                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10435

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00452-PMP-
                                                 CWH-1
 v.

THERESA MARCIANTI,                               MEMORANDUM*

              Defendant - Appellant.


                    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.




        *
             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.
      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.


                                         2
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,




                                           3
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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