Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 CR 857 - Prentice H. Marshall, Judge.
Sprecher, Circuit Judge, Wilson Cowen, Senior Judge,*fn* and Wood, Circuit Judge.
Defendants Sheldon Rothman and Robert G. Moseley after trial by jury were found guilty of mail fraud in violation of Title 18, United States Code, § 1341. Other defendants are not involved in this appeal.
The facts may be briefly summarized. Moseley and two others established Daily Auto Rental Service, the stated purpose of which was to provide low cost rental automobiles at automotive repair shops for temporary use by customers of the shops. Territories were to be established under a franchise arrangement. The essence of the alleged scheme to defraud was that knowing misrepresentations were made to prospects to induce them to purchase franchises. For this purpose Moseley, it was claimed, among other misrepresentations made use of false financial reports, and Rothman served as a reference to misrepresent to prospective purchasers of franchises that he was a successful franchise operator, which he was not.
On appeal Rothman raises two and Moseley five issues.
Prior to trial, Rothman moved to dismiss the indictment as to him on the basis that the government violated its promise to grant him immunity. There were negotiations, some verbal, some in writing between the government and Rothman prior to trial concerning possible immunity. There is no need to factually set forth the details of those negotiations. They clearly demonstrate that the government was considering immunity for Rothman, but first desired to know what evidence Rothman had to deliver in exchange. After Rothman briefly revealed what he had to offer, the government declined to immunize Rothman. The government had agreed, however, as a preliminary matter not to use against Rothman any information or leads arising from what Rothman might reveal during negotiations. It is not claimed that that agreement was violated. Rothman argues that since the government received the substance of the testimony he could offer by which he demonstrated his willingness to cooperate, the government was bound to grant him immunity. Rothman misinterprets the negotiations and their result. Immunity was only a possibility with the final decision to be made by the government after evaluating the testimony Rothman offered. By merely making the proffer, Rothman could not thereby bind the government. His offer was not accepted. Rothman would have us abandon the usual accepted concepts of applicable contract law and fashion some new standard for these circumstances. We decline, for to do so would unnecessarily destroy immunity as a useful prosecutorial technique.
Moseley complains that the trial judge abused his discretion in failing to grant Moseley's motion for a continuance on the basis that inadequate time was allowed for trial preparation. The timing was as follows:
July 20, 1976 - Indictment returned.
August 10, 1976 - Moseley, without counsel, pleaded not guilty.
August 17, 1976 - Counsel was appointed for Moseley and trial was set for September 27, 1976.
September 7, 1976 - Numerous pretrial motions and memoranda were filed.
September 10, 1976 - Court ruled on the pretrial motions.
September 22, 1976 - Defendant's counsel moved for a continuance, ...