==========================================START OF PAGE 1====== INITIAL DECISION RELEASE NO.89 ADMINISTRATIVE PROCEEDING FILE NO. 3-8841 UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION _______________________________ In the Matter of : : INITIAL DECISION ROBERT I. MOSES : MAY 28, 1996 : _______________________________ APPEARANCES: James J. Tyne, Robert Knuts, and Linda Susswein for the Division of Enforcement, Securities and Exchange Commission, Northeast Regional Office Robert I. Moses, pro se BEFORE: Carol Fox Foelak, Administrative Law Judge 1. The Securities and Exchange Commission (Commission) initiated this proceeding by an Order Initiating Proceedings (OIP) on September 29, 1995, pursuant to Sections 15(b) and 19(h) of the Securities Exchange Act of 1934 (Exchange Act). The OIP alleged that a Final Judgment of Permanent Injunction and Other Relief on Consent (Final Judgment) had been entered against Respondent Moses enjoining him from violations of Sections 5 and 17(a) of the Securities Act of 1933 (Securities Act) and of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder in SEC v. Microwave Cable T.V. Partners, et al., 94 Civ. 5666 (MGC) (S.D.N.Y. Feb. 23, 1995) (SEC v. Microwave Cable T.V. Partners). See Exs. 1 and 2.-[1]- I held a hearing in New York City on December 13, 1995. The Division of Enforcement (Division) called two, adverse, witnesses, including the Respondent. The Respondent testified in his own behalf and called one additional witness. A number of exhibits were received into evidence. 2. The Division filed its Proposed Findings of Fact and Conclusions of Law and Post Hearing Memorandum of Law on January 26, 1996. Mr. Moses's "Answer to Proposed Findings" (Post Hearing Answer) was dated March 15, 1996. The Division filed its Reply May 1, 1996. ---------FOOTNOTES---------- -[1]- Citations to the transcript of the December 13, 1995, hearing will be noted as "Tr. __" and to an exhibit as "Ex. __." All exhibits were offered by the Division. ==========================================START OF PAGE 1====== 3. My findings and conclusions are based on the record and my observations of the witnesses' demeanor.-[2]- I applied preponderance of the evidence as the applicable standard of proof. ---------FOOTNOTES---------- -[2]- I have considered and rejected all the arguments and proposed findings that are inconsistent with this decision. ==========================================START OF PAGE 2====== FINDINGS OF FACT AND CONCLUSIONS OF LAW The Final Judgment 4. The Final Judgment, entered on February 23, 1995, enjoined Moses: (a) "in the offer or sale of any security," from violations of the antifraud provisions of Section 17(a) of the Securities Act; (b) "in connection with the purchase or sale of any security," from violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder; and (c) "to sell any securities" in violation of the registration provisions of Section 5 of the Securities Act. The court additionally ordered Moses-[3]- to disgorge $251,398 in ill-gotten gains and prejudgment interest and to pay a penalty of $206,703. SEC v. Microwave Cable T.V. Partners. Exhibits 1 and 2 are certified copies of the complaint-[4]- and the Final Judgment in that action. 5. Moses engaged in his violations of the Securities Act and the Exchange Act in connection with the sale of limited partnership interests in Microwave Cable T.V. Partners I, L.P. (Microwave I) and Microwave Cable T.V. Partners II, L.P. (Microwave II). Ex. 1, 13-38. Moses was the president and ---------FOOTNOTES---------- -[3]- The disgorgement was ordered jointly and severally against Moses and Microtech, wholly owned by Moses. -[4]- The Commission considers the allegations contained in a complaint which resulted in the entry of a judgment on consent, without admitting or denying the allegations of the complaint (and in which the judgment was unaccompanied by findings of fact) when determining the appropriate sanction in the public interest under Section 15(b) of the Exchange Act. See, e.g., Charles Phillip Elliott, 52 SEC Docket 2011, 2013 n. 5, 2015 n. 12 (1992). ==========================================START OF PAGE 3====== controlling stockholder of the general partners-[5]- of Microwave I and II. Ex. 1, pp. 3 and 4. 6. Moses's violations occurred during the periods from July through December 1990 and from May 1992 through March 1993. Ex. 1, 13, 28. 