IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10436
Conference Calendar
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellee,
versus
REDBANK PETROLEUM, INC.; ET AL.,
Defendants,
BRENT A. WAGMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-1267-M
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April 11, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
The Securities and Exchange Commission (Commission) filed a
civil law enforcement action against Brent A. Wagman and others,
including corporations, alleging that they had offered and sold
unregistered securities in violation of various securities acts.
The district court found that the Commission had served Wagman
with a motion for summary judgment in accordance with Fed.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-10436
-2-
R. Civ. P.(5)(b) and granted summary judgment in favor of the
Commission permanently enjoining Wagman from violating the
federal securities laws and ordering him to pay disgorgement of
approximately $24,000,000 and a civil penalty of $110,000.
Although Wagman asserts that the district court erred in
proceeding with summary judgment because he was not served with
the summary judgment motion, he does not dispute that the
Commission served the suit both by mail and hand delivery in
accordance with Fed. R. Civ. P. 5(b). This issue has no merit.
See Anthony v. Marion County Gen. Hosp., 617 F.2d 1164, 1168 n.5
(5th Cir. 1980); Martin v. Harrison County Jail, 975 F.2d 192,
193 (5th Cir. 1992).
Wagman argues that summary judgment was not appropriate
because the Commission presented statements made under penalty of
perjury rather than sworn affidavits to support the motion for
summary judgment. 28 U.S.C. § 1746 specifically authorizes the
use of statements made under penalty of perjury in lieu of sworn
affidavits. This issue is frivolous.
Wagman asserts that the district court erred in granting
summary judgment because there are genuine issues for trial. In
support of the motion for summary judgment, the Commission
submitted a statement of undisputed facts supported by affidavits
and authenticated documents establishing Wagman’s violation of
the antifraud provisions of the federal securities laws through
the use of a fraudulent scheme, material misrepresentations, or
material omissions in the offer, purchase, or sale of securities.
See Aaron v. SEC, 446 U.S. 680, 687-89 (1980); Ernst & Ernst v.
No. 00-10436
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Hochfelder, 425 U.S. 185, 194-215 (1976). Wagman presented no
evidence in the district court to contradict the documents
submitted by the Commission. On appeal, Wagman raises instances
of alleged inconsistencies and omissions regarding the
Commission’s summary judgment evidence. The inconsistencies and
omissions he identifies do not undermine the summary judgment
evidence that he engaged in a type of Ponzi scheme by selling
securities of companies with no assets. Wagman did not produce
any evidence to establish an issue of material fact for trial in
the district court and has not shown on appeal that the district
court erred in concluding that no such issue exists. Fed.
R. Civ. P. 56; Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
AFFIRMED.