1 The Honorable Ortrie D. Smith, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3409

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Iggy Santisteban, * * Appellant. *

___________ Submitted: May 17, 2007 Filed: September 7, 2007 (Corrected 9/17/07)

___________ Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.

___________ COLLOTON, Circuit Judge.

After a four-day trial, a jury convict ed Iggy Santisteban of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. The district court 1 sentenced Santisteban to a prison term of thirty-seven months. Santisteban appeals several of the district court’s ru lings at trial, and we affirm.-2- I.

Santisteban was involved in an intern ational conspiracy to manufacture and distribute counterfeit prescription drugs. The conspiracy involved importing, manufacturing, and misbranding prescription drugs. Santisteban’s printing business produced labels for the counterfeit drugs, and accepted payment from the other conspirators for the fraudulent labels.

Santisteban’s defense at trial was that his partic ipation was unwitting. The central figure of the conspiracy was Julio Cruz, a former cocaine dealer, whose cooperation with the government in an unrel ated case had enabled him to leave prison early. After securing his release, Cruz, w ith the assistance of two men he had met in prison, began smuggling prescription drugs into the United States from Central and South America. The conspiracy also i nvolved the theft and unauthorized manufacture of prescription drugs.

Before meeting Cruz, Santisteban owned a struggling printing business in South Florida, known as Iggyprints. A mutual fri end introduced Cruz to Santisteban, and at this meeting, Cruz aske d Santisteban if he could reproduce a label for Pfizer’s anticholesterol drug Lipitor. After stating that he could re-print th e label, Santisteban quoted a price for printing labels, at about50% above what he typically would have charged. Cruz immediately agreed. Cruztestified that Santisteban requested a purchase order, or some other documentati on, to authorize his reproduction of the labels. When FDA agents initially questioned Santisteban, he told them that he had received a letter on Pfizer stationery authorizing him to go ahead with the print job, but he could not retrieve th is document for the agents. Later, he produced a letter written on Pfizer letterhead, although the head ing indicated that it was from Pfizer in Brazil, and the text of the letter merely requested “a competitive quote,” not the printing of labels. Santisteban eventually printed over forty different drug labels at Cruz’s direction, including labels for non-Pfizer drugs. Santisteban came to the-3- attention of law enforcement during the cour se of an investigation into counterfeit Lipitor and Lipitor labels.

The jury convicted Santisteban of cons piring to defraud the United States. The theory of the prosecution was that th e conspiracy evaded the Food and Drug Administration’s regulatory control and thus defrauded the United States. The district court sentenced Santisteban to a term of thirty-seven months’ imprisonment, and ordered restitution of $1,806,905 to Pfizer.

II.

A.

Santisteban’s first contention is that the government violated his rights under the Due Process Clause by failing to disclosecertain impeachment evidence. Before trial, the government disclosed to the defense a prosecution memorandum, which outlined the government’s case. Santisteban argues that the government violated his rights by refusing to disclose certain inves tigative reports that provided the basis for portions of the memorandum.

Santisteban’s defense was th at he believed Cruz to bea legitimate businessman, and that he relied on the Pfizer letter as authorization for the reproduction of labels for Pfizer drugs. At trial, however, Cruz testif ied that Santisteban ha d requested the letter merely to “cover his ass,” and not becausehe believed it actually authorized the reproduction of labels. Cruz testified that he gave San tisteban the letterhead, which included a signature, but that the body of the letter was blank when he gave the letterhead to Santisteban. On cross-examin ation, Cruz testified that Santisteban had forged and backdated the body of the letter.-4- Contrary to Cruz’s testimony, however, the prosecution memorandum suggests that Santisteban did not forge the body of th e letter from Pfizer. In stead, it states that Pablo Fernandez, one of Cruz’s associates, “created a fake/forged authorization letter . . . and Cruz furnished it to Santisteba n.” When Santisteban sought discovery of agent reports of Cruz’s statements, believing that these would rev eal the source of the apparent inconsistency, the government refused to provide them. The district court rejected Santisteban’s claim that the prosecution memorandum provided a foundation for further discovery, concluding that ther e was no clear inconsistency between the prosecution memorandum and Cruz’s testim ony. Cruz had testified that he had provided the letterhead, and that Santis teban forged the body of the letter and backdated it. The court reasoned that th e prosecution memorandum may have referred only to the creation of the letterhead, and not to the forgery of the body of the letter.

