                   Case: 11-15707          Date Filed: 12/17/2012   Page: 1 of 17

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15707
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 1:11-cr-20049-CMA-3



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                     Plaintiff-Appellee
llllllllllllllllllllllllllllllllllllllll                                     Cross Appellant,

                                                 versus

YENKY SANCHEZ,

llllllllllllllllllllllllllllllllllllllll                                  Defendant-Appellant
lllllllllllllllllllllllllllllllllllllll                                  lCross Appellee.

                                     ________________________

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

                                           (December 17, 2012)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:

       Yenky Sanchez appeals his convictions for conspiracy to commit health

care fraud, in violation of 18 U.S.C. § 1349, Count 1; conspiracy to commit health

care fraud in connection with authentication features, in violation of 18 U.S.C.

§ 1028(a)(3) and (f), Count 2; and nine counts of aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1), Counts 3 through 9, 11, and 12. Sanchez

seeks the reversal of his convictions and a judgment of acquittal on the ground that

the evidence was insufficient to convict. Alternatively, he seeks the reversal of his

convictions and a new trial on grounds that the District Court abused its discretion

(1) in refusing to admit into evidence e-mails from his co-conspirator, Raul Diaz-

Perera, because they contained hearsay, (2) in admitting Diaz-Perera’s judgment of

conviction and a factual proffer (supporting the conviction) during the

Government’s rebuttal,1 in violation of his Sixth Amendment right of

confrontation, and (3) in denying his motion for new trial based, in part, on

Government discovery violations and failure to disclose information purportedly

favorable to him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). Sanchez also contends that improper comments by the


       1
           Diaz-Perera and Eugenio Ramos Perez, charged as co-conspirators with Sanchez, pled
guilty to the conspiracies of which Sanchez was convicted and one of the identify theft charges.
The proffer referred to in the text was presented to the court at Diaz-Perera’s plea hearing.

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prosecutor denied him a fair trial. We affirm.

                                          I.

      The Florida Department of Children and Families (“DCF”) helps clients

obtain public assistance benefits, including Medicare. DCF maintains a statewide

computer dateabase for its clients, which includes their addresses, dates of birth,

Social Security numbers, and, if applicable, their Medicare beneficiary numbers

(“M-numbers”). The information contained in this database is stored in the

FLORIDA database (“FLORIDA”). DCF employs strict security measures to

safeguard the personal information it stores in FLORIDA.

      Beginning in November 2008 and ending with his arrest on February 23,

2011, Sanchez worked at DCF’s Miami call center, answering phone calls from

DCF clients across Florida, and had access to DCF’s client database in FLORIDA.

Between February 2009 and February 2010, Diaz-Perera was Sanchez’s

supervisor, and they developed a close personal relationship. DCF terminated

Diaz-Perera’s employment on October 28, 2010, for poor performance.

      In March 2009, Diaz-Perez asked Rebecca Torres Rodriguez (“Torres”) if

she knew anyone interested in purchasing M-numbers for the purpose of

committing Medicare fraud. She said that she did not, but after she was charged

with a criminal offense (not relevant here), she contacted federal law enforcement.

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Under the supervision of a Postal Inspector, she got Eugenio Ramos Perez

(“Ramos”) to arrange a meeting with Diaz-Perera. On October 28, 2010, she met

with the two men. She told them that she knew an attorney who wanted to

purchase 200,000 M-numbers.2 Diaz-Perera said he could obtain 100-150 M-

numbers a day for a fee of $15 for each number. He would receive $9 of the fee,

of which he would give $4 to his source at DCF; Torres and Ramos could split the

remaining $6.

       The Postal Inspector told Torres to ask Diaz-Perera for 150 M-numbers, so

they could be tested. She did as instructed, and, on December 15, 2010, Diaz-

Perera sold her a list of 148 M-numbers for $1,350. The numbers appeared on

seven spreadsheets, with each page divided into seven columns containing all the

information Medicare would require for reimbursement—the clients’ names, dates

of birth, Social Security numbers and M-numbers. Diaz-Perera asked Torres how

many more the purchaser wanted, and she said 200,000.

       On January 18, 2011, Diaz-Perera, Ramos, and Torres met in the parking lot

of a Miami restaurant. Diaz-Perera showed Torres an envelope with the

documents inside, and, after a brief conversation, she went to her car to get the



       2
         Torres wore a recording device and the meeting was videotaped by federal agents and
admitted into evidence at Sanchez’s trial.

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money to pay him. At this point, Diaz-Perera and Ramos were arrested, and the

envelop was seized. It contained forty-four pages of spreadsheets, each with seven

columns containing with respect to 1,313 DCF clients the same sort of information

the spreadsheets provided on October 28.

