United States v. Morris Fahnbulleh

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.

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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.

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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

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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

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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

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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

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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.

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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.

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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.

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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

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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.

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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

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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.

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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

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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.