Hirschberg, Judd B. v. CFTC ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2573
JUDD B. HIRSCHBERG,
Petitioner,
v.
COMMODITY FUTURES
TRADING COMMISSION,
Respondent.
____________
Petition for Review of the Final Order of the
Commodity Futures Trading Commission,
Docket No. CRAA 02-03.
____________
ARGUED FEBRUARY 11, 2005—DECIDED JULY 5, 2005
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Judd Hirschberg’s floor broker
registration was revoked after he was convicted of mail
fraud in 1991. In 2000, he received a presidential pardon for
that conviction, but the Commodity Futures Trading
Commission (“CFTC”) nevertheless denied his post-pardon
application for floor broker registration. Because a pardon
does not eliminate the legal determination that Hirschberg
was guilty of the crime of which he was convicted, and the
crime was properly considered in the CFTC’s application
2 No. 04-2573
process, we affirm the decision of the CFTC and deny
Hirschberg’s petition for review.
I. History
Hirschberg became a registered floor broker in 1985.
According to the Commodities Exchange Act, 1 U.S.C.
§ 1a(16), floor brokers buy and sell futures contracts for
others on an exchange floor such as that of the Chicago
Mercantile Exchange (“CME”), where Hirschberg worked.
Floor brokers commonly act as fiduciaries in conducting
transactions. They are required to register with the CFTC,
which has delegated most of the registration process to the
National Futures Association (“NFA”). See 7 U.S.C. §§ 6(e),
21(o). The CFTC also has the power to revoke registration
from floor brokers who violate CFTC or NFA rules.
The CFTC initiated revocation proceedings against
Hirschberg in 1991, alleging disqualification under Sections
8(a)(2) (conviction of a felony involving fraud) and 8(a)(3)
(for good cause) of the Commodities Exchange Act. 7 U.S.C.
§§ 12a(2)(D), 12a(3)(M). Hirschberg had indeed been
convicted in federal court on four felony counts of mail
fraud and two felony counts of tampering with vehicle
identification numbers. These 1991 convictions stemmed
from an insurance fraud scheme that took place in 1984,
when Hirschberg reported that his car had been stolen and
then collected $43,300 from his insurance company. Several
years later, evidence was discovered suggesting that
Hirschberg had voluntarily transferred the car to a friend
and altered its vehicle identification number to hide the
crime. On appeal, this court found insufficient evidence to
uphold the conviction for identification number tampering,
but affirmed the conviction for mail fraud. Hirschberg was
ordered to serve three years of probation and pay $40,000
in restitution.
No. 04-2573 3
The CFTC proceedings ultimately led to revocation of
Hirschberg’s registration in 1994. The Administrative Law
Judge (“ALJ”) presiding over the hearing did not find
sufficient evidence of mitigation or rehabilitation to justify
Hirschberg keeping his registration. Weighing against
Hirschberg was evidence of disciplinary proceedings brought
against him by the CME—several years after the 1984 in-
surance fraud, Hirschberg was disciplined for engaging in
pre-arranged trading in violation of CME rules. Hirschberg
has made his living since 1994 (earning substantially less
than he did as a floor broker) by consulting for trading
houses and training young traders.
In 1998, Hirschberg applied for a presidential pardon of
his mail fraud conviction, which was granted by
President Clinton in 2000. Pardon in hand, he applied to
the NFA for registration as a floor broker in July 2001.
After a designated subcommittee conducted a hearing, the
NFA denied Hirschberg’s application. The subcommittee
found that Hirschberg’s conviction and subsequent revoca-
tion of registration subjected him to a Section 8a(2)(A)
disqualification based on his prior revocation. See 7 U.S.C.
§ 12a(2)(A). Although this merely created a rebuttable
presumption that he was unfit for registration, the sub-
committee did not find that Hirschberg presented enough
mitigating evidence to rebut the presumption of unfitness.
The CFTC affirmed the denial of registration in 2004.
Hirschberg appeals the denial on the grounds that the
CFTC’s decision violates the Pardon Clause, due process,
and his statutory rights under the Commodities Exchange
Act.
II. Analysis
We review the CFTC’s decision by addressing each of
Hirschberg’s arguments in turn. To summarize: the legal
effect of a presidential pardon is to preclude further pun-
4 No. 04-2573
ishment for the crime, but not to wipe out the fact of con-
viction. The CFTC did not violate the pardon clause by
considering the conduct underlying Hirschberg’s conviction
in determining whether he was qualified to do business as
a floor trader, because its decision was grounded in pro-
tection of the public rather than in punishing Hirschberg as
a convicted felon. Hirschberg’s due process and statutory
rights arguments also do not justify reversal of the decision
to deny his application for registration.
