                   Case: 11-13868          Date Filed: 07/17/2012   Page: 1 of 11

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-13868
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:11-cr-20101-FAM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

ARMANDO SANTOS,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                             (July 17, 2012)

Before BARKETT, FAY and EDMONDSON, Circuit Judges.

PER CURIAM:

         Armando Julio Santos Vasquez (“Santos”) appeals his convictions and 120-
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months’ sentence for conspiracy to commit health care fraud, in violation of 18

U.S.C. § 1349; health care fraud, in violation of 18 U.S.C. § 1347; and making

false statements related to health care matters, in violation of 18 U.S.C. §

1035(a)(2). As to his convictions, Santos argues that the district court abused its

discretion under Fed. R. Crim. P. 15, and violated his Confrontation Clause rights,

by allowing the introduction of a witness’s video deposition testimony at trial,

because he had been unable, through no fault of his own, to effectively

cross-examine the witness during the deposition. He also argues that his 120-

months’ sentence, which is an upward variance from the sentencing guidelines

range of 41 to 51 months, is substantively unreasonable.

                                   I. Background

      The government sought to prove that Santos, a registered nurse, while

working for a Miami-based home health care agency was part of a conspiracy to

fraudulently bill Medicare for medical services that were never provided.

Specifically, the government contended that Santos prepared nursing progress

notes which stated that he had visited and injected homebound patients, Klebe De

La Cruz and Caridad Pizzorno, with insulin twice a day, seven days a week when

in fact he did not. The government presented testimonial and documentary

evidence to establish that neither De La Cruz nor Pizzorno was diabetic and both

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women testified that they did not receive any insulin injections as reported. De La

Cruz also testified that she received $500 a month in cash in exchange for signing

the Medicare forms. Santos testified on his own behalf that he injected the

patients with insulin as indicated on the progress notes. Medicare paid the home

health care agency $20,430 for De La Cruz and $54,010 for Pizzorno for the home

health care services attested to by Santos.

        Just prior to the commencement of Santos’s trial, the government moved to

introduce the video deposition testimony of Pizzorno, in lieu of her in-person

testimony, and that had been taken pre-trial pursuant to Fed. R. Crim. P. 15.

Pizzorno who was elderly, had been suffering from a terminal and incurable form

of liver cancer, and was unable to travel from Ohio for the trial. Santos opposed

the admission of the video deposition, arguing that the government did not give

him, before the deposition, a report from the Federal Bureau of Investigation

(“FBI”) indicating that Pizzorno had failed to identify him in a photographic

lineup as the home health care nurse who treated her, and instead identified

another man as that person.1 He argued that, as a result, he did not have an

opportunity to fully and effectively cross-examine her during the deposition.



        1
          Santos asserts that he did not receive this particular FBI report until the day before the pre-
trial hearing on the government’s motion to use Pizzorno’s video deposition at trial.

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Although Santos conceded that he received, before the deposition, a different FBI

report that mentioned a second photographic lineup, he argued that this report did

not put him on notice to ask Pizzorno about her inability to identify him because it

did not specifically indicate that Santos’s photo was included in that lineup. He

argued that this second FBI report merely noted that Pizzorno “was shown a photo

spread with MES employees but did not recognize any of the photos.” The

government offered to stipulate that Pizzorno failed to identify Santos in two

photographic lineups on two prior occasions.

       After considering the parties’ arguments and the government’s stipulation,

the district court permitted the introduction of Pizzorno’s video deposition

testimony finding that the FBI report that Santos received before the deposition

sufficiently put him on notice to ask Pizzorno about her inability to identify him,

even assuming he had not received the other FBI report. At trial, after the

government played Pizzorno’s video deposition, it read the following stipulation

to the jury:

       The United States of America and the defendant through his
       undersigned counsel stipulate and agree to the following: That on June
       9th, 2009 and January 19th, 2011 agents showed a photographic lineup
       to Caridad Pizzorno, which contained the defendant’s photograph, and
       Ms. Pizzorno was unable to identify the defendant.

                                 II. DISCUSSION

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       Santos argues that because he had not been given, prior to the deposition,

the FBI report in which Pizzorno failed to identify him from the photograph

lineup, the district court abused its discretion under Fed. R. Crim. P. 15(f) and

violated his right to cross-examination under the Confrontation Clause by

admitting the video deposition. He argues that had he been able to cross-exam

Pizzorno as to the FBI report in which she specifically could not identify him, the

jury would have been left with a significantly different impression of her

reliability and credibility.

       The taking of and use of depositions are generally discouraged in criminal

trials because of the factfinder’s inability to observe the demeanor of deposition

witnesses, and because of the threat posed to the defendant’s Confrontation Clause

rights. United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993).

“Nevertheless, the Federal Rules of Criminal Procedure expressly authorize parties

to take depositions and use them at trial, when doing so is necessary to achieve

justice and may be done consistent with the defendant’s constitutional rights.” Id.

at 1551. See also Fed. R. Crim. P. 15(f) (“[A] party may use all or part of a

deposition as provided by the Federal Rules of Evidence.”). Under Federal Rule

of Evidence 804(b)(1), deposition testimony may be admitted when a declarant is

unavailable, the deposition was “taken in compliance with the law,” and the

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defendant “had an opportunity and similar motive to develop the testimony by

direct, cross, or redirect examination” as the defendant would have had at trial.

