United States v. John T. Burns, III

843 F.3d 679, 2016 U.S. App. LEXIS 22035, 2016 WL 7190519
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 12, 2016
Docket15-2824
StatusPublished
Cited by58 cases

This text of 843 F.3d 679 (United States v. John T. Burns, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John T. Burns, III, 843 F.3d 679, 2016 U.S. App. LEXIS 22035, 2016 WL 7190519 (7th Cir. 2016).

Opinions

KANNE, Circuit Judge.

John Bums made fraudulent misrepresentations when soliciting investments for his employer, USA Retirement Services (“USARMS”). Burns told investors that he had experience managing investments and that he had personally invested in [683]*683USARMS’s promissory notes. His statements were false. Moreover, without Burns’s knowledge, the investment opportunity was fraudulent. USARMS’s owners were operating a Ponzi scheme.

With USARMS’s owners out of the picture for various reasons, the government filed a superseding indictment against Burns. The government alleged that Burns committed fraud by making material misrepresentations to investors. A jury convicted Burns on two counts of wire fraud and three counts of mail fraud. Despite not alleging that Burns knew of or participated in the Ponzi scheme, the government sought to hold Burns accountable for the entire $3.3 million the investors that he solicited lost as a result of the Ponzi scheme. The district court enhanced Burns’s sentence, ordered restitution, and ordered forfeiture based on the victims’ $3.3 million total loss.

On appeal, Burns argues that there was insufficient evidence to convict him of making material misrepresentations. Burns also challenges the sentencing enhancement and the restitution order on grounds that the district court did not determine that he proximately caused the victims’ loss. Finally, Burns argues that the forfeiture order was improper because it was based on the victims’ loss and not on his gain. Because there was sufficient evidence to convict, we affirm Burns’s conviction. But because' the district court erred in calculating the sentence, restitution order, and forfeiture order, we remand for resen-tencing.

I. Background

At USARMS; Burns’s primary job was to provide estate-planning services to clients. In addition to those services, Burns would offer clients an opportunity to invest in promissory notes that USARMS sold. The notes were allegedly backed by Turkish bonds. USARMS’s owners, Francois Durmaz and Robert Pribilski, claimed to have a connection in the Turkish government that allowed them to purchase the bonds at a below-market rate. USARMS guaranteed an 8.5 percent rate of return and told investors that returns could be as high as 14 percent.

As the high guaranteed rate of réturn might have hinted, the investment opportunity was too good to be true. USARMS never purchased Turkish bonds. Instead, Durmaz and Pribilski used the investments for their personal use and to pay earlier investors “returns” on their investment-indicia of a classic Ponzi scheme.

The government’s original criminal complaint charged only Durmaz with wire fraud in connection with the Ponzi scheme. Perhaps aware that the scam had run its course and was about to collapse, Durmaz fled the country before the original complaint was filed. Roughly two years later, the government filed an indictment against Durmaz, Pribilski, and Burns, charging them with various counts of wire and mail fraud. Pribilski pled guilty to the charges. But before he could be sentenced, he died.

With only Burns left alive and -in the United States, the government filed a superseding indictment. The government alleged that Burns had induced certain victims to invest in USARMS by falsely telling them that he had experience managing investments and that he and his family had invested in the Turkish bonds. The superseding indictment made no reference to the Ponzi scheme. In its response to Burns’s motion in limine, the government stated that the “Defendant is not alleged to have knowingly participated in the Ponzi scheme” and that the lies about his credentials and his personal investment are “the only crimes that defendant is alleged to have committed.” (R. 104 at 4.)

[684]*684At trial, the government called six of the victims Burns had solicited investments from. Five victims testified that they had relied on Burns’s statements that he and his family had invested in the Turkish bonds. A sixth victim testified that Burns said that he had experience handling investments and that he personally allocated Turkish bonds to investor, accounts.

At the close of evidence, the jury convicted Burns on two counts of wire fraud and three counts of mail fraud. The district court sentenced Burns to eighty-four months in prison and three years’ supervised release. When calculating the sentence, the district court applied an 18-level enhancement to account for the roughly $8.3 million Burns’s victims lost in their investment with USARMS. The district court also entered a restitution order and forfeiture order, both for $3.3 million. Burns filed a motion for judgment of acquittal and a motion for a new trial. The district court denied the motions, and this appeal followed,

II. ANALYSIS

On appeal, Burns challenges his conviction, his sentence, the restitution order, and the forfeiture order. Burns argues that his statements about his financial background and his personal investment in USARMS were puffery and thus could not have been material misrepresentations. Regarding the length of his sentence and the restitution order, Burns contends that the district court did not establish that he proximately caused the victims’ loss. Accordingly, Burns claims that the court improperly enhanced his sentence and ordered him to pay more in restitution than the loss that he caused. Finally, Burns challenges the forfeiture order because the court ordered forfeiture based on the victims’ $3.3 million loss instead of the amount that he gained from his unlawful conduct.

A, Sufficiency of the Evidence

We review de novo the denial of a motion for the judgment of acquittal. United States v. Peterson, 823 F.3d 1113, 1120 (7th Cir. 2016). In reality, however, we apply the same analysis that we use when reviewing for the sufficiency of the evidence. Id. The burden for proving insufficiency of the evidence is “heavy” and “neaiiy insurmountable.” United States v. Dessart, 823 F.3d 395, 403 (7th Cir. 2016). Burns must prove “that even after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found him guilty beyond a reasonable doubt.” Id. (internal quotation marks omitted); see also United States v. Clarke, 801 F.3d 824, 827 (7th Cir. 2015).

A statement is material if it has the ability to influence a person’s decision. United States v. Seidling, 737 F.3d 1155, 1160 (7th Cir. 2013) (citing Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Burns’s argument that his statements were puffery, akin to a used-car salesman’s sales pitch, is unavail ing. “Puffing” is “[t]he expression of an exaggerated opinion — as opposed to a factual misrepresentation — with the intent to sell a good or service.” Black’s Law Dictionary 1269 (8th ed. 2004). We have said that puffery is nonactionable because no reasonable person would rely on such “empty superlatives.” F.T.C. v. Trudeau, 579 F.3d 754, 765 (7th Cir. 2009).

Whereas puffery involves ambiguous and vague promises, Burns’s comments were factual and specific. He told investors that he and his family had invested in the bonds and were reaping the rewards of having done so. He told investors that he had a history of managing investments.

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Bluebook (online)
843 F.3d 679, 2016 U.S. App. LEXIS 22035, 2016 WL 7190519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-t-burns-iii-ca7-2016.