                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14993         ELEVENTH CIRCUIT
                                                      AUGUST 17, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

            D. C. Docket Nos. 04-20046-CR-UU, 04-21036-CR-UU

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MARITZA VALIENTE,

                                                            Defendant-Appellant.


                         ________________________

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

                               (August 17, 2010)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Maritza Valiente appeals her convictions for conspiracy to defraud the
United States in violation of 18 U.S.C. § 286, and filing false claims against the

United States in violation of 18 U.S.C. § 287. In a separate case, Valiente was also

convicted of making false statements on a passport application in violation of 18

U.S.C. § 1542.1 Both convictions were consolidated for sentencing purposes. On

appeal, Valiente argues that the evidence was insufficient to support her

conviction. Valiente also asserts that the district court erred by allowing hearsay

into evidence at trial. Upon review of the record and consideration of the parties’

briefs, we affirm.

                                    I. BACKGROUND

A. The Crimes

       Valiente owned United Mortgage Financing, Inc. (“United Mortgage”). Eda

Felix owned and operated First Services Corporation (“First Services”). Ela

Melendez owned and operated Alexia Insurance, Tax Services & Check Cashing,

Inc. Between December 1999 and May 2000, Esther Rivera worked for First

Services as a receptionist.

       There are two related conspiracies in this case. Valiente and her


       1
         The district court imposed 60 months of imprisonment on the passport-fraud conviction
to run concurrent with her other sentences. Valiente argues that if this Court reverses her tax-
fraud convictions, then it should also remand her passport-fraud conviction for resentencing.
Because we affirm Valiente’s tax fraud convictions, we find no error that requires a remand for
resentencing on Valiente’s passport fraud conviction.


                                               2
codefendants falsely claimed that individuals were entitled to income tax refunds

based upon their employment at United Mortgage in 1999. However, United

Mortgage never had any employees. Using falsified W-2 forms provided by

Valiente’s United Mortgage company, Felix prepared and filed false IRS1040

Forms at First Services. During early 2000, Rivera also assisted Felix in preparing

and filing false 1040 Forms. Felix, Valiente, and Rivera then distributed the illegal

proceeds of the federal income tax refunds. The second conspiracy mirrored the

activities of the first, the only difference being that Melendez prepared and filed

the false 1040 Forms instead of Felix.

B. The Indictment

      A federal grand jury returned an indictment against Valiente and three

codefendants— Felix, Rivera, and Melendez. In the first conspiracy, Count One of

the indictment charged Valiente, Rivera, and Felix with conspiracy to defraud the

United States in violation of 18 U.S.C. § 286. Count Two of the indictment

charged Valiente with participation in a second conspiracy with Rivera and

Melendez to defraud the United States in violation of 18 U.S.C. § 286. Both

conspiracies served to unjustly enrich the defendants by preparing and filing false

income tax returns. Counts Three to Nine, Eleven and Twelve, charged Valiente

and various codefendants with making false claims against the United States by



                                           3
filing false income tax returns for numerous individuals in violation of 18 U.S.C. §

287.

C. The Trial

1. Agent Hammond’s Investigation and Testimony

       IRS Special Agent Mary Hammond conducted an investigation to uncover

the details of the conspiracy. Agent Hammond found that Valiente paid Felix to

incorporate United Mortgage in July 1999. United Mortgage’s incorporation

documents indicated that (1) United Mortgage’s principal place of business and

mailing address was 6110 Southwest 92nd Avenue, Miami, Florida; (2) Felix was

the company’s registered agent; (3) Valiente was the company’s incorporator and

president; and (4) Valiente signed the Articles of Incorporation. Valiente’s

driver’s license also contained the same address as United Mortgage’s principal

place of business.

       Agent Hammond obtained certified copies of individual income tax returns,

including 8453 Forms and Tax Return Print (“TRPRT”) 1040 Forms. Agent

Hammond explained that when a return is filed electronically, the IRS also requires

the individual to file an 8453 Form which includes the names and signatures of the

taxpayer and tax preparer. When an 8453 Form is not filed, IRS agents have

access to a TRPRT printout of the data that was filed electronically by a taxpayer.



                                          4
The government introduced the 8453 Form and TRPRT printouts, as well as a

summary chart, for the individual tax returns in this case. Agent Hammond

testified that the information contained in each of the tax returns contained similar

information such as: (1) each W-2 Form came from Valiente’s United Mortgage

company, (2) the 1999 individual tax returns were prepared by codefendants Felix

or Melendez, and (3) both Felix and Melendez falsely claimed a tax refund as

United Mortgage employees. R8 at 22, 24–25, 28, 60.

