1

The Honorable Richard G. Kopf, United States District Judge

for the District of Nebraska.

 

Nos. 96-2122/2124

 

United States of America, *

*

 Appellee, *

* Appeal from the United States

 v. * District Court for the 

 * District of Nebraska.

Robert Dunlap, *

* [UNPUBLISHED]

 Appellant. *

 

 Submitted: October 23, 1996

 Filed: December 10, 1996 

Before RICHARD S. ARNOLD, Chief Judge, and FLOYD R. GIBSON and

MORRIS SHEPPARD ARNOLD, Circuit Judges. 

PER CURIAM.

After a four-day trial in 1995, a federal jury convicted

Robert Dunlap and a co-defendant, see United States v. Schwalb, 83

F.3d 1039 (8th Cir. 1996) (per curiam), of four counts of wire

fraud and two counts of interstate transportation of stolen

property. Those charges related to the alleged purchase of a

woolen mill and some commercial sewing machines. After a two-day

trial in 1996, a federal district judge,1 sitting without a jury,

convicted Robert Dunlap of one count of wire fraud and four counts

of interstate transportation of stolen property. Those charges

related to the alleged purchase of German bonds.
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The trial court, which was the same in both cases, sentenced

Mr. Dunlap to 18 months in prison and the payment of $128,000 in

restitution. Mr. Dunlap appeals his convictions, contending that

the evidence was insufficient to show an intent to defraud. We

disagree and therefore affirm the judgments of the trial court.

I.

In the jury trial, the owner of a small business testified

that Mr. Dunlap and his partner induced him to pay $50,000 to them

by representing that the money would be used as earnest money for

the purchase of a woolen mill repossessed by a savings and loan

that itself had been taken over by the Resolution Trust Corporation

(RTC). According to Mr. Dunlap, the businessman testified, once

the woolen mill had been bought from the RTC by Mr. Dunlap and his

partner, it would be resold to a Mexican buyer at a profit of

$200,000, of which $100,000 would be returned to the businessman,

thus yielding a 100 percent return on his investment. 

In order to gain his trust, the businessman said, Mr. Dunlap

showed him two purported contracts -- one for purchase of the

woolen mill from the RTC by Mr. Dunlap and his partner and one for

sale of the woolen mill from Mr. Dunlap and his partner to a

Mexican buyer. The businessman stated that Mr. Dunlap represented

that the originals of the contracts were on file with the RTC and

that "the deal was done" and risk-free. Two employees of the RTC

at the relevant time, however, testified that the contracts that

the businessman saw were not contracts used by the RTC and were

never on file with the RTC. An additional witness, the broker with

the listing for the woolen mill, testified that no earnest money

was ever received from Mr. Dunlap or sent to the RTC. The jury was

entitled to believe this testimony, and we believe that the

evidence of Mr. Dunlap's misrepresentations to the businessman

about the use to which his money would be put was adequate to show

Mr. Dunlap's intent to defraud the businessman of $50,000.
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The businessman further testified that Mr. Dunlap's partner

induced him to pay an additional $28,000 by representing that it

would be used for the purchase of commercial sewing machines for

which a subsequent buyer was already secured. The businessman

testified that according to Mr. Dunlap's partner, the quick

turnover of the sewing machines would allow the businessman to

receive $42,000, or a return of 50 percent. 

To gain his trust, the businessman said, Mr. Dunlap's partner

showed him a schedule for the initial purchase, packing and

shipping, and subsequent sale of the commercial sewing machines.

According to the businessman's testimony, Mr. Dunlap's partner

represented the transaction as being risk-free. The businessman

further testified that after he wired the money to a bank account

held jointly by Mr. Dunlap and his partner, the partner told the

businessman that the deal had fallen through and that the money had

been spent "covering some other expenses." Subsequently, according

to the businessman's testimony, "it became increasingly difficult"

to reach either Mr. Dunlap or his partner. The jury was entitled

to believe this testimony.

The evidence was sufficient to convince a reasonable person

beyond a reasonable doubt that Mr. Dunlap and his partner were

working in a joint effort. We therefore believe that the evidence

of the misrepresentations of Mr. Dunlap's partner, in conjunction

with the deposit of the businessman's money into a joint account

held by Mr. Dunlap and his partner, was sufficient to show

Mr. Dunlap's intent to defraud the businessman of an additional

$28,000.

II.

In the bench trial, an elderly farmer testified that

Mr. Dunlap induced him to pay $50,000 to Mr. Dunlap by representing

that the money would be used to purchase German bonds that would 
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provide a 100 percent return within six months. In order to gain

his trust, the farmer testified, Mr. Dunlap left with him a book of

corporate minutes, allegedly to show that Mr. Dunlap "owned a lot

of property [apartment buildings] and was worth some money." Two

other witnesses corroborated the farmer's testimony on those

points. The farmer then testified that he never heard from

Mr. Dunlap again.

At the time of the $50,000 payment, according to the farmer's

testimony, Mr. Dunlap prepared documents that the farmer witnessed

without reading, thinking that they were updates of those corporate

minutes. In fact, however, the farmer said, the documents

purported to show that the $50,000 was for the purchase by the

farmer of the stock of the corporation whose minutes were left with

him. One other witness testified, however, that such a transfer of

ownership would have had to be, but never was, approved by the

government agency holding the mortgage on the apartment buildings

owned by that corporation. A different witness, the manager of the

apartment buildings in question, testified that she had never been

notified of any transfer of ownership. We believe that the

evidence of Mr. Dunlap's advance preparation to counter a protest

from the farmer, along with the evidence that the alleged stock

sale to the farmer was not a genuine transaction, was sufficient to

convince a reasonable jury of Mr. Dunlap's intent to defraud the

farmer of $50,000. 

III.

For the reasons stated, we affirm the judgments of the trial

court.

A true copy.

Attest:

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