Opposition — Ryan v. United States

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Se ie | ~ FILED

sae ae “ae, i | Nos. 76-877 and 76-898 |, MAR 29 TT

Gu the Supreme Court of the Mnited States

OCTOBER TERM, 1976

James G. RYAN, PETITIONER

Vv.

ee UNITED STATES OF AMERICA

ADRIAN WILSON, PETITIONER

v,

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

o THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WapeE H. McCresg, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. Feit,

RopertT H. PLAxico,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

SA a IT a STE TE a a

ms

INDEX

Page

tL CREEL NAP aan eno a Sees CORMAN O BS

REESE ee ne a ee EATS SE RM 2

REREAD DELSIC ESR ne tan r SO PR 2

STTTIITIES iicheiinetenctisiencesdinhienatahieeeialindedinenietmnbaiibiiiiidlacialaiidididadllian 2

SEITE cecceitnistcninbsnasiaseaiaidntncbiiecantiiabieiiglibanisitiaiianaiabebieetinpsiaimagigeiins 7

SINT ‘icshssiceitctiniebtenindaieinncieidietabacliamnbinebdclonsindaliaiicisiciiisiditaei 14

CITATIONS

Cases:

Brady v. United States, 397 U.S. 742 ............00..005. 10

Bram v. United States, 168 U.S. 532 ..................... 11

Hampton.v. United States, 425 U.S. 484 .............. 12

Michigan v. Tucker, 417 U.S. 433 ..............c0ccc0ceee I]

Oregon v. Mathiason, No. 76-201, decided

SS Bs, EE Weincilditidibainddelitidetinnnctnncem 10

Schneckloth v. Bustamonte, 412 U.S. 218 .............. 9

Shotwell Mfg. Co. v. United States, 37\ U.S.

DEE wcsiieichteitiabiinniiianeietiniailasdiniieiiididaineiaeiaininnnne VI

United States v. Bonanno, 487 F. 2d 654 ............... 9

United States v. Dowdy, 479 F. 2d 213, cer-

a A ES eee 10

United States v. Jones, 433 F. 2d 1176, cer-

Chores Gameed, SER UD. GSD. ......ccecccscescscesccccsssees 10

United States v. Osser, 483 F. 2d 727, cer-

tiorari denied, 414 U.S. 1028 ................... eee 10

United States v. Russell, 411 U.S. 423 .............. 9,12

United States v. Silva, 449 F. 2d 145, cer-

tiorari denied, 405 U.S. 918.0... eeeeeee 10

ii

Page In the Supreme Court of the United States

Statutes: OCTOBER TERM. 1976

SS SST Se TR Nk 2,14

EE ee Me SRE 2 son tna

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CS ee RCs RRS SN Se 10 E

LL a a er 7, 10 |

UNITED STATES OFAMERICA

No. 76-898

ADRIAN WILSON, PETITIONER

Ve

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals (Pet. No. 76-877,

Apps. A and E)!' are not reported. The district court's

memorandum on petitioners’ motion to strike and exclude

evidence (Pet. App. D) is not reported.

te

‘Unless otherwise indicated. references herein to the opinions of the

court of appeals will be to the appendices in No. 76-877.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on May

24. 1976. A petition for rehearing was denied and the

original panel decision modified on November 29, 1976

(Pet. App. B). The petitions for a writ of certiorari were filed

on December 27 and December 29, 1976, respectively. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

|. Whether a co-conspirator voluntarily consented to

the recording of his conversations with petitioners.

2. Whether the evidence showed entrapment of peti-

tioner Wilson.

3. Whether the evidence was sufficient to support the

conviction of petitioner Ryan. 3

STATEMENT

After a jury trial in the United States District Court

for the District of Nevada, petitioners were convicted of

using interstate commerce to promote an unlawful activity

(bribery of a local official) and of conspiring to commit

that offense (18 U.S.C. 1952, 2, 371). Petitioner Ryan

was sentenced to concurrent five-year terms of imprison-

ment. Petitioner Wilson was sentenced to concurrent 90-

day prison terms and was fined $10,000 for each offense.”

A panel of the court of appeals affirmed (Pet. App. A),

then modified its original decision at the time it denied

rehearing; the full court denied rehearing en banc, two

judges dissenting (Pet. App. B).

-

?A third co-defendant, Bernard Zeldin, was also convicted. sen-

tenced to concurrent one-year prison terms, and fined $10,000 on

each count. His petition for certiorari from the original decision

(No. 76-96) was denied November 8. 1976.

