On February 23, 1999, a grand jury charged that Ah Reza Dadi, Homa Dadi (his sister) and Siamak Mackvandian entered into an agreement among themselves and others to execute a scheme to defraud federally insured financial institutions. Dadi was convicted and sentenced to serve 84 months in prison. He appeals and we affirm.
7. Factual and Procedural Background
The 17-count superseding indictment charged Ali Reza Dadi with one count of conspiracy, in violation of 18 U.S.C. § 371; one count of aiding and abetting bank fraud, in violation of 18 U.S.C. § 1344; and 15 counts of aiding and abetting the conduct of monetary transactions with criminally derived property, in violation of 18 U.S.C. § 1957. A jury trial was held in the Southern District of Texas, Houston *948 Division, and on March 26, 1999, the jury found Dadi guilty on all counts. On April 16, the district court denied Dadi’s post-verdict motion for a judgment of acquittal and then ordered the preparation of a pre-sentence investigation report (PSR). In carrying out that task, the probation officer grouped the offenses and based Dadi’s offense level on the Sentencing Guideline applicable to a violation of the money laundering statute, 18 U.S.C. § 1957. Under that Guideline, Dadi’s base offense level was 17. Four levels were then added under U.S.S.G. § 2S1.2(b)(2) for the amount of money derived from the bank fraud (more than $600,000). Four additional levels were added since Dadi was an organizer or leader in the offense which involved more than five participants. See U.S.S.G. § 3Bl.l(a).
In addition, Dadi had four prior convictions, giving him six criminal history points. Further, because Dadi committed this offense while awaiting designation to a prison facility on a prior obstruction of justice conviction, two more points were added to his criminal history score under U.S.S.G. § 4Al.l(d). Given his offense level of 25 and criminal history category of IV (based on his eight criminal history points), Dadi’s imprisonment range was 84 to-105 months.
Before sentencing, the government filed a notice of intent to enhance the sentence for committing the offense while on release on another offense (18 U.S.C. § 3147 and U.S.S.G. § 2J1.7) but the district court rejected this enhancement. On July 12, the district court sentenced Dadi to serve 84 months in prison, followed by a five-year term of supervised release. The court also ordered Dadi to pay $161,239 in restitution and $1,700 in special assessments. The clerk entered a notice of appeal on Dadi’s behalf, and a federal defender was appointed to represent him on appeal. The government cross-appealed the district court’s rejection of the § 2J1.7 enhancement.
Viewing the facts in the light most favorable to the verdict, we will attempt to describe the multifarious scheme concocted by Dadi and his co-conspirators. They had access to numerous bank accounts into which they deposited counterfeit checks. The various parties to the conspiracy later withdrew funds from these accounts to use for their own benefit. The process began when Dadi persuaded Yvonne and Yvette Reyes, his wife’s cousins, to allow him to use the bank account of their deceased mother, Stella Reyes. Dadi offered to pay the sisters $10,000 for the use of Stella’s account at Texas Commerce Bank. He later deposited a counterfeit check in the amount of $95,728 into that account. That money was later withdrawn, re-routed through the account of one of Dadi’s confederates and then in the form of cash dropped into Dadi’s pocket.
Dadi also deposited counterfeit checks into the bank accounts of Southwest Oil Company and N&M Petrochemical Company, which were maintained at Texas Commerce Bank and Highlands Bank, respectively. Those accounts had been opened by Naser Khayambashi. On May 30, 1997, a counterfeit check for $130,000, drawn on Gillman Auto Group’s account at Nationsbank in North Carolina, was deposited into the Southwest Oil account at Texas Commerce Bank. On June 5, a $77,650 counterfeit Gillman check was deposited into the same account.
A check for $50,000 was later drawn on the Southwest Oil account, payable to Sia-mak Maekvandian, who used the proceeds to purchase a Texas Commerce Bank check for $41,000 payable to Logistic Express. 2 This check was signed by Khay-ambashi. 3 Maekvandian deposited that *949 check into his Logistic Express account at Wells Fargo Bank, and—two days later— issued a check drawn on that account for $30,000, payable to Dadi. Dadi used the proceeds of this check to purchase a Wells Fargo cashier’s check in the amount of $20,500, which he deposited into his Frost National Bank account. Later, Mackvan-dian and Dadi issued a check for $4,000, drawn on the Wells Fargo Logistic Express account, payable to Mackvandian. The proceeds were provided to Dadi.
