PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

Nos. 18-9002 & 18-9003

______________

ROBERT GENE REGA,

Appellant in No. 18-9002

v.

SECRETARY, PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS; SUPERINTENDENT OF THE STATE 

CORRECTIONAL INSTITUTION AT GREENE; 

SUPERINTENDENT OF THE STATE CORRECTIONAL 

INSTITUTION AT ROCKVIEW,

Appellant in No. 18-9003

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-13-cv-01781)

District Judge: Honorable Joy Flowers Conti

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

August 21, 2024

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2

 

Before: KRAUSE, MCKEE, and SMITH, Circuit Judges

(Filed: August 23, 2024)

Hunter S. Labovitz

Office of Federal Public Defender

Capital Habeas Unit

Suite 707

215 Dean A. McGee Avenue

Old Post Office Bldg.

Oklahoma City, OK 73102

Sonali Shahi

Federal Community Defender Office 

Eastern District of Pennsylvania

Capital Habeas Unit

601 Walnut Street

The Curtis Center, Suite 545 West

Philadelphia, PA 19106

Counsel for Appellant in No. 18-9002

Jeffrey D. Burkett

Jefferson County Office of District Attorney

200 Main Street

Brookville, PA 15825

Counsel for Appellant in No. 18-9003

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OPINION OF THE COURT

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3

KRAUSE, Circuit Judge.

Robert Gene Rega was convicted of first-degree murder 

and sentenced to death in Pennsylvania state court. On habeas 

review, the District Court denied his guilt-phase claims but 

granted one of his penalty-phase claims and ordered the 

Commonwealth of Pennsylvania to either provide him with a 

new sentencing hearing or resentence him to life 

imprisonment.1 

On appeal, Rega raises two claims that his prosecutor 

withheld evidence, in violation of Brady v. Maryland, 373 U.S. 

83 (1963), and one claim that his prosecutor presented false 

testimony at trial and failed to correct it, in violation of Giglio 

v. United States, 405 U.S. 150 (1972), and Napue v. Illinois, 

360 U.S. 264 (1959). We will affirm the denial of relief on 

these claims because the evidence and testimony in question 

were not material to Rega’s murder conviction.

I. Factual and Procedural Background

In 2001, the Commonwealth charged Rega with firstdegree murder and other crimes for shooting a security guard, 

Christopher Lauth, during a robbery at the Gateway Lodge in 

Jefferson County, Pennsylvania. In brief, Rega went to the 

1 We use “the Commonwealth” to refer collectively to the 

Secretary of the Pennsylvania Department of Corrections, the 

Superintendent of the State Correctional Institution at Greene, 

and the Superintendent of the State Correctional Institution at 

Rockview.
4

lodge with Shawn Bair, Raymond Fishel, and Stanford (Stan) 

Jones in order to rob its safe and ATM. Stan Jones’s wife, 

Susan Jones, stayed at Rega’s mobile home to watch his

children. During the robbery, Lauth was shot and killed. 

The Commonwealth tried Rega for murder on the 

theory that he was the shooter and mastermind of the robbery. 

To that end, the Commonwealth called three witnesses who 

identified Rega as the shooter—Bair, Fishel, and Susan Jones. 

Bair testified that, while he sat in the car with Stan Jones and 

Fishel after the robbery, he heard gunshots inside the lodge, 

after which Rega left the lodge, got in the car, and said, “I think 

I killed him.” J.A. 491. Fishel also testified that Rega killed

the victim and that when Rega returned to the car, he asked 

whether he “did the right thing.” J.A. 563. Susan Jones was 

not at the lodge, but she testified that she later asked Rega why 

he killed the victim and that Rega told her “he had to do what 

he had to do” because “someone’s name was mentioned.” J.A. 

405. On direct examination, the witnesses each acknowledged 

that they faced their own criminal charges arising from the 

incident but maintained that the prosecutor had not made any 

“promises” about how those charges would be resolved. J.A. 

421, 465, 550. 

Rega himself called Stan Jones, who also identified 

Rega as the shooter. Other evidence included a video 

recording of Rega purchasing ammunition for the gun used to 

kill Lauth and the testimony of Rega’s friend, Michael Sharp,

that Rega asked him to give police a false alibi for the night in 

question. Nevertheless, the only direct evidence that Rega shot 
5

the victim was the testimony of Bair, Fishel, and Stan and 

Susan Jones. 

