Petition — WILSON v. UNITED STATES (Nos. 76-898, 76-877)

Supreme Court, U. S.

FILED

DEC 29 1976

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the GQnited States

Ocroser Term, 1976

No. T6- 89 8

Aprun Witson,

Petitioner

v8.

Untrep States or AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR

THE NINTH CIRCUIT

Varcas, Barttett & Drxon

Joun C. BaRtLettr

201 W. Liberty

Suite 300

Reno, Nevada 89501

Baker, ANCEL aNnD REDMOND

Mark G. ANcEL

626 Wilshire Boulevard

Los Angeles, California 90017

Attorneys for Petitioners

Bowne of L.A., Inc., Financial Printers, Los Angeles. Phone (213) 748-9851

.

’

A i ee A Te eee eee De hes >

Po eer ese ae ep ee ee

TABLE OF CONTENTS

nn ccd obvevetacyuassee.

CONCISE STATEMENT OF GROUNDS ......

JURISDICTION

QUESTIONS PRESENTED ..................

CONSTITUTIONAL AND STATUTORY

PROVISIONS

a a

STATEMENT OF THE CASE ................

REASONS FOR

CONCLUSION

GRANTING THE WBIT ......

62.3 28 €6¢ een te«eceece @ 6 O24 8S 2 6 oO 4 Ove a & &

li

TABLE OF AUTHORITIES

Cases

Alderman v. U.S. (1969) 394 U.S. 165, 89 S.Ct.

Es Se he ta sa wb soon s 27

Berger v. State of New York, (1967) 388 U.S.41.. 3

Carson v. U.S. (9th Cir. 1962) 310 F.2d 558, 560, 561 23

Eastman v. United States, (9th Cir. 1954)

at A ie cg Oe a 18

Greene v. U.S. (9th Cir. 1971) 454 F.2d 783 .. 15, 17, 23

Hampton v. United States, 96 S.Ct. 1646,

44 U.S.L.W. 4542 (April 27,1976) .......... 19, 20

Henderson v. United States (5th Cir. 1956)

es ea ee Ta, ow aches 20

Johnson v. United States (D.C. Cir. 1963)

BB eS ee 22

People v. Grantham, (1972) 26 C.A. 3d 661,665 .... 22

People v. Perez (1965) 62 C2d 769, 775-776 ........ 22

Rewis v. United States, (1971) 401 U.S. 808 .__.. 3, 25

Ryan v. Eighth Judicial District, (1972) 503

Ns Shs tno igs Lee gle oa Feces oes 13

Sears v. United States (5th Cir. 1965)

i Do i sg 0 aad G4 6-9 ule 20

Sorrells v. United States, (1932) 287 U.S. 435 18, 20, 22

Sherman v. United States, (1958)

Et or a es 16, 18, 20, 22, 28

United States v. Altobella (7th Cir. 1971)

442 F.2d310.......... Lo eee eee ae aa 3, 25

Page

United States of America v. Demma (9th Cir. 1975)

gg | ERE A apy See ae 18, 20, 22

U.S. v. Franks (6th Cir. 1975) 511 F.2d 25........ 27

U.S. v. Giordano (1974) 416 U.S. 505, 94 S.Ct. 1820,

ee ee se ET 27

U.S. v. Martin, (8th Cir. 1975), 511 F.2d 148,150 .. 23

U.S. v. Sherman, (2d Cir. 1952) 200 F.2d 880, 883 .. 23

United States v. Archer (2d Cir. 1973)

ES Fi leet et kk oa 3, 20, 24, 25

United States v. Brouillette, (5th Cir. 1973)

Ge Be I MO BO oc ccc cece eesces 26

United States v. Isaacs (7th Cir. 1974), 493 F.2d

I ee ret eis capa as yer

United States v. Kirk, (5th Cir. March 19, 1976),

528 F'2 1057, 1062, 1063... ARE ee egy Spray 22

United States v. Russell, (1973) |

SRR a a ee 17, 18, 19, 22, 24

United States v. Young (5th Cir. 1972)

Rs de ee ge oe ois bws v.dsae 22

Williamson v. United States (5th Cir. 1962), |

311 F.2d 441,445 ....—ss«... Pee eg Bete a we wis 24

Wright v. U.S. (9th Cir. 1964) 339 F.2d 578,580 .. 23

Statutes and Regulations

TT Sse ee et 4

I tte So ep ee. 5

uc reaccs 5

orien shiv toned a ewanne es 5

iv

BO WEA Bat GD . . ... . 5 os cen dcnuenstaweeueuee

OO BiG... ... . . « oidcic ux nd neon nee eee

pt een

On CTA Bite GE... ..... css caseeekteeeeeeeee

OO TIRDA Die GD... . «ooo dccecsstcusscabaeeeee

N.R.S. 197.020 and 197.030 ......................

Title 18 § § 2511(c)(d) and Section 2515..........

ry PER) | | Seer

Texts and Law Review Articles

Devitt & Blackmar, Federal Jury Practice and In-

structions (2d Ed. 1970) ....................

Groot, “The Serpent Beguiled Me and I (Without

3, 16

Scienter) Did Eat — Denial of Crime and the

Entrapment Defense”, 1973 U. Ill. L. F. 254 __.

22

IN THE

Supreme Court of the United States

Octroser Term, 1976

Petitioner

vs.

Unitep States or AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR

THE NINTH CIRCUIT

Adrian Wilson, Defendant in Action 75-1314, petitions

for a Writ of Certiorari to review the Decision of the

United States Court of Appeals for the Ninth Circuit,

affirming a conviction in the United States District Court

in Nevada on one count of violating the Travel Act (18

USC § 1952) and one count of conspiriug to violate the

Travel Act by utilizing the facilities of Interstate Com-

merce in order to bribe an officer to obtain favorable zon-

ing in violation of 18 USC § 371, the Federal Conspiracy

Statute.

a Yon

OPINIONS BELOW

The Opinion of the Court of Appeals has not yet been

reported, but is attached hereto in the Appendix infra

pp. A1-20.

CONCISE STATEMENT OF GROUNDS

The Petition is grounded upon the failure of the Court

to give requested entrapment instructions; upon the lack

of jurisdiction of the District Court to try this case under

the provisions of the Travel Act, the criminal activities

complained of being local in nature and within the

knowledge of Government prosecutors for the State of

Nevada, who had prosecuted one defendant and refused

to prosecute two other defendants; and upon the admis-

sion into the record of a transcript of a wire tap, which

was received by the Government as a result of illegal

activities on its part.

With respect to the issue of entrapment, the Defendant

Wilson was an unwary innocent and not predisposed to

commit the offenses with which he was charged. The

crimes with which he was charged were the direct product

of the activities of the Nevada State Officials, who forced

his real estate agent, by use of third degree tactics and

outright lies, to make offers of bribes to the Board of

Commissioners of Clark County, Nevada, and secretly

removed the Attorney whom Wilson had retained to

obtain the zoning changes for which the asserted bribery

occurred. The same officials caused that Attorney to con-

ceal from Wilson that he had terminated his employment

because of activities of the State of Nevada which the

attorney thought involved Wilson’s real estate agent, and

that he had advised a Defendant Commissioner to ac-

cept moneys from Wilson’s real estate agent. Further-

more, the activities of the State of Nevada were so

outrageous and constituted such a participation in the

alleged criminal activities as to violate both fundamental

due process principles and to require the imposition by

_— vo

this Court of a bar upon the utilization of the Federal

Judicial System for prosecution of the alleged violations.

In any event, based upon the facts of this case, there was

. sufficient evidence to show the creative activity of the

Government in the crime, and a genuine issue existed

as to predisposition of Wilson to commit the crimes with

which he was charged. Therefore the failure of the Dis-

trict Court to require that the jury be instructed on

entrapment in the subjective sense, even though the prof-

erred instructions did not conform exactly to the lan-

guage of Devitt and Blackmar, Federal Jury Practice &

Instructions (2d Ed. 1970), constitutes reversible error.

In proceeding with the prosecution, solely because the

Nevada Attorney General was unsuccessful in having the

County Grand Jury return an indictment against the

Defendant Ryan, and failed to cause the Magistrate to

bind the Defendant over and, or, to have the Clark County

District Attorney timely prosecute, while the local officials

could have prosecuted Wilson, a local matter was turned

into a Federal matter, in violation of the rules set forth

in Rewis v. United States, (1971) 401 U.S. 808; United

States v. Archer (2d Cir. 1973) 486 F.2d 670; United

States v. Isaacs (7th Cir. 1974) 493 F.2d 1124; United

States v. Altobella (7th Cir. 1971) 442 F.2d 310.

Certain transcripts used at the trial were obtained

through the use of illegal interceptions, which violated the

restraints laid down by Berger v. State of New York,

(1967) 388 U.S. 41, and the evidence does not support the

conclusion of the Reviewing Court that the leads were ob-

tained after May 19, 1972, the date on which Wilson’s

Real Estate Agent became an Agent of the State.

JURISDICTION

The Judgment of the Court of Appeals for the Ninth

Circuit (Appendix infra pp. Al-20) was entered on the

24th day of May, 1976. Petition for rehearing was denied

—

on November 29, 1976 and an Order staying issuance of

the mandate was issued by the Court of Appeals pending

the filing, consideration and disposition of a Petition for

Writ of Certiorari, providing such Petition is filed with

the Supreme Court of the United States on or before

December 29, 1976. The jurisdiction of this Court is in-

voked under the provisions of 28 USC 1254 (1).

QUESTIONS PRESENTED

1. Whether the activities of the Nevada law enforce-

ment officials constituted creative activity which en-

trapped an unwary innocent?

2. Whether, under the circumstances of this case, the

conduct of the Nevada Law Enforcement Agents was so

outrageous that, assuming arguendo, there was a crime

committed under the Travel Act, there, nevertheless, ex-

ists a defense against conviction because of, either due

process principles, or because of the inherent supervisory

power of this Court over the processes which may be

utilized by Governmental Agents in order to obtain a

conviction?

3. Whether an entrapment instruction should have

been given by the District Court, if not in the form pre-

sented by the Defendant Wilson, at least in a form which

would have required the jury to determine whether the

Defendant Wilson was a person otherwise innocent, whom

the Government was seeking to punish for an alleged of-

fense, which was the product of the creative activity of

the Nevada Officials?

