SEC v. Timothy Durham ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2020*
Decided April 6, 2020
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-1653
SECURITIES AND EXCHANGE Appeal from the United States District
COMMISSION, Court for the Southern District of Indiana,
Plaintiff-Appellee, Indianapolis Division.
v. No. 1:11-cv-00370-JMS-TAB
TIMOTHY S. DURHAM, Jane Magnus-Stinson,
Defendant-Appellant. Chief Judge.
ORDER
Based on Timothy Durham’s criminal convictions for violating the Securities
Exchange Acts of 1933 and 1934, a judge found him civilly liable for those violations as
well. Durham does not dispute the existence of the criminal judgment. Rather, he
argues that this judgment is nonfinal, and thus has no preclusive force, because of his
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1653 Page 2
pending collateral attack on his convictions. We affirm because a criminal conviction is
a final judgment with preclusive effect, despite any pending, post-judgment challenges.
Between 2002 and 2009, Durham and co-conspirators perpetuated a widespread
financial fraud involving the sale of investment certificates, which are classified as
“securities” under the Securities Acts. 15 U.S.C. § 78c(a)(10). The victims, many of
whom were elderly and living on modest incomes, lost over $200 million. A jury found
Durham guilty of securities fraud, and he received a sentence of 50 years in prison.
15 U.S.C. §§ 78j(b), 78ff; 17 C.F.R. § 240.10b-5. We affirmed his conviction and sentence.
See United States v. Durham, 630 F. App'x 634 (7th Cir. 2016) (sentence); United States
v. Durham, 766 F.3d 672 (7th Cir. 2014) (conviction). His collateral attack under 28 U.S.C.
§ 2255 (for ineffective assistance of counsel) is still pending.
While Durham’s criminal trial was pending, the Securities and Exchange
Commission filed a civil suit against him based on the events underlying the criminal
prosecution. The district court stayed the civil suit pending resolution of the criminal
charges. After we affirmed Durham’s convictions and sentence, the Commission moved
for summary judgment, arguing that the jury’s factual finding of Durham’s criminal
guilt required the court to find that he was civilly liable also.
Before the district judge ruled on summary judgment, Durham moved for her
recusal. He argued that her friendships with community leaders whom Durham
considered his enemies biased her against him in the civil case. The judge—Jane
Magnus-Stinson, who also had presided over the criminal trial without any recusal
request—referred the matter to Judge Tanya Walton Pratt. In the referral order, Judge
Mangus-Stinson stated that she was friendly with the people Durham had named, but
she did not know of any personal conflicts they had with Durham. Judge Pratt credited
Judge Magnus-Stinson’s statement, found that the friendships alone did not actually
bias her, and referred the motion back to Judge Magnus-Stinson. Relying on Judge
Pratt’s finding, Judge Magnus-Stinson determined that a reasonable observer could not
conclude that she appeared biased and denied the recusal motion.
The district court then entered summary judgment for the Commission. The
court reasoned that the statutes governing the criminal and civil charges were
substantially similar; therefore, as a matter of collateral estoppel, the jury’s findings of
guilt under the criminal provisions were conclusive of Durham’s civil liability. The
court further ordered Durham to pay just over $620,000 in disgorgement. It relied on
trial evidence showing that Durham received this sum in three payments from his
fraudulent company and then transferred roughly those amounts to others.
No. 19-1653 Page 3
On appeal, Durham first argues that the district court erred by applying the
doctrine of collateral estoppel. He concedes that a final criminal judgment would
support a finding of civil liability, but he contends that the criminal judgment is not
final because his collateral attack on his conviction under 28 U.S.C. § 2255 is pending.
We disagree. Durham suggests a distinction between § 2255 motions premised
on claims of ineffective assistance of counsel and those premised on other grounds that
has no basis in the law. Regardless, in criminal cases, “[f]inal judgment … means
sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212
(1937). And “a judgment's preclusive effect is generally immediate, notwithstanding
any appeal.” Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015); Williams v. C.I.R., 1 F.3d
502, 504 (7th Cir. 1993) (“[A] judgment final in the trial court may have collateral
estoppel effect even though the loser has not exhausted his appellate remedies.”). This
norm is even stronger in the context of a collateral attack, because the direct appeals are
finished. See Webb v. Voirol, 773 F.2d 208, 211 (8th Cir. 1985) (state-law collateral attack
on conviction did not render it non-final for preclusion purposes). The district court,
therefore, rightly applied preclusion principles on summary judgment.
Durham next contends that the disgorgement—based on the three payments the
Commission identified—is invalid because he did not personally benefit from those
payments. We review for abuse of discretion the disgorgement calculation. See Kokesh
v. S.E.C., 137 S. Ct. 1635, 1642–43 (2017); S.E.C. v. Williky, 942 F.3d 389, 393 (7th Cir.
2019). But even under de novo review, Durham’s contention that the district court
needed to find that he personally used the funds is unfounded. Disgorgement is
measured by the defendant’s wrongful gain. Kokesh, 137 S. Ct. at 1640. To calculate
disgorgement, courts focus on the sum derived through the fraud, not on how the
fraudster used the money. See, e.g., S.E.C. v. Koenig, 557 F.3d 736, 745 (7th Cir. 2009)
(“pecuniary gain” for defendant’s disgorgement calculation was “amount he obtained
by his fraudulent accounting”). The trial evidence showed that Durham received three
payments totaling around $620,000 from his fraudulent company; it does not matter
that he transferred those funds to others.
Durham replies that these transfers were legitimate business expenses. But he
offers nothing to show—as he must to challenge the district court’s calculation—that the
transferred funds came from a source other than the ill-gotten gains from his fraud.
See S.E.C. v. Monterosso, 756 F.3d 1326, 1337 (11th Cir. 2014) (“Once the SEC has
produced a reasonable approximation of the defendant's unlawfully acquired assets, the
burden shifts to the defendant to demonstrate the SEC's estimate is not reasonable.”);
No. 19-1653 Page 4
S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1261–62 (9th Cir. 2013) (same). Therefore,
the order to disgorge the funds was proper.
Last, Durham challenges the denial of his recusal motion. He argues that, in
ruling that Judge Magnus-Stinson was not biased against him in this case, Judge Pratt
improperly credited Judge Magnus-Stinson’s statement that she did not know of his
conflicts with her friends. To show that the judge did know about the conflicts, he points
to a witness from the criminal trial, whose testimony Judge Magnus-Stinson heard. The
witness said that “Durham made between 15 and 20 million” in profit from a hostile
takeover of a company owned by one of Judge Magnus-Stinson’s friends. (He also notes
that local news media reported on the takeover.) But this evidence is about a business
deal; it does not show that Judge Pratt clearly erred in finding that Judge Magnus-
Stinson did not know about any personal hostilities. See FED. R. CIV. P. 52(a)(6). So, a
reasonable observer would not question Judge Magnus-Stinson’s impartiality. See In re
City of Milwaukee, 788 F.3d 717, 719–20 (7th Cir. 2015). In any event, we have reviewed
Judge Magnus-Stinson’s merits rulings de novo, so Durham has received an impartial
decision. See Williamson v. Indiana Univ., 345 F.3d 459, 464-65 (7th Cir. 2003). The other
grounds Durham raises as evidence of bias—adverse rulings in both the criminal and
civil cases—cannot support a finding of bias either. See Liteky v. United States, 510 U.S.
540, 556 (1994).
AFFIRMED