United States v. Morris Fahnbulleh ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2013 Decided June 13, 2014
No. 11-3045
UNITED STATES OF AMERICA,
APPELLEE
v.
MORRIS B. FAHNBULLEH,
APPELLANT
Consolidated with 11-3047
Appeals from the United States District Court
for the District of Columbia
(No. 1:09-cr-00359-1)
(No. 1:09-cr-00359-3)
Barbara E. Kittay, appointed by the court, argued the cause
and filed the briefs for appellant Morris B. Fahnbulleh.
Charles B. Wayne, appointed by the court, argued the cause
and filed the briefs for appellant Joe O. Bondo.
David P. Saybolt, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and Elizabeth Trosman and Elizabeth H. Danello,
Assistant U.S. Attorneys.
2
Before: GARLAND, Chief Judge, SRINIVASAN, Circuit
Judge, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Joe Bondo and Morris
Fahnbulleh were charged with and convicted of several counts
of fraud in connection with their work on a humanitarian aid
program in Africa funded by an agency of the United States
government. They seek reversal of their conviction, or failing
that, vacation of their sentences, alleging various errors made by
the district court in the trial proceedings. For the reasons stated
herein, we affirm the judgment of the district court.
BACKGROUND
The United States Agency for International Development
(“USAID”) initiated a food aid program, known as a Food-for-
Work program, for the African country of Liberia. Under the
program, Liberian communities would provide labor to perform
community projects such as digging wells and repairing roads,
and laborers would receive food for their services. To
implement the program, the USAID contracted with
humanitarian organization Catholic Relief Services (“CRS”).
CRS in turn subcontracted with another humanitarian
organization, World Vision, which administered the program in
three counties in Liberia through its federated organization,
World Vision International (hereinafter collectively referred to
as “World Vision”). Appellants Morris Fahnbulleh and Joe
Bondo worked for World Vision on the USAID subcontract
from 2005 to 2007. Bondo was a food monitor and Food-for-
Work officer, and Fahnbulleh was the World Vision
commodities manager in Liberia.
3
In 2009 Bondo and Fahnbulleh were arrested and charged
with fraud allegedly committed on the Liberia Food-for-Work
program. In particular, they were each charged with one count
of conspiracy to defraud the United States (18 U.S.C. §§ 371, 2),
one count of conspiracy to commit mail and wire fraud (18
U.S.C. §§ 1349, 2), four counts of mail fraud (18 U.S.C.
§ 1512(b)(1)), two counts of wire fraud (18 U.S.C. §§ 1343, 2),
and four counts of false claims (18 U.S.C. §§ 287, 2). Bondo
was further charged with two counts of witness tampering (18
U.S.C. § 1512 (b)(1)). Fahnbulleh and Bondo were tried
together by a jury. Fahnbulleh was convicted on all counts,
while Bondo was acquitted on the conspiracy to commit mail
fraud and wire fraud count, but convicted on the other charges.
Both were sentenced by the district court to 142 months
imprisonment.
Bondo and Fahnbulleh now appeal their convictions and
sentences.
DISCUSSION
Between them, Bondo and Fahnbulleh make five main
arguments on appeal: 1) they were denied a speedy trial; 2) the
district court lacked subject matter jurisdiction and venue; 3) the
district court erred by admitting two government exhibits into
evidence; 4) the district court erred in denying a motion by
Bondo for a mistrial; and 5) the district court improperly
calculated Fahnbulleh’s and Bondo’s sentencing guidelines
range. We discuss each argument below.
A. Speedy Trial
After investigating allegations that fraud had been
committed by World Vision employees during the Liberia Food-
for-Work program, federal authorities arrested Fahnbulleh and
4
Bondo. Bondo was held for approximately seven months and
Fahnbulleh approximately five months before being indicted.
Both Bondo and Fahnbulleh argue that their cases should have
been dismissed under the Speedy Trial Act (“STA”), 18 U.S.C.
§ 3161 et seq.
Appellants correctly point out that 18 U.S.C. § 3161(b)
requires that “[a]ny information or indictment charging an
individual with the commission of an offense shall be filed
within thirty days from the date on which such individual was
arrested . . . .” However, the STA provides for exclusion of
certain periods from this 30 day limit. At the time of Bondo’s
and Fahnbulleh’s arrests (two months apart) in mid-2009, the
government filed motions seeking to exclude periods of delay
from the 30 day limit. In particular, the government requested
delays pursuant to § 3161(h)(8) of the STA, which excludes a
period of time, “not to exceed one year,” from the 30-day period
if the government has requested assistance in obtaining evidence
from a foreign country. In support of its motions, the
government attached a letter sent in early 2009 from the U.S.
