United States v. John Walsh , 723 F.3d 802 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-1503 & 12-1504
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN E. W ALSH and C HARLES M ARTIN ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00005—Virginia M. Kendall, Judge.
A RGUED A PRIL 22, 2013—D ECIDED JULY 23, 2013
Before W OOD , T INDER, and H AMILTON, Circuit Judges.
T INDER, Circuit Judge. John E. Walsh and Charles Martin
organized One World Capital Group, LLC, and devised
a scheme to defraud its customers. They were caught
and charged with various federal offenses. Both
defendants pleaded guilty to several counts. Walsh
pleaded guilty to wire fraud, tax evasion, and making
false statements in a report to the Commodities Futures
and Trading Commission. Martin pleaded guilty to wire
2 Nos. 12-1503 & 12-1504
fraud, tax evasion, and a Commodities Exchange Act
violation. The district court sentenced Walsh and Martin
to terms of imprisonment of 150 and 204 months, respec-
tively, and ordered each of them to pay $16,976,554
in restitution. They appeal their sentences. Walsh chal-
lenges the district court’s finding as to the amount of
the loss and restitution, and both defendants challenge
the application of a sentencing enhancement based upon
a finding that each was an officer or director of a futures
commission merchant. Finding no error, we affirm.
I. Background
Walsh and Martin were principals of One World, a
futures and foreign currency trading company, formed
in 2005.1 One World acted as a “futures commission
merchant” and as a “forex dealer member.” A company
acting as a futures commission merchant must register
with the Commodities Futures and Trading Commission
(CFTC),2 7 U.S.C. § 6d(a); and once registered, must meet
registration requirements, which include maintaining
net capital to cover trades and filing monthly financial
reports reflecting the company’s financial condition. See
1
Foreign currency transactions (forex transactions) involve
the sale or purchase of one national currency relative to
another. Traders earn profits based upon the change in value
of the two currencies over a period of time.
2
The CFTC is an independent regulatory agency that ad-
ministers and enforces the Commodity Exchange Act and
corresponding regulations.
Nos. 12-1503 & 12-1504 3
17 C.F.R. § 1.17(a)(1); id. § 1.10(b)(1)(i) (“each person
registered as a futures commission merchant must file a
Form 1-FR-FCM as of the close of business each
month”). Walsh, as owner, president, and primary man-
ager, registered One World with the CFTC and with
the National Futures Association (NFA).3 Martin was
banned from serving as a principal or “associated person”
of an NFA member because of prior convictions, so the
defendants concealed his position with One World
from the CFTC and the NFA. One World operated until
December 2007, when the CFTC obtained a temporary
restraining order and shut down its operations.
As a forex dealer member, One World accepted
retail customer funds for the purpose of acting as a
counterparty, or offering to act as counterparty, to over-
the-counter forex transactions. Customers traded forex
with One World via “Metatrader 4,” an internet
trading platform, which maintained records of their
trading activity and calculated the changing value of
their forex trading accounts. At a customer’s request, the
trading platform generated and distributed an electronic
account statement reflecting the equity value of the cus-
tomer’s forex trading account. As a prerequisite to ac-
cepting trades, One World required customers to
secure their forex positions by depositing funds, known
3
The NFA is a registered futures association that serves as
an independent, self-regulatory organization for the futures
industry that develops rules, programs, and services to safe-
guard the futures market.
4 Nos. 12-1503 & 12-1504
as “margin funds,” with One World, but those funds
remained the customers’ property. Customer margin
funds were to be credited or debited according to
changes in the value of the customer’s forex trading
positions. The defendants represented to customers
and prospective customers that margin funds were main-
tained in a separate One World customer account.
Shortly after One World’s formation, Walsh and
Martin began to transfer customer margin funds from
One World to their own personal accounts. They used
the misappropriated funds to purchase goods and
services for themselves and to finance personal business
ventures. They misappropriated $10,019,619 in One
World customer funds. Walsh deposited those funds
into his personal checking account and transferred
$3,771,100 to Martin’s personal checking account. Martin
transferred an additional $2,887,776 directly from One
World to his personal bank account. Walsh and Martin
also charged $4.6 million to One World’s corporate
credit cards for various personal expenses. Their misap-
propriation of customer margin funds rendered One
World insolvent by April 2006.
