UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ROBERT ARTHUR REED, 

 Defendant - Appellant. 

Nos. 13-8073 & 14-8018 

(D.C. No. 1:12-CR-00058-SWS-1) 

(D. Wyo.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, McKAY, and McHUGH, Circuit Judges. 

 

 Defendant Robert Arthur Reed appeals from two district-court orders. The 

first (Appeal No. 13-8073) entered judgment on his conviction, by guilty plea, of 

conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1349, 1341, 

and 1343, and conspiracy to commit money laundering in violation of id. § 1956(h). 

Defendant was sentenced to two concurrent terms of 151 months’ imprisonment 

followed by three years’ supervised release, and was ordered to pay restitution of 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 11, 2015

Elisabeth A. Shumaker 

Clerk of Court

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$4,425,034.63. The second order (Appeal No. 14-8018) forfeited various assets of 

Defendant in favor of the United States. The two appeals have been consolidated for 

purposes of briefing, record, and submission. We reject all of Defendants’ 

assignments of error and affirm the orders of the district court.1

 

 Defendant’s convictions arose from a scheme to sell investments in wind-farm 

projects that did not exist. Notwithstanding his guilty plea admitting the elements of 

the charged offenses, he now challenges his convictions and resultant forfeitures on 

the grounds that (1) the alleged offenses were not “ripe” or “justiciable,” because the 

investment scheme had not culminated in any criminal securities violations when this 

prosecution was initiated; and (2) the district court lacked subject-matter jurisdiction, 

because the Attorney General initiated this prosecution without first obtaining a 

referral from the Securities and Exchange Commission (SEC) under 15 U.S.C. 

§ 77t(b). Defendant also objects to several sentence enhancements imposed by the 

district court. Finally, he claims that he received ineffective assistance of counsel in 

the proceedings below. Because this last claim was not raised and ruled on in the 

district court, however, it is not properly brought in this direct criminal appeal and 

must be pursued on collateral review. See United States v. Battles, 745 F.3d 436, 457 

(10th Cir.), cert. denied, 135 S. Ct. 355 (2014). 

 

1

 Defendant is proceeding pro se. He was initially represented by counsel for 

Appeal No. 13-8073, from the judgment of conviction and sentence, but this court 

granted counsel’s motion to withdraw and Defendant’s motion to proceed pro se. He 

has from the outset appeared pro se in Appeal No. 14-8018. 

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A. Ripeness/Justiciability 

When Defendant pleaded guilty, he waived all defenses except those relating 

to subject-matter jurisdiction and a narrow class of constitutional claims involving 

the right not to be hauled into court. See United States v. De Vaughn, 694 F.3d 1141, 

1145-46, 1153 (10th Cir. 2012). His guilty plea constitutes a binding admission that 

he did in fact commit the offenses of conviction. Id. at 1152 n.6. The government 

contends that Defendant’s ripeness/justiciability objection is nothing more than a 

belated (and facially dubious) factual-innocence defense barred by his admission of 

guilt. We agree. 

The thrust of Defendant’s position is that he committed no crime because the 

government initiated this prosecution before an obligation to pay a return to 

defrauded investors arose. If they lost millions of dollars investing in nonexistent 

wind-farm projects based on misrepresentations by members of the conspiracy, the 

fault, he insists, lay with the government; nothing criminal could have been done by 

him and his associates until their fraud ripened into unpaid returns. 

There are numerous problems with this argument, but it suffices to say that 

Defendant cites no authority that a criminal conspiracy does not arise until the 

contemplated substantive crime is committed and the victims of that crime 

irrevocably incur their losses. Indeed, the law is squarely to the contrary: “One can 

be guilty of a conspiracy to commit an offense without committing the substantive 

offense itself.” United States v. Lake, 472 F.3d 1247, 1263 (10th Cir. 2007). 

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Defendant does not challenge the factual basis of his plea, which conclusively 

established his guilt with respect to the elements of the charged criminal conspiracy. 

B. SEC Referral 

 Defendant insists that “once the SEC has investigated, determined, and 

referred a [securities] violation, then and only then can the appropriate district 

empanel a grand jury and investigate” for any criminal prosecution relating to the 

violation of securities laws. Aplt. Opening Br. at 17. He contends that this 

unsatisfied prerequisite to criminal prosecution—applicable here, he argues, because 

the charged conspiracy concerned investments qualifying as securities2

—is a 

limitation on the district court’s subject-matter jurisdiction. This argument is 

meritless. 

