United States v. Pretty

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 10/4/96
TENTH CIRCUIT

____________________

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) Nos. 95-6281 and 95-6284
)
WILLIAM W. PRETTY, )
PATRICIA M. WHITEHEAD, )
)
Defendants-Appellants. )

____________________

Appeal from the United States District Court
for the Western District of Oklahoma
(No. CR-94-144-L)
___________________

Fred L. Staggs (C. Merle Gile with him on the briefs), Oklahoma City, Oklahoma, for
Defendant-Appellant Pretty.

Susan M. Otto, Federal Public Defender (William P. Earley, Assistant Federal Public
Defender, with her on the briefs), Oklahoma City, Oklahoma, for Defendant-Appellant
Whitehead.

H. Lee Schmidt, Assistant United States Attorney (Patrick M. Ryan, United States Attorney,
with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
____________________

Before ANDERSON, ENGEL,* and LOGAN, Circuit Judges.

The Honorable Albert J. Engel, United States Circuit Judge for the Sixth Circuit Court
*

of Appeals, sitting by designation.
 ____________________

ENGEL, Circuit Judge.
____________________

Defendants Patricia Whitehead and William Pretty appeal their convictions and

sentences arising out of a bribery and money laundering scheme. The government charged

that the defendants, with Patrick Kuhse, conspired to take advantage of Whitehead's position

in the Office of the Oklahoma State Treasurer ("the Treasurer") by arranging various

securities transactions and sharing the commissions earned on those transactions. A jury

found Whitehead and Pretty guilty on all counts. We affirm.

I.

The alleged crimes began after Claudette Henry was elected Oklahoma State

Treasurer and named Whitehead as Deputy State Treasurer, in January 1991. Whitehead,

Pretty, and Kuhse knew each other before this time. In 1990, Whitehead worked at Planner's

Independent Management ("PIM"), a securities firm in San Diego. She sold securities and

insurance and Kuhse was her supervisor. Whitehead knew Pretty from selling insurance

together. The two had formed a corporation, the Professional Business Education

Association ("PBEA"), in 1990. Through PBEA, Whitehead and Pretty conducted seminars

to train insurance agents and sold videotapes of the seminars. Pretty met Kuhse in 1989,

when Pretty was marketing PBEA materials and Kuhse was selling insurance.

As Deputy State Treasurer, Whitehead was the Treasurer's "chief trader," in charge

of investing the state's money in low-risk securities. She held a securities license, registered

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with PIM, but she was not very experienced in the institutional bond market. She had her

license suspended while holding her official position. The Treasurer had several investment

policies: each transaction was to be the result of a competitive bidding process among

approved brokers; each approved broker was required to have an in-state representative; and

no brokerage firm would get more than twenty-five percent of the Treasurer's business within

any quarter.

In November 1990, before Whitehead was officially appointed, she called Kuhse in

California. Kuhse arranged with Mary Limoges, the president of PIM, to set up an account

to do business with the Oklahoma Treasurer. PIM began conducting transactions with the

Treasurer in March 1991. PIM used the New York-based Mabon-Nugent as its clearing firm.

When the Treasurer wanted to buy or sell securities, PIM would call Mabon-Nugent for a

quote and relay that information to the Treasurer. For each transaction, Mabon-Nugent

would collect a "clearing fee" and pay PIM, the brokerage firm, a "markup." The markup

would be the difference between what the Treasurer paid for the security and what the

security cost Mabon-Nugent. PIM's representative would then get some percentage of the

markup as a commission on the transaction.

Of all the securities transactions supervised by Whitehead during her tenure with the

Treasurer, 6.5% were brokered by PIM. PIM was paid markups by Mabon-Nugent that were

no greater than 3/4% of the transaction value, well within the 5% "safe haven" guideline of

the National Association of Securities Dealers. As PIM's representative for the Treasurer

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account, Kuhse received in commissions approximately 90% of the markups paid to PIM in

these transactions. About 96% of Kuhse's income during the time of the alleged scheme was

from commissions on transactions with the Treasurer, amounting to well over three million

dollars. Whitehead knew that Kuhse was PIM's representative and was making commissions,

but she testified that she did not know how much he made on these transactions.

