___________ No. 95-3780

___________ United States of America, * * Appeal from the United States Appellee, * District Court from the * District of Minnesota v. * * Thomas Dale French, * * Appellant. *

__________ Submitted: May 14, 1996 Filed: July 19, 1996

__________ Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN SICKLE, Senior District Judge*

__________ VAN SICKLE, District Judge

I. BACKGROUND Thoma s Dale French in the late 1970's expanded from hi s farming operation into a grain hauling business, and from th at into a grain buying business. As agrain buyer, he was required by the Minnesota Grain Buyers Act to be licensed and bonded. He wa s first licensed about July 1, 1983.

______________ * The HONORABLE BRUCE M. VAN SICKLE, Senior United State s Dis trict Judge for the District of North Dakota, sitting by designation.2

By 1989, French was unable to pay his license fee an d operatedfor a time without a license. He managed to renew hi s license through June 30, 1990. However, he continued to operat e after July 1, 1990 without a license. He continued to repre sent to his cust omers, and in his advertising, that he was licensed. H e often represented to his customers that he had sold the grain for
a high er price than he actually received, and delayed, o r completely failed to remit for sales to his customers. Amon g other things, French picked up grain and sold it without permissio n of an owner, and also altered weigh tickets to hide the actual place of sale of the grain. French also converted grain which was pledged to the Co mmodity Credit Corporation (CCC). In one instance a farmer, Oleen, ha d been using French as his grain buyer for about ten years, and using the CC C as his financier during that time. In July, Mr. Olee n agreedto sell soybeans to French at $5.72 a bushel. He tol d French the beans were under a CCC loan, and, as usual, to pay off the loan and remit the balance to him. Oleen then called th e local Agricultural Stabilization and Conservation Service (ASCS), which administered the CCC program, and received permission to sell the soybeans to French. The ASCS confirmed this permission in writing to Oleen, reminding him to, as usual, inform French of hi s obligationto remit directly to the CCC. The ASCS also sent t o Oleen and French, by mail, copies of the marketing authorization. Frenchreceived his copy, sold the soybeans and mailed Oleen a written copy of the transaction with the name of the buyer c ut from the sale s slip. And French, in writing, asserted that the loan , $8,687.51.00, had gone "to CCC." Two months later ASCS advise d Oleen his loan had not been paid. Oleen demanded that Frenc h remit the loan to CCC and the balance to him. French wrote out a check to CCC which Oleen delivered to ASCS only to have it bounce

. French declared bankruptcy December 14, 1990. F rench was indicted in April, 1995 and charged with seve n3

counts of mail fraud in violation of 18 U.S.C. § 1341, and on e count of agriculture conversion in violation of 15 U.S.C. §4

71 4m(c) - The jury returned a verdict of guilty on all counts

. French was sent to prison and restitution was ordered in the amount of $50,000.00 to be divided among the farmers who lost in ex cess of $238,000.

II. DISCUSSION A. Motion for Acquittal

Fre nch claims that the district court erred in denying a motion for judgment of acquittal on Count I in that there wa s insufficient evidence that French caused the use of the mails for the purpos e of executing a scheme to defraud. In reviewing a motion for a judgment of acqui ttal the court examines the evidence inthe light most favorable to the government, and gives th e govern ment the benefit of all reasonable inferences to be draw n from the evidence. United States v. Freitag , 768 F.2d 240, 24 2 (8thCir. 1985). To uphold the conviction, the government mus t have produced sufficient evidence to allow the jury to find th e elements of the offense beyond a reasonable doubt. Id . A similar standard of review applies in challenges to the sufficiency of the evidence, United States v. Manzer , 69 F.3d 222, 226 (8th Cir

. 1995), and the conviction will be upheld unless no reasonable fact finder could have found guilt beyond a reasonable doubt. Id

. In the case of Oleen, for example, French well knew tha t if he sold the grain, Oleen his customer, would need to receive, in the mail, a form authorizing the sale of the mortgaged grain. French also knew that it would be his duty to remit the amount owedto the CCC. B oth of these transactions were handled by mail. Bot h parties knew and understood that this cross mailing was a basi c element in the grain buying and selling transaction. The orde r denying the motion for acquittal on count one is affirmed. B. Defendant's Proposed Instruction5

