U.S. v. Burns

• Decision Date: 14 January 1997
• Docket Number: D,No. 58,58
• Parties: UNITED STATES of America, Appellee, v. Brian BURNS, Defendant-Appellant. ocket 96-1035.
• Court: U.S. Court of Appeals — Second Circuit

Page 529

104 F.3d 529

UNITED STATES of America, Appellee, v. Brian BURNS, Defendant-Appellant.

No. 58, Docket 96-1035.

United States Court of Appeals, Second Circuit.

Argued Aug. 29, 1996.

Decided Jan. 14, 1997.

Mark A. Kaplan, Burlington, VT (Jarvis and Kaplan, Burlington, VT, of counsel), for Defendant-Appellant.

Paul J. Van De Graaf, Assistant U.S. Attorney, District of Vermont, Burlington, VT (Charles R. Tetzlaff, United States Attorney for the District of Vermont, David V. Kirby, Chief, Criminal Division, United States Attorney, District of Vermont, Burlington, VT, of counsel), for Appellee.

Before: MESKILL, KEARSE, and MAHONEY ^*, Circuit Judges.

MAHONEY, Circuit Judge ^**:

Defendant-appellant Brian Burns appeals from a January 11, 1996 judgment of the United States District Court for the District of Vermont, McAuliffe, J. (United States District Judge for the District of New Hampshire, sitting by designation), convicting him of wire fraud, in violation of 18 U.S.C. § 1343, concealment of a material fact in a matter within the jurisdiction of a federal agency, in violation of 18 U.S.C. § 1001, and use of a false document in violation of 18 U.S.C. § 1001, and sentencing him to 10 months incarceration, four months of which to be served as electronically-monitored home detention, and imposing $21,186 in restitution. On appeal, Burns argues that the district court (1) erred in rejecting his claim that the verdict should be overturned due to insufficiency of the evidence, (2) improperly refused his request for a new trial based on prosecutorial misconduct, and (3) incorrectly calculated his sentence. We reject these contentions and affirm the judgment.

BACKGROUND

The following facts are not substantially in dispute. From 1989 to 1993, Brian Burns, a former lieutenant governor of Vermont, served as a program manager for Northeast Rural Water Association (Northeast). Northeast is a non-profit corporation which trains and assists rural communities in Vermont, New Hampshire, and Massachusetts to provide safe drinking water and to deal with waste water.

Much of Northeast's funding comes indirectly from federal grants. Funding for the "program manager" position occupied by Burns, for example, derived from a grant by the Environmental Protection Agency (EPA) to the National Rural Water Association (National), which was an umbrella organization for local rural water associations throughout the country. National, in turn, provided the funds to Northeast and monitored Northeast's use of the funds.

A contract between Northeast and National dated April 13, 1990 and covering a period of May 1, 1990 to April 30, 1992, detailed how the EPA funds were to be used and provided for oversight by National. The contract required Northeast to appoint a program manager and dictated that the program manager work full time and provide a minimum number of technical assistance visits and training hours to local communities. The contract further provided that Northeast would furnish truthful information to National, and would notify National of any circumstance that might impact on Northeast's ability to perform under the contract. National also required Northeast to provide copies of all checks disbursing federal funds and all travel vouchers and required that program managers maintain daily time sheets. Burns was responsible for fulfilling all the duties imposed by Northeast's agreement with National.

In May 1990, Burns was accepted in a full-time Masters of Public Administration program at Harvard University.

In June 1990, although Northeast maintained its office in Williston, Vermont, Burns leased a one-bedroom apartment in Cambridge, Massachusetts on behalf of Northeast. The apartment was furnished as a residence and with office equipment and the lease payments were made with federal funds.

In July 1990, while Burns was still receiving his federally funded salary, he began to attend Harvard full time. Harvard required that students in this program devote themselves full time to their studies and that students in the master's program live near the school while pursuing the degree. Burns assured Harvard that he would satisfy these requirements.

