UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-2486

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MOYOSORE ISMOILA;

SEGUN DEBOWALE; NURATU LAWANSON,

Defendants-Appellants.

* * *

No. 95-20171

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MOYOSORE ISMOILA,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Texas

November 13, 19961 District Judge of the Eastern District of Louisiana, sitting

by designation.

2 Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge. 1

DUHÉ, Circuit Judge:

Segun Debowale and Nuratu Lawanson were convicted by a jury of

conspiracy to commit wire fraud, money laundering, and us e of

unauthorized access devices, in violation of 18 U.S.C. § 371 (count

1); aiding and abetting wire fraud, in violation of 18 U.S.C. § 2

and 18 U.S.C. § 1343 (counts 2-9); aiding and abetting money

laundering, in violation of 18 U.S.C. § 2 and § 1956(a)(1)(A)(i),

(a)(1)(B)(i) (counts 10-15); and aiding and abetting the use of

unauthorized access devices, in violation of 18 U.S.C. § 2 and 18

U.S.C. § 1029(a)(2) (count 16). Moyosore Ismoila was convicted by

a jury of conspiracy to commit wire fraud, money laundering, and

use of unauthorized access devices, in violation of 18 U.S.C. § 371

(count 1); aiding and abetting wire fraud, in violation of 18

U.S.C. § 2 and 18 U.S.C. § 1343 ( counts 2-9); and aiding and

abetting the use of unauthorized access devices, in violation of 18

U.S.C. § 2 and 18 U.S.C. § 1029(a)(2) (count 16). Lawanson was

sentenced to a total of thirty-two months imprisonment followed by

three years of supervised release. Debowale was sentenced to a

total of eighty-seven months imprisonment followed by five years of

supervised release, and was ordered to pay $360,689 in restitution.

Ismoila was sentenced to a total of sixty months imprisonment

followed by three years of supervised release, and was ordered to3

pay $111,008 in restitu tion. On appeal, the Appellants raise

multiple points of error. We affirm the convictions and sentences

of Debowale and Ismoila. We reverse the conviction of Lawanson on

Count 11, affirm on all other counts, vacate her sentence on Count

11, affirm her sentence on all other counts and render.

BACKGROUND

The Appellants defrauded various banks and cr edit card

companies by processing hundreds of fraudulent charge s on stolen

credit cards to obtain cash. They posed as legitimate business

o wners, which allowed them to obtain the electronic machinery by

which they processed false charges to the stolen credit cards.

Before describing the details of the Appellants’ sc heme, a

review of the mechanics of a typical credit card transaction is

helpful. The primary victims of the conspiracy are known as

issuing banks. Issuing banks are members of VISA and MasterCard,

not-for-profit associations of member banks that operate a

worldwide communication system for financial transfers using credit

ca rds. Issuing banks issue credit cards to consumers, enabling

those consumers to make credit-card purchases at participating

businesses. To accept credit cards, businesses must open an

account with a merchant bank. Merchant banks, like issuing banks,

are members of VISA and MasterCard, but merchant banks have

accounts with businesses, not consumers. Once a business is

electronically connected with a merchant bank, it can accept a

consumer’s credit card by processing the credit card through a

point-of-sale terminal provided to it by the merchant bank. If the2 The Appellants conducted most of their business through

First Interstate Bank of So uth Dakota, a merchant credit card

issuer. First Interstate employed a company named Cherry Payment

Systems that signed up merchants for them. Chidi Amaefule, nonappealing co-defendant, was a salesman for Cherry Payments, and as

part of his job, he certified that Appellants owned legitimate

businesses, thus enabling them to get MasterCard and VISA merchant

accounts. The Appellants also defrauded Discover Card, a company

that is both a merchant and issuing bank.

4 merchant bank approves the sale, it immedia tely credits the

business for the amount of the consumer’s purchase. The merchant

bank then transmits the information regarding the sale to VISA or

MasterCard, who in turn forward the information to the bank that

issued the card to the consumer who made the purchase. If the

issuing bank approves the sale, it notifies VISA or MasterCard and

then pays the mer chant bank at the end of the business day. The

issuing bank carries the debt until the cardholder pays the bill.

The Appellants op ened approximately ten sham businesses and

applied for merchant accounts for those businesses with Comdata

Corporation, Western Union, Discover Card, and First Inter state

Bank of South Dakota. The Appellants used these businesses to

defraud the banks and credit card companies in two different ways.

In one method, the Appellants applied for merchant credit card

accounts for their s ham businesses. At these businesses, the

Appellants processed stolen credit cards in sham transactions in

exchange for nonexistent mer chandise. After these charges were

relayed to the merchant banks, those banks then deposited the

amount of each charge directly into the Appellants’ bank accounts,

and the Appellants withdrew the funds. 2

The Appellants also set up sham check-cashing businesses for5

which they obtained accounts with Comdata and Western Union. At

these businesses, the Appella nts used the stolen credit cards to

purchase “Comcheks” issued by Comdata Corporation or “Flash Cash”

checks issued by Western Union. The Appellants then deposited the

Comcheks into their busin ess bank accounts or had Western Union

deposit the amount of the Flash Cash checks into these accounts,

and later withdrew the funds.

The issuing companies became awar e of the fraudulent

transactions when the holders of the stolen cards complained that

they had not made the charges listed on their respective bills.

The scheme involved approximately 270 cardholders and 44 different

issuing banks. Charges of $539,135 were made on these credit cards

at the Appellants’ businesses, al l but $16,350 of which were

confirmed to be fraudulent.

The Government presented the testimony of five credit

cardholders, and representatives from Comdata, Western Union, First

Interstate, Discover, MasterCard, and four issuing banks. In

addition, the prosecution int roduced records of 44 issuing banks

that reflected account information of 270 cardholders. There was

also testimony from the employees of the banks into which the

Appellants deposited the proceeds from their consp iracy and the

owners of property on which the fraudulent businesses were located.

In addition, Special Agent Judy Sly testified as to the details of

her investigation, and the Government introduced evid ence seized

during the execution of a search warrant at one of the businesses.

Finally, the Government produced the testimony of Taiwo Oyewuwo,6

a.k.a. Adetoye Falusi, a member of the conspiracy who pled guilty

and agreed to testify for the Government.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

Lawanson first asserts that the evidence was insufficient to

sustain her convictions. She was convicted on all counts

encompassing four different offenses: conspiracy (count 1); aiding

and abetti ng wire fraud (counts 2-9); aiding and abetting money

laundering (counts 10-15); and aiding and abetting the use of

unauthorized access devices (count 16). The Government concedes

that the evidence was insufficient to support Lawanson’s conviction

on count 11, and thus we reverse her conviction and vacate her

sen tence on that count. On all other counts the evidence was

sufficient.