7. From February 18, 1992, through September 1, 1994, Moses was associated with Westfield Financial Corporation (Westfield), a broker-dealer registered with the Commission. Exs. 3-5; Ex. 28, p. 19; Tr. 88. Moses's denial in his Post Hearing Answer, p. 8, that he was associated with Westfield as a broker-dealer is inconsistent with his testimony as well as other evidence of record and is rejected. Tr. 88; Exs. 3-5; Ex. 28, p. 19. Moses was also associated with other broker-dealers during the period of time leading up to the commencement of the Microwave I offering. Exs. 6-9A. 8. Moses has not made any payments toward the satisfaction of the Final Judgment, which required him to pay $251,536 in disgorgement and prejudgment interest and $206,000 in penalties. Ex. 2, V; Tr. 106. Indeed, he views the judgment, to which he consented, as subject to further negotiation. Tr. 106-7. Collateral Estoppel 9. Moses claims he would never have consented to the Final Judgment had he known this proceeding would be brought against ---------FOOTNOTES---------- -[5]- M.T. Microtech, Inc. and G. P. Global Partners, Inc. were the general partners of Microwave I and Microwave II, respectively. Ex. 1, pp. 3 and 4. ==========================================START OF PAGE 4====== him. Tr. 113; Post Hearing Answer, pp. 8, 10. This claim is rejected in light of the clear evidence of record to the contrary. Moses executed a consent to the Final Judgment in which he specifically acknowledged and agreed that his consent was "for the purpose of resolving this civil proceeding only . . . and [does] not resolve, affect or preclude any other proceeding which may be brought against [him]." He specifically waived "any right that [he] may have to assert that under the Double Jeopardy Clause of the United States Constitution, the relief consented to in this civil action bars any criminal action, or any criminal action bars the relief consented to in this action." Ex. 2, Consent, para. VI. Tr. 122-30. 10. Moses's attempt to dispute the terms of the Final Judgment -- including his acknowledgement that it does not preclude any other proceeding against him, his waiver of Double Jeopardy and the quantification of his ill-gotten gains -- is barred. The doctrine of collateral estoppel as well as Commission case law preclude any attack in this proceeding on the validity of the Final Judgment. Blinder, Robinson & Co., Inc., 48 S.E.C. 624, 628-30 (1986), vacated and remanded, 837 F.2d 1099 (D.C. Cir. 1988), cert. denied, 488 U.S. 869 (1988); Kimball Securities, Inc., 39 S.E.C. 921, 924 n. 4 (1960); J.D. Creger & Co., 39 S.E.C. 165 (1959); Kaye, Real & Co., Inc., 36 S.E.C. 373, 375 (1955); and James F. Morrissey, 25 S.E.C. 372, 381 (1947). Microwave I ==========================================START OF PAGE 5====== 11. Moses formed Microwave I, drafted the Microwave I Private Placement Memorandum (Microwave I PPM), Ex. 11, and distributed it to prospective investors. Tr. 62-64; Ex. 1, 17. He raised close to $1 million from the sale of Microwave I limited partnership interests during the period July to December 1990. Tr. 68; Ex. 10, 1. 12. The Microwave I PPM stated that Microwave I would "engage in the business of acquiring Wireless Microwave Cable T.V. Licenses from the Federal Government" in order to "sell the acquired licenses to existing Microwave Cable T.V. Operators, or other parties at fair market value." Ex. 11, p. 9. Thus it would receive "substantial profits . . . without the risks inherent in starting a new business." Ex. 11, p. 16. The "Use Of Proceeds" section was consistent with the proposed plan to acquire licenses from the federal government and resell those licenses without ever operating a cable television company. Ex. 11, p. 14. 13. Microwave I never acquired any microwave cable television licenses from the federal government. Tr. 65-66; Ex. 1, 18-19. Instead Moses used $500,000 of investor funds to purchase a 13%-[6]- interest in Wireless Cable of Atlanta ---------FOOTNOTES---------- -[6]- Respondent Moses contended that it was a 51% interest, but that the partnership decided not to make payments due, so part of its stock was forfeited, leaving it with 13%. He conceded that the full purchase price was $2.5 million and that only $500,000 was paid. Tr. 66-69. Although Mr. Moses's reasoning concerning this is strained, it is unnecessary for the purpose of this proceeding to decide whether the partnership had a 51% interest for any period of time. ==========================================START OF PAGE 6====== (WCA), a cable television company that was just starting its wireless cable television operation. Ex. 1, 20-22. He contended this was within the meaning of the representation in Ex. 11 that Microwave I would acquire licenses from the federal government. Tr. 65-70.