Petition — Ryan v. United States

Ne

! MAY 24 079

i

Monel Ronan, JR. CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

No. 78-

JAMES G. RYAN, Petitioner

V.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUGENIA VINTOS OHRENSCHALL

Attorney for Petitioner

P. O. Box 42372, Huntridge Station

Las Vegas, Nevada 89104

Phone (702) 384-5992

‘

“

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“Ow.

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oo awowey

——-

een

INDEX

Page

Oe ya sala, ade S . Suey Oe hci ii

I NN oo Wyn a ak kein « Steere Bee Oh 1

5 CL in Fo bs aie eER RRA RAE 2

Og 8 By |) yy + Tn a a 2

CONSTITUTIONAL PROVISIONS INVOLVED ....... 3

DERPEUEUEEEE GOP BEES GAGE. he cca kewcesncesacde’ 3

REASONS FOR GRANTING THE WRIT............. 6

a Suan, . cL TRG Cd AHR E. « baleen 8

Be we yy EB 5 9

APPENDIX:

A. Unpublished Opinion (Court of Appeals

ES Oe i dg | es eee en ee la

B. Order Denying Rehearing and Amending Opinion

of March 2, 1979, entered April 25, 1979 ........ 7a

C. Indictment entered April 27, 1973 ............. 8a

D. Minute Order (District Court, entered

ee a ee 12a

E. Minute Order (District Count, entered

SR OND soy 5) 6k wd bk we hawks cers Had ws l3a

F. Memorandum Press Release, April 6, 1959,

Department of Justice, (‘Petite Policy”) ........ 15a

G. Ryan v. Eighth Judicial District Court,

Se > 2 RS re ee Oe 18a

H. NRS 172.255 (1) & (2) and

Se BA BAY WEDD oie hdc wewrsnvedss 27a

il

CITATIONS

Page

CONSTITUTIONS:

ED ise cg co Se pl RN eV NK odie kin alec e's 3

CE re Aha SN Gc as ckbibtlats ceK Ghee & 3

I 1c Wahi. se cos aig t Gash, oS oe. a a 3

SN ER ees FPG Wha ig FE Me Li ws os « GbE 3

STATUTES:

Se TOES oe eee he ek 4 aeo4 een khan e 2

ee, MN a i ee ie. © 9

Se ES CRO TE eka dae hbase 6h AEN Oh aa Sew Ls 3

Federal Rule of Criminal Procedure 33 ............... 4

Pe OTe OE Oe ODS igo cies dea crepe be) ate eee

eT Be Sh Ese oe ae ae 5, 27a

MEMORANDUM:

Department of Justice Memorandum

Press Release, April 6, 1959..............04, a, 4, 6,7

CASES:

Ashe v. Swenson, 25 L.Ed.2d, 469 (1970)........ 2, 6

Coleman v. Alabama, 399 US. I (1970)... .......... 7

Cepee - er -E Re CEOSED cos cace civics 7

iii

Page

ele. TES. BO Ta. APOC eee Piss a ok as oes eae 7

Kirby v. Illinois, 406 U.S. 682 (1972)...........0.. 7

Marbury v. Madison, I. Cranch 137, 2L.Ed.60 (1803). 7

Parker v. Gladden, 385 U.S. 363 (1966)....... 3, 6, 8

Rinaldi v. U.S., 54 L.Ed.2d 207 (1977)........... 2, 4

Ryan v. Eighth Judicial District Court

ae es | rere yr eee er 5, 18a

U.S. v. Oppenheimer, 292 U.S. 85 (1916)........... 2

TRANSCRIPTS:

Transcript, U.S. v. Ryan, Vol. I-A, Oct. 25, 26,

Te oe EM IEE: CE ia a See ewe ibe es 5

Oral Argument, U.S. Court of Appeals, Dec. 8, 1978,

Professor Thomas J. O’Toole, Esq., as Amicus Curiae. . 2, 6

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

No. 78

JAMES G. RYAN, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

=

Petioner, James G. Ryan, prays that a writ of certiorari issue

to review the judgment of the United States Court of Appeals

for the Ninth Circuit, entered in this cause on March 2, 1979,

with Rehearing denied, April 25, 1979.

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals, which was ordered not

to be published, and the order of that court denying the petition

for the rehearing appear in the appendix to this petition. The

District Court’s unsigned Minute Orders, without opinion, de-

nying Petitioner's Motion for New Trial under Rule 33 of Fed-

eral Rules of Criminal Procedure, and denying Petitioner’s Mo-

tion to Dismiss Indictment, also appear in the appendix to this

petition.

JURISDICTION

The judgment of the Court of Appeals was entered on March

2, 1979. An Order denying the petition for rehearing was en-

tered on April 25, 1979. An order was entered extending the

time for filing a petition for writ of certiorari to June 22, 1979.

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

§1254(1).

~

QUESTION PRESENTED

1. Was the Petitioner denied his Fifth and Fourteeth

Amendment, Collateral Estoppel protection against multiple

prosecution by the Court’s refusal to dismiss the indictment

against him, upon a clear showing of violation of the Justice De-

partment’s Petite Policy. (See Memorandum Press Release,

April 6, 1959), as well as a clear showing of the constitutional

Collateral Estoppel protection, (See Ashe v. Swenson, 397 US.

436 (1970); U.S. v. Oppenheimer 292 US. 85 (1916), Rinaldi

v. U.S. 54 L. Cd. 2d 207 (1977)?

2. Does the Justice Department (a part of the Executive

Branch of Government) have jurisdiction to construe, with fi-

nality, the Fifth Amendment ‘double jeopardy’ clause and the

Fourteenth Amendment ‘due process’ clause of the United

States Constitution, or does this intradepartmental, unilateral,

discretionary determination of the Department of Justice through

its so-called ‘Petite Policy” constitute both, an infrigement by

the Executive Branch of government into an area of jurisdiction

reserved by the United States Constitution to the Federal Ju-

diciary and, a violation of the doctrine of ‘Separation of

Powers’’?

3. Is a criminal indictment fatally defective as to a defend-

ant when it alleges only conspiracy charges against said defend-

ant, with no substantive offense alleged, (where the substantive

offense, if alleged, would have required two or more _per-

sons for its commission ), in violation of the common law Whar-

ton Rule, cf. Oral Argument of Prof. Thomas J. O'Toole, Esq.,

as Amicus Curiae, December 8, 1978, before the U.S. Court of

Appeals for the Ninth Circuit) ?

4. Was the Petitioner denied a trial by a fair and impartial

jury, a Sixth Amendment Right, by reason of an uncontroverted

showing of outside influence upon one or more jurors, and by

reason of communication by non-juror with juror concerning the

trial during a recess in jury delibertion. See Parker v. Gladden

385 U.S. 363 (1966)?

CONSTITUTIONAL PROVISIONS INVOLVED

1. Article III provides:

“The judicial Power of the United States shall be vested in

one supreme Court, and in such inferior Courts as the Con-

”»

gress may from time to time ordain and establish . . .”.

2. The Fifth Amendment provides:

“No person shall be . . . subject for the same offense to

be twice put in jeopardy of life, of limb . . . nor be de-

prived of life, liberty, or property, without due process of

MW: oe

3. The Sixth Amendment provides:

“In all criminal prosecutions the accused shall enjoy the

right to a speedy and public trial by an impartial jury . . .”

