Scottrade for accounts related to Malik, and
Scottrade reported two accounts. The state en tered into evidence the account records
produced by Scottrade, and Lange testified about her review of these records. Lange
conceded that she had a “hard time determin ing exactly how much activity goes on with
Scottrade” and stated that sh e was mainly concerned with how much money Malik was
withdrawing from Scottrade. The acco unt records showed that Malik created a Scottrade
account on March 26, 2013, by depositing $20,000 from his Orient International U.S. Bank
account. Lange testified about some of the specific stock trades in the records—for
example, observing that Malik bought 200 sh ares of Tesla on May 24, 2013, for $19,000
and then sold the same 200 shares a few days later for $20,500. Lange observed that there
were many buy and sell transactions from 2013 to March 2015 and estimated a total gain
of $41,711 in this time period. The bank statements for the Orient International U.S. Bank
account show deposits from Sco ttrade of $25,000 on June 14, 2013; $25,000 on July 30,
2013; and $12,000 on September 20, 2013.
Malik’s household spending
Lange also testified about Malik’s househ old spending. She went through, for
example, several bank statements from Malik’s U.S. Bank account that appeared to be his
primary personal account. She highlighted the months of August 2012, January 2013, and
July 2013 and described the expenses for “standard family things” (such as restaurants, gas
stations, Target, Menards, etc.) reflected in those statements. In August 2012, the Maliks
paid about $831 with a debit card and paid another $2,5 34.44 to American Express, from

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this account. In Januar y 2013, they paid ab out $911 with a debit card and $1,068.74 to
American Express. In July 2013, they had si milar expenses and paid about $1,358 with a
debit card and $2,572 to American Express. Lange testified that the above three statements
were “very typical” of all the bank statements fo r this account. She al so testified in more
detail about the charges on the American Express card (again, for “everyday things”) and
agreed that Malik would take money from th e Orient International account, put it into a
personal account, and use that to pay off his American Express card.
Lange also noted an atypical bank statem ent from Malik’s primary personal account
for October 5 through November 6, 2013. The total “other w ithdrawals” that month were
$10,279.71, and many of the purchases were made in Pakistan. Lange explored this further
and found a check for $8,000 made out to Da r El Salam from Orient International on
May 31, 2013, with the memo “Hajj 2013 Prog2A.” Another check for $12,060 was made
out to Dar El Salam from Malik’s primary personal account, with the check’s memo
indicating that it was for the remaining amount due for Nadeem and his wife’s Hajj. Hajj
is a religious trip to Mecca. These checks, al ong with the Maliks’ ba nk account activity,
showed that Malik and his wife spent at least $20,000 on this trip while they were receiving
public assistance.
Other expenses that Lange highlighted included $13,767 out of the Orient
International U.S. Bank account to purch ase a 2007 Lexus in March 2013, a $5,000
donation out of the Orient International accoun t (but with a handwritten note next to the
company name that says “Nad eem Malik”) to the Islamic Cu ltural Community Center in

15
September 2013, and $7,0 00 out of the Orient Internationa l account to purchase Quality
Wireless in February 2015.
The jury found Malik guilty, and the district court stayed imposition of a sentence
for ten years and ordered Malik to pay $59,242 in restitution to the county.
This appeal follows.
D E C I S I O N
I. Malik’s conviction is not barred by the three-year statute of limitations.

Appellate courts “review de novo the cons truction and application of a statute of
limitations, including the law governing the accrual of a cause of action.” State v. Carlson,
845 N.W.2d 827, 832 (Minn. A pp. 2014). Here, the applic able statute of limitations
provides that the complaint “shall be . . . file d in the proper court within three years after
the commission of the offense.” Minn. Stat. § 628.26(k) (2012). The wrongfully-obtaining-
public-assistance statute further provides that “[t]he continued receipt of assistance to
which the person is not entitled . . . as a resu lt of any of the acts, failure to act, or
concealment described in this subdivision shall be deemed to be continuing offenses from
the date that the first act or failure to act occurred.” Minn. Stat. § 256.98, subd. 1. Because
wrongfully obtaining public assistance is a continuing offense, the limitations period does
not begin to run until the wrongful conduct ceases. See State v. Lawrence , 312 N.W.2d
251, 253-54 (Minn. 1981); see also Black’s Law Dictionary 1186 (9th ed. 2009) (defining
“continuing offense” as “[a] crime . . . that is committed over a period of time, so that the
last act of the crime controls when the statute of limitations begins to run”).