A. Pardon Clause
The CFTC denied Hirschberg’s 2001 application for
registration based on Section 8a(2)(A) of the Commodities
Exchange Act, which is codified at 7 U.S.C. § 12a(2)(A) and
allows the CFTC to revoke or deny registration of any per-
son “if a prior registration of such person in any capacity
has been suspended . . . or has been revoked[.]” The revoca-
tion underlying this statutory disqualification was, of
course, based on Hirschberg’s 1991 conviction for mail
fraud. Hirschberg asserts that, because he received a full
and unconditional pardon for that conviction, the CFTC’s
denial unconstitutionally interferes with the presidential
pardon power. This is a legal question which we review
de novo. See LaCrosse v. CFTC, 137 F.3d 925, 929 (7th Cir.
1998) (reviewing constitutional double jeopardy issue
de novo).
The Constitution gives the President “Power to grant
Reprieves and Pardons for Offences against the
United States, except in cases of impeachment.” U.S. Const.
art. II § 2. Hirschberg relies on a Civil War era case to
support his position that a presidential pardon shields him
from suffering any further direct or indirect consequences
of his conviction. In Ex Parte Garland, the Supreme Court
held that depriving an attorney of the right to practice law
based on a pardoned conviction for treason (stemming from
No. 04-2573 5
service in the Confederate legislature) violated the pardon
clause. 71 U.S. 333, 380-81 (1866). “A pardon reaches both
the punishment prescribed for the offence and the guilt of
the offender[,]” the Court said. Id. at 380. “[I]t releases the
punishment and blots out of existence the guilt, so that in
the eye of the law the offender is as innocent as if he had
never committed the offence.” Id.But modern caselaw emphasizes (and indeed Hirschberg
admits) that this historical language was dicta and is in-
consistent with current law. See In re North, 62 F.3d 1434,
1437 (D.C. Cir. 1994). A pardon in no way reverses the legal
conclusion of the courts; it “does not blot out guilt or
expunge a judgment of conviction.” North, 62 F.3d at 1437;
see also Nixon v. United States, 506 U.S. 224, 232 (1993) (“a
pardon is in no sense an overturning of a judgment of
conviction by some other tribunal”); Burdick v.
United States, 236 U.S. 79, 94 (1915) (a pardon “carries an
imputation of guilt”). The effect of a pardon is not to pro-
hibit all consequences of a pardoned conviction, but rather
to preclude future punishment for the conviction. See Nixon,
506 U.S. at 232; Bjerkan v. United States, 529 F.2d 125,
127-28 (7th Cir. 1975). The question we must answer, then,
is whether the CFTC’s denial of Hirschberg’s registration is
impermissible punitive action or simply a consequence of
the conduct underlying the conviction that the pardon could
not erase.
The answer turns on whether the conduct for which
Hirschberg was convicted has any bearing on his ability to
work as a floor broker. Government licensing agencies may
consider conduct underlying a pardoned conviction—with-
out improperly “punishing” the pardoned individual—so
long as that conduct is relevant to an individual’s qualifica-
tions for the licensed position. Grossgold v. Supreme Court
of Illinois, 557 F.2d 122, 125-26 (7th Cir. 1977); Bjerkan,
529 F.2d at 128 n.2. In Grossgold, for example, an attorney
was suspended from practice for three years based on a
6 No. 04-2573
conviction for mail fraud. 557 F.2d at 123. Fraudulent
activity was grounds for discipline under Illinois law—hon-
esty and integrity are deemed important traits in the
practice of law—and a conviction for a crime involving fraud
was conclusive evidence of fraudulent activity. In re
Grossgold, 317 N.E. 2d 45, 46-47 (Ill. 1974). A presidential
pardon did not invalidate the suspension, because it “did
not wipe out the moral turpitude inherent in the factual
predicate supporting plaintiff’s mail fraud conviction.”
Grossgold, 557 F.2d at 125. In cases where governmental
action has been held to violate the pardon clause, on the
other hand, the pardoned individual is stripped of his rights
based not on the conduct underlying the conviction, but on
the fact of conviction alone. See Bjerkan, 529 F.2d at 128(holding that a state’s deprivation of a pardoned individ-
ual’s civil rights based on fact of a conviction alone violated
pardon clause).
The statutory disqualification scheme under which
Hirschberg’s registration was revoked in 1994 and then
denied in 2004 was enacted with the Futures Trading Act
of 1982, P.L. 97-444 § 224. It was designed to “streamline
and simplify the [former] registration procedures to enable
the [CFTC] to register fit persons more expeditiously and to
remove unfit persons from the industry more promptly.”
