UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee,

v. CHARLES R. KOKESH, Defendant - Appellant. No. 19-2000 (D.C. No. 1:09-CV -01021-SMV-LAM) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , O’BRIEN , and CARSON , Circuit Judges.

________________ _________________ Charles Kokesh appeals from the distri ct court’s amended final judgment in favor of the Securities and Exchange Co mmission (“SEC”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I After a jury found Kokesh guilty of viol ating securities laws , the district court entered a judgment in favor of the SEC permanently enjoining him from future

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 6, 2019 Elisabeth A. Shumaker Clerk of Court2 violations of securities laws and ordering a civil penalty of $2.4 million, disgorgement of $34.9 milli on, and $18.1 million in prejudgment interest. The district court recognized that 28 U.S.C. § 2462 establishes a fi ve-year limitations period “for the enforcement of any civil fine , penalty, or forfeitur e . . . from the date when the claim first accrued.” Id. It limited the civil penalty amount accordingly but held § 2462 does not apply to the in junction or the disgorgement order. Kokesh appealed. See SEC v. Koke sh, 834 F.3d 1158 (10th Cir. 2016) (“Kokesh I”), rev’d, 137 S. Ct. 1635 (2017). He argued that § 2462 barred the injunction and the disgorgement order because the claims first accrued more than five years before the SEC brought the action. Id . at 1162. He also contended the district court erred in excluding evidence of atto rney and accountant pa rticipation in the transactions, which he claimed would have shown that he lacked knowledge of any misconduct. Id. We rejected both arguments . Agreeing with the district court, we held that neither the injunction nor the dis gorgement order was subj ect to § 2462. Id. at 1162-67. We further held that the evidentiary issue was waived due to inadequate briefing. Id. at 1167-68. Kokesh sought review from the Suprem e Court, presenting a single question: “Does the five-year statute of limitations in 28 U.S.C. § 2462 apply to claims for ‘disgorgement’?” Petition for Writ of Certiorari at i, K okesh v. SEC, 137 S. Ct. 1635 (2017) (No. 16-529). The Supreme Cour t granted review and held that SEC disgorgement is a penalty subject to § 2462. Kokesh, 137 S. Ct. at 1639, 1642, 1645.3 On remand, the SEC requested that this court order disgorgement of $5,004,773, representing the amounts Koke sh converted within the limitations period. See SEC v. Kokesh, 884 F.3d 979, 981 (10th Cir. 2018) (“Kokesh II”). In response, Kokesh contended th at the SEC’s claims first acc rued more than five years before it filed the action, rendering the entir e action time-barred. Id. We held that Kokesh’s “misappropriations of funds . . . are properly view ed as discrete violations, . . . with each unlawful taking being actionable for five years after its occurrence.” Id. at 984-85. We therefore reversed the district court’s judgm ent and remanded with instructions to enter an order requiring di sgorgement of $5,004, 773. Id. at 985. Before the district court, the SEC requested the court enter an award of prejudgment interest in additi on to the disgorgement Kokesh II had ordered. Kokesh objected, asserting that the dist rict court should reject any relief other than an order of disgorgement of $5,004,773. The district court determined that Kokesh II did not preclude an award of prejudgment interest. It entered an amended final judgment in favor of the SEC enjoining Kokesh from futu re violations of the securities laws and ordering him to pay a civil penalty of $2,354,593, disgor gement totaling $5,004,773, and prejudgment interest in the amount of $2,646,466.25. Kokesh now appeals from that amended final judgment. II Because Kokesh proceeds pro se in this appeal, we liberally construe his filings. Walters v. Wal-Mart Stores, Inc ., 703 F.3d 1167, 1173 ( 10th Cir. 2013). But we do not “assume the role of advocate and make his arguments for him.” Id.4 (quotation omitted). Moreover, our liberal construction doe s not extend to filings in the earlier proceedings because he was previously re presented by counsel. Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). A Kokesh argues that § 2462 is jurisdic tional and precludes this action in its entirety. We declined to address this i ssue in Kokesh I. 834 F.3d at 1167. We do the same in this appeal. Whether § 2462 is jurisdictional matters only if all of the SEC’s claims first accrued before October 27, 2004, the undi sputed date on which the five-year limitations period began to run. If any of the SEC’s claims are timely, then § 2462 would not bar the action in its entirety, even if it were jurisdictional. Kokesh’s jurisdictional argument thus rests upon his argument that Kokesh II erred in holding that some of the SEC’s claims are timely. Kokesh II held that each act of misappropriati on should be considered separately and that the SEC ha s five years to bring a claim as to a particular act. 884 F.3d at 984-85. Because we held that not all of the SEC’s claims were time-barred, we directed the district cour t to enter judgment for the SE C on the timely claims. Id. at 985. Kokesh II is the law of the case. “The law of the case doctrine provides that when a court decides upon a rule of law, th at decision should continue to govern the same issues in subsequent st ages in the same ca se.” Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1279 (10th Ci r. 2010) (quotation omitted). “[T]he5 decision of the appellate cour t establishes the law of the case and ordinarily will be followed by both the trial court on remand a nd the appellate court in any subsequent appeal.” Id. at 1280 (quotation omitted). There are three “exceptionally narrow circumstances” in which we de part from the law of the cas e: “(1) when the evidence in a subsequent trial is substantially di fferent; (2) when controlling authority has subsequently made a contrary decision of the law applicab le to such issues; or (3) when the decision was clearly erroneous an d would work a manifest injustice.” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998). The first two exceptions do not apply in th is case. To the ex tent that Kokesh argues Kokesh II was “clearly erroneous a nd would work a manifest injustice,” he faces a “formidable task.” Id. He ha s not given us any reason to believe the exception applies. During the remand proceed ings, rather than challenging Kokesh II by contesting timeliness or the SEC’s calcu lations, Kokesh conceded the district court should enter the disgor gement order and instead focused on the SEC’s new request for prejudgment interest. Because Kokesh’s arguments about the ac crual of the SEC’s claims are barred by the law of the case, any decision as to whether § 2462 is jurisdictional would be advisory. B Kokesh also argues the district court erred by excluding evidence of attorneys’ and accountants’ participation in the transacti ons held to be illegal. He raised this argument in Kokesh I, but we held the ar gument waived due to inadequate briefing6 and affirmed the exclusion of the eviden ce. 834 F.3d at 1167-68. Because Kokesh failed to challenge that portion of Koke sh I before the Supreme Court, he has abandoned the issue. We dec line to resurrect it on appeal . See Mason v. Okla. Tpk. Auth., 182 F.3d 1212, 1214 (10th Cir. 1999) (explaining that issu es properly before the court are limited by the scope of the part y’s prior appeal, and that issues waived earlier in a proceeding may not be revive d on remand); Martinez v. Roscoe, 100 F.3d 121, 123 (10th Cir. 1996) (“ [A] legal decision made at one stage of litigation, unchallenged in a subsequent appeal when th e opportunity to do so existed, becomes the law of the case fo r future stages of th e same litigation, and the parties are deemed to have waived the right to challenge th at decision at a late r time.” (quotation omitted)). C In his reply brief, Kokesh also ch allenges the permanent injunction and the civil penalty order. But arguments raised for the first time in a reply brief are waived. See CEEG (Shanghai) Solar Sci. & Tech. Co. v. LUMOS LLC, 829 F.3d 1201, 1208 (10th Cir. 2016). Moreover, Kokesh has not previously challenged the civil penalty, and he did not appeal the por tion of Kokesh I regarding the injunction to the Supreme Court. III Kokesh did not raise on appeal the objecti ons he made before the district court on remand from Kokesh II, thereby abandoni ng those contentions. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Having ad dressed in Kokesh II and7 the unappealed portion of Kokesh I the ar guments that Kokesh did make in his opening brief, we decline to entertain them again. The d ecision of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge