                                                                    [DO NOT PUBLISH]

                     IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                            FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                     U.S.
                             ________________________ ELEVENTH CIRCUIT
                                                          SEP 12, 2011
                                                           JOHN LEY
                                   No. 10-10782              CLERK
                                Non-Argument Calendar
                              ________________________

                        D.C. Docket No. 9:08-cr-80148-DMM-1

UNITED STATES OF AMERICA,

llllllllllllllllll                                              lllPlaintiff-Appellee,


                                         versus


DONALD PLATTEN,
a.k.a. George Donald Platten,

ll                                                lllllllllllllllllllDefendant-Appellant.

                             ________________________

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

                                  (September 12, 2011)

Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Donald Platten appeals his convictions and 262-month total sentence for

(1) conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371

(Count 1); (2) securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff(a)

(Counts 2, 3, 4, 5, 6, 12); (3) conspiracy to commit wire fraud, in violation of 18

U.S.C. § 371 (Count 16); and (4) obstruction of justice in impeding the

administration of internal revenue laws, in violation of 26 U.S.C. § 7212(a)

(Count 17). Platten raises five arguments on appeal. First, he argues that the

district court abused its discretion in allowing two Harvard Learning Centers

(“HLC”) investors to opine as lay witnesses during trial that they would not have

invested in HLC stock had they been aware of Platten’s fraudulent activities.

Second, Platten alleges prosecutorial misconduct, where the prosecutor

commented during opening statement that the promissory notes issued by HLC to

a co-conspirator, Eli Goldshor, included a not-yet-existent corporation as the

debtor, and the government “coached” Goldshor and proffered his false testimony.

Third, Platten contends that the district court violated the Confrontation Clause by

admitting an Internal Revenue Service (“IRS”) form pertaining to his ex-wife

without requiring the government to make the original preparer of the form

available at trial. Fourth, Platten submits that the district court plainly erred in

allowing IRS Special Agent Kevin McCord to “vouch” for Goldshor’s credibility

                                           2
during McCord’s testimony, and that the court abused its discretion in allowing

McCord to opine as a lay witness that Platten’s usage of nominees and straw

persons had impeded the IRS’s efforts to collect taxes. Finally, Platten claims that

the district court clearly erred in finding that there were over 250 “victims” as a

result of Platten’s conduct, which subjected him to a 6-level sentence enhancement

under U.S.S.G. § 2B1.1(b)(2)(C).

                                           I.

      We review for abuse of discretion the district court’s ruling regarding the

admissibility of lay testimony under Fed.R.Evid. 701. United States v. Myers, 972

F.2d 1566, 1576-77 (11th Cir. 1992). Reversal is not warranted where “an error

had no substantial influence on the outcome, and sufficient evidence uninfected by

error supports the verdict.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th

Cir. 1990).

      Under Fed.R.Evid. 701, opinion testimony offered by a lay witness is

admissible when the opinion is “(a) rationally based on the perception of the

witness, and (b) helpful to a clear understanding of the witness’[s] testimony or the

determination of a fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge [under] Rule 702.” Fed.R.Evid. 701. Further, lay

witnesses can opine as to the ultimate issue to be decided by the trier of fact.

                                           3
Fed.R.Evid. 704; see United States v. Dulcio, 441 F.3d 1269, 1274 (11th Cir.

2006) (noting that Rule 704(b)’s bar on ultimate issue applies only to expert

witness testimony and not opinion testimony by lay witnesses).

       The district court did not abuse its discretion in allowing the investors to

opine that they would not have invested in HLC stock had they known of Platten’s

fraudulent activities because their testimony was rationally based on their own

perceptions. The Government properly sought to show the materiality of Platten’s

fraud.1

                                               II.

       We review the district court’s determinations regarding prosecutorial

misconduct de novo because they involve mixed questions of law and fact. United

States v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). Nevertheless, we review

claims that are raised for the first time on appeal for plain error. United States v.

Rahim, 431 F.3d 753, 756 (11th Cir. 2005). Plain error exists if the defendant

satisfies his burden of showing that there was (1) error, (2) that is plain, and

(3) that affects the defendant’s substantial rights in that it affected the outcome of


       1
               To the extent Platten argues that he had no reporting requirements and thus could
not be prosecuted for failure to report, we reject his argument. The Supreme Court has held that
those same statutes under which Platten was prosecuted cover obligations to report to
shareholders under circumstances similar to this case. See Chiarella v. United States, 445 U.S.
222, 230, 100 S. Ct. 1108, 1115 (1980).