      Agent Hammond further testified that on July 31, 2000, she served a

summons on Valiente’s United Mortgage’s company requesting employee and

payroll records. However, Valiente never provided those records to Agent

Hammond. R8 at 27–29; R10 at 62–63. Valiente then admitted to Agent

Hammond that United Mortgage did not have any employees. Id. Moreover,

United Mortgage did not file any corporate tax returns or tax forms related to any

employees in 1998 or 1999. Agent Hammond then concluded that all of the tax

forms in this case were fraudulent including the W-2 Forms, the tax returns, and

the electronic submissions.

      According to Agent Hammond’s testimony, each of the thirty-two tax

returns was filed electronically, and each taxpayer agreed to a Refund Anticipation

Loan (“RAL”) check. Agent Hammond explained that a RAL check is a



                                           5
short-term consumer loan secured by a taxpayer’s expected tax refund. The RAL

check is designed to offer customers immediate access to their income tax refund.

The tax preparer has a relationship with a bank, here Household Bank, and issues a

check on behalf of the bank to the taxpayer. Once the IRS advances the refund, the

bank is made whole on the loan.

       The government introduced twenty-nine checks as well as a summary chart

describing the RAL checks that were issued. While the taxpayers’ names appeared

on the checks as endorsers, Valiente’s name also appeared on nine of the

checks—(1) on four, her name appeared on the front as the payee and on the back

as the endorser, and (2) on five, her name appeared only on the back as the

endorser—which was uncommon as the check should have contained only the

taxpayer’s name that appeared on the tax return. Valiente deposited eight of the

nine RAL checks into her personal bank accounts—money to which she was not

entitled.

       With regard to the ninth check, Agent Hammond testified that Valiente told

her that she drove her housekeeper, Georgina Sanchez, to First Services to have

Felix prepare a tax return for Sanchez. Later, Valiente drove Sanchez back to First

Services to pick up the RAL check. Valiente then drove Sanchez to Check

Cashing USA to cash the RAL check. Valiente told Agent Hammond that she



                                         6
knew that all the checks were loans based on a taxpayer’s expected income tax

refund from the IRS. R8 at 52–53. Agent Hammond testified that she asked

Valiente about depositing the checks containing her name and signature. Valiente

responded that she deposited the checks and gave some of the money to her

codefendants and some to the actual taxpayer. Valiente kept the remainder for

herself.

       With respect to the other individual tax fraud victims in this case, Valiente

explained to Agent Hammond that some of the alleged taxpayers were relatives of

her codefendants who did not live in Miami.2 However, Valiente could not explain

who signed the checks. Instead, Valiente received the checks from Felix, Rivera,

and Melendez who, incidentally, prepared all of the income tax return paperwork.

       Agent Hammond’s investigation also revealed that Valiente provided Felix

with information about Jorge Garavito, the father of Valiente’s two children. Felix

then prepared a false W-2 Form and a false income tax return for Garavito with

income that he allegedly earned from United Mortgage. However, Garavito was

living in Colombia at the time. Valiente signed and deposited Garavito’s RAL



       2
          The government also called Rosa H. Garcia-Feliciano and Annie J. Alvarez-Gonzalez,
who each testified that (1) they had never traveled to Miami, (2) they never heard of or worked
for United Mortgage, (3) they did not file a United States tax return in 1999, (4) they did not
know Valiente, (5) they did not know that the IRS issued a refund check in each of their names,
and (6) they were not aware that Valiente deposited the checks into her personal account.

                                               7
check into her bank account.3 Agent Hammond found that the total value of the

checks in this case was over $100,000, and further revealed that Valiente deposited

a total of $37,002.15 into her personal bank accounts.

        Additionally, Agent Hammond testified that Rivera told her that she

(Rivera) overheard a conversation between Valiente and Felix in which Valiente

stated that she needed employees to have W-2 Forms. R10 at 76–77. Rivera also

told Agent Hammond that Valiente and Felix had an agreement to prepare false tax

returns and that Valiente typed United Mortgage’s false W-2 Forms at First

Services.

