• No results found

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 25, 2007

N/A
N/A
Protected

Academic year: 2021

Share "FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 25, 2007"

Copied!
9
0
0

Loading.... (view fulltext now)

Full text

(1)

A fter examining the briefs and appellate record, this panel has determ ined *

unanim ously that oral argum ent w ould not m aterially assist the determ ination of this appeal. See Fed. R. A pp. P. 34(a)(2); 10th C ir. R. 34.1(G ). The case is therefore ordered subm itted w ithout oral argum ent. This order and judgm ent is

F IL E D

United States Court of Appeals Tenth Circuit Septem ber 25, 2007 Elisabeth A. Shumaker Clerk of Court U N IT E D ST A T E S C O U R T O F A PP E A L S FO R T H E T E N T H C IR C U IT SEC U R ITIES A N D EX C H A N G E C O M M ISSIO N , Plaintiff-A ppellee, v. A LLEN Z. W O L FSO N , D efendant-A ppellant, and M ER V Y N A . PH ELA N , SR .; DA V ID W O L FSO N ; R O B E RT H . PO Z N E R ; M ER V Y N A . PH ELA N , JR .; CR A IG H . B R O W N ; JO H N W . C RU IC K SH A N K , JR .; FEN G SH U I C O N SU LTA N TS, form erly know n as W orld A lliance C onsulting; A-Z PROFESSION AL C ON SULTAN TS RETIREM ENT TRU ST; AZW

IR REV O CA B LE TR U ST; SA LO M O N GR EY FINA NC IAL; AN GELO

(2)

(...continued) *

not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It m ay be cited, how ever, for its persuasive value

consistent w ith Fed. R . A pp. P. 32.1 and 10th C ir. R . 32.1.

B efore T A C H A , C hief Judge, K E L L Y and O ’B R IE N , C ircuit Judges.

A llen Z. W olfson appeals from the district court’s order granting sum m ary judgm ent to the Securities and Exchange C om mission (SEC ) in this civil

enforcem ent action. A lthough SEC ’s counsel entered an appearance, the SEC did not file a responsive brief in this appeal. M r. W olfson has requested that default be entered against the SEC for failure to respond. W e deny his motion for entry of default and affirm the district court’s grant of sum m ary judgm ent.

F A C T S

The sum m ary judgm ent evidence presents the follow ing m aterial facts. M r. W olfson, w orking w ith certain other defendants nam ed in the SEC ’s

(3)

to defendant Salom on G rey Financial C orporation, at a discount of 50% from the current bid price. Salom on G rey then m arked up the price of the shares and sold them to investors before the share price crashed.

In a crim inal action in the Southern D istrict of N ew Y ork, M r. W olfson pleaded guilty to crim inal charges arising from this fraudulent schem e. H e adm itted under oath in his crim inal proceedings that he agreed to take steps to inflate the price of Freedom Surf stock. A ccording to his sw orn statem ent in allocution, he agreed to raise the price of the stock in order to defraud investors and in order to enrich him self as w ell as others.

The SEC brought this civil enforcement action against M r. W olfson and the other defendants w ho allegedly engaged in the price manipulation of Freedom Surf stock. It charged that M r. W olfson had violated Section 17(a) of the Securities A ct of 1933, 15 U .S.C . § 77q(a); Section 10(b) of the Securities

Exchange A ct of 1934, 15 U .S.C . § 78j(b); and R ule 10b-5 thereunder, 17 C .FR . § 240.10b-5. A fter granting sum m ary judgm ent for the SEC against M r. W olfson, the district court entered a final judgm ent (1) enjoining M r. W olfson from

(4)

A N A L Y SIS 1. Standard of R eview

W hen review ing the district court’s sum m ary judgm ent order, w e view the evidence in the light m ost favorable to the non-m oving party. H errera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th C ir. 2007). “S um m ary judgm ent is

appropriate ‘if the pleadings, depositions, answ ers to interrogatories, and

admissions on file, together w ith affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the moving party is entitled to a judgm ent as a matter of law .’” Id. (quoting Fed. R . Civ. P. 56(c)).

2. D ue P rocess

O n appeal, M r. W olfson first contends that the district court denied him due process by “just skipping the trial and adjudicating [him ] guilty.” A plt. B r. at 2. H e claim s that the district court scheduled a trial but issued a final judgm ent “[w ]ithout a hearing or notice.” Id. The record does not bear out M r. W olfson’s contentions.

(5)

doc. 152, at 1 (emphasis added). O n February 27, 2006, M r. W olfson requested an extension of tim e in w hich to respond to the m otion for sum m ary judgm ent. O n M arch 6, he filed an answ er to SE C ’s complaint and three affidavits w ith the district court.