(Emphasis added).

4. The Fourteenth Amendment provides:

... nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.”

STATEMENT OF THE CASE

Petitioner RYAN was indicted on or about April 27, 1973,

tor alleged conspiracy to violate 18 U.S.C. 1952(2) and 371,

following three (3) unsuccessful State of Nevada prosecutions

for the same act or acts. The Federal Indictment failed to allege

a substantive offense on the part of Petitioner RYAN, (Sce ap-

pendix cf., Indictment entered April 27, 1973).

4

Ryan was tried and convicted in the U.S. District Court of

the District of Nevada in a fourteen day Jury trial in March 1974.

On June 16, 1977, Ryan filed a motion for a new trial pur-

suant to Rule 33 of the Federal Rules of Criminal Procedure.

In this motion for new trial an evidentiary hearing was request-

ed. The U.S. Attorney in his response to this motion, also re-

quested that the district court grant an evidentiary hearing on

June 24, 1977.

The District Court on July 13, 1977, by Minute Order, granted

Ryan an evidentiary hearing, which was never held.

On March 29, 1978, Ryan filed a motion to dismiss his in-

dictment based upon a violation of the Justice Department’s ‘‘Pe-

tite Policy”, as discussed by this Court in Rinaldi v. U.S., 54

L.Ed.2d 207 (1977).

By its very terms the Petite Policy requires personal super-

vision and authorization by the Attorney General of the United

States upon appropriate study and recommendation by the As-

sistant Attorney General of the United States in charge of ‘e

Criminal Division, who must have found that compelling in-

terests of federal law enforcement exist justifying a federal

prosecution after a state prosecution for the same act or acts.

See Justice Department Memorandum and Press Release, dated

April 6, 1959, published that date in the New York Times,

Page 1, Column 4, and Page 19, Columns 1 and 2.

During the time the Ryan indictment was being sought by

the U.S. Attorney, which indictment was returned on April 27,

1973, the Honorable Richard G. Kleindienst was the Attorney

General of the United States and thus the official charged with

authority for the enforcement and implementation of the Pe-

tite Policy.

Had the Petite Policy memorandum been complied with,

prior to any federal prosecution of petitioner Ryan, the U.S. At-

torney, V. DeVoe Heaton would have had to submit a written

recommendation to the Assistant Attorney General in charge

of the Criminal Division of the Department of Justice. The

Assistant Attorney General in charge of the Criminal Division

would then have had to study and review the matter and rec-

ommend in writing to the Attorney General of the United

States that compelling interests of federal law enforcement ex-

isted to justify a multiple prosecution.

The United States Attorney General would then have had

to personally review the matter and make written public au-

thorization stating that compelling interests of federal law en-

forcement justified a federal prosecution after a state criminal

prosecution. (N.B. further state prosecution was barred. )

Mr. Kleindienst indicates that he had no present recollection

of the Ryan matter having been submitted to him for approval

in his capacity as Attorney General of the United States.

United States Attorney V. DeVoe Heaton testified under

oath that the decision to proceed with a federal prosecution

after the defendant Ryan had been subjected to three state

prosecutions, had been unilaterally his. He further testified that

from January to April 27, 1973 (date of return of the Ryan

indictment), his sole contact with the Department of Justice

Criminal Division in this matter had been one phone call some-

time during that period to a “Mr. Burke” or “Mr. Berg’, in

Washington. He testified that the sole purpose of that call was,

in effect, to discover whether the Travel Act, 18 U.S.C.A. 1952,

could be construed as applying to a prospective defendant who

had no direct nexus with interstate commerce. Mr. Heaton

stated that all research and review in the so-called Ryan In-

vestigation had been done entirely by him, that he had not

even assigned any research to his assistants. He stated under

oath that the decision to present the Ryan matter to a federal

grand jury had been solely his.

Mr. Heaton also admitted that he was fully aware of the three

state prosecutions of Mr. Ryan, and of the Nevada Supreme

Court decision that the State Attorney General lacked jurisdic-

tion to prosecute Mr. Ryan by “information” after the conclusion

of the previous prosecution of Mr. Ryan (See Testimony of V.

DeVoe Heaton, transcript, U.S. v. Ryan, Vol. I - A, October

25 and 26, 1973, pp. 110 - 116, passim).

The present U. S. Attorney has admitted, in response to

Ryan’s motion for dismissal of indictment, that Petite Policy

was not complied with in this case.

6

Additional errors by the courts below, include the fact that

uncontroverted evidence, by sworn statements, exists in the

record that undue outside influences were exerted upon juror,

Elsa Bagwell (by means of discussion and advice concerning

the case, from her husband, during a recess in jury deliberation ),

and upon other jurors who deliberated, due to the notarity of

a then outstanding indictment for perjury against a key Ryan

defense witness (causing them to feel this witness to be less

credible), See Parker v. Gladden, supra. Somehow, the court

below misread the contents of these statements and affidavits.

Further, the court below even failed to address itself to the

jurisdictional impact of violation of the common law Wharton

Rule, which violatigp was a fatal defect in the indictment (See

argument of Prof. homes J. O'Toole, Esq. as Amicus Curiae

in behalf of Southern Nevada Central Labor Council.

Thus Ryan perfected his appeal from the District Court’s

Minute Orders entered April 27, 1978, and March 24, 1978,

to the U.S. Ninth Circuit. National Association for the Advance-

ment of Colored People and Southern Nevada Central Labor

Council joined Ryan in the appeal as Amicus Curiae on the

question of violation of Petite Policy, in briefs submitted and

accepted by the Ninth Circuit. On December 8, 1978, the ap-

peal was heard with Professor Thomas J. O'Toole, Esquire,

arguing for and representing Southern Nevada Central Labor

Council as Amicus Curiae.

On March 2, 1979, in an unpublished opinion, the Ninth -

Circuit affirmed the decisions of the District Court. On April

25, 1979, the Ninth Circuit denied Ryan’s Petition for Re-

hearing En Banc, and amended its March 2, 1979 decision.

REASONS FOR GRANTING THE WRIT

1. The ruling of the court below denied the petitioner his

Fifth and Fourteenth Amendment ‘Collateral Estoppel’ pro-

tection, (see Ashe v. Swenson, supra., by assuming that the

Jutice Department’s Petite Policy can be violated only in cases

of clear, common law ‘Double Jeopardy’, whereas Petite Policy,

itself, speaks only of multiple ‘criminal prosecution’ (a con-

7

stitutional phrase defined by this court in Kirby v. Illinois, 406

U.S. 682 (1972), See also Coleman v. Alaman, 399 US. }

(1970). Additionally, the court below misquoted the justice

Department’s Petite Policy Press Release of April 6, 1959, on

page 5 at lines 31 and 32, and on page 6 at lines 1 and 2, (See

Appendix A, Ninth Circuit Opinion and Appendix F, Petite Pol-

icy, Memorandum Press Release).

The scope of Petite Policy has not been, but should be de-

cided by this Court.