2. Rivera’s Testimony

       Rivera testified on behalf of Valiente. Rivera stated that Valiente visited

First Services two or three times and spoke with Felix. On cross-examination,

Rivera testified that she did not remember whether: (1) she introduced Valiente to

Melendez (2) Valiente owned United Mortgage, (3) Valiente brought W-2 Forms

from United Mortgage to Felix which were prepared by Felix in a back office, or

(4) that she pled guilty to conspiring with Valiente to defraud the United States.

Further, Rivera denied that she agreed to the government’s factual proffer, which


       3
          Agent Hammond testified that a 1099 Form is similar to a W-2 Form, except that there
is no withholding of taxes. If an employer prepares a 1099 Form, they do not prepare a W-2
Form for that employee. According to Valiente, she paid Garavito referral fees for referring
mortgage clients to her, and she issued a 1099 Form to Garavito.

                                               8
states that Valiente and Felix created a scheme to file fraudulent tax returns by

submitting false W-2 Forms from United Mortgage.

      The government, however, introduced Rivera’s plea agreement in which she

pled guilty to conspiring with Valiente and Melendez to defraud the IRS. The

government further showed that Rivera’s plea colloquy detailed the following

statements:

              In early 2000, defendants Valiente and Felix hatched a
              scheme to submit to [the] IRS false W-2 information
              from Valiente’s company, United Mortgage Corporation.
              The scheme had two somewhat overlapping phases, both
              involving the defendant Rivera, who worked for Felix at
              a tax preparation business called First Services and also
              knew Melendez.
R11 at 72.

While Rivera testified that she did not remember anything, the government

proffered this statement as evidence that Rivera agreed with its factual proffer

during her plea colloquy. The government also presented evidence that in 2000

and 2001, Rivera told Agent Hammond that she introduced Valiente to Melendez

because she was upset with Felix for using her (Rivera’s) relatives’ names on false

income tax returns.

      Valiente moved for a judgment of acquittal. The district court denied

Valiente’s motion, finding that all of the evidence demonstrated Valiente’s

knowledge and willful participation in a conspiracy to commit income tax fraud.

                                           9
Subsequently, the jury convicted Valiente on Counts One through Nine, Eleven,

and Twelve.

D. The Sentence

      The Pre-sentence Investigation report (“PSI”) assigned a base offense level

of 15 pursuant to § 2T1.4 for the tax-fraud convictions. The PSI then assessed a

multiple-count adjustment, pursuant to § 3D1.4, resulting in a total offense level of

16. Valiente had 4 criminal-history points, resulting in a criminal history category

of III and an advisory guideline imprisonment range of 27 to 33 months.

      At a consolidated sentencing hearing, the district court imposed an upward

variance and sentenced Valiente to 60 months of imprisonment—60 months as to

each count in the tax-fraud case to run concurrent to her other sentences. This

timely appeal followed.

                                 II. DISCUSSION

A. Sufficiency of the Evidence

      “Sufficiency of the evidence is a question of law that we review de novo.”

United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006) (citation omitted). In

judging the sufficiency of the evidence, we view the evidence in the light most

favorable to the government. Id. at 1193–94 (citation omitted). A conviction must

be affirmed unless “under no reasonable construction of the evidence, could the



                                          10
jury have found [a defendant] guilty beyond a reasonable doubt.” United States v.

Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (per curiam) (citation omitted).

      To establish that a defendant has conspired to defraud the United States

under 18 U.S.C. § 286, the government must prove “the existence of an agreement

to achieve an unlawful objective, the defendant’s knowing and voluntary

participation in the conspiracy, and the commission of an overt act in furtherance

of it.” Gupta, 463 F.3d at 1194 (citation and quotation omitted). “Conspiracy may

be proven by circumstantial evidence and the extent of participation in the

conspiracy or extent of knowledge of details in the conspiracy does not matter if

the proof shows the defendant knew the essential objective of the conspiracy.”

Id. (citation and quotation omitted).

      It is a crime to make or present “to any department or agency [of the United

States], any claim upon or against the United States, or any department or agency

thereof, knowing such claim to be false, fictitious, or fraudulent.” 18 U.S.C. § 287.

      Here, the evidence taken in the light most favorable to the government,

supports the conclusion that an agreement existed between Valiente, Felix and

Melendez to file fraudulent income tax returns, cash the RAL checks, and retain

the illegal proceeds. First, the record shows that Valiente knew the checks she

deposited into her personal account were fraudulently obtained. Valiente also



                                         11
knew that her company did not have any employees, and the company did not file

corporate tax returns or tax forms on behalf of any employees in 1999. Therefore,

when Valiente cashed Garavito’s RAL check, she knew it was based on the

pretense the he worked as a United Mortgage employee, and there were no tax

withholdings for Garavito to justify an income tax refund.