Department of Justice (“DOJ”) to the Liberian government,
seeking documents relating to the alleged fraud in the Liberia
Food-for-Work program. The district court granted the motions.
In late 2009 Bondo and Fahnbulleh were indicted.
Fahnbulleh asserts that § 3161(h)(8)’s directive that the
exclusion “not . . . exceed one year” suggests that before an
exclusion is granted the district court must determine on the
record what time period would be in the interest of justice and
how that would outweigh the interest of the defendant and the
public in a speedy trial. Fahnbulleh argues that the district court
undertook no such review, making it appear that any length of
time, not exceeding one year, requires no further examination.
He contends that he was seriously prejudiced in his long wait for
indictment, including loss of employment and financial
5
resources, and the anxiety, physical illness, and humiliation
associated with prolonged detention. Fahnbulleh further
contends that the balance of this prejudice against the
government’s alleged need to await additional foreign evidence
was not considered or addressed by the district court. Bondo
makes arguments similar to Fahnbulleh’s, contending that the
district court was obligated to look behind the reasons for the
government’s exclusion-of-time motion, requiring the
government to set forth specific facts to warrant further
extension, including detailed information about the status of the
foreign evidence request, what actions the government had taken
in the intervening months, what additional efforts it would
make, and why an indictment could not be returned without the
foreign evidence.
“We review a district court’s Speedy Trial Act
determination de novo as to matters of law, and for clear error
as to findings of fact.” United States v. Stubblefield, 643 F.3d
291, 294 (D.C. Cir. 2011) (internal citation, quotation marks,
and alteration brackets omitted). Here, the government
requested, and the district court granted, an extension of time
under the STA pursuant to 18 U.S.C. § 3161(h)(8), which
provides:
Any period of delay, not to exceed one year, ordered
by a district court upon an application of a party and a
finding by a preponderance of the evidence that an
official request . . . has been made for evidence of any
such offense and that it reasonably appears, or
reasonably appeared at the time the request was made,
that such evidence is, or was, in such foreign country.
We agree with the government that § 3161(h)(8) sets out
only two requirements: (1) that a request for foreign evidence be
made; and (2) that it reasonably appears that the evidence is in
6
the foreign country. Referencing the early 2009 letter sent by
DOJ to the government of Liberia requesting documents
relevant to its investigation, the district court found by a
preponderance of the evidence that a request had been made to
Liberia for documents and that it reasonably appeared that these
documents were in Liberia. The district court consequently
granted the government’s requests for a period of delay. We
conclude that the district court did not clearly err in granting the
§ 3161(h)(8) delay periods.
B. Subject Matter Jurisdiction and Venue
Prior to trial, the district court denied Fahnbulleh’s motion
for dismissal of his case for lack of subject matter jurisdiction
and improper venue. Pursuant to 18 U.S.C. § 3231, “[t]he
district courts of the United States shall have original
jurisdiction . . . of all offenses against the laws of the United
States.” “[I]f an indictment or information alleges the violation
of a crime set out in Title 18 or in one of the other statutes
defining federal crimes, that is the end of the jurisdictional
inquiry.” United States v. George, 676 F.3d 249, 259 (1st Cir.
2012) (internal quotation omitted). Fahnbulleh and Bondo were
charged with and found guilty of numerous crimes set out in
Title 18. No more is necessary to establish subject matter
jurisdiction.
Nevertheless, Fahnbulleh (and Bondo by adoption) argues
that the district court should have granted his motion to dismiss
his case for lack of subject matter jurisdiction because the
evidence failed to demonstrate any agreement to defraud the
United States, as opposed to an agreement to defraud private
parties. Because that argument rests on the evidentiary proof at
trial, it does not in fact impugn the district court’s subject matter
jurisdiction. Instead, it sounds in the nature of a claim that the
evidence was insufficient to establish any conspiracy to defraud
7
the United States. So understood, we find the argument
unpersuasive. Fahnbulleh’s argument on this proposition
proceeds as follows: in implementing the Food-for-Work
program, the USAID contracted with Catholic Relief Services,
which in turn contracted with Fahnbulleh’s employer World
Vision to administer the program in three counties in Liberia.