During much of this trading, PIM did not have an in-state representative as required

by the Treasurer. According to the government, Pretty tried to become PIM's in-state

representative, but he did not pass the necessary licensing test. Pretty claims that he sought

a securities license merely to assist him in running the PBEA seminars. In any event, Pretty's

address and fax number were listed on transaction sheets purporting to name PIM's

Oklahoma representative. Pretty forwarded the mail he received in this capacity to PIM in

California.

The media began to look into Whitehead's dealings with PIM, and a federal

investigation soon followed. The government discovered that in 1990, before the alleged

scheme began, Whitehead, Pretty, and Kuhse had made a total of five phone calls to each

other; from 1991 to early 1994, during the period of the alleged scheme, the total was 956.

Furthermore, the three often made weekend trips together during Whitehead's tenure; the

defendants characterize these trips as innocent personal vacations. After the three met in

Arizona one weekend early in 1992, the level of the Treasurer's trading through PIM jumped

considerably.

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 The government investigation also uncovered numerous financial transactions among

Whitehead, Pretty, and Kuhse. According to the government, the transactions were evidence

that Whitehead was receiving kickbacks from Kuhse in return for sending business his way,

many of which were funneled through Pretty as a middleman. According to the defendants,

all of these transactions had a legitimate purpose. For example, Kuhse bought PBEA from

Pretty for $600,000. According to the government, PBEA had very little value, and the

"sale" was merely a way for Kuhse to funnel money to Pretty and eventually back to

Whitehead. An expert testified for Pretty that PBEA was worth more than $600,000 at the

time. Other transactions involved real estate. Pretty and his wife bought a house from

Whitehead and her husband. Pretty then set up a trust that was funded by Kuhse, and Pretty

authorized a loan from the trust to Whitehead to finance the Whiteheads' new house. Pretty

wrote several other checks to Whitehead, all of which followed checks written to him by

Kuhse. On the other hand, the defendants asserted that much of this money was to repay

Whitehead for work she had done while still with PBEA.

The government charged the defendants with three types of crimes: (1) engaging in

a bribery or kickback scheme, in violation of 18 U.S.C. § 666; (2) conspiring to engage in

this scheme, in violation of 18 U.S.C. § 371; and (3) money laundering, in violation of 18

U.S.C. §§ 1956, 1957. The indictment also sought forfeiture of the proceeds of the scheme

under 18 U.S.C. § 982. The jury convicted Whitehead and Pretty of all thirty-two counts in

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the indictment and found the proceeds to be forfeitable. Each defendant moved for acquittal

on the basis of the insufficiency of the evidence, and the court denied these motions.

At the sentencing hearing, the district court considered objections by Whitehead and

Pretty to the "amount of loss" calculated in the presentence investigation report. The court

sustained the defendants' objections in part and overruled them in part, fixing $3,894,391.28

as the amount to be used in calculating each defendant's sentence. The court also heard

objections by both defendants to the imposition of a two-level sentence enhancement for

obstruction of justice. The court overruled these objections, finding that both Whitehead and

Pretty had committed perjury throughout the trial. Whitehead was sentenced to 108 months'

imprisonment and three years' supervised release, and was ordered to forfeit $220,000; Pretty

was sentenced to 97 months' imprisonment and three years' supervised release, and was

ordered to forfeit $473,471.50.

II.

