                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-1999

USA v. Cohen
Precedential or Non-Precedential:

Docket 97-1888




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Filed February 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-1888 and 98-1004

UNITED STATES OF AMERICA,

       Appellant in No. 97-1888

v.

GERSON COHEN,

       Appellant in No. 98-1004

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 97-124)
District Judge: Honorable Clarence C. Newcomer

Argued June 8, 1998
Reargued January 12, 1999

Before: SCIRICA, NYGAARD, and ROTH,* Circuit Judges

(Opinion filed February 19, 1999)



_________________________________________________________________

* Judge Seitz was a member of the original panel. However, he died
before the matter was decided. Judge Roth has been designated a
member of the panel in his stead.
       Michael R. Stiles
       Walter S. Batty, Jr.
       Amy L. Kurland (Argued)
       Office of the United States Attorney
       Suite 1250
       615 Chestnut Street
       Philadelphia, PA 19106

        Counsel for Appellant/Cross-
        Appellee United States of America

       Catherine M. Recker (Argued)
       Aeryn S. Fenton
       Welsh & Recker, P.C.
       Suite 3402
       1818 Market Street
       Philadelphia, PA 19103

        Counsel for Appellee/Cross-
        Appellant Gerson Cohen

OPINION OF THE COURT

NYGAARD, Circuit Judge.

A jury convicted Gerson Cohen of mail fraud for paying
kickbacks to a grocery store's purchasing agents. Cohen
challenges his conviction, claiming that the evidence was
insufficient; that the Court improperly admitted evidence
that his co-conspirators had pleaded guilty; and that the
Court wrongfully denied judicial immunity to a defense
witness. We will affirm his conviction. The Government
appeals Cohen's sentence, claiming that the District Court
erred in calculating the enhancement by using the dollar
value of the bribes rather than the benefit conferred by the
bribe, and by granting a reduction for accepting
responsibility. We will vacate Cohen's sentence and remand
for resentencing.

I.

Butler Foods, a wholesale meat distribution company,
sells meat to supermarket chains, individual grocery stores,

                               2
and restaurants. Butler Foods' salesmen made illegal cash
payments to customers' meat managers to induce them to
purchase from Butler Foods. The payments usually
amounted to one penny per pound of meat purchased,
provided that the customer bought at least 10,000 pounds
a week. After customers made qualifying purchases, Larry
Lipoff, part owner of Butler Foods, gave the kickback
money to his salesmen, who then delivered the cash to the
meat managers.

Gerson Cohen, a meat salesman for Butler Foods,
participated in this illegal payment scheme. From 1992
through 1995, Cohen paid kickbacks totaling $111,548.21
to five meat managers for Thriftway Food Stores. In
addition to Cohen's regular salary by corporate check,
Butler Foods paid Cohen $500 per week in cash. He failed
to report this income on his tax returns for three years,
resulting in a tax deficiency of $23,939. He was charged
with twenty-five counts of mail fraud, in violation of 18
U.S.C. S 1341, and three counts of subscribing a false tax
return, in violation of 26 U.S.C. S 7206. The District Court
severed the charges and convened a jury trial on mail
fraud.

The jury convicted Cohen on all twenty-five counts of
mail fraud. He then pleaded guilty to the three counts of
income tax fraud. Applying U.S.S.G. S 2B4.1 to Cohen's
participation in the kickback scheme, the District Court
initially assigned a base offense level of 8, then enhanced it
6 levels by using the actual dollar amount of the kickbacks.
It granted Cohen a decrease of 2 levels under U.S.S.G.
S 3B1.2(b) for his minor role in the offense. The Court then
considered Cohen's tax offenses and assigned a combined
offense level of 14 under U.S.S.G. S 3D1.4. Finally, the
Court granted Cohen a reduction of 2 levels for accepting
responsibility under U.S.S.G. S 3E1.1. The District Court
sentenced Cohen to twenty-eight concurrent terms offive
months in prison, five months home confinement, three
years supervised release, a $7500 fine, and a $1400 special
assessment.

                               3
II.

A.