Under 18 U.S.C. § 3231 the district courts have jurisdiction over “all offenses 

against the laws of the United States.” Absent an express limitation imposed on that 

jurisdiction by some other statute, § 3231 is “the beginning and the end of the 

jurisdictional inquiry” in criminal cases, United States v. Tony, 637 F.3d 1153, 1158 

(10th Cir. 2011) (internal quotation marks omitted). The other statute invoked by 

Defendant imposes no such limitation. All it says is that “the [SEC] may transmit 

such evidence as may be available concerning [illegal securities] acts or practices to 

the Attorney General, who may, in his discretion, institute the necessary criminal 

 

2

 The basis for our rejection of Defendant’s jurisdictional contention does not 

require us to delve into the intricacies of what constitutes a “security” implicating the 

authority of the SEC. 

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proceedings.” 15 U.S.C. § 77t(b). Nothing in this discretionary language suggests 

that an SEC referral is a prerequisite to criminal prosecution by the Attorney General 

of offenses relating to securities—much less a prerequisite to the district court’s 

jurisdiction over such an offense. 

This court rejected a similar argument in connection with referrals by the 

Federal Election Commission (FEC) for prosecution of campaign-finance crimes in 

Bialek v. Mukasey, 529 F.3d 1267 (10th Cir. 2008). Our analysis in that case is 

applicable here. First, we “emphasize[d] that we cannot presume that Congress has 

divested the Attorney General of his prosecutorial authority absent a clear and 

unambiguous expression of legislative will.” Id. at 1270 (internal quotation marks 

omitted). We then examined the language of the Federal Election Campaign Act 

(FECA) for an expression of such legislative will, and found none: 

FECA[] speaks only to the power of the FEC. It requires a vote of four 

commissioners before the FEC may refer a matter for criminal 

prosecution, but this provision, by its clear terms, restricts only the 

FEC. Nowhere in FECA do we find a single phrase limiting the 

Attorney General’s powers. If Congress had wished all campaign 

finance litigation, both civil and criminal, to originate with the FEC, 

only a few lines of statutory text would have been required. Instead, 

Congress explicitly granted the FEC only exclusive jurisdiction with 

respect to civil enforcement of FECA’s provisions. The obvious 

implication, uncontroverted by any words in the statute, is that the FEC 

and Attorney General retain concurrent jurisdiction to investigate 

criminal matters. 

Id. at 1271 (citation, footnote, emphasis, and internal quotation marks 

omitted). 

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 Like the FECA provision at issue in Bialek, nothing in § 77t(b) purports to 

limit the prosecutorial authority of the Attorney General. The Attorney General is 

mentioned in § 77t(b), but in recognition—not limitation—of his discretionary 

authority to initiate criminal prosecutions. 

Intertwined with his SEC-referral objection, Defendant also argues that a 

securities violation is a necessary predicate for guilt on the conspiracy counts and, he 

contends, no such violation occurred. This argument is meritless for at least two 

reasons. First, “[o]ne can be guilty of a conspiracy to commit an offense without 

committing the substantive offense itself.” Lake, 472 F.3d at 1263. Second, this is 

really just another version of the argument that he is innocent of the conspiracy 

counts to which he pleaded guilty—that “[t]here was never any criminal conduct in 

this case.” Aplt. Opening Br. at 18. Again, his participation in a criminal conspiracy 

is precisely what his guilty plea established. 

C. Sentence Enhancements 

Some of Defendant’s challenges regarding sentence enhancements also rely on 

his meritless position that the crimes to which he pleaded guilty had not occurred. 

For example, he insists that the 18-level enhancement in U.S. Sentencing Guidelines 

Manual (USSG) § 2B1.1(b)(1)(J) for fraud crimes generating losses in excess of 

$2,500,000 is inapplicable because there were in fact no losses arising from a crime. 

But he participated in a fraudulent conspiracy obtaining over $4,000,000 from 

investors and there is no claim that the money was repaid or that the fraudulently 

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promoted venture ever materialized for their benefit. Similarly, he argues that the 

four-level enhancement in USSG § 2B1.1(b)(2)(B) for fraud offenses involving 50 or 

more victims is inapplicable because there were in fact no victims of a crime. Again, 

his plea established the crime, while the evidence at sentencing established that the 

crime had 83 victims. 

