PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES SECURITIES AND EXCHANGE COMMISSION,

Plaintiff - Appellee,

v.

MAXXON, INC.; GIFFORD M. MABIE, JR.,

Defendants - Appellants,

and

THOMAS R. COUGHLIN, JR.,

Defendant.

No. 05-5091

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:02-CV-00975-TCK-SAJ)

Ronald C. Kaufman, Kaufman & Associates, PLLC, Tulsa, OK (Jon B. Wallis, Tulsa, OK, with him on the briefs), for Defendants - Appellants.

Susan S. McDonald, Senior Litigation Counsel (Giovanni P. Prezioso, General Counsel, Eric Summergrad, Deputy Solicitor, and Susan Straus, Attorney, with her on the brief), Securities and Exchange Commission, Washington, DC, for Plaintiff - Appellee.

Before LUCERO, EBEL, and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

Defendants-Appellants Gifford Mabie, Jr. and Maxxon, Inc., the company which Mabie controls, appeal from a jury verdict finding them civilly liable for violating various securities laws and a court judgment imposing various remedies. Exercising jurisdiction under 28 U.S.C. 1291, we AFFIRM.1

BACKGROUND

Mabie founded Maxxon and served, at all relevant times, as its chief executive officer. At the time this lawsuit was filed, he was the company's sole officer and director. Like other small companies with which Mabie was connected, Maxxon never paid him a salary but rather compensated him in shares of stock. Mabie often sold this stock to the public for a substantial profit.

Maxxon was engaged in developing a "safety syringe"—a disposable syringe with a retractable needle. Despite development attempts in conjunction with several different partners, Maxxon never put a marketable syringe into production. Even so, Mabie made numerous statements promoting Maxxon's product. For example, Mabie claimed that Maxxon's syringe could be manufactured for the same price as a standard syringe. Similarly, Mabie stated that the Swedish government was interested in building a facility to manufacture its syringe. However, although a Maxxon representative had met with the Swedish government, no statement of interest was made. Mabie also stated that major companies were interested in purchasing Maxxon; in fact, those companies had made clear that they would not be interested until Maxxon had produced a marketable syringe.

Of particular relevance to this appeal, on October 7, 1998, Maxxon drafted a press release stating that the Patterson Group, a health industry marketing firm, had agreed to help it find a corporate buyer. The release was later issued to the public, although no final agreement between the two parties was ever reached. In addition, Mabie stated that it had submitted an application to the FDA seeking approval to manufacture the syringe. The statement failed to mention that the FDA had put its application on hold because Maxxon had not provided sufficient information. Maxxon attempted to correct this information in mid-July, 2002.

The SEC brought the present lawsuit against Maxxon and Mabie, alleging violations of the securities laws stemming from these statements.2 The complaint alleged, inter alia, that Maxxon and Mabie violated Section 10(b) of the Securities Exchange Act of 1934;3 SEC Rule 10b-5;4 and Section 17(a)(1)-(3) of the Securities Act of 1933.5

At the outset of trial, Maxxon and Mabie filed a motion in limine to exclude the report of Walter Rush, one of the SEC's expert witnesses. Rush's role was to analyze Mabie's stock trades to calculate illegal profits. The motion was denied, although the court ultimately ruled that Rush's testimony before the jury should include only Mabie's personal stock trades and that stock sales by Mabie's trusts must be excluded. During cross-examination, however, it was established that the calculations Rush offered on direct examination had included the trusts; after an objection by Maxxon's and Mabie's counsel, the district court excluded the portion of Rush's testimony pertaining to the shares sold. Rush also played a role in the remedies phase of the trial; the SEC introduced a supplemental report compiled by Rush for the purpose of determining the amount of illegal profits gained by Mabie through sales of stock for the purposes of calculating the amount Mabie would be required to disgorge.

