Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-10-2025 
Consol Mining Co LLC v. United States Department of Labor 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Consol Mining Co LLC v. United States Department of Labor" (2025). 2025 Decisions. 554. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/554 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
No. 24-1873 
______________ 
CONSOL MINING CO LLC; CONSOL ENERGY INC, c/o Sedgwick CMS, 
       Petitioners 
 
v. 
 
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS UNITED 
STATES DEPARTMENT OF LABOR; VONDA SILK, surviving spouse of Stanley D. 
Silk, deceased 
______________ 
On Petition for Review of a Decision and Order of the  
United States Department of Labor Benefits Review Board 
(BRB No. 23-0380 BLA) 
______________  
Submitted Under Third Circuit L.A.R. 34.1(a) 
June 17, 2025 
 
Before: CHAGARES, Chief Judge; MONTGOMERY-REEVES and McKEE, Circuit 
Judges. 
 
(Opinion filed: July 10, 2025) 
______________ 
OPINION 
______________ 
MONTGOMERY-REEVES, Circuit Judge. 
When Stanley D. Silk passed away after working as an underground coal miner for 
thirty-nine years, his spouse filed a claim for benefits under the Black Lung Benefits Act.  
 
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
See 30 U.S.C. § 901 et seq.  An Administrative Law Judge (“ALJ”) determined that she 
was entitled to benefits, and the United States Department of Labor’s Benefits Review 
Board (the “Board”) affirmed.  Consol Mining Company and Consol Energy, Inc. 
(“Consol Mining”) petitioned for review and argues that the ALJ’s award of benefits was 
unsupported by substantial evidence.  Because we disagree, we will deny the petition for 
review. 
I. DISCUSSION1 
The Black Lung Benefits Act provides benefits to coal miners or their eligible 
survivors “for death or disability due to” black lung disease, medically known as 
“pneumoconiosis.”  30 U.S.C. § 901(a).  In this case, the ALJ applied a rebuttable 
presumption that Silk died because of pneumoconiosis.  See 30 U.S.C. § 921(c)(4).  
Consol Mining could rebut this presumption by establishing (1) that Silk had neither 
“[l]egal pneumoconiosis” nor “[c]linical pneumoconiosis,” or (2) “that no part of [his] 
death was caused by pneumoconiosis.”  20 C.F.R. § 718.305(d)(2).  Because the ALJ 
 
1  The Board had jurisdiction over Consol Mining’s appeal from the ALJ’s order pursuant 
to 33 U.S.C. § 921(b)(3), as incorporated by 30 U.S.C. § 932(a).  We have jurisdiction 
pursuant to 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a). 
“We have plenary review of the Board’s legal determinations.”  Helen Mining Co. v. 
Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Lab., 650 F.3d 248, 254 (3d Cir. 
2011) (citation omitted).  “In instances where a party challenges a finding of fact by the 
Board or the ALJ, ‘we must independently review the record and decide whether the 
ALJ’s findings are supported by substantial evidence.’”  Id. (quoting Kertesz v. Crescent 
Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986)).  “‘Substantial evidence’ has been 
defined as ‘more than a mere scintilla.  It means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.’”  Smith v. Califano, 637 F.2d 
968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). 
 
3 
 
determined that Consol Mining failed to rebut the presumption, Consol Mining filed this 
petition for review.  We will address each issue in turn. 
A. Pneumoconiosis 
The ALJ found that Consol Mining failed to establish that Silk did not have legal 
pneumoconiosis.2  Legal pneumoconiosis refers to “any chronic lung disease or 
impairment and its sequelae arising out of coal mine employment.”  20 C.F.R. 
§ 718.201(a)(2).  Thus, to rebut the presumption that Silk had legal pneumoconiosis, 
Consol Mining needed to establish before the ALJ that Silk did not have “any chronic 
pulmonary disease or respiratory or pulmonary impairment significantly related to, or 
substantially aggravated by, dust exposure in coal mine employment.”  20 C.F.R. 
§ 718.201(b). 
The ALJ considered three medical opinions in resolving this question.  We have 
explained that the ALJ’s “discretion to determine the weight accorded each doctor’s 
opinion” is “broad.”  Balsavage v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of 
Lab., 295 F.3d 390, 396 (3d Cir. 2002) (citing Dir., Off. of Workers’ Comp. Programs, 
U.S. Dep’t of Lab. v. Mangifest, 826 F.2d 1318, 1326 (3d Cir. 1987)).  As a result, the 
“ALJ is not bound to accept the opinion or theory of any medical expert, but may weigh 
the medical evidence and draw its own inferences.”  Id. (quoting Mancia v. Dir., Off. of 
Workers’ Comp. Programs, U.S. Dep’t of Lab., 130 F.3d 579, 588 (3d Cir. 1997)).  
 
2  The ALJ also determined that Silk suffered from clinical pneumoconiosis.  Because 
substantial evidence supports the ALJ’s determination that Silk suffered from legal 
pneumoconiosis, we need not discuss this finding. 
 
4 
 
Further, when weighing the opinions of medical experts, the ALJ “may disregard a 
medical opinion that does not adequately explain the basis for its conclusion.”  Lango v. 
Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Lab., 104 F.3d 573, 578 (3d Cir. 
1997) (quotation omitted). 
Consol Mining argues that the ALJ improperly discounted the opinion of 
Dr. Stephen Basheda.  Dr. Basheda posthumously diagnosed Silk with, among other 
things, possible chronic obstructive pulmonary disease (“COPD”) with an asthmatic 
component, but he attributed it to tobacco use or rheumatoid arthritis, not to 
pneumoconiosis or Silk’s work in the mines.  Consol Mining challenges the ALJ’s 
determination that “Dr. Basheda’s opinion as to the etiology of the miner’s COPD/asthma 
is not well-documented, well-reasoned, nor entitled to any weight.”  App. 49.  
Specifically, Consol Mining suggests the ALJ reached this conclusion by ignoring Silk’s 
rheumatoid arthritis, heavy tobacco use, and evidence that Silk was prescribed 
bronchodilators, which would not help COPD caused by coal mine dust. 
But the question is whether Silk’s COPD was “significantly related to, or 
substantially aggravated by, dust exposure in coal mine employment,” not whether 
rheumatoid arthritis or tobacco use were involved.  20 C.F.R. § 718.201(b).  Under this 
standard, the ALJ found that Dr. Basheda failed to explain why Silk’s diagnosis did not 
constitute legal pneumoconiosis regardless of the presence of other factors, and as 
support the ALJ cited to research by the Department of Labor establishing that coal mine 
dust exposure is linked to COPD.  See Regulations Implementing the Federal Coal Mine 
Health and Safety Act, 65 Fed. Reg. 79920, 79940 (Dec. 20, 2000) (“[A]nalysis of data 
 
5 
 
from miners who worked only in dust-controlled conditions confirm the connection 
between coal mine dust exposure and obstructive lung disease.”).  The Department of 
Labor’s findings “unquestionably support[] the reasonableness of [the ALJ’s] decision to 
assign less weight to [Dr. Basheda’s] opinion.”  Helen Mining, 650 F.3d at 257. 
All told, the ALJ carefully exercised its broad discretion to determine the weight 
of Dr. Basheda’s opinion, and we will not weigh it anew.  Balsavage, 295 F.3d at 396.  
The ALJ then turned to the unchallenged, reliable opinions of two medical experts who 
opined that Silk’s COPD constitutes legal pneumoconiosis.  Based on the evidence 
presented and the relevant weight assigned to the medical opinions, the ALJ agreed that 
Silk suffered from legal pneumoconiosis.  Taken together, we hold that substantial 
evidence—that is, “more than a mere scintilla”—supports the ALJ’s determination that 
Consol Mining failed to establish that Silk did not have legal pneumoconiosis.  Id. at 395 
(quoting Richardson, 402 U.S. at 401).3 
B. Cause of Death 
The ALJ found that Consol Mining failed to establish “that no part of [Silk’s] 
death was caused by pneumoconiosis.”  20 C.F.R. § 718.305(d)(2)(ii).  Silk’s death 
certificate listed cardiopulmonary arrest, septic shock, pneumonia, and cholecystitis as 
causes of death.  The ALJ gave “no weight” to the death certificate because nothing 
 
3  We summarily reject Consol Mining’s separate argument that the ALJ was biased.  
Consol Mining objects to a statement the ALJ made about the general ineffectiveness of 
supplemental expert reports.  But the ALJ made clear he would give Consol Mining the 
opportunity to file one and read it with an open mind.  We detect no bias, and we do not 
see how this exchange “tainted” the proceedings below.  Opening Br. 56. 
 