3

1. Petitioner Wilson, who resided in Los Angeles,

California, owned a parcel of land in Clark County,

Nevada. Wilson sought a favorable rezoning of this prop-

erty by the Clark County Board of Commissioners, then

consisting of commissioners Broadbent, Leavitt, Brennan,

Wiesner and petitioner Ryan. Mira Mizera, a Nevada

realtor. offered his services to Wilson when he learned of

the latter’s desire to rezone and develop his Clark County

property. In a January 1972 meeting in Los Angeles.

Mizera told Wilson that rezoning could be accomplished

only if the county commissioners were given “political

contributions” (1B Tr. 16-18).’ He suggested a $10,000

figure and volunteered to contact the commission members

(1B Tr. 19-22). Wilson also introduced Mizera to Bernard

Zeldin, a local businessman who was to develop the

property after the rezoning (Pet. App. E39a).

Subsequently, Mizera met with petitioner Ryan to

discuss Wilson's rezoning plan. In a second meeting.

in February 1972, he told Ryan that the latter would

receive a $10,000 contribution for his assistance (1B Tr.

21-27). In March 1972 an advisory planning commission

voted against the proposed zoning change, and Ryan

told Mizera to contact the other county commissioners

himself, because otherwise they might think that Ryan

would be keeping more of the money than they would

receive (1B Tr. 29; IC Tr. 287).

At this point, Mizera decided to see Commissioners

Brennan and Leavitt, who were of the same party as

Ryan, and might therefore vote as a group. However.

“TA Tr.” ete.. refers to the volume (IA through IJ) and page

of the transcript of the testimony of particular witnesses on particular

trial days. or of other proceedings. Volume 1G consisted of volumes

IV through VII of trial testimony and ts cited. ¢.g.. “1G TV Tr”

4

Wilson later told Mizera to contact all five Commis-

sioners, though with only $10,000 available, this would

reduce each Commissioner's cut to $2,000 (1B Tr. 31-34;

IC Tr. 293, 353-354). Mizera did see all the commis-

sioners, but none—save Ryan—was receptive to his offer

of money. Brennan and Mizera both testified that at a

second meeting between the two, Mizera had had to

reduce his offer from $3,000 to $2,000 because Wilson

wanted everybody to get $2.000 (1B Tr. 44; IG IV Tr.

633, 641).4 At a second meeting with Commissioner

Wiesner, however, Mizera told him that Wilson would

raise his offer to $3.000 (1G Tr. IV 612).

Mizera contacted Commissioner Broadbent on April

20, 1972, to offer him a $2,000 contribution. and the

commissioner feigned interest. When Mizera left, Broad-

bent immediately called the State Attorney General's

Office. He then met with state investigators and agreed

to have his subsequent telephone or face-to-face con-

versations with Mizera recorded (IE Tr. 383, 386, 393,

443, 405, 407). Mizera met with Broadbent on April 27,

1972, and told him that all other commissioners had

been contacted and that Wilson hoped to give each

$2,000 (IE Tr. 397-401). At another meeting with

Broadbent on May 2, Mizera told the commissioner that

Ryan had originally suggested that he see all the

commissioners (IE Tr. 407-413).

On April 26 or 27, 1972, Wilson secured the services

of a Nevada attorney, William Morris, to help pursue the

‘All the commissioners other than petitioner Ryan indicat<¢d that

they would examine the zoning proposal on its merits. Brennan

und 8roadbent eventually voted against the zoning change, while

Leavitt, Wiesner. and Ryan supported it (1B Tr. 42-44: 1G IV tr.

630-641: 1G IV Tr. 569-595, 612).

5

rezoning application. Mizera told Broadbent about Morris,

who in fact was a close friend of the commissioner.

Acting on his own, without informing the state authorities,

Broadbent sent word to Morris that he should withdraw,

and the attorney thereupon terminated his representation

of Wilson (IE Tr. 432-468; 1G VIII Tr. 1551-1578).

After Mizera had contacted the other commissioners,

he met again with R_an, told him of his efforts, and

indicated that since the $10,000 from Wilson wouid

have to be portioned out. Ryan's share would only be

$2,000 rather than the $10,000 originally promised. Ryan

became angry and left the meeting (1B Tr. 36: IC Ir.

298). At a subsequent meeting on May 6, 1972. to mollily

the angry Ryan, Mizera raised the offer to $3,000 and

even told Ryan that he did not have to vote for the

measure if it seemed otherwise likely to pass (1B Tr. 37-

39; 1C Tr. 298-300).