4. Whether, under the facts of this case, there existed

a violation of the Travel Act?

5. Whether tapes of conversations between the De-

fendant Wilson and other Defendants were obtained il-

legally in that the cooperation of Wilson’s Agent was

obtained by coercion and force?

_ ee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution:

Fourth Amendment, Fifth Amendment, and

Section 1 of the Fourteenth Amendments

Statutes:

18 USCA § 371

18 USCA §1952

18 USCA § 2510-2520

Federal Rules of Criminal Procedure:

18 USCA Rule 30

18 USCA Rule 51

18 USCA Rule 52(b)

Federal Rules of Civil Procedure:

28 USCA Rule 51

28 USCA Rule 46

Nevada Revised Statutes:

N.R.S. 197.020 and 197.030

Appendix “B” contains the statutes involved and the

Federal Rules discussed.

STATEMENT OF THE CASE

After a jury trial with Codefendants James G. Ryan

and Bernard Zeldin, involving Miro Mike Mivera, an unin-

dicted co-conspirator, the Petitioner Wilson was con-

victed of having conspired to violate, and violating the

provisions of the Travel Act (18 USC § 371 and 18 USC

§ 1952). He was sentenced to 90 days’ imprisonment and

a fine of $10,000 as to the first count, and 90 days’ im-

prisonment and $10,000 fine as to the second count. Clerk’s

Record “C.R.” 964. Imprisonment to run concurrently

with imprisonment on count one. The Defendant Ryan

was convicted and sentenced to a term of imprisonment of

oe

5 years on the conspiracy count, and a concurrent 5 year

term on the substantive count, while the Defendant Zeldin

was sentenced to a year and a day imprisonment on count

one and a term of a year and a day imprisonment and a

$5,000 fine on count two.’ Imprisonment to run concur-

rently with imprisonment on count one. Wilson currently

is released on his own recognizance (CR 968). By reason

of the fact that two reporters were used; that partial

transcripts were prepared for certain witnesses; that

the settling of the charges and the jury charges are re-

ported in a separate Volume of the transcript and that

there were both pretrial and post trial hearings, the

transcripts (TR) have been referred to in the following

manner:

VOLUME TRANSCRIPT

1-A Hearing on MOTION TO DISMISS ON

CONSTITUTIONAL GROUNDS, October

25, 26, 1973

1-B Testimony of MIRO MIZERA,

March 5, 1974

1-C Testimony of MIRO MIZERA,

March 6, 1974

1-D Testimony of WILLIAM KEITH and

GREGORY K. STONE, March 7, 1974.

1-E Testimony of ROBERT BROADBENT,

March 7, 1974.

1-F Testimony of ROBERT BROADBENT,

March 11, 1974.

'Zeldin offered no evidence at the trial, nor did he offer the

instructions i to entrapment, which were refused by the

Trial Court. He did not employ, nor participate in any meetings

with the Attorney, whose flagrant breach of wey | at the behest of

the State, permitted the creation of the crime by the State. His -

Petition for Rehearing was denied by the Ninth Circuit Court of

Appeals on June 29, 1976 and Certiorari was denied on November

%. rs following his Petition numbered 76-96 on the Docket of

is Court.

ee Se ee eee

—_ oo

VOLUME TRANSCRIPT

1-G (Vols. Further trial testimony March 11 through

IV-VUll) March 14, and March 18 through March 23,

(1974.

1-H Partial Transcript of testimony of

WILLIAM W. MORRIS, March 18, 1974.

1-I Proceedings re SETTLING OF

INSTRUCTIONS and INSTRUCTIONS

TO JURY, March 20, 22, 1974.

1-J Post-trial hearing on MOTION TO

DISMISS and SUPPRESS (WIRE TAP

ISSUES), November 25, 1974.

At the time of the commission of the alleged criminal

acts, Wilson resided in and maintained his Offices for the

practice of architecture in Los Angeles County, Califor-

nia. He had designed many substantial buildings, includ-

ing the Las Vegas Convention Center. He was 74 years

of age. His wife of many years was dying. (TR 1-G, pgs.

1390-1394, 1398) He owned a parcel of unimproved land

in Clark County, Nevada. He was contacted by a Real

Estate Operator named Miro Mizera (an unindicted co-

conspirator in this case), who was licensed by the State

of Nevada to engage in the sale of realty. Mizera con-

tacted Wilson by telephone, by letter, and in person, and

persuaded Wilson to engage him as a Real Estate Agent

for the purpose of selling the unimproved realty. In

soliciting Wilson, Mizera, on July 27, 1971, represented

that fie had developers interested in his property for de-

velopment and that they would use Wilson’s services as an

architect. (TR 1-B pgs. 162, 163). The Agreement be-

tween Mizera and Wilson became Exhibit 1 in evidence

and is dated April 20, 1972, and outlined the responsibili-

ties of the parties and the compensation Wilson was to

pay Mizera for his services, including the obligation to

pay Mizera in the event a zoning change was granted with

= Wen

respect to the use of the property. Mizera then proceeded

to seek to obtain the desired zoning change from the

Board of County Commissioners of Clark County, follow-

ing a denial of Wiison’s zoning change request by the

Clark County Planning Commission.

On April 20, 1972, the day after Mizera had met with

Wilson and his attorney to obtain the Agreement from

Wilson relating to the commission for selling the prop-

erty, Mizera contacted Robert Broadbent, who was a

Commissioner on the Board of County Commissioners of

Clark County, Nevada. The contact was made at a Drug

Store owned by Mr. Broadbent in Boulder City, Nevada,

a suburb of Las Vegas, and within close proximity to the

Local Police Department. At the time of this contact,

Mizera stated to Broadbent that the property zoning

should be changed on its merits and said, “Mr. Broadbent,

I hope we can do this in some legal way. You are running

for reelection and we would like to give you a contribu-

tion. If there is a legal way to do this, please tell me how

it is to be done.” (TR 1-B, pg. 52; TR 1-E, pg. 398).

Broadbent, who believed that campaign contributions

were made by people with special interests (TR 1-F, pg.

12), took Mr. Mizera’s offer of a campaign contribution

to be a bribe. (TR 1-E, pg. 510). He was well acquainted

with the police Chief of Boulder City, Nevada, and the

Sheriff of Clark County, Nevada, where the offer occur-

red and trusted both men. (TR 1-E, pgs. 510, 511)

Immediately following this meeting, Broadbent coun-

seled with his campaign manager, Allan Reeves as to

what a report of this matter would do to him politically,

(TR 1-G pgs. 1573-75). He then called the Nevada At-

torney General, Robert List, stating to him that he had

been offered an illegal bribe and asked him what he should

do about it. (TR 1-E, pg. 38). On the following day, the

Attorney General’s Investigators came to Mr. Broadbent

to transcribe his conversations with Mr. Mizera. Tele-

a

phone taps were commenced of Mr. Mizera’s telephone

and Mr. Mizera was encouraged to contact other members

of the Board of Commissioners with the same offer he had

made to Mr. Broadbent, all under the direction of the

Attorney General of Nevada. Broadbent became an Agent

of the State of Nevada on April 21, 1972 and on April 24,

1972 a transmitter was placed on his body by a member of

the Las Vegas Police Force to transmit to the Attorney

General’s Agents all conversations with Miro Mizera, (TR

1-E, pgs. 391, 392, 396, 397, 404, 405, 408) and acted from

that date under the direction of the Nevada Attorney Gen-

eral (TR 1-E, page 494), who was aware of all conversa-

tions had with Mizera by Broadbent. (TR 1-A, pg. 53; TR

1-E, pgs. 525-527). The investigation prior to May 19,

1972 was centered on Mizera according to the Attorney

General (TR 1-A, pgs. 67, 68, 72, 73).

Broadbent told Mizera that he thought the zoning pro-

posed by him was good zoning, even though he believed

it to be bad. He also told Mizera many things as they

came up, which he thought would move the case along,

at the suggestion of the Attorney General, including a

willingness to cooperate with Mizera and to accept money

from him. (TR 1-A, pg. 70; TR 1-E, pgs. 523-525).

At a meeting between Wilson and Mizera relating to

Mizera’s agreement for commission, Wilson’s Los An-

geles Counsel, on April 19, 1972, called an Attorney by

the name of Thomas Bell, in Las Vegas to seek repre-

sentation of Wilson. (TR 1-G, pgs. 1370-1376, 1381.)

Bell, being unable to handle the matter, referred Wilson

to an Attorney who officed with him by the name of

William Morris, who represented large builders and spe-

cialized in administrative law and zoning matters before

the City and County Planning Commissions. Morris was

also a member of the Board of Regents of the University

of Nevada. (TR 1-G, pgs. 1230-1232, 1234, 1235, 1245).

Wilson, Mizera and Morris met in Las Vegas on April

_— wee

27, 1972, and Morris agreed to represent Wilson before

the Board of Commissioners of Clark County for a total

fee of $10,000, demanding an immediate $5,000 retainer,

which Wilson then and there paid to him by check. (TR

1-G, pgs. 1239, 1240, 1257, 1258) (TR 1-H, pg. 415).

Morris advised both Mizera and Wilson that all matters

pertaining to the zoning change were to be handled by

Morris, and no one was to contact any of the Commis-

sioners, except through Morris. (TR 1-G, pg. 1240, TR

1-H, pg. 5). Without telling Morris or Wilson, on April

25, 1972, Mizera advised Broadbent of the appointment

and, immediately after its occurrence, of the meeting and

of Morris’ instruction. (TR 1-E, pgs. 394, 395, 397-398).

The conversation was overheard and recorded by the

Attorney General’s Investigators (TR 1-E 403). Imme-

diately upon receipt of Mizera’s information, Broadbent,

through his former campaign manager, Allan Reeves,

caused Morris to get out of the case, to keep his mouth

shut and to quit representing Wilson because it would

hamper the investigation, Morris thought, of an illegally

and improperly acting real estate agent. (TR 1-E, pgs.

432-433, 457, TR 1-G, pgs. 1253, 1553-1556, 1567, 1571,

TR 1-H, pgs. 6-8). Reeves advised Broadbent that

he had contacted Morris and it was his feeling that

Morris was going to get out of the zoning case. Within

one week of his action, and prior to the date on which

Mizera became an Agent of the State, Mr. Broadbent ad-

vised the Attorney General, under whose direction he

had been acting, of what he had done and the Attorney

General stated that he was just as happy to see Morris

out of the case. (TR 1-E, pgs. 488-495, TR 1-G, pg. 1247).