Unsurprisingly, Rega’s defense focused on attacking 

these witnesses’ credibility. During examination and 

argument, Counsel sought to show that their testimony was 

inconsistent with prior statements to the police and that their 

own criminal charges provided them a motive to testify. For 

example, although Bair denied that the prosecutor had made 

any “promises” to him, he admitted that he still hoped the 

prosecutor would treat him favorably in exchange for his 

testimony. J.A. 501–02. Counsel reminded the jury of that 

testimony during closing argument and asserted that Bair was 

testifying to “save [his] own skin.” J.A. 669. Counsel also 

noted Bair’s admission that he was guilty of felony murder, 

suggested that Bair had a deal for felony murder to avoid the 

death penalty, and argued that “it is clear Mr. Bair had an 

interest in telling the story that he did.” J.A. 670. 

And as to all four witnesses, Counsel argued:

Now, each [witness], I submit to you, has an 

interest in the outcome of the case. What I mean 

by that is, each one wants to please the 

Commonwealth with the testimony that they 

have offered today. When the time comes these 

defendants are obviously thinking I want the 

Commonwealth to give me a favorable plea 

agreement or treat me in an otherwise favorable 

way. The witnesses were obviously thinking two 
6

things; I can please the Commonwealth by 

offering this testimony, but I can also implicate 

and put the blame for these events on Robert 

Rega. They have an obvious interest in this case, 

and to suggest otherwise I suggest to you is 

absurd. 

J.A. 658. In further support of that argument, Counsel 

previewed for the jury the “polluted source” instruction that the 

trial court went on to give. Both Counsel and the court advised 

the jury that all four of the shooter-identification witnesses 

were accomplices who faced their own charges, that “an 

accomplice when caught will often try to place the blame 

falsely on someone else” and “may testify falsely in the hope 

of obtaining favorable treatment,” and that the jury should 

view their testimony “with disfavor” for that reason. J.A. 659–

60 (closing argument); D. Ct. ECF No. 35 at 232–33 (jury 

instructions). 

The jury nonetheless found Rega guilty of first-degree 

murder and voted to sentence him to death. Rega 

unsuccessfully challenged his conviction and sentence on 

direct appeal and in a proceeding under Pennsylvania’s PostConviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9501 et 

seq., in which he raised the claims at issue here.

Rega then filed a federal habeas petition. The District 

Court denied Rega’s guilt-phase claims but granted relief from

his death sentence. Rega appealed, and we granted a certificate 
7

of appealability (COA) on two issues.

2

 First, we agreed to 

review Rega’s claim that his prosecutor violated Brady by 

“failing to disclose (1) that Shawn Bair, Raymond Fishel, 

Susan Jones and Michael Sharp sought lenient treatment in 

exchange for their testimony against appellant and that the 

prosecutor told them that he would or ‘probably’ would 

consider their cooperation when considering possible pleas, 

and (2) evidence that Susan Jones suffered from memory 

problems.” J.A. 1–2. Second, we elected to consider the claim 

that Rega’s prosecutor violated Giglio and Napue by “failing 

to correct . . . the testimony of Bair, Fishel and Susan Jones that 

the prosecutor had not made any ‘promises’ to them.” J.A. 2.3 

Each claim requires Rega to show, among other things, that the 

alleged violation was material to his conviction. See Dennis v. 

Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 285 (3d Cir. 2016) (en 

banc) (Brady); Haskell v. Superintendent Greene SCI, 866 F.3d 

2 The Commonwealth simultaneously appealed the order 

granting Rega relief from his death sentence, but it now asserts 

that it will not pursue the issue. Thus, the Commonwealth has 

waived any challenge to that order, see In re Imerys Talc Am., 

Inc., 38 F.4th 361, 373 n.6 (3d Cir. 2022); Schaffer v. Salt Lake 

City Corp., 814 F.3d 1151, 1155 n.1 (10th Cir. 2016), and we 

will affirm it without further discussion. 

