                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 21 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SECURITIES AND EXCHANGE
    COMMISSION,

                Plaintiff-Appellee,
                                                          No. 99-4233
    v.                                              (D.C. No. 95-CV-110-C)
                                                           (D. Utah)
    MICHAEL CARNICLE,

                Defendant-Appellant,

          and

    ARIE FROM,

                Defendant.


                             ORDER AND JUDGMENT           *




Before TACHA , PORFILIO , and EBEL , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Michael Carnicle appeals from summary judgment granted in favor of the

Securities and Exchange Commission (SEC) in a civil law enforcement action.

Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

      We review the district court’s grant of summary judgment de novo.

See McKnight v. Kimberly Clark Corp.     , 149 F.3d 1125, 1128 (10th Cir. 1998).

In conducting that review, we

      examine the record to determine whether any genuine issue of
      material fact was in dispute; if not, we determine whether the
      substantive law was applied correctly, and in so doing we examine
      the factual record and reasonable inferences therefrom in the light
      most favorable to the party opposing the motion.

Id. (quotations and citations omitted). There is no genuine issue of fact “[w]here

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party.”    Matsushita Elec. Indus. Co. v. Zenith Radio Corp.    , 475 U.S.

574, 587 (1986). We also review de novo a court’s legal conclusion that evidence

submitted on summary judgment is admissible for purposes of summary judgment.

See, e.g., SEC v. American Commodity Exch., Inc.    , 546 F.2d 1361, 1369 (10th Cir.

1976) (determining in de novo review that sworn SEC investigative statements are

affidavits admissible for summary judgment purposes);      United States v. Mills , 372




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F.2d 693, 697 (10th Cir. 1966) (independently reviewing affidavit submitted by

nonmoving party and determining that court erred in refusing to consider it).

      In granting summary judgment, the district court determined that Mr.

Carnicle had presented no evidence to refute the SEC’s statement of facts and its

supporting documentary evidence on which the right to summary judgment was

premised. To support its grant of summary judgment, the district court relied on a

deposition taken in an earlier civil enforcement action in which Mr. Carnicle was

not a party, but which involved two mutual funds that the SEC alleged Mr.

Carnicle secretly controlled and illegally operated. It also relied on a number of

investigative sworn statements submitted in the prior case. The district court

further considered deposition testimony taken in Mr. Carnicle’s absence in the

case at bar.

      On appeal, Mr. Carnicle argues that the court improperly relied on this

evidence, asserting that the deposition and sworn statements taken in the prior

case were inadmissible because he was not a party to that suit and because he had

no opportunity to cross-examine any of the affiants or deponents. Mr. Carnicle

confuses the quality and type of evidence that is admissible at a trial and that

which is admissible for purposes of summary judgment.      Ex parte affidavits or

any other type of sworn testimony are always admissible for summary judgment

purposes as long as the testimony is of a type that would be admissible if the


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swearing witness testified at a trial on the matter.    See Fed. R. Civ. P. 56(e)

(providing that affidavits must “set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to

the matters stated therein”);   Thomas v. International Bus. Machs.    , 48 F.3d 478,

485 (10th Cir. 1995) (stating that a party need not produce evidence in a form that

would be admissible at trial, but the substance of the evidence must be

admissible). We have previously held that sworn statements taken in the course

of SEC investigations are the equivalent of affidavits, and as such, they may be

used to support a motion for summary judgment.         See American Commodity Exch. ,

546 F.2d at 1369. The fact that Mr. Carnicle was not a party in the first civil suit

arising from that investigation does not make the affidavits or the deposition

taken in conjunction with that case inadmissible for summary judgment purposes.

See St. Louis Baptist Temple, Inc. v. FDIC      , 605 F.2d 1169, 1172 (10th Cir. 1979)

(holding that it is proper for court to consider records of other related proceedings

in granting summary judgment). Mr. Carnicle argues that the court accepted

hearsay in the affidavits and depositions as evidence, but he does not point out

which testimony he alleges is hearsay. We hold that the district court properly

relied on the affidavits and deposition testimony in granting summary judgment.

       We also reject Mr. Carnicle’s unsupported claim that, when determining

what amount of money should be disgorged, the district court improperly drew


                                              -4-
inferences and construed the evidence in favor of the SEC instead of in his favor

as the nonmoving party. The SEC presented unrebutted clear and convincing

evidence demonstrating that Mr. Carnicle received benefit from the full amount of

the ill-gotten gains, thus the court’s decision was not based upon an

impermissible inference but rather on unrebutted evidence.

      Mr. Carnicle next argues that if the district court relied on a Fifth

Amendment presumption against him, its decision should be reversed. Because

the district court expressly stated that it did not draw any negative inferences

from the fact that Mr. Carnicle asserted his Fifth Amendment right to remain

silent, we hold that there is no issue regarding the Fifth Amendment.

      All that Mr. Carnicle had to do to survive summary judgment was present

sworn testimony refuting the material allegations made in the summary judgment

evidence presented by the SEC.    See Fed. R. Civ. P. 56(e). This he did not do.

We have carefully reviewed the parties’ pleadings and briefs, the record on

appeal, and the district court’s decision, and have considered them in light of the

applicable law. Mr. Carnicle’s conclusory statements on appeal are insufficient

to show there is a genuine issue of material fact or that the SEC is not entitled to

summary judgment as a matter of law.




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    The judgment of the United States District Court for the District of Utah is

AFFIRMED .



                                                 Entered for the Court



                                                 John C. Porfilio
                                                 Circuit Judge




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