The Due Process Clause of the Fifth Amendment requires the government to disclose to the accused favorable evidence th at is material to guilt or punishment and not otherwise available to the defendant. See United States v. Bagley , 473 U.S. 667, 678 (1985); Brady v. Maryland , 373 U.S. 83, 87 (1963). To prove a violation, the defendant must show that the evidence was both favorable and material, and that the government suppressed the evidence. United States v. Barraza-Cazares , 465 F.3d 327, 333 (8th Cir. 2006). The government has suppressed evidence when it was otherwise unavailable to the defendant, a nd the prosecution failed to disclose the evidence in time for the defendant to use it. Id. at 334. Thus, “[t]he government does not suppress evidence in violation of Bradyby failing to disclose evidence to which the defendant had access through other channels.” United States v. Zuazo , 243 F.3d 428, 431 (8th Cir. 2001).

Santisteban argues that the government violated the Brady rule by refusing to provide him with the agent reports that we re the basis for the memorandum’s assertion that Fernandez, and not Santisteban, forged the letter from Pfizer. We agree with Santisteban that the substance of the memorandum was inconsistent with Cruz’s-5- testimony on this point. Nonetheless, we conclude that Santisteban’s due process claim fails, because he has not demonstrat ed that the requested information was material to the defense or that it was unavailable to him through other channels.

We observe first that although counsel cross-examined Cruz regarding the authorship of the letter, he never confr onted Cruz with the reported inconsistent statement set forth in the prosecution memorandum. This is significant for two reasons. First, if Cruz had been asked wh ether he told the government that Fernandez created the letter, then Cruz may have admitted the prior inconsistent statement, and the desired impeachment woul d have been accomplished. Santisteban did not exhaust this readily available avenue to present ev idence of the inconsistency. Second, before Santisteban could have o ffered extrinsic evidence of a prior statement by Cruz (presumably through the agent whose identity he sought), he was required by the rules of evidence to afford Cruz an opportunity to explain or deny the statement. Fed. R. Evid. 613(b). Having failed to lay a prope r foundation for admission of the extrinsic evidence, Santisteban is hardpressed now to demonstrate that the unavailability of the extrinsic evidence was prejudicial to his defense.

Santisteban also failed to pursue another readily available channel to determine the source of the information in the pros ecution memorandum. The defense presented at trial a recording of FDA Agent SpencerMorrison questioning Cruz about the Pfizer letter. The cross-examination of Cruz re vealed that he had spoken with Morrison on multiple occasions during the course of his c ooperation. Later in th e trial, the defense even called Morrison as a witness, but failed to question him about Cruz’s prior statements concerning the Pfizer letter. Wethink it is highly likely that Morrison, as an FDA agent known to have discussed the letter with Cruz and to have communicated with him several times during the investigation, was in a position either to confirm that he was the source of th e information in the prosecution memorandum, or to identify another investigator who reported the statement. Yet Santisteban did not broach the topic with Morrison. In view of the opportunity to examine this-6- investigating agent on the topic, we do not believe the request ed information about Cruz’s prior statement to the governme nt was unavailable to Santisteban. See Hoke v. Netherland , 92 F.3d 1350, 1355 (4th Cir. 1996) (“While it cannot be known with absolute certainty, it is quite likely that, had Hoke undertaken a reasonable investigation, he would have learned of all three of the men in question and of their relations with Stell.”).

In addition, even assuming the re quested information was improperly suppressed, we do not believe it was material . Evidence is material if there is a reasonable probability that it would ha ve altered the jury’s verdict. Bagley , 473 U.S. at 682. At most, the revelation that Cruz made the prior inconsistent statement would have permitted the defense to present ev idence impeaching Cruz’s statement that Santisteban forged the body of the letter. But Cruz already was heavily impeached with evidence of his criminal history, his plea agreement, and his penchant for false statements and manipulation of others. Th e effect of one more piece of impeachment evidence on the jury’s evaluati on of Cruz’s credibility likely would have been slight.