6 
 
suggested the physicians who signed the death certificate “possessed any relevant 
qualifications or personal knowledge of the miner upon which to assess the cause of 
death.”  App. 52.  Consol Mining argues that the ALJ improperly overlooked the death 
certificate’s omission of pneumoconiosis as a cause of death.4 
We disagree.  Even if the ALJ were to give the death certificate evidentiary 
weight, we have explained that an “immediate cause of death [of] cardiac arrest does not 
preclude the possibility that the miner had a respiratory or pulmonary impairment; the 
two conditions are not inconsistent with each other.”  Mancia, 130 F.3d at 587 (quoting 
Smakula v. Weinberger, 572 F.2d 127, 133 (3d Cir. 1978)).  And here, the ALJ found an 
opinion of an expert witness that Silk’s “pneumoconiosis contributed to his risk of 
infection and that his lung functioning reduced his ability to tolerate severe infection” 
was “well-reasoned and entitled to great weight.”  App. 55.  Given that the death 
certificate lists pneumonia (that is, an infection of the lungs) as a cause of death, the death 
certificate does not negate the ALJ’s determination that Consol Mining failed to establish 
that no part of Silk’s death was caused by pneumoconiosis.  As a result, substantial 
 
4  Consol Mining also argues that the ALJ’s improper discrediting of Dr. Basheda 
affected how the ALJ viewed his testimony about Silk’s cause of death.  Because “the 
credibility of a doctor’s judgment as to whether pneumoconiosis is a cause of a miner’s 
disability is necessarily influenced by the accuracy of his underlying diagnosis, which 
lies at the heart of any claim for black lung benefits,” the ALJ was entitled to discount 
Dr. Basheda’s testimony about Silk’s cause of death.  Hobet Mining, LLC v. Epling, 783 
F.3d 498, 504 (4th Cir. 2015); accord Soubik v. Dir., Off. of Workers’ Comp. Programs, 
U.S. Dep’t of Lab., 366 F.3d 226, 234 (3d Cir. 2004) (“Common sense suggests that it is 
usually exceedingly difficult for a doctor to properly assess the contribution, if any, of 
pneumoconiosis to a miner’s death if he/she does not believe it was present.”). 
 
7 
 
evidence supports the ALJ’s determination that Consol Mining did not establish that no 
part of Silk’s death was caused by pneumoconiosis. 
II. CONCLUSION  
For the foregoing reasons, we will deny the petition for review.  


Consol Mining Co LLC v. United States Department of Labor

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-16-2025 
USA v. Peter Mauchlin 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Peter Mauchlin" (2025). 2025 Decisions. 570. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/570 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
DLD-180        NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1537 
___________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
PETER P. MAUCHLIN, 
   Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Criminal Action No. 4:95-cr-00235-001) 
District Judge:  Honorable Matthew W. Brann 
____________________________________ 
 
Submitted by the Clerk for Possible Dismissal Due to Untimely Filing or for Summary 
Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
July 10, 2025 
 
Before: RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed July 16, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 Peter P. Mauchlin appeals pro se from the District Court’s order denying his 
motion for reconsideration regarding his prior motion for compassionate release.  He has 
also filed a motion seeking the appointment of counsel in his appeal. We will summarily 
affirm the District Court’s order and deny the motion for appointment of counsel. 
 In the early 1970s, Mauchlin was convicted of participating in a string of bank 
robberies and sentenced to a total term of 45 years. United States v. Mauchlin, 464 F.2d 
1280, 1281 (3d Cir. 1972). Since that time, Mauchlin has been convicted of being 
involved in an attempted prison escape and multiple assaults, which have added an 
additional 29 years to his aggregate sentence. See, e.g., United States v. Mauchlin, 670 
F.2d 746, 748 (7th Cir. 1982); United States v. Mauchlin, 114 F.3d 1173 (3d Cir. 1997) 
(table). His current release date is December 1, 2031.  
 In 2022, Mauchlin filed a motion for a reduction of his sentence pursuant to 18 
U.S.C. § 3582(c)(1)(A)(i), in which he argued that his advanced age, comorbid medical 
conditions, extended incarceration in solitary confinement, and susceptibility to COVID-
19 warranted his early release. The District Court denied Mauchlin’s motion because 
Mauchlin had failed to show extraordinary and compelling circumstances which might 
warrant relief, as Mauchlin had been fully vaccinated against the virus. Mauchlin did not 
appeal. 
 Two years later, in 2024, Mauchlin filed a motion asking the District Court to 
reconsider its prior denial of his motion for compassionate release, because his health had 
further declined since the time of the Court’s original order. The District Court denied the 
motion, holding that Mauchlin had not presented any “new evidence that would 
 
3 
 
undermine the Court’s prior decision.” Order Denying Motion for Reconsideration, ECF 
No. 111 at 2. Mauchlin appealed, and requests the appointment of counsel.  
 The District Court did not abuse its discretion in denying Mauchlin’s motion for 
reconsideration. Motions for reconsideration are to be used sparingly, and should only be 
granted if the movant can show “(1) an intervening change in the controlling law; (2) the 
availability of new evidence . . . or (3) the need to correct a clear error of law or fact or to 
prevent manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 
F.3d 669, 677 (3d Cir. 1999); see also Dupree, 617 F.3d at 732-33. As the District 
Court’s order correctly opined, Mauchlin’s motion did not present any grounds that 
would cause the Court to question the correctness of its prior order denying relief, as it 
presented no intervening change in law, and presented factual developments which 
occurred over two years after the time of the District Court’s original denial. See Dupree, 
617 F.3d at 733. Further, nothing in Mauchlin’s petition explains how his new conditions 
“substantially diminish the ability of [Mauchlin] to provide self-care within the 
environment of a correctional facility.” ECF No. 111 at 2 (quotation omitted). Our 
affirmance does not prevent Mr. Mauchlin’s filing of a second motion for compassionate 
release under § 3582. 
Accordingly, because Mauchlin’s appeal does not present a substantial question, 
we will summarily affirm the judgment of the District Court. Mauchlin’s motion for 
appointment of counsel is denied. 
 


USA v. Peter Mauchlin

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-16-2025 
USA v. Martins Inalegwu 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Martins Inalegwu" (2025). 2025 Decisions. 571. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/571 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2594 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
MARTINS INALEGWU, a/k/a Martins Friday Inalegwu, 
     Appellant 
____________ 
 
On Appeal from the United States District Court  
for the District of New Jersey 
(D.C. Criminal No. 1:23-cr-00282-001) 
District Judge: Honorable Christine P. O’Hearn 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
June 5, 2025 
 
Before:  HARDIMAN, BIBAS, and FISHER, Circuit Judges. 
 
(Filed:  July 16, 2025) 
____________ 
 
OPINION* 
____________ 
 
FISHER, Circuit Judge. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 
does not constitute binding precedent. 
 
 
2 
Martins Inalegwu participated in a widespread and complex financial fraud 
scheme. Once apprehended, he pled guilty to committing, and conspiring to commit, 
illegal money transmission1 and income tax evasion.2 Inalegwu and the Government 
agreed that his offense level was 28, with Inalegwu potentially being eligible for multiple 
reductions, including a two-level reduction as a zero-point offender.3 However, the 
District Court declined to impose the reduction given the severity of the crime and 
sentenced Inalegwu to 80 months’ imprisonment. On appeal, Inalegwu argues that we 
should vacate his sentence because the District Court erred in its Guidelines calculation 
and violated his right to allocution by cross-examining him during his sentencing 
allocution.4 We, however, perceive no such errors and will affirm the sentence of the 
District Court.  
First, Inalegwu argues that the District Court miscalculated his Guidelines range 
by denying the zero-point offender reduction. We review the District Court’s 
interpretation of the Guidelines de novo, we review its factual findings for clear error, 
“and we ‘give due deference to the district court’s application of the [G]uidelines to the 
 
1 18 U.S.C. §§ 1960, 2. 
2 26 U.S.C. § 7201; 18 U.S.C. § 2. 
3 U.S.S.G. § 4C1.1. 
4 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 
(federal crimes). We have appellate jurisdiction under both 18 U.S.C. § 3742(a) (review 
of a sentence) and 28 U.S.C. § 1291 (final decisions of district courts).  
 
 
3 
facts.’”5 To be eligible for the zero-point offender reduction, Inalegwu must not have 
“personally cause[d] substantial financial hardship.”6 While the parties invite us to opine 
on the contours of personally causing financial hardship, we do not need to do so here: 
“[e]ven if we determine that the District Court committed procedural error,” such as 
miscalculating the Guidelines range as Inalegwu argues, “we may still uphold its 
sentence if the error was harmless.”7  
Miscalculating the Guidelines is a non-constitutional error and “is harmless when 
‘it is highly probable that the error did not prejudice’ the defendant.”8 If the record 
establishes “that there is a high probability ‘that the sentencing judge would have 
imposed the same sentence under a correct Guidelines range,’” it is highly probable that 
the defendant was not prejudiced by the calculation error.9 When discerning whether this 
high probability exists, we may consider whether the court made a clear statement of its 
intent to impose the same sentence even if the range were calculated differently, whether 
the sentence departed from the advisory range, and whether the court demonstrated 
awareness of the relevant facts and circumstances.10  
 
5 United States v. Zabielski, 711 F.3d 381, 386 (3d Cir. 2013) (quoting United 
States v. Thomas, 327 F.3d 253, 255 (3d Cir. 2003)). 
6 U.S.S.G. § 4C1.1(a)(6). 
7 Zabielski, 711 F.3d at 386. 
8 United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008) (citation omitted). 
9 Zabielski, 711 F.3d at 387 (quoting Langford, 516 F.3d at 216). 
10 See id. at 387–90 (noting it is sometimes discernible from the record that the 
choice between two possible Guidelines ranges “did not affect the actual sentence”). 
 