Maxxon and Mabie objected strenuously to the portion of the jury verdict form regarding alleged violations of Section 10(b) and Rule 10b-5. The final form asked the jury to find whether Maxxon and Mabie, respectively, had violated Section 10(b) and Rule 10b-5 "by knowingly or recklessly making false or misleading statements or omissions of material fact with respect to any one of the following," and then listed ten categories of alleged misrepresentations.6 The form asked the jury to answer "yes" or "no" only once, thus requiring the jury to find that a violation had been committed but not to specify which one (or more) of the ten categories formed the basis for the jury's finding. The verdict form also included a space for the jury to indicate, if a violation was found, the earliest date on which a false or misleading statement was made. Maxxon and Mabie argued for a form that required (1) a "yes" or "no" answer as to each category and (2) a start and end date for any violations. The district court denied these requests. The jury returned a verdict finding Maxxon and Mabie had each violated Section 10(b) and Rule 10b-5 and that the earliest date of this violation was October 7, 1998.7

Following a hearing on the SEC's motion for remedies, the district court entered a final judgment against Maxxon and Mabie. After reciting its findings of fact and conclusions of law, the district court imposed the following remedies: it (1) permanently enjoined Maxxon and Mabie from violating Sections 10(b) and 17(a)(2)-(3) and Rule 10b-5; (2) prohibited Mabie from serving as an officer or director of any issuer of a certain class of securities for five years; (3) permanently barred Mabie from participating in any offering of "penny stock"; (4) ordered Mabie to disgorge the $433,228.52 in ill-gotten profits resulting from the securities violations (plus pre-judgment interest);8 and (5) fined Mabie a civil penalty equal to the amount disgorged.

Maxxon and Mabie then filed a motion for a new trial. The district court denied the motion on the ground that it was untimely; the final judgment had been entered on March 11, 2005, and the motion was not filed until March 26, 2005—one day after Fed. R. Civ. P. 52(b)'s and 59(a)'s jurisdictional ten-day filing period ended. Following this ruling, Maxxon and Mabie appealed.

DISCUSSION

Maxxon and Mabie raise five issues on appeal: (1) the jury should have been required to determine an end-date to the Section 10(b)/Rule 10b-5 violations; (2) the jury's finding that the October 7, 1998 draft press release constituted a violation of the securities laws is erroneous; (3) the findings of fact recited in the district court's final judgment are contrary to the jury's verdict; (4) the district court erred in accepting Rush's supplemental report in determining remedies; and (5) the district court erred in denying Maxxon's and Mabie's motion for a new trial as untimely. Based in part on the limited record before us, we reject all of these contentions.

I.
The verdict form asked the jury to determine, inter alia, (1) whether statements made by Maxxon and Mabie relating to various topics were false or misleading in violation of Section 10b and Rule 10b-5, and (2) if so, the earliest date on which such a statement was made. Maxxon and Mabie contend that these instructions were erroneous because the jury should have been required to "provide both a start date and a cut-off date for each violation."

To the extent that Maxxon and Mabie claim the jury was improperly instructed on the elements of a Section 10b/Rule 10b-5 claim (i.e., that those claims require a finding of a cut-off date), we disagree. To establish a Section 10(b) and/or Rule 10b-5 violation, the SEC must prove the following: "(1) a material misrepresentation, (2) in connection with the purchase or sale of a security, (3) scienter, and (4) use of the jurisdictional means." Geman v. S.E.C., 334 F.3d 1183, 1192 (10th Cir. 2003) (Rule 10b-5) (quotation, alteration omitted); see also In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 6 (1st Cir. 2005) (noting that the elements of a Section 10(b) claim and a Rule 10b-5 claim are the same). The date on which a violation ends is simply not a necessary element of proving a violation.9

Maxxon and Mabie also argue that, without a jury finding as to the end-
date of the violation, the district court could not properly calculate disgorgement. Disgorgement being remedial rather than punitive, see S.E.C. v. Cavanagh, 445 F.3d 105, 116 & n.25 (2d Cir. 2006), some end-date determination is certainly necessary so that the defendant is not required to disgorge profits not "causally connected to the violation." Arnold S. Jacobs, Disclosures & Remedies Under the Securities Laws 20:109 (footnote omitted); cf. S.E.C. v. MacDonald, 699 F.2d 47, 52-55 (1st Cir. 1983) (en banc) (holding that disgorgement was appropriate only as to the profits made prior to the time insider information was made public). However, here, the district court did determine an end-date—July 15, 2002, the date on which it found Maxxon and Mabie "first sought to correct some of their misleading statements." "Disgorgement is by nature an equitable remedy as to which a trial court is vested with broad discretionary powers." Jacobs, supra, at 20:109 (footnotes omitted). So long as the end date chosen results in a "reasonable approximation" of illegal profits, id., there is nothing wrong with the court itself determining that date. See, e.g., SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1474-75 (2d Cir. 1996) ("The district court has broad discretion not only in determining whether or not to order disgorgement but also in calculating the amount to be disgorged.").10
II.

