Securities and Exchange Commission v. Michael K. Thomas and Richard L. Sawyer, and Roger J. Houdek, 965 F.2d 825, 10th Cir. (1992)
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2d 825
Fed. Sec. L. Rep. P 96,647, 22 Fed.R.Serv.3d 921
SECURITIES AND EXCHANGE COMMISSION, PlaintiffAppellee,
v.
Michael K. THOMAS and Richard L. Sawyer, Defendants,
and
Roger J. Houdek, Defendant-Appellant.
No. 91-1197.
United States Court of Appeals,
Tenth Circuit.
May 22, 1992.
James R. Doty, General Counsel, Jacob H. Stillman, Associate General
Counsel, Martha H. McNeely, Sp. Counsel, Brian F. McNally, Sr.
Counsel, and Paul Gonson, Solicitor, S.E.C., Washington, D.C., for
plaintiff-appellee.
Raul N. Rodriguez and Daniel J. Deters, of Rodriguez & Associates,
Denver, Colo., for defendant-appellant.
Before MOORE, TACHA, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
Defendant Roger J. Houdek appeals the district court's Judgment and Decree
enjoining him from future violations of certain antifraud and registration
provisions of the Securities Act of 1933 and the Securities Exchange Act of
1934.1 The district court enjoined Defendant from (1) engaging in fraud in
connection with the sales of limited partnership securities in violation of section
10(b) of the Securities Exchange Act of 1934, 17 C.F.R. 240.10b-5, and Rule
10b-5 promulgated thereunder, 15 U.S.C. 78j(b); (2) engaging in sales of
unregistered securities in violation of section 5 of the Securities Act of 1933, 15
U.S.C. 77e; and (3) as an owner and officer of Colorado Planning Associates,
Inc. (CPA), aiding and abetting CPA in engaging in these transactions without
registering as a broker-dealer in violation of section 15(a)(1) of the Securities
Exchange Act of 1934, 15 U.S.C. 78o(a).
2
Defendant appeals, claiming (1) Defendant and CPA did not engage in the sale
of unregistered securities; (2) Defendant did not aid and abet CPA's failure to
register as a broker-dealer; (3) Defendant did not violate Section 10-b of the
Securities and Exchange Act of 1934 by participating in a fraudulent scheme;
and (4) injunctive relief is not necessary to prevent future violations. Defendant
claims that the district court incorrectly decided the facts and incorrectly
applied the law.
As a threshold matter, we note that Defendant, although represented by
counsel, filed his brief on the pro se form A-12. Defendant retained counsel
subsequent to filing his Notice of Appeal. The clerk inadvertently accepted the
pro se brief for filing and therefore notified counsel that, although the form of
the brief was incorrect, the Defendant would be allowed to proceed with the
brief as filed. However, upon review, we determine that Defendant's failure to
comply with the applicable rules is much more extensive.
Defendant has wholly failed to comply with Fed.R.App.P. 282 and various rules
of this court, see 10th Cir.R. 28.2, by failing to provide a table of contents with
page references, a table of cases and other authorities with page references, a
statement of subject matter and appellate jurisdiction, and a standard of review.
The omission with which we are most concerned, however, is Defendant's
failure to provide us with any supporting references to a voluminous record.3
Being cognizant of this court's policy of affording leniency to individuals who
are appealing pro se, under the circumstances before us in this case, we cannot
similarly forgive counsel's total disregard for the rules. Defendant essentially
argues that the district court was wrong, without pointing us to the errors of
which he complains. "[W]e are not required to manufacture a party's argument
on appeal when it has failed in its burden to draw our attention to the error
below." National Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1244
(10th Cir.1989).
It is obligatory that an appellant, claiming error by the district court as to
factual determinations, provide this court with the essential references to the
record to carry his burden of proving error. Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d
1507, 1514 (10th Cir.1990). We therefore decline to "sift through" the record in
search of Defendant's contentions of error and hereby affirm the district court.
See United States v. Downen, 496 F.2d 314, 319 (10th Cir.), cert. denied, 419
U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); see also Sil-Flo, Inc. v. SFHC,
Inc., 917 F.2d at 1514 (absent references to the record, we defer to trial court's
rulings).
7
Notwithstanding the basis for our decision, with as much percipience as
possible, we have read and considered Defendant's arguments. We are of the
firm opinion that, even if Defendant's brief had been in compliance and
satisfactory for review, we would find Defendant's arguments to be without
merit. Therefore, the judgment of the United States District Court for the
District of Colorado is AFFIRMED.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument
Defendant filed his brief on September 30, 1991. Therefore, the version of
Fed.R.App.P. 28 effective until December 1, 1991, applies in this case
Fed.R.App.P. 28 states in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(1) A table of contents, with page references, and a table of cases
(alphabetically arranged), statutes and other authorities cited, with references to
the pages of the brief where they are cited.
....
(3) A statement of the case. The statement shall first indicate briefly the nature
of the case, the course of proceedings, and its disposition in the court below.
There shall follow a statement of the facts relevant to the issues presented for
review, with appropriate references to the record....
....
(e) References in Briefs to the Record. References in the briefs to parts of the
record reproduced in the appendix filed with the brief of the appellant (see Rule
30(a)) shall be to the pages of the appendix at which those parts appear....
Tenth Circuit Rule 28.2(d) states:
With respect to each issue raised on appeal, the party shall state where in the
record the issue was raised and ruled upon.
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