16
On January 31, 2018, the state charged Malik with one count of wrongfully
obtaining public assistance. The complain t alleges that Malik wrongfully obtained
assistance “on and between Augu st 1, 2012 through January 31, 2015.” Thus, if Malik
continued to receive assistance to which he was not entitled through January 31, 2015, the
statute of limitations does not bar his conviction.
Malik argues that, while the state may ha ve proved (1) that he intentionally
concealed the existence of Orient International on January 5, 2015, in his six-month report
to renew his benefits, and (2) that he conti nued to receive benefits through January 2015,
the state did not prove that Malik was not entitled to the benefits that he received in the
month of January 2015. This argument overlaps with Malik’s sufficiency-of-the-evidence
argument, which we address next. Underlying both is his contention that the state failed to
prove a key element of wrongfully obtaining public assistance—namely, that the assistance
obtained was assistance to which he was not entitled. See Minn. Stat. § 256.98 subd. 1.
Here, he makes this argument specific to the month of January 2015, arguing that none of
the evidence suggested that he had income that put him over the eligibility limits for SNAP
and medical assistance that month.
Malik accurately notes that the state did no t provide a precise account or estimate
of his income in the month of January 2015. Rather than going month by month, the state
presented evidence about the total gross income of Orient International over the charged
30-month period, followed by evidence that, based on all the deposits and withdrawals
from Orient International’s U.S. Bank account, Malik moved an average of $6,558.35 per
month from that business account into his personal accounts. Had Malik disclosed the

17
existence of Orient Internati onal to the county, he would ha ve been required to fill out
sheets reporting all monthly business income and expenses. On appeal, he interprets this
reporting requirement to mean that self-emplo yed individuals either receive or do not
receive benefits each month depending on their income that month. But the record does not
support this interpretation. To the contrary, an eligibility worker testified that, if an
individual has an ongoing busin ess, benefits eligibility is de termined by taking their net
income amount from the previous tax year a nd dividing by twelve. This accords with the
nature of self-employment, particularly in businesses like Malik’s, where large amounts of
money are expended in one month to obtain scra p metal before the metal is then sold at a
profit in another month.
During the charged period, the maximum monthly income for SNAP eligibility
ranged from $3,599 to $3,838, and the monthl y maximum income for medical assistance
ranged from $3,449 to $6,433. The jury hear d testimony that, during the charged period,
Malik moved an average of $6 ,558.35 from Orient Internati onal’s business account into
his personal accounts, that Malik concealed the existence of Orient International on
January 5, 2015, in his six-month report to renew his benefits, and that Malik continued to
receive benefits through January 2015. On this record, the jury could reasonably determine
that Malik continued to receive assistance to which he was not entitled through January 31,
2015. The statute of limitations accordingly does not bar his conviction.

18
II. The evidence is su fficient to prove that Malik obta ined assistance to which he
was not entitled.

To evaluate the sufficiency of the evidence, “appellate courts carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them would
permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of which he was convicted.” State v. Griffin, 887 N.W.2d 257, 263
(Minn. 2016) (quotation omitted). The appellate court must view the evidence “in the light
most favorable to the verdict, and it must be assumed that the fact-finder disbelieved any
evidence that conflicted with the verdict.” Id.
4 Whether a defendant’s conduct meets the
definition of a particular offense presents a question of statutory in terpretation that is
reviewed de novo. State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).
Malik was convicted of wrongfully obtaining public assistance in violation of Minn.
Stat. § 256.98, subd. 1(1). That statute provides, in relevant part:
Subdivision 1. Wrongfully obtaining assistance . A
person who commits any of the following acts or omissions
with intent to defeat the purpose s of [list of statutory sections
regarding various public assistance programs] is guilty of theft
. . . :
(1) obtains or attempts to obtain . . . by means of a
willfully false statement or re presentation, by intentional
concealment of any material fact, or by impersonation or other
fraudulent device, assistance or the continued receipt of
assistance . . . to which the person is not entitled or assistance
greater than that to which the person is entitled; . . .

