United States v. Beyer, 122117 FED8, 16-4455

Docket Nº:16-4455
Opinion Judge:BENTON, Circuit Judge.
Party Name:United States of America Plaintiff- Appellee v. Robert S. Beyer, II Defendant-Appellant
Judge Panel:Before COLLOTON, BENTON, and KELLY, Circuit Judges.
Case Date:December 21, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

United States of America Plaintiff- Appellee


Robert S. Beyer, II Defendant-Appellant

No. 16-4455

United States Court of Appeals, Eighth Circuit

December 21, 2017

Submitted: September 22, 2017

Appeal from United States District Court for the Eastern District of Missouri - St. Louis

Before COLLOTON, BENTON, and KELLY, Circuit Judges.

BENTON, Circuit Judge.

A jury found Robert S. Beyer, II guilty of wire fraud in violation of 18 U.S.C. § 1343 and unlawful monetary transaction in violation of 18 U.S.C. § 1957. The district court1 sentenced him to 97 months' imprisonment. He appeals the conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.


Beyer sold insurance and securities for several companies. In 2011, he formed Heroic Life Assurance Company. He described HLA as a start-up life insurance company. Beyer asked at least four of his pre-HLA clients to invest with HLA. He assured them that their money would be kept safe, promising two of them a guaranteed rate of return.

The investors gave HLA over $330, 000. Beyer spent much of their money for his personal benefit. Beyer repaid one investor, using another investor's funds. He did not return any funds to any others.

A jury found Beyer guilty. At sentencing, the district court applied a vulnerable-victim enhancement. It also denied a downward departure in criminal history.


Beyer stressed he used some investor funds for legitimate business expenses. The government countered with evidence that Beyer spent about $109, 000 of investor funds on non-business expenses, including retail purchases, meals and incidentals, child support, gas, and dating services. Beyer did not pay these expenses in cash.

Beyer withdrew about $30, 000 in cash from the investor funds. The government introduced evidence he spent at least some of the cash withdrawals for non-business expenses, including withdrawing about $300 in cash at an ATM in an adult-entertainment club. This "ATM-location evidence" discussion takes 18 lines of a three-volume transcript, and it was not mentioned again.

Beyer objected to the ATM-location evidence. The district court admitted it without limitation. Beyer appeals. This court reviews a district court's evidentiary rulings for abuse of discretion. United States v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir. 2015).

In his objection, Beyer paraphrased Rule 403: a district court may "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Unfair prejudice is "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee's note; see also United States v. Fletcher, 322 F.3d 508, 518 (8th Cir. 2003) ("Rule 403 is concerned only with unfair prejudice, that is, an undue tendency to suggest decision on an improper basis.") (internal quotation marks and attribution omitted).

Admitting the ATM-location evidence, the district court said: "[Defense counsel], as you're aware, it's a rule of inclusion instead of exclusion. So I'm going to overrule your objection." The government believes the district court was applying Rule 403. See United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980) ("In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission."). Beyer believes the district court was referencing Rule 404(b). See, e.g., United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir. 2015) (stating "Rule 404(b) is a rule of inclusion rather than exclusion"), quoting United States v. Turner, 583 F.3d 1062, 1065 (8th Cir. 2009).


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