Respondents Brief in Opposition — Ritholz v. Michigan (No. 468)

FILE COPY

Supreme Court, U.S,

Pie oO: 7

OCT 28 1950

JAMES 8. BROWNING. Clerk

‘IN THE SUPREME COURT OF THE UNI

October Term 1960

No. 468

BENJAMIN D.. RITHOLZ,

Petitioner

vs.

THE PEOPLE OF THE STATE OF MICHIGAN.

‘ Respondent.

Petition for Writ of Certiorari To the Supreme Court of

° the State of Michigan

RESPONDENT'S BRIEF IN OPPOSITION TO -

PETITION FOR WRIT OF CERTIORARI

* PAUL L. ADAMS

Attorney General of the Stat

Michigan

SAMUEL J. TORINA

Solicitor General of the Stat:

Michigan

Counsel for Respondent

The Canitol, Lansing 2. Mic!

SPEAKER-HINES ANO THOMAS. INC... LANSING. MICH. -— te60

ES:

(Ny THE SUPREME COURT OF THE UNITED STATES

October Term 1960

No 468

EL EO A

_ BENJAMIN D. RITHOLZ

. Petitioner

VS.

THE PEOPLE OF THE STATE OF MICHIGAN

Respondent

ie —— nl

Petition for Writ of -Certiorar To the Suprem

ye Court of

the State of Michigan :

— — eae

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

STATUTES INVOLVED

Ea! aes

joining room when he conversed with Dr. Feiler on January

12. The petitioner telephoned Dr. Feiler and told him ot

this information (191a).

Prior to March 27th there was a te! phone conversation

between Dr. Feiler and the defendant and they srranged

a meeting in Detroit for March 27th and 28th. Dr. Feiler

testified’ that petitioner telephoned him stating he would

be in Detroit on thase dates and requested him to meet

him there (192a). The ‘petitioner testified that Dr. Feiler

called him (192a). On eross-examination, when the de

fendant's telephone number was brought out, petition: Y

admitted telephoning Dr. Feiler and talking to him for

21 minutes on March 22nd (540a); on Mareh 24th for

5 minutes; for 5 minutes on March 25th (341a); and for

S minutes on March 26th f54la). The petitioner sought

to explam these calls to Dr. Feiler saying they had an

arrangement whieh had existed for several years that

when Dr. Feiler called him colleet, he wonld refuse to

accept the call and later eall Dr. Feiler back (541a).

— On March 27th the petitioner telephoned Dr. Feiler at

his hotel room in the Shen ‘aton-Cadillae hotel and expressed

a-desire to mect with him to diseuss the Sanchiek’«

(12a). Dr. Feiler informed the members of the cea of

the call and went to the petitioner’s room at the Statler

Hotel (192a-198a-194a). Taere Ritholz asked him to sev

what he could do about getting the Sanchick case washed

out and said that it would be worth one thousand dollars

(194a-195a). Dr. Feiler replied he didn't think he could ’

‘help and Ritholz said he wanted to meet Dr. -Feiler the

following day for a further diseussion. Feiler agreed to

meet him and lett (195a). He reported this to the ptometry

Board in the morning of March 28th and was advised by

the board and Detective Sergeant Chrispell to have no

further contact with the defendant (195a). Later on

Mae “aa

March 2sth, dhe received: aeeall from othe petitioner who

expressed the desire te meet hint and further diseuss the

Sanchick case, Feiler told the petitioner Le contd net de

anything for himioand ‘that he was going shopping (bia).

Potitioter asked bim where and Peiler gave him the mare

the ¢tore dha): Subbequently Feiler weit shopping at

Harry Sutfrin’s store in Detroit. The petitioner entered and

Sduotiondd hin to follow (iva). Tle did Si, PP etitianienr’

entered at nien’s room, looked to see df anyvene else was

present, took anenvelope, placed it in Feiler gqeoat pocket, .

