                                                                   NOT PRECEDENTIAL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.
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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).
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