         Case: 12-13217   Date Filed: 05/21/2013   Page: 1 of 56


                                                       [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 12-13217
                     ________________________

             D.C. Docket No. 8:11-cr-00324-VMC-TGW-1


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

EDUARDO BLANCHET,

                                                        Defendant-Appellant.

                     ________________________

                           No. 12-13256
                     ________________________

            D.C. Docket No. 8:11-cr-00324-VMC-TGW-2


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

DANIEL GUILLAN,

                                                        Defendant-Appellant.
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                               ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                       (May 21, 2013)

Before HULL and ANDERSON, Circuit Judges, and SCHLESINGER, * District
Judge.

PER CURIAM:

       Defendants Eduardo Blanchet and Daniel Guillan appeal their convictions

and 36-month sentences of imprisonment for (1) one count of conspiracy to

defraud the United States, in violation of 18 U.S.C. § 371, and (2) five counts of

wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. After review and oral

argument, we affirm both Defendants’ convictions and sentences.

                                    I. BACKGROUND

       Defendants Blanchet’s and Guillan’s convictions arise out of their

company’s procurement of a $100 million, small business set-aside contract with

the federal government in 2007. The contract was for the provision of foreign

language instruction services to the United States Special Operations Command

(“SOCOM”). The core of the fraud in this case is that Blanchet and Guillan’s

company did not meet the necessary federal standards to be considered a small

business. Both Defendants participated in misrepresenting to or concealing from
       *
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.

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the government material facts about their company’s affiliation with another, larger

company, both in the initial bid and during the government’s later investigation.

       On February 13, 2012, a jury trial began as to both Blanchet and Guillan,

and at the close of the trial, the jury found Blanchet and Guillan guilty on all six

counts. We recount the trial evidence, which included extensive documentary and

testimonial evidence that we construe in the light most favorable to the jury’s

guilty verdict, in setting out the essential facts of this case.

A.     The 2002 Contract & BIB Consultants, Inc.

       In September 2002, SOCOM awarded to BIB Consultants, Inc. (“BIB”), a

contract for the provision of foreign language and cultural training to military

personnel (the “2002 Contract”). Defendant Blanchet and his wife, Silvia Mira,

formed BIB in June 1996, and each owned half of the company’s shares at the time

of formation. At the time BIB was awarded the 2002 Contract, Defendant

Blanchet was the president of BIB while Defendant Guillan served as BIB’s

vice-president and registered agent, and both Defendants participated in the

negotiations with SOCOM on BIB’s behalf. 1 This 2002 Contract extended for a

period of five years and had a ceiling of $50 million.


       1
        In 2003, Guillan and his wife assumed positions as president and vice-president of BIB
and each received 1,000 shares of BIB stock. Ostensibly, this change occurred in connection
with a contract award that is not the subject of this appeal. That contract required that the
company that obtained the contract have officers who were U.S. citizens. Guillan and his wife
were U.S. citizens, while at the time of the award, Blanchet and Mira were non-citizens. On
January 1, 2006, Guillan and his wife stepped down from their positions as officers of BIB and

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       Pursuant to a decision made by SOCOM’s contracting officer, who for this

2002 Contract was Karene Spurlin, SOCOM designated the 2002 Contract as a

“small business set-aside.” To promote the growth of small businesses, SOCOM

contracting officers had the discretion to designate certain contracts as being

exclusively open for bid and performance by small businesses, with the small

businesses being required to self-certify that they met certain criteria regarding

their size, ownership, and affiliations with other business entities. After the

business self-certified that it met the small-business requirements, the contracting

officer would review the bid for any irregularities. If the contracting officer

questioned the bid, she could refer the matter to the Small Business Administration

(“SBA”) for further investigation. As a result of BIB’s performance under the

2002 Contract, BIB became too large to obtain subsequent small business set-aside

contracts from SOCOM.

       To obtain working capital and to enable BIB to perform under the 2002

Contract, Blanchet obtained a “factoring” credit arrangement with a local central

Florida bank, BankFirst. Under this arrangement, which lasted for approximately

one year, BankFirst received an assignment of BIB’s right to payment under the

2002 Contract and, in exchange, BankFirst loaned money to BIB. The BankFirst-

BIB loan was repaid as SOCOM made payments under the 2002 Contract.

Blanchet, Mira, and Luke Farkas, a BIB employee to whom Guillan’s wife had sold all of her
BIB stock, became BIB’s sole officers.

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B.    Formation and Initial Organization of MiLanguages

      After it was awarded the 2002 Contract, BIB began providing foreign

language training at various military installations. At Fort Campbell, Kentucky,

BIB subcontracted its contractual foreign language training obligations to Berlitz

International. At some point during the 2002 Contract term, SOCOM informed

Blanchet or Guillan that it was dissatisfied with Berlitz’s performance at Fort

Campbell.

      In September 2004, Guillan formed a new company called MiLanguages.

Guillan initially owned all of MiLanguages’s stock and was the company’s

president and registered agent. Guillan later signed a stock purchase and sale

agreement granting Blanchet and Blanchet’s wife, Silvia Mira, the right to

purchase MiLanguages’s stock. It is unclear whether Blanchet or his wife ever

executed this agreement, however.

      On December 27, 2004, MiLanguages entered into a subcontract with BIB

under which MiLanguages agreed to take over the provision of foreign language

services at Fort Campbell as of January 1, 2005. Blanchet signed the subcontract

on BIB’s behalf and Guillan signed the subcontract for MiLanguages.

      On January 4, 2005, MiLanguages opened an account at BankFirst.

Blanchet and Guillan were the only authorized signatories for MiLanguages’s




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BankFirst account. The first deposit into this account was a $50,000 check from

BIB, and BIB also provided overdraft protection on this account. 2

       In November 2006, Blanchet contacted attorney Ralph Hadley, III, who had

previously provided legal services for BIB and Blanchet—both personally and

related to Blanchet’s businesses. At this time, Blanchet was serving as the

president of BIB and the Director of Government Contracting for MiLanguages,

while Guillan owned MiLanguages and was BIB’s Director of Government

Contracting. Although Hadley was not familiar with the exact particulars of the

relationships between BIB, MiLanguages, and the Defendants or the details of the

2002 Contract, Hadley was generally aware that MiLanguages did subcontracting

work for BIB.

       In an e-mail, Blanchet requested that Hadley draft an employment contract

between MiLanguages and Guillan, despite the fact that Guillan was the current

owner of MiLanguages. This employment contract was contingent on

MiLanguages obtaining a future contract from SOCOM. In the e-mail, Blanchet

asked Hadley whether BIB or MiLanguages should sign the contract, “considering

the legal situation” between the two business entities and in light of the fact that

“in reality [BIB] is the one, but [Guillan] will be hired by MiLanguages.”

Essentially, Hadley did not understand why Blanchet was writing to him about a

       2
      MiLanguages later repaid a $50,000 sum to Blanchet, with a check signed by Guillan, on
December 5, 2008.

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contract between Guillan and a company Guillan owned, but he “assume[d] [it

was] because that was a discussion that the two of them had together between

themselves. . . . They had private meetings and discussions to which [he] was not

privy.” When Hadley drafted the employment contract between MiLanguages and

Guillan, Hadley billed BIB for the work he did on MiLanguages’s behalf.

C.    MiLanguages Transferred to a New Owner

      Around this same time—the later months of 2006—the Defendants

discussed with Hadley their desire to find someone with a strong foreign language

and teaching background to head up MiLanguages and assist MiLanguages in

bidding on future SOCOM contracts. Hadley recommended Edward Borsoi, a

retired college professor whom Hadley knew and who lived nearby. After

discussing the Defendants’ request with Borsoi, Hadley arranged for the

Defendants and Blanchet’s wife, Mira, to meet with Borsoi at Hadley’s office.

      At this meeting, Hadley explained to Borsoi that the Defendants “had a

business of providing foreign language instruction and that they had been very

successful,” but that their success led to their business growing too big to obtain

new government contracts. Consequently, “the only way to apply for the

[g]overnment contract would be for a new company to apply or a new restructuring

of the old company,” and Hadley asked Borsoi if he would be willing to have the

stock shares of the new company placed in his name. Borsoi agreed to become the


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sole stockholder and president of MiLanguages in exchange for a monthly stipend

of $1500, but beyond accepting this role, Borsoi did not provide money or other

consideration to Guillan in exchange for all of the shares of MiLanguages. Borsoi

stated that he agreed to take on this role because he “was a retired guy. And retired

people look for things to do. . . . [he] thought [he] would learn something. . . . it

looked like a mutually . . . beneficial arrangement.” At the meeting, neither of the

Defendants asked Borsoi about his background or qualifications.