                                                4
the trial. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). In

addition, if the first three prongs are satisfied, we have the discretion to remedy the

error if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. Regarding the second prong, we have held that an error cannot

be plain if it is not clear under current law, in that there is no binding precedent

from the Supreme Court or us. United States v. Castro, 455 F.3d 1249, 1253 (11th

Cir. 2006).

      We subject allegations of prosecutorial misconduct to a “two-part test.”

United States v. Obregon, 893 F.2d 1307, 1310 (11th Cir. 1990). The test requires

us to assess (1) whether the challenged statements were improper, and (2) if so,

whether they prejudicially affected the substantial rights of the defendant. Id.

During opening statement, the prosecutor is allowed to characterize the evidence

to be adduced at trial, subject to the jury’s evaluation of the accuracy of the

characterization. United States v. Correa-Arroyave, 721 F.2d 792, 795 (11th Cir.

1983). To establish prosecutorial misconduct based on the use of false witness

testimony, “a defendant must show the prosecutor knowingly used perjured

testimony, or failed to correct what he subsequently learned was false testimony,

and that the falsehood was material.” United States v. McNair, 605 F.3d 1152,

1208 (11th Cir. 2010), cert. denied 131 S. Ct. 1599 (2011). “A defendant’s

                                            5
substantial rights are prejudicially affected when a reasonable probability arises

that, but for the remarks, the outcome of the trial would have been different.”

United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

      Here, the district court did not plainly err because there were no instances of

prosecutorial misconduct below. First, the prosecutor’s opening statement—that

Goldshor could not incur expenses on a company that had not been incorporated

yet—was proper because the government’s primary argument underlying the

securities fraud charges against Platten was that Platten had issued fake

promissory notes to his co-conspirators in order to discharge the nonexistent debt

with shares of HLC stock. Second, the government did not commit misconduct in

eliciting Goldshor’s testimony regarding the promissory notes because the record

does not support the fact that Goldshor testified falsely. Goldshor testified

consistently during both his change of plea hearing and Platten’s trial that

although HLC owed him some money for his services, the actual debt was

significantly less than the purported amounts on the promissory notes.

                                         III.

      We review a district court’s evidentiary rulings for abuse of discretion, and

questions of whether a hearsay statement is “testimonial” for purposes of the Sixth

Amendment de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.

                                          6
2010). Violations of the Confrontation Clause are subject to a harmless error

analysis. Id. at 1229 n.1. A Confrontation Clause violation is harmless if it is

“clear beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.” Id. (quotation omitted).

      The Confrontation Clause of the Sixth Amendment provides that: “In all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington,

the Supreme Court held that the Confrontation Clause bars the admission of the

testimonial statements of a witness who did not appear at trial, unless the witness

was unavailable and the defendant had a prior opportunity to cross-examine him.

541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66 (2004). The Crawford Court

declined to define a “testimonial” statement, but observed generally that business

records are “statements that are by their nature [] not testimonial.” Id. at 56, 124

S. Ct. at 1367. On the other hand, the Crawford Court noted that a testimonial

statement consists of a “solemn declaration or affirmation made for the purpose of

establishing or proving some fact,” namely: (1) “ex-parte in-court testimony or its

functional equivalent”; (2) “extrajudicial statements contained in formalized

testimonial materials, such as affidavits, depositions, prior testimony, or

confessions”; and (3) “statements that were made under circumstances which

                                          7
would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.” Id. at 51-52, 124 S.Ct. at 1364 (quotations and

ellipsis omitted).

      In Davis, the Supreme Court elaborated, in the context of two domestic

violence cases, that:

      Statements are nontestimonial when made in the course of police
      interrogation under circumstances objectively indicating that the
      primary purpose of the interrogation is to enable police assistance to
      meet an ongoing emergency. They are testimonial when the
      circumstances objectively indicate that there is no such ongoing
      emergency, and that the primary purpose of the interrogation is to
      establish or prove past events potentially relevant to later criminal
      prosecution.

547 U.S. at 822, 126 S.Ct. at 2273-74.

      In Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009),

the Supreme Court held that the “certificates of analysis” from a state forensic

analyst showing that the substance seized by the police was cocaine are actually

affidavits whose testimonial nature subject them to a defendant’s rights under the

Confrontation Clause. 557 U.S. at ___, 129 S.Ct. at 2531-32. The Melendez-Diaz

Court held that the certificates are testimonial because they were made under oath

for the purpose of establishing some fact at trial and “under circumstances which

would lead an objective witness reasonably to believe that [they] would be



                                           8
available for use at a later trial.” Id. (quotation omitted). Responding to the

dissent’s charge that the certificates constitute business or public records, the

Melendez-Diaz Court stated that business and public records are “generally

admissible absent confrontation not because they qualify” under a hearsay

exception, but because they are typically nontestimonial statements, “having been

created for the administration of an entity’s affairs and not for the purpose of

establishing or proving some facts at trial.” Id. at ___, 129 S.Ct. at 2539-40; but

see United States v. Naranjo, 634 F.3d 1198, 1213 (11th Cir. 2011) (citing

Crawford and commenting categorically that “[b]usiness records are not

testimonial”).