Cohen first argues that the Government's evidence was
insufficient to prove that he used the U.S. mail. We
disagree. An essential element of mail fraud is "the use of
the United States mails in furtherance of the fraudulent
scheme." United States v. Hannigan, 27 F.3d 890, 892 (3d
Cir. 1994). This element requires some competent evidence
that, as a routine business practice or office custom, the
type of document at issue in the case was sent through the
U.S. mail. See id. at 893-94. As we indicated in Hannigan,
"the prosecution need not affirmatively disprove every
conceivable alternative theory as to how the specific
correspondence was delivered," but "some reference to the
correspondence in question is required." Id. at 892-93.

Cohen himself need not have placed the particular
documents into the U.S. mail. A mailing is knowingly
caused within the terms of the statute "[w]here one does an
act with knowledge that the use of the mails will follow in
the ordinary course of business." Pereira v. United States,
347 U.S. 1, 8-9, 74 S. Ct. 358, 363 (1954).1 Here, the
bookkeeper for Butler Foods, who supervised the clerical
workers who were responsible for generating and mailing
invoices, testified extensively about the company's standard
business practice for billing its customers. She testified
that after the meat invoices were prepared, they were
placed in envelopes, run through the postal meter, and put
in a U.S. mail bin which Lipoff took to the post office in his
car. She testified that Butler Foods never used any delivery
method other than the U.S. mail for any of its invoices, and
that the Thriftway invoices at issue in this case were
handled in the normal manner.

A manager at the company testified that it was standard
practice to pick up the invoices in the U.S. mail bin and
_________________________________________________________________

1. In a factually similar case, the Ninth Circuit Court of Appeals held
that a meat buyer for a supermarket chain was subject to the statute
even though he did not personally participate in the relevant mailings.
See United States v. Lea, 618 F.2d 426, 430 (9th Cir. 1980).

                               4
drop them off at the post office, and that he himself did this
on occasion. Finally, an accountant for the Thriftway stores
testified that it was normal business practice for his
company to receive Butler Foods' invoices through the U.S.
mail. This testimony provides sufficient evidence that Butler
routinely delivered its invoices through the U.S. mails.

B.

Next, Cohen argues that the District Court erred by
admitting evidence that the three Thriftway meat managers
whom the Government called as witnesses had pleaded
guilty to receiving kickbacks from Cohen. Cohen contends
that this evidence was inadmissible under Federal Rule of
Evidence 403 because the risk that the jury would convict
him based on his co-conspirators' guilty pleas substantially
outweighed their probative value. We review the admission
of such evidence only for abuse of discretion. See United
States v. Gaev, 24 F.3d 473, 476 (3d Cir. 1994).

Although the plea agreements of co-conspirators are not
admissible to prove the defendant's guilt, they are
admissible for some purposes: to rebut the inference that
the defendant was unfairly singled out for prosecution, to
dampen attacks on credibility, to foreclose an inference that
the prosecution is hiding evidence, to explain the witness's
firsthand knowledge of the defendant's misdeeds, and to
elicit facts bearing on the witness's credibility. In Gaev, we
held that the general principle applicable to the admission
of such testimony is this: "If a co-conspirator who appears
as a witness has pleaded guilty, the trier of fact should
know about the plea agreement in order properly to
evaluate the witness's testimony, unless that would unduly
prejudice the defendant." Id.

Cohen argues that admitting the guilty pleas of the three
Thriftway meat managers was an abuse of discretion
because he promised not to attack their credibility on that
basis. However, "[w]hile plea agreements have often been
admitted in response to actual or anticipated attacks on a
witness's credibility, an attack is not always necessary to
justify their introduction." Id. at 477-78. Even absent any
suggestion by Cohen, it would have been natural for the

                               5
jury to wonder why Cohen was prosecuted but the meat
managers were not. Moreover, the guilty pleas were
admissible to impeach the credibility of the managers,
whose testimony supported Cohen's claim that paying
kickbacks was a common practice in the wholesale meat
industry, and therefore, not criminal. That these same
managers had entered guilty pleas for accepting the
payments contradicted this testimony. The District Court
concluded that admitting the guilty pleas was proper for
one or all of the reasons cited in Gaev and would not be
unduly prejudicial to defendant Cohen.

