Petition for Writ of Certiorari — Ritholz v. Michigan (No. 468)

‘ 6

foreman to Flint to inspect the equipment but no sale re-

sulted from-these negotiations. , Petitioner ultimately paid

_ Feiler. the expenses incurred by the latter in the course

of conducting these negotiations ( App. 458a).

Som*time in 1951 or 1952, petitioner telephoned: Dr.

Feiler <> request information relative to a patent iniringe-

ment acuen concerning contact Tens. As a result, Feiler

came to Chicayo to discuss the matter (App. 175-6). Feiler

and his attorney offered to sell -petitioner information

thought relevant to the patent suit for the sw of $10,008.00,

but the offer was refused. However, Feiler was paid his

expenses (App. 176a, 236a, 4002).

On November 1, 1951, Governor Williams appointed

Feiler to the Michigan Board of Examiners in yn

In 1952 or 1953, Feiler again visited petitioner in Chi-

‘ago and he testified that petitioner requested hin: to in-

spect petitioner’s contact lens laboratopy and render teclin-

‘al advice with respect to ifs operation, for which he re-

fcived Three Hundred and Fifty ($350.00) Dollars for lus

professional services on that date (App. 17S). Feiler did

not consider this transaction as conflicting with his duties

as a member of the Board. Tetitioner denied that he re-

quested technical assistance from Feiler but asserted that

Feiler had extorted this money from petitioner by reason

of his éfficial position vis-a-vis petitioner's business inter:

ests in Michigan (App. 49%a).

The next contact between Feiler,and petitioner occurred

in 1953 (App. 178a, 460a). Feiler testified that this tect

ing was arranged in Chicago for the purpose of brokering

a sale of lenses by a,Detroit Optometrist to petitions.

Feiler admitted that he received expense money froui pot’

tioner in connection with this meeting (App. 17a, 1c

7

180a) but petitioner testified that Feiler threa atenedsto put

him out of business in Michigan unless pe titioner paid him

Five Hundred ($500.00) Dollars (App. $a, 62a, GUTa-

610).

The next contact between Feiler and petitioner oecurre “d

in November 1954, as a result of a telephone call allegedly

initiated by petitioner, in the course of which, petitioner

asked Feiler whether he ‘tcould do anything about’’ the

Sanchick case. Feiler replied that he ‘could not do any-

thing”, but did not report the incident to anyone (App.

180a, ISla). No money or other thing of value was imen-

tioned. © Petitioner testified that Feiler had called him and

threatened revocation of licenses of other optometrists

allied with petitioner unless petitioner paid Feiler if

teen Thousand ($15,000.00) Dollars, which petitioner re-

fused to do (App. 40a).

The next contact occurred during the first week of

January, 1955, at which tune Fe lor testified that petimoner

ealled him from Chicago and told Feiler that *** * ° it

would certainly he. worth some money to see that the case

were (sie) washed up or washed out, that it- woul In*t he

worth 3 or 4 hundred dollars but that | ¢ould put a zero

behind that.’ Feiler reiterated that he couldn’ do any-

thing about the case: but despite Feiler’s négative attitnde,

a Detroit meeting was arranged for the following week!

(App. 1Sla, 1891). Petitioner testified that Feiler had

initiated the call and requested petitioner to micet oiler

in Detroit on January 12, 1955; that the meeting was ‘ur-

gent’, but the purpose: was not articulated (App. deta,

472A).

This conversation was the first one reported by Feiler

to Michigan Police authorities who thereatter arranged

with Feiler for monitoring the projected meeting CApp.

‘WWea-E8ha). In thé course’ of preparation for this meeting

8

Feiler was advised by State Police officials to he ‘tvery

normal in this relationship * * * not do anything that woul]

entrap Mr. Ritholz * * *? (App. ISd5a). Petitioner eae

to. Detroit and met with Feiler on January 12, 1955 ata

‘Detroit hotel. The conversation was monitored by the:

State Police.

In the course of this conversation, petitioner asked

Feiler if he would **wash this out (the Sanchick case) just

like anything else,” and that since petitioner would have to .

pay attorneys if it was not worked out, he would agwe

to pay Feiler the amount saved (App. 188a).. Respondent

interpreted this conversation as revealing petitioner to he

the aggr@sor—bribor. Petitioner contended that die had

decided to capitulate to Feiler’s previous extortionate d-

mands, and thus ensure that Feiler’s threats to destroy

petitioner’s business by effecting revocation of licenses of

optometrists associated with petitioner in Michigan would

not be consummated; that he had suggested that the San-

chick case be “worked out” because he believed that the

complaint had been originally promoted -by Feiler only

for the purpose of furnishing bargaining power for !ater

extortion.*

No arrest was made following this monitored conver=a-

.

tion. haat . :

Feiler testified that on Mareh 27, 1955, while the Board

was holding an official meéting, petitioner phoned to tell

him that he would be in Detroit later that day and asked

Feiler to meet him to discuss the Sanchick case. Drs.

oe

4 Petitioner testified that, after appointment to the Board, Feiter

met Ritho!lz in Chicago and said: “As & member of the Board I cou’ do

you a lot of good and a lot of harm” (App: 458a). Petitioner refusei to

pay Feiler any money (App. 465a). The Board subsequently filed its

complaint against Dr. Sanchick in September, 1954 (App. 47)a).

9

Howe and Grigware were in Feiler’s rem when petitioner

called and Feiler reported the call to them (App.. 15a-

IiMa).? :

Feiler later went to petitioner's hotel room where peti-

tioner again allegedly asked Feiler to *swork out” the

Sanchick, ease and told Feiler it woukl be worth a thou-

sand dollars.® Feiler again stated he could do nothing for

petitioner (App. 15a). Petitioner requested a meeting

for the next day. Feiler returned to his hotel and eon-

tactéd the Michigan State Polive and was advised by them,

‘not to have any further contact with Mr. Ritholz” (App.

15a).

The following day, petitioner called Feilet and asked

for a ineeting to discuss the Sanchiek case, Feiler again

stated he could do nothing but told petitioner, that) he

would be shopping at a named store, There he met peti-

tioner and accepted Five Hundred ($500.00) Dollars from

petitioner without thereafter reporting it until September

20, 1955, more than a month after péetitioner’s arrest on

August Sth (App. #97a-200a). Petitioner testified that

° The. minutes of this meeting disclose the efforts of the Board to

defeat legislation relative to “capping and steering” favorable to the

King Optical Company. Petitioner was expressly mentioned in this con-

nection in the minutes, in a way which suggests that the Board was hos-

tile to proposed legislation favored by petitioner, affecting the regulation

of the practice of optometry (App. 168a, 169a). °

® Petitioner was apparently the beneficiary of a falling market. In oe

earlier testimony Feiler stated that petitioner had offered. $5,000 or

$4,000 on January 5, 1955 (App. 152a). .

* For this default Feiler was ultimately removed from office by Gov-

_ ernor Williams (Supplemental Brief.and Appendix for Appellant, p. 58.

This document is included in the certified record.)

10

Feiler had demanded the Five Hundred ($509.00) Dellars

to ‘*swing” a vote on the five man Board and that he had

acceded to this demand (App. 479a-480a).°

When asked why he had arranged to see petitioner the

day after-he had been tqld by the State police not to con-

tact him further, Feiler replied: ‘

“we * © We had previous evidence on him, and r

wanted to get him, if. could, and this was just a

methiod of having him on the hook and letting out

the line a littie bit’ and playing him until we finally

would eateh him, which we did, fortunately.” (.\p-

pellant’s Supplemental Brief and Appendix pp.,

40sa-4isa.) — ad ae

Feiler testified that petitioner next contacted hina’ in

‘Flint by phone from Chicago in early June, 1955 acain

asking Feiler to ‘twork out” the Sanchick case, Feiler

advised petitioner that he couldn't do anything and siz:

gested that petitioner call “another member of the Byard

ot other members of the Board, if he wanted something

done” (App. 203a). Feiler explicitly suggested the name

of Board member Dr. Grigware (App. 204a). .

