UPDATE: Working The SEC System From Prison

Today's BrokeAndBroker.com Blog is an update of "Working The SEC System From Prison" (BrokeAndBroker.com Blog, May 1, 2015).

You had your day in court. You lost. You didn't plead guilty to the criminal charges but chose to throw the dice at trial. Unfortunately, a jury convicted you. Now imagine that you were in the brokerage or investment advisory business and the underlying crimes involved frauds involving your advisory role and financial institutions. How difficult do you think it would be for the Securities and Exchange Commission to bar you from the biz? How long a process do you think would be involved?  Today's BrokeAndBroker.com Blog might surprise you.

From 1999 through August 2013, David R. Wulf was registered with Moloney Securities Company, Inc., which was both a broker-dealer and an SEC-only registered investment adviser. Starting in 1986 and running through August 2013, Wulf was also the Chief Executive Officer and an advisory representative for Wulf Bates & Murphy, Inc. In addition to the above affiliations, Wulf was registered in additional broker-dealer and/or investment adviser capacities with four other firms from 1978 through 1986.

B. RESPONDENT'S CRIMINAL CONVICTION 

1. On August 22, 2013, a federal jury found Wulf guilty of eighteen counts of mail fraud, wire fraud, conspiracy to commit mail fraud affecting a financial institution, and conspiracy to commit wire fraud affecting a financial institution in violation of 18 U.S.C. §§ 1343, 1344, and 1349 before the United States District Court for the Eastern District of Missouri in U.S. v. Sutton et al., Case No. 4:09-cr-00509-JCH-6. 

2. Wulf's conviction arose from his role as an investment adviser for National Prearranged Services, Inc. ("National Prearranged") through Wulf Bates. National Prearranged was in the business of selling contracts for prearranged funeral services. As National Prearranged's designated investment adviser, Wulf established trusts for these prearranged funeral services and maintained certain authority over the assets maintained in these trusts. The trustees were financial institutions and/or insurance companies.

3. The indictment against Wulf alleged, inter alia, that from approximately some time before 1992 and continuing until on or about May 14, 2008, Wulf conspired with his codefendants and others regarding a scheme to defraud purchasers and trustees of National Prearranged's contracts and trusts. Moreover, Wulf was Chief Executive Officer of a registered investment adviser and associated with a dually registered broker-dealer and investment adviser  during the period of his misconduct. The underlying conduct that gave rise to Wulf's conviction includes, but is not limited to: (i) Wulf's failure to serve as an independent investment adviser for National Prearranged as mandated under state law and a binding consent decree; and (ii) Wulf enabling National Prearranged, and related entities and individuals, to assume the full power to administer, manage, control, remove, and/or use the assets in the preneed funeral trusts established by National Prearranged for their own benefit. Consequently, Wulf knowingly allowed nearly $600,000,000 of the money invested by purchasers to be misdirected for the use by National Prearranged, and related entities and individuals, for their own benefit. The indictment further alleged that Wulf and his co-defendants committed various federal offenses incidental to the misconduct described above including, but not limited to, conspiracy, mail fraud and wire fraud.

4. On November 18, 2013, the Court entered the judgment against Wulf based on the jury verdict. The Court sentenced Wulf to a prison term of 120 months followed by five years of supervised release. The Court further ordered Wulf to make restitution in the amount of $435,515,234.

[A]lthough a guilty plea constitutes an admission of the facts alleged in an indictment, see United States v. Broce, 488 U.S. 563, 569-70 (1989), United States v. Vong, 171 F.3d 648, 654 (8th Cir. 1999), a general jury verdict of guilt establishes only those "issues which were essential to the verdict," Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. 558, 569 (1951). Consistent with the foregoing, the Commission has held that a jury verdict does not establish the facts alleged in an indictment. Gary L. McDuff, Exchange Act Release No. 74803, 2015 WL 1873119, at *3 (Apr. 23, 2015).

Given the degree to which to Division relies on Mr. Wulf's second superseding indictment, the Division's motion for summary disposition is DENIED without prejudice to renewal by May 11, 2015. If the Division renews its motion, it may supplement its motion with additional evidence, including the transcript of Mr. Wulf's sentencing hearing and the district court's explanation for the sentence it imposed. The deadline for Mr. Wulf to file an opposition to the Division's motion is extended to May 26, 2015. If Mr. Wulf files an opposition, the Division may file a reply by June 8, 2015.

In the event the Division foregoes the opportunity to renew its motion, a hearing will be held in this matter on June 8, 2015, in Washington, D.C. . . .

Wulf's underlying conviction concerned prearranged funeral contracts. Because of the

potential for abuse presented by such contracts, see Anne Tergesen, When Prepaid Funeral Plans Are Wealth Killers, Wall St. J., May 22, 2010, available at http://on.wsj.com/1zDb9H8 (last visited June 23, 2014), their sale is subject to varying degrees of regulation by the states,see Judith A. Frank, Preneed Funeral Plans: The Case For Uniformity, 4 Elder L.J. 1, 2-4 (1996). Typically, "states expressly require the creation of a trust account in connection with the sale of a preneed funeral contract." Id. at 7. Because "[t]he trustee has a fiduciary duty to the beneficiary of the trust," it is thought that use of a trust will "protect the funds from abuse." Id. at 8.

