United States v. Rafael Nunez , 429 F. App'x 834 ( 2011 )

[DO NOT PUBLISH]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).
3