638 F2d 50 United States v. Roth

638 F.2d 50

UNITED STATES of America, Appellee,
v.
Ed ROTH, d/b/a House Log Mill, Appellant.

No. 80-1762.

United States Court of Appeals,
Eighth Circuit.

Submitted Jan. 12, 1981.
Decided Jan. 15, 1981.

Terry L. Pechota, U. S. Atty., Sioux Falls, S.D., Shelley M. Stump, Asst. U. S. Atty., Rapid City, S.D., for appellee.

Wayne F. Gilbert, Rapid City, S.D., for appellant.

Before HEANEY, ROSS and ARNOLD, Circuit Judges.

PER CURIAM.

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1

Ed Roth appeals from a judgment of conviction entered against him by the United States District Court for the District of South Dakota.1 We affirm.

2

On June 5, 1980, a jury convicted Roth of fifteen counts of mail fraud and wire fraud. He was sentenced to five years on each count, the sentences to run concurrently. The execution of the sentence was suspended, and Roth was placed on probation for three years.

3

Roth contends on appeal that the trial court erred in denying his motion for judgment of acquittal and his motion for a new trial. Specifically, Roth argues that there was insufficient evidence of intent to defraud, an essential element of the mail and wire fraud charges. We have carefully reviewed the record and find that the evidence is more than sufficient on this issue. Further, there is no indication that, as appellant contends, the trial court applied the wrong standards in considering the acquittal and new trial motions.

4

Roth also argues that the trial court erred in refusing one of his proposed instructions. The refused instruction stated that the scheme and artifice to defraud charged in the complaint must be developed prior to the use of the mails or wire communications. We have reviewed the court's instructions as a whole and find that they adequately and correctly cover the substance of the requested instruction. The court did not err in refusing the defendant's instruction.

5

Affirmed.

1

The Honorable Andrew W. Bogue, Chief Judge