2. The Justice Departinent’s Petite Policy is a unilateral

and amorphous policy against ‘multiple prosecution’, which has

never been enacted into law, nor published as a part of the

Code of Federal Regulations. It has been subject to shifting guide-

lines of executive construction and is an infringement by an

Executive department upon the jurisdiction and junction of

the Federal Judiciary as defined in Article III of the United

States Constitution, (See Marbury v. Madison 1 Cranch 137.

2 L.Ed. 60 (1803). The United States Constitution reserves

exclusively to the Federal Judiciary the power to construe the

provisions of that constitution. The Justice Department has,

through its Petite Policy, enabled itself to infringe upon the

jurisdiction of the Federal Judiciary, and thus to violate the

doctrine of “Separation of Powers”.

Petite Policy in its current state directly violates Article II]

of the United States Constitution. Petite Policy amounts to an

independent, quasi legislative quasi judicial exercise in ““dis-

cretionary justice”, lacking the mandatory prerequisite of an

appropriate delegation of such authority.

3. An indictment is fatally defective when no substantive

offense is alleged on the part of a defendant when two or more

persons would have been required to commit the substantive

offense referred to but not alleged, because it violates the com.

mon law Wharton Rule as construed by this court in Ianelli v

U.S. 420 U.S. 770, 1975, and Gebardi v. US. 287 U.S. 112

(1932).

4. The ruling of the court below on the Sixth Amendment

right to trial by a fair and impartial jury was based upon a mis-

8

reading of the evidence and is in conflict with this Courts de-

cision in Parker v. Gladden, supra, and with that Armendment.

CONCLUSION

For the reasons stated it is respectfully prayed that a writ of

Certiorari be granted to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

EUGENIA PINTOS OHRENSCHALL

Attorney for Petitioner

P.O. Box 42372 - Huntridge Sta.

Las Vegas, Nv. 89104

Phone (702) 384-5992

CERTIFICATE OF SERVICE

I do hereby certify that I did deposit on this? S day of May,

1979, a copy of the foregoing Petitioner’s Petition for Writ of

Certiorari, in a sealed envelope, postage prepaid, at Las Vegas,

Nevada, addressed to each of the following:

The Honoral’e Wade Hampton McCree, Jr.

Solicitor General of the United States

United States Department of Justice

Constitution Ave. betwn 9th & 10th St. - Rm. 5143

Washington, D. C. 20530

Chas. E. Carter & Nathaniel Jones, Esqs.,

N.A.A.C.P.

1790 Broadway - Tenth Floor

New York, New York 10019

Southern Nevada Central Labor Council

4321 East Bonanza Road

Las Vegas, Nv. 89110

Attn: Mr. James Arnold

Thomas J. O'Toole, Esquire

Suffolk University Law School

Boston, Massachusetts 02114

Dated this oP 3 day of May, 1979.

/

APPENDIX

la

APPENDIX “A”

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No.’s 78-1845

EE Reps cag 54 54 &

) 78-2155

MEMORANDUM

James G. Ryan,

VS.

UNITED STATES OF AMERICA,

Plantif{/ Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEVADA

Before: BROWNING and CARTER, Circuit Judges, and

ALBERT C. WOLLENBERG, Senior District Judge.*

In 1972, Appellant Ryan, a former Clark County, Nevada,

Commissioner, accepted $8,000 intended as a bribe to persuade

him to vote to rezone certain land for development purposes.

A criininal complaint was filed in Justice Court, charging him

with receiving a bribe but that charge was held in abeyance

while the Nevada State Attorney General sought an indictment.

The grand jury did not return an indictment, and thereafter,

the criminal complaint was dismissed by a magistrate, who con-

ducted a preliminary hearing and found no probable cause to

support further prosecution. Next, the Attorney General re-

entered the fray, filing an information in (state) district court.

It was eventually dismissed by the Nevada Supreme Court be-

cause the statute under which the Attorney General sought to

prosecute, N.R.S. 173.035(2), conferred no power on him to

do so. Ryan v. Eighth Judicial Dist. Ct. in and for Cty. of Clark,

*Honorable Albert C. Wollenberg, Senior District Judge, Northern Dis-

trict of California, sitting by designation.

2a

88 Nev. 638, 503 P.2d 842 (1972). No further state action

followed.

In 1973, Ryan and others were indicted by a federal grand

jury and were subsequently convicted of violating 18 U.S.C.

§ 371 (conspiracy) and 18 U.S.C. § 1952 (the “Travel Act’’)

for having used the facilities of interstate commerce to engage

in prohibited activities, i.e., the bribery scheme. On appeal, the

convictions were affirmed. United States v. Ryan, 548 F.2d 782

(9th Cir.), cert. denied sub. nom. Zeldin v. United States, 429

U.S. 939 (1976), Wilson v. United States, 430 US. 965

(1977). Ryan appeals here from the denial of his motion for

a new trial (No. 78-1845), from the denial of his motion to

dismiss the indictment because it violated the government’s

“Petite” policy (No. 78-2154), and from the denial of his

motion to quash the order denying him a new trial (No.

78-2155).

DISCUSSION

New Evidence

Ryan first contends that it was error to refuse to grant a new

-trial based on alleged new evidence in up to 40 affidavits he

submitted for that purpose after his initial conviction. Rule 33

of the Federal Rules of Criminal Procedure allows the granting

of a motion for a new trial based on newly discovered evidence

“if required in the interest of justice.” This court has held that

such motions should be granted only when it appears from the

motion and from the affidavits that (1) the evidence relied on

is in fact newly discovered, (2) the moving party has been

diligent, (3) the evidence is not merely cumulative or impeach-

ing, (4) the evidence is material, and (5) a new trial would

probably produce an acquittal. Evalt v. United States, 382 F.2d

424 (9th Cir. 1967); Wright v. United States, 353 F.2d 362

(9th Cir. 1965). See United States v. DePalma, 461 F.2d 240

(9th Cir. 1972). We have reviewed all the affidavits submitted

by Ryan in his efforts to obtain a new trial. None of them

satifies the requirements listed above. Those upon which Ryan

appears to rely most heavily contain no new evidence, but show

instead that well before trial, Ryan was aware of potential wit-

3a

nesses with certain information now charterized as “new”. Other

affidavits contain inadmissible hearsay and thus do not consti-

tute new evidence. Others purport to show that a key witness

(one Mizera) was coerced into testifying on behalf of the gov-

ernment. But the voluntariness of his cooperation was previously

dealt with by this court in United States v. Ryan, 548 F.2d at

789-90, and the affidavits raise no legal or factual questions not

dealt with fully there. This alleged error is without merit.

Jury Prejudice and Misconduct

Next, Ryan alleges that evidence of juror prejudice and mis-

conduct mandates a new trial. He claims that the jury voted

improperly in that it voted on the guilt or innocence of all de-

fendants at the same time rather than separately as allegedly

instructed by the court. In fact, however, the court did not so

instruct, but rather it instructed that the jury should consider

the guilt or innocence of each defendant separately. No affida-

vits claim this was not done. More importantly, an inquiry of

this type into jury deliberations is precluded by Rule 605(b),

Federal Rules of Evidence. See Farmers Coop. Elev, Ass’n. v.

Strand, 382 F.2d 224 (8th Cir. 1967); Walker v. United

States, 298 F.2d 217 (9th Cir. 1962).

