                                                                            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                            NOT FOR PUBLICATION                              OCT 27 2014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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