The next (and last) meeting between Feiler and peti

tioner, prior to petitioner's arrest, oceurred on Aucust

8, 1955, in a Lansing Hotel. According to Feiler, the

meeting was preceded by a number of phone calls fot

petitioner in which petitioner continued to ask Feiler t

work out the Sanchick case, but no, money was mentioned

and on each oceasion Feiler advised ‘petitioner that he

could do nothing (App. 20Ha, 20Ta). Feiler reported thes

phone ealls to the State Police. :

8 Petitioner testified that Feiler had apprized him of the possi‘)

of coopting at least one meimber of the Board, at the September ly

Chicago’ meeting (App. 465a)./7

11

On August 3, 1955, Feiler and Board member Howe,

were summoned to a conference sat) Lansing, the State

Capitol, by Assistant Attorney General Irving Beattie.

At this conference a detailed plan was outlined for en. |

trapping. petitioner. Beattie specifically instrueted the

conferees ** * * we didn't have to be too caretul about

entrapmint” (App. 410a).

Pursuant to the plan, Feiler telephoned: petitioner in

Chieago and informed him s*) think Vio getting this thing

lined up", then by way of soliciting a mecting with peti

toner, asked him’ ** When can we vameet?” (App. 420a),

Petitioner suggested a Detroit nieeting for August 7th

and Feiler then asked if petitioner “wasy going to bring

the stuff with him.” There was discussion about a ctid

dle man” and Mciler said: *? Bring the money with yous 1

do not want a middle amin, Pam the middle man™ (App.

2lla, 420a, 4355a).

It was in this conversation. that Feiler suggested the

Jayment of a specific stim of money to bribe a majority

of the Board. He testitied:

“Q. Txee. All right. Now, did you imention any

sun of money in vour talk with Mr. Ritholz ower the

phone?

A. DT beliewe that TP did, sir.

Q. Did vou do that at the suggestion of anyone?

Ai, Ou Ste:

( By whom?) Who made that suggestion?

).

A. Mr. Beattie.

And vou mentioned a sain of money, right!

A. Yes, sir,

Q, Did vou mention the snam of money that was

to de paid to vou by Mr. Rithelz? .

A. L believe J mentioned the sum of money that

would have to he paid fa the Poard necmnbe iS,

Q. To the Board members?

A. Yes, sir.

12

Q. And what was that sum of money that yor

mentioned ‘in. that. telephone conversation, based

upon vour best recollection ?

A. To the best of my recollection now, ] stated

that each Board member or the three Board nom

hers were to receive S3,000.00 each, :

Q. And a total of $9,000.00? ast

A. Ta the hest of my recollection, yes, sir” | ‘\y 1),

283a, W4a). (Kmphasis added.) *

Petitioner testified that the next day, Anuguet 4th he

-again spoke with Feiler by long distance telephone con-

cerning the dismissal of a Federal Court anti-trust caer

instituted by petitioner against members of the Beard:

that Feiler agreed it should be included as a part of ‘le

deal: and that Feiler reminded petitioner to bring ‘ly

$0,000—$3,000 for each Board member (App. $88ay. Yoon

_ petitioner complained, Feiler said the “Sbovs"* (Board ie ttl-

bere) had originally wanted $5,000 each but that be cer

had been able to reduce their demands (App. 488a).

Feiler’s testimony on this August 4th call agrees in sil

stance with petitioner's but dees not inelude amy tier ot

of specitie money amounts (App. 2l2a).

On August Sth, petitioner called Feiler and, aceori ne

to Feiler. asked that the other two members who, tes

with Feiler constituted a iad jority of the Board. be oo |

ent at the projected August 7th meeting, and that f

disclose their identity to petitioner, but keiler rer.

to identify the ether members (App. 215a).

‘Om Aucust 7th, in another monitored plone conse ss

tion with Beattie-and the State Polieé present. &

called petitioner in Detroit: to fdvise him that the ot ot

menbers of the Board could not be in Detroit and acy

to meet petitioner the following night in the Olds [1

in Lansing «App. Pl4a, 2a).

13

Assistant Attorney Gene ‘ral Beattie and the State poliee

thereupon summoned Board members Grigware and Howe

_to Lansing Where the latter were briefed as to their roles

at the meeting with petitioner.’ They were instructed in

substance *** °°? if possible get Mr. Rithels te pay us

SOU Hee’, and as soon 2s vou uret it, to wren tor the rein

swhere the officials were and show it to thei’ CXpp. ota)

and that they “did not have to be tee careful to entrap?

(App. Wha).

ee a

- On August 5, 1895, petitioner had contacted Pinkertori

_ detectives, told them ‘that he was anticipatiog: somebody

extorting money from hau", and employed them to tape

record the meeting, This they did’ lis placing a tape re

eorder under the supervision ef three Pinkerton operatives

in the hotel room adjacent te petitioner's (App. doa, o47a-

OM). :

Mt the hotel meeting petitioner gave Feiler three, ene

: ~_humlpedt dollars bills: the latter then gave one each to

“Howe and Grigware, with the understanding that the three

Board members would terininate proeee dings aiainst San-

cick. The Board imetubers then left) petitioner’s reem,

reported te the police in an adjacent reo, ane the latter

. then arrested petitioner in his ream and, in grespomss te

petitioner's demand te knew the rensen fer his arrest,

old hitn that the charge was Jiribing State officials. Pet

i‘ . . e ’ -

tioner respomeded: ‘dt should diave been the other way

@ 3 °

F e

Dr. Howe of Hillsdale, Michigan. repeatei!y refused State pel

ani Attorney General efforts te bring him to Lansing for the meeting

wthepetitioner and acquiesced only after three calis from different Stat

omciais (App. l2va, Joa. °

After contacting the Pinkerton-, petitioner consulte! Mr. Mareu-

Simon, a Detrrit attorney as to the — priety of &

obtain evidence of Feiler’s extortion and Mr. Simon told ! “go ahead’

(Arp 617a».

aking recordings te

14

(App: 498a). Petitioner advised the police of the presence

of three Pinkerton detectives in the adjoining room. The

police. first placed the detectives under arrest but, on its-

certaining their identity, released them but confiscated

the recording machine and equipment (App. 54a).

HOW THE FEDERAL QUESTION WAS RAISED

-At-the trial the issue of entrapment was raised and con-

siderable evidence was introduced in support of the claiu

(note extensive eitations to ‘the record supporting petl

tioner’s claim of entrapment in the Statement of the Case).

Although the Trial Judge gave a request to charge to

the jury on the issue of entrapment (App. 677a-G7sa), the

matter was not argued to’ the jury by petitioner's coun-

sel. Instead, he stated to the Coart We will clan tha

. (defense of entrapment), your Honor, even though we

didn't argue it” (App. 671a).

On appeal to the Michigan’ Supreme Court, petitioner

raised the defense of entrapment as a due process i--ue

in the Statement! of Questions Involved jin his brici, a

required by Rule 67 of the Michigan Conrt Rules ¢\:y

Brief on Appeal p. v, par. 6), and presented extensive ars:

ments In support thereof (App. Brief on Appeal pp. il+

126). |

In the Counter-Statement of Questions Involved in re

spondent’s brief in the Michigan Supreme Court, |

suant to Rule 68 of the Michigan Court Rules, the isa

was stated as follows; "10. Was the defendant deprive

of due process of law, because, as he ‘claimed, there wi

** * entrapment by police and prosecuting officials * **

(Appellee’s Brief and Appendix p. VID). The argue

upon this. issue appears on pp. 9-S4 of the same brici.

15

In its opinion, the Michigan Supreme Court neither dis-

cussed nor decided the entrapment issue. It ignored @®

Consequently, petitioner in his Application for Rehearing

to the Michigan’ Supreme Court, pointed out that the en-

-trapment issue as a denial af due process was not passed

upon by that Court and requested consideration, (.Appli-

cation for Rehearing pp. 2-10). The Michigan “Supreme

Court denied the Application for Rehearing without opin-

jon," :

REASONS FOR GRANTING WRIT

The facts in this case disclose that petitioner; engaged

ina competitive bitsiness involving the manufacture and

sale of eyeglasses, Was threatened with destruction of his

business by his competitors sitting as members of a State

tonrd which regulated and licensed the optometrists whose

geod will was essential to the continuation Of his business.