      Hadley drew up the necessary paperwork and Borsoi signed it, and effective

January 1, 2007, Borsoi became the owner of MiLanguages via a stock transfer

from Guillan. However, Borsoi was not involved in the day-to-day operations of

MiLanguages, could not sell his MiLanguages stock, and would sign documents

for MiLanguages that were presented to him without really reading them. Borsoi

did not consider himself to be the actual owner of MiLanguages, as he did not have

his own office at MiLanguages, never spent any of MiLanguages’s money or drew

on the company’s bank account. Neither Blanchet nor Guillan asked for Borsoi’s

permission to draw on MiLanguages’s line of credit. In addition, Borsoi did not

know how many, if any, contracts MiLanguages entered into during his tenure as

president. The business decisions and “all the operations” for MiLanguages were

handled by either Blanchet or Guillan, including subcontracting and personnel

decisions.


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D.     MiLanguages’s Bid for the 2007 SOCOM Follow-On Contract

       The 2002 Contract between BIB and SOCOM was scheduled to expire in

2007, and as noted previously, BIB had grown too large to obtain future small

business set-aside contracts from SOCOM. In light of the expiring 2002 Contract,

Defendant Guillan hired Starr Solutions to assist MiLanguages in putting together

a bid for a 2007 follow-on contract likely to be offered by SOCOM (the “2007

Contract”). 3 Vicky Strycharske, the owner of Starr Solutions, had assisted BIB

with its bid for the 2002 Contract and had performed other bid and proposal-

writing work for BIB and Berlitz International since 2002.

       In the early stages of the bid-development process, Strycharske suggested

that both BIB and MiLanguages prepare to submit bids on the 2007 Contract

because SOCOM had not determined whether the 2007 Contract was going to be a

small business set-aside. However, Strycharske and her company were hired by

MiLanguages, and Guillan made it clear that Strycharske was working for

MiLanguages, a company that he told Strycharske that he owned. Guillan signed

the checks paying Starr for work she performed on MiLanguages’s behalf.

Strycharske never had any interaction with Borsoi, although at one point while she




       3
         The term “follow-on contract” was used by SOCOM and the parties in this appeal to
describe a situation where a prior contract term was expiring, but SOCOM wanted to continue to
receive services.

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was still working for MiLanguages, Guillan told her that Borsoi owned the

company.

      After Starr was retained by MiLanguages, Blanchet met with Strycharske

and expressed to her that “[h]e was angry that [Guillan] thought that MiLanguages

was his company” and that “he had been very good to [Guillan], that he’d made

him a wealthy man. . . . He also said that it was . . . his [i.e., Blanchet’s] money.”

Blanchet did not specifically indicate why he was upset about MiLanguages or

Guillan during that meeting, but Strycharske understood his anger to be directed at

an issue about “the ownership of MiLanguages.” Guillan continued to serve as the

Director of Government Contracting for BIB while MiLanguages was preparing to

bid for the 2007 Contract.

      During this pre-bid phase, Guillan asked Spurlin (who was still serving as

SOCOM’s contracting officer) whether the 2007 Contract, like the 2002 Contract,

would be set aside for small businesses. Spurlin told Guillan that once SOCOM

designated a contract as a small business set-aside, “it normally stays set-aside for

small business.” Guillan also asked whether BIB would be eligible to bid on the

2007 Contract if the contract was a small business set-aside, and Spurlin told him

BIB would not be eligible because BIB “would have exceeded the small business

dollar threshold.”




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       In November 2006, Blanchet and Guillan both attended SOCOM’s “industry

day,” which was a gathering of potential bidders for the 2007 Contract. Blanchet

represented BIB, and Guillan represented MiLanguages at this meeting.

       On January 8, 2007, SOCOM released online a “pre-solicitation notice” for

the 2007 Contract. This notice indicated that the forthcoming contract was for the

provision of foreign language training and would be “a hundred percent set-aside

for small business . . . . and the size standard is $6.5 million,” meaning that

companies that wanted to bid on the contract could not do more than $6.5 million

in business either that year or in total. The notice also indicated that the contract

would extend for “a base year with four option periods” and have a ceiling of $100

million.

       After SOCOM issued this notice, in early 2007 Strycharske began preparing

MiLanguages’s bid for the 2007 Contract. On January 25, 2007, Guillan sent an e-

mail about MiLanguages’s bid to “[the] whole team,” including Strycharske (but

not Borsoi). In this e-mail, Guillan indicated that because the 2007 Contract was

set aside for small businesses, “MiLanguages will lead,” i.e., would be the prime

contractor, and that other affiliated companies would be subcontractors.4 In




       4
        According to Spurlin’s trial testimony, under the federal regulations governing small
business set-aside contracts, a small business that was awarded such a contract could legally
subcontract out up to 49 percent of the contract work to a larger company.

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preparing MiLanguages’s bid for the 2007 Contract, Strycharske coordinated with

Blanchet, Guillan, and other team members.

      On February 26, 2007, MiLanguages submitted its bid for the 2007 Contract

to SOCOM. In its bid, MiLanguages confirmed that it was “a small business.”

MiLanguages’s bid also stated that (1) several current or former BIB or Berlitz

employees would work for MiLanguages if MiLanguages was awarded the 2007

Contract; and (2) BIB and Berlitz would be among the subcontractors

MiLanguages was planning to hire. During the pendency of its bid, MiLanguages

clearly and repeatedly identified Guillan as its Director for Government

Contracting and primary contact person concerning the bid, despite the fact that

Guillan would not officially assume his role as Director until July 16, 2007.

      A month after MiLanguages submitted its bid, SOCOM sent MiLanguages a

letter, addressed to Borsoi, explaining that MiLanguages was selected to move past

the initial round of consideration and that there were potential weaknesses in

MiLanguages’s bid that SOCOM would like to see addressed by April 11, 2007.

After MiLanguages complied with SOCOM’s request to modify its bid, SOCOM

sent Borsoi another letter inviting MiLanguages to make an “oral proposal” or

“pitch” on April 18, 2007.

      Strycharske worked with Guillan to prepare for the April 18 pitch meeting

with SOCOM. Guillan, along with Luke Farkas and David Wedel (two


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BIB/Berlitz employees who were planning to transition to MiLanguages in the

event that MiLanguages was awarded the contract), gave the oral presentation at

SOCOM on April 18.

      On May 8, 2007, after reviewing all of the bids, SOCOM conditionally

recommended that the 2007 Contract be awarded to MiLanguages. SOCOM

indicated in the recommendation that MiLanguages had identified itself as a small

business in the federal Central Contractor Register and was qualified to obtain and

perform the contract.

      Around the time that SOCOM conditionally recommended that

MiLanguages receive the 2007 Contract, Blanchet approached BankFirst to inquire

about opening a line of credit for MiLanguages to “assist with an upcoming

[g]overnment contract.” BankFirst’s managers understood that (1) BIB could not

receive the 2007 Contract because it had “grown too big after the [2002]

[C]ontract”; (2) the 2007 Contract would be “housed under a new company called

MiLanguages”; (3) the Defendants would be MiLanguages’s “primary operators”

even though Borsoi technically owned MiLanguages “on paper”; and (4) Blanchet

would be the “hands-on” manager of MiLanguages. In addition, although the

BankFirst managers knew Borsoi owned and was president of MiLanguages, they

never met him or transacted MiLanguages business with him.




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E.     The SBA Size Determination

       In June 2007, two unsuccessful bidder companies protested SOCOM’s

conditional award of the 2007 Contract to MiLanguages, asserting in their protests

that MiLanguages was not a small business. Although the two protesting

companies had been eliminated from consideration for unknown reasons during

SOCOM’s review of all the bids, SOCOM withheld the award of the 2007

Contract to MiLanguages in order to have a “formal size determination”

performed. Contracting Officer Spurlin referred the protests and the request for a

size determination to the regional Small Business Administration (“SBA”) office

in Atlanta, Georgia, because it was the SBA, not SOCOM, that would make the

ultimate determination regarding MiLanguages’s size. 5

       Guillan contacted Strycharske about the size protests, and Strycharske

recommended that MiLanguages retain an attorney, Amy O’Sullivan, to represent

it during the SBA size determination process. Strycharske reached out to

O’Sullivan on MiLanguages’s behalf, with Guillan’s consent, and O’Sullivan

agreed to represent MiLanguages.


       5
         An SBA size determination is a broad-based, adversarial, and “fact specific process,”
similar to litigation, that is initiated when a size protest is filed. During the size determination,
the SBA considers numerous factors, including, inter alia: ownership and control of the
company; compensation structure; the number of employees; financial, managerial, employment,
or other affiliations with other companies; the company’s use of subcontracting; and the
individuals who prepared the bid. In addition to these specifically enumerated factors, the SBA
also considers “all of the relevant facts under . . . a totality of the circumstances test.” A
company’s size is set at the time it files its bid.

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      Although Blanchet informed Borsoi about the size protests, Borsoi was not

involved in hiring O’Sullivan and he “never heard a word from anyone about . . .

the response to the [protests].” Borsoi also did not remember signing documents

or knowing the content of the documents that MiLanguages submitted during the

size determination, although his signature was on several of MiLanguages’s

submissions.

      In addition, attorney Hadley was not familiar with the SBA regulations

governing small businesses, or with government contracting in general, and Hadley

did not substantively participate in the size determination process either (although

he was kept informed by Blanchet and Guillan). Hadley’s involvement in the size

determination process was primarily administrative: he reviewed O’Sullivan’s

retainer and helped set up her relationship with MiLanguages, arranged for

O’Sullivan’s bills to be passed through his firm to MiLanguages, and helped

MiLanguages respond to O’Sullivan’s requests for information to send to the SBA.