4 Appellate courts apply a se parate standard of review when the conviction depends on
circumstantial, rather than direct, evidence. Loving v. State, 891 N.W.2d 638, 643 (Minn.
2017). Neither party argues that circumstantial evidence is at issue here, so we do not apply
that standard.

19
Minn. Stat. § 256.98, subd. 1(1). Malik does not argue that the state failed to prove that he
obtained public assistance by me ans of a willfully false stat ement or representation. He
argues that the state failed to prove that he obtained assistance “to which [he] is not entitled
or assistance greater than that to which [he] is entitled.”
Malik relies on Kind Heart Daycare, Inc. v. Comm’r of Human Servs., 905 N.W.2d
1 (Minn. 2017). In Kind Heart, the supreme court interpreted the plain language of Minn.
Stat. § 256.98, subd. 1(3) (2016), which provide s that a person wrongfully obtains public
assistance if he or she “obtains or attempts to obtain . . . the receipt of payments to which
the individual is not entitled as a provider of subsidized ch ild care, or by furnishing or
concurring in a willfully false claim for child care assistance.” (Emphasis added.) There, a
provider of subsidized child care had reported that children from low-income families were
present at the child-care fac ility when they were not. Kind Heart, 905 N.W.2d at 4. The
Minnesota Department of Human Services dete rmined that the provider had wrongfully
obtained public assistance in violation of Minn. Stat. § 256.98, subd. 1(3), and revoked the
provider’s license.5 Id. at 4-5. The provider appealed, arguing that the daycare was “entitled
to” the payments received because the numbe r of children from low-income families that
were actually present still made it eligible, and so it had not wrongfully obtained public
assistance within the meaning of the statute. Id. at 10. The supreme court determined that
“the amount of assistance a person is ‘entitled to’ refers to the amount of assistance the

5 Kind Heart did not involve a criminal action, but rather an administrative decision by the
department. See Kind Heart, 905 N.W.2d at 1. Thus, the burden of proof was different, but
the supreme court analyzed the substantive standard of law by reference to the same statute
at issue here for the criminal offense. Id.

20
person was eligible for abse nt the misrepresentation.” Id. It reasoned that “[t]he statute’s
provisions plainly contemplate that a pers on is liable for wrongfully obtaining public
assistance payments only to the extent that payments ar e received to which the person is
not entitled and which would not have been received ab sent the concealment or
misrepresentation.” Id.
Assuming that the same definition of “entitled to” under subpart (3) of Minn. Stat.
§ 256.98, subd. 1 (2012), applies to subpart (1 ) of the same subdivision, which the state
does not contest, the state needed to prove that Malik obtained assistance that he would not
have received absent his concealment or misr epresentation. Malik argues that the state
failed to do so. Specifically, he argues that in order to show that his scrap-metal business
made him ineligible for the public assistance he received, the state needed to establish his
self-employment net income, not just his gross income. It did not do so, he argues, because
it did not produce any evidence regarding Orient International’s expenses.
The state responds by saying that it pr oved that, over the charged period, Malik
withdrew from an Orient International account and deposited into his personal accounts a
total of $190,000, for an average of $6,558 per month. The state then argues that Malik had
“an income of $6,558 per month,” which exceeded the elig ibility cap, even at its highest,
to receive the public assistance that he received. The state also points to evidence of Malik’s
spending to bolster its argument that it proved that he was ineligible for public assistance,
saying the evidence showed that “he was sp ending thousands of dollars per month on
purchases at Kowalski’s, Targ et, a vacation, restaurants, a $20,000 trip to Saudi Arabia,
and other expenses.”

