United States v. Olga Palamarchuk ( 2019 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10516
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-1
v. Eastern District of California,
Sacramento
OLGA PALAMARCHUK,
ORDER
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10519
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-3
v.
PETER KUZMENKO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10530
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-2
v.
PYOTR BONDARUK,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-10344
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-4
v.
VERA ZHIRY,
Defendant-Appellant.
Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.
The memorandum disposition filed in this case on November 8, 2019, is
amended by the attached memorandum disposition. With this amended
memorandum disposition, the panel has unanimously voted to deny Pytor
Bondaruk’s petition for panel rehearing. The panel modifies the memorandum to
clarify that it rejects Bondaruk’s arguments concerning 18 U.S.C.§ 3553.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10516
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-1
v.
AMENDED
OLGA PALAMARCHUK, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10519
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-3
v.
PETER KUZMENKO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10530
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-2
v.
PYOTR BONDARUK,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-10344
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-4
v.
VERA ZHIRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted October 23, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.
Olga Palamarchuk, Peter Kuzmenko, Pytor Bondaruk, and Vera Zhiry
appeal their jury convictions for conspiracy to commit mail fraud (all Appellants),
false statements to a bank (Palamarchuk and Bondaruk), and money laundering
(Palamarchuk, Bondaruk, and Zhiry). We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm the convictions, but remand to the district court to resentence
Bondaruk.
1. The district court did not err when it precluded Appellants from
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introducing proffered expert testimony at trial.1 “[E]vidence of the lending
standards generally applied in the mortgage industry” is relevant to the issue of
materiality, however, neither individual victim lender negligence nor an individual
victim lender’s intentional disregard of relevant information is a defense to mail
fraud. United States v. Lindsey, 850 F.3d 1009, 1015–16 (9th Cir. 2017).
Appellants’ notice of expert testimony and their response to the government’s
motion to exclude that testimony demonstrated that Appellants’ expert intended to
testify about the conduct and motives of the victim lenders, not about the standards
and general practices of the mortgage industry. Therefore, the district court did not
err in excluding the expert testimony. Additionally, the exclusion of the expert
testimony and evidence of the victim lenders’ lending practices did not violate the
Confrontation Clause because Appellants had the opportunity to cross-examine the
lender witnesses. See United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007)
(en banc).
2. Count one of the Indictment charged Appellants with conspiracy to
commit mail fraud in violation of 18 U.S.C. § 1349. To establish a single
conspiracy, the government must prove: (1) “that an overall agreement existed
among the conspirators”; and (2) that “each defendant knew, or had reason to
1
The court denies Palamarchuk’s motion for judicial notice of expert testimony
given in a different case before the Eastern District of California.
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know . . . that his benefits were probably dependent upon the success of the entire
operation.” United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999)
(quotations and citations omitted). Here, the government introduced evidence that
Palamarchuk and Bondaruk submitted residential loan applications bearing false
information to purchase two homes and to refinance one of those homes.
Kuzmenko and Zhiry participated in the creation of false documents to facilitate
the receipt of proceeds from the sale of those homes, and Zhiry then distributed
those proceeds to Palamarchuk and another individual. The government
introduced evidence that Bondaruk made false statements to obtain a home equity
line of credit (HELOC) on one of the homes and that Palamarchuk, a loan officer
and the contact person for the home purchases, inflated the appraised value of one
home. The government also presented evidence pursuant to Federal Rule of
Evidence 404(b) that Kuzmenko, Palamarchuk, and Zhiry participated in a similar
scheme around that same time period. Viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
existence of a single conspiracy beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Additionally, the district court did not plainly err by failing to give a specific
unanimity instruction sua sponte because there did not appear to be a “‘genuine
possibility of jury confusion or that a conviction may occur as the result of
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different jurors concluding that the defendant committed different acts.’” United
States v. Gonzalez, 786 F.3d 714, 717 (9th Cir. 2015) (quoting United States v.
Chen Chiang Liu, 631 F.3d 993, 1000 (9th Cir. 2011)). The indictment described
one conspiracy, named all four defendants, and identified the object of the
conspiracy. The government’s opening and closing arguments referred to a single
agreement, and the evidence was not so complex to suggest a likelihood of juror
confusion.
3. Count two of the Indictment charged Palamarchuk and Bondaruk with
making materially false statements to a bank for purposes of influencing the bank
in connection with the HELOC in violation of 18 U.S.C. § 1014. The government
submitted evidence that Palamarchuk helped Bondaruk submit residential loan
applications bearing false information to purchase two homes, received
commissions related to those transactions, was involved in the distribution of
proceeds from those transactions, and she inflated the appraisal of one of the
homes.