3

In that same order, we also granted a COA on two additional 

Giglio/Napue claims related to the witnesses’ incentives to 

testify, as well as on Rega’s claim that the alleged errors under 

Brady and Giglio/Napue “cumulatively prejudiced him.” J.A. 

2. But Rega now asserts that he is not pursuing his claim of 

cumulative prejudice, and he has not briefed his second and 

third Giglio/Napue claims. Thus, we address only his two 

Brady claims and his first Giglio/Napue claim.
8

139, 146–47 (3d Cir. 2017) (Giglio/Napue). We will affirm 

the denial of all claims on the ground that Rega has not made 

that showing. 

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 

2254, and we have jurisdiction under 28 U.S.C. § 1291 and § 

2253. Our review of the District Court’s decision is plenary 

because the District Court did not hold an evidentiary hearing 

and instead based its decision on the state court record. See 

Haskell, 866 F.3d at 145. Because this case comes to us on 

habeas review, we defer to the state court’s rulings for claims 

adjudicated on the merits unless they were (1) “contrary to, or 

involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court,” 28 U.S.C.

§ 2254(d)(1), or (2) “based on an unreasonable determination 

of the facts in light of the evidence presented in the State court 

proceeding,” id. § 2254(d)(2). See Rogers v. Superintendent 

Greene SCI, 80 F.4th 458, 462 (3d Cir. 2023).

III. Discussion

A. Brady Claims

The Supreme Court’s decision in Brady v. Maryland 

requires prosecutors to affirmatively disclose evidence that is 

favorable to a defendant to his counsel. 373 U.S. at 87. But 

not every failure to disclose warrants relief. We will grant a 

new trial only if a petitioner demonstrates that (1) the withheld 
9

evidence was favorable to him, either because it was 

“exculpatory” or “impeaching,” (2) the State suppressed the 

evidence, either “willfully” or “inadvertently,” and (3) the 

evidence was material “such that prejudice resulted from its 

suppression.” Dennis, 834 F.3d at 284–85 (quoting Strickler 

v. Greene, 527 U.S. 263, 281–82 (1999)). Materiality under 

Brady requires “a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding 

would have been different.” Kyles v. Whitley, 514 U.S. 419, 

433 (1995) (citation omitted). “A ‘reasonable probability’ of a 

different result is . . . shown when the government’s 

evidentiary suppression ‘undermines confidence in the 

outcome of the trial.’” Id. at 434 (quoting United States v. 

Bagley, 473 U.S. 667, 678 (1985)). In other words, evidence 

is material when it “could reasonably be taken to put the whole 

case in such a different light as to undermine confidence in the 

verdict.” Id. at 435. And when reviewing Brady claims, we 

assess materiality cumulatively, rather than item-by-item. See 

Dennis, 834 F.3d at 312 (explaining that “[t]he importance of 

cumulative prejudice cannot be overstated, as it stems from the 

inherent power held by the prosecution, which motivated 

Brady”). 

1. Statements to Witnesses About Leniency

Rega claims that the prosecutor violated Brady by 

failing to disclose a statement the prosecutor made to witnesses 

when they asked about leniency in their own criminal cases. 

According to Rega, the prosecutor told them that, while he 

would not discuss any specific deals, he would or probably 
10

would consider their testimony when considering pleas after 

Rega’s trial was over. 

At the outset, the parties disagree over the witnesses to 

whom the prosecutor made this statement. Rega argues that 

the prosecutor made it to Bair, Fishel, Susan Jones, and Sharp. 

The Commonwealth argues that Rega has shown only that the 

prosecutor made it to Bair. Having reviewed the issue, we 

agree with the Commonwealth. Bair’s counsel testified at the 

PCRA hearing that the prosecutor refused to make any 

promises but told Bair that his assistance “probably . . . would 

be taken into account” in any future plea deal. J.A. 1248. But 

the evidence that Rega proffers as to Sharp is at best 

inconclusive; while Sharp’s counsel testified to a general 

“understanding” with the prosecutor that Sharp’s cooperation 

would be considered in a future plea agreement, he later 

clarified that he did not remember an “outright conversation” 

with the district attorney concerning the issue. J.A. 1440, 

1444. And Rega has adduced no evidence that the prosecutor 

made a similar statement to Fishel or Susan Jones.4 Thus, Rega 

has shown only that the prosecutor made this statement to Bair. 