Walsh and Martin concealed One World’s insolvency
and their criminal conduct by misleading customers
about the company’s ability to meet its obligations. They
allowed existing customers to continue to obtain
account statements that falsely stated their available
margin funds, and they solicited new customers by
making false and misleading statements. They also used
a Ponzi-like scheme, paying existing customers’ redemp-
Nos. 12-1503 & 12-1504 5
tion requests with new customers’ margin deposits.
And Walsh directed One World to submit to the CFTC
false and misleading monthly financial reports that under-
stated the company’s liabilities and overstated its assets.
The NFA initiated a formal action against One World
and Walsh in 2007, precipitating an increase in customer
redemption requests. By the fall of that year, One World
had insufficient funds to honor redemption requests
because of the defendants’ conduct. Walsh falsely
assured, and caused others to falsely assure, customers
that One World would honor their redemption re-
quests; he claimed that they just needed more time. As
of November 5, 2007, about one month before the CFTC
shut down One World, Metatrader’s records showed
that One World had $17,654,486 in unpaid customer
liabilities and only $677,932 in assets.
Walsh pleaded guilty to wire fraud, tax evasion, and
making false statements in a report to the CFTC. In his
written plea agreement, Walsh reserved the right to
contest the loss amount but agreed that his offense
level should be increased by 4 levels under U.S.S.G.
§ 2B1.1(b)(17)(B) (2010) 4 because the offense involved a
violation of commodities law and, at the time of the
4
The 2010 version of the Sentencing Guidelines was in effect
when the defendants entered into their plea agreements and
pleaded guilty, but the 2011 version was in effect at their
sentencing hearings. The disputed offense-level increase
was in subsection (b)(17)(B)(i) of § 2B1.1 in the 2010 version,
but subsection (b)(18)(B)(i) in the 2011 version. We will refer
to the 2011 version, U.S.S.G. § 2B1.1(b)(18)(B)(i).
6 Nos. 12-1503 & 12-1504
offense, he was an officer of a futures commission mer-
chant. The presentence report (PSR) determined that
Walsh’s total offense level was 38, incorporating a 20-
level increase based on a loss amount of more than
$7 million but less than $20 million, and a 3-level reduc-
tion for acceptance of responsibility. Walsh had 4
criminal history points, placing him in criminal history
category III. Given a total offense level of 38 and a criminal
history category III, his guidelines range was 292 to
365 months. Because the statutorily authorized maxi-
mum sentence was less than the upper limit of the guide-
line range, the guideline range was restricted to 292 to
360 months. See U.S.S.G. § 5G1.1.
At sentencing, Walsh objected to the PSR’s conclusion
as to the loss amount. He argued that the loss was less
than $7 million, which would have yielded an 18-level
increase in offense level. The government maintained
that the loss was approximately $17,654,486, based on
the Metatrader records, reflecting unpaid One World
customer liabilities in that amount. The district court
agreed with the government, finding that the loss
amount was a “conservative $17,654,000.” The court
reduced that amount to $16,976,554, to account for
$677,932 in One World assets. Accordingly, the court
determined that Walsh’s guideline range was 292 to
360 months and imposed a term of 150 months’ impris-
onment, a term of supervised release, 200 hours of com-
munity service, a mandatory special assessment, and
ordered restitution of $16,976,554. The court addressed
the sentencing factors, see 18 U.S.C. § 3553(a), and ex-
Nos. 12-1503 & 12-1504 7
plained why it imposed a below-range sentence. In dis-
cussing the seriousness of the offense, the court said it
was an “extensive fraud scheme” involving “an intended
loss of 17 million or more.” Walsh Sent. Tr. 87.
Martin pleaded guilty to wire fraud, tax evasion, and
stealing money provided to a futures commission mer-
chant. In the written plea agreement, he agreed that the
loss exceeded $7 million but was less than $20 million,
thus increasing his offense level by 20, but he reserved
the right to contest the application of the 4-level increase
under U.S.S.G. § 2B1.1(b)(18)(B)(i). The PSR determined
that Martin should receive a 3-level reduction for ac-
ceptance of responsibility; thus, it determined that his
total offense level was 38. The PSR placed Martin in
criminal history category I. A total offense level of 38
and a criminal history category I yielded a guideline
range of 235 to 293 months.
