United States v. Denise Bonfilio , 611 F. App'x 758 ( 2015 )


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  •                                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 14-1348
    ________________
    UNITED STATES OF AMERICA
    v.
    DENISE BONFILIO,
    Appellant
    ________________
    Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Criminal Action No. 2-09-cr-00205-001)
    District Judge: Honorable Joy Flowers Conti
    ________________
    Submitted Under Third Circuit LAR 34.1(a)
    March 2, 2015
    Before: AMBRO, SCIRICA, and ROTH, Circuit Judges
    (Opinion filed: May 28, 2015)
    ________________
    OPINION*
    ________________
    AMBRO, Circuit Judge
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    In September 2012, Appellant Denise Bonfilio was convicted of multiple federal
    crimes stemming from her participation in a mortgage-fraud scheme. The District Court
    sentenced Bonfilio to 10 years of imprisonment, to be followed by three years of
    supervised release, and ordered her to make restitution in the amount of $4,035,546.86.
    She appeals, contending that (1) she is entitled to an evidentiary hearing on whether a
    trial witness’s false testimony violated her right to due process, (2) her sentence resulted
    in an unwarranted sentencing disparity, and (3) the District Court’s restitution order
    erroneously failed to provide joint and several liability with codefendant Deborah Kitay
    for the portion of restitution common to each of their sentences.
    I.     FACTS
    Beginning in 2005, Bonfilio orchestrated a mortgage-fraud scheme in affluent
    neighborhoods in the Pittsburgh area. To obtain loan proceeds, she recruited a number of
    coconspirators to submit false mortgage applications to lenders. While Bonfilio intended
    to flip the properties at a profit, she instead quickly depleted the funds to support her
    expensive lifestyle, which included private-school tuition for her stepdaughter and
    luxurious vacations to New York City and the Hamptons.
    Before Bonfilio’s trial, her coconspirator and domestic partner, Deborah Kitay,
    pled guilty to her role in the fraud and received an 18-month prison sentence. Thereafter
    the Government called Kitay to testify against Bonfilio during its case-in-chief.
    Although on cross-examination Kitay denied that she was testifying against Bonfilio in
    exchange for favorable treatment just one month after Kitay’s testimony, the Government
    moved the sentencing court for a downward departure in light of Kitay’s “substantial
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    assistance” in prosecuting Bonfilio. As a result, Kitay’s sentence was reduced to time-
    served. On January 24, 2014 the District Court sentenced Bonfilio as noted above.
    After Bonfilio timely appealed her conviction and sentence, she filed a pro se
    motion in the District Court claiming that the Court erroneously ordered that she and
    Kitay each pay the full amount of restitution due to the victim financial institutions. In a
    post-trial order, the District Court acknowledged its restitution order erroneously might
    result in payment of restitution in an amount greater than the victims’ losses, yet it held
    Bonfilio’s notice of appeal divested it of jurisdiction to modify its order. Accordingly, it
    denied Bonfilio’s motion but noted “[t]he court of appeals may instruct the court to
    clarify the order of restitution.”
    II.    ANALYSIS
    A.      Brady/Napue Claims
    Bonfilio first argues that she is entitled to an evidentiary hearing to determine
    whether Kitay “testified falsely that she had no agreement with the [G]overnment
    concerning the possibility of a sentence reduction in exchange for her testimony” at
    Bonfilio’s trial. The Government argues Bonfilio’s allegations are speculative, as she has
    presented no evidence to establish the existence of an undisclosed deal. Finally, it cites
    to Kitay’s plea agreement, included in the parties’ joint appendix, which contains no
    promise of leniency in exchange for her testimony.
    Assuming an agreement between the Government and Kitay did exist, the
    Government’s failure to disclose that deal in advance of trial would have violated the
    Supreme Court’s decision in Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963), which requires
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    the Government to disclose potentially exculpatory material to the defendant. Moreover,
    the Government’s failure to correct Kitay’s testimony denying the agreement would have
    independently violated Napue v. Illinois, 
    360 U.S. 264
    , 269 (1959), which prohibits the
    prosecution from allowing false testimony “to go uncorrected when it appears.”
    Rather than initially bringing these claims to the attention of the District Court
    through a motion for a new trial or otherwise, Bonfilio raises the matters for the first time
    on appeal. Under these circumstances, we see no reason to depart from our general rule
    of not considering an issue raised for the first time on appeal, particularly given that the
    evidence cited by the parties concerning Kitay’s plea agreement lies outside the appellate
    record. Cf. Gov’t of Virgin Islands v. Harrigan, 
    791 F.2d 34
    , 36 (3d Cir. 1986) (“The
    materials in [the] appendix were not presented to the trial court and are outside of the
    record in this case.”). Although we decline to address this claim in the first instance,1 our
    decision is without prejudice to any action Bonfilio may wish to take in the District
    Court, such as filing a habeas corpus petition under 28 U.S.C. § 2255. See, e.g., United
    States v. Ferri, 
    778 F.2d 985
    , 997 (3d Cir. 1985).
    B.     Unwarranted Sentencing Disparity
    Bonfilio next claims that the District Court abused its discretion by sentencing her
    to a greater term of imprisonment than her codefendant Jay Berger, thus creating an
    unwarranted sentencing disparity. As an initial matter, “a ‘[d]isparity of sentence
    1
    While Bonfilio cites cases in which we have remanded criminal defendants’ Brady
    claims to the district court for an evidentiary hearing, these cases all involved appeals
    from the court’s denial of a motion for a new trial under Federal Rule of Criminal
    Procedure 33.
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    between co-defendants does not of itself show an abuse of discretion.’” United States v.
    Hart, 
    273 F.3d 363
    , 379 (3d Cir. 2001) (quoting United States v. Cifuentes, 
    863 F.2d 1149
    , 1156 n.5 (3d Cir. 1988)). Moreover, the District Court did consider the need to
    avoid an unwarranted sentencing disparity between Bonfilio and Berger’s sentences but
    noted that the two individuals were not comparable because Berger, unlike Bonfilio,
    cooperated with the Government. Thus we find the District Court committed no error on
    this ground.
    C.      Restitution
    Finally, Bonfilio appeals the District Court’s denial of her pro se motion, filed
    approximately six weeks after she was sentenced, challenging the Court’s failure to make
    her restitution obligation joint and several with that of Kitay. While the District Court
    correctly held it lacked jurisdiction to grant Bonfilio’s motion because she had filed a
    notice of appeal, it recognized that our decision in United States v. Diaz, 
    245 F.3d 294
    ,
    312 (3d Cir. 2001), forecloses a district court from “order[ing] multiple defendants to pay
    restitution in amounts that will result in the payment to the victim of an amount greater
    than the victim’s loss.” Accordingly, we accept the District Court’s invitation to remand
    its restitution order to allow it to clarify that Bonfilio and Kitay’s restitution obligations
    are joint and several.
    *       *      *       *      *
    Accordingly, we affirm the District Court’s judgment and remand for the limited
    purpose of clarifying the restitution order.
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