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

Supreme Cour, U. 9 3 |

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No. 76-898 APR 17 i977

In The MICHAEL RODAK, JR. CLERK

Supreme Court of the United States — ,

Ocroser Term, 1976

Aprian WILson,

Petitioner,

vs.

Unttep States or AMERICA.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH C/RCUIT

REPLY OF PETITIONER, ADRIAN WILSON,

TO BRIEF FOR THE UNITED STATES IN

OPPOSITION MAILED ON MARCH 29, 1977

AND RECEIVED APRIL 1, 1977.

Varoeas, Barttett & Drxon

Joun C. Bartiett .

201 W. Liberty

Suite 300

Reno, Nevada 89501

Baker, ANceL anp Repmonp

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

.

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.

Il.

It.

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TABLE OF CONTENTS

ERRONEOUS OR IGNORED FACTS IN

SR Ra

PREDISPOSITION HAS NEVER BEEN

CONCEDED NOR FOUND BY A JURY IN

THIS NONCONTRABAND CASE ........

THE SOLICITOR GENERAL IGNORES

THE QUESTION OF WHETHER, UNDER

THE FACTS OF THIS CASE, THE TRAV-

EL ACT SHOULD HAVE BEEN UTI-

tla vlvcde ie sevan eens wes ts

Page

ii

TABLE OF AUTHORITIES

Cases

Hampton v. United States (1976) .. U.S. ..., 48

os ee cba ewsuaw eed 2

Johnson v. U.S. (D.C. Cir. 1963) 317 F2d 127,

I te ate ae Chie ee eee ae eta. 4

Rewis v. United States (1971) 401 U.S. 808 ....._.. 8

Sherman v. U.S. (1958) 356 U.S. 369, 375 ..... 4,5,9

United States v. Altobella, (7th Cir. 1971} 442

eR ele PT ES IE Ai tne ae a ee 8

United States v. Archer, (2nd Cir. 1973)

ER RT aa ae 8

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

493 F.2d 1124, 1146, 1147 ..................... 8

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

ee ee ete Et yom os 3, 5

Text and Law Review Articles

Devitt and Blackmar, Section 13.13 .............. 5

No. 76-898

In The

Supreme Court of the Gnited States

Octoser Term, 1976

Aprian WItson,

Petitioner,

vs.

Untrep States or AMERICA.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY OF PETITIONER, ADRIAN WILSON,

TO BRIEF FOR THE UNITED STATES IN

OPPOSITION MAILED ON MARCH 29, 1977

AND RECEIVED APRIL 1, 1977.

I

ERRONEOUS OR IGNORED FACTS IN REPLY

BRIEF.

Certain statements which the Solicitor General alleges

to be facts are simply incorrect. The record clearly

discloses that Miro Mizera solicited Wilson to obtain a

listing for the Nevada property which Wilson owned.

He, in fact, called Wilson’s Attorney in Los Angeles in

order to contact Mr. Wilson. Furthermore, Mizera clear-

~— s

ly testified at the trial that the rezoning and offering of

the campaign contribution to the Commissioners was his

idea; that he believed he was doing nothing wrong and

that Wilson was innocent. The testimony of Mizera to

the effect that he desired to give Broadbent a campaign

contribution, if there was a legal way to do so, stands

uncontroverted by the Solicitor General, as does the

statement at Page 9 in Petitioner’s application that

Broadbent became an Agent of the State of Nevada on

April 21, 1972. It is not denied, in any way, that

Broadbent, at the suggestion of the Attorney General,

told Mizera many things as they came up and undertook

acts to move along the alleged plot at the suggestion of

the Attorney General of Nevada, including a willingness

to cooperate with Mizera, to accept money from him, to

vote for rezoning against his true beliefs, and even to

mislead one of his Co-Commissioners in order to get that

Commissioner to vote for zoning so that Ryan would

accept moneys. He also quotes from the Opinion of the

District Court Judge relating to the local lawyer who

advised the Commissioners of what was going on as a

justification for the coercion of Mizera. That local at-

torney was, in fact, William Morris, who had been

Wilson’s Attorney and had gotten out of the case because

of the actions of the Agent of the State.