At sentencing, Martin’s only objection to the PSR’s
guideline calculation was that U.S.S.G. § 2B1.1(b)(18)(B)(i)
did not apply because he was not “personally registered”
as an officer or director of One World. The district court
overruled the objection and applied the enhancement.
The court calculated Martin’s guideline range as 235 to
293 months, considered the sentencing factors, and im-
posed a below-range sentence of 204 months’ imprison-
ment, a term of supervised release, a mandatory special
assessment, and ordered Martin to pay $16,976,554
in restitution.
8 Nos. 12-1503 & 12-1504
II. Discussion
On appeal, Walsh contests the district court’s loss
determination and application of the 20-level enhancement
under U.S.S.G. § 2B1.1(b)(1)(K). Both defendants chal-
lenge the court’s application of the 4-level enhancement
under U.S.S.G. § 2B1.1(b)(18)(B)(i), arguing that they
were not officers or directors of a futures commission
merchant. Walsh also moves for leave to file a supple-
mental brief in order to challenge the court’s restitu-
tion order.
A. Loss Calculation
Walsh argues that the district court clearly erred in
finding that the loss caused by his offense was more than
$7 million but less than $20 million, and as a result, im-
properly calculated his guidelines range. He complains
that the government failed to prove intentional loss of
$17 million; he claims specifically that it failed to prove
his subjective intent. He also argues that evidence of
actual loss was unreliable, that the district court shifted
the burden of proof to him to prove errors in the govern-
ment’s loss calculation, and that customer margin
balances were an inappropriate measure of loss from
the offense.
“We review the district court’s interpretation and
application of the guidelines de novo and its findings of
fact for clear error.” United States v. Natour, 700 F.3d 962,
975 (7th Cir. 2012) (quotation and citation omitted). For
cases like this involving fraud, the defendant’s base
Nos. 12-1503 & 12-1504 9
offense level may be increased based on the amount of the
loss. U.S.S.G. § 2B1.1(b). The guideline provides that “[i]f
the loss [was] [m]ore than $7,000,000” but less than
$20,000,000 “add 20” to the offense level. U.S.S.G.
§ 2B1.1(b)(1)(K)-(L). The district court’s loss calculation
“need only be ‘a reasonable estimate of the loss.’ ” Natour,
700 F.3d at 976 (quoting U.S.S.G. § 2B1.1 cmt. n.3(C)).
We generally review the loss calculation for clear error.
Natour, 700 F.3d at 976. New arguments or theories not
raised in the district court, however, are forfeited and
reviewed for plain error. United States v. Westerfield, 714
F.3d 480, 488 (7th Cir. 2013). When a defendant
challenges a district court’s loss calculation, he must
“demonstrate that it is inaccurate” and “outside the
realm of permissible computations.” Natour, 700 F.3d at
978 (quotation and citation omitted).
“A defendant who stipulates to facts as part of a written
plea agreement also waives challenges to the district
court’s reliance on those facts.” United States v. Scott, 657
F.3d 639, 640 (7th Cir. 2011) (per curiam). As the gov-
ernment asserts, Walsh admitted both in his written
plea agreement and in his plea colloquy that he misap-
propriated “over $10 million in One World customer
funds” and “deposited approximately $10,019,619 in
One World funds in his personal Citibank account.”
Walsh Plea Agreement 5; see also Walsh Change of Plea
Tr. 28-29 & 39 (agreeing that he and Martin engaged in
a scheme to defraud One World customers and that,
through the scheme, they misappropriated over $10 million
in customer funds). Walsh’s challenge to the loss
amount runs head-on into these admissions.
10 Nos. 12-1503 & 12-1504
Walsh’s argument that the district court’s loss calcula-
tion was based on “intended loss” rather than “actual
loss” is raised for the first time on appeal. Thus, our
review is for plain error only. E.g., Westerfield, 714 F.3d
at 488. This argument has no support in the record;
thus, there is no error, plain or otherwise. The guideline
application notes state that “loss is the greater of the
actual or intended loss.” U.S.S.G. § 2B1.1, cmt. n.(3)(A).
