     Case: 11-10367     Document: 00511924931         Page: 1     Date Filed: 07/18/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 18, 2012
                                    No. 11-10367
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THOMAS BUEHLER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-140-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Thomas Buehler appeals his jury trial conviction for theft or embezzlement
from an employee pension benefit plan. See 18 U.S.C. § 664. Buehler owned
Northlake Plumbing, Inc. (Northlake) and was the trustee of its pension plan.
After initiating the termination of the plan, Buehler in 2008 withdrew all of its
assets from its investment account and deposited them into a regular bank
account of Northlake’s. The proceeds owed to plan participants other than
Buehler totaled $52,693.72. That amount was never distributed but was instead

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-10367

used to cover Northlake’s regular business expenses. Buehler’s defense was that
he was negligent in not safeguarding the plan’s assets but that he was not an
embezzler and did not intend to divert the assets from plan participants.
      Buehler contends that the district court abused its discretion when it
allowed evidence about a civil audit investigation of the plan begun by the
Department of Labor (DOL) in May 2006 after it received a report that he had
withheld contributions from plan participants’ paychecks but had not deposited
the monies into the plan. The parties disagree on whether Buehler preserved,
waived, or invited error and thus on the standard of review. See United States
v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010). Buehler cannot prevail even
under the least deferential standard in which we review for an abuse of
discretion. See United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008);
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      The evidence that Buehler claims the district court erred by including was
a letter, redacted by the district court to prevent prejudice to Buehler, in which
the DOL advised Buehler, during the audit and before he terminated the plan
and withdrew its assets, about his duties as a fiduciary under the Employee
Retirement Income Security Act (ERISA) and about his failure to meet those
duties. We reject Buehler’s contention that it was improper to admit evidence
related to the audit, however, because the evidence was properly admitted as
additional proof that Buehler knew that he had no right to divert the pension
plan’s assets from plan beneficiaries and thus relevant to the issue of intent and
knowledge, as it lessened the likelihood that Buehler committed the charged
offense mistakenly and unknowingly. See FED. R. EVID. 404(b); see also United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Additionally, any
risk of prejudice to Buehler was substantially reduced by the district court’s
multiple admonitions to the jury that evidence from the audit was not admitted
to prove a violation of ERISA but solely for the limited purpose of showing
whether Buehler had the state of mind or intent to commit the crime charged in

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                                No. 11-10367

the indictment or whether he disposed of the plan’s assets by accident or
mistake. See United States v. Crawley, 533 F.3d 349, 355 (5th Cir. 2008).
     AFFIRMED.




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