4 The only other PCRA witness who testified that the 

prosecutor made a similar statement was counsel for Stan Jones

(as distinct from Susan Jones), who was not a Commonwealth 

witness and as to whom Rega does not assert this claim. Rega 

argues that there was other PCRA testimony on this point, but 

he mischaracterizes the record. For example, Rega argues that 

Officer Louis Davis testified that the prosecutor made similar

statements to Fishel and Susan Jones, but the passage he cites 
11

On PCRA review, the Pennsylvania Supreme Court 

rejected this Brady claim on the ground that the prosecutor’s 

statement to Bair was not favorable to Rega; according to that 

court, the alleged “promise” was nothing more than “the 

possibility for later negotiation based on the witness[’s]

cooperation” and therefore would not serve to impeach Bair’s

testimony. Commonwealth v. Rega, 70 A.3d 777, 781 (Pa. 

2013). This determination appears reasonable. But even were 

it not, the prosecutor’s statement clearly was not material.

5

 See 

Dennis, 834 F.3d at 285. Bair was one of four participating 

witnesses who knew Rega and who unequivocally testified that 

he was the shooter. Rega does not argue that Bair’s testimony 

was more important than the others’, and our review does not 

suggest that it was. Nor do we see any other basis to conclude 

that further impeachment of Bair might have made a difference 

is the prosecutor’s characterization of Davis’s testimony as to 

Stan Jones, not Fishel or Susan Jones.

Rega’s legal arguments fare no better. Although he contends

that the Pennsylvania Supreme Court found that the prosecutor 

made this statement to all four witnesses, the nature of that 

court’s ruling did not require it to make any finding on this 

point, and it did not. Rega also argues that the Commonwealth 

judicially admitted this point in various filings, but none of the 

statements he cites constitutes an unequivocal or unambiguous 

concession that the prosecutor made any such statement to 

Fishel or Susan Jones. See Bedrosian v. United States, 42 F.4th 

174, 184 (3d Cir. 2022), cert. denied, 143 S. Ct. 2636 (2023).

5 We review materiality de novo and not under 28 U.S.C. 

§ 2254(d)(1) because, as described above, the Pennsylvania 

Supreme Court rejected the Brady claim on other grounds.
12

under the circumstances presented here. Cf. Haskell, 866 F.3d 

at 146–47 (holding that promises of favorable treatment to one 

of four eyewitnesses was material under Napue and Giglio

where one of the witnesses recanted the identification at trial 

and the other two previously denied that they could identify the 

shooter); Slutzker v. Johnson, 393 F.3d 373, 387–88 (3d Cir. 

2004) (holding that evidence was material where four 

eyewitnesses identified the defendant, but one of them was 

more “credible” than the others, and the Brady evidence was 

that she previously told police that the defendant was not the 

perpetrator).

In any event, impeaching Bair with the prosecutor’s 

statement would not have significantly undermined even Bair’s 

own testimony. Rega does not claim that the prosecutor 

offered Bair a specific incentive in exchange for his testimony, 

but rather that the prosecutor made the wholly noncommittal 

statement that he would consider Bair’s testimony—or, in the 

precise words of Bair’s counsel, “[j]ust probably it would be 

taken into account or at the end we will see how it all shakes 

out and we will take and deal with that at that point.” J.A. 

1248. This statement shows that Bair had a general motive to 

testify in the hope of receiving leniency on his own charges, 

but the jury already knew that. The jury heard Bair testify that 

he was hoping for favorable treatment in exchange for his 

testimony, and Rega’s counsel vigorously argued that point at 

closing. Given Bair’s testimony, that impeachment argument

had evidentiary support and thus was not merely a “speculative 

and baseless line of attack,” as Rega argues. Opening Br. 41

(quoting Davis v. Alaska, 415 U.S. 308, 309 (1974)). Both 
13

Counsel and the court then drove home that point with the 

“polluted source” instruction. Adding the prosecutor’s 

noncommittal statement to Bair would have added little, if 

anything, to the mix. See Bell v. Bell, 512 F.3d 223, 237 (6th 

Cir. 2008) (en banc) (holding that evidence of a witness’s

expectation of favorable treatment was not material where it 

merely would have bolstered an attack on credibility already 

made at closing); McCleskey v. Kemp, 753 F.2d 877, 884 (11th 

Cir. 1985) (en banc) (holding that a detective’s offer to “speak 

a word” for the witness was not material under Giglio where, 

among other things, the witness already “admitted that he was 

testifying to protect himself”), aff’d on other grounds, 481 U.S. 