The record establishes that the district court’s loss cal-
culation was based on the actual, not intended, loss.
See United States v. Dokich, 614 F.3d 314, 319 (7th Cir.
2010). The PSR based the 20-level increase under
2B1.1(b)(1)(K) on the defendants’ “misapprorpiat[ion of]
over $10 million in One World customer funds.” Walsh
PSR 10; see also id. at 7 (referring to the “unpaid aggregate
equity balance that exceeded $17,000,000”). Likewise,
the government’s loss calculation was based on
“$17,654,486 in unpaid customer liabilities,” which was
derived from an analysis of the Metatrader trading plat-
form records as of November 5, 2007. See, e.g., Gov’t
Sent. Memo 3; Walsh Sent. Tr. 43 (government counsel ex-
plaining that “[o]ur loss calculation” is based on “equity
balances”); id. at 46 (again referring to “an equity balance”
of $17,654,486).
Furthermore, at sentencing, in disputing the loss
amount, Walsh’s counsel acknowledged that the gov-
ernment’s loss calculation was based on claimed “unpaid
customer liabilities,” which came from an analysis of
the trading platform records. Walsh Sent. Tr. 10. As
Walsh himself points out, “[t]he only time the word ‘in-
tended’ was even mentioned at his sentencing hearing
Nos. 12-1503 & 12-1504 11
was when the judge said the ‘scheme had an intended
loss of over $17 million.’ ” Appellants’ Br. 19. Our review
of the entire record reveals that the district judge simply
misspoke in referring to an “intended loss”—a single
reference made not in determining the loss amount but
rather when discussing the § 3553 factors. The record
points us to one conclusion: the district court’s loss deter-
mination was based on actual loss.5
And contrary to Walsh’s argument, the record does
establish his intent to defraud One World customers. In
addition to admitting to misappropriating $10 million
in customer funds, Walsh admitted in his plea
agreement that he and Martin “transferred One World
customer margin funds to their personal accounts with
the express intent to steal, embezzle and convert those
funds.” Walsh Plea Agreement 6. He also admitted that
they “used the customer funds misappropriated to pur-
chase goods and services for themselves, and to finance
other personal business ventures.” Id. And Walsh’s ad-
mitted actions manifest his intent: He admitted to “mis-
leading existing and prospective One World customers,
lying to regulators about One World’s financial condi-
tion, and . . . making Ponzi-type payments to One
World’s pre-existing customers.” Id. at 7. More particularly,
Walsh admitted to sending emails to customers assuring
5
The court’s reliance on actual loss seems to have benefited
Walsh. The court stated that it thought the intended loss was
much greater than actual loss. See Martin Sent. Tr. 34-35 (“This
is a very massive fraud scheme, and the amount of intended
loss is astronomical. The amount of actual loss is really solid.”).
12 Nos. 12-1503 & 12-1504
them that One World would honor redemption
requests when he knew that it lacked sufficient funds to
do so. Id. at 11. Furthermore, he admitted that by
April 2006 and continuing until October 2007, at his
direction, One World “submitted false and misleading”
financial reports to the CFTC. Id. at 9.
Walsh contends that the evidence of actual loss
was unreliable and that the district court improperly
shifted the burden of proof to him. He challenges the
court’s reliance on Joy McCormack’s analysis of data from
Metatrader and argues that Daniel Colgan’s testimony
showed flaws in her analysis, including reliance on un-
known user accounts and losing trades. However, the
government’s loss analysis by McCormack, senior investi-
gator at the CFTC, excluded unknown user accounts.
See R.176, Gov’t Sent. Mem. 4-5 (“In an abundance of
caution, the government subtracted test and [trading
group accounts] from its loss calculation spreadsheet.”).
And Walsh had no evidence at sentencing to support his
claim regarding losing trades. See Walsh Sent. Tr. 40.
Moreover, the McCormack loss analysis was “an
incredibly conservative estimate,” id. at 46, because One
World was a fraud as a whole; thus, the loss amount
could have been much higher. As well, the loss analysis
only accounted for customers who were trading in forex
on the Metatrader platform; it did not account for
forex customers who were not trading on that platform
or for customers who traded futures. Thus, the govern-
ment’s loss analysis represented the loss to only a
subset of One World customers.
