Yoshikawa

MEMORANDUM **

Terrance Y. Yoshikawa petitions pro se for review of the Securities and Exchange Commission’s (“SEC”) order affirming a disciplinary decision against him by the National Association of Securities Dealers, Inc. (“NASD”) for violating NASD Conduct Rules 3370 and 2110. We have jurisdiction under 15 U.S.C. § 78y(a)(1). We review the SEC’s factual findings for substantial evidence, and we defer to the SEC’s construction of the NASD rules. Alderman v. SEC, 104 F.3d 285, 288 (9th Cir.1997). We deny the petition.

Contrary to Yoshikawa’s contention, the SEC properly concluded that the plain language of NASD Conduct Rule 3370(b)(2)(B) required a NASD member to make an “affirmative determination” regarding a proposed short sale before engaging in that sale. Furthermore, substantial evidence supports the SEC’s factual finding that Yoshikawa did not effect the requisite “affirmative determination” before engaging in the disputed short sales. Finally, the SEC properly rejected Yoshikawa’s argument that he was not liable for violating NASD Conduct Rule 3370 because others in the industry engaged in this same conduct. Cf. United States v. One 1985 Mercedes, 917 F.2d 415, 421 (9th…