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United States v. Beyer

United States Court of Appeals, Eighth Circuit

December 21, 2017

United States of America Plaintiff- Appellee
v.
Robert S. Beyer, II Defendant-Appellant

          Submitted: September 22, 2017

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.

          BENTON, Circuit Judge.

         A jury found Robert S. Beyer, II guilty of wire fraud in violation of 18 U.S.C. § 1343 and unlawful monetary transaction in violation of 18 U.S.C. § 1957. The district court[1] sentenced him to 97 months' imprisonment. He appeals the conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         Beyer sold insurance and securities for several companies. In 2011, he formed Heroic Life Assurance Company. He described HLA as a start-up life insurance company. Beyer asked at least four of his pre-HLA clients to invest with HLA. He assured them that their money would be kept safe, promising two of them a guaranteed rate of return.

         The investors gave HLA over $330, 000. Beyer spent much of their money for his personal benefit. Beyer repaid one investor, using another investor's funds. He did not return any funds to any others.

         A jury found Beyer guilty. At sentencing, the district court applied a vulnerable-victim enhancement. It also denied a downward departure in criminal history.

         II.

         Beyer stressed he used some investor funds for legitimate business expenses. The government countered with evidence that Beyer spent about $109, 000 of investor funds on non-business expenses, including retail purchases, meals and incidentals, child support, gas, and dating services. Beyer did not pay these expenses in cash.

         Beyer withdrew about $30, 000 in cash from the investor funds. The government introduced evidence he spent at least some of the cash withdrawals for non-business expenses, including withdrawing about $300 in cash at an ATM in an adult-entertainment club. This "ATM-location evidence" discussion takes 18 lines of a three-volume transcript, and it was not mentioned again.

         Beyer objected to the ATM-location evidence. The district court admitted it without limitation. Beyer appeals. This court reviews a district court's evidentiary rulings for abuse of discretion. United States v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir. 2015).

         In his objection, Beyer paraphrased Rule 403: a district court may "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Unfair prejudice is "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee's note; see also United States v. Fletcher, 322 F.3d 508, 518 (8th Cir. 2003) ("Rule 403 is concerned only with unfair prejudice, that is, an ...


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