      Sanchez was arrested on February 23, 2011. The investigators had

discovered via Diaz-Perera’s cellphone records that between October 28 and

December 15, 2010, Sanchez had a conversation with Diaz-Perera 189 times for

over nine hours, and that Sanchez had sent Diaz-Perera 281 text messages.

Between December 15 and January 18, 2011, Sanchez sent him 140 text messages.

DCF/FLORIDA entries established that Sanchez obtained the M-numbers and the

complementary information for all 148 DCF clients listed on the December 15

spreadsheets Diaz-Perera gave Torres, and that Sanchez used FLORIDA to access

the information for 437 of the clients listed on the spreadsheets Diaz-Perera

brought to the January 18 meeting.

      “We review de novo whether sufficient evidence supports a conviction,

resolving all reasonable inferences in favor of the verdict.” United States v.

Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). When considering a sufficiency

challenge, we take the evidence in the light most favorable to the Government and

determine whether the jury could have found the defendant guilty based on that

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evidence. Id. Questions of credibility and weight of the evidence are left to the

jury, so we affirm when the record provides a reasonable basis for the conviction.

Id. If disbelieved, “[t]he defendant’s own testimony can be considered by the jury

as substantive evidence of his guilt.”3 United States v. Hunt, 526 F.3d 739, 745

(11th Cir. 2008). To affirm the conviction, the evidence does not need to be

inconsistent with every theory of innocence. Id.

      To establish Sanchez’s guilt on each of the conspiracy charges, the

Government had to prove “(1) that a conspiracy existed; (2) that [Sanchez] knew

about the conspiracy; and (3) that [he] knowingly joined the conspiracy.” United

States v. Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009). A defendant’s

knowing participation in a conspiracy may “be inferred from evidence that the

defendant took action that furthered the conspiracy.” United States v. Cooper, 873

F.2d 269, 272 (11th Cir. 1989). The Government did not have to prove Sanchez’s

participation by direct evidence, but could rely upon the surrounding

circumstances that imply a common purpose and plan. United States v. McDowell,

250 F.3d 1354, 1365 (11th Cir. 2001). Such evidence includes “inferences from

the conduct of the alleged participants or from circumstantial evidence of a




      3
          Sanchez testified in his own defense.

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scheme.” United States v. Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005)

(quotation omitted).

      In order to convict Sanchez of aggravated identity theft, the Government

had to establish that he: (1) knowingly transferred, possessed, or used; (2) a

person’s means of identification; (3) without lawful authority; (4) during and in

relation to a felony enumerated in 18 U.S.C. § 1028A(c). United States v.

Barrington, 648 F.3d 1178, 1192 (11th Cir. 2011), cert. denied, 131 S.Ct. 1066

(2012). Conspiracy to commit health care fraud in connection with authentication

features under 18 U.S.C. § 1028(a)(3) is one of the enumerated felonies in

§ 1028A(c). 18 U.S.C. § 1028A(c)(4). A “means of identification” includes, inter

alia, a name, SSN, or date of birth. Id. § 1028(d)(7).

      The evidence of guilt in this case was overwhelming. Accordingly, it was

sufficient to support Sanchez’s convictions for conspiracy to commit health care

fraud, conspiracy to commit health care fraud in connection with authentication

features, and aggravated identity theft.

                                           II.

      Sanchez contends that the District Court abused its discretion in excluding

as hearsay out-of-court statements Diaz-Perera made in emails to himself and DCF

employees. We review this evidentiary ruling for abuse of discretion. United

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States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011), cert. denied, 132 S.Ct.

2375 (2012). Even if there was an abuse of discretion, we reverse only if the

ruling was not harmless. Id. “An error is harmless unless there is a reasonable

likelihood that it affected the defendant’s substantial rights.” Id. (alteration and

quotation omitted). We need not reverse a conviction if the evidentiary error “had

no substantial influence on the outcome, and sufficient evidence uninfected by

error supports the verdict.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th

Cir. 1990). An error in excluding evidence also is harmless if the content of the

evidence was admitted through witness testimony. United States v. Mateos, 623

F.3d 1350, 1364 (11th Cir. 2010), cert. denied, 131 S.Ct. 1540 (2011).

      Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Fed. R. Evid. 801(c). Hearsay generally is not admissible. Fed. R.

Evid. 802. A “statement” is defined as “a person’s oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed. R.

Evid. 801(a). “If the significance of an offered statement lies solely in the fact that

it was made, no issue is raised as to the truth of anything asserted, and the

statement is not hearsay.” Mateos, 623 F.3d at 1364 (quotation omitted).         The

emails contained out-of-court statements, but they were not offered for the truth of

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their contents and thus did not constitute hearsay. Although the court was wrong

in determining that they were offered for the truth of their contents, in light of the

fact that two witnesses involved with the emails testified as to their contents and

the overwhelming proof of guilt, the exclusion of the e-mails was harmless.

