United States v. Gary Duane Schultz ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3629
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Gary Duane Schultz, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 16, 2003
Filed: May 23, 2003
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Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
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PER CURIAM.
Gary Duane Schultz pleaded guilty to mail fraud and money laundering, in
violation of 18 U.S.C. §§ 1341 and 1957, after he admitted that he used his executive
positions at Lund Boats to defraud the company of more than $14,000,000. At
sentencing, the district court1 applied a 4-level enhancement under U.S.S.G.
§ 2F1.1(b)(8)(B) (2000), specifically finding that Shultz’s conduct “affected”
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
financial institutions--namely, Farmers and Merchants State Bank (F&M) and Dain
Rauscher Investment Services (Dain)--because Lund Boats had filed a lawsuit against
them in an attempt to recover money taken by Schultz. The court sentenced Schultz
to concurrent terms of 63 months imprisonment. He appeals, arguing that the court
should not have applied the enhancement because F&M and Dain had not lost money
in the as-yet undecided civil lawsuit, and were neither victimized nor directly affected
by the offense.
Upon our de novo review, see United States v. Collins, 104 F.3d 143, 144 (8th
Cir. 1997), we believe that the district court properly applied the enhancement. It is
undisputed that Lund Boat’s civil lawsuit against F&M and Dain resulted from the
fraud, and the lawsuit appears to have realistically exposed them to substantial
potential liability and legal expenses. See United States v. Schinnell, 80 F.3d 1064,
1069-70 (5th Cir. 1996) (fraud perpetrated against customer of financial institution
affected that institution where fraud “realistically exposed [it] to substantial potential
liability”); see also United States v. Johnson, 130 F.3d 1352, 1355 (9th Cir. 1997)
(fraud “affected” bank where bank suffered unreimbursed financial losses, including
legal expenses).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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