           Case: 14-15004    Date Filed: 09/29/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15004
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:13-cr-80001-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                     versus

JOHN ANTONARAS,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 29, 2015)

Before WILLIAM PRYOR, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      John Antonaras appeals his convictions and sentence of 54 months of

imprisonment for one count of conspiring to commit bank fraud, 18 U.S.C.

§§ 1344, 1349, and five counts of making false statements on applications for

business loans for David Demayo and Michael Mangra, id. § 1014. Antonaras

challenges the admission of evidence about his preparation of false tax returns for

which he was not charged and of a recording of his conversation with a

coconspirator. Antonaras also challenges a jury instruction about liability for

coconspirators’ actions, see Pinkerton v. United States, 328 U.S. 640, 66 S. Ct.

1180 (1946), and the enhancement of his sentence for the use of sophisticated

means, United States Sentencing Guidelines Manual § 2B1.1(b)(10)(C), and, for

the first time, for his use of a special skill, id. § 3B1.3. We affirm.

      The district court did not abuse its discretion when it admitted testimony

from coconspirator Naveen Saddi about false tax returns that Antonaras prepared

for Greg Gardner and for Hal and Helene Unschuld. Antonaras, a certified public

accountant, prepared false tax returns for David Demayo and Michael Mangra as

part of a conspiracy to obtain business loans through a scheme to defraud the

lenders. Saddi’s testimony about false tax returns that Antonaras prepared for

Gardner and the Unschulds explained “the chain of events explaining the context,

motive, and set-up of [Antonaras’s] crime, . . . form[ed] an integral and natural . . .

account of the crime, . . . [and] complete[d] the story of the crime for the jury.”


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United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (quoting United

States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). Saddi, who completed

fraudulent loan applications for the conspiracy, testified that he included Antonaras

in the scheme to defraud after he prepared and signed false tax returns for Gardner

that withstood screening by loan officers. Because Antonaras successfully used a

sophisticated method to allocate inflated income between wages and corporate

distributions, Saddi referred a client, Demayo, to Antonaras. After Demayo also

obtained a business loan, Saddi had Antonaras prepare false tax returns for Mangra

and the Unschulds. Antonaras argues that the Unschulds’ false tax returns should

have been excluded because they were prepared after the timeframe alleged in the

indictment, but those returns were substantially similar to other false returns that

Antonaras prepared and were admissible to prove that he knowingly participated in

the conspiracy and to refute his defense that someone else applied his certification

stamp to the returns. See Fed. R. Evid. 404(b). Antonaras argues that the evidence

about Gardner’s and the Unschulds’ returns was unduly prejudicial, but the district

court eliminated any potential prejudice by instructing the jury during Saddi’s

testimony and at the end of the case that the evidence could only be used “to

decide whether . . . Antonaras had the state of mind or intent necessary . . . [or] a

motive or the opportunity to commit the acts charged; [if] he acted in accordance

with . . . a plan or in preparing to commit a crime; or [if] he committed the acts


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charged in the indictment by accident or mistake.” See United States v. Edouard,

485 F.3d 1324, 1344 (11th Cir. 2007).

      The district court also did not abuse its discretion when it admitted a

recording of a conversation between Antonaras and Gardner. The recording was

admissible under the exception to the hearsay rule for statements offered against an

opposing party that was made by him in his individual capacity. See Fed. R. Evid.

801(d)(2)(A). Although the two men briefly discussed prospective fraudulent

loans, the conversation proved Antonaras’s involvement in making false returns for

the Unschulds, Mangra, and Demayo. See Fed. R. Evid. 404(b). Antonaras stated

that he “[did not] mind . . . doing things for certain clients” like “Mr. Unschuld” by

“do[ing] the numbers to make it work” when “they don’t have the numbers”; he

knew that Mangra added his name to his brother’s medical practice to obtain a

loan, and he was uncomfortable doing business with Demayo. Antonaras argues

that the recording is an “idle conversation between former coconspirators [three

years] after the conspiracy ended that should not have been admitted . . . [under]

United States v. Phillip[s], 664 F.2d 971 (5th Cir. 1981),” but Phillips prohibits the

admission of a “retrospective statement” by a coconspirator under Federal Rule of

Evidence 801(d)(2)(E).

