Securities & Exchang v. Hanke

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 97-2275



               SECURITIES AND EXCHANGE COMMISSION,



                       Plaintiff, Appellee,



                                v.



                     ELLIS L. DEYON, ET AL.,



                      Defendants, Appellees.

                           __________



                      BRADLEY T. GULLETT,



                     Defendant, Appellant.

                      ____________________



No. 97-2276



              SECURITIES AND EXCHANGE COMMISSION,



                      Plaintiff, Appellee,



                               v.



                    ELLIS L. DEYON, ET AL.,



                     Defendants, Appellees.



                           __________



                       SHERWOOD H. CRAIG,



                     Defendant, Appellant.

                     ______________________No. 97-2277



              SECURITIES AND EXCHANGE COMMISSION,



                      Plaintiff, Appellee,



                               v.



                    ELLIS L. DEYON, ET AL.,



                     Defendants, Appellees.

                           __________



                         WILLIAM HANKE,



                     Defendant, Appellant.









         APPEALS FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MAINE



          [Hon. Morton A. Brody, U.S. District Judge]







                             Before



                     Boudin, Circuit Judge,

                 Coffin, Senior Circuit Judge,

                   and Lynch, Circuit Judge.









     Bradley T. Gullett on brief pro se.

     Sherwood H. Craig on brief pro se.

     Richard H. Walker, General Counsel, Jacob H. Stillman,

Associate General Counsel, Katharine B. Gresham, Assistant General

Counsel, and Diane v. White, Senior Counsel, on brief for the

Securities and Exchange Commission, appellee.











July 1, 1998









            Per Curiam.  Having carefully reviewed the record in

    this case, including the briefs of the parties, we affirm the

    judgment of the district court, essentially for the reasons

    given by the district court in its findings of fact and

    conclusions of law, dated August 21, 1997.  We limit ourselves

    to the following remarks.

              Like the district court, we find that the investment

    of pooled funds in a common account from which investors were

    to be paid interest on a pro rata basis constitutes a "common

    enterprise" for the purpose of investment contract analysis.

    The claim that the fixed interest payments promised investors

    does not constitute "profit" was not raised with sufficient

    clarity below and hence has been waived on appeal absent

    exceptional circumstances.  See In re Rauh, 119 F.3d 46, 51

    (1st. Cir. 1997).  No such circumstances exist in this case.

              We further find no clear error in the district court

    determination that defendants/appellants acted with the

    required scienter in offering these securities.  Finally, the

    district court did not abuse its discretion in imposing the

    penalties it assessed or in denying the belated request for a

    jury trial made by defendants/appellants.

              Affirmed.