Petition — Ryan v. United States

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Supreme Court, U. $, |

FILED

DEC 27 1976

|_ MICHAEL RODAK, JR., CLERK

No.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1976

€6-877 «

JAMES G. RYAN, PETITIONER

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARRY E. CLAIBORNE

ANNETTE R. QUINTANA

108 South Third Street

Las Vegas, Nevada 89101

(702) 384-3553

ATTORNEYS FOR PETITIONER

- >

———— =

INDEX

Page

I IE. sc bd cade Kacede awe Keke sabsnnns ane 1

OTE PCT ETT TOOET YT CECT EP TTE TT TY TTT TL 2

errr errr errr rere FOr Ee eT 2

Constitutional provisions and statutes........ .++eeeeeee 3

Statement of the case:

EET e er Py Tere eT Per TT Te TT TTT TTT 4

NT tee eh i as x ook Wikies 3 he eae 5

Reasons for granting the writ.........-.6-. ce eeeeeees 11

EEE TEE POLE OPT CET TCC TE Stee eT Tee 20

pt PPPEEPTETETELELTETET ETE la

Aged Be... ccc ccc ccc cre ccccces eoeseenes l4a

BEE Goa oc ccc ncctccscccsevecccesess Ltn tenes 23a

Apmemilin D. .. 0... ccc ccc cnececesssesenceecvers 24a

Appendix E..........cevccccceccccc esse cccccceees 36a

CITATIONS

Cases:

Berger v. New York, (1967) 388U.S.41.............. 14

Brady v. United States, (1970) 397 U.S. 742. .......... 12

Bram v. United States, (1897) 168 U.S. 532....... 5,11, 13

Bumper v. North Carolina, (1968) 391 U.S. 543. ...4,12, 13

Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973). .......... 14

Johnson v. United States, (1948) 333 U.S.10............ 5

Katz v. United States, (1967) 389 U.S. 347............. 14

Lee v. United States, (1952) 343 U.S. 747... .......... 14

Lopez v. United States, (1963) 373 US. 427. 2.0.0.2... 14

Lynum v. Illinois, (1963) 372 U.S. 528.........0045. 4,11

Pinkerton v. United States (1946) 328 U.S. 640...... 18,19

Rewis v. United States, (1971) 401 U.S. 808. ..5, 15, 16, 17

Rochin v. People of California, (1952) 342 U.S. 165....... 5

Rogers v. Richmond, (1961) 365 U.S. 534... ........ 5,11

Ryan v. Eighth Judicial District Court, Nev. 1972,

Ms co ein teecheebateeWhe naeeeneees 10

Schneckloth v. Bustamonte, (1973) 412 US. 218...4, 12, 13

Shotwell Mfg. Co. v. United States, (1963)

es a ee ab aes Cena sees ye

United States v. Colacurcio, 499 F.2d 1401

i Pc chee side edeeivadvececacesesees 16

United States v. Roselli, 432 F.2d 879

SE, DE ope bccdeW 6s 004 e00046 edeoenenes 16

United States v. Rothman, 492 F.2d 1260

SE, DUDS cot 6 eb SOK e be dede eres esausegen 4

United States v. Russell, (1973) 411 U.S. 423............ 5

United States v. Schaefer, 510 F.2d 1307,

(8th Cir. 1975), certiorari denied, 421 U.S.975....... 19

United States v. White, (1971) 401 U.S. 745. .......... 14

Constitution and statute:

Constitution of the United States, Fourth Amendment...... 3

Constitution ot the United States, Fifth Amendment........ 3

SC ret laneee cues eweeen Vee dweaweeu 3

es I Se os a en Shas eub ie eenkseewen 14

A oes 6 oa eeu nesheeW hens eeenens 3

i a + 6 eo akh ow 620e00 0 65560 coho eesetnees 3

Miscellaneous:

Developments in the Law — Crimina) Conspiracy,

72 Harv. L. Rev. 920, at pp. 993-1000............. 19

— ce ie

a. —_—

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1976

JAMES G. RYAN, PETITIONER

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THF NINTH CIRCUIT

James G. Ryan, by and through his undersigned counsel,

petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circut in this

case.

OPINIONS BELOW

The panel opinion of the Court of Appeals (App. A, infra,

pp. la-13a entered May 24, 1976, is not yet officially re-

ported.

The order of the Court of Appeals on November 29, 1976,

denying rehearing en banc, and modifying the panel opinion,

together with the dissenting opinion of Hufstedler, Circuit

Judge, concurred in by Ely, Circuit Judge (App. B, infra,

pp. 14a-22a) was ordered not to be published.

The order of Circuit Judge Trask staying issuance of man-

date, entered on December 9, 1976, appears at App. C, infra,

p. 23a.

The trial court’s unpublished post-trial memorandum regard-

ing petitioner’s motion to strike and exclude evidence, entered

April 3, 1974, appears at App. D, infra, pp. 24a-35a.

The revised opinion of the Court of Appeals, entered on

November 30, 1976, appears at App. E, infra, pp 36a-55a, and

includes the dissenting opinion of Circuit Judge Hufstedler,

concurred in by Circuit Judge Ely.

JURISDICTION

The court of appeals opinion was entered on May 24, 1976.

A motion for rehearing and a suggestion for rehearing en banc

was denied by an order of the court of appeals entered on No-

vember 29, 1976, which modified the opinion. An order stay-

ing issuance of the mandate pending the filing of this applica-

tion was entered on December 9, 1976.

The jurisdiction of this case was initiated by criminal indict-

ment of a federal grand jury, and the jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Did the subject, Mizera, voluntarily consent to official

interception of his wire and oral communication where the trial

court found, on undisputed evidence, that state officers accosted

Mizera, threatened him with immediate arrest and imprisonment

for 10 years, offered not to prosecute him if he “cooperated,”

told him otherwise he would lose his livelihood, damage his

family, and be deprived of special medical treatment for severe

headaches, and answered his request to call a lawyer by saying

he could, but if he did, the “deal” was off.

2. Is there any difference in the constitutional standards

which apply in determining the voluntariness of a ‘“‘consent” to

participant, electronic monitoring under 18 U.S.C. 2511(2)(c),

from the standards which apply in determining the voluntari-

ness of a confession, a guilty plea or a consent to search?

3. Does the Travel Act apply to a county official who is

offered a “campaign contribution” by a local real estate agent

for a zoning change of local real estate owned by a resident of

California?

4. Is mere passivity with respect to an offer of a political

contribution for approval of a zoning change, enough to estab-

lish membership in a criminal conspiracy and also constitute

one an aider and abetter of substantive travel act offenses com-

mitted by others?

~~ ome

CONSTITUTIONAL PROVISIONS AND STATUTES

1. The Fourth Amendment to the United States Constitu-

tion provides:

The right of the people to be secure in their persons,

, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

2. The Fifth Amendment to the United States Constitution

provides, in pertinent part:

. . nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb.

3. 18 US.C. 2511(2)(c) provides in pertinent part:

It shall not be unlawful under this chapter for a person

acting under color of law to intercept a wire or oral com-

munication, where one of the parties to the communication

has given prior consent to such interception.

4. 18 U.S.C. 2515 provides, in pertinent part:

Whenever any wire or oral communication has been in-

tercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in

evidence in any trial . . . in or before any court .. . of

the United States, .. . if the disclosure of that informa-

tion would be in violation of this chapter.

5. 18 U.S.C. 1952, the Travel Act, provides, so far as per-

tinent:

(a) Whoever travels in interstate or foreign commerce

or uses any facility in interstate or foreign commerce, in-

cluding the mail, with intent to —

(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management, establish-

ment, or carrying on, of any unlawful activity,

ana thereafter performs or attempts to pertorm any of the

acts specified in subparagraph . . . (3), shall be fined not

more than $10,000 or imprisoned for not more than five

years, or both.

(b) As used in this section “unlawful activity” means

... (2)... bribery... in violation of the laws of the

State in which committed .. .

STATEMENT OF THE CASE

STATUS

On March 23, 1974, petitioner, James G. Ryan, was found

guilty of both counts of an indictment charging that he con-

spired, in 1972, with codefendants Wilson and Zeldin, and un-

indicted coconspirator Miro (Mike) Mizera, to violate the Travel

Act with respect to bribery of public officials contrary to Ne-

vada law, and that he aided and abetted the commission of sub-

stantive violations of the Travel Act by codefendants and Mi-

zera. On January 29, 1975, he was adjudged convicted and sen-

tenced to two consecutive, five-year terms of imprisonment.

On May 24, 1976, Ryan’s conviction was affirmed by a panel

decision of the Ninth Circuit Court of Appeals.

Ryan filed a motion for rehearing and a motion for rehearing

en banc. On November 29, 1976, the panel modified its opin-

ion by substituting a more complete statement about the way

state agents obtained the “consent” of Mizera to serve as a

state agent, to obtain evidence incriminating Ryan, and to per-

mit official monitoring of his wire and oral communications

with Ryan. Rehearing and rehearing en banc were refused.

Circuit Judge Hufstedler, with the concurrence of Circuit

Judge Ely, dissented from the denial of a rehearing, and con-

sidered that Ryan’s case should have been reheard en banc to

eradicate an intra-circuit conflict between the panel decision as

to the “voluntariness” of Mizera’s cooperation, and the case of

United States v Rothman, 492 F2d 1260 (9th Cir. 1973) and

its antecedents.’

1. The“antecedent cases included Schneckloth v Bustamonte, (1973)

412 US 218; Bumper + North Carolina (1968) 391 US 543; Lynum vp

Specifically, Circuit Judges Hufstedler and Ely were of the

opinion that the determination whether consent to participant

monitoring of wire and oral communications is voluntary, is to

be governed by the same constitutional standards which apply

to the voluntariness of confessions, guilty pleas and searches.

They also were of the view that neither the trial court, nor the

panel, had applied the constitutionally required tests of volun-

ariness, and that the “‘consent”’ of Mizera, on undisputed evi-

dence, was plainly involuntary.

On the merits of this issue, Circuit Judges Hufstedler and

Ely would have reversed Ryan’s conviction and remanded the

case for a new trial free from the tainted evidence.

The panel decision rejected Ryan’s contention that evidence

of his purely local involvement on a rezoning matter established

the commissivn of a federal offense under the rule of Rewis v

United States, (1971) 401 US 808.

The panel upheld Ryan’s aiding and abetting conviction solely

on the basis that he should have “rebuffed” Mizera’s talk about

“campaign contributions.” Ryan’s passivity to Mizera’s ap-

proaches, and his continued belief in the appropriateness of the

rezoning for the land in question, was deemed to prolong the

life of the bribery conspiracy and aid the scheme, and thereby

aid and abet the substantive violations, elthough their occur-

rence was wholly unknown to him.

The panel expressly did not condone the tactics used by state

officers to get Mizera’s “cooperation,” but refused to find that

such conduct was so grossly shocking and outrageous as to vio-

late a universal sense of justice, under Rochin v People of Cali-

fornia, (1952) 342 US 165, or the dictum of United States v

Russell, (1973) 411 US 423.

THE FACTS

Ryan was a county commissioner. Miro (Mike) Mizera had

escaped from Czechoslovakia as a young man, when Commu-

nists obtained control of the country, and had become a United

States’ citizen. He was a self-employed, licensed real estate brok-

er in Las Vegas. He suffered from chronic headaches so painful

lilinois, (1963) 372 US 528; Shotwell Mfg. Co. v United States, (1963)

371 US 341; Rogers v Ruhmond, (1961) 365 US 5334; Johnson v United

States, (1918) 333 US 10; and Bram v United States, (1897) 168 "IS $32.

they were incapacitating and he depended heavily on drugs

during attacks. He had succeeded in finding and getting an

appointment with a medical specialist in New York City. Mi-

zera had all his hopes pinned on this doctor for relief from pain,

but he needed money to keep the appointment and pay for ex-

pensive treatments.

Looking around for a way to make money, Mizera came upon

a 65-acre tract of unimproved land which was owned by Adrian

Wilson, a Los Angeles architect. The land was zoned for con-

struction of only two housing units per acre. Mizera saw that

rezoning to a limit of four housing units per acre was feasible

in the land area and that rezoning would make for greater sale-

ability of the sites and more profitable commissions for him.

Mizera went to Wilson in California for a brokerage contract

and approval to seek rezoning. Mizera had already been s

by failing to get rezoning of another tract, where rezoning “had

even been recommended by a subordinate planning board. From

that experience, and anonymous street talk, Mizera was invin-

cible in the belief that “political contributions” were prerequisite

to rezoning.

Mizera expressed his conviction to Wilson and proposed that

Mizers would try to get the rezoning ard would make political

contributions to the commissioners from money Wilson would

pay him for rezoning work.

Mizera went to Ryan in Las Vegas and explained the rezon-

ing application. Without any mention of a “political contribu-

tion’’ by Mizera, Ryan approved the proposal on its merits. Mi-

zera, nevertheless, was still convinced that political contributions

were needed. Mizera arranged further meetings with Ryan

where Mizera did mention political contributions for the com-

missioners. Ryan ignored these overtures, but continued to dis-

cuss the zoning change, which he favored all along as beneficial

for the community.

At one meeting, Mizera told Ryan his portion of the con-

tribution fund was reduced because of the need to contrib-

ute to other commissioners. Ryan was angered, said he didn’t

want any part of it and walked off.

Meanwhile, Mizera saw Commissioner Broadbent and offered

a contribution for Broadbent’s help in moving and voting for

rezoning. Broadbent {feigned complicity, and immediately called

the Siate Attorney General to report an offer of a bribe. From

that point on, Broadbent became an active undercover agent and

had further talks with Mizera which were officially monitored.

A Mizera-Broadbent conversation on April 27, 1972 was

intercepted and recorded, from which the officers knew they

had hard-core evidence of Mizera offering a bribe to Broad-

bent. The officers decided not to proceed against Mizera on the

possibility that he might be involved with other commissioners.

The trial court found that as early as May 2, 1972, the state

investigation was focused on Ryan.

On May 4, 1972, the officers get an order to intercept phone

calls at Mizera’s office and home. The application for these wire

interceptions was purportedly directed at Mizera, and the issuing

judge was not told that the officers already had a case made

against Mizera and that they were going for Ryan. At the trial,

the Government did not rely on this interception order as a

basis for admissibility of tape-recordings: :

The interception of Mizera’s phone calls, and personal surveil-

lance was not producing any incriminating evidence against Ryan.

So, on May 17, 1972, by pre-arrangement with state officers,

Broadbent called Mizera and told him Broadbent was withdraw-

ing frem making the rezoning motion or voting for it. This tac-

tic prodded Mizera to another meeting with Ryan, where Ryan

said he would make the motion.

Ryan testified Mizera was objectionable, but Ryan did not

believe be should fail to vote his genuine conviction on a rezon-

ing application simply because a proponent was out-of-line.

The evidence is undisputed, and corroborated in detail, that

Ryan (1) never approached any fellow commissioner about the

rezoning; (2) never met with defendant Wilson (though the

two men had been introduced some years previously); (3)

never met with or knew defendant Zeidin, a Las Vegas contrac-

tor who wanted to construct housing units on the Wilson tract

after rezoning; and (4) never traveled or communicated across

state lines or had any knowledge of such acts hy the codefend-

ants or Mizera.