As noted, the jury found that the earliest date of a Section 10(b)/Rule 10b-5 violation was October 7, 1998. Maxxon and Mabie contend that the only "statement" made on that date was the draft of a press release announcing that the Patterson Group had agreed to help Maxxon find a corporate buyer, and that this statement could not constitute a "material misrepresentation." Thus, Maxxon and Mabie argue, the district court should have granted their motion for judgment as a matter of law and/or a new trial, as the jury's verdict was in error.

Maxxon and Mabie's argument is, essentially, that (1) the October 7 draft press release was not made public and so cannot be deemed a material misrepresentation, (2) Patterson agreed to participate in finding a corporate buyer for Maxxon on October 9, and thus (3) the statement made in the draft release (i.e., the Patterson/Maxxon agreement) was accurate when the statement was "made" (e.g., when the press release was distributed) on October 14, 1998. The SEC contends that the October 9 communication from Patterson was not an agreement (as Patterson conditioned any agreement on receiving additional information and a $50,000 retainer from Maxxon), suggesting that the October 14 public release was, in fact, false.11

Neither the October 7 draft release, nor the October 9 communication, nor the October 14 release, nor the trial testimony concerning these releases is included in the record. Without these documents, we cannot evaluate this claim and therefore must affirm.12 Scott, 216 F.3d at 912.

III.

Maxxon and Mabie also argue that the findings of fact made in the district court's final judgment order "directly contradict" the jury's findings, as the findings include events and statements that occurred before October 7, 1998—the date that the jury found the Section 10(b)/Rule 10b-5 violations began. We review the district court's findings of fact for clear error. Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 829 (10th Cir. 2005).

Maxxon and Mabie do not claim that the district court took these pre-
October 7, 1998 statements into consideration when fashioning remedies; they contend only that "[i]f the Jury found the Earliest Date of a misrepresentation to be October 7, 1998, it is clear error for the court to list eight statements made prior to October 7th." (Emphasis added.) The jury's verdict does not suggest that the pre-October 7 statements were not made, only that they were not violations. The findings of fact begin by stating that "Maxxon and Mabie made public statements promoting Maxxon to the public, some of which were found by the jury to have violated Section 10(b) and Rule 10b-5, as well as Sections 17a(2) and (3)." (Emphasis added.) This finding, and the subsequent recitation of pre-
October 7 statements, do not conflict with the jury's verdict.13

In addition, the jury found that Maxxon and Mabie violated both Section 10(b)/Rule 10b-5 and Section 17(a)(2)-(3). The jury's Section 17(a) finding included no start date. Thus, even assuming the findings of fact were reciting the pre-October 7 statements as statements violating the "securities laws," such a finding would not be inconsistent with the jury's verdict on Section 17(a).
IV.

Maxxon and Mabie raise two basic arguments concerning the district court's acceptance of the supplemental report of the SEC's expert witness, Walter Rush: (1) the report was based on facts not in evidence; and (2) the district court's acceptance of the report violated Maxxon's and Mabie's due process rights. "We review a trial court's admission of expert testimony for abuse of discretion, and we will reverse only when that decision is manifestly erroneous." United States v. Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005) (quotations omitted).

A.

The SEC submitted Rush's supplemental report after the liability phase of the proceedings and in anticipation of the remedies phase. According to the parties, this report calculated the disgorgement amount that was subsequently relied on by the district court. Maxxon and Mabie contend this was error, as the district court struck Rush's testimony and his original report at trial and, thus, the supplemental report was based on "unsupported" calculations—that is, facts not in evidence.14

The district court's docket indicates that before trial, Maxxon and Mabie moved to exclude Rush's original report and testimony. The motion was denied. At trial, Rush's original report was admitted and Rush testified to the number of shares of Maxxon stock sold by Mabie. On cross-examination, Rush admitted that this calculation was based on shares sold by Mabie and Mabie's trusts. Defense counsel objected to this testimony as contrary to the court's earlier ruling that the testimony should include only shares sold by Mabie. After discussion between the court and counsel, the court told the jury:

Ladies and gentlemen, as a result of our efforts, we have identified some errors in the calculations of those shares that pertain to the stock sold by Mr. Mabie. And with respect to those shares, you are to disregard the testimony that has been given to date.