The value of the proposed impeachment, even viewed in isolation, also strikes us as minimal. Even if the jury questione d whether Santisteban fo rged the Pfizer letter himself, Santisteban’s reliance on the lette r was dubious on its face. The jury would have been left to evaluate a contention that Santisteban relied on a letter, given to him by Cruz, that merely requested a price quotation, as an “authorization” from a major corporation to reproduce Pfizer labels. We are not persuaded that the inability further to impeach Cruz’s account of how this lette r was created was material to the defense.

B.

Santisteban next argues that the district court should have allowed him to present the government’s prosecution memo randum as evidence that Fernandez had forged the letter. He maintains that the statement in the memorandum that “Fernandez-7- created a fake/forged authorization letter” is an admission by the government, and thus is not hearsay. Fed. R. Evid. 801(d)(2). The district court rejected this argument, concluding that the statement was not an admission and noting the “serious implications in allowing a defense attorney to use the statement from a [prosecution] memo as an admission.” (T . Tr. 729-30). Citing the need for parties to exchange information freely, the court feared that admitting the statement in the memorandum would deter the exchange of such information in the future.

We conclude that the statement in the prosecution memorandum is inadmissible hearsay. Because the government employ ee who authored the memorandum could not have had personal knowledgeas to who created the letter from Pfizer, the author was in no position to “admit” that Fernand ez had forged the document. Rather, the statement in the prosecution memorandum recounts an investigator’s report of Cruz’s statement that Fernandez cr eated the document. The paragraph thus appears to contain three levels of potential hearsay: (1) the out-of-court statement of the author recorded in the memorandum, (2) the statemen t of the investigator to the author ( i.e. , that Cruz made a particular statement to the investigator), and (3) the statement of Cruz to the investigator ( i.e. , that Fernandez had createdthe document). Unless all three levels are admissible, the statem ent in the prosecution memorandum cannot be admitted for its truth. Fed. R. Evid. 805; United States v. Taylor , 462 F.3d 1023, 1026 (8th Cir. 2006). Even if the first level – the author’s out-of-court statement – is viewed as an admission of a party opponent, and thus non-hearsay, see Fed. R. Evid. 801(d)(2), the second and thir d levels of hearsay are not covered by any hearsay exception. Taylor , 462 F.3d at 1026. Therefore, th e memorandum’s recounting of the witness’s statement cannot be admitted for its truth.

C.

Santisteban next alleges a violation of his right to confront Cruz, whom the district court described as a “key” witness, and a violation of his due process rights-8- arising from non-disclosure of certain “proffer letters” between Cruz and the government. We review these constitutional claims de novo. United States v. Kenyon , 481 F.3d 1054, 1063 (8th Cir. 2007); Mandacina v. United States , 328 F.3d 995, 1001 (8th Cir. 2003).

Santisteban argues that the district c ourt erred in refusing to allow crossexamination of Cruz regarding a pending st ate prosecution in Florida. Santisteban argues that the district court should havepermitted him to attack Cruz’s credibility with these pending charges. In Santiste ban’s view, because the Florida prosecution was still pending, Cruz had even more reason to incriminate Santisteban in an effort to please prosecutors. Santisteban also poi nts out that Cruz’s federal plea agreement explicitly requires Cruz to coope rate with state authorities.

We conclude that any error was harmless. To determine whether a Confrontation Clause error was harmless, we look to “whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the erro r was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986). In a particular case, this inquiry depends on “the importance of the witne ss’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or ab sence of evidence corroborating or contradicting the testimo ny of the witness on material points, the extent of cross-examination otherwise permitted, and, of course , the overall strength of the prosecution’s case.” Id. In this case, we find it dispositive that Santisteban’s counsel was able to show Cruz’s bias without addressing the pending prosecution in Florida.