-[7]- He conceded that, other than the $500,000 investment in WCA, the partnership did not invest in any other business that gave even an indirect interest in wireless cable licenses. Tr. 69-70. 14. Moses also used Microwave I investor funds to make loans totalling $400,000 to companies affiliated with Paul Alessandrini, a business associate. Ex. 1, 23-27. Tr. 70-74. He stated that a $150,000 loan was for a few days. A $250,000 transfer of funds, he said, was in the nature of an investment. Tr. 71-73. The Microwave I PPM failed to disclose that any investor money would be loaned or otherwise transferred to Alessandrini's companies. Ex. 11; Tr. 74. 15. The Microwave I PPM contained misrepresentations and omissions concerning Mr. Moses's educational achievements and work experience, and his testimony concerning this was evasive and lacked candor. Contrary to the Microwave I PPM, Moses did not receive an M.B.A. from City University in New York. Tr. 74- 75; Ex. 11, p. 17. Although conceding that he did not have an M.B.A., he argues (based on alleged facts not in evidence) that ---------FOOTNOTES---------- -[7]- He also contended that the $500,000 payment was within the meaning of the representation in the use of proceeds section, Ex. 11, pp. 13-14, that $500,000 would be spent on engineering consultation fees. Tr. 68. ==========================================START OF PAGE 7====== he had actually taken more courses than most M.B.A.s, thus suggesting that Ex. 11 did not misrepresent his educational background. Post Hearing Answer, p. 3; Tr. 75. 16. Contrary to the Microwave I PPM, there is no evidence to show that Moses had worked for Avon Products and Stouffer Chemical. When shown Ex. 9, Forms U-4 and U-5 which were signed by him and submitted by PG Securities Corp., concerning his association with that firm, and which do not mention these companies, he blamed the omission on a typist. Tr. 76-77. He reiterates his claim concerning work for Avon Products and Stouffer Chemicals in his Post Hearing Answer, pp. 2-3, 10, inappropriately suggesting the Division had a duty to unearth evidence to prove that he was in fact employed by those companies. 17. Moses conceded that the Microwave I PPM, Ex. 11, did not disclose that he had been incarcerated for several years during the 1960s for his involvement in a crime of theft of property. Tr. 78-79. He argued that this crime, committed in his youth, had become irrelevant due to the passage of time and that he was not required to disclose it. Tr. 100-101; Post Hearing Answer, p. 3. I am not prepared to conclude that this element of his background is not material to a prospective investor. However, I have not considered the nondisclosure in reaching my decision. 18. In August 1993, Moses sent a letter to all Microwave I investors, urging them to exchange their limited partnership interests in Microwave I for shares of common stock issued by ==========================================START OF PAGE 8====== American Broadcasting System, Inc. (ABS), a broadcast radio station company. Tr. 79-80; Ex. 17. To induce the Microwave I limited partners to give up their limited partnership interests, Moses promised that ABS would engage in a public offering of its stock, "which you can trade freely on the NASDAQ-[8]- exchange." Ex. 17. 19. The original Microwave I limited partners exchanged their limited partnership interests for ABS common stock, and ABS became the sole limited partner in Microwave I. Moses, through M.T. Microtech, Inc., remained Microwave I's general partner. ABS and Moses then sold Microwave I's WCA stock back to WCA for a total of $800,000, of which Moses received $80,000. ABS never completed a public offering of its common stock. ABS filed for bankruptcy protection in May 1995. Tr. 79-82, 90-91; Ex. 10, 8. Microwave II 20. From May 1992 to March 1993, Moses raised close to $1 million through the sale of limited partnership interests in Microwave II. Ex. 1, 28; Ex. 10, 2; Tr. 82-85. 21. Moses drafted the Microwave II Private Placement Memorandum (Microwave II PPM) and "The First Amendment to the ---------FOOTNOTES---------- -[8]- NASDAQ is the acronym for National Association of Securities Dealers Automated Quotations system. It is a computerized system that provides brokers and dealers with price quotations for securities traded over the counter as well as for many New York Stock Exchange listed securities. NASDAQ quotes are published in the financial pages of most newspapers. Barron's Dictionary of Finance and Investment Terms (4th ed. 1995). ==========================================START OF PAGE 9====== Private Placement for Microwave II" (Microwave II Amendment), and caused these documents to be distributed to prospective investors. Ex. 1, 32, 37; Exs. 28, 30; Tr. 83-84. The Microwave II PPM contained the same misrepresentations and omitted the same facts concerning Moses's background as the Microwave I PPM. Ex. 28, p. 19. 