* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 1 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

J&J DEVELOPMENT CORP.,

Petitioner,

v. COMMODITY FUTURES TRADING COMMISSION,

Respondent. No. 96-9514 (Petition for Review) (CFTC Docket No. CRAA-95-2)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 We have determined that we have jurisdiction to dec ide this matter because

the petition for review was filed within fifteen days of the Commission’s April 17, 1996 Order on Reconsideration. See 7 U.S.C. § 9. J&J’s April 30, 1996 “Appeal of Order,” filed with the Commission, was asuccessive motion and it did not render the April 17 order nonfinal. -2- J&J Development Corporation (J&J) filed this petiti on for review of an order of the Commodities Futures Trading Commission(Commission), affirming the National Futures Association’s (NFA) decision a ssessing a $2000 fine against J&J for untimely filing of financial statements. 1 The NFA, through its Western Regional Business Conduct Committee (BCC), served aone-count complaint charging J&J with filing late reports. The BCC hel d a hearing and issued a decision finding that the NFA presented reliable ev idence establishing that the filings were late. It further found J&J’s rebuttal evidence not credible and rejected J&J’s interpretation of the Commission rul es to mean “business” days, as opposed to “calendar” days, noting that five of the seven late-filed documents would still have been late under that interpretatio n. The BCC also credited the NFA’s evidence that it notified businesses of filin g dates, and therefore found that J&J had not acted under a good faith misappreh ension of the filing requirements. Finally, the BCC imposed a fine of $ 2000. J&J appealed the BCC’s decision to the NFA Appeals Committee. It deferred to the BCC’s judgment on witness credibili ty and reliability of the2 The Commission issued two subsequent orders in resp onse to “appeals” by

J&J. The first, dated April 17, 1996, left the aff irmance intact and simply attached the appendix that was omitted from the ori ginal order because of clerical error. See Appellant’s App. at 5 and n.1. The second “Order Pursuant to Delegated Authority,” dated May 29, 1996, again lef t the original affirmance undisturbed and only clarified the handling of seve ral motions questioned by J&J. See Appellant’s App. at 3. It is the substance of the original order of the Commission from which J&J seeks review. -3- documentary evidence. On the record before it, the Appeals Committee found no error by the BCC, and it affirmed. J&J then sought review by the Commission. The Comm ission reviewed the record and found that the NFA’s conclusions were supported by the weight of the evidence therein. It did note that the NFA erred b y not allowing J&J to examine the receipt-stamped original filings that were intr oduced into evidence in accordance with the NFA compliance rules. It determined, however, that “the record establishes that NFA’s error did not prejudi ce J&J’s opportunity to challenge the material elements of NFA’s case, i.e. , to show that J&J had taken sufficient steps to submit the reports in a timely manner.” Appellant’s App. at 19 n.3. Thus, the Commission concluded that the errorwas harmless. 2 J&J filed a petition for review of the Commission’s order affirming the imposed fine with this court. See 7 U.S.C. §§ 21(i)(4) and 9. We review the order of the Commission to determine whether its fa ctual findings are supported by the weight of the evidence. See id. § 9; Monex Int’l, Ltd. v. Commodity3 The record contains no indication that J&J previous ly raised its argument

that some of the filing violations alleged by the N FA had been resolved by a prior settlement agreement. We decline to consider this argument raised for the first time in this petition for review. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). -4- Futures Trading Comm’n , 83 F.3d 1130, 1133 (9th Cir. 1996). The “weight of the evidence” has been equated to a “preponderance of the evidence.” Id. ; First Nat’l Monetary Corp. v. Weinberger , 819 F.2d 1334, 1338-39 (6th Cir. 1987). We have reviewed the record in this case, and we ho ld that the Commission’s factual findings are, indeed, supporte d by the weight of the evidence. Further, after de novo review, see Monex , 83 F.3d at 1133, we find no error in the Commission’s finding that J&J was not prejudiced by, and, therefore, suffered no due process violation from, the NFA’s e rror in not producing the receipt-stamped original forms for examination. Li kewise, we find no merit in J&J’s remaining arguments. 3 The final order of the Commission is AFFIRMED.

Entered for the Court
Stephen H. Anderson Circuit Judge