21
It is undisputed that the st ate showed that Malik was th e sole owner of a business,
Orient International, and that his busine ss had large amounts of money coming into its
accounts from third-parties. La nge testified that the approx imate gross amount of money
received into all of Malik’s business and personal accounts from outside sources between
August 1, 2012, and March 9, 2015, was $1,262,345.75. Though Malik intermingled funds
from his personal and business accounts in a way that made it difficult to calculate exactly
how much money he “paid” himself out of Orient International, Lange estimated that Malik
transferred a net monthly average of $6,558 .35 from Orient Intern ational’s U.S. Bank
account into his personal accounts during the ch arged period and that he used this money
to pay his household expenses. The state presented evidence to corroborate this, showing
that Malik consistently paid his mortgage and other expenses, purch ased a vehicle, and
spent over $20,000 on a trip during the time period in which he was reporting to the county
that he had no income. From these facts, we conclude that the jury could “reasonably
conclude that the defendant was guilty be yond a reasonable doubt of the [charged]
offense.” Griffin, 887 N.W.2d at 263. We therefore hold that the evidence was sufficient
to support Malik’s conviction of wrongfully obtaining public assistance.
III. The state did not need to prove that Ma lik acted with a specific intent to defeat
the purpose of every public assistance program listed in Minn. Stat. § 256.98,
subd. 1.

Malik makes two arguments that turn on interpretation of the statute he was charged
with violating—Minn. Stat. § 256.98, subd. 1. First, quoting the statute, Malik argues that
the evidence was insufficient to prove all the elements of the crime of wrongfully obtaining
public assistance because the state did not prove that he committed the requisite acts “with

22
the intent to defeat the purposes of sec tions 145.891 to 145.897, the MFIP program
formerly codified in sections 256.031 to 25 6.0361, the AFDC program formerly codified
in sections 256.72 to 256.871, chapters 256B, 256D, 256J, 256K, or 256L, and child care
assistance programs.” Minn. Stat. § 256.98, su bd. 1 (emphasis added). He argues that the
use of the conjunctive word “and” in the stat ute means that, to be convicted under Minn.
Stat. § 256.98, subd. 1, a person must ha ve intended “to defeat the purposes of all the
sections listed in the statute.” (Emphasis a dded.) He asserts that the state offered no
evidence that he intended to defeat, for ex ample, the purposes of Minn. Stat. § 145.891
(2012), known as the “Maternal and Child Nutrition Act of 1975,” which include assuring
access to quality maternal and child health services and reducing infant mortality. See
Minn. Stat. § 145.88 (2012).
Second, employing the same reasoning—that the offense requires an intent to defeat
the purposes of all of the public programs listed in the statute—Malik argues that the
district court improperly instructed the jury on the elements of the offense and that this was
reversible error. We address both arguments.
A. Sufficiency of the evidence
To resolve the specific su fficiency-of-the-evidence argument here, we must first
interpret the statute. See State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017) (deciding the
appellant’s statutory-interpretation question before analyzing the sufficiency of the
evidence). “The first st ep in statutory interpretation is to determine whether the statute’s
language, on its face, is ambiguous. In determining whether a statute is ambiguous, [courts]
will construe the statute’s words and phrases according to their plain and ordinary

23
meaning.” Christianson v. Henke , 831 N.W.2d 532, 536 (M inn. 2013) (citation and
quotations omitted). “A statut e is ambiguous only if it is subject to more than one
reasonable interpretation.” State v. Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). If a
statute is ambiguous, canons of construction may be applied to resolve the ambiguity. Id.
“Resort to legislative history to interpret a statute is generally appropriate only where the
statute itself is ambiguous.” In re Welfare of Children of J.B., 782 N.W.2d 535, 545 (Minn.
2010).
The relevant portion of Minn. Stat. § 256.98, subd. 1, reads:
Subdivision 1. Wrongfully obtaining assistance . A
person who commits any of the following acts or omissions
with intent to defeat the purposes of sections 145.891 to
145.897, the MFIP program form erly codified in sections
256.031 to 256.0361, the AFDC program formerly codified in
sections 256.72 to 256.871, chapters 256B, 256D, 256J, 256K,
or 256L, and child care assistance programs, is guilty of theft
and shall be sentenced under se ction 609.52, subdivision 3,
clauses (1) to (5):
(1) obtains or attempts to obt ain, or aids or abets any
person to obtain by means of a willfully false statement or
representation, by intentional concealment of any material fact,
or by impersonation or other fra udulent device, assistance or
the continued receipt of assi stance, to include child care
assistance or vouchers produced according to sections 145.891
to 145.897 and MinnesotaCare se rvices according to sections
256.9365, 256.94, and 256L.01 to 256L.15, to which the
person is not entitled or assistan ce greater than that to which
the person is entitled;
(2) . . ; or
(3) . . . .
Malik argues that the plain language of the statute is not ambiguous and that the
conjunctive “and” in the opening paragraph una mbiguously requires th at the state prove
that the defendant acted with th e intent to defeat the purposes of every public assistance