      Antonaras argues that the district court should not have instructed the jury

that he could be vicariously liable for false statements made by his coconspirators,


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but this argument fails. A defendant is liable for all reasonably foreseeable offenses

committed by coconspirators during and in furtherance of the conspiracy.

Pinkerton, 328 U.S. at 645–48, 66 S. Ct. at 1183–84. Because the issue of

foreseeability is a question for the jury, we affirm the use of a Pinkerton instruction

when the evidence was sufficient for a reasonable jury to find beyond a reasonable

doubt that it was a reasonably foreseeable consequence of the conspiracy that a

coconspirator would make a false statement. See United States v. Mothersill, 87

F.3d 1214, 1217 (11th Cir. 1996). Antonaras conspired to defraud banks by

fraudulently obtaining loans, and it was reasonably foreseeable that his

coconspirators would make false statements in furtherance of that scheme.

Antonaras argues that he could not have foreseen that his coconspirators would

reuse false tax returns that he prepared for Demayo and Mangra, but Antonaras

declined to impose any restrictions on using the returns when given an opportunity

to do so. Demayo testified that when he divulged his plan to apply for two loans

and asked if there were limits on using the false tax returns, Antonaras “said he

didn’t care” and it “[d]idn’t matter” to him. And Antonaras referred Mangra to

Saddi; attended a meeting in which Mangra and Saddi discussed obtaining

fraudulent loans; and Antonaras exacted a $6,000 commission for referring Mangra

to Saddi.




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       The district court did not abuse its discretion when it enhanced Antonaras’s

offense level for use of sophisticated means. Antonaras was subject to a two level

increase in his offense level because the conspiracy involved “especially complex

or especially intricate offense conduct . . . to . . . execut[e] or conceal[] . . . [the]

offense.” See U.S.S.G. § 2B1.1(b)(10)(C) & cmt. n.9(B). The conspiracy submitted

fraudulent applications for business loans; created numerous false financial

documents to support the fraudulent applications; modified articles of

incorporation and other business formation documents to add owners with better

credit ratings; opened bank accounts using borrowed funds to prove

creditworthiness; bribed a bank officer to assist in processing and approving the

loans; and laundered the loan proceeds. See United States v. Barrington, 648 F.3d

1178, 1199 (11th Cir. 2011).

       The district court also did not plainly err by enhancing Antonaras’s sentence

for his “use[ of] a special skill[] in a manner that significantly facilitated the

commission or concealment of the offense.” See id. § 3B1.3 & cmt. n.4. Antonaras

used his skills as an accountant to prepare false tax returns that accounted credibly

for the inflated income on the fraudulent loan applications. Antonaras also created

stock account statements to substantiate dividends reported on the false tax returns;

W-2 forms that overstated the incomes of the borrowers; and corporate tax returns,




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balance sheets, and income statements that listed concocted earnings and expenses

to make the businesses eligible for large loans.

      The district court also did not plainly err by applying cumulatively the

sophisticated means and special skill enhancements. The Sentencing Guidelines

state that “enhancements . . . are to be applied cumulatively . . . [a]bsent an

instruction to the contrary,” U.S.S.G. § 1B1.1 cmt. n.4(B). “Impermissible double

counting occurs only when one part of the Guidelines is applied to increase a

defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” United States v.

Flanders, 752 F.3d 1317, 1340 (11th Cir. 2014) (quoting United States v. Webb,

665 F.3d 1380, 1382 (11th Cir. 2012)). Antonaras fails to cite any facts or

authority suggesting that the cumulative application of the enhancements

constitutes impermissible double counting.

      We AFFIRM Antonaras’s convictions and sentence.




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