Santisteban’s counsel subjected Cruz to a withering cross-examination. Cruz admitted to being a convicted felon and former cocaine dealer. He also stated that, when conducting his affairs, it was common fo r him to lie under oath. Cruz further admitted that he had entered into prior cooperation agreements, which enabled him to-9- leave prison early and mastermind this cons piracy. Cruz conceded that he had received a “pretty good deal” by pleading guilty and agreeing to testify in this case, that his sentence could be reduced as a re sult of his testimony for the prosecution, and that he hoped the government might even re lease him on bond. Cruz admitted that he often “use[d] people” when doing so would benefit him.

Based on this cross-examination, we conc lude that Santiste ban had little to gain from cross-examining Cruz about the pending prosecution in Florida. By this point, the jury surely understood that Cruz hoped to benefit from incriminating Santisteban, and that Cruz had a long history of deceit. Even if Cruz’s cooperation were expected to secure the dismissal of the charges in Fl orida, this marginal difference in benefit would not have cast further doubt on Cruz’s testimony. With or without the pending prosecution in Florida, there was abundant evidence that Cruz had a strong incentive to satisfy law enforcement with his testim ony. Therefore, any error in excluding this evidence was harmless beyond a reasonable doubt.

Santisteban also complains that the government did not disclose the proffer letters from the government to Cruz thatpreceded Cruz’s plea agreement. The government acknowledges that these letters provided use immunity for statements made by Cruz during his initial cooperati on, before he reached a formal plea agreement with the United States Attorney. See United States v. Lopez , 219 F.3d 343, 345 n.1 (4th Cir. 2000). Once the plea agreement was signed, the terms of that agreement superseded the terms of the pre liminary proffer letters concerning the use of Cruz’s statements.

Santisteban alleges that the non-disclosureof the proffer letters violated his due process right to receive exculpatory or imp eachment evidence. He contends that these letters would have cast further doubt on Cruz’s veracity. At trial, Cruz testified that he had cooperated with prosecutors out of a genuine desire to he lp the investigation, and not solely for his own benefit. Santisteban asse rts that this testimony was-10- misleading, because the jury did not know th at before cooperating with investigators, Cruz had been arrested in Florida on charges related to this conspiracy. Had the jurors known about the proffer letters governing this initial cooperation, Santisteban contends, they would have recognized th at Cruz cooperated not out of the goodness of his heart, but to receive a reduced sent ence for his role in the conspiracy. The district court declined to compel th e production of these letters, because the government had already provided Cruz’s plea agreement, and the terms of the letters were “subsumed within the final agreements between the Governme nt and witnesses.”

Because the final plea agreement supers eded the antecedent proffer letters, see United States v. Davis , 393 F.3d 540, 546 (5th Cir. 2004) , we believe the government satisfied its obligations under the Due Process Clause by providing Cruz’s plea agreement to Santisteban. Regardless of any preliminary proffer agreements, the formal plea agreement governed Cruz’s coope ration, and it provided the jury with a sufficient basis for judging the credibility of Cruz’s testimony at trial. The government disclosed the plea agreement, a nd Santisteban was able to cross-examine Cruz vigorously about it. Santisteban al so was free to elicit from Cruz that he received use immunity for statements ma de during his proffer sessions with the government. Santisteban argues that the pr offer letters themselves would have cast doubt on Cruz’s testimony that his cooperation was purely altruistic, but even if this information was not otherwise readily av ailable through cross-examining Cruz, the government’s agreement to grant prelimin ary use immunity is a collateral issue. Whether Cruz’s initial cooperati on was altruistic or self-int erested is relevant only to the extent that it casts doubt on his testimony at trial. The terms of Cruz’s plea agreement provided Santisteban with suffici ent basis to show Cruz’s potential bias and to question his credibility at trial. The terms of the proffer letters were not material to the defense.-11- D.

Santisteban challenges the district court’s failure to instruct the jury as to any lesser-included offenses. Hecites two potential lesser-inc luded offenses: misusing a label required by fede ral regulations, 21 U.S.C. § 331(i)(1 ), and “[t]he doing of any act which causes a drug to be a counterfeit drug,” as prohibited by § 331(i)(3). The government maintains that these offenses require proof of an additional element not needed to prove a conspiracy to defraud the United States.

