The opinion
NOONAN, Circuit Judge,
dissenting:
Anderson v. City of Bessemer City, — U.S. -, 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985) instructs us not to reverse a trial judge who has adopted findings proposed by a party unless the findings are clearly erroneous. Trial judges, laboring under a heavy burden of cases, often have to rely on the findings prepared by the successful litigant. In the instant case, findings were prepared by Rogers and carefully scrutinized and corrected by a very able trial judge. Nonetheless, the scrutiny occurred not quite three years after the trial judge had heard the case. No reason appears in the record why this extraordinary lapse of time took place. Many matters were not fresh in the judge’s mind. Reliance on counsel led to acceptance of a point of view and to findings which were clearly erroneous.
The trial court on September 14, 1982 enjoined IME (which had defaulted) from violating section 10(b) in the sale of GFTD securities and ordered it to account to investors for the GFTD program. Nonetheless, among the findings of the trial court taken in this instance without revisions from the findings prepared by Rogers is the finding, “The statements in the 1978, 1979 and 1980 GFTD offering materials were not false or misleading concerning potential economic benefits and risks to investors.” This surprising finding is background for the court’s clearly erroneous conclusion that Rogers did not aid or abet securities fraud.
That Rogers was a salesman for IME was well-established by testimony. It is not evident why Rogers’ acts as a salesman were not “significant.” Rogers played the misleading role of an “expert tax shelter designer” in the GFTD advertising. It strains credibility to the breaking point to believe that IME’s use of Rogers’ name with the false implication that he was a disinterested observer was done without Rogers’ willing participation. In a scam such as IME was running it was of great assistance to have the name of someone who could be claimed as an expert on the prime objective of the potential customers, tax shelter. In this, as in many scams, the apparently disinterested and helpful third party — here Rogers — was instrumental in conning the customers. The shill is not insulated from liability because of his pretense at being peripheral and neutral. The trial court erred in finding that Rogers did not abet IME’s fraud.
*1462 The trial court found that Rogers “did not participate in the preparation” of the Whitman and Ransom tax opinion but did find that he was “an agent” in supplying a set of assumed facts for the opinion. The finding that Rogers did not participate in preparing the opinion is at war with the finding that Rogers supplied the assumed facts and so is clearly error. The Whitman and Ransom documents, Rogers’ undated letter to Victor Keen, and Victor Keen’s testimony establish beyond dispute that Rogers did supply all of the facts for the tax opinion. The tax opinion was vital. Without it, there would have been no sale. Without the facts supplied by Rogers the opinion would have been no use to IME in selling its securities. Moreover, the so-called assumed facts gained credibility by their recitation in the honest lawyer’s opinion which magnified their fraudulent impact.
The district court found that Kittredge’s geological reports were the source of the untrue geological statements in GFTD offering materials. The finding is clearly erroneous by its incompleteness. Kittredge was the source, but in a report available to Rogers, Kittredge himself had characterized the drilling on the Rio Turquesa as not “meaningful.” Moreover, another available report of his indicated that a mere 20 holes had been excavated in exploratory drilling; the GFTD sales brochure stated that there had been 400 exploratory holes. When Rogers chose to pass on this unmeaningful and untrue information as part of the GFTD sales pitch, he became a willing participant in fraud. Gold was not being extracted in commercial quantities from the Panamanian Concession, and Rogers knew that this was the case. Even a customer for a tax shelter does not want to throw his money into an empty hole or scatter it on untested earth. The possibility of great riches to be won was held out by Rogers along with the claimed certainty of lawfully reducing taxes. The representation as to gold was material as well as false.
Adverse inferences can be drawn from Rogers’ invocation of the privilege against self-incrimination. Baxter v. Palmigiano, 425 U.S. 308, 318 , 96 S.Ct. 1551, 1558 , 47 L.Ed.2d 810 (1976); Campbell v. Gerans, 592 F.2d 1054, 1058 (9th Cir.1979). As the Supreme Court in Baxter quoted Justice Brandéis, “Silence is often evidence of the most persuasive character.” Unaccountably none of the findings of fact state such inferences or take them into account. By their incompleteness in this respect all of the findings of fact as to Rogers’ liability are clearly erroneous. In each of the instances of securities fraud just enumerated, an inference may be drawn from Rogers’ silence. His silence may be read as confirmatory of his cooperation in the use of his name as a tax expert in the GFTD advertising; his silence may be seen to confirm his intentional or reckless use of Kittredge’s false material; his silence leaves unchallenged the evidence of his participation in preparing the tax opinion. The district court clearly erred in not taking these inferences into account.
The district court also refused on May 13, 1982 to open the record to permit the SEC to take the deposition of Mireya Uribi Prada. The court had before it shadowy corporations whose default foreclosed investigation of their constituent parts. The actual existence of their officers had been called into question. Uribi Prada was the secretary of IME, the only corporate officer who was not a phantom. Her testimony could have cast much light on these matters which were highly germane to Rogers’ liability. The district court refused to wait for her testimony, yet waited until March 4, 1985 to decide the case. Such a course of action is a clear abuse of discretion and is itself grounds for reversal of the judgment.
I would REVERSE and REMAND.