Appellant asserts that the district court erred in refu sing to give the defendant's proposed instruction as to the elements of6

mail fraud. The key language in the instruction which th e defendant protests is the phrase "that the mails were used i n fur therance of some essential step in the scheme." The defendan t feels that the language shouldhave been "that the mails were used for the purpose of executing the scheme." The statute involved is 18 U.S.C. § 1341. It contains the language "for the purpose of." Appellant claims that the lang uage "in furtherance of" reduces the burden of proof imposed upon the prosecution by the statute. The court had used the Eighth Circuit Model Jury Instruction whic h adopts the language "in furtherance of." The entire instruct ion was taken verbatim from the Eighth Circuit Model Jury Instructions and reads as follows: In order to sustain its burdenof proof for the crime of mail fra udas charged in counts 1-7 of the indictment, th e go vernment must prove the following four essential element s beyond a reasonable doubt: First: The defendant voluntari ly and intentionally devised or made up a scheme to defraud farmers of money or property by mea ns of false representations, or promises as set forth i n the indictment; Second: The defendant did so with the intent to defraud; Third: It was reasonably foreseeable that the mails would be used; and Fourth: The mails were used in furtherance of some essential step in the scheme. Eighth Circuit Model Jury Instructions , 6.18.1341 (1996).
In Pereira v. United States , 347 U.S. 1 (1954), the mail fra ud statute is discussed in some d epth. The Supreme Court pointed out that it is not necessary to show that the petitioners actuall y mailed or transported anything themselves; it is sufficient if they caused it to be done. Id . at 8. Further, it is not necessary that the schemes contemplate the use of the mails as an essentia l element. Where one does an ac t with the knowledge that the use of7

the mails will follow in the o rdinary course of business, or where such use can reasonably be foreseen, even though not actually8

intended, then he "causes" the mail to be used. Id . at 8-9. Given the established interpretation of the statute, the use of th e phrase "in furtherance of," as contrasted to the use of the phrase "for the purpose of," is easily seen as the preferred choice o f langua ge, and the district court's use of the Eighth Circui t instruction is not an abuse of discretion.
C. Alleged Prosecutorial Misconduct Finally, the Appellant asserts that the district court erred bydenying French's motion for mistrial because the prosecuto r stated during closing argument that "I think it is fair for you to conclude that he [the defendant] was lying to you." It does not appear that the prosecutor engaged in any mis conduct. However, even if this statement could be considere d misconduct, this court would s till affirm the denial of the motion for mistrial. If prosecutoria l misconduct allegedly has occurred,
a r eviewing court looks into its prejudicial impact by assessin g the cumulative effect of the misconduct, determining if the court took any curative actions, and gauging the strength of the e vidence against the defendant in the context of the entire trial. United States v . O'Connell , 841 F.2d 1408, 1428 (8th Cir. 1987) , cert
. denied , 488 U.S. 1011 (1989). This court applies the harmles s
error rule, Fed.R.Crim.P. 52(a) , and will only reverse "if th e improper remarks could reasonably have affected the jury' s verdict. " Id . at 1429. See United States v. Peyro , 786 F.2d 826 , 831 -32 (8th Cir. 1986) (holding that while prosecutor engaged i n unprof essional conduct, reversal was not required since the jur y
was no t affected by the improper comment made during closin g argument). While the prosecutor may have, indirectly, been express ing his own opinion, he was primarily leaving to the jury the question of the defendant's credibility. The Eighth Circuit has denied a reversal of a conviction when a prosecutor has used stronger an d9

more personal language. Peyro , 786 F.2d at 831-32 (finding that no10

reversal was required though prosecutor had made statements such as "Th e man is an obvious liar."). Furthermore, the district court , during his delivery of the final instructions, cautioned the jury to disregard the prosecutor's statement. The evidence against the defendant on all the counts of mail fraud was quite strong

. Therefore, the prosecutor's statement did not affect the verdict, and the conviction must stand. The defendant's conviction is affirmed.

A true copy.

Attest:

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