                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-14176            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JUNE 7, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                               D.C. Docket No. 1:10-cr-20101-FAM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

RAFAEL NUNEZ,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                            (June 7, 2011)




Before EDMONDSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
       Rafael Nunez appeals his convictions for health care fraud, in violation of

18 U.S.C. §§ 1347 and 2. Nunez asserts the district court abused its discretion

when it excluded evidence of Marcel Li’s prior criminal convictions for medicare

fraud and money laundering, and Alberto Valdes’ prior criminal conviction for

money laundering.1 Nunez claims this evidence would have supported his defense

that he had no knowledge of the fraud, and that he was duped into the scheme by

these two “professional con-artists.” After review, we affirm Nunez’s conviction.2

       The district court did not abuse its discretion when it excluded Li and

Valdes’ prior criminal convictions. First, as conceded by Nunez, the convictions

were not admissible under Fed. R. Evid. 404(b). Further, the evidence was not

offered to attack the credibility of Li or Valdes, who were not witnesses at trial

and did not make statements submitted into evidence. See Fed. R. Evid. 609.

Lastly, the evidence was not relevant to an issue at trial because it was not

probative of whether Nunez was unaware of the charged fraud as he contended.

Notably, Nunez offered other evidence showing that Li and Valdes were involved

in the offense, which the Government did not dispute. Accordingly, we affirm


       1
       Nunez claims Li and Valdes were the masterminds behind the fraudulent scheme. Li and
Valdes were not charged in the indictment and did not testify at Nunez’s trial.
       2
       We review a district court’s evidentiary rulings for an abuse of discretion. United States
v. Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009), cert. denied, 130 S. Ct. 2342 (2010).

                                                2
Nunez’s convictions.3

       AFFIRMED.




       3
        We note that even if the district court erred in excluding the evidence, the error was
harmless as there was overwhelming evidence of Nunez’s guilt, and the jury did not find credible
his defense that he was merely a “patsy” of Li and Valdes. See United States v. Guzman, 167
F.3d 1350, 1353 (11th Cir. 1999) (“[o]verwhelming evidence of guilt is one factor that may be
considered in finding harmless error.”); see also United States v. Phaknikone, 605 F.3d 1099,
1109 (11th Cir. 2010) (holding that an evidentiary error is harmless if it did not have a
“substantial and injurious effect” on the jury’s verdict).

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