      During the SBA size determination, attorney O’Sullivan’s primary contact

point was Guillan, who provided her with much of the information that she

eventually transmitted on MiLanguages’s behalf to the SBA. O’Sullivan also

communicated with Strycharske, Hadley, and Defendant Blanchet to obtain

information to respond to the SBA. O’Sullivan understood, from her

correspondence with the Defendants, that Blanchet “had no role in MiLanguages”


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and that Guillan “wanted to continue doing . . . language instruction but he didn’t

want to be involved with the day-to-day responsibilities of running a company.”

Moreover, Guillan told attorney O’Sullivan that MiLanguages was “exclusively in

charge of preparing” its bid (in consultation with Strycharske) and did not receive

financial or other assistance from BIB or any other company. Guillan also helped

draft and signed several declarations that would ultimately be filed in response to

the SBA’s inquiry.

      Steve Smithfield was the SBA employee responsible for handling the size

determination. On June 20, 2007, Smithfield sent MiLanguages a letter, addressed

to Borsoi and Guillan, informing MiLanguages of the protest and asking

MiLanguages to provide certain information to aid in the size determination.

      On June 26, 2007, MiLanguages submitted an SBA Form 355 in response to

the SBA’s inquiry. Form 355, which is signed under penalty of perjury, includes

“a laundry list of questions” about ownership, control, affiliations, and other

factors the SBA takes into account in making a size determination. Because the

SBA must make a decision as to a company’s size within a short period of time

(usually within 10 days) and it cannot perform its own independent investigation,

the SBA must rely on the information self-reported by the company that is the

subject of the protest in making the size determination.




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      In its Form 355, MiLanguages listed BIB as an “alleged, acknowledged, or

possible affiliate.” MiLanguages also represented, inter alia, that:

      (1) MiLanguages’s owners, officers, directors, key employees, and
      supervisors had never been employed by or performed similar work for BIB;

      (2) BIB had not helped MiLanguages prepare its bid;
      (3) the only past or current financial obligations between MiLanguages and
      BIB were exclusively those financial obligations, including “Accounts
      Payable [and] Accounts Receivable,” that were ongoing as a result of
      MiLanguages’s status as a subcontractor on the 2002 Contract;
      (4) no individuals who were not owners, officers, directors, employees,
      partners, or principal stockholders of MiLanguages had signed (or were
      expected to sign) documents to facilitate MiLanguages’s ability to receive
      indemnifications or credit guarantees;

      (5) BIB had not helped MiLanguages arrange subcontractors for the follow-
      on contract;

      (6) MiLanguages had not discussed with BIB “the specific terms or
      conditions” of the 2007 Contract “prior to bid opening”; and
      (7) BIB would suffer no financial impact if MiLanguages were terminated
      from the 2007 Contract.

      One day after submitting the Form 355 for MiLanguages, attorney

O’Sullivan further responded to the SBA’s inquiry by forwarding additional

information and a declaration by Guillan to the SBA. Guillan’s declaration was

primarily focused on the relationship between BIB and MiLanguages, because the

protesting companies had raised a question as to the companies’ affiliations with

each other.




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      In his declaration, Guillan stated, inter alia, that he had sold all of his

MiLanguages shares to Borsoi in an “arm’s length” transaction that was effective

January 1, 2007. The sale “was for fair and reasonable consideration” and after

that date, Guillan did not stay on as an employee with MiLanguages. Guillan

explained that he sold his shares to Borsoi in order “to continue working in the

[language instruction] industry without the additional oversight and executive

responsibilities.”

      Guillan also represented that on the date MiLanguages filed its bid for the

2007 Contract and self-certified that it was a small business, Guillan’s

responsibilities as a “facility security officer” for MiLanguages involved “purely

administrative responsibilities … and [gave him] no control over the corporate

governance or decisionmaking of MiLanguages.” In addition, the declaration

stated that “MiLanguages does not, and never has, received financial assistance of

any kind from BIB.”

      On June 29 and July 6, 2007, the SBA’s Smithfield sent attorney O’Sullivan

e-mails asking her to provide additional information about: (1) Guillan’s marital

status (including whether Guillan and his wife had helped Borsoi prepare

MiLanguages’s bid), (2) Guillan’s income; (3) Guillan’s employment history and

relationships with BIB and MiLanguages; (4) Borsoi’s qualifications and

compensation for the work he performed for MiLanguages; (5) whether


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MiLanguages and BIB shared office space or other facilities; and (7) whether or

how much work under the 2007 Contract would be performed by BIB as a

subcontractor versus MiLanguages as the prime contractor. O’Sullivan forwarded

these e-mails to Blanchet and Guillan during her attempts to obtain the information

necessary to answer Smithfield’s inquiries.

      O’Sullivan responded piecemeal to Smithfield’s requests, and her responsive

materials included a second declaration by Guillan. In this second declaration,

Guillan represented that he had agreed to serve as MiLanguages’s facility security

officer, pursuant to a consulting agreement, until MiLanguages could find another

person to take over the job. Guillan’s consulting services were “minimal in nature

and generally require[d] less than one hour per week,” and he had not “received

any compensation from MiLanguages pursuant to [his] consulting agreement.”

Guillan’s declaration also stated that since April 2005, MiLanguages and BIB had

not shared office space. At trial, the SBA’s Smithfield testified that “the way

[MiLanguages’s response] was written,” he did not believe that MiLanguages was

“dependent upon” Guillan.

      On July 10, 2007, in response to concerns raised internally at the SBA about

Guillan’s role in preparing MiLanguages’s bid, Smithfield sent O’Sullivan another

e-mail asking for details about Guillan’s role in putting MiLanguages’s bid

together and what experience Borsoi had in bidding on government contracts.


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Because the SBA’s 10-day size determination deadline was approaching,

Smithfield asked O’Sullivan to respond that day.

      In response, O’Sullivan sent Smithfield an e-mail stating that although she

was still trying to locate Guillan or Borsoi to obtain further details, MiLanguages

had been responsible for preparing its own bid for the 2007 Contract, and that

Borsoi had hired Strycharske to advise MiLanguages. O’Sullivan also inquired

whether her response was sufficient. Smithfield responded, “I think that covers it.”

Meanwhile, O’Sullivan sent Blanchet, Guillan, and Hadley a copy of her responses

to Smithfield’s inquires, but they did not contact her to correct any information in

the response.

      In July 2007, Blanchet sent an e-mail to Spurlin, who at that point was no

longer serving as SOCOM’s contracting officer. Blanchet forwarded to Spurlin

some of the Smithfield–O’Sullivan correspondence, complaining about SBA’s

questions and making a “worried request” for assistance. Because she was no

longer with SOCOM, Spurlin could not provide Blanchet any assistance.

      The SBA’s Smithfield ultimately recommended, based on the information

provided by O’Sullivan on MiLanguages’s behalf, that MiLanguages be

considered a small business and that the size protest be denied. In his

recommendation, dated July 10, 2007, Smithfield analyzed a number of factors that

contributed to the size determination under the “totality of the circumstances” rule.


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These factors were that: (1) MiLanguages was not newly organized, as it had been

in business for more than three years; (2) MiLanguages was capable of performing

contracts and had performed some contracts without BIB’s assistance; (3) Guillan

was not an owner or officer of either MiLanguages or BIB, and he could not

exercise control over either company; (4) MiLanguages had received no financial

assistance from BIB; (5) there was no overlapping ownership between

MiLanguages and BIB; and (6) MiLanguages had received no technical assistance

in preparing its bid for the 2007 Contract from BIB or Guillan.

F.    Award of 2007 Contract to MiLanguages

      Following the SBA’s resolution of the size protest, on July 13, 2007, Charles

Bright, who was then serving as SOCOM’s contracting officer, signed the 2007

Contract with MiLanguages. Bright sent MiLanguages a letter confirming the

award and explaining that SOCOM would schedule a post-award conference

regarding the contract. SOCOM confirmed the award of the 2007 Contract to

MiLanguages after the SBA concluded that MiLanguages satisfied the small

business criteria; without the SBA’s confirmation, SOCOM would have been

unable to award the contract to MiLanguages. Although Borsoi’s signature

appeared on the 2007 Contract for MiLanguages, SOCOM corresponded with

Guillan to obtain Borsoi’s signature. On July 16, 2007, Guillan became

MiLanguages’s Director of Government Contracting. On MiLanguages’s behalf,


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Guillan, along with Borsoi and another individual, attended the post-award

conference with SOCOM personnel on August 1, 2007.

      On August 15, 2007, BankFirst approved a $600,000 line of credit for

MiLanguages, which Defendant Blanchet had requested several months earlier.

When BankFirst approved the line of credit, it did so in part because it understood

that Blanchet and his wife owned the holding company that owned the building in

which MiLanguages was located. Although Borsoi’s signature appears on the

initiating documents for the line of credit, Blanchet personally guaranteed the line,

and BankFirst considered it important to its relationship with MiLanguages that

Blanchet had an exclusive stock purchase agreement with Borsoi, because “it was

important to know that [Blanchet] in our mind had control of the company.”