Nos. 12-1503 & 12-1504 13
Beyond the specific claims noted above, Walsh offers
only general criticisms of McCormack’s analysis rather
than detailed factual objections. His unsupported,
general objections are insufficient to show that the evi-
dence of loss was unreliable or that the court shifted
the burden of proving (or disproving) the loss amount
to him. See United States v. Gordon, 495 F.3d 427, 431 (7th
Cir. 2007) (“Although the burden is on the government
to determine the amount of loss, once the government
has met its burden of proving loss, the defendant’s
wholly unsubstantiated statements are not enough to
counter or even question the court’s acceptance of the
government’s proof of loss.”).
According to Walsh, however, his concessions estab-
lish a loss amount much lower than $17 million. He
focuses exclusively on his admission to a $1.5 million
wire transfer identified in his plea agreement as one
example where One World customers who, based on the
materially false and misleading representations of
Walsh and Martin, continued to provide margin funds
for future forex trading. Walsh Plea Agreement 8. In
doing so, Walsh completely ignores other admissions in
his plea agreement, including that he “misappropri-
ated over $10 million in One World customer funds” by
depositing “funds in his personal Citibank account.” Id.
at 5. We, like the district court, take all of Walsh’s ad-
missions into account.
Next, Walsh maintains that margin balances were an
inappropriate measure of loss from the offense, asserting
that customers who had margin balances in November
14 Nos. 12-1503 & 12-1504
2007 were not necessarily victims of fraud. He claims
that their losses were not directly caused by the
defendants and suggests that their losses may have been
due to the NFA’s formal action against One World,
which precipitated a “run-on-the-bank”; “premature
withdrawals by Martin and Walsh”; and CFTC’s shut
down of One World in December 2007. Because Walsh
did not raise these arguments in the district court, we
review for plain error. See Westerfield, 714 F.3d at 488.
Given the broad range of the loss amount that yields
the 20-level increase in offense level, “there’s . . . no need
to determine with precision where within that span the
loss falls.” United States v. Caputo, 517 F.3d 935, 943 (7th
Cir. 2008). The loss determination “does not require
more than an estimate.” Id. Thus, the district court need
not identify specific victims who were refused margin
redemption requests for purposes of calculating the
loss. Cf. id. (contrasting loss determination for purposes
of § 2B1.1 which may be based on an estimate with resti-
tution which “requires an exact figure” and must
be determined “one customer at a time”).
Furthermore, it was the defendants’ own criminal
conduct that precipitated the NFA’s formal action against
One World, the “run-on-the-bank,” and the CFTC’s shut
down. Besides, Walsh offers no evidence to show that the
appointment of a receiver would have made a difference
in the loss to One World customers, specifically, that
the loss would have fallen below the $7 million mark
required for the 20-level enhancement. Nor has Walsh
shown that the defendants could have repaid any funds
Nos. 12-1503 & 12-1504 15
allegedly “prematurely” withdrawn. See, e.g., United
States v. Mount, 966 F.2d 262, 266 (7th Cir. 1992) (“An
embezzler who abstracts $10,000 to invest in the stock
market causes a ‘loss’ of $10,000 even if he plans to re-
pay.”). We add that Walsh’s characterization of the de-
fendants’ misappropriation of funds as “premature
withdrawals” contradicts his admission that they “trans-
ferred One World customer margin funds to their
personal accounts with the express intent to steal, embez-
zle and convert those funds.” Walsh Plea Agreement 6.
Moreover, as an alternative basis for its loss calculation,
the district court used the gain to the defendants from
their offenses. The guideline provides that “[t]he court
shall use the gain that resulted from the offense as an
alternative measure of loss only if there is a loss but it
reasonably cannot be determined.” U.S.S.G. § 2B1.1 cmt.
n.3(B). The district court found that the gain resulting
from the defendants’ offenses was $10 million. Walsh
Sent. Tr. 51 (“We certainly have a hard-figure loss of
$10 million going out to the two defendants . . . .”). This
finding is not clearly erroneous. As noted, Walsh
admitted to “misappropriat[ing] over $10 million in
One World customer funds,” “deposit[ing] approxi-
mately $10,019,619 in One World funds in his personal
Citibank account,” and “us[ing] the customer funds
misappropriated to purchase goods and services for
[Walsh and Martin], and to finance other personal
business ventures.” Thus, if the loss could not be rea-
sonably determined, the district court could rely on
the gain to the defendants as an alternative basis on
which to find the amount of loss. The defendants’ gain
16 Nos. 12-1503 & 12-1504
of $10 million easily fits within the broad range of $7 to
$20 million in U.S.S.G. § 2B1.1(b) for the 20-level enhance-
ment.