The Attorney General was kept abreast of what was hap-

pening in the case on a daily basis, frequently receiving

four or five telephone calls a day (TR 1-A, pg. 53). In

fact, the Attorney General, on May 2, 1972, actually

directed Broadbent as to the ultimate objective of the

May 2 meeting and the procedure he was to use (TR 1-F,

_—

pg. 232-4). Morris, however, before Mizera passed any

money to Ryan, advised other County Commissioners,

including the Defendant Ryan, that the Attorney Gen-

eral’s Office was bugging everyone and that if he, Ryan

were offered a bribe, he was to take the money and to

call the Sheriff, or the District Attorney, of Clark Coun-

ty. (TR 1-G, pgs. 1269-1273; 1-H, pgs. 11, 12, 17 and

18). At no time did Morris ever advise Mr. Wilson,

or his Los Angeles attorney, of any activities or conver-

sations, with the Agent of Nevada Attorney General,

Broadbent, through Reeves, or with any Commissioner,

and he believed that he was remiss in not telling Wilson

his true reason for his withdrawal from the case. (TR

1-G, pgs. 1245, 1269; 1-H, pg. 15). Thereafter, Broad-

bent discouraged Mizera from getting other Counsel for

Wilson and Wilson did not obtain other Counsel to rep-

resent him in connection with the zoning matter. (TR

1-C, pgs. 240 and 242; TR 1-E, pg. 465.) Mr. Morris re-

turned the retainer and corresponded with Wilson, giv-

ing a false reason for withdrawal on May 1, 1972.

Wilson’s Exhibits “G” and “H”. (TR 1-G, pgs. 1242-

1244). On May 2, 1972, Broadbent was shown the cor-

respondence between Wilson and Morris at a meeting

set up by Broadbent at the Attorney General’s request

by a subterfuge to cause Mizera to be at the meeting.

(TR 1-E, pgs. 404, 405-407, 495.)

On May 16, 1972, the Attorney General’s personnel

caused Broadbent to call Mizera and to say that he could

no longer vote for Mizera’s proposed zone change and

used as an excuse the falsehood that he had had friends

involved in the area who had asked him not to support it.

Mizera became very distraught (TR 1-E, pgs. 424-426,

496, 497). The May 16, 1972 conversation had been made

by Broadbent because the Attorney General’s Office be-

lieved that there was no bribery activity. (TR 1-E, pgs.

539, 540; TR 1-F, pgs. 25, 26).

wo

On May 19, 1972, the Attorney General’s Staff pro-

ceeded to cause Mizera to become an Agent for the State,

by virtue of direct threats to preclude Mizera from get-

ting medical treatment to alleviate terrible headaches,

which made him highly dependent on certain drugs, and

lies, a portion of which are set forth in the Opinion of the

Court of Appeals, and the balance of which are set forth

in CR Vol. 3, pgs. 538 to 579 in a typed transcript, which

does not convey the emotion in tape No. 45 (Ryan’s Ex. K,

TR 1-J, pg. 117) from which it is transcribed. The coer-

cion of these actions ultimately resulted in Mizera allow-

ing himself to be fitted for recording equipment, so that

he could approach the Defendant Ryan in a planned

effort to obtain statements which might incriminate Ryan.

Mizera relied upon the statements made by the Attorney

General’s Office such that no one could help him, but the

Attorney General. (TR 1-C, pgs. 212-214, 367, 368; TR

1-J, pg. 117-Ryan’s Ex. “E”). The State’s Agents also

told Mizera they wanted to involve Ryan, but did not want

to involve Wilson and agreed with Mizera not to involve

Wilson (TR 1-C, pgs. 230, 310, 311) and as is hereinafter

set forth, the Attorney General brought criminal proceed-

ings in the State Courts only against Ryan. The Agents

of the Attorney General from the 19th of May until the

23rd of May 1972 kept Mizera virtually imprisoned (TR

1-C, pgs. 318-322). The State’s Agents rehearsed with

Mizera what he was to say to Ryan. (TR 1-C, pgs. 312-

314).

Mizera testified at the trial that the offering of a cam-

paign contribution to the Commissioners was his idea;

that he believed he was doing nothing wrong and that

Wilson was innocent (TR 1-B, pgs. 145, 146, 149; 1-C

pgs. 193, 211, 342-346, 362). The Attorney General had

known of Mizera’s migraine headaches, his extensive

and addictive use of medication and his need for money

to cure his condition since April 20, 1972 (TR 1-E, pg.

413). See also TR 1-C, pg. 333 relating to Mizera’s use

of drugs.

— 1%

The hearing on the zoning change was set for May 22,

1972. Wilson came to Las Vegas on May 22, 1972. At that

time, Mizera was fitted with a recording device to obtain

statements from Wilson. The knowledge of his arrival

is set forth in a tape of May 15, 1972, a transcript of which

was admitted for the purposes of the Alderman hearing

on November 25, 1974. (TR 1-J, pgs. 14, 30-43) (Wilson

Exhibit B).

The Attorney General’s Office advised Broadbent to

vote for the zoning change, if the approval did not seem

imminent of passing. (TR 1-E, pgs. 528, 529; 1-F, pgs.

5, 6). The Zone Change Meeting was held on May 22,

1972 and was approved on a 3 to 2 vote, with Commis-

sioners Ryan, Levitt and Weisner voting for the change

and Brennan and Broadbent against the change. Com-

missioner Weisner believed that he had been misled by

Commissioner Broadbent. (TR 1-F, pg. 17).

Immediately following the meeting, Mizera, acting on

the instructions of the Attorney General’s Office, sought

to pass moneys to Ryan who, when arrested an instant

after Mizera had handed him some $6,000, which Wilson

had obtained from a check he cashed in Los Angeles,

promptly called Attorney Morris, who came to Ryan’s

house to consult with him on the matter. (TR 1-H, pgs.

18 and 19).

On May 24, 1972, a criminal complaint for bribery was

filed against the Defendant Ryan in Clark County, Ne-

vada, on May 24, 1972. Before the preliminary examina-

tion, the matter was taken before the Clark County Grand

Jury, which, on June 15, 1972, returned a No True Bill

Report. On July 25, 1972, a preliminary hearing was had

before a Magistrate on an information filed by the Nevada

Attorney General against Ryan which was dismissed for

lack of probable cause. (TR 1-A, pgs. 812-813). The Ne-

vada Attorney General filed an information against Ryan

on August 8, 1972, which was held by the Nevada Supreme

Court to be invalid (TR 1-A, pgs. 11, 14, Ryan v. Eighth

on tities

Judicial District, 503 P.2d 842). Defendants’ Exhibits A,

B and C, October 25, 1973 (hearing TR 1-A). The Nevada

Attorney General, at the time of the filing of the proceed-

ings against Ryan, had information about all of Wilson’s

activities and it was the Attorney General’s intention to

proceed just against Ryan and then against Wilson. (TR

1-A, pg. 32). The Nevada Attorney General believed that

he could refer the matter to the Clark County District

Attorney and that the District Court could allow the

District Attorney to file an information. (TR 1-A, pg. 18).

He told the United States Attorney that it was an impor-

tant case to the people of Clark County, Nevada. (TR 1-A,

pg. 34). The District Attorney of Clark County was not

requested to proceed against any Defendants herein even

though the Attorney General had conferred with him im-

mediately after the dismissal of the information filed

against Ryan. (TR 1-A, pgs. 38, 39). The Attorney Gen-

eral did not lack confidence in the Clark County District

Attorney (TR 1-A, pg. 75). The assistance of the United

States Government was not sought until the Nevada At-

torney General was in a position where the State could no

longer proceed against the Defendant Ryan, because too

much time had run from the dismissal by the Magistrate

of the Complaint. It was at the initiation and sugges-

tion of the Nevada Attorney General that the United

States Attorney first became interested in the case, even

though he knew of its existence and quite a bit about the

case from May 23rd 1972 (TR 1-A, pgs. 98-99). The

United States Attorney, who was newly appointed, had

determined that, as long as the matter was in the State

Courts, that is where it belonged unless there are compel-

ling reasons for it to be in Federal Court. (TR 1-A, pgs.

18, 19, 31, 94-96). In fact the Nevada Attorney General

telephoned the United States Attorney, told him he would

like to talk to him and the United States Attorney then

came to the office of the Attorney General to discuss the

matter (TR 1-A, pg. 20). On January 19, 1973, the United

—=— =

States Attorney asked the Special Agent in charge of the

Las Vegas F.B.I. to make an investigation. On Janu-

ary 25, 1973, an agent was assigned and commenced the

investigation in the present case (TR 1-A, pgs. 81, 82)

which the U.S. Attorney believed to be an isolated case of

bribery (TR 1-A, pg. 111). The District Court, on Octo-

ber 25 and 26, 1973, had a hearing on the true question of

jurisdiction and determined that the question was a close

one (TR 1-A, p. 202).

In the course of the trial, Wilson offered the following

jury instructions which the trial court refused to give:

WILSON INSTRUCTION W-D

“IF YOU FIND THAT THE PARTICIPATION OF

THE OFFICERS AND AGENTS OF THE STATE

GOVERNMENT, IN THE CREATION AND PRO-

MOTION OF THE CRIMES CHARGED IN THE

INDICTMENT, WAS, TO THE EXTENT THAT

IT CONSTITUTED CREATIVE ACTIVITY ON

THE PART OF THE OFFICERS AND AGENTS

OF THE STATE OF NEVADA, THEN YOU MUST

FIND THE DEFENDANTS NOT GUILTY.” The

instruction bore the notation that it was derived from

Greene v. U.S. (9th Cir. 1971) 454 F.2d 783.

WILSON INSTRUCTION W-E

“Canon 5 of the Code of Professional Responsibility

and Canons of Judicial Ethics of the American Bar

Association, and of the Nevada State Bar Association,

states as follows:

“THE PROFESSIONAL JUDGMENT OF A LAW-

YER SHOULD BE EXERCISED, WITHIN THE

BOUNDS OF THE LAW, SOLELY FOR THE

BENEFIT OF HIS CLIENT AND FREE OF COM-

PROMISING INFLUENCES AND LOYALTIES.

