Silverman v. Commodity Futures Trading Commission

Decision Date16 February 1977
Docket NumberNo. 76-1469,76-1469
Citation549 F.2d 28
CourtU.S. Court of Appeals — Seventh Circuit

Joel J. Bellows, Charles B. Bernstein, Chicago, Ill., for petitioner.

Howard Schneider and Joan Loizeaux, Commodity Futures Trading Commission, Washington, D. C., for respondent.

Before CUMMINGS, PELL and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

This appeal tests the validity of a suspension of trading privileges on commodity futures markets imposed upon an account executive in the commodity brokerage business.


The Commodity Futures Trading Commission (CFTC or Commission) is an independent federal regulatory agency which began operating on April 21, 1975, pursuant to the Commodity Futures Trading Commission Act of 1974 (CFTC Act or Act), Pub.L.No.93-463, 88 Stat. 1389, et seq., which amended the Commodity Exchange Act, 7 U.S.C. §§ 1-17a.

The CFTC's principal responsibility relates to contracts of sale of commodities for future delivery traded or executed on boards of trade, that is, commodity exchanges which have been designated by the Commission as "contract markets" for specific commodity futures contracts. 7 U.S.C. § 7. It is unlawful to affect a commodity futures transaction other than by or through a member of a "contract market." 7 U.S.C. § 6.

All futures commission merchants (7 U.S.C. § 6d), floor brokers (§ 6e), persons associated with futures commission merchants (§ 6k), commodity trading advisors and commodity pool operators (§ 6m) must register with the CFTC.

The Commission is entrusted with enforcing the regulatory requirements and proscriptions of the Act against registrants and other persons subject to the Act. One of the statutory provisions which the Commission enforces is section 4b, 7 U.S.C. § 6b, which makes it "unlawful . . . for any member of a contract market . . . or employee of any member . . . in or in connection with any order to make, or the making of, any contract of sale of any commodity for future delivery, made, or to be made, on or subject to the rules of any contract market, for or on behalf of any other person . . . to cheat or defraud or attempt to cheat or defraud such other person." 1

On March 13, 1973, a complaint was brought before the Secretary of Agriculture, alleging violations by the petitioner, Jeffrey L. Silverman, of section 4b of the CFTC Act. On May 5, 1976, a final order was entered by the CFTC, prohibiting the petitioner from trading on or subject to the rules of any contract market for a period of two years. The petitioner was also ordered to permanently cease and desist from placing, or causing to be placed, in any customer's account, any contracts of sale of any commodity for future delivery, without the prior knowledge, consent or authorization of such customer.

The petitioner filed his petition for review of the final order pursuant to 7 U.S.C. § 9, contending that (1) the evidence does not support the finding of willful violation of section 4b of the Act; (2) the petitioner was denied due process by the arbitrary conduct of the CFTC; and (3) the CFTC violated its operational guidelines.


In Great Western Food Distributors, Inc. v. Brannan, 201 F.2d 476, 479-80 (7th Cir. 1953), this court delineated the scope of appellate review in a case of the suspension of commodity trading privileges under the Commodity Exchange Act:

Often the "most telling part" of the evidence is not apparent from the printed page, "for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors". N.L.R.B. v. Universal Camera Corp., 2 Cir., 190 F.2d 429, 430. Thus, "we may not disregard the superior advantages of the examiner who heard and saw the witnesses for determining their credibility, and so for ascertaining the truth." Ohio Associated Tel. Co. v. N.L.R.B., 6 Cir., 192 F.2d 664, 668.

It would seem, then, that the function of this court is something other than that of mechanically reweighing the evidence to ascertain in which direction it preponderates; it is rather to review the record with the purpose of determining whether the finder of the fact was justified, i. e. acted reasonably, in concluding that the evidence, including the demeanor of the witnesses, the reasonable inferences drawn therefrom and other pertinent circumstances, supported his findings. To go further is to disregard the "most telling part" of the evidence.

