United States v. Alvin Wilkinson

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1037

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALVIN WILKINSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-CR-00028-1 — Sharon Johnson Coleman, Judge.

____________________

SUBMITTED JANUARY 15, 2021* — DECIDED JANUARY 25, 2021

____________________

Before WOOD, HAMILTON, and ST. EVE, Circuit Judges.

* We had scheduled oral argument twice in this case. Defendant’s

counsel did not appear for either argument. On the first date, November

12, 2020, we heard an abbreviated argument from the government. Upon

further consideration, we have concluded that the briefs presented the is-

sues adequately and the decisional process would not be significantly

aided by oral argument. See Fed. R. App. P. 34(a)(2)(C).

2 No. 20-1037

HAMILTON, Circuit Judge. Hedge-fund manager Alvin Wil-

kinson operated a Ponzi scheme to hide from his investors the

truth that he had lost most of their money in the 2008 financial

crisis. The scheme was eventually uncovered and halted in

2016 when the Commodity Futures Trading Commission

(CFTC) filed a civil enforcement action against Wilkinson and

his funds. In early 2017, Wilkinson was charged by federal in-

dictment with mail and wire fraud. He pleaded guilty to one

count of wire fraud. The government dropped the other

charges.

At sentencing, the district court applied a four-level sen-

tencing guideline enhancement under U.S.S.G. § 2B1.1(b)(20)

because it found that Wilkinson’s offense qualified as “a vio-

lation of commodities law” by a “commodity pool operator.”

Wilkinson argues on appeal that the court erred in applying

this enhancement because he was not a “commodity pool op-

erator” as that term is defined in the Commodity Exchange

Act. We affirm. Wilkinson’s plea agreement and presentence

investigation report provided facts showing that Wilkinson

was a commodity pool operator.

I. Factual and Procedural Background

From 1999 to 2016, appellant Alvin Wilkinson convinced

approximately 30 friends, family members, and colleagues to

invest about $13.5 million in two hedge funds that he created

and managed, Wilkinson Financial Opportunity Fund

(WFOF) and Chicago Index Partners (CIP). By 2008, Wil-

kinson had lost the vast majority of his investors’ money. To

conceal these losses, Wilkinson told his investors that the

funds’ assets included a $12 million note with an Australian

hedge fund named Pengana. The “Pengana Note” did not ac-

tually exist. From 2008 to 2015, Wilkinson tricked his investors

No. 20-1037 3

into believing this lie by providing fraudulent K-1 federal in-

come tax forms showing that their investments were increas-

ing in value from interest payments on the imaginary

Pengana Note. Nevertheless, some investors became suspi-

cious and demanded that Wilkinson return their investments.

To pay back these suspicious investors, Wilkinson de-

frauded still more investors. From 2011 to 2015, he solicited

about $3 million from new investors using private placement

memoranda (PPMs) falsely saying that Wilkinson intended to

use their investments “to trade a variety of stock indexes and

options, futures, and options on futures on such stock indexes

on a variety of national securities and futures exchanges.”

This series of fraudulent investments included the specific in-

stance of wire fraud alleged in Count 1, to which Wilkinson

pleaded guilty. Wilkinson’s plea declaration admitted the fol-

lowing for Count 1:

On or about March 19, 2014, I did execute the

scheme by knowingly causing the transmission

of an interstate wire transfer of $115,000 from

Investor A’s account … . Investor A made the

investment in CIP via the wire transfer based

upon the representations set forth in the CIP

PPM, which Investor A had received prior to

making his investment, and based upon my rep-

resentations that I, as the general partner of CIP,

would use Investor A’s investment to pursue

the options trading strategies described in the

CIP PPM, when I well knew that I was not going

to use Investors’ funds to pursue any options

trading strategy.

4 No. 20-1037

Wilkinson actually intended to use these new funds to make

Ponzi payments to his original investors. Wilkinson also used

investor funds to pay for personal expenses, including mort-

gage and rent payments on his properties.

In June 2016, the CFTC filed a civil enforcement action

against Wilkinson seeking injunctive relief, disgorgement,

and other civil penalties. On November 22, 2016, Judge Ken-

dall entered a default judgment against Wilkinson conclud-

ing, among other things, that his actions constituted fraud by

a commodity pool operator in violation of 7 U.S.C. § 6o(1). See

CFTC v. Wilkinson, No. 16-CV-6734, 2016 WL 8256406, at *5

(N.D. Ill. Nov. 22, 2016).