World Vision had no privity with the United States. If World
Vision did commit a crime, it was against CRS and not the
United States, and disputes between private parties do not
provide a basis for subject matter jurisdiction. While
Fahnbulleh’s argument is orderly, it is not ultimately persuasive.
A similar argument was rejected by the Supreme Court in
Tanner v. United States, 483 U.S. 107 (1987). In that case, a
Florida corporation—Seminole Electric Cooperative, Inc.
(“Seminole”)—received a bank loan for a power plant
construction project which included an access road. The loan
was guaranteed by the Rural Electrification Administration
(“REA”), a credit agency of the United States Department of
Agriculture. One of the defendants, Conover, was the
procurement manager at Seminole; the other defendant, Tanner,
was a friend of his who owned a limerock mine. During
construction of the power plant, Conover’s department at
Seminole prepared two contracts favorable to Tanner to use
Tanner’s limerock in constructing the access road. At about this
same time Tanner made payments to Conover for thousands of
dollars, allegedly on their personal transactions. During
performance of the two contracts, Conover made
misrepresentations to Tanner’s bonding company on the access
road’s state of completion. Conover and Tanner were
subsequently indicted for and convicted of, inter alia,
conspiracy to defraud the United States in violation of 18 U.S.C.
§ 371. Id. at 110-13. They argued that if they were guilty of a
conspiracy to defraud, the target of the conspiracy was Seminole
and not the United States. Id. at 129. The Supreme Court
8
disagreed, stating that “[i]f the evidence presented at trial was
sufficient to establish that petitioners conspired to cause
Seminole to make misrepresentations to the REA, then
petitioners’ convictions may stand.” Id. at 132. So too here.
Evidence presented at trial of this case showed that pursuant
to its contract with CRS, World Vision was to follow U.S. grant
regulations and to provide U.S.-mandated reports on
implementation of the Food-for-Work program. These reports
were generated from the collection of raw data on eight forms.
Many of the raw data forms referenced the USAID funding;
Bondo signed and verified many of these forms; and Fahnbulleh
verified their accuracy. Included among the U.S.-mandated
reports were recipient status reports (“RSRs”) and commodity
status reports (“CSRs”), to be provided monthly to CRS, as well
as financial reports and narrative reports, to be provided
quarterly. CRS in turn reformatted these reports and sent them
on to USAID. Furthermore, the evidence showed that
Fahnbulleh was involved in sending the CSRs, RSRs, and
narrative reports to Washington, D.C., at times emailing the
reports to Washington himself. As in Tanner, “the evidence
presented at trial was sufficient to establish that [Fahnbulleh and
Bondo] conspired to cause [CRS] to make misrepresentations to
[USAID] . . . [Fahnbulleh’s and Bondo’s] convictions may
stand.”
* * * * *
Fahnbulleh goes on to argue that the district court erred in
denying his motion to dismiss his case for lack of venue. He
further argues that the court again erred when it denied his
request for a jury instruction on venue. According to
Fahnbulleh, venue was not proper here because none of the
alleged co-conspirators ever stepped foot into the District of
Columbia. He claims that any acts committed within D.C.
9
constituted only innocent acts of U.S. government employees,
paying claims submitted by CRS. First, we note that venue for
a conspiracy prosecution lies anywhere an overt act is
committed. United States v. Rosenberg, 888 F.2d 1406, 1415
(D.C. Cir. 1989). As noted in our subject matter jurisdiction
discussion above, Fahnbulleh and Bondo caused fraudulent
reports to be sent to Washington in furtherance of the
conspiracy. For the same reason, venue was proper for the
substantive offenses. Pursuant to 18 U.S.C. § 3237(a), mail
fraud “may be inquired of and prosecuted in any district . . . into
which such commerce [or] mail matter moves.” Also, pursuant
to 18 U.S.C. § 3732(a), venue for wire fraud lies in any
jurisdiction to or from which the communication was
transmitted. Finally, venue for false claims is properly laid
where, inter alia, the claim is received. See United States v.
Leahy, 82 F.3d 624, 633 (5th Cir. 1996).
As to the failure of the district court to deliver the proffered
instruction on venue to the jury, we perceive no reversible error.
It is established law in this circuit with respect to venue
instructions that a venue “instruction is necessary only when the
question of venue is genuinely in issue.” United States v. Haire,
371 F.3d 833, 840 (D.C. Cir. 2004). Various courts have dealt
differently with the question of when venue is at issue so as to
require an instruction. See United States v. Perez, 280 F.3d 318,
333–35 (3d Cir. 2002) (collecting cases). In Haire, we
expressly adopted and followed the Third Circuit’s analysis in
Perez, concluding “that the instruction is necessary only when
the question of venue is genuinely in issue.” 371 F.3d at 840.