A. Standard of Review

We review the sufficiency of the evidence in “the light most

favorable to the verdict, ac cepting all credibility choices and

reasonable inferences made by the jury.” U nited States v. McCord

,

33 F.3d 1434, 1439 (5th Cir. 1994) (internal quotations omitted),

cert. denied

, 115 S. Ct. 2558 (1995). A conviction must therefore

be upheld if a rational jury could have found that the prosecution

proved the essential elements of the crime charged beyond a

reasonable doubt. I d. It “‘is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly

inconsist ent with every conclusion except that of guilt.’” I d.

( quoting United States v. Bell

, 678 F.2d 547, 549 (5th Cir. 1982),7

aff’d , 462 U.S. 356 (1983)). This standard of review is the same

regardless wh ether the evidence is direct or circumstantial.

United States v. Cardenas

, 9 F.3d 1139, 1156 (5th Cir. 1993), cert

.

denied , 114 S. Ct. 2150 (1994).

B. Discussion

Lawanson concedes that there wa s sufficient evidence for a

reasonable jury to find a conspiracy and that wire fraud, money

laundering, and use of unauthorized access devices occurred. She

asserts, however, that the Government failed to prove that she

knowingly participated in the fraudulent scheme.

1. The Elements of Each Offense

To satisfy the in tent requirement of conspiracy, the

Gov ernment must show that Lawanson knew of the conspiracy and

voluntarily joined it, United States v. Chaney , 964 F.2d 437, 449

(5th Cir. 1992), and that Lawanson had the requisite intent to

commit the underlying substantive offenses. U nited States v.

Buford

, 889 F .2d 1406, 1409 n.5 (5th Cir 1989). Because the

Government proceeded under the theory that Lawanson aided and

a betted the substantive violations, it is not necessary to prove

that Lawanson herself completed each specific act charged in the

indictment. The Government must prove, however, that she

associated with the criminal venture such that she had the same

criminal intent as the principal. S ee United States v. Murray

, 988

F.2d 518, 522 (5th Cir. 1993). “To aid and abet simply means to

assist the perpetrator of a crime while shar ing the requisite

criminal intent.” U nited States v. Jaramillo

, 42 F.3d 920, 9233 Lawanson concedes that a reasonable jury could have found

that “some” of the signatures were genuine.

8 (5th Cir.), cert. denied , 115 S. Ct. 2014 (1995).

The intent necessary for wire fraud is the specific intent to

defraud or deceive, although proof of such intent can arise “by

inference from all of the facts and circumstances surrounding the

transactions.” U nited States v. Keller

, 14 F.3d 1051, 1056 (5th

Cir. 1994) (internal quotations omitted). To convict Lawanson of

money laundering, the Government must prove either th at she

intended to promote the carrying on of an unlawful activity or knew

that the transaction was designed to conceal the proceeds of an

unlawful activity. United States v. Garza , 42 F.3d 251, 253 (5th

Cir. 1994), cert. den ied , 115 S. Ct. 2263 (1995). Finally, to

convict for use of unauthorized access devices, the Government must

prove that Lawanson acted knowingly and with the intent to defraud,

although proof of such intent may be established with

circumstantial evidence. United States v. Goodchild , 25 F.3d 55,

59-60 (1st Cir. 1995).

2. The Evidence

Lawanson essentially makes two arguments. First, she contends

that, although her name and apparent signature appear on many of

the documents that the Government introduced into evidence, the

Government offered no proof that she had actually signed her name

on the documents. Second, Lawanson asserts that even if she did

participate in some of the transactions described in the indictment

as “overt acts,” 3 the Government still failed to prov e that this4 A gent Judy Sly testified that both pictures depicted

Lawanson.

9 par ticipation was sufficient to show that she had the requisite

knowledge and intent required for conviction.

Lawanso n points out that the Government did not undertake a

handwriting analysis of any of the signatures; that the limited

fingerprint analysis did not inculpate her; that no witnesses saw

her sign any of the documents; and that there was testimony that

her husband, Segun Debowale, had used Lawanson’s name as part of

the illega l scheme. Lawanson contends that such evidence calls

into question whether she signed the documents on which her name

appears.

The evidence suggests otherwise. The Government introduced

two Texas driver’s licenses into evidence, one bearing the name

Nuratu Ronke Lawanson and the other bearing the name Abiodun K.

Lawanson. Each of these licenses contained a photograph and a

signature. A reasonable jury could conclude that both photos were

that of Lawanson 4 and that the signatures were her’s as well. A

jury is entitled to draw its own conclusion as to the genuineness

of signatures by making a comparison with an authentic signature.

United States v. Jenkins

, 785 F.2d 1387, 1395 (9th Cir.), cert.

denied

, 479 U.S. 855, 479 U.S. 889 (1986); United States v. Cashio

,

420 F.2d 1132, 1135 (5th Cir. 1969), c ert. denied

, 397 U.S. 1007

(1970); Fed. R. Evid. 901(b)(3). In this case, the signature on

the driver’s licenses bearing Lawanson’s picture served as an

authentic signature, and by comparison, a reasonable trier of fact10

could determine that Lawanson’s signature on the other do cuments

was genuine.

The determination that Lawanson signed the various financial

documents is crucial to the jury’s finding of guilt because it is

her signature on many of the business records that connects her to

the fraudulent scheme. First, she filed assumed name certificates

as the owner of Cheques Cashed, Designer’s Outlet, and ADE Postal

Services, three of the phony businesses used to further the scheme.

Second, Lawanson applied for merchant credit ca rd accounts with

First Interstate Bank of South Dakota for the businesses called

Checks Cashed and Designer’s Outlet. Again, Checks Cashed and

Designer’s Outlet were fake businesses, and First Interstate is one

of the merchant credit card issuers whose wire transfers to the

fake businesses formed the basis of four counts of wire fraud.

Third, Lawanson opened bank accounts at First National Bank for ADE

Cheques Cashed and at Texas Capitol Bank for Designer’s Outlet, two

of the banks about which the money laundering counts revolved. An

employee of Texas Capital Bank met Lawanson the day after she

attempted to wire $7,000 to Nigeria and identified her in court as

t he signatory on the Designer’s Outlet account. Lawanson’s

signature also appears as maker on many Designer’s Outlet checks

made payable to Segun Debowale, Nuratu Lawanson, and Chidi Amaefule

(all co-conspirators in this scheme). Further, Lawanson’s

signature appears on the back of some of these checks, indicating

that she tendered or cashed these checks. A reasonable jury could

find that these signatures on all of these documents match those on5 In addition, Lawanson’s signature on a Bank One/National Cash

Express document does not appear to match those on her driver’s

licenses. National Cash Express, however, is the business for

which Debowale was identified as signing Lawanson’s name, giving

rise to the inference that he signed these documents and that thus

Lawanson signed the others.

