           Case: 18-10408   Date Filed: 12/06/2018   Page: 1 of 7


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10408
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:17-cr-00042-GAP-DCI-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MCKENZIE CALIXTE,

                                                         Defendant-Appellant.

                      ________________________

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

                            (December 6, 2018)

Before NEWSOM, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      McKenzie Calixte appeals his convictions for conspiracy, in violation of 18

U.S.C. § 371, and theft of government property, in violation of 18 U.S.C. §§ 2 and

641. On appeal, Calixte argues that (1) the district court abused its discretion by

denying his motion to exclude hearsay evidence and (2) that the evidence

presented at trial was insufficient to support the jury’s verdict. We affirm.

      The parties are familiar with the facts; we do not repeat them here except as

necessary.

                                            I

      We review a properly preserved challenge to the admissibility of evidence

for an abuse of discretion. United States v. Gamory, 635 F.3d 480, 492 (11th Cir.

2011). However, evidentiary challenges not raised before the district court are

reviewed for plain error. United States v. Carthen, 906 F.3d 1315, 1320 (11th Cir.

2018). To prevail under the plain-error standard, a defendant must show (1) error,

(2) that is plain, (3) that has affected his substantial rights, and (4) that seriously

affected the fairness of the judicial proceedings. United States v. Jernigan, 341

F.3d 1273, 1280 (11th Cir. 2003). A party properly preserves claims of error “by

informing the court—when the court ruling or order is made or sought—of the

action the party wishes the court to take, or the party’s objection to the court’s

action and the grounds for that objection.” Fed. R. Crim. P. 51(b). An objection to

the admission of evidence must state the specific ground of objection unless it was


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apparent from context. Fed. R. Evid. 103(a)(1)(B). While the admission of co-

conspirator statements is reviewed for abuse of discretion, any factual findings

underpinning the admission are reviewed for clear error. See United States v.

Matthews, 431 F.3d 1296, 1308 (11th Cir. 2005). Explicit factual findings are not

necessary to uphold the admission of co-conspirator statements. See United States

v. Miles, 290 F.3d 1341, 1352 (11th Cir. 2002) (per curiam).

      Hearsay is an out-of-court statement offered for the truth of the matter

asserted. Fed. R. Evid. 801(c). Hearsay is not generally admissible. Fed. R. Evid.

802. However, an out-of-court statement offered against a defendant does not

qualify as hearsay if it was made by a co-conspirator during and in furtherance of a

conspiracy. Fed. R. Evid. 801(d)(2)(E). In order to introduce statements of the co-

conspirator, “the government must prove by a preponderance of the evidence that

(1) a conspiracy existed, (2) the conspiracy included the declarant and the

defendant against whom the statement is offered, and (3) the statement was made

during the course of and in furtherance of the conspiracy.” United States v.

Underwood, 446 F.3d 1340, 1345–46 (11th Cir. 2006).

      In determining the admissibility of co-conspirator statements, the district

court may consider both the co-conspirator’s statements and independent external

evidence. Miles, 290 F.3d at 1351. Co-conspirator statements can be admitted

subject to the government “connecting them up” with sufficient evidence. United


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States v. Hasner, 340 F.3d 1261, 1274 (11th Cir. 2003), cert. denied, 543 U.S. 810

(2004) (quotation marks omitted). We apply a liberal standard in determining

whether a statement is made in furtherance of a conspiracy. Miles, 290 F.3d at

1351. The statement need not be necessary to the conspiracy but must only further

the interests of the conspiracy in some way. Id.

      We reject Calixte’s argument that the district court abused its discretion in

admitting Cuyler’s testimony as to statements made to her by Fox or the

documents containing wage and personal information that Fox gave Cuyler to

prepare false tax returns. The government proved by a preponderance of the

evidence that a conspiracy existed, that Fox, Cuyler, and Calixte were involved in

the conspiracy, and that the statements were made and documents prepared in

furtherance of the conspiracy. Calixte received and controlled more than $164,000

of fraudulently obtained tax refunds, all of which came from tax returns filed by

Fox and Cuyler. He then used those funds for his own benefit. Finally, the

statements and documents admitted by the district court—Cuyler’s testimony about

the conspiracy, her testimony about her involvement preparing fraudulent tax

returns, and the stolen identity-information documents—all went directly to the

furtherance of the conspiracy and thus are admissible.