24
program listed, regardless of the form of public assistance received. He argues that the use
of the plural form of “purposes” bolsters th is interpretation. The state does not specify
whether it believes that the statute is ambiguous but argues that the use of the word “and”
simply “recognizes that all of these public assistance programs are part of a larger
overarching program to provide support to needy residents.” The state also appears to assert
that the disputed language can be read as a mere “introduction” and that subparts (1) to (3)
provide the actual elements of the crime.
We conclude that the statute is ambiguou s. On its face, the phrase using the word
“and” can be read to require a specific intent to defeat the purposes of all listed programs
regardless of which program’s funds are at issue, or the subdivision can be read as a whole
to require that the accused intended to receive assistance to which they knew they were not
entitled under subpart (1). Canons of construction are thus appropriate to discern legislative
intent. See Thonesavanh, 904 N.W.2d at 435.
We begin with examining prior judicial construction of the statute at issue. See
Minn. Stat. § 645.17(4) (2018) (“[W]hen a court of last resort has construed the language
of a law, the legislature in subsequent laws on the same subject matter intends the same
construction to be placed upon such language.”). A review of caselaw shows that, although
no court has specifically addressed the “and” in Minn. Stat. § 256.98, subd. 1, courts have
addressed the intent element of the crime of wrongfully obtaining public assistance more
generally, determining that the “welfare fraud statute . . . incl ud[es] the element of intent
to defraud.” Hill v. State , 483 N.W.2d 57, 62 (Minn. 1992) (citing State v. Ibarra , 355
N.W.2d 125, 129 (Minn. 1984)). In Ibarra, the supreme court stated that to convict the

25
defendant under the 1982 versio n of Minn. Stat. § 256.98, the state needed to prove the
following elements: “(1) She obtained assistance; (2) She was not entitled to this assistance
at all, or in the amount she was seeking, and that she knew this; (3) She made a false
representation and intended ther eby to obtain assistance; (4) The value of the excess
assistance was more than $2,500.” 355 N.W.2d 125, 129 (Minn. 1984). And in Hill, the
supreme court stated that the elements of wrongfully obtaining public assistance under the
1990 version of Minn. Stat. § 256.98 are “k nowingly obtaining or attempting to obtain
assistance to which one is no t entitled by means of a willfu lly false statement or by
intentional concealment of the material fact or by other fraudulent device.” 483 N.W.2d at
62.
The legislature has amended Minn. Stat. § 256.98 many times, though, and the 1982
and 1990 versions interpreted by the supreme court both differ from the 2012 version at
issue here.6 In 1982, the statute did not have subdivisions or subparts and read:
WRONGFULLY OBTAINING ASSISTANCE; THEFT. A
person who obtains, or attempts to obtain, or aids or abets any
person to obtain by means of a wilfully false statement or

6 The first version of Minn. Stat. § 256.98, enacted in 1971, read:

PUBLIC WELFARE; WRONGFULLY OBTAINING
ASSISTANCE; MISDEMEANOR. Whoever obtains, or
attempts to obtain, or aids or abets any person to obtain by
means of a wilfully false stat ement or representation, or by
impersonation or other fraudulent device, assistance to which
he is not entitled, or assistance greater than that to which he is
entitled . . . with intent to defeat the purposes of sections 245.21
to 245.43, 256.13 to 256.43, 256.49 to 256.71, 256.72 to
256.87, or chapter 256B, shall be guilty of a misdemeanor.