O n M arch 9, the district court granted M r. W olfson the requested extension and ordered him to file a response, if any, to SE C ’s m otion for sum m ary judgm ent on or before A pril 28. Four days later, he filed his “A ffidavit in Support of Trial by Jury and Statement of Facts W hich [sic] G enuine Issues Exist.” Id., doc. 181. O n A pril 13, 2006, the district court held a telephone status conference in w hich M r. W olfson participated. The minute entry for this conference indicates that the district court informed the participants that the pending m otion for sum m ary judgm ent w ould be decided on the briefs and that it anticipated a ruling in about three weeks. O n M ay 5, 2006, the district court entered its m emorandum decision granting the SEC ’s m otion for sum m ary judgm ent.

(6)

consideration of sum m ary judgm ent m otion “the parties’ right to be heard m ay be fulfilled by the court’s review of the briefs and supporting affidavits and

m aterials subm itted to the court.”).

M r. W olfson also contends that he had a Fifth A m endm ent right to a jury trial. The right to a jury trial in federal court in a civil case actually is governed by the S eventh A m endm ent, w hich states that “[i]n Suits at com m on law , w here the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved[.]” B ut it is w ell settled that sum m ary judgm ent, properly entered in accordance w ith the federal rules, does not violate the Seventh

A m endm ent. See Shannon v. G raves, 257 F.3d 1164, 1167 (10th C ir. 2001) (“The Seventh A m endment is not violated by proper entry of sum m ary judgm ent

because such a ruling m eans that no triable issue exists to be subm itted to a jury.”). M r. W olfson has failed to show that sum m ary judgm ent w as

inappropriately granted and his constitutional argum ent therefore fails. 3. M erits of Sum m ary Ju dgm ent O rder

(7)

that he w as actually perm itted to w ithdraw his plea. H e fails to demonstrate that the district court in this action im properly relied on his conviction and admissions in the prior crim inal proceeding. M oreover, to the extent he com plains that his attorney in this action provided him w ith inadequate representation, “[t]he general rule in civil cases is that the ineffective assistance of counsel is not a basis for appeal or retrial.” N elson v. Boeing C o., 446 F.3d 1118, 1119 (10th C ir. 2006).

M r. W olfson further argues that the only fraud com m itted in this case involved false statem ents made by the former president of Freedom Surf concerning the value of that company and its stock. H e fails to dispute the evidence that he personally m anipulated the value of the stock to produce an inflated price through bogus sales. D uring allocution in the prior crim inal

proceeding, M r. W olfson admitted that he took these actions know ingly w ith the intent to defraud investors. R ., V ol. V , doc. 156, tab “B,” at 20. The fact that there m ay have been other fraud com m itted in connection w ith the schem e is irrelevant to M r. W olfson’s ow n guilt.

M r. W olfson also argues that the disgorgement and penalties he w as ordered to pay duplicated the $76,000 already paid by his son and another

(8)

Surf schem e w ere considerably in excess of $250,000. H is argum ent therefore lacks m erit.

M r. W olfson contends that he should have received a jury trial because the SE C ’s w itnesses lacked credibility and their lack of credibility w ould have been apparent to a jury. H is argum ent is entirely conclusory. H e fails to identify w ho these w itnesses w ere and w hat relevance their testim ony had to the sum m ary judgm ent determ ination or w ould have had at trial. M oreover, the most damning testimony in this case cam e from M r. W olfson himself, during his allocution in the crim inal proceeding.

Finally, M r. W olfson argues that the district court should have made specific findings concerning disputed and undisputed issues of fact, particularly concerning the am ounts he w as ordered to pay. In its sum m ary judgm ent order, the district court m ade specific and adequate findings concerning the factual basis for the am ount of disgorgem ent, penalties and interest. See R ., V ol. V II, doc. 231, at 14-16. M r. W olfson’s argum ent therefore lacks m erit.

4. M otion for D efault Judgm ent

(9)

argum ent unless the court grants perm ission.” T here w as no oral argum ent in this case. M r. W olfson’s m otion is therefore denied.

The judgm ent of the district court is A FFIRM ED . M r. W olfson’s “R equest to E nter D efault and C ertification” is denied. H is m otion to proceed in form a pauperis is granted.

Entered for the C ourt

References

Related documents

Supreme Court of the Commonwealth of Pennsylvania, 1980 United States District Court for the District of New Jersey, 1974 United States Court of Appeals for the Third Circuit, 1979

This suggests that processes initiated at or near the grounding line are the dominant control on the observed seasonal velocity variations of Petermann Glacier, but not

Under the clear precedent of this Court and the Supreme Court, as soon as the district court determined that the record contains sufficient evidence for a reasonable jury to conclude

I have tried or argued cases before The United States District Court for Arizona, The Ninth Circuit Court of Appeals, The Tenth Circuit Court of Appeals, and The United

Johnson has authored appellate briefs in appeals to the United States Supreme Court, the United States Court of Appeals for the Eighth Circuit, the Missouri Supreme Court,

(b) It is a violation of this Rule for any telemarketer, on behalf of any seller, to initiate an outbound telephone call to any person whose telephone number is within a given area

Nonetheless, it should be noted that the cultural differences between the regions since the beginning of Ukrainian independence translate into the political choices of

In the Statement of Financial Position of Cement Works the group of assets called ‘Intangible Assets’ reports the long-term assets which have value and will provide future economic