On May 18, 1972, state officers moved in on Mizera and

“turned” him into a state agent to get incriminating evidence

against Ryan. This meeting was transmitted to and recorded by

state agents.

The state officers already had a lot of information on Mizera

from Broadbent and from their own electronic and personal

surveillance of Mizera. They knew about his headaches, the

drugs he took, that he was desperate to get to the doctor in

New York City, and that he had a wife and young son.

Armed with this knowledge, Deputy Attorney General Ahl-

swede called Mizera for an appointment, posing as a builder

named “Thompson” who wanted to discuss a land purchase.

At the appointed time, Deputy Ahlswede and two investigators

appeared at Mizera’s office, identified themselves as members

of a “strike force,” told Mizera he was guilty of bribery of an

official, read him the statute, revealed the evidence they had

amassed against him, told him they were ready to arrest him

immediately and that he would go to jail for 10 years unless he

“cooperated” with them. They refused to listen to his protes-

tations that he had not broken any law and loved this country.

They told Mizera if he refused to “cooperate” they had no

alternative but to take him to jail and book him for bribery.

Deputy Ahlswede said: “I can assure you, you'll go to jail for

ten years. You will lose your real estate license. You will lose

any chance of making any money out of this land deal or any

other deal. You are in deep, deep trouble, Mr. Mizera.”

Mizera asked if he could talk to an attorney. Deputy Ahl-

swede told him his usefulness to them would be over if he

consulted an attorney — that Ahlswede did not have faith in

some of the attortieys in Las Vegas. Ahlswede said an attorney

might consider Mizera “too insignificant a person to worry

about” and might go to the commissioners and disclose the in-

vestigation. Ahlswede requested that Mizera not take any in-

coming phone calls. Ahlswede told Mizera he could call an at-

torney, but if he did, the offer of a deal was over. Mizera

protested that it was unfair to be taken to jail and not even

have a chance to talk to an attorney. Ahlswede said an attorney

would compromise the investigation and end Mizera’s useful-

ness to them.

Continuing in this vein, Ahlswede said the investigators had

enough on Mizera to send him to prison for 10 years. Ahlswede

said, “I don’t know what your little boy is going to think about

that or your wife.”

The following was said:

Ahlswede:

. . . | know you've got headaches. You're not going to be

able to go back to ah. . . you’re not going to be able to

go back to New York in July . . . to get ah your head-

aches, but *** what is it, Darvon and Percodan that

you're using...

Mizera: .

. . . If I don’t get medicine from doctor . . . in New

York...

Ahlswede:

Well, there’s only one man that can help you at this point

and that’s the Attorney General.

Mizera:

Ah, one more .. . it’s one more escrow to allow me to

go to New York for these expensive treatments . . . $135

a day to help . . . and ah .. . I have another case on

that . . . zoning coming up*

The state officers told Mizera they were not interested in

prosecuting Wilson or Zeldin. They wanted Mizera just to talk

to Ryan, “‘He’s the only one we’re interested in.” The officers

proposed a conversation Mizera should have with Ryan. One of

the officers cautioned against saying anything that would

“spook”’ Ryan, or Ryan “might cancel the whole thing.” Mi-

zera asked, “‘Then you nail me?” Mizera was told, “That’s the

name of the game, Mike.”

Confronted with such threats and coercion, Mizera ‘“‘con-

sented” to cooperate only because, as he was later to testify,

he had no choice.

After a “dress rehearsal’”’ conducted by the officers, Mizera

2. This excerpt is quoted from a transcription of the tape-recorded meet-

ing. Asterisk symbols indicate inaudible parts of the tape. Multiple periods

(. . .) indicate pauses in the statements or interruptions,

was wired with a transmitter and taken to see Ryan. Mizera

talked about money and tried to get Ryan to talk about money,

but Ryan was wholly unresponding.

On May 22, 1972, the commission met, Ryan moved for re-

zoning and the motion carried. That afternoon there was a

Mizera-Wilson-Zeldin meeting and Mizera was given money to

take to Ryan. On May 23, 1972, Mizera went to Ryan’s home

and tendered $5,000 to him. Ryan took the money in his hand

and was immediately arrested.

Long before the commission meeting, Ryan had been warned

of action by the Attorney General. On April 28, 1972, Attor-

ney Morris told Ryan the Attorney General was out to get one

or more of the commissioners. On May 16 or 17, 1972, Attor-

ney Olsen told Ryan the Attorney General was out to “nail”

Ryan.

After the commission meeting, Ryan talked to Attorney Mor-

ris about what Ryan should do if Mizera did offer him money.

Morris told Ryan to play along, take the money and turn it

over to the District Attorney. Ryan followed this advice, but

his arrest prevented fulfilling the plan of going to the District

Attorney.

Ryan’s arrest was widely publicized, but federal investigation

or prosecution was not undertaken then. The Nevada Attorney

General’s office prosecuted Ryan alone under a state criminal

complaint filed on May 24, 1972. Before a preliminary hearing

was held on the complaint, the Attorney General took the in-

vestigation to a county grand jury. On June 15, 1972, the county

grand jury returned a “‘no bill” as to Ryan. The Attorney Gener-

al’s staff then resumed prosecution on the criminal complaint. A

preliminary hearing was held and on July 25, 1972, the magistrate

determined there was no probable cause to hold Ryan for trial

and discharged him. Next, the Attorney General got a court

order purportedly authorizing him to file a direct criminal infor-

mation against Ryan. Such an information was filed on August

8, 1972, but was held to be beyond the state constitutional and

statutory power of the Attorney General, because the prosecu-

or’s function was then vested solely in the district attorney

(Ryan v Eighth Judicial District Court, Nev 1972, 503 P2d

842).

Bae eth at | re

After Ryan’s discharge for lack of probable cause, the district

attorney was empowered by NRS 178.035 to apply to the

court for leave to file a direct information within a 15-day

period. This period lapsed without action by the district attor-

ney, with the result that any further state prosecution was

barred under the limitation provision of NRS 178.562(2). No

state prosecution was ever brought against Wilson, Zeldin or

Mizera.

This federal prosecution was commenced by indictment filed

April 27, 1973 — that is, after any further prosecution of Ryan

by the State of Nevada had been abandoned and barred by limi-

tations.

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals has decided an important question

of federal law which has not been, and should be, settled by

this Court — that is, what standards are to be applied in deter-

mining the voluntariness of consent to participant monitoring of

wire and oral communications under 18 U.S.C. 2511(2)(c)?

The Court of Appeals “did not condone” the coercion of

Mizera and would have preferred that the state officials had

“shown more restrain.” But the court of appeals did not deal

with the facts of coercion in accordance with controlling deci-

sions of this court where an issue of coercion has been raised

under the Fourth and Fifth Amendments.

Bram v United States, (1897) 168 US 532, held coercion

need not take the form of physical torture; if any degree of

influence was exerted against a prisoner, by any form of coer-

cion, threat or promise, the prisoner’s confession must be ex-

cluded from evidence because the law cannot measure the force

of the influence used or decide its effect on the prisoner’s mind.

In Lynum v Illinois, (1963) 372 US 528, a confession secured

by threats that the defendant ‘could get 10 years and [that]

the children could be taken away” unless she “cooperated” was

held to be involuntary. Shotwell Mfg. Co. v United States,

(1963) 371 US 341 held that evidence procured under a prom-

ise of immunity could no more be regarded as the product of a

free act, than evidence obtained by official physical or psycho-

logical coercion. Rogers v Richmond, (1961) 365 US 534, held

that the uncounseled confession of a defendant who was threat-

ened that his wife would be brought in for questioning was

involuntary.

Similarly, where a ‘‘consent” to a search is obtained through

a misrepresentation of the officers, or is in acquiescence to a

claim of lawful authority, such consent may not be relied on to

validate the search and seizure. Bumper v North Carolina,

(1968) 391 US 543. Schneckloth v Bustamonte, (1973) 412

US 218, also recognized that the Fourth and Fourteenth

Amendments “require that a consent not be coerced, by explicit

or implicit means, by implied threat or covert force.” How-

ever the coercion is applied, the “‘consent”’ obtained is not more

than a pretext for an unjustified police intrusion against which

the Fourth Amendment is directed.

Instead of following the precepts of this Court and focusing

upon the acts of the state officers against Mizera, the Court of

Appeals assumed Mizera was guilty without a plea of guilty or

a trial and conviction. The Court of Appeals regarded Mizera

as having brought his plight upon himself. The Court of Ap-

peals ignored that the guilt or innocence of a subject sought to

be “turned” into an undercover agent and do the bidding of

officials in engaging in pre-rehearsed wire and oral communica-

tions, is not decisive and is immaterial to the issue of whether

he was coerced into “cooperation.”

The Court of Appeals seeks to equate Mizera’s situation with

that of one who in the face of criminal charges against him,

with knowledge of the evidence in the hands of the prosecution,

and with an understanding of the perilousness of a trial and the

consequences of a conviction, may elect to plead guilty to an

offense. But the Court of Appeals ignores that in such a case

the defendant is before a judicial officer and he has had the

advice of counsel and has counsel present with him. Even in

those circumstances, the court must scrupulously inquire of the

defendant whether he has been threatened or coerced by any

form of promise or inducement to enter his plea. Moreover the

defendant must be questioned as to whether he intentionally

committed the acts charged against him. Brady v United States,

(1970) 397 US 742.

The Court of Appeals amended its opinion to include a

lengthy footnote reference to the trial court’s memorandum on

this issue in which the lower court focused on the fact that

after the state agents confronted Mizera, Mizera capitulated to

their demands “in a matter of minutes,” and volunteered sug-

gestions on how to proceed with the investigation. Again, in-

quiries of this sort do not address the constitutional issue of

whether Mizera’s initial ““consent’”’ was coerced. If it was, then

whatever flowed from that “‘consent”’ is the product of coercion.

To hold otherwise would be to say that a confession, even

though coerced, could be offered in evidence because the ac-

cused quickly succumbed to pressure. This would be to say

that if “consent” to a warrantless search had been coerced or

was the result of misrepresentation, the search would be valid

if the householder did not protest at length, but acquiesced

with alacrity and escorted the officers through the search. In-

deed, that is exactly what happened in Bumper v North Caro-

lina, supra.

The bog of conjecture which the Court of Appeals falls into

by focusing not on the coercion, but on the supposed guilt, and

the “cooperation” of Mizera, and the time it took for him to

succumb, demonstrates the truth and the logic of Bram v United

States, supra, that use of any form of coercion invalidates the

“consent” and the law cannot measure the force of the infvu-

ence used on the subject or decide its effect on his mind.

The trial court was of the opinion that Schneckloth v Busta-

monte, supra, supports a rule that a “consent to cooperate in

monitoring personal conversations, in effect a consent to

searches, is not to be dissected with the scrutiny applicable to

review of a confession or a guilty plea.” Thus, although the

trial court found that ‘‘a reference by one of the agents to the

effect that an arrest would mean Mizera would be unable to

meet an appointment with a doctor in New York . . . su'ain{ed]

at .. . [Mizera’s subjective] vulnerability in a manner which

would cause great concern if this were a confession or waiver

of a right associated with a fair trial.”* Presumably, the trial

3. The trial court did not apply the “totality of circumstances’ test

required by Schneckloth v Bustamonte, supra, but dissected the circum-

stances of coercion into bits and pieces and then tried to rationalize its

holding by finding the insufficiency of each little bit and piece<m—=»

court considered that voluntary consent can be more coerced

under the Fourth Amendment than it can under the Fifth.

Circuit Judges Hufstedler and Ely see no valid distinction

between “voluntariness” as an issue under either the Fourth

or Fifth Amendments. The dissent states:

“. . . Coercion does not evaporate with an assumed change

of climate between the Fourth and Fifth Amendments.

Nor does coercion becoine free choice when it is applied

to obtain consent rather than to force a confession.”

The panel decision cites Holmes v Burr, 486 F2d 55 (9th

Cir. 1973), to support its determination that the electronic

surveillance was with the “consent” of Mizera. But Holmes v

Burr, supra, did not involve any issue of coercion.*

There are no cases of this Court dealing with the issue of a

coerced consent to participatory monitoring. Cases in which the

product of such monitoring have been held admissible in evi-

dence have been cases where the issue of coercion either did

not exist or was not raised. On Lee v United States, (1952) 343

US 747; Lopez v United States, (1963) 373 US 427; and Uni-

ted States v White, (1971) 401 US 745.

The foregoing considerations show that every reason exists

for this Court to grant the writ. The necessity for the writ to

issue is also demonstrated by the “other side of the coin.”

Suppose the panel decision of the Court of Appeals is allowed

to stand as precedent that Government may bring coercive

pressure against a subject to gain his “consent” under 18 U.S.C.

2511(2)(c). Then, let it be reflected that Berger v New York,

(1967) 388 US 41, and Katz v United States, (1967) 389 US

347, are still the law of the land.

Let it be further reflected that 18 U.S.C. 2510-2520 is an

4 In that case, Marburger paid an atturney $1000 on the attorney's

misrepresentation that he had paid such sum as a fine to settle a liquor

license violation charged against his client, Marburger. Marburger found

out the truth and went himself, in the first instance, to see the liquor

department authorities and had several conferences with them. Marburger

agreed to make the phone calls to the attorney and to the monitoring,

with no evidence of any official coercion.

Aes Ril Nl Ad De ———e

elaborate enactment whereby Congress intended to bring the

use of electronic eavesdropping as a police investigative device

under the warrant requirements of the Fourth Amendment and

under the control of an impartial judiciary.

Finally, let it be reflected that the only statutory exception

to the warrant procedure is the instance where one of the par-

ties to the communication has given prior consent to the eaves-

dropping.

Can it be that Congress intended that ‘“‘consent” could law-

fully be coerced from a man, thereby undoing the necessity for

officers to resort to all the procedural safeguards so carefully and

elaborately wrought in 18 U.S.C. 2510-2520?

Can it be that the standards of voluntariness of consent to a

search of a house or automobile prohibit the use of police co-

ercion, but standards of voluntariness of consent to electronic

eavesdropping. do not prohibit coercion?

Does the Fourth Amendment weigh more in one instance

than another? Does the Fifth Amendment weigh more than the

Fourth?

Surely, these are compelling constitutional inquiries of grave

and national concern which require resolution by this Court.

2. Certiorari should be granted to dispel! the uncertainty

which exists regarding the application of the Travel Act.

Rewis v United States, (1971) 401 US 808 held that a gam-

ing establishment conducted in violation of local law and which

attracted customers to cross interstate lines, was not an activity

within the scope of the Travel Act. No federal jurisdiction

existed to support the prosecution and conviction of either (1 )

the patrons, or (2) the owners of the gaming establishment.

Rewis rejected a government contention that the Travel Act

should apply wherever the proprietors of the gaming establish-

ment could foresee instances of interstate travel by patrons

would occur.

Ever since Rewis, widespread uncertainty has existed on

every level, among the accused, counsel, and the courts, as to

whether a given local activity with incidence of interstate usage

does or does not come under the Travel Act. If the interstate

usage is casual or incidental, the doctrine of Rewis would ap-

pear to foreclose federal jurisdiction, in view of the Congres-

sional purpose to attack organized crime and to provide an aid

to local authorities to combat criminal activity which is effected

in-state from an out-of-state refuge.