22. The Microwave II PPM stated: "Mr. Moses has successfully acquired the entire microwave cable television system in Atlanta, Georgia through an identical limited partnership known as [Microwave I]." Ex. 28, p. 19. In fact, Microwave I never acquired "the entire microwave cable television system in Atlanta"; instead, it acquired an interest in WCA. Ex. 1, 33. 23. The Microwave II PPM, dated May 1, 1992, stated that Microwave II would "engage in the business of acquiring wireless microwave cable TV licenses from the federal government or a microwave cable tv operating system" in order to "sell the acquired licenses . . . at fair market value." Ex. 28, p. 10. The undated Microwave II PPM Amendment stated the proceeds would be used for a merger with ABS and that there was "an Initial Public Offering of stock tentatively set for the end of October 1992." It listed several broadcast stations purportedly licensed to ABS. Ex. 30. 24. Microwave II never intended to acquire microwave cable television licenses from the federal government. Ex. 1; 34; Tr. 85-86. ==========================================START OF PAGE 10====== 25. The Microwave II Amendment stated that it was the intent of ABS to have the shares of its common stock granted to Microwave II "registered in a Public Stock offering ('S-1 Registration')." Ex. 30. In fact, ABS did not intend to register the shares issued to Microwave II. Ex. 1, 38. Nor was any public offering of ABS common stock ever completed. Tr. 90-91. 26. Moses received $206,703 in "ill-gotten gains" from the Microwave I and II offerings as well as the $80,000 in proceeds from the sale of WCA stock by Microwave I. Ex. 2, V; Tr. 79- 82, 91-93. When asked whether he had taken the ill-gotten gains, quantified in the Final Judgment, to which he had consented, he responded, "I don't think so." Tr. 92. This evasive answer does not alter the finding that he received the $206,703 in ill-gotten gains. 27. Moses was the subject of several state actions concerning violations of state securities regulations in Kansas, Wisconsin, and Virginia in connection with the Microwave II offering. Exs. 37, 38, 39, 39A, 39B. Moses's claim, in his Post Hearing Answer, pp. 5, 7-8, that he was not actually sanctioned because the violations were committed by others or because he was a mere consultant is belied by the referenced Exhibits, which name him as a respondent or defendant in the various state actions. Moses has not complied with the Final Judgment. ==========================================START OF PAGE 11====== 28. Moses has never shown any remorse for his misconduct in connection with the Microwave I and II fraudulent offerings and continues to deny that he engaged in any misconduct. See e.g., Tr. 112-14. He continues to portray himself as working tirelessly for the interests of investors in his Post Hearing Answer. 29. Moses never paid the court-ordered penalties or disgorgement. In anticipation of legal action, he had stripped himself of assets by transferring all of his ownership interests in several businesses to an associate, Don Meyers, in exchange for "a single dollar or a cup of coffee." Tr. 25. Meyers acquired these companies from Moses expressly due to the legal problems that Moses was experiencing with the Commission as a result of the fraudulent Microwave I and II offerings. Tr. 19- 23; Ex. 47-14. Moses and Meyers did not conduct any negotiations and did not execute any documents concerning these transfers. Tr. 19. 30. Moses works as a "senior consultant" to Meyers. Tr. 10, 14. For example, the prospectus for the Windgate Fund, currently soliciting investors, includes "Robert Moses, senior consultant" on "the management team" and states that the loss of his services "would likely have a material and adverse effect" on the company. Ex. 47-5, p. 11. Yet Moses supposedly receives no "salary" from Meyers that could be garnished to satisfy the Final Judgment. Tr. 55-57. Instead, Moses supposedly receives "loans" from Meyers's companies against some future possible ==========================================START OF PAGE 12====== compensation. Id. Moses maintains unlimited check writing authority for all of Meyers's companies where Moses serves as "senior consultant." Tr. 27-28. Moses and Meyers characterize the payments made to Moses as "loans" to attempt to prevent the Commission from collecting any portion of the Final Judgment by garnishing Moses's wages. 