           Case: 13-12582   Date Filed: 07/08/2014   Page: 1 of 11




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12582
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:12-cr-00011-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ROBBIE LOUIS REASON,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                               (July 8, 2014)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Robbie Louis Reason appeals his convictions and sentences for conspiracy

to defraud the Government through false claims, in violation of 18 U.S.C. § 286,

and theft of public money, in violation of 18 U.S.C. § 641. Reason’s convictions

arise out of a scheme where he acted as the outside person facilitating a tax-fraud

scheme in which a federal prisoner, using the identifying information of other

prisoners, filed fraudulent tax returns and claimed unwarranted refund checks.

Reason raises several issues on appeal, which we address in turn. After review, we

affirm Reason’s convictions and sentences.

                         I. CONFRONTATION CLAUSE

      Reason first asserts his Sixth Amendment Confrontation Clause rights were

violated. At trial, the Government admitted recorded telephone conversations

between two of Reason’s alleged co-conspirators, as well as the fraudulent tax

returns. Reason contends that, under the Confrontation Clause, the Government

was required to make the speakers and authors of the tax returns available for

cross-examination.

      The Confrontation Clause provides, “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him

. . . .” U.S. Const. amend. VI. The Supreme Court has held that, in addition to

in-court testimony, the Confrontation Clause applies to a “core class of

‘testimonial’” out-of-court statements. Crawford v. Washington, 541 U.S. 36, 51


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(2004). A testimonial statement is inadmissible at trial without the witness’s

presence unless the witness was unavailable to testify and the defendant had a prior

opportunity for cross-examination. Id. at 53-54.

      In Davis v. Washington, 547 U.S. 813, 826-27 (2006), the Supreme Court

explained that, when talking to authorities, a statement intended to establish or

prove some past fact is testimonial, while a statement describing ongoing events

for another purpose is not. The Supreme Court, later explained that a description

of ongoing events did not fall within the Confrontation Clause because the primary

purpose of the statement was not to create a record for trial. Michigan v. Bryant,

131 S. Ct. 1143, 1155 (2011). Relying on Crawford, but before the Supreme Court

decided Bryant, we held the recorded declarations of a co-conspirator during a

conversation between a confidential informant and the co-conspirator arranging a

sale of cocaine was not testimonial. United States v. Underwood, 446 F.3d 1340,

1347 (11th Cir. 2006).

      Reason never objected to the introduction of the recorded conversations or

tax filings on Confrontation Clause grounds, so we review for plain error. See

United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013) (reviewing a claim

of Confrontation Clause error not raised in the district court for plain error).

However, under any standard of review, Reason’s arguments fail. The challenged

conversations took place between two co-conspirators in furtherance of the


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conspiracy. They were plainly not within the “core class of testimonial”

statements contemplated by the Confrontation Clause post-Crawford, as none of

the statements were made with any intention of creating a record for trial. See

Bryant, 131 S. Ct. at 1155. In light of our holding that a similar conversation with

a Government informant does not implicate the Confrontation Clause, a

conversation between two conspirators, neither of whom is working with the

Government, falls even further outside the scope of the Sixth Amendment. See

Underwood, 446 F.3d at 1347. Similarly, nothing about the fraudulently filed tax

returns suggests they were made with any intent that would render them

testimonial.

                         II. PREJUDICIAL TESTIMONY

      Reason next argues the district court erred in allowing a Government witness

to imply that Reason and a co-conspirator spoke in “code words” on recorded

conversations. He argues that the testimony was unduly prejudicial and should

have been excluded under Federal Rule of Evidence 403.

      The Federal Rules of Evidence define “relevant evidence” as evidence that

“has any tendency to make a fact more or less probable,” provided that “the fact is

of consequence in determining the action.” Fed. R. Evid. 401. Generally, relevant

evidence is admissible unless otherwise specified. Fed. R. Evid. 402. Relevant

evidence “may” be excluded “if its probative value is substantially outweighed by


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a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403.

      Reason never objected to the Government witness’s use of the phrase “code

words” at trial, and the district court did not plainly err in allowing the testimony.