6 The two signatures are quite distinctive. The signatures

that belong to Lawanson contain a curved “L” at the b eginning of

the name Lawanson, whi le the signatures that belong to Debowale

contain a sharp “L” at the beginning of the name Lawanson.

Further, th e “L” in Debowale’s signature of Lawanson’s name also

matches the “L” that is found in Debowale’s signature of his own

name.

11 the Texas driver’s licenses.

Lawanson questions the authenticity of the signatures because

a Western Union agent identified Segun Debowale as La wanson.

Lawanson argues that this evidence su ggests that Debowale signed

Lawanson’s name on Western Union’s agreement with ADE Cheques

Cashed (dba National Cash Express), and, by implication, on other

documents. But this evidence cuts both ways. The signature on the

two Western Union documents does not appear to match the signatures

on Lawanson’s driver’s licenses and the other documents discussed

above. A reasonable jury could therefore conclude, based upon the

eyewitness identification of Debowale as Lawans o n, that these

signatures belonged to Debowale. The jurors could also infer that

while the signature on the two Western Union documents belonged to

Debowale, the other signatures belonged to Lawanson. 5 Furthermore,

there were signatures on other Western Union/National Cash Express

documents that did not match Debowale’s signature but did match the

signatures from Lawanson’s driver’s licenses. 6

The Government also introduced other evidence establishing12

Lawanson’s guilt. The fact that Lawanson had two Texas driver’s

licenses, bearing different names and containing different personal

information, and operated t he phony businesses using different

names, is circumstant ial evidence of her unlawful intent.

Furthermore, an agent who conducted a surveillance of one of the

fake businesses observed Lawanson there on three occasions. Each

of the businesses that Lawanson was directly tied to was involved

in processing the stolen credit cards.

Despite the foregoing evidence, L a wanson argues that the

Government failed to prove that she had the necessary intent to be

convicted of conspiracy and the other substantive charges. We

disagree. Lawanson asserts that her conspiracy conviction must be

reversed because the above eviden ce establishes that she was

“merely prese nt” during the commission of the illegal scheme and

that the only evidence tying her to the conspiracy was based on her

marital relationship with Debowale. It is true that a showing of

mere presence and association with those participa ting in a

conspiracy is insufficient to prove knowledge of and participation

in criminal activity, United States v. Jackson , 700 F.2d 181, 185

(5th Cir.), cert. denied

, 464 U.S. 842 (1983), and that a

conspiracy cannot be proven solely by a family relati onship.

United States v. Williams-Hendricks

, 805 F.2d 496, 503 (5th Cir.

1986). That evidence, however, establishes that Lawanson was more

than merely present during the conspiracy and that her role in the

illegal s cheme was not limited to her marital relationship with

Debowale. “[W]hen inferences drawn from the existence of a family13

rel ationship or ‘mere knowing presence’ are combined with other

circumstantia l evidence, there may be sufficient evidence to

support a conspiracy conviction.” W illiams-Hendricks

, 805 F.2d at

503.

Lawanson’s assertion that the evidence was insu fficient to

prove that she ha d the requisite intent to be convicted of the

substantive crimes also lacks merit. Regarding the wire fraud

counts, Lawanson herself applied for merchant accounts with First

Interstate for two of the fake businesses and she filed assumed

name certificates for three of the sham businesses. The Government

also introduced evidence of wire communi cations: stolen or

fraudulent credit cards were used to make purchases of nonexistent

merchandise, Comcheks, and Flash Cash checks at the businesses to

which Lawanson was connected. This evidence is sufficient to allow

a reasonable jury to conclude that Lawanson participated in a

scheme to defraud and th at she used wire communication in

furtherance of this scheme. S ee United States v. Dula

, 9 89 F.2d

772, 778 (5th Cir.), cert. denied

, 114 S. Ct. 172 (1993). Further,

a reasonable trier of fact could find that Lawanson acted with the

specific intent to defraud because unlawful intent to defraud may

be proven by circumstantial evidence. S ee United States v.

Aggarwal

, 17 F.3d 737, 740 (5th C ir. 1994). The paper trail

connecting Lawanson to the phony businesses is sufficient to prove

her membership in the scheme to defraud, and once membership is

established, a knowing participant is liable for any wire

communication that takes place in connection with the scheme.14

Dula , 989 F.2d at 778.

The Government proved beyond a reasonable doubt that Lawanson

aided and abetted money laundering. Specifically, the Government

alleged that by depositing the illegally-obtained Comcheks into the

bank acco unts of the fraudulent businesses and withdrawing funds

from these accounts, Lawanson intended to promote an illegal

activity and designed to conceal the nature of these proceeds. S ee

Garza

, 42 F.3d at 253. The Government may show either that

Lawanson knowingly designed to conceal the proceeds of an illegal

activity or that she intended to promote the carrying on of

unlawful acti v ity. I d. ; 18 U.S.C. § 1956(a)(1)(A)(i),

(a)(1)(B)(i). To establish that Lawanson designed to conceal the

procee ds of an illegal activity, the Government must prove more

than just innocent money spending, although it is sufficient to

show that the transaction is part of a larger sch eme designed to

conceal illegal proceeds. United States v. Willey , 57 F.3d 1374,

1385-86 (5th Cir.), cert. denied

, 116 S. Ct. 675 (1995). Intent to

promote the illegal activity can be established by showing the

defendant used the illegal proceeds to promote the unlawful scheme

by presenting herself as a legitimate business owner. See United

States v. Alford

, 999 F.2d 818, 824 (5th Cir. 1993). Lawanson

opened up two separate bank accounts for three of the phony

businesses; attempted to wire $7,000 to Nigeria; signed many checks

payable to herself and co-conspirators; and owned businesses into

whose bank accounts the Comcheks were deposited. This evidence is

sufficient to prove both that the bank transactions were part of a15

lar ger scheme designed to conceal the illegal activity and that

Lawanson promoted the unlawful endeavor by presenting herself as a

legitimate business owner. The multiple transactions were part of

an overall scheme designed to conceal the illegal proceeds in that

the proceeds generated by one phony business run by one coconspirator were often deposited in the bank account of another

sham business owned by a different co-conspirator. In addition, by

depositing the Comcheks into the bank accounts, Lawanson gave the

appearance that she was operating a legit imate business by

accepting Comcheks in exchange for merchandise, when in reality

there was no purchase of goods and only a deposit of illegal funds.

In fact, the entire scheme was premised on the fraud that Lawanson

and her co-conspirators were operating legitimate businesses,

because this influe nced the banks and merchant credit card

companies to do business with the conspirators.

Finally, the evidence is sufficient to convic t Lawanson of

aiding and abetting the use of unauthorized access devices. Stolen

credit cards are one type of unauthorized access device, 18 U.S.C.

