                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-2586
      __________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Jay Charles Wantland,                  *
                                       *
            Appellant.                 *
                                       *
      ___________                      * Appeals from the United States
                                       * District Court for the Western
      No. 04-2947                      * District of Missouri
      ___________                      *
                                       *        [UNPUBLISHED]
United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Suzanne Keisling,                      *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 13, 2005
                                Filed: June 9, 2005
                                 ___________
Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.
                         ___________

PER CURIAM.

       A jury convicted Jay Charles Wantland and Suzanne M. Keisling of bank fraud
in violation of 18 U.S.C. §§ 1344 and 2. Wantland was also convicted of credit-card
fraud in violation of 15 U.S.C. § 1644 and 18 U.S.C. § 2. The district court1
sentenced Wantland to 57 months, and Keisling to 21 months. Wantland appeals only
his bank-fraud conviction, claiming insufficient evidence.2 Keisling appeals both her
conviction, also claiming insufficient evidence, and her sentence, asserting a Sixth
Amendment violation. Jurisdiction being proper under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), this court affirms.

       In early 1998, Wantland hired Keisling as a project manager for his residential
construction company, B-Builders. Later that year, the two formed C-Builders to
handle financing, while B-Builders would perform the actual construction work.
Keisling, as president and CEO of C-Builders, took care of all accounting, paying all
invoices, and controlling the funds for the company. Wantland managed the actual
construction. C-Builders was supposed to pay B-Builders for work on the houses.

      To fund the companies, Wantland and Keisling obtained two residential
construction loans from Clayco State Bank. The loans were also personally
guaranteed by Keisling's brother and sister-in-law. As standard in the construction
industry, proceeds of the loans are released only upon presentation of proof –
typically an invoice – that the builder spent funds on the project. Several months into


      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
      2
       Wantland's Motion to Dismiss issues II and III of his appeal, concerning
sentencing, is granted.

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construction, the bank discovered the invoices from C-Builders were fabricated or
altered, representing work not actually done. Also, several checks written by C-
Builders for subcontractor work purportedly done by B-Builders were never cashed.
Thus, the bank was reimbursing C-Builders for funds it never actually paid. In fact,
upon final disbursement of the loans, neither house was complete.

       Notified by the bank of these problems, Wantland and Keisling fled the Kansas
City area, without telling the bank, friends, or even family. In September 2003, they
were arrested in Ohio, living under false aliases.

      A jury found both Wantland and Keisling guilty of violating 18 U.S.C. § 1344:

      Whoever knowingly executes, or attempts to execute, a scheme or
      artifice -- (1) to defraud a financial institution; or (2) to obtain any of the
      moneys, funds, credits, assets, securities, or other property owned by, or
      under the custody or control of, a financial institution, by means of false
      or fraudulent pretenses, representations, or promises; shall be fined not
      more than $1,000,000 or imprisoned not more than 30 years, or both.

The government submited its case on both types of fraud: 1) defrauding and 2)
obtaining money by false or fraudulent representations.

       On appeal, Wantland and Keisling each claim the evidence failed to prove bank
fraud. This court reverses for insufficient evidence if, after viewing the evidence
most favorably to the prosecution, no reasonable jury could find the defendant guilty
beyond a reasonable doubt. United States v. Lam, 338 F.3d 868, 871 (8th Cir. 2003)
(citations omitted).

       Wantland claims that the evidence at trial was insufficient because he never
personally altered any invoices or company checks submitted to the bank, nor
directed their alteration or submission to the bank. True, the evidence did not prove

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Wantland personally altered or submitted any of the invoices or checks. However,
it did show Wantland was guilty of bank fraud under an aiding and abetting theory
– 18 U.S.C. § 2. "To convict under the aiding and abetting statute, 18 U.S.C. § 2, the
government need only prove that the defendant associated himself with the unlawful
venture, participated in it as something he wished to bring about, and by his action
sought to make the activity succeed." United States v. Clark, 980 F.2d 1143, 1146
(8th Cir. 1992) (citation omitted).

        Several witnesses testified Wantland controlled his wife, Keisling. According
to other testimonies, Wantland was in overall charge of the construction companies,
making all business decisions, including how much money the company should
request in the draws. Evidence also showed that Wantland had previous experience
in the construction industry (while Keisling had none), purchased personal items with
the loan money, and fled when the bank learned of the altered invoices and uncashed
checks.

     Accordingly, the evidence sufficiently supports aiding and abetting bank fraud
beyond a reasonable doubt.

