## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-4072MN

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

* District Court for the District v. * of Minnesota. * William C. Pugh, * [PUBLISHED] * Appellant. *

_____________ Submitted: May 12, 1998

Filed: July 31, 1998

_____________ Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.

_____________ PER CURIAM. While operating a real estate closi ng business, William C. Pugh misappropriated fu nds and insurance premiums belonging to purchasers and owners of real estate , lenders, and a title insurer, that were entrusted to Pugh for disbursement to sellers and others to finalize their real estate transactions. Instead of performing his fiduciary re sponsibility, Pugh fraudulently misapplied substantial sums of money to finance hi s business interests and to enhance his personal lifestyle. Based on these actions, Pugh was con victed of mail and wire fraud, interstate and foreign transportation of mone y obtained by fraud, money laundering, and f raudulent concealment of material facts from a federal agency. Pugh appeals, raising arguments related to his convictions and the-2-

dist rict court's restitution order. We have carefully considered Pugh's arguments and , with one exception, find them to be without merit. In attacking his convi ctions, Pugh initially argues that prosecution of the charges related to h is handling of the title insurance premiums is barred by the McCarran

Ferg usonAct, 15 U.S.C. §§ 1011-1015 (1994). Because "the McCarran-Ferguso n objection is not jurisdictional," United States v. Blumeyer , 114 F.3d 758, 768 (8th Cir.), cert. denied , 118 S. Ct. 350 (1997), Pugh waived this argument raised for the first time on appeal. Pugh's argument is meritless anyw ay because Pugh's criminal exploitation of an insurance company does not trigger the preemptive provisions of McCarran- Ferguson. See id. Pu gh next argues he cannot be convicted of money laundering because th e laundered transactions were "open and recorded." This argument is foreclosed by our recent holding in United States v. Norman , 1 43 F.3d 375, 377-78 (8th Cir. 1998). Pugh also contests the sufficiency of the evidence suppo rting his convictions. Aside from one mailfraud count for which the government concedes the evidence is inadequate, there is abu ndant evidence in the record to support the jury's verdict. Pugh challenges some evidentiary rulings and jury instructions, but the challenges a re either unsupported by the record, with out legal merit, or both. The district court did not abuse its discretion i n making its evidentiary rulings and in instructing the jury. Finally, Pugh argues th e indictment was multipli citous. We decline to consider this argument raised for the first time on appeal. See United States v. Shepard , 4 F.3d 647, 650 (8th Cir. 1993), cert
. denied , 510 U.S. 1203 (1994).
Alt hough Pugh did not object to the restitution order in the district court, Pug h contends the order for rest

itution in the amount of $1,245,000 must be vacated because the district court failed to make ability-to-pay findings. We disagree. Guided by ou r deci sionin United States v. Riebold , 135 F.3d 1226, 1231-32 (8th Cir.), cert. denied , No. 97-9113, 1998 WL 273441 (U.S. June 22, 1998), we revi ew for plain error and find none.-3-

Accordingl y, we vacate Pugh's mail fraud conviction on the charge asserted i n Count 33 of the indictment and affirm Pugh's remaining convic tions. We do not remand for resentencing because the vacated conviction does not alter Pugh's sentence. W e affirm the district court’s restitution order. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.