Ryan’s allegations of prejudicial outside influence on juror

Bagwell are likewise without merit. Neither her conversations

with her husband nor the medical attention she received from

her doctor, were in violation of Parker v. Gladden, 385 US.

363 (1966) because the type of outside influence which the

Supreme Court criticized there was not present here. Also, con-

trary to Ryan’s assertion, her husband did not give her the so-

called Allen charge. See Allen v. United States, 164 U.S. 492

(1896). Other allegations regarding juror Bagwell are likewise

without merit.

One alternate juror admitted in an affidavit that she was

aware, during the trial, that a key defense witness was under

indictment for perjury, and that she was prejudiced against

Ryan for that reason. Had she not been an alternate juoror, or

had she actually deliberated on the verdict, this admission

would have provided possible grounds for granting a new trial

4a

under the reasoning found in Parker v. Gladden, supra.' She

did not deliberate, however, and there is no evidence that other

jurors who actually deliberated knew of the indictment. Thus

this admission provides no reason to grant a new trial.

The affidavit which purports to show that one juror was pre-

judiced against Ryan because her father had previously had

business dealings with him and believed him to be “guilty”

constitutes inadmissible hearsay, and is of questionable mater-

iality because it reports a statement made by her husband to an

investigator three years after the trial, and does not indicate that

the juror herself knew of or suspected her father’s alleged pre-

judice before or during the trial.

An Evidentiary Hearing was not Required

Ryan’s final contention regarding evidentiary matters deals

with the trial judge’s refusal to hold a hearing to consider evi-

dence in support of Ryan’s motion for a new trial after having

granted the hearing initially. He argues that because both Ryan

and the government agreed that a hearing should be held, the

trial judge had no discretion to refuse to hold it, citing Lyles v.

United States, 272 F.2d 910 (Sth Cir. 1959). The Record

shows that when Ryan requested the hearing, he had submitted

only two affidavits in support of the motion for a new trial, and

that the government merely concurred in the request for a hear-

ing in order to define more precisely the issues to be resolved.

Thereafter, Ryan submitted an additional 38 affidavits, which

added significantly to the trial judge’s ability to understand

the basis for Ryan’s motion. In Lyles, supra, on the other hand,

both the government and the defendant had affirmatively moved

for a hearing, and the few affidavits submitted there were

meager at best. Given the facts and circumstances of this case,

especially the abundance of information available to the trial

judge in the 40 affidavits, we hold that the trial judge did not

abuse his discretion in vacating the order which originally

granted the evidentiary hearing. It was entirely proper to follow

the ordinary practice of deciding the merits of a motion for a

new trial on the basis of affidavits alone. E.g., Lyles, supra; Gor-

don v. United States, 178 F.2d 896 (6th Cir. 1949), cert. de-

nied, 399 U.S. 935 (1953).

5a

In summary, it was not against the weight of the evidence to

deny Ryan’s motion for a new trial, none of the affidavits pre-

sented by Ryan contains new evidence that is material or admis-

sible, and it was not an abuse of discretion to deny the eviden-

tiary hearing.

The Petite Policy

Ryan next contends that it was a violation of the govern-

ment’s “Petite”? policy (Petite v. United States, 361 U.S. 529

(1960) ) to prosecute him under federal law after three unsuc-

sessful attempts to prosecute him under Nevada law for essenti-

ally the same acts. The Justice Department’s policy prohibits

federal prosecution ‘where there has already been a state prose-

cution for substantially the same act or acts . . .” unless the

U.S. Attorney recommends and an Assistant U.S. Attorney Gen-

eral approves. See Department of Justice Press Release, dated

April 16, 1959. The policy was formulated in response to two

Supreme Court cases, Abbate v. United States, 359 US. 187

(1959), and Barkus v. Illinois, 359 U.S. 121 (1959), which

held that prosecution by both state and federal authorities for

the same illegal acts did not violate double jeopardy prohibi-

tions of the Fifth Amendment to the Constitution.

That policy was not violated here. It is clear from Ryan v.

Eighth Judicial Dist. Ct. in and for Cty. of Clark, 88 Nev. 638,

503 P,2d 842 (1972), that jeopardy never attached in any of

the state court proceedings. The Nevada State Supreme Court

ruled that the Nevada Attorney General had no power to file

an infomation against Ryan, not because jeopardy had attached,

but because the statute under which the information was sought

required at least the concurrence of a district attorney. Nothing

in the opinion precluded further prosecution if the proper pro-

cedures were followed. It is also fairly clear that the scope of

the Petite policy was intended to be coextensive with double

jenpardy principles; that is, it was intended to protect against

the harsh results of double jeopardy in situations where that

constitutional principle does not apply because of principles of

federalism. The Supreme Court recently stated, with reference

to the Petite Policy:

6a

“Although not constitutionally mandated, this Executive

policy serves to protect interest which, but for the ‘dual

sovereignty’ principle inherent in our federal system, would

be embraced by the Double Jeopardy Clause.”

Rinaldi v. United States, 434 U.S. 22, 29 (1977).

Because jeopardy never attached, the Petite policy was not

violated, and the trial judge’s denial of the motion to dismiss

the indictment was therefore not erroneous.

Ryan’s contentions regarding collateral estoppel are likewise

without merit. No issue of ultimate fact was ever decided in any

state court proceeding. See Ashe v. Swenson, 397 US. 436

(1970).

We have carefully reviewed other claims raised by Ryan and

we find no merit in them. The decisions of the trial court are

therefore, in all respects, AFFIRMED.

'The Court stated there that the defendant was entitled to a trial by

“12, not 9 or even 10, impartial and unprejudiced jurors.” 385 U.S. at

366. The statement was made in the context of the fact that in Oregon,

where the controversy arose, the votes of only 10 of 12 jurors were necessary

to convict; the point being that every single deliberating juror must be free

from preyudice. Ryan had his 12 unprejudiced jurors, and Parker v.

Gladden requires no more.

7a

APPENDIX ‘“B”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

James G. RyAn,

win scion. abies Nos. 78-1845

¥, ) 78-2154

UNireD STATES OF AMERICA, 78-2155

Plantiff-Appellee.

ORDER DENYING PETITION FOR REHEARING

and REJECTING SUGGESTION FOR

REHEARING EN BANC

Before: JUDGES BROWNING and CARTER, Circut Judges,

and WOLLENBERG, District Judge.

The panel in the above entitled case has unanimously voted to

deny the petition for rehearing.

The panel has voted to amend the unpublished Memorandum

on page 1, line 20 of the slip sheet dated March 2, 1979 to

insert “$5,000” in place of “$8,000.”

The suggestion for rehearing en banc having been circulated

to all active judges and no judge having voted for a rehearing

en banc.

IT IS ORDERED that the petition for rehearing is denied;

that the suggestion for rehearing en banc is rejected, and the

slip sheet dated March 2, 1979 is amended as set forth above.

8a

APPENDIX ‘“C”

V. DeVOE HEATON

United States Attorney

PAUL S. GOLDMAN

Assistant United States Attorney

300 Las Vegas Blvd. South

Las Vegas, Nevada 89101

385-6336

IN THE UNITED STATES DISTRICT COURT

FOR THE DISRICT OF NEVADA

UNITED STATES OF AMERICA,

Plantiff,

V.

