United States of America v. Theresa Marcianti

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THERESA MARCIANTI,
Defendant - Appellant.
No. 14-10435
D.C. No. 2:11-cr-00452-PMP-
CWH-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted November 16, 2015**
San Francisco, California
Before: O’SCANNLAIN and M. SMITH, Circuit Judges and MORRIS,*** District
Judge.
FILED
DEC 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Federal Rule of Appellate Prodcedure 34(a)(2).
*** The Honorable Brian M. Morris, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.

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Theresa Marcianti appeals her convictions for bank fraud and wire fraud, 18
U.S.C. §§ 1343–44, aiding and abetting bank fraud and wire fraud, 18 U.S.C. § 2,
and conspiracy to commit bank fraud, mail fraud, and wire fraud, 18 U.S.C.
§ 1349. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
The district court properly rejected Marcianti’s motion for a new trial
following the government’s post-trial disclosure of evidence that could have been
used to impeach a government witness. In a criminal proceeding, the prosecution
may not suppress evidence favorable to the accused when such evidence is material
to determining the defendant’s guilt or punishment. Brady v. Maryland, 373 U.S.
83, 87 (1963). Such a duty encompasses impeachment evidence, United States v.
Bagley, 473 U.S. 667, 676 (1985), and applies regardless of whether the defense
makes a request for evidence, United States v. Agurs, 427 U.S. 97, 107 (1976). To
be granted relief under Brady, a defendant must demonstrate that the evidence in
question was favorable to his case, the government willfully or inadvertently
suppressed it, and the suppression prejudiced the defendant. Milke v. Ryan, 711
F.3d 998, 1012 (9th Cir. 2013).
The government did not suppress evidence relating to Suzanne McAllister’s
testimony regarding her engaging in misconduct while working for Jamie Skelton.
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Before trial, the prosecution shared with the defense McAllister’s plea agreement,
in which McAllister admitted to taking actions in furtherance of the lending
scheme on June 16, 2006, and July 25, 2006—during which time she worked for
Skelton. As Marcianti had such evidence available to her before trial and simply
failed to make use of it to impeach McAllister’s false statement, there was no
suppression for Brady purposes.
The government’s failure to disclose evidence relating to McAllister’s
tenancy in the home of Lloyd Gardley, a straw buyer in the mortgage scheme, did
not violate due process under Brady because Marcianti suffered no prejudice as a
result. As such evidence was favorable to the defense given its potential use to
impeach McAllister, see Bagley, 473 U.S. at 676, the prosecution had an
“inescapable” duty to disclose it, regardless of whether the government realized
that McAllister’s statement on the stand was false, see Kyles v. Whitley, 514 U.S.
419, 438–39 (1995). However, given the overwhelming evidence presented against
Marcianti, which included numerous witnesses and voluminous documents
demonstrating fraudulent conduct, Marcianti has failed to demonstrate “that ‘there
is a reasonable probability’ that the result of the trial would have been different if
the suppressed documents had been disclosed to the defense.” Strickler v. Greene,
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527 U.S. 263, 289 (1999). Because the trial produced “a verdict worthy of
confidence,” Kyles, 514 U.S. at 434, there was no Brady violation.
II
The district court did not err in denying Marcianti’s motion to reconsider the
exclusion of her proposed expert witness. A district court’s tentative exclusion of
evidence through an in limine ruling may not be challenged on appeal unless the
aggrieved party attempted to offer the evidence at trial. United States v.
Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015). When the district court denied
Marcianti’s motion to use Ronald Bloecker as an expert witness, it did so without
prejudice, advising Marcianti that she would have an opportunity to renew her
motion following the government’s case in chief; the court even expressed a
willingness to preview testimony outside the presence of the jury. Marcianti never
took the district court up on its offer. Because Marcianti failed to renew her motion
during trial, the district court’s order may not be challenged on appeal. See id.
AFFIRMED.
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