United States v. Frederick Burton ( 2018 )


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  •                                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 17-3227
    ________________
    UNITED STATES OF AMERICA
    v.
    FREDERICK DOUGLAS BURTON,
    Appellant
    ________________
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal Action No. 2-16-cr-00028-001)
    District Judge: Honorable Jeffrey L. Schmehl
    ________________
    Submitted Under Third Circuit LAR 34.1(a)
    June 11, 2018
    Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges
    (Opinion filed: July 6, 2018)
    ________________
    OPINION *
    ________________
    AMBRO, 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.
    Dr. Frederick Douglas Burton was convicted by a jury of two counts of mail fraud
    in violation of 
    18 U.S.C. § 1341
    , attempted mail fraud in violation of 
    18 U.S.C. § 1349
    ,
    and aiding and abetting mail fraud in violation of 
    18 U.S.C. § 2
    . He argues on appeal that
    the District Court erred in denying his Rule 29 motion for judgment of acquittal because
    the evidence was insufficient to convict him of the charges. 1 He also argues that
    attempted mail fraud is not a crime.
    We review de novo the Court’s denial of a Rule 29 motion, and we apply the same
    standard as the District Court. United States v. Bobb, 
    471 F.3d 491
    , 494 (3d Cir. 2006).
    We apply a highly deferential standard and view the evidence in the light most favorable
    to the prosecution. United States v. Caraballo-Rodriguez, 
    726 F.3d 418
    , 430 (3d Cir.
    2013) (en banc); Jackson v. Virginia, 
    443 U.S. 307
    , 318–19 (1979). The question we
    answer is whether any rational trier of fact could have agreed with the jury and found
    proof of guilt beyond a reasonable doubt. Cavazos v. Smith, 
    565 U.S. 1
    , 7 (2011) (per
    curiam). Pursuant to our decision in United States v. Niederberger, 
    580 F.2d 63
     (3d Cir.
    1978), the Government had to establish Burton’s guilt by proof of any one of the
    conjunctively charged offenses. Id at 68. In light of our deferential standard, we agree
    with the District Court that there was sufficient evidence to support Burton’s conviction.
    According to the indictment, Burton signed two letters on his office stationery
    containing false statements concerning his medical treatment of Dr. Dennis Erik Fluck
    Von Kiel, who used those letters to attempt to submit false and fraudulent claims for
    1
    Though Burton’s Notice of Appeal refers to the judgment of sentence in this case dated
    September 15, 2017, we liberally construe his Notice to include the District Court’s order
    denying his Rule 29 motion on July 14, 2017.
    2
    Social Security disability benefits. 2 To find Burton guilty of mail fraud, the Government
    was required to prove: “(1) the existence of a scheme to defraud; (2) [Burton’s]
    participation . . . in the particular scheme charged with the specific intent to defraud; and
    (3) the use of the United States mails in furtherance of the fraudulent scheme.” United
    States v. Hannigan, 
    27 F.3d 890
    , 892 (3d Cir. 1994) (footnote omitted).
    The two letters, which Von Kiel drafted and Burton transferred to his office
    stationery and signed, represented that Burton had been treating Von Kiel for post-
    traumatic stress disorder for seven years, his condition had gotten worse, he could no
    longer work because of it, and this would prevent him from working for at least the next
    year. They also stated that Von Kiel was in the process of seeking disability benefits.
    Both letters were addressed to a law firm that Von Kiel spoke with to help him apply for
    long-term Social Security benefits. Burton admitted to the FBI and to the grand jury that
    his account of his medical treatment of Von Kiel was false and that he sent the letters to
    the law firm. A rational jury could have found from this evidence that Burton was guilty
    of mail fraud.
    We also reject Burton’s argument that attempted mail fraud is not a crime. It is.
    See 
    18 U.S.C. § 1349
     (“Any person who attempts . . . to commit [mail fraud] shall be
    subject to the same penalties as those prescribed for [mail fraud], the commission of
    which was the object of the attempt . . . .”).
    For these reasons, we affirm.
    2
    Von Kiel pleaded guilty to a seventeen-count indictment that included mail fraud,
    attempted mail fraud, and aiding and abetting mail fraud. United States v. Von Kiel, Crim.
    No. 14-149 (E.D. Pa. July 10, 2014).
    3
    

Document Info

Docket Number: 17-3227

Filed Date: 7/6/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021