Viewing the evidence in the light most favorable to the prosecution, any
rational juror could have concluded that Palamarchuk violated § 1014 under a
Pinkerton theory of liability because it was reasonably foreseeable and within the
scope of the conspiracy that Bondaruk would make false statements to a bank to
obtain another loan. See Pinkerton v. United States, 328 U.S. 640, 646–47 (1946);
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see also United States v. Gadson, 763 F.3d 1189, 1215–17 (9th Cir. 2014).
4. Appellants also argue there was insufficient evidence to satisfy the
mailing element of mail fraud underlying their conspiracy and money laundering
convictions, and they challenge the jury instruction related to the mailing element
of mail fraud. See 18 U.S.C. §§ 1341, 1349, 1957. Mail fraud has two elements
“(1) having devised or intending to devise a scheme to defraud (or to perform
specified fraudulent acts), and (2) use of the mail for the purpose of executing, or
attempting to execute, the scheme (or specified fraudulent acts).” Schmuck v.
United States, 489 U.S. 705, 721 (1989). The government presented evidence that
the lenders required the recorded deeds of trust be returned to them, and that the
deeds of trust were mailed to the lenders as evidence of the collateral to secure the
loans. Viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the element of mailing beyond a reasonable
doubt because mailing the recorded deed of trust to the lender was “part of the
execution of the scheme as conceived” by Appellants. Schmuck, 489 U.S. at 715.
Additionally, when considered as whole, the jury instructions on the mailing
element were not “‘misleading or inadequate to guide the jury’s deliberation.’”
United States v. Liew, 856 F.3d 585, 596 (quoting United States v. Hofus, 598 F.3d
1171, 1174 (9th Cir. 2010)). The instructions properly stated that the use of the
mail must be “incident to” the scheme, and also instructed that the mailing must be
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used as “part of the scheme,” to “carry out or attempt to carry out an essential part
of the scheme.” See Schmuck, 489 U.S. at 710–11 (stating that “[i]t is sufficient
for the mailing to be incident to an essential part of the scheme or a step in [the]
plot”) (internal quotation and citation omitted)).
5. The district court did not err when it admitted Palamarchuk’s
statements made during a recorded conversation with a cooperating witness. When
examined in context, Palamarchuk’s statements were against her penal interest
because they concerned her knowledge of the conspiracy and her participation with
Kuzmenko and Bondaruk in activities to further the conspiracy. See Fed. R. Evid.
804(b)(3); United States v. Paguio, 114 F.3d 928, 933–934 (9th Cir. 1997).
While Palamarchuk’s statements about Bondaruk drinking and being lazy
were improper, see Fed. R. Evid. 404(a), the admission of those statements was
harmless because they supported Bondaruk’s theory that Palamarchuk was biased
against him and because there was overwhelming evidence connecting Bondaruk
to the real estate transactions and the related false statements. See United States v.
Lui, 941 F.2d 844, 848 (9th Cir. 1991).
Additionally, the admission of Palamarchuk’s statements did not violate the
Confrontation Clause because, when viewed objectively, reasonable participants
would have considered the purpose of Palamarchuk’s meeting with the cooperating
witness as a conversation between friends over dinner. See Michigan v. Bryant,
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562 U.S. 344, 360–61 (2011).
6. The district court did not abuse its discretion by denying Zhiry a
minor role adjustment under § 3B1.2(b) of the Sentencing Guidelines. The district
court applied the relevant factors to Zhiry’s role in the overall conspiracy and
reasonably concluded that, compared to the other participants, she was an average
participant based on her role in creating a fraudulent deed of trust to obtain
proceeds from the conspiracy and in distributing those proceeds. See United States
v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016).
7. The district court did not abuse its discretion by imposing a partially
consecutive sentence on Kuzmenko to punish him for his conduct in this case. See
18 U.S.C. § 3584(a).
8. At sentencing, the district court recognized its obligation to consider
the 18 U.S.C. § 3553 factors, considered and rejected Bondaruk’s arguments for a
variance from the Sentencing Guidelines, and adequately explained its rationale for
sentencing Bondaruk within the Guidelines range.
9. The government concedes error because the district court did not
consider all relevant factors when denying Bondaruk a minor role adjustment. See
Quintero-Leyva, 823 F.3d at 523. We vacate Bondaruk’s sentence and remand to
the district court for resentencing considering the factors relevant to a minor role
adjustment under Sentencing Guidelines § 3B1.2(b), comment, n. 3(c).
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AFFIRMED in part, VACATED in part, and REMANDED.
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