      In accepting Blanchet as the guarantor, BankFirst also made an exception to

its underwriting policy, which ordinarily would have required MiLanguages’s

putative owner, Borsoi, to be the guarantor. Here, however, BankFirst recognized

that Borsoi “didn’t add financial strength to the credit.” BankFirst made the

exception because MiLanguages’s line of credit would be secured by both

Blanchet’s guarantee and ample collateral, the loan involved a federal government

contract, Blanchet had over $2 million in other accounts at BankFirst, and because

Blanchet was “an integral part of the business operations.”




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G.    Payments Made to MiLanguages under the 2007 Contract & Seizure of
      MiLanguages’s BankFirst Operating Account

      Following SOCOM’s award of the 2007 Contract to MiLanguages, and

consistent with MiLanguages’s bid for that contract, Daniel Guillan and other BIB

employees who had committed to joining MiLanguages resigned as employees of

BIB and became employed by MiLanguages.

      In performing under the 2007 Contract, MiLanguages was permitted to

submit invoices to SOCOM every two weeks. SOCOM paid MiLanguages

through the Defense Finance and Accounting Service (“DFAS”). To generate a

payment, DFAS required three pieces of information: a valid contract signed by a

contracting officer (here, the 2007 Contract), an invoice or billing statement from

MiLanguages, and a receipt and acceptance from SOCOM indicating that the work

had been performed. Some 99.5 percent of all DFAS payments to defense

contractors are made by electronic funds transfer. DFAS payments to

MiLanguages under the 2007 Contract originated at the DFAS office in Columbus,

Ohio, and were then transmitted through the Federal Reserve Bank in Atlanta,

Georgia, before being transmitted again to MiLanguages’s BankFirst account in

central Florida.

      During the term of the 2007 Contract, SOCOM paid MiLanguages about

$98.6 million through DFAS. The payments included electronic funds transfers to

MiLanguages’s operating account on July 15, 2010 ($141,246.99), November 10,

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2010 ($184,549.68), December 2, 2010 ($208,507.66), December 16, 2010

($283,886.37), and February 24, 2011 ($366,013.07). These transfers formed the

basis of the five substantive wire fraud charges against each Defendant.

      From 2006 through 2010, MiLanguages paid Guillan about $4.4 million in

base pay and other compensation. And, between 2007 and 2010, MiLanguages

paid about $7.4 million to Blanchet or to accounts, entities, or interests controlled

by him. Moreover, before and after the follow-on contract, and for a variety of

putative purposes, large sums of money moved between MiLanguages’s accounts

(including the line of credit guaranteed by Blanchet) and accounts controlled by

Blanchet, Guillan, their families, and other business entities controlled by those

individuals. Borsoi, who remained the putative owner and president of

MiLanguages during the duration of the 2007 Contract term, received a total of

only $63,000, paid in a series of monthly $1,500 checks signed by Guillan.

      The resolution of the SBA size protest was not the end of the government’s

investigation into MiLanguages. At some point during the 2007 Contract term, the

Defense Criminal Investigative Service began reviewing SOCOM’s award of the

2007 Contract to MiLanguages. This investigation, which was ongoing during

MiLanguages’s performance of the 2007 Contract, culminated in the issuance of a

seizure warrant for MiLanguages’s operating account at BankFirst in July 2010.




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      The Defendants and the government agreed to the following stipulation

concerning the government’s seizure of MiLanguages’s operating account at

BankFirst, which was read to the jury at the Defendants’ trial:

      On July 14th, 2010 a seizure warrant was authorized relating to the
      MiLanguages operating account with BankFIRST. . . .On July 15th,
      2010 that seizure warrant was executed against the MiLanguages
      operating account. After the seizure warrant was executed, the
      Department of Defense, SOCOM, continued to pay money into the
      MiLanguages operating account to fund MiLanguages[’s]
      performance under the SOCOM contract which is the subject of this
      action. MiLanguages continued to perform under the SOCOM
      contract at issue in this action until October 23rd, 2011.

      After the seizure warrant was executed, BankFirst elected to keep

MiLanguages’s account open “[b]ased upon a number of circumstances.”

BankFirst was not compelled by the government to keep the account open.

                         II. PROCEDURAL HISTORY

      Blanchet and Guillan were charged in a six-count indictment filed on June

21, 2011. The indictment charged both Defendants with conspiring to defraud the

United States and to commit wire fraud against the United States, in violation of 18

U.S.C. § 371 (Count 1), and five substantive counts of wire fraud, in violation of

18 U.S.C. §§ 1343 and 2 (Counts 2 through 6). The substantive wire fraud charges

were based on the five individual wire transfers that occurred on July 15,

November 10, and December 2 and 16, 2010, and February 24, 2011. These




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transfers were initiated by SOCOM as payments to MiLanguages for its

performance under the 2007 Contract. 6

          The Defendants were tried jointly in a trial that spanned several weeks. At

the conclusion of the trial, the jury returned guilty verdicts as to Defendants

Blanchet and Guillan on all six counts of the indictment. At a separate sentencing

hearing, the district court imposed identical 36-month sentences of imprisonment

on each Defendant. Both Defendants then appealed.

                                           III. DISCUSSION

A.        Denial of the Defendants’ Joint Motion for Judgment of Acquittal—
          Sufficiency of the Evidence

          The Defendants argue that the district court erred in denying their joint

motion for judgment of acquittal because (1) on the conspiracy counts, no

reasonable trier of fact could have found that they formed an agreement to achieve

an unlawful objective, and (2) on the wire fraud counts, no reasonable trier of fact

could have found that they engaged in wire transmissions for the purpose of

executing a scheme to defraud.7

          6
              The indictment also contained separate forfeiture allegations that are not at issue in this
appeal.
          7
         We review de novo the district court’s denial of a motion for judgment of
acquittal, viewing the evidence in the light most favorable to the government and making all
reasonable inferences and credibility choices in favor of the jury’s verdict. United States v.
Descent, 292 F.3d 703, 706 (11th Cir. 2002). To uphold the denial of the motion, we must
determine “that a reasonable fact-finder could conclude that the evidence established the
defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation mark omitted). “It is not
enough for a defendant to put forth a reasonable hypothesis of innocence, because the issue is not

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       In this case the evidence, taken in the light most favorable to the

government, reveals that Defendants Blanchet and Guillan willfully conspired with

to obtain the 2007 Contract through fraud and to misrepresent MiLanguages’s

affiliation with BIB during the SBA size determination. The evidence also

demonstrates that the Defendants knowingly caused to be sent and received the

proceeds from their illicitly-obtained contract over the interstate wires, through

MiLanguages’s account at BankFirst, on each of the five dates charged in the

indictment. We now explain how the evidence supports the Defendants’

convictions.

       1.      Sufficiency of the Evidence: Conspiracy Count

       To obtain a conspiracy conviction under 18 U.S.C. § 371, “the [g]overnment

must prove (1) that an agreement existed between two or more persons to commit a

crime; (2) that the defendant[s] knowingly and voluntarily joined or participated in

the conspiracy; and (3) a conspirator performed an overt act in furtherance of the

agreement.” United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006). The

existence of a conspiracy may be proven by circumstantial evidence, including

“inferences from the conduct of the alleged participants or from circumstantial

evidence of the scheme.” United States v. Silvestri, 409 F.3d 1311, 1328 (11th

Cir. 2005) (internal quotation marks omitted). “Direct evidence of an agreement to

whether a jury reasonably could have acquitted but whether it reasonably could have found guilt
beyond a reasonable doubt.” United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).

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join a criminal conspiracy is rare, so a defendant’s assent can be inferred from acts

furthering the conspiracy’s purpose. The government is not required to prove that

each alleged conspirator knew all the details of the conspiracy; it is enough to

establish that a defendant knew the essentials of the conspiracy.” United States v.

Mulherin, 710 F.2d 731, 738 (11th Cir. 1983) (internal citations omitted).

      The alleged objects of the Defendants’ conspiracy were (1) to defraud the

United States, specifically SOCOM, in connection with MiLanguages’s bidding on

and receiving the 2007 Contract, (2) to defraud the United States, specifically the

SBA, in connection with the SBA’s size determination, and (3) to commit wire

fraud against the United States. The indictment further alleged that the conspiracy

began as early as in or about August 2004 and continued at least through in or

about July 2007.

      Here, both direct and circumstantial evidence, viewed in the light most

favorable to the verdict and making all reasonable inferences and credibility

choices in the government’s favor, amply supports the jury’s verdict that the

Defendants agreed to engage in a scheme to defraud the United States and commit

wire fraud against the United States. The evidence demonstrates that both

Defendants were experienced government contractors who had played key roles in

obtaining and performing BIB’s 2002 Contract. They knew the mechanics of the

government contract bid and procurement process, and they knew that as a result


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of its performance of the 2002 Contract, BIB was too large to receive future small

business set-aside contracts.