_— we

NEITHER HIS PERSONAL INTERESTS, THE

INTERESTS OF OTHER CLIENTS, NOR THE

DESIRES OF THIRD PERSONS, SHOULD BE

PERMITTED TO DILUTE HIS LOYALTY TO HIS

CLIENT.”

WILSON INSTRUCTION W-F

“THE FUNCTION OF LAW ENFORCEMENT IS

THE PREVENTION OF CRIME AND THE APPRE-

HENSION OF CRIMINALS. THIS FUNCTION

DOES NOT INCLUDE THE MANUFACTURING

OF CRIME.

“IF YOU FIND FROM THE EVIDENCE IN THIS

CASE THAT THE CRIMES CHARGED IN THE

INDICTMENT IN THIS MATTER WERE, IN

FACT, COMMITTED, BUT THE EVIDENCE IN

THE CASE LEAVES YOU WITH A REASON-

ABLE DOUBT WHETHER THE DEFENDANTS,

OR ANY OF THEM, HAD THE PREVIOUS IN-

TENT OR PURPOSE TO COMMIT ANY OFFENSE

OF THE CHARACTER HERE CHARGED, AND

DID SO ONLY BECAUSE HE WAS INDUCED

OR PERSUADED BY SOME OFFICIAL, OR

AGENT, OF THE STATE OF NEVADA, THEN

IT IS YOUR DUTY TO ACQUIT HIM.

“FOR PURPOSES OF THIS INSTRUCTION,

ROBERT BROADBENT WAS AN AGENT OF THE

GOVERNMENT FROM APRIL 20, 1972 TO MAY

23, 1972, AND MIRO MIZERA WAS AN AGENT

OF THE STATE OF NEVADA FROM MAY 19,

1972 TO MAY 23, 1972.” This intruction bore the

notation that it was derived from Sherman v. US.

(1958) 356 U.S. 369 and from Devitt & Blackmar

Section 13.13.

_ =

WILSON INSTRUCTION W-G

“WHEN THE GOVERNMENT BECOMES EN-

MESHED IN CRIMINAL ACTIVITY, THE SAME

UNDERLYING OBJECTIONS AS THOSE CON-

CERNED WITH ENTRAPMENT ARE OPERA-

TIVE. SHOULD YOU DETERMINE THAT, IN

THE CIRCUMSTANCES OF THIS CASE, THE

GOVERNMENT’S ACTIVITY, THROUGH ITS

AGENT, OR AGENTS, HELPED TO INITIATE

THE CONDUCT WHICH IS THE SUBJECT OF

THIS ACTION, THE GOVERNMENT MUST

PROVE BEYOND A REASONABLE DOUBT

THAT ITS ACTIONS WERE NOT THE INDUCE-

MENT OF THE CRIMES ALLEGED AND, UN-

LESS THE GOVERNMENT DOES SO, YOU MUST

ACQUIT THE DEFENDANTS.” This instruction

again referred to Greene v. U.S., supra, as its source.

The instructions are discussed briefly by the Court of

Appeals, in its Opinion, on the theory that Wilson had

not objected, as required by Rule 30 of the Federal Rules

of Criminal Procedure, and even if he had, his proposed

instructions were contrary to the clear holding of United

States v. Russell, (1973) 411 U.S. 423 as involving the

objective standard. The transcript of the proceedings

in the District Court, however, in 1-I, p. 3, discloses

that at 5:25 o’clock P.M. on March 20, 1974, the Court

said: “Let’s go on the record. We’ve been here since

early afternoon with Counsel settlings instructions that

we’ve discussed.” In Chambers, the Court had denied

the instructions relating to entrapment (TR 1-I, pg.

849) on the basis of its understanding that the law in

the Ninth Circuit required admission of the crime, unless

denied commission of a crime and, therefore, he was not

entitled to entrapment instructions. It was stipulated,

at the Court's request, that after the Court’s instructions

to the jury and Counsel are called to side bar, that there

—

could be incorporated into the record the settlement of

instructions which had been discussed in Chambers, in

lieu of doing it again following the Court’s instructions

to the jury and before the jury retires. (TR 1-l, pg. 10).

The Court, after instructing the jury on March 22, 1974,

then called Counsel to the side bar (TR 1-I, pg. 59) and

the Stipulation desired by the Court was entered into.

The Court stated that it had given all the instructions

it had indicated it would give when they were settled

in Chambers, and so it had refused to give certain in-

structions that were proposed then “and I think were

made of record, hoping to save time.” (TR 1-I, pg. 61).

Thereupon Counsel for Wilson stated, in response to

the Judge’s request, that he had no objections to the

instructions, save those that were made in Chambers

and that he would stipulate that these were made in

open Court.

The utilization of such informal proceedings, with-

out recordation of the discussion, has long been the

custom in Nevada and, in fact, an entrapment instruc-

tion had not been given by the Court because it was

of the belief that the Ninth Circuit really required the

admission of a criminal act, including the confession to

criminal intent, in order to give an entrapment instruc-

tion. It is clear from the oral statements relating to

his refusal to give the entrapment instruction that the

Court was of this opinion. (TR 1-I, pg. 8, lines 19 to 25;

pg. 9, lines 1 to 19). However, while the Brief stood sub-

mitted, the Ninth Circuit, in the case of United States

of America v. Demma (9th Cir. 1975) 523 F.2d 981, ex-

pressly overruled Eastman v. United States, (9th Cir.

1954) 212 F.2d 320, 322 and its progeny, on the ground

that the Eastman Rule, by conceding the crime charged,

as well as the constituent acts thereof, conflicted with the

eases of Sorrells v. United States, 287 U.S. 435; Sherman

v. United States, 356 U.S. 369 (1958) and United States

v. Russell, supra. The Decision was pointed out to the

—=_ =

Court of Appeals, but no discussion appears in the Opin-

ion relating to the impact of the failure to give the

instruction based upon Eastman v. United States, supra.

The Cireuit Court also, in discussion the due process

question, Appx. A-8-13, believed that the activities of the

Nevada Attorney General, in the manner of treatment

of Mizera, did not violate the due process rights of the

Petitioner. It did aot discuss at all, however, the activi-

ties relating to the removal of William Morris, merely

dismissing it on the ground that Broadbent was acting

independently and was not acting as a State Agent.

Appx. A-14. The Court did not, in any manner, discuss

Ryan’s activities in taking the money at Morris’ instruc-

tion and all of Morris’ reasons for leaving the case and

concealing from his client the true reason for his leaving,

and concludes, Appx. A-10, that Hampton v. United

States, (1976) 425 U.S. 484 in some manner, indicates

that the type of State activity in this case is approved

of by the Supreme Court, under the holding of United

States v. Russell, supra. In short, there is no analysis of

the false statements and threatening acts utilized by

both Broadbent and other agents of the Attorney Gen-

eral which were aimed at the defendant Ryan but which

led to Wilson becoming a defendant. The jury could

have also concluded that Mizera was under the control

of the Attorney General from April 22, 1972 and the

activities of Broadbent as to him when combined with

the other actions involving Morris constituted creative

activity against someone not predisposed to commit a

crime.

REASONS FOR GRANTING THE WRIT

The issue in this case is of fundamental importance to

the manner in which the Government may conduct legiti-

mate investigations of alleged criminal activity, not in-

volving contraband. The Decision in the District Court

that the defense of entrapment requires the admission

— 20 —

of the state of mind necessary to constitute the crime

charged, as well as the constituent acts, is in direct con-

flict with Sorrells v. United States, supra, and specifically

in conflict with the burden which the Government bears

by relieving the Government of the necessity of proving

that the acts of the Nevada Attorney General were non-

entrapment. It conflicts with the Rule set forth in United

States of America v. Demma, supra, as well as the Rule

set forth in other Cireuits where the evidence, from

which entrapment could be adduced, has been placed in

the record as a part of the Government’s case in chief

Scars v. United States (CA 5th 1965) 348 F.2d 139, 143;

Henderson v. United States (CA 5th 1956) 237 F.2d 169,

175 [involving State Officers]. It flies in the face of the

rationale of the doctrine of entrapment to the effect that

Statutes should not be enforced by tempting innocent

persons into violations, Sherman v. United States, supra,

372, and it is, thus, that the predisposition and criminal

design of the Defendant must be determined as set forth

in Russell.

The Court of Appeals ignores entirely the due process

clauses of the Fifth and Fourteenth Amendments, as well

as the inherent necessity as enunciated by a majority of

this Court in Hampton v. United States, supra, requiring

that the Court, in its analysis not only examine into pre-

disposition, but also consider whether fundamental fair-

ness bars a conviction. Justice Powell quoted from

Sherman v. United States, supra, at page 381 and United

States v. Archer (2d Cir. 1973), 486 F.2d 670 to the effect

that there is a responsibility in the Courts of keeping the

dangers of overzealous law enforcement in check, and that

the records are replete with examples of situations in

which the Court will enforce the concept that due process

means fundamental fairness and will overrule the Court

where such fairness has been denied to an accused.

—_ =

To put it another way, it appears that one of the bases

for the summary dismissal of the petitioner’s argument

relating to the conduct of the Attorney, William Morris,

is predicated upon the assumption that he was part of

the plot in that he was contacted by Mizera and advised

of the scheme. (Appx., pg. A-3). There is no place, at

any point in the transcript, where it is pointed out that

the presumption of the engagement of an Attorney is

that he will perform his duties in an illegal manner, nor

do the facts, in any way, support such a conclusion of

the Ninth Circuit. Counsel would not urge the removal

of Morris as one of the grounds for this Petition if there

existed any evidence whatsoever that Mizera had in-

formed Morris of any bribery scheme. In fact, it is

obvious that the fee for the Attorney involved is more

than the amount alleged to be paid to Ryan. Therefore, it

must be presumed that Wilson intended to obtain rezoning

in a lawful manner, until the State caused his Attorney to

be removed and to conceal from his client the facts of the

ease. To refuse to instruct a jury as to the duties of an

Attorney, is to indict the entire legal profession and the

reason for its being. This is particularly true when one

looks at the involvement of that Attorney with the Defen-

dant Ryan, and with the State’s Agent Broadbent, and the

critical period of time when he was removed from the case,

as well as the substantial amount of money paid and to be

paid by the Defendant Wilson to Morris to perform his

services. A jury could have considered, under an en-

trapment instruction, whether the removal of an At-

torney representing a defendant with an unblemished

record made it possible for Mizera, acting under the

control of the same agent of the State who caused the

attorney’s removal, to induce Wilson to undertake the

acts which violated the Travel Act. However, says the

Court of Appeals, Appx. A-14, Broadbent was acting

privately even though it concedes on April 24, 1972, he

= =

was a government informer. Appx. A-3. The govern-

ment may not make use of an informer and then claim

disassociation through ignorance. Sherman v. U.S. supra,

375; cf. Johnson v. United States (D.C. Cir. 1963) 317

F.2d 127, 128-130. In any event, it is submitted that, if

the Court did not agree with the form of entrapment in-

structions proposed by Defendant Wilson. In this regard,

it appears that proposed Instruction F would require the

jury to determine predisposition and inducement, and

that Instructions D and G were but a shorthanded Rule

of Hampton, supra, and could have been utilized for the

inducement aspect all entrapment cases, then the Court

should have, on its own motion, given an appropriate in-

struction. This appears to be the Rule in the Fifth Circuit.

