NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

SVETLANA MARKEVICH, 

Defendant-Appellant.

No. 15-10457 

D.C. No. 

2:11-cr-00490-JAM-5 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

IRINA MARKEVICH, 

Defendant-Appellant.

No. 15-10550 

D.C. No. 

2:11-cr-00490-JAM-1 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ALEX MARKEVICH, 

No. 15-10551 

D.C. No. 

2:11-cr-00490-JAM-2 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 30 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Defendant-Appellant.

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

DANIIL MARKEVICH, 

Defendant-Appellant.

No. 15-10552 

D.C. No. 

2:11-cr-00490-JAM-4 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ANATOLIY MARKEVICH, 

Defendant-Appellant.

No. 15-10558 

D.C. No. 

2:11-cr-00490-JAM-3 

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted February 5, 2019

San Francisco, California

Before: THOMAS, Chief Judge, and PAEZ and BERZON, Circuit Judges.

The five defendants in this case each obtained a mortgage loan in 2006 or 

2007 from First Franklin Financial Corp., then one of the nation’s largest subprime 

mortgage lenders. Much of the information the defendants told First Franklin 
3 

when applying for loans was false. For example, each defendant falsely 

represented that he or she would live at the house they were purchasing. Each 

defendant also drastically misrepresented his or her assets and monthly income, 

and provided First Franklin with fabricated documents to support these 

misrepresentations. Soon after the loans were originated, the defendants stopped 

making payments on the loans, and their properties were eventually foreclosed.

In 2011, the government charged the defendants with wire fraud under 18 

U.S.C. § 1343. A jury convicted the defendants on all charged counts in May 

2015. They raise four issues on appeal.

1. The defendants first argue that the district court improperly excluded 

proffered testimony by two experts, William Black and Henry Pontell. United 

States v. Lindsey, a decision that post-dates the trial in this case, sets forth a 

“bright-line rule” for the admission and exclusion of expert testimony regarding 

the materiality of false statements made during mortgage fraud schemes. 850 F.3d 

1009, 1017 (9th Cir. 2017). Under Lindsey a defendant cannot offer expert 

testimony on a specific lender’s behavior to disprove the materiality of a 

defendant’s false statements, id. at 1018, but a defendant can offer evidence of

“lending standards generally present in the industry,” id., to prove that a 

defendant’s misstatements were not “capable of influencing” a lender’s decision to

originate a loan. Id. at 1015.
4 

Under this standard, some of the proposed expert testimony should have 

been admitted. Although the defendants indicated that Black and Pontell would 

have testified as to First Franklin’s lending practices during the period when the 

defendants obtained their mortgages, the defendants also indicated that Black and 

Pontell would have testified as to the generally applicable lending standards in the 

mortgage industry at the time of the indictment. And because the government 

sought to establish that the defendants’ statements were material by showing that 

they could have influenced First Franklin’s decision to fund the loan, Black and 

Pontell’s proffered testimony regarding the First Franklin’s lending practices likely 

should have also been admitted in this case. See id. at 1019.

But this error was harmless.1 The defendants attempted to introduce Black 

and Pontell’s testimony regarding lending standards to show that the defendants’

false statements were not material. Black and Pontell would have testified that 

First Franklin and other subprime lenders knew that borrowers were providing 

them false representations as part of their mortgage loan applications and made no 

effort to test the validity of those representations.

This testimony suggests that many lenders did not care whether applicants 

provided truthful statements about their intent to occupy the mortgaged property, 

 

1 We need not determine whether the Chapman standard for harmless error 

or a less stringent standard applies, as this error was harmless beyond a reasonable 

doubt. See Chapman v. California, 386 U.S. 18, 23 (1967). 
5 

their income, and their assets. But it does not suggest that lenders would fund a 

loan even if an applicant omitted that misrepresentation. In the world of mortgage 

financing during the mid-2000s, a borrower’s representations could influence a 

decision to fund a loan even if a lender recognized that those representations could 

be false, or did not care whether or not they were. In testimony submitted by the 

defendants, for example, Black stated that where a loan application originally

stated the applicant made $16,741 in monthly income, instead representing that the 

applicant in fact made $4,000 in monthly income would “tend to prevent the 

funding of the loan.” Thus, if the jurors accepted Black and Pontell’s 

understanding of the mortgage financing industry during this time period, the 

jurors would still have to conclude that the defendants’ misrepresentations were 

material.

