NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

U.S. SECURITIES & EXCHANGE 

COMMISSION, 

Plaintiff-Appellee, 

 v. 

INTELIGENTRY, LTD; et al., 

Defendants, 

and 

JOHN P. ROHNER, 

Defendant-Appellant.

No. 17-16644 

D.C. No. 2:13-cv-00344-RFB-NJK 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware, II, District Judge, Presiding

Submitted January 28, 2019**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

John P. Rohner appeals pro se from the district court’s summary judgment in 

 

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

except as provided by Ninth Circuit Rule 36-3.

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

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

FILED

JAN 30 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-16644 

a civil enforcement action brought by the Securities and Exchange Commission 

(“SEC”) alleging violations of federal securities laws. We have jurisdiction under 

28 U.S.C. § 1291. We review de novo. SEC v. CMKM Diamonds, Inc., 729 F.3d 

1248, 1255 (9th Cir. 2013). We affirm.

The district court properly granted summary judgment on the SEC’s claims 

under § 5(a) and (c) of the Securities Act of 1933 (“Securities Act”) because there 

is no genuine dispute of material fact as to whether Rohner sold unregistered 

securities in interstate commerce. Also, Rohner failed to show that the securities 

were exempt from registration. See 15 U.S.C. § 77e(a), (c) (prohibiting the offer or 

sale of an unregistered security in interstate commerce); CMKM Diamonds, 729 

F.3d at 1255 (elements of a prima facie case for a violation of § 5).

The district court properly granted summary judgment on the SEC’s claims 

under § 17(a)(1) of the Securities Act, § 10(b) of the Securities Exchange Act of 

1934, and Rule 10b–5 because the SEC demonstrated that Rohner knowingly or 

recklessly made material misstatements or omissions in connection with the offer 

or sale of securities in interstate commerce. See 15 U.S.C. § 77q(a)(1) (prohibiting 

the use of “any device, scheme, or artifice to defraud” in connection with the offer 

or sale of any security); 15 U.S.C. § 78j(b) (prohibiting any deceptive practice in 

connection with the purchase or sale of any security); 17 C.F.R. § 240.10b–5(b) 

(prohibiting material misrepresentations in connection with the purchase or sale of 
3 17-16644 

a security); SEC v. Phan, 500 F.3d 895, 907–08 (9th Cir. 2007) (elements of 

§ 17(a), § 10(b), and Rule 10b–5 violations); see also SEC v. Dain Rauscher, 254 

F.3d 852, 856 (9th Cir. 2001) (“Scienter is satisfied by recklessness.” (citation 

omitted)).

The district court correctly exercised its discretion in granting a permanent 

injunction against Rohner because the evidence patently showed “a reasonable 

likelihood of future violations of the securities laws.” SEC v. Murphy, 626 F.2d 

633, 655 (9th Cir. 1980); see also SEC v. Fehn, 97 F.3d 1276, 1295–96 (9th Cir. 

1996) (setting forth standard of review and factors relevant to “predicting the 

likelihood of future violations” including “the degree of scienter involved” and 

“the defendant’s recognition of the wrongful nature of his conduct” (citation 

omitted)).

The district court correctly exercised its discretion in adopting the SEC’s 

disgorgement figure because the SEC met its initial burden to show that the figure 

“reasonably approximates the amount of unjust enrichment” and Rohner failed to 

bear his burden to show otherwise. SEC v. Platforms Wireless Intern. Corp., 617 

F.3d 1072, 1096 (9th Cir. 2010) (further noting that a “district court has broad 

equity powers to order the disgorgement of ill-gotten gains obtained through the 

violation of the securities laws.” (citation omitted)).

Rohner’s challenges to the district court’s preliminary injunction are moot 
4 17-16644 

because Rohner does not challenge any provision incorporated into the district 

court’s permanent injunction. See Burbank–Glendale–Pasadena Airport Auth. v. 

City of Los Angeles, 979 F.2d 1338, 1340 n.1 (9th Cir. 1992) (“Once an order of 

permanent injunction is entered, the preliminary injunction merges with it and 

appeal may be had only from the order of permanent injunction.”).

The district court correctly exercised its discretion by invoking its inherent 

equitable power to appoint a receiver. See SEC v. Capital Consultants, LLC, 397 

F.3d 733, 738 (9th Cir. 2005) (standard of review); SEC v. Wencke, 622 F.2d 1363, 

1369 (9th Cir. 1980) (discussing federal court’s authority to appoint a receiver in 

SEC actions to enforce federal securities laws).

We reject as without merit Rohner’s contentions that he was entitled to a 

jury trial. See In re Slatkin, 525 F.3d 805, 811 (9th Cir. 2008) (“[A] summary 

judgment proceeding does not deprive the losing party of its Seventh Amendment 

right to a jury trial.”).

We do not consider issues or arguments not specifically and distinctly raised 

and argued in the opening brief, or arguments and allegations raised for the first 

time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.