United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 95-4125EA No. 97-2117EA

_____________ United States of America, * * Appellee, * Appeals from the United States

* District Court for the Eastern
v. * District of Arkansas. * James B. McDougal, * * Appellant. *

_____________ Submitted: November 17, 1997

Filed: January 16, 1998

_____________ Before FAGG, MAGILL, and HANSEN, Circuit Judges.

_____________ FAGG, Circuit Judge. James B. McDougal appeals his convictions on charges of c onspiracy to defraud the United States, see 18 U.S.C. § 371 (1994); wire, bank, and mail fraud, see id. §§ 1343, 1344, 1341; aiding and abetting false statements to and entries in the books and
recor ds of federal credit institutions, see id. §§ 1006, 2; aiding and abetting fals e statements in loan and credit applic ations to influence a federal loan institution, see id. §§ 1014, 2; and aiding and abetting misapplication of small business investmen t company (SBIC) funds, see id. §§ 657, 2. We affirm.-2-

This case arises from McDougal’s real estate dealings and his role in Madison Guaranty Sav ings and Loan Association (MGSL). McDougal and his spouse, Susan, bought a controlling inte

rest in MGSL in 1982. They soon formed Madison Financial Corporation (MFC), an MGSL subsidiary, to conduct MGSL’s realestate development business. MGSL funds were used to purchase a four-hundred-acre tract o f land, known as the 145 th Street property, in December 1985. Large sections of the property were sold to Senator William Fulbright and other investors. Many of the purchases wer e financed through MGSL or Capital Management Servic es (CMS), an SBIC owned and operated by David Ha le and licensed by the Small Business Administration (SBA), to loan money only to socially or economically disadvantaged businesses. McDougal also conducted real estate deals through entities other than MFC, and arranged for MGSL and CMS financing for them. In July 1986 McDougal suffered se rious health problems and resigned as president of MFC. He had alrea dy resigned his posts as an officer and director of MGSL af

ter an investigation by the Federal Home Loan Bank Board. The Resolution Trust Corporation closed MGSL in 1990.

In 1989, the Government charged McDougal with conspiracy to commit ban k fraud in violation of 18 U.S.C . § 371 and bank fraud in violation of 18 U.S.C. § 1344. The charges primarily involved two transactions arising from development of the 145th Stre etproperty, namely, the sale of the Levi-Strauss Building to David Fitzhugh, a n M G SL employee, and the sale and MGSL financing of a tract to Master Developers,
a corporat ion owned by McDougal’s brothers-in-law, Jim and David Henley. Th e corporatio n

was set up at McDougal’s suggestion just for the transaction. Th e Govern ment

asserted the sales were shams designed to alleviate MGSL’ s
ove rinvestment

and undercapitalization. The indictment charged McDougal wit h conspir ing with the Henleys to obtain financing from MGSL by using fraudulen t pretenses and representations, and with a scheme to defraud in obtaining funds fro m MGSL. McDougal was acquitted on all counts.-3-

In August 1995, McDougal, Susan McDougal, and Jim Guy Tucker wer e charged in the current, multicount indictment. The indictment alleged the McDougals, Tu cker, and Hale conspired to commit fraudulent transactions, including th e misapplication of MGSL and CMS funds and the entry of false statements in the books and records of MGSL and CMS. According to the indictment, the defendants sought to generate fraudulent profits and engage in “land flips” in which the individual investor incurred no personal risk, while MGSL, MFC, and CMS bore all the risk instead. The indictment asserted McDougal helped obtain frau dulent loans from MGSL or CMS for
cor porations owned by Dean Paul, Larry Kuca, Stephen Smith, Jim Guy Tucker, and Susan McDougal. The l oans financed business improvements or the purchase of land outside the 145th Street property. The indictment also alleged the McDougals an d Tucker engaged in false and fraudulent loan transactions wrongfully to obtain MGSL and CMS loans for their personal benefit. Real estate other than the 145th Stree t property was sold to third-party nominees, and MGSL financed the fraudulent rea l estate tra nsactions through false appraisals and fraudulent loan documents. Proceeds from the fraudule nt sales were invested in CMS to build capital, permitting additional fundin g from the SBA. CMS would then loan funds to the McDougals. Befor e McDo ugal’s trial, he moved to dismiss the indictment, alleging unconstitutiona l pr eindictment

delay. He also sought dismissal of the conspiracy and bank frau d charges, alleging a violation of double jeopardy. The district cou rt denied these pretrial motio ns and McDougal’s renewed motions at the trial’s end. A jury convicte d McDougal of most of the charges against him.

In his appeal, McDougal first asserts the district court should have granted his motion to dismiss the 1995 indictment because preindictment delay violated the Due Process Clause. McDougal complains the indictment did not iss ue until more than nine and a half years after the alleged offenses. To show preindictment delay violated the Due Process Clause, a defendant must first show the delay actually and substantially prejudiced the defense. See Bennett v. Lockhart , 39 F.3d 848, 851 (8th Cir. 1994)