31. Moses received more than $125,000 from Meyers's companies during the first six months of 1995, none of which he used to make any payments against the judgment. Tr. 106. Moses claims these monies were used to run his business. Tr. 106; Post Hearing Answer, p. 7. However, the record evidence includes numerous checks payable to Moses or cash or for such personal expenses as rent, utilities and car repairs. Exs. 47-2, 47-6. ==========================================START OF PAGE 13====== Moses continues to solicit investors after the Final Judgment. 32. Moses currently serves as president of CM Capital Management Associates, Inc. (CM Capital), one of the companies that he transferred to Meyers. Tr. 26. In his Post Hearing Answer, p. 7, Moses denies any current connection to CM Capital.-[9]- However, his February 26, 1996, request for extension of time to file his post-hearing brief was on CM Capital letterhead. 33. CM Capital actively solicits investors for The Windgate Fund, LLC (Windgate). Tr. 36-40. Windgate is involved in raising up to $20 million from the investing public to: (a) develop certain licenses granted by the Federal Communications Commission (FCC) to provide Interactive Video and Data Services (IVDS); and (b) invest in "interactive television" and "virtual reality" companies. Ex. 47-5; Tr. 57. 34. Meyers and Moses drafted an information brochure for CM Capital that they distributed to prospective investors (CM Capital brochure). Ex. 47-12; Tr. 47-48, 59-60. Ex. 10, 10. This document states: "In the past four years alone, the firm and its affiliates have successfully completed the following private financings: Microwave Cable Television I, L.P; Microwave Cable Television II, L.P. . . . American Broadcasting System, bridge . ---------FOOTNOTES---------- -[9]- He says, "CM Capital does not exist for me anymore . . . . [I]t never solicited money for Mr. Meyers' Windgate Fund. Any employees soliciting general partners to join Windgate worked for Windgate. I originally used the company for consulting purposes. . . . I now work as a consultant under my own name for Windgate and other companies." ==========================================START OF PAGE 14====== . . ." Ex. 47-12, p. 2. The CM Capital brochure fails to disclose the existence of the Final Judgment or any other information concerning SEC v. Microwave Cable T.V. Partners. Nor does the CM Capital brochure disclose that ABS filed for bankruptcy protection in May 1995. 35. Moses claims in his Post Hearing Answer, p. 7, that the CM Capital brochure was drafted by "an employee of Mr. Meyers[,] . . . that it fails to disclose the information referred to . . . because it was written prior to that time" and that it has not been used since. This argument is based on Meyers's testimony that "Jim Freo" drafted it. Tr. 57. However, Mr. Meyers conceded that he had testified in his November 21, 1995, deposition that he and Mr. Moses drafted it. Tr. 60. Additionally, when pressed for identification of the new author at the December 13 hearing, Meyers stated he did not know how to spell his name. Tr. 59. The claim that Moses was not responsible for the misleading contents and distribution of this document is rejected. 36. Moses currently serves as the "senior consultant" to Windgate. Tr. 10. In his Post Hearing Answer, pp. 7, 9, 10, he argues that his current activities for the Windgate Fund are not relevant to this proceeding because it is a general partnership and because he is "only a consultant." As I ruled at the hearing, however, testimony and evidence concerning Moses's activities involving Windgate are relevant to the public interest ==========================================START OF PAGE 15====== issue, whether or not Windgate involves the sale of a "security." Tr. 15, 99-100. 37. As part of his duties for Windgate, Moses is "in charge of company selection and evaluation" concerning investments by Windgate in other private companies. Ex. 47-5, p. 10. Meyers and Moses together drafted a prospectus for Windgate (Windgate prospectus) that is currently being used to solicit prospective investors. Ex. 10, 13; Tr. 13, 46; Ex. 47-5. 