In January 2017, Wilkinson was charged with mail and

wire fraud under 18 U.S.C. §§ 1341 and 1343. In 2019, he

reached a plea agreement. He pleaded guilty to one count of

wire fraud; the government dismissed the other charges. As

noted, his written plea declaration admitted that he sent in-

vestors fraudulent K-1 tax forms and induced an investment

of $115,000 using fraudulent PPMs. Wilkinson did not object

to any of the factual information in his presentence investiga-

tion report, which further detailed his offenses.

At sentencing, the district court calculated Wilkinson’s

guideline range using § 2B1.1 of the Sentencing Guidelines.

The court started with a base offense level of 7 and then added

several enhancements, including a four-level enhancement

because the offense “involved … a violation of commodities

law and, at the time of the offense, the defendant was … a

commodity pool operator.” U.S.S.G. § 2B1.1(b)(20)(B).

Wilkinson objected to this enhancement, arguing that he

did not qualify as a commodity pool operator. His theory was

No. 20-1037 5

that he traded only broad-based indexes like S&P 500 futures,

which fit the Commodity Exchange Act’s definition of an “ex-

cluded commodity” because such broad-based indexes are

“not based … on the value of a narrow group of commodi-

ties.” See 7 U.S.C. § 1a(19) (defining “excluded commodity”

under Commodity Exchange Act).

The district court (Judge Coleman) was not persuaded.

The judge applied the enhancement, citing the factual basis

for Wilkinson’s plea, Judge Kendall’s handling of the same is-

sue in the civil enforcement action, and the arguments at sen-

tencing. Wilkinson appeals the district court’s application of

the enhancement. The district judge did not give any signal

that this rather technical issue under the Sentencing Guide-

lines would not affect the ultimate sentence under 18 U.S.C.

§ 3553(a), so we address the merits of the guideline issue.

II. Analysis

“We review the district court’s application of the sentenc-

ing guidelines de novo and its factual findings for clear error.”

United States v. Lewis, 842 F.3d 467, 476 (7th Cir. 2016), quoting

United States v. Guidry, 817 F.3d 997, 1007–08 (7th Cir. 2016).

Section 2B1.1(b)(20) of the Sentencing Guidelines states in rel-

evant part:

If the offense involved—(A) a violation of secu-

rities law and, at the time of the offense, the de-

fendant was … (iii) an investment adviser, or a

person associated with an investment adviser;

or (B) a violation of commodities law and, at the

time of the offense, the defendant was … (ii) a

commodities trading advisor; or (iii) a commod-

ity pool operator, increase by 4 levels.

6 No. 20-1037

The enhancement applies if Wilkinson (1) violated commodi-

ties law as a commodity pool operator, (2) violated commod-

ities law as a commodities trading advisor, or (3) violated se-

curities law as an investment advisor. We agree with the dis-

trict court that Wilkinson qualifies for the enhancement as a

commodity pool operator. We need not reach the govern-

ment’s alternative arguments under the second and third pos-

sibilities.

A. Wilkinson Qualified as a Commodity Pool Operator

The commentary to § 2B1.1(b)(20) instructs that the term

“commodity pool operator” uses the definition in the Com-

modity Exchange Act and that a violation of “commodities

law” includes a violation of the Commodity Exchange Act (7

U.S.C. § 1 et seq.). See U.S.S.G. § 2B1.1 cmt. n.16(A). Under the

Commodity Exchange Act, a “commodity pool operator” is

defined to include “any person—(i) engaged in a business that

is of the nature of a commodity pool, investment trust, syndi-

cate, or similar form of enterprise, and who, in connection

therewith, solicits, accepts, or receives from others, funds, se-

curities, or property … for the purpose of trading in commodity

interests, including any—(I) commodity for future delivery, se-

curity futures product, or swap … .” 7 U.S.C. § 1a(11)(A) (em-

phasis added). The Act, in turn, defines a “security futures

product” as “a security future or any put, call, straddle, op-

tion, or privilege on any security future.” § 1a(45).