      The Defendants formed MiLanguages in 2004. Regardless of whether they

agreed at the time of MiLanguages’s formation to use MiLanguages as a vehicle

through which to obtain future small business set-aside contracts, the fact is that

this is precisely what the Defendants eventually did once SOCOM announced its

plans for a follow-on contract in late 2006. On this point, the evidence shows that

the Defendants, at this time, began to fashion MiLanguages into a potential vehicle

by outwardly divesting their control over the company while maintaining actual

control behind the scenes. The Defendants installed a nominee owner, Borsoi, who

had no business or government-contracting experience and who was uninvolved in

the day-to-day operations of MiLanguages. The Defendants controlled

MiLanguages’s sizable bank account and stock. For example, they told Borsoi he

could only sell the stock back to Guillan if he chose to sell it at all. Borsoi’s

testimony makes clear that he was the president and owner of MiLanguages in

name only, participating in the company’s affairs and signing documents only

when prompted to do so by Defendant Guillan.

      To help prepare MiLanguages’s bid for the 2007 Contract, Defendant

Guillan hired a bid consultant (Strycharske) who had worked with BIB on other

bids (including BIB’s successful bid for the 2002 SOCOM contract) but who did


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not advise either Defendant about whether MiLanguages was a small business for

purposes of the eligibility criteria. Nor could attorney Hadley offer this advice, as

he testified that he was wholly unfamiliar with SBA size regulations or the SBA

size determination process. In short, at the time MiLanguages submitted its bid for

the 2007 Contract, a bid that contained significant and material omissions and

misstatements about the relationships between MiLanguages, BIB, and the

Defendants, the Defendants had not solicited any legal opinion as to whether

MiLanguages actually qualified as a small business.

      Then, following the size protest and the SBA’s initiation of a size

determination, the Defendants, rather than fully disclosing all of the material facts

to attorney O’Sullivan, misled O’Sullivan and caused her to submit additional false

and misleading information to the SBA. Included in the information submitted to

the SBA were numerous misstatements about the relationships between

MiLanguages, BIB, and the Defendants. Material misrepresentations made to the

SBA included the following statements:

      (1) MiLanguages’s owners, officers, directors, key employees, and
      supervisors had never been employed by or performed similar work for BIB.
      (Defendant Guillan was a previous BIB employee who had performed work
      for BIB similar to the work he would perform for MiLanguages regarding
      government contracting.)

      (2) No affiliate, including BIB, had helped MiLanguages prepare its bid.
      (Defendant Blanchet’s participation on BIB’s behalf in preparing
      MiLanguages’s bid, including discussing subcontracting arrangements and


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      helping obtain contingent financing for MiLanguages, all contradict this
      assertion.)

      (3) The only past or current financial obligations between MiLanguages and
      BIB were exclusively those financial obligations, including “Accounts
      Payable [and] Accounts Receivable,” that were ongoing as a result of
      MiLanguages’s status as a subcontractor on the 2002 Contract.
      (MiLanguages failed to mention anything about BIB providing startup
      money to MiLanguages that had not been repaid and providing overdraft
      protection on MiLanguages’s operating account.)

      (4) Only individuals who were owners, officers, directors, employees,
      partners, or principal stockholders of MiLanguages had signed (or were
      expected to sign) documents to facilitate MiLanguages’s ability to receive
      indemnifications or credit guarantees. (Defendant Blanchet, who was not an
      officer or director or otherwise officially affiliated with MiLanguages,
      within 30 days after this statement was made to the SBA, signed off on a
      $600,000 line of credit for MiLanguages that he personally guaranteed.)

      (5) Defendant Guillan’s sale of his MiLanguages stock was to Borsoi for fair
      and reasonable consideration at arms’ length. (Borsoi did not buy the stock
      for money or other valuable consideration and did not become involved
      more than nominally in the operation of MiLanguages after his acquisition
      of the stock.)

      (6) Defendant Guillan sold his shares to Borsoi to remain active in the
      industry without the extra work of running a business. (After the “sale,”
      Guillan came to Borsoi for signatures, worked on MiLanguages’s proposal
      for the 2007 Contract, and was otherwise heavily involved in the day-to-day
      operations of MiLanguages, while Borsoi played no substantial role.)

      In applying for MiLanguages’s credit line, Blanchet told BankFirst a story

that was much closer to the truth about the relationship between the companies and

the Defendants. Additionally, in performing the fraudulently obtained contract, the

Defendants received millions of dollars in compensation while Borsoi—

MiLanguages’s putative owner and president—received only $63,000. And,


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throughout this period, the Defendants repeatedly used or caused to be used wire

transmissions (including phone calls and e-mails) in furtherance of their fraud.

      On this record, a reasonable jury readily could have found the Defendants

guilty of the charged conspiracy.

      2.     Sufficiency of the Evidence: Wire Fraud Counts

      The Defendants’ primary contention as to the wire fraud counts goes to the

government’s role in each of the charged wire transfers: namely, due to the

government’s seizure of MiLanguages’s BankFirst operating account prior to the

dates of the charged transfers, no reasonable jury could have found that the

Defendants were engaged in a scheme to defraud the government at that time. The

Defendants also raise estoppel and entrapment-by-estoppel arguments.

      “The elements of mail and wire fraud are: (1) intentional participation in a

scheme to defraud, and, (2) the use of the interstate mails or wires in furtherance of

that scheme.” United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009)

(citing United States v. Hasson, 333 F.3d 1264, 1270 and n. 7 (11th Cir. 2003);

United States v. Ellington, 348 F.3d 984, 990 (11th Cir. 2003)). “A scheme to

defraud requires proof of a material misrepresentation, or the omission or

concealment of a material fact calculated to deceive another out of money or

property.” Maxwell, 579 F.3d at 1299. A misrepresentation is material if it has “a




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natural tendency to influence, or [is] capable of influencing, the decision maker to

whom it is addressed.” Hasson, 333 F.3d at 1271.

      “An interstate wire transmission is for the purpose of executing the scheme

to defraud if it is incident to an essential part of the scheme or a step in the plot.”

Id. at 1272–73 (internal quotation marks omitted). “Section 1343 targets not the

defendant’s creation of a scheme to defraud, but the defendant’s execution of a

scheme to defraud.” United States v. Williams, 527 F.3d 1235, 1241 (11th Cir.

2008). Therefore, “it punishes each interstate wire transmission that carries out

that scheme.” Id.

      Here, the Defendants plainly knew, or could reasonably foresee, that use of

the wires would follow from their submission of the invoices to SOCOM. First,

the evidence established that the Defendants were experienced government

contractors who had dealt with military contracting, and the military’s payment

system, in the past. Second, the use of the wires to transfer payments was

prompted by MiLanguages’s submission of invoices for work performed—indeed,

the very purpose of their invoices was to obtain payment by wire transfer. Thus,

the Defendants caused the charged wire transfers, which clearly furthered their

scheme. See Pereira v. United States, 347 U.S. 1, 8–9, 74 S. Ct. 358, 363 (1954) (a

person causes use of mail if he acts knowing that use of mail will follow or if he

can reasonably foresee use of mail); Maxwell, 579 F.3d at 1299–1301 (11th Cir.


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2009) (upholding wire fraud conviction where defendant received payments on

fraudulently obtained government contract).

      We addressed the “material misrepresentation[s]” made by the Defendants

above, and will not separately restate the various misstatements made by the

Defendants in the course of MiLanguages’s bid on and performance of (including

during the SBA’s size determination) the 2007 Contract.

      As to Count 2, which charged a wire transfer from DFAS to MiLanguages

on July 15, 2010 (the day the seizure warrant was executed), a reasonable jury

could easily find that the conduct that precipitated the transfer occurred before the

execution of the warrant. Indeed, trial testimony established that MiLanguages

incurred expenses before SOCOM paid for them, MiLanguages sent bi-weekly

invoices to SOCOM, and DFAS did not pay MiLanguages until SOCOM approved

the payments for work performed.

      Moreover, the evidence abundantly established that all of the charged wire

transfers furthered the Defendants’ scheme. Each one moved money from DFAS

to MiLanguages’s account after MiLanguages sent SOCOM an invoice under the

2007 Contract. As the evidence established and the jury found, the Defendants

obtained that contract fraudulently. Neither the government’s criminal

investigation—which was conducted by a separate part of the government (the

U.S. Attorney) than the part of the government for which contractual services were


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performed (the military)—nor execution of the seizure warrant terminated the 2007

Contract. There is no evidence to suggest that the government even could have

terminated the 2007 Contract at that point, prior to the resolution of the criminal

proceedings against the Defendants.

      Indeed, when the seizure warrant was executed on July 15, 2010, the 2007

Contract, which had a five-year term, was still two years short of full performance,

and no criminal charges had yet been brought against anyone associated with that

contract. Although the Defendants contend that their scheme “terminated” when

the criminal investigation began, SOCOM was not involved in that investigation

and had no reason or ability to disregard its obligations under the contract with

MiLanguages, which continued to submit invoices to SOCOM while the

investigation was ongoing. Thus, despite the ongoing investigation, SOCOM

remained obligated to pay for services rendered under the fraudulently obtained

contract which, we note, had not yet been determined to be fraudulently obtained at

that point. The mere initiation of a criminal investigation does not end a fraud

scheme where the defendant continues to pursue the scheme. See, e.g., United

States v. Hill, 643 F.3d 807, 825 (11th Cir. 2011), cert. denied, 132 S. Ct. 1988

(2012) (the defendant continued to fraudulently “flip” houses despite knowing that

IRS had begun a criminal investigation for which he was receiving subpoenas).