The Court of Appeals in this case refused to apply the Rewis

doctrine to the facts of this case.

In apparent eagerness to enlarge federal jurisdiction beyond

the intention of Congress, the Court of Appeals, in this and

other cases, avowedly gives the broadest possible construction

which may be given to the Travel Act. United States v Roselli,

432 F2d 879 (9th Cir. 1970), a pre-Rewis case, and United

States v Colacurcio, 499 F2d 1401 (9th Cir. 1974) a post-

Rewis case.

The broad construction applied by the Ninth Circuit offends

the principle that penal laws should be strictly construed

against the Government. The broad construction offends the

principle that crime is a matter for definition by the legis.

lature — not the judiciary. The broa’ construction offends the

principle that crimes should be defined with clarity and cer-

tainty. All of these principles are central to the due process of

law and the doctrine of separation of powers.

The violation of these principles lays the foundation for an

ad hoc administration of criminal justice, and that is what

exists in the Ninth Circuit. The case of United States v Cola-

curcio, supra, specifies that the reach of 18 U.S.C. 1952 “rests

with the courts to determine . . . in a case-by-case manner.”

A case-by-case approach is appropriate when the court is

called upon to determine the application of a principle of law

to a given set of facts. Was a confession voluntary? Has the

defendant been deprived of procedural due process? The an-

swer may differ from case-to-case, depending on the facts, but

the principle remains constant.

But a case-by-case approach is not appropriate to determine

what conduct is constituted a crime by statute. The acts which

constitute the crime must be legislatively defined — not left to

an exercise of judicial discretion. The issue should be whether

a ee ae a es to ae a eS

the evidence shows that the accused committed the specific acts

which constitute the crime.

The case-by-case approach simply substitutes a prospective

judicial opinion for a legislative definition of a crime, and per-

mits selective prosecution and conviction in that area of the law

involving loss of liberty, where the constitutional necessity for

a clear and certain definition of crime is most compelling.

Even under the case-by-case approach, however, the facts of

this case demonstrate that the circumstance of Wilson’s resi-

dence in California, and contact between Wilson, Mizera, and

Zeldin in Nevada, was nothing more than a casual, trivial, inci-

dental interstate connection.

Additionally, this is absolutely not a case where local authori-

ties stood in any need of “aid to combat interstate criminal

activity.” Ryan was arrested by local authorities. He was inves-

tigated by a local grand jury which returned a “no bill.” He

was prosecuted under a criminal complaint, dismissed after a

pteliminary hearing for lack of probable cause. The circum-

stances oi these investigations were widely publicized and

known, including the activities of Mizera, Wilson and Zeldin.

The Clark County District Attorney, the official then exclusively

charged with authority to prosecute crimes by criminal infor-

mation, did not apply for leave to file a direct information

within the 15 days tollowing Ryan’s discharge for no probable

cause. Thereafter, under the law of Nevada, any prosecution of

Ryan was barred by the limitations statute.

The exercise of federal jurisdiction in this case is the clearest

possible example of a desire to intrude federal rule into purely

local matters beyond the intent of Congress and the scope of

the Travel Act.

Apparently, the Court of Appeals misread the holding of

Rewis. The panel opinion states that the Court of Appeals was

“confronted with no parties comparable to the patrons of

Rewis.”” The panel failed to recognize that the proprietors in

Rewis, were also not subject to prosecution under the Travel

Act.

The Court of Appeals has therefore rendered an opinion on

a federal question which contlicts with the applicable decision

of this Court.

The writ should be granted to —_ pe

whether the Travel Act applies to Ryan, and whether the Travel

Act defines criminal contact under applicable constitutional

standards.

The Court of Appeals protests that no decision has ever held

the Travel Act was unconstitutional. This is mere evasion of

the issue. The issue is whether the Travel Act is unconstitutional

as applied to Ryan in this case. If so, then surely this Court,

which stands as the highest guardian of the Constitution, would

have the courage so to declare.

3. Certiorari should be granted to review the holding of the

Court of Appeals that Ryan’s failure to ‘rebuff’? Mizera con-

stituted Ryan a member of a conspiracy with Mizera, Wilson

and Zeldin to bribe Ryan and other county commissioners, and

that his membership in the conspiracy relieved the Government

from proving that Ryan did anything to aid and abet substan-

tive violations of the Travel Act.

The panel opinion expressed a novel standard of proof in

cases were an indictment charges a defendant with a count of

conspising to violate the Travel Act, and a count of commit-

ting a substantive violation of the Travel Act as an aider and

abetter. The opinion states:

“. . In a case where jurisdiction depends upon the inter-

state nature of the criminal activity, as with section [18

U.S.C.] 1952, section [18 U.S.C.) 2 considerably eases the

prosecutor’s burden. Because of [18 U.S.C.] section 2, he

does not have to show the interstate nature of each de-

fendant’s activity, but rather that the scheme as a whole

had substantial interstate connections. If it did, he must

then prove that each defendant aided or abetted the scheme

to make out his violation of [18 U.S.C.] section 1952

against each defendant. .. .”

No citation of authority is cited for this proposition.

The reasoning of the Court of Appeals appears to be refer-

able to Pinkerton v United States, (1946) 328 US 640. In

that case Pinkerton was indicted both for conspiring with his

brother to evade taxes and for substantive tax evasions com-

mitted by the brother while Pinkerton was in jail. The trial

ee ee ee ee oe -

court gave a jury instruction that if Pinkerton was engaged in

a conspiracy and the substantive offenses were in furtherance of

the conspiracy, that the jury could convict Pinkerton of the

substantive offense. In affirming Pinkerton’s conviction, this

court held that evidence of direct participation by Pinkerton

in the commission of the substantive crimes was unnecessary.

This Court admitted that a different result might have been

reached if the crimes charged had not been reasonably forsee-

able as a natural consequence of the unlawful agreement.

The Pinkerton rule has not enjoyed broad reception in the

federal courts because of the’ likelihood that double punishment

may be imposed for the same criminal conduct, in violation of

the Double Jeopardy Clause of the Fifth Amendment.*

In this case the trial court did not give a Pinkerton instruc-

tion. Nor does the panel opinion cite Pinkerton as authority

for its conception of the reduced standard of proof which per-

tained to the Government in this case.

The conceptual difficulties with the Pinkerton doctrine are

masterfully considered in the article often cited by this Court,

“Developments in the Law — Criminal Conspiracy,” 72 Har-

vard Law Review 920, at pp. 993-1000.

The application of the Pinkerton rule to this case poses the

initial stumbling block of whether Ryan ( who did not know about

or participate to any degree in the substantive acts of interstate

travel and communication to any extent) could reasonably have

foreseen that these acts would occur.

In Pinkerton, A and B conspired to evade taxes, and B did

commit substantive tax evasions. In Ryan the conspiracy was

to commit bribery, and interstate travel and communication was

not an object of the conspiracy. While one who conspired to

commit bribery might be liable as an accomplice to the commis-

5. For example, in United States v Schaefer, 510 F2d 1307 (8th Cir.

1975), Cert Denied, 421 US 975, the court held that where the charge of

conspiracy to conduct an illegal gambling business comprehended nothing

more than the agreement which the defendants necessarily performed by

the commission of the substantive offense itself, and there was no element

in the conspiracy which was not present in the completed crime, the con-

victions on the conspiracy charge violated the double jeopardy clause.

sion of that bribery, how can he be liable as an accomplice to

substantive acts of interstate travel and communication on no

more evidence than that he conspired to commit bribery?

The key to all of this conceptual difficulty is that the sub-

stantive acts of interstate travel and communication are simply

a peg on which to hang federal jurisdiction. There is, therefore,

no basis in the contacts which Ryan had with Mizera before

May 17th when Mizera became a state agent, which can ration-

ally justify Ryan’s liability as an accomplice.

Being perplexed to find any way to justify Ryan’s convic-

tions, the Court of Appeals held that the Government need

only prove that Ryan aided a scheme with interstate connec-

tions, to establish him as a conspirator.

Being further perplexed to state how Ryan “aided the

scheme” the Court of Appeals seized upon Ryan’s passivity

when he was offered a “political contribution’ by Mizera, and

Ryan’s failure to “rebuff” Mizera’s overtures, stating:

“In analyzing Ryan’s role in the conspiracy, it is impor-

tant to keep in mind that Mizera had been rebuffed by all

the other commissioners (except, of course, Broadbent,

who was serving as an informant). Thus, without Ryan’s

cooperation with Mizera up to May 17th, the conspiracy

almost certainly would have dissolved.”

The result of the panel opinion is that:

(1) The Government has been relieved of its burden to

prove acts of complicity to establish guilt of Ryan as an aider

and abetter;

(2) Ryan has been subjected to double punishment in vio-

lation of the Double Jeopardy Clause; and

(3) Mere: passivity to a criminal overture, and the failure

to scotch the criminal, constitutes Ryan a criminal conspirator

and an aider and abetter.

CONCLUSION

The issues raised by this petition are all grave constitutional

problems, they are in the forefront of the work of the federal

ee. Pee ee ae ee ae oe

EBL Toe

Oe ee ee Ley

judiciary, and should be resolved by review on a writ of certio-

rari '

Respectfully submitted:

HARRY E. CLAIBORNE

ANNETTE R. QUINTANA

108 South Third Street

Las Vegas, Nevada 89101

(702) 384-3553

Se etre eee

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

™ No. 75-1317

James G. Ryan,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee, |

vs. No. 75-1314

ApRIAN WILSON, |

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee, | No. 75-1313

vs.

BERNARD ZELDIN, OPINION

Defendant-Appellant.

(May 24, 1976)

Appeal from the United States District Court

for the District of Nevada

Before: WRIGHT, KILKENNY and TRASK

Circuit Judges

TRASY, Circuit Judge:

Adrian Wilson, Bernard Zeldin and James Ryan appeal their

convictions in Federal District Court for the District of Nevada

for violation of 18 U.S.C. § 1952, the so-called “Travel Act,” 18

U.S.C. §371, the federal conspiracy statute, and 18 USC.

§2, the aiding and abetting staute. They make several assign-

ments of error, relating to the jurisdiction of the court below,

the legality of evidence gathered by wiretapping and electronic

surveillance and the general conduct of the governmeni in inves-

tigating and prosecuting this case. In connection with this last

issue, appellants Zeldin and Wilson also argue that the govern-

ment intentionally interfered with their attorney-client privilege.

In addition, appellant Ryan alleges that the evidence was insuf-

ficient to support the verdict against him as a coconspirator,

appellant Wilson argues that the trial judge erred in refusing

certain jury instructions, and appellant Zeldin and Ryan chal-

lenge the constitutionality of the Travel Act. For the reasons

set forth below, we affirm all appellants’ convictions.

Each of the appellants filed an opening brief emphasizing facts

as they apply to his particular case. Mindful of these individual

variations we review the facts in their entirety, considering -

them in the light most favorable to the government, which is

the appropriate standard for appellate review of judgments of

conviction. Glasser v United States, 315 U.S. 60, 80 (1942);

United States v. Munns, 457 F.2d 271 (9th Cir. 1971).

The case revolves around the attempt of appellant Wilson, a

well-known architect and resident of Los Angeles, to have cer-

tain land he owned in Nevada approved for rezoning and acts

of bribery committed to achieve this purpose. The rezoning

decision was to be made by the Clark County Board of Commis-

sioners. The central figure in this episode was one Miro Mizera,

an unindicted coconspirator, a Czechoslovakian refugee in ill

health and a licensed realtor in the Las Vegas area.

Mizera was interested in helping Wilson subdivide and sell

his property. He visited Wilson in January 1972 in Los Angeles

and told Wilson that rezoning could be accomplished only if a

political contribution to the county commissioners were made.

Mizera agreed to talk with Commissioner Ryan about this

matter.

Mizera thereafter held a series of meetings with Ryan. At the

first meeting, Ryan told Mizera that prospects for approval of

the application were favorable. No discussion of a bribe or

campaign contribution was made until the second meeting, when

Mizera mentioned a $10,000 political contribution. After the

Planning Commission, an advisory body, recommended rejecting

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the rezoning plan, Ryan told Mizera that he (Mizera) would

have to approach the other four commissioners himself.

Mizera was given an unenthusiastic reception by Commission-

ers Leavitt, Brennan, Wiesner and Broadbent, although all of

them at least indicated to Mizera that the prospects for eventual

approval of the plan were good. After meeting with Mizera on

April 24, 1972, Broadbent telephoned the state Attorney Gen-

eral and informed him that he thought Mizera had offered a

bribe in exchange for his vote. Broadbent then agreed to co-

operate with state authorities by “playing along” with Mizera

and recording all conversations with hi

The foilowing day, the Board of Commissioners voted to con-

tinue consideration of the application until May, when Wilson

could more conveniently be in Nevada. Shortly thereafter, Mizera

contacted a Las Vegas attorney, Morris, to inquire about the

possibility of representing Wilson at the hearing. Exactly what

terms were discussed between Morris and Mizera is subject to

dispute, but it appears that Morris was informed of the bribery

scheme. In any event, a retainer agreement between Morris and

Wilson was consummated. Mizera then told Broadbent that

Morris would be representing Wilson in the forthcoming com-

mission meeting and detailed the scheme as it then stood. This

conversation was recorded.

On April 27, 1972, Broadbent, acting through an intermedi-

ary, Reeves, told Morris that he was being led into a trap and

that he should get out of the affair altogether. Morris then

withdrew from the retainer agreement, returning the fee Wilson

had paid him. This contact between Broadbent, who was serv-

ing as a government informer, and Morris gives rise to one of the

issues on appeal.

Mizera continued to meet with Broadbent and Ryan in May.

His purpose at this time was to have one of them take control

of the bribery plot and work to ensure the votes of the other

commissioners. In particular, Mizera wanted one of them to

make the motion for rezoning at the meeting. On May 16, 1972,

Broadbent, at the behest of state agents, told Mizera that he

had to back out of the deal and would not be able to support

the zoning application. There was no further contact between

Mizera and Broadbent until after the Commission meeting.

Mizera was also in contact with appellant Zeldin during this

time. Zeldin was a local businessman who was to take charge of

the development of Wilson’s land after approval of the rezoning

plan. Zeldin went to Los Angeles to confer with Wilson con-

cerning the bribery scheme and to obtain the bribery money

which Wilson had borrowed from a Los Angeles bank. This

interstate trip formed part of the basis for the indictment under

18 U.S.C. § 1952, the Travel Act.

After Broadbent withdrew from the plot, Mizera telephoned

Zeldin, who was in Los Angeles, and the two discussed the

problem of which commissioner would make the motion for ap-

proval of the application. This interstate conversation also

formed part of the section 1952 indictment. The following day,

May 17, 1972, Mizera met with Ryan and at this time Ryan

said that he would make the motion. Thereafter, Mizera again

telephoned Zeldin in Los Angeles.

On May 19, 1972, Mizera was approached by state agents

and informed of the evidence they had amassed against him

through his conversations with Broadbent. The state agents

offered Mizera immunity from prosecution in return for his

assistance. From that point forward, Mizera was a state agent

whose conversations were recorded. The tactics of the govern-

ment in obtaining Mizera’s cooperation give rise to another

important issue in this appeal.