In any case, a proper limiting instruction will normally
cure a potentially prejudicial admission of plea agreements.
The District Court instructed the jury not to draw
conclusions or inferences about Cohen's guilt from the fact
that prosecution witnesses had pleaded guilty to similar
charges. Because the Government proffered the evidence for
valid purposes, and the District Court gave a sufficient
limiting instruction, admitting the guilty pleas was well
within the Court's discretion.

C.

Cohen also claims that the District Court erred by
refusing to confer judicial immunity on a witness crucial to
his defense. According to Cohen's proffer, Larry Lipoff, part
owner of Butler Foods, would have testified that Harold
Friedland, owner of several Thriftway stores, admitted
knowing of Cohen's kickbacks to two Thriftway meat
managers. That knowledge, the defense contends, would
have prevented Cohen from being found guilty under the
fraud statute. When Cohen attempted to call him as a
defense witness, Lipoff invoked his Fifth Amendment
privilege against self-incrimination. The Government
refused to immunize Lipoff, who was under investigation for
his role in the kickback scheme, and the District Court
refused Cohen's request to confer judicial immunity on
Lipoff.

A judge may confer immunity on a defense witness who
otherwise refuses to testify if five conditions are met: the
immunity is properly sought in the district court, the

                               6
witness is available to testify, the proffered testimony is
clearly exculpatory, the proffered testimony is essential to
the defense, and there is no strong governmental interest
against the immunity. See Government of V.I. v. Smith, 615
F.2d 964, 972-73 (3d Cir. 1980). A potential prosecution of
the prospective witness is a sufficient governmental interest
to countervail a grant of judicial immunity. See United
States v. Lowell, 649 F.2d 950, 965 (3d Cir. 1981). Here,
the Government suspected that Lipoff, as the owner of
Butler Foods and Cohen's employer, was the architect of
the kickback scheme. Lipoff was under investigation at the
time of Cohen's trial and has since been indicted for his
role. Therefore, because the Government had a strong
interest in not immunizing Lipoff, the District Court
correctly denied judicial immunity.

D.

Finally, Cohen argues that the Government is
impermissibly using his post-conviction immunized
testimony. After Cohen's conviction, the Government
granted him use immunity and compelled him to testify
before a grand jury. Shortly thereafter, the Government
appealed Cohen's sentence, and the same prosecutor who
questioned him before the grand jury filed the
Government's appellate brief. Based on this fact, Cohen
claims that the Government is exploiting his immunized
testimony in this appeal.

It is true, of course, that the Government may not use a
witness's compelled immunized testimony as evidence
against him in a subsequent criminal prosecution. See 18
U.S.C. S 6002. Thus, Cohen's immunized testimony may
have tainted a subsequent trial, were we ordering one.
Moreover, the decision of the U.S. Attorney here could
potentially have infected this appeal if Cohen could point to
some information given in the immunized testimony that
the Government is using against him. Cohen, however, has
not alleged any specific manner in which the Government
used the information learned during his immunized
testimony to gain an unfair advantage in this appeal. The
Government supported all factual assertions in its brief
with citations to the District Court record and made no

                               7
reference to Cohen's immunized testimony. Cohen,
therefore, has not shown any prejudice to him from this
dual role of the prosecutor.

III.

The Government appeals Cohen's sentence, arguing that
the District Court misapplied two sections of the United
States Sentencing Guidelines. We review the District
Court's factual findings for clear error. Questions regarding
the District Court's interpretations of the sentencing
guidelines are "purely legal," and thus require plenary
review. United States v. Frierson, 945 F.2d 650, 655 (3d Cir.
1991).

A.

First, the Government argues that the District Court
misinterpreted U.S.S.G. S 2B4.1 by enhancing Cohen's
sentence with reference to the actual dollar amount of the
kickbacks rather than to the net value Butler Foods gained
as a result of those kickbacks. Section 2B4.1(a) assigns an
initial base offense level of 8 to conduct involving
commercial bribery and kickbacks. Subsection (b)(1) then
provides an enhancement based on the greater of two dollar
amounts: "the value of the bribe or the improper benefit to
be conferred." The commentary to this section states that if
the latter figure cannot be estimated, then the court must
use the former. See U.S.S.G. S 2B4.1 application note 6.