James G. Ryan, Criminal - LV 2698

ApRIAN WILSON and

BERNARD ZELDIN,

Defendants.

INDICTMENT for violation of Title 18 United States

Code, Sections 1952, 2 and 371

THE GRAND JURY CHARGES:

COUNT I

From on or about the Ist day of January, 1972, and continu-

ously thereafter up to and including the 23rd day of May, 1972,

in the Federal Judicial District of Nevada and elsewhere,

JAMES G. RYAN, ADRIAN WILSON and BERNARD ZEL-

DIN, the defendants herein, wilfully and knowingly did com-

bine, conspire, confederate and agree together with each other

and with Miro ‘Mike’ Mizera, named as a co-conspirator herein

but not as a defendant, and with divers other persons to the

Grand Jury, unknown, to commit offenses against the United

9a

States: that is, knowingly and wilfully traveling in interstate

commerce and using and causing to be used wire communica-

tion and other facilities in interstate commerce between the

State of California and Clark County in the State and Federal

Judicial District of Nevada, with the intent to promote, manage,

establish, carry on, and facilitate the promotion, management,

establishment, and carrying on of an unlawful activity, that is,

bribery, in connection with a rezoning application for a certain

piece of property located in Clark County, Nevada, in violation

of the laws of the State of Nevada, to wit: Nevada Revised Stat-

utes, Title 16, Chapter 197, Sections 197.020, 197.030, and

197.040, and thereby in violation of Title 18, United States

Code, Section 1952.

1. It was part of said conspiracy that the unindicted co-

conspirator Miro “Mike” Mizera, during the periods named in

this indictment, communicated telephonically from Las Vegas,

Nevada, to defendant ADRIAN WILSON in the State of Cali-

fornia.

2. It was further a part of said conspiracy that the unindict-

ed co-conspirator Miro “‘Mike’’ Mizera would contact defendant

JAMES G. RYAN and other County Commissioners for the

purpose of obtaining favorable votes on an application for a

zoning change in relation to a certain piece of property located

in Clark County, Nevada.

3. It was further a part of said conspiracy that unindicted

co-conspirator Miro ‘‘Mike’’ Mizera would meet with defend-

ant JAMES G. RYAN to pay to defendant RYAN a sum of

maney given to Mizera by co-defendants ADRIAN WILSON

and BERNARD ZELDIN in return for defendant RYAN’S fa-

vorable vote on a rezoning application.

4. It was further a part of said conspiracy that defendant

JAMES G. RYAN would use a fictitious name when communi-

cating with unindicted co-conspirator Miro “Mike” Mizera.

5. At the times hereinafter mentioned, the defendants com-

mitted the following overt acts in furtherance of said conspiracy

and to effect the objects thereof:

A. On May 17, 1972, defendant ADRIAN WILSON

10a

withdrew a sum of money from the Security Pacific Na-

tional Bank, Los Angeles, California.

B. On May 21, 1972, defendant ADRIAN WILSON met

with unindicted co-conspirator Miro ‘‘Mike’’ Mizera at the

Desert Inn Hotel, Las Vegas, Nevada.

C. On May 22, 1972, defendant JAMES G. RYAN, at

a meeting of the Clark County Commissioners, moved for

approvel of and voted for a rezoning application then pend.

ing before the Clark County Commissioners.

D. On May 22, 1972, following the aforementioned meet-

ing of the Clark County Commissioners, defendants ADRI-

AN WILSON, BERNARD ZELDIN and unindicted co-

conspirator Miro “Mike” Mizera met at the Tam O'Shanter

Motel in Las Vegas, Nevada.

E. On May 23, 1972, unindicted co-conspirator Miro

“Mike” Mizera delivered to defendant JAMES G. RYAN

a sum of money totaling $5,000.00.

All in violation of Title 18, United States Code, Section 37:.

COUNT II

That on or about the Ist day of January, 1972, up to and in-

cluding the 23rd day of May, 1972, in the Federal Judicial

District of Nevada, JAMES G. RYAN, ADRIAN WILSON and

BERNARD ZELDIN, defendants herein, did travel in interstace

commerce between the State of California and Clark County, in

the State and Federal Judicial District of Nevada, and did use

and cause to be used wire communication and other facilities

in interstate commerce, all with the intent to promote, manage,

establish, carry on, and to facilitate the promotion, management,

establishment and carrying on of an unlawful activity, that is

bribery in connection with a rezoning application for a certain

piece of property located in Clark County, Nevada, in violation

of the laws of the State of Nevada, to wit: Nevada Revised

Statutes, Title 16, Chapter 197, Sections 197.020, 197.030 and

197.040, and thereafter performed and caused to be performed

acts to promote, manage, establish, carry on, and to facilitate the

promotion, management, establishment and carrying on of said

lla

unlawful activity; all in violation of Title 18, United States

Code, Section 1952 and Title 18, United States Code, Section 2.

A TRUE BILL:

Warren R. Neustrom

FOREMAN OF THE GRAND JURY

V. DeVoe Heaton

V. DeVOE HEATON

United States Attorney

l2a

APPENDIX “D”

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

LAS VEGAS, NEVADA

CRIMINAL - LV 2698. RDF

UNITED STATES OF AMERICA,

“i MINUTES OF

: THE COURT

James G. RYAN, ET AL, DATED: March 24, 1978

PRESENT: HON. ROGER D. FOLEY, District Judge

Deputy Clerk: FAYE McMILLAN

Reporter: NONE APPEARING

U. S. Attorney by: NONE APPEARING

Counsel for Defendant(s): NONE

APPEARING

Defendant(s) is/are not present.

MINUTE ORDER IN CHAMBERS XXX

IT IS ORDERED that the Government's motion to forfeit

bribe moneys, filed June 10, 1977, is hereby granted.

IT IS FURTHER ORDERED that Defendant Ryan's motion

for a new trial, filed June 16, 1977, is hereby denied.

IT.IS FURTHER ORDERED that Defendant Wilson’s mo-

tion to withdraw monies deposited in Court, filed February 13,

1978, is hereby denied.

l3a

APPENDIX “E”

UNITED STATES DISTRICT COURT

DISRICT OF NEVADA

LAS VEGAS, NEVADA

UNITED STATES OF AMERICA,

VS.

James G. RYAN, ET AL.

CRIMINAL - LV - 2698, RDF

MINUTES OF

THE COURT

DATED: April 27, 1978

PRESENT: HON. ROGER D. FOLEY, District Judge

Deputy Clerk: FAYE McMILLAN

Reporter: NONE APPEARING

U. S. Attorney by: NONE APPEARING

Counsel for Defendant(s): NONE

APPEARING

Defendant(s) is/ not present.

MINUTE ORDER IN CHAMBERS XXX

IT IS ORDERED that the following listed motions are here-

by denied:

1. Motion for dismissal of the indictment against Defendant

Ryan based upon violation of the Petite-Rinaldi doctrine,

filed on behalf of Defendant Ryan, on March 29, 1978.