The bribery scheme was discussed and recorded in a conver-

sation between Ryan and Mizera that very evening. Mizera also

met with Wilson, who had flown in from Los Angeles on May

21st for the commissioners’ meeting the following day, at which

time the distribution of the bribery money among the commis-

sioners was discussed. This conversation was also recorded.

The commissioners met on May 22nd. Commissioner Ryan

made the motion, and the zoning application was approved.

Mizera, Wilson and Zeldin then caucused in a motel room and

Mizera was given the money to distribute to the commissioners.

State agents monitored this entire meeting through a transmit-

ting device Mizera carried on his person. The following day,

Mizera went to Ryan’s home and gave him the bribery money,

which Ryan accepted. Immediately thereafter, state agents, who

had been hiding in the trunk of Mizera’s car, arrested Ryan.

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The first count of the indictment charged all appellants with

conspiring to violate the Travel Act, 18 U.S.C. § 1952,' the

second with violating the Travel Act and aiding and abetting

therein, pursuant to 18 U.S.C. § 2. In a case where jurisdiction

depends upon the interstate nature of the criminal activity, as

with section 1952, section 2 considerably eases the prosecutor’s

burden. Because of section 2, he does not have to show the inter-

state nature of each defendant’s activity, but rather that the

scheme as a whole had substantial interstate connections. If it

did, he must then prove that each defendant aided or abetted the

scheme to make out his violation of section 1952 against each

defendant. It is for this reason that, in deciding the jurisdictional

question, our primary focus is upon the scheme as a whole.

'18 U.S.C. § 1952 states:

“(2) Whoever travels in interstate or foreign commerce of uses

ary facility in interstate or foreign commerce, including the mail,

with intent to—

“(1) distribute the proceeds of any unlawful activity; or

“(2). commit any crime of violence to further any unlawful activ-

ity; or

(3) otherwise promote, manage, establish, carry on, or facilitate

the promotion, management, establishment, or carrying on, of any

unlawful activity, and thereafter performs or attempts to perform

any of the acts specified in subparagraphs (1), (2), amd (3), shall

be fined not more than $10,000 or imprisoned for not more than five

years, or both.

“(b) As used in this section ‘unlawful activity’ means (1) any

business enterprise involving gambling, liquor on which the Federal

excise tax has not been paid, narcotics, or prostitution offenses in

violation of the laws of the State in which they are commited or of

the United States, or (2) extortion, bribery, or arson in violation of

the laws of the State in which committed or of the United States.

“(c) Investigations of violations under this section involving

liquor or narcotics shall be conducted under the supervision of the

Secretary of the Treasury.”

218 U.S.C. § 2 states:

“(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its commission,

is punishable as a principal.

“(h) Whoever willfully causes an act to be done which if directly

performed by him or another would be an offense against the United

States, is punishable as a principal.”

Appellants urge that the offenses committed here were mat-

ters of local concern; that there was no connection between the

interstate travel and usage of interstate facilities and what they

characterize as an “isolated local offense.” Appellants argue that

Rewis v. United States, 401 U.S. 808 (1971), is dispositive of

the question of jurisdiction and mandates a finding that the acts

committed in this case do not come within the ambit of sec-

tion 1952. In that case, petitioners conducted an illegal lottery

in Florida, just south of the Georgia-Florida state line. Although

there was no evidence that petitioners themselves crossed state

lines in connection with the lottery, several of the patrons of the

lottery did so. On these facts, the Court held section 1952 in-

applicable.

We do not find that Rewis supports appellants’ position. We

note specifically that the Court in Rewis cited with approval

three lower court cases in which the organizers of an illegal

scheme either traveled in interstate commerce or caused other

organizers — as opposed to patrons — to do so.’ These cases,

Justice Marshall said, “correctly applied § 1952 to those indi-

viduals whose agents or employees cross state lines in further-

ance of illegal activity.” 401 U.S. at 813. We find the facts of

these cases, all involving illegal gambling operations, much closer

to our case than those of Rewis since we are confronted with no

parties comparable to the patrons of Rewis.

This court reads the statute as broadly as Rewis will permit.

In United States v. Roselli, 432 F.2d 879, 890-91 (9th Cir.

1970), a pre-Rewis case, we took a broad view of the act, reject-

ing a wide variety of challenges to its applicability which would

have narrowed the act considerably. This broad construction

was cited with approval in United States v. Colacurcio, 499 F.2d

1401, 1405-06 (9th Cir. 1974), a case decided well after Rewis.

Applying this general framework to appellants’ case, we have

no difficulty in concluding that this scheme comes well within

the ambit of the statute. Mizera and Zeldin traveled in inter-

state commerce to discuss the rezoning with Wilson in Califor-

nia. Wilson gave Zeldin $10,000 to transport from California to

United States v. Chambers, 382 F.2d 910 (6th Cir. 1967); United

States v. Barrow, 363 F.2d 62 (43rd Cir. 1966), cert. denied, 385 U.S. 1001

(1967); United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964), cert. denied,

381 U.S. 915 (1965).

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Nevada. Wilson traveled from California to Nevada to attend

the county commissioners’ hearing. Zeldin took part in at least

two interstate telephone conversations with Mizera.‘

II.

Evidence obtained by electronic surveillance and wiretapping

in the investigation of this case can be divided into three types.

First, state agents obtained evidence through wiretaps on the

phone of Broadbent, the county commissioner who served as a

government informant, as well as a “body tap” placed on Broad-

bent. A court order pursuant to state statute was obtained for

the telephone tap but not the body tap. No party disputes

that Broadbent’s consent was obtained for both forms of elec-

tronic surveillance. Second, a wiretap order was issued pursuant

to the same Nevada statute on May 4, 1972, permitting state

agents to wire Mizera’s residence and office, and to tap tele-

phones in those places. Many conversations were recorded under

this order between May 5th and May 19th, but only those in-

volving Broadbent were offered at trial. Third, on May 19,

1972, Mizera agreed to cooperate with government authorities

and also to allow his conversations, both telephone and personal,

to be taped.

As to the first type of wiretap evidence, the law in this cir-

cuit is clear that one party’s consent is sufficient justification

for electronic surveillance and no prior judicial authorization is

required. Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973). Since

no party disputes that Broadbent’s consent was freely given, any

evidence derived from this wiretap is free from challenge.

As to the second type, we note that none of these tapes

(except those which also involved Broadbent) were introduced

at trial. Pursuant to the command of Alderman v. United States,

“Appellants Zeldin and Ryan also argue that the Travel Act is un-

constitut.onal as impermissibly vague or an infringement of the powers

reserved to the states in the tenth amendment. Contentions of this nature

have been consistently rejected both by this court and other circuits.

United States v. Cozetti, 441 F.2d 344, 348 (9th Cir. 1971); United States

v. Nichols, 421 F.2d $70, $71 (8th Cir 1970); Turf Center, Inc v. United

States, 325 F.2d 793, 795-96 (9th Cir. 1963). By contrast, appellants have

cited no cases holding the statute unconstitutional and we know of none.

394 U.S. 165 (1969), a hearing after the trial was nonetheless

held to determine “the nature and relevance to (their) convic-

tion of any conversations which may have been overheard,”

Alderman, supra, at 186. At this hearing, the district court ruled

that the g»vernment had an independent source. Broadbent, for

all infortaation obtained by the wiretap on Mizera’s phones dur-

ing the period between May 5th and May 19th. The court also

ruled that Mizera himself became an independent source of this

same evidence after May 19th, when he agreed to cooperate with

the authorities and told them all that had gone on prior to that

tirie. No appellant was able to demonstrate to the court’s satis-

faction that evidence used at trial, or leads to evidence used at

trial, were discovered as a result of these interceptions. There-

fore, the court concluded that aside from the independent

sources, “the information or leads obtained (from the Mizera

wiretap before May 19th) were insignificant and insubstantial.”

After a thorough review of the evidence presented at this hear-

ing and the arguments of counsel on behalf of their clients, we

are not “left with the definite and firm conviction that a mistake

has been committed.” United States v. United States Gypsum

Co., 333 US. 364, 395 (1948). We therefore affirm the trial

court’s conclusions.

Finally, we hold admissible on the basis of one party’s consent

evidence obtained from taps on Mizera’s telephone and person

after May 19th. Holmes v. Burr, supra. The question of Mizera’s

consent is discussed in more detail in Part III, infra.

III.

Appellants’ arguments are also directed at the manner in

which the government enlisted Mizera as a government inform-

ant. They claim that their due process rights have been violated

by the government’s treatment of Mizera. They would have us

dismiss the indictment altogether on due process grounds, or,

at the very least, exclude all evidence procured from the Mizera

wiretap after May 19th.

Appellants rely particularly on Justice Rehnquist’s statement

in United States v. Russell, 411 U.S. 423, 431-32 (1973), that

‘“‘we may some day be presented with a situation in which the

conduct of law enforcement agents is so outrageous that due

Ae. Da a 10 8 EE ME te alg bet nad

process principles would absolutely bar the government— from

invoking judicial processes to obtain a conviction” and argue

that this is precisely that type of situation. Appellants’ reliance

upon this passage from Russell has two distinct bases.

Russell was directed specifically toward a consideration of the

nature of the entrapment defense. Appellants faintly argue that

Mizera forced them to commit criminal acts they would not

otherwise have committed. This, of course, would be entrapment

under the Russell standard. They argue more strenuously, how-

ever, that Russell considered entrapment from another perspec-

tive — the so-called “objective approach,” where the focus is

not on the “propensities and predisposition of a specific defend-

ant, but on ‘whether the police conduct revealed in the particu-

lar case falls below standards, to which common feelings re-

spond, for the proper use of governmental power.’” Russell,

supra at 441 (Stewart, J., dissenting). While the Court’s opin-

ion in Russell very clearly excludes use of the “objective ap-

proach” in most entrapment cases, the above-quoted passage of

Justice Rehnquist for the Court does indicate that this ap-

proach may in certain limited instances be appropriate.

In examining the circumstances surrounding the government’

confrontation with Mizera, in which he agreed to eee with

government authorities, and Mizera’s activities thereafter, we

conclude that, measured against the Russell standard, the gov-

ernment’s conduct did not rise to the level of a violation of

appellants’ due process rights. Government agents first read to

Mizera the Nevada bribery statute, the “unlawful activity” which

served as the predicate for the section 1952 indictment, and then

recited some of the evidence they had amassed against hin.

Thereafter, it is undisputed that this “conversation” included the

following factors:

1. Repeated assertions to Mizera that he would go to jail for

10 years _ refused 2 Ng any (10 years was the maximum

sentence; the statute ws for 1-10 years imprisonment and

no defendant was ultimately given the cor hm ). “ay

2. Admonitions to Mizera not to get an attorney or his “‘use-

fulness” to state agents would be over.

3. Prophecies that his health would suffer irreparably if he

went to jail. |

10a

4. Assurances that his friends, Wilson and Zeldin, would be

kept “out of it.”

5. Reminders that if he did not help obtain sufficient evi-

dence against Ryan, he himself would be indicted.

This court does not condone the tactics used to gain Mizera’s

co-operation. We explicitly disagree with the lower court, which

characterized the government’s efforts as “excellent professional

police work.” On the basis of the applicable legal standards

derived from Russell, however, we find that this treatment of

Mizera does not violate appellants’ due process rights. This court

has emphasized that the due process channel which Russell kept

open is a most narrow one, to be invoked only when the gov-

ernment’s conduct is so grossly shocking and so outrageous as to

violate the universal sense of justice. United States v. Lue, 498

F.2d 531, 534 (9th Cir. 1974). The government’s conduct,

while not exemplary, does not rise to this level. See Hampton

v. United States, 44 U.S.L.W. 4542, 4543-44 (April 27, 1976).

Nor does the government’s treatment of Mizera and his acts

as a government agent constitute entrapment in the “‘subjec-

tive,” Russell sense. “It is only when the government’s decep-

tion actually implants the criminal design in the mind of the

defendant that the defense of entrapment comes into play”

Russell teaches, 411 U.S. at 436°. Here, the government enlisted

Mizera’s cooperation when the conspiracy was in a very ad-

vanced stage, just prior to its culmination on May 22nd. The

conspiracy had been ongoing since at least January of that year.

Moreover, there is no evidence that Mizera’s course of con-

duct changed in any sense after his enlistment on May 19th or

that he influenced any of the appellants to change their course of

conduct after he became a government agent. He continued to

SFor this reason we reject Wilson's contention that the trial court's

refusal to give entrapment instructions relating to Broadbent's contact

with Wilson was reversible error. There is no indication that Wilson

posed any objection to the trial court’s refusal to give his proposed

instructions and normally a failure to object will preclude appellate

review. Fed. R. Crim. P. 30; 5A Moore's Federal Practice 951.04. Even

if he had posed a timely objection, however, his proposed instructions

would have presented to the jury statements of the law based upon an

“objective standard” and therefore at odds with Russell's clear holding.

They were thus properly rejected.

ee ne ee

lla

meet and discuss the bribery plan with Ryan. Wilson had previ-

ously made a commitment to come to Las Vegas on May 21st.

and, as planned, Mizera met with him then, at which time the

distribution of the bribery money was discussed. Zeldin was also

present at this meeting, as planned. The argument that Mizera

emplanted a criminal intent in unwilling participants at this late

stage is transparently implausible.

For similar reasons, we are unpersuaded b Hants’ -

ment that Mizera’s decision to cooperate om pom Simply

stated, Mizera had no practical alternative. Once the statute

was read tu him and he was confronted with the evidence the

state held against him, Mizera was capable of determining that

he faced an almost certain prison sentence. At that point, Mizera

could have decided that cooperation with the authorities was in

his self-interest and indeed his only hope of staying out of prison.

While we would have preferred that the government had shown

more restraint after confronting Mizera with the evidence

against him, nothing said or done thereafter was likely to change

his decision. We therefore hold that all wiretap and electronic

surveillance evidence derived from Mizera’s conversations after

May 19th was properly admitted on the basis of one party’s

consent. Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973).

Appellants Zeldin and Wilson raise an independent due proc-

‘$ argument regarding the contact between Broadbent, who, it

will be recalled, was also a government informant, and Morris,

Wilson’s retained attorney. It is undisputed that Broadbent ap-

proached Morris through an intermediary on April 27, 1972, and

told Morris that he was being led into a trap, after which Morris

withdrew from representing Wilson. Beyond this, however, the

circumstances surrounding this contact are shrouded in mystery.

It is not clear, for example, on what basis Zeldin claims his

due process rights were violated by Broadbent’s contact. Morris

testified at trial that he + met Zeldin prior to April 27,

1972. Zeldin claims at one point that he had agreed to enter

into a partnership with Wilson, while at another point he states

he was in partnership with Wilson at the time of this alleged

interference. Nor do we know the terms of the Morris-Wilson

retainer agreement — whether Wilson retained Morris for the

alleged W'son-Zeldin partnership, individually, or on some

other basis.

12a

In any event, all the evidence indicates that Broadbent was

acting independently and out of concern for a long-time friend in

ing Morris to rernove himself from the case. There is abso-

lutely no evidence that Broadbent consulted with state agents

before approaching Morris or that the state was in any manner

involved in this contact. While we do not hold that the govern-

ment can always fall back on conventional agency principles to

disclaim responsibility for acts committed by its informants, we

do hold that on these unique facts no due process violation in

the Russell sense transpired.