 
4 
Here, the District Court heard argument on the zero-point offender adjustment and 
reviewed the parties’ offered authority. It then made a “clear statement” that it “would 
have imposed the same sentence regardless of” which range applied.11 When handing 
down Inalegwu’s 80-month sentence, the sentencing court “want[ed] to specifically note 
[it] would have imposed this sentence, quite frankly, even if [it] had sustained the 
defendant’s objections on the zero-point offender [reduction].”12 
Still, Inalegwu argues that the District Court’s failure to explain the alternative 
sentence establishes that he was harmed by the alleged miscalculation. While it is true 
that clear statements alone are probative but not dispositive of harmless error, the District 
Court “explain[ed] its reasons” for sentencing Inalegwu to 80 months’ imprisonment 
“under either Guidelines range.”13 It stated that “the seriousness of the offense . . . 
warrants a severe and substantial penalty” 14 given its duration and the complexity and 
sophistication of Inalegwu’s role in the scheme.15 
Our conclusion that any alleged error was harmless is further supported by the fact 
that the District Court imposed a sentence well above the Guidelines range (57 to 71 
months) and the range that would have applied with the adjustment (46 to 57 months). 
When the record shows a clear variance from the disputed Guidelines range and suggests 
 
11 See id. at 387. 
12 App. 152–53. 
13 See Zabielski, 711 F.3d at 389. 
14 App. 153.  
15 App. 149. 
 
 
5 
that the sentence was not influenced by that range, “we can be certain that” any alleged 
error “had no effect on the sentence imposed.”16 
Finally, the District Court’s thorough analysis of the circumstances surrounding 
Inalegwu’s offenses further supports our conclusion “that it would have imposed the 
same sentence” regardless of any error because sentencing enhancements and reductions 
are meant to “train the district court’s attention on the details of the crime.”17 Here, the 
District Court extensively questioned Inalegwu, then deliberately imposed the 80-month 
sentence to reflect the complexity of the offense, including its enduring harm to the 
victims. The District Court also emphasized the need for “adequate general deterrence for 
this type of conduct.”18 Because the foregoing convinces us that any alleged procedural 
error in calculating Inalegwu’s applicable Guidelines range was harmless, we decline to 
vacate his sentence. 
Second, Inalegwu argues that the sentencing judge impermissibly cross-examined 
him during his allocution. Because he did not object to this questioning at the time of his 
sentencing, we review for plain error.19 “For reversible plain error to exist,” Inalegwu 
must establish “(1) an error; (2) that is plain; (3) that affects substantial rights; and 
 
16 See Langford, 516 F.3d at 218. 
17 See Zabielski, 711 F.3d at 387–88. 
18 App. 144. 
19 United States v. Adams, 252 F.3d 276, 284 (3d Cir. 2001); see also Fed. R. 
Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even 
though it was not brought to the [District Court’s] attention.”). 
 
 
6 
(4) which seriously affects the fairness, integrity, or public reputation of judicial 
proceedings.”20 We need not go further than the first prong, as there is no error. 
The purpose of allocution “is not to permit the defendant to re-contest the factual 
issues of innocence and guilt. Rather, [it] is to afford the defendant an opportunity to 
raise mitigating circumstances and to present his individualized situation to the 
sentencing court.”21 In furtherance of this purpose, Federal Rule of Criminal Procedure 
32 requires that, prior to imposing a sentence, a sentencing court must “address the 
defendant personally in order to permit the defendant to speak or present any information 
to mitigate the sentence.”22 
Inalegwu asserts that the District Court’s questioning amounted to cross 
examination because it “grill[ed] him about other issues, including his relationship with 
his children and his knowledge about the source of the funds” and “repeated questions 
and pushed back against [his] responses.”23 But the District Court’s questions simply 
engaged with the facts and “enable[d] the sentencing court to craft an individualized 
sentence.”24 After Inalegwu seemingly concluded his allocution, the Court inquired about 
Inalegwu’s personal relationships specifically because Inalegwu requested house arrest to 
 
20 See United States v. Tai, 750 F.3d 309, 313–14 (3d Cir. 2014). 
21 United States v. Moreno, 809 F.3d 766, 778 (3d Cir. 2016) (quoting United 
States v. Ward, 732 F.3d 175, 182 (3d Cir. 2013)). 
22 Fed. R. Crim. P. 32(i)(4)(A)(ii). 
23 Appellant’s Br. 40. 
24 Ward, 732 F.3d at 181. 
 
 
7 
limit the effect of his sentence on his children. Likewise, it inquired about the source of 
the funds because Inalegwu asserted that “[he] never knew full score of [his] mistake and 
the consequences [he] put [himself] and [his] family into.”25 At no point did the questions 
become adversarial like a cross-examination or go beyond a clarification of the relevant 
facts. Inalegwu received a full and fair opportunity to allocute; thus, there was no 
violation of his right to allocution. 
Because any error in calculating Inalegwu’s sentencing range was harmless and 
the sentencing judge’s questioning at allocution did not violate Inalegwu’s due process 
rights, we will affirm his sentence. 
 
25 App. 126. 


USA v. Martins Inalegwu

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-16-2025 
William Plummer v. Andrew Dancha 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"William Plummer v. Andrew Dancha" (2025). 2025 Decisions. 573. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/573 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
AMENDED DLD-023      NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2294 
___________ 
 
WILLIAM PLUMMER, 
   Appellant 
 
v. 
 
DR. ANDREW J. DANCHA, Regional Medical Director - Well Path; DR. JAY 
COWAN, Medical Director at all Penn. D.O.C. Facilities; DR. HOCKENBURG, 
Physician at SCI Coal Township; JAMIE LARKIN, Health Services Administrator; 
CHERYL HOFFMAN 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 1:23-cv-00892) 
District Judge:  Honorable Jennifer P. Wilson  
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
October 31, 2024 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: July 16, 2025) 
__________ 
 
OPINION* 
__________ 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 William Plummer, a Pennsylvania state prisoner proceeding pro se and in forma 
pauperis, appeals from the District Court’s order denying his preliminary injunction 
motion.1  Because this appeal does not present a substantial question, we will summarily 
affirm the District Court’s judgment.  See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.  
I. 
Plummer filed a pro se complaint against prison officials and medical staff.  In his 
second amended complaint, he alleged that the defendants were deliberately indifferent to 
his serious medical needs in violation of the Eighth Amendment by failing to treat his 
back and spine condition adequately.  Among other allegations, Plummer claimed that the 
prison medical directors denied Plummer’s treating physician’s request that he see an 
orthopedic surgeon.  Plummer sought damages, declaratory judgment, and injunctive 
relief, including that the court order the defendants to send Plummer to an orthopedic 
surgeon.  Meanwhile, both parties submitted Plummer’s medical records, which show 
that after being denied the surgical consult, Plummer visited with a rheumatologist and a 
neurologist, underwent testing and imaging, and attended physical therapy.      
Plummer moved for preliminary injunctive relief seeking an order that he “see an 
Orthopedic Surgeon to receive needed/necessary surgery as requested by Dr. Benjimin 
Robinson on 7/26/2022.”  Plummer alleged that he would suffer irreparable harm 
 
1 After receiving a Suggestion of Bankruptcy from the Appellees, this Court stayed the 
appeal pursuant to 11 U.S.C. § 362.  The Appellees have since submitted a status report 
advising that “the automatic stay is no longer applicable to this matter and the stay can be 
lifted.”  Accordingly, this Court’s stay issued on March 18, 2025, is lifted. 
 
3 
 
because, without surgery, he might never be able to walk without mobility aids.  In 
support, Plummer attached 1) his sworn affidavit describing his visit with the physician 
who recommended that he see an orthopedic surgeon, 2) one page of a medical note from 
Plummer’s physician who stated that he would request an orthopedic surgeon 
consultation, and 3) a medical evaluation report from a rheumatologist recommending 
nerve conduction testing and indicating that Plummer’s difficulty walking and standing 
had worsened over the past few years.2   
The District Court denied the motion.  It concluded that Plummer failed to 
demonstrate a likelihood of success on his underlying Eighth Amendment claim.  
Plummer appealed.   
II.  
We have jurisdiction under 28 U.S.C. § 1292(a)(1).  “We review the denial of a 
preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the 
consideration of proof.”  Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 
2004) (internal quotations omitted).  We may affirm for any reason supported by the 
record.  TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019).  “A preliminary 
injunction is an extraordinary remedy never awarded as of right.”  Winter v. Nat. Res. 
Def. Council, Inc., 555 U.S. 7, 24 (2008).  To determine whether to grant or deny a 
preliminary injunction, the court considers whether the moving party would likely 
 
2 After Plummer filed the preliminary injunction motion, the Court allowed Plummer to 
file a third amended complaint, which added a new defendant.       
 