See United States v. Smith, 459 F.3d 1276, 1296 (11th Cir. 2006) (reviewing a

claim of evidentiary error raised for the first time on appeal for plain error). When

generally discussing the recorded phone calls, the Government witness testified

that “they tend to speak in code and talk—they’ll say, well, we can’t talk about

that. We have to be careful about talking about this and that.” That statement

referred to conversations among several conspirators, not Reason in particular.

Further, the witness’s explanation that by “code” he meant the speakers were

evasive or indirect on telephone calls that they knew were being recorded was

(1) not very prejudicial, as the conclusion was readily apparent from the portions

of the phone calls played for the jury; and (2) highly probative of the speaker’s

state of mind. Therefore, under Rule 403, the court’s admission of that statement

was not plainly erroneous. See Fed. R. Evid. 403.

      The other instance where the phrase “code words” was used was when the

court, not the Government witness, in response to Reason’s objection that the

witness was speculating about Williams’ intent, explained that, where speakers on


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a recording were being evasive, someone familiar with the conversation could give

their impression of what certain “code words” meant. However, that statement

was made in reference to a specific phone call in which Reason was not involved.

Any implication about the use of code words therefore (1) is outside the scope of

what Reason is arguing on appeal, and (2) carried comparatively little risk of

prejudice to Reason. Accordingly, Reason has not demonstrated any plain error by

the district court under Rule 403.

                               III. LOSS AMOUNT

      Reason next argues the loss amount attributed to him in calculating a

sentence was excessive. He asserts the court’s conclusion was improperly made

without reference to Reason’s role in the conspiracy.

      Where a fraud conviction results in a loss between $2.5 million and $7

million, the Sentencing Guidelines call for an 18-level enhancement. U.S.S.G.

§ 2B1.1(b)(1)(J). In the context of discussing a loss-amount calculation, we have

held a defendant may be held responsible for the reasonably foreseeable acts of his

co-conspirators. United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010).

The district court is required to make an individualized finding regarding the scope

of a particular defendant’s criminal activity. Id. However, where a court

determines the scope of a defendant’s involvement includes the “essence of the

fraud,” it is not required to establish the defendant’s involvement with each


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specific method or instance of fraud. Id. at 1370-71. In Mateos, the defendant was

aware she was part of a scheme to overbill Medicare. The defendant argued that,

while she knew some patients were receiving less medical care than the clinic was

billing Medicare for, she did not know the clinic also billed Medicare for patients

receiving no medical care at all, and therefore should not be held liable for the loss

occasioned from the latter class of patients. The court held it was proper for the

court to attribute the entire intended loss to the defendant whether or not she knew

Medicare claims were submitted on behalf of patients who received no medical

care, as she was aware of the overall goal of the conspiracy—to overbill Medicare.

Id.

      Reason cannot show clear error by the district court. See United States v.

Medina, 485 F.3d 1291, 1297 (11th Cir. 2007) (reviewing loss-amount

determination for clear error). After considering Reason’s objections, the court

adopted the facts contained in the PSI. Reason did not object to the PSI’s assertion

that Reason negotiated the first of the treasury checks. He also did not object to

the PSI’s assertions the scheme’s organizer told Reason to have another

conspirator add signatures to the check and Reason “agreed to cash additional U.S.

Treasury checks.” Those facts were, therefore, admitted for sentencing purposes.

See United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006) (stating the

failure to object to facts found in a presentence investigation report (PSI) renders


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those facts admitted for sentencing purposes). Reason’s awareness he negotiated

one treasury check in someone else’s name, someone other than the named

recipient signed the check, and there would be additional checks was sufficient to

show Reason knew the general nature of the conspiracy—to obtain money from

someone else’s tax returns. The court was not required to inquire into Reason’s

awareness of each individual tax return, as, once Reason was aware of the general

nature of the conspiracy, he could be held accountable for the reasonably

foreseeable intended loss of his co-conspirators. See Mateos, 623 F.3d at 1370-71;

see also U.S.S.G. § 2B1.1, comment. (n.3(A)(iv)) (explaining for purposes of the

guideline, “‘reasonably foreseeable pecuniary harm’ means pecuniary harm that

the defendant knew or, under the circumstances, reasonably should have known,

was a potential result of the offense”). Therefore, it was not error for the district

court to have included the intended return for all nine filings made in its loss

calculation, irrespective of whether Reason was aware of each individual filing.