279 (1987).

Finally, other trial evidence tied Rega to the murder 

weapon, thereby corroborating Bair’s testimony. For example, 

Bair’s testimony that Rega bought the ammunition for the gun 

used to kill Lauth is corroborated by the testimony of a WalMart employee and the store’s surveillance video recording. 

This evidence did not directly implicate Rega as the shooter, 

but it did give the jury additional reason to believe the 

consistent testimony of all four witnesses. Under these 

circumstances, introducing the prosecutor’s noncommittal 

statement to Bair would not have “put the whole case in such a 
14

different light as to undermine confidence in the verdict.” 

Kyles, 514 U.S. at 435.

2. Susan Jones’s Memory Problems

We reach the same conclusion even considering Rega’s 

first Brady claim along with his second.6 Rega contends that 

his prosecutor failed to disclose evidence that Susan Jones 

suffered from memory problems, namely, a letter from Susan 

Jones to the prosecutor in which she asserted that “I have a 

problem with my head,” J.A. 2836, and a conversation she had 

with a police officer about her memory problems. In support 

of his claim, Rega also cites Susan Jones’s PCRA testimony 

that police had to “jiggle [her] memory,” J.A. 1846, and the 

PCRA testimony of Dr. Jonathan Mack that Susan Jones has a 

“brain impairment” called “pseudotumour cerebri” that can 

cause “memory loss,” J.A. 2403–04, 2408–09. 

Clearly, evidence of a government witness’s memory 

problems could provide fodder for impeachment and is thus 

favorable to a defendant. See United States v. Kohring, 637 

F.3d 895, 907 (9th Cir. 2011); Conley v. United States, 415 

F.3d 183, 190 (1st Cir. 2005). However, the Pennsylvania 

Supreme Court ultimately concluded that this evidence was not 

material, and we agree. In the first place, and as with Bair, 

6 We assess cumulative materiality de novo because the 

Pennsylvania Supreme Court rejected Rega’s first Brady claim 

for lack of favorability, and thus had no occasion to consider

the two claims’ cumulative materiality. See Simmons v. Beard, 

590 F.3d 223, 233 (3d Cir. 2009).
15

Rega has not shown that this evidence would have undermined 

even Susan Jones’s own testimony. Her most important 

testimony for present purposes was that Rega told her he killed 

the victim. But Rega has not argued, let alone shown, that this 

conversation was one of the subjects on which police “jiggled” 

her memory. Nor has he shown whether or how her condition 

might have interfered with her “ability to perceive, remember 

and narrate” either that specific conversation or the relevant 

events in general. Wilson v. Beard, 589 F.3d 651, 666 (3d Cir. 

2009) (citation omitted). Susan Jones’s testimony was specific 

and detailed, and it comported with a written statement she 

submitted to the police in 2001. We think it unlikely that a 

generalized showing of “memory problems” would have 

undermined that evidence. 

Regardless, Susan Jones was not at the scene, and the 

three witnesses who were present at the lodge testified that 

Rega was the shooter. Further impeaching her would thus not 

have undermined the most damning evidence against Rega. 

Nor, as explained above, would further impeachment of Bair 

have undermined his own testimony. Such impeachment also 

would have left undisturbed the testimony of Fishel and Stan 

Jones that Rega was the shooter, which both independently 

implicated Rega and corroborated Bair’s and Susan Jones’s 

testimony on that point. Further impeachment of Susan Jones 

and Bair also would not have undermined other evidence of 

Rega’s orchestration of and participation in the crime, 

including evidence tying him to the murder weapon. Thus, 
16

even considered cumulatively, Rega’s Brady evidence does not

“undermine confidence in the verdict.” Kyles, 514 U.S. at 435. 