Whitehead and Pretty argue that the evidence was insufficient to allow the jury to

convict them of conspiracy, bribery, and money laundering. While these crimes have

different elements, the sufficiency question as to all three turns in large part on whether it

was reasonable for the jury to believe that Whitehead, Pretty, and Kuhse entered into the

alleged scheme. In reviewing the sufficiency of the evidence, we consider the evidence in

the light most favorable to the government and decide whether a rational jury could have

found the defendants guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

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319 (1979); United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir. 1990), cert. denied,

506 U.S. 900 (1992).

The government has no direct evidence to prove that the defendants plotted to defraud

the Treasurer, but it argues that the circumstantial evidence was enough to show that the

superficially legal transactions that occurred among the three acquaintances constituted an

illegal kickback scheme. At trial, the government asked the jury to draw the following

inferences from the evidence: When Whitehead knew that she would be named the

Treasurer's chief trader, she called her friend Kuhse in California, who agreed to start an

account for the Treasurer with PIM. Whitehead and Kuhse asked Pretty, who lived in

Oklahoma, to serve as the in-state representative. Even though he did not pass the necessary

securities exams, he functioned as the in-state representative, forwarding all the mail to

California. Whitehead, Pretty, and Kuhse agreed to share Kuhse's commissions on a small

scale to check if all would run smoothly. After several transactions were completed without

a hitch, the three met in Arizona and decided to move ahead with their plan on a larger scale.

From that point on, Kuhse would funnel back portions of his commissions to the other two,

sometimes to Whitehead directly and sometimes to Whitehead through Pretty. The transfer

of money was occasionally direct, such as when the three split a commission check in thirds,

but more often subtle, such as when Kuhse, through Pretty, funded the mortgage trust for

Whitehead. Throughout the scheme, the conspirators often talked on the phone to each other

to discuss the flow of money among them, and they met on several weekends to solidify their

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plans. They formulated excuses, such as the allegedly thriving PBEA business, old debts,

and the desire to invest in real estate, to make the money transfers look legitimate.

The defendants, on the other hand, focused on the apparent legality of their

transactions, asking the jury to accept the following story: Oklahoma made money from its

securities trading through PIM, and Kuhse made money from commissions on transactions

with the Treasurer just as other licensed representatives doing business with the Treasurer

did. All the money that flowed back to Whitehead could be traced to previous debts and

arms'-length real estate transactions. There was no connection between the Treasurer's

dealings with Kuhse through PIM and Whitehead's real estate dealings with Pretty. The

meetings and phone calls were the result of camaraderie, not conspiracy.

The jury believed the government's version of the story, and we hold that there was

more than sufficient evidence to support this conclusion. We discuss in turn the sufficiency

of the evidence with respect to each of the three types of violations.

A.

To prove a conspiracy in violation of 18 U.S.C. § 371, the government had to show

(1) an agreement to break the law; (2) an overt act furthering the conspiracy's object; (3) that

the defendants willfully entered the conspiracy, United States v. Gacnik, 50 F.3d 848, 852

(10th Cir. 1995); and (4) that the defendants knew at least the "essential objectives" of the

conspiracy, United States v. Williams, 923 F.2d 1397, 1402 (10th Cir. 1990), cert. denied,

500 U.S. 925 (1991). Circumstantial evidence is sufficient to prove a conspiracy. E.g.,

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United States v. Fox, 902 F.2d 1508, 1515 (10th Cir.), cert. denied, 498 U.S. 874 (1990).

Whitehead and Pretty attack the conspiracy charges by arguing that they did not break the

law; that even if they did, there was no agreement to do so; that even if there was, they did

not willfully enter the conspiracy; and that they did not know any essential details about the

conspiracy.

The government's conspiracy charge rests, as does the whole case, on the

circumstantial evidence showing that the scheme existed; there is no direct proof that the

defendants agreed to any plan or that they knew the essential details of the plan. Deciding

whether there was a conspiracy is tantamount to deciding whether there was a scheme at all.