§ 1029(e)(1), (e)(3); U nited States v. Jacobowitz

, 877 F.2d 162,

165 (2d Cir.), cert. denied

, 493 U.S. 866 (1989), and the

Governmen t produced ample evidence that stolen credit cards were

used at the sham businesses. Proof that Lawanson herself used the

specific credit cards described in the indictment is not necessary

because the Government proceeded un der the theory that Lawanson

aided and ab etted in the use of stolen credit cards. The

Government wa s simply required to prove that Lawanson became16

associated with, participated in, and in some way acted to further

the use of the stolen credit cards. See United States v. Chavez

,

9 47 F.2d 742, 746 (5th Cir. 1991). Although the Government must

prove that Lawanson acted with the intent to defraud, such intent

may be proven by circumstantial evidence. G oodchild

, 25 F.3d at

60. The extensive paper trail tying Lawanson to the phony

businesses satisf ies all of the necessary elements. S ee Chavez

,

947 F.2d at 746 (noting that the same evidence will typically

support both a conspiracy and an aiding and abetting conviction).

II. ADMISSION OF BANK RECORDS

The Government offered and the court admitted records from 44

banks regarding 270 credit card customers containing, among other

things, customers’ statements that their credit cards were stolen.

The records were introduced through fraud investigators from Chase

Manhattan Bank, Discover, AT&T Universal, Citibank, a nd MBNA

American National Association (five of the issuing banks).

All three Appellants argue that the district court erred by

admitting these documents, because they contained hearsay, and in

some instances, double hearsay, and therefore violated their Sixth

Amendment rig ht to confront witnesses. We review a district

court’s evidentiary rulings for abuse of discretion. U nited States

v. Moody

, 903 F.2d 321, 326 (5th Cir. 1990). Confrontation Clause

errors are subject to harmless-error analysis. D elaware v. V a n

Arsdall

, 475 U.S. 673, 680-82 (1986); United States v. Stewart

, 93

F.3d 189, 194 (5th Cir. 1996). We see no abuse of discretion.

T here were essentially two types of records in which the7 The parties agree that the statements at issue are hearsay;

they disagree as to whether they are admissible under exceptions to

the hearsay rule.

17 hea rsay statements appeared. 7 First, the Government introduced

letters and affidavits from the cardholders stating that their

cards had been lost, stolen, or not received, and that their

account bills contained unauthorized charges. Typically, these

affidavits were standard forms sent by the credit card issuers to

the cardholders, who in turn filled out the affidavits and returned

them to the issuing banks. In some cases, the cardholders

themselves wrote letters to the issuing banks stating that their

bills contained unauthorized charges. Along with the affidavit or

letter, some cardholders also returned a copy of their bill on

which they marked the fraudulent charges.

Second, the Government introduced computerized printouts

generated by the issuing banks. These printouts were essentially

reports of phone calls made by cardholders to bank personnel in

which the cardhol ders informed the bank that their credit cards

were lost, stolen, or had never been received. The cardholders

relayed this information orally to the bank personnel, who in turn

entered the statements directly into the bank’s computer.

The Appellants objected to the admissibility of these records

as hearsay. T he cardholders’ affidavits and letters are hearsay

because they contain the out- of-court statements of the credit

cardholders. The computer records containing the oral statements

a re double hearsay. The first level of hearsay is the oral

statements made by the cardholders to the bank personnel. The18

sec ond level of hearsay consists of the bank records themselves

that were created when the bank employees recorded the oral

statements of the cardholders. The district court admitted the

records under the business records exception, Fed. R. Evid. 803(6),

and, to the extent that such records contained double hearsay, the

“catch-all” or “residual” exceptions, Fed. R. Evid. 803(24) and

Fed. R. Evid. 804(b)(5). The district court admitted the documents

only after hearing testimony concerning them from five cardholders

and five bank custodians.

Read literally, the Confrontation Clause could bar the use of

all out-of-court statements in a criminal case when the declarant

is unavailable, but the Supreme Court has rejected such an extreme

interpretation of the Clause. Idaho v. Wright , 497 U.S. 805, 814

(1990); Sherman v. Scott , 62 F.3d 136, 140 (5th Cir. 1995), cert.

denied

, 116 S. Ct. 816, 116 S. Ct. 1279 (1996). In O hio v.

Roberts

, the Court noted that “when a hearsay declarant is not

present for cross-examination at trial, the Confrontation Clause

normally requires a showing that he is unavailable. Even then, his

statement is admissible only if it bears adequate ‘ind icia of

reliability.’” O hio v. Roberts

, 448 U.S. 56, 66 (1980). The Court

later “clarified the scope of Roberts ,” noting that t he case

“stands for the proposition that unavailability analysis is a

necessary part of the Confrontation Clause inquiry only when the

challenged out-of-court statements were made in the course of a

judicial proceeding.” W hite v. Illinois

, 502 U.S. 346, 354 (1992);

accord Sherman , 62 F.3d at 140.19

Hence the relevant inquiry in this case is whether the

evidence bear s adequate indicia of reliability. Evidence is

considered reliable if it falls within a firmly rooted hearsay

exception or is otherwise supported by a showing of particularized

guarantees of trustworthi ness. R oberts

, 448 U.S. at 66; United

States v. Flores

, 985 F.2d 770, 775 (5th Cir. 1993). The business

records exception is a firmly rooted hearsay exception. U nited

States v. Norton

, 867 F.2d 1354, 1363 (11th Cir.), cert. denied

,

491 U.S. 907, 493 U.S. 871 (1989). Residual or catch-all

exceptions generally are not. W right

, 497 U.S. at 817. Therefore,

if the records are admissible under the business records exception,

no vi olation of the Confrontation Clause occurred. If, however,

the records are admissible under the residual exceptions, they must

be supported by particularized guarantees o f trustworthiness to

avoid offending the Confrontation Clause.

A. The Business Record Exception

The Appell ants challenge the admissibility of the records

under the business records exception on the ground that the

cardholders were not acting in the regular course of business when

they made the oral statements to the bank employees and supplied

the affidavits or letters to the issuing banks. We agree with the

Appellants that neither the cardholders’ oral statements nor their

written affidavits and letters fall within the business records

exception, Fed. R. Evid. 803(6). The business records exception

does, however, encompass one level of hearsay: the bank records

t hemselves and the computer recordation by bank personnel of the20

oral statements of the cardholders.

The cardholders statements do not qualify as business records

of the cardholders because the business records exception “applies

only if the person who makes the stat ement ‘is himself acting in

the regul ar course of business.’” R ock v. Huffco Gas & Oil Co.,

Inc.

, 922 F.2d 272, 279 (5th Cir. 1991) ( quoting Florida Canal

Industries, Inc. v. Rambo

, 537 F.2d 200, 202 (5th Cir. 1976)). As

the Appellants correctly point out, it is not the regular course of

business for credit cardholders to fill out affidavits or otherwise

give information to their banks regarding stolen credit cards. S ee

United States v. Davis , 571 F.2d 1354, 1359 (5th Cir. 1978).