. If the defendant establishes actual, substantial prejudice, then the court balances the-4-

reasons for the delay against the prejudice shown. See id. ; United States v. Bartlett , 794 F.2d 1285, 1289 (8th Cir. 1986).
McDougal asserts the delay prejudiced his defense because his physica l condition had deteriorated between 1986 and 1995, and his physical deterioratio n impa ired his memory. The district court rejected this assertion after observin g McDougal’s testim ony at trial and watching videotaped excerpts of pretrial television intervie ws in which McDougal discussed specific facts about his case. The distric t court found McD ougal could refer to events with “great accuracy” and recall specific detail s of relevant financial transactions. We see no error in this finding. Even i f McDougal ’s medical condition had impaired his memory, the mere “loss of o r impairment of memories does not consti tute actual prejudice for purposes of the [D]ue [P]rocess [ C]lause.” Bartlett , 794 F.2d at 1290. McDougal also asserts the dela y harmed his defense bec ause in the interim, Senator Fulbright died and MGSL closed, leaving its files disorganized and scattered. McDougal failed to relate the substanc e of the Senator’s testimony to show it would have been relevant or beneficial to his case, and failed t o identify any relevant documents that were lost or misplaced or th e information they contained. To show actual prejudice, a defendant must specify the witnesses or documents lost during the delay and the information they would hav e provided. See Bennett , 39 F.3d at 851. Because Mc Dougal has not carried his burden to show the preindictment delay actu ally prejudiced his defense, his due process claim fails, see Barlett , 794 F.2d at 1293, and the district court properly refused to dismiss the indictment. Given the absence of any prejudice, we need not address McDougal’s conte ntion that as preindictment delay increases, the amount of prejudice require d decreases.
Second, McDougal asserts his conspiracy and bank fraud convictions violate the Doubl e Jeopardy Clause because he was tried and acquitted of the earlier conspiracy and bank fraud charges brought in 1989. The Double Jeopa rdy Clause protects against a second prosecution after acquittal for the same offense. See United States v. Petty ,-5-

62 F.3d 265, 267 (8th Cir. 1995). To support a double jeopardy claim, a defendan t must show the multiple charges reflect the same offense, both legally and factually

. See id.
The Double Jeopardy Clause prohibits the government fro m subdividing a single crimina l conspiracy into multiple violations. See id. To decide whether two charged

con spiracies are really the same one, we examine the totality of the circumstances , includ ing the time that the alleged conspiracies existed, the identity of th e coconspirators, the statutory off enses charged in the indictments, the nature and scope of the activity charged, and the location of each conspira cy’s events. See id. Here, the totality of the circumstances indicates two conspiracies rather than a single overal l agreement. Although the time periods of the two conspiracies overlap, the conspiracy charged in the 1995 indictment both predated and continued beyond the ending date of the conspiracy charged in the 1989 ind ictment. The persons identified as McDougal’s coconspirators are different in each conspiracy. The 1989 and 1995 indictments charge Mc Dougal conspired to commit different substantive offenses, with one exception

. Although both indictments identified one of the conspiracy’s objects as making false statements in connection with a lo an, the victims of the false statements were different in 1989 and 1995. As for the nature and scope of the activities charged, the 198 9 conspiracy involved two one-time schemes to transfer a single parc el of property, while the 1995 conspiracy was much broader and involved differe nt transactions and entities. The facts show different operations sharing a common player, McDougal.
Turning to the

bank fraud charges, we conclude McDougal was not tried twice for the same offense. In the context of bank fraud, offenses are deemed identical for purpose s of the Double Jeopardy Clause when “‘the evidence required to suppor t conviction on one of the prosecutions is sufficient to support conviction on the othe r prosecution.’” United States v. Thomas , 759 F.2d 659, 661-62 (8th Cir. 198 5) (quoting United States v. Sinito , 723 F.2d 1250, 1256 (6th Cir. 1983)). Different-6-

evidence is necessary to support the two bank fraud charges, which in volve distinct and unrelated transactions. See United States v. Farmigoni , 934 F.2d 63, 65 (5th Cir

. 1991). Th e 1989 and 1995 fraud schemes had different purposes, methods , perpetrators, and loan recipients. Thus, McDougal’s prosecution on the 1995 ban k fraud charges does not violate the Double Jeopardy Clause.
Last, McDougal seeks to adopt four arguments made by h is former codefendant, Jim Guy Tucker, in Tucker’s separate appeal. Federal Rule of Appellate Procedure 28(i) provides: “In cases involving more than one appellant or ap pellee, including cases consolidated for purposes of the appeal, any number of either ma y join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another.” Because McDougal’s appeal is not consolidated with Tucker’s appeal, McDougal’ s
case does not involve more than one appellant, and he cannot adopt Tucker’ s arguments under Rule 28(i). See United States v. Carpen ter , 95 F.3d 773, 774 n.1 (9th Cir. 1996), cert. denied , 117 S. Ct. 10 94 (1997). Further, Tucker’s arguments are fact specific and cannot be transferred by adoption from Tucke r’s case to McDougal’s case without an explanation of how McDougal wa s prejudiced. See United States v. Elder , 90 F .3d 1110, 1118 (6th Cir.), cert. denied , 117 S. Ct. 529 (1996), and cert. denied , 117 S. Ct. 993 (1997); see also United States v. Darden , 70 F.3d 1507, 1526 n.5 (8th Cir. 1995) , cert. denied , 116 S. Ct. 1449, and cert. denied , 116 S. Ct. 2567 (1996). Thus, McDougal’s bare motion to adopt Tucke r’s arguments is insufficient to raise the arguments in McDougal’s case. Se e Elder , 90 F.3d at 1118. Because McDougal has not shown he was individually prejudiced by the claimed errors that he proposes t o adopt, McDougal has waived th ose claims of error. See Darden , 70 F.3d at 1526 n.5; United States v. Lucht , 18 F.3d 541, 553 n.3 (8th Cir. 1994).
We thus affirm McDougal’s convictions.-7-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.