Accordingly, it did not clearly err in imposing the 18-level enhancement.

                          IV. SOPHISTICATED MEANS

      Reason next argues the court erred in imposing a two-level sophisticated

means increase under U.S.S.G. § 2B1.1(b)(10). He asserts there was no evidence

that any conspirator sought to relocate the scheme to avoid law enforcement, and

there was no evidence the scheme involved otherwise sophisticated means.


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      Where a theft-related offense involves sophisticated means, the offense level

should be increased by two levels. U.S.S.G. § 2B1.1(b)(10)(C). The two-level

enhancement can also apply where the defendant participated in relocating a

fraudulent scheme to another jurisdiction to evade law enforcement or regulatory

officials. U.S.S.G. § 2B1.1(b)(10)(A). The enhancement may apply even where

each individual action by a defendant is not sophisticated, so long as the overall

scheme was sophisticated. United States v. Barrington, 648 F.3d 1178, 1199 (11th

Cir. 2011). We have upheld the sophisticated-means enhancement where the

defendant, in addition to forging documents, had the proceeds of his fraud

transferred to unwitting third parties, who then transferred the money to him.

United States v. Ghertler, 605 F.3d 1256, 1267-68 (11th Cir. 2010).

      The imposition of the sophisticated means enhancement was not clear error.

See Barrington, 648 F.3d at 1198-99 (reviewing a district court’s finding a

defendant used sophisticated means for clear error). The offense involved the

filing of fraudulent tax returns with purportedly legitimate documentation using

real corporation names and employer identification numbers; the use of written

communications, some disguised as legal mail; careful communication to evade

discovery by prison officials; and a plan to launder money through a car

dealership. See United States v. Madoch, 108 F.3d 761, 766 (7th Cir. 1997)

(holding concealment effort were sophisticated enough to warrant the enhancement


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when a defendant created false W-2 forms, phony itemized deductions and

employment records and filed them under the social security numbers of knowing

accomplices and unwitting clients, and had the refund checks mailed to five

different addresses). Reason negotiated the refund check, in excess of $200,000, to

a car dealership to buy a car worth about $10,000. Once the check cleared, Reason

directed the dealership to account for the excess money by writing its own separate

checks to seven different conspirators in the scheme. Reason’s tax scheme was

more complex and demonstrated greater intricacy or planning than a routine tax-

evasion case. See Ghertler, 605 F.3d at 1267-68; United States v. Ambort, 405

F.3d 1109, 1120 (10th Cir. 2005). Accordingly, the district court did not clearly

err in imposing a sophisticated means enhancement.

                         V. OBSTRUCTION OF JUSTICE

      Reason last argues the court erred in imposing a two-level U.S.S.G. § 3C1.1

enhancement for obstruction of justice. The court imposed the enhancement after

concluding that Reason perjured himself when he testified at trial.

      The Sentencing Guidelines provide for a two-level enhancement where a

defendant “willfully obstructed or impeded . . . the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of

conviction” and where the obstructive conduct related to the offense of conviction.

U.S.S.G. § 3C1.1. Perjury, where the perjury regarded a material matter and was


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not due to confusion or mistake, warrants the imposition of the enhancement. Id.

§ 3C1.1, comment. (n.4(B)); see United States v. Williams, 627 F.3d 839, 845

(11th Cir. 2010).

      Here, the district court found that there was “abundant evidence” that

Reason perjured himself during the trial. There was evidence in the Government’s

case that Reason and a co-conspirator had discussed finding “fake dependents” for

Reason so that he would no longer owe the IRS money. In his testimony, Reason

testified he never discussed defrauding the Government. That conflicting

testimony alone was sufficient to show that the district court did not clearly err in

imposing the § 3C1.1 enhancement based on perjured testimony. See Williams,

627 F.3d at 845. Accordingly, the district court did not clearly err in imposing this

enhancement. See id. at 844 (reviewing the factual findings underlying an

obstruction of justice enhancement for clear error).

      AFFIRMED.




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