H.R. Rep. No. 97-565, pt. 1, at 50 (1982). Given the fiduci-
ary nature of most of the transactions engaged in by a floor
broker, there can be no serious doubt that honesty and
integrity are legitimate qualifications for the job. Engaging
in fraudulent behavior (such as an insurance scam) demon-
strates a serious lack of these qualities. In revoking
Hirschberg’s original registration, the CFTC was allowed to
use the conviction as an authoritative source on whether
the fraudulent conduct occurred, theoretically improving
efficiency and “freeing resources for the performance of its
other important regulatory and oversight functions.” Id.
That revocation served as presumptive evidence that
No. 04-2573 7
Hirschberg was unfit to be a floor broker when he reapplied
for registration, again eliminating the need for the CFTC to
spend time and money determining whether Hirschberg
had engaged in fraudulent conduct. Convictions for fraud
play into the CFTC’s registration process because the
conduct underlying such convictions is relevant to the bus-
iness of floor trading, not because the CFTC is interested in
further punishing convicted felons. This enables the CFTC
to protect the public from unfit floor brokers and to register
fit applicants more efficiently.
Further evidence of the CFTC’s non-punitive purpose
in denying Hirschberg’s application is the fact that the
conduct underlying Hirschberg’s mail fraud conviction
would be cause for denial even if he had not been criminally
convicted for it. Fraud can be grounds for statutory disqual-
ification when it is the subject of an injunction or of a civil
court or administrative ruling in a case to which a govern-
ment agency is a party. 7 U.S.C. §§ 12a(2)(c), 12a(3)(K). The
CFTC may also revoke registration “for good cause” under
7 U.S.C. § 12a(3)(M), which includes any conduct demon-
strating moral turpitude, lack of honesty, or financial
irresponsibility, with no prior formal proceedings. See 17
C.F.R. pt. 3 app. A. Hirschberg’s registration in 1991 was
not revoked because he was a convict per se, but because he
engaged in fraudulent conduct that demonstrated the lack
of qualities necessary to be a floor broker. He would have
met with the same consequences (the 1994 revocation and
the 2004 denial of registration) had the fraudulent conduct
been proven independent of a criminal conviction.
One further element convinces us that the CFTC was not
impermissibly punishing Hirschberg for his pardoned con-
viction: Hirschberg was given a chance to rebut the pre-
sumption that he was unfit to be a floor broker. Hirschberg
would have obtained registration in 2004 if he had been
able to demonstrate that he would not pose a significant
risk to the public. Unfortunately, Hirschberg did not offer
8 No. 04-2573
enough evidence in mitigation or of rehabilitation to over-
come the presumption that he was unfit for floor broker
registration—to the contrary, the evidence of CME disci-
plinary action bolstered the presumption. The fact that the
CFTC’s procedural scheme provides an applicant with the
opportunity to rebut a presumption of unfitness shows that
the relevant consideration is not the conviction itself, but
the conduct underlying it.
Given the fiduciary nature of transactions made by a
floor trader, the CFTC’s reasons for denying Hirschberg’s
application were both prudent and within the law of
presidential pardon. The decision was based on concern for
protecting the public in an efficient manner rather than on
the desire to punish Hirschberg for his criminal conviction.
The denial of floor broker registration based on fraudulent
conduct underlying a pardoned criminal conviction does not
constitute a violation of the pardon clause.
B. Due Process
Hirschberg’s second argument is that the CFTC has vio-
lated his due process rights by shifting onto him the burden
of proving that his registration will not pose a substantial
risk to the public. When a constitutional right is at issue,
due process requires that the government bear the burden
of proof. See Speiser v. Randall, 357 U.S. 513, 525-26
(1958). Hirschberg asserts that his constitutional right to
the full benefit of his pardon is at issue, so the burden
should have remained with the government to prove that
his registration as a floor broker would have endangered
the public.
This argument falls with the first because it is based
on the false premise that a pardon wipes out guilt. As
discussed above, a pardon does no such thing. The CFTC
appropriately considered the conviction as evidence of
Hirschberg’s inability to work as an ethical floor broker.
No. 04-2573 9
Hirschberg was not denied the full benefit of his pardon by
the CFTC because it did not take punitive action against
him based on his conviction. Thus, no constitutional right
was at issue and the burden of proof was permissibly
shifted to Hirschberg.