        Accordingly, after Melendez-Diaz, we have held that standard Immigration

and Naturalization Service (“INS”) I-213 forms completed by an INS agent, which

contained basic biographical information of illegal aliens, are nontestimonial

because the forms were used as a record by the INS in a routine, objective

cataloging of biographical matters. Caraballo, 595 F.3d at 1228-29. Also, we

have held that summary charts prepared by the government showing bank records

and checks in a money-laundering trial are nontestimonial. Naranjo, 634 F.3d at

1213.




                                           9
      Here, we decline to address whether the IRS document regarding Platten’s

ex-wife constitutes a testimonial statement for purposes of the Confrontation

Clause because any error in admitting the document was harmless. The

challenged document reflected additional taxes owed by Cooney, Platten’s ex-

wife, and thus was only tangentially relevant to Platten’s charge and conviction of

obstruction of justice in impeding internal revenue laws.

                                         IV.

      When reviewing a prosecutorial misconduct claim in terms of improper

vouching, we examine whether “(1) the prosecutor placed the prestige of the

government behind the witness by making explicit personal assurances of the

witness’s credibility, or (2) the prosecutor implicitly vouched for the witness’s

credibility by implying that evidence not formally presented to the jury supports

the witness’s testimony.” United States v. Arias-Izquierdo, 449 F.3d 1168,

1177-78 (11th Cir. 2006). A lay witness can offer opinion testimony if the

testimony is (1) rationally based on his perception, (2) helpful, and (3) not based

on scientific, technical, or specialized knowledge. See Fed.R.Evid. 701; (R6 at

745-46, 792-93).

      We review Platten’s vouching argument for plain error because he did not

raise it below. To the extent that McCord lent credence to Goldshor’s testimony,

                                         10
there was no error, let alone plain error, because existing caselaw only prohibits

the prosecutor from vouching for the credibility of witnesses, and does not forbid

a witness from corroborating another's testimony. See Arias-Izquierdo, 449 F.3d

at 1177-78. Further, in the same vein, any error stemming from the alleged

vouching by McCord is not plain because Platten points to no precedent from this

Court or the Supreme Court that supports his contention.

      Turning to Platten’s argument that the district court improperly allowed

witness McCord to give opinion testimony, we reject his argument because

McCord’s testimony was rationally based on his perception, helpful, and not based

on scientific, technical, or specialized knowledge. McCord, as an IRS special

agent who had investigated Platten, properly opined based on his investigation

that none of the stock transactions were conducted under Platten's name because

Platten used nominees and straw persons to disguise his actual taxable income,

which affected the IRS's ability to collect taxes.

                                          V.

      We review the sentencing court’s application of the Sentencing Guidelines

to the facts de novo, and the court’s factual findings for clear error. United States

v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005). “The district court’s factual

findings for purposes of sentencing may be based on, among other things,

                                          11
evidence heard during trial, undisputed statements in the PSI, or evidence

presented during the sentencing hearing.” United States v. Polar, 369 F.3d 1248,

1255 (11th Cir. 2004).

      The applicable guideline section in this case, U.S.S.G. § 2B1.1(b)(2)(C),

provides for a 6-level enhancement if the offense involved “250 or more victims.”

U.S.S.G. § 2B1.1(b)(2)(C). The commentary defines “victims,” in relevant part, as

“any person who sustained any part of the actual loss determined under

[§ 2B1.1(b)(1)].” U.S.S.G. § 2B1.1, comment. (n.1).

      Here, we hold that the district court did not clearly err in adopting the

6-level enhancement under U.S.S.G. § 2B1.1(b)(2)(C), because Platten’s conduct

affected more than 250 victims. Specifically, Oremland testified at trial, and the

parties subsequently stipulated, that there were 441 HLC shareholders who had a

loss of at least $1,000 in HLC stock from a two-year snapshot period during

Platten's conspiracy. Accordingly, because the record establishes that there were

at least 250 investors who had sustained a part of the $750,000 actual loss

attributable to Platten, the district court did not clearly err in adopting the 6-level

enhancement under U.S.S.G. § 2B1.1(b)(2)(C).

      Upon review of the record and the parties’ briefs, we affirm Platten’s

convictions and sentences.

                                           12
AFFIRMED.2




2
    The parties’ request for oral argument is denied.

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