4 
 
succeed on the merits, whether the moving party would suffer irreparable harm without 
injunctive relief, whether granting the injunction will cause greater harm to the 
nonmoving party, and whether the injunction serves the public interest.  Holland v. 
Rosen, 895 F.3d 272, 285-86 (3d Cir. 2018).  The moving party bears the burden of 
persuasion, and the court may not grant the motion unless the movant satisfies the first 
two factors.  Id.   
Irreparable harm is harm that “cannot be redressed by a legal or an equitable 
remedy following a trial.”  Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 
801 (3d Cir. 1989).  The harm must be immediate and not speculative.  See Campbell 
Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992); Adams v. Freedom Forge 
Corp., 204 F.3d 475, 488 (3d Cir. 2000).  And when, as here, the moving party seeks a 
mandatory injunction, the “right to relief must be indisputably clear.”  See Trinity Indus., 
Inc. v. Chi. Bridge & Iron Co., 735 F.3d 131, 139 (3d Cir. 2013) (quoting Communist 
Party of Ind. V. Whitcomb, 409 U.S. 1235, 1235 (1972)); see also Bennington Foods 
LLC v. St. Croix Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir. 2008) (“[W]here 
the relief ordered by the preliminary injunction is mandatory and will alter the status quo, 
the party seeking the injunction must meet a higher standard of showing irreparable harm 
in the absence of an injunction.”). 
We agree with the District Court that Plummer did not meet the standard for 
preliminary injunctive relief.  In his preliminary injunction motion, Plummer effectively 
asked the District Court to direct the defendants to provide specific medical treatment.  
 
5 
 
But he provided no support for his assertion that failure to undergo surgery immediately 
would prevent him from walking independently.  See Campbell Soup Co., 977 F.2d at 91; 
Adams, 204 F.3d at 488.  And there appears to be professional disagreement about 
whether treatment by an orthopedic surgeon is the proper course of action.  Moreover, as 
the District Court concluded, we cannot say, based on the current record, that Plummer is 
likely to succeed on the merits.  See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) 
(“[M]ere disagreements over medical judgment do not state Eighth Amendment 
claims.”).  
Accordingly, we will summarily affirm the District Court’s judgment.3  
 
3 Appellant’s motion to supplement his brief in support of appeal is granted, and his 
supplemental filing has been considered by the Court.   


William Plummer v. Andrew Dancha

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-17-2025 
John Fakla v. Matthew Geist 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"John Fakla v. Matthew Geist" (2025). 2025 Decisions. 575. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/575 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-2610 
_______________ 
JOHN FAKLA, 
          Appellant 
v. 
MATTHEW GEIST, Middlesex Borough Police Chief, both individually and in his 
official capacity; MARK MELCHIORRE, Middlesex Borough Police Office, both 
individually and in his official capacity as an officer of the Borough of Middlesex Police 
Department. 
_______________ 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 2:22-cv-04126) 
District Judge: Honorable Susan D. Wigenton 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a)  
on June 9, 2025 
Before: KRAUSE, PORTER, and AMBRO, Circuit Judges. 
(Filed: July 17, 2025) 
_______________ 
OPINION* 
_______________ 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
PORTER, Circuit Judge. 
John Fakla sued various individuals and entities associated with the local police 
and prosecutor’s office of Middlesex County, New Jersey for alleged misconduct 
stemming from a 2012 DWI arrest and an alleged malicious prosecution that lasted from 
2019 to 2021. Fakla’s appeal challenges various aspects of the litigation process and the 
District Court’s ultimate decision to grant summary judgment in favor of the Defendants. 
We will affirm. 
I 
Fakla claims that two officers from the Middlesex Borough Police Department, 
Mark Melchiorre and Matthew Geist, falsely arrested him in 2012. After this, he says, the 
officers “brutally assaulted” and “tortured” him, “injected him with an unknown 
substance,” and told him they “wanted to tarnish his reputation.” Fakla v. Geist, 2024 
WL 3634191, at *2 (D.N.J. Aug. 2, 2024) (internal quotation marks omitted). Over the 
next seven years, Fakla harassed both men with increasingly erratic behavior. He 
appeared outside their houses and sent numerous messages to Melchiorre, one of which 
threatened the lives of his family. On July 1, 2019, Melchiorre was directing traffic. Fakla 
spotted him and began to drive past him repeatedly while shouting out the window. Fakla 
then parked his car on a street near Melchiorre, causing the officer to fear for his safety. 
Melchiorre called for backup, backup arrived, Fakla fled, and police pursued him. The 
next day, Fakla was arrested and charged with stalking and eluding. 
Fakla was never convicted. On January 26, 2021, the trial court found that he was 
unfit to stand trial owing to his mental illness and that it was not “substantially probable” 
3 
 
he would “regain his competence within the foreseeable future.” Id. at *3. All charges 
were dismissed with prejudice. 
Fakla filed this suit on June 17, 2022, against Melchiorre, Geist, and many others, 
asserting claims under New Jersey and federal law. The Magistrate Judge then overseeing 
the case extended the discovery period several times. After issuing another extension 
through October 2023, the Magistrate Judge warned Defendants’ counsel that if they did 
not respond to Fakla’s outstanding requests he would grant leave for a sanctions motion. 
After the deadline passed, Fakla moved for sanctions. The Magistrate Judge scheduled a 
status conference in December, but Fakla’s counsel failed to attend due to technical 
issues. Following the conference, the Magistrate Judge denied the motions based on the 
briefs “and for the reasons stated on the record at the conference,” and closed discovery. 
Appellant’s App. Vol. I at 12–13. 
On January 9, 2024, the District Court held a hearing to address Defendants’ 
motion for judgment on the pleadings. In an order that followed, it dismissed numerous 
claims with prejudice, including all counts that “relat[ed] to conduct that allegedly 
occurred” more than two years prior to the date of the complaint’s filing. Appellant’s 
App. Vol. I at 10–11. The District Court later clarified this referred to claims “to the 
extent they accrued prior” to that date. Id. at 9. It dismissed the remaining claims without 
prejudice and ordered Fakla to file an amended complaint. Id. at 11. 
He did so. The new complaint alleged malicious prosecution under 42 U.S.C. 
§ 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2, as well as negligent 
and intentional infliction of emotional distress. The remaining Defendants sought 
4 
 
summary judgment and Fakla filed a motion to reopen discovery. The District Court 
denied Fakla’s motion and granted summary judgment. Fakla timely appealed. 
II 
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have 
jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo, 
“view[ing] the underlying facts and all reasonable inferences therefrom in the light most 
favorable to the party opposing the motion.” Montone v. City of Jersey City, 709 F.3d 
181, 189 (3d Cir. 2013) (internal quotation marks omitted). “We review a district court’s 
discovery orders for abuse of discretion, and will not disturb such an order absent a 
showing of actual and substantial prejudice.” Anderson v. Wachovia Mortg. Corp., 621 
F.3d 261, 281 (3d Cir. 2010). 
III 
A 
Fakla seeks to fire a broadside at the District Court, but about half of his claims 
are unpreserved or forfeited. We decline to reach those arguments on the merits. 
To begin, Fakla objects to the Magistrate Judge’s decision to not schedule a 
hearing on his motion for sanctions. But he offers only a two-and-a-half-page block quote 
from the Federal Rules of Civil Procedure. He does not argue that the Magistrate Judge’s 
decision was error. It is a cardinal rule of appellate litigation that the appellant must 
provide his “contentions and the reasons for them.” Fed. R. App. P. 28(a)(8)(A). This is 
not discretionary: “[t]he appellant’s brief must contain” his arguments. Id. at 28(a) 
(emphasis added). A brief that only quotes a rule without explanation fails to make an 
5 
 
argument, and thus fails to preserve the issue for appeal. Doeblers’ Pa. Hybrids, Inc. v. 
Doebler, 442 F.3d 812, 821 n.10 (3d Cir. 2006). 
Fakla accuses the Magistrate Judge of turning the status conference into an ex 
parte hearing. He should have raised that argument before the Magistrate Judge or before 
the District Court. See Fed. R. Civ. P. 72(a). He did neither. We will not consider 
arguments raised for the first time on appeal absent “narrow exceptional circumstances.” 
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017). 
Fakla fails to offer, and we fail to perceive, exceptional circumstances meriting review 
this late in the process. 
Next, Fakla’s statement of the issues asks us to consider the District Court’s 
dismissal of the claims against Middlesex Borough Police Department. But he offers no 
discussion anywhere in his brief about the dismissal and why it was inappropriate. 
Likewise, Fakla makes the remarkable assertion that the District Court possessed 
evidence of its own and did not offer it to Fakla during a hearing. But Fakla does not 
identify when this happened, what evidence was involved, or the motion to which this 
evidence related. He neither offers citations to the record nor any argument. These two 
issues are unpreserved. 
B 
Fakla understands the District Court to have said that “any actions of the 
Defendants, relevant or not, before June 17, 2020, were barred” as inadmissible evidence 
due to its statute-of-limitations ruling. Appellant’s Br. 5. He criticizes the District Court 
6 
 
for “pointing to numerous dates before [June 17]” in favor of the Defendants “and not 
allowing Plaintiff the same courtesy.” Id. at 18. 
Fakla is mistaken. The District Court’s order states that certain “counts” predating 
June 17, 2020, were dismissed with prejudice. Appellant’s App. Vol. I at 10 (emphasis 
added). The Court later clarified, twice, that it was referring to claims “to the extent they 
accrued prior to” that date. Id. at 9; Fakla, 2024 WL 3634191, at *4 n.8 (emphasis 
deleted). It did not say that certain evidence was inadmissible because it pre-dated 2020. 
Thus, the District Court did not err.1 
C 
Next, Fakla objects to the District Court’s analysis of Thompson v. Clark, 596 U.S. 
36 (2022). In Fakla’s view, Thompson asserts that the “deprivation of liberty is 
sufficient” to make out a claim for malicious prosecution. Appellant’s Br. 19. That is 
incorrect. Thompson teaches that a malicious prosecution claim requires, “among other 
things,” a showing that the plaintiff’s “prosecution ended without a conviction.” 596 U.S. 
 
