United States v. Cliffort Variste , 625 F. App'x 458 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12722
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20510-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORT VARISTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 31, 2015)
Before HULL, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
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Cliffort Variste appeals from his convictions and 75-month sentence for
access device fraud, in violation of 18 U.S.C. § 1029(a)(2), and aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1). Variste contends (1) the district
court abused its discretion by admitting IRS agent Karyn Calabrese’s testimony
about indicators of fraud on Variste’s tax returns as lay opinion testimony and (2)
the district court clearly erred by concluding Variste’s offense involved more than
fifty victims. As the parties are familiar with the facts, we weave them into the
discussion only as necessary. Upon review, we affirm.
1. Calabrese’s testimony
Calabrese, a special agent with the IRS’s Criminal Investigations unit,
participated in the IRS’s investigation of Variste and reviewed the tax returns filed
under Variste’s electronic filer identification number (EFIN). 1 Calabrese prepared
a summary of some of the information from the returns and testified about several
indicators of fraud she noticed when reviewing them. The district court allowed
Calabrese’s testimony about these fraud indicators as lay opinion testimony under
Federal Rule of Evidence 701. On appeal, Variste argues the district court erred in
allowing Calabrese’s testimony as lay opinion testimony. Variste contends
Calabrese’s testimony was expert testimony and, as such, the district court should
have evaluated its admissibility under Federal Rule of Evidence 702 and the
1
An EFIN is a number assigned by the IRS to a tax preparer that enables the tax preparer
to file multiple returns.
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factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
The district court did not abuse its discretion by admitting Calabrese’s
testimony about indicators of fraud on Variste’s tax returns as lay opinion
testimony under Rule 701. See United States v. Jayyousi, 657 F.3d 1085, 1102
(11th Cir. 2011) (“We review the district court’s ruling regarding the admissibility
of the agent’s lay testimony under Rule 701 for a clear abuse of discretion.”). Rule
701 allows a lay witness to offer opinion testimony if it is “(a) rationally based on
the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” See Fed.
R. Evid. 701.
Calabrese’s testimony satisfied Rule 701’s requirements for lay opinion
testimony. First, her testimony was based on her personal review of the tax returns
filed under Variste’s EFIN. Second, her testimony about the fraud indicators
helped the jury better understand the significance of the commonalities in the tax
returns. Third, Calabrese’s testimony was not the type of specialized testimony
that needed to be admitted under Rule 702 because it was based on a summary of
documents related to the case, the jury could have reviewed the documents itself
and noticed the commonalities among the returns filed under Variste’s EFIN, and
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the opinions given by Calabrese related to the summary that she prepared. See
United States v. Hamaker, 455 F.3d 1316, 1331-32 (11th Cir. 2006) (concluding a
financial analyst from the Federal Bureau of Investigation gave lay testimony when
he summarized thousands of financial documents, compared time sheets to payroll
entries, and testified a fraud victim was billed for work that was performed for
someone else, because “while [the agent’s] expertise and the use of computer
software may have made him more efficient at reviewing [the company’s] records,
his review itself was within the capacity of any reasonable lay person”); see also
United States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011) (“Rule 701 does not
prohibit lay witnesses from testifying based on particularized knowledge gained
from their own personal experiences.”). Therefore, the district court did not abuse
its discretion by admitting Calabrese’s testimony as lay opinion testimony under
Rule 701.
2. Number of Victims
Next, Variste contends the district court erred in applying a four-level
enhancement under United States Sentencing Guidelines (U.S.S.G.)
§ 2B1.1(b)(2)(B) because it found the offense involved more than 50 victims.
According to Variste, the actual number of victims was 44 because his family
members and friends who did not suffer losses and who voluntarily provided their
information to him do not qualify as victims within the meaning of the Guidelines.
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The district court did not err, much less clearly err, in concluding Variste’s
offense involved more than 50 victims. See United States v. Rodriguez, 732 F.3d
1299, 1305 (11th Cir. 2013) (reviewing the district court’s calculation of the
number of victims for clear error). When calculating the number of victims for
fraud offenses involving the unlawful use of others’ means of identification, a
victim is either a person who suffered an actual loss from the offense or a person
“whose means of identification was used unlawfully or without authority.” United
States v. Baldwin, 774 F.3d 711, 735 (11th Cir. 2014) (quoting U.S.S.G. § 2B1.1,
comment. (n. 4(E)). “The district court’s factual findings for purposes of
sentencing may be based on, among other things, evidence heard during trial,
undisputed statements in the PSI, or evidence presented during the sentencing
hearing.” United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006)
(quotation omitted).
Substantial evidence supported the district court’s conclusion that Variste
used means of identification from more than 50 victims without their authority. At
sentencing, Variste conceded that at least 43 of the 52 tax returns filed under his
EFIN were unauthorized returns. Additionally, Variste did not object to paragraph
13 of the PSI, which stated Variste filed at least 17 other fraudulent tax returns
under an unindicted co-conspirators EFIN. See United States v. Shelton, 400 F.3d
1325, 1330 (11th Cir. 2005) (unobjected-to-facts in PSI are deemed admitted).
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Furthermore, Variste did not object to Exhibit 30C, which contained e-mails from
his phone confirming that returns were sent under the co-conspirators EFIN.
Given the totality of the record, the district court did not error, clearly or otherwise,
in concluding there were more than 50 victims.
Accordingly, we AFFIRM Variste’s convictions and sentence.
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