A check was drawn on the N&M Petrochemical account (into which counterfeit checks had been deposited) for $52,000, payable to Homa Dadi, who deposited the check into her Coastal Banc account. The drawee was designated in Dadi’s handwriting. The following day, Dadi and Homa Dadi issued a cheek drawn on N&M Petrochemical for $40,000, payable to Dadi. Dadi then deposited that amount into his Frost National Bank account. Later, Dadi and Homa Dadi drew a check on Homa Dadi’s Coastal Banc account for $1,500, payable to Dadi.
Dadi issued a check for $9,500, payable to Yvette Reyes. Seven days later, Dadi issued three checks payable to Yvette Reyes: one for $9,000 and two for $16,000. Yvonne and Yvette Reyes used these funds to purchase a house for the use and benefit of Dadi’s family. Dadi and his wife Carmen later sold the house without the knowledge of the Reyes sisters. The following month, a counterfeit check drawn on “Southern Polymer” for $95,728 was deposited into the account of Stella Reyes at the Texas Commerce Bank; Dadi allegedly made this deposit. 4 Later that month, Dadi and Mackvandian issued a check for $42,500, drawn on the Stella Reyes account and payable to Mackvandi-an, who deposited this check into his account at the Frost National Bank. Mackvandian then issued a check drawn on that account payable to “cash” and used the proceeds to purchase a cashier’s check payable to All American Delivery. This check was deposited into Mackvandian’s All American Delivery account at Bank United. Mackvandian later used the proceeds to purchase a cashier’s check for $25,000 payable to Logistic Express and deposited that into the Wells Fargo Bank Logistic Express account. He then drew a $24,500 check on this account and gave the proceeds to Dadi.
The $95,728 deposit into the Stella Reyes account was the basis for the charge of bank fraud. The checks drawn against the counterfeit funds in amounts exceeding $10,000 were the bases for the money laundering violations.
II. Sufficiency of the Evidence
In determining whether the evidence was sufficient to support a conviction, we review all the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
See Jackson v. Virginia,
Dadi first argues that there was insufficient evidence to sustain a conspiracy charge. Under 18 U.S.C. § 371, the government must prove that (1) two or more persons conspired to pursue an unlawful objective; (2) the defendant knew of the unlawful objective and voluntarily agreed to join the conspiracy with the intent to further the objective; and (3) one or more of the members of the conspiracy committed an overt act in furtherance of the objective of the conspiracy.
See United States v. Pettigrew,
Dadi argues that here there was no evidence of an agreement, citing Mackvan-dian’s testimony that there was no agreement to defraud a bank, and that he was unaware that any of the checks involved in the scheme were counterfeit. Dadi also cites the testimony of Yvette Reyes that she never agreed to defraud a bank. But these disclaimers must be weighed against all the evidence of activity from which an unlawful agreement may be inferred.
The government, of course, contends that the evidence indicating a conspiracy outweighs Mackvandian’s and Yvette Reyes’ disclaimers. Several pieces of evidence support this argument: for example, Dadi and Khayambashi had a close relationship; Dadi recommended Khayamba-shi to the Wallis State Bank; Dadi’s fingerprints were found on counterfeit checks drawn on Khayambashi’s account; and checks drawn on that account were passed through Homa Dadi’s account. Dadi assisted Mackvandian and Khayambashi in acquiring bank accounts through which counterfeit checks were later funneled. Mackvandian also admitted at trial that he thought he and Dadi were using other people’s money without their knowledge or consent. And Dadi received a large share of the profits from the transactions involving the counterfeit checks.
In some situations, circumstantial evidence is sufficient to support a finding of fraudulent intent.