andl satel see What. von edn do. Waitt a few Yo after

[leave and. then voutean we™ cine) lett. Pedder watted a

roment, deft the store and returned te ’his hotel reom and

ther’ found S500 in curreney in the envelope (187a 48a),

He returned te Flint (197s), Kept the money until Septem:

ber 20, 1955. when he reported this event to an Assistant

Attorney General and turned the mone\ over to the State

Poliew (2000). The S500 was admitted in evidences on the

trial, withont objection (20TaZevad. As oacresult of his -

receiving this S900 and failing te repert it to The Optometry

Board or law enforcement efticials nntil September, Ti,

he was removed ‘fromm office by the Governor (ena aera),

Ritholz testitied that Dr. Feiler came to his reaom.on this

occasion, Mareh 27th, (476a), told he was: being watehed

and would talk fast (476a0: that De Pedler told) hime he

hind one baayel member in his pocket and qrewded: one more

and thoneht he had him sewed up: that he teld hime that

board member was in town and te wanted te take him ont

and show him a good time and that would provide three

hoard metbers to clean up the sitnation ar To keep him in

good shate: that Dro Feiler then asked hia for SoH te

entertain the third member; that he agreed to give Dr,

Feiler the sno, but did) not have it on his person and

promised to deliver it. the following dave(477a). We further

testitied that Dr. Feiler talked to him the following after:

a °. ma

noon and told him he was going shopping, gave him the

name and locgtion of thesstore and requested him to mest

him there (477a); that he wenf to the store, saw Dr. Peiler

on the first thoor (478a): that Dr. Feiler motioned him

toward the lavatory and. that he followed Dr.-Feiler ther

s

.that there was no one else present (478a). He further

testified that Dr. Feiler pulled out his overcoat pocket

and that he placed an envelope containing S500 in Lr.

Feiler’s poeket (480); that Dr. Feiler’ left) immediately

(272a-2i4a) and that no words were spoken by eather piarty

on this ocension (48Ua).

The petitioner.testified that he did not reeall hearing

from Dr. Feiler again until June (48la-482a), however,

on cross-examination when the telephone numbers were

supplied, the defendant reealled telephoning. Dr. Feil:

"2 on March 30, April 22. and May 17th.

In April 1955, the petitioner instituted suit in the Federal

Court for the Eastern Distriet of Michigan against all ot

the members of the Michigan Board of Examiners in

Optometry, individually, and -many other optometrist.

alleging a violation of the Clayton Anti Trust Law and

claiming damages and cests in the stim, of $1,Q00,000.00

(481a-531a-33ba). “er Ay

Both Dr. Feiler and the petitioner testified to a telephion

"cali on about June 17, 1955, wherein Ritholz made inquiry

regarding the status ef the Sanehiek case; that Dr. Feil:

tolel the defendant there was nothing he could de, or word -

to that effect. (04a -205a-200a-548a). 0°

Dr. Grigware, A People’s witness, testified that June 14.

1955 petitioner telephoned and told him Dr. Sanehtek wa

unhappy with the proceedings of the Optometry Board

and asked him to see what he conld do ty have thee

eats

—11— ,

Sharges dropped. Hie offered te refer several hundred

patients a vear te Dr. Grigware Prem his Grane braepeud~

Ofties (214dad; that Ritholz further said that he hod enenuh

power in the Senate te prevent fatnre appeittrsents ter the

Optometry Board of anyone recommended by the Michigren

Optotiet ric Association or Governor William. (pete vty)

Dr. Feiler testified that on Judy Soh petitioner telephoned

him and asked him af there wae anything he could de

‘th wash ont the Sanehick ese and that when he replied

. . . . . ey . * .

in the newative, petitioner satd he was going te start taking

depositions in the Federal Court case against “the board

. members the following week ¢206a-2eT). Phe further

. . e m * . . ;

testified that he received telephone ealls from the petitioner

Rithelz every day for several days in speeession Wherein

Ritholz said de wanted the Sanehiek case washed ont,

metitionsed the Federal Court ease. and said that the at-

torneys world beeome wealthy as a result of the squabble

between himself and the Optometry Board. and that he

reported the substance of then telephone calls to peal tes

oticers (20Ta-2USa).

On Aneust o. 1955, Dr. Peiler. at the reqnest of an Assist

aut Attorney General, went te the Olds Perel ta Dain-ine,

nyt with Dr. Howe, seeretary cof the Optometry Board,

Detective Lot. Pdeorcalel Derry of the Michigan State Polies,

Lristeetor Keyl Braun. Myetorietry Board investigater. cate

Irving B. Beattie: an Assistant Attornes General: that he

reviewed his recent conversations with the defendant bith

oly and.stated that Rithelz expressed: aodesire te eampe te

Michigan to offer a bribe and had requested him te eal

him back (20Sa). At the snggestion of Mr. Beattie. Dr.