      The district court also did not plainly err in admitting the fraudulent 2010 tax

returns, the list of names from the health department, or Calixte’s personal bank


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records. The 2010 returns were submitted to show that the 2011 returns matched

and were part of the same, ongoing conspiracy—not to demonstrate that Calixte

was involved in their preparation. The list of names and the personal bank records

are neither co-conspirator nor out-of-court statements; rather, they are documents

prepared by the Department of Health and business records. The district court did

not err in admitting them.

                                         II

      Calixte next claims that the evidence submitted by the government was

insufficient to sustain his conviction. We review challenges to the sufficiency of

the evidence supporting a criminal conviction de novo, “viewing the evidence in

the light most favorable to the government and drawing all reasonable inferences

and credibility choices in favor of the verdict.” United States v. Pierre, 825 F.3d

1183, 1191 (11th Cir. 2016). We will not reverse unless no reasonable trier of fact

could find guilt beyond a reasonable doubt. Id. at 1193.

      To prove guilt of conspiracy to commit an offense against or to defraud the

United States, the government must prove “(1) the existence of an agreement to

achieve an unlawful objective, (2) the defendant’s knowing and voluntary

participation in the conspiracy, and (3) the commission of an overt act in

furtherance of the conspiracy.” 18 U.S.C. § 371; United States v. Hansen, 262

F.3d 1217, 1246 (11th Cir. 2001). An agreement may be proven by direct or


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circumstantial evidence, and a common scheme or plan may be inferred from the

conduct of participants. Id. The government may present circumstantial evidence

to prove a defendant’s knowledge of the scheme. Pierre, 825 F.3d at 1193. The

government does not need to prove that each conspirator participated in all aspects

of the conspiracy, knew every detail, or knew all of the participants. Hansen, 262

F.3d at 1247. A conspirator may be convicted even “if he joined the conspiracy

after its inception and played only a minor role within it.” Id.

      To prove guilt of theft of government property, the government must prove

that (1) the money described in the indictment belonged to the United States,

(2) the defendant appropriated the money for his own use, and (3) the defendant

did so with intent to deprive the government of the money. 18 U.S.C. § 641;

United States v. Wilson, 788 F.3d 1298, 1309 (11th Cir. 2015).

      A statement by the defendant, if disbelieved by the jury, may be considered

as substantive evidence of the defendant’s guilt. United States v. Hughes, 840 F.3d

1368, 1385 (11th Cir. 2016) (quotations and citations omitted). “[T]his principle

applies equally to false exculpatory statements made pre-trial and false exculpatory

statements made on the stand.” Id.

      Here, the government provided sufficient evidence to support the jury’s

verdict that Calixte was guilty of conspiracy and of the substantive offenses of

theft of government property. For example, the government showed that 127


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fraudulently obtained tax refunds were deposited into Calixte’s account within the

span of a month, and that he spent $53,000 of it within nine days of receiving it

before his account was frozen. Ten victims testified that their names and

information were used to obtain refunds in their name, but that they did not know

Calixte or give him permission to file returns on their behalf. Furthermore, the

government’s circumstantial evidence—including Calixte’s false claims to law

enforcement that he filed the fraudulent returns for his clients and reimbursed them

with cashier’s checks—allowed a reasonable juror to infer Calixte’s knowledge of

the scheme beyond a reasonable doubt. Similarly, the jury could have reasonably

inferred that he intended to deprive the government of money because he opened a

bank account that received almost no deposits except fraudulent tax refunds,

withdrew that money and used it for personal expenses, and then lied about his use

of the money when interviewed by authorities. Thus we hold that the evidence

submitted is sufficient to support Calixte’s conviction.

      AFFIRMED.




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