* 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that this opinion should not be published and is not precedent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.

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.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:99-CV-1267-M

--------------------

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. 
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 

-3-

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.