. beiher telephoned the detent in’ hieave. This eall was

monitored by Detective Lt. Berry onan extension telophase’

ead. Dr. Peiler and Lt. Berry testitied that Dr. Petler

told Rithdlz he was getting things lined up oli dda)

SS

a ee

and asked dim when they econld meet: that fhe putitions

reqnested Qomeeting at Detroit on Sunday, Anenst 7:

at the Statler drotel e420a0. Dr. Boiler asked the: petitios

ithe was bringing the stil With hit amd petithener redid

he was not paying until the goods were delivered i ytoa):

that the petitionerssaid "TP have a big stiek in ome heat

and kid) eloves in’ the other and DT would rather hand):

a

this with kid-gloves:” (4200). He warned Feiler te be eare.

Mi what he saidoon the telephone sbecanse they have thes

damned rooms bnegeds* (4200): that Dro Reiler asked

Rithol# if he Wanted three members of the Board te moe

with him and that petitiqner replied ‘don't be atdanin fool,

This ° between vou and B If there is anybody wpee I?

the ceal they'll be taken earé of (4200). Petitioner sae

vested the mse cof aomiddleman and suggested first one o

his own attorneys in) Detroit: (421a) and then gave the

names of three State Senators (21a). He stated that be

Wanted to meet Feiler in Detroit om Amgeust th ¢2tbae.

Noo sum oof money was mentioned ino this conversation

(421a). Rithelz did- most of the talking. The petition:

agreed that this testimony was correct: (44a).

On ANuenst 4.17955, Rithelz ‘telephoned Dr.sFeiler, ctl)

and voiced his suspicions beeause Dr Feiler hive not mes

tioned the Federal Court case inthe conversation of Nmwust

Srdy and imquired as to whether or not he wanted. that cas

dropped (Sis). A

On Nuguet oth, Lt. Berry testified that Dro Feiler. re

ported this conversation to him (421a)

Qn Aneust 9. 1955, petitioner telephoned Dr. Peles

and contivmed the time and place of meeting on Aug ist ot!

He requested Dr Feiler to bring the other two beard

Themibers with him ¢213a).

men |

The substance of this conversation was reported te Lt.

Berry by Dr. Beiler (42a). ie

Blackwell, a Pinkerton agent, testified that on Anqust

$th petitioner had one of his attorneys contact Burns and

Pinkerton detective agencies (12a-36%—), that on August

ath. the petitioner engaged the servi des of Pinkerton’ In

vestigators (26Sa),: that petitioner represented te this

ageney that a Dr. Julian might try to shake him dewn in

a business deal (69a); that Dr. Julian was not a publie

oficial or a part of State government (270a545a), and

that he wanted a reeording of an anticipated conversation

for future reference for whatever purpose he desired: to

use it (547a-500a). Ritholz, admitted he didi not give the

Pinkerton investigators any information of anv previous

alleged acts of extortion or any details (o44a).

Petitioner was present at the Statler hotel on Sunday,

Angust 7, with three Pinkerton Investigators who had*

setup a recording machine (46a). The anticipated visitor

did notearrive and the petitioner telephoned? Dr. Feiler’.

home and Dr, Feiler finally returned his call (47a). This

telephone eall was monitored by Lt. Berry ¢215a-t22ah

and the petitioner agreed that the substance of the con-

Versation was correct (o46ao47a). The petitioner asked

Dr. Feiler why he had not come te Detroit and Dr. Feiler

replied that he could not get the board members together

(215a). The petitioner then suggested a meeting the follow-

ing day at the Olds Hotel in Lansing (216a-546a). He said

he had to make reservations and would call baek in fifteen

minutes (216a). Petitioner Ritholz called baek and in-

formed Dr. Feiler that he had his suite at the Olds and for

him to bring the other board members and meet with him

eat S50 on Auguyt sth A16n-422a). Dr. Feiler asked if this

Was final and if he had the stuff with him and the petitioner

am

sat the Kellogg Center in Bast Lansing in the earky event

— > =

warned Feiler that someone might be listening oan the tel

phone (42200. Rithelz then directed the Pinkerton invest!

waters to meet him at the Olds hetel om ANtwust sth sed

to register under fictitious mames (72a).