2. Motion to quash the Minute Order, entered March 24,

1978, as to Defendant Ryan and to reconsider Defendant

l4a

Ryan’s motion for a new trial, filed on behalf of Defend-

ant Ryan, on March 30, 1978

. Motion to strike the local U.S. Attorney’s request, erron-

eously made in the form of an apparant motion to dismiss

Defendant Ryan’s motion to quash, filed on behalf of

Defendant Ryan, on April 20, 1978.

. Motion to strike the local U.S. Attorney’s request erron-

eously made in the form of an apparent motion to deny

Defendant Ryan’s motion to dismiss indictment, filed on

behalf of Defendant Ryan, on April 20, 1978.

15a

APPENDIX ‘“F”

CRIMINAL PROSECUTION

DEPARTMENT OF JUSTICE

SEAL

FOR RELEASE TO A.M. NEWSPAPERS

MONDAY, APRIL 6, 1959

Ninety four United States Attorneys from as many districts

in the states and territories, will convene here Monday for a

two-day conference with officials of the Department of Justice.

They will discuss problems of Federal law enforcement, with

especial reference to the drive on organized crime and racketeer-

ing, and intra-departmental administrative matters.

The group will be welcomed Monday morning by Attorney

General William P. Rogers and one of the first matters to be

presented to them will be the following statement:

MEMORANDUM TO THE

UNITED STATES ATTORNEYS

In two decisions on March 30, 1959, the Supreme Court of

the United States reaffirmed the existenc: of a power to prose-

cute a defendant under both federal and state law for the same

act or acts. That power, which the Court held is inherent in our

federal system, has been used sparingly by the Department of

Justice in the past. The purpose of this memorandum is to in-

sure that in the future we continue that policy. After a state

prosecution there should be no federal trial for the same act or

acts unless the reasons are compelling.

In Abbate v. United States and Bartkus v. Illinois the Supreme

Court held that there is no violation of the double jeopardy pro-

hibition or of the due process clause of our federal Constitution

where there are prosecutions of the defendant, both in the state _

and in the federal court, based upon the same act or acts.

This ruling reaffirmed the holding in United States v. Lanza,

l6a

260 U.S. 377, decided by the Supreme Court in 1922. In that

case Chief Justice Taft, speaking for a unanimous Court, said:

“We have here two sovereignties, deriving power from

different sources, capable of dealing with the same subject

matter within the same territory. . . . Each government in

determining what shall! be an offense against its peace and

dignity is exercising its own sovereingty, not that of the

other.

“Tt follows that an act denounced as a crime by both na-

tional and state sovereingties is an offense against the peace

and dignity of both and may be punished by each.”’

But the mere existence of a power, of course, does not mean

that it should necessarily be exercised. In the Bartkus case the

Court said:

“The men who wrote the Constitution as well as the citi-

zens of the member states of the Confederation were fear-

ful of the power of centralized government and sought to

limit its power. Mr. Justice Brandeis has written that sep-

aration of powers was adopted in the Constitution ‘not to

promote efficiency but to preclude the exercise of arbitrary

power.’ Time has not lessened the concern of the Founders

in devising a federal system which would. likewise be a

safeguard against arbitrary government. The greatest self-

restraint is necessary When that federal system yields re-

sults with which a court is in little sympathy.” (Emphasis

added )

The Court held then that precedent, experience and reason sup-

ported the conclusion of separate federal and state offenses.

It is our duty to observe not only the rulings of the Court

but the spirit of the rulings as well. In effect, the Court said

that although the rule of the Lanza case is sound law, enforce-

ment officers should use care in applying it.

Applied indiscriminately and with bad judgment it, like most

rules of law, could cause considerable hardship. Applied wisely

it is a rule that is in the public interest. Consequently — as the

Court clearly indicated — those of us charged with law enforce-

17a

ment responsibilities have a particular duty to act wisely and

with self-restraint in this area.

Cooperation between federal and state prosecutive officers is

essential if the gears of the federal and state systems are to mesh

properly. We should continue to make every effort to cooperate

with state and local authorities to the end that the trial occur in

the jurisdiction, whether it be state or federal, where the public

interest is best served. If this be determined accurately, and is

followed by efficient and intelligent cooperation of state and

federal law enforcement authorities, then consideration of a

second prosecution very seldom should arise.

In such event I doubt that it is wise or practical to attempt

to formulate detailed rules to deal with the complex situation

which might develop, particularly because a series of related

acts are often involved. However, no federal case should be

tried when there has already been a state prosecution for sub-

stantially the same act or acts without the United States Attor-

ney first submitting a recommendation to the appropriate As-

sistant Attorney General in the Department. No such recom-

mendation should be approved by the Assistant Attorney Gen-

eral in charge of the Division without having it first brought

to my attention.

/s/ William P. Rogers

Attorney General

18a

APPENDIX “G”

88 Nev., Advance Opinion 172

IN THE SUPREME COURT OF THE

STATE OF NEVADA

JAMES RYAN, Perrrioner, 6 EIGHTH JUDICIAL DIS.

TRICT COURT OF THE STATE OF NEVADA, IN AND

FOR THE COUNTY OF CLARK, Responvenr.

No. 7033

November 30, 1972

Petition for writs of prohibition and habeas corpus.

WRITS GRANTED.

Mowsray, ]J., dissented

Harry FE. Clatborne and Annette R. Quintana, of Las Vegas

lor Petitioner.

Robert List, Attorney General, and Herbert F. Ablswede.

Chief Deputy Attorney General, for Respondent.

OPINION

By the Court, Thompson, J.:

This original proceeding for writs of prohibition and habeas

corpus secks to stop further action in the Eighth Judicial Dis-

trict Court upon an information filed independently by the

Attorney General of Nevada with leave of that court, and to

secure the petitioner's discharge from restraint occasioned there-

by. The information purportedly was filed pursuant to the pro-

visions of NRS_ 173.035(2) which allows the district attorney,

by leave of court, to file such an information following a pre-

19a

liminary examination in which the accused has been discharged.'

It is the contention of the petitioner, James Ryan, that the

mentioned statute does not invest the attorney general with

authority to file such an information, that the district court could

not grant him permission to do so, and that such action and

any further proceedings thereon is and would be void for want

of jurisdiction.

The information charges James Ryan, as a public officer, with

receiving a bribe in violation of NRS 197.040, Originally, the

attorney general commenced the prosecution of Ryan by filing a

criminal complaint. Action thereon was held in abeyance while

the attorney general presented his case to the grand jury of

Clark County, which body declined to indict. Thereafter, a pre-

liminary examination was held upon the criminal complaint and

the charge was dismissed by the magistrate for want of probable

cause. Following these adversities, the attorney general sought

to initiate prosecution through the auspices of NRS 173.035(2).

He did so independently and without requesting the district

attorney of Clark County to act. Whether the attorney general

may proceed in that manner is the only issue we need consider.

1. NRS 173.035(2) does not expressly grant such authority

to the attorney general. Only the district attorney is given the

right to file an information with leave of court following a pre-

liminary examination in which the accused has been discharged.