Having found sufficient evidence to support the finding that the scheme existed, we have no

trouble finding that the evidence supports the conspiracy charges. The scheme was an

agreement requiring willful participation and overt acts by all three members. Whitehead

argues that even if Pretty and Kuhse had a scheme going, she was not a participant. We

reject this argument, because Pretty and Kuhse could not have had a scheme without

Whitehead's willful participation--Pretty and Kuhse would not have funneled money to

Whitehead if Whitehead had not been involved in the scheme.

B.

The defendants argue that even if they were involved in some sort of scheme, there

was no evidence that they violated 18 U.S.C. § 666. They contend that the government failed

to prove that the Treasurer annually received more than $10,000 in federal funds, as required

9
by the statute. Whitehead also argues that she should not have been convicted under this

statute because there was no evidence that her official decision-making was improperly

influenced. The government responds that it is necessary under § 666 to prove neither that

the Treasurer received federal funds nor that Whitehead's decisions were influenced.

Section 666 prohibits any "agent of an organization, or of a State, local, or Indian

tribal government, or any agency1 thereof" from accepting bribes "intending to be influenced"

in connection with any transactions involving anything of value of $5,000 or more, and any

person from offering such bribes "with intent to influence" any such transactions. 18 U.S.C.

§ 666(a). These prohibitions exist only if the organization, government, or government

agency of which the bribe-taker is an agent annually "benefits in excess of $10,000 under a

Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other

form of Federal assistance."

Id. § 666(b).

There is no dispute that federal funds exceeding $10,000 a year come through the

Oklahoma State Treasurer's Office, but Whitehead and Pretty argue that there is no evidence

that the Treasurer "benefits" from this money in the sense required by the statute. They cite

testimony that the federal funds come from federal agencies earmarked for use by state

agencies and are deposited into a "general account" from which they are withdrawn at the

1
A government "agency" includes any subdivision of the executive, legislative,
judicial, or other branch of government, 18 U.S.C. § 666(d)(2), so the Oklahoma State
Treasurer's Office is an "agency" under the statute.

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state agencies' discretion. They are not used by the Treasurer and therefore do not qualify

under § 666(b), the defendants posit. The government counters that there is no need to show

that the Treasury benefits from the federal funds, because Whitehead was an agent of the

state itself.

If Whitehead was an agent of the state, rather than only of the Treasurer, then § 666

applies to her even if the Treasurer did not benefit from the federal funds, because the state

itself received and benefited from more than $10,000 in federal funds. The statutory

definition of "agent" is "a person authorized to act on behalf of another person or a

government." Id. § 666(d)(1). Because Whitehead was in charge of investing the state's

funds, not merely the Treasurer's funds, we find that she was indeed an agent of the state.

Even if the actual money she traded through PIM could not be traced to a federal program,

she was chargeable under § 666. See United States v. Westmoreland, 841 F.2d 572, 576 (5th

Cir.), cert. denied, 488 U.S. 820 (1988).

In response to Whitehead's argument that no evidence supported an inference that her

official decision-making was influenced by any bribery or kickbacks, the government

correctly points out that the statute requires only intent to be influenced, rather than actual

influence. 18 U.S.C. § 666(a)(1)(B). Having found that the scheme existed as alleged, we

find in turn that Whitehead intended to be influenced, because the whole plan hinged on her

sending business to PIM.

C.

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 Both defendants challenge the sufficiency of the evidence for their money laundering

convictions under 18 U.S.C. §§ 1956-1957. Pretty was convicted on four counts under §

1957(a); he and Whitehead were convicted on one count under § 1956(a)(1)(A)(i) and on two

counts under § 1956(a)(1)(B)(i). The government argues that the same evidence that allows

the reasonable inference that the scheme existed also allows the inference that Whitehead and

Pretty engaged in money laundering.

Section 1957 punishes the knowing

engage[ment] in a monetary transaction in criminally derived property that is
of value greater than $10,000 and is derived from specified unlawful activity
....

