                             NOT FOR PUBLICATION                         FILED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

                                            2
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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