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       In addition, we find the Defendants’ arguments concerning estoppel and

entrapment-by-estoppel are wholly without merit. To justify an entrapment-by-

estoppel defense, “a defendant must actually rely on a point of law misrepresented

by an official of the state; and such reliance must be objectively reasonable. . . .”

United States v. Eaton, 179 F.3d 1328, 1332 (11th Cir. 1999) (internal quotation

marks omitted). In this case, the Defendants proffered no evidence suggesting that

they asked, or that any official told them, that it was legal for them to lie to

SOCOM and the SBA for purposes of securing a $100 million government

contract and then to accept payments from DFAS on that fraudulently obtained

contract. Therefore, the Defendants’ requests for the challenged wire transfers were

at their peril.

       We also decline the Defendants’ request to expand the theory of equitable

estoppel such that it would apply to this case. Simply put, while the government

may have seized MiLanguages’s operating account and controlled payments

coming out of that account during the period in which the charged wire transfers

occurred (and during which negotiations between the government and the

Defendants as to the resolution of this case were ongoing), the government never

told MiLanguages that it was required to continue submitting invoices and

receiving payments under a contract that, it turns out, MiLanguages obtained by




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fraud. There was no approval or ratification of the Defendants’ fraudulent scheme,

express, implied, or otherwise.

       In sum, we conclude that the district court did not err in denying the

Defendants’ joint motion for a judgment of acquittal, as sufficient evidence amply

supports both Defendants’ convictions for conspiracy to defraud the United States

and for five counts of wire fraud.

B.     Trial Testimony Issues

       1.     Jon Kane’s Proposed Trial Testimony

       The Defendants next assert that the district court erred by limiting the

introduction of certain testimony, which impeded their ability to present a defense

as to the intent element of the wire fraud charges, in violation of their

constitutional rights to a fair trial.

       Specifically, the Defendants sought to introduce testimony by Jon Kane,

counsel for BankFirst, related to the government’s involvement in the wire

transfers that were the subject of the five substantive wire fraud counts. The

government objected to Kane’s testimony on various grounds, and outside of the

presence of the jury, the Defendants proffered Kane’s testimony.

       In pertinent part, Kane was prepared to testify that he was retained by

BankFirst after the government executed a seizure warrant on MiLanguages’s

BankFirst operating account. BankFirst had questions about how to handle the


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account, and Kane’s primary role was to “deal with the [g]overnment and the flow

of money to . . . MiLanguages[’s] account” on BankFirst’s behalf over a one-year

period of time that began when the government seized the account and continued

while negotiations with the Defendants over the resolution of this criminal case

were ongoing.

      Kane would also testify that he had asked the government for advice about

whether BankFirst should close MiLanguages’s account after the seizure, that he

and the government had agreed that SOCOM funds would continue to flow into the

account but could not be released to MiLanguages without the government’s

approval, that the United States could “seize the account at any time” based on the

warrant, and that defense counsel had not participated in those discussions.

      The government argued that Kane’s testimony might impermissibly suggest

that the government had somehow abetted or approved the wire fraud because it

allowed MiLanguages to continue to receive payments into the BankFirst account

after the account was seized by the government pursuant to a warrant. The

government also contended that because it had entered into a stipulation with the

Defendants, which informed the jury of these facts, Kane’s testimony was

irrelevant.




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      After hearing argument from the parties, the district court sustained the

government’s objection, determining that Kane’s challenged testimony was

irrelevant, would be more prejudicial than probative, and would confuse the jury.

      We review a district court’s exclusion of defense evidence at trial for an

abuse of discretion. United States v. Todd, 108 F.3d 1329, 1331–32 (11th Cir.

1997). However, when the district court’s evidentiary rulings rise to the level of

depriving a defendant of his constitutional right to present a defense, such rulings

amount to constitutional error. See Chambers v. Mississippi, 410 U.S. 284, 302–

03, 93 S. Ct. 1038, 1049 (1973).

      A defendant’s right under the Fifth and Sixth Amendments to present a

defense “‘is violated when the evidence excluded is material in the sense of a

crucial, critical, highly significant factor.’” United States v. Hurn, 368 F.3d 1359,

1363 (11th Cir. 2004) (quoting United States v. Ramos, 933 F.2d 968, 974 (11th

Cir. 1991)). “In assessing a defendant’s claims under the Fifth and Sixth

Amendments to call witnesses in [his] defense,” we first determine “whether this

right was actually violated, [and] then turn to whether this error was ‘harmless

beyond a reasonable doubt’ under Chapman v. California, 386 U.S. 18, 24, 87 S.

Ct. 824, 828 . . . (1967).” Hurn, 368 F.3d at 1362–63.

      Given the stipulation that was read to the jury, and that other evidence was

actually admitted showing that the five wire transfers all occurred after the


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government seized MiLanguages’s BankFirst account, the Defendants have not

shown Kane’s additional testimony was so “crucial, critical, [or] highly

significant” to their defense that its exclusion actually rose to the level of a

constitutional violation. See Ramos, 933 F.2d at 974. Kane’s testimony as to the

government’s role on the back end of the charged wire transfers was cumulative of

the stipulation, which established that (1) the charged wire transfers occurred after

the government seized MiLanguages’s account, and (2) the government continued

to permit MiLanguages to perform under the 2007 Contract until October 2011.

Whatever advice Kane received from the government concerning what BankFirst

should do with MiLanguages’s operating account was not relevant to any of the

elements of the charged offenses because this advice was not given to either

Defendant, nor did this advice constitute an endorsement of the Defendants’

scheme.

      What the Defendants essentially argue is that, despite their submission of

MiLanguages invoices and requests for payment for work that was actually

performed under the 2007 Contract, the government should have prevented the

wire fraud by stopping payments under the 2007 Contract, in effect saving the

Defendants from their own fraud. This argument is wholly without merit. Even if,

as Kane’s proffered testimony would indicate, the government did not require

BankFirst to close MiLanguages’s account or otherwise prevent withdrawals from


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that account, the substantive wire fraud offenses were complete when DFAS

transferred payments to MiLanguages for its work under the fraudulently-obtained

2007 Contract from Columbus through Atlanta to central Florida. Whether the

Defendants could then draw funds from MiLanguages’s BankFirst account is

immaterial.

       Thus, we conclude that the Defendants have not shown that the district court

erroneously excluded Kane’s testimony. 8

       2.     Kenneth Dodds’s Trial Testimony

       The Defendants next argue that the district court abused its discretion by

allowing Kenneth Dodds, the SBA’s Director of Government Contracting, to

testify about SBA’s procedures and regulations concerning size determinations and

investigations.

       During its case-in-chief, and in addition to more than a dozen other

witnesses, the government called the SBA’s Dodds for the purpose of having him

provide a “general overview” of the SBA’s size determination process and other

“foundational concepts for [the] SBA” based on his personal experience. The

Defendants objected to Dodds’s testimony because Dodds was not personally

involved in the MiLanguages size determination and was not disclosed or qualified

       8
         Furthermore, because the district court did not abuse its discretion with regard to the
limitations placed on Kane’s testimony, the Defendants’ argument concerning the district court’s
denial of their motion for a new trial, to the extent such motion was based on the exclusion of
Kane’s testimony, is without merit.

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as an expert witness. After hearing argument from the Defendants and the

government, the district court overruled the Defendants’ objection to Dodds’s

testimony, concluding that Dodds could testify as to the SBA’s “background and

procedures” and that the Defendants’ arguments went more “to the weight of

[Dodds’s testimony], not to its admissibility.”

      At trial, Dodds, who had been with the SBA for 14 years, testified as to the

SBA’s mission and organizational structure, how the SBA receives size protests

and conducts size determinations, and that, in his role as Director of Government

Contracting, his office was responsible for setting the “size standards by which the

[g]overnment measures what a small business is,” writing “regulations that

determine what a small business is,” and “issu[ing] decisions that decide what a

small business is.” On cross-examination, defense counsel questioned Dodds as to

any role he played in the MiLanguages size determination, and he confirmed that

while Dodds was familiar with the size determination process, he had not been

involved with or supervised the MiLanguages size determination.

      “According to Federal Rule of Evidence 701, a lay witness may offer

opinions that are: ‘(a) rationally based on the perception of the witness, (b) helpful

to a clear understanding of the witness’ testimony or the determination of a fact in

issue, and (c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.’ ” Hill, 643 F.3d at 840–41 (quoting Fed. R. Evid.


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701). “[A]s we have held, however, Rule 701 does not prohibit lay witnesses from

testifying based on particularized knowledge gained from their own personal

experiences.” Id. at 841.

