                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 21 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SECURITIES AND EXCHANGE                          No. 10-16238
COMMISSION,
                                                 D.C. No. 2:07-cv-00506-LDG-RJJ
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

GERALD LEVINE and MARIE LEVINE,

              Defendants - Appellants,

  and

WIRE TO WIRE, INC.; et al.,

              Defendants.



                   Appeal from the United States District Court
                            for the District of Nevada
                 Lloyd D. George, Senior District Judge, Presiding

                            Submitted December 6, 2011 **
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TROTT and BEA, Circuit Judges, and PALLMEYER, District Judge.***

      This is an appeal from a motion for summary judgment; the facts are not

repeated as the parties are familiar with them. We affirm.

      The Levines waived the argument that their fraudulent conduct outside the

United States is not covered by the securities laws, as the Levines never brought

this argument before the district court such that the district court could rule on it.

Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000). Even were this

argument not waived, the Securities Act governs the Levines’ sales because the

actual sales closed in Nevada when Marie Levine received completed stock

purchase agreements and payments. Morrison v. National Australia Bank, Ltd.,

130 S. Ct. 2869 (2010).

      No reasonable jury could find otherwise than that Gerald Levine was

directly and personally involved in the material misrepresentations and omissions

in connection with the sales of securities occurring in the Barcelona boiler room.

See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 383 (9th Cir. 2010). Similarly,

there is no evidence to contradict that Marie Levine consummated the sales

initiated in the Barcelona boiler room and that she failed to make material



        ***
             The Honorable Rebecca R. Pallmeyer, District Judge for the U.S.
District Court for Northern Illinois, sitting by designation.

                                            2
disclosures to the buyers of securities. While the Levines argue that one deponent

is not credible because he had previously pleaded guilty to securities fraud, the

Levines did not argue below that this deponent’s previous conviction affected his

credibility—the Levines instead argued below that his previous conviction was

irrelevant. Therefore, because their argument that the deponent’s evidence lacked

credibility was not raised before the district court, it is waived. Abogados, 223

F.3d at 937. In any case, the Levines do not present evidence contrary to that

presented by the government. Impeachment evidence as to such deponent alone is

not sufficient to create a genuine issue of material fact. See Grupo Gigante SA De

CV v. Dallo & Co., Inc., 391 F.3d 1088, 1099 (9th Cir. 2004) (“One survey that is

impeachable, but still good enough to get to a jury, weighed against no survey

evidence at all on the other side, along with all the other evidence in the record,

does not necessarily add up to a genuine issue of fact.”). Therefore, the district

court correctly granted summary judgment.

      Finally, the district court did not err in its calculation of disgorgement. The

SEC offered evidence of the revenue generated by the sales of JRS and Nu Star

stock, meeting its initial burden to present a disgorgement figure that “reasonably

approximates the amount of unjust enrichment.” SEC v. Platforms Wireless Intern.

Corp., 617 F.3d 1072, 1096 (9th Cir. 2010) (internal quotation marks omitted).


                                           3
Total proceeds are a “reasonable approximation of the profits obtained from the

unlawful sales.” Id. After the SEC presented a reasonable approximation, the

burden shifted to the Levines to rebut this figure, and they offered no evidence to

do so. Id.

      AFFIRMED.




                                          4