38. The Windgate prospectus states that Windgate has acquired the interactive television licenses issued by the FCC for the following markets: Burlington, North Carolina; Lincoln, Nebraska; Muncie, Indiana; and Youngstown-Warren, Ohio. Ex. 47- 5, p. 1. The Windgate prospectus identified existing "on-line" services as Windgate's "initial competition" and cautioned that "breakthroughs in new technologies" could result in additional sources of competition. Ex. 47-5, p. 11. The Windgate prospectus contains a projection for the resale value of the IVDS licenses based on "depth of penetration" for providing IVDS services to households in Windgate's four market areas. Ex. 47- 5, p. 7. 39. The Windgate prospectus fails to disclose that there is a competing IVDS license holder in every market area for which Windgate was awarded an IVDS license. Tr. 97-99. 40. The Windgate prospectus contains a lengthy description concerning the logistics of supplying IVDS services, the applications of IVDS service, and how Windgate will construct its ==========================================START OF PAGE 16====== IVDS operating systems. Ex. 47-5, pp. 2-5; Tr. 103-05. The Windgate prospectus does not disclose that, according to Moses, the IVDS equipment necessary to actually deliver IVDS to the home is not yet available. Tr. 102-104. Moses stated that Ex. 47-5 is an old version of the prospectus, not in current use, noting that it mentions the EON company as providing equipment. Tr. 97, 105. However, he testified that Ex. 47-5 might have been sent to earlier clients and that it is close to the version currently in use. Tr. 97. 41. Windgate solicited investors through a nationwide distribution of postcards to, among others, subscribers to INC. magazine. Tr. 50-51. Moses participated in the decision to solicit investors through postcard mass mailings. Tr. 46. 42. In August 1995, Moses was sanctioned by the State of Wisconsin for illicit solicitation activities on behalf of Windgate in Wisconsin. Ex. 40. Moses's claim, in his Post Hearing Answer, pp. 7-8, that he was not, is belied by Ex. 40. Credibility 43. Neither Mr. Meyers nor Respondent Moses was a particularly credible witness. As noted above, Moses gave evasive answers on several topics. 44. Mr. Meyers's testimony was characterized by non responsive, evasive or inconsistent answers. His inconsistent testimony concerning Ex. 47-12, the CM Capital brochure, is discussed above. Another example is his testimony concerning the ongoing activities of the Windgate Fund. He had been deposed in ==========================================START OF PAGE 17====== November 1995, about three weeks before the hearing. Tr. 12, 60. When deposed, he testified that both he and Mr. Moses "speak to investors . . . describe the funds . . . and . . . solicit investors," and that Mr. Moses was paid "commissions" for raising capital. Tr. 39-40. At the hearing he testified Mr. Moses "has never been paid a commission for raising capital because he hasn't raised any." Tr. 39-40. Mr. Meyers described "commissions" as "an incorrect choice of words." The correct term for the payments Mr. Moses was receiving from the Windgate Fund is "consulting fees," he testified. Tr. 40-41. He also described the payments (e.g., as shown on Ex. 47-6) as "draws . . . lent to" Moses, that are on the books as "receivables," or, alternatively, as "token payments" on a "substantial consulting fee" that Mr. Moses will earn on a "$20 million project." Tr. 55-57. 45. At his deposition Meyers described Windgate as having two general partners, himself and Laura Lem, Respondent Moses's wife, and "limited partners . . . maybe 75." Tr. 16. At the hearing he described Windgate as a general partnership, Tr. 54, himself and Ms. Lem as "managing partners" and the others as "partners . . . actively involved in all pertinent decisions," Tr. 15-16, who, incredibly, "are contacted with great frequency to make important decisions." Tr. 54. His prior testimony that the others are limited partners was a "poor choice of words," he testified. Tr. 16. PUBLIC INTEREST ==========================================START OF PAGE 18====== 46. Imposition of administrative sanctions requires consideration of: the egregiousness of the defendant's actions, the isolated or recurrent nature of the infraction, the degree of scienter involved, the sincerity of the defendant's assurances against future violations, the defendant's recognition of the wrongful nature of his conduct, and the likelihood that the defendant's occupation will present opportunities for future violations. Steadman v. SEC, 603 F.2d 1126, 1140 (5th Cir. 1979), aff'd on other grounds, 450 U.S. 91 (1981). The amount of a sanction depends on the facts of each case and the value of the sanction in preventing a recurrence. Berko v. SEC, 316 F.2d 137, 141 (2d Cir. 1963); Leo Glassman, 46 S.E.C. 209, 211 (1975); Richard C. Spangler, Inc., 46 S.E.C. 238, 254 n. 67 (1976). 