United States v. John Antonaras

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[DO NOT PUBLISH]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
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No. 14-15004
Non-Argument Calendar
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D.C. Docket No. 9:13-cr-80001-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ANTONARAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(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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