At this point in the investigation, the state agents

commenced wire interception of Mizera’s office and

home telephones, pursuant to a state court order under

Nevada law. The wire interception was to last from

May 5 until May 19, 1972 (Pet. App. E42a).

Meanwhile, on May 9, 1972, petitioner Wilson applied

in Los Angeles for a $12,000 loan (1G Tr. IV. 561). The

next day, May 10, 1972, Mizera again called Broadbent

to corfirm, his_su for the rezoning and told him,

somewhat “Rn that the $10,000 had actually

been obtained and that co-defendant Zeldin had it (IE

Tr. 419-420). On May 16, at the request of the state

investigators, Broadbent told Mizera that he could no

longer support the rezoning plan (IE Tr. 424, 425).

Mivera contacted Ryan and persuaded him to make the

rezoning motion in return for $5,000 (1B Tr. 61; 1C 302-

304, 356).

6

Mizera subsequently called co-delendant Zeldin in

Los Angeles. told him that all was well, and asked him to

make certain that Wilson would have the moncy in Las

Vegas after the Board of Commissioners met (1B Tr.

104, 105). The same day. May 15, 1972. Zeldin went to

Wilson’s office in Los Angeles and received some $1 1.000

in cash from him in $100 bills. Zeldin had cautioned

Wilson that the payment would have to be in cash to

avoid possible exposure of the scheme (1G Tr. VIEL.

1455. 89). This $11,000 was to be delivered to Mizera

only if the zoning proposal passed (1G VIII. Ir. 1456-

1490).

2. Through Broadbent's cooperation, the state in-

vestigators were now aware of the general nature of the

scheme. They concluded. however, that Mizera’s assist-

ance was necessary to discover all participants in the

affair. On May 19, 1972, state agents disclosed to Mizera

their investigation of the developing bribe scheme. They

first read to him the relevant Nevada bribery statute and

described some of the evidence they had gathered against

him. They offered him immunity from prosecution if he

cooperated: this would permit him to retain his real estate

license. The agents also told him that if he did not help

secure sufficient evidence, he would be indicted; that

he might go to jail for as long as 10 years: that his health

would suffer in jail; that if he cooperated his friends,

petitioner and Wilson, would be “kept out of it”; and

that if he consulted an attorney his usefulness would be

over. After bargaining during the 45 minute meeting,

Mizera agreed to cooperate, and thereafter his telephone

and personal conversations were recorded with his con-

sent (Pet. App. D25a-26a; Pet. App. E44a-45a).

Wilson came to Las Vegas on May 21. 1972 and met

with Mizera. The latter told him that Ryan would make

-

the motion tor rezoning and would receive $5,000 (1B

Tr. 79. 80). The Board of Commissioners met on May 22.

1972. and approved the rezoning measure by a vote of

three to two. Alter the meeting, Mizera again met with

Wilson and Zeldin. Wilson cold Mizera that he had done

a good job, and Zeldin then handed him some $8,000

(1B Tr. 111-113). Bank wrappers on the bills showed that

the currency came from the Security Pacific Bank in

Los Angeles. where Wilson had borrowed the funds (1D

Tr. 12). The next day, Mizera met with Ryan, gave him

the $5.000 promised. and then signaled Nevada agents.

who moved in and arrested the commissioner (1B Ir.

118-126).

ARGUMENT

|. Petitioners argue that Mizera did not validly consent,

as required by 18 U.S.C. 2511(2)(c). to have his con-

versations with his co-conspirators recorded, because his

agreement to permit the recordings was the product of

manifest overreaching by the state agents (see, e.g., Pet. No.

76-898, pp. 23-24). The two courts below found to the

contrary (Pet. App. D; Pet. App. E49a), and there is ample

support for their finding that Mizera’s consent was

voluntary. There is no reason for this Court to examine

further this essentially factual determination.

The agents’ conversations with Mizera on May 19, 1972,

were recorded on tapes considered by the district court; they

were also described by Mizera on the stand. The district

court found that the state agents confronted Mizera with the

evidence showing that he was involved in a scheme to bribe

the Commissioners (Pet. App. D26a-27a):

When Mirzera 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

8

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 in-

dicated 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 to-

tally 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 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 pro-

tection 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.

