IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10367

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

THOMAS BUEHLER,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CR-140-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Thomas Buehler appeals his jury trial conviction for theft or embezzlement

from an employee pension benefit plan. See 18 U.S.C. § 664. Buehler owned

Northlake Plumbing, Inc. (Northlake) and was the trustee of its pension plan. 

After initiating the termination of the plan, Buehler in 2008 withdrew all of its

assets from its investment account and deposited them into a regular bank

account of Northlake’s. The proceeds owed to plan participants other than

Buehler totaled $52,693.72. That amount was never distributed but was instead

United States Court of Appeals

Fifth Circuit

F I L E D

July 18, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-10367 Document: 00511924931 Page: 1 Date Filed: 07/18/2012
No. 11-10367

used to cover Northlake’s regular business expenses. Buehler’s defense was that

he was negligent in not safeguarding the plan’s assets but that he was not an

embezzler and did not intend to divert the assets from plan participants.

Buehler contends that the district court abused its discretion when it

allowed evidence about a civil audit investigation of the plan begun by the

Department of Labor (DOL) in May 2006 after it received a report that he had

withheld contributions from plan participants’ paychecks but had not deposited

the monies into the plan. The parties disagree on whether Buehler preserved,

waived, or invited error and thus on the standard of review. See United States

v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010). Buehler cannot prevail even

under the least deferential standard in which we review for an abuse of

discretion. See United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008);

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). 

The evidence that Buehler claims the district court erred by including was

a letter, redacted by the district court to prevent prejudice to Buehler, in which

the DOL advised Buehler, during the audit and before he terminated the plan

and withdrew its assets, about his duties as a fiduciary under the Employee

Retirement Income Security Act (ERISA) and about his failure to meet those

duties. We reject Buehler’s contention that it was improper to admit evidence

related to the audit, however, because the evidence was properly admitted as

additional proof that Buehler knew that he had no right to divert the pension

plan’s assets from plan beneficiaries and thus relevant to the issue of intent and

knowledge, as it lessened the likelihood that Buehler committed the charged

offense mistakenly and unknowingly. See FED. R. EVID. 404(b); see also United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Additionally, any

risk of prejudice to Buehler was substantially reduced by the district court’s

multiple admonitions to the jury that evidence from the audit was not admitted

to prove a violation of ERISA but solely for the limited purpose of showing

whether Buehler had the state of mind or intent to commit the crime charged in

2

Case: 11-10367 Document: 00511924931 Page: 2 Date Filed: 07/18/2012
No. 11-10367

the indictment or whether he disposed of the plan’s assets by accident or

mistake. See United States v. Crawley, 533 F.3d 349, 355 (5th Cir. 2008). 

AFFIRMED.

3

Case: 11-10367 Document: 00511924931 Page: 3 Date Filed: 07/18/2012