IV.

Appellant Ryan contends that the evidence was insufficient to

support the verdict against him as a coconspirator. He argues

that his participation in the conspiracy can only be proved by

acts committed prior to May 19, 1972, the date Mizera became

a state agent, on the theory that a person cannot conspire with

himself and one who is acting as a government agent is incapable

of being a member of a criminal conspiracy. Accepting, arguendo,

the appropriateness of this principle in this case, we find the

evidence more than sufficient to support the v

Ryan met with Mizera on numerous occasions to discuss the

rezoning. At the second of these meetings, in February of 1972,

campaign contributions in exchange for a favorable vote were

mentioned. Ryan did not repudiate the scheme at that time, as

Broadbent had done upon first becoming aware of it. Rather,

he continued to meet with Mizera concerning this rezoning.

While the bribe was not specifically discussed in the March

meeting, it is difficult to imagine that Ryan assumed that Mi-

zera had dropped his original proposal. ~ April of 1972, Ryan

did repudiate the plan altogether because his share of the “kitty”

had been reduced, but resumed his role in the scheme shortly

thereafter, when Mizera told him that he would receive $3,000

rather than the $2,000 originally promised. Finally, on May 17,

1972, Ryan told Mizera that he would make the necessary

motion at the commission meeting.

In analyzing Ryan’s role in the conspiracy, it is important to

keep in mind that Mizera had been rebuffed by all the other

commissioners (except, of course, Broadbent, who was serving as

l3a

an informant). Thus, without Ryan’s cooperation with Mizera

up . ad 17th, the conspiracy almost certainly would have

dissolv

This court has repeatedly held that once a conspiracy is estab-

lished, as it was here abundantly, only slight evidence is neces-

sary to support a jury verdict that an individual defendant was

a member. United States v. Turner, 528 F.2d 143, 162 (9th Cir.

1975); United States v. Westover, 511 F.2nd 1154, 1157 (9th

Cir. 1975). At the same time, we have said that mere knowl-

edge of the existence of a conspiracy or miere association with a

conspirator is insufficient to sustain a conviction. United States

v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974). The govern-

ment must show that a defendant had a “stake in the venture.”

United States v. Cianchetti, 315 F.2d 584, 588 (9th Cir. 1963).

We find the evidence linking Ryan to this conspiracy consider-

ably more than “slight” and clearly indicating a stake in the

illegal venture.

Accordingly, for the reasons set forth herein, the judgment

of the district court is

Affirmed.

14a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintif}-Appetlee,

- No. 75-1317

James G. RYAN,

Defendant-Appellant

UNITED STATES OF AMERICA,

Plaintiff-Appellee, |

vs. No. 75-1314

ApRIAN WILSON, |

Defendant-Appellant

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. No. 75-1313

BERNARD ZELDIN,*

Defendant-Appellant | ORDER

Before: WRIGHT, KILKENNY and TRASK, Circuit Judges

The panel as constituted in the above case has veted to deny

the petition for rehearing. Judges Wright and Trask have voted

to reject the suggestion for a rehearing en banc. Judge Kilkenny

recommends against a rehearing en banc.

The full court has been advised of the suggestion for an en

banc hearing and upon a request for en banc consideration by an

active judge of the court and a vote thereon, the request for an

en banc hearing was rejected by a majority of the active judges

of the court. Fed. R. App. P. 35.

The opinion is modified by striking the first full paragraph

on page 11 of the slip opinion and substituting therefor the par-

agraph attached hereto with new footnotes 6 and 7.

*No request for an en banc hearing was made by appellant Zeldin in

No. 75-1313, and his petition for rehearing has heretofore been denied.

15a

Likewise we are unpersuaded by appellants’ argument that

Mizera’s decision to cooperate was coerced. Whether consent

was voluntary or coerced is essentially a question of fact. United

States v. Page, 302 F. 2d 81 (9th Cir. 1962). When presented

with the problem, the District Court Judge wrote a thirteen

page memorandum in which he dealt exclusively with the Mizera

question. In resolving that issue as he did he pointed out that

he not only had the testimony of Mizera clearly in mind but

that he also had considered the two tape recordings of the

meeting between Mizera and the agents when Mizera agreed

to cooperate. The trial judge commented on those conversations

at some length,’ coming to the conclusion that Mizera volun-

tarily consented to cooperate.’

Footnote 6:

“When representatives of the Nevada Attorney General first ap-

proached Mizera on the morning of May 19, 1972, they told Mizera

that they were there to ask for his cooperation, outlined their know!l-

edge of his involvement in an ongoing criminal project of bribing

County Commissioners, let Mizera read NRS § 197.020 (offering a

bribe to a public official is a felony), assured Mizera that offering a

‘campaign contribution’ which is clearly conditioned upon a favorable

vote on a zoning matter falls within that statute, indicated that they

were more interested in discovering Commissioners who would accept

bribes, stated that they were fully prepared to arrest Mizera at that

point and that they had enough evidence to convict him and send

him to prison for ten years, but offered Mizera the alternative of co-

operation, in which event he co. 'j avoid prosecution, the penitentiary,

and loss of his real estate broker's license. When Mizera asked if he

might call an attorney, state officers responded that, because they

feared that an attorney might notify the Commissioners of the investiga-

tion, and that because some attorneys might thereby compromise Mi-

zera’s position, they did not want him to contact an attorney. They

quickly added that they were not saying he could not call an attorney,

but were saying only that if he did, any offer of a deal was over. (It

might be added parenthetically that testimony at the trial has indi-

cated that intimations of the investigation were in fact given to some

of the Commissioners by a local attorney, and that the agents’ fears

were not totally unfounded.) The agents outlined some of the dis-

advantages of an arrest and conviction, noting that Mizera would

face ten years in prison, that it would have an impact on his family,

that he would lose his license and his income derived therefrom, and

stated that he would be unable to go back to New York for a

16a

Requiring a defendant to face up to the real world in order

to obtain his cooperation or to obtain admissions of guilt or a

plea of guilty is permissible under our system. In Brady v.

United States, 397 U.S. 742, 750, the Court said:

“The State to some degree encourages pleas of guilty

at every important step in the criminal process. For some

people, their breach of a State’s law is alone sufficient

reason for surrendering themselves and accepting punish-

ment. For others, apprehension and charge, both threaten-

ing acts by the Government, jar them into admitting their

guilt. In still other cases, the post-indictment accumulation

of evidence may convince the defendant and his counsel

Footnote 6 (Continued )

specialist's treatment of his headaches. The agents were candid about

Mizera’s position, stating that, in view of the alternatives, he was not

in a position to bargain if he was to receive immunity. Once assured

that he would be provided with protection from possible threats to his

life because of his cooperation, Mizera agreed to cooperate. Mizera’s

decision was made in a matter of minutes from the time he was

confronted. The tapes reflect the fact that the agents were direct

but not vociferously overbearing.

“ . . . Mizera also testified that he was not fearful of a prison

term, but he subjectively concluded that he would not get the medical

care he felt he needed in prison. He stated that the agents never said

that medicine would not be provided him if he refused to cooperate.

Mizera, under cross-examination, indicated that he clearly understood

the agents to say that, while he could call an attorney if he wished,

it would mean that no deal would be offered him. While he stated

he consented to cooperate with reluctance, Mizera nevertheless testi-

fied that he agreed to cooperate and went with the agents voluntarily.

“Finally, although the tape recordings made during the meetings of

that day show that Mizera had occasional reluctant afterthoughts

about cooperating, the major portions of the recordings reveal Mizera

freely volunteering suggestions on how to proceed with the inves-

tigation.”

Footnote 7

“Considering the circumstances as a whole, the tone, approach and

statements of the agents, the rapidity with which Mizera consented,

the active and willing cooperation Mizera demonstrated immediately

after agreeing to assist the investigation, and Mizera’s own testimony

that he cooperated and voluntarily began that cooperation, this Court

finds that Mizera’s initial consent was ‘voluntary’ and valid.”

a re rs See ee me ome Teer tress WCET re fot ol Mee SOFT

<* oast CetetPoe ss

‘

™

‘

17a

that a trial is not worth the agony and expense to the de-

fendant and his family. All these pleas of guilty are valid

in spite of the State’s responsibility for some of the factors

motivating the pleas; the pleas are no more improperly

compelled than is the decision by a defendant at the close

of the State’s evidence at trial that he must take the stand

or face certain conviction.”

See also Schneckloth v. Bustamonte, 412 U.S. 218 (1973);

Tollett v. Henderson, 411 U.S. 258 (1973).

While we would have preferred that the government had

shown more restraint after confronting Mizera with the evi-

dence against him, we cannot say that the judgment of the trial

court was clearly erroneous. We, therefore, hold that all wire-

tap and electronic surveillance evidence derived from Mizera’s

conversations after May 19 was properly admitted on the basis

of one party’s consent. Holmes v. Burr, 486 F. 2d 55 (9th Cir.

1973).

United States v. Ryan — No. 75-1317

HUFSTEDLER, Circuit Judge, dissenting from denial of en

banc hearing, with whom Judge Ely joins:

The issue is whether Mizera’s consent was voluntary. If Mi-

zera’s consent was involuntary, the conversations between him

and Ryan were inadmissible under 18 U.S.C. § 2511(2)(c).!

The district court’s factual findings on this issue can be sum-

marized as follows:? To secure Mizera’s consent, the officers

) E.g., see Holmes v. Burr (9th Cir. 1973) 486 F. 2d 55; United States v.

Franks (6th Cir. 1975) 511 F. 2d 25; United States v. Bragan (4th Cir.

1974, 499 F. 2d 1376.

3 The district court's factual findings are, of course, subject to the clearly

erroneous standard of review. However, the district court's ultimate con-

clusion that the consent was voluntary rests on a legal determination

of the sufficiency of the evidence to support the conclusion. The standard

of appellate review of this determination is the same as that applied in

reviewing the sufficiency of evidence to sustain a conviction. (E.g., Chan-

nel v. United States (9th Cir. 1960) 285 F. 2d 217, 220.)

Under either formulation of the standard of appellate review, the dis-

trict court’s conclusion of voluntariness is unsupported and is revers ble

error.

18a

told him that they were prepared to arrest him immediately

and that they had enough evidence to send him to prison for

ten years. Bur, they suggested, if Mizera “cooperated,” the pros-

ecution would be dropped. The officers also told him that if

he did not cooperate, he would lose his livelihood, damage his

family, and be deprived of special medical treatments for his

severe headaches. Mizera asked if he could call his lawyer. The

officers said that he could do so, but if he did, the deal was

off. The district court held that “consent” thus secured was

“voluntary,” the panel affirmed, and the court has refused to

take this case en banc.

As early as 1897, the Supreme Court recognized that coercion

need not take the form of physical torture:

“ ‘But a confession, in order to be admissible, must be

free and voluntary: that is, must not be extracted by any

sort of threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the exertion of

any improper influence. . . . A confession can never be

received in evidence where the prisoner has been influenced

by any threat or promise; for the law cannot measure the

force of the influence used, or decide upon its effect upon

the mind of the prisoner, and therefore excludes the decla-

ration if any degree of inflence has been exerted.’ ” (Bram

v. United States, 168 U.S. 532, 542-43.)

And more recently:

“|. [T]he Fourth and Fourteenth Amendments require

that a consent not be coerced, by explicit or implicit means,

by implied threat or covert force. For, no matter how

subtly the coercion was applied, the resulting consent

would be no more than a pretext for the unjustified police

intrusion against which the Fourth Amendment is di-

rected.” (Schneckloth v. Bustamonte (1973) 412 U.S.

218, 228.)

The psychological pressures employed by the officers in the

present case represent just such coercion comprised of threats

of prosecution and long imprisonment, of the inability to re-

ceive vital medical treatment, of unauthorized promises of im-

munity, and of the deprivation of counsel. The methods were

19a

not as clumsy as physical torture, but they were no more subtle

and every bit as effective.

The conclusion of the district court, affirmed by the panel

that this conduct was not coercive, and that the consent pro-

duced by these pressures was voluntary, is flatly contrary to the

controlling teachings of the Supreme Court and to the law of

our Circuit. (E.g., Lynum v. Illinois (1963) 372 U.S. 528

(Confession secured by threats that defendant “ ‘could get 10

years and [that] the children could be taken away’” unless she

“cooperated,” held involuntary.) 372 U.S. at 531, 534) “We

think it is clear that a confession made under such circumstances

must be deemed not voluntary, but coerced. That is the teach-

ing of our cases.” (372 U.S. at 534).) Shotwell Mfg. Co. v.

United States (1963) 371 U.S. 341 (Evidence procured under

promise of immunity “can no more be regarded as the product

of a free act of the accused than that obtained by official physical

or psychological coercion.” (371 U.S. at 347-48).) Rogers v.

Richmond (1961) 365 U.S. 534 (Uncounseled confession of

defendant who was threatened that his wife would be brought

in for questioning was involuntary.) See also, United States v.

Huss (2d Cir. 1973) 482 F. 2d 38; Unued States v. Laughlin

(D. D.C. 1963) 222 F. Supp. 264; and McGarrity v. Wilson

(9th Cir. 1966) 368 F. 2d 677, 679 (“‘Incriminating state-

ments or a confession extorted by mental coercion are as in-

voluntary as if they were obtained by violence or threats of

violence.”’ ). )?

As Judge Duniway pointed out in United States v. Rothman

(9th Cir. 1973) 492 F. 2d 1260, 1263: “Where the consent

[to a search] is obtained through a misrepresentation by the

government, Bumper v. North Carolina, supra, 391 U.S. 543

. , or under inherently coercive pressure and the color of

3 “The human mind under the pressure of calamity, is easily seduced;

and is liable, in the alarm of danger, to acknowledge indiscriminatel ‘

falsehood or a truth, as different agitations may prevail. A cnteien

therefore, whether made upon an official examination or in discourse

with private persons, which is obtained from a defendant, either by the

flattery of hope, or by the impressions of fear, however slightly the

emotions may be implanted, . . . is not admissible evidence: for the law

will not suffer a prisoner to be made the deluded instrument of his

own conviction. " (Bram v. United States (1897) 168 U.S. at 547.)

20a

the badge, Johnson v. United States, supra, 333 U.S. 10; Uni-

ted States v. Marshall, 9 Cir. 1973, 488 F. 2d 1169, 1188-1189,

such consent is not voluntary.” Moreover, coercion is implied

when consent is obtained “under color of the badge,” and

the Government must show that there was no coercion in fact.

(United States v. Irion (9th Cir. 1973) 482 F. 2d 1240, 1244;

United States v. Page (9th Cir. 1962) 302 F. 2d $1, 84.)

The district court attempted to justify its conclusion that

Mizera’s consent was voluntary by suggesting that “voJuntari-

ness” takes on a different meaning in the context of coerced

confessions than it does in the context of consent to participa-

tion in monitoring or other activities protected by the Fourth

Amendment. (Although the district court found that the threat-

ened denial of medical treatment was not coercive in the pres-

ent case, it said that it would have “great concern” if the case

involved a confession or “the waiver of a right associated with

a fair trial.” ) This distinction is unfounded. Coercion does not

evaporate with an assumed change in climate between the Fourth

and Fifth Amendments. Nor does coercion become free choice

when it is applied to obtain consent rather than to force a con-

fession. (United States ». Rothman, supra, 492 F. 2d 1260.)

The panel’s effort to justify its conclusion is similarly un-

successful. The panel postulates that the officers’ threats did not

induce Mizera’s consent; rather, Mizera brought his plight upon

himself. The officers, the panel says, simply required the de-

fendant “to face up to the real world in order to obtain his

cooperation;” that pressure is entirely appropriate, it adds, on

analogy to pleas of guilty, quoting Brady v. United States

(1969) 397 U.S. 742, 759.

The panel’s assumption that Mizera was guilty of a crime

is unsupported by the record. Mizera has not been convicted of

any crime, except by the rhetoric of the officers and the specu-

lations of the panel. The Constitution does not give law en-

forcement personnel the right to decide guilt or innocence, nor

does it give courts the power to make that determination with

neither a guilty plea nor a trial. But even if Mizera had been

guilty of the crime for which the ofticers threatened prosecu-

tion and conviction, his guilt would be irrelevant in deciding

ERY i Mibens and. MUR ASie alsa ee oe

WW AL it pa tr 21 is

2la

the coercion issue.? Coercion is not acceptable whether it is ap-

plied to persons who are ultimately found guilty or to those

who are ultimately found innocent. Coercion is forbidden both

because it is unacceptable police conduct in our justice system

and because it tends to produce involuntary words and deeds.

We should be ever mindful that “if we reflect carefully, it be-

comes abundantly clear that we can never acquiesce in a prin-

ciple that condones lawlessness by law enforcers in the name of

: a end.” (United States v. Huss (2d Cir. 1973) 482 F. 2d

. 4

No analogy exists between the taking of a guilty plea by a

court and the extraction of “cooperation” or a confession by

law enforcement officers, without the presence of any judicial

officer and without the presence of counsel. As Mr. Justice

White said in Brady: “That a guilty plea is a grave and solemn

act to be accepted only with care and discernment has long been

recognized. Central to the plea and the foundation for entering

judgment against the defendant is the defendant’s admission in

open court that he committed the acts charged in the indict-

ment.” (397 U.S. at 748.) “Since Gideon v. Wainwright, 372

U.S. 335 (1963), it has been clear that a guilty plea to a felony

charge without counsel and without a waiver of counsel is in-

valid. [Citations omitted.]” (397 U.S. at 748-49, n.6.)

The officers effectively prevented Mizera from consulting

counsel after he asked to do so. That deprivation cannot be

brushed aside. His need for counsel was evident.’ Counsel would

4 The panel relies on Holmes v. Burr, swpra, where there was no question

of coercion. It also uses United States v. Lue (9th Cir. 1974) 498 F. 2d

531, and Hampton v. United States (1976) — U.S. — [44 US.L.W.

4542] which are entrapment cases, holding that certain law enforcement

techniques that take advantage of a subject's “predisposition” are not

violative of due process. Here, the fact that extreme pressure had to be

used to induce cooperation belies any notion that Mizera was predisposed

to cooperate.

5 As Mr. Justice Sutherland observed in Powell v. Alabama (1932}_287

U.S. 45:

" . . . Even the intelligent and educated layman has small and some-

times no skill in the science of law. If charged with a crime, he is in-

22a

surely have —— oe a he o ee

ts were itful. officers Mizera

wna sel ten years, if convicted, knowing full well that ten

years was the maximum penalty for Mizera’s alleged we

The officers also assured Mizera of conviction, although rd

had to know that conviction is not a certitude. Even ay)

officers offered to drop any charges against Mizera p- ay

had no legal power to promise immunity. Consent ol we pd

vernmental misrepresentation is involuntary. (Unite Boe

v. Rothman, supra, 492 F. 2d at 1263; see Fuller - ni

States (D.C. Cir. 1967) 407 F. 2d 1199, 1213 ( f course

garnering a confession by artifice is no more rene

achieving the same result by some cruder coercion.’ ).

n banc this case to eradicate the intra-circuit conflict

we red and United States v. Rothman, supra, yp tg 2d

1260, and its antecedents, and to bring Ryan in line <a

trolling Supreme Court authority. On the merits, Pog é i.

verse and remand Ryan for a new trial free from the taint

evidence.?

Shirley Hufstedler.

ini i hether the indictment is

able, erally, of determining for himself w

pee or bad. He is unfamiliar with the rules of evidence . .. He requires

the guiding hands of counsel at every step in the proceedings against

him.” (Id. at p.69.)

§ It is noteworthy that the Government's respect for Mizera’s pep encom

rights has been deficient in more than one instance. The = — .

that Mizera’s office and residence were “bugged prior to his bey 0

consent on May 19, 1972. Nevertheless, because the evidence cu -s we

this source was said to be available from independent sources, t _

rules that its admission did aot constitute error. (United States v. Ryan,

No. 75-1317, at p. 8 (slip op’n, May 24, 1976).)

a RC. arti bas

23a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ve. No. 75-1317

James G. Ryan, DC *#CR-LV

Defendant-Appellant.]| 2698 RDF

ORDER STAYING ISSUANCE OF MANDATE

[Filed Dec. 9, 1976]

Upon application of Harry E. Claiborne, Esquire, counsel for

the Appellant, and good cause appearing, IT IS ORDERED

that the issuance, under Rule 41(a) of the Federal Rules of

Appellate Procedure, of the certified copy of the judgment of

this Court in the above cause be and hereby is stayed pending

the filing, consideration and disposition by the Supreme Court

of the United States of a petition for writ of certiorari to be

made by the Appellant herein, provided such petition is filed

in the Clerk’s Office of the Supreme Court of the United States

on or before December 29, 1976.

In the event the petition for writ of certiorari is granted,

then this stay is to continue pending the final disposition of

the case by the Supreme Court of the United States.

Ozell M. Trask

United States Circuit Judge.

DATED: SAN FRANCISCO, CALIF.

24a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

UNITED STATES OF AMERICA

Plaintiff,

vs.

Criminal LV-2698

James G. RYAN, ADRIAN WILSON

and BERNARD ZELDIN,

Defendants.

MEMORANDUM RE DEFENDANTS’ MOTION

TO STRIKE AND EXCLUDE EVIDENCE

[Entered Apr. 3, 1974]

During the trial of this case, the Court denied defendants’

motion to strike and exclude evidence filed March 5, 1974,

and responded to by the Government March 1?, 1974. In deny-

ing the motion, the Court advised that it would subsequently

file a memorandum.

Defendants James Ryan, Adrian Wilson and Bernard Zeldin

moved to suppress all evidence regarding the activities of un-

indicted coconspirator Miro Mizera which followed Méizera’s

meeting with agents of the Nevada Attorney General on the

morning of May 19, 1972. Counsel for defendants argued in

support of this motion that the actions and statements of the

representatives of the Nevada Attorney General, which took

place when they confronted Mizera with their knowledge of

his involvement in offering “campaign contributions” to Clark

County Commissioners in exchange for favorable voting on a

zoning variance application, were such that the Court’s con-

science should be shocked and that Mizera’s consent to co-

operate with the investigation into government corruption can-

not be considered voluntary. A variety of legal considerations

are woven into this argument. As discussed below, however,

this Court found that the state agents did not violate traditional

25a

notions of fundamental justice; rather, the agents exhibited

a high degree of professionalism that, under the circumstances,

does not offend the sensibilities of the Court or the tenets of

civilized society. Further, this Court found that Mizera’s con-

sent to cooperate with officers of the Nevada Attorney General

was “voluntary.”

FACTS

The facts which give rise to this motion have been the sub-

ject of not only the testimony of Mizera, but were the subject

of two tape recordings made by the agents when they met with

Mizera and obtained his consent to cooperate. (Exhibits 24(a)

and 46(b) for identification.) These tapes were submitted to

the Court in camera for purposes of ruling on the instant mo-

tion, and they have proven most helpful in providing not only

an accurate record of the exact conversations which took place,

but also an indication of the tenor and tone of those conver-

sations. A complete outline of these tapes will not be attempted

here, but it is of note at the outset that only a very small por-

tion of the conversations of May 19, 1972, pertain to Mizera’s

decision to cooperate with the investigation. Mizera made his

decision rather quickly and the vast majority of the discussions

thereafter held on May 19, 1972, deal with Mizera’s active

participation in formulating ways in which his cooperation

would prove most effective in assisting the investigation.

When representatives of the Nevada Attorney General first

approached Mizera on the morning of May 19, 1972, they told

Mizera that they were there to ask for his cooperation, outlin-

ed their knowledge of his involvement in an ongoing criminal

project of bribing County Commissioners, let Mizera read NRS

§ 197.020 (offering a bribe to a public official is a felony),

assured Mizera that offering a “campaign contribution” which

is clearly conditioned upon a favorable vote on a zoning matter

falls within that statute, indicated that they were more inter-

ested in discovering Commissioners who would accept bribes,

stated that they were fully prepared to arrest Mizera at that

‘point and that they had enough evidence to convict him and

send him to prison for ten years, but offered Mizera the alter-

native of cooperation, in which event he could avoid prosecution,

the penitentiary, and loss of his real estate broker's license.

26a

When Mizera asked if he might call an attorney, state officers

responded that, because they feared that an attorney might

notify the Commissioners of the investigation, and that because

some attorneys might thereby compromise Mizera’s position,

they did not want him to contact an attorney. They quickly

added that they were not saying he could not call an attorney,

but were saying only that if he did, any offer of a deal was

over. (It might be added parenthetically that testimony at the

trial has indicated that intimations of the investigation were in

fact given to some of the Commissioners by a local attorney,

and that the agents’ fears were not totally unfounded.) The

agents outlined some of the disadvantages of an arrest and con-

viction, noting that Mizera would face ten years in prison, that

it would have an impact on his family, that he would lose his

license and his income derived therefrom, and stated that he

would be unable to go back to New York for a specialist’s

treatment of his headaches. The agents were candid about Mi-

zera’s position, stating that, in view of the alternatives, he was

not in a position to bargain if he was to receive immunity. Once

assured that he would be provided with protection from pos-

sible threats to his life because of his cooperation, Mizera

agreed to cooperate. Mizera’s decision was made in a matter of

minutes from the time he was confronted. The tapes reflect

the fact that the agents were direct but not vociferously over-

bearing.

On the stand in the instant case, Mizera testified that he

placed a condition upon his cooperation: that the Attorney

General of Nevada not prosecute Adrian Wilson. Thus Mizera

did bargain with the agents. Mizera also testified that he was

not fearful of a prison term, but he subjectively concluded that

he would not get the medical care he felt he needed in prison.

He stated that the agents never said that medicine would not

be provided him if he refused to cooperate. Mizera, under cross-

examination, indicated that he clearly understood the agents to

say that, while he could call an attorney if he wished, it would

mean that no deal would be offered him. While he stated he

consented to cooperate with reluctance, Mizera nevertheless tes-

tified that he agreed to cooperate and went with the agents

voluntarily.

Finaily, although the tape recordings made during the meet-

27a

ings of that day show that Mizera had occasional reluctant after-

thoughts about cooperating, the major portions of the recordings

reveal Mizera freely volunteering suggestions on how to proceed

with the investigation.

ISSUES

1. Was the conduct of the state agents such that it shocks

the conscience of the Court and requires that evidence resulting

therefrom be excluded from this prosecution?

2. Was Mizera’s consent to cooperate invalid so as to

require exclusion of evidence obtained as a result of his agree-

ing thereafter to have his telephones and personal conversa-

tions monitored and recorded?

CONCLUSIONS

1. No.

2. No.

DISCUSSION

Citing cases which deal with forced stomach pump}

in v. California, 342 U.S. 165, 72 S. Ct. 205 : 19525 _ un

tive voice identification procedures (Palmer v. Peyton 359

F. 2d 199 (4th Cir. 1966) ), informers paid contingent fees to

provide evidence against named individuals as to crimes not

yet committed (Williamson v. United States, 311 F. 2d 441

(Sth Cir. 1962)), and dissenting Opinions in an entrapment

case (United States v. Russell, 411 U.S. 423, 436, 442, 93

S. Ct. 1637 (1973) (Douglas, J., dissenting; Stewart, J. ‘a

senting) ), counsel for defendants argue that the methods of

persuasion utilized by state agents in the instant case likewise

offend a sense of justice, and that their “brutalizing” conduct

towards Mizera should shock the conscience of the Court. It is

significant that defendants do not argue that any physical force

was utilized, or that the agents misleadingly deceived and

tricked Mizera, or that Mizera was offered a reward contingent

upon producing evidence of as yet uncommitted crimes, or

that Mizera was the innocent victim of a diabolical police en-

trapment, or that any of the defendants were the victims of

28a

such an entrapment. Even assuming the cases cited by counsel

are relevant, the actions of the officers in this case are not of

the nature and quality that would support defendants’ con-

tention.

Notions of justice, fairness, personal dignity, and civilized

society demand that police abstain from the use of investigative

procedures which smack of physical or mental torture, falsifi-

cation or creation of crime for the sake of punishment. The

integrity of the judiciary and the acceptability of the ordered

society in which we live require -he courts to insure that the

means utilized to investigate a case do not undermine the basic

tenets of our system. But it makes mockery of this principle to

forbid confrontation of an individual then and for some time

past engaged in criminal activities in an effort to gain his co-

operation in a legitimate investigation of an on-going criminal

enterprise. In the instant case, the methods utilized in an effort

to gain Mizera’s cooperation were not of the “rubber hose”

type, nor were they repugnant to civilized sensibilities. The

officers were blunt, but they were not brutal. Mizera was not

subjected to obnoxious or deplorable inducement. The officers

were not seeking a confession, nor were they interested in

falsifying evidence or creating crime where none existed. Mizera

was presented with a decision that he made quickly, and his

choice to cooperate facilitated his own freedom, a choice obvi-

ously in his own self interest. That he made the decision with-

out the assistance of counsel does not offend substantive due

process where it was clear that he could have called an attorney

if he wished to forego cooperation and immunity. That he made

the decision because of a subjective fear he would not receive

medication was not a product of any lies on the part of the

agents; it was his own conclusion and error. This Court is not

shocked, nor can it condemn the agents’ activities in such a way

that exclusion of evidence obtained through Mizera’s cooperation

can be justified as a matter of sound policy.

II.

Counsel for the Government and for defendants correctly

note that judicial decisions (see U.S. v. White, 401 U. S. 745,

and Rathburn v. United States, 355 U.S. 107, 78 S.Ct. 161

(1957)) and 18 U.S.C. § 2510 et seq. require that a valid

29a

prior consent by Mizera to the monitoring and recording of hi

telephone and personal conversations with the dtendants en

be shown before evidence obtained through such monitoring is

admissible in the instant case. Defendants take the position that

because Mizera’s consent to cooperate, a consent inexorably

linked to any subsequent agreements to allow monitoring, was

the product of a promise of immunity, that consent was not

“voluntary” and was therefore invalid. In this regard, defend-

ants rely principally upon United States v. Laughlin, 222 F.

Supp. 264 (D.D.C. 1963), motion to vacate denied 226 F.

