Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

MEMORANDUM^** 

Gene Bueter appeals his conviction on three counts of mail fraud, in violation of 18 U.S.C. § 1341. Bueter contends that there was insufficient evidence of mailing to support the jury verdict, and that the district court erred in admitting the allegedly irrelevant and prejudicial testimony of Bueter's ex-wife. We affirm the conviction.

Bueter's contention that there was insufficient evidence of mailing fails. The government offered sufficient evidence that there was a general practice of mailing the type of checks at issue. See United States v. Green, 745 F.2d 1205, 1208 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985). The government was not required to demonstrate that the custom was invariable, and in light of the lack of evidence that it was not followed with regard to the checks at issue, a reasonable juror could infer that the mailings took place. See United States v. Keplinger, 776 F.2d 678, 691 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986). Although Hughes had an alternative procedure for hand delivery of checks, there was no evidence that it was used for deliveries to Bueter's company and hence a reasonable juror could conclude that the mailings took place. See United States v. Miller, 676 F.2d 359, 362 (9th Cir.), cert. denied, 459 U.S. 856 (1982).

Bueter's contention that the district court abused its discretion in admitting the testimony of his ex-wife also fails. Bueter argued that although the testimony might be relevant to the original indictment, it was not relevant to the superseding indictment.¹  The testimony of Bueter's ex-wife that he told her "we did something and got caught" is relevant as evidence of Bueter's participation in a fraudulent scheme. See Fed.R.Evid. 401; see also United States v. Bernhardt, 840 F.2d 1441, 1446 (9th Cir.), cert. denied, 109 S. Ct. 389 (1988). Since both indictments were based on the same underlying factual allegations of a fraudulent scheme, the statement "we did something and got caught" is relevant to the second indictment as well as the first, and its probative value outweighs any danger of unfair prejudice. See Fed.R.Evid. 401, 402, 403; see also United States v. Bailleaux, 685 F.2d 1105, 1111 n. 2 (9th Cir. 1982). Even if the district court had erred in admitting the testimony of Bueter's ex-wife, the district court judge's cautionary instruction would have cured any prejudicial effect of the error. See United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985). Finally, the testimony of the MPBC bookkeeper and Hernandez constituted substantial, independent and credible evidence of Bueter's guilt. Hence, even if the district court had erred in admitting the testimony of Bueter's ex-wife, we would not disturb the conviction since it is more probable than not that the testimony of Bueter's ex-wife did not materially affect the verdict. See United States v. Gwaltney, 790 F.2d 1378, 1383 (9th Cir. 1986), cert. denied, 479 U.S. 1104 (1987).

AFFIRMED