NOT FOR PUBLICATION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, 2 019 **
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, CLER K U.S. COURT OF APPEAL S2 17

- 16644

a civil enforcement action brought by the Securities and Exchange Commission (“SEC”) alleging violat ions of federal securities laws

. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

. S EC v. CMKM Diamonds, Inc. , 729 F.3d 1248, 1255 (9th Cir. 20 13 ). We affirm

. The district court properly granted summa ry judgment on the SEC’s claims
under § 5(a) and (c) of the Securiti es Act of 1933 (“Securities Act”) because the re 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 fac ie case for a violation of § 5)

. The district court properly granted summary judgment on t he SEC’s claims under § 17(a)( 1 ) of the Securities Act , § 10(b) of the S ecurities Exchange Act of
1934 , and Rule 10b

– 5 becau se the SEC demonstrated that Rohner knowingly or recklessly made material misstatements or omissions in connection with the offer

or sale of securit ies in interstate commerce. See 15 U.S.C. § 7 7 q(a)(1) (prohibiting the use of “any device, scheme, or artifice to defraud ” in connection with the offer or sale of a ny security); 15 U.S.C. § 7 8 j(b) (prohibiting any deceptive practice in

con nection 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 of3 17

- 16644

a security); SEC v. Phan , 500 F.3d 895, 907

– 08 (9th Cir. 2007) (elements of § 17(a), § 10(b), a nd Rule 10b

– 5 violations); see also SEC v. Dain Rauscher , 254 F.3d 852, 856 (9th Cir. 2001) ( “ S cienter is satisfied by recklessness .” (citation omitted))

. The district court correctly exercised its discretion in granting a permanent injunction against Rohner because the evidence patently show ed “a reasonable
likelihood of future vi olations 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 distric t 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 other wise. 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.” (citati on omitted)). Rohner’s challenges to the district court’s preli minary injunction are moot4 17

- 16644

b ecause 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 aut hority 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 ap peal. See Padgett v. Wright , 587 F.3d 983, 985 n.2 (9th Cir. 2009 ).
AFFIRMED.