II

PREDISPOSITION HAS NEVER BEEN CON-

CEDED NOR FOUND BY A JURY IN THIS NON.

CONTRABAND CASE.

As hereinafter set forth, Wilson does not concede any

predisposition on his part to commit the crime with

which he was charged. However, as stated by Justice

Powell in Hampton v. United States (1976), ...... US.

= we

5 re 48 L.Ed.2d, 113, 120, the United States Supreme

Court has not yet had occasion to confront government

overinvolvement in areas outside the realm of contra-

band offenses. It should also be noted that in United

States v. Russell (1973), 411 U.S. 423; 36 L.Ed.2d 366,

the jury found predisposition and an entrapment in-

struction had, in fact, been given by the Court [411 U.S.

426, Footnote 4]. In Hampton predisposition had been

conceded [48 L.Ed.2d 117, Footnote 3]. In the present

case, the brief of the United States focuses on a portion

of the actions of the Nevada Attorney General in com-

pelling Mizera to become an Agent of the State. It

ignores the failure to give the entrapment instructions

requested by Wilson, one of which was clearly in con-

formance with the subjective theory of entrapment under

any reading, and is clearly set forth as an issue which

remains unaddressed by the Solicitor ( eneral.

The Solicitor General concedes that Broadbent was

an Agent of the State from April 20, 1972 and that it

was his action, with the knowledge of the Nevada Attor-

ney General, which caused the removal of Wilson’s

Attorney, William Morris. However, in adopting the

theory of the Court below, the Solicitor General dis-

misses such action as the independent act of the Agent

of the State and refers to it on Page 12 of his Brief as

a “caution” to Morris.

As pointed out in Petitioner’s Brief, at Page 10 there-

of, Broadbent told Morris to get out of the case, to keep

his mouth shut and to conceal from his client the reason

for his getting out of the case. Morris was led to believe

that such action was necessary to capture Mizera, who

Morris thought, because of Broadbent, was the subject

of the investigation. With respect to his client, Morris

followed the instructions of Broadbent to the letter. Not-

alin

withstanding his reliance on the statement of the Court

below relating to the independent acts of Broadbent, the

Solicitor General cites no case which would support this

proposition and does not, in any manner, distinguish

Sherman v. U.S. (1958) 356 U.S. 369, 375, or Johnson v.

U.S. (D.C. Cir. 1963) 317 F2d 127, 128-30, which hold

that the Government may not make use of an Agent and

then claim disassociation through ignorance of his acts.

The Government’s position relating to acts of Broadbent

fly in the face of general rules as to the acts of an Agent.

In any event, it is absolutely clear that, because of the

record and concessions of the Solicitor General, that

Broadbent was at all times an Agent of the Nevada

Officials and that the Nevada Officials knew on a daily

basis of his actions. At no point has this Court said that

the act of such Agent could be disavowed by his principal,

the Government. Such a position cannot and does not

represent the state of the law. If the Government accepts

the fruits of the acts of such an Agent, it must be deemed

to be bound by his actions. In any event, the Solicitor

General concedes, as he must, that the Nevada Officials

knew within one week of April 27, 1972 that Morris had

been removed because of the acts of their Agent and, of

course, Mizera’s conversations had been recorded by the

Attorney General, who was apprised daily of all develop-

ments in the case. See Wilson’s Petition, Page 10.

The Solicitor General does not attempt to sustain the

position taken by the reviewing Court to the effect that

Wilson waived the giving of an entrapment instruction

by failure to object. He cannot sustain the Court’s posi-

tion because the record below does not support a waiver.

However, says the Solicitor General, the Court carefully

perused the record and determined that the claim of

entrapment was without substance. The Court’s perusal,

while characterizing Wilson’s arguments relating to the

=

Attorney General’s acts against Mizera as “faint”, con-

cedes that if they forced Wilson to commit a criminal act

that there would have been entrapment under the rule of

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

The balance of the Brief is directed to the question

of whether the acts of the Nevada Officials toward Mizera

resulted in entrapment under the objective approach and

concluded that such acts, although not condoned by the

Court, and not good police work, did not violate Wilson’s

rights.

