Securities and Exchange Commission v. Marcus A. Luna et al

Filing 41

FINAL JUDGMENT AS TO DEFENDANT DUSTIN S. SMITH by Judge Beverly Reid O'Connell. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently restrained and enjoined. FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable fo r disgorgement of $237,361, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $7,165, and a civil penalty in the amount of $15,000 pursuant to S ection 20(d) of the Securities Act, 15 USC 77t(d) and Section 21(d)(3) of the Exchange Act, 15 USC 78u(d)(3). Defendant shall satisfy this obligation by paying $259,526 to the Securities and Exchange Commission within 14 days after entry of this Final Judgment. (SEE ATTACHMENT FOR FURTHER DETAILS). Related to: Stipulation for Judgment 39 . (jp)

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DAVID J. VAN HAVERMAAT, Cal. Bar No. 175761
Email: [e-mail]
LUCEE S. KIRKA, Cal. Bar No. 121685
Email: [e-mail]
Attorneys for Plaintiff
Securities and Exchange Commission
Michele Wein Layne, Regional Director
John W. Berry, Associate Regional Director
Amy J. Longo, Regional Trial Counsel
444 S. Flower Street, Suite 900
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,

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NO JS-6

vs.
MARCUS A. LUNA, NORRELL L.
WALKER, PAUL L. GOMEZ, and
DUSTIN S. SMITH,
Defendants.

Case No.: CV-16-07333 BRO (SKx)
[PROPOSED] FINAL JUDGMENT AS
TO DEFENDANT DUSTIN S. SMITH

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The Securities and Exchange Commission (“SEC” or “Commission”) having

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filed a Complaint and Defendant Dustin S. Smith (“Defendant”) having entered a

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general appearance; consented to the Court’s jurisdiction over Defendant and the

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subject matter of this action; consented to entry of this Final Judgment without

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admitting or denying the allegations of the Complaint (except as to jurisdiction and

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except as otherwise provided herein in paragraph VI); waived findings of fact and

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conclusions of law; and waived any right to appeal from this Final Judgment:

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I.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is

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permanently restrained and enjoined from violating Section 5 of the Securities Act of

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1933 (“Securities Act”) [15 U.S.C. § 77e] by, directly or indirectly, in the absence of

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any applicable exemption:

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(a)

Unless a registration statement is in effect as to a security, making use of

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any means or instruments of transportation or communication in

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interstate commerce or of the mails to sell such security through the use

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or medium of any prospectus or otherwise;

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(b)

Unless a registration statement is in effect as to a security, carrying or

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causing to be carried through the mails or in interstate commerce, by any

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means or instruments of transportation, any such security for the purpose

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of sale or for delivery after sale; or

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(c)

Making use of any means or instruments of transportation or

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communication in interstate commerce or of the mails to offer to sell or

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offer to buy through the use or medium of any prospectus or otherwise

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any security, unless a registration statement has been filed with the

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Commission as to such security, or while the registration statement is the

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subject of a refusal order or stop order or (prior to the effective date of

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the registration statement) any public proceeding or examination under

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Section 8 of the Securities Act [15 U.S.C. § 77h].

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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II.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that

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Defendant is permanently restrained and enjoined from violating, directly or

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indirectly, Section 15(a) of the Securities Exchange Act of 1934 (“Exchange Act”),

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15 U.S.C. § 78o(a), which makes it unlawful for any broker or dealer which is either

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a person other than a natural person or a natural person, to make use of the mails or

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any means or instrumentality of interstate commerce to effect any transactions in, or

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to induce or attempt to induce the purchase or sale of, any security (other than an

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exempted security or commercial paper, bankers’ acceptances, or commercial bills)

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unless such broker or dealer is registered in accordance with Section 15(b) of the

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Exchange Act, 15 U.S.C. § 78o(b).

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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III.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that
Defendant is permanently barred from participating in an offering of penny stock,
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including engaging in activities with a broker, dealer, or issuer for purposes of

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issuing, trading, or inducing or attempting to induce the purchase or sale of any penny

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stock. A penny stock is any equity security that has a price of less than five dollars,

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except as provided in Rule 3a51-1 under the Exchange Act [17 C.F.R. 240.3a51-1].

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IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is liable for disgorgement of $237,361, representing profits gained as a result of the

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conduct alleged in the Complaint, together with prejudgment interest thereon in the

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amount of $7,165, and a civil penalty in the amount of $15,000 pursuant to Section

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20(d) of the Securities Act, 15 U.S.C. § 77t(d) and Section 21(d)(3) of the Exchange

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Act, 15 U.S.C. § 78u(d)(3). Defendant shall satisfy this obligation by paying

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$259,526 to the Securities and Exchange Commission within 14 days after entry of

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this Final Judgment.

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Defendant may transmit payment electronically to the Commission, which will

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provide detailed ACH transfer/Fedwire instructions upon request. Payment may also

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be made directly from a bank account via Pay.gov through the SEC website at

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http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified

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check, bank cashier’s check, or United States postal money order payable to the

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Securities and Exchange Commission, which shall be delivered or mailed to

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Enterprise Services Center

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Accounts Receivable Branch

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6500 South MacArthur Boulevard

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Oklahoma City, OK 73169

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and shall be accompanied by a letter identifying the case title, civil action number,

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and name of this Court; Dustin Smith as a defendant in this action; and specifying

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that payment is made pursuant to this Final Judgment.

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Defendant shall simultaneously transmit photocopies of evidence of payment
and case identifying information to the Commission’s counsel in this action. By
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making this payment, Defendant relinquishes all legal and equitable right, title, and

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interest in such funds and no part of the funds shall be returned to Defendant. The

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Commission shall send the funds paid pursuant to this Final Judgment to the United

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States Treasury. The Commission may enforce the Court’s judgment for

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disgorgement and prejudgment interest by moving for civil contempt (and/or through

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other collection procedures authorized by law) at any time after 14 days following

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entry of this Final Judgment. Defendant shall pay post judgment interest on any

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delinquent amounts pursuant to 28 U.S.C. § 1961.

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V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the

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Consent of Defendant Dustin S. Smith to Entry of Final Judgment is incorporated

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herein with the same force and effect as if fully set forth herein, and that Defendant

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shall comply with all of the undertakings and agreements set forth therein.

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VI.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, for

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purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code,

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11 U.S.C. § 523, the allegations in the complaint are true and admitted by Defendant,

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and further, any debt for disgorgement, prejudgment interest, civil penalty or other

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amounts due by Defendant under this Final Judgment or any other judgment, order,

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consent order, decree or settlement agreement entered in connection with this

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proceeding, is a debt for the violation by Defendant of the federal securities laws or

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any regulation or order issued under such laws, as set forth in Section 523(a)(19) of

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the Bankruptcy Code, 11 U.S.C. §523(a)(19).

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VII.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court

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shall retain jurisdiction of this matter for the purposes of enforcing the terms of this

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Final Judgment.

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VIII.

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There being no just reason for delay, pursuant to Rule 54(b) of the Federal

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Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment forthwith

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and without further notice.

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IT IS SO ORDERED.
DATED: July 19, 2017
By:
Honorable Beverly R. O’Connell
United States District Court Judge

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