1 To the extent Fakla seeks to resurrect his other malicious-prosecution claims, they are 
waived. “Waiver is the intentional relinquishment or abandonment of a known right.” 
United States v. Dowdell, 70 F.4th 134, 140 (3d Cir. 2023) (internal quotation marks 
omitted). Before the District Court, Fakla’s counsel “indicated . . . that the malicious 
prosecution claim arising out of the July 2019 arrest was the only claim that would not be 
barred by the statute of limitations.” Fakla, 2024 WL 3634191, at *4. He did this at a 
moment when the Court was striking claims that were statutorily barred or else 
insufficiently pled.  
Because the District Court disposed of the remaining malicious-prosecution claim on the 
merits, we decline to question its analysis of the statute of limitations and claim accrual 
under § 1983. 
7 
 
at 39 (emphasis added).2 The District Court correctly considered two of those “other 
things”: the lack of probable cause and the presence of malice. Fakla, 2024 WL 3634191, 
at *6–8. Fakla failed to show a genuine issue of material fact as to either element. Id. 
On appeal, Fakla contends the prosecution lacked probable cause because the 
District Court dismissed the criminal charges with prejudice. But probable cause is based 
on “the facts and circumstances within the arresting officer’s knowledge.” Id. at *7 
(quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000)). That 
Fakla proved unfit for trial says nothing about whether probable cause existed on July 2, 
2019, the date of his arrest. Fakla’s malice argument rests on his allegation that there was 
no probable cause and is thus equally unpersuasive. 
D 
Finally, Fakla appeals the denial of his motion to reopen discovery. Discovery 
may be reopened “for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 
Good cause requires the moving party to show he pursued discovery with “due 
diligence.” Race Tires Am., Inc. v. Hoosier Racing Tires Corp., 614 F.3d 57, 84 (3d Cir. 
2010). 
 
2 A malicious-prosecution claim requires the plaintiff to show defendants: (1) “initiated a 
criminal proceeding”; (2) that ended in the plaintiff’s favor; (3) acted without probable 
cause; (4) “acted maliciously or for a purpose other than bringing the plaintiff to justice”; 
and (5) “plaintiff suffered deprivation of liberty consistent with the concept of seizure as 
a consequence of a legal proceeding.” Harvard v. Cesnalis, 973 F.3d 190, 203 (3d Cir. 
2020) (quoting Est. of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)). Thompson 
clarified that a prosecution ends in the plaintiff’s favor when there is no conviction. 596 
U.S. at 39. 
8 
 
Fakla insists he employed due diligence by filing his sanctions motion. But he 
offers no explanation for the untimeliness of his motion to reopen. Nor does he address 
the District Court’s conclusion that the evidence sought was immaterial to the remaining 
claims. We are satisfied that the District Court did not abuse its discretion. 
IV 
For the foregoing reasons, we will affirm. 


John Fakla v. Matthew Geist

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-24-2025 
Thomas Gage v. Borough of New Providence 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Thomas Gage v. Borough of New Providence" (2025). 2025 Decisions. 592. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/592 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
                                                                                               NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1495 
__________ 
 
THOMAS I. GAGE, 
   Appellant 
 
v. 
 
BOROUGH OF NEW PROVIDENCE; 
KEITH J. LYNCH; WILLIAM F. WALDRON  
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 2:24-cv-05544) 
District Judge:  Honorable Madeline C. Arleo 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 23, 2025 
 
Before: BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed July 24, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Thomas I. Gage, proceeding pro se, appeals from orders of the United States 
District Court for the District of New Jersey granting the defendants’ motions to dismiss 
his complaint under Federal Rule of Civil Procedure 12(b)(6), and denying his timely 
motion for reconsideration of that order.  For the following reasons, we will affirm. 
I. 
 In 2020, Keith Lynch, the Director of Planning and Development for the Borough 
of New Providence, issued a Stop Construction Order to Gage’s construction company, 
Virtue Builders, because it was performing work outside the scope of its permit.  Gage 
then filed a complaint against the Borough of New Providence (“New Providence”) and 
Lynch, raising claims arising from the Stop Construction Order.  During that litigation, 
Gage issued a subpoena to a nonparty architect who he believed had relevant information.  
That architect was represented by William Waldron, who reached an agreement with 
Gage to produce the requested material.  Ultimately, the District Court granted the 
defendants’ motion to dismiss and we affirmed.  See Gage v. Lynch, 2023 WL 5287657, 
at *1 (3d Cir. 2023) (not precedential) (“Gage I”). 
 Undeterred, in 2024, Gage filed another complaint in the District Court.  His 
claims again stemmed from the Stop Construction Order and he again named as 
defendants New Providence and Lynch.  In this complaint, however, Gage also sued 
Waldron.  The defendants filed motions to dismiss.  Gage opposed those motions, and 
moved to recuse Judge Arleo.1  
 
1 Gage also filed an “Amended Cause of Action in Regard to Defendant William F. 
Waldron.”  Although the District Court stated that that document was “not properly 
 
3 
 
The District Court granted the defendants’ motions.  It held that the claims against 
New Providence and Lynch were barred by res judicata, filed beyond the applicable 
statute of limitations, and failed to state plausible claims for relief.  The District Court 
also concluded that Gage failed to state a claim against Waldron, explaining that Gage 
could not assert a private cause of action for criminal perjury and that Gage did not 
articulate any factual basis for asserting federal civil rights claims.2  Finally, the District 
Court denied Gage’s recusal motion, stating that the dismissal of Gage I was not a basis 
for relief.3      
Next, Gage filed a motion for an extension of time to file a notice of appeal.  
Despite its title, that motion essentially timely sought reconsideration of the order 
granting the motions to dismiss.  In particular, Gage alleged that the District Court failed 
to consider his submission of a “Constitutional Criminal Complaint.”  The District Court 
rejected Gage’s claim, holding that it did not overlook the arguments raised in that 
document.  Gage timely appealed.   
 
  
 
before this Court,” it considered the allegations therein “in an effort to liberally construe 
pro se [Gage’s] pleadings.”  We too will consider those allegations. 
 
2 The District Court also declined to exercise supplemental jurisdiction over any 
remaining state law claims, which was within its discretion to do.  See 28 U.S.C. § 
1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999). 
 
3 Gage does not challenge this determination on appeal and has thus forfeited the issue.  
See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016). 
 
4 
 
II. 
We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over 
the District Court’s dismissal on res judicata grounds.  See Venuto v. Witco Corp., 117 
F.3d 754, 758 (3d Cir. 1997).  We also “exercise plenary review over a district court’s 
grant of a motion to dismiss pursuant to [Rule] 12(b)(6).”  Talley v. Wetzel, 15 F.4th 275, 
286 n.7 (3d Cir. 2021).  And we review for abuse of discretion the District Court’s order 
denying Gage’s motion for reconsideration.  See Lazaridis v. Wehmer, 591 F.3d 666, 669 
(3d Cir. 2010). 
III. 
 The District Court did not err in concluding that res judicata bars Gage’s claims 
against New Providence and Lynch.  Res judicata requires “(1) a final judgment on the 
merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent 
suit based on the same cause of action.”  Davis v. Wells Fargo, 824 F.3d 333, 341-42 (3d 
Cir. 2016) (quoting Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991)).  
Notably, “[t]he doctrine of res judicata bars not only claims that were brought in a 
previous action, but also claims that could have been brought.”  In re Mullarkey, 536 
F.3d 215, 225 (3d Cir. 2008).   
These res judicata requirements clearly have been met here.4  There is no dispute 
that there has been a final judgment on the merits in a prior suit involving the same 
 
4 We also agree with the District Court’s alternative determination that Gage’s claims 
against New Providence and Lynch were time-barred under New Jersey’s two-year 
statute of limitations on personal injury actions, see Dique v. N.J. State Police, 603 F.3d 
181, 185 (3d Cir. 2010), and, for the reasons articulated in our prior opinion, failed to 
 
5 
 
parties.  With respect to the third requirement, the District Court accurately explained that 
“Gage I and this Action both rest on the same general theory that [Gage’s] constitutional 
and civil rights were violated by Lynch and New Providence when they issued the … 
Stop Construction Order for the renovation project Gage’s company was working on in 
New Providence.”  Gage argues that res judicata does not bar his claims against New 
Providence and Lynch because his 2024 complaint “provide[d] newly-discovered 
evidence[] alleging new facts and worsening of the earlier conditions ….”  But Gage does 
not specify what that evidence is, and we cannot identify in the underlying complaint any 
material that would support a new plausible cause of action.  We note that simply 
presenting “new allegations” is not sufficient to overcome the preclusive effect of a prior 
suit if, as is the case here, the “thrust of the two complaints remain[s] practically 
identical.”5  Churchill v. Star Enters., 183 F.3d 184, 195 (3d Cir. 1999).  
IV. 
The District Court also properly granted Waldron’s motion to dismiss.  Gage 
claimed that Waldron “willfully and intentional oppressed relevant evidence[] by not 
allow[ing] a non-party [architect] … to produce by subpoena [evidence that] expose[d] 
 
state a claim for relief.  Gage, 2023 WL 5287657, at *2 (noting that Gage did not 
“identify any factual allegations supporting any federal claim”). 
 