                                          III.

      Sanchez argues that the District Court abused its discretion and denied him

the right of confrontation in admitting into evidence during the Government’s

rebuttal proof of Diaz-Perera’s conviction and the factual predicate presented to

the District Court to support it. While we review a court’s evidentiary rulings for

abuse of discretion, we review de novo a claim that an evidentiary ruling denied

the defendant his Sixth Amendment right of confrontation. United States v. Gari,

572 F.3d 1352, 1361 (11th Cir. 2009).

      The Sixth Amendment’s Confrontation Clause prohibits the admission of

testimonial out-of-court statements, except when the witness is unavailable and the

defendant had a prior opportunity to cross-examine the witness. United States v.

Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009). However, “the Confrontation

Clause prohibits only statements that constitute impermissible hearsay.” Id.

(emphasis omitted). When the statements are offered for a purpose other than




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establishing the truth of the matter asserted, the Clause does not prohibit such use.

Id. at 1286-87.

      Confrontation Clause errors are subject to harmless error analysis. Gari,

572 F.3d at 1362. Harmless error occurs when it is “beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.” Id.

(quotation omitted).

      Federal Rule of Evidence 806 provides, in relevant part:

      When a hearsay statement . . . has been admitted in evidence, the
      declarant’s credibility may be attacked, and then supported, by any
      evidence that would be admissible for those purposes if the declarant
      had testified as a witness. The court may admit evidence of the
      declarant’s inconsistent statement or conduct, regardless of when it
      occurred or whether the declarant had an opportunity to explain or
      deny it.

Fed. R. Evid. 806. The test for Rule 806 “is whether the out-of-court statements

would have been admissible for impeachment purposes had the co-conspirator

statements been delivered from the witness stand by the co-conspirator himself,

not as hearsay about what he said during the conspiracy but as contemporaneous

in-court statements.” United States v. Grant, 256 F.3d 1146, 1154 (11th Cir.

2001). The objective of admitting inconsistent statements for impeachment

purposes is to aid the jury in deciding the witness’s credibility, not to show that

the statements are true. Id. at 1156.

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      Under Fed. R. Evid. 609, a witness’ character for truthfulness can be

attacked with a criminal conviction if the conviction entailed one or more years of

imprisonment or had an element of the crime being a dishonest act or false

statement. Fed. R. Evid. 609(a). If the witness is not the defendant, the admission

of the conviction is subject to Fed. R. Evid. 403. Fed. R. Evid. 609(a)(1)(A). A

party may also introduce a witness’ prior statement if the witness testifies and is

subject to cross-examination, and the statement was given under penalty of perjury

at a hearing and is inconsistent with the witness’ testimony. Fed. R.

Evid. 801(d)(1)(A).

      Regarding disclosures under Fed. R. Crim. P. 16, the rule provides that, at

the defendant’s request, the Government must allow the defendant to inspect and

to copy any papers and documents in the government’s possession, custody, or

control, and that “the government intends to use . . . in its case-in-chief at trial.”

Fed. R. Crim. P. 16(a)(1)(E)(ii). Rule 16 permits the Government to present

rebuttal evidence without prior notice because the Rule’s notice requirements

apply only to the government’s case-in-chief. See United States v. Frazier, 387

F.3d 1244, 1269 (11th Cir. 2004) (applying the “case-in-chief” language found in

Rule 16(a)(1)(G)); United States v. Windham, 489 F.2d 1389, 1392 (5th Cir. 1974)

(“Rebuttal witnesses are a recognized exception to all witness disclosure

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requirements.”). In addition, “[v]iolations of Rule 16 will result in a reversal of

conviction only if such a violation prejudices a defendant’s substantial rights.”

United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (quotation

omitted).

      As an initial matter, because the challenged exhibits—evidence of Diaz-

Perera’s conviction and the factual predicate supporting it—were offered during

rebuttal, the Government was not required to provide notice under Rule 16.

Furthermore, because Sanchez, in testifying in his own defense, essentially

repeated Diaz-Perera’s hearsay statements, the court properly admitted Diaz-

Perera’s judgment of conviction for impeachment purposes. Because the hearsay

statements did not contradict any of Diaz-Perera’s statements in the factual proffer

he presented to the court in tendering his plea of guilty, however, the court erred in

admitting the proffer. This error was harmless, however, given the overwhelming

evidence of Sanchez’s guilt.

                                         IV.

      Sanchez argues that the Government committed a Brady violation by

providing an inadequate disclosure regarding Diaz-Perera’s contact with Damaris

and Cedano and that, given the violation, the court should have granted him a new

trial. The day before the trial, the Government disclosed the following

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information: “Raul Diaz-Perera contacted Damaris Rodriguez and Maria Cedano,

two [DFC] employees who work with hospice care and assisted living facilities,

for Social Security and Medicare information regarding nursing home clients.

