                                                                             FILED
                              NOT FOR PUBLICATION                             APR 18 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )     No. 12-50096
                                        )
      Plaintiff - Appellee,             )     D.C. No. 2:11-cr-00140-SVW-2
                                        )
      v.                                )     MEMORANDUM*
                                        )
EVANS ONIHA,                            )
                                        )
      Defendant - Appellant.            )
                                        )

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                               Submitted April 7, 2014**
                                 Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.

      Evans Oniha appeals his conviction and sentence for health care fraud,

conspiracy to commit health care fraud, and making a false statement to

government agents investigating the fraud. See 18 U.S.C. §§ 1347, 1349,

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
1035(a)(2). We affirm.

      (1)      Oniha first claims that there was plain error1 because the government

knowingly used false testimony in obtaining his conviction.2 We disagree. The

mere fact that six weeks after the trial a co-schemer in the fraud filed a document

containing statements that partially conflicted with the testimony of a co-

conspirator at the trial does not demonstrate that the trial testimony was false. See

United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997). Moreover, even if the

testimony turned out to be inaccurate or false, that does not show that the

prosecutor knew or should have known of the inaccuracy or falsity. See United

States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995); cf. N. Mariana Islands v.

Bowie, 243 F.3d 1109, 1117 (9th Cir. 2001) (information known to the prosecutor

should have alerted the prosecutor to possible falsity). Finally, in light of the great

amount of evidence against Oniha, the quite minor nature of the discrepancy, and

the vigorous cross-examination and impeachment of the witness, “there is [no]

reasonable likelihood that the [allegedly] false testimony could have affected the


      1
          United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011).
      2
       See Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d
1217 (1959); Gentry v. Sinclair, 705 F.3d 884, 903 (9th Cir.) (setting forth
elements supporting Napue claim), cert. denied, __ U.S. __, 134 S. Ct. 102, 187 L.
Ed. 2d 75 (2013); Jones v. Ryan, 691 F.3d 1093, 1102, 1104 (9th Cir. 2012), cert.
denied, __ U.S. __, 133 S. Ct. 2831, 186 L. Ed. 2d 890 (2013) (same).

                                           2
judgment of the jury.” Houston, 648 F.3d at 814 (internal quotation marks

omitted); see also Gentry, 705 F.3d at 903–04. There was no error, much less plain

error.

         (2)      Oniha next claims that there was plain error3 because the government

failed to disclose evidence favorable to him.4 In attacking his conviction and

sentence, Oniha again relies upon the same later statement by the co-schemer, and

we again disagree. We will assume that the statement was favorable to Oniha

because it had some impeachment value. See United States v. Olsen, 704 F.3d

1172, 1181 (9th Cir. 2013). The government has not contended otherwise.

However, there is not a scintilla of evidence that the government or any relevant

government agent was, or should have been, aware of the statement’s content

before or during the trial. See United States v. Price, 566 F.3d 900, 910 n.11 (9th

Cir. 2009). By the time of his sentencing, Oniha was well aware of the statement

in question. Indeed, he changed his own prior position from one that effectively

agreed with the co-conspirator’s statement at trial to one in which he agreed with



         3
             See Houston, 648 F.3d at 813.
         4
       See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed.
2d 215 (1963); see also United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct.
3375, 3380, 87 L. Ed. 2d 481 (1985); United States v. Sedaghaty, 728 F.3d 885,
899 (9th Cir. 2013) (setting forth the elements supporting Brady claim).

                                             3
the co-schemer’s later statements. See Cunningham v. Wong, 704 F.3d 1143, 1154

(9th Cir.), cert. denied, __ U.S. __, 134 S. Ct. 169, 187 L. Ed. 2d 116 (2013).

Finally, in light of the great amount of evidence against Oniha, the minor nature of

the discrepancy and the vigorous cross-examination and impeachment of the

witness, “there is [no] reasonable probability that, had the evidence been disclosed,

the result of the proceeding would have been different.” Smith v. Cain, __ U.S. __,

__, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012) (internal quotation marks

omitted). There was no error, much less plain error.

      (3)      Oniha finally asserts that his sentence was substantively unreasonable5

because it was longer than the sentence of his co-conspirator and that of the co-

schemer. However, the district court was not required to impose the same sentence

on all of the participants in the crimes,6 and it had good and sufficient reasons to

treat Oniha differently from the others.7 They cooperated with the government —

one acted as an informant while the conspiracy was still in progress,8 and the other

one pled guilty and testified at trial — whereas Oniha, despite the overwhelming

      5
          See United States v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013).
      6
       See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009); see also
United States v. Monroe, 943 F.2d 1007, 1017 (9th Cir. 1991).
      7
          See Carter, 560 F.3d at 1121.
      8
       She, by the way, was found guilty of fewer crimes than was Oniha. See
United States v. Changa, 901 F.2d 741, 743–44 (9th Cir. 1990) (per curiam).

                                            4
evidence against him, never showed the slightest remorse for his actions.9 The

district court carefully listened to the evidence and the presentations of the parties

and considered the sentencing standards10 of which disparity is but one.11 The

sentence was substantively reasonable;12 the district court did not err.

       AFFIRMED.




       9
      See Laurienti, 731 F.3d at 976; Carter, 560 F.3d at 1121; United States v.
Marcial-Santiago, 447 F.3d 715, 718–19 (9th Cir. 2006).
       10
            See 18 U.S.C. § 3553(a).
       11
        See id.; Marcial-Santiago, 447 F.3d at 719; see also United States v.
Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009).
       12
            See Gutierrez-Sanchez, 587 F.3d at 908–09; Marcial-Santiago, 447 F.3d at
719.

                                            5
