United States v. Gerald Wolfe , 585 F. App'x 583 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50192
Plaintiff - Appellee, D.C. No. 8:10-cr-00191-AG-1
v.
MEMORANDUM*
GERALD L. WOLFE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted October 10, 2014
Pasadena, California
Before: KLEINFELD, GRABER, and OWENS, Circuit Judges.
Defendant Gerald L. Wolfe appeals his conviction of conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349, and the resulting restitution order.
We vacate and remand the restitution order, but otherwise affirm.
1. The suppressed loan files were not material within the meaning of Brady
v. Maryland, 373 U.S. 83 (1963). See United States v. Kohring, 637 F.3d 895, 901
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(9th Cir. 2011) (discussing the elements of a Brady violation); United States v.
Price, 566 F.3d 900, 907 & n.6 (9th Cir. 2009) (stating that we review de novo
asserted Brady violations). The suppressed material would not have affected the
defense arguments or the outcome, being almost entirely cumulative and
introducing no new ground for impeachment.
2. The district court did not err when it rejected Defendant’s proposed jury
instruction because the instructions that the court gave adequately explained that a
conviction required a finding of intent. See United States v. Martinez-Martinez,
369 F.3d 1076, 1083 (9th Cir. 2004) (holding that, on de novo review, it is not
reversible error to reject a proposed instruction if other instructions adequately
cover the theory). Even though the prosecutor arguably misstated the law during
closing argument, the court’s contemporaneous curative instruction and the
prosecutor’s clarification of his statement eliminated any risk that the jury thought
that it could convict without finding intent.
3. Even assuming that introduction of evidence that Defendant refused to
speak with an FBI investigator violated Defendant’s Fifth Amendment right to
remain silent, any error was harmless beyond a reasonable doubt. See United
States v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007) (stating the standard of
review). The FBI investigator testified only briefly about Defendant’s cancellation
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of the meeting, the government did not stress Defendant’s silence to the jury
during closing argument, there was otherwise overwhelming evidence of guilt, and
the jury returned a verdict in less than an hour. See id. (articulating the test for a
harmlessness analysis); United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th
Cir. 2001) (en banc) (holding that longer jury deliberations weigh against a finding
of harmless error because "lengthy deliberations suggest a difficult case" (internal
quotation marks and brackets omitted)).
4. The parties, and we, agree that we should vacate the restitution order and
remand for recalculation. We recently clarified our law on the appropriate way to
calculate restitution in light of Robers v. United States, 134 S. Ct. 1854, 1856
(2014). United States v. Luis, 765 F.3d 1061, 1067 (9th Cir. 2014). On remand,
the district court will now have the benefit of Robers and Luis to guide its analysis.
We VACATE the restitution order and REMAND for recalculation of
restitution. As to all remaining issues, we AFFIRM.
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