NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES SECURITIES AND EXCHANGE COMMISSION ,

Plaintiff

- Appelle e ,

v. TROY LYNDON ,

Defendant

- Appellant

. No. 14

- 16733
D.C. No. CV13

- 00486 SOM

- KSC
MEMORANDUM *

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding Submitted March12, 2018 **
Before: THO MAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges. Plaintiff, the United States Securities and Exchange Commission (“SEC”), sued Defendant Troy L yndon f or vio lating the securities laws. Lyndon entered into a consent agreement with the SEC in which he neither admitted n or denied the SEC’s allegations. Per t he agreement, the district court entered judgment against

* 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

MAR 14 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Lyndon in November 2013, but it left for a later date the determination of the amount of disgorgement and civil penalties that Lyndon should pay in a final judgment

. In August 2014, the distric t court ordered Lyndon to disgorge $3,251,169 in ill

- gotten gains (plus prejudgment interest) and pay a $150,000 civil penalty . On appeal, Lyndon challenges the district cour t’s calculation o f the disgorgement and penalty. He also argues that the district co urt erred in denying his discovery motions and his Rule 60(b)(1) motion for relief from the first judgment. We affirm.
1. The district court did not abuse its discretion in ordering Lyndon to disgorge $3,251,169 in ill

- gotten gains. See SEC v. Platforms Wireless Intern. Corp. , 617 F.3d 1072 , 1096 (9th Cir. 2010) (“ We review orders of disgorgement for an abuse of discretion. ”). “A district court has broad equity powers t o order the disgorgement of ill

- gotten gains obtained through the violation of the secu rities laws. . . . The amount of disgorgement should include all gains flowing from the illegal activities. Disgorgement n eed be only a reasonable approx imation of profits causally connected to the violation.” Id. Here, the district court re lied on the all egations in the consent judgment

— allegations that Lyndon agreed would be deemed as true for purposes of calculating the amount of disgorgement

— to conclude that the SEC met its initial burden to demonstrate that the amount sought “reasonably approximates th e amount of unjust enrichment.” This initial3

determination shifted the burden to Lyndon to show that the amount sought was not a “reasonable approximation” of his illicit gains. Lyndon failed to sat isfy this burden. 2. The district court’s decision to im pose a $150,000 civil penalty was well within its discretion. Accepting the allegations in the c omplaint as true, the court found that, “[o]ver a lengthy period of time, Lyndon perpetrated a fraud that caused people

. . . to invest about $4.6 million in a company that was not financially solvent. . . . The $150,000 amount represents a small frac tion of the money invo lved in the fraudulent scheme.” Given that finding, a $150,000 penalty was within the court’s discretion. See 15 U.S.C. § 78u(d)(3)(B)(iii) (al lowing f or a penalty that “shall not ex ceed the greater of” a $150,000

- per - violation cap or “the gross amount of pecuniary gain . . . result[ing] [from] the violation”).
3

. Any error in the district court’s discovery rulin gs could not have prejudiced Lyndon , because the district court relied on facts admitted to be true in the consent judgment to determine the amount of disgorgement

. See Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002) (stating that a district court’s “ decision to deny discovery will not be disturbed except upon the clearest showing that denial of disc overy results in actual and sub stantial prejud ice to the complaining litigant ” (quotation, citation, and alteration omitted) ).
4 . We construe Lyndon’s cha llenge to the first judgment as an appeal of the4

district court’s denial of his Rule 60(b) motion for relief from that judgment

. 1 Reviewing for abuse of discretion, Latshaw v. Trainer Wortham & Co., Inc. , 452 F.3d 1097, 1100 (9th Cir. 2006), we conclude th at the district court did not abuse its discr etion in rejecting Lyndon’s unconvincing argument that he did not understand the mean ing of the consent agreement when he signed it

. Moreover, even if Lyndon was mistaken about the legal effect of the consent ag reement, his “mistake” was not of the type that would enti tle him to relief under Rule 60(b)(1). See id. at 1101 (“For purposes of subsection (b)(1), part ies should be bound by and

ac countable for the deliberate actions of themselves and their chosen couns el.”). Lyndon’s new argument

— essentially, that he should be released from the consent agreement because of the SEC’s alleged discovery abuses

— is unpersuasive , because it relies on the erroneo us premise that the discovery Lyndon sought was highly relevant t o the district court’s calculation of the disgorg e ment and penalty. 2
AFFIRMED.

1 To the extent that Lyndon directly challenges the first judgment, that challenge is forecl osed by the appeal w aiver in the consent agreement. 2 Lyndon also argues that the district court erred when it declined to indicate that it would entertain a new Rule 60(b) motion were this case remanded for such a purpose. We lack jurisdiction to review that order

. Davis v. Yageo Corp. , 481 F.3d 661, 685 (9th Cir. 2007)

.