Furthermore, the Solicitor General did not disagree

with the Petitioner’s arguments to the effect that at least

one of the instructions proferred is subjective, rather

than objective, since Wilson’s “F” was clearly based upon

Sherman v. United States, supra, and upon Devitt and

Blackmar, Section 13.13.

Though alleging that Wilson was predisposed because,

as early as January of 1972, the plot allegedly had been

undertaken, no discussion is had relating to the act of

wrongfully removing Wilson’s Attorney subsequent to

April 27, 1972 before the commission of the act, under

which jurisdiction is laid in the Federal Court. The Solic-

itor General ignores the concurring opinion of Justice

Powell in Hampton, supra, to the effect that in a non-

contraband case, the conviction of a predisposed defend-

ant may be barred as a matter of due process. He

concedes that the record clearly does not bear out the

conclusions of the Court below to the effect that Morris

had been advised by Mizera at or before the time he was

retained with respect to the plot. He concedes that, as the

record clearly discloses, Wilson was going to pay his

Attorney $10,000 to undertake representation before the

administrative Board of Commissioners in order to obtain

rezoning in a legal way and that to offer additional

callie

moneys amounting to virtually the same sum as that

allegedly to be paid through Mizera makes no sense. Is it

not clear, therefore, that Morris’ instruction and repre-

sentation were the true reasons for his removal from the

case? It makes no sense to disavow acts of Broadbent in

removing Morris and yet to say Mizera’s statements to

Broadbent about Wilson paying for the Commissioners

binds Wilson as evidence of predisposition. Why would

the Nevada Officials, within a week of the removal of

Morris, say it was just as well that he had been taken from

the case? It was because Broadbent and the Attorney

General knew that a strong likelihood existed that the

Commissioners would permit the rezoning on the basis

of the case to be presented by Morris on the merits with-

out any bribery. The point is that, neither the analysis

of the Court below, nor of the Solicitor General consider

that the removal of Morris must also be considered in

determining both the subjective and objective standards

enunciated by Russell. But, says the Solicitor General,

even if there were no waiver of entrapment instructions,

and even if they were proper, the instructions may not be

given because in January of 1972 Wilson had agreed that

the Commissioners be approached with an offer of mone-

tary assistance. If one reads Mizera’s testimony of the

original offer to Broadbent, it was clearly not seeking to

bribe him. Furthermore, had there been given appropriate

entrapment instructions, argument could well have

stressed that the critical period of the involvement com-

menced on Apri! 20, 1972, when, so far as is known,

Broadbent, who believed that campaign contributions

were made by people with special interests, suddenly

became of the opinion that an offer of bribery was being

made to him by Mizera.

Since it must be conceded that predisposition is a ques-

tion of fact and that the holdings of Russell and of

aiiline

Hampton, supra, concur on this point, Wilson has been

unable to argue to the jury and the jury has been pre-

cluded from finding whether or not Wilson was pre-

disposed. This is so because clearly any predisposition

had been terminated on April 27, 1972 when Morris was

retained as an attorney to perform the act of obtaining

rezoning in a lawful and legitimate way. The failure to

give entrapment instructions also prevented the jury

from finding that the idea for the commission of any

crime was implanted by the government at and after the

removal of Morris.

Obviously, the prosecutor would argue that Wilson’s

intent to pay moneys to the Commissioners never ended.