For this was the significance of the revocation. proceedings

instit.. ed by the Board against Dro Sanchick. )

Not only did the Board charge that Dr. Sanchick was

guilty by reason of his relationship with the Ning Optical

Company in prescribing glasses to customers referred by

King, but taplieit in the charge’ was the threat that any

Optometrist, in Miehigan who prescribed vlasses for cus-

tomers referred by King would’ be similarly dealt) with.

Although the Michigan Supreme Court ‘ultimuitely found

‘The issue of entrapment, though not discussed by the Michigan

Supreme Court, must have been decided adversely to petitioner, since a

decision on this issue favorable to petitioner, would have resulted in a

reversal of his conviction. This Court has the duty to examine the record

independemtly to “determine whether the federal question was necessar-

ily passed upon by the State Court.” Honeyman ev. Honan, 300 U.S. 14,

18, 57S. Ct. 350; Napue v. Illinois, 360 U.S. 264, 271-2, 79 S. Ct. 1173.

a ea 16

that the relationship was not in violation of the law (In

re Sanchick, supra), it is understandable that, a/ the time,

petitioner would be concerned that his competitors’ eco.

nomie p&wer exercised through a state agency whieh, hy

’ Statute, avas controlled by these same competitors, coul

result, in the destruction of his business."

It is in This context that petitioner's overtures to Feiler

(or, as petitioner asserted; Feiler’s overtures to petitioners)

must be judged in relation to his claim of entrapment,

Although the testimony* as to petitioner's sugcestaefi to

Feiler for washing out the charges against Dr. Saneliek

(as testified to by Feiler) were crude and assertive, they

were never of such a character ds to constitute bribery.

If they had been, it is clear that criminal proceedings .

would have been brought against petitioner in) January.

155, For it was then that the police had monitored the

conversatton between petitioner and Feiler at a hotel room

in Detroit, where petitioner asked that the: Sanchick case

be washed out and that he would pay Feiler the amount

saved as attorney fees if this were done.

Yet, it was not until after the hotel meeting of August’

8, 1955, that the police and the Attorney General] concluded

that ‘petitioner couidghe charged with bribery. .-The change

in character between the two meetings, we submit, lies in

the criminal ingredients which the State introduced into

‘2 The Board has no jurisdiction over dispensing opticians such as

King. For this reason King can engage in advertising the pr. of

glasses but optometrists such as Dr. Sanchick are not permitted to Jo ».

In this situ&tion, if optometrists could be intimidated into refusing to ac-

cept referrals from King, the Board would he able to’ econom cal'y

blockade King and accomplish indirectly what, by statute, it @oul! net

do directly. The Sunchick record at p. 216 (In re Sanchick, supra) shows

that the Board’s investigation of Dr. Sanchick in August, 1954 was “pr-

marily for the purpose of trying to obtain enough evidence for a court

case against King Optical Company.”

é

$ a :

the August meeting in ordeF to entrap petitioner into the

conunission of the crime. * i

etitioner’s overtures to Feiler in the January hotel

meeting, as well as in conversations prior to gind subse-

quent thereto, Were understandable reactions of a busi-

nessman being pushed'to the wall by his economic competi-.

fors in a power move directed from the vantage point of

State authority (disregarding the motive of extortion un-

» successfully advanéed by petitioner), Foolish and ama-

‘teurish though this overture may have been, it was not

bribery. ;

It Was in recognition of this lack of criminal aetion by

_ petitioner, that the Assistant Attorney General advised

the Board members on August Srd and 7thi in preparation

for the meeting of August Sth, we didn't have to be too

eareful about entrapment.’ “It would be difieult to find

better, evidence, than this statetnent. of knowledge by the

State that a citizen would.net vielate a law if left to his

own devices, but-that he could be made-to engage in the

criminal act only through entrapment,

’

Three ingredients were deemed necessary hy the Michi-

fan Attorney General to entrap petitioner: Kirst, to bring

hiininte Michigan: seeond, to lave him offer a ‘specitie

sum of qneney; and third, to bring in) Board members

otlier than Feiler as willing’to accept bribes,

It was in accord with this strategy that Feiler, at -the

. direction of the Assistant Attorney General, plone peti-

~ tioner’ in Chieago on August Srd. First. he asked peti-

tioner to a meeting in Mielugan: then, holding out the lure

'’ Feiler had first sugested in May that petitioner “call another

member of the Board, or other members of the Board if he wanted some-

thing done * * * I suggested that he call Dr. Grigware” (App. 205a,

»

24a).

1S

of business security against economie strangulation repre.

sented by the Sanchick case, he informed him that three

Board members, a majority, were ready to aceept F500

each to dismiss the proceedings.

The trap was now baited with a Board majority of three

members willing to accept money and dismiss the cliarzes

against Sanchick. It was this trap which the State sprung

on petitioner. The State proyiged the stage-set, the actors

and the props for the commission of the crime, and the

‘ petitioner reacted in accordance with the prearranced

script. |

The play. that had proved to be a farce. when enacted:

in the monitored hotel room, in Detroit in January, be-

came a tragedy after the script had been rewritten in an-

other. monitored hotel room in Lansing in August by an

Attorney General whose guide was: Don't ‘tbe too careful

about entrapment.” |

Much emphasis is placed by the State upon petitioner's

payment to Feiler of Five Hundred Dollars in) Mare),

1955. -But two considerations militate against this incident

constituting an answer to petitioner's claim of entrapiuen'.

First, on the previous day at a meeting of the Board,

Feiler was instructed by the State Police and by the Board

itself **not to have any further contact with Mr. Risholc”

(App. 15a). Yet Feiler not only received Five Flundred

Dollars from -petitioner’on the day following receipt of

these instructions, but he retained the money witheut not

fying anyone until September, six mronthis after he. fad

received the money and a month after. petitioner’s arrest

(App. 200a). This conduct on the part of Feiler-is em:

pletely incorfsistent with the State’s position that Pe ler

-

19:

was at all times-aécting as a decey for a potential ‘bribor?

erather it supports petitioner's claim of extortion.

Second, the State’ police and the State proseenting of.

ficial who joined tegether to entrap petitioner Were Un-

aware of the payment of this $500.00 when they made and:

earried out their plan. Hf it is the improper raction of the

police. rather than the motivation of the defendant whieh is

condemmed by the invocation of the entrapment doctrine,

then the State may not invoke. an incident of whieh it knew

nothing to provide éa post facto justihieation for its. legal

‘acts. ‘This indeed is the meaning of the eaealens opine

ions in Sherman ve US. 396 US. 809; Ct. SH, und

Sorrells vy U. S., INT Us. dee nom, Ct. eae -

14 This Court need not reject the Jury's verdict to bplieve petitioner's

testimony relative to extortion by Feiler before June 1955, This is so

because, althaurh the trial Court sent the petitioner's claim gf extortion

to the jury on the que ‘ation of petitioner's intent on August & 15 CApp.

STha), petitioner testified to no openly ectertionate demands for meney |

by Feiler after March #955, Feiler's conversations with petitioner: after

that date, as testified to by petitioner, were not attempts to extort. In

fact, it is petitioner's position that the uncontroverted evidence estab-

lishes that althougH Feiler was attempting to and did extort money from

petitioner through the March episode, thereafter, beginning with the

next episode in June, 1955, Feileh switched from extortion to ¢ ntrapment

by economic coercion. In view of the fact that petitioner’ never ch imesh

that Dvs. Howe or Grigware were attempting exortior as distinet from

Feiler’s recital to petitioner of the willingness of Howe and Grirware to,

accept bribes, and keeping in mind also that Fenier’s testimony estab-

lishes June, 1955 as the date Feiler proposed that petitioner approach

Howe and .Grigware, the Jury could have found that Feiler ceused ex-

toxting in March: 1955 and thereafter, simply acted as a “contact man?

between petitioner and Grigware and Howe to arrange bribe of the eae

two, See testimony of Feiler sure sting his role as “contact man” (Ay

2l0a, 21a; also Supplemental’ Brief and Appendix p. %6sa).

* Analysis of the Michigan decisions discloses that the defense w as

* Origins all ly recognized chiefly in order to vindicate a strong public policy -

against police solicitation or participation in crimes, This poticy was held

to outweigh the competing policy in favor of apprehension of criminals’

even though it is clear in a given case that the aefe ndant has-committed

(< ‘ontinued wn newt » qe)

o .

