                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                   No. 97-4072MN
                                   _____________

United States of America,                *
                                         *
                    Appellee,            * Appeal from the United States
                                         * District Court for the District
      v.                                 * of Minnesota.
                                         *
William C. Pugh,                         *        [PUBLISHED]
                                         *
                    Appellant.           *
                                    _____________

                            Submitted: May 12, 1998
                                Filed: July 31, 1998
                                  _____________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
                           _____________

PER CURIAM.

       While operating a real estate closing business, William C. Pugh misappropriated
funds and insurance premiums belonging to purchasers and owners of real estate,
lenders, and a title insurer, that were entrusted to Pugh for disbursement to sellers and
others to finalize their real estate transactions. Instead of performing his fiduciary
responsibility, Pugh fraudulently misapplied substantial sums of money to finance his
business interests and to enhance his personal lifestyle. Based on these actions, Pugh
was convicted of mail and wire fraud, interstate and foreign transportation of money
obtained by fraud, money laundering, and fraudulent concealment of material facts from
a federal agency. Pugh appeals, raising arguments related to his convictions and the
district court's restitution order. We have carefully considered Pugh's arguments and,
with one exception, find them to be without merit.

       In attacking his convictions, Pugh initially argues that prosecution of the charges
related to his handling of the title insurance premiums is barred by the McCarran-
Ferguson Act, 15 U.S.C. §§ 1011-1015 (1994). Because "the McCarran-Ferguson
objection is not jurisdictional," United States v. Blumeyer, 114 F.3d 758, 768 (8th Cir.),
cert. denied, 118 S. Ct. 350 (1997), Pugh waived this argument raised for the first time
on appeal. Pugh's argument is meritless anyway because Pugh's criminal exploitation of
an insurance company does not trigger the preemptive provisions of McCarran-Ferguson.
See id. Pugh next argues he cannot be convicted of money laundering because the
laundered transactions were "open and recorded." This argument is foreclosed by our
recent holding in United States v. Norman, 143 F.3d 375, 377-78 (8th Cir. 1998). Pugh
also contests the sufficiency of the evidence supporting his convictions. Aside from one
mail fraud count for which the government concedes the evidence is inadequate, there
is abundant evidence in the record to support the jury's verdict. Pugh challenges some
evidentiary rulings and jury instructions, but the challenges are either unsupported by the
record, without legal merit, or both. The district court did not abuse its discretion in
making its evidentiary rulings and in instructing the jury. Finally, Pugh argues the
indictment was multiplicitous. We decline to consider this argument raised for the first
time on appeal. See United States v. Shepard, 4 F.3d 647, 650 (8th Cir. 1993), cert.
denied, 510 U.S. 1203 (1994).

       Although Pugh did not object to the restitution order in the district court, Pugh
contends the order for restitution in the amount of $1,245,000 must be vacated because
the district court failed to make ability-to-pay findings. We disagree. Guided by our
decision in United States v. Riebold, 135 F.3d 1226, 1231-32 (8th Cir.), cert. denied,
No. 97-9113, 1998 WL 273441 (U.S. June 22, 1998), we review for plain error and find
none.


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       Accordingly, we vacate Pugh's mail fraud conviction on the charge asserted in
Count 33 of the indictment and affirm Pugh's remaining convictions. We do not remand
for resentencing because the vacated conviction does not alter Pugh's sentence. We
affirm the district court’s restitution order.

      A true copy.

            Attest:

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




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