B. Giglio/Napue Claim

Rega’s final claim is that Bair, Fishel, and Susan Jones 

falsely testified that the prosecutor did not make any 

“promises” to them and that the prosecutor, in violation of 

Giglio and Napue, knowingly presented and failed to correct 

that testimony. J.A. 421, 465, 550. Rega argues that this 

testimony was false because the prosecutor made a “promise” 

by uttering the statement underlying the first Brady claim—

i.e., that he would or probably would consider the witnesses’

testimony when offering plea deals in their own cases. But as 

we explained in the context of his first Brady claim, Rega has 

shown only that the prosecutor made that statement to Bair. 

And with no showing that the prosecutor made that statement 

to Fishel or Susan Jones, Rega has provided no basis to 

conclude that their testimony on this point was false. Thus, we 

limit our consideration of this claim to Bair, and we will affirm 

the denial of this claim because Bair’s disavowal of any 

“promises” was not material.7

7 As described above, Rega expressly declined to pursue his 

claim that we should assess the materiality of this 

Giglio/Napue claim cumulatively with his Brady claims. Thus, 

we have no occasion to opine on whether Brady and 

Giglio/Napue claims should be considered cumulatively as a 

general matter, though we note that other Courts of Appeals 

have addressed that issue, see, e.g., Juniper v. Davis, 74 F.4th 
17

To establish a constitutional violation under Giglio and 

Napue, Rega must show that (1) Bair perjured himself, (2) the 

Government “knew or should have known of his perjury,” (3) 

Bair’s testimony “went uncorrected,” and (4) there exists “any 

reasonable likelihood that the false testimony could have 

affected the verdict.” Lambert v. Blackwell, 387 F.3d 210, 242

(3d Cir. 2004). This “reasonable likelihood” standard is

“lower, more favorable to the defendant[] and hostile to the 

prosecution as compared to the standard for a general Brady

withholding violation.” Haskell, 866 F.3d at 150 (quoting 

United States v. Clay, 720 F.3d 1021, 1026 (8th Cir. 2013)). It

is “equivalent to the harmless-error standard articulated in 

Chapman v. California,” under which a constitutional violation 

is harmless only if it is “harmless beyond a reasonable doubt.” 

Id. at 147 (citing Chapman v. California, 386 U.S. 18, 24 

(1967)).

The Pennsylvania Supreme Court determined that Bair 

did not perjure himself when he denied being made any 

promises because, as described above, Rega offered no 

evidence that the prosecutor made anything other than a vague 

statement to Bair that his cooperation might be considered in 

196, 212–13 (4th Cir. 2023), and that the Supreme Court 

granted certiorari to consider it in Glossip v. Oklahoma, 144 S. 

Ct. 691 (2024) (mem.). In noting this issue, we do not suggest 

that our decision might be different if we considered all three 

claims cumulatively.
18

future plea negotiations. We defer to this reasonable

determination under 28 U.S.C. § 2254(d)(1). 

Even if we determined that Bair’s testimony was “false” 

for purposes of Giglio and Napue, we would still deny Rega’s 

claim as immaterial to the jury’s verdict.8 We reach that 

conclusion largely for the same reasons as above. Bair was 

merely one of four witnesses who identified Rega as the 

shooter, the jury already knew that Bair hoped for lenient 

treatment in exchange for testifying against Rega, the 

prosecutor’s noncommittal statement that he would “consider” 

Bair’s testimony added little to that line of impeachment, and 

the evidence overall (including evidence corroborating other 

aspects of Bair’s testimony) showed that Rega was the 

mastermind and tied him to the murder weapon. Rega’s 

counsel used his direct examination of Bair and closing 

argument to emphasize Bair’s potentially selfish motives, and 

the trial court warned the jury about those motives in its 

“polluted source” instructions. Thus, no “reasonable 

likelihood” exists that the challenged testimony affected the 

8 As with Rega’s first Brady claim, we review materiality de 

novo and not under 28 U.S.C. § 2254(d)(1) because the 

Pennsylvania Supreme Court did not reach the issue. See 

Dennis, 834 F.3d at 283–84.
19

jury’s judgment. Haskell, 866 F.3d at 152; see McCleskey, 753 

F.2d at 884.

IV. Conclusion

For the foregoing reasons, we will affirm the judgment 

of the District Court.