20

The facts in this ease, accepting the jury determination

on disputed issues necessary to its verdict, fully measure

up to the test of entrapment first stated in Sorrels aud

reaffirmed in Sherman, that the’**criminal conduct was the

product of the. creative activity of law-enforcement ol-

ficials.” For here, indeed, the State officials created and

carried out the ingenious and well-planned scheme by Witch

petitioner, instead of importuning, ¢ajoling and engaging

in hyperbolic efforts to extricate his business from an evo-

nomic squeeze, committed the erime of bribery.

This is not the case of a person who has been. engared

in an unlawful business or illegal activity such as.the sale

of narcotics: petitioner was, and for many years, had bee

engaygédin thie optical business. Nor were the State police

and other State officials dealing with a-known eriminai er

a person with a criminal record: petitioner had never been

aritsted or convicted (App. d01a).”

(Cantinued from preceding page)

an offense with the required criminal intent. Thus, in Savorders ».

People, 38 Mich. 218 (1878) the conviction of a lawyer for un'awfu))

removing public records was reversed on ground of entrapment, where

evidence established that defendant had requested a bailiff to assist ‘he

unlawful removal, and bailiff thereafter advised police, who thereu‘tter

trapped defendant in ftagrante, aided by information furnished by i ne:

pretending to work with defendant. See also People v. Pinls rion. %

Mich. 110 (1889), where conviction of a woman for keeping house 07

fame was reversed where evidence established that police agents v s.te

the “house” and engaged in intercourse with prostitutes there and (°°

testimony of the agent formed the basis for defendant's conviction. See

also People v2 Smith, 296 Mich. 176 (1941).

Cf Sherman v. UL S., supra, where- two earlier narcotic convict ons

were held insufficient to prove a readiness: to sell narcoties. Also /”. 3.

. Mathues, 22 F2d 979, where the Court noted the distinction betworn

the inv -stigation of lawful rand an unlawful business with respect to the

application of the defense of entrapment.

aua

'

eee

|

That the petitioner had approached the shadowy édyes

of the crime cannot justify the action of the law-enforce-

ment officials in pushing him over the edge. The relation-

ship ina democratic society between the citizen affected

by state action and the. officials charged with enforcement

of the law must leave a wide margin for citizen approach,

a and self-heip.

his point was touched on in a Note in 28 Colmmubia Law

be wiew, Where the author commented:

“2 8 * An offer of a bribe toa public official will

not be regarded as entrapment. The offense is so

vravé, the evidence so difficult to obtain, the tempta-

tion so constant and recurring that a government Is

. justified in’ testing its officers by a normal offer.

But a government agent nay net entrap a private

citizen by demanding that a bribe be given.” An in-

corruptible enforcement staff is capable of dealins

with the bribe-giver whenever he appears: there is

no need to seek him out. Furthermore, ‘an innocent

man, fearful of official retaliation, might readily

bi ld to such a request. The Court in Cnited States

Mathue s, supra, therefore property held that an

nie ers suggestion he would accept bribes consti

tuted entrapment.” CAt pp. 1073-4.)

This inportant aspect of citizen-state relations =

was brought out clearly in €. Klosterman, 248 F.

AME (CN 3, 1957) where AAS bear Ba IK lostertian

and defendant Deeney, an Internal Reven » Avent were

indicted and convicted of conspiracy to boas Federal

ficials to discontinue investigation of certain of aes ‘Y-

nan’s tax returns, Upon learning from Deeney that an

agent of Klosterman’s had broae ‘hed a bribe proposal t

Dooney, King, Deeney's superior, urged Deeney, over 2

period of several months and against Deeney’s recurrent

ee ,

99

-S

protests, to suggest to Klosterman, King's. receptivencss

toa bribe. Theréafter, upon Klosterman’s offering Kinz

$5,000 apparently for the purpose of “working out’ the — §

Khosterman investigation, Klosterman and Deeney were

arrested and convicted. The Third Cireuit, sustaining the

entrapment claim of both defendants in spite ef a jury tind.

ing of no entrapment, reversed both convictions on the =

ground that the evidence as to both defendants establisled

entrapment as a matter of law. But the Court reversed |

Klosterman’s conviction with due process rhetoric, des

nominating it ‘shocking to justice * * °” because :.

‘(Klosterman’s) tax returns had been under in-

vestigation for an unusual length of time. During

the period of investigation, Klosterman hac manic:

ous interviews with various agents and never one

suggested an improper settlement 6f his tax lat!

ties. Thus far from evidence of a pre-disposition to

commit this erime, this ease presents affirmative ev

. dence to the contrary. The lengthy investigation of

Klosterman’s retarns without a decision to etter

prosecute criminally or to seek civil reanedies wit

certainly have had the effeet of causing him at Verst

some measure of anxiety, This subtle thaws), of

course, unintentional conditioning of Klosfroruce

would naturally have-the effect of making him mor

susceptible .to. the pre rsvasion of King throwch

Déeeney and Stafford.” (At pg. 196.) ° (Rinphas's

added. )"

e .

17 See also U. S. v. Nathues, supra. Two brothers were chan!

with bribing Prohibition Bureau agents investigating defendants’ }

ery. T’ evidenée established that the first brother was directo} by '

agents to obtain the second brother’s approval of the first brother's © fer

to bribe agents. The agents did not conceal their identity and the ~«-

ond brother acquiesced in the bribe offer; the trial court, upholding ‘he

second brother’s defense of entrapment as a matter of law, said:

wt

(Continued on nect poo?

: 23. ‘

The development of the claim of entrapment as a due

process defense -in a criminal prosecution was presaged

in the language of Sorrelis— uneonseionable, contrary to

‘publie poliey’, **shock’ng to the sense of justice”, ‘viola

tion of the decencies of life’, And in Sherman where the

‘Court reiterated much of this language adding several

ue process” phrases of its own te characterize the con-

duct—"*means that violate rationally vindicated standards

cof justice,” ‘*éertain police eonduct * * © is not to be

tolerated by an alvanced soviety.” :

However, it was in Raley vr. Ohio, 360 Ug. 4252 09S.

(‘t. 1257, that this Court specifically held that State action,

in convicting subpoenaed witnesses for contempt for re-

fusing to answer questions Which a State investigating

committee had advised them they need not ‘answer, con-

stituted entrapment. in violation Of the due process clause

of the Fourteenth Amendiuent.

The avowed plan of the State police and prosecuting

‘official in inducing petitioner to come into Michigan fer the

pyrpose of having: him offer a bribe to the optometrie

board, under the cireumstances here diselos: d, constituted

entrapment; and the resulting conviction for a erie W hich

(Continued from preceding poge)

“There is, however, a broad distinction between cases of that sort

and a case where a government agent whose duty it is te Inve-tirate

and discover ¢he commissions of offenses connected with an unlawful

busifess in which a person is engaged, reveals himself as a repre

sentative of a bureau or department having charge of investigating

and obtaining evidence concerning an unlawful business and offe s

himself as a participator in a different offense not connected with

the business under investigation.” (At p. 98.)

And see Durkam v> State, 280 S. W. 2d 737 (Tex. Cr. App., 1955). The

distinetion recognized in Mathyes was also approved in 2s Columbia L

Review, 1067, 1073, 1074.

of

‘

would not have been committed except for such entrap went,

denied petitioner due process under the Fourtenth Aer.

ment, ‘

RELIEF SOUGHT

Certiorari should ‘be granted.

.

.

: -=4 - Te ~ : a bie cepted

ne Rat aaa als ols cee alia nih aan il i i ea SS

Respectfully submitted,

GOODMAN, CROCKETT, EDEN,

ROBB & PHILO,

Ernest Goodman,

Attorneys for Petitioner,

8220 Cadillac Tower,

_ Detroit 26, Michigan.

Dated: Detroit, Michigan,

October —, 1960.