Under these definitions, Wilkinson qualified as a com-

modity pool operator if he solicited investment funds “for the

purpose of trading in … any … security futures product.”

§ 1a(11)(A). The private placement memoranda that Wil-

kinson used to solicit investors show that he did exactly that.

Although the 1999 Limited Partnership Agreement for the

No. 20-1037 7

Wilkinson Financial Opportunity Fund claimed that “the

Partnership does not presently intend to operate as a com-

modity pool,” elsewhere the private placement memoranda

repeatedly made clear that the funds intended to trade in fu-

tures products that would bring Wilkinson under the defini-

tion of a commodity pool operator. The private placement

memoranda said that the funds intended to “trade a variety

of stock indexes and options, futures, and options on futures on

such stock indexes.” They also said: “The Partnership is au-

thorized to act as an investor or trader in … futures and op-

tions thereon.” And they listed S&P 500 futures as a specific

futures product that could be traded, and that could possibly

“cause [the Wilkinson Financial Opportunity Fund] to be-

come a Commodity Pool.”1

These documents provide sufficient evidence that the

fraudulent funds were operated, at least in part, “for the pur-

pose of trading in … any … security futures product.” 7 U.S.C.

§ 1a(11)(A). That is enough for Wilkinson to qualify as a com-

modity pool operator under the Guidelines. Cf. United States

v. Ramunno, 289 F. Appʹx 359, 361 (11th Cir. 2008) (finding that

defendant was a commodity pool operator under

§ 2B1.1(b)(20) based on “uncontested factual findings that

[the defendant] (a) solicited money from investors by holding

himself out as a successful commodities trader, (b) accepted

money from investors, (c) advised investors in the merits of

1 Wilkinson does not object to the accuracy of these documents, which

were exhibits to his presentence report, so the district court could rely

upon them at sentencing. See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing,

the court … may accept any undisputed portion of the presentence report

as a finding of fact.”).

8 No. 20-1037

trading in commodities, and (d) issued earning reports to in-

vestors.”).

To avoid this conclusion, Wilkinson relies on the Com-

modity Exchange Act’s definition of an “excluded commod-

ity” in 7 U.S.C. § 1a(19), focusing on the exclusion for futures

indexes that are “not based in substantial part on the value of

a narrow group of commodities.” He argues that he sold only

broad-based futures products that the Act defines as “ex-

cluded commodities.”2

2 Here is the full definition in 7 U.S.C. § 1a(19):

The term “excluded commodity” means--

(i) an interest rate, exchange rate, currency, security, security

index, credit risk or measure, debt or equity instrument, index or

measure of inflation, or other macroeconomic index or measure;

(ii) any other rate, differential, index, or measure of economic

or commercial risk, return, or value that is--

(I) not based in substantial part on the value of a narrow

group of commodities not described in clause (i); or

(II) based solely on one or more commodities that have no

cash market;

(iii) any economic or commercial index based on prices, rates,

values, or levels that are not within the control of any party to the

relevant contract, agreement, or transaction; or

(iv) an occurrence, extent of an occurrence, or contingency

(other than a change in the price, rate, value, or level of a com-

modity not described in clause (i)) that is--

(I) beyond the control of the parties to the relevant contract,

agreement, or transaction; and

(II) associated with a financial, commercial, or economic con-

sequence.

No. 20-1037 9

Wilkinson’s reliance on this definition is misplaced. Under

the Act, “excluded commodity” is a specialized term that

makes only three appearances in the entire Act. None of them

relate to the Act’s fraud provision or its definition of a com-

modity pool operator, which are the provisions upon which

Wilkinson’s enhancement actually turns. See 7 U.S.C. § 7a-

2(c)(5)(C)(i) (“excluded commodities” relevant to “[s]pecial

rule for review and approval of event contracts and swaps

contracts”); 7 U.S.C. § 2(c)(1)(F) & (c)(2)(A)(i) (removing CFTC

jurisdiction over “repurchase transactions in an excluded

commodity” only if they are not “contract[s] of sale of a com-

modity for future delivery (or an option on such a contract)

… that is executed or traded on an organized exchange”); 7

U.S.C. § 6a(a)(2)(A) (“[W]ith respect to physical commodities

other than excluded commodities …, the Commission shall …

establish limits on the amount of positions … that may be

held … .”).

