               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.




                                        2
                           NOT FOR PUBLICATION                           FILED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




                                         2
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.

                                          3
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


                                           4
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);


                                         5
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


                                          6
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,


                                           7
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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