DOS aii eines pb er 2 reasasees

oer

Mo. ra Wl

APPENDIX

onmeancatpeensemesiny

OPINION OF THE MICHIGAN SUPREME COURT

People v. Ritholz

Decide i June 6, 1960

Ssutu, J. This appeal arises from a prosecution for

corruptly offering money to influence. the action of 3, pub-

lie officers, members of the board of examiners in Oy

tometry.® It is not denied that money’ in fact changed

lands. The defendant, however, asserts that. the money

was not offered with corrupt intent. He says that he paid

it over to ierminate a scheme of extortion... This the jury

dj-believed. He was found guilty, a fine was thereupon

imposed, and le was sentenced to imprisomment for a teri

ol years,

The defendant was a partner in Ning Optical Company,

This company had an oflicé in Lansing adjacent to the oflice

of Dro EL. Sanehick. It was the practice of King Optical

Company to refer. patients coming to it, in response to its

newspaper advertisements, to any dovtor in the city, or

to the doctor who leases Space next door.to us or adjacent

The Michigan board of examiners in Op

to our office,”

tometry (hereinafter called the board) had brought cer-

tun charges against Dr. Sanchiek as a result of his rela-

Hons with Ning Optical Company.+ and it is with respect

to defendant's alleged efferts to have the Sanehick case

“washed out” by the board that much of the testimony is

concerned,

* CL 1948, $750.117 (Stat Ann §28.212).

_ tIn In re Sanchick, 347 Mich 620, this Court reversed the order of

Suspension previously rendered ‘against Dr. Sanchick for alleged unpro-

fessional conduct. ,

2a Opinion of the Michigan Supreme Court

The defendant had first met Dr. Feiler, aceordine te

the latter, in Chieage in HH0 or 1990. Since that mae

they had intermittent. contacts. In Oetober of 1] tier

met in Chicago with respect to a patent matter, tn ty

following monthe November, Dr. Feiler was appointed te

the beard. The next meeting between defendant andl lor,

Feiler was in 1952 or 1953.) Br. Feiler’s version of this

meeting is that it had to de with defendant's diftieulties -

in his contact lens laboratory in Chicago, for advices con 4

cerning Which he, Dr. Feiler, Was paid the simmoef S690 |

Defendant's version is that Dr. Feiler came to Hitt, se

manded money as the price of peace (with the Miechizan

board, of which he was now a member), and so received

the said sum. Defendant made no report ef this te the |

board, the Hlinois police, the Michigan police, or any ot et |

law-enforcement agency. |

Their next meeting occurred in 1953. Dr. Feiler testified

that the meeting related to the sale of some contact [etises

belonging to a Dr.fotden, that the sale did not eventiitte,

and that he was paid his travel expenses by Dr. Golden.

Defendant's version was that this, also, was the occas on

of further extortion, that Dr. Feiler had said, ** You cove

nie $500 or else il put you out of business,” whieh som

was thereupon paid over, Again, there was ho report by

the defendant to the authorities of any jurisdiction of the

demands allegedly being made upon him, now, apparently,

as a matter of course,

In Chicago, in August or September of M4, another

Meeting allegedly occurred. Although Dr. Feiler demos

the meeting, defendant asserts that it was the oeeasion bof

another demand for money, specifically for $15,000, $5,000

for each of the 3 members or the board. This demand wa-

allegedly overheard by a friend of the defendant, Dr. brnil,

who testified to that effect. As before, no report of

demand was made to the police.

Fi i, ee, . il eee

ate eS

Opinion of the Michigan Supreme Court " Oa

The Sanchick matter, concerning which the alleged bribe

Was paid, comes into the record in November of 1d Dr.

Feiler’s testimony was that defendant called him, asked

him about the Sanchiek ease and said ‘the would bke te

have this washed out.” Defendant's version, again, is xt

Variance. It was DrZFeiler who called him, he says, and

again it was-a demand for money, this tune for $15.000,

‘Devondant resisted. He replied, he says, that die “wasn't

_ going to be shaken down any more.”

In January of 1955, Dr. Feiler testified. defendant again

called him. regarding the Sanchick ease, stating, it wits said,

dhat it would be worth $5,000 or $4,000 to have it “washed

out.” Dr. Feiler testified that he responded that he eould

de nothing about it but defendant asked that they meet to

discuss the matter. Dr. Feiler at this point notified the.

Federal bureau of investization of the matter, who, in turn,

we gather, notified the State police. When defendant and

Dr. Feiler then met, on January, 12, 1955, in the Sheraton-

Cadillac hotel, the police had installed a mierephone, and

the conversation. was monitored by them. Upon cross-

-eXamination the deéfendant admitted that he had at that

time asked Dr. Feiler if he could do.anything for Dr. San-

chick, When Dr. Feiler responded, at a.later peint, |

doen't understand just Guite what it is vou want ine to ae?

the defendant replted, *T want vou to do just hike anvihins

else, You know what to do. Find a way to-wash it out.

li-tead of the iawvers getting the money | give if to you,

It’s just as simple’as that." The defendant further state 1,

in the course of their conversation, that if the board was

toine to push him (defemlant) areund that he was gweing

to start a dittle pushing himself, as he had done in Predisamat.

There, he said, he had ‘filed a suit tm Federal court for

a million and a half, suing each member of the beard andl

each member of the asseciation and all ef their officers

ta Opinion of the Michigan Supreme Court

of the association personally, not as an association.” Ile

went on, describing his actions, TL wasn't very nice in

Indiana. Iwasa bastard. I had the secretary of the board

on the witness stand. 1 only started with ium: L was going

to keep him on for 3 weeks, day in and day out.” He ques-

tioned Dr. Feiler thus: ‘If [ start a munber of suits lke

I did in Indiana, do they {the board members} seare pretty

good?” , oat

The next meeting of the defendant with Dr. Feiler in

Detroit was late in March. On the 27th day of this month

Dr. Feiler teported to the board members that defendant

wished another meeting with him to discuss further the

Sanchickease. This meeting was held at the Statler Hotel,

the respective versions again opposing b | ery, (Fener)

against extortion (defendant). Although arrangements

had been made to meet the next day, at the board meeting

the following morning Dr. Feiler was advised by an officer

of the State police, and the board, to have no further con

tact with the defendant. Nevertheless he did mest wet

defendant at a clothing stere in Detroit, at which time and

place the defendant put in his pocket an envelope later

found to eontain the sun of $500, This incident Dr. Feiler

did not report to any proper authority until the-fallow ins

September when he turned the money over to the State

police and informed an assistant attorney general of toe

matter. For hisderelictions in Connection therewith he was

later removed froin office by the governor,

Various telephone conversations -having heen hide he:

tween Dr. Feiler and defendant, and reported by Dr. Feiler

to State polite officers, le was asked to attend a meeting in

Lansing to discuss the matter with an assistant atternics

ceneral. Dr. Feiler stated in part that he had been re-

quested by defendant “to get in touch with him” and be

was authorized to call defendant in Chicago. This eall

<

Opinion of the Michigan Supreme Court na

was monitored by the State police. Dr. Feiler asked if he

(defendant) ‘*was going to bring the stuff with him,” to

which defendant replied, **I'm not paying for anything in

advance, not until the goods are delivered.” Defendant

said he was going tee in Detroit that week end and would

contact Dr. Feiler lagér.

(mn Sunday, mG ia defendant prepared to*meet with

Dr. Feiler ‘in the Statler hotel in Detrot. He had hired

Pinkerton detectives and was prepared to record the trans-

action, ‘Dr. Feiler, however, acting under instructions, did

not appear but, rather, telephoned excuses and set up a

meeting at the Olds ‘hotel-in ‘Lansing for the following

night. To Dr. Feiler’s inquiry as to whether defendant

Was prepared ‘*to take care of this thing

defendant responded that he was not going to’ Lansing for

a joy ride, Defendant thereupon instructed the Pinkerton

detectives to leet him the next night at the Olds hotel in.

. Lansing and to use a suite he had reserved.’

hi]

the next night,

We now ceme, at long last, to the happenings at the Olds

hotel on the night of August Sth, the date and place of the

alleged offense of bribery. Dr. Feiler, the other meémbers

of the board, and defendant were in one room, In an ad-

joining reom were the Pinkerton detectives hired by de

fendant, with their tape recording equipment. In a room

nearby wefe the State police officers. Defendant took

charge of the meeting. He said that they were meeting

“to see if we can work something out so we will have a little

-hit of a truee.” He made reference to the Sdanehick case,

and to the antitrust suit he had filed. He spoke of his

lawvers in the latter matter and how they were ‘*cleaning

upon both of us.” We continue with the record... The de-

fendant is testifying on cross-examination:

6a Opinion of the Michigan S upreme Court

*Q. And did you then say, ‘Lam going to spend money

on lawyers. There is no question about it. 1 would rather

spend it some other way. Do you want me to discuss It

with you gentlemen? Or with J ulian”? ere

“A. Yes, sir. :

“Q. And did Dr. Feiler say, ‘Theveare here, and they

understand the deal. Lwant to get out of here. [aim not

going to stay all night"? |

ca. . Toe, eh :

“Q. And did you say, ‘All right. We ean finish in»

minutes. [am prepared to pay you $5,000"

‘4. Yes, sir. . os a

“Q. And did Dr, Grigware say, ‘Apiece?’

