United States v. Pretty

98 F.3d 1213, 1996 U.S. App. LEXIS 26215, 1996 WL 564401
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 4, 1996
Docket95-6281, 95-6284
StatusPublished
Cited by44 cases

This text of 98 F.3d 1213 (United States v. Pretty) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pretty, 98 F.3d 1213, 1996 U.S. App. LEXIS 26215, 1996 WL 564401 (10th Cir. 1996).

Opinion

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 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 *1216 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 Ma-bon-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 Ma-bon-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 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.

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; *1217 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 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.

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Cite This Page — Counsel Stack

Bluebook (online)
98 F.3d 1213, 1996 U.S. App. LEXIS 26215, 1996 WL 564401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pretty-ca10-1996.