Broad-based futures indexes are thus “excluded commod-

ities” only for purposes of this handful of statutory require-

ments. Broad indexes remain “commodities” under the Act as

a whole, including its fraud provisions and the definition of a

commodity pool operator. Wilkinson has not cited any au-

thority holding or even suggesting that the term “excluded

commodity” limits the definition of a “commodity pool oper-

ator.” Rather, the Act explicitly defines “commodity pool op-

erator” to include people who solicit funds to trade “any …

security futures product”—even broad-based futures prod-

ucts that qualify as “excluded commodities” for other pur-

poses in other statutory contexts. 7 U.S.C. § 1a(11)(A).

Wilkinson also claims he did not actually trade the com-

modities that the private placement memoranda said would

10 No. 20-1037

be traded. Given what he said in soliciting investments, it

does not matter whether he actually traded those commodi-

ties. The definition of a commodity pool operator hinges on

whether the person “solicits … funds … for the purpose of trad-

ing in commodity interests.” 7 U.S.C. § 1a(11)(A) (emphasis

added). Actual trading of futures is not required. See CFTC v.

Equity Fin. Grp. LLC, 572 F.3d 150, 158 (3d Cir. 2009) (holding

that “the actual trading of commodity futures is not required”

for a person to be deemed a commodity pool operator).

Finally, Wilkinson argues that Judge Coleman gave im-

proper collateral estoppel effect to Judge Kendall’s previous

finding in the CFTC’s civil enforcement action that he quali-

fied as a commodity pool operator. As we read the sentencing

transcript, Judge Coleman did not give collateral estoppel ef-

fect to that finding but reached her own finding on the issue.

Judge Coleman said that the civil case was persuasive, but she

also clarified that there was evidence “even in the … factual

basis for the plea” and “also based on arguments here” that

Wilkinson was a commodity pool operator. This portion of

the transcript shows that Judge Coleman did not give estop-

pel effect to Judge Kendall’s findings.

We therefore agree with the district court that, for pur-

poses of applying the § 2B1.1(b)(20) guideline enhancement,

Wilkinson qualified as a commodity pool operator as defined

by the Commodity Exchange Act.

B. Wilkinson Violated Commodities Law

Because the § 2B1.1(b)(20) enhancement applies “if the of-

fense involved … a violation of commodities law and, at the

time of the offense, the defendant was … a commodity pool

No. 20-1037 11

operator,” the remaining question is whether Wilkinson’s of-

fense violated the Commodity Exchange Act. There seems to

be no dispute on this issue. The Act provides:

It shall be unlawful for a commodity trading ad-

visor, associated person of a commodity trading

advisor, commodity pool operator, or associ-

ated person of a commodity pool operator … to

employ any device, scheme, or artifice to de-

fraud any client or participant or prospective

client or participant; or … to engage in any

transaction, practice, or course of business

which operates as a fraud or deceit upon any cli-

ent or participant or prospective client or partic-

ipant.

7 U.S.C. § 6o(1). To apply the enhancement, a defendant need

not have been convicted of violating § 6o(1). The sentencing

court need only conclude that his conduct violated § 6o(1). See

U.S.S.G. § 2B1.1 cmt. 16(B) (“A conviction under a securities

law or commodities law is not required in order for subsec-

tion (b)(20) to apply. This subsection would apply in the case

of a defendant convicted under a general fraud statute if the

defendantʹs conduct violated a securities law or commodities

law.”).

The district court correctly concluded that Wilkinson’s

scheme to defraud investors violated 7 U.S.C. § 6o(1) of the

Commodity Exchange Act. Wilkinson admitted in his plea

declaration to sending fraudulent tax documents to cover up

losses and to using fraudulent private placement memoranda

to secure new investments. These actions clearly constitute a

“scheme” or “practice” to defraud clients or prospective cli-

ents under § 6o(1). Because Wilkinson violated § 6o(1) as a

12 No. 20-1037

commodity pool operator, he qualified for the enhancement.

We need not reach the government’s alternative grounds for

affirmance, which the district court did not reach.

The district court’s judgment is AFFIRMED.