       Keisling appeals her conviction for bank fraud, but claims that, while the
evidence may show a general scheme to defraud, the government did not prove a
scheme to defraud by false or fraudulent representations. Specifically, Keisling
asserts that the government failed to demonstrate that the bank received fabricated or
altered invoices and uncashed checks before the bank released the proceeds, thus no
disbursements were paid based upon Keisling's false representations.

       Keisling's real complaint is that the district court submitted on both theories of
fraud, when one was not supported by the evidence. The court, however, did not err
by instructing the jury on both theories. The Supreme Court has held that "when a
jury returns a guilty verdict on an indictment charging several acts in the conjunctive,

                                          -4-
. . . the verdict stands if the evidence is sufficient with respect to any one of the acts
charged." Turner v. United States, 396 U.S. 398, 420 (1970); see also Griffin v.
United States, 502 U.S. 46, 58-60 (1991); United States v. Wilkinson, 124 F.3d 971,
976 (8th Cir. 1997), cert. denied, 522 U.S. 1133 (1998); United States v. Clausen,
792 F.2d 102, 105 (8th Cir.), cert. denied, 479 U.S. 858 (1986); United States v.
Mohr, 728 F.2d 1132, 1135 (8th Cir.), cert. denied, 469 U.S. 843 (1984). "Indeed,
if the evidence is insufficient to support an alternative legal theory of liability, it
would generally be preferable for the court to give an instruction removing that
theory from the jury's consideration. The refusal to do so, however, does not provide
an independent basis for reversing an otherwise valid conviction." Griffin, 502 U.S.
at 60.

        Despite Keisling's assertion, the evidence sufficiently supports either theory of
culpability. In this case it does not matter that some documents were submitted after
the draw requests were paid. As Keisling points out in her brief, two witnesses
testified that she admitted to submitting altered invoices to the bank, after the last
draw had been issued. The bank CEO responsible for administering the loans also
stated that, while the first few draws were paid without supporting documents,
Keisling began providing invoices and checks to vendors when making draw
requests. Another bank employee, testified that Keisling submitted draw requests to
the bank, typically accompanied by a C-Builders invoice and a B-Builders invoice,
along with checks from C-Builders to B-Builders indicating B-Builders had been
paid. The employee testified that had she known the checks were never cashed, she
would not have approved the draw requests. According to an FBI agent, the checks
submitted to the bank were never cashed, and appeared to have been submitted over
a period of time, and not all at once, as Keisling suggests.

       Because a reasonable jury could have found Keisling guilty beyond a
reasonable doubt for either a scheme to defraud or a scheme to obtain money by false
or fraudulent representations, the conviction is affirmed.

                                           -5-
       Keisling also appeals her sentence, claiming that the district court violated the
Sixth Amendment by enhancing the sentence based on judicially found facts. Over
her objection invoking Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004),
the district court adopted the facts in the presentence report as to the amount of loss
to the bank, and more-than-minimal planning. Following the then-mandatory
guidelines, the court – determining the range as 21 to 27 months – sentenced Keisling
to 21 months.

       Keisling's sentence violates the Sixth Amendment by including enhancements
based on facts neither found by a jury beyond a reasonable doubt nor admitted by her.
See United States v. Booker, 125 S. Ct. 738, 756 (2005). The Supreme Court
"expect[s] reviewing courts to apply ordinary prudential doctrines," when reviewing
Sixth Amendment error. Id. at 769. Because Keisling preserved her objection, this
court reviews for harmless error. See United States v. Pirani, 406 F.3d 543, 549-50
(8th Cir. 2005) (en banc). The Federal Rules of Criminal Procedure require: "Any
error, defect, irregularity, or variance which does not affect substantial rights must be
disregarded." Fed. R. Crim. P. 52(a). This "means that the error must have been
prejudicial: It must have affected the outcome of the district court proceedings."
United States v. Olano, 507 U.S. 725, 734 (1993) (discussing the harmless error
doctrine, requiring the government prove no prejudice beyond a reasonable doubt).

       In this case, the district court gave an identical alternative sentence "in the
event that the federal sentencing guidelines would at some later point be determined
to be invalid and unconstitutional." The judge twice characterized his alternative
sentence as "an alternative determination within the statutory range that is permitted
under the law without adherence, without at least strict adherence to the sentencing
guidelines." The court concluded that the alternative sentence was "pursuant to the
statutory scheme which would from a practical effect have the same result." Because
this court finds the Booker error harmless beyond a reasonable doubt, the sentence is
affirmed.

                                          -6-
      Therefore, this court affirms Wantland's conviction, and Keisling's conviction
and sentence.
                        _____________________________




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