Unpublished Disposition, 852 F.2d 1291 (9th Cir. 1988)

No. 87-3046.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and REINHARDT, Circuit Judges, and CHARLES L. HARDY, District Judge.^* 

MEMORANDUM^** 

Ronald L. Thompson appeals his conviction on sixteen counts of mail fraud in violation of 18 U.S.C. § 1341. We affirm.

Thompson was the president of West Coast Lumber Sales ("West Coast"), a lumber brokerage firm. In 1981 West Coast and Commercial Credit Business Loans, Inc. ("Commercial Credit") entered into a loan agreement that obligated Commercial Credit to lend to West Coast up to 85% of the value of West Coast's accounts receivable. When West Coast made a sale, multiple copies of an invoice were prepared. One was mailed to the buyer as a billing for the products sold. Another was mailed to Commercial Credit as a basis for disbursement of loan funds.

The evidence established that Thompson caused fictitious invoices to be prepared and mailed to Commercial Credit to obtain additional loan funds but did not cause copies of these invoices to be mailed to the customers. The scheme worked in various ways. The invoices in Counts 6 and 13 of the indictment were connected to actual sales and had legitimate invoice numbers, but had dollar amounts greatly in excess of the amounts of the actual sales. The invoices listed in several other counts also appeared to have some connection to actual sales, but the evidence showed that Thompson deliberately applied for credit on more than one invoice for a single transaction. In each case, a representative of the customer testified that the customer had not received or paid the invoice listed as fraudulent in the indictment, while the representative of Commercial Credit testified that loans were granted on both invoices. Thus, Thompson's contention that the invoices listed in the indictment were based upon actual transactions and were merely "duplicative" is without merit. The scheme was clearly fraudulent.

Thompson contends that the trial court abused its discretion in admitting uncharged misconduct. The uncharged misconduct was relevant as direct evidence of the scheme to defraud, see United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987).

Finally, Thompson contends that his defense was prejudiced by preindictment delay because of the loss of records and documents, the dimming of memories, and the unavailability of witnesses. Among other things, Thompson has a heavy burden to prove that the delay caused him "actual prejudice." United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985). The proof must be definite and not speculative. Id. To simply assert that missing testimony might be helpful is insufficient. United States v. Rogers, 722 F.2d 557, 562 (9th Cir. 1983), cert. denied, 469 U.S. 835 (1984).

AFFIRMED.