Rodriguez and Cedano did not respond to Diez-Perera.” Sanchez claims that this

disclosure omitted when the contacts occurred, whether Diaz-Perera personally

met with theses employees, and what Diaz-Perera actually told them.

      We review de novo a District Court’s decision whether a Brady violation

occurred. United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996). A

violation occurs when the prosecution suppresses, whether or not in good faith,

material evidence favorable to the defendant. Brady, 373 U.S. at 87, 83 S.Ct. at

1196-97. To establish a Brady violation, the defendant must show that: (1) the

Government possessed favorable evidence, including impeachment evidence;

(2) the defendant did not possess the evidence, and he could not obtain it himself

with any reasonable diligence; (3) the Government suppressed the evidence; and

(4) had the evidence been disclosed, a reasonable probability exists that the

outcome of the proceedings would have been different. United States v. Hansen,

262 F.3d 1217, 1234 (11th Cir. 2001). If the defendant knew of the information or

had equal access to it, then there is no suppression issue. United States v. Griggs,

713 F.2d 672, 674 (11th Cir. 1983); United States v. Price, 792 F.2d 994, 998

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(11th Cir. 1986). When considering whether the non-disclosure of exculpatory

information violated a defendant’s due process rights, “the focus is not upon the

fact of nondisclosure, but upon the impact of the nondisclosure on the jury’s

verdict.” United States v. Kopituk, 690 F.2d 1289, 1339 (11th Cir. 1982).

Having examined the record, we must conclude that even if the Government’s

disclosure was insufficient, no violation occurred because Sanchez had equal

access to the information at issue: he could have contacted Rodriguez and Cedano

and, depending on what they might say, he could have called them as witnesses.

                                         V.

      We review the district court’s determinations regarding prosecutorial

misconduct de novo because they involve mixed questions of law and fact. United

States v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). We subject allegations

of prosecutorial misconduct to a “two-part test.” United States v. Obregon, 893

F.2d 1307, 1310 (11th Cir. 1990). The test requires us to assess (1) whether the

challenged statements were improper, and (2) if so, whether they prejudicially

affected the defendant’s substantial rights. Id. With respect to the first prong, we

have held that “[t]he sole purpose of closing argument is to assist the jury in

analyzing the evidence.” United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.

1997) (quotation omitted). The prosecutor may not “exceed the evidence” during

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closing argument, but may draw reasonable conclusions from it. Id. However, we

recognize that “in the heat of argument, counsel do occasionally make remarks

that are not justified by the testimony, and which are, or may be, prejudicial to the

accused,” and we must determine their probable effect on the jury. United States

v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985) (quotation omitted). In

addition, the prosecutor may respond to the arguments of defense counsel. United

States v. Sarmiento, 744 F.2d 755, 765 (11th Cir. 1984). Accordingly, the issues

raised by a defendant in his closing argument are “fair game for the prosecution on

rebuttal.” Id.

       With respect to the second prong, we have held that “[a] defendant’s

substantial rights are prejudicially affected when a reasonable probability arises

that, but for the remarks, the outcome of the trial would be different.” United

States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (quotation and alteration

omitted).

       “[A] party seeking to raise a claim or issue on appeal must plainly and

prominently so indicate. Otherwise, the issue—even if properly preserved at

trial—will be considered abandoned.” United States v. Jernigan, 341 F.3d 1273,

1283 n.8 (11th Cir. 2003).




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      Sanchez argues that three comments made in the prosecutor’s rebuttal

argument before the jury improperly impugned defense counsel’s integrity. We

are not persuaded. The prosecutor merely pointed out that the Constitution trusts

juries, not the lawyers involved in the case, to decide the defendant’s guilt.

Moreover, in referring to lawyers, the prosecutor included himself. The second

remark Sanchez challenges was a comment the prosecutor made in response to

defense counsel’s repeated attacks on the quality of the Government’s

investigation. We have read the remark and conclude that it was in defense of the

quality of the investigation and not an attack on defense counsel’s integrity. As to

the third comment, Sanchez’s appellate brief makes no argument as to why it was

improper, so Sanchez has abandoned any challenge to the comment. In fine, we

find no basis for concluding that the challenged comments prejudiced Sanchez’s

substantial rights.

                                         VI.

      Finally, we note that the District Court’s written judgment contains a

scrivener’s error about the statute under which Sanchez was convicted, indicating

that he was convicted in Count 2 under 18 U.S.C. § 1028A(a)(3) and (f), rather

than under 18 U.S.C. § 1028(a)(3) and (f). Therefore, a remand is necessary for




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the limited purpose of correcting the written judgement to so reflect. We remand

to the court for the limited purpose of correcting the error.

      AFFIRMED, and REMANDED with instructions.




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