2. The defendants also argue that the district court abused its discretion and 

violated the defendants’ Confrontation Clause rights by preventing them from 

cross-examining Vivian Hansen, a former First Franklin employee called by the 

government. The government relied on Hansen’s testimony to establish that 

certain representations in a loan application, such as a borrower’s assets and 

income, would influence First Franklin’s decision to fund a loan.

The district court abused its discretion and violated the defendants’ 

Confrontation Clause rights by severely restricting the defendants’ ability to probe 
6 

Hansen on cross-examination. Even though the government elicited extensive 

testimony from Hansen about First Franklin’s lending standards to establish the 

materiality of the defendants’ misrepresentations, the district court prevented the 

defendants from cross-examining Hansen about how First Franklin actually 

operated. By “prohibit[ing] all inquiry into” a central subject of Hansen’s 

testimony, Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), the district court 

denied the defendants the opportunity to effectively cross-examine Hansen.

But, as with the district court’s erroneous exclusion of expert testimony, this 

error was harmless. There is simply no doubt that the defendants would not have 

received the loans originated by First Franklin had they truthfully represented their 

lack of intent to occupy the purchase properties, and accurately represented their 

assets and income. Thus, further cross-examination of Hansen could not have 

changed the jury’s determination that the defendants’ misrepresentations were 

material.

2

3. The defendants also assert that the district court improperly denied a 

 

2 Take, as one example, the defendants’ false representations that they 

planned to live at the purchased homes. The defendants received mortgages for 

approximately the full value of these properties. They would not have received 

such large mortgages had they not misrepresented their intent to occupy the homes. 

Hansen testified that First Franklin only provided mortgages for the full value of a 

home to borrowers who attested that they would be living in the home; otherwise, 

First Franklin would only offer loans up to 80 percent of the property’s value. And 

the defendants have offered no reason to believe any cross examination would 

have undermined this portion of Hansen’s testimony.
7 

motion for a mistrial after Alex Markevich’s paralegal spoke to one of the jurors in 

a courthouse elevator during a lunch break. “‘We review alleged jury misconduct 

independently, in the context of the entire record’ but ‘accord substantial weight to 

the trial judge’s conclusion as to the effect of alleged juror misconduct.’” United 

States v. Stinson, 647 F.3d 1196, 1216 (9th Cir. 2011) (quoting United States v. 

Madrid, 842 F.2d 1090, 1092 (9th Cir.1988)).

The district court responded to this ex-parte communication appropriately. 

Because the discussion between the paralegal and the juror was improper and 

“possibly prejudicial,” the court correctly held a hearing to determine whether the 

exchange was prejudicial to the defendants. Godoy v. Spearman, 861 F.3d 956, 

967 (9th Cir. 2017) (en banc) (quoting Mattox v. United States, 146 U.S. 140, 150 

(1892)). After that hearing, the district court properly concluded that there was “no 

reasonable possibility that the communication . . . influenced the verdict,” id. at 

968, or “materially affected” the deliberations, United States v. Dutkel, 192 F.3d 

893, 899 (9th Cir. 1999), as each juror stated that he or she could remain impartial 

and decide the case based on the evidence alone.

4. Defendant Irina Markevich also challenges the district court’s decision to 

admit her joint tax return with her husband, Veniamin Markevich, under the public 

records exception to the rule against hearsay. The district court abused its 

discretion by admitting these returns under the public records exception. Tax 
8 

returns are not made by a public office; they are made by the person who filed the

return or that person’s agent. Greenbaum v. United States, 80 F.2d 113, 125 (9th 

Cir. 1935); Fed. R. Evid. 803 advisory committee’s note to 2014 amendment.

Although the government argued only that the tax returns were admissible as 

a public record, the returns were almost certainly admissible as opposing party 

admissions under Federal Rule of Evidence 801(2). See Greenbaum, 80 F.2d at 

125. Regardless, if any error occurred, it was harmless, as there was other 

uncontroverted evidence establishing that Irina Markevich’s stated monthly 

income of $35,000 was wildly inaccurate.

AFFIRMED.