At sentencing, the parties disagreed over the correct
interpretation of "improper benefit." The Government
argued that the phrase referred to the net value Butler
Foods gained as a result of Cohen's payment of the
kickbacks. Cohen argued that it referred to the money he
himself pocketed as a result of his kickbacks. In a colloquy
with Cohen's attorney, the District Court appeared to agree
that "improper benefit" meant the money accruing to Cohen
as an individual. The Court then found it "extremely
difficult, if not impossible, to measure the benefit to the
briber in this case." Therefore, it instead used the actual
dollar amount of the kickbacks, $111,548.21, to enhance

                               8
Cohen's base offense by 6 levels. See U.S.S.G.
SS 2B4.1(b)(1), 2F1.1(b)(1)(G).

The District Court misinterpreted "improper benefit."
"Improper benefit" is "the value of the action to be taken or
effected in return for the bribe." U.S.S.G. S 2B4.1
application note 2. The commentary to section 2B4.1 cross-
references section 2C1.1, the comments to which state:

       The value of "the benefit received or to be received"
       means the net value of such benefit. Examples: . .. A
       $150,000 contract on which $20,000 profit was made
       was awarded in return for a bribe; the value of the
       benefit received is $20,000. Do not deduct the value of
       the bribe itself in computing the value of the benefit
       received or to be received. In the above examples,
       therefore, the value of the benefit received would be the
       same regardless of the value of the bribe.

U.S.S.G. S 2C1.1 application note 2 (emphasis added). In
addition, the comments to section 2B4.1 state:

       As with non-commercial bribery, this guideline
       considers not only the amount of the bribe but also the
       value of the action received in return. Thus, for
       example, if a bank officer agreed to the offer of a
       $25,000 bribe to approve a $250,000 loan under terms
       for which the applicant would not otherwise qualify,
       the court, in increasing the offense level, would use the
       greater of the $25,000 bribe, and the savings in
       interest over the life of the loan compared with
       alternative loan terms. If a gambler paid a player
       $5,000 to shave points in a nationally televised
       basketball game, the value of the action to the gambler
       would be the amount that he and his confederates won
       or stood to gain. If that amount could not be estimated,
       the amount of the bribe would be used to determine
       the appropriate increase in offense level.

U.S.S.G. S 2B4.1 application note 6 (emphasis added).

Thus, "improper benefit" refers to the net value accruing
to the entity on whose behalf the individual paid the bribe.
Other courts agree. See, e.g., United States v. Landers, 68
F.3d 882, 884 (5th Cir. 1995) (sales representative who

                               9
paid bribes is subject to enhancement based on the net
value his employer derived from contracts obtained as a
result of the bribes); United States v. Ziglin, 964 F.2d 756,
758 (8th Cir. 1992) (defendant subject to enhancement for
the total amount of improper benefit that resulted from
bribery scheme, not merely for his individual share); United
States v. Kant, 946 F.2d 267, 269 (4th Cir. 1991)
(defendant's sentence must be enhanced based on net
value of improper benefit accruing to him and his two co-
conspirators).

Cohen's attorney conceded at oral argument that this
understanding of "improper benefit" is correct. She
acknowledged that the net value of the contracts gained by
Butler Foods as a result of the Thriftway kickback scheme
would be the appropriate basis for calculating Cohen's
sentence, if the Government's evidence accurately reflected
the net value of these contracts.

At sentencing, the Government adduced evidence of the
"improper benefit" that accrued to Butler Foods. Cohen's
kickbacks induced Thriftway to purchase $10,000,000
worth of meat from Butler Foods, whose seven percent
margin yielded a profit of $700,000. On remand, the
District Court must specifically address the evidence
produced by the Government and any contrary evidence
put forth by Cohen and state its reasons for accepting or
rejecting the evidence. A $700,000 "improper benefit," if
sufficiently proved, mandates an enhancement of 10 levels
to Cohen's base offense. See U.S.S.G. SS 2B4.1(b)(1),
2F1.1(b)(1)(K).