United States v. Kirk (5th Cir. March 19, 1976), 528 F.2d

1057, 1062, 1063, United States v. Young (Sth Cir. 1972),

464 F.2d 160, 164, and see the Rule in California at the

State level, People v. Grantham, (1972) 26 C.A.3d 661,

665; 103 Cal. Rptr. 262 based upon People v. Perez,

(1965), 62 C2d 769, 775-776 ; 401 P2d 934, enunciating the

Rule now adopted in the Ninth Circuit, that a defendant

may properly contend unlawful Police conduct amounting

to entrapment, without conceding that he must also show

his guilt. In short, the Court of Appeals is ignoring

its ruling in United States of America v. Demma, supra,

and which sought to bring the Ninth Circuit in line with

the cases of Sorrells, Sherman and Russell, supra. In

requiring an admission of the crime, clearly the court

would be violating Wilson’s Fifth Amendment rights

and his right to the equal protection of the laws. U.S. v.

Demma, supra. See also Groot, “The Serpent Beguiled

Me and I (Without Scienter) Did Eat — Denial of Crime

and the Entrapment Defense,” 1973 U. Ill. L. F. 254.

The Court of Appeals in refusing to consider the in-

structions offered by Wilson’s attorney has simply ig-

nored the purpose of Rule 30, Fed. R. Crim. P.: (1) to

— 23 —

give the Trial Court fair opportunity to correct any

mistakes in its proposed jury instructions, U.S. v. Martin,

(8th Cir. 1975), 511 F.2d 148, 150, and (2) to require

the Judge to inform the Trial Lawyers in a fair way

what the charge is going to be, so that they can intelli-

gently argue the case to the jury. Wright v. U.S. (9th

Cir. 1964), 339 F.2d 578, 580. Counsel had spent at least

one-half of a Court day settling instructions. John

Bartlett had clearly set forth his reasons and the Court

had relied on the Ninth Cireuit Rule requiring admis-

sion of the crime, which was later charged. What pur-

pose would be served by further objection, in light of

the Nevada procedure? Certainly, the cases construing

the Civil counterpart of Rule 30, 28 U.S.C.A. 51 do not

require more. If it was error to not give the proffered

instruction, then the error cannot be disregarded as

not affecting Appellant’s substantial rights, in light of

the facts which existed relating to the acts of the Gov-

ernment, and Rule 52 (b) of Title 18 U.S.C.A. should

come into effect, since the trial became unfair when the

jury could not determine if Wilson was entrapped. cf.

Carson v. U.S., (9th Cir. 1962) 310 F.2d 558, 560, 561 and

U.S. v. Sherman, (2d Cir. 1952), 200 F.2d 880, 883 (no

exception by Defendant).

The type of activity of the Nevada Attorney General,

which occurred in this case, if condoned, will simply be

an encouragement for the performance of police work

which should not, under any circumstances, be sanc-

tioned, where it tends to rip the fabric of our System

of law and order, and where it smacks of the utilization

of the third degree. In short, the means used by the

Government to “make” this case are essentially revolting

to an orderly Society and ought not to be countenanced

by this Court. Greene v. United States, (9th Cir. 1971),

454 F.2d 783, 787 (where the Government’s activities have

risen to the level of creative activity) and the concurring

—

alti

Opinion of the Chief judge of the Fifth Circuit in Wil-

liamson v. United States (1962), 311 F.2d 441, 445. Thus,

even if the Court believes that there was no issue of fact

on predisposition or inducement, it is submitted that

this is the case described in Russell v. United States,

supra, that the conduct of law enforcement agents is so

outrageous that the Government is not allowed to obtain

a conviction. See also United States v. Archer, supra,

676-677. In short, is the use of the third degree against

a man’s agent, in order to get him to carry forward a

crime, and the prior removal of a man’s attorney, who

would perform a function in a lawful manner, any less

unthinkable than permitting the Government’s agents

to instigate robberies and beatings merely to convict

other members of a gang of hoodlums? Were not all

restraints removed which prevented commission of

bribery when Wilson’s Lawyer was removed, who pre-

sumably would lawfully obtain a zoning change? If,

as the Court of Appeals stated, Mizera had no place to

go, was it necessary to threaten him and coerce him by

stating that, in prison, he would not be able to get his

headaches treated and he would not be able to see his

boy and by virtually imprisoning him?

By refusing to give Instruction “E”, the Court left

the jury without any guidelines as to whether or not

Morris left because his client was participating in a

crime. The jury could certainly have inferred this to

have been the case without a proper instruction, although

there is no reference in the record to justify this con-

clusion. Trial Counsel was left in the position of not

being able to argue and protect the rights of Wilson to

the effect that Wilson was dealing with a licensed Nevada

real estate agent and a Nevada licensed attorney, and

was trying to get a zoning change and there was no need

for him to participate in any improper activity. Should

not Morris have been in a position that should have re-

quired him to disclose to his client that Mizera was being

=

investigated for criminal activities, and that he, Morris,

was advising the Commissioners including Ryan of the

activities of this man?

The Supreme Court has been greatly concerned with

the proliferation of criminal proceedings at the Federal

level. If, under the facts of this case, the Federal Gov-

ernment may prosecute a resident of the State of Califor-

nia, admittedly not a member of organized crime, then it

seems that the recent rulings of this Court, and recently

adopted Rules relating to the filing of Petitions for

Habeas Corpus, are meaningless.

However, the ruling of the Court of Appeals is also

contrary to Rewis v. United States, supra and conflicts

with the cases in other Circuits, such as United States

v. Archer, supra, United States v. Isaacs (7th Cir. 1974),

493 F.2d 1124, 1146, 1147 to the effect that, where the

use of Interstate facilities was minimal, and incidental

and peripheral to the activities of the defendants, it

was error to submit to the jury a charge of Travel

Act violation. In U.S. v. Isaacs, supra, which involved

bribery of a state official, three checks were taken, either

by truck, or by air express, into the States of Missouri

and Illinois. The Court reviewed United States v. Alto-

bella (7th Cir. 1971) 442 F.2d 310 involving extortion.

Altobella had concluded that, although the Travel Act

could be read to cover the case of a victim who gave a

check which cleared through a Chicago Bank and was

forwarded to Philadelphia, more than such minimal inter-

state activity incidental to the alleged criminal activity

was contemplated by Congress before federal interven-

tion would be warranted. In Jsaacs the court further

concluded that the incidental use of a federally regulated

banking facility does not furnish the jurisdictional ele-

ment of a Travel Act offense. In short, in light of

Rewis, sensitive Federal-State relationships are being

altered, if, under the facts of this case, Travel Act viola-

ontiiun

tions are prosecuted by the Federal Government. None

of the Interstate contacts were necessary to, or directly

connected with, the commission of the crime. Had Wilson

been a resident of Nevada, clearly the only prosecution

which would have been allowed by the Federal Courts

would have been in the State Courts. The sole reason for

the prosecution was that the Attorney General for the

State of Nevada so badly handled the matter in the State

Courts, that the State could no longer proceed against the

the Defendant Ryan. Up to the time of the Federal in-

dictment, neither Zeldin nor Wilson had any charges filed

against them. Yet if one examines the Nevada statute re

offering a bribe and listens to Broadbent’s version of what

transpired, Mizera was guilty on April 24, 1972. Why not

arrest him and bring charges against Wilson at that

point? Why seek to expand the crime into a violation

of a Federal statute? The Nevada Attorney General

believed he had an adequate basis for proceeding against

these gentlemen, but he neither advised the Local District

Attorney to prosecute any of the defendants herein and

the essential Statute was clearly a Local Statute, under

which a prosecution could have been brought. In truth,

is this any different from the situation in United States

v. Brouillette, (5th Cir. 1973) 478 F.2d 1171, another

Travel Act case where the evidence did not contain suf-

ficient probable cause that a Federal crime had been

committed, and the supporting Affidavit for Search War-

rant had absolutely no factual basis that the channels

of Interstate Commerce were being used contrary to

Federal law? In other words, if, in this case, the District

Court is affirmed, contrary to the Rule in other Circuits,

Federal Agents will be permitted to search for State

statutory violations and then try to turn them into Fed-

eral violations. It would open up more new areas for

Federal prosecution and again lead to searches, where

Federal agents know that only a State crime was being

committed, but that a search would turn up enough

evidence for a Federal crime.

— =

The provisions of Title 18 §§ 2511(c) (d) and Section

2515 make inadmissible the tapes obtained by Mizera and

his refreshed recollection of taped conversations after

May 19, 1972, if Mizera became an involuntary agent of

the State on and after that date. See U.S. v. Franks

(6th Cir. 1975) 511 F.2d 25.

Furthermore, any recordings or information not ob-

tained in compliance with §§ 2516 and 2518 of Title 18

are inadmissible. Alderman v. U.S. (1969) 394 U.S. 165,

89 S.Ct. 961, 22 L. Ed. 2d 176; U.S. v. Giordano (1974)

416 U.S. 505, 94 S.Ct. 1820, 40 L. Ed. 2d 341. Clearly

the statute was not complied with in order to obtain the

original Mizera transcriptions from which the Attorney

General learned that Wilson would be at the Desert Inn

on May 21. Wilson’s Exhibits A, B, and C (TR 1-J, pgs.