18 U.S.C. § 1957(a). The government based the charges under this section on Pretty's

purchase of two cars, an apartment complex, and a house with money derived from the

scheme. Pretty admits making the purchases; he challenges the convictions by arguing that

the money he used was not criminally derived. Having found that the evidence of the

existence of the conspiracy was sufficient, we also find that the evidence was sufficient to

support these § 1957 counts, because the timing of Pretty's purchases strongly suggests that

he used money from the scheme.

Section 1956 prohibits financial transactions involving the proceeds of unlawful

activity if either (1) the intent of the transaction is "to promote the carrying on of specified

unlawful activity," § 1956(a)(1)(A)(i), or (2) the individual knows that the transaction is

designed in whole or in part "to conceal or disguise the nature, the location, the source, the

12
ownership, or the control of the proceeds of specified unlawful activity," § 1956(a)(1)(B)(i).

The charge under § 1956(a)(1)(A)(i) is based on the purchase by Pretty and his wife of a

house from Whitehead and her husband. Whitehead testified that she wanted to sell the

house, and Pretty testified that he was interested in buying and restoring old homes. The

government's theory is that this transaction was an example of Pretty's kicking money from

Kuhse's commissions back to Whitehead. This transfer of money, it contends, promoted the

illegal scheme and therefore constituted money laundering. The defendants claim that the

government failed to prove that the intent behind the transaction was the promotion of the

scheme. Again, this issue comes down to whether there was a scheme at all. Finding that

the evidence was sufficient to support the jury's finding that the scheme existed, we also find

that the jury's inference that this allegedly arms'-length transaction was in fact meant to

promote the scheme was a reasonable one.

The charges under § 1956(a)(1)(B)(i) are based on a trust set up by Pretty and funded

by Kuhse. Pretty approved a loan to Whitehead and her husband from this trust to finance

the Whiteheads' new house. The defendants claim that the transactions were negotiated at

arms' length. We find that the jury's inference that the intent of these transactions was at least

in part to conceal the source of the funds was a reasonable one.

Whitehead argues that these transactions cannot be the basis of § 1956(a)(1)(B)(i)

liability because they were part and parcel of the kickback scheme. The indictment cites the

§ 666 violations as the "specified unlawful activity" of which the proceeds were laundered.

13
Whitehead relies on our comment in United States v. Edgmon , 952 F.2d 1206 (10th Cir.

1991), cert. denied , 505 U.S. 1223 (1992), that "Congress aimed the crime of money

laundering at conduct that follows in time the underlying crime rather than to afford an

alternative means of punishing the prior `specified unlawful activity.'" Id. at 1214 (emphasis

added). According to Whitehead, because the real estate transactions in question were

themselves kickbacks in violation of § 666, they did not "follow in time" the underlying §

666 violations.

The "follows in time" language does not bear the weight that Whitehead places upon

it. In Edgmon, we considered whether a conviction for both conversion and money

laundering violated the Double Jeopardy Clause. Examining the legislative history of the

Money Laundering Crimes Act of 1986, we found that because Congress intended to make

a new, separately punishable offense, the conviction did not pose a double jeopardy problem.

Id. at 1212-14. Our "follows in time" comment was intended to express merely the

separateness of money laundering and the underlying crime for double jeopardy purposes,

not a strict temporal relationship. In United States v. Lovett, 964 F.2d 1029 (10th Cir.), cert.

denied, 506 U.S. 857 (1992), we quoted the "follows in time" language, again to support the

proposition that a conviction for money laundering and the underlying crime did not violate

the Double Jeopardy Clause. Id. at 1042. In United States v. Dimeck, 24 F.3d 1239 (10th

Cir. 1994), to support our holding that the mere delivery of money from one drug courier to

another, without evidence of concealment, is not sufficient to constitute money laundering,

14
we again cited this same language. Id. at 1246. In a footnote, however, we commented that

"[w]e could envision scenarios where money laundering and the underlying illegal activity

occur simultaneously." Id. at 1246 n.12.