“4. Pardon?

“Q. Did Dr. Grigware say, *Apiece? |

‘A. Yes, sir. ;

stad | Asking a question, and did you say, ‘No. 5,000 is

‘the money I've got alloted to spend. Rather than spending:

it on lawyers, | would rather give it to you? “im

“A. Yea, if. ;

“Q@. And did Dr. Grigware say, ‘What do you want in

return how!’

«4. “¥oa, a8.

“@. And did you say, ‘T don't care who gets it or how

it is divided. You know what I mean. In return?) P want

‘yor to wasli out this case, Get this Sanchick case was!el

out.’

“A. Yes, sir.

“Q. And did Dr. Howe then say, *Then what do we 2

in return?”

‘th, Year :

“@Q. And did vou say, ‘What ” and did Dr. Howe say,

and repeat, "What might we get in return?’

a Vee fe

+

Opinion of the Michigan Supreme Court va

o

“Q, And did you say then, ‘Weill, the Federal case ill

be washed out too"?

Additional discussion ensued. Mr. Ritholz said that he

would give them °'2,000 apiece, make it an even 6." but that

he didn’t have the entire sum with him. We continue with

the testimony of the defendant on ¢ross-examination:

“Q. And did Dr. Grigware say, “No, | should say you

don't want to wire it to me’ and did you say, "No, no, to

nivself, [Twill have somebody on the plane. 1 tell you

what. One of my cousins, I-don't know if you know him,

has to go to Windsor anyway, sa he ‘ean fly up here. We

are moving our offive to Windsor, So he was going there

Wednesday morning. Let him go temorrew. He will bring

the dough. Now, whére do you want me to give you the

rest of the dough? Here's 300 bucks just to -show good

faith is all, bind the bargain’?

“A Yes, sit. ;

“QQ. And at that point did you hand the money?

“A. 2, on.

“Q. And whom did you hand it to?

‘f.° Dr. Feiler. . :

“Q. And what did Dr. Feiler do with it?

“A. He gave $100 eaeh to the other 2 men.

“QO. And what did Dr. Howe do with his $100 bill that

he had in his hand?

“4. [think he put it on the coueh.

“Oo Back toward you? .

“A. 1 don’t exactly remember where he put it. You

see, | was sitting-on a couch, he was sitting on a chair,

facing that way (indicating).

“0. Well, what did vou do with it?

“4. Give it back to him.

8a Opinion of the Michigan Supreme Court

“Q. And did you say something when you gave it back

to him?

‘4. 1 don’t recall.

as” oe you say that you wanted him to have it or

some words to that effect? —

“4. Yes, sir. Yes, sir.” .

At the close of the meeting the board mémbers turnesl

over_to the State police the $100 bills they had received,

The officers thereupon went to the Ritholz suite, introduced

themselves, were adinitted, and arrested defendant upen a

charze of bribery. Detective Sergeant ‘Chrispell of the

State police testified that at this juncture defendant ** went

to another door in the room and pounded on the door, and

at that time the door opened and there were 3 men stt anding

there.” ie,

The defendant was thereupon taken to the State police

headquarters and ultimately brought te trial as herein-

above noted,

It is first asserted to us that. In view of Tn re Stnchick,

247° Mich 620,'defendant could not lawfully be and juglsed

guilty of the criminal offense of bribery defined in section

117 of the penal code."” Inthe case cited the Michizan

hoard of examiners in optometry heard a complaint that

Dr, Sane hick had employed King Optical Company as 8

“capper” or “steerer,” in violation of the statute regia

ing the practice of optometry. The board found that Dr.

Sanchick had violated the statute, and suspended. lis li-.

cense, ‘On appeal, the circuit court affirmed. Appeal was

taken to-this Court, appellant urging that th re was ne

evidence to support the finding of the board that he «Dr.

Sane hick) employed the King Optic ‘al Company as a “ev

per” or ‘tsteerer”’ as barred by the legislation en: acted.

Uh dagen

a clean

Opinion of the Michigan Supreme Court Qa

" A

Our holding was that the record did not support the alleta.

tion made and, we reversed the order‘of stispension.

The above having been our disposition of the Sanchick’

Case, appellant argues to us that defendant could not low. ,

fuly be found guilty of paying money to hoard. members

“to induce the board to dd the very “hing which this Court

itself enjoined upon them to do,” te. , dismiss such com-

plaint, Related to this issue is that inveiving the composi-

tion of the board. Defendant sought to show that the mem-

bers of the board weré in economic competit.on with him,

had a pecuniary interest in the matter submitted to them,

und henee. that the act of the- legislature creating such

horrd was unconstitutional under the asserted principle of

Milk Marketing Board vy. Johnson, 295 Mich G+. From

this defendant concludes that ‘tdefendant could not as'a

matter of law be guilty of bribing a member of such an

unconstitutionally created beard.” ‘To this point defend-

ant cites State vy. Butler, 178 Mo 272 (77 SW 960), a case

arising out of the St. Louis municipal scandals around the

turn of the century. It was tliere held that since the

ordinance purporting to grant. the hoard of health au-

thority to award.a contract for the removal of garbage was

ilecal and void, money offered a member of thie board to

influence his judgment in the matter did not constitute a

bribe,

The above holding, it is clear, is not the law of this

jurisdiction. As we said in People ve MeGarry, 1360 Mieh

ol, soe: “The validity of the act proposed is not the

test,” nor is the legal sufficiency of the getion taken by the

board. Here the defendant did insist upon and attempt

to obtain the dismissal of the proceedings against Dr. San-

‘

chick, the precise evil atte nipted to be guarded against in,

thie bribery statutes, namely, the corruption ef public ef-

oe

* 10a Opinion of the Michiqun Supreme Court

ficials, the attenipt to pervert the exercise of honest julz-

ment in the discharge of their duties. The wrist is the at-

tempt to so pervert and corrupt the effort to buthience the

official judgment by anoney or reward, Tt would be a

quonstrous and shameful doctrine that: judgment in the

courts or-boitrds of th’s State night be purehised wits

insolence and impunity if the law under consideration were

later declared unconstitutional, .or, indeed, if seme ftlas

were found to exist in the authorization or Composition ef

the court or board before which a matter is heard. Cow-

monwealth x. O'Brien, 107 Pa Super 560 (8G4 A 360), We

do not, of course, in so holding, imply any illegality in fat

‘in the board's composition, nor do we concede defendant's

assertion that our holding in the Sanchick Cas+, pi

meant, as appellant asserts, that ‘the board had mo juris

diction to entertain” the matter. | :

‘Tt is urged, alse, that the police ‘ilegally searched the:

fendant’s rooms after his arrest and. iHewally seoned) his

property consistiig of a tape recorder and tape, there

from? "The trial court's denial of defendant's motion te.

suppress such evidence is alleged to be error. Ht is argued

that the property seized was merely evidentiary material,

hot an instrumentality of crime or contraband.-

It is to be noted that theearrest of defendant Rithe'z

was mnaide only alter the police had received direet evids new

‘from the bribe recipients of the attempt made, and. i

fact, were in possession of the three S100) bills paid by cde

fendant. ‘The arrest was fins made. pursuant to state

(CL 148, (TOADS | S@@t Ann 1954 Rew S28.874)) author

ing anarrest without warrant when a felony has been eco:

mitted and the officer lias reasonable eause to believe that

the person arrested has been guilty of the cotitiiiss1

thereof, . . ‘

~

>.

v

.

>

”

Sf

pate

Opinion of the Michigan Suprene Court lla.

Such being the ease it is clear, as we held in People v.

