Fed. Sec. L. Rep. P 90,483, 12 Fla. L. Weekly Fed. C 865united States of America, Plaintiff-appellee, v. Rodney Hedges, Defendant-appellant, 175 F.3d 1312 (11th Cir. 1999)

The defendant, Rodney Hedges, pled guilty to one count of securities fraud, in violation of 15 U.S.C. § 78j(b) (1994) and 17 C.F.R. § 240.10b-5 (1998). The district court determined that the loss attributable to Hedges' fraudulent conduct exceeded $92 million, and sentenced him to 84 months of imprisonment based on that loss. Hedges appeals his sentence on two grounds. First, Hedges claims that there was insufficient evidence that he reasonably foresaw a $92 million loss, and thus the district court erred by sentencing him based on that amount. Second, Hedges asserts that the Government violated its obligation in the plea agreement to recommend a sentence based on a loss of only $6.8 million. We affirm.

From 1985 until 1992, Hedges was involved in a conspiracy fraudulently to raise the price of stock in Cascade International, Inc. ("Cascade"), and sell the overvalued stock to the public. During this period, Hedges was a registered representative at a number of brokerage firms that were "market makers"¹  for stock in Cascade.

To accomplish their scheme, Hedges' co-conspirators, Victor and Jeannette Incendy, purchased substantially all of Cascade's outstanding stock. The conspirators²  then disseminated false information to the public that stated, among other things, that Cascade operated a large number of cosmetics and women's apparel stores and that these operations were highly profitable. In reality, Cascade operated only a few stores, its business ventures generated almost no revenue, and the company was operating at an enormous loss.

As a result of the conspirators' misrepresentations, the price of Cascade's stock rose from $.25 per share to a high of $11.75 between 1985 and 1991. As the stock's value increased, the conspirators secretly sold their shares in the company. When their fraudulent conduct came to light in November 1991, approximately eighteen million shares of Cascade stock held by the public immediately became worthless.

Hedges played an important role in several aspects of this scheme. First, to conceal the fact that Cascade's principals were selling their shares in the company, Hedges opened a number of accounts using fictitious names at the firms where he was employed. Hedges' co-conspirators then placed their Cascade stock in these accounts and Hedges sold the stock. From 1987 until 1991, Hedges sold millions of shares through these accounts and received approximately $600,000 in kickbacks for his efforts.

Second, Hedges facilitated these stock sales by misleading the stock transfer agent into improperly issuing "freely tradable" shares rather than restricted shares, or improperly removing the restrictive legend from the stock. As a result of this deception, the conspirators were able to avoid federal securities laws that would have hampered their ability to sell their stock.

Third, Hedges helped disseminate false information about Cascade in order to induce the public to invest in the company. Hedges and the other conspirators distributed this information by issuing fraudulent financial statements, audit opinions, and other documents to potential investors, brokerage firms, and the media. Hedges also prepared and disseminated "independent" research reports that recommended investing in Cascade's securities. These reports purported to provide his objective analysis of Cascade as an investment opportunity; they failed to disclose Cascade's true financial condition, the fact that Cascade's principals were secretly selling all of their shares in the company, or that Hedges was receiving large kickbacks from these sales of Cascade securities.

On October 6, 1994, a federal grand jury returned a 132-count indictment against Hedges and his co-conspirators. Hedges was charged with 59 of these counts.³  On January 24, 1997, Hedges entered into a written plea agreement with the Government. Hedges agreed to plead guilty to count five of the indictment, which charged him with securities fraud in connection with the sale of 140,000 shares of Cascade, in violation of 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5. In return, the Government agreed to dismiss the remaining counts of the indictment against him. Hedges and the Government also agreed "to recommend that [Hedges'] base offense level be increased by fourteen (14) levels, pursuant to Guidelines Section 2F1.1,⁴  because the losses relating directly to [Hedges'] fraudulent conduct was [sic] approximately $6,800,000."⁵  (Emphasis added). The plea agreement did not bind the parties in regard to the total loss that the public suffered as a result of the conspiracy.

After the district court accepted Hedges' guilty plea, its probation office prepared a presentence investigation report ("PSI"). Although the PSI noted that both Hedges and the Government recommended only a 14 level increase to Hedges' base offense level pursuant to the plea agreement, the PSI recommended an 18 level increase; the PSI stated that the total loss caused by the fraudulent scheme exceeded $92 million,⁶  and concluded that Hedges was responsible for the entire sum (rather than $6.8 million) under U.S.S.G. § 2F1.1(b) (1).⁷ 

At the sentencing hearing on April 11, 1997, the court concluded that the total loss that resulted from the fraudulent scheme exceeded $92 million. Further, the court found that Hedges played a central role in the conspiracy, and therefore held him responsible for the entire loss.⁸  Based on this loss, the court increased Hedges' base offense level by 18 levels⁹  and sentenced him to 84 months of incarceration.

Hedges first challenges his sentence on the ground that there was insufficient evidence to sentence him based on a loss of $92 million. He claims that the evidence was insufficient for two reasons.

