                    Case: 11-14699         Date Filed: 10/16/2012   Page: 1 of 5

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                       Nos. 11-14699 & 12-12285
                                        Non-Argument Calendar
                                      ________________________

                          D.C. Docket No. 4:10-cr-00218-WTM-GRS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

NIURKA RASCO,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                          Appeals from the United States District Court
                              for the Southern District of Georgia
                                 ________________________

                                           (October 16, 2012)

Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

         Prior to her trial on a charge of conspiring with her husband to commit
                  Case: 11-14699      Date Filed: 10/16/2012      Page: 2 of 5

health care fraud in violation of 18 U.S.C. § 1349, Niurka Rasco pled guilty to an

information charging her with violating Medicare assignment terms under 42

U.S.C. § 1320a-7b(3).1 On September 28, 2011, the District Court sentenced

Rasco to three-years’ probation. The conditions of probation required that Rasco

“shall answer truthfully all inquiries by the probation officer and follow the

instructions of the probation officer “ and “shall work regularly at a lawful

occupation, unless excused by the probation officer for schooling, training, or

other acceptable reasons.”

           In No. 11-14699, Rasco appeals the District Court’s judgment, arguing that

the District Court erred in requiring her to work as a condition of probation and in

delegating to the probation officer the ministerial authority to excuse her from that

work for “schooling, training, or other acceptable reasons.” Such delegation, she

contends, constituted an unlawful delegation of a judicial function to a probation

officer.

       Following the District Court’s imposition of sentence, Rasco did not object

to the sentence for the reasons she now presents as arguments for reversal. We



       1
         The charge was that Rasco knowingly violated the terms of assignment in connection
with a medical clinic, United Medical, by filing documents with Medicare on behalf of United
Medical in which she fraudulently identified herself as the sole owner of the firm, whereas her
husband was the true owner.

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therefore consider them under the plain error doctrine. Rasco points to no case

which would have informed the District Court that the conditions of probation she

now challenges could not lawfully be imposed. Rasco has therefore failed to

establish plain error and thus a basis for reversing the District Court’s judgment.

      In March 2012, the Probation Officer notified the District Court that Rasco

had violated the conditions of her probation. On April 11, 2012, the court held a

revocation hearing and concluded that Rasco

      violated the terms and conditions of probation by repeatedly failing to
      follow instructions of the probation officers, by failing to gain any
      gainful employment and by failing to work, by failing to take the
      responsibility on herself to have the mental health evaluation that the
      Court ordered in this case, and by failing to generally respect the
      order of this Court placing her on probation and the conditions of that
      order; and also, as a result of her continued insistence of innocence in
      this case, by generally failing in every respect to cooperate with the
      United States Probation Office . . ., and maintaining a constant
      disrespectful attitude toward the whole process.


The court therefore revoked Rasco’s probation and sentenced her to prison for

three months. In No. 12-12285, she appeals the revocation and sentence she

received.2 We find no merit in the appeal.

      Rasco presents three arguments for reversal: (1) the District Court erred in

admitting an absent witness’s hearsay statements made during the revocation


      2
          Rasco was admitted to bail pending the resolution of these consolidated appeals.

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hearing without conducting the confrontation balancing test required by United

States v. Frazier, 26 F.3d 110 (11th Cir. 1994); (2) the court erred, and thus denied

Rasco due process of law, in relying on facts conceded by her attorney at the

revocation hearing regarding her involvement in the underlying health care fraud;

and and (3) the evidence was insufficient to revoke her probation. Rasco did not

raise arguments (1) and (2) in the District Court; thus, we consider them for plain

error.

         Rasco’s first point is based on testimony Probation Officer Brownstein gave

at the revocation hearing. Officer Weber supervised Rasco, but did not attend the

hearing.3 Brownstein, Weber’s supervisor, informed the court, over Rasco’s

hearsay objection, what Weber had told him about her supervision of Rasco.

Brownstein, as part of his supervision of Weber, discussed Rasco’ behavior with

Weber on numerous occasions. Those discussions focused on Weber’s difficulties

in getting Rasco to comply with the conditions of her probation. Brownstein’s

testimony was consistent with the Probation Office’s initial report to the court.

Rasco has never contended that the hearsay statements were false or unreliable; we

therefore conclude that the court’s Frazier error was harmless.



         3
             Weber had been in an auto accident and was unable to attend the hearing.


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      Rasco’s second point is meritless. Rasco cites no case that would have

informed the court that it could not rely on counsel’s representations. Rasco’s

third point also lacks merit. The evidence established that, from the start of her

supervison, Rasco repeatedly refused to follow the instructions of her probation

officer—she refused to obtain a mental health evaluation, made little or no effort

to find a job, declined to give account of her finances, and otherwise failed to live

up to the obligations the conditions of probation imposed.

      The judgments in Appeals Nos. 11-14699 and 12-12285 are

      AFFIRMED.




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