NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

U.S. SECURITIES & EXCHANGE

COMMISSION,

Plaintiff-Appellee,

 v.

EDWIN YOSHIHIRO FUJINAGA; et al.,

Defendants,

 and

THE YUNJU TRUST, Relief Defendant

and JUNE FUJINAGA, Relief Defendant,

Defendants-Appellants,

______________________________

ROBB EVANS & ASSOCIATES LLC,

Receiver-Appellee.

No. 16-15623

D.C. No. 

2:13-cv-01658-JCM-CWH

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

FILED

JUN 07 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
Submitted April 21, 2017** 

San Francisco, California

Before: TASHIMA and PAEZ, Circuit Judges, and AMON,*** District Judge.

 

June Fujinaga and a trust within her control, The Yunju Trust (collectively,

“June”), were added as relief defendants in a case brought by the Securities and

Exchange Commission (the “SEC”) against June Fujinaga’s husband, Edwin

Fujinaga (“Edwin”). The SEC sought to disgorge the funds that June received

from Edwin. After the district court found Edwin liable for securities violations,

the SEC moved for summary judgment and disgorgement against June. Relying in

part on June Fujinaga’s assertion of her Fifth Amendment privilege against selfincrimination, the district court granted the SEC’s motion for summary judgment

and ordered June to disgorge $2.383 million. June filed a motion for

reconsideration, which the district court granted in part and denied in part. The

district court ultimately ordered June to disgorge $2.333 million. 

June appeals. We review de novo an award of summary judgment. 

McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015). We review for abuse

of discretion an order of disgorgement, SEC v. Platforms Wireless Int’l Corp., 617

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Carol Bagley Amon, United States District Judge for

the Eastern District of New York, sitting by designation.

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F.3d 1072, 1096 (9th Cir. 2010), an order denying a motion for reconsideration,

Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000), and “a

district court’s decision to draw an adverse inference from a party’s invocation in a

civil case of the Fifth Amendment privilege against self-incrimination,”

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 909 (9th Cir. 2008). We

affirm.

June argues that summary judgment was improper because (1) the district

court could not draw an adverse inference from June Fujinaga’s assertion of her

Fifth Amendment privilege as she had waived her privilege as a result of certain

discovery disclosures, (2) the district court abused its discretion in drawing an

adverse inference from June Fujinaga’s assertion of her Fifth Amendment

privilege, (3) June’s production of W-2s and tax returns in response to discovery

requests created a genuine issue of material fact as to whether June had a legitimate

claim to some of the funds at issue, and (4) the record was inadequately developed. 

June also challenges the amount of disgorgement ordered by the district court, and

the denial of her motion for reconsideration. June’s arguments are unavailing. 

1. June did not properly raise the primary argument she asserts on

appeal—that June’s discovery disclosures waived June Fujinaga’s Fifth

Amendment privilege. June first raised this argument in a reply in support of the

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motion for reconsideration, at which time it was untimely. “A Rule 59(e) motion

[to reconsider] may not be used to raise arguments or present evidence for the first

time when they could reasonably have been raised earlier in the litigation.” Kona

Enters., 229 F.3d at 890. As a result, because June did not “properly” raise the

issue in the district court, we will not consider it. See O’Rourke v. Seaboard Sur.

Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989).

2. “When a party asserts the privilege against self-incrimination in a civil

case, the district court has discretion to draw an adverse inference from such

assertion.” Nationwide Life Ins. Co., 541 F.3d at 911. “The inference may not be

drawn ‘unless there is a substantial need for the information and there is not

another less burdensome way of obtaining that information.’” Id. at 912 (quoting

Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2000)). 

“Moreover, the inference may be drawn only when there is independent evidence

of the fact about which the party refuses to testify.” Id. June Fujinaga’s testimony

was necessary to determine whether June had a legitimate claim to the funds at

issue. June Fujinaga was the only person in possession of the information

regarding the legitimacy of June’s claim to the funds; however, she refused to

testify regarding that issue, depriving the SEC of its opportunity to obtain evidence

on that question. Additionally, there was independent evidence of June’s receipt of

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illicit funds. The district court thus did not abuse its discretion in drawing an

adverse inference from June Fujinaga’s assertion of her Fifth Amendment privilege

against self-incrimination. See SEC v. Colello, 139 F.3d 674, 678 (9th Cir. 1998)

(holding that the district court did not abuse its discretion in drawing an adverse

inference where the relief defendant “refused to give information necessary to

determine whether he still possessed any of the funds or whether he had a

legitimate claim to them”). 

3. Once the SEC carried its burden under Federal Rule of Civil

Procedure 56(c), June was required to “come forward with ‘specific facts showing

there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Merely

producing documents during discovery, as June did, does not satisfy that burden. 

Moreover, even if June had attached the W-2s and tax returns to the opposition to

the SEC’s motion for summary judgment, a genuine issue of material fact would

not have existed. Those documents demonstrate merely that June Fujinaga

received funds from Edwin’s companies, but do not raise a genuine issue regarding

whether she performed legitimate services in exchange for those funds.

4. The record in this case was sufficiently developed to support a grant

of summary judgment. Cf. Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1278–79 (9th

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Cir. 1993) (discussing the necessity of an adequate factual record for deciding

“important” and “far-reaching” questions). To the extent that the district court

lacked the immaterial information June cites on appeal, that circumstance was

occasioned not by an inadequate record, but rather, by June’s failure to submit the

evidence in opposition to the SEC’s motion for summary judgment.

5. June’s argument that the district court abused its discretion in ordering

disgorgement fares no better. “The SEC bears the ultimate burden of persuasion

that its disgorgement figure reasonably approximates the amount of unjust

enrichment.” Platforms Wireless, 617 F.3d at 1096 (internal quotation marks

omitted). “Once the SEC establishes a reasonable approximation of defendants’

actual profits, however, . . . the burden shifts to the defendants to demonstrate that

the disgorgement figure was not a reasonable approximation.” Id. (internal

quotation marks omitted). The SEC approximated June’s profits by aggregating

the funds June received from Edwin and his companies during the relevant time

period. In light of June Fujinaga’s refusal to testify, the SEC had no better

mechanism for calculating the disgorgement figure, and the district court did not

abuse its discretion in deeming that calculation reasonable. In turn, June failed to

rebut the SEC’s calculation. See id. at 1097 (“[G]iven this failure of proof from

defendants, it was not an abuse of discretion for the district court to conclude that

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the entire proceeds from the sale were a ‘reasonable approximation’ of the profits

from the transactions.”). 

6. Finally, June argues that the district court abused its discretion in

denying in part the motion for reconsideration. However, “[o]ur abuse of

discretion review precludes reversing the district court for declining to address an

issue raised for the first time in a motion for reconsideration.” 389 Orange St.

Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

AFFIRMED.

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