Supp. 112 (D.D.C. 1964), a case which directly supports this

contention. However, Laughlin has been superseded by United

States v. Jones, 433 F. 2d 1176 (D.C. Cir. 1970), cert. denied

402 U.S. 950, 91 St.Ct. 1613 (1971), and it is generally

now recognized that a consent to such monitoring is not “invol-

untary” even though it was given under the pressure of a poten-

tial indictment or in return for a promise of immunity from

prosecution. See United States v. Osser, 483 F. 2d 727, 730

(3rd. Cir. 1973); United States v. Dowdy, 479 F. 2d 213,

229 (4th Cir. 1973); United States v. Silva, 449 F. 2d 145,

146 (1st Cir. 1971), cert. denied 405 U.S. 918, 92S. Ct. 942

(1972); United States v. Jones, supra; Good v. United States,

378 F. 2d 934, 936 (9th Cir. 1967). Threat of prosecution, at

least in a case such as this where a prosecution would not be

unfounded, and promise of immunity, do not render Mizera’s

consent “involuntary.”” At the same time, indicating the possible

adverse effects on his family and his profession of a threatened

prosecution would not alter this conclusion inasmuch as they

would seem only part and parcel of any threat of prosecution.

See United States v. Jones, supra (fear of indictment, loss of

job, and foreclosure of home mortgage did not render a consent

to cooperate invalid).

Mizera also testified that a promise of relocation, should his

life be endangered, did not result in his deciding to consent.

This factor would be analogous to a promise of immunity, even

if it were significant, and would not, therefore, render the con-

sent involuntary. Similarly, a promise not to prosecute Wilson

would not seem to change the result where a promise of im-

munity to Mizera himself is not deemed sufficient to render the

consent involuntary.

30a

Two considerations of no small importance remain. How-

ever, before discussing these considerations an articulation of

the applicable test for ascertaining the “voluntariness” of Mi-

zera’s consent is necessary. In United States v. Silva, supra,

449 F. 2d at 146, the Court stated:

“to establish involuntariness the defendant’s burden

is to show that [the consentor’s] will was overcome by

threats or improper inducement amounting to coercion or

duress.”

A similar test was enunciated under like circumstances in Uni-

ted States v. Osser, supra, 483 F. 2d at 730:

“We can think of no time in which a party to a tele-

phone conversation would permit the police to intercept

that conversation when he, himself, would not seek some-

thing from the police in return, assuming he is of sound

mind and knows the police are police. He might merely

be seeking police protection . . . Or, indeed, he may be

seeking leniency. However, so long as pressure is not initi-

ated by the police for the purpose of overbearing the will

of the party, this Court does not believe that the authori-

zation given by the party is involuntary.”

As noted previously, both of these cases found a consent “‘vol-

untary” where there had been inducements of promised leniency

or threatened prosecution. How is one to ascertain whether, in

a given case, the inducements presented by state agents render

a consent involuntary? The Supreme Court recently addressed

this issue in Schneckloth v. Bustamonte, 412 U.S. 218, 224-

249, 93 S.Ct. 2041 (1973):

“(The] cases yield no talismanic definition of ‘voluntari-

ness,’ mechanically applicable to the host of situations

where the question has arisen. ‘The notion of “voluntari-

ness,” ’ Mr. Justice Frankfurter once wrote, ‘is itself an

amphibian.’ Culombe v. Connecticut, 367 U.S. 568, 604-

605. It cannot be taken literally to mean a ‘knowing’

choice. ‘Except where a person is unconscious or drugged

or otherwise lacks capacity for conscious choice, all in-

criminating statements — even those made under brutal

treatment — are “voluntary” in the sense of representing

a choice of alternatives. On the other hand, if “voluntari-

3la

ness” incorporates notions of “but-for” cause, the question

should be whether the statement would have wh. made

even absent inquiry or other official action. Under such a

test, virtually no statement would be voluntary because

very few people give incriminating statements in the ab-

sence of official action of some kind.’ It is thus evident

that: neither linguistics nor epistemology will provide a

ready definition of the meaning of ‘voluntariness.’

ce & &

“ce 2 &

—

“In determining whether a defendant’s will

borne in a particular case, the Court has sabtind te te.

tality of all the surrounding circumstances — both the

characteristics of the accused and the details of the inter-

rogation. Some of the factors taken into account have in-

cluded the youth of the accused, e.g., Haley v. Ohio, 332

U.S. 596; his lack of education, e.g., Payne v. Arkansas

356 U.S. 560; or his low intelligence, e.g., Fikes v. Alu.

bama, 352 U.S. 191; the lack of any advice to the accused

of his constitutional rights, e.g., Davis v. North Carolina

384 U.S. 737; the length of detention... ; the repeated

and prolonged nature of the questioning, e.g., Ashcraft v.

Tennessee, 322 U.S. 143; and the use of physical punish-

ment such as the deprivation of food or sleep, e.g., Reck

v. Pate, 367 U.S. 433. In all of these cases, the Court

determined the factual circumstances surrounding the con-

fession, assessed the psychological impact on the accused,

and evaluated the legal significance of how the accused re-

acted. Culombe v. Connecticut, supra, at 603.

“The significant fact about all of these decisions is that

none of them turned on the presence or absence of a single

controlling criterion; each reflected a careful scrutiny of

all the surrounding circumstances . . .

“Similar considerations lead us to agree with the courts

of California that the question whether a consent to a

search was in fact ‘voluntary’ or was the product of duress

or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances . . .

32a

cee *

“cewek *

“The problem of reconciling the recognized legitimacy

of consent searches wih the requirement that they be free

from any aspect of official coercion cannot be resolved by

any infallible touchstone. To approve such searches with-

out the most careful scrutiay would sanction the possibil-

ity of official coercion; to place artificial restrictions upon

such searches would jeopardize their basic validity. Just as

was true with confessions, the requirement of a ‘voluntary’

consent reflects a fair accommodation of the constitutional

requirements involved. In examining all the surrounding

circumstances to determine if in fact the consent to search

was coerced, account must be taken of subtly coercive

police questions, as well as the possibly vulnerable subjec-

tive state of the person who consents. Those searches that

are the product of police coercion can thus be filtered out

without undermining the continuing validity of consent

searches. In sum, there is no reason for us to depart in

the area of consent searches, from the traditional definition

of ‘voluntariness.’

“coke kk

“There is a vast difference between those rights that

protect a fair criminal trial and the rights guaranteed under

the Fourth Amendment. Nothing, either in the purposes

behind requiring a ‘knowing’ and ‘intelligent’ waiver of

trial rights, or in the practical application of such a re-

quirement suggests that it ought to be extended to the

constitutional guarantee against unreasonable searches and

seizures.

“Coxe kk

cxwke ke *

“Nor can it even be said that a search, as opposed to an

eventual trial, is somehow ‘unfair’ if a person consents to

a search. While the Fourth and Fourteenth Amendments

limit the circumstances under which the police can conduct

33a

a search, there is nothing constitutionally suspect in a per-

son’s voluntarily allowing a search. The actual conduct of

the search may be precisely the same as if the police had

obtained a warrant. And, unlike those constitutional guar-

antees that protect a defendant at trial, it cannot be said

every reasonable presumption ought to be indulged against

voluntary relinquishment. We have only recently stated:

‘[I]t is no part of the policy underlying the Fourth and

Fourteenth Amendments to discourage citizens from aiding

to the utmost of their ability in the apprehension of crimi-

nals.’ Coolidge v. New Hampshire, 403 U.S., at 488.

Rather, the community has a real interest in encouraging

consent, for the resulting search may yield necessary evi-

dence for the solution and prosecution of crime, evidence

that may insure that a wholly innocent person is not

wrongly charged with a criminal offense.

cewek &

“ce ke *

“Our decision today is a narrow one. We hold only that

when the subject of a search is not in custody and the

State attempts to justify a search on the basis of his con-

sent, the Fourth and Fourteenth Amendments require that

it demonstrate that the consent was in fact voluntarily

given, and not the result of duress or coercion, express or

implied. Voluntariness is a question of fact to be deter-

mined from all of the circumstances, and while the sub-

ject’s knowledge of a right to refuse is a factor to be taken

into account, the prosecution is not required to demon-

strate such knowledge as a prerequisite to establishing a

voluntary consent... ”

What emerges from Schneckloth, as pertains to the instant

case, is that a consent to cooperation in monitoring personal

conversations, in effect a consent to searches, is not to be dis-

sected with the scrutiny applicable to review of a confession

or a guilty plea. Rather, the trial court is to determine, in light

of the total circumstances, whether the individual, as a factual

matter, voluntarily consented or whether he consented because

his will was overborne by duress or coercion.

34a

In Good v. United States, supra, 378 F. 2d 936, the Ninth

Circuit stressed that the presence of counsel at the time of

consent provides strong support for finding that consent “vol-

untary.” Absence of counsel, however, does not necessarily

render the consent ineffective. See McClure v. United States,

332 F. 2d 19, 22 (9th Cir. 1964) (agents would ask for dis-

missal of pending indictment if individual would cooperate, no

indication that an attorney was consulted, consent deemed vol-

untary). Mizera’s consent in the instant case cannot be said to

be unintelligent nor uninformed. Mizera, who had the option of

contacting an attorney, could validly waive or forego counsel.

This factor did not render the consent involuntary.

The remaining consideration is the factor most strenuously

urged by defense counsel: Mizera’s fears regarding his health.

Yet, as indicated above, it was Mizera who subjectively con-

cluded that a conviction and a prison term would mean his

headache tmedications would be unavailable. The agents never

stated such a result would occur. While this factor does bring

out a subjective vulnerability of Mizera’s, and a reference by

one of the agents to the effect that an arrest would mean Mi-

zera would be unable to meet an appointment with a doctor in

New York does strain at this vulnerability in a manner which

would cause great concern if this were a confession or waiver

of a right associated with a fair trial, on balance in the instant

circumstances this factor is not controlling. Mizera testified to

a variety of subjective fears which entered his consideration of

the offer to cooperate: fear of attacks by those involved with

him in the zoning matter, fear of losing the large commission

involved in the land deal, and fear of involving the man who

owned the property. These fears were beyond the control of

the agents, and reflect the fact that any time an individual

engaged in illegal activity is confronted and asked to assist in

an investigation, there will be many fears which a promise of

immunity and protection wi!l serve to alleviate. This is implicit

in the circumstances which necessarily attend such a bargain.

Considering the circumstances as a whole, the tone, approach

and statements of the agents, the rapidity with which Mizera

consented, the active and willing cooperation Mizera demon-

strated immediately after agreeing to assist the investigation,

and Mizera’s own testimony that he cooperated and voluntarily

35a

began that cooperation, this Court finds =a

consent was “voluntary” and valid. oe Shae tate

DATED: April 3rd, 1974.

S/Roger D. Foley,

District Judge.

36a

APPENDIX E

Revised: Nov. 30, 1976

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. No. 75-1317

James G. RYAN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

intit}-Appellee,

om Plaintiff-Appetee, | 75.1314

ADRIAN WILSON, |

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 75-1313

vs.

BERNARD ZELDIN, OPINION

Defendant-Appellant.

[May 24, 1976]

Appeal from the United States District Court

for the District of Nevada

Before: WRIGHT, KILKENNY and TRASK, Circuit Judges.

TRASK, Circuit Judge:

Adrian Wilson, Bernard Zeldin and James Ryan appeal their

convictions in Federal District Court for the District of Nevada

for violation of 18 U.S.C. § 1952, the so-called “Travel Act,”

18 U.S.C. § 371, the federal conspiracy statute, and 18 U.S.C.

37a

§ 2, the aiding and abetting statute. They make several assign-

ments of error, relating to the jurisdiction of the court below,

the legality of evidence gathered by wiretapping and electronic

surveillance and the general conduct of the government in inves-

tigating and prosecuting this case. In connection with this last

issue, appellants Zeldin and Wilson also argue that the govern-

ment intentionally interfered with their attorney-client privilege.

In addition, appellant Ryan alleges that the evidence was insuffi-

cient to support the verdict against hitn as a coconspirator, ap-

pellant Wilson argues that the trial iudge erred in refusing cer-

tain jury instructions, and appellants Zeldin and Ryan challenge

the constitutionality of the Travel Act. For the reasons set forth

below, we affirm all appellants’ convictions.

Each of the appellants filed an opening brief emphasizing facts

as they apply to his particular case. Mindful of these individual

variations we review the facts in their entirety, considering them

in the light most favorable to the government, which is the

appropriate standard for appellate review of judgments of con-

viction. Glasser v. United States, 315 U.S. 60, 80 (1942);

United States v. Munns, 457 F.2d 271 (9th Cir. 1971).

The case revolves around the attempt of appellant Wilson,

a well-known architect and resident of Los Angeles, to have

certain land he owned in Nevada approved for rezoning and

acts of bribery committed to achieve this purpose. The rezoning

decision was to be made by the Clark County Board of Com.

missioners. The central figure in this episode was one Miro

Mizera, an unindicted coconspirator, a Czechoslovakian refugee

in ill health and a licensed realtor in the Las Vegas area.

Mizera was interested in helping Wilson subdivide and sell his

property. He visited Wilson in January 1972 in Los Angeles and

told Wilson that rezoning could be accomplished only if a politi-

cal contribution to the county commissioners were made. Mizera

agreed to talk with Commissioner Ryan about this matter.

Mizera thereafter held a series of meetings with Ryan. At the

first meeting, Ryan told Mizera that prospects for approval of

the application were favorable. No discussion of a bribe or

campaign contribution was made until the second meeting, when

Mizera mentioned a $10,000 political contribution. After the

Planning Commission, an advisory body, recommended rejecting

38a

the rezoning plan, Ryan told Mizera that he (Mizera) would

have to approach the other four commissioners

_ Mizera was given an unenthusiastic reception by Commissiqn-

ers Leavitt, Brennan, Wiesner and Broadbent, although all of

them at least indicated to Mizera that the prospects for eventval

approval of the plan were good. After meeting with Mizera on

April 24, 1972, Broadbent telephoned the state Attorney Gen-

eral and informed him that he thought Mizera had offered a

bribe in exchange for his vote. Broadbent then agreed to co-

operate with state authorities by “playing along” with Mizera

and recording all conversations with him.

The following day, the Board of Commissioners voted to con-

tinue consideration of the application until May, when Wilson

could more conveniently be in Nevada. Shortly thereafter,

Mizera contacted a Las Vegas attorney. Aorris, to inquire about

the possibility of representing Wilson at the hearing. Exactly

what terms were discussed between Morris and Mizera is sub-

ject to dispute, but it appears that Morris was informed of the

bribery scheme. In any event, a retainer agreement between

Morris and Wilson was consummated. Mizera then told Broad-

bent that Morris would be representing Wilson in the forth-

coming commission meeting and detailed the scheme as it then

stood. This conversation was recorded.

On April 27, Broadbent, acting through an intermediary,

Reeves, told Morris that he was being led into a trap and that

he should get out of the affair altogether. Morris then withdrew

from the retainer agreement, returning the fee Wilson had paid

him. This contact between Broadbent, who was serving as a

government informer, and Morris gives rise to one of the issues

on appeal.

Mizera continued to meet with Broadbent and Ryan in May.

His purpose at this time was to have one of them take control

of the bribery plot and work to ensure the votes of the other

commissioners. In particular, Mizera wanted one of them to

make the motion for rezoning at the meeting. On May 16, 1972,

Broadbent, at the behest of state agents, told Mizera that he had

to back out of the deal and would not be able to support the

zoning application. There was no further contact between Mizera

and Broadbent until after the Commission meeting.