      Here, Dodds’s testimony was based on his own particularized, personal

knowledge about the SBA, which he acquired over his 14 years of working for the

SBA and having personal involvement in the SBA’s procedures. His testimony

was also helpful in understanding Smithfield’s more specific testimony about

MiLanguages’s size determination process, the procedural context of that process,

and the factors Smithfield evaluated in making his recommendation. Because

Dodds offered no testimony about the specifics of this case, he could not, as the

Defendants contend he did, suggest that the Defendants were involved in “sham”

practices based on the information they reported to the SBA. Dodds’s testimony

was not expert testimony, and the district court properly refused to require that the

government comply with the requirements for the admission of expert testimony

before permitting Dodds to testify. See Fed. R. Evid. 702 (“A witness who is

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise if” the witness and his testimony

meet certain criteria).

      Because “Rule 701 does not prohibit lay witnesses [like Dodds] from

testifying based on particularized knowledge gained from their own personal


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experiences,” and Dodds did not offer expert testimony, the district court did not

abuse its discretion in permitting Dodds to testify without being qualified as an

expert. See Hill, 643 F.3d at 841.

C.    Jury Instructions

      The Defendants also argue that the district court erred in refusing to give two

of their requested jury instructions: a more detailed instruction on good faith as a

defense to willfulness, and an instruction defining the phrase “material fact” as it

related to the charge of conspiring to defraud the United States.

      At trial, the Defendants requested a special jury instruction regarding good

faith as a defense to willfulness—Eleventh Circuit Pattern Criminal Special Jury

Instruction No. 9—that is ordinarily used in criminal tax cases. 9 The government

requested a different good faith instruction—Eleventh Circuit Pattern Criminal


      9
       This instruction requested by the Defendants reads as follows:
              Good-Faith is a complete defense to the charge(s) in the indictment since
      good-faith on the part of the Defendants is inconsistent with willfulness, and
      willfulness is an essential part of the charges. If the Defendant acted in good faith,
      sincerely believing himself to be exempt by the law [from] the withholding of
      information from the SBA, then the Defendant did not intentionally violate a
      known legal duty—that is, the Defendant did not act “willfully.” The burden of
      proof is not on the Defendant to prove good-faith intent because the Defendant
      does not need to prove anything. The Government must establish beyond a
      reasonable doubt that the Defendant acted willfully as charged.
              Intent and motive must not be confused. “Motive” is what prompts a
      person to act.” It is why the person acts.
              “Intent” refers to the state of mind with which the act is done.
              If you find beyond a reasonable doubt that the Defendant specifically
      intended to do something that is against the law and voluntarily committed the
      acts that make up the crime, then the element of “willfulness” is satisfied, even if
      the Defendant believed that ultimate good would result.


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Special Jury Instruction No.17—that is applicable to any “charge that requires

intent to defraud.”10

       In requesting Instruction No. 9, Defendants’ counsel acknowledged that

“this is not a tax fraud case, but given the specialized regulations, that’s why the

[D]efendants believed [Instruction No. 9 was] appropriate.” The district court

denied the Defendants’ request to use Instruction No. 9 and granted the

government’s request to use Instruction No. 17, on the grounds that Instruction

No. 9 would be “confusing to the jury.”

       The Defendants also requested that the district court read the jury a modified

version of Eleventh Circuit Pattern Jury Instruction 13.6, which addresses the

charge of conspiracy to defraud the United States under 18 U.S.C. § 371. 11 The



       10
         The instruction requested by the government reads as follows:
              “Good faith” is a complete defense to a charge that requires intent to
       defraud. A defendant isn’t required to prove good faith. The Government must
       prove intent to defraud beyond a reasonable doubt.

              An honestly held opinion or an honestly formed belief cannot be
       fraudulent intent—even if the opinion or belief is mistaken. Similarly, evidence of
       a mistake in judgment, an error in management, or carelessness can’t establish
       fraudulent intent.

              But an honest belief that a business venture would ultimately succeed
       doesn’t constitute good faith if the Defendant intended to deceive others by
       making representations the Defendant knew to be false or fraudulent.
       11
         Instruction No. 13.6, which the district court read to the jury without
modification, reads as follows:
               It’s a Federal crime for anyone to conspire or agree with someone else to
       do something that would be another Federal crime if it was actually carried out or
       to defraud the United States or any of its agencies.

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Defendants’ proposed modification was to add to the instruction the following

details concerning false statements and materiality:

            Some of the overt acts charged in the indictment involve false
      statements of material fact. A material fact is an important fact—not
      some unimportant or trivial detail—that has a natural tendency to
      influence or is capable of influencing a decision of a department or
      agency in reaching a required decision.

             A statement or representation is “false” if it is about a material
      fact that the speaker knows is untrue or makes with reckless
      indifference to the truth, and makes with the intent to defraud. A
      statement or representation may be “false” when it is a half truth, or

              To “defraud” the United States means to cheat the Government out of
      property or money or to interfere with any of its lawful governmental functions by
      deceit, craft, or trickery.
              A “conspiracy” is an agreement by two or more persons to commit an
      unlawful act. In other words, it is a kind of partnership for criminal purposes.
      Every member of the conspiracy becomes the agent or partner of every other
      member.
              The Government does not have to prove that all the people named in the
      indictment were members of the plan, or that those who were members made any
      kind of formal agreement. The heart of a conspiracy is the making of the unlawful
      plan itself, so the Government does not have to prove that the conspirators
      succeeded in carrying out the plan.
              The Government does not have to prove that the members planned
      together all the details of the plan or the “overt acts” that the indictment charges
      would be carried out in an effort to commit the intended crime.
              A Defendant can be found guilty of this crime only if all the following
      facts are proved beyond a reasonable doubt:
              (1)      Two or more people in some way agreed to try to accomplish a
                       shared and unlawful plan;
              (2)      the Defendant knew the unlawful purpose of the plan and willfully
                       joined in it;
              (3)      during the conspiracy, one of the conspirators knowingly engaged
                       in at least one overt act described in the indictment; and
              (4)      the overt act was knowingly committed at or about the time alleged
                       and with the purpose of carrying out or accomplishing some object
                       of the conspiracy.
              An “overt act” is any transaction or event, even one which may be entirely
      innocent when viewed alone, that a conspirator commits to accomplish some
      object of the conspiracy.

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      effectively conceals a material fact, and is made with the intent to
      defraud.

      The district court denied the Defendants’ request to add this language to

Instruction No. 13.6 on the grounds that it could confuse the jury. In addition, the

district court defined “false or fraudulent,” “material,” and “material fact” in these

terms when instructing the jury on the substantive wire fraud counts:

              A statement or representation is false or fraudulent if it is about
      a material fact that the speaker knows is untrue or makes with reckless
      indifference to the truth, and makes with the intent to defraud.
              A statement or representation may be false or fraudulent when
      it is a half truth, or effectively conceals a material fact, and is made
      with the intent to defraud.
              A “material fact” is an important fact that a reasonable person
      would use to decide whether to do or not to do something. A fact is
      material if it has the capacity or natural tendency to influence a
      person’s decision. It doesn’t matter whether the decisionmaker
      actually relied on the statement or knew or should have known that
      the statement was false.

      “We review a district court’s refusal to give a requested jury instruction for

abuse of discretion.” United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.

2001) (internal quotations and citations omitted). “Under this standard, we

examine whether the jury charges, considered as a whole, sufficiently instructed

the jury so that the jurors understood the issues and were not misled.” Id. (internal

quotation marks omitted). We will find reversible error only if: “(1) the requested

instruction correctly stated the law; (2) the actual charge to the jury did not

substantially cover the proposed instruction; and (3) the failure to give the


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instruction substantially impaired the defendant’s ability to prepare an effective

defense.” Id. While a district court judge is “vested with broad discretion in

formulating [the] charge to the jury so long as it accurately reflects the law and the

facts,” United States v. Silverman, 745 F.2d 1386, 1395 (11th Cir. 1984), a

“defendant is entitled to have presented instructions relating to a theory of defense

for which there is any foundation in the evidence, even though the evidence may

be weak, insufficient, inconsistent, or of doubtful credibility,” United States v.

Lively, 803 F.2d 1124, 1126 (11th Cir. 1986) (internal quotation marks omitted).

      The district court did not abuse its discretion by giving Instruction No. 17

rather than Instruction No. 9. Although the Defendants contend that their proposed

instruction “provide[d] a more detailed instruction on the element of willfulness

and when a defendant’s good faith will serve as a defense to crimes which have

willfulness as an essential element,” the district court’s instructions, taken together,

sufficiently explained the Defendants’ good faith defense. This is particularly true

when Instruction No. 17, which was read to the jury, is considered in conjunction

with the district court’s other instructions, which required the jury to find that the

Defendants had acted “knowingly” and “willfully” and that “[u]nlawful intent has

not been proved if a [D]efendant before acting made a full and complete good faith

report of all material facts to an attorney. . . and reasonably relied upon that advice

in good faith.” See Fulford, 267 F.3d at 1245 (jury instructions must be


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“considered as a whole” in determining whether the district court “sufficiently

instructed the jury”).

