UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of CFTC DOCKET NOS. 91-18 and SD 93-11 JOHN V. VERCILLO OPINION AND ORDER
Respondent John V. Vercillo asks us to stay the effective date of our decision of May 30, 1997, in this matter pending review by the United States Court of Appeals for the Seventh Circuit. In that decision, we imposed a cease and desist order, revoked respondent's floor broker registration, denied his application for registration as a floor trader, and imposed a permanent trading ban. Our decision terminates Vercillo's trading privileges on July 1, 1997. We deny the stay.
A litigant seeking a stay must show that he or she is likely to succeed on the merits, that he or she will suffer irreparable harm if a stay is denied, and that neither the public interest nor the interests of any other party will be adversely affected if a stay is granted. Wisconsin Cent. Ltd. v. Public Serv. Comm'n of Wisconsin, 95 F.3d 1359 (7th Cir. 1996); Cronin v. U.S. Dep't of Agriculture, 919 F.2d 439 (7th Cir. 1990).
Vercillo makes no persuasive argument that he is likely to succeed on the merits of his appeal. For the most part, Vercillo takes issue with matters fully considered in our opinion and does not show how our analysis is incorrect as a matter of law.(1)
In addition, Vercillo contends that it is inappropriate to impose the sanctions at this late date. However, the passage of time does not lessen the weight accorded to the presumptions Congress mandated in Sections 8a(2)(D) and (E) and Section 9(b) of the Commodity Exchange Act, 7 U.S.C. §§ 12a(2)(D) and (E) and 13(b) (1988), that Vercillo's 11 felony violations render him unfit for registration and that he should be prohibited from trading.
Vercillo also asks us to consider evidence outside the record on review. Specifically, he asks us to consider his trading record during a period which commenced after the hearing before the Administrative Law Judge. We have no basis for assessing the reliability of these claims on the current record. See Commission Rule 10.104, 17 C.F.R. § 10.104 (1997), describing the record on which our decisions are to be based.
With this petition for stay, Vercillo makes two arguments for the first time. First, Vercillo contends that imposition of sanctions by us violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.(2) Second, Vercillo argues that the sanctions are unfair in comparison to another individual who settled with the Commission. Under Commission Rule 10.102(d)(3), 17 C.F.R. § 10.102(d)(3) (1997), any matter not briefed shall be deemed waived and may not be argued before the Commission. Consequently, Vercillo has waived these issues. Moreover, Vercillo's arguments are without merit.
With regard to double jeopardy, Vercillo argues that a sanction imposing a trading ban constitutes a penalty, citing "a recent appellate court decision," Johnson v. SEC, 87 F.3d 484, 488-489 (D.C. Cir. 1997). However, the D.C. Circuit specifically stated that its finding in Johnson, that license suspension is a punishment for the purposes of the statute of limitations in 28 U.S.C. § 2462, did not constitute a finding that license suspension is a punishment in constitutional contexts.(3) Id. at 491. Furthermore, the D.C. Circuit has expressly found that debarment is not punitive for double jeopardy purposes, and there is no indication in Johnson that it intended to overturn its prior holding in DiCola v. FDA, 77 F.3d 504, 507 (D.C. Cir. 1996) (debarment under Food, Drug and Cosmetic Act does not violate the Double Jeopardy Clause of the United States Constitution).
Vercillo asserts that it is unfair that the Commission imposed a six-year trading ban on broker James Nowak in a settlement agreement while imposing a permanent trading ban on him in this case. Vercillo alleges that Nowak is more culpable. However, in In re Vercillo, [1992-1994 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25,836 at 40,738 (CFTC Aug. 13, 1993), we cautioned against the use of settlements as a guide to the imposition of sanctions in response to the Division of Enforcement's contention that the term of the trading prohibition imposed on Vercillo was not as severe as the permanent trading prohibitions imposed on other individuals who settled. We stated that controlling weight should not be given to sanctions imposed in settlements in the absence of evidence that the violations are of comparable gravity and without giving due consideration to the special circumstances that may affect the sanctions imposed in the settlement context.
Accordingly, we deny Vercillo's motion to stay.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners DIAL, TULL, HOLUM,
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: June 25, 1997
1. For example, Vercillo cites the criminal trial judge's statement that Vercillo's acceptance of responsibility was "extraordinary." As we explained in our decision, expressions of contrition following detection deserve significant weight only if the wrongful nature of the conduct was unclear at the time of the violations. The record is clear that Vercillo was fully aware of the illegality of his actions at the time of his wrongdoing. Furthermore, an expression of remorse is only a first step on the road to rehabilitation. It is necessary to demonstrate a change in direction to make a showing of rehabilitation.
2. Vercillo argued double jeopardy before the ALJ but did not appeal the ALJ's adverse ruling to us.
3. Moreover, we imposed a trading prohibition upon Vercillo for the express purpose of protecting the integrity of the markets. Slip op. at 28.