5 In the underlying complaint, Gage sought to hold New Providence and Lynch liable 
under 42 U.S.C. § 1981, a statute that he did not cite in Gage I.  Even if res judicata did 
not preclude Gage from raising that claim, we note § 1981 does not provide an implied 
private cause of action against state actors.  See McGovern v. City of Phila., 554 F.3d 
114, 122 (3d Cir. 2009).   
 
 
6 
 
the wrong done by the Defendants.”  He also asserted that Waldon “deliberately 
conceal[ed] material information from the court” in Gage I.     
These allegations failed to state a plausible claim under any of the theories 
advanced by Gage.6  For instance, Gage failed to allege facts suggesting that Waldron 
violated any right protected by 42 U.S.C. § 1981, which forbids discrimination on the 
basis of race in the making of public and private contracts.  See St. Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 609 (1987).  Moreover, Gage’s attempt to bring claims under 42 
U.S.C. § 1983 and the New Jersey Civil Rights Act fail because Waldron, a private 
attorney, is not a state actor and was not acting under color of law.  See N.J.S.A. § 10:6-
2(c); Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (stating 
that “[a]ttorneys performing their traditional functions will not be considered state actors 
solely on the basis of their position as officers of the court”); Kach v. Hose, 589 F.3d 
626, 646 (3d Cir. 2009) (providing that to state a claim under § 1983, a plaintiff “must 
establish that [he] was deprived of a federal constitutional or statutory right by a state 
actor”).  Furthermore, Gage’s vague allegation that Waldron concealed information from 
the District Court and prevented the disclosure of information that was requested in a 
subpoena was insufficient to state a plausible claim for conspiracy or fraud.  See D.R. by 
L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992) 
 
6 Gage’s claims against Waldron were premised on 42 U.S.C. § 1981, 1983, 1985, the 
New Jersey Civil Rights Act, common law conspiracy and fraud, and two federal 
criminal statutes.  He also asserted that he was entitled to fees under 42 U.S.C. § 1988.  
We note, however, that “a pro se litigant who is not a lawyer is not entitled to attorney’s 
fees.”  Kay v. Ehrler, 499 U.S. 432, 435 (1991). 
 
7 
 
(en banc) (affirming a dismissal of a conspiracy claim under 42 U.S.C. § 1985 because of 
a failure “to assert any facts from which any type of conspiratorial agreement . . . can be 
inferred”); McGreevy v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005) (holding that “[a] 
claim for civil conspiracy requires that two or more people conspire to do an unlawful 
act”); Gennari v. Weichert Co. Realtors, 691 A.2d 350, 367 (N.J. 1997) (setting forth the 
elements of common law fraud).  Finally, although Gage alleged that Waldron committed 
perjury and made a false declaration in court in violation of 18 U.S.C. § 1621 and 1623, 
those criminal statutes that do not give rise to a private cause of action.  See Bauer v. 
Elrich, 8 F.4th 291, 295 (4th Cir. 2021); Day v. Bond, 500 F.3d 1127, 1138-39 (10th Cir. 
2007). 
V. 
Gage also challenges the denial of his motion for reconsideration.  In that motion, 
Gage asserted that the District Court failed to consider a “Constitutional Criminal 
Complaint” that he filed after the defendants file their motions to dismiss.7  In that 
document, Gage argued that Waldron was criminally liable for making false statements.    
The District Court rejected the motion for reconsideration, accurately noting that the 
 
7 Gage also suggested that the District Court overlooked two submissions:  a letter from 
Waldron’s attorney regarding a scheduling matter and a “Writ of Mandate,” in which 
Gage requested the empanelment of a grand jury to investigate crimes against him.  
Neither of those submissions required a response from the District Court.  Cf. In re Fine 
Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (explaining that, as a general 
rule, “matters of docket control” are within the discretion of the District Court); Linda 
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (stating that “a private citizen lacks a 
judicially cognizable interest in the prosecution or non-prosecution of another”). 
 
 
8 
 
allegations [in the “Constitutional Criminal Complaint”] are almost entirely premised on 
the same operative facts and causes of action raised in [Gage’s] Amended Complaint, 
which has already been dismissed.”  (ECF 29, at 2.)  Under these circumstances, we 
conclude that the District Court did not abuse its discretion in denying Gage’s request for 
reconsideration.  See Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 
669, 677 (3d Cir. 1999) (stating that “a judgment may be altered or amended if the party 
seeking reconsideration shows at least one of the following grounds: (1) an intervening 
change in the controlling law; (2) the availability of new evidence that was not available 
when the court granted the motion for summary judgment; or (3) the need to correct a 
clear error of law or fact or to prevent manifest injustice”). 
VI. 
For the foregoing reasons, we will affirm the judgment of the District Court.   


Thomas Gage v. Borough of New Providence

Lorenzo Budet v. Rutgers Business School

In Re: Congoleum Corporation, et al.

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-22-2025 
Jenn-Ching Luo v. Owen J Roberts School District 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Jenn-Ching Luo v. Owen J Roberts School District" (2025). 2025 Decisions. 695. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/695 
This August is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3106 
___________ 
 
JENN-CHING LUO, 
   Appellant 
 
v. 
 
OWEN J. ROBERTS SCHOOL DISTRICT;  
THE PENNSYLVANIA DEPARTMENT OF EDUCATION 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:17-cv-01508) 
District Judge:  Honorable Harvey Bartle, III 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 24, 2025 
 
Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: August 22, 2025) 
 
___________ 
 
OPINION* 
___________ 
 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
Appellant Jenn-Ching Luo appeals from orders of the District Court dismissing his 
action brought pursuant to the Individuals with Disabilities in Education Act (IDEA), 20 
U.S.C. § 1400, et seq., and dismissing his related claims.  For the following reasons, we 
will affirm the District Court’s judgment.  
Luo is the parent of B.L., a former special needs student enrolled in the Owen J. 
Roberts School District.  In April 2017, Luo filed a complaint in the District Court 
alleging that he filed a due process complaint under IDEA which was denied by Hearing 
Officer William F. Culleton, Jr.  Luo sought the District Court’s review of Culleton’s 
decision pursuant to the IDEA.  See 20 U.S.C. § 1415(i)(2) (providing a party aggrieved 
by a hearing officer’s decision under the IDEA the right to bring a civil action in a district 
court).  The complaint also included claims against the Pennsylvania Department of 
Education (PDE) for denial of Luo’s due process and “liberty” rights pursuant to 42 
U.S.C. § 1983.   
The parties are familiar with the complicated procedural history of this case, so we 
need not recount it here.  Ultimately, the District Court dismissed the § 1983 claims 
against the PDE on immunity grounds,1 and dismissed the § 1415(i)(2) action as moot, or 
alternatively as meritless.  This appeal ensued. 
 
1 The District Court also purported to dismiss the § 1983 claims against the School 
District for failing to state a claim for relief; however, as Luo argues on appeal, those 
claims were limited to the PDE.  See Appellant’s Br. at 19; ECF No 1 at 6-10.  
3 
 
 We have jurisdiction pursuant to 28 U.S.C. § 1291.  We review de novo its 
dismissal of Luo’s claims under Federal Rule of Civil Procedure 12(b)(6).  See 
Castleberry v. STI Grp., 863 F.3d 259, 262-63 (3d Cir. 2017).  To survive a motion to 
dismiss, a complaint must allege facts sufficient to “state a claim to relief that is plausible 
on its face.”  See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).  We 
construe Luo’s pro se pleadings liberally.  See Erickson v. Pardus, 551 U.S. 89, 94 (2007) 
(per curiam).  
We first reject Luo’s argument that the District Court erred in denying his motions 
for default judgment.  Contrary to his contention, the complicated procedural history – 
including a stay, two prior appeals, and various consolidation orders – delayed the matter, 
and defendants cannot be blamed for any perceived default.  See United States v. 
$55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984).   Moreover, default 
judgments are disfavored, and, as the District Court noted, the defendants had viable 
defenses to the complaint.  See id. at 194-95.  Under the circumstances, the District Court 
did not abuse its discretion in determining that default judgments were not in the interest 
of justice.  See Jorden v. Nat’l Guard Bureau, 877 F.2d 245, 250-51 (3d Cir. 1989) 
(noting the standard of review).  
The § 1415(i)(2) Action2 
 
2 We reject Luo’s argument that the District Court applied the wrong standard in 
reviewing Culleton’s decision.  It properly applied modified de novo review, giving “due 
weight” to Culleton’s findings.  S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 
260, 270 (3d Cir. 2003).  Like the District Court, we review legal conclusions de novo.  
4 
 