      The district court separately defined “knowingly” as “an act . . . done

voluntarily and intentionally and not because of a mistake or by accident,” and it

defined “willfully” as “committed voluntarily and purposely with the intent to do

something that the law forbids, that is, with the bad purpose to disobey or disregard

the law.” The instructions, taken as a whole, thus covered the concepts of good

faith and willfulness, concepts which the Defendants contend justified the giving

of Instruction No. 9. In addition, Instruction No. 17 more clearly aligned with the

facts at issue in this case than did Instruction No. 9, and the district court did not

abuse its discretion in concluding that instructing the jury in the manner requested

by the Defendants ran the risk of confusing the jury with an extraneous instruction

on the concept of motive.

      Nor did the district court abuse its discretion in denying the Defendants’

request to instruct the jury using the modified conspiracy Instruction 13.6 with the

additional definitions. These terms were defined in nearly identical terms in the

district court’s instructions to the jury on the elements of wire fraud, and as such,

the Defendants’ modified Instruction 13.6 was merely cumulative of the district

court’s other instructions. See Fulford, 267 F.3d at 1245.




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D.    Reasonableness of Defendants’ Sentences

      Finally, the Defendants argue that their identical 36-month, below-guideline

range sentences are procedurally unreasonable because the district court

improperly calculated the loss for which they were accountable, and thus,

erroneously calculated their adjusted offense levels under the Sentencing

Guidelines.

      Prior to the Defendants’ sentencing hearing, the U.S. Probation Office

prepared a presentence investigation report (“PSI”) for each Defendant. The

probation officer grouped all of six of each Defendant’s counts of conviction

together and calculated a base offense level of seven, pursuant to U.S.S.G.

§ 2B1.1(a)(1). Because the total intended loss from the Defendants’ fraudulent

scheme was $100 million (the ceiling for the 2007 Contract), the probation officer

imposed a 24-level increase, pursuant to U.S.S.G. § 2B1.1(b)(1)(M). With a

criminal history category of I and a total offense level of 31, each Defendant’s total

adjusted guideline range was 108 to 135 months’ imprisonment.

      The Defendants objected to the loss amount calculated in the PSI because

(1) there was no actual harm to or loss sustained by the government, and (2) they

did not intend to harm SOCOM, as they intended for the terms of the contract to be

fully and satisfactorily performed. The probation officer responded by stating that,

for government benefits fraud, U.S.S.G. § 2B1.1, cmt. (n.3(F)(ii)) stated that the


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loss was no less than the “value of the benefits obtained by unintended recipients

or diverted to unintended uses.” Citing United States v.Maxwell, 579 F.3d 1282

(11th Cir. 2009), the probation officer noted that this Court had applied this rule

for calculating loss in government benefits fraud cases to calculating loss in cases

of preferential contracting fraud. Because in this case MiLanguages procured the

$100 million small business set-aside contract through fraud, the loss amount was

no less than $100 million, pursuant to Maxwell and § 2B1.1, cmt. (n.3(F)(ii)).

      At sentencing, after hearing argument from both Defendants and the

government, the district court overruled the Defendants’ amount-of-loss objection

and adopted the calculation of the loss amount and guideline ranges as stated in the

PSIs. The court noted that it had relied on Maxwell, which was “loud and clear as

to how these losses are to be calculated,” to determine that the appropriate amount

of loss here was the entire, $100 million value of the contract that was diverted to

an ineligible recipient, MiLanguages. Accordingly, each Defendant’s total

adjusted guideline range was 108 to 135 months’ imprisonment.

      The district court then sentenced each Defendant to 36 months’

imprisonment on each count, with the sentences to run concurrently. The district

court, in explaining its sentencing decision, noted that although the loss amount of

$100 million was correct, that loss amount and the Defendants’ adjusted guideline




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ranges overrepresented the seriousness of the Defendants’ offenses, such that a

sentence below the range was appropriate.

       We review the reasonableness of a sentence for abuse of discretion using a

two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error, such as miscalculating the advisory guidelines range, treating the guidelines

as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to explain adequately the

chosen sentence.12 Id.

       The Sentencing Guidelines provide that the offense level should be

increased based on the amount of loss involved. U.S.S.G. § 2B1.1(b)(1).

Generally, the loss is the greater of the actual or intended loss, where actual loss is

the “reasonably foreseeable pecuniary harm that resulted from the offense” and

intended loss is the “pecuniary harm that was intended to result from the offense.”

Id. § 2B 1.1, cmt. (n.3(A)(i)–(ii)).

       The Commentary to the Guidelines provides that, in cases involving

procurement fraud, the reasonably foreseeable pecuniary harm includes “the

reasonably foreseeable administrative costs to the government and other

       12
         While we would ordinarily next assess whether the Defendants’ sentences are
substantively reasonable in light of the § 3553(a) factors, the Defendants have not raised any
argument with regard to the substantive reasonableness of their sentences, and thus, they have
waived any argument as to this issue.

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participants of repeating or correcting the procurement action affected,” in addition

to any increased costs to procure the service involved that were reasonably

foreseeable. Id. § 2B1.1, cmt. n.3(A)(v)(II)). However, if there is a loss, but the

loss cannot reasonably be determined, the alternative measure of loss is “the gain

that resulted from the offense.” Id. § 2B1.l, cmt. (n.3(B)). Furthermore, in cases

involving government benefits, including grants, loans, and entitlement programs,

“loss shall be considered to be not less than the value of the benefits obtained by

unintended recipients or diverted to unintended uses.” Id. § 2B1.1, cmt.

(n.3(F)(ii)).

       In United States v. Maxwell, the defendant participated in a fraudulent

scheme to obtain construction contracts set aside for socially and economically

disadvantaged companies through the Community Small Business Enterprise

(“CSBE”) program and the Disadvantaged Business Enterprises (“DBE”) program.

Maxwell, 579 F.3d at 1287–88. The CSBE program set aside a certain percentage

of Miami-Dade County’s construction work for qualifying small, local businesses.

Id. at 1288. This Court concluded that the CSBE and the DBE programs at issue

were government-benefits programs under § 2B1.1, noting that the primary

purpose of those programs was to help small minority-owned businesses develop

and grow, create new jobs, and overcome the effects of past discrimination in the

construction industry. Id. at 1306. This Court noted that, unlike in standard


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construction contracts, the contracts at issue in Maxwell focused “mainly on who is

doing the work.” Id. This Court went on to approve the reasoning contained in

other circuits’ decisions which stated that the DBE and similar programs were

entitlement program payments because they were affirmative action programs that

gave exclusive opportunities to certain minority and women owned businesses. Id.

As such, the appropriate amount of loss was the entire value of the CBSE and DBE

contracts that were diverted to the unintended recipient. Id.

      Congress’s policy is that small businesses be awarded “a fair proportion of

the total purchases and contracts” from the federal government. 41 U.S.C. § 3104.

Further, Congress has declared that the government “should aid, counsel, assist,

and protect” small businesses to ensure that a fair proportion of the government’s

total purchases and contracts for goods and services be placed with small business

enterprises. 15 U.S.C. § 631(a).

      Here, given Maxwell, the Defendants have not shown that the district court

erred by determining that the appropriate loss amount was the entire amount of the

contract at issue, $100 million, such that the 24-level increase was appropriate.

Specifically, the small business set-aside contract at issue in this case was set aside

to provide exclusive opportunities to small businesses, just as the DBE and CBSE

contracts in Maxwell were set aside to provide opportunities to minorities and

women. See Maxwell, 579 F.3d at 1306. Despite the Defendants’ argument that


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the government benefitted from the contract rather than losing from it, Congress

has emphasized that there is a concern in ensuring that small businesses have a fair

proportion of federal contracts because of the benefit that the nation receives from

having a strong class of small businesses. See 15 U.S.C. § 631(a); Maxwell, 579

F.3d at 1306. By defrauding the government to obtain the contract, the Defendants

prevented the government from awarding the contract to a legitimate small

business, and therefore, deprived other small businesses of the ability to obtain this

contract.

      Because of the similarities between the programs and criminal conduct at

issue in Maxwell and the small business program and criminal conduct at issue

here, the Defendants’ argument that Maxwell is distinguishable because it did not

involve a small business program is without merit. Therefore, the district court

correctly applied this Court’s holding from Maxwell: the amount of loss in cases

involving government benefits programs equals the entire amount of the contract at

issue. See Maxwell, 579 F.3d at 1306. As such, the district court did not err here

by attributing the entire amount of the contract at issue—$100 million—to the

Defendants as loss, and applying a corresponding 24-level increase to their offense

levels.




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                                    IV. CONCLUSION

       In light of the foregoing, and following our review of the record and oral

argument in this case, we find no reversible error and affirm the convictions and

sentences of Defendants Blanchet and Guillan.13

       AFFIRMED.




       13
         Because the Defendants have not established that the district court committed any
reversible error, they consequently cannot establish cumulative error necessitating the reversal of
their convictions. United States v. Khanani, 502 F.3d 1281, 1295 (11th Cir. 2007).

                                                56