First, Hedges contends that the district court improperly relied on conclusory statements in the PSI for its decision to sentence him based on the entire loss. Hedges points out that under U.S.S.G. § 1B1.3(a) (1), he could not be sentenced based on a $92 million loss unless the Government proved that he caused (or "reasonably foresaw" the acts that caused) that loss. The only "evidence" the district court relied on to support its finding that he was responsible for the entire loss was the PSI's conclusory statements that described his role in the conspiracy. Hedges asserts that these statements were not a substitute for evidence, see United States v. Lawrence, 47 F.3d 1559, 1567-68 (11th Cir. 1995) (holding that the evidence was insufficient to support the district court's findings when the court relied on conclusory statements in the PSI that were not supported with facts), and that the evidence therefore was insufficient to support the court's decision to sentence him based on the entire loss.

We disagree that the court improperly relied on the PSI's conclusory statements. Unlike the defendants in Lawrence, Hedges did not object to the statements in the PSI on which the district court relied. Thus, these statements were undisputed, and the court was permitted to rely on them despite the absence of supporting evidence.¹⁰ 

These undisputed statements were sufficient to support the court's finding that Hedges caused (or reasonably foresaw) the acts that resulted in a $92 million loss because they established that he played an important role in the overall conspiracy. First, the PSI showed that Hedges helped disseminate false information about Cascade that created a market for the worthless stock. Because it was this false information that induced the public to invest in Cascade (and thereby suffer $92 million in losses), Hedges' action made him responsible for the entire loss that the public suffered from the fraudulent scheme.

Second, the PSI established that Hedges played a central role in selling the conspirators' stock and covering up their illegal activities; Hedges helped deceive the stock transfer agent so that the conspirators could avoid federal securities laws that would have prevented them from selling their Cascade shares, and he established accounts in fictitious names so that the conspirators could conceal their illegal stock sales. These actions also made him responsible for the entire loss caused by the conspiracy; without Hedges' assistance, the conspirators could not have sold their shares and thereby have harvested the fruits of their fraudulent activities. We therefore conclude that the undisputed statements in the PSI were a sufficient basis for the court's finding that Hedges was responsible for the entire loss that resulted from the scheme.

Hedges' second contention regarding the sufficiency of the evidence is that the Government failed to prove that he had the requisite intent to cause a $92 million loss because the evidence did not show that he knew the stock was worthless. Hedges points out that the PSI's $92 million loss estimate was based on the fact that Cascade's stock had no actual value; Hedges contends that he could not be held responsible for the $92 million loss unless the Government proved that he knew the stock was worthless. This, Hedges argues, the Government failed to do.¹¹ 

We reject Hedges' assertion that the amount of loss that a sentencing court calculates under U.S.S.G. § 2F1.1 can be no greater than the loss that the defendant knew would be inflicted. Knowledge is not necessarily relevant to the amount of loss that is attributed to a defendant for sentencing purposes. We have previously held that " [d]efendants sentenced under section 2F1.1 generally receive 'an offense level increase based on the greater of: (1) the actual loss associated with a crime; or (2) the intended loss.' " United States v. Bald, 132 F.3d 1414, 1416 (11th Cir. 1998) (quoting United States v. Dominguez, 109 F.3d 675, 676 (11th Cir. 1997)) (emphasis added); accord U.S.S.G. § 2F1.1, comment. (n.8). Because the actual loss ($92 million) was greater than the loss that Hedges subjectively believed would result from the scheme, the court correctly sentenced him based on the actual loss.

Hedges next contends that the Government violated its obligation under the plea agreement to recommend that he be sentenced based on a loss of only $6.8 million. Hedges claims that the Government took three actions (either at the sentencing hearing or in its response to his written objections to the PSI) that breached the agreement: First, the Government endorsed the PSI's $92 million total loss estimate and put on evidence at the sentencing hearing to support that estimate; second, the Government contended that Hedges played a "crucial role" in the conspiracy;¹²  and third, the Government disputed his narrow interpretation of "relevant conduct" under U.S.S.G. § 1B1.3.¹³  Hedges contends that the Government's conduct invited the court to sentence him based on the entire $92 million loss rather than on a loss of only $6.8 million.

After imposing sentence, the district court offered Hedges the opportunity to object to its findings of fact and its application of the Guidelines, and to the sentence imposed. See United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993) (en banc). Because Hedges failed to raise this objection at that time, it is barred absent plain error.¹⁴  See United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).¹⁵ 

We find no such error for the simple reason that the Government did not violate the plea agreement. The agreement did not bind the Government regarding the total loss that resulted from the scheme, the level of Hedges' involvement in the conspiracy, or the proper interpretation of "relevant conduct." Thus, the Government was free to engage in the conduct of which Hedges complains. The plea agreement obligated the Government to recommend that Hedges be sentenced based on a $6.8 million loss. The Government repeatedly made that recommendation during the sentencing hearing and therefore fulfilled its obligation.

For the foregoing reasons, Hedges' sentence is AFFIRMED.