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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11366
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00507-VMC-MAP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRIS J. MCDONALD, SR.,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 4, 2018)
Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.
PER CURIAM:
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Chris McDonald, Sr., participated in a conspiracy that involved depositing
fraudulently obtained United States Treasury checks into his bank account. A jury
convicted him of one count of conspiracy to commit theft of government funds and
nine counts of theft of government funds, and the district court ordered him to pay
restitution. McDonald appeals those convictions and the restitution order.
I.
In November 2011 McDonald joined a scheme to cash fraudulently obtained
Treasury checks. That scheme began when, a few weeks earlier, Joseph Lugo
agreed to cash Treasury checks for former Tampa Police Department corporal
Jeanette Hevel, who stole them from the Department’s evidence room. To avoid
getting caught, Lugo asked a recent acquaintance of his, Robert Sanders, if Sanders
could cash the checks or knew someone who could. Sanders, like Lugo, wanted
the reward but not the risk. So he called McDonald, for whom he had previously
done handyman work, and asked if McDonald wanted to cash the checks in
exchange for a share of the proceeds. McDonald did. Lugo, Sanders, and
McDonald agreed that each time Hevel gave Lugo a check, Lugo would give it to
McDonald, who would deposit it into his bank account and withdraw the proceeds.
Sanders would get five percent of those proceeds, McDonald would get between
forty and forty-five percent, and Lugo would split the rest with Hevel.
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In November and December 2011, McDonald deposited into his bank
account nine fraudulently obtained Treasury checks that he received from Lugo
totaling $64,924. But Lugo withdrew from the arrangement after McDonald told
him that he deserved a larger share of the proceeds for his key role in the scheme.
Without Lugo in the picture, Sanders and McDonald lost their check supplier.
Sanders and McDonald quickly devised a workaround. They decided to
drive to various Tampa Bay neighborhoods and make offers to cash fraudulently
obtained Treasury checks. The strategy worked. Sanders and McDonald got eight
checks totaling $53,028.35, which McDonald deposited into his bank account in
January and February 2012. Combined with the nine checks that he got from Lugo
in 2011, McDonald deposited a total of seventeen checks totaling $117,952.35.
In December 2015 a federal grand jury indicted McDonald on ten counts:
Count 1 for conspiracy to commit theft of government funds, in violation of 18
U.S.C. § 371, and Counts 2 through 10 for theft of government funds, in violation
of 18 U.S.C. § 641. The bases of Counts 2 through 10 were McDonald’s
November and December 2011 deposits of the nine Treasury checks that he got
from Lugo — one count per deposit. The indictment did not charge McDonald
with making the January or February 2012 deposits.
At trial McDonald did not dispute that he had deposited the fraudulently
obtained Treasury checks into his bank account. His defense, rather, was mistake
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of fact: He contended that he was unaware that the nine checks that he got from
Lugo in 2011 were fraudulently obtained because Lugo and Sanders had tricked
him into believing that they were legitimate.
To undercut that defense, the government introduced McDonald’s bank
account records, which showed that he deposited the nine checks that he got from
Lugo in 2011 and the eight checks that he got with Sanders after Lugo stopped
supplying checks. The government also had a financial investigator from the
Department of Justice testify about a spreadsheet she had created that detailed
McDonald’s banking activity from November 2011 to February 2012. The
spreadsheet showed, among other things, that McDonald deposited into his bank
account seventeen checks totaling $117,952.35; that he withdrew the funds by
using the same methods; the name of the taxpayer who was expecting the check;
and the check’s amount, its number, and its deposit date. And the government had
Sanders testify about how he and McDonald drove to various Tampa Bay
neighborhoods to solicit fraudulently obtained Treasury checks within two days of
their falling out with Lugo. The district court admitted all of that evidence after
finding that it was inextricably intertwined with the charged offenses, but it
provided a limiting instruction to the jury.
Sanders also testified about how McDonald knew that the checks he
received from Lugo in 2011 had been fraudulently obtained. He recounted that
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when he told McDonald that the checks were “fraudulent return checks,”
McDonald responded: “That’s not a problem. We need to make some money.”