In September 2016, Hearing Officer Michael J. McElligott issued an 
administrative decision regarding B.L.’s education benefits.  Luo was considering filing 
an action pursuant to § 1415(i)(2) to seek review of that decision, which he had 90 days 
to file.  See 20 U.S.C. § 1415(i)(2)(B).  He claims that the School District asked him to 
consent to implementation of McElligott’s decision prior to the expiration of the 90-day 
appeal period.  He maintains that the request was made in a Notice of Recommended 
Educational Placement (NOREP), which is a form generally used to provide a parent with 
notice of any potential changes to a student’s Individualized Education Plan (IEP).  Luo 
filed a due process complaint presenting the question “whether [Luo] was permitted to 
refuse to waive his right to appeal, e.g., if [Luo] is permitted not to give consent.”  ECF 
No. 1 at 3, ⁋ 17.  He maintains that Hearing Officer William F. Culleton, who presided 
over the due process hearing, “did not decide the question,” but denied his claim, and 
that, as a result, Luo lost his right to appeal McElligott’s decision.  Id. at 4, ⁋⁋19 & 20.   
The complaint seeks review of Culleton’s decision pursuant to § 1415(i)(2).  The 
District Court declined to vacate Culleton’s decision, first determining that it was moot 
because B.L. had turned 21, and was no longer eligible for a FAPE.  See Ferren C. v. 
Sch. Dist. of Phila., 612 F.3d 712, 717 (3d Cir. 2010) (stating that “a school district’s 
obligations to provide and a student’s right to receive a [FAPE] both terminate when the 
child reaches the age of twenty one”).  Luo argues that the case is not moot because the 
 
See Y.B. on behalf of S.B. v. Howell Twp. Bd. of Educ., 4 F.4th 196, 198 (3d Cir. 2021).     
5 
 
District Court could still vacate Culleton’s decision as a form of relief.  Appellant’s Br. at 
13-14.  But because B.L. has aged out, Luo can only seek compensatory damages for the 
denial of a FAPE.  See Ferren, 612 F.3d at 718. 
The District Court found that Luo failed to detail what compensatory education he 
sought for B.L., and concluded that “the outcome of th[e] administrative hearing [before 
McElligott], would not have had any impact on [B.L.’s] IEP or educational placement.”  
ECF No. 53.  However, a procedural violation will constitute the denial of a FAPE not 
only “if it results in a loss of educational opportunity [or benefits] for the student,” but 
also if it seriously deprives parents of their participation rights.  D.S. v. Bayonne Bd. of 
Educ., 602 F.3d 553, 565 (3d Cir. 2010).  Arguably, Luo’s due process claim that he was 
denied the right to appeal a hearing officer’s decision regarding changes to B.L.’s 
education plan could state a claim for the denial of a FAPE.  Also, compensatory 
education is a “judicially created remedy” granted through the district court’s equitable 
power under the IDEA.  Ferren, 612 F.3d at 717-18.  We thus conclude that the 
§ 1415(i)(2) action was not moot.  
Nevertheless, we agree with the District Court that the School District’s actions 
did not interfere with Luo’s right to “meaningfully participate” in B.L.’s educational 
process.  T.R. v. Sch. Dist. of Philadelphia, 4 F.4th 179, 184 (3d Cir. 2021).  Pursuant to 
§ 1415(i)(2), Luo had 90 days to bring a civil action seeking review of McElligott’s 
decision; he did so within that timeframe.  Luo claims, however, that the School District 
lacked the authority to implement the decision during the 90-day period.  Not so.  As we 
6 
 
previously explained in rejecting Luo’s § 1983 claim based on the same facts, the IDEA 
“does not provide any protections against implementation of the [hearing officer’s] 
decision during the [90-day] period, and Luo could have moved in the District Court to 
stay implementation of the IEP while his § 1415(i)(2) claim was pending.”  See Luo v. 
Owen J Roberts Sch. Dist., No. 24-1030, 2024 WL 4199008, at *3 (3d Cir. Sept. 16, 
2024).  The District Court therefore properly dismissed the § 1415(i)(2) action.    
Finally, contrary to Luo’s argument on appeal, the District Court had authority to 
sua sponte dismiss the § 1983 claims against the PDE on immunity grounds.  See Bowers 
v. Nat’l Collegiate Athletic Ass’n, 346 F.3d 402, 417 (3d Cir. 2003).3  As an arm of the 
state, the PDE is generally immune from suit in federal court under the Eleventh 
Amendment.  See Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 
1989).  And Luo’s claims, although stemming from the administrative proceedings under 
the IDEA, are grounded in § 1983.4   See also Downey v. Pa. Dep’t of Corr., 968 F.3d 
299, 310 (3d Cir. 2020) (noting that Pennsylvania has not waived the immunity defense 
and Congress has not abrogated Eleventh Amendment immunity under § 1983).   
 
3 Although the PDE did not file a motion to dismiss, we note that in its response to a 
motion for default judgment, it argued that the claims against it were precluded by 
Eleventh Amendment immunity.  See ECF No. 31 at 2.   
 
4 Luo mistakenly relies on M.A. ex rel. E.S v. State-Operated School District of City of 
Newark, 344 F.3d 335 (3d Cir. 2003), to support his argument that the PDE is not 
immune to his § 1983 claims.  The § 1983 claims in that case were for IDEA violations, 
see M.A. ex rel. E.S., 344 F.3d at 338; but we have subsequently recognized that § 1983 
is not available to remedy IDEA violations, see A.W. v. Jersey City Pub. Sch., 486 F.3d 
791, 803 (3d Cir. 2007) (en banc).  
7 
 
Based on the foregoing, we will affirm the District Court’s judgment.  


Jenn-Ching Luo v. Owen J Roberts School District

USDC for the District Court of the Virgin Island

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-12-2025 
USA v. Stephanie Barnes 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Stephanie Barnes" (2025). 2025 Decisions. 759. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/759 
This September is brought to you for free and open access by the Opinions of the United States Court of Appeals 
for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted 
for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of 
Law Digital Repository. For more information, please contact reference@law.villanova.edu. 
          NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 24-1002 
_____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
STEPHANIE BARNES, 
     Appellant 
_____________ 
 
On Appeal from the District Court 
of the Virgin Islands 
(District Court Criminal No. 3:19-cr-00047-002) 
District Judge: Honorable Robert A. Molloy 
_____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on April 29, 2025 
 
Before: RESTREPO, FREEMAN, and MCKEE, Circuit Judges. 
 
(Filed: September 12, 2025) 
_________ 
 
OPINION* 
_________ 
RESTREPO, Circuit Judge 
Appellant Stephanie Barnes was convicted at trial of three counts: conspiracy to defraud 
the United States in violation of 18 U.S.C. § 371; receipt of stolen government property in 
 
*  This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 
not constitute binding precedent. 
 
2 
violation of 14 V.I.C. § 895; and filing a false tax return in violation of 33 V.I.C. § 1525(1).  
Barnes was found guilty of stealing government funds while working for the Virgin Islands 
Casino Control Commission (“VICCC”) as a contractor specializing in problem gambling.   
  In this appeal, Barnes: (1) disputes the sufficiency of the evidence for the federal 
programs theft count; (2) argues that the District Court wrongly instructed the jury as to 
the same count; and (3) contends that her sentence was procedurally unreasonable.  
Because none of these arguments are availing, we will affirm. 
I.  Background1 
Barnes was hired as a contractor by the chairman of the VICCC, Violet Anne Golden, 
with whom Barnes had a preexisting personal relationship.  Per her contract with the 
VICCC, Barnes was to be paid between $200 and $350 per hour for consulting services 
and $250 per attendee when leading training sessions.  The Government alleged that the 
terms of this contract dramatically overpaid Barnes, and that Barnes lied about the number 
of attendees at her training sessions to further enrich herself.  In addition, the Government 
alleged that Barnes used VICCC funds for personal expenses and exorbitant travel, 
including staying at the Ritz Carlton and chartering a plane.  The Government also alleged 
that Golden amended Barnes’ 2016 Form 1099 to allow Barnes to cheat on her taxes. 
Barnes was charged in a thirty-one-count superseding indictment, but only three counts 
remained at trial: Count Five (conspiracy to defraud the United States in violation of 18 
 
1  Since we write primarily for parties already familiar with this case, we include only those 
facts necessary to reach our conclusion. 
 
 
3 
U.S.C. § 371); Count Twenty-Three (receiving government property in violation of 14 
V.I.C. § 895(b)); and Count Thirty (filing a false tax return in violation of 33 V.I.C. § 
1525(1)). 
At trial, Barnes was convicted on all three counts.  As to Count Five, the District Court 
sentenced Barnes to 33 months of imprisonment, three years of supervised release, a 
$10,000 fine, and $247,489.93 in restitution.  In calculating the Guidelines range for this 
count, the District Court applied a twelve-level enhancement for a loss amount between 
$250,000 and $550,000, having determined a loss amount of $282,315.68.  Barnes now 
appeals.  
II. Discussion 
A. The Sufficiency of the Evidence for Count Five 
Count Five charged Barnes with conspiring with Golden to violate 18 U.S.C. § 666, 
which establishes federal jurisdiction over theft, embezzlement, and fraud committed by 
“an agent of an organization, or of a State, local, or Indian tribal government, or any agency 
thereof” of $5,000 or more in property owned by or under the care, custody, or control of 
said entity.2  18 U.S.C. § 666(a).  In order for Section 666 to apply, “the organization, 
government, or agency” that was wronged must have “receive[d], in any one[-]year period, 
benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, 
 
2 The term “agent,” as used in § 666(a), “means a person authorized to act on behalf of 
another person or a government and, in the case of an organization or government, includes 
a servant or employee, and a partner, director, officer, manager, and representative.”  18 
U.S.C. § 666(d)(1). 
 
