                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2008

USA v. Fallon
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2350




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"USA v. Fallon" (2008). 2008 Decisions. Paper 365.
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                                               NOT PRECEDENTIAL
                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 07-2350


                      UNITED STATES OF AMERICA

                                      v.

                            JAMES C. FALLON,
                                         Appellant


                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                        D.C. Criminal No. 02-cr-00324
                         (Honorable James T. Giles)


                         Argued September 9, 2008
       Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.

                           Filed: October 15, 2008

ROBERT EPSTEIN, ESQUIRE (ARGUED)
Defender Association of Philadelphia
Federal Court Division
The Curtis Center, Suite 540 West
601 Walnut Street
Philadelphia, Pennsylvania 19106
      Attorney for Appellant

BERNADETTE A. McKEON, ESQUIRE (ARGUED)
CHRISTINE E. SYKES, ESQUIRE
ROBERT A. ZAUZMER, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
       Attorney for Appellee
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Appellant James C. Fallon was convicted by a jury of one count of wire fraud and

three counts of mail fraud. In addition to a prison sentence of twelve months and a day

(followed by thirty-six months of probation), Fallon was ordered to pay restitution in the

amount of $55,235.86. On appeal, we affirmed Fallon’s conviction and sentence, but

vacated the District Court’s restitution order. United States v. Fallon, 470 F.3d 542 (3d

Cir. 2006). On remand, the District Court imposed an amended restitution order in the

amount of $57,437.80. Fallon now appeals the Court’s restitution calculation. For the

following reasons, we will affirm.

                                             I.

       Fallon is the former president of Derma Genesis, the manufacturer and distributor

of “Derma Peel,” a dermatological device. On November 4, 1997, the Food and Drug

Administration (“FDA”) notified Fallon he could not legally market Derma Peel without

first obtaining clearance from the agency. Nevertheless, in January 1998, Fallon began

promoting Derma Peel without FDA clearance. Soon after, Fallon began negotiations

with a medical device financier, American Business Leasing, (“ABL”) to purchase the

devices. To secure an agreement, Fallon fraudulently submitted a forged letter to ABL




                                             2
which claimed to provide FDA approval for distribution of Derma Peel. This letter

formed the evidentiary basis of the government’s successful prosecution of Fallon.

       Relying upon the forged letter, ABL purchased seventy-eight Derma Peel

machines from Fallon for lease to medical professionals.1 ABL became aware of Fallon’s

fraud in September 1998, and shortly thereafter ended its relationship with Derma

Genesis. Fallon was indicted in 2002 and the District Court entered the judgment of

conviction and sentence on October 16, 2003. Fallon appealed his sentence and we

vacated the restitution amount and remanded back to the District Court. After the

amended restitution order was imposed, Fallon again appealed the judgment, disputing

the method of calculation used by the District Court.

       On appeal, we consider the District Court’s amended restitution order.2




   1
    On February 18, 1998, shortly after Fallon submitted the fabricated letter to ABL, the
passage of the Food and Drug Modernization Act exempted Derma Peel from the FDA’s
clearance requirement. Though Fallon could now legally market Derma Peel without
FDA clearance, the District Court found Fallon’s representation of FDA approval
remained material to ABL’s decision to purchase the device. Furthermore, the District
Court found it was material to certain doctors’ decisions to lease the device from ABL.
   2
    “We review a restitution order under a bifurcated standard: plenary review as to
whether restitution is permitted by law, and abuse of discretion as to the appropriateness
of the particular award.” United States v. Quillen, 335 F.3d 219, 221 (3d Cir. 2003).
(internal quotations omitted). A district court’s factual finding regarding the amount of
loss is reviewed for clear error. United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007).

                                              3
                                             II.

       The District Court did not err in confining the restitution calculation to the four

unenforced lease agreements. Fallon contends the District Court should have aggregated

ABL’s profits and losses from all of the leases to determine the restitution amount. Under

Fallon’s approach, there would be no restitution award as it is undisputed ABL generated

a net profit from the leases. However, under the Mandatory Victims Restitution Act

(“MVRA”), a defendant is required to pay restitution to a victim for losses proximately

caused by the defendant’s unlawful conduct. 18 U.S.C. § 3663(a)(1)(A). In Fallon, we

instructed that “where . . . the government demonstrates that a business transaction was

consummated due to fraud by the defendant, a commonsense but rebuttable inference

arises that subsequent losses suffered by the victim of the fraud are sufficiently linked to

the underlying fraud to support an award of restitution.” 470 F.3d at 549.

       On remand, as directed, the District Court correctly focused just on those leases

which the government demonstrated were proximately caused by the defendant’s

unlawful conduct and for which the defendant did not provide evidence to rebut the

inference in favor of the prosecution.3 Because Fallon failed to demonstrate there was an


   3
     The defendant provided evidence to rebut the proximate causation inference for the
other leases in the first sentencing hearing. See Fallon, 470 F.3d at 549. (“As noted,
approximately $34,000 of the District Court’s $55,235.86 restitution judgment can be
attributed to lease payments missed by two doctors, one dead and one who filed for
bankruptcy.”) See also United States v. Fallon, No. 02-324-1, 2007 U.S. Dist. LEXIS
32986, at *4 (E.D. Pa. May 3, 2007). (“Only lease agreements as to the three entities are
                                                                               (continued...)

