[DO NOT PUBLISH]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:

Case: 14-15004 Date Filed: 09/29/2015 Page: 1 of 72 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 o n applications for business loan s 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 c onversation with a

c oconspirator. Antonaras also challenges a jury instruction ab out 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 us e 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, prepar ed 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 natur al . . . account of the crime , . . . [and] complete[d] the story of the crime for the jury.”

Case: 14-15004 Date Filed: 09/29/2015 Page: 2 of 73 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 in clud ed 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 ha d Antonaras prepare false tax return s for Mangra and the Unschulds. Antonaras argues that the Unschulds’ f alse tax return s should have been excluded becaus e they were prepared after the timeframe alleged in the indictment, but th os e returns w ere substantially similar to other false returns that
Antonaras prepared and were admissible to prove that he knowing ly participated in the conspiracy and to refute his defense that someone else applie d his certification stamp t o the returns

. See Fed. R. Evid. 404(b). Antonaras argues that the evidence about Gardner’s and the Unschulds’ returns was unduly prejudicial , but t he 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

Case: 14-15004 Date Filed: 09/29/2015 Page: 3 of 74 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 record ing of a conversation between Antonaras and Gardner. T he recording was admissible under the exception to the hearsay rule for statement s offered aga inst a n opposing party that was made by him i n his individual capacity

. See Fed. R. Evid. 801(d)(2)(A ). Although the two men briefly discuss ed prospective fraudulent loans, the c onversation prove d Antonaras’s involvement in making false return s for the Unschulds, Mangra, and Demayo. See Fed. R. Evid. 404(b). A ntonaras stat e d 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 a dded his name to his brother’s medical practice to obtain a loan , and he was uncomfortable do ing 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 (5 th Cir. 1981),” but Phillips prohibits the admission of a “retrospective statement” by a coconspirator un der 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 ,

Case: 14-15004 Date Filed: 09/29/2015 Page: 4 of 75 but t his argument fails. A defendant is liable for all reasonably foreseeable offenses committed by coco nspirators during and in furtherance of the conspiracy. Pinkerton , 328 U.S. at 645

– 48, 66 S. Ct. at 1183

– 84. Because t he issue of foreseeability is a question for the jury, we affirm the use of a Pinkerton instruction when the evidence wa s 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 U nited States v. Mothersill , 87 F.3d 1214, 121 7 (11th Cir. 1996)

. Antonaras c onspir ed to defraud banks by fraudulently obtaining loans , and it was reasonably foreseeable that his coconspirators would mak e 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 declin ed to impose any restrictions on us ing the returns when given an opportunity to do so

. Demayo t estifie d 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 Mang ra and Saddi discussed obtaining fraudulent loans; and Antonaras exacted a $6,000 commission for referring Mangra
to Saddi. Case: 14-15004 Date Filed: 09/29/2015 Page: 5 of 76 The district court did not abuse its discretion when it enhanced Antonaras’s offense level for use of sophisticated means. Antonara s 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
11 78, 1199 (11th Cir. 2011)

. The district c ourt 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

. ” S ee 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 cr ea t ed stock account statements to substantiate dividends reported on the fals e tax returns; W

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

Case: 14-15004 Date Filed: 09/29/2015 Page: 6 of 77 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. T he 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.” Uni ted 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 im permissible double counting.
We AFFIRM Antonaras’s convictions and sentence. Case: 14-15004 Date Filed: 09/29/2015 Page: 7 of 7