'NRS 175.055. Fo An information may be filed against any person for

any offense when the person

(a)

(Bb)

2. Uf, however, upon the preliminary examination the accused has been

discharged, of the affidavit or complaint upon which the examination has

been held has not been delivered to the clerk of the proper court, the district

attorney may, upon affidavit of any person who has knowledge of the

commission of an offense, and who is a competent witness to testify in the

case, setting forth the offense and the name of the person or persons charged

with the commission thereof, upon bemp furnished with the names of the

witnesses for the prosecution, by leave of the court first had, file an infor-

mation, and process shall forthwith issue thereon. The affidavit mentioned

hevem need not be filed in cases where the defendant has waived a prelim

nary CXamination, of upon such preliminary examination has been bound

over to appear at the court having jurisdiction,

20a

The statute is designed to provide a safety valve against an

arbitrary or mistaken decision of the magistrate, Maes v. Sheriff,

86 Nev. 317, 468 P.2d 332 (1970); Martin v. Sheriff, 88 Nev.

303,496 P.2d 754 (1972), in a prosecution initiated by the dis-

trict attorney and erroneously dismissed. Indeed, our statutory

scheme invests control of the information process in the district

attorney to the exclusion of others. The legislature wisely has

forbidden dua! control. For example, NRS 173.045(1) provides

that all information shall be filed by the district attorney, He

may elect not to file an information after a preliminary examin-

ation has occurred and the accused has been held to answer,

but must give his reasons in writing for not doing so. NRS

173.055(2). On the other hand, he may file an information

with leave of court, notwithstanding a preliminary examination

in which the accused has been discharged. NRS 173.035(2).

These provisions declare the legislative purpose to grant the

district attorney of the proper county control over the informa-

tion process. The attorney general is not mentioned, and the

conclusion is inevitable that he simply is not empowered to

initiate a prosecution by information independently of the dis-

trict attorney. Woodahl v. District Court, 495 P.2d 182 (Mont.

1972).

Of course, the attorney general may be invited to take over

or assist in the prosecution of a criminal case. The judge of a

proper court, in extreme cases, require that all available

evidence be delivered to the attorney general if the district attor-

ney refuses to prosecute. NRS 173.065. The district attorney

through the board of county commissioners may request the

assistance of the attorney general to prosecute. NRS 228.130.

Moreover, the attorney general may appear in and take exclusive

charge of a prosecution when, in his opinion, it is necessary,

or when requested to do so by the governor. NRS 228.120(3).

This provision, however, contemplates a pending prosecution,

since a “prosecution” does not exist until a charge has been

tiled, and if filed, has not been dismissed

In the matter at hand, the preconditions to attorney general

intervention do not exist. He was not invited to act by the judge.

He was not requested to act by the district attorney through the

board of county commissioners. Neither was there a pending

2la

prosecution. It had been dismissed following preliminary exam-

ination, and the accused was discharged.

The power to “supervise” a district attorney which is granted

to the attorney general by NRS 228.120(2), means supervision

and cannot sensibly be read as a grant of power to usurp the

function of the district attorney.

Finally, NRS 228.170 which allows the attorney general to

commence or defend a “suit,” does not bear upon this case. By

using the word “suit” in contrast to the word “prosecution” used

in NRS 228.120( 3), and the words “criminal cases’’ used in NRS

228.130, the legislature made clear its intention that the author-

ity of NRS 228.170 embraces only civil matters. Indeed, that

section has only been utilized in the civil area. State v. Moore,

46 Nev. 65, 207 P. 75 (1922); State v. Cal. M. Co., 13 Nev.

203 (1878); State v. C. P. R. R. Co. 10 Nev. 47 (1875).

2. The attorney general is a constitutional officer in the

executive branch of our government. Art. 5; Sec. 19. He, along

with the secretary of state, state treasurer, state controller and

superintendent of public instruction ‘shall perform such other

duties as may be prescribed by law.” Art. 5; Sec. 22. The phrase

“such other duties” is used because art. 5 sec. 20 does, to some

extent, specify the duties of the secretary of state. However,

duties and powers are not specified for the other mentioned

state officers. Such duties and powers were to be legislatively

defined. The powers and duties of the attorney general, there-

fore, are wo be found only in legislative enactment. They are not

found anywhere in the Constitution of our State.

In declaring the rights of an accused, art. 1, sec. 8 of our

Constitution provides, among other things, that one may not be

tried for a capital or other infamous crime except “upon pre-

sentment or indictment of the grand jury, or upon information

duly filed by a district attorney or attorney general of the State

....’ The right to be tried by information was given by constitu-

tional amendment which became effective in 1912, the purpose

of which was to offer an alternative method for criminal pro-

secution.

The quoted provision is not self-executing. It is simply a lim-

22a

itation on legislative power within which legislation is to be

‘enacted. Wren v. Dixon, 40 Nev. 170, i167 P. 324 (1916). The

legislature has responded by defining the duties of the grand

jury, NRS ch. 172, the presentment, indictment and information

process, NRS chs. 172, 173, the qualifications and duties of the

district attorney, NRS ch. 252, and attorney general NRS ch. 228.

Consequently, the power of the attorney general to utilize the

information process mentioned in art. 1, sec. 8, of our Constitu-

tion is to be found in legislative enactment and not otherwise. We

have already shown that his power does not encompass the pro-

cedure here sought to be utilized.

3. ‘The common law of England, so far as it is not repug-

nant to or in conflict with the Constitution and laws of the

United States, or the Constitution and laws of this state, shall

be the rule of decision in all courts of this state.’”” NRS 1.030.

Assuming, without deciding, that the common law may have

granted the attorney general the power he seeks here to exer-

cise, cf. State v. Moore, 46 Nev. 65, 207 P. 75 (1922), such

an exercise of power would be repugnant to the statutory law

of this state, as we have already explained. Woodahl v. District

Court, 495 P.2d 182 (Mont. 1972). The attorney general may

not look to the common law to justify his action.

The requested writs are granted. James Ryan is discharged

from restraint.

ZENOFF, C. J., and GUNDERSON, JJ., and McDaNigL, D. J.,

concur.

Mowsray, J. dissenting:

Respectfully I dissent from the majority opinion granting the

petition of habeus and prohibition and discharging the _peti-

tioner.

The majority has ruled that, absent a request by a district

attorney or a request by a district judge or pending litigation

already underway, the attorney general is powerless to file a

criminal information. I am constrained to disagree with the

majority, because in my opinion there is constitutional and

statutory authority for the attorney general to proceed as he

did in this case.

23a

First, the attorney general is a constitutional officer in the

executive branch of our state government. Nev. Const. art. 5,

§19.' Traditionally, the office of attorney general had _ its

origin in the early English system of jurisprudence. The attorney

general was the chief law enforcement officer of the Crown

and its legal representative in the courts.

Article 1, section 8, of the Nevada Constitution provides that

‘“(n)o person shall be tried for a capital or other infamous

crime . . . except on presentment or indictment of the grand

jury, or upon information duly filed by a district attorney, or

attorney-general of the state. . . .”* An information is a state-

ment by a district attorney or the attorney general to the court

that on a certain day a named person committed an offense

against the peace and dignity of the State of Nevada.