Second, the statements are not admissible as business records

of the issuing banks because of the double hearsay involved.

Double hearsay exists when a business record is prepared by

one emplo yee from information supplied by another employee.

If both the source and the recorder of the information, as

well as every other participa nt in the chain producing the

record, are acting in the regular course of business, the

multiple hearsay is excused by Rule 803(6). However, if the

sourc e of the information is an outsider, Rule 803(6) does

not, by itself, permit the admission of the business record.

The outsider’s statement must fa ll within another hearsay

exc eption to be admissible because it does not have the

presumption of accuracy that statements made during the

regular course of business have.

United States v. Baker

, 693 F.2d 183, 188 (D.C. Cir. 1982) ( citing

United States v. Davis

, 571 F.2d 1354 (5th Cir. 1978)). In the

present case, the cardholders--outsiders to the compani es that

gen erated the documents--were the sources of the information

contained in the records. So although Fed. R. Evid. 803(6)

provides an exception for one level of hearsay--that of the

documents themselves created by the employee who recorded the8 The record shows that the documents the mselves satisfy the

requirements of Fed. R. Evid. 803(6). For example, Maureen Lentz,

a fraud investiga tor with AT&T Universal Card, testified that an

AT&T employee would take a report over the telephone from a cardholder and enter that information into the computer, that the

computer records are records that “AT&T Universal would keep in the

normal course of business,” that they are “records that AT&T

Universal would rely on in the regular course of business,” and

that the “records contain information that were made at or near the

time of the events depicted therein by a person with knowledge.”

21 cardholder statements--the sources of the information contained in

the records were the cardhold ers, and their statements must fall

within another hearsay exception to be admissible. 8 S ee Baker

, 693

F.2d at 188.

The Government cites many cases that affirm the admission,

under the business records exception, of a company’s business

records containing statements provided by outsiders. These cases,

however, all involve situations in which the double hearsay problem

was satisfied either by the use of multiple hearsay exceptions or

because the outsider who provided the statements was also acting in

the regular course of business. S ee

, e.g.

, United States v.

Goodchild , 25 F.3d 55, 60 (1st Cir. 1994).

B. The Residual Exceptions

Although the statements of the cardholders do not qualify as

bus iness records, both the written affidavits and the oral

statements made to the bank personnel are admissible under the

residual exceptions to the hearsay rule, Fed. R. Evid. 803(24) and

803(b)(5). The residual exceptions authorize the admission of

hearsay statements having “circumstantial guarantees of

trustworthine ss” equivalent to those of the other enumerated22

hearsay exceptions, as long as the trial court determines that the

statements are sufficient ly material, probative, and in the

interests of justice. Fed. R. Evid. 803(24), 804(b)(5).

To satisfy the dictates of the Confrontation Clause, the

evidence must be sufficiently reliable, that is, it must be

supported by a showing of particularized guarantees o f

trustworthiness. Roberts , 448 U.S. at 66. These particularized

guarantees of trustworthiness must be drawn from the totality of

the circumstances surrounding the making of the statement, but they

cannot stem from other corroborating evidence. W right

, 497 U.S. at

820-22; Scott

, 62 F.3d at 140 & n.2. Although the Supreme Court’s

language in its decisions interp reting the Confrontation Clause

regarding trustworthiness and reliability appears similar to the

requirements set forth in the residual hearsay exceptions, we note

tha t the two inquiries are not identical and that evidence

admissible under the resi dual exceptions may still violate the

Confrontation Clause. W right

, 497 U.S. at 814; United States v.

Shaw , 69 F.3d 1249, 1253 (4th Cir. 1995).

The written affidavits of the cardholders and the oral

statements made by the cardholders to the banks exhibit a high

degree of reliability such that admission does not offend the

Confrontation Clause. The Appellants impugn the reliability of the

cardholders’ statements on the grounds that the statements are

self-serving because the cardholders, by informing the banks that

they had not made specific charges, were able to avoid paying for

those charges. The record, however, suggests otherwise. A fraud23

investigator at Citibank with 22 years of experience testified that

he had participated in over 1000 fraud investigations and that he

could remember only three or four instances in which the cardholder

was lying about not making the charge s. In addition, the record

shows that issuing banks have an incentive to ensure the veracity

of the cardholders’ claims of fraud because l oss due to fraud is

borne by the issuing banks. We thus believe that the affidavits of

the cardholders and the oral statements made to the bank personnel

exhibit a degree of reliability similar to that of the statements

judged admissible in United States v. Simmons

, 773 F.2d 1455, 1460

(4th Cir. 1985) (holding that the admission, under Rule 803(24), of

an ATF gun certification form that had been filled out and signed

by a weapon manufacturer did not violate the Confrontation Clause

because the form was highly reliable).

In addition, the trustworthiness of the statements at issue is

so clear from the surrounding circumstances that cross-examination

of the 265 non-testifying cardholders would be of marginal utility.

See Wright

, 497 U.S. at 820, Shaw

, 69 F.3d at 1253. In this case,

the trial court delayed ruling on the admissibility of the hearsay

statements until after the Government had presented the testimony

of five of the cardholders wh ose statements are at issue. The

Appellants’ cross-examination of these witnesses was minimal, and

they did not make an issue of whether these witnesses were being

untruthful. Finally, none of the Defendants in closing argument

attacked the credibility of the c ardholders; the crux of the

defens e was not whether the cards had been stolen. We thus24

conclu de that there was sufficient indicia of reliability

supporting the out-of-court s tatements by the credit cardholders

such that admission o f these statements under the residual

exceptions to the hearsay rule does not violate the Appellants’

Sixth Amendment right to confront witnesses.

III. CONDITION OF SUPERVISED RELEASE

D ebowale asserts that his Fourth and Fifth Amendment rights

were violated by a condition of his supervised release that

requires him “to provide the probation officer access to any

requested financial information.” We disagree.

Title 18 U.S.C. § 3583(d) allows the district court to order

any condition of supervised release that “it consider s to be

appropriate,” so long as that condition:

(1) is reasonably related to the factors set forth in section

3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation o f liberty than is

reasonably necessary for the purposes set forth in section

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued

by the Sentencing Commission pursuant to 28 U.S.C. 994(a).

18 U.S.C. § 3583(d).

The Sentencing Commission policy statements specifically

contemplate a condition of super vised release such as the one

imposed in this case. Section 5B1.4(b)(18) provides:

If the court imposes an order of restitution, forfeiture, or

notice to victims, or orders the defendant to pay a fine, it

is recommended that the court impose a condition requiring the

defendant to provide the probation officer access to any requested financial information

.

U.S.S.G. § 5B1.4(b)(18) (emphasis added). The district court

o rdered Debowale to pay restitution of $380,689.23. The court’s25

requirement that he provide access to any requested financial

information is thus not only “consistent with,” but is identical

to, the policy statement promulgated by the Sentencing Commission.

