Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1939

DAN HOWARD,

Petitioner,

v.

SECURITIES AND EXCHANGE COMMISSION,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

SECURITIES AND EXCHANGE COMMISSION

Before

 Boudin, Chief Judge,

Lynch and Howard, Circuit Judges.

Dan Howard on brief pro se.

Jacob H. Stillman, Solicitor, Leslie E. Smith, Senior

Litigation Counsel, and Catherine A. Broderick, Counsel to the

Assistant General Counsel on brief for respondent.

September 19, 2003
1 NASD Conduct Rule 2110 provides as follows:

A member, in the conduct of his business, shall

observe high standards of commercial honor and just and

equitable principles of trade.

NASD Conduct Rule 2310 provides, in relevant part, as

follows:

(a) In recommending to a customer the purchase, sale

or exchange of any security, a member shall have

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Per Curiam. Daniel Richard Howard petitions this court

for review of an order of the Securities and Exchange Commission

("SEC") sustaining a disciplinary action taken against him by the

National Association of Securities Dealers, Inc. ("NASD"). We have

jurisdiction pursuant to 15 U.S.C. § 78y. The SEC's findings as to

the facts are conclusive if supported by substantial evidence. §

78y(4). "[This court's] function is not to independently weigh the

facts . . . . Rather, after reviewing the record considered as a

whole, including the evidence opposed to the S.E.C. view, [it is]

to determine whether substantial evidence supports the Commission's

decision." Todd & Co., Inc. v. Securities & Exchange Comm'n, 557

F.2d 1008, 1013 (3d Cir. 1977).

Following a two-day hearing, a NASD Hearing Panel

determined that Howard had violated NASD Conduct Rules 2110 and

2310, by making unsuitable recommendations for the purchase and

sale of speculative securities to an elderly customer and filing an

inaccurate Uniform Application for Securities Industry Registration

Form (Form U-4), falsely denying that he was the subject of a NASD

investigation.1 The findings were affirmed by the NASD National
reasonable grounds for believing that the recommendation

is suitable for such customer upon the basis of the

facts, if any, disclosed by such customer as to his other

security holdings and as to his financial situation and

needs.

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Adjudicatory Council ("NAC") and Howard was fined $25,000 and

suspended from NASD for two years. Based upon an independent

review of the record, the SEC affirmed NASD's disciplinary action.

See In re: Daniel Richard Howard, Securities Exchange Act Rel. No.

46269, 78 SEC Docket 427, 2002 SEC Lexis 1909 (July 26, 2002). The

SEC denied Howard's motion for reconsideration and Howard

petitioned this court for review of the SEC's decision.

In his pro se brief submitted in support of his petition,

Howard focuses almost exclusively on a series of procedural claims

found by the NAC and the SEC to be entirely without merit. His

sole reference to the merits of the rule violations is as follows:

"Petitioner denies each and every allegation of unsuitability and

churning and denies falsifying his U-4." By failing to make a

developed argument, Howard has waived any objection to the SEC's

findings on the merits. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) (explaining that arguments that are undeveloped

on appeal are deemed waived).

Even if there had not been a waiver, however, there is

substantial evidence to support the SEC's findings. The SEC's

findings that Howard's recommendations to his elderly customer,
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John B. Meeker, were unsuitable are supported by substantial

evidence. The actual trading activity is undisputed. The

characterization of the recommended securities as "speculative" is

supported by research reports prepared by H.J. Meyers & Co., Inc.

("H.J. Meyers") (where Howard was employed as a general securities

representative during the relevant period) and by SEC filings, as

interpreted by a NASD investigator. Howard himself characterized

the Meeker account as "speculative" in his testimony at the hearing

before the NASD panel. The SEC's findings about the level of

trading activity are also supported by the record. And the case

law supports the SEC's characterization of these turnover rates and

cost-to-equity ratios as reflecting excessive trading. See In re

Peter C. Bucchieri, 52 S.E.C. 800, 805 (1996).

The record as a whole also supports the SEC's finding

that "Meeker was an elderly man in poor health whose primary need

was additional income and who sought investments that carried

minimum risk." In re Howard, 2002 SEC Lexis 1909, at *5. Given

these facts known to Howard, substantial evidence supports the

SEC's conclusion that "both the nature of the securities that

Howard recommended to Meeker and the level of trading activity were

unsuitable," in violation of NASD Conduct Rules 2110 and 2310.

Id., at *9.

Similarly, there is substantial support in the record for

the SEC's finding that Howard violated Conduct Rule 2110 by filing
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an inaccurate U-4 form and failing to amend it thereafter.

Specifically, the SEC found that Howard admitted that he had

received NASD's letter of October 15, 1998, informing him of his

obligation to disclose NASD's pending investigation in his Form U-4

when answering Question 22I. In re Howard, 2002 SEC Lexis 1909, at

*11. It further found that after Howard joined Moors & Cabot, Inc.

in October 1998, the firm filed a Form U-4 on his behalf, which

Howard signed, that gave a negative answer to Question 22I. Id.

The SEC found that "Howard did not amend his Form U-4 to correct

that misstatement." Id. The SEC's conclusion that it was "clear

that Howard was responsible for the false statement on his Form U4," id., at *12, is supported by substantial evidence in the

record. The case law supports the conclusion that such conduct

violates "just and equitable principles of trade." See In re

Thomas R. Alton, 52 S.E.C. 380, 382 (1995); In re Robert E.

Kauffman, 51 S.E.C. 838, 839 (1993).

With respect to Howard's procedural claims, substantial

evidence in the record also supports the SEC's findings as to those

claims. For the reasons articulated by the SEC, we agree with its

conclusion that the procedural claims are without merit. Howard's

central claim in his petition to this court is that he was the

victim of selective prosecution by NASD because he is Hispanic and

"fall[s] outside t[he] preferred ethnic group" of the NASD and the

SEC. A successful selective prosecution claim would require Howard
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to show that he "'was prosecuted while others similarly situated

were not'" and "that the government's prosecution was in bad

faith." United States v. Peterson, 233 F.3d 101, 105 (1st Cir.

2000) (citation omitted). Howard identified two non-Hispanic H.J.

Meyers brokers who were investigated by NASD because of customer

complaints and as to whom NASD had determined that "no action is

warranted." This alone is not sufficient to show that the other

non-Hispanic brokers were "similarly situated" to Howard for

purposes of his selective prosecution claim. We agree with the

SEC's determination that there is insufficient support in the

record to substantiate Howard's claims that the NASD attorney

voiced racial or religious slurs and insults. The SEC's findings

that Howard's procedural claims are without merit are substantially

supported by the record.

The SEC's opinion dated July 26, 2002, sustaining the

NASD's findings of conduct rule violations and the sanctions

imposed, is affirmed.