The Perez holding establishes that
Even if a defendant properly objects to venue . . . it does not
become a fact question for the jury unless and until the
defendant also places it in issue by establishing a genuine
issue of material fact with regard to venue.
10
280 F.3d at 335.
The unrebutted evidence discussed above clearly
established that there is no genuine issue of material fact with
reference to venue, and the refusal of the district judge to offer
the venue instruction is not error.
C. Admission of Government Exhibits 100 and 104
Over objection of defense counsel, the trial judge admitted
into evidence Government Exhibits 100 and 104. Exhibit 100
consisted of 36 binders containing over 10,000 pages of raw
data collected, using eight different forms, on the Liberia Food-
for-Work program. The government called to the witness stand
Eric Fullilove, Chief Financial Officer of World Vision
International, to authenticate the contents of Exhibit 100. It was
admitted into evidence under Fed. R. Evid. 803(6), the business
records exception to the hearsay rule. That rule provides for the
admission of
[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
. . . unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness.
Fahnbulleh and Bondo both argue that the district court
erred in allowing into evidence Government Exhibit 100.
11
Fahnbulleh contends that the government did not demonstrate
authenticity or trustworthiness as required by Rule 803(6),
because Fullilove had no personal familiarity with the
documents as he did not work at World Vision until after the
project was completed; he reviewed but did not conduct the
audit of the records; and he had never been to Liberia. For his
part, Bondo argues that Fullilove’s testimony to admit Exhibit
100 failed in fulfilling Rule 803(6)’s requirement that the
information in the records be transmitted by a person with
knowledge. According to Bondo, the district court admitted the
36 binders comprising Exhibit 100 on nothing more than
Fullilove’s conclusory statement that the records were
maintained by World Vision in the ordinary course of business.
Since these records were the “guts of the government’s
documentary evidence against” him, argues Bondo, their
admission into evidence without a proper foundation affected his
substantial rights.
We review the district court’s admission of business
records for abuse of discretion. United States v. Gurr, 471 F.3d
144, 151 (D.C. Cir. 2006). As Fahnbulleh correctly notes, under
Fed. R. of Evid. 803(6), records of a regularly conducted activity
are to be admitted at trial as an exception to the rule against
hearsay if: (A) the records were made at or near the time by
someone with knowledge; (B) the records were kept in the
course of a regularly conducted activity of, inter alia, a business
or organization; (C) making the records was a regular practice
of that activity; (D) all these conditions are shown by the
testimony of the custodian or another qualified witness; and (E)
neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
We conclude that the district court did not abuse its
discretion in admitting Exhibit 100. Even assuming the
evidence was admitted for the truth of the matters asserted, but
12
see Anderson v. United States, 417 U.S. 211, 220 (1974)
(statements are not hearsay if “the point of the prosecutor’s
introducing those statements was simply to prove that the
statements were made so as to establish a foundation for later
showing . . . that they were false”), all of the requirements for
admission of the evidence as business records were met. First,
Fullilove testified that the forms making up Exhibit 100 were
prepared by World Vision employees as part of their job
responsibility throughout the course of the Food-for-Work
program. Second, Fullilove testified that all the forms were
maintained in the ordinary course of business. Third, Fullilove
testified that these forms were similar to the forms regularly
maintained in its other branches. Fourth, Fullilove was World
Vision International’s Chief Financial Officer, and as such was
familiar with the forms and circumstances of their creation.
Furthermore, he testified that he had supervised and reviewed
the forensic audit of World Vision International that had
collected and analyzed the forms. We have held that the
“custodian [of the records] need not have personal knowledge of
the actual creation of the document.” United States v.
Adefehinti, 510 F.3d 319, 325 (D.C. Cir. 2007) (internal citation
and quotation marks omitted). Finally, there was no evidence
that the documents presented in court were not reliable reports
of the data that had been entered.
* * * * *
Exhibit 104 consisted of a summary of the forms in Exhibit
100. It was admitted pursuant to Fed. R. Evid. 1006, through
Fullilove. Rule 1006 permits admission of an exhibit
summarizing “[t]he content of voluminous writings . . . that
cannot be conveniently examined in court.” For a summary of
documents to be admissible, the documents must be so
voluminous as to make comprehension by the jury difficult and
inconvenient; the documents themselves must be admissible; the
13
documents must be made reasonably available for inspection
and copying; the summary must be accurate and nonprejudicial;
and the witness who prepared the summary should introduce it.