14 and 115). Judge Hufstedler describes the various acts

which made Mizera’s consent involuntary and coerced

in his dissent. Appx. A-15, 16. As set forth in the State-

ment of Facts, Mizera’s physical and economic condition

made him susceptible to all of the pressures applied to

him. However, before May 19 he had, at the Attor” ey Gen-

eral’s direction, been softened by Mr. Broadbent’s acts.

Before that time, he had been led into the position which

served as the basis for the threats relating to imprison-

ment by the actions of the agents of the State.

The majority, Appx. A-10, concedes that the Govern-

ment’s treatment of Mizera was not exemplary and lacked

restraint but reasons that it was not so grossly shocking

and outrageous as to violate the universal sense of jus-

tice, because, although he was unadvised by counsel, he

had no practical alternative but to cooperate, since in

hindsight he was guilty in any event. While one might

be persuaded reasonably to cooperate, it is respectfully

suggested that the activities utilized by Attorney General

were those of the Police State and should not be per-

mitted by this court. The five factors summarized by the

— 28 —

court Appx. A-9, 10 do not include Mizera’s virtual arrest

and custody and the statement relating to his boy nor

his physical and mental history which was obviously that

of an unwell man. The authorities set forth in the dis-

sent from the refusal to grant an en banc hearing simply

demonstrate that actions such as those utilized against

Mizera will uvt be tolerated and that his consent was

coerced. Therefore, without regard to the arguments

relating to the failure to give entrapment instructions,

the petitioner’s due process rights have been violated

in the admission of the post May 19, 1972 tapes.

CONCLUSION

Wilson has, at a minimum, been denied from having a

jury weigh the question of whether he had a criminal

predisposition and had been entrapped. The Ninth Circuit

Court should not be permitted to expand crimes, which

can be adequately prosecuted under Local Statutes, into

Federal crimes. This Court should not countenance, by

affirming the Judgment, the creative criminal activities

of the Local Law Enforcement Officers based upon the

deliberate removal from a client of his lawyer, who was

performing his function in a legitimate and lawful

fashion. However, it is respectfully urged to this Court

that the conduct of the Nevada Officials utilized in the

prosecution of the Travel Act violations established en-

trapment as a matter of law in the manner of Sherman v.

United States, supra. Furthermore, as stated by Justice

Frankfurter in his concurring opinion in Sherman v.

United States, supra 384,

“.. The power of Government is abused and directed

to an end for which it was not constituted when em-

ployed to promote, rather than detect, crime and to

bring about the downfall of those who, left to them-

selves, might well have obeyed the law. Human nature

is weak enough and sufficiently beset by temptations

— =

without government adding to them and generating

crime.”

In short, the only way it can be said that the actions of

the State Officials do not constitute entrapment, in re-

moving Wilson’s lawyer, and in causing him to conceal

from his client what was going on and in urging Ryan

to take the moneys proffered by Mizera, and in using the

obviously unstable and ill real estate agent to solicit

Ryan, is to assume that the Member of the State Bar of

Nevada hired by Wilson was, himself, participating in

the crime from the moment he was hired and that Broad-

bent was not an agent of the State. There is absolutely

no evidence in the record which would justify such as-

sumption. For these reasons alone, the Writ of Certiorari

should be granted.

Dated: December 27, 1976

Vareas, Bartietr & Dixon

By JOHN C. BARTLETT

John C. Bartlett

Baker, ANCEL anD RepMonp

By MARK G. ANCEL

Mark G. Ancel

Attorneys for Petitioner

=

a ates

—

Revised: Nov. 30, 1976

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Untrep States or AMERICA, )

Plaintiff-Appellee,

vs. No. 75-1317

James G. Ryan,

Defendant-Appellant.

Unrrep Srates oF AMERICA,

P. laintiff-A ppellee,

= » No. 75-1314

ADRIAN WILSON,

Defendant-Appellant.

Untrep States or AMERICA,

Plaintiff-Appellee,

vs.

No. 75-1313

BERNARD ZELDIN,

Defendant-Appellant. 7 OPINION

(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 Zeidin 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.

APPENDIX A

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2 United States of America vs.

§ 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 sur-

veillance and the general conduct of the government in investigat-

ing and prosecuting this case. In connection with this last issue,

appellants Zeldin and Wilson also argue that the government inten-

tionally interfered with their attorney-client privilege. In addition,

appellant Ryan alleges that the evidence was insufficient to

support the verdict against him as a coconspirator, appellant

Wilson argues that the trial judge erred in refusing certain

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

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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James G. Ryan, et al. 3

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 Commissioners

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 telephone the state Attorney General

and informed him that he thought Mizera had offered a bribe

in exchange for his vote. Broadbent then agreed to cooperate 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, Morris, to inquire about

the possibility of representing Wilson at the hearing. Exactly

what terms were discussed between Morris and Mizera is subject

to disputes but it appears that Morris was informed of the

bribery scheme. In any event, a retainer agreement between

Morris and W uson was consummated. Mizera then told Broadbent

that Morris would be representing Wilson in the forthcoming

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.

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4 United States of America vs.

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

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 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 conversa-

tions were recorded. The tactics of the government in obtaining

Mizera’s cooperation give rise to another important issue in this

appeal.

The bribery scheme was discussed and recorded in a conversa-

tion 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 commissioners

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 transmitting

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.

James G. Ryan, et al. 5

I.

The first count of the indictment charged all appellants with

conspiring to violate the Travel Act, 18 U.S.C. §1952,1 the

second with violating the Travel Act and aiding and abetting

therein, pursuant to 18 U.S.C. § 2.2 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

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

jurisdictional question, our primary focus is upon the scheme as

a whole.

118 U.S.C. ¢ 1952 states:

“(a) Whoever travels in interstate or foreign commerce or uses

any 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 ac-

tivity; 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), and (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 S.ate 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 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.

“(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.”

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Appellants urge that the offenses committed here were matters

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 individuals

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 Rewts 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, rejecting 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 interstate

commerce to discuss the rezoning with Wilson in California.

8United States v. Chambers, 382 F.2d 910 (6th Cir. 1967); United

States v. Barrow, 363 F.2d 62 (3d 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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James G. Ryan, et al. 7

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 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

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 electronic

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 telephones in those

places. Many conversations were recorded under this order

between May 5th and May 19th, but only those involving

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

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

for electronic surveillance and no prior judicial authorization is

required. Holmes v. Burr, 485 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 (except

those which also involved Broadbent) were introduced at trial.

Pursuant to the command of Alderman v. United States, 394

‘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. 199%); 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.

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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,” Alderman,

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

government had an independent source, Broadbent, for all infor-

mation 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. Therefore,

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 hearing 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 U.S. 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.

ITI.

Appellants’ arguments are also di» cted at the manner in

which the government enlisted Mizera as a government informant.

They claim that their due process rights have ben 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

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James G. Ryun, et al. 9

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 defendant,

but on ‘whether the police conduct revealed in the particular

ease 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 opinion in

Russell very clearly excludes use of the “objective approach”

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 govern-

ment’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

him. Thereafter, it is undisputed that this “conversation” in-

eluded 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.

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10 United States of America vs.

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 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 “subjective,”

Russell sense. “It is only when the government’s deception actu-

ally implants the criminal design in the mind of the defendant

that the defense of entrapment comes into play” Russell teaches,

411 U.S. at 436.5 Here, the government enlisted Mizera’s co-

operation when the conspiracy was in a very advanced 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 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 4 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 Russell’s clear holding.

They were thus properly rejected.

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James G. Ryan, et al. 11

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 hed 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

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 knowl-

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

cooperation, in which event he could avoid prosecution, the peni-

tentiary, 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 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

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12 United States of America vs.

consented to cooperate.’

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 punishment. For

outlined some of the disadvantages 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

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.

“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 investi-

gation ”

™Considering the circumstances as a whole, the tone, approach

and statements of the agents, the rapidity with which Mizera con-

sented, the active and willing cooperation Mizera demonstrated im-

mediately after agreeing to assist the investigation, and Mizera’s

own testimony that he cooperated and voluntarily began that co-

operation, this Court finds that Mizera’s initial consent was ‘voluntary’

and valid.”

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James G. Ryan, et al. 13

others, apprehension and charge, both threatening acts by

the Government, jar them into admitting their guilt. In

still other cases, the post-indictment accumulation of evi-

dence may convince the defendant and his counsel that a

trial is not worth the agony and expense to the defendant

and his family. All these pleas of guilty are valid in spite

of the State’s responsibility for some of the factors moti-

vating the pleas; the pleas are no more improperly com-

pelled 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. Bustamonic, 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 evidence

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

was clearly erroneous. We, therefore, hold that all wiretap and

electronic surveillance evidence derived from Mizera’s conversa-

tions after May 19 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 process

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

approached 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, how-

ever, 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 never 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 Wilson-Zeldin partnership, individually, or on some other

basis.

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14 United States of America vs.

In any event, all the evidence indicates that Broadbent was

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

in urging Morris to remove himself from the case. There is

absolutely no evidence that Broadbent consulted with state agents

before approaching Morris or that the state was in any manner

involved in this contract. 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 verdict.

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 Mizera had

dropped his original proposal. In April of 1972, Ryan did repudi-

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

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James G. Ryan, et al. 15

up to May 17th, the conspiracy almost certainly would have

dissolved.

This court has repeatedly held that once a conspiracy is

established, as it was here abundantly, only slight evidence is

necessary 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.2d 1154, 1157 (9th

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

of the existence of a conspiracy or mere association with a

conspirator is insufficient to sustain a conviction. United States v.

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

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

States v. Cianchetti, 315 F.2d 584, 588 (2d Cir. 1963). We find

the evidence linking Ryan to this conspiracy considerably 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.

A request for en bane consideration having been made by an

active member of the court, and the matter submitted to all of

the active judges, the request was rejected by a majority thereof.

An order was thereupon entered denying en bane consideration.

Judge Hufstedler files the following dissent from that order, in

which Judge Ely joins.

HUFSTEDLER, Circuit Judge, dissenting from cote of en banc

hearing with whom Judge Ely joins:

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

consent was involuntary, the conversations between him and

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

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

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

1E.g., see Hoimes v. Burr (9th Cir. 1873) 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.

The district court’s factual findings are, of course, subject to the

cleariy erroneous standard of review. However, the district court’s

ultimate conclusion that the consent was voluntary rests on a legal deter-

4’

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16 United States of America vs.

him that they were prepared to arrest him immediately and that

they had enough evidence to send him to prison for ten years.