While he attended Harvard, Burns submitted program manager time sheets indicating that he worked full time, during regular business hours, for Northeast. Burns directed his sister, Tess Carp, also a Northeast employee, to complete and submit his time sheets during the time he attended Harvard. Ms. Carp transmitted this information to National via computer.

During this time period, Burns also submitted travel vouchers to National and was reimbursed from federal funds for the expenses documented in those vouchers. Burns received reimbursement for numerous trips to and from Massachusetts.

A. Summary of the Government's Case

At trial, the government's position was that Mr. Burns "crafted a wide-ranging scheme to attend [Harvard] full time, while receiving a salary and expenses funded by a federal grant" despite his not working full-time for Northeast, as required by the contract. The government contended that Burns purposely concealed his attendance at Harvard from both National and Northeast, and misrepresented the "amount and nature of the work he performed on behalf of Northeast" while he attended Harvard.

The government also maintained that Burns leased the Cambridge apartment for his personal use while at Harvard, and not for any legitimate Northeast business. The woman who leased the apartment to Burns testified that he told her that he needed the apartment for the school year only, and asked about a nine-month lease. The government also emphasized that Burns' efforts to secure the apartment began when he was accepted into Harvard.

The government relied heavily on the time sheets which Burns admittedly directed his sister to submit on his behalf, and which indicated that he was working full time during regular business hours for Northeast while he was in fact a full-time student at Harvard. The government also placed substantial reliance on the travel vouchers which were submitted by Burns for reimbursement for numerous trips to and from Massachusetts, but which never mentioned Harvard.

B. Summary of Burns' Case

In his defense, Burns maintained that he did not deliberately conceal his attendance at Harvard, and had, in fact, obtained permission from members of Northeast's board to pursue the degree. Further, Burns contended that he did fulfill his duties to Northeast while he was in school.

With regard to the apartment, Burns maintained that Northeast officials had discussed opening a Boston office for a number of years, and that the apartment he rented was merely the proper implementation of this plan. Burns further contended that although he did intend to sleep at the apartment while in the Boston area on official business, the apartment was also suited for use as office space, and was necessary for Northeast to arrange training with the State of Massachusetts.

Burns also averred that although the time sheets he directed his sister to submit on his behalf were not accurate, those sheets do not evince any intent to deceive on his part. He testified that the purpose of the time sheets was simply to inform National of vacation time, sick leave and holidays.

DISCUSSION

I. Sufficiency of the Evidence

Burns claims that the district court erred in rejecting his motion for a judgment of acquittal on the ground that the government failed to present evidence sufficient to convict him on Counts Two, Three and Four. ¹

Burns bears a heavy burden to succeed on this claim. "We will not disturb a conviction on grounds of legal insufficiency of the evidence at trial if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Chalmers v. Mitchell, 73 F.3d 1262, 1272 (2d Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), cert. denied, --- U.S. ----, 117 S.Ct. 106, 136 L.Ed.2d 60 (1996). "We review the evidence in the light most favorable to the government, drawing all inferences and resolving all issues of credibility in its favor." United States v. Millar, 79 F.3d 338, 344 (2d Cir.1996) (citation omitted). We apply this exacting criteria, in turn, to each count on which Burns was convicted.

A. Count Two

In Count Two of the indictment, the government charges that Burns violated 18 U.S.C. § 1343, which provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice [is guilty of an offense.]

Burns argues that the district court's denial of his motion for a judgment of acquittal on this count was "clear error" because "the evidence was insufficient as a matter of law to establish the existence of a scheme to defraud and that [Burns] knowingly and willfully participated in it." Burns maintains that (1) "the evidence introduced at trial was clear that [Burns] had the authority to open a Boston office without National's prior approval," and (2) "the evidence shows that [Burns] did not attempt to withhold his attendance at Harvard from Northeast or National."

First, whether or not Burns had the authority to open another office for Northeast, ² is not determinative of whether he engaged in a "scheme to defraud." Even if the jury concluded that Burns had authority to open an office, a reasonable jury could easily conclude that Burns leased the apartment, or the "Boston office," as Burns refers to it, for the very purpose of having Northeast pay part of his living expenses while he attended Harvard, in furtherance of an illegal...