See Crowe v. Henry,
Dadi next argues that there was insufficient evidence to show specific intent to defraud a bank or that he voluntarily participated in an agreement to defraud a bank. Under 18 U.S.C. § 1344, the government must prove beyond a reasonable doubt that the defendant “knowing[ly] execute[d] or attempt[ed] to execute a scheme or artifice (1) to defraud a financial institution; or (2) to obtain any property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations or promises.”
Campbell,
*951 The bank fraud charge is premised on the $95,728 check that was deposited in the account of Stella Reyes at the Texas Commerce Bank. Dadi argues that because Mackvandian and Yvette Reyes testified that they never agreed with Dadi to defraud a bank, and because there was no proof that Dadi knew the $95,728 check was counterfeit, there was insufficient evidence of bank fraud. These assertions do nothing to explain what Dadi thought he was doing when he deposited a $95,728 Southern Polymer check he claims he didn’t know was counterfeit, into the bank account of a deceased woman, and later withdrew funds from that account. This evidence is sufficient to persuade a reasonable jury of Dadi’s guilt.
Dadi also disputes the sufficiency of the evidence to support the aiding and abetting charges. To convict under 18 U.S.C. § 1957, the government must prove that “the defendant ‘knowingly engage[d] or attempted] to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity.’”
United States v. Dupre,
Most of the counts at issue involve banking transactions by Mackvandian. Because Mackvandian is implicated as a counterfeiter and as a participant in this scheme, Dadi argues that — to the extent that Maekvandian’s testimony implicated Dadi — Maekvandian’s testimony is not credible. This assertion is unavailing on appeal. The credibility of witnesses is a matter for the jury and its determinations demand deference.
See United States v. Meshack,
Dadi also argues that the only evidence against him is his familial relationships with Homa Dadi, Yvette, Yvonne and Stella. However, Dadi is asking this court to ignore persuasive evidence that he assisted others in procuring bank accounts for the purpose of depositing and withdrawing funds from counterfeit checks. The evidence viewed in the light most favorable to the verdict appears to support an inference that the elements of the aiding and abetting charge were present.
III. The Organizer/Leader Enhancement
This court reviews a district court’s finding that a defendant is an organizer or leader for clear error.
See United States v. Ronning,
The district court concluded that Dadi was an organizer or leader, and therefore added four levels to his base offense level. Under the Sentencing Guidelines, a court may increase a defendant’s conspiracy offense level by four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(a).
Dadi argues that this enhancement is inapplicable because there was no proof that he controlled or influenced anyone involved in the offense.
5
The PSR reeom-
*952
mended the enhancement based, Dadi contends, simply on the fact that Dadi suggested to the others that they commit the offense—a fact that is not sufficient to establish that he exercised control or influence over the others. Even if he was a major participant in the offense, he argues, this is still not enough to justify the enhancement absent some showing of control or influence.
See United States v. Castellone,
Dadi also contends that the offense did not involve five or more participants—another factor required to justify the enhancement. Dadi cites
United States v. Maloof,
Dadi further argues that he could not have been an organizer or leader because he did not receive a larger share of the profits than the other codefendants. Dadi bases this conclusion on the fact that the total loss was found to be $807,100, and Dadi received only $102,500. That Dadi received “only” $102,500 does little for his argument that he was not an organizer or leader, and he does not advance any argument that another scheme participant received a greater share of the profits.
Given Dadi’s weak attacks on the district court finding that he was an organizer or leader, and the wealth of evidence from which such a finding could be inferred, we see no reason to disturb this sentence. It is entirely plausible that—based on the evidence viewed as a whole—a court could conclude that Dadi was an organizer or leader.
IV. Foreseeability of Loss from the Khayambashi Checks
The district court found that the amount of the loss attributable to Dadi was $807,-100. Had the Khayambashi checks been excluded, the total loss attributable to Dadi would have been $95,728. Thus, without the Khayambashi checks, Dadi’s base offense level would have been increased—at most—by only one level (instead of four) under the relevant Sentencing Guidelines. See U.S.S.G. §§ 2S1.2(b)(2); 2Sl.l(b)(2)(B). 7
*953 The losses to be considered were attributed to the $58,000 Yazdanpanah check, the $95,728 Southern Polymer check (deposited into Stella Reyes’ account) and the forged Gillman checks for $130,000, $77,-650, $125,000, $75,750, and $249,972. All these checks were presented for deposit into one of Khayambashi’s accounts (Southwest Oil, N&M Petrochemical or his personal account at the Wallis State Bank). Dadi argues that, even if the evidence was sufficient to convict him, the trial court erred in attributing to him the six checks deposited into Khayambashi’s accounts.
