                                    ___________

                                    No. 96-1355
                                    ___________


United States of America,                *
                                         *
              Appellee,                  *
                                         *   Appeal from the United States
     v.                                  *   District Court for the Western
                                         *   District of Arkansas.
Randall L. Roller,                       *
                                         *           [UNPUBLISHED]
              Appellant.                 *

                                    __________

                      Submitted:    June 11, 1996

                           Filed:   July 25, 1996
                                    __________

Before MAGILL and HENLEY, Circuit Judges, and DOTY,* District Judge.

                                    ___________


PER CURIAM.


     Randall Roller appeals his conviction for wire fraud, see 18 U.S.C.
§ 1343, contending that the district court1 erred when it admitted a
partnership    agreement   signed   by   Roller   into   evidence.   Because   the
agreement was relevant and its probative value was not outweighed by the
danger that it would confuse the jury, we affirm.


     Roller operated cattle ranches in Arkansas, Missouri, and




     *THE HONORABLE DAVID S. DOTY, United States District
     Judge for the District of Minnesota, sitting by
     designation.
     1
      The Honorable H. Franklin Waters, Chief Judge, United
States District Court for the Western District of Arkansas.
Oklahoma.   To further his business, Roller formed a partnership with Gary
Anderson on September 11, 1989.       The purpose of this partnership, named
Sugar Creek Feeders (the Partnership), was to buy and sell cattle.


     Pursuant     to    the   partnership    agreement   (the   Agreement),   the
Partnership established a $100,000 line of credit (LOC) at First National
Bank in Rogers, Arkansas.        While both partners had authority to borrow
money on the line of credit, paragraph 4 of the Agreement stated that
"[a]ll draws [from the LOC] shall be done by mutual consent of Anderson and
Roller . . . ."


     On August 21, 1991, Roller wire transferred $59,737.50 from the LOC
to his personal account at another bank.        He used this money to purchase
cattle for a separate, personal business concern, R & R Cattle.           Roller
never apprised Anderson of the wire transfer, and Anderson never gave his
consent to the transfer, as required by the Agreement.


     Anderson learned of the wire transfer in November 1991, when he
received a quarterly bank statement for the LOC.           When Anderson asked
Roller about the wire transfer, Roller responded that "we" had purchased
cattle in August.      However, when Anderson requested that Roller produce the
paperwork for the cattle purchase, to ensure that the cattle were purchased
in the name of the Partnership, no paperwork was ever produced.         Anderson
never received any money from the sale of the cattle, and he eventually
reimbursed First National Bank for the $59,737.50 wire transfer.


     On August 30, 1995, Roller was charged in a six-count indictment.
Count I, pertinent to this appeal, alleged that Roller devised a scheme to
fraudulently obtain money from the Partnership by means of a wire transfer
of funds.   Roller was also charged with two counts of bankruptcy fraud and
three counts of money laundering.




                                       -2-
       To help prove its case as to Count I, the government introduced at
trial the Agreement, which set forth the circumstances under which money
could be drawn from the LOC.           Roller objected to the admission of the
Agreement, contending both that the Agreement was not relevant and that it
would confuse the jury as to issues of civil liability versus criminal
liability.      The district court overruled this objection.


       The   jury   found    Roller   guilty     of   wire    fraud   and    one    count    of
bankruptcy fraud.        He was sentenced to twenty-one months in prison and
three years of supervised release, and he was ordered to pay restitution
of $37,532.12 and a special assessment of $100.


       The only argument raised on appeal is that the district court erred
in admitting the Agreement because admission of the Agreement confused the
jury concerning civil versus criminal liability.               We review the admission
of   evidence    under   a   deferential    standard,        and   "absent   a     clear    and
prejudicial abuse of discretion, the district court's ruling will be
affirmed."    United States v. Johnson, 28 F.3d 1487, 1498 (8th Cir. 1994),
cert. denied, 115 S. Ct. 768 (1995).


       Under Rule 401 of the Federal Rules of Evidence, relevant evidence
is defined as "evidence having any tendency to make the existence of any
fact that is of consequence . . . more probable or less probable than it
would be without the evidence."        Fed. R. Evid. 401.          Counsel for appellant
conceded at oral argument that the Agreement is relevant to the charge of
wire fraud.


       Relevant evidence may nonetheless be excluded, however, where its
probative value "is substantially outweighed by the danger of . . .
confusion of the issues, or misleading the jury . . . ."                     Fed. R. Evid.
403.   Roller contends that the admission of the Agreement misled the jury,
because the jury could conclude that Roller was guilty of the crime of wire
fraud simply because he




                                           -3-
breached the Agreement.   We disagree.


     In its charge to the jury, the court included instructions on burden
of proof and elements of the offense of wire fraud.    These instructions
adequately assured that the jury would not confuse the issues of civil and
criminal liability.   Thus, on the record as a whole, we find no error in
admission of the Agreement into evidence.


     Accordingly, the decision of the district court is affirmed.


     A true copy.


           Attest:


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




                                   -4-