 
4 
loan, guarantee, insurance, or other form of Federal assistance.”  Id. § 666(b).  The 
Government’s theory at trial was that Golden, Barnes’ co-conspirator, was an agent of the 
Virgin Islands Government, which received more than $10,000 in federal program funds. 
On appeal, Barnes contends that the evidence against her was insufficient to support a 
conviction for three reasons: (1) Golden was only an agent of the VICCC, not the Virgin 
Islands Government; (2) Golden misappropriated VICCC funds, not Virgin Islands 
Government funds; and (3) the Government failed to prove that federal funds received by 
the Virgin Islands Government were federal benefits.  We find none of these arguments 
convincing.3   
a. Agency 
Barnes’ first contention on appeal is that there was insufficient evidence to conclude 
that Golden was an agent of the Virgin Islands Government.  The parties disagree as to 
whether Barnes preserved this argument before the District Court, with Barnes arguing for 
plenary review and the Government for plain error review.  We need not reach this issue 
because the evidence was sufficient under either standard of review. 
When applying plenary review to the denial of a motion for judgment of acquittal based 
on the sufficiency of the evidence, we “review the evidence in the light most favorable to 
the Government, afford deference to a jury’s findings, and draw all reasonable inferences 
 
3 Barnes also argues that because the District Court “lacked subject matter jurisdiction over 
Count [Five],” it therefore had “no concurrent jurisdiction to prosecute local offenses.”  
Appellant’s Br. at 46.  Because we find the evidence was sufficient to sustain a conviction 
as to Count Five, we do not reach this argument. 
 
5 
in favor of the jury verdict.”  United States v. Fountain, 792 F.3d 310, 314 (3d Cir. 2015) 
(cleaned up). 
To conclude that Golden was an agent of the Virgin Islands Government as defined in 
§ 666, the jury needed to find that Golden was “a person authorized to act on behalf of” 
the Virgin Islands Government, including as “a servant or employee, [or] a partner, 
director, officer, manager, [or] representative.”  18 U.S.C. § 666(d)(1).  A rational jury 
could reach this conclusion.  Among other things, the jury heard that Golden was part of 
the Government Employees’ Retirement System, and that as VICCC Commissioner 
Golden had the authority to direct the VICCC “to bring a civil action . . . in the name of 
[the Virgin Islands Government]” to collect overdue fees owed pursuant to the Virgin 
Islands Casino Control Act.  A rational jury could conclude on these grounds that Golden, 
as VICCC Commissioner, was an agent of both the VICCC and the Virgin Islands 
Government. 
b. Virgin Islands Government Funds 
Barnes next argues that Golden did not misappropriate Virgin Islands Government 
funds, but instead funds of the VICCC, which is “administratively and financially 
independent from the [Virgin Islands] Government.”  Appellant’s Br. at 34.  This argument 
is unavailing, as a rational jury had ample reason to believe that the VICCC funds 
misappropriated by Golden were also Virgin Islands Government funds.  The VICCC is 
“an independent agency of the executive branch of the Government of the Virgin Islands, 
whose budget shall be approved annually by the Legislature of the Virgin Islands.”  32 
V.I.C. § 404.  The finances of the VICCC and other Virgin Islands Government branches 
 
6 
are interrelated: the Casino Control Revolving Fund is “disbursed by the Casino Control 
Commission and the Attorney General of Virgin Islands, exclusively for expenditures by 
the Casino Control Commission and the Department of Justice, Division of Gaming 
Enforcement respectively,” with 20% of the fund allocated to the Division of Gaming 
Enforcement.  32 V.I.C. § 514.  The funds specifically reserved for the VICCC remain 
under the oversight of the Department of Finance and the Virgin Islands Legislature, which 
are owed regular reports and audits on the VICCC’s financial activities.   
On this factual record, a rational jury could conclude that the misappropriated funds 
were “owned by, or . . . under the care, custody, or control” of the Virgin Islands 
Government.  18 U.S.C. § 666(a)(1)(A)(ii). 
c. Federal Benefits 
Barnes next argues that there was insufficient evidence at trial to conclude that the 
federal funds received by the Virgin Islands Government were “benefits in excess of 
$10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, 
insurance, or other form of Federal assistance” as required by 18 U.S.C. § 666(b).  Barnes 
notes that the Supreme Court held in Fischer v. United States that “benefits,” as used in 
Section 666(b), is not employed in a “broad, almost limitless use of the term” that would 
encompass “[a]ny receipt of federal funds.”  529 U.S. 667, 681 (2000).  Fischer identified 
instances in which the receipt of federal funds might not constitute a benefit under Section 
666, such as payments made solely for the purpose of compensation or reimbursement.  Id. 
at 679.  The Court noted that, for example, Congress did not intend to apply Section 666 
to a theft from a supplier from whom a government agency had purchased more than 
 
7 
$10,000 in equipment.  Id.  To ensure Section 666 was not applied in such an expansive 
manner, the Court held that “[t]o determine whether an organization participating in a 
federal assistance program receives ‘benefits,’ an examination must be undertaken of the 
program’s structure, operation, and purpose.”  Id. at 681.   
Here, there was not extensive evidence elucidated concerning the structure, operation, 
and purpose of the funds received by the Virgin Islands Government.  But this was so 
because the funds were a classic form of federal assistance—not mere compensation or 
reimbursement—well within the scope of § 666.  At trial, the jury heard that the Virgin 
Islands Government “receives approximately $6 million block grant [sic] each and every 
year” through its Department of Human Services, and that in each year from 2016 to 2019 
“the federal government provide[d] more than $10,000 in grants to the Virgin Islands 
Government.”  JA1355–56.  This direct grant funding clearly suffices to meet § 666(b)’s 
requirement that the Virgin Islands Government receive “benefits in excess of $10,000 
under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, 
or other form of Federal assistance.”  18 U.S.C. § 666(b). 
B. Unanimity Instruction 
Barnes argues that the District Court committed plain error by not instructing the jury 
that “the conversion/misapplication value of $5,000 or more must be unanimously found 
to have been reached in the same one-year period when the more than $10,000 in benefits 
were received.”  Appellant’s Br. at 49.  Under plain error review, Barnes must show that 
the absence of such an instruction “affected the outcome of the district court proceedings.”  
United States v. Olano, 507 U.S. 725, 734 (1993).  Barnes fails to carry this burden. 
 
8 
The evidence against Barnes was overwhelming such that the introduction of a 
unanimity instruction would not have affected the outcome of the proceedings.  At trial, 
the jury heard evidence that Barnes had overbilled the VICCC by charging a per-attendee 
fee for training fictitious attendees who did not appear on training sign-in sheets.  The jury 
also heard that the “final number of overbilling that occurred in fiscal year 2016” was 
$29,500.  JA2180.  Lastly, the jury heard that “in 2016 . . . the federal government 
provide[d] more than $10,000 . . . for grants to the Virgin Islands Government.”  JA1355.  
In concert, this evidence straightforwardly indicates that more than $5,000 was converted 
in the same one-year period when more than $10,000 in benefits were received. 
Barnes argues against this conclusion, contending that “prejudice was caused because 
the evidence showed that Barnes[’] contracts with the Commission were legitimate 
business transactions under which she provided significant and valuable services.”  
Appellant’s Br. at 53-54.   But the jury clearly did not credit Barnes’ denial of overbilling, 
and the provision of training to non-existent attendees is plainly not a significant or 
valuable service. 
Because Barnes has failed to show that any error in the lack of a unanimity instruction 
affected the outcome of the proceeding, we find no plain error. 
C. Barnes’ Sentence 
Lastly, Barnes argues that her sentence was procedurally unreasonable because the 
District Court committed plain error in not “credit[ing] Barnes for the value of the services 
she rendered,” and “consider[ing] all payments received as ‘loss’ although § 666(d) 
excludes bona fide compensation paid in the usual course of business.”  Appellant’s Br. at 
 
9 
55.  Specifically, Barnes takes issue with her presentence investigation report (“PSR”), 
which “determined that Count 5 ‘loss’ was $635,554 under § 2B1.1(b)(1)(H) of the 
Guidelines[,] adding a 14-level enhancement.”  Id. at 56.  But the District Court did not 
agree with the PSR’s loss calculation, and instead “calculated a total loss amount of 
$282,315.68.”  Sentencing Tr. 23, D.V.I. ECF No. 524.  In reaching this total loss amount, 
the District Court “specifically did not include the payments for her” that were made in 
exchange for the training services she provided.  Id.  Because Barnes has failed to even 
identify a purported error by the District Court, and because any error in the PSR’s rejected 
loss calculation is not imputed to the District Court, we do not find that Barnes’ sentence 
was procedurally unreasonable. 
III.  Conclusion 
For the reasons set forth above, we will affirm Barnes’ conviction and sentence. 


Villanova University

Not a member yet