New opinions — a criminal-sentencing reversal and a close look at stays pending appeal

US v. Nagle — criminal — reversal — Fisher

Two co-owners of a construction business were convicted of fraud and other charges. Apparently they were non-minority contractors who collaborated with a minority contractor; the minority business would bid on contracts and then give the defendants all the work. Both defendants challenged the sentencing court’s loss calculation, and today the Third Circuit vacated their sentences and reversed. The court held that the proper loss amount was not the face value of the work contracts: the fair market value of the services provided by the defendants had to be subtracted when calculating the loss. The court also rejected the government’s argument that the 10-level departures the defendants received rendered the loss-calculation error harmless.

Joining Fisher were Roth and Hardiman in part. Hardiman briefly concurred in the judgment in part. Arguing counsel were Ellen Brotman of Griesing Law for one defendant, William Kent for the other, and Bruce Bandler and Jenny Ellickson for the government.


In re: Revel AC — procedure, bankruptcy — reversal — Ambro

The Third Circuit today explained its prior-issued ruling reversing a district court’s denial of a request for a stay pending appeal. The case arises out of the Revel AC casino bankruptcy. In his majority opinion, Judge Ambro began, “We seldom focus on how to balance the four factors that determine whether to grant a stay pending appeal despite the practical and legal importance of those procedural standstills. So we take this opportunity to do just that.” (Entertaining mid-stringcite footnote: “Yes, we realize this is the same Circuit Court in the same year. Read on and realize that we are not immune from internal tensions in our opinions.”)

Joining Ambro was Krause; Shwartz dissented. Both opinions are strong. Arguing counsel were Jeffrey Cooper for the appellant and Jason Zakia for the debtor.