Case 6:09-cv-01963-JA-GJK Document 191

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ) ) ) ) ) ) CASE NO. 09-cv-1963-Orl-28GJK ) ) ) ) ) ) )

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. BIG APPLE CONSULTING USA, INC., et al., Defendants.

PLAINTIFFS MOTION TO CORRECT THE AUGUST 19, 2012 ORDER Pursuant to Rules 7 and 60(a) of the Federal Rules of Civil Procedure, plaintiff, the Securities and Exchange Commission (the Commission), respectfully requests that the Court modify its Order, dated August 9, 2012 by replacing the reference in footnote 7 to Maguire, with M. Jablon. The modification is necessary to correct an error concerning who the evidence demonstrated was responsible for editing the press releases about the Military Post Exchange purchase order . BACKGROUND On January 9, 2012, trial commenced in SEC v. Big Apple Consulting USA, Inc., No. 09-cv-1963. On January 13, 2012, after the Commission rested, all defendants orally made a motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure (Rule 50"). The court reserved ruling on this motion and, after both parties

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rested on January 17, 2012, defendants orally renewed their motion for judgment as a matter of law. On January 19, 2012, the jury returned a verdict in favor of the Commission, finding all the defendants violated Section 17(a)(1), (2) and (3) of the Securities Act and that all the defendants violated Section 20(e) of the Exchange Act. Dkt. No. 140. After entry of the verdict, all defendants renewed their Rule 50 motion, asserted that the instruction on deliberate ignorance given to the jury was error, and stated that they would brief that issue. On February 1, 2012, Carl F. Schoeppl filed a motion to withdraw as attorney for defendants, Keith Jablon, Kaley and Matthew Maguire. Dkt. No. 144. On February 3, 2012, the Court granted Mr. Schoeppls motion, Dkt. No. 148, and on February 6, 2012, Mr. Schoeppl filed a Motion for Judgment as a Matter of Law on behalf of Big Apple Consulting USA, Inc., MJMM Investments, LLC and Marc Jablon. Dkt. No. 149. Defendants Mark Kaley and Matthew Maguire adopted the motion filed by Big Apple, MJMM and Marc Jablon. Dkt. Nos. 150,151. In addition, Mark Kaley and Keith Jablon filed motions for judgment as a matter of law based on the purported insufficiency of the evidence. Dkt. Nos. 145, 146. On August 9, 2012, the Court issued an Order denying all defendants motions for judgment as a matter of law. Dkt. No. 188. The Courts Order noted that some of the defendants had filed pro se motions for judgment as a matter of law arguing the evidence was insufficient to support the jurys verdict specifically with respect to their scienter. Id. at 6 n.4. In its Order, the Court discussed the evidence presented to the jury about a series of e2

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mails between K. Jablon and James Plant about an alleged purchase order CyberKey received from the Military Post Exchange (MPX), citing Plaintiffs Exhibits 74, 79 and 80. Id. at 9. In a footnote to that discussion, the Court stated: The emails also indicate that Maguire edited the press releases containing the information about the contract, and such evidence could support a conclusion that he also knew of Plants changing story. Id. at 9 n.7. However, Plaintiffs Exhibits 73 and 74, to which the Court referred, indicates that Marc was editing the MPX press releases not Maguire. Exhs. A, B. Marc was a reference to the defendant Marc Jablon. Dkt. No. 162 at 161:10-163:1.

ARGUMENT I. Standard For Granting Rule 60(a) Motion Rule 60(a) of the Federal Rules of Civil Procedure (Rule 60(a)) provides that the Court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The Court may do so on motion or on its own, with or without notice. Fed. R. Civ. P. 60(a). This rule permits a court to correct clerical errors to reflect what was intended at time of ruling. Bankhead v. WRP Enter., Inc., No. 6:07-cv-643, 2008 WL 4372845, at *2 (M.D. Fla. Sept. 24, 2008) (quoting Weeks v. Jones, 100 F.3d 124, 128 (11th Cir. 1996). However, Rule 60(a) does not permit a court to correct [e]rrors that affect substantial rights of the parties. Mullins v. Nickel Plate Mining Co., 691 F.2d 971, 973 (11th Cir. 1982).

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II.

The Correction Of Footnote 7 Is Necessary To Correct A Clerical Mistake In its Order denying the defendants Rule 50 motion, the Court summarized the

evidence presented to the jury during trial. Dkt. No. 188 at 9-12. In doing so, the Court discussed the series of e-mails between some of the defendants and James Plant during which details of the alleged multi-million purchase order changed, including a change in the identity of the government agency that supposedly issued the purchase order to CyberKey Solutions Corp. Id. at 9. The Court specifically cited to some of these e-mails that were admitted into evidence: Plaintiffs Exhibits 73-80. Id. Two of those e-mails, Plaintiffs Exhibits 73 and 74, refer to the fact that Marc [Jablon] had edited the press releases. However, it appears that in drafting its Order, the Court inadvertently misidentified the defendant who was editing the press releases as Matthew Maguire, rather than Marc Jablon. Therefore, the Order should be corrected to accurately reflect the evidence that was received by the jury. The proposed correction is not a substantive change, does not affect any substantial rights of the parties, and does not in any way affect the jurys finding. To the contrary, the proposed correction ensures that the record accurately reflects the substance of the evidence that was actually presented to the jury. CONCLUSION For the reasons set forth above, the Court should grant the Commissions Motion to Correct its August 9, 2012 Order and replace the reference in footnote 7 to Maguire, with M. Jablon.

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CERTIFICATION PURSUANT TO LOCAL RULE 3.01(g) I hereby certify that on September 26, 2012, prior to filing Plaintiffs Motion to Correct the August 9, 2012 Order, undersigned counsel for the Commission attempted to confer with Carl F. Schoeppl, counsel for Big Apple Consulting USA, Inc., MJMM Investments, LLC and Marc Jablon, and did confer with pro se defendant, Matthew Maguire to determine if they would consent to this motion. However, as of the date of this motion, undersigned counsel has not received a response either from Mr. Schoeppl or Mr. Maguire.

September 26, 2012 Of Counsel: David R. Herman

Respectfully submitted, s/Jeffery T. Infelise Jeffrey T. Infelise Assistant Chief Litigation Counsel D.C. Bar No. 456998 Lead and Trial Counsel Duane K. Thompson Assistant Chief Litigation Counsel 100 F Street, N.E. Washington, DC 20549-4010 Tel: (202) 551-4904 Fax: (202)772-9362 E-mail: infelisej@sec.gov Attorneys for Plaintiff U.S. Securities and Exchange Commission

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CERTIFICATE OF SERVICE I hereby certify that on September 26, 2012, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of electronic filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic filing.

s/Jeffery T. Infelise Jeffery T. Infelise

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SERVICE LIST VIA CM/ECF Carl F. Schoeppl Florida Bar No. 818518 Schoeppl & Burke, P.A. 4651 North Federal Highway Boca Raton, FL 33431-5133 Tel: (561) 394-8301 Fax: (561) 394-3121 E-mail: carl@schoepplburke.com Attorney for Defendants Big Apple Consulting USA, Inc.; MJMM Investments, LLC, and Marc Jablon VIA FIRST CLASS MAIL Matthew Maguire 8645 Spikerush Court Sanford, FL. 32771 Defendant pro se Mark C. Kaley 14924 Gaulberry Run Winter Garden, FL 34787 Defendant pro se Keith Jablon 329 Blue Stone Circle Winter Garden, FL 34787 Defendant pro se