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United States v. Rodman

United States Court of Appeals, First Circuit
Aug 8, 1975
519 F.2d 1058 (1st Cir. 1975)

Summary

upholding dismissal of an indictment where defendant gave “substantial information, including self-incriminating statements” based on an unfulfilled promise from the Securities and Exchange Commission (“SEC”) to recommend non-prosecution because “the unfairness to the [defendant] warranted dismissal”

Summary of this case from United States v. Lilly

Opinion

No. 75-1050.

August 8, 1975.

Richard W. Beckler, Atty., Dept. of Justice, with whom James N. Gabriel, U.S. Atty., was on brief, for appellant.

Morton Berger, for appellee.

Appeal from the United States District Court for the District of Massachusetts.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.


This is an appeal by the United States under 18 U.S.C. § 3731 from a pretrial order dismissing an indictment. See Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (March 3, 1975). The district court dismissed the indictment on the grounds that the Securities and Exchange Commission had obtained substantial information, including self-incriminating statements from the appellee on the basis of a promise that the SEC would strongly recommend to the United States Attorney that no prosecution against the appellee be undertaken. It is undisputed that the promise was never fulfilled. The government's primary contention on appeal is that the district court failed to make a finding crucial to its resolution of the merits: whether the appellee had "fully" cooperated in accord with an alleged condition of the SEC's promise.

The government's position is without merit. While the government prosecutor argued below that the provision by the appellee of sworn testimony was a condition of the agreement, there was no evidence supporting that contention. The government witness, chief counsel to the Boston office of the SEC, testified that there was agreement only to inform the U.S. Attorney that the appellee had cooperated and that the SEC had fulfilled that obligation. The district court credited, instead, the testimony of appellee's former counsel who participated in the discussions with the SEC. He stated that an agreement to recommend no prosecution was made in return for the appellee's cooperation, that the appellee had on several occasions provided substantial information to the SEC and that the SEC eventually filed both civil and criminal suits against those named in the statements. There was documentary support, in the form of notes on the information provided by the appellee and the indictments. It was also the testimony of appellee's former counsel that he and his client appeared for the purpose of giving evidence at one of the trials, but that the case was settled out of court. Any failure to provide further aid to the SEC was apparently deemed irrelevant to the agreement as the district court interpreted it.

The court found that "defendant Rodman was induced to give statements to the SEC upon representations that Mr. Riccio would make a recommendation that he not be indicted; that he did make some statements of a fairly extensive nature; and not only did Mr. Riccio not make such a recommendation, but at the time of these statements he was actively contemplating the preparation of a criminal reference report which would have included the defendant Rodman."

In light of the failure of the SEC to comply with what the district court found to be its agreement, the district court's view that the unfairness to the appellee warranted dismissal of the indictment was not an abuse of the court's supervisory function. See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1959); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943).

Affirmed.


Summaries of

United States v. Rodman

United States Court of Appeals, First Circuit
Aug 8, 1975
519 F.2d 1058 (1st Cir. 1975)

upholding dismissal of an indictment where defendant gave “substantial information, including self-incriminating statements” based on an unfulfilled promise from the Securities and Exchange Commission (“SEC”) to recommend non-prosecution because “the unfairness to the [defendant] warranted dismissal”

Summary of this case from United States v. Lilly

affirming the pretrial dismissal of an indictment based on a breach of a promise to recommend no prosecution

Summary of this case from United States v. Bulger

affirming a pretrial order dismissing an indictment because of bad faith of Securities and Exchange Commission ("SEC") official in promising to recommend no prosecution of defendant

Summary of this case from U.S. v. Salemme

affirming dismissal of indictment pursuant to district court's supervisory authority, due to Government's breach of plea agreement

Summary of this case from U.S. v. Pinto

affirming dismissal of indictment when SEC breached agreement to make no prosecution recommendation to United States Attorney in return for defendant's cooperation

Summary of this case from State v. Peake

approving dismissal of indictment when SEC breached agreement to make no prosecution recommendation in exchange for defendant's cooperation

Summary of this case from U.S. v. Veilleux

In Rodman, we affirmed dismissal of an indictment where the defendant was induced to give statements to the Securities and Exchange Commission (SEC) by a promise that the SEC would strongly recommend to the United States Attorney that the defendant not be prosecuted, and the SEC not only failed to make the recommendation but was actively contemplating the preparation of a criminal reference report implicating the defendant.

Summary of this case from United States v. Lilly

In Rodman, we affirmed dismissal of an indictment where the defendant was induced to give statements to the Securities and Exchange Commission (SEC) by a promise that the SEC would strongly recommend to the United States Attorney that the defendant not be prosecuted, and the SEC not only failed to make the recommendation but was actively contemplating the preparation of a criminal reference report implicating the defendant.

Summary of this case from U.S. v. Flemmi

In Rodman, the SEC promised to recommend that the United States Attorney's office not prosecute Rodman if he would cooperate with an SEC investigation. Although Rodman provided substantial information, including self-incriminating statements, in reliance on the agreement, the SEC failed to make the promised recommendation.

Summary of this case from U.S. v. Streebing

requiring dismissal of an indictment when SEC breached agreement to make no prosecution recommendation to United States Attorney in return for defendant's cooperation

Summary of this case from U.S. v. Streebing

In Rodman, the Securities and Exchange Commission (SEC) promised to recommend that the United States Attorney's Office not prosecute Rodman, if he would cooperate with an SEC investigation. Although Rodman provided substantial information, including self-incriminating statements, in reliance on the agreement, the SEC failed to make the promised recommendation.

Summary of this case from United States v. Williams

requiring dismissal of indictment when SEC breached agreement to make no prosecution recommendation to United States Attorney in return for defendant's cooperation

Summary of this case from United States v. Andrus

dismissing on grounds of fairness indictment of defendant based on unfulfilled promise of Securities and Exchange Commission attorney to recommend strongly no prosecution, where defendant made self-incriminatory statements, but there was no finding that they had been used against him directly or indirectly

Summary of this case from U.S. v. Salemme

In U.S. v. Rodman, 519 F.2d 1058 (1st Cir. 1975), the Court of Appeals upheld the District Court's decision to dismiss the indictment against the defendant based upon an agreement made between Rodman and the Securities and Exchange Commission (SEC).

Summary of this case from United States v. Baldacchino

dismissing on ground of fairness indictment of defendant based on unfulfilled promise of Securities and Exchange Commission attorney to recommend strongly no prosecution

Summary of this case from State v. Bryant

In Rodman, the First Circuit affirmed the trial court's dismissal of an indictment where it found that the defendant was induced to give statements to the Securities Exchange Commission upon representations by the Commission that a Securities Exchange Commission official would make a recommendation to the United States Attorney that the defendant not be indicted.

Summary of this case from Sossamon v. State
Case details for

United States v. Rodman

Case Details

Full title:UNITED STATES OF AMERICA, APPELLANT, v. WILLIAM S. RODMAN, APPELLEE

Court:United States Court of Appeals, First Circuit

Date published: Aug 8, 1975

Citations

519 F.2d 1058 (1st Cir. 1975)

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