IV. THE SENTENCING CHALLENGES

We review the district court’s application an d legal

interpretation of the sentencing guidelines de novo, United States

v. Domino

, 62 F.3 d 716, 719 (5th Cir. 1995), and its findings of

fact for clear error. U nited States v. Hooker

, 997 F.2d 67, 75

(5th Cir. 1993).

A. Leadership Role

Debowale and Ismoila contend that the district court erred by

increasing their base off ense levels by four levels for being

leaders or organizers pursuant to U.S.S.G . § 3B1.1(a). Debowale

maintains that the evidence is insufficient to show that he was a

leader or organizer, and Ismoila asserts that the evidence does not

show that the scheme involved five or more participants. We review

for clear error. U nited Sta tes v. Gonzalez , 76 F.3d 1339, 1345

(5th Cir. 1996); United States v. Valencia , 44 F.3d 269, 272 (5th

Cir. 1995). A finding is not clearly erroneous if it is plausible

in light of the entire record. V alencia

, 44 F.3d at 272. The

district court’s finding that Debowale and Ismoila were leaders or

organizers under § 3B1.1 was not clearly erroneous, and thus we

affirm.

To apply § 3B1.1(a), a court must find that the defendant was

the leader or organizer of a criminal activity, and that the

criminal activity involved five or more participants. A26

defendant’s role in a criminal activity for the purposes of § 3B1.1

can be deduced inferentially from the available facts. Gonzalez

,

76 F.3d at 1345.

The Presentence Investigation Report (“PSR”) establishes that

Debowale was a leader or organizer of the criminal activity. See

Gonzalez

, 76 F.3d at 1346 (“Because the PSR has sufficient indicia

of reliability to support its probable accuracy, it may be

considered as evidence by the trial court at sentencing.”). The

PSR indicated that Debowale was the leader and organizer of over

five individuals who used the phony businesses to process false

charges to stolen credit cards. The evidence showed that Debowale

leased the premises located at 9914 South Gessner and 5905 South

Gessner in Houston, the places of business of seven of the

fraudulent business es. Debowale himself owned many of the

businesses, and split the proceeds received from the stolen cards

on a 50/50 basis with the possessor of the stolen cards. The PSR

also indicates that Debowale had Nuratu Lawanson and Evelyn Olubiyi

working directly under him, as he instructed them to deposit money

into different bank accounts to conceal the scheme. Further,

evidence showed that Debowale often used Lawanson’s name when

dealing with a company that he defrauded. As part of the criminal

activity, Debowale also worked with Emmanuel Obajuluwa, a copossessor of Nationwide Check Cashing, and Busari Danian, who

operated Vantage Computers, two of the front businesses involved in

the conspiracy. Debowale used the services of Chidi Amaefule, who,

as an employee of Cherry Payment Systems, represented to First27

Interstate Bank that Debowale’s fraudulent businesses were

legitimate.

Ismoila’s claim that the scheme did not involve at least five

individuals is similarly without merit. He relies on U nited States

v. Barbontin , which held that a minimum of five participants must

be involved in the precise transaction underlying the conviction.

907 F.2d 1494, 1497-98 (5th Cir. 199 0) (referring to such

individuals as “transactional participants”). Specifically,

Ismoila contends that ind ividuals identified by Taiwo Oyewuwo, a

c o-conspirator who testified for the Government, did not rise to

the level of transactional participants. Oyewuwo testified that he

observed three Nigerians known only as “Charlie,” “Wale,” and

“Stone,” present fraudulent credit cards to Ismoila. Ismoila

contends that because these three people were not linked to any

precise credit card transac tion, they are not transactional

participants under Barbontin

.

Since Barbontin , however, decisions by this Court based upon

revisions to the Sentencing G uidelines have more broadly defined

what constitutes a transaction. The introductory commentary to

Chapter Three, Part B of the Sentencing Guidelines, effective

November 1, 1990, provides:

The determination of a defendant’s role in the offense is to

be made on the basis of al l conduct within the scope of §

1B1.3 (Relevant Conduct), i.e. , all conduct included under §

1B1.3(a)(1)-(4), and not solely on the basis of elements and

acts cited in the count of conviction

.

U.S.S.G. § 3B1.1 introductory comment (emphasis added). This Court

has held that a transaction is thus defined not by the contours of9 Ismoila also claims that reliance on Oyewuwo’s testimony is

an abuse of d iscretion because such testimony is false,

uncorroborated, and unreliable for the purposes of § 3B1.1. This

assertion is without basis in fact and it was not clear error for

the district judge to rely on Oyewuwo’s testimony. See Gonzalez

, 76 F.3d at 1345.

28 the offense charged, but by the parameters of the underlying scheme

itself. United States v. Mir , 919 F.2d 940, 945 (5th Cir. 1990).

Based o n this definition of transaction, “Charlie,” “Wale,”

and “Stone” qualify as transactional participants under § 3B1.1.

While the three individuals may not have been tied to any of the

counts on which Ismoila was convicted, they w ere participants in

the underlying scheme itself. S ee Mir

, 919 F.2d at 945. And

although there is no direct evidence that “Charlie,” “Wale,” and

“Stone” took orders from Ismoila, this can be inferred from the

available evidence. See Gonzalez , 76 F.3d at 1345.

Oyewuwo also identified other individuals who participated in

the conspiracy under Ismoila’s leadership. Oyewuwo testified that

Ismoila instructed him to set up a busine ss known as Atom Auto &

Repair, for the purpose of accepting fraudulent credit cards. He

also stated that Ismoila arranged for Grace Eyikogbe, a fugitive at

time of trial, to open bank accounts for Main Check Cashing, one of

the businesse s that processed fraudulent credit cards. Such

testimony est ablishes that Ismoila was in fact a leader or

organizer of a criminal activity that involved five or more

participants. 9

B. Intended Loss Versus Actual Loss

Ismoila argues that in assessing his offense level under1 0 In arriving at its figures, the Government did not include

all of the attempted charges on each specific card, only the

highest one. Often, participants in this scheme would process a

credit card through the point-of-sale terminal, only to have that

fraudulent sale be rejected. The participant would then use that

same card, but with a lesser dollar amount. The Government asserts

that in its calculations, it used only the highest attempt per credit card, and not every failed attempt.

29 U.S.S. G. § 2F1.1, the district court erred by holding him

accountable for intended loss instead of actual loss. We affirm.

