United States of America, Plaintiff-appellee, v. Leonard Levy, Defendant-appellant, 24 F.3d 251 (9th Cir. 1994)

Before: NORRIS and O'SCANNLAIN, Circuit Judges, and COUGHENOUR, District Judge^** .

MEMORANDUM^*** 

Leonard Levy appeals the district court's denial of his motion to dismiss an indictment alleging violations of federal banking laws. Levy argues that because the Securities and Exchange Commission has already obtained injunctive relief against him, subjecting him to a criminal trial would place him in double jeopardy.

We disagree. Even if the SEC's civil injunction were sufficiently punitive to constitute jeopardy under United States v. Halper, 490 U.S. 435 (1989) (holding that "in rare circumstances" a civil sanction may be disproportionate to the government's actual loss so as to amount to criminal punishment for purposes of the double jeopardy clause), Levy would still not be entitled to prevail. The SEC sanction and the pending criminal prosecution are each predicated on distinct conduct. The SEC injunctive action was based on misinformation and nondisclosures on Levy's SEC Form 13D filing. The criminal indictment, on the other hand, relates to Levy's alleged violation of federal banking laws. Because neither potential offense depends upon common conduct--nor even common evidence--both the alleged securities law violations and the alleged banking law violations could be prosecuted criminally without subjecting the defendant to double jeopardy. See United States v. Felix, 112 S. Ct. 1377 (1992).

AFFIRMED.