We conclude that the district court properly relied
on Walsh’s admissions and the evidence presented at
sentencing to find a loss amount of approximately
$17 million and that its calculation was a reasonable
estimate of the loss. Therefore, the court did not err in
determining the loss amount—an amount well within
the range in U.S.S.G. § 2B1.1(b)(1)(K)—and properly
increased Walsh’s offense level by 20.
Walsh sought leave to file a supplemental brief in
order to challenge the court’s restitution order. His
motion for leave to file a supplemental brief is
G RANTED . However, his challenge to the district court’s
restitution order comes far too late. He did not object to
the restitution order at sentencing, thus at the least for-
feiting any challenge to that order. And after sentencing,
the government moved to present the court with victim
restitution information, advising that it had underesti-
mated the total losses attributable to the defendants’
conduct. Neither defendant objected to the restitution
amount, and the district court issued an Amended Judg-
ment. If Walsh’s challenge to the restitution order was
not waived but only forfeited, we would review the
restitution order for plain error. Walsh’s challenge to
the restitution order is succinctly stated as this: “The
restitution order . . . was based on the same outstanding
margin balances that the government submitted to
prove loss.” Given our conclusion that the district court
Nos. 12-1503 & 12-1504 17
did not err in finding the loss amount, we find no plain
error in the restitution order.
B. Whether One World was a Futures Commission
Merchant
Martin argues that the district court erred in finding that
he was an officer or director of a futures commission
merchant and, on the basis of this finding, increasing
his offense level by 4 under U.S.S.G. § 2B1.1(b)(18)(B)(i).
He maintains that One World was not a futures com-
mission merchant; therefore, he could not be an officer
or director of a futures commission merchant. Walsh
adopts Martin’s argument. Because Walsh did not object
to the court’s application of the enhancement, as he
concedes, we review for plain error. See Westerfield,
714 F.3d at 488.
The guideline calls for a 4-level increase in offense
level “[i]f the offense involved—a violation of commodities
law and, at the time of the offense, the defendant was (i)
an officer or director of a futures commission mer-
chant.” U.S.S.G. § 2B1.1(b)(18)(B)(i). The defendants do
not dispute that the offenses involved a violation of
commodities law or that they were officers or directors
of One World. We reject their contention that One
World was not a futures commission merchant.
“A defendant who stipulates to facts as part of a
written plea agreement also waives challenges to the
district court’s reliance on those facts.” Scott, 657 F.3d at
640. Walsh and Martin admitted in their written plea
agreements that One World “was a futures . . . trading
18 Nos. 12-1503 & 12-1504
company,” Plea Agreements 3, that “One World acted as
a futures commission merchant (“FCM”) registered with
the CFTC,” id. that, “[a]s a FCM, One World was
required to file a monthly financial report with the
CFTC,” id. at 9, and that the “CFTC generally used these
financial reports to insure . . . that a FCM like One World
was compliant with its regulatory . . . requirements,” id.
Walsh pleaded guilty to filing a false report required
of futures commission merchants. He admitted in his
written plea agreement that his offense level should be
increased by 4 under U.S.S.G. § 2B1.1(b)(18)(B)(i)
because “the offenses of conviction involved a violation
of commodities law and, at the time of the offense, the
defendant was an officer of a futures commission mer-
chant.” Walsh Plea Agreement 17. At his plea hearing,
Walsh expressed his understanding that the 4-level in-
crease applied “because . . . at the time of the offense[,
he] was an officer of a futures commission merchant.”
Walsh Plea Hr’g 12. In addition, he did not merely fail
to object to application of § 2B1.1(b)(18)(B)(i); in his
written plea agreement, he agreed that it should be
applied and he stipulated to the facts supporting its
application. Thus, Walsh expressly waived any chal-
lenge to application of the 4-level enhancement.