Sanders also testified that McDonald had falsely told the branch manager of his
bank that the checks belonged to disabled clients whose houses he was
renovating.1
The jury convicted McDonald on all ten counts, and the district court
sentenced him to twelve months and one day in prison, varying downward from a
guidelines range of twenty-one to twenty-seven months in prison. The district
court also entered a restitution order against McDonald in the amount of
$117,952.35, the total amount of the seventeen fraudulently obtained checks that
he deposited from November 2011 to February 2012. He appeals his convictions
and the restitution order.
II.
McDonald contends that the district court abused its discretion and violated
Federal Rule of Evidence 404(b) when it admitted the documentary and testimonial
evidence related to the eight Treasury checks that he deposited into his bank
account in 2012. McDonald argues that this evidence — the records of his 2012
banking activity, and Sanders’ and the DOJ financial investigator’s testimony
1
The district court also admitted a host of other evidence, including testimony of some of
the taxpayer victims, testimony of a Florida state financial specialist explaining that McDonald
was not licensed to operate a check-cashing business in Florida, and testimony from Hevel
describing the conspiracy.
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about that activity — was inadmissible because it was pure propensity evidence.
We review the district court’s decision to admit that evidence “only for a clear
abuse of discretion.” United States v. Covington, 565 F.3d 1336, 1341 (11th Cir.
2009) (quotation marks omitted).
Rule 404(b) states that while “evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character,” the “evidence may be
admissible for another purpose, such as proving . . . intent.” Fed. R. Evid. 404(b).
But “Rule 404(b) does not exclude evidence that is ‘inextricably intertwined’ with
evidence of the charged offense.” United States v. McNair, 605 F.3d 1152, 1203
(11th Cir. 2010). Evidence is inextricably intertwined if it “is linked in time and
circumstances with the crime charged or . . . is an integral and natural part of the
complete story of the crime.” United States v. Horner, 853 F.3d 1201, 1213 (11th
Cir. 2017).
The evidence related to the eight checks McDonald deposited in 2012 is
inextricably intertwined with the offenses that the indictment charged him with.
See United States v. Ford, 784 F.3d 1386, 1394 (11th Cir. 2015) (concluding that
evidence related to uncharged conduct was inextricably intertwined with charged
conduct because it “concerned fraudulent tax returns that were filed by [the
defendant], during the same time period, and using the same methods”). The
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challenged evidence shows that those checks are the same type of checks that
McDonald was charged with depositing in 2011: Treasury checks. It shows that
McDonald sought to obtain the checks that he deposited in 2012 only two days
after his falling out with Lugo. And it shows that McDonald not only deposited
both sets of checks into the same bank account within weeks of each other, but that
he also used the same methods to withdraw their proceeds. So the temporal and
circumstantial link between the evidence related to the eight checks that McDonald
deposited in 2012 and the charged offenses is strong. The evidence related to the
eight checks that McDonald deposited in 2012 was also admissible to prove intent
under Rule 404(b) because it refuted his defense that he did not intend to commit
the charged offenses. See United States v. Barrington, 648 F.3d 1178, 1186 (11th
Cir. 2011). The district court did not abuse its discretion by admitting the
evidence.2
III.
McDonald also contends that the government failed to present sufficient
evidence at trial to support his convictions for nine counts of theft of government
2
McDonald also contends that the district court should have excluded the evidence
related to the 2012 checks under Rule 403 because its probative value was “substantially
outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. But “in cases where this
Court has found other acts evidence inextricably intertwined with the crimes charged, the Court
has refused to find that the evidence should nonetheless be excluded as unduly prejudicial.”
United States v. McNair, 605 F.3d 1152, 1206 (11th Cir. 2010). And the evidence related to the
2012 checks is much more probative of his intent to commit the charged theft offenses than it is
prejudicial. The district court did not abuse its discretion by refusing to use the “extraordinary
remedy” of Rule 403 exclusion. Covington, 565 F.3d at 1343 (quotation marks omitted).
