# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2572

___________ Alfred W. Harre, * * Plaintiff/Appellee, * * Bernice E. Harre, * * Plaintiff, * * David Bening, * * Plaintiff/Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Arthur G. Muegler, * * (PUBLISHED) Defendant/Appellant. *

___________ Submitted: April 17, 1997 Filed: May 23, 2997

___________ Before BOWMAN, HANSEN, and MURPHY, Circuit Judges.

___________
PER CURIAM.

In 199 0, Alfred and Bernice Harre and David Bening sued Arthu r Muegl er, alleging claims of fraudulent and negligent misrepresentation
. During a long discovery period, Muegler failed to provide requeste d doc uments, to respond to interrogatories, or to answer depositio n questions, asserting his fifth amendment privilege. As a sanction for hi s noncompliance with discovery

### Th e Honorable Charles A. Shaw, United States District Judg e 1 

### for the Eastern District of Missouri. -2- requests and orders, the district court barred him from presentin g 1 undisc losed evidence or testifying at trial. He nevertheless prevaile d with the jury, but the judgment was overturned because of erroneous jury instructions. See Bening v. Muegler , 67 F.3d 69 1 (8th Cir. 1995). In the secon d trial, a jury awarded Bening and Alfred Harre $260,000 each fo r compen satoryand punitive damages. Muegler appeals from the advers e judgment, contesting the sanctions imposed by the court, its evidentiary rulings, the jury instructions, and the sufficiency of the evidence. We affirm.

The evidence presented at trial is recited here in the light mos t favorable to the verdict. Newhouse v. McCormick & Co., Inc. , 110 F.3d 635 , 637 (8th Cir. 1997). Alfred Harre and Bening are Illinois farmers wh o invested in Concepts Communications and a related limited partnership in 1988 and 1989. James Grice, who was Concepts' p resident, and Muegler, who
was Concepts’ attorney throughout most of this period, had organized and cond ucted several promotional meetings that Harre and Bening attended
. Muegler introduced Grice to the potential investors as a computer an d communications expert , and Grice introduced Muegler as the former counsel of Emerson Electric C ompany. Muegler represented that the companies were involved in the telecommunications business and that money invested in the m would b e used to purchase telephone equipment and run the businesses
. Har re and Bening each invested over $80,000, three fourths of it in a limited partnership w hich Muegler stated had a contract to provide beeper and pager service to the state of Illinois. There was no such contract, however, and the limited partnership never operated as a business. Th e funds invested by Harre and Bening were not used to purchase telephon e equipment, and there was evidence that the $120, 000 supposedly invested in the partnership was used instead to purchase a

### Grice had been convicted in 1980 and 1981 of several count s 2 

### of theft in Texas but was later paroled. -3- certificate of deposi t to secure a $120,000 loan for Concepts. An amount almost equal to that loan amount was spent by Concepts to open a gay bar in St. Louis.
In December 1989, police raided Concepts’ offices and arrested Grice, who as a convicted felon was prohibited from selling securities. Ther e 2
was evidence that Muegler knew Grice was a convicted felon, and it wa s revealed after the ra id that Concepts did not own its telephone equipment but was leasing it. The lessor took control, and Concepts was left withou t anyassets. The Harres and Bening then sued Muegler, alleging that they had lost the total value of their investments because of Muegler’s imprope r conduct. During discovery, Muegler failed to produce requested pre-tria l docum entaryevidence, to answer interrogatories, or to identify hi s witnesses. He ignored orders of the district court to compel, and asserte d the fifth amendment at his deposition. Plaintiffs were therefore unable to discove r his evidence. As a sanction for noncompliance, the cour t prevented him from presenting any evidence he had not turned over during discov eryand from testifying. Shortly before trial, Muegler indicate d that documentary evi dence would be made available for review and that he would waive his fifth amendment privilege. The district court found that Muegler’s offer of di scovery had occurred too late in the course of trial prepar ation and that permitting undiscovered evidence at trial woul d prejudice the plaintiffs. On appeal, Muegler argues that the distric t court should not have imposed those sanctions.
A careful review of the record revea ls an almost complete failure to give discovery on the part of Muegler. Muegler

### B oth Grice and Muegler were indicted in Illinois on charge s 3 

### of the unlawful sale of securities and theft, and Grice wa s indicted on the additional offense of deceptive practice. I n 1993, Grice was convicted of seven counts of the unlawful sale o f securiti es, two counts of theft, and one count of the offense o f deceptive practice, but the ch arges against Muegler were dismissed after the original verdict in this case. The Illinois crimina l charges were reinstated after the judgment in his favor wa s reversed. -4- disregarded court orders to answer interrogatories or produce documents, and he refused to answer any questions in his deposition other than to giv e his name. He claimed that he did not have neces sary information to comply with discovery requests because documents and fi les had been seized in the police raid and were in the possession of Illinois prosecutors who wer e pursui ng criminal charges against Grice and him. The docket sheet fro m 3 the Illinois criminal case indicates, however, that the state had complie d with M uegler's discovery request for those documents almost two year s before he admitted they were available and before he supplemented hi s answer s to interrogatories. Only after the district court impose d sanctions and trial was soon to begin did Muegler indicate a willingness to prod uce the documents, identify his witnesses, and waive his fift h amendment privilege.
Although Muegler now claims the district court should be reversed , he stil l has not specified what particular evidence was excluded, it s substa nce, or how he was prejudiced by its exclusion. See Strong v . Mercantil e Trust Co., N.A. , 816 F.2d 429, 432 (8th Cir. 1987) (offer o f proof is necessary for appellate court to determine whether exclusion of evidence was prejudicial). Under the unusual ci rcumstances presented, the impos ition of sanctions preventing Muegler from introducing undisclose d evidence was not an abuse of discretion and did not result in a constitutional violation. See Boardman v. Natio nal Med. Enters. , 106 F.3d 840,

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844 (8t h Cir. 1997); see also SEC v. Graystone Nash, Inc. , 25 F.3d 187 , 191-92 (3d Cir. 1994).
Muegle r makes a number of other claims of error which he assert s individually and cumulatively resulted in constitutional violations and ha d
an adverse effect on the jury. He argues that the district court abused its discretion in several evidentiary rulings and violated the Constitutio n by admitting irrelevant, incompetent, and unduly prejudicial evidence whil e excluding other relevant evidence. He also argues there was not enoug h evidence to support the giving of several jury instructions, that the y misst ated the law and contained errors permitting the jury to return a verdict outside the law, and that the punitive damages instructions were unconstitutional. Fi nally, he contends that the plaintiffs did not state a claim of negligent misrepresentation in their complaint, establish their claims as a matter of law, or prove damages. Harre and Bening respond tha t there was overwhelming evidence to prove their claims and damages, th e district court did not abuse its discretion in its evidentiary rulings, an d the jury instructions properly stated the law.

After thoroughly examining the record and considering Muegler' s arguments, we conclud e that the claims of error are without merit. There was substantial admis sible evidence to support the giving of all the jury instructions and the resulting verdict, and the district court did no t abu se its discretion in its evidentiary rulings. The jury instruction s taken as a whole adequately and fairly stated th e law, and Muegler has not shown he was prejudiced by any error or that his constitutional rights wer e violated.
For these reasons, the judgment of the district court is affirmed.

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A true copy.

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