September 30, 2015 - Third Circuit Court of Appeals Reversed in Part Sentence of Client Based on Fourth Amendment and Sentencing Claims

September 30, 2015, the Third Circuit Court of Appeals affirmed in part and reversed in part the conviction and sentence of Mr. Kent's client, Joseph Nagle, in an appeal involving a Fourth Amendment claim and a sentencing claim.   The case involved an indictment for alleged fraud in highway and bridge construction contracts for prestressed concrete beams and the use of Disadvantaged Business Enterprise (DBE) credits in connection with the contracts.  Mr. Nagle was the CEO and controlling shareholder of the target company and went to trial preserving a Fourth Amendment issue relating to the search and seizure of the company's computer servers.  He also preserved objections to his sentencing, which was based on a sentencing guideline calculation of loss amount based on the gross contract values, estimated to be in excess of $50 million.  After oral argument on both issues, the Third Circuit Court of Appeals in Philadelphia reversed the sentence finding that Mr. Nagle should have been credited against loss amount for the value of the services provided.  The Government had conceded that other than as to the character of the DBE credits, the Government received all it bargained for - the construction and erection of the concrete beams met or exceeded contract requirements.  The Third Circuit remanded for resentencing.  The Court of Appeals affirmed, however, the trial court's finding that Mr. Nagle, as the controlling shareholder and CEO of the family run business did not have standing to challenge the search of the company's servers.  The primary sentencing arguments on appeal were made by attorney Ellen Brotman, who represented a codefendant.  Mr. Kent adopted her arguments as to sentencing.  [Update - November 30, 2015 - the District Court denied relief at resentencing, finding that the fair value of the services rendered should not include the profits derived from the contracts.  It is expected that this will be appealed to the Third Circuit.  Likewise, Mr. Nagle intends to seek certiorari on the Fourth Amendment issue at the Supreme Court.