Article 5, section 22, of the State Constitution provides that

the attorney general in addition to his constitutional duties shall

perform such other duties as may be prescribed by law.* The

attorney general has numerous statutory duties and powers. For

instance, he may appear before any grand jury when, in his

opinion, it is necessary, and present evidence of the commission

of a cruue. He is expressly given supervisory powers over all

the district attorneys of the State in all matters pertaining to the

duties of their offices. When, in his opinion it is necessary to do

'Nev. Const., art. 5, § 19:

“A secretary of state, a treasurer, a controller, and an attorney general,

shall be elected at the same time and places, and in the same manner as

the governor. The term of office of cach shall be the same as is prescribed

for the governor. Any elector shall be eligible to either of said offices.”

2Nev. Const., art. 1, § 8:

“No person shall be tried for a capital or other infamous crime (except

in cases of impeachment, and in cases of the militia when in actual service

and the land and naval forces in time of war, or which this state may keep,

with the consent of congress, in time of peace, and in cases of petit larceny,

under the regulation of the legislature) except on presentment or indict-

ment of the grand jury, or upon information duly filed by a district attor

ney, or attorney-general of the state, . . .”

3Nev. Const., art 5, § 22:

“The .. . attorney general shall perform such other duties as may

be prescribed by law.”

24a

so, he may appear in and take exclusive charge and conduct any

prosecution in any court in the State for a violation of any law

of the State. NRS 228.!20.* The trial judge having jurisdiction

of a crime may require that all available evidence relating to a

crime be turned over to the attorney general if the district at-

torney refuses to prosecute the person charged for such a crime.

NRS 173.065.°

NRS 173.035, subsection 2, provides that, upon appropriate

affidavit of a competent witness, an information may be filed

by the district attorney, with leave of the court, following a

preliminary examination where the defendant has been dis-

charged.® It is true that the statute names only the district attor-

ney therein and does not mention the attorney general. Neither

does NRS 173.045, subsection 1, which provides that all infor-

mations shall be filed in the court having jurisdiction of the

offense named, by the district attorney of the proper county as

4NRS 228.120, in relevant part:

The attorney general shall have the power:

“1. To appear before any grand jury, when in his opinion it is neces

sary, and present evidence of the commission of a crime or violation of any

law of this state; to examine witnesses before the grand jury, and to draw

indictments or presentments for such grand jury.

"2. To exercise supervisory powers over all district attorneys of the state

in all matters pertaining to the duties of their offices, and from time to time

require of them reports as to the condition of public business entrusted to

then charge.

“3. To appear in and to take exclusive charge of and to conduct any

prosecution in any court of this state for a violation of any law of this

state, when in his opinion it is necessary, or when requested to do so by

the governor.”

5NRS 173.065:

“The judge of the court having jurisdiction may in extreme cases, upon

affidavit filed with him of the commission of a crime, require all available

evidence to be delivered to the attorney general for prosecution, if the dis-

trict attorney refuses to prosecute any person for sch crime.”

®NRS 173.035, in relevant part:

“2. If, however, upon the preliminary examination the accused has been

discharged, or the affidavit or complaint upon which the examination has

been held has not been delivered to the clerk of the proper court, the dis-

trict attorney may, upon affidavit of any person who has knowledge of the

25a

informant.’ I do not interpret the failure to expressly name the

attorney general as well as the district attorney in the two stat-

utes cited above as an attempt by the Legislature to bar the at-

torney general from signing and filing criminal informations,

and if such were the legislative intendment, it was in my opinion

constitutionally impermissible. The Nevada Constitution states

that one may be tried only upon presentment or indictment of

the grand jury or upon information duly filed by a district at-

torney or the attorney general. Nev. Const., art 1, § 8, supra.

Under NRS 228.120, subsection 3, supra, the attorney gen-

eral is given the express authority to “appear in and to take ex-

clusive charge of and to conduct any prosecution in any court

of this state, when in his opinion it is necessary . . .”” (Emphasis

added.) In my opinion, the natural interpretation of the words,

“appear in and take exclusive charge of’’, is that the attorney

general may initiate criminal proceedings against a defendant

by signing and filing an information. Indeed, in NRS 228.120,

subsection 1, supra, he is given the power to proceed by way

of indictment.

In view of the broad powers the attorney general is given to

intervene in criminal prosecutions and to supervise district attor-

neys, as well as to appear before grand juries and to draw

and present indictments, he should not, in my opinion, be pre-

cluded from signing and filing a criminal information.

The majority has relied upon the case of State ex rel. Wood-

ahl v. District Court 495 P.2d 182 (Mont. 1972). That case is

commission of an offense, and who is a competent witness to testify in the

case, setting forth the offense and the name of the person or persons charged

with the commission thereof, upon being furnished with the names of the

witnesses for the prosecution, by leave of the court first had, file an infor-

mation, and process shall forthwith issue thereon. The affidavit mentioned

herein need not be filed in cases where the defendant has waived a prelim-

inary examination, or upon such preliminary examination has been bound

over to appear at the court having jurisdiction.”

7NRS 173.045, in relevant part:

“1. All information(s) shall be filed in the court having jurisdiction of

the offenses specified therein, by the district attorney of the proper county

as informant, and his name shall be subscribed thereto by himself or by his

deputy.”

26a

distinguishable from this case because the court in Woodahl ©

noted, at 185, that in Montana, unlike Nevada, there is ‘‘a com-

plete absence of any constitutional or statutory power vested

in the attorney general to file an information or initiate a prose-

cution independent of the county attorney.”’ (Emphasis added. )

For these reasons, I would deny the writs and affirm the

order of the district judge that the petitioner be held to answer

the charge.

27a

APPENDIX “H”

NRS 172.255 provides:

172.255 Finding and return of presentment or indictment;

effect of failure to indict.

1. A presentment or indictment may be found only upon

the concurrence of 12 or more jurors. The presentment or in-

dictment shall be returned by the grand jury to a judge in open

court or, in the absence of the judge, to the clerk of the court

in open court, who shall determine that 12 or more jurors con-

curred in finding a presentment or indictment. If the defendant

has been held to answer and 12 jurors do not concur in finding

a presentment or indictment, the foreman shall so report to the

court in writing forthwith.

2. The failure to indict shall not, however, prevent the same

charge from being again submitted to a grand jury or as often

as the court shall so direct. But, without such direction, it shall

not be again submitted.

(Added to NRS by 1967, 1411; A 1971, 208)

NRS 173.035 provides, in pertinent part:

173.035 Information may be filed following preliminary

examination when accused bound over or when preliminary ex-

amination waived; when information filed on affidavit; limita-

tion of time.

2. If, however, upon the preliminary examination the ac-

cused has been discharged, or the affidavit or complaint upon

which the examination has been held has not been delivered to

the clerk of the proper court, the district attorney may, upon

affidavit of any person who has knowledge of the commission

of an offense, and who is a competent witness to testify in the

case, setting forth the offense and the name of the person or

persons charged with the commission thereof, upon being fur-

nished with the names of the witnesses for the prosecution, by

leave of the court first had, file an information, and process

shall forthwith issue thereon. The affidavit mentioned herein

need not be filed in cases where the defendant has waived a

28a

preliminary examination, or upon such preliminary examination

has been bound over to appear at the court having jurisdiction.

3. The information shall be filed within 15 days after the

holding or waiver of the preliminary examination, All informa-

tion shall set forth the crime committed according to the facts.

(Added to NRS by 1967, 1412)