Classic examples of § 1956(a)(1)(B)(i) violations involve drug dealers who receive

tainted money and then try to "launder" it by using it in apparently legitimate transactions.

See United States v. Garcia-Emanuel, 14 F.3d 1469, 1477 (10th Cir. 1994). In such

situations, the laundering naturally occurs after the underlying drug crime is complete.

Section 1956 covers far more than merely "classic" money laundering, however. United

States v. Johnson, 971 F.2d 562, 569 (10th Cir. 1992). We do not read our cases as holding

that laundering can occur only after the underlying crime is complete, especially in light of

the Dimeck footnote. The legislative history at the root of the "follows in time" language in

Edgmon notes that money laundering is a new crime; this supported our holding that a

separate punishment did not violate the Double Jeopardy Clause. The legislative history does

not suggest even obliquely that a certain temporal relationship must exist between the

underlying crime and the money laundering. See S. Rep. No. 433, 99th Cong., 2d Sess.

(1986). Rather, it stresses the wide scope of money laundering and notes the complexity of

schemes in which criminals "disguise the illegal nature and true sources of their income."

Id. at 3. This is exactly what Whitehead did in having her kickback filtered through real

estate transactions. A direct payment from Kuhse to Whitehead would have violated § 666

without constituting money laundering. The effort to disguise the source of the money was

15
an additional act that is separately punishable under § 1956(a)(1)(B)(i), notwithstanding the

simultaneity of the two crimes.

Even if we were to hold that money laundering must without exception follow in time

the underlying "specified unlawful activity," we would affirm Whitehead's § 1956(a)(1)(B)(i)

convictions. The unlawful activity specified in counts 25 and 26 was simply the defendants'

violation of § 666--the indictment did not cite any particular § 666 violations as the predicate

for the money laundering charges. The laundering transactions relevant to counts 25 and 26

began to unfold in March 1992. At that time, Whitehead had already completed the conduct

charged in counts 3, 5, 7, and 8, all in violation of § 666. Therefore, the money laundering

"followed in time" the underlying crime.

This analysis accords with our holding in United States v. Kennedy, 64 F.3d 1465

(10th Cir. 1995). The defendant in that case had been convicted of laundering the proceeds

of several instances of mail fraud. He argued that because the conduct constituting the mail

fraud crimes was the same as that alleged in the money laundering counts, the predicate

crimes had not been completed at the time of the laundering. We affirmed his conviction

because some of the underlying mail fraud had taken place before any of the money

laundering. Id. at 1477-78. We distinguished Johnson, in which the only crimes underlying

the defendant's money laundering charges were the very same wire transfers in which the

alleged money laundering occurred. Whitehead's case is analogous to Kennedy rather than

to Johnson.

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 III.

Both defendants argue that the district court erred in enhancing the base levels of their

sentences by two based on obstruction of justice. We review the district court's factual

findings on this issue under the clearly erroneous standard, United States v. Urbanek, 930

F.2d 1512, 1514 (10th Cir. 1991), and its legal conclusions de novo, United States v. Blair,

54 F.3d 639, 644 (10th Cir.), cert. denied, 116 S. Ct. 220 (1995).

The Sentencing Guidelines provide that a defendant's offense level must be increased

by two "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the investigation, prosecution, or sentencing of

the instant offense." U.S.S.G. § 3C1.1. Perjury can be the basis for such an enhancement.

Id. § 3C1.1, comment. (n.3(b)). A defendant commits perjury for the purposes of this

Guideline if he "gives false testimony concerning a material matter with the willful intent to

provide false testimony." United States v. Dunnigan, 507 U.S. 87, 94 (1993).

The district court explicitly found that both defendants had committed multiple acts

of perjury. It found that almost all of Whitehead's testimony at trial was false, including her

testimony as to her intent in the real estate transactions. (Tr. 1402-03; Order of July 28, 1995

at 5.) As to Pretty, it found that he lied about, among other things, the real estate transactions

and the reasons for the sale of PBEA. (Tr. 1454-56; Order of July 28, 1995 at 5.) These

findings satisfied the requirements of the Guidelines and Dunnigan, and we see no error in

them.

