United States v. Anna Kuzmenko , 671 F. App'x 555 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10452
Plaintiff-Appellee, D.C. No.
2:12-cr-00062-JAM-1
v.
ANNA KUZMENKO, AKA Anna MEMORANDUM*
Sorokina,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted December 14, 2016**
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.
Anna Kuzmenko appeals her conviction for wire fraud, 18 U.S.C. § 1343,
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
arguing that the district court erred in instructing the jury on materiality and in failing
to compel the government to grant immunity to a witness. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
1. Even assuming that Kuzmenko did not waive her objection to the
materiality instruction, the instruction was not plainly erroneous. See United States
v. Peterson, 538 F.3d 1064, 1070 (9th Cir. 2008) (requiring plain error review in
absence of objection to instruction below). In defining materiality, the instruction
used wording substantially similar to that in Neder v. United States, 527 U.S. 1, 16
(1999).
2. The assertion in the indictment that the lender “relied” on Kuzmenko’s
statements was surplusage because the government did not need to prove reliance.
See id. at 24–25 (noting reliance is not an element of wire fraud); United States v.
Renzi, 769 F.3d 731, 756 (9th Cir. 2014) (defining surplusage). Thus, the district
court did not constructively amend the indictment by omitting reliance from the
materiality instruction. See Renzi, 769 F.3d at 757; United States v. Hartz, 458 F.3d
1011, 1019–22 (9th Cir. 2006).
3. Kuzmenko did not ask the district court to compel the government to grant
immunity to the witness who invoked the Fifth Amendment, but rather moved the
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court to deem the witness unavailable and allow his out-of-court statements to be
read to the jury; the court granted that motion. We therefore review for plain error
whether the court should have granted immunity sua sponte. See United States v.
Olano, 507 U.S. 725, 731–32 (1993). There was no error, plain or otherwise.
Kuzmenko has not demonstrated that the witness’s testimony would have been
“relevant,” United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008), because
even assuming the witness could testify that the lender’s employees knew that
Kuzmenko’s loan application contained false statements, that testimony would not
have absolved her of wire fraud. See United States v. Lindsey, 827 F.3d 865, 867
(9th Cir. 2016); United States v. Molinaro, 11 F.3d 853, 857 (9th Cir. 1993).
Moreover, Kuzmenko concedes that the government did not “intentionally” cause
the witness to invoke the Fifth Amendment, and she has not identified any
immunized government witness whose testimony the witness would have “directly
contradicted.” Straub, 538 F.3d at 1162. This is not the “exceptional” case in which
immunity should have been compelled. Id. at 1166.
AFFIRMED.
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