Likewise, Martin waived any challenge to the district
court’s reliance on the fact that One World was a
futures commission merchant. Not only did Martin not
object at his sentencing to a finding that One World was
a futures commission merchant, he admitted that fact
in his written plea agreement. Thus, the defendants
waived challenges to the district court’s reliance on the
Nos. 12-1503 & 12-1504 19
admitted fact that One World was a futures commission
merchant. See Scott, 657 F.3d at 640.
But even if the defendants merely forfeited the argu-
ment that One World was not a futures commission
merchant, we find no error. The guideline points to the
Commodity Exchange Act for the definition of “futures
commission merchant,” see U.S.S.G. § 2B1.1, app. n.14(A).
Citing the definition in effect at the time of the offense,
see 7 U.S.C. § 1a(20) (2007) (defining a “futures commis-
sion merchant” to include a company that “is engaged
in soliciting or in accepting orders for the purchase or
sale of any commodity for future delivery”), the defen-
dants argue that One World had to be involved in the
purchase or sale of any commodity for future delivery.
They then maintain that under CFTC v. Zelener, 373 F.3d
861 (7th Cir. 2004), One World was not a “futures com-
mission merchant.” Zelener held that rollovers of foreign
currency sales were not contracts of sale of a commodity
for future delivery but were instead spot sales. Id. at
869. Zelener is inapposite as it was strictly a forex case.
Here, the defendants acknowledge that Walsh “had
some carryover futures clients that followed him to
One World,” Appellants’ Br. 34 n.9, and that “One World
had some futures customers,” id. at 36.
Although the defendants argue that this case was “solely
about the forex side of the business,” id. at 34 n.9,
their claim is not supported by the record. Count Four of
the information charged Walsh with making false and
misleading statements to the CFTC in a required filing
(Form 1-FR-FCM) filed on behalf of One World. Specifi-
20 Nos. 12-1503 & 12-1504
cally, the count charges that he falsely reported One
World’s assets and liabilities, knowing that his report
was false in violation of 7 U.S.C. § 13(a)(3). Thus, Walsh
pleaded guilty to making false statements to the CFTC
in a report required of registered futures commission
merchants. See Walsh PSR 7 (“As a FCM, One World
was required to file a monthly financial report with the
CFTC, known as a Form 1-FR-FCM . . . .”). And Martin
benefited from the fraudulent filings with the CFTC.
The false statements in the reports were an important
part of the scheme to defraud, concealed the fraud from
the CFTC, and allowed the defendants to solicit
customers and continue their misappropriation of cus-
tomer margin funds. In addition, the defendants pleaded
guilty to the charged scheme, which included the prepara-
tion and submission of monthly financial reports with
the CFTC—Forms 1-FR-FCM. And application of the
enhancement furthers the purpose of the 4-level increase,
which is to impose higher sentences on defendants who
hold themselves out as officers or directors of a “futures
commission merchant” regulated by the CFTC in order
to further their fraud and attract potential victims.
The district court did not err in finding that One
World was a “futures commission merchant.” As noted,
the defendants acknowledge that Walsh “had some
carryover futures clients that followed him to One
World” and that “One World had some futures custom-
ers.” Their PSRs provide factual support for the finding
that One World provided services for both futures and
forex trading to its customers. See Walsh PSR 6
(describing One World as a “futures and [forex] trading
Nos. 12-1503 & 12-1504 21
company”); Martin PSR 6 (same). The presence of these
facts supporting the guideline’s application distinguishes
this case from United States v. Jaimes-Jaimes, 406 F.3d 845,
846-47 (7th Cir. 2005). There, we found plain error in
the application of a sentence enhancement based on an
erroneous view of a fact—that the defendant had been
convicted of a crime of violence. Id. at 849-50. In addition,
the government and we had focused on the lack of a
specific objection to the presentence report rather than any
admission in the plea agreement. Id. at 847-48. The defen-
dants do not contend that a company which provides
futures trading services fails to qualify as a “futures
commission merchant.” The district court did not err in
applying the 4-level increase to the defendants as
officers or directors of a futures commission merchant.
IIII. Conclusion
For the foregoing reasons, we A FFIRM the defendants’
sentences.
7-23-13