1971 Minn. Laws ch. 550, § 1, at 1003 (emphasis added).

26
representation, by intentional co ncealment of a material fact,
or by impersonation or other fra udulent device, assistance to
which he is not entitled or assistance greater than that to which
he is entitled . . . with intent to defeat the purposes of sections
256.12, 256.72 to 256.872, chapter 256B, is guilty of theft and
shall be sentenced pur suant to section 609.52, subdivision 3,
clauses (1), (2) and (5).

Minn. Stat. § 256.98 (1982) (emphasis added). The list of statutes cited did not include the
“and” at issue here—in fact, it contained neither “and” nor “or.” See id. By 1990, the statute
had been amended to include seven subdivisions, the first of which read:
Subdivision 1. Wrongfully obtaining assistance . A person
who obtains, or attempts to obtain, or aids or abets any person
to obtain by means of a w illfully false statement or
representation, by intentional co ncealment of a material fact,
or by impersonation or other fra udulent device, assistance to
which the person is not entitled or assistance greater than that
to which the person is entitled, . . . with intent to defeat the
purposes of sections 256.12, 2 56.72 to 256.871, and chapter
256B, or all of these sections is guilty of theft and shall be
sentenced pursuant to section 609 .52, subdivision 3, clauses
(2), (3)(a) and (c), (4), and (5).

Minn. Stat. § 256.98, subd. 1 (1990) (emphasis added). The 1990 version of the statute did
include an “and,” but it was followed by “or all of these sections.” See id.
The structure of the current version of Minn. Stat. § 256.98, subd. 1, which divides
subdivision 1 into subparts, was created by a 1997 amendment. See 1997 Minn. Laws ch.
85, art. 5, § 8, at 660; 1997 Minn. Laws 1s t Spec. Sess. ch. 5, § 14, at 3396 (correcting
Minn. § 256.98, subd 1, as amended by 1997 Minn. Laws ch . 85, art. 5, § 8, by moving
part of the text out of subpart (2) and in to the subdivision intr oduction). The resulting
version of the statute lacked the disputed “and,” and instead read “with intent to defeat the
purposes of sections 145.891 to 145.897, . . . 256D, 256J, or 256K, or all of these sections

27
. . . .” Minn. § 256.98, subd 1 (1998) (emp hasis added). In 1999, the legislature again
amended the statute to reflect changes to where certain assistance programs were codified,
and this amendment inserted the “and” that is now disputed here, while also removing the
“or all of these sections” language. See 1999 Minn. Laws ch. 159, § 46, at 789. The
legislature has amended Minn. Stat. § 256.98 again since 1999, but those amendments do
not affect the disputed language.
Importantly, throughout all the amendmen ts to Minn. § 256.98, the statute has
always included the language about acting “with intent to defeat the purposes of” the listed
statutory sections on various public assi stance programs. Despit e this language, the
supreme court has held that the intent element of wrongfully obtaining public assistance is
satisfied when the state shows that the defendant intended to obtain public assistance to
which they knew they were not entitled. See Hill, 483 N.W.2d at 62 (explaining that the
defendant must knowingly obtain assistance they are not entitled to by means of a willfully
false statement or intentional concealment); Ibarra, 355 N.W.2d at 129 (explaining that the
defendant must know they are not entitled to the assistance they are seeking and make a
false representation with intent to obtain that assistance). If the legislature intended that the
statute be read as Malik reads it, which requires that the state prove (1) the purpose of every
public assistance statute listed in section 2 56.98 and (2) that the defendant intended to
defeat all of those purposes, we presume that it would have clarified this intent in its
subsequent amendments to the law in light of the consistent competing judicial
interpretation. See Minn. Stat. § 645.17(4); Licha v. N. Pac. Ry. Co. , 276 N.W. 813, 818
(Minn. 1937) (“Laws readopte d with a well-established m eaning attached to them by