In the PSR, the probation officer recommended a seven-level

increase for Ismoila’s specific offense characteristics under

U.S.S.G. § 2F1.1(b)(1)(H), based on a loss of $146,245. The

Government o bjected to this calculation, asserting that the

probation officer failed to include the intended loss in its loss

calculation. The intended loss consisted of credit card charges of

$85,203 and $6,200 that were attempted at Atom Auto and Main Check

Cashing--charges that the credit card companies declined to

process. With the inclusion of the attempted charges, the total

loss amount is $237,648, resulting in an eight-level increa se,

under § 2F1.1(b)(1)(i). 10 At the sentencing hearing, Ismoila

objected to the Government’s objection to the PSR.

Loss determinations are reviewed for clear error; as long as

the determination is plausible in light of the record as a whole,

clear error does not exist. U nited States v. Sowels

, 998 F.2d 249,

251 (5th Cir. 1993), cert. denied

, 114 S. Ct. 1076 (1994). In

addition, the loss “‘need not be determined with precision. The

court need only make a reasonable estimate of the loss, given the

available information.’” United States v. Chappell , 6 F.3d 1095,30

1101 (5th Cir. 1993) ( quoting U.S.S.G. § 2F1.1 cmt. 8), cert.

denied

, 114 S. Ct. 1232, 114 S. Ct. 1235 (1994). Further, comment

7 to § 2F1.1 states that “if an intended loss that the defendant

was attempting to inflict can be determined, this figure will be

used if it is greater than the actual loss.” U.S.S.G. § 2F1.1 cmt.

7; see also Chappell , 6 F.3d at 1101. The Government was able to

determine the intended loss, which was greater than the actual

loss, and therefore the district court’s sentencing determination

based on the attempted loss was correct.

Ismoila relies on Sowels for the proposition that intended

loss calculation for stolen credit cards is det ermined by the

maximum available credit limit on each card because that is the

amount of loss for which the cardholder i s at risk. S owels

, 998

F.2d 251-52. Ismoila contends that the charges were declined

because they were in excess of the credit card limit, and thus the

cardholder was not exposed to such a large loss. See also United

States v. Wimbish , 980 F.2d 312, 315 (5th Cir. 1992) (calculating

the loss value of stolen and forged checks as the entire face value

of those checks, and not the actual amount obtained, because the

defendant put his victims at ris k for the whole amount of the

check), cert. denied , 113 S. Ct. 2365 (1993).

Sowels

, however, ac tually holds that available credit limit

can be used as a measure of loss when the credit cards were stolen

but not used

. S ee Sowels

, 998 F.2d at 252 (“[T]his case is unique

because it involves an uncompleted offense.”). By basing its loss

calcul ation on the available credit limit, the S owels Court31

satisfied the dictates of comment 7 to § 2F1.1, which states that

intended loss will be used if it can be determined. Available

credit is simp ly one way of determining intended loss. In this

case, however, Ismoila actually attempted to make charges with the

credit cards, and using the dollar amounts of the attempted charges

is more accurate than using maximum available credit in determining

the loss that Ismoila intended to inflict. C f. Chappell

, 6 F.3d at

1101 (determining the intended loss of fifty-one blank checks to be

the average of the value of the checks actually recovered). The

fact that the victims were not at risk for the charges above their

credit limit is not dispositive. The intent of Ismoila is

critical, however, as the plain language of comment 7 makes clear.

He intended his victims to suffer losses equal to a total of

$237,648. He should not be rewarded because some of the charges

were over the available credit limit. S ee United States v.

Robinson

, 94 F.3d 1325, 1328 (9th Cir. 1996) (stating that “§ 2F1.1

does not require the loss the defendant intended to inflict be

realistically possible”); cf. United States v. Brown

, 7 F.3d 1155,

1159 (5th Cir. 1993) (finding that intended loss inclu ded two

$2,000 checks that the defendant did not cash due to police

vigilance because defendant “should not be rewarded simply because

law enforcement officials thwarted his plans”). The district

court’s inclusion of intended loss was not error.

C. Obstruction of Justice and Upward Departure

The district court increased Ismoila’s total offense level by

four levels--two for obstruction of justice under § 3C1.1 and two32

by upward departure under § 5K2.0--because Ismoila and his wife hid

a co-defendant, Grace Eyikogb e, during trial and because Ismoila

advised Eyikogbe to flee. Ismoila asserts that the evidence is

insufficient to support the two-l evel obstruction of justice

enhancement, and departing upward by two additional levels was

error, because his conduct was not substantially in excess of that

which is ordinarily involved in the offense and because the

Guidelines already take such conduct into account. We disagree.

1. Obstruction of Justice

We review for clear error. U nited States v. Storm

, 36 F.3 d

1289, 1295 (5th Cir. 1994), cert. denied , 115 S. Ct. 1798 (1995).

The Government presented evidence that Ismoila and his wife,

Tayo Ismail, hid Grace Eyikogbe at their home while Ismoila was in

jail during the trial. After the trial, FBI agents found Eyikogbe

and Ismail hiding in the attic of Ismoila’s house, and Ismail was

subsequently charged with harboring a fugitive. As part of Tayo

Ismail’s plea agreement, the Government questioned her under oath

and presented t h is testimony at Ismoila’s sentencing hearing.

Ismail testified that when Ismoila called her at home from jail,

she told him that Eyikogbe was present at Ismoila’s home. Ismail

further stated that Ismoila told her to place Eyikogbe into a motel

because he could be criminally charged for having Eyikogbe at his

house. Ismail’s testimony was bolstered by telephone records

produced by the Government confirming that Ismoila had indeed

called home while he was in jail. Ismoila contends that it is

hardly unusual for a person who is jailed to call home and that his33

wif e’s testimony does not establish that he obstructed justice,

only that he knew that Eyikogbe was present at his home.

The district court properly enhanced Ismoila’s sentence. The

PSR concluded, and the evidence at th e sentencing hearing shows,

that Ismoila knew that his co-defendant, a fugitive, was present in

his home during the trial. This evidence is certainly enough to

support a two-level enhancement for obstruction of justice.

2. Upward Departure

In addition to the two-level enhancement pursuant to § 3C1.1,

the sentencing court departed upward an additional two levels

pursuant to U.S.S.G. §§ 5K2.0 and 5K2.2. “We employ an abuse of

discr etion standard when reviewing the process used by the trial

court in sentencing.” U nited States v. W ylie , 919 F.2d 969, 980

(5th Cir. 1990). We review a district court’s decision to depart

from the guidelines for abuse of discretion, and such a departure

will be upheld if the district court provided acceptable reasons

for the departure and if the extent of the departure was

reasonable. United States v. Rosogie , 21 F.3d 632, 634 (5th Cir.

1994). The reasons given by the trial court are findings of fact,

which we review for clear error. Id.