Cohen offers two other arguments to support the District
Court's enhancement calculation. First, he claims that
section 2B4.1(b)(1) permits enhancement based on
"improper benefit" only if that benefit would not have been
realized "but for" the kickback. We do not interpret section
2B4.1 to be so rigid. The text requires the court to estimate
the value of the "improper benefit to be conferred." "To be
conferred" is tentative language that requires something
less than actual causation; it could include any benefit that
the briber expected to receive at the time he paid the bribe,
even if he did not ultimately receive it. If Cohen's reading
were correct, the language would read "improper benefit

                               10
actually conferred" rather than "to be conferred." Moreover,
even if Cohen's claim that most distributors paid kickbacks
to customers is accurate, his "but for" argument fails. If
paying kickbacks to potential customers was as
commonplace as Cohen claims, then it follows that the
contracts secured by Butler Foods as a result of its
acquiescence in this illegal practice would not have been
conferred if Cohen had not made these payments.

Second, Cohen argues that the Government should be
estopped from claiming that the actual dollar amount of the
bribe was the correct measure under section 2B4.1. In
prosecuting the three Thriftway meat managers for their
roles in accepting Cohen's bribes, the Government entered
into plea agreements stating that "the value of the improper
benefit to Butler Foods to be conferred by the
bribery/kickback payments is not readily provable as of the
date of this agreement." In these earlier plea agreements,
the Government simply acknowledged that, at that time, it
did not have enough information to calculate the improper
benefit to Butler Foods. By the time of Cohen's conviction,
the Government had learned the relevant facts--the total
value of meat Thriftway purchased and Butler's profit
margin--that permitted the proper determination. Hence,
Cohen's estoppel theory fails entirely.

We conclude that the District Court misinterpreted
section 2B4.1 and, as a result, may have applied an
incorrect enhancement to Cohen's base offense level. 2 We
will therefore vacate and remand for resentencing. Of
course, it remains for the District Court to find whether the
Government has proven its claims of resulting value by a
preponderance of the evidence. See United States v.
McDowell, 888 F.2d 285, 291 (3d Cir. 1989).
_________________________________________________________________

2. Judge Scirica notes that where the improper benefit conferred on a
principal is grossly disproportionate to the bribe paid and to the amount
received by the agent, and the disproportion is "present to an exceptional
degree," a downward departure under S 5K2.0 might be appropriate.
Koon v. United States, 518 U.S. 81, 96 (1996).

                               11
B.

The Government also argues that the District Court erred
by granting Cohen a 2-level reduction under section 3E1.1.
The District Court must reduce the base offense by 2 levels
"[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense." U.S.S.G. S 3E1.1. The
determination of the sentencing judge as to whether such
acceptance of responsibility has been shown "is entitled to
great deference on review." U.S.S.G. S 3E1.1 application
note 5.

At sentencing, Cohen stated to the Court: "If I would have
known when this started that it was going to be like this,
your Honor, I would have lost the job and I would have
gladly lost it. I'm sorry." The District Court found that
Cohen "has accepted responsibility for his offenses, borne
out by his statements here in court," and granted Cohen
the reduction.

The Government argues that Cohen should not have been
granted this reduction because he went to trial on the mail
fraud counts. This argument is supported by an application
note to section 3E1.1 which states: "This adjustment is not
intended to apply to a defendant who puts the Government
to its burden of proof at trial by denying the essential
factual elements of guilt, is convicted, and only then admits
guilt and expresses remorse." U.S.S.G. S 3E1.1 application
note 2. While the note admits to some rare exceptions (for
example, a defendant may go to trial to "assert and
preserve issues" unrelated to factual guilt), none of those
appear to be applicable to Cohen. See id. In addition, "in
each [rare exception], . . . a determination that a defendant
has accepted responsibility will be based primarily upon
pre-trial statements and conduct." Id.

Cohen argues that the effect of application note 2 is to
create an unconstitutional burden on defendants in
Cohen's position by effectively penalizing them for asserting
their constitutional right to trial. Our holding in Frierson,
945 F.2d at 650, offers some support for this position. In
Frierson, we held that the denial of a reduction under
section 3E1.1 is a penalty which cannot properly be
imposed solely for the defendant's assertion of his Fifth
Amendment privilege. See id. at 658-59.