Defendant’s challenge to use of the two-level enhancement in USSG 

§ 2S1.1(b)(2)(B) for money laundering in violation of 18 U.S.C. § 1956 is meritless 

for a different reason. He contends that this enhancement is precluded by an 

application note directing that “[s]ubsection (b)(2)(B) shall not apply if the 

Defendant was convicted of a conspiracy under 18 U.S.C. § 1956(h) and the sole 

object of that conspiracy was to commit [a money laundering] offense set forth in 

18 U.S.C. § 1957.” USSG § 2S1.1, cmt. n.3(C) (emphasis added). But the 

conspiracy in this case did not have § 1957 as its sole object; it also encompassed 

conspiracy to violate § 1956. 

Finally, Defendant challenges imposition of the four-level enhancement in 

USSG § 3B1.1(a) for being an organizer or leader of the criminal conspiracy. He 

insists that the evidence at sentencing failed to support this enhancement. “The 

government bears the burden of proving sentencing enhancements by a 

preponderance of the evidence.” United States v. Ramos, 695 F.3d 1035, 1039 

(10th Cir. 2012) (internal quotation marks omitted). Applying a clear-error standard 

of review to this factual question, we may reverse the district court only if “on the 

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entire evidence, we are left with the definite and firm conviction that a mistake has 

been committed.” United States v. Shengyang Zhou, 717 F.3d 1139, 1149 (10th Cir.) 

(internal quotation marks omitted), cert. denied, 134 S. Ct. 458 (2013). We are left 

with no such conviction here. 

As we noted recently, indicia of a leadership or organizational role in a 

criminal enterprise include: 

 “the exercise of decision making authority, the nature of participation 

in the commission of the offense, the recruitment of accomplices, the 

claimed right to a larger share of the fruits of the crime, the degree of 

participation in planning or organizing the offense, the nature and scope 

of the illegal activity, and the degree of control and authority exercised 

over others.” 

Id. (quoting USSG § 3B1.1, cmt. n.4 (2012)). The government presented sufficient 

evidence to establish the following: Defendant exercised control over all the invested 

funds, most of which came into accounts he opened as the sole signatory with the 

authority to withdraw funds for distribution to other members of the conspiracy. He 

also was responsible for setting up the many drop boxes used as company addresses 

for collecting and forwarding investor funds to the accounts he controlled—drop 

boxes set up with his credit card and phone number by someone with a name 

identified as an alias he used for this purpose. As for solicitation activities, while a 

Greg Doss ran the “boiler room” where sales people worked, the sales pitches and 

what investors should be told came from Defendant, who also participated in periodic 

conference calls to provide investors with information and to answer questions the 

sales people were not equipped to handle. In addition, in the one illustrative example 

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of a defrauded investor detailed at the sentencing hearing, a letter sent to assure the 

investor that a (nonexistent) wind turbine had been purchased with his $250,000 

investment was written and sent to Mr. Doss’s office by Defendant with the direction 

that it be cut and pasted and forwarded to the investor under the name of one of 

Mr. Doss’s staff. Another participant, whose various duties included travelling to 

South Dakota to erect a sign indicating progress where a wind farm was supposed to 

be under construction, specifically told an investigator that he “worked for Robert 

Reed.” Finally, while Defendant insisted he was merely a consultant paid a yearly 

salary of $125,000 by Mr. Doss, evidence regarding the accounts under his sole 

control showed cash withdrawals (which, of course, only Defendant could make) as 

well as direct transfers of funds into his own personal account totaling approximately 

$700,000 over a period of just two and one-half years. 

The nature and extent of Defendant’s authority over, participation in, and 

remuneration through the conspiracy persuade us that the district court did not 

commit clear error in finding him a leader or organizer. Defendant sought to deflect 

this role onto Mr. Doss, but even if Mr. Doss might also be deemed a leader or 

organizer, we have recognized that “[m]ore than one person can qualify as a leader or 

organizer of a single criminal association or conspiracy,” Shengyang Zhou, 717 F.3d 

at 1149. 

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 The judgments of the district court are affirmed. Defendant’s motion to 

supplement the record, which raises numerous matters unrelated to the issues on this 

appeal and nothing that affects our disposition, is denied. 

 Entered for the Court 

 Harris L Hartz 

 Circuit Judge 

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