On the stand in the instant case, Mizera testified

that he placed a condition upon his cooperation:

that the Attorney General oi 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

9

to cooperate. Mizera, under cross-examination, in-

dicated 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 of-

fered him. While he stated he consented to co-

operate with reluctance, Mizera nevertheless testi-

fied that he agreed to cooperate and went with

the agents voluntarily.

Finally, although the tape records made during the

meetings of that day show that Mizera had occa-

sional reluctant afterthoughts about cooperating,

the major portions of the recordings reveal Mizera

freely volunteering suggestions on how to proceed

with the investigation.

Petitioners contend that on these facts the courts below

should have held that Mizera’s consent resulted from

unconscionable psychological coercion (Pet. No. 76-877, p.

11; Pet. No. 76-898, p. 27). But as this Court noted in

Schneckloth v. Bustamonte, 442 U.S. 218, 227, “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.” On the facts found by the court below, the

totality of circumstances do not disclose police conduct that

is either outrageous or coercive and that warrants treating

Mizera’s continuing consent to the recording of his

conversations for several days after he was approached by

the agents as involuntary. Cf. United States v. Bonanno, 487

F. 2d 654, 658 (C.A. 2).

While the court of appeals did not “condone the tactics

used to gain Mizera’s co-operation” (Pet. App. Al0a), it

correctly held that the state agents’ conduct was not “so

outrageous” as to violate due process. United States v.

Russell, 411 U.S. 423, 431. This is not a case in which the

10

innocent associate of a suspect is browbeaten with threats of

criminal punishment having no basis in fact, in order to

secure his cooperation. The evidence with which the agents

confronted Mizera was accurate. Even more important,

there was no causal connection between the agents’ alleged

misconduct and Mizera’s decision to cooperate. Mizera’s

predicament arose not from the agents’ statements but

simply from his awareness that the state authorities knew of

his involvement in the bribery scheme. As the court below

noted. “nothing said or done thereafter was likely to change

his decision” (Pet. App. Alla). The mere fact that an

individual's cooperation is generated by a desire for leniency

does not, ef course, render that cooperation involuntary.

Just as a guilty plea is not void when made to secure a lesser

sentence.” so too a consent to interception of oral

communications is valid when motivated by similar

considerations.°

Petitioners contend that Mizera’s consent should be held

invalid because a confession procured from Mizera under

such circumstances would have been inadmissible against

him.’ While we do not concede the correctness of their

premise (cf. Oregon v. Mathiason, No. 76-201. decided

January 25, 1977), the criteria for evaluating the vol-

untariness of a confession and the validity of a consent

to recording conversations under 18 U.S.C. 2511(2)(c)

‘See. e.g.. Brady v. United Staies, 397 U.S. 742. 751.

"See. ¢.g., United States v. Osser, 483 &. 2d 727 (C.A. 3). certiorari

denied. 414 U.S. 1028: United States v. Dowdy, 479 F. 2d 213(C.A. 4).

certiorari denied. 414 U.S. 823: United States v. Silva, 449 F. 2d 145

(C.A. 1). certiorari denied. 405 U.S. 918: United States v. Jones, 433 ¥.

2d 1176 (C.A. D.C.). certiorari denied. 402 U.S. 950.

‘Insofar as their claim may be predicated upon an alleged viola-

tion of Mizera’s duc process rights rather than petition ers’ own

rights under Section 2511. petitioners lack standing to assert

Mivera’s rights vicariously.

are not properly equated in this fashion, and petitioners

have cited no case holding that they should be so

equated. The special care that is taken in determining

the admissibility of allegedly involuntary confessions

is, in substantial part, the product of considerations

that are inapplicable in assessing the means used to enlist

the cooperation of a participant in criminal activity in

the continuing investigation of the crimes.

This Court long ago characterized the bar against the

admission of confessions obtained by improper threats

or inducements as being based on the principle that

“the law will not suffer a prisoner to be made the

deluded instrument of his own conviction” (Bram v.

United States, 168 U.S. 532, 547). At a minimum, con-

fession cases necessarily implicate concerns derived from

the Fifth Amendment's guarantee that no person shall

be compelled to give evidence against himself. See

Shotwell Mfg. Co. v. United States, 37\ U.S. 341, 374.

Moreover, as a statement against interest, the evi-

dentiary reliability of a confession is suspect if the con-

fession was procured under circumstances indicating that

it was the product of an impaired capacity for self-

determination. See Michigan v. Tucker, 417 U.S. 433,

447-449.