But, they suggested, if Mizera “cooperated,” the prosecution

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 head-

aches. 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 im-

proper 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 declaration if

any degree of influence 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 directed.” (Schneck-

loth v. Bustamonte (1973) 412 U.S. 218, 228.)

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

Under either formulation of the standard of appellate review, the

district court’s conclusion of voluntariness is unsupported and is reversible

error.

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James G. Ryan, et al. 17

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 receive

vital medical treatment, of unauthorized promises of immunity,

and of the deprivation of counsel. The methods were 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 produced

by these pressures was voluntary, is flatly contrary to the con-

trolling teachings of the Supreme Court and to the law of our

Cireuit. (£.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 “coop-

erated,” 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 teaching of our

eases.” (372 U.S. at 534).) Shotwell Mfg. Co. v. United States

(1963) 371 U.S. 341 (Evidence procured under promise of im-

munity “can no more be regarded as the product of a free act

of the accused than that obtained by official physical or psycho-

logical 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; United States v. Laughlin (D. D.C. 1963) 222 F.

Supp. 264; and McGarrity v. Wilson (9th Cir. 1966) 368 F.2d

677, 679 (“Incriminating statements or a confession, extorted by

mental coercion are as involuntary as if they were obtained by

violence or threats of violence.’’).)%

3“*The human mind under the pressure of calamity, is easily seduced;

and is liable, in the alarm of danger, to acknowledge indiscriminately

a falsehood or a truth, as different agitations may prevail. A confession,

therefore, whether made upon an official examination or in discourse with

private persons, which is obtained from a defendant, either by the flat-

tery 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 Le made the deluded instrument of his owh con-

viction.’” (Bram v. United States (1897) 168 U.S. at 547.)

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18 United States of America vs.

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 govern-

ment, Bumper v. North Carolina, supra, 391 U.S. 543 ..., or

under inherently coercive pressure and the colo. of the badge,

Johnson v. United States, supra, 333 U.S. 10; United 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 81, 84.)

The district court attempted to justify its conclusion that

Mizera’s consent was voluntary by suggesting that “voluntariness”

takes on a different meaning in the context of coerced con-

fessions than it does in the context of consent to participation

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 present

case, it said that it would have “great concern” if the case in-

volved 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 v. Rothman, supra, 492 F.2d 1260.)

The panel's effort to justify its conclusion is similarly unsuc-

cessful. 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 defend-

ant “to face up to the real world in order to obtain his coopera-

tion;” that pressure is entirely appropriate, it adds, on analogy

to pleas of guilty, quoting Brady v. United States (1969) 397

U.S. 742, 750.

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 enforce-

ment personnel the right to decide guilt or innocence, nor does

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James G. Ryan, et al. 19

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 officers threatened prosecution and con-

viction, his guilt would be irrelevant in deciding the coercion

issue.* Coercion is not acceptable whether it is applied to persons

who are ultimately found guilty or to those who are ultimately

found innocent. Coercion is forbidden both because it is un-

acceptable 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 becomes abundantly

clear that we can never acquiesce in a principle that condones

lawlessness by law enforcers in-the name of a just end.” (United

States v. Huss (2d Cir. 1973) 482 F.2d 38, 52.)

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 *o be

accepted only with care and discernment has long ben 1 .cog-

nized. Central to the plea and the foundation for entering judg-

ment against the defendant is the defendant’s admission in open

court that he committed the acts charged in the indictment.”

(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 invalid.

[Citations omitted.]”’ (397 U.S. at 748-49, n.6.)

The officers effectively prevented Mizera from consulting coun-

sel after he asked to do so. That deprivation cannot be brushed

4The panel relies on Holmes v. Burr, supra, 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) ... US. —. [44 U.S.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.

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20 United States of America vs.

aside. His need for counsel was evident.5 Counsel would surely

have revealed to him that the officers’ “compelling” statements

were deceitful. The officers told Mizera that he would serve ten

years, if convicted, knowing full well that ten years was the

maximum penalty for Mizera’s alleged misdeed. The officers also

assured Mizera of conviction, although they had to know that

conviction is not a certitude. Even worse, the officers offered to

drop any charges against Mizera when they had no legal power

to promise immunity. Consent obtained by governmental mis-

representation is involuntary. (United States v. Rothman, supra,

492 F.2d at 1263; see Fuller v. United States (D.C. Cir. 1967)

407 F.2d 1199, 1213 (“Of course garnering a confession by

artifice is no more permissible than achieving the same result

by some cruder coercion.’’).)

I would en bane this case to eradicate the intra-cireuit con-

flict between Ryan and United States v. Rothman, supra, 492

F.2d 1260, and its antecedents, and to bring Ryan in line with

controlling Supreme Court authority. On the merits, I would

reverse and remand Ryan for a new trial free from the tainted

evidence.®

5As Mr. Justice Sutherland observed in Powell v. Alabama (1932) 287

U.S. 45:

. Even the intelligent and educated layman has small and

sometimes no skill in the seience of law. If charged with a crime, he

is incapable, general’y, of determining for himself whether the

‘ indictment is good or bad. He is unfamiliar with the rules of evi-

dence. .. . He require: the guiding hand of counsel at every step in

the proceedings against him.” (Id. at p. 69.)

6It is noteworthy that the Government’s respect for Mizera’s constitu-

tional rights has been deficiext in more than one instance. The panel

observes that Mizera’s office and residence were “bugged” prior to his

grant of consent on May 19, 1972. Nevertheless, because the evidence

culled from this source was said to be available from independent sources,

the panel rules that its admission did not constitute error. (United States

v. Ryan, No. 75-1317, at p. 8 (slip op’n, May 24, 1976).)

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B-1

TITLE 18 U.S.C.A.

§ 371. Conspiracy to commit offense or to defraud United

States

If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons to

any act to effect the object of the conspiracy, each shall

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

than five years, or both.

If, however, the cffense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the pun-

ishment for such conspiracy shall not exceed the maxi-

mum punishment provided for each misdemeanor. June

25, 1948, c. 645, 62 Stat. 701.

§ 1952. Interstate and foreign travel or transportation in

aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce

or uses any 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 un-

lawful activity; or

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

or facilitate the promotion, management, establish-

ment, or carrying on of any unlawful activity,

and thereafter performs or attempts to perform any of

the acts specified in subparagraphs (1), (2), and (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

B-2

on which the Federal excise tax has not been paid, nar-

cotics, 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 in-

volving liquor or narcotics shall be conducted under the

supervision of the Secretary of the Treasury.

Added Pub.L. 87-228, § 1(a), Sept. 13, 1961, 75 Stat. 498,

and amended Pub. L. 89-68, July 7, 1965, 79 Stat. 212.

§ 2511. Interception and disclosure of wire or oral com-

munications prohibited

(1) Except as otherwise specifically provided in this

chapter any person who —

(a) willfully intercepts, endeavors to intercept, or

procures any other person to intercept or endeavor to

intercept, any wire or oral communication ;

(b) willfully uses, endeavors to use, or procures any

other person to use or endeavor to use any electronic,

mechanical, or other device to intercept any oral com-

munication when —

(i) such device is affixed to, or otherwise transmits

a signal through, a wire, cable, or other like connec-

tion used in wire communication; or

(ii) such device transmits communications by ra-

dio, or interferes with the transmission of such com-

munication; or

(iii) such person knows, or has reason to know,

that such device or any component thereof has been

sent through the mail or transported in interstate

or foreign commerce; or

B-3

(iv) such use or endeavor to use (A) takes place

on the premises of any business or other commercial

establishment the operations of which affect inter-

state or foreign commerce; or (B) obtains or is for

the purpose of obtaining information relating to the

operations of any business or other commercial es-

tablishment the operations of which affect interstate

or foreign commerce; or

(v) such person acts in the District of Columbia,

the Commonwealth of Puerto Rico, or any territory

or possession of the United States;

(c) willfully discloses, or endeavors to disclose, to

any other person the contents of any wire or oral com-

munication, knowing or having reason to know that the

information was obtained through the interception of

a wire or oral communication in violation of this sub-

section; or

(d) willfully uses, or endeavors to use, the contents

of any wire or oral communication, knowing or having

reason to know that the information was obtained

through the interception of a wire or oral communica-

tion in violation of this subsection;

shall be fined not more than $10,000 or imprisoned not

more than five years, or both.

(2) (a) It shall not be unlawful under this chapter for

an operator of a switchboard, or an officer, employee, or

agent of any communication common carrier, whose facil-

ities are used in the transmission of a wire communica-

tion, to intercept, disclose, or use that communication in

the normal course of his employment while engaged in

any activity which is a necessary incident to the rendition

of his service or to the protection of the rights or prop-

erty of the carrier of such communication: Provided,

That said communication common carriers shall not uti-

B-4

lize service observing or random monitoring except for

mechanical or service quality control checks.

(b) It shall not be unlawful under this chapter for an

officer, employee, or agent of the Federal Communications

Commission, in the normal course of his employment and

in discharge of the monitoring responsibilities exercised

by the Commission in the enforcement of chapter 5 of

title 47 of the United States Code, to intercept a wire

communication, or oral communication transmitted by ra-

dio, or to disclose or use the information thereby ob-

tained.

(c) It shall not be unlawful under this chapter for a

person acting under color of law to intercept a wire or

oral communication, where such person is a party to the

communication or one of the parties to the communica-

tion has given prior consent to such interception.

(d) It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a wire

or oral communication where such person is a party to

the communication or where one of the parties to the

communication has given prior consent to such intercep-

tion unless such communication is intercepted for the

purpose of committing any criminal or tortious act in

violation of the Constitution or laws of the United States

or of any State or for the purpose of committing any

other injurious act.

§ 2515. Prohibition of use as evidence of intercepted wire

or oral communications

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communica-

tion and no evidence derived therefrom may be received

in evidence in any trial, hearing, or other proceeding in

or before any court, grand jury, department, officer,

agency, regulatory body, legislative committee, or other

B-5

authority of the United States, a State, or a political

subdivision thereof if the disclosure of that information

would be in violation of this chapter.