United States v. Hemphill, 514 F.3d 1350, 1358 (D.C. Cir.
2008).
Bondo (and Fahnbulleh by adoption) argues that the district
court erred in admitting the Government’s Exhibit 104 because
its admission failed to satisfy the requirements of Rule 1006. In
particular, Bondo asserts, again, that the raw data of Exhibit 100
was not itself admissible, and furthermore that the summary was
not prepared by the witness who introduced it, Fullilove. We
have already rejected the argument that Exhibit 100 was not
itself admissible. And although Fullilove did not prepare
Exhibit 104 himself, he testified that he supervised a team of
auditors who reviewed the raw data and prepared the summary,
and that he then reviewed the summary. We have previously
approved introduction of summary testimony when the witness
supervised others who prepared the summary. United States v.
Lemire, 720 F.2d 1327, 1349 (D.C. Cir. 1983). We conclude
that the district court did not err in admitting Exhibit 104.
D. Denial of Mistrial
During closing arguments, the government in its rebuttal
made seven references to “taxpayers” and their expectations of
the Food-for-Work program. Counsel for both Bondo and
Fahnbulleh objected. The district court agreed that these
comments were improper and, as a remedy, instructed the jury
to disregard the prosecutor’s comments about taxpayers. On
appeal, Bondo (and Fahnbulleh by adoption) argues that the
district court erred in not declaring a mistrial, and that as a result
his convictions should be reversed.
14
We review the district court’s denial of a motion for mistrial
for alleged prosecutorial impropriety in closing argument for
abuse of discretion. United States v. Becton, 601 F.3d 588, 598
(D.C. Cir. 2010). In United States v. Gartmon, we noted:
This court has used a relatively consistent set of criteria
for evaluating the potential prejudice of closing
argument errors. We have generally looked to three
factors in determining whether improper remarks by
the prosecutor sufficiently prejudiced a defendant: the
closeness of the case, the centrality of the issue
affected by the error, and the steps taken to mitigate the
effects of the error.
146 F.3d 1015, 1026 (D.C. Cir. 1998) (internal quotation marks
and citations omitted). Bondo argues that these three factors
tilted in his favor. First, he contends that the closeness of his
case was shown by his acquittal of conspiracy to commit mail
and wire fraud. Second, he asserts that the value of the alleged
misappropriations was inextricably bound up within the entirety
of the case, and that there was no way to extricate the
government’s characterization of the alleged loss as one that was
personal to each juror. Finally, he argues that the prosecutor’s
“taxpayer” argument was so improper that the district court’s
instruction could not ameliorate the unfair prejudice the
argument caused.
We do not find these arguments persuasive. First, the case
against Bondo (and Fahnbulleh) was not close: numerous
documents and several witnesses all pointed to their guilt.
Second, the “taxpayer” remarks by the prosecutor were not
central to the issue of whether the defendants were guilty of
fraud in submitting false documents. Third, the district court
told the jury to “disregard the comments that were made about
the taxpayers,” and further instructed them that “[t]his is a case
15
of the United States versus the two defendants. It’s not a case
of the taxpayers against the defendants. That’s not what this
case is about.” We conclude that the improper remarks by the
prosecutor did not prejudice the defendants, especially in light
of the judge’s curative instruction. The district court thus did
not abuse its discretion in not declaring a mistrial.
E. Sentencing
At sentencing, the district court determined that under the
United States Sentencing Guidelines (“USSG” or “Guidelines”)
both Fahnbulleh’s and Bondo’s base offense level was 7. The
district court then enhanced each offense level: by 16 points
pursuant to USSG §2B1.1(b)(2)(C) for a calculated loss of $1.9
million; by 6 points pursuant to USSG §2B1.1(b)(1)(I) for 250
or more victims; and by 4 points pursuant to USSG §3B1.1(a)
for being an organizer or leader of a criminal activity involving
five or more people.1
Fahnbulleh and Bondo argue that their cases should be
remanded for re-sentencing, contending that the district court
improperly calculated their Guidelines ranges. Fahnbulleh
contends that the district court’s finding of a loss of $1.9 million
was in error because the jury’s verdict demonstrated that the
only misconduct unanimously found involved falsification of
documents and some work done at personal residences. Second,
Fahnbulleh claims that the district court’s finding of 250 or more
victims was in error because this number was never submitted
to the jury, and in finding this number the district court relied
solely on sentencing letters submitted by individuals who
distributed food. Third, he argues that he was not an organizer
1
An additional two point enhancement, not at issue here, was added
to Bondo’s offense level pursuant to USSG §3C1.1 for obstructing the
investigation.