This does not take away from the jury its function of

finding the truth and making the determination of

whether or not predisposition existed. Neither Russell

nor Hampton hold that the Court will decide the question

of predisposition as a matter of law. The argument of

the Solicitor General which hangs upon the quoted state-

ment of the obviously unstable Mizera as to predisposi-

tion ignores the fundamental reason for giving the en-

trapment instruction. When Wilson hired Morris, any

predisposition to commit the crime terminated. The ac-

tions of Broadbent were the cause of the removal of an

Attorney who would lawfully have obtained the zoning

and it was these acts, coupled with other acts of the

Attorney General against Mizera, Wilson’s Agent, which

make this the case set forth in Russell, requiring the

utilization of the objective approach by the Court, as well

as the giving of an entrapment instruction utilizing the

subjective approach. One need only ask the Solicitor

General, or any member of the Department of Justice, if

they would have acted in the manner in which the

Attorney General acted toward Mizera, or whether they

would have condoned the removal of the Attorney for

a

Wilson after having had intimate knowledge of his re-

moval, and of the acts of Broadbent under the direction

of the Nevada officials and his statements that no Attor-

ney was needed.

III

THE SOLICITOR GENERAL IGNORES THE

QUESTION OF WHETHER, UNDER THE FACTS

OF THIS CASE, THE TRAVEL ACT SHOULD

HAVE BEEN UTILIZED.

The United States does not distinguish, or explain, in

any manner, United States v. Isaacs, (7th Cir. 1974) 493

F2d 1124, 1146, 1147, United States v. Archer, (2nd Cir.

1973) 486 F2d 670 or United States v. Altobella, (7th Cir.

1971) 442 F2d 310 all of which involve participants and

two of which involve bribery and which hold that the

Travel Act should not be utilized. He concedes the only

argument for prosecution in Federal Court is because of

Wilson’s incidental residence in California and the

failure of the Nevada Attorney General to advise and

enlist the help of the District Attorney of Clark County

in the prosecution so that timely prosecution could have

been commenced in the local State Courts by the State

authorities, who were competent to and capable of

prosecution. Nor does the Solicitor General consider the

history and the aim of the Travel Act against organized

crime as is set forth in Rewis v. United States (1971) 401

U.S. 808 and his footnote 10 is incorrect to the extent that

he eoncludes the Travel Act was directed toward the

facts of this case,

allies

IV

CONCLUSION.

The actions of the Nevada Officials in removing Wilson’s

Attorney and in proceeding as they did against Mizera

cannot be compartmentalized. The acts clearly are

government overinvolvement in a non-contraband situa-

tion, which should bar proceeding against Wilson even

if he had been predisposed. However, Wilson has not

conceded predisposition. When the Court refused to

give the jury instructions which he offered, or to modify

them so as to conform to what is believed to be the rule

in Sherman v. United States (1958) 356 U.S. 369, Wilson

was effectively barred from having a jury determine the

issue of predisposition. In any event, there was ab-

solutely no reason to interfere with sensitive Federal

State relationships by prosecuting this matter in the

Federal Courts. Accordingly, the request for the writ of

Certiorari should be granted.

Dated: April 7, 1977.

Varcas, Bartitett & Dixon

By Joun C. BagtLetr

Baker, Ancet and RepmMonp

By Mark G. ANCEL

Attorneys for Petitioner Wilson

STATE OF CALIFORNIA )

) SS

COUNTY OF LOS ANGELES )

Robert H. Coker, Jr., 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, Calif-

ornia, 90015.

That on April 11, 1977, 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 services;

United States Supreme Court 1 original and

United States Supreme Court Building 39 copies

lst Avenue, N.E.

Washington, D. C. 20549

Solicitor General

Department of Justice 3 copies

9th and Pennsylvania Avenue, N.W.

Room 5143

Washington, D. C. 20530

By mail;

Lawrence J. Semenza

United States Attorney 3 copies

300 Las Vegas Boulevard, South

Las Vegas, Nevada 89101

Richard A. Wright

Asst. United States Attorney 3 copies

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 9th day of April, 1977

CH, LAN 4p C& a

State of California

ES Public in and for the

conan OFFICIAL SEAL

7 LAWRENCE E. HIEGER

“62 2921) notary PUBLIC.

RA yy PRINCIPAL oFrige Oe

aS ae LOS ANGELES CoUNTy

My Commission Expires May 20, 1978

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