Ussec v. Charles Liu

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT U.S. SECURITIES AND EXCHANGE No. 21-56090 COMMISSION, Plaintiff-Appellee, D.C. No. SACV 16-00974-CJC (AGRx) v. CHARLES C. LIU; XIN WANG a/k/a LISA MEMORANDUM* WANG, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted August 22, 2022** Pasadena, California Before: WATFORD and OWENS, Circuit Judges, and PRESNELL,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. Charles Liu and Xin Wang (husband and wife) appeal the district court’s judgment of disgorgement. Xin Wang also appeals the district court’s denial of her motion to dismiss for lack of jurisdiction due to extraterritorial conduct. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. This appeal arises from the SEC’s civil action against Appellants Charles Liu (“Liu”) and Xin Wang (“Wang”) for violating Section 17(a)(2) of the Securities Act of 1933. Appellants solicited nearly $27 million from foreign investors to develop a cancer treatment center under the EB-5 immigration program. Each investor was required to put up at least a $500,000 “Capital Contribution” and a $45,000 “Administrative Fee.” The Private Offering Memorandum (“POM”) given to investors stated that the Capital Contribution would be used for construction costs, equipment purchases, and other items needed to build and operate the cancer treatment center. The POM also stated that “Offering Expenses, including legal, accounting and administration expenses, and commissions and fees related to this Offering,” would be paid from the Administrative Fee, not the Capital Contribution. Despite these commitments and disclaimers, Liu diverted most of the Capital Contributions to marketing companies, salaries for himself and Wang, and personal bank accounts and withdrawals. The district court granted summary judgment for the SEC and ordered Appellants to disgorge the entirety of the 2 21-56090 investors’ contributions, SEC v. Liu, 262 F. Supp. 3d 957 (C.D. Cal. 2017), and this Court affirmed, SEC v. Liu, 754 F. App’x 505 (9th Cir. 2018). The Supreme Court granted Appellants’ petition for certiorari and took up the issue of whether disgorgement is a permissible remedy in securities fraud cases. While the Supreme Court answered that question in the affirmative, it overturned the disgorgement award and remanded with instructions to recalculate disgorgement after deducting legitimate expenses. See Liu v. SEC, 140 S. Ct. 1936 (2020). On remand, the district court ordered Appellants to disgorge $20,871,758.81, jointly and severally, and Appellants now appeal that judgment. This Court reviews de novo whether a district court has complied with a mandate on remand. Cassett v. Stewart, 406 F.3d 614, 620 (9th Cir. 2005). This Court reviews a …

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