16
or leader of any criminal activity because the evidence showed
that it was not he but his co-conspirators who gave the
instructions regarding the falsification of documents and the
work done at personal residences.
Bondo argues that the government failed to satisfy its
burden of establishing through reliable, specific evidence any
amount of loss, much less a $1.9 million loss. The only
evidence proffered to support the figure, according to Bondo,
were the unsworn hearsay statements of 258 village leaders from
the communities covered by the food distribution program.
Bondo contends that the district court merely speculated that the
actual loss was equal to the amount World Vision agreed to pay
for reimbursement. Consequently, Bondo argues, the district
court’s $1.9 million loss calculation is unsupportable and
unreasonable. And concerning the number of victims calculated
by the district court, Bondo argues that because the government
failed to satisfy its burden of establishing an amount of loss with
reliable and specific evidence, the district court was precluded
from finding that there were any victims because victims are
only those who sustain any actual loss.
At sentencing, the district court may make findings of fact
under a preponderance-of-the-evidence standard. See United
States v. Bras, 483 F.3d 103, 107-08 (D.C. Cir. 2007). The
district court may even rely on evidence that would be
inadmissible at trial, as long as that evidence has “sufficient
indicia of reliability to support its probable accuracy.” Id. at 109(internal quotation marks and citation omitted). In reviewing a
sentencing decision, this court reviews for clear error factual
findings made by the district court, and gives “due deference” to
the district court’s application of the Guidelines to the facts.
United States v. Saani, 650 F.3d 761, 765 (D.C. Cir. 2011).
17
As noted, both Fahnbulleh and Bondo argue that the district
court erred in enhancing their offense levels by 16 points
pursuant to USSG §2B1.1(b)(2)(C) for a calculated loss of $1.9
million. The district court did not clearly err in finding a loss of
$1.9 million. At sentencing, the district court stated that the
evidence clearly showed a loss of $1.9 million. In support of
this statement, the court made reference to an internal audit of
the Liberia Food-for-Work program conducted by World Vision
showing this amount of loss. Furthermore, the court noted that
evidence presented at trial supported this amount. That evidence
included testimony presented by the government that World
Vision International repaid $1.9 million to the United States
government in compensation for the conspirators’ fraud. See
United States v. Bisong, 645 F.3d 384, 398 (D.C. Cir. 2011)
(“For sentencing, the loss amount need only be a reasonable
estimate of the loss based on the available information.”). We
conclude that the district court made a reasonable estimate of
loss.
Both Bondo and Fahnbulleh also argue that the district court
erred in enhancing their offense levels by 6 points pursuant to
USSG §2B1.1(b)(1)(I) for 250 or more victims. Prior to
sentencing, the government submitted to the court a summary
exhibit detailing the amount of lost food as calculated by World
Vision International examiners; the summary was based on
interviews conducted by the examiners of leaders in 258 towns
in which food was claimed to have been distributed. The district
court at sentencing made reference to three of these interviews,
all three of which contained references to more than 100 people
who performed work but did not receive food. The court stated
that consequently by a preponderance of the evidence the
number of victims who had worked for the Food-for-Work
program was in excess of 250. We conclude that it was
reasonable for the district court to rely on the three interviews,
which was more than sufficient to put the number of victims
18
over the 250 required by USSG §2B1.1(b)(1)(I).
Finally, Fahnbulleh argues that the district court erred in
enhancing his offense level by 4 points pursuant to USSG
§3B1.1(a) for being an organizer or leader of a criminal activity
involving five or more people. At Fahnbulleh’s sentencing the
district court stated that the evidence presented at trial showed
that Fahnbulleh held “a position of hierarchy” in the conspiracy,
and that “at least five people were acting at his behest.” That
evidence consisted of testimony from five witnesses who
admitted to committing fraud during the Food-for-Work
program and testified that they were supervised by Fahnbulleh
(and Bondo, among others). We conclude that the district court
did not clearly err in finding that Fahnbulleh was an organizer
or leader of a criminal activity involving five or more people.2
CONCLUSION
We have carefully considered all of defendants’ arguments.
For the reasons stated above, the judgment of the district court
is affirmed.
2
We have given full consideration to other arguments raised by the
appellants and find none require separate discussion.