Harris, 30) Mich 463, 465, quoting People ce. Cona, iso

Mich. 641, 652, that:

**The police have the power and it is alse their duty

to search the person of one lawfully arrested, and alse

the room or place in whieh he is arrested, and alse any

other place to which they ean get lawful access, for articles

. that may be used in evidence to prove the charge on which

he is arrested,’ ”

This holding is correctly applied to the cifeumstances |

before us, An arrest, in fact, may well be an ydie cere-

qony if the police seizure of evidence of the commission

of the crime itself (particularly, as here, an eleetpo me.

chanical reproduction thefeof) is held to be ‘Sunrenson-

able.” The test of reasonableness, as was held in Ilarris Vv.

United States, 831 US 145, 190°(67 S Ct LOOS, 1101, OL Led

1390, 1405) **cannot be stated in rigid and absolute terms.

‘Each ease is to be decided on its own facts and eireum-

stances.’ Moreover, we do not overlook the evidence

that the tape machine here involved was voluntarily sur-

rendered by the Pinkerton men, and that they made no «

couplaint with respect thereto, Cf. Holt v. United States

(CCA 6), 42 Fed 103, Hf they are regarded inerely s-

avents of defendant, and their possession his, their volun;

tary surrender thereof was also his, ds welleas their sur-

render of the suite, whieh had been rented at his order.

. ht ix our eonelusion that neither the receipt af the tape hy

the offeers, nor the reference thereto made by the ‘prose.

eition in eross-examining the defendant were violative ot

Lis constitutional rights.

Much of the additional error,utged upon us involves the

assertion that the payment of money to the public officers,

above -deseribed, was not made with ‘corrupt intent’ but

rather with ‘*the imnocent purpose of terminating a long

Ila Opinion of the Michigan Supreme Court

series of extortions practiced upon” the defendant. © It is

asserted, moreover, that ‘bribery and extortion are imu

tually exclusive crimes,” which the court refused to rons

nize, thereby committing error ndt only in the receipt of

evidence but in the charge given: We will first excultine

such alleged errors.

In a case such as we aré discussing, the crimes of bribery

and extortion.are alike in that each mvolves the payioen!

of money toa publie official. There, however, the stmularity

ends. Extortion is the exaction of money, under color of

official rights, from’ an unwilling payor.’ In bribery, on

the other hand, the payor voluntarily presses his mene)

upon the public official hoping thereby to influence lis ol-

ficial action. Thus, as the Oklahoma eriminal court of

appeals pointed out ‘in Finley ve State, St Okla Crim oi

320 (ISD Pod S49, 856): While bribery and extortion are

distinet offenses, tie same facts may be the basis for the

charge of either extortion or bribery.” Dt depends upon

the intent with whieh the money is paid. In People v.

Feld, 262 App Div 909 (28 NYS2d 706), the appetiant

was indicted gn the charge of evtorting money from an

emplover by threatening to foment a strike among its el

plovees, The defense was that the employer, instead of

being @ Victim of extortion, had bribed the defendant (a

representative of the labor union). The court speaks with

entire accuracy When it states: :

‘A question of fact was presented dnd the appellant Wits

entitled to have the jury instructed that if the empleser

were guilty of bribery. the appellant could not be quilts o

extortion. The 2 crimes are mutually exclusive.”’

. 7

ts

The word to be stressed in the above is the word ‘witty,

The mere fact of payment alone may be ambiguous, s!ts-

“See CL 1948, §750.214 (Stat Ann §28.411).

: pie a

EE ——————_ se

Opinion of the Michigan Supreme Court Ia

.

ceptible of interpretation either as bribery or a Xtortion,

It is for the jury to determine which «f the offenses, if

either, has been committed, of which one there is evide mh

of “guilt.” Only in that sense are the 2 ¢ rities exclusive,

The court below, on the matter of inte nt. eharged in part

as follows:

“Now, it is the general claim of the defendant that he

did agree to pay $6,000, that ix 22.000 each to Drs, Feiler,

Howe, and Grigware, on August 8.1955; that he paid each

of these men $100 to apply on that figure: but that his said

atreement and the payment on account was made without

any corrupt intent to influence the board in the ease ef Dr.

Kdwin L. Sanchiek, and that the agreement was made by

the defendant solely to get the evidence against these piub-

lie officials for use in exposing them, and that Dr. Feijer

had been extorting money from the defendant and thet he

had led the defendant to believe that_Drs. Howe and Griz-

ware were interested in doing the same.”

And, also: -

“Whether or not Dr. Feiler had exterted mofer or was

attempting to extort money from the tefendant is not th

(nestion that you are to decide by vour verdict, but you, of

course, nay use your decision on that question in deter-

huning the defendant's intent in the bribery eharze.”"

Although isolated sentences of colloquy or charge may

support appellant's allegations of error in this respect, we

are not persuaded that the charge as a whole was unfair to

defendant or misstated the law. See People co. Coleman,

mi? Mich, 268, 282,

. ,

Coniplaint is made, also, relating to the introduction of

evidence, Tt was the claim of the defendant that in pay ons

Honey to the public oilicials in the Olds hotel, be did -o

Ifa Opinion of the Michigan Supreme Court

“for the innocent purpose of ending their continued prac

tice upon hin of extortion.’ He insists that he had ne’

‘corrupt’ intent and that none was shown. He paid, he

savs, innocently, to obtain evidence of extortion ‘for sub

missien to the preper authorities in order that he mist

no longer be made the vietim of the defendant's evil ma-

chinations. It was a necessary step in his proofs, he as:

serts, that the series of extortions down through the years

be shown, and in this showing he says that ie was han

pered and restricted by the court's rulings.

Corrupt intent is, of Course, a necessary element in the

crime of bribery. It is not necessary, however, as We

pointed out in People ve Vinokurow, 82) Mich. 26, dig ol.

“that there be direct Testimony’as to the intent reciimd

in the statute. If such were the case it would be almost a

rarity when a conviction could be obtained under this kind

of a statute’ The intent is to be vathered from the acts

done and the eirevmstances under which they were lone.

Here the crime is alleged to have been committed: in the

Olds hotel. The testimony’of what was said and done there

is utterly barren of any imtimation of previous extortions

The defendant was an experienced businessman, trained in

the laa, and well versed in the uses of the law, as his var-

ious anti-trusts suits ainply demonstrate. That this man, re-

cording the transaction by his own paid agents, wonld hate

made no reference in his lengthy discussion, with the hoard

members, of the past extortions of at least one of ther

number, evidence of which he elaimed to be eathering. |

inlerently ineredible, That his reluctance to do se stem) oh

from any moral er legal scruples over making steht

inality a matter of reeard is, its) f, equall® ineredi ve. He

was blunt and to the point respecting his payments. © I:

return for the money} TP owant you to wash out this sctse.

sian ale 2

Opinion of the Michigan Supreme Court - Via

Get this Sanchick case washed out.’’ He would also dis-

miss the antitrust suit which he had instituted azainst the

board members and the Michigan Optometric Association,

Vpon such recort) the court might well Nave held com-

pletely irrelevant to ‘the charge at hand any testitrony

whatever of past alleged extortions. There was nothing

~ambicuons about what was to be done, or what was sought

‘in return, Nevertheless the court did permit the inttedue-

tion of evidence hereinabove set forth, coing back to the

first meeting between Dr. Feiler and defendant in 194 or

1950, the meeting in October of 1051, the next meeting, fol-”

Jowing Dr. Feiler’s appointiaent to the board in November

of 1951, subsequent meetings in 1953, and a& meeting in

August or September of 154 in Chicago, With respect to

these meetings, as we have seen, 2 different versions were

presented to the jury: that of Dr. Feiler to the effect that

they were of a legitimate business nature, that of the dee

fendant that they Were extortionate in character,

We will assume, without conceding, that the Olds hotel

incident was sufficiently ambiguous as to require, in’ fair

ness to the defendant, the showing of a svstem of extor-

tionate demands by Dy. Feiler and the heard. This nisy tn

accomplished through evidence of past acts material to the

charge -of systematic extortion, The Arkansas supreme

court in Butt rv. State, SV Ark. 172, 181, 182 (O98 SW e253,

725118 Am. St. Rep, 42), in holding that evidence of prior

atsof bribery was admissible, stated the applicable prin-

tiple in these words:

"Vou mught as well expect that one should be able te

juke correctly the merits of a play. and of the Hietives amd

conduct of the actors as displaved thergin, by witness ai

only the last scone af the last aet. as’to eNpy ) where tf

erone under investuration is part of a connected: scheme,

»

16a Opinion Of the Michigan Supreme Court

that the jury should be: able to determine the motives of

the defendant and judge correctly of his guilt or innecence

without any knowledge of the origin of the erime or the eir-

cumstances and motives that led up te it. The law does net

blindfold courts and juries in that way, and it is abvays

competent to show the beginning as well as the end of the

criminal transaction.”

