                                                                   NOT PRECEDENTIAL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


                                              2
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


                                              3
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.

                                              4
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.




                                               5