These concerns are not present in the case of a con-

sent by a non-defendant to the recording of conversa-

tions with suspected offenders, granted after the author-

ities have confronted him, in a non-custodial situation,

with the evidence of his own wrongdoing. Criminal

investigation often requires the cooperation of participants

in suspected illegal schemes. As the court of appeals

noted, requiring such a participant “to face up to the

real world in order to obtain his cooperation or to obtain

12

admissions of guilt or a plea of guilty is permissible

under our system” (Pet. App. E47a).*

2. Petitioner Wilson argues (Pet. No. 76-898, pp. 19-23)

that he was entrapped into committing the offenses

charged against him. The court below found, after a

careful persual of the record, that this contention is

without substance (Pet. App. E45a-46a). Entrapment

occurs only when the authorities implant a criminal

design in the mind of a defendant previously without

predisposition to commit the crime. United States v.

Russell, 411 U.S. 423; Hampton v. United States, 425

U.S. 484. In this case, the evidence showed that Wilson

was an active participant before the authorities even be-

came aware of the bribery activity through Commission-

er Broadbent's information or Mizera’s cooperation.

In January of 1972, Wilson had agreed that Mizera

should approach the Commissioners with an offer of

monetary assistance, and when petitioner Ryan indicated

that he would not personally contact all the Commis-

sioners himself. Wilson told Mizera to contact each

Commissioner, rather than just the three majority party

members on the county board (1B Tr. 19-22, 31-34; IC

Tr. 293, 353-354).

Nor is there any merit to the suggestion that Broadbent's

caution to attorney Morris to terminate his representation

of Wilson somehow prevented Wilson from receiving

effective assistance of counsel that would have dissuaded

him from engaging in criminal activity. As the court of

appeals noted, there is no evidence that Broadbent was

acting for the State in warning Morris (Pet. App. E48a-

49a). Further, Wilson's predisposition to commit the

‘The quoted language appears in the panel opinion as revised when a

majority of the Ninth Circuit's active judges denied rehearing en hance

(Pet. App. E50a).

13

bribery offense was firmly established. Prior to retaining

Morris, he had authorized Mizera to contact the

Commissioners, and, after Morris was retained, Mizera told

Broadbent that notwithstanding Morris's intended role in

the zoning proceeding, Wilson would still be willing to pay

for the assistance of the Commissioners (1 Tr. 397-401).°

3. There is no merit to petitioner Ryan's contention

(Pet. No. 76-877, p. 18) that the evidence was insuf-

ficient to support his conviction. Contrary to his char-

acterization of the opinion below, the Ninth Circuit did

not affirm the conviction merely because Ryan failed

to “rebuff Mizera’s bribe offer. Rather, the court below

correctly determined that Ryan affirmatively accepted the

bribe and agreed to push for the rezoning change

as the quid pro quo (Pet. App. E49a):

At the second of these meetings, in February of

1972, campaign contributions in exchange for a

favorable vote were mentioned. Ryan did not re-

pudiate the scheme at that time, as Broadbent had

done upon first becoming aware of it. Rather, he

continued to meet with Mizera concerning this re-

zoning. While the bribe was not specifically discussed

in the March meeting, it is difficult to imagine

that Ryan assumed that Mizera had dropped his

original proposal. In April of 1972, Ryan did repu-

diate 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.

"Thus the court of appeals correctly held that Wilson's tendered

entrapment instructions were properly rejected (Pet. App. E45a. n. 5).

14

Nor is there any error in the reasoning of the court below

chat one charged as an aider and abettor under 18 U.S.C. 2

and 1952 need not be shown to have personally engaged in

an interstate activity, so long as the scheme as a whole had

the requisite interstate connections (Pet. App. E40a). This

no more than restates Section 2(b), which provides that one

who “causes an act to be done which if directly performed by

him * * * would be an offense * * * is punishable gs a prin-

cipal."

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

Wave H. McCree,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Fert,

Ropert H. PLAxico,

Attorneys.

Marcu 1977.

“Section 1952 is in fact precisely directed against schemes such as

that in which petitioners were involved. Petitioners’ codefendant and

co-conspirator Wilson lived in the adjoining State of California, and in

conjunction with him, Mizera and Zeldin made extensive use of

interstate facilities to pursue the Nevada bribery plan. Wilson. Mizera.

and Zeldin traveled between the States several times in formulating their

ilhicit design, and all three conversed frequently through interstate

phone calls. Indeed. Zeldin carred the bribe money trom Calilornia to

Nevada, where it was ultimately given to Commissioner Ryan.

DOJ-1977-03