In order to find a defendant accountable for a co-conspirator’s acts, the trial court must expressly find that the acts were reasonably foreseeable to the defendant.
See United States v. Evbuomwan,
Dadi contends that only the $95,728 check should be attributed to him because the other checks were presented for deposit into Khayambashi’s accounts— something not reasonably foreseeable to Dadi. Dadi’s contention is based on the thesis that there was no connection between him and Khayambashi aside from the fact that Dadi “allegedly” referred Khayambashi to the Wallis State Bank. The government did not establish, Dadi argues, that there was an agreement between Dadi and Khayambashi, that—even if there were such an agreement—the Khayambashi checks were within the scope of that agreement, or that the checks were reasonably foreseeable to him.
But see United States v. Sneed,
The government argues that the record supports the foreseeability of these losses, citing the facts that (1) Patricia Mackvan-dian (Mackvandian’s wife) issued a $30,000 check payable to Dadi from an account into which Mackvandian deposited a Khay-ambashi check; (2) the handwriting on a Gillman Properties counterfeit check—deposited into Khayambashi’s Wallis State Bank account—resembled that on other checks prepared by Dadi; and (3) the other checks involved Mike Maharaj, the “mysterious” man with whom Dadi dealt in counterfeit checks, according to Mackvan-dian’s testimony. The government notes that a “common denominator” in the transactions involving these checks was Mike Maharaj. Also, the government argues that the trial testimony traces the proceeds of all these checks back to Dadi.
Dadi argues that, because the amount of the loss was not reasonably foreseeable to him, the trial court erred in attributing that amount to him.
See United States v. Scurlock,
V. Application of the Money Laundering Guideline
Dadi argues that the district court erred in its application of the Sentencing
*954
Guidelines by failing to apply the more lenient fraud guidelines instead of the money laundering guideline. Dadi finds his strongest support from
United States v. Smith,
a Third Circuit opinion in which that court determined that the initial choice of sentencing guideline should be governed by a “heartland” analysis: whether the offense is outside the heartland of the conduct normally punished using a particular guideline.
Here, the district court was required to group the fraud and money laundering offenses because those crimes involved multiple offenses that were linked by a common illegal objective.
See United States v. Leonard,
Dadi correctly notes that a court is authorized to depart downward if the offense falls outside the “heartland” of the conduct for which a Sentencing Guideline was intended. Dadi argues that departure from money laundering and use of the more lenient fraud guideline as a guide is appropriate here. He cites our decision in
United States v. Hemmingson,
in which we held that the district court did not err in applying the fraud guideline where the money laundering offenses did not fall within the heartland of the money laundering guideline.
The cited cases, while interesting, are clearly inapplicable here. They discuss when a downward departure is permissible, i.e., when a reviewing court will decline to interfere with a district court’s decision to depart. But that invokes an entirely different standard from the one applied when a district court declines to depart downward. Because the district court here made no mistake about whether it was permitted to depart downward, we leave the sentence intact.
A decision
not
to depart downward is not subject to review in this circuit.
See Leonard,
We also note that—unlike in Smith— Dadi’s case involves violations that fall within the heartland of a violation of § 1957. In
Smith,
the defendants were involved in an embezzlement/kickback scheme, for which money laundering was incidental, and for which the money laundering guideline was inappropriate.
VI. The Failure to Apply the Enhancement for an Offense Committed while on Release
The government, in a cross-appeal, asserts that the district court should have adjusted Dadi’s offense level under the authority of 18 U.S.C. § 3147, which provides for a sentencing enhancement for offenses committed while on release on another charge. The Sentencing Guidelines implement this statutory provision through § 2J1.7. Under that section:
If an enhancement under 18 U.S.C. § 3147 applies, add 3 levels to the offense level for the offense committed while on release as if this section were a specific offense characteristic contained in the offense guideline for the offense committed while on release.