Enter Wulf and his co-conspirators. As is discussed below, their scheme involved the

sale of prearranged funeral contracts through NPS. Funds received in exchange for funeral contracts were placed in a trust. The trust would then purchase whole life insurance policies from entities closely related to NPS. These transactions likely generated commissions for the related entities. Wulf would then authorize or permit loans against the whole life policies' cash surrender value and then surrender the policies for cash minus the amount of the loans against the policies. Once the policies were surrendered, he would purchase term life policies that were funded by later contract purchases. As with many fraudulent schemes, this one ultimately collapsed. The term policies were eventually cancelled due to non-payment of premiums and

NPS was placed in receivership. Wulf, who is currently imprisoned, is on the hook for over $435 million in losses.

By any measure, Wulf's conduct was recurrent. Indeed, saying that Wulf's fraud, which

lasted at least sixteen years, was recurrent does not adequately describe what he did. Cf. Gordon Brent Pierce, Securities Act Release No. 9555, 2014 SEC LEXIS 839, at *84 (Mar. 7, 2014) (characterizing as "recurrent and long-lasting," misconduct that occurred over an eight month period). The fact that Wulf's fraud continued for so long weighs in favor of a full collateral bar to protect the public interest. The continuing nature of Wulf's misconduct also shows that he is unsuited to remaining in the securities industry. Despite his years of experience and the prior legal actions against NPS and its affiliated entities, he did not desist and instead continued to participate in a fraudulent scheme.

Wulf's actions easily qualify as egregious. Wulf and his co-conspirators soaked up

money through NPS and Trust IV and then wrung hundreds of millions of dollars out of Trust IV until there was nothing left. That Wulf and his co-conspirators continued their fraud over a period of so many years only serves to reinforce the notion that Wulf's actions were egregious. Further, Wulf violated his fiduciary duty in a brazen fashion. There is thus no doubt that Wulf's conduct was egregious. See Gregory Bartko, Exchange Act Release No. 71666, 2014 SEC LEXIS 841, at *39 (Mar. 7, 2014) (noting that Bartko was guilty of "orchestrating a conspiracy that defrauded approximately two hundred investors out of hundreds of thousands of dollars over more than a year"); James C. Dawson, 2010 SEC LEXIS 2561, at *15-16 (concerning misconduct by a fiduciary).

Wulf acted with a high degree of scienter. In order to convict him, the jury was required to find that he "act[ed] with ‘intent to defraud," which the jury was told meant that he "act[ed] knowingly and with the intent to deceive." Ex. I at 3388-91, 3393-94, 3396-97, 3399-4000. The very nature of Wulf's fraud belies any claim that he did not act with a high degree of scienter. Indeed, Wulf cannot seriously claim that he accidently participated in the looting of $435 million over a period of at least sixteen years.

Wulf has made no assurances against future violations or demonstrated that he recognizes the wrongfulness of his conduct. To the contrary, during his trial, he blamed the lapse of term policies on the Special Deputy Receiver who took over NPS, Lincoln, and Memorial. Ex. O at 8173, 8176-77. Of course, the Special Deputy Receiver's appointment was a direct result of the misconduct of Wulf and his co-conspirators. And, in his answer, he blamed his conviction on his counsel and on prosecutorial misconduct.

Based on Wulf's refusal to accept responsibility and the fact that his fraud lasted at least sixteen years, I infer that if he were given the opportunity, he would likely engage in similar conduct. Cf. Tzemach David Netzer Korem, 2013 SEC LEXIS 2155, at *23 n.50 ("‘the existence of a violation raises an inference that'" the acts in question will recur) (quoting Geiger v. SEC, 363 F.3d 481, 489 (D.C. Cir. 2004)). Inasmuch as securities professionals "‘routinely gain access to sensitive financial and investment information of investors and other market participants,'" Peter Siris, Exchange Act Release No. 71068, 2013 SEC LEXIS 3924, at *29 n.47 (Dec. 12, 2013) (quotation omitted), it is clear that Wulf's "occupation as an investment adviser presents opportunities for future illegal conduct in the securities industry," John W. Lawton, 2012 SEC LEXIS 3855, at *43.

In alleged error twenty-four, Wulf says that it is circular logic to say that "[t]he fact that the district court imposed a $435 million restitution award necessarily means that Wulf caused $435 million in losses." Mot. at 4; see David R. Wulf, 2015 SEC LEXIS 2603, at *16. This is not an allegation of manifest error. Furthermore, as the supporting citations in the Initial Decision reflect, "courts may award restitution ‘only for the loss caused by the specific conduct that is the basis of the offense of conviction.'" United States v. Howard, 759 F.3d 886, 891 (8th Cir. 2014) (quoting Hughey v. United States, 495 U.S. 411, 413 (1990)) (emphasis added). In other words, absent a determination that Wulf caused $435 million in losses, the district court could not have ordered restitution in that amount. It is therefore the case that "[t]he fact that the district court imposed a $435 million restitution award necessarily means that Wulf caused $435 million in losses." David R. Wulf, 2015 SEC LEXIS 2603, at *16.

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