Securities and Exchange Commission v. Clement et al

Filing 34

ORDER granting 31 Motion for Order to Turn Over Frozen Funds. The Court orders that all frozen money in the bank accounts of John Clement, Cheryl Kilmer, and Scott Clement be turned over to the Clerk. (Dkt. 29 at 5-6). The money shall be added to the restitution fund and distributed to Clement's victims according to the terms of the criminal restitution order. Signed by Judge Larry Alan Burns on 12/8/16. (kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SECURITIES AND EXCHANGE
COMMISSION,

CASE NO. 11cv1034-LAB (WVG)

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ORDER TO TURN OVER FROZEN
FUNDS

Plaintiff,
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vs.
JOHN CLEMENT and EDGEFUND
CAPITAL, LLC,
Defendants.

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Almost six years ago, the SEC filed a complaint for securities fraud against John

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Clement and his company, Edgefund Capital. Clement co-owned Edgefund with his wife,

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Cheryl Kilmer. (Dkt. 1). The Court issued a permanent injunction freezing the funds in 12

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accounts. (Dkt. 29 at 5–6.). A year later, Clement pled guilty to wire fraud and the court

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ordered him to pay about $5 million to compensate eleven victims. United States v. Clement,

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11cr4198 (Dkt. 40.)

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This fall, the SEC filed a motion to unfreeze funds. (Dkt. 31.) Clement, Edgefund

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Capital LLC, and Kilmer didn’t file an opposition. The Court ordered the Defendants and

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Kilmer to file a memorandum by November 11, 2016, explaining why the Court shouldn’t

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grant the SEC’s motion. (Dkt. 33.) There was no response.

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The Court construes the failure to oppose “as consent to granting the motion."

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Standing Order ¶ 4; Local Rule 7.1; see Velasquez v. California, 68 F. App'x 833, 834 (9th

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Cir. 2003) (affirming order granting motion for failure to oppose).

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The Court also agrees with the SEC that the money in Kilmer and her son Scott

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Clement’s accounts is community property subject to the criminal judgment. Cal. Fam. Code

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§ 910(a); see United States v. Berger, 574 F.3d 1202, 1206 (9th Cir. 2009) (finding that

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although a fraudster’s wife wasn’t “a party to, nor guilty of any criminal wrongdoing,” “her

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community property interest” was still subject to “the restitution order entered by the district

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court”).

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The Court orders that all frozen money in the bank accounts of John Clement, Cheryl

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Kilmer, and Scott Clement be turned over to the Clerk. (Dkt. 29 at 5-6). The money shall be

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added to the restitution fund and distributed to Clement’s victims according to the terms of

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the criminal restitution order.

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IT IS SO ORDERED.

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DATED: December 8, 2016

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HONORABLE LARRY ALAN Burns
United States District Judge

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