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funds under § 641. He argues that the evidence did not show that he intended to
steal funds from the government by depositing the fraudulently obtained Treasury
checks into his bank account because he was not “aware that the checks were not
‘good.’”
“We review de novo the sufficiency of the evidence presented at trial, and
we will not disturb a guilty verdict unless, given the evidence in the record, no trier
of fact could have found guilt beyond a reasonable doubt.” United States v. White,
663 F.3d 1207, 1213 (11th Cir. 2011) (quotation marks omitted). When we review
the sufficiency of the evidence, “we look at the record in the light most favorable
to the verdict and draw all reasonable inferences and resolve all questions of
credibility in its favor.” United States v. Hill, 643 F.3d 807, 856 (11th Cir. 2011)
(quotation marks omitted).
To convict McDonald for theft of government funds, the government had to
prove beyond a reasonable doubt that: “(1) the money described in the indictment
belonged to the United States or an agency thereof; (2) [he] appropriated the
property to his own use; and (3) [he] did so knowingly with intent to deprive the
government of the money.” United States v. Wilson, 788 F.3d 1298, 1309 (11th
Cir. 2015). McDonald challenges only the third element, which requires proof that
McDonald “had knowledge of the facts, though not necessarily the law, that made
the taking a conversion.” Id. (quotation marks omitted).
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The evidence was more than sufficient to allow a reasonable jury to find
that McDonald knowingly stole government funds. Sanders testified that
McDonald knew that the Treasury checks that Lugo gave McDonald in 2011 were
fraudulently obtained and that McDonald fabricated a story to the bank manager to
avoid getting caught. See White, 663 F.3d at 1214 (“[T]he extent to which the
parties . . . conceal their bribes is powerful evidence of their corrupt intent.”)
(quotation marks omitted). McDonald sought out and deposited fraudulently
obtained Treasury checks, and he agreed to a forty-five percent cut for cashing
those checks. Plenty of evidence supports the intent element of § 641.
IV.
McDonald also challenges the district court’s decision to order him to pay
restitution in the amount of $117,952.35, a decision that we review only for an
abuse of discretion. Cani v. United States, 331 F.3d 1210, 1212 (11th Cir. 2003).
In his brief he states that the district “court specifically identified [him] and his
case number” in the amended forfeiture order that it entered against Lugo “as being
subject to [its] determination that restitution was being capped” at $88,504.71. So,
McDonald contends, the district court abused its discretion by ordering him to pay
$117,952.35 in restitution instead of $88,504.71.
McDonald’s contention rests on an erroneous reading of the amended
forfeiture order that the district court entered against Lugo and the conflation of
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forfeiture and restitution. The forfeiture order entered in Lugo’s case states, in
relevant part, that Lugo “shall be held liable for an order of forfeiture in the
amount of $20,000. The United States shall not collect more than $88,504.71, in
total, from [Lugo] and any co-conspirators sentenced for the same offense in
United States v. Hevel, . . . United States v. McDonald, . . . and United States v.
Sanders. . . .” 3 That order, which is titled “AMENDED ORDER OF
FORFEITURE,” caps the amount of money that the government can collect from
McDonald and his co-conspirators by way of forfeiture, which is a penalty. It does
not speak to restitution. See United States v. Joseph, 743 F.3d 1350, 1354 (11th
Cir. 2014) (“While restitution seeks to make victims whole by reimbursing them
for their losses, forfeiture is meant to punish the defendant by transferring his ill-
gotten gains to the United States Department of Justice (DOJ).”). The amended
forfeiture order does not, contrary to McDonald’s contention, render the district
court’s decision to enter a restitution order against him that exceeds $88,504.71 an
abuse of discretion.
AFFIRMED.
3
$88,504.71 is the sum of the thirteen checks that Hevel stole from the Tampa Police
Department. McDonald deposited nine of those checks, which totaled $64,924. The district
court entered a forfeiture order in that amount against McDonald. He does not challenge that
order on appeal.
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