     09-0115-cv
     US Commodity Futures Trading Comm v. Rolando

 1                     UNITED STATES COURT OF APPEALS
 2                         FOR THE SECOND CIRCUIT
 3
 4                              SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
 7   CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
 8   IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 9   PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
10   SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
12   DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
13   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
14   REPRESENTED BY COUNSEL.
15
16          At a stated term of the United States Court of Appeals for the Second Circuit,
17   held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
18   the City of New York, on the 9 th day of March, two thousand ten.
19
20
21   PRESENT:
22                GERARD E. LYNCH,
23                          Circuit Judge,
24                DENNY CHIN,*
25                          District Judge.**
26
27   Daniel Alonso,
28
29                Receiver-Appellee,
30
31   US Commodity Futures Trading Commission,
32
33                Plaintiff-Appellee,
34
35                v.                                               09-0115-cv


           *
              The Honorable Denny Chin, of the United States District Court for the Southern
     District of New York, sitting by designation.
           **
              The Honorable Rosemary S. Pooler, originally a member of this panel, did not
     participate in the consideration of this appeal. The two remaining members of the panel,
     who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. I.O.P.
     E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1   Frederico R. Martinez Trigueros,
 2
 3                 Interested-Party-Appellant,
 4
 5   Diego Mariano Rolando, also known as
 6   Roclerman, also known as ROC, doing
 7   business as IA Trading.com Inc.,
 8
 9                 Defendant.
10
11   FOR APPELLANT:                      Federico R. Martinez Trigueros, pro se, Buenos Aires,
12                                       Argentina.
13
14   FOR APPELLEES:                      Terry S. Arbit, General Counsel, Bradford M. Berry,
15                                       Deputy General Counsel, Leslie Randolph, Assistant
16                                       General Counsel, Commodity Futures Trading
17                                       Commission, Washington, D.C.
18
19                                       Daniel R. Alonso, Andrew A. Kress, Kaye Scholer
20                                       LLP, New York, NY.
21
22         Appeal from the United States District Court for the District of Connecticut (Mark
23   R. Kravitz, Judge).
24
25          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

26   AND DECREED that the order of the district court is AFFIRMED.

27          Appellant Federico R. Martinez Trigueros appeals from the judgment of the United

28   States District Court for the District of Connecticut, approving the court-appointed

29   receiver’s distribution plan over Appellant’s objection. We assume the parties’

30   familiarity with the underlying facts, the procedural history of the case, and the issues on

31   appeal.

32          We have jurisdiction to entertain this interlocutory appeal under 28 U.S.C.

33   § 1292(a)(1) because the district court’s order effected a modification of the freeze order

34   entered first as a statutory restraining order and then continued as a preliminary


                                                   2
 1   injunction. See SEC v. Credit Bancorp, Ltd., 290 F.3d 80, 86-87 (2d Cir. 2002).

 2          We review a district court’s decision relating to the choice of distribution plan for

 3   a receivership estate for abuse of discretion. Id. at 87. “Courts have favored pro rata

 4   distribution of assets where . . . the funds of the defrauded victims were commingled and

 5   where victims were similarly situated with respect to their relationship to the defrauders.”

 6   Id. at 88-89. Here, we find no abuse of discretion in the district court’s well-reasoned

 7   finding that pro rata distribution was the most equitable remedy for the fraud perpetuated

 8   here. As the district court properly found, the investors, including Appellant, were

 9   similarly situated with respect to the extent to which the defendant exercised control over

10   their accounts, as well as with respect to their shared understanding that all of the

11   customer accounts would be traded together. Moreover, this is not a case in which

12   Appellant’s assets were “segregated in the manner of true trust accounts” or “had never

13   been placed in the defrauder’s control,” as in cases in which some courts have permitted

14   the return of assets to particular victims. Id. at 90.

15          We decline to consider Appellant’s claim, raised for the first time in his reply

16   brief, regarding the denial of his request for a cash advance. See Graham v. Henderson,

17   89 F.3d 75, 82 (2d Cir. 1996). However, we have carefully considered Appellant’s

18   remaining claims and find them to be without merit.

19          For the foregoing reasons, the order of the district court is AFFIRMED.
20
21                                               FOR THE COURT:
22
23                                               Catherine O’Hagan Wolfe, Clerk
24




                                                    3