       Second, a reasonable jury could find that Valiente participated in a tax fraud

scheme to help Sanchez obtain an income tax refund.4 Valiente’s overt actions

indicate that she not only associated herself with the tax fraud scheme, but assisted

others in defrauding the government. Lastly, Felix and Melendez gave Valiente

eight fraudulently obtained RAL checks, totaling over $37,000, for deposit into her

personal account which she knew were tax-refund loans issued to other people.5

Importantly, Valiente told Agent Hammond that she and her codefendants agreed

to file the false returns and split the proceeds.

       While Valiente did not directly submit false claims to the IRS, Valiente

conspired with and aided others in defrauding the government. Thus, we find that



       4
         The record shows that Valiente drove Sanchez to First Services to have Felix prepare a
tax return for Sanchez. Valiente also drove Sanchez to Check Cashing USA to cash the
fraudulently obtained RAL check. R8 at 51–52.
       5
         The checks were allegedly endorsed by the taxpayer, and the record shows that Valiente
knew some of the taxpayers were not in Miami to sign the RAL checks. R8 at 53–54.
Furthermore, there is no evidence to indicate that this money was legitimate payment for
services rendered by Valiente.

                                               12
reasonable trier of fact could have concluded that the evidence established

Valiente’s guilt beyond a reasonable doubt under § 287.

      Accordingly, we find that sufficient evidence supports Valiente’s tax fraud

convictions.

B. Hearsay

      Valiente also asserts that the district court erred by allowing the jury to

consider Agent Hammond’s testimony explaining that Rivera made statements to

Agent Hammond that Valiente was an active participant in the scheme to file false

income tax returns with Felix. Valiente argues that such statements are hearsay

and are only admissible to impeach Rivera’s credibility under Federal Rule of

Evidence 613(b). Valiente’s evidentiary challenge based on hearsay is meritless.

      “We review the district court’s ruling on admission of evidence for an abuse

of discretion.” United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

However, Valiente’s failure to object to the government’s introduction of Rivera’s

statements reduces our review for plain error. United States v. Foree, 43 F.3d

1572, 1577 (11th Cir. 1995) (failure to articulate an objection at trial is reviewed

under a plain error standard). To establish plain error, the defendant must

demonstrate that: (1) “there was an error in the lower court’s action,” (2) “that such

error was plain, clear, or obvious,” and (3) “that the error affected substantial



                                           13
rights, i.e. that it was prejudicial and not harmless.” Id. at 1578 (citation and

quotation omitted). Thus, “[a]n erroneous evidentiary ruling will result in reversal

only if the resulting error was not harmless.” United States v. Hands, 184 F.3d

1322, 1329 (11th Cir. 1999).

       Under Federal Rule of Evidence 801(d)(1)(A), a prior statement by a witness

is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to

cross-examination concerning the statement,” and the statement is . . . inconsistent

with the declarant’s testimony, and was given under oath subject to the penalty of

perjury at a trial, hearing, or other proceeding.” Thus, under this rule, prior

inconsistent statements are admissible both to impeach a witness and as substantive

evidence. United States v. Jacoby, 955 F.2d 1527, 1539 (11th Cir. 1992).

       In this case, the district court did not plainly err in admitting Agent

Hammond’s statements about what Rivera told her because they are not hearsay.

The record indicates that, while under oath during her change-of-plea colloquy,

Rivera accepted the government’s factual proffer detailing Valiente’s involvement

in a tax fraud scheme. During the trial, however, Rivera’s testimony purported to

exonerate Valiente which directly contradicted the government’s factual proffer.

Therefore, Rivera’s plea colloquy statement that she was involved in a tax fraud

conspiracy with Valiente to defraud the United States is admissible as a prior



                                            14
inconsistent statement by a witness and as substantive evidence. See Fed. R.

Evid. 801(d)(1)(A); see also Jacoby, 955 F.2d at 1539. In any event, even if an

error occurred, such error was harmless in light of the overwhelming evidence in

the record supporting Valiente’s convictions for conspiracy to commit tax fraud

and making false claims against the United States. See Hands, 184 F.3d at 1329

(explaining that a conviction will not be reversed if the error has no substantial

influence on the outcome).

      Accordingly, we find no reversible error on this claim, and we affirm.

      AFFIRMED.




                                          15