39a

Mizera was also in contact with appellant Zeldin during thi

time. Zeldin was a local businessman who was to oe een

of the development of Wilson’s land after approval of the

rezoning plan. Zeldin went to Los Angeles to confer with Wilson

concerning the bribery scheme and to obtain the bribery money

which Wilson had borrowed from a Los Angeles bank. This

interstate trip formed part of the basis for the indictment under

18 U.S.C. § 1952, the Travel Act.

After Broadbent withdrew from the plot, Mizera

Zeldin, who was in Los Angeles, af ae two _— =

problem of which commissioner would make the motion for ap-

proval of the application. This interstate conversation also

formed part of the section 1952 indictment. The following day

yn es te ny ‘a with Ryan and at this time Ryan said

that he would make the motion. Thereafter, Mizera agai .

phoned Zeldin in Los Angeles. _—

On May 19, 1972, Mizera was approached b

and informed of the evidence they had pect psn

through his conversations with Broadbent. The state agents of-

fered Mizera immunity from prosecution in return for his assis-

tance. From that point forward, Mizera was a state agent whose

conversations were recorded. The tactics of the government in

obtaining Mizera’s cooperation gave rise to another important

issue in this appeal.

The bribery scheme was discussed and recorded in a conver-

sation between Ryan and Mizera that very evening. Mizera also

met with Wilson, who had flown in from Los Angeles on Ma

21st for the commissioners’ meeting the following day, at which

time the distribution of the bribery money among the commis-

sioners was discussed. This conversation was also recorded.

The commissioners met on May 22nd. Commissioner Ryan

made the motion, and the zoning application was approved.

Mizera, Wilson and Zeldin then caucused in a motel room and

Mizera was given the money to distribute to the commissioners.

State agents monitored this entire meeting through a transmit-

ting device Mizera carried on his person. The following day

Mizera went to Ryan’s home and gave him the bribery money,

which Ryan accepted. Immediately thereafter, state agents, who

had been hiding in the trunk of Mizera’s car, arrested Ryan.

40a

i t of the indictment charged all appellants with

sone pegged oc the Travel Act, 18 U.S.C. § 1952,' the

second with violating the Travel Act and aiding and abetting

therein, pursuant to 18 U.S.C. § 2.* Ina case where jurisdiction

depends upon the interstate nature of the criminal activity, as

with section 1952, section 2 considerably eases the prosecutor's

burden. Because of section 2, he does not have to show the

interstate nature of each defendant’s activity, but rather that the

‘scheme as a whole had substantial interstate connections. If it

did, he must then prove that each defendant aided or abetted

the scheme to make out his violation of section 1952 against

each defendant. It is for this reason that, in deciding the juris-

dictional question, our primary focus is upon the scheme as a

whole.

'18 U.S.C. § 1952 states:

“(a) Whoever travels in interstate or foreign commerce or uses

any facility in interestate or foreign commerce, including the mail,

with intent to — -

“(1) distribute the proceeds of any unlawful activity; or

“(2) commit any crime of violence to further any unlawful ac-

3) ~~ promote, manage, establish, carry on, or facilitate

the promotion, management, establishment, or carrying on, of any

unlawful activity, and thereafter performs or attempts to c

any of the acts specified in subparagraphs (1), (2), and (3), .:

be fined not more than $10,09 or imprisoned for not more than five

years, or both. are

“(b) As used in this section ‘unlawful activity’ means (1) any

business enterprise involving gambling, liquor on which the Federal

excise tax has not been paid, narcotics, or prostitution offenses in

violation of the Laws of the State in which they are committed or of

the United States, or (2) extortion, bribery, or arson in violation of

the laws of the State in which committed or of the United States.

“(c) Investigations of violations under this section involving liquor

or narcotics shall be conducted under the supervision of the Secretary

of the Treasury.”

218 USC. § 2 states: .

“(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its commission,

is punishable as a principal. aS

“(b) Whoever willfully causes an act to be done which if directly

performed by him or another would be an offense against the United

States, is punishable as a principal.”

4la

Appellants urge that the offenses committed here were mat-

ters of local concern; that there was no connection between the

interstate travel and usage of interstate facilities and what they

characterize as an “isolated local offense.” Appellants argue that

Rewis v. United States, 401 U.S. 808 (1971 ), is dispositive of

the question of jurisdiction and mandates a finding that the acts

committed in this case do not come within the ambit of section

1952. In that case, petitioners conducted an illegal lottery in

Florida, just south of the Georgia-Florida state line. Although

there was no evidence that petitioners themselves crossed state

lines in connection with the lottery, several of the patrons of the

lottery did so. On these facts, the Court held section 1952

inapplicable.

We do not find that Rewis supports appellants’ position. We

note specifically that the Court in Rewis cited with approval

three lower court cases in which the organizers of an illegal

scheme either traveled in interstate commerce or caused other

organizers — as opposed to patrons — to do so.* These cases,

Justice Marshall said, “correctly applied § 1952 to those individ-

uals whose agents or employees cross state lines in furtherance

of illegal activity.” 401 U.S. at 813. We find the facts of these

cases, all involving illegal gambling operations, much closer to

our case than those of Rewis, since we are confronted with no

parties comparable to the patrons of Rewis.

This court reads the statute as broadly as Rewis will permit.

In United States v. Roselli, 432 F.2d 879, 890-91 (9th Cir.

1970), a pre-Rewis case, we took a broad view of the act, reject-

ing a wide variety of challenges to its applicability which would

have narrowed the act considerably. This broad construction was

cited with approval in United States v. Colacurcio, 499 F.2d

1401, 1405-06 (9th Cir. 1974) a case decided well after Rewis.

Applying this general framework to apy slants’ case, we have

no difficulty in concluding that this scheme comes well within

the ambit of the statute. Mizera and Zeldin traveled in interstate

commerce to discuss the rezoning with Wilson in California.

United States vs. Chambers, 382 F.2d 910 (6th Cir. 1967); United

States v. Barrow, 363 F.2d 62 (4d Cir. 1966), cert. denied, 385 US. 1001

(1967); United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964), cert. denied,

381 U.S. 915 (1965).

ee Done ee ee ant

42a

Wilson gave Zeldin $10,000 to transport from California to

Nevada. Wilson traveled from California to Nevada to attend

the county commissioners’ hearing. Zeldin took part in at least

two interstate telephone conversations with Mizera.‘

II.

Evidence obtained by electronic surveillance and wiretapping

in the investigation of this case can be devided into three types.

First, state agents obtained evidence through wiretaps on the

phone of Broadbent, the county commissioner who served as a

government informant, as well as a “body tap” placed on

Broadbent. A court order pursuant to state statute was obtained

for the telephone tap but not the body tap. No party disputes

that Broadbent’s consent was obtained for both forms of elec-

tronic surveillance. Second, a wiretap order was issued pursuant

to the same Nevada statute on May 4, 1972, permitting state

agents to wire Mizera’s residence and office, and to tap tele-

phones in those places. Many conversations were recorded under

this order between May 5th and May 19th, but only those in-

volving Broadbent were offered at trial. Third, on May 19,

1972, Mizera agreed to cooperate with government authorities

and also agreed to allow his conversations, both telephone and

personal, to be taped.

As to the first type of wiretap evidence, the law in this cir-

cuit is clear that one party’s consent is sufficient justification

for electronic surveillance and no prior judicial authorization is

required. Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973). Since

no party disputes that Broadbent’s consent was freely given, any

evidence derived from the wiretap is free from challenge.

As to the second type, we note that none of these tapes (ex-

cept those which also involved Broadbent) were introduced at

trial. Pursuant to the command of Alderman v. United States,

*Appellants Zeldin and Ryan also argue that the Travel Act is un-

constitutional as impermissibly vague or an infringement of the powers

reserved to the states in the tenth amendment. Contentions of this nature

have been consistently rejected both by this court and other circuits.

United States v. Cozetti, 441 F.2d 344, 348 (9th Cir. 1971): United States

v. Nichols, 421 F.2d 570, 574 (8th Cir. 1970); Turf Center, Inc. v. United

States, 325 F.2d 793, 795-96 (9th Cir. 1963). By contrast, appellants have

cited no cases holding the statute unconstitutional and we know of none.

43a

394 U.S. 165 (1969), a hearing after the trial was nonetheless

held to determine “the nature and relevance to [their] conviction

of any conversations which may have been overheard,” Alder-

man, supra, at 186. At this hearing, the district court ruled that

the government had an independent source, Broadbent, for all

information obtained by the wiretap on Mizera’s phones during

the period between May 5th and May 19th. The court also ruled

that Mizera himself became an independent source of this same

evidence after May 19th, when he agreed to cooperate with the

authorities and told them all that had gone on prior to that

time. No appellant was able to demonstrate to the court’s satis-

faction that evidence used at trial, or leads to evidence used at

trial, were discovered as a result of these interceptions. There-

fore, the court concluded that aside from the independent

sources, “the information or leads obtained [from the Mizera

wiretap before May 19th] were insignificant and insubstantial.”

After a thorough review of the evidence presented at this hear-

ing and the arguments of counsel on behalf of their clients, we

are not “left with the definite and firm conviction that a mis-

take has been committed.” United States v. United States Gyp-

sum Co., 333 U.S. 364, 395 (1948). We therefore affirm the

trial court’s conclusions.

Finally, we hold admissible on the basis of one party’s con-

sent evidence obtained from taps on Mizera’s telephone and per-

son after May 19th. Holmes v. Burr, supra. The question of Mi-

zera’s consent is discussed in more detail in Part III, infra.

Ill.

Appellants’ arguments are also directed at the manner in

which the government enlisted Mizera as a government infor-

mant. They claim that their due process rights have been vio-

lated by the government's treatment of Mizera. They would

have us dismiss the indictment altogether on due process

grounds, or, at the very least, exclude all evidence procured from '

the Mizera wiretap after May 19th.

Appellants rely particularly on Justice Rehnquist’s statement

in United States v. Russell, 411 U.S. 423, 431-32 (1973), that

‘““we may some day be presented with a situation in which the

conduct of law enforcement agents is so outrageous that due

- "ere

Oe ———— ee

44a

process principles would absolutely bar the government from

invoking judicial processes to obtain a conviction” and argue

that this is precisely that type of situation. Appellants’ reliance

upon this passage from Russell has two distinct bases.

Russell was directed specifically toward a consideration of the

nature of the entrapment defense. Appellants faintly argue that

Mizera forced them to commit criminal acts they would not

otherwise have committed. This, of course, would be entrap-

ment under the Russell standard. They argue more strenuously,

however, that Russell considered entrapment. from another per-

spective — the so-called “objective approach,” where the focus

is not on the “propensities and predisposition of a specific de-

fendant, but on ‘whether the police conduct revealed in the par-

ticular case falls below standards, to which common feelings

respond, for the proper use of governmental power.’”’ Russell,

supra at 441 (Stewart, J., dissenting). While the Court’s opin-

ion in Russell very clearly excludes use of the “objective ap-

proach” in most entrapment cases, the above-quoted passage of

Justice Rehnquist for the Court does indicate that this approach

may in certain limited instances be appropriate.

In examining the circumstances surrounding the government’s

confrontation with Mizera, in which he agreed to cooperate with

government authorities, and Mizera’s activities thereafter, we

conclude that, measured against the Russell standard, the gov-

ernment’s conduct did not rise to the level of a violation of ap-

pellants’ due process rights. Government agents first read to

Mizera the Nevada bribery statute, the “unlawful activity”

which served as the predicate for the section 1952 indictment,

and then recited some of the evidence they had amassed against

him. Thereafter, it is undisputed that this “conversation” in-

cluded the following factors:

1. Repeated assertions to Mizera that he would go to jail for

10 years if he refused to cooperate (10 years was the maximum

sentence; the statute allows for 1-10 years imprisonment and no

defendant was ultimately given the maximum).

2. Admonitions to Mizera not to get an attorney or his

“usefulness” to state agents would be over.

3. Prophecies that his health would suffer irreparably if he

went to jail.

45a

4. Assurances that his friends, Wilson and Zeldin, would be

kept “out of it.”

5. Reminders that if he did not help obtain sufficient evi-

dence against Ryan, he himself would be indicted.

This court does nyi condone the tactics used to gain Mizera’s

co-operation. We explicitly disagree with the lower court, which

characterized the government’s efforts as “‘excellent professional

police work.” On the basis of the applicable legal standards

derived from Russell, however, we find that this treatment of

Mizera does not violate appellants’ due process rights. This court

has emphasized that the due process channel which Russell kept

open is a most narrow one, to be invoked only when the govern-

ment’s conduct is so grossly shocking and so outrageous as to

violate the universal sense of justice. United States v. Lue, 498

F.2d 531, 534 (9th Cir. 1974). The government’s conduct,

while not exemplary, does not rise to this level. See Hampton v.

United States, 44 U.S. L.W. 4542, 4543-44 (April 27, 1976).

Nor does the government’s treatment of Mizera and his acts

as a government agent constitute entrapment in the “subjec-

tive,” Russell sense. “It is only when the government’s decep-

tion actually implants the criminal design in the mind of the de-

fendant that the defense of entrapment comes in to play’ Russell

teaches, 411 U.S. at 436.° Here, the government enlisted Mi-

zera’s cooperation when the conspiracy was in a very advanced

stage, just prior to its culmination on May 22nd. The conspir-

acy had been ongoing since at least January of that year.

Moreover, there is no evidence that Mizera’s course of conduct

changed in any sense after his enlistment on May 19th or that

he influenced any of the appellants to change their course of

conduct after he became a government agent. He continued to

5For this reason we reject Wilson's contention that the trial court's

refusal to give entrapment instructions relating to Broadbent's contact

with Wilson was reversible error. There is no indication that Wilson

posed any objection to the trial court's refusal to give his proposed

instructions and normally a failure to object will preclude appellate

review. Fed. R. Crim. P. 30; 5A Moore's Federal Practice. § 51.04, Even

if he had posed a timely objection, however, his proposed instructions

would have presented to the jury statements of the law based upon an

“objective standard” and therefore at odds with Rwssell’s clear holding.

They were thus properly rejected.

46a

meet and discuss the bribery plan with Ryan. Wilson had previ-

ously made a commitment to come to Las Vegas on May 2lst,

and, as planned, Mizera met with him then, at which time the

distribution of the bribery money was discussed. Zeldin was also

present at this meeting, as planned. The argument that Mizera

emplanted a criminal intent in unwilling participants at this late

stage is transparently implausible.

Likewise we are unpersuaded by appellants’ argument that

Mizera’s decision to cooperate was coerced. Whether consent

was voluntary or coerced is essentially a question of fact. United

States v. Page, 302 F.2d 81 (9th Cir. 1962). When presented

with the problem, the District Court Judge wrote a thirteen

page memorandum in which he dealt exclusively with the Mizera

question. In resolving that issue as he did he pointed out that

he not only had the testimony of Mizera clearly in mind but

that he also had considered the two tape recordings of the

meeting between Mizera and the agents when Mizera agreed to

cooperate. The trial judge commented on those conversations at

some length,* coming to the conclusion that Mizera voluntarily

*"When representatives of the Nevada Attorney General first ap-