# United States v. Joseph Nagle

> Court of Appeals for the Third Circuit · September 30, 2015 · 803 F.3d 167

URL: https://www.frixlaw.com/law-library/cases/9815440

## Case

- **Full name:** UNITED STATES of America v. Joseph W. NAGLE, Appellant, No. 14-3184. Ernest G. Fink, Appellant, No. 14-3422
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 30, 2015
- **Citations:** 803 F.3d 167; 2015 U.S. App. LEXIS 17187; 2015 WL 5712253
- **Precedential status:** Published
- **Opinion:** Concurrence by Hardiman
- **Judges:** Fisher, Hardiman, Roth
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9815440

## How later opinions describe it (automated extraction)

- declining to decide whether the government benefits rule applies to affirmative action contracting programs, but concluding that, “regardless of which application note is used, the District Court should calculate the amount of loss” by “taking the face value of the’ contracts …

## Opinion text

HARDIMAN, Circuit Judge,
concurring in part and concurring in the judgment.
I join all but Section III-A-2 of the opinion of the Court, and I concur in the judgment in full. Because the loss amount calculation in a DBE fraud case of this kind is governed by Application Note 3(A) *184 to § 2B1.1 of the Sentencing Guidelines, I would hold that the “government benefits” provision does not apply here.
In United States v. Nathan, we characterized as “fraudulent procurement” a contractor’s false statements to the Government that it would comply with the Buy American Act by not using foreign components in performing the contracts at issue. 188 F.3d 190, 194, 210 (3d Cir.1999); see also United States v. Biberfeld, 957 F.2d 98, 99 (3d Cir.1992) (describing as procurement fraud a contractor’s concealment of the fact that his supplies originated in Pakistan). As in Nathan, the defendants here conspired to lie to the Government about their compliance with federal regulations in order to receive contracts that otherwise would have gone to others. This is classic procurement fraud.
The Sentencing Guidelines make clear that the loss calculation in a procurement fraud case is covered by the “general rule” of Application Note 3(A). A subdivision of that note, Note 3(Á)(v)(II), specifically addresses how Note 3(A) is to be applied in procurement fraud cases. This suggests that Note 3(F)(ii), a “special rule” designed for cases involving the fraudulent receipt of public benefits like welfare payments, has no place in a procurement fraud case. I would therefore vacate and remand for the District Court to apply Note 3(A) in accordance with the guidance provided by the Court in Section III-A-1 of its opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9815440. Public record. Not legal advice.