On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 85-73).
BEFORE: HUNTER, GARTH, Circuit Judges and FISHER, District Judge*fn*
In an indictment returned April 2, 1985, defendant-appellant Paul E. Martin was charged with 34 counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342.*fn1 The indictment alleged that Martin, a sales representative and territory manager for the Travenol Laboratories, Inc., a supplier of health care products to hospitals, had engaged in a scheme to defraud whereby he and a co-conspirator stole product from Travenol customers and resold them to various hospital through a fictitious entity known as Kramer Pharmaceuticals, Inc.
Pursuant to a plea agreement entered into with the United States Attorney, Martin agreed to plead guilty to counts three (3) and thirty-four (34) of the indictment. Count three (3) alleged that on April 25, 1980, Martin caused a Raleigh General Hospital check in the amount of $3,234 to be sent by that hospital to Kramer Pharmaceutical through the United States mail for the purpose of executing the scheme to defraud. Count 34 alleged that on October 10, 1983, Martin caused a Latrobe Area Hospital check in the amount of $13,200 to be sent by the hospital to Kramer Pharmaceutical by the United States mail for the purpose of executing the scheme to defraud.
The plea agreement provided that Martin's sentence on both counts would not exceed a ten-year prison term, a $2,000 fine, or both, as well as restitution in an amount to be determined by the district court. Martin further agreed
to make himself available to federal authorities for questioning concerning his knowledge of and participation in a scheme to defraud Travenol Laboratories, inc., and various hospitals through the fraudulent acquisition, sale and distribution of pharmaceutical and other hospital supplies under the name of Kramer Pharmaceutical, and agrees to answer all questions completely and truthfully.
It is understood that Mr. Martin will be required to provide information not only about himself, but about other individuals and entities as well, and that his cooperation will include giving complete and truthful testimony before any federal grand jury, petit jury or court considering such matters. Furthermore, Mr. martin agrees to provide all relevant records which are requested by federal authorities and which are in his custody or control or will otherwise identify those records relating to the scheme to defraud outlined above.
In return for Martin's guilty plea, the United States agreed not to prosecute Martin for any other violations arising out of the scheme to defraud and to seek dismissal of the remaining counts of the indictment.
Further, the government promised that:
The United States shall advise the Court at the time of sentence of the full nature and extent of Paul E. Martin's cooperation in ...