
USCA1 Opinion

	




      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 97-2275               SECURITIES AND EXCHANGE COMMISSION,                       Plaintiff, Appellee,                                v.                     ELLIS L. DEYON, ET AL.,                      Defendants, Appellees.                           __________                                                      BRADLEY T. GULLETT,                                                     Defendant, Appellant.                      ____________________                                No. 97-2276              SECURITIES AND EXCHANGE COMMISSION,                                                      Plaintiff, Appellee,                                                               v.                                                    ELLIS L. DEYON, ET AL.,                                                     Defendants, Appellees.                                                           __________                                                       SHERWOOD H. CRAIG,                                                     Defendant, Appellant.                     ______________________No. 97-2277              SECURITIES AND EXCHANGE COMMISSION,                                                      Plaintiff, Appellee,                                                               v.                                                    ELLIS L. DEYON, ET AL.,                                                     Defendants, Appellees.                           __________                                                         WILLIAM HANKE,                                                     Defendant, Appellant.                                         APPEALS FROM THE UNITED STATES DISTRICT COURT                                                   FOR THE DISTRICT OF MAINE                                          [Hon. Morton A. Brody, U.S. District Judge]                                                             Before                                                     Boudin, Circuit Judge,                 Coffin, Senior Circuit Judge,                   and Lynch, Circuit Judge.                                                                     Bradley T. Gullett on brief pro se.     Sherwood H. Craig on brief pro se.     Richard H. Walker, General Counsel, Jacob H. Stillman,Associate General Counsel, Katharine B. Gresham, Assistant GeneralCounsel, and Diane v. White, Senior Counsel, on brief for theSecurities and Exchange Commission, appellee.July 1, 1998            Per Curiam.  Having carefully reviewed the record in    this case, including the briefs of the parties, we affirm the    judgment of the district court, essentially for the reasons    given by the district court in its findings of fact and    conclusions of law, dated August 21, 1997.  We limit ourselves     to the following remarks.               Like the district court, we find that the investment    of pooled funds in a common account from which investors were    to be paid interest on a pro rata basis constitutes a "common    enterprise" for the purpose of investment contract analysis.     The claim that the fixed interest payments promised investors    does not constitute "profit" was not raised with sufficient    clarity below and hence has been waived on appeal absent    exceptional circumstances.  See In re Rauh, 119 F.3d 46, 51    (1st. Cir. 1997).  No such circumstances exist in this case.              We further find no clear error in the district court    determination that defendants/appellants acted with the    required scienter in offering these securities.  Finally, the    district court did not abuse its discretion in imposing the    penalties it assessed or in denying the belated request for a    jury trial made by defendants/appellants.              Affirmed.