This, it will be noted, does not require the aid of the

intent statute.* the purpose of which, as we beta im Peet

», Rose, 268 Mich. 529, 526, \twas to do away with the rule

as to proof of other offenses and permit the introduction

of such testimony even though it might slow or ‘tend to

show the commission of another prior or subsequent of

fense by defendant.” It is just at this point that defendant

makeeshis thrust at the introduction of evidence. relating

to the system of extortions. He says it was received with

restrictions as to its use, grudgingly, sometime with dis-

paraging comment as to its materiality, and at times only

as bearing upon the credibility of Dr. Feiler, The short a

ewer to all of this is that it was, nevertheless, received, and —

in such detail that, in our opinion, the jury was given (rea

sonably accurate presentation of the claims of beth the

State and the defendant., Even with respect to evider eof

system, the relevance of events far removed in time or oll

cumstance-must lie within the discretion of the eourt ou

ace are not persuaded that prejudice arose either fron o%

_—

e .

*CL 1948, $768.27 (Stat Ann 1954 Rev §28.1050), réads:

“In any criminal case where the defendant's motive, #ntent, ta

sence of? mistake or accident on his part, or the defendant's sx

plan or system in doing an act, is material, any like acts or ot!) *s

of the defendant which may tend to show his motive, intent, the ab= ocr

of, mistake or aceident on his part, om the defendant's scheme, f° °F

system in doing the act, in question, may be proved, whether thes 6”

contemporaneous with or prior or subsequent thereto; notwithsian ios

that such proof may show or tend to showethe comunission of anv +

prior or subsequent crime by the defendant.”

Opinion of the Michiqan Supreme Court lia

clusion or reluctant adinission. Assuming. as we do, that

evidence of a systfin of extortion way adriissiile, error

would fie in receiving it as hearing solely upon credibility,

and not as substantive proof, but we think the eourt ade-

quately covered the matter in its chaurshy to the jury in

which it said:

“Now, it is the general claim of the defendant that he

did agree to pay $6,000, that is, $2,000 eae ‘+h to Drs, Feiler,

Howe, and Grigware, on Mouuat S. 19 - that he paid: each

of these men $100 to apply on that ficure: but thet his said

agreement and the payment on account was made without

any corrupt intent to influence the board in the ease of Dr.

Edwin L. Sanehick, and that the agreement was made by

the defendant solely to get the evidence against these pus

lie ofticials for use in exposing them, and that Dr. Feiler

had Leen extorting money from the defendant and that hie

had led the defendant to believe that Drs. Howe ¢ and Grig-

ware were interested in doing the same.

* < stated, these xe neral claims as far as me defendant

is cone erned ame the court's statement of atten. is not to be

taken by the jury to limit the consideration oftetper clatins

whieh have been offered and received in ev idenee during

the trial, :

< | have stated te von be fore, the gravamen of the

offer nee in this paytie anlar ease, in view of the aedinissions of

the defendant regarding the agreement and thie paytuent.

is the corr yo intent to inflience thieat fentred ity thee Dr Sain

as ¥. ‘

MICK (Hse, if there Was ans corrmipt intent. - You triast th

erioine that atestion to read: Vaur verdict

“There has been evidences éffered nme received: on

‘t est on of whether or het lor. Feiler Wils eXtorting ryleedye

Trvine fo eNtort meee. from the elefetredsagrt tes thie’:

ne hys business. This evidence has ooh pdimitted feat ve in

1Sa Opinion of the Michigan Supreme Court

use in determining the deteadant’s intent at the time of the

agreement and the payment of August 81935, That ts the

only purpose of such evidence, Whether or not Dr, Feiler

had extorted money or was attempting to extort tienes

from the defendant is not the question that you are ty

decide by your verdict, but you, Of course, nay Use your

decision on that question in determining the defendait’s in-

tent in the bribery charge. * * *°

“The eourt also wishes to state that during the course

of the trial on at least 1 occasion, and maybe on more, the

court ruled that certain testimony regarding the affairs he-

tween the defendant and.Dr, Feiler was only Re ible as

bearing upon the credibility of Dr. Feiler, and that I Wis

to change. ‘That testin.ony may be also used by vou, if yen

deem it useful, for the purpose of determining the question

of extortion ih this ease.”

We have examined the remainder of the allewed errors

made, ineluding those relating to evidentiary matters, the

charge, and to the prosecutor's eross-examination of the

defendant, as well as his final argument, and tind they are

without merit. Some, of the phraseolozy ot the charge

might have been more artistic, and the proseeuter his t

at times have been nore gracious, but ne trial ever cot

dueted is ‘wholly without blemish. ¢ Technical error, how:

over, is not our test. We must be persuaded thea’

error. complained of were so ross as to have le pervs al

defendaut of a fair trial, that lis convietion Was, in this

a misearriage of justice” We ate far from so persis .

Appellant argues that the evidence does not sustain 1)

verdict of de fondant’s guilt bewond a reasonabh ah

The evidence thereof, on the CONEPAPY, may be regards i

overwhelming. Defendant's account of the extortions | ,

* See c CL 1948, $769.26 (Stat Ann 1954 Rev §28.1096).

Opinion of the Michigan Supreme Court 19a

-tieed on him over a period of years, suffered by him in

silénce, verge on the incredible, He argues that he did net

complain to the police of them because his word alone would

‘not have been effective. A citizen's failure to report crime

i< not excusable by reason of such assumption on his parts

We note, also, that at no telephone conversation (bet seen

Dr. Feiler and defendant) inonitored by the State police

do we find complaints of past extortions by defendant,

though he testifies he made them in abundance at conversa-

tions unheard by others.- Thus the conversation held on

January 12, 1955, in the Sheraton-Cadillac hotel in De-

troit. heard in its entirety by the police ‘Gand the: first’

tuonitored conversation) has a significance beyond that of

its actual content. Up to this point dk fendant’s versions

of the meetings held with Dr. Feiler have been replete with

his (defendant's) protests against the **shakedowns” to

whieh he was allegedly being subjected. Yet, although we.

have examined the police versions of this conversation

with care, the testimony of the officers, Van, Wie, Bogan,

wn Chrispell, we find it to be utterly barren of reference

te past extortions, shakedowns, or other eoerceion practiced

upon defendant by Dr, Feiler. Rather, it is defendant who

is aggressively demanding that Dr. Feiler have the San-

chiek ease “washed out,” not only fer a money reward,

but, if not, under peril of receiving the same kind of lesen

‘harassinent as defendant had, mn his own words, exerersed

against officials of the State of Indiana. ‘The pieture, m

ort, is net that of a public officer exercising the powers

of his offiee for purposes of ‘ntimidation and coercion, but

rother that of aveitizen demanding that official action euase,

beth for reward and under threat.

ihe Olds hotel inetd nt Was, as we have noted, likew ine

borren of sueh accusations on the part of tite deemed,

cuch his bargaining was frank enough to inelude other

&

20a Opinion of thi Michiqan Supreme

“vas offered to the other members of the board, whose

Court

considerations, including the dismissal of the Federal case

by defendant. Finally, regardless, of the merits or -de-

merits of Dr. Feiler, we do not overlook the fact that money

connection with any extortion Was far more tenuous than

that of Dr. Feiler, if indeed, it can fi airly be said to have

existed at all. The ¢ as was edrefully tried by competent

counsel. The evidence adduced against deter dant was

ample to justify the verdict reached. We fimd no substan

tial error in the case and no need to discuss ad \ditional

elaims of error.

Affirmed.

Dierumers, C. J., and KeLLY, Buack, and lepwarps, Ibs

concurred. +

Carr, and KAVANAGH, JJ...did not sit.

Sovnis, J., took no part in the decision of this case.