A defendant is entitled to a jury instructi on if the request is timely, the evidence supports the instruction, and the proffere d instruction correctly states the law. United States v. Sanders , 834 F.2d 717, 719 (8th Cir. 1987). In this case, the proffered instructions correctly state the law only if violations of §§ 331(i)(1) and (3) are indeed lesser-included offenses of 18 U.S.C. § 371. “To be a lesse r-included offense, a crime must not require the government to prove any additional elements.” United States v. Hatcher , 323 F.3d 666, 672 (8th Cir. 2003). Thus , where the lesser offense “requires an element not required for the greater o ffense, no instruction is to be given.” Schmuck v. United States , 489 U.S. 705, 716 (1989).

The jury convicted Santisteban of cons piring to defraud the United States under 18 U.S.C. § 371, and this was the only offe nse submitted to the jury. The elements of this offense required the jury to find that Santisteban knowingly entered into an agreement or understanding to defraud the FDA by taking steps, through means that involved dishonesty, deceit, cr aft, or trickery, to impede, impair, obstruct, or defeat a lawful function of the FDA. (Appellant’s App. 129). Each of the offenses that Santisteban claims to be le sser-included required an add itional element of proof. To prove a violation of 21 U.S.C. § 331(i)(1), the government must show that the defendant fraudulently used a “label . . . authorized or required by [federal regulations].” Id. Section 331(i)(3) requires proof that the defendant’s act caused a drug to be a counterfeit drug. Santis teban could be convicted under § 371 without-12- proof of these additional elements. Accordingly, neither of the offenses found in § 331(i) is a lesser-included offense of c onspiring to defraud the United States, and the district court properly declined to give the requested instructions.

Santisteban’s final argument is that the district court erred by refusing to give a multiple conspiracy instruction. He main tains that the criminal conspiracy in this case involved multiple criminal purposes, so me of which were not known to him. See United States v. Zimmerman , 832 F.2d 454, 458 (8th Cir. 1987) (a conviction for conspiracy requires proof that the defendantwas “aware of the general nature and scope of the conspiracy”). The government contends that the evidence in this case sufficed to prove a single conspiracy.

“If the evidence supports a single conspi racy, the failure to give a multiple conspiracy instruction is not reversible error.” United States v. Roach , 164 F.3d 403, 412 (8th Cir. 1998). “Whether a given cas e involves single or multiple conspiracies depends on whether there was one overall agreement to pe rform various functions to achieve the objectives of the conspiracy.” United States v. Radtke , 415 F.3d 826, 838 (8th Cir. 2005) (internal quotations omitted) . That the conspirators entered the conspiracy at different times and played discrete roles does not compel a finding of multiple conspiracies. United States v. Maza , 93 F.3d 1390, 1398 (8th Cir. 1996). Because this is a factual issue, we draw all reasonable inferen ces in favor of the verdict. Radtke , 415 F.3d at 838.

The evidence at trial established that Santisteban played a small, but essential, role in a single conspiracy. Cruz identified Santisteban as the person he “hired to print the labels that were used and distributed as part” of the criminal conspiracy. (T. Tr. 287-88). Throughout Cruz’s testimony, he re ferred to a single conspiracy centered around Cruz’s illicit dealings. Santisteban argues that the conspiracy had several purposes, citing “importing drugs, manufacturing drugs, misbranding drugs, and defrauding the FDA.” Santisteban’s invol vement, however, touched on each aspect-13- of the conspiracy. Cruz testified that San tisteban printed labels for over forty different drugs, suggesting that Santisteban was well aware of the scope of the conspiracy. Moreover, “a conspiracy w ith multiple objectives is not the same thing as multiple conspiracies.” Radtke , 415 F.3d at 839. Cruz’s testim ony that Santisteban agreed to print labels for the conspiracy provides suffi cient evidence for a ju ry to conclude that there was a single conspiracy.

* * *

For the foregoing reasons, the judgment of the district court is affirmed.

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