The petitioner contended that the Commission failed to give him notice of the alleged misconduct and an opportunity to achieve compliance in accordance with section 9(b) of the Administrative Procedure Act, which provides in pertinent part, 5 U.S.C. § 558(c):

Except in cases of willfulness . . . , the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given

(1) notice by the agency in writing of the facts or conduct which may warrant the action; and

(2) opportunity to demonstrate or achieve compliance with all lawful requirements. (Emphasis added.)

The same argument was made by a commodities dealer in Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961), where we held that section 9(b) was inapplicable by its terms to willful cases and said:

We think it clear that if a person 1) intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or 2) acts with careless disregard of statutory requirements, the violation is wilful.

The Administrative Law Judge made several findings and conclusions relating to petitioner's willfulness:

There is no room to consider that the trades made were the product of innocent mutual or unilateral mistake or misunderstanding. They were clearly the results of a pattern and program of trading in large measure carried on over a period of years with many people in an intentional and calculated manner by (Silverman). ALJ's Decision, p. 25; emphasis added.

The record suggests that unauthorized trading, as here, is common enough for (Silverman) to feel comfortable in it, and to attempt to justify it by volatile market conditions creating or destroying opportunities for profitable trades too swiftly to contact a client. ALJ's Decision, pp. 20-21.

By reason of the facts and conclusions as set forth, (Silverman) has wilfully violated section 4b of the Commodity Exchange Act . . . as charged. ALJ's Decision, p. 26.

The findings and conclusions indicated that the petitioner's conduct was willful under either part of the definition set out in Goodman v. Benson, supra. Furthermore, the ALJ's findings and conclusions regarding the petitioner's willfulness are fully supported by the record.

The CFTC Act was designed to insure "fair practice and honest dealing on the commodity exchanges." 2 Hearings were held before the Administrative Law Judge on six days in February and March, 1974, consuming 1211 pages of transcript. The record revealed that the petitioner was employed from July 1969 to October 1970, as an account executive with the commodity brokerage firm of Woodstock, Inc. and from October 1970 to March 13, 1972 with the firm of Conti-Commodity Services. The petitioner was charged with entering into 23 unauthorized transactions with three Woodstock customers (Borgers, Tuczai and Stengel) and with two Conti customers (Barbiere and McGuire).

Borgers went on an extended vacation in the summer of 1970 and gave the petitioner authority to make trades on his account in live cattle, live hogs and pork bellies. Although the petitioner had no authority to make egg transactions on Borgers' behalf, the petitioner made an egg trade on August 18, 1970, to which Borgers objected. Thereafter, despite Borgers' express direction that no egg trades be made, the petitioner proceeded to make eight unauthorized egg transactions on Borgers' account.

Tuczai instructed the petitioner in March 1970 not to make any trades without his specific permission. Nevertheless in October 1970, the petitioner made six unauthorized egg transactions on Tuczai's account.

Stengel had previously experienced some difficulties relating to unauthorized trading by a Woodstock solicitor and therefore instructed the petitioner that no trades were to be made without his express prior consent. Despite that fact the petitioner made four unauthorized egg trades and one unauthorized hog trade on Stengel's behalf.

The petitioner testified that he had oral authority from Borgers, Tuczai and Stengel in regard to the 18 egg transactions and that the Stengel hog transaction was consummated as an offset because one of Stengel's checks had bounced in connection with an authorized hog transaction. The ALJ did not credit the petitioner's testimony but did credit the countervailing testimony. We cannot substitute our views of credibility for that of the ALJ, assuming that we were so inclined.

Barbiere, one of the Conti customers, testified that he did not believe that he authorized two pork belly contracts and one London sugar contract on March 9, 1972 "but . . . (the petitioner) could have misinterpreted (a conversation) as an authorization." These transactions were not found by the ALJ to be violations by the petitioner. However, a few days later, a March 13, 1972 hog belly transaction was completely unauthorized by Barbiere and was found to be a violation.

The petitioner contended that all of Barbiere's transactions were authorized because he had signed a "Trading Authorization Limited to Purchases and Sales of Commodities." Barbiere testified that he understood the document which he had signed to be a mere authorization for the petitioner to make trades for him after specific authorization had been given to make specific trades. 3 He further testified that he had refused to sign a general power of attorney. 4

The ALJ made the...

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