C. Statutory Time Limit
The CFTC’s denial of Hirschberg’s registration was based
on Section 8a(2)(A) of the Commodities Exchange Act,
which states: “[T]he Commission is authorized . . . to refuse
to register . . . any person and with such a hearing as may
be appropriate to revoke the registration of any person—if
a prior registration of such person in any capacity has been
suspended . . . or has been revoked[.]” 7 U.S.C. § 12a. As the
NFA subcommittee noted in its decision (affirmed in whole
by the CFTC), the plain language of this provision does not
contain a time limit for underlying suspensions or revoca-
tions. Hirschberg argues that the ten-year time limit from
Section 8a(2)(D),1 the provision on which his 1994 revoca-
tion was based, should be incorporated into
Section 8a(2)(A). Because he was convicted in 1991, more
than ten years prior to filing his current application, this
incorporated time limit would make Section 8a(2)(A) inap-
plicable to Hirschberg. The question of whether a statutory
provision has an implied limitations period is one that is “a
regular part of the court’s jurisprudential diet” rather than
an area of special agency expertise, so our review is de novo.
See Elliott v. CFTC, 202 F.3d 926, 932 (7th Cir. 2000); see
1
This provision, codified at 7 U.S.C. § 12a(2)(D), allows the CFTC
to revoke or deny registration to a person who “has been convicted
within ten years preceding the filing of the application for
registration or at any time thereafter of any felony that . . . (iv)
involves the violation of section . . . 1341 . . . of Title 18 [mail
fraud].” (emphasis added).
10 No. 04-2573
also, e.g., Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385,
1389 (7th Cir. 1990) (inferring limitations period in actions
under § 10b of the Securities Exchange Act from federal
law); Norris v. Wirtz, 818 F.2d 1329, 1333 (7th Cir. 1987)
(same, using state law); United Mine Workers of Am. v.
Kleppe, 561 F.2d 1258, 1260-61 (7th Cir. 1977) (inferring
45-day limitations period for filing a claim under the
Federal Mine Coal Safety Act).
There are some statutes in which Congress has been
silent as to a limitations period, but such a period must be
implied under the law of this circuit. As we said in Kleppe,
“courts generally refuse to infer that Congress’s silence
indicates an intent that the federal claim not be subject to
any limitations period for this would be utterly repugnant
to the genius of our laws.” 561 F.2d at 1260-61 (quotation
marks and citation omitted). But that case, like the others
Hirschberg cites in support of his position, deals with a
limitations period for the commencement of a lawsuit or a
closely analogous administrative proceeding. Id. (inferring
a time limitation for filing a claim for compensation under
the Federal Coal Mine Health and Safety Act); e.g., Short,
908 F.2d at 1389 (inferring limitations period in actions
under § 10b of the Securities Exchange Act from federal
law); Cange v. Stotler & Co., 826 F.2d 581, 585 (7th Cir.
1987) (inferring limitations period in actions under the
Commodity Exchange Act from state securities law).
The statutory disqualification that led to Hirschberg’s
application being denied, however, is not a cause of action.
We reject Hirschberg’s assertion that this distinction is
immaterial. Limitations periods are favored in connection
with lawsuits to encourage prompt resolution of claims and
to prevent a party from being prosecuted or sued after
witnesses have become incapacitated due to faded memory
or death. See, e.g., Campbell v. Haverhill, 155 U.S. 610, 617
(1895); Baker v. F & F Inv., 420 F.2d 1191, 1194-95 (7th
No. 04-2573 11
Cir. 1970). Neither these policy reasons nor the tradition of
inferring a time limitation are present in the context of
disciplinary actions.
Looking at Section 8a as a whole reinforces the notion
that a time limitation should not be inferred in
Section 8a(2)(A). While the plain language of that provision
contains no time limit, some of the other twenty-two
subsections laying out grounds for disqualification in
Sections 8a(2) and 8a(3) do. This suggests a conscious choice
by Congress to require that a person who has lost his
registration once must affirmatively show rehabilitation
before again obtaining registration, regardless of when the
conduct underlying the revocation occurred. We also note
that the CFTC could have denied Hirschberg’s application
under Section 8a(3)(D), which provides that the CFTC may
refuse to register a person who “was convicted of a felony of
the type specified in paragraph (2)(D) . . . more than ten
years preceding the filing of the application” after a hear-
ing. 7 U.S.C. § 12a(3)(D). For all of these reasons, we de-
cline to infer a time limitation in Section 8a(2)(A).
III. Conclusion
The CFTC violated neither the pardon clause nor prin-
ciples of due process, because it did not seek to punish
Hirschberg for his pardoned federal conviction. The CFTC
permissibly and rationally considered the conduct underly-
ing Hirschberg’s conviction in ascertaining whether he
would be fit to act as a floor broker. Also, we are not com-
pelled to infer a time limitation on the statutory disqualifi-
cation relied upon by the CFTC. We therefore AFFIRM the
decision of the CFTC and deny Hirschberg’s petition.
12 No. 04-2573
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-05