[DO NOT PUBLISH]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 BankFirstBIB 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 proposalwriting 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 email 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 followon 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-byestoppel 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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37

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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43

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 

 10The 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.

11Instruction 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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48

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 

 12While 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.

 13Because 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).

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