28
judicial construction are adopted with that meaning and construction.”). This is especially
true given the extreme consequence of Malik’s interpretation, which is that the state would
have to prove that he intended to violate th e purposes of programs that are listed in the
statute but no longer exist, such as “the [Aid to Families with Dependent Children] program
formerly codified in sections 256.72 to 256.871.” Minn. Stat. § 256.98, subd. 1; 1997 Minn.
Laws ch. 85, art. 1, § 74, at 586 (repealing sections 256.72 to 256.871). We do not believe
that the legislature intended such a result.
Because the state was not required to pr ove that Malik intended to defeat the
purposes of all listed public programs, but rather only the programs identified in subpart (1)
in which he participated, the evidence was not insufficient to support the verdict.
B. Jury instructions
For the same reason, Malik’s argument that the district court erred in instructing the
jury fails.
“[J]ury instructions must be viewed in their entirety to determine whether they fairly
and adequately explained the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn.
1988). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622
N.W.2d 552, 556 (Minn. 2001). When there is no objection to jury instructions at trial, the
appellate court has discretion to “consider a claim of error on appeal if there was plain error
affecting substantial rights or an error of fundamental law in the jury instructions.” State v.
Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted); see State v. Milton,
821 N.W.2d 789, 807-08 (Minn. 2012).

29
The district court instructed the jury that the offense of wrongfully obtaining public
assistance consists of five elements:
[F]irst, the defendant obtained public assistance.

Public assistance as used here includes both medical
assistance and Supplemental Nutrition and Assistance
Program; that’s SNAP benefits.

Second, the defendant made statements or
representations or intentiona lly concealed material facts
regarding his income, employment, or assets.

Third, the defendant knew that the statements or
representations were false or that the facts concealed were
material.

Fourth, as a result, the defendant was not entitled to any
assistance at all or received assistance of a greater amount than
that to which he was entitled and he knew it.

And fifth, his act took place on or between August 1st,
2012 and January 31st, 2015 in Hennepin County, Minnesota.

See 10 Minnesota Practice, CRIMJIG 16.69 (2015) (similarly outlining the five elements,
though in a different order).
Malik argues the instruction was plainl y erroneous because it did not include a
requirement that Malik intended to defeat the purposes of all of the public-assistance
statutes listed in the statute. For the reasons described above, the district court’s instruction
of the jury in this case was consistent wi th prior caselaw regarding the elements of
wrongfully obtaining public a ssistance and was not erroneou s, much less a “plain error
affecting substantial rights.” Crowsbreast, 629 N.W.2d at 437.

30
IV. The district court did not abuse its di scretion by ordering Malik to pay $59,242
in restitution.

“A district court has broad discretion to award restitution, and the district court’s
order will not be reversed absent an abuse of that discre tion. The district court’s factual
findings will not be disturbed unle ss they are clearly erroneous.” State v. Andersen , 871
N.W.2d 910, 913 (Minn. 2 015) (citation omitted). “To dete rmine ‘whether to order
restitution’ and ‘the amount of restitution,’ a district court mu st consider the defendant’s
ability to pay and the lo ss sustained by the victim of the crime.” State v. Boettcher , 931
N.W.2d 376, 380 (Minn. 2019) (quoting Minn. Stat. § 611A.045, subd. 1 (2018)).
Malik argues that the district court erred in ordering restitution because it failed to
consider his ability to pay th e $59,242 loss sustained by th e county. He claims that,
although he was employed with a data cent er at the time of sentencing, his felony
conviction will make it “impossible to pass a background check” so he will be unable to
maintain gainful employment.
Appellate courts will affirm a district court’s restitution deci sion, even when a
defendant claims a current inability to pay, if the district court considered the defendant’s
ability to pay and ordered restitution in installments within the defendant’s ability to pay.
See State v. Maidi, 537 N.W.2d 280, 285 (Minn. 1995). Here, the district court ordered that
Malik pay the restitution in monthly installments of $500. The information that the district
court reviewed for sentencing included a sentencing memorandum from Malik that
reported Malik was currently employed in information technology at a bank and had been

31
since 2015. Under these circumst ances, we discern no abuse of discretion by the district
court.
Affirmed.