While district court’s have discretion to rule on the admissibility of evidence, “this

discretion is limited by the guarantee of the Sixth Amendment’s Confrontation

Clause that a criminal defendant has the right to cross-examine prosecutorial

witnesses.” United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009)

(internal quotation marks omitted). “To be sure, the defendant’s right to confront

witnesses is the most important factor to be taken into account in determining

whether to allow the use of a deposition at a criminal trial.” Drogoul, 1 F.3d at

1554. If admission of a deposition would violate the Confrontation Clause, the

district court should exclude the deposition. Id. at 1554–55. The test for the

Confrontation Clause is “whether a reasonable jury would have received a

significantly different impression of the witness’ credibility had counsel pursued

the proposed line of cross-examination.” Maxwell, 579 F.3d at 1296.

      Initially, we cannot say that the district court abused its discretion by

allowing Pizzorno’s video deposition testimony under Fed. R. Crim. P. 15 because

Santos had an opportunity and similar motive to cross-examine Pizzorno during

the deposition, as required by Fed. R. Evid. 804(b)(1). Both Santos and his

attorney were present at the deposition and his attorney questioned Pizzorno

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extensively about her memory loss and health problems, and thus, called into

question her ability to remember him or his treatment of her medical conditions.

Furthermore, although he argues that he did not receive the FBI report that

informed him that Pizzorno previously failed to identify him specifically in a

photographic lineup, he admittedly received the other FBI report that indicated

that she failed to identify MES employees, of which Santos was one. He thus had

the opportunity to question her about this photographic lineup but chose not to do

so. In addition, the jury heard the government’s stipulation that Pizzorno failed to

identify Santos in two photographic lineups on two separate prior occasions.

      However, even if the district court properly admitted the video deposition

testimony under the federal rules of evidence, we must consider whether its

admission nonetheless violated Santos’s Confrontation Clause rights. Santos

argues that his constitutional rights were violated because had he been able to

question Pizzorno about her failure to identify him in the photographic lineup “a

reasonable jury would have received a significantly different impression of [her]

credibility.” Maxwell, 579 F.3d at 1296. He argues that the jury would have had

no reason to believe anything that she testified to had they heard this additional

example of Pizzorno’s failed memory, and therefore, would have believed that his

testimony was the more reliable account of the past events.

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        We, however, need not decide whether the admission of the video

deposition testimony violated Santos’s Confrontation Clause rights because we

conclude that such error, assuming it occurred, was harmless. United States v.

Gari, 572 F.3d 1352, 1361 (11th Cir. 2009) (explaining that Confrontation Clause

errors are subject to harmless error analysis). Harmless error occurs when it is

“beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” Id. at 1362. When making that assessment, reviewing courts

consider a “host of factors” including, “the importance of the witness’ testimony in

the prosecution’s case, whether the testimony was cumulative, the presence or

absence of evidence corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise permitted, and, of

course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986).

        Here, the jury was informed via the stipulation that Pizzorno had not been

able to correctly identify Santos from a photographic lineup on two prior

occasions.2 His attorney also cross-examined Pizzorno extensively during her



        2
          Although Santos argues that this evidence supports his theory that Pizzorno’s memory was
so faulty that the jury would not believe anything she testified to, it is also plausible that a reasonable
jury could believe that the reason Pizzorno failed to identify Santos was because he did not visit her
at her home twice a day, seven days a week over a two month period as he testified that he had.

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deposition about her faulty memory. Thus, the jury was well aware of the

infirmities with Pizzorno’s testimony as they pertained to memory-loss. In

addition, the jury heard other evidence, independent of Pizzorno’s testimony, that

supported the conclusion that Pizzorno was not diabetic. A medical assistant from

the medical center where Pizzorno was receiving treatment at the same time the

home health care agency was allegedly providing her services testified that

Pizzorno could care for herself. Her medical records from the medical center did

not contain any diagnosis of diabetes or prescription for insulin. Other witnesses,

including one former registered nurse who also had worked for the home health

care agency in a capacity similar to Santos, testified as to their roles in the

Medicare fraud. An FBI agent who had interviewed Santos testified about the

conflicting answers that Santos gave regarding his Medicare related paperwork.

Finally, although Santos testified that he injected Pizzorno with insulin as

reflected in the paperwork, “the jury was free to disbelieve [him] and use [his]

testimony as substantive evidence” in support of his guilt. United States v.

Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir. 2003).

      Santos next argues that his 120 months’ sentence, which is an upward

variance from the sentencing guidelines range of 41 to 51 months’ imprisonment,

is substantively unreasonable. We examine whether a sentence is substantively

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reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)

factors.3 Gall v. United States, 552 U.S. 38, 51 (2007). The “weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

If the district court sentences a defendant outside the guideline range, it should

explain why the variance is appropriate in that particular case. United States v.

Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted). The party

challenging the sentence has the burden of establishing that the sentence was

unreasonable based on the record and the § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       Here, we cannot say that Santos has met his burden of establishing that his

total sentence was unreasonable based on the record and the § 3553(a) factors.

The district court justified imposing the upward variance because Santos was a

healthcare professional who breached his position of trust, he engaged in a

conspiracy for several months, he committed perjury, he showed a lack of remorse,

and the need for deterrence in the healthcare field was high. Furthermore, contrary


       3
         The § 3553(a) factors to be considered include, among others: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (3) the need to afford adequate deterrence to criminal
conduct; and (4) the applicable guideline range. 18 U.S.C. § 3553(a).

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to Santos’s assertion, the district court gave adequate consideration to the disparity

between his total sentence and the sentences of his co-conspirators. Although the

court placed greater weight on deterrence and Santos’s refusal to accept guilt, the

weight to be given any of the § 3553(a) factors is committed to the district court’s

discretion. Clay, 483 F.3d at 743.

      AFFIRMED.




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