That Dadi committed this offense while on release on another federal charge is not controverted.
First, we address Dadi’s argument that the cross-appeal should be dismissed because it was not approved by an appropriate authority. Dadi argues that application of this enhancement is impermissible because the government failed to show that it secured personal approval of the Attorney General, the Solicitor General or a Deputy Solicitor General designated by the Solicitor General for this purpose. Therefore, he argues that we must dismiss the cross-appeal.
See United States v. Thibodeaux,
The cross-appeal does fail, however, for lack of adequate notice to Dadi that he would be subject to this enhancement. The government concedes that this enhancement can only be imposed after sufficient notice has been given to the defendant by either the government or the court. Notice must be given at the time of the defendant’s release from custody in order to be deemed sufficient. The government contends that Dadi was given notice on August 26, 1996, when he was released from custody to await the designation of a facility in which to serve his sentence on another criminal charge. But *956 the government failed to offer any evidence of this. The government also argues that the formal notice it issued on June 23, 1999 was sufficient, because Dadi had the opportunity to object to the enhancement.
But such notice is clearly insufficient. This circuit held in
United States v. Onick
that failure by the releasing judge to give the defendant notice of the § 3147 enhancement bars the sentencing judge from applying it later.
The government relies on an Eleventh Circuit case to assert that notice was adequate. In
United States v. Bozza,
VII. Conclusion
For the foregoing reasons, we AFFIRM the decision of the district court.
Notes
. According lo Mackvandian's testimony, Dadi had given him this counterfeit check, and the handwriting on the payable-to line looked like Dadi’s. He also testified that the $9,000 remainder was received in cash, and split between Dadi and him.
. Loretta Wolsey, a lead analyst for the fraud prevention unit of the Chase Bank of Texas, *949 testified that Khayambashi had opened the Southwest Oil Company account. Khayam-bashi also owned N&M Petrochemical. The $53,000 counterfeit check deposited into that account was drawn on one Ebrahim Yazdan-panah's account. Khayambashi was indicted by a Texas grand jury in connection with that counterfeit check.
. Harry Watson, a controller with a company called Southern Polymer, testified that this check was not authentic, and the signatures on the check were forged.
. Dadi cites two cases in which a court of appeals reversed the decision applying the
*952
enhancement because there was no proof that the defendant exercised control over the others involved.
United States v. Mustread,
. In addition, the Guideline is applicable to schemes involving fewer than five participants if the scheme “was otherwise extensive.” U.S.S.G. § 3Bl.l(a). The plausibility of the involvement of five or more participants is therefore buttressed by the clear plausibility that a court could find the scheme to be "otherwise extensive."
. The Guidelines provide for a one-level increase if the loss exceeds $100,000. If it had excluded the Khayambashi checks, the district court may have decided to include other checks attributable to Dadi that it did not consider at sentencing. Dadi concedes that such a calculation could have led to the conclusion that Dadi profited by $102,500 from counterfeit checks totaling $198,728.
. Even if we were to conclude that the district court misapplied the money laundering guideline, the error would arguably be harmless. If the district court had applied the fraud guideline, the total offense level would have been 23, and Dadi would have been subject to an imprisonment range of 70 to 87 months (which would authorize the 84 months to which he was sentenced). However, under that analysis we would have to address Dadi’s argument that, although his 84-month sentence is within that range (but at the high end), that sentence would have been at the low end of the range the court would apply under the money laundering guidelines.
Sea United States v. Tello,
. In
Pierce,
the error was considered harmless because the sentence actually imposed was less severe than the maximum sentence the defendant would have received without the enhancement.
. Because application of the enhancement fails for lack of notice, we need not address the issue on which the district court based its decision: that applying both the criminal history points and the enhancement would be impermissible double counting (two upward adjustments for the same conduct). In
United States v. Franklin,
however, this court held that "double counting is legitimate where a single act is relevant to two dimensions of the Guideline analysis."