                                12
The characterization of 3E1.1 reductions has been the
subject of some dispute. Even within circuits, the approach
has occasionally been erratic. Compare United States v.
Parker, 903 F.2d 91, 105 (2d Cir. 1990) ("We, like the
Eleventh Circuit, `are unprepared to equate the possibility
of leniency with impermissible punishment.' "), with United
States v. Oliveras, 905 F.2d 623, 626 (2d Cir. 1990) ("So
long as the defendant's statements are not immunized
against use in subsequent criminal prosecutions, the effect
of requiring a defendant to accept responsibility for crimes
other than those to which he has pled guilty or of which he
has been found guilty is to penalize him."). A majority of the
other courts construe denied 3E1.1 reductions as"denied
benefits" rather than "penalties." See, e.g., United States v.
Frazier, 971 F.2d 1076, 1086 (4th Cir. 1992) ("we fail to see
how withholding the leniency offered in U.S.S.G.S 3E1.1
from those who refuse to waive their right to remain silent
can be thought punitive"); United States v. White, 869 F.2d
822, 826 (5th Cir. 1989) ("The fact that a more lenient
sentence is imposed upon a contrite defendant does not
establish a corollary that those who elect to stand trial are
penalized."); United States v. Henry, 883 F.2d 1010, 1011
(11th Cir. 1989) ("Section 3E1.1 may add to the dilemmas
facing criminal defendants, but . . . [w]e are unprepared to
equate the possibility of leniency with impermissible
punishment."). These decisions often rely on Corbitt v. New
Jersey, 439 U.S. 212, 99 S. Ct. 492 (1978).

We believe that Corbitt controls our decision. In Corbitt,
the Supreme Court held that a New Jersey murder statute
that provided the potential for a shorter sentence to
defendants who pleaded non vult was constitutional and did
not violate the defendant's Sixth Amendment right to trial.
See Corbitt, 439 U.S. at 218, 99 S. Ct. at 497. In doing so,
the Court noted that "not every burden on the exercise of
a constitutional right, and not every pressure or
encouragement to waive such a right, is invalid.
Specifically, there is no per se rule against encouraging
guilty pleas." Id. at 218-19, 99 S. Ct. at 497. To the extent
that Corbitt is in tension with our decision in Frierson, we
must follow the Supreme Court. Sentencing Guideline
3E1.1 creates an analogous incentive for defendants to

                               13
plead guilty, and under Corbitt, this incentive is
constitutional.

Were this simply a matter of determining a defendant's
credibility, we would defer entirely to the District Court
because we cannot claim to have an equal ability to
perceive and judge the defendant's demeanor. That is to
say, the words "I am sorry," uttered by a defiant defendant,
mean nothing. The same words from a contrite defendant
mean everything. Here, however, because the sentencing
guidelines need to be consistently interpreted to serve their
purpose, and because the comments to the various sections
provide an avenue to consistent interpretation, we must see
that they are applied by a sentencing court. We will vacate
and remand for further consideration.

We recognize that this case presents the unusual
situation in which the defendant has pleaded guilty to some
of the charges against him (the tax counts) while going to
trial on others. The sentencing guidelines do not specifically
address this situation, noting only that "truthfully
admitting the conduct comprising the offense(s) of
conviction" is a factor for the judge to consider. U.S.S.G.
S 3E1.1 application note 1(a). In cases such as this, the
trial judge "has the obligation to assess the totality of the
situation in determining whether the defendant accepted
responsibility." McDowell, 888 F.2d at 293 n.2. Were the
District Court able to grant a credit for Cohen's guilty plea
to the three tax charges separately, then we would see no
error. However, the guidelines do not allow for this because
multiple counts of conviction must be grouped before an
adjustment can be made for acceptance of responsibility
under Part E of Chapter 3 of the guidelines. See U.S.S.G.
S 1B1.1. As a result, the "totality" assessment must include
the fact that Cohen originally pleaded not guilty to all the
counts and put the Government to its proof on the majority
of the charges, pleading guilty to the tax counts only after
being convicted on the bribery charges.

IV.

Because we conclude that the District Court
misinterpreted sections 2B4.1 and 3E1.1 of the sentencing

                               14
guidelines, and that it must make findings of fact with
respect to whether the Government has proved the benefit
to be conferred upon Butler Foods, we will vacate Cohen's
sentence and remand for resentencing in accordance with
this opinion. We reject all other allegations of error.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