47. The activities for which Mr. Moses was enjoined were egregious and long running and have persisted despite the Final Judgment to which he consented. His occupation presents opportunities for future violations. 48. There is no evidence of any mitigating circumstance. He has not acknowledged the wrongfulness of his conduct and has given no assurances against future violations. To the contrary, in his Post Hearing Answer, he continues to deny that he engaged in misconduct and states that he only signed the consent decree because he thought it would end the matter. The violations were not isolated. In fact, he acknowledged in his testimony, and the exhibits show, that he continued to engage in misconduct following the Final Judgment in SEC v. Microwave Cable T.V. Partners through his roles as president of CM Capital and "senior ==========================================START OF PAGE 19====== consultant" to Windgate. He expresses the viewpoint in his Post Hearing Answer that his current activities are legitimate because conducted under the guise of "consultant" to a "general partnership." 49. A severe sanction is also warranted to deter others from similar activities. There is no support for the Respondent's argument that a sanction is barred as Double Jeopardy. 50. For the above reasons, a severe sanction is warranted in this case. It is in the public interest to bar Respondent Moses from association with any broker or dealer-[10]- and from participating in any capacity in the offer, purchase or sale of telecommunications licenses or franchises as regulated by the FCC or local franchising authority or businesses conducted or property managed pursuant to such regulation or franchises. CERTIFICATION OF RECORD 51. Pursuant to Rule 351(b) of the Commission's Rules of Practice, 17 C.F.R. Section 201.351(b) (1996), I hereby certify that the record consists of the items set forth in the record index issued by the Secretary of the Commission on May 8, 1996. Specifically the record includes transcribed testimony from three witnesses and approximately 38 exhibits offered by the Division. It also includes the Division's January 26, 1996, Proposed -[10]- The Division asked that Mr. Moses also be barred from association with a municipal securities dealer, investment company or investment adviser. Those sanctions, however, are provided for in statutory sections other than Sections 15(b) and 19(h) of the Exchange Act, the sole authority cited for this proceeding. The issue of whether a collateral bar can be imposed is currently before the Commission. ==========================================START OF PAGE 20====== Findings of Fact and Conclusions of Law and Post Hearing Memorandum of Law, Respondent Moses's "Answer to Proposed Findings," dated March 15, 1996, and the Division's May 1, 1996, Reply. ORDER 52. Based on the findings and conclusions set forth above, I ORDER, pursuant to Sections 15(b) and 19(h) of the Exchange Act, that Robert I. Moses be and hereby is barred from association with any broker or dealer and from participating in any capacity in the purchase or sale of telecommunications licenses or franchises as regulated by the FCC or local franchising authority or businesses conducted or property managed pursuant to such regulation or franchises. 54. This order shall become effective in accordance with and subject to the provisions of Rule 360 of the Commission's Rules of Practice, 17 C.F.R. Section 201.360. Pursuant to that rule, a petition for review of this initial decision may be filed within 21 days after service of the decision. It shall become the final decision of the Commission as to each party who has not filed a petition for review pursuant to Rule 360(d)(1) within 21 days after service of the initial decision upon him, unless the Commission, pursuant to Rule 360(b)(1), determines on its own initiative to review this initial decision as to any party. If a party timely files a petition for review, or the Commission acts to review as to a party, the initial decision shall not become final as to that party. ==========================================START OF PAGE 21====== ______________________________ Carol Fox Foelak Administrative Law Judge Washington, D.C. May 28, 1996 ==========================================START OF PAGE 22======