17
 Whitehead argues that the district court was too conclusory in finding that she

intended to commit perjury. Careful not to allow overly conclusory findings that a defendant

obstructed justice by committing perjury, we have required judges to identify or describe the

perjurious testimony in circumstances such as these. United States v. Massey, 48 F.3d 1560,

1573 (10th Cir.), cert. denied, 115 S. Ct. 2628 (1995). Once this requirement is met,

however, "fairly conclusory findings that such testimony was . . . given with intent to commit

perjury" are permissible. Id. at 1574. The court did not quote the perjurious testimony of

Pretty and Whitehead, but it did not need to do so. It specified the particular areas in which

the defendants committed perjury with enough precision to satisfy Massey.

IV.

Whitehead and Pretty argue that the district court erred in increasing the base levels

of their offenses by thirteen based on the amount of money involved. The court considered

the defendants' objections to the $6,749,883.91 "amount of loss" mentioned in the

presentence investigation report. Pretty argued that he should be credited with the amount

of money that he paid Whitehead. Whitehead argued that she did not cause the state of

Oklahoma to lose any money at all. The court sustained the defendants' objections in part

and overruled them in part, fixing $3,894,391.28 as the "amount of loss" to be used in

calculating the sentence for each defendant. We review the court's factual findings under the

clearly erroneous standard and its legal conclusions de novo. United States v. Whitehead,

912 F.2d 448, 449-50 (10th Cir. 1990).

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 The Guidelines provide for an increase in the offense level for bribery if

the value of the payment, the benefit received or to be received in return for
the payment, or the loss to the government from the offense, whichever is
greatest, exceeded $2,000.

U.S.S.G. § 2C1.1(b)(2)(A). The court used the benefit received by Kuhse as a benchmark.

It found that Kuhse made $4,056,657.58 from commissions with PIM over the relevant time

period. Citing testimony that 96% of this money was from trades with the Oklahoma

Treasurer, the court reached the $3,894,391.28 figure, which increased each defendant's

offense level by thirteen. Id. § 2F1.1(b)(1)(N). Whitehead argues that she should be

sentenced based on the amount of money that she received, $268,950.90, which would

increase her offense level by only eight. Id. § 2F1.1(b)(1)(I). Pretty argues similarly that his

sentence should be based on the amount he received, $1,061,581.04, which would increase

his level by eleven. Id. § 2F1.1(b)(1)(L).

All parties agree that the issue turns on whether the amount of money received by

Kuhse was reasonably foreseeable to the defendants. Id. § 1B1.3(a)(1)(B). The defendants

claim that they could reasonably foresee only the amount that they personally received. The

commentary to the Guidelines cautions that the relevant conduct for setting the offense level

is not necessarily the same for each member of a conspiracy. Id. § 1B1.3, comment. (n.2).

Still, this note does not mean that only the amount received by each individual conspirator

may be used to calculate that conspirator's sentence; rather, the question is whether the

amount received by Kuhse was reasonably foreseeable to the defendants in light of the nature

19
of the conspiracy. See United States v. Torres, 53 F.3d 1129, 1144 (10th Cir.), cert. denied,

115 S. Ct. 2599 (1995).

Although the defendants argue that there was no evidence of the foreseeability to them

of the amount of money Kuhse received, the nature of the conspiracy was such that each

participant almost certainly knew how much money was going where; the scheme was based

on keeping track of money flowing from one conspirator to another. The district court

explicitly found that the amount of $3,894,391.28 was foreseeable both to Whitehead, (Order

of July 28, 1995 at 3 n.5), and to Pretty, (Order of July 28, 1995 at 6 n.8). We see no reason

to hold that these findings were clearly erroneous.

V.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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