(Emphasis added.)

Contrary to Maxxon's and Mabie's argument, then, there is no indication that Rush's report, or any of the data underlying it, was excluded by the district court at trial. Indeed, the district court itself stated that the report and underlying exhibits were not excluded at trial. In making findings of facts in its final judgment order (issued after the remedies stage of the proceedings), the court noted:

The [supplemental] report clearly does not constitute new evidence. Rather, it represents argument based upon the evidence actually admitted at trial, namely, specifically identified exhibits and the expert report of Walter K. Rush.

Further, the only evidence in the record provided to us indicates that Rush's supplemental report was merely a "ministerial" recalculation of the data accepted into evidence at trial.15 Thus, we cannot conclude that Rush's supplemental report was unsupported.

B.

Maxxon and Mabie also argue that the acceptance by the district court of Rush's supplemental report during the remedies phase of the proceeding violated their due process rights because the district court accepted Rush's supplemental report without giving them an opportunity to cross-examine him. Assuming there exists a due process right to cross-examine a witness who presents information used in imposing civil remedies against a party, see Goldberg v. Kelly, 397 U.S. 254, 269 (1970) ("In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."), we cannot grant Maxxon and Mabie relief on that ground in this case.

Maxxon and Mabie concede that they were given the opportunity to cross-
examine Rush during the jury trial. As noted above, the only evidence in the record before us indicates that Rush's supplemental report was, as the district court described, a "ministerial" re-calculation of data in the trial record. We thus see no reason why additional cross-examination during the remedies phase would be necessary to satisfy basic requirements of due process. As the record is insufficient to conclude that the supplemental report contained any information that might trigger some right to cross-examine the report's author, we reject Maxxon and Mabie's due process argument. Scott, 216 F.3d at 912.16

Maxxon and Mabie further argue that they were not allowed to present evidence concerning the amount of disgorgement. Without the relevant portions of the transcript of the remedies hearing, we are unable to review this claim. We note, however, that the district court's final judgement expressly states that Maxxon and Mabie "offered an alternative calculation for determining the value of Defendant Mabie's ill-gotten gains." This suggests that Maxxon and Mabie were, in fact, afforded some opportunity to present rebuttal evidence.17
V.

Finally, Maxxon and Mabie argue that the district court erred in finding their motion for a new trial untimely. According to Maxxon and Mabie, counsel attempted to file the motion electronically before the midnight filing deadline on March 25, 2005.18 See Fed. R. Civ. P. 59(b) (allowing ten days from the entry of judgment for a motion for a new trial to be filed). However, due to technical problems,19 the motion was not submitted until after the deadline. The district court ruled that Rule 59's time limits are jurisdictional, and thus it could not entertain the motion.

The district court's electronic filing system contains the following safeguards for late filings due to technical failures:

COURT'S ECF SYSTEM

A technical failure exists when the ECF System is unable to accept filings continuously or intermittently over the course of any period of time greater than two (2) hours after 12:00 p.m. that day. Check the Court's website for postings regarding any other ECF System outages or downtimes. Should a filing be made untimely as the result of a technical failure of the Court's ECF System, the filer may seek appropriate relief from the assigned judge.

FILER'S SYSTEM

Problems on the filer's end, such as phone line problems, problems with the filer's Internet Service Provider (ISP), or hardware or software problems, will not constitute a technical failure under these procedures or excuse an untimely filing. Upon a showing of good cause, the assigned judge may grant appropriate relief for an untimely filing.

CM/ECF Instruction Manual, 2. Technical Information/Support/Hardware-
Software, available at http://www.oknd.uscourts.gov/okndpublic/cminstex.nsf/

e1df95432b8fe773862567ca00573ae3/8eaa0533de15e99186256e6e00537c58?Ope
nDocument (last visited Aug. 2, 2006.).

Maxxon and Mabie do not claim (nor does the record suggest) that they sought any such relief. Without some attempt to ameliorate their late filing, the district court did not err in ruling the motions untimely.20

CONCLUSION

For the foregoing reasons, we AFFIRM.