Securities and Exchange Commission v Behrens, et al

Filing 374

MEMORANDUM AND ORDER - Behrens' motion for relief under Fed. R. Civ. P. 60(b) (filing 373 ) is denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SECURITIES AND EXCHANGE
COMMISSION,
8:08-CV-13
Plaintiff,
vs.

MEMORANDUM AND ORDER

BRYAN S. BEHRENS, et al.,
Defendants.
This matter is before the Court on defendant Bryan S. Behrens' motion
for relief under Fed. R. Civ. P. 60(b)(4) (filing 373). The motion will be denied.
Behrens' motion strikes a familiar note: that his criminal prosecution
was allegedly in violation of a receivership stay previously entered by the
Court in this civil proceeding, which, according to Behrens, deprived the
Court of jurisdiction over the criminal proceeding. Compare filings 319 and
350. As the Court has previously explained, Behrens cannot collaterally
attack his criminal conviction in this civil proceeding. See filing 320. And the
Court has previously rejected Behrens' assertion that actions taken in
violation of a court-ordered injunction are void ab initio—it simply makes no
sense to claim that the Court's power to issue an injunction could be used to
divest itself of jurisdiction to render a judgment. See filing 352.
Behrens tries to make yesterday's soup more palatable by reheating it
in Fed. R. Civ. P. 60(b)(4), and seasoning it liberally with alleged due process
violations. Neither is effective. To begin with, the gist of Behrens' due process
argument seems to be that the government criminally prosecuted him despite
knowing of the receivership stay. That is still a collateral attack on Behrens'
criminal conviction, which is unavailable to him in this proceeding. See filing
320. And beyond that, the essence of due process is the requirement that a
person in jeopardy of serious loss be given notice of the case against him and
the opportunity to meet it. Mathews v. Eldridge, 424 U.S. 319, 348 (U.S.
1976). Behrens certainly had notice of the criminal prosecution brought
against him, and was provided with a meaningful opportunity to present his
case against it. As Judge Strom recently explained in rejecting Behrens'
motion to vacate pursuant to 28 U.S.C. § 2255, the proper time to seek
enforcement of the receivership stay would have been before Behrens' plea

was entered and judgment was rendered by the Court. See case no. 8:09-CR129, filing 216 at 5-6.
Nor does Fed. R. Civ. P. 60(b)(4) help Behrens. That rule permits the
Court to relieve a party from a final judgment that is void. See id. But Fed. R.
Civ. P. 60(b) applies only to civil cases. United States v. Eggleston, 24 Fed.
Appx. 656, 656 (8th Cir. 2002); see also, e.g., United States v. Moon, 2013 WL
2450637, at *1 (6th Cir. June 7, 2013); United States v. Ramirez, 211 Fed.
Appx. 712, 714 (10th Cir. 2007); United States v. Pope, 124 Fed. Appx. 680,
682 (2d Cir. 2005). It is apparent from Behrens' motion that the final
judgment he is seeking to void is his criminal conviction, and there is no basis
for using Fed. R. Civ. P. 60(b)(4) to attack a final judgment in a criminal case.
IT IS ORDERED that Behrens' motion for relief under Fed. R. Civ. P.
60(b) (filing 373) is denied.
Dated this 19th day of November, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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