                                              4
intervening cause for these losses other than his fraud, the District Court was correct in

only including the four leases in the restitution award.4

                                             A.

       The District Court did not abuse its discretion in finding ABL made a reasonable

business decision not to enforce its financing agreement. Fallon argues ABL could have

enforced the outstanding lease agreements, mitigating their losses. But the District Court

credited the testimony of ABL’s attorney that he advised the company it could face

allegations of fraudulent inducement if it attempted to enforce the lease agreements for

Derma Peel. Accordingly, ABL decided not to attempt to enforce the outstanding leases

because ABL’s contractual relationship with its customers included a duty of good faith

and fair dealing.5 See, e.g., DiCarlo v. St. Mary Hosp., No. 05-1665, 2006 U.S. Dist.


   3
    (...continued)
now at issue. . . . As to each of the four devices at issue, Defendant has presented no
evidence or testimony from any of the contracting parties that the devices were returned
for reasons other than the misrepresentation regarding FDA approval.”)
   4
    The District Court’s restitution calculation is as follows: the government presented
unrefuted evidence that ABL was unable to collect $24,743.64 from the Cosmetic Laser
Center, $42,646.10 on two leases from Dr. Griffin, and $48.06 from the Plastic Surgery
Center. The total losses were found to be $67,437.80. The court then offset the restitution
amount by $2,500, the residual value of each of the four machines after the leases were
terminated and the machine was returned to ABL, as stipulated in the contract. The total
restitution amount is therefore $57,437.80.
   5
    Fallon claims he should not be responsible for the resulting losses because it was
possible for ABL to enforce the outstanding lease agreements against the doctors.
Fallon’s argument is three-fold: (1) ABL’s lease agreements contained a so-called “hell or
                                                                              (continued...)

                                              5
LEXIS 49000, at *20, (D.N.J. July 19, 2006), adopted by DiCarlo v. St. Mary Hosp., 530

F.3d 255, 260 (3d Cir. 2008) (“A plaintiff may be entitled to relief under the covenant [of

good faith and fair dealing] if its reasonable expectations are destroyed when a defendant

acts with ill motives and without any legitimate purpose.” (citation omitted)). Having

discovered its customers may have been fraudulently induced to purchase Derma Peel

machines, ABL acted in accord with its duties in declining to enforce the outstanding

leases.6

                                            B.

       The District Court did not err by deducting only the default residual value of

Derma Peel machines from the restitution award. Fallon argues the Court should have

   5
     (...continued)
high water” provision, which protected ABL from liability (the lease stated ABL did not
ensure the quality of the products it financed), (2) ABL did not engage in fraudulent
conduct because the device was exempted from the FDA’s clearance requirement before
it was purchased by ABL, and (3) ABL did not make its fraudulent representations
knowingly. We find these arguments to be without merit. To compel a company to pursue
litigation to enforce an agreement which it suspects was fraudulently entered into is
unreasonable and not a recognizable legal duty.
   6
     Initially we stated, “Whether the doctors may have had colorable fraudulent
inducement claims is far from certain.” Fallon, 470 F.3d at 550. Nevertheless, given the
presumption that Fallon was the proximate cause of ABL’s losses, Fallon still has the
burden of proving ABL was unreasonable in failing to enforce the outstanding leases.
Fallon did not meet this burden. ABL presented unrefuted evidence at least one doctor
threatened to take legal action against ABL for fraudulently inducing the lease agreement
if ABL attempted to enforce the Derma Peel lease agreement. Fallon wishes this Court to
require ABL to litigate each claim, a costly, impractical, and unpredictable demand. Even
if, as Fallon predicts, ABL’s lease agreements were legally enforceable, it would be
improper and overreaching to require a fraud victim to pursue every possible avenue to
mitigate the costs of the crime perpetrated upon them.

                                             6
deducted the residual value of the devices at the time ABL stopped enforcing the lease

agreements. Under the MVRA, the value of property at the time it is returned to the

victim must be deducted from the restitution award. 18 U.S.C. § 3663(b)(I)(B)(ii).

Fallon argues ABL should have sought to have the machines returned immediately so

they could be resold or leased. Fallon claims machines returned before their lease

agreements were set to expire had a higher residual value than $2,500 because they had

been used fewer times than expected, and this extra value should be deducted from the

restitution amount. The District Court disagreed and credited Fallon for the default

minimal residual value of the four machines as stipulated in the contract ($2,500 each).

       As noted, Fallon has the burden of refuting the presumption that ABL’s losses

were due to his fraud. Fallon, 470 F.3d at 549. To satisfy this burden, he would have to

establish that if the Derma Peel machines were returned to ABL, they could have been

resold or released at a value higher than $2,500. In other words, he would need to show

ABL could have mitigated its losses, but did not.

       Fallon did not meet this burden. The District Court credited the testimony of a

prosecution witness, FDA Special Agent Douglas Loveland, who stated the devices

would have been returned to the device distributors who worked for Fallon, rather than to

ABL. Fallon presented no evidence indicating the machines were returned to ABL rather

than the distributor, or even that ABL would have been able to resell or release the

machines for more than $2,500 to recover some of its lost profits. The District Court

                                             7
credited Fallon $2,500 for the minimal residual value of each machine as stipulated in the

contract. This placed ABL in the position it would have been in had the contracts been

fully performed. As such, we see no error in the District Court’s findings.

         Accordingly, we will affirm the restitution award as determined by the District

Court.




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