§ 2516. Authorization for interception of wire or oral

communications

(1) The Attorney General, or any Assistant Attorney

General specially designated by the Attorney General,

may authorize an application to a Federal judge of com-

petent jurisdiction for, and such judge may grant in con-

formity with section 2518 of this chapter an order author-

izing or approving the interception of wire or oral

communications by the Federal Bureau of Investigation,

or a Federal agency having responsibility for the in-

vestigation of the offense as to which the application is

made, when such interception may provide or has pro-

vided evidence of —

(a) any offense punishable by death or by imprison-

ment for more than one year under sections 2974

through 2277 of title 42 of the United States Code (re-

lating to the enforcement of the Atomic Energy Act

of 1954), or under the following chapters of this title:

chapter 37 (relating to espionage), chapter 105 (re-

lating to sabotage), chapter 115 (relating to treason),

or chapter 102 (relating to riots) ;

(b) a violation of section 186 or section 501(c) of

title 29, United States Code (dealing with restrictions

on payments and loans to iabor organizations), or any

offense which involves murder, kidnapping, robbery,

or extortion, and which is punishable under this title;

(ec) any offense which is punishable under the fol-

lowing sections of this title: section 201 (bribery of

public officials and witnesses), section 224 (bribery in

sporting contests), section 1084 (transmission of

wagering information), section 1503 (influencing or

B-6

injuring an officer, juror, or witness generally), section

1510 (obstruction of criminal investigations), section

1751 (Presidential assassinations, kidnapping, and

assault), section 1951 (interference with commerce by

threats or violence), section 1952 (interstate and for-

eign travel or transportation in aid of racketeering

enterprises), section 1954 (offer, acceptance, or solici-

tation to influence operations of employee benefit plan),

section 659 (theft from interstate shipment), section

664 (embezzlement from pension and welfare funds),

or sections 2314 and 2315 (interstate transportation

of stolen property) ;

(d) any offense involving counterfeiting punishable

under section 471, 472, or 473 of this title;

(e) any offense involving bankruptcy fraud or the

manufacture, importation, receiving, concealment, buy-

ing, selling, or otherwise dealing in narcotic drugs,

marihuana, or other dangerous drugs, punishable under

any law of the United States;

(f) any offense including extortionate credit trans-

actions under sections 892, 893, or 894 of this title; or

(g) any conspiracy to commit any of the foregoing

offenses.

(2) The principal prosecuting attorney of any State,

or the principal prosecuting attorney of any political

subdivision thereof, if such attorney is authorized by a

statute of that State to make application to a State court

judge of competent jurisdiction for an order authorizing

or approving the interception of wire or oral communi-

cations, may apply to such judge for, and such judge may

grant in conformity with section 2518 of this chapter

and with the applicable State statute an order authoriz-

ing, or approving the interception of wire or oral com-

munications by investigative or law enforcement officers

baving responsibility for the investigation of the offense

B-7

as to which the application is made, when such intercep-

tion may provide or has provided evidence of the com-

mission of the offense of murder, kidnapping, gambling,

robbery, bribery, extortion, or dealing in narcotic drugs,

'marihuana or other dangerous drugs, or other crime

dangerous to life, limb, or property, and punishable by

imprisonment for more than one year, designated in any

applicable State statute authorizing such interception,

or any conspiracy to commit any of the foregoing

offenses.

Added Pub.L. 90-351, Title ITI, § 802, June 19, 1968, 82

Stat. 216.

§ 2516. Authorization for interception of wire or oral

communications

(1) The Attorney General, or any Assistant Attorney

General specially designated by the Attorney General,

may authorize an application to a Federal judge of com-

petent jurisdiction for, and such judge may grant in con-

formity with section 2518 of this chapter an order author-

izing or approving the interception of wire or oral

communications by the Federal Bureau of Investigation,

or a Federal agency having responsibility for the inves-

tigation of the offense as to which the application is

made, when such interception may provide or has pro-

vided evidence of —

[See main volume for text of (a) and (b)). .

(c) any offense which is punishable under the fol-

lowing sections of this title: section 201 (bribery of

public officials and witnesses), section 224 (bribery in

sporting contests), subsection (d), (e), (f), (g), (h)

or (i) of section 844 (unlawful use of explosives), sec-

tion 1084 (transmission of wagering information), sec-

tion 1503 (influencing or injuring an officer, juror, or

witness generally), section 1510 (obstruction of crimi-

B-8

nal investigations), section 1511 (obstruction of State

or local law enforcement), section 1751 (Presidential

assassinations, kidnapping, and assault), section 1951

(interference with commerce by threats or violence),

section 1952 (interstate and foreign travel or trans-

portation in aid of racketeering enterprises), section

1954 (offer, acceptance, or solicitation to influence op-

erations of employee benefit plan), section 1955 (prohi-

bition of business enterprises of gambling), section

659 (theft from interstate shipment), section 664 (em-

bezzlement from pension and welfare funds), sections

2314 and 2315 (interstate transportation of stolen

property), section 1963 (violations with respect to

racketeer influenced and corrupt organizations) or

section 351 (violations with respect to congressional

assassination, kidnaping and assault) ;

[See main volume for text of (1)(u) to (g); (2)]

As amended Pub.L. 91-452, Title VIII, § 810, Title IX,

§ 902(a), Title XI, § 1103, Oct. 15, 1970, 84 Stat. 940, 947,

959; Pub.L. 91-644, Title IV, 4 16, Jan. 2, 1971, 84 Stat.

1891.

TITLE 18 U.S.C.A. FEDERAL RULES

OF CRIMINAL PROCEDURE

Rule 30. Instructions

At the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any

party may file written requests that the court instruct

the jury on the law as set forth in the requests. At the

same time copies of such requests shall be furnished to

adverse parties. The court shall inform counsel of its

proposed action upon the requests prior to their argu-

ments to the jury, but the court shall instruct the jury

after the arguments are completed. No party may assign

as error any portion of the charge or omission there-

B-9

from unless he objects thereto before the jury retires

to consider its verdict, stating distinctly the matter to

which he objects and the grounds of his objection. Op-

portunity shall be given to make the objection out of the

hearing of the jury and, on request of any party, out of

the presence of the jury.

As amended Feb. 28, 1966, eff. July 1, 1966.

Rule 51. Exceptions Unnecessary

Exceptions to rulings or orders of the court are un-

necessary and for all purposes for which an exception

has heretofore been necessary it is sufficient that a party,

at the time the ruling or order of the court is made or

sought, makes known to the court the action which he

desires the court to take or his objection to the action

of the court and the grounds therefor; but if a party has

no opportunity to object to a ruling or order, the ab-

sence of an objection does not thereafter prejudice him.

Rule 52. Harmless Error and Plain Error

(a) Harmless Error. Any error, defect, irregularity or

variance which does not affect substantial rights shall

be disregarded.

(b) Plain Error. Plain errors or defects affecting sub-

stantial rights may be noticed although they were not

brought to the attention of the court.

TITLE 28 U.S.C.A. FEDERAL RULES

OF CIVIL PROCEDURE

Rule 46. Exceptions Unnecessary

Formal exceptions to rulings or orders of the court

are unnecessary; but for all purposes for which an

exception has heretofore been necessary it is sufficient

that a party, at the time the ruling or order of the court

B-10

is made or sought, makes known to the court the action

which he desires the court to take or his objection to the

action of the court and his grounds therefor; and, if a

party has no opportunity to object to a ruling or order

at the time it is made, the absence of an objection does

not thereafter prejudice him.

Rule 51. Instructions to Jury: Objection

At the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any

party may file written requests that the court instruct

the jury on the law as set forth in the requests. The

court shall inform counsel of its proposed action upon

the requests prior to their arguments to the jury, but

the court shall instruct the jury after the arguments are

completed. No party may assign as error the giving or

the failure to give an instruction unless he objects there-

to before the jury retires to consider its verdict, stating

distinctly the matter to which he objects and the grounds

of his objection. Opportunity shall be given to make

the objection out of the hearing of the jury.

NEVADA REVISED STATUTES

Now, 197.020 reads in part — the ti:le is “Bribery of

Public Officers” — (reading)

“Every person who shall give, offer or promise di-

rectly or indirectly any compensation, gratuity or re-

ward to a person executing any of the functions of a

public officer with the intent to influence him with re-

spect to any act, decision or vote or other proceedings

in the exercise of his powers or functions shall be

guilty of an offense against the laws of the State of

Nevada.”

Now, 197.030, which has as its title “Asking or Receiv-

ing Bribes by Executive Board or Administrative Offi-

B-11

cers” — and a County Commissioner is such an executive

or administrative officer: (reading)

“Every executive or administrative officer or person

elected or appointed to an executive or administrative

office, who shall ask or receive directly or indirectly any

compensation, gratuity or reward, or any promise

thereof, upon agreement or understanding that his

vote, opinion or action upon any matter then pending

or which may by law be brought before him in his

official capacity, shall be influenced thereby, shall be

guilty of an offense against the laws of the State of

Nevada.”

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES )

Ernest J. Cook , being first duly sworn

deposes and says:

That affiant is and was, at all times herein mentioned,

a citizen of the United States and a resident of

the County of Los Angeles, over the age of eighteen

(18) years, and not a party to or interested in the

within action; that affiant's business address is -

1706 S. Maple Avenue, Los Angeles, California, 90015.

That on December 29, 1976, affiant served copies of

the within

Petition for a Writ for Certiorari to the United States

Court of Appeals for the Ninth Circuit upon persons

named below:

By courier service;

United States Supreme Court 1 original and

United States Supreme Court Building 39 copies

lst Avenue, N.E.

Washington, D.C. 20543

Solicitor General ; 3 copies

Department of Justice

9th and Pennsylvania Avenue, N.W.

Room 5143 ,

Washington, D.C. 20530

By mail;

Lawrence J. Semenza 3 copies

United States Attorney

300 Las Vegas Boulevard, South

Las Vegas, Nevada 89101

Richard A. Wright 3 copies

Asst. United States Attorney

300 Las Vegas Boulevard, South

Las Vegas, Nevada 89101

That there is a regular communication by mail

between the place of mailing and the place so

addressed.

Subscribed and sworn to before me

this 28th day of December, 1976

<>, OFFICIAL SEAL

Cad LAWRENCE E. HIEGER

SP Seckelo) NOTARY PUBLIC-CALIFORNIA

A Pay PRINCIPAL OFFICE IN

: LOS ANGELES COUNTY

AAAS LLAGLL OL AT LLG

- Wlotary Public in and for’ the

a State of California

/