A court may depart even if the factor is taken into

consideration by the guidelines, “only if the factor is present to

a degree subs tantially in excess of that which ordinarily is

i nvolved in the offense.” U.S.S.G. § 5K2.0. This Court has

developed a two-pronged t est to determine whether a departure is

justified: (1) whether the circumstances were considered by the1 1 Ismoila also asserts that the district court failed to give

him adequate opportunity to present information regarding the fourlevel increase for obstruction of justice and upward departure, as required by U.S.S.G. § 6A1.3(a). Ismoila claims that he was not

given notice of the Government’s intention to tender exhibits at

34 guidelines, and (2) whether the circumstances are of a sufficient

magnitude and have a basis in fact. Wylie , 919 F.2d at 980.

The Government argues that the obstruction of justice

enhancements in the guidelines do not take into account the

seriousness of Ismoila’s offense because Ismoila actually

obstructed justice in two ways: (1) harboring a fugitive coconspirator, and (2) urging her to flee the Houston are a. The

Government also contends that hiding Eyikogbe was suc h a serious

infraction as to warrant departure because it allowed Ismoila to

present a defense at trial that blamed Eyikogbe, all the while he

was concealing her in his house. Ismoila, on the contrary, asserts

that the § 3C1.1 of the guidelines adequately punish him for

obstruction of justice.

The facts discussed above are adequate to support a two-level

upward enhancement. S ee Rosogie

, 21 F.3d at 634 (departing upward

because the guidelines did not adequately account for defendant’s

criminal history and use of aliases); United States v. Ba rakett

,

994 F.2d 1107, 1112-13 (5th Cir. 1993) (departing upward on bank

f raud convictions because of the extended time period over which

the fraud occurred, the large number of victims, and the

substantia l amount of planning), c ert. denied

, 114 S. Ct. 701

(1994). Reliance on these facts was not clearly erroneous, and the

district court did not abuse its discretion. 11the sentencing hearing. Because Ismoila failed to make this

objection at trial, we will affirm absent plain error. U nited

States v. Calverley , 37 F.3d 160, 162 (5th Cir. 1994) (en banc),

cert. denied , 115 S. Ct. 1266 (1995).

Ismoila’s position is without meri t. The PSR and the

Government’s evidence at sentencing supported the four-level

increase. Ismoila received the initial PSR, which recommended a

two-level obstruction of justice enhancement based upon Ismoila’s

concealment of Eyikogbe, on May 7, 1993, almost six weeks before

the date of sentencing. He had two opportunities to present

objections to the PSR, in writing prior to the sentencing hearing

and orally at the hea ring itself. U nited States v. Mueller

, 902

F.2d 336, 346 (5th Cir. 1990). On May 20, 1993--approximately four

weeks before the sentencing hearing-- t he Government filed its

objections to the PSR, in which it stated that it was prepared to

prove at sentencing that Ismoila both harbored Eyikogbe and

encouraged Eyikogbe and Oyewuwo to flee the Houston area and that

it would seek a two-level upward departure. Furthermore, the

Government stated that it had telephone records showing that

Ismoila called home after his arrest. On May 24, 1993--over three

weeks before sentencing--Ismoila’s wife testified under oath that

she told Ismoila that Eyikogbe was present at thei r house. The

record thus shows that Ismoila had am ple opportunity to present

information to the court.

Ismoila’s claim that the court failed to issue findings of fact

before the sentencing hearing as required by § 6A1.3(b) and Fed. R.

Crim. P. 32 is similarly without merit. Rule 32 does require the

court to resolved disputed issues of fact, but the sentencing court

made sufficient findings to support its decision. Fed. R. Crim. P.

32(c)(3); Mueller , 902 F.2d at 346. Although the court did not

issue these factual findings before sentencing, the PSR forms the

factual basis for the sentencing decision. M ueller

, 902 F.2d at

346.

35 D. Restitution

Ismoila also asserts that the district court erred by ordering

him to pay $111,008 in restitution arguing that it failed to

resolve all factual disputes regardin g the amount of restitution

pursuant to Fed. R. Crim. P. 32; failed to consider his indigence

pursuant to § 3664(a); and incorrectly held him jointly and

severally liable for the entire amount of loss. None of these

claims has merit.

First, the factual findings b y the district court were36

sufficient because the court adopted the findings of the PSR, which

expressly evaluated Ismoila’s financial condition. United States

v. Thomas

, 13 F.3d 151, 153 (5th Cir. 1994). The court ordered

restitution in the amount of $111,008, the same figure recommended

by the PSR.

Second, as a participant in a conspiracy, Ismoila “is legally

liable for all the actions of her co-conspirators in furtherance of

this crime.” U nited States v. Chaney

, 964 F.2d 437, 453 (5th Cir.

1992). The district court was therefore well within its discretion

to order restitution for the losses resulting from the entire

fraudulent scheme and not merely the losses directly attributable

to Ismoila’s actions. Id. ; United States v. All Star Industries

,

962 F.2d 465, 478 (5th Cir.), cert. denied

, 113 S. Ct. 377 (1992).

V. THE JURY CHARGE

The district court charged the jury that they must find that

Ismoila “knowingly created a scheme to defraud.” Ismoila asserts

that this instruction omitted an essential element of wire fraud by

using the word “knowingly” instead of “willfully.” We disagree.

Ismoila relies on U nited States v. Mekjian

, 505 F.2d 13 20,

1 324 (5th Cir. 1975), a case in which this Court revers ed a

conviction on the ground that the word “willfully” was omitted from

the indictment and that the word “knowingly” was not an adequate

substitute. Id. However, the statute at issue in Mekjian was 18

U.S.C. § 1001, which by its terms requires a mens rea of both

“knowingly” and “willfully.” I d. at 1322 n.1. The wire fraud

statute, 18 U.S.C. § 1343, does not specifically mention an intent37

element, but this Court has held that the “requisite intent to

defraud under § 1343 exists if the defendant acts ‘knowingly and

with the specific intent to deceive.’” United States v. Keller

, 14

F.3d 1051, 1056 (5th Cir. 1994) ( quoting United States v. St.

Gelais

, 9 52 F.2d 90, 96 (5th Cir.), c ert. denied

, 113 S. Ct. 439

(1992)). In this case, the district court instructed the jury that

it must find that the defendant acted “knowingly

. . . with a

specific intent to commit fraud,” a charge that is nearly identical

to that set forth in Kell er . The jury instruction was therefore

entirely proper.

VI. THE REMAINING ISSUES

Ismoila also raises the foll owing issues: (1) that the

district court erred by admitting into ev idence the testimony of

Roxanne Sebring, the FBI financial analyst who summarized the bank

account evidence; (2) that the statements made by the prosecutor in

the Government’s clos ing argument undermined his right to a fair

trial; (3) that the district court er red by failing to give a

specific unanimity instruction regarding the conspiracy count; (4)

that the $2,800 seized from him upon his arrest be returned to him;

(5) that his alien registration card be returned to him; and (6)

that his restitution obligation be stayed.

We do not discuss these issues because they are wholly without

merit.

AFFIRMED IN PART, REVERSED AND VACATED IN PART, and RENDERED.