On cross examination the petitioner admitted that he

never reported any of these alleged: aets of extortion te

law enforcement officials of Hlineis, Miehigan, of any other

place, and when he was questioned regarding that repli d

‘as follows:

“AL DT reported nothing to the police. To intended te

report to the police on August sh.

Q. In other words, the day after vou were eanght! |

AL Yes. Pwasn't ready to present miv case to Three preteen”

THE BRIBERY TRANSACTION -

On August s, Io, at the request of State Polies. Drs

Howe, Girigware, and Feiler met with State Poltee detec

. . * —" .

tives and an Assistant Attorney General beving Beat

(2800 loa 2a dad. At this time Dr Reider and: others

reviewed recent events. ALL persons present were infer |

of Rithola’s request for a meeting at the Olds Hotel

S230 pam. (21Tad. The three doctors were given genera

instructions and were advised that if Ritholz requested

them te wash ont the Sanehiek case, they could agree to

the purpose of obtaining evidences, and were instructed

to aecept anv Money Ritholz offered and turn it ever te

police Otiieers who would be stationed: in a reoni aed jotni =

the Rithola suites (16a). Drs. Howe, Grigware, and bell

Went te the ds Plotel ane there met State Police ade?

tives, were searched. their money counted. “They the

— _—

proceeded to thee Rithelz stiite Mider observation of Thies

police ¢20Ta vila 42 ba}.

The three doetors were adtuitted te the suite bey bathed

and a eotversation emened betyweeti the petitioner pase the

tharees Ene tybe ae of the OMoteretyy Pere’ ¢olbat. Withedy elie

nest oof the talking and explained the purpose of the

rave tia, stating that it was cabled te see if there eoorbed

bee aa truce Coda dette tele the boevctred opepetreboers. ter Peres

that he was a lawyer as he-died net praetice haw (o4hi

O70a) The referred te the Peelera cotrt rit it Whieh the

Seocared ronereboers biaaed beeen jeritiend its parties theferebamt ate

said that the lawyers would become wealthy ane further

stated, —“soehere we are im the middbewith these bastards

cleaning upon beth of usc Solas. Rithelz brought up the

nate of Edwin Le Sanehiek (o31a) whe rented space —.

hit in the Tussing Building in Lansing. and te whom the

King Optical Company referred persons wwhes responded

te their newspaper advertisements, and satd he wanted

the Sanchick case called off: that he wattted: preaece Carola,

Heoassured the board members that they ¢d- nothing

to Worry about because iD he made tromble for amyene

he wonld make trouble for himself, get publicity ane

would ruin his business ooo). Phe satel hie edieda’t. weart

te try anything. Tie Wanterl to se home cand take eare

of histbusiness (oda. He then sated he wie mreepniae te ~pergel

troney on lawyers and that he woald rather spend it seme

other way and asked the board mergbers whether they

Wanted him te cdisenss it with all of them oer with Dr.

Feiler (350da). Dr. Feiler suggested: that it he disenssed

with all of thetn and Rithol then said) that: he was? pre-

aired’ te) pay them 85,000 (4550): that this yas the sam

he had allotted te spend anethat he would rather, give tt

te therm than spend it en lawyers (othad. Dr. Grigware

inquired what Ritholz wanted in return waned Ritheolz satel.

bie Watited the Samehick ense washed out (ooba), Dr. Llowe

—16— iar

then inquired what the board members would get in retry

and Ritholz said the Federal case would be washed out

too, (Oo0a). Rithoelz then told the hoard members they

would not be able to hold the hearing on the Sanehies’

ease as scheduled on August 16th when there was a stay

of proceedings (57a). Dr. Grigware said that Mr. Moule:

ano assistant attorney general, had never informed) the.

hoard of such stay of proceedings (95sa). Rithelz said

they had better check with Mr. Moule, for S5000 and then

said he would go another $1000 to make it even (omwsa-ootke).

Ritholz then suggested that Sanchick’s attorney file a

motion to dismiss on the ground the complaint did) net

nake out a cause of action (559). Tle farther said) thers

would hiave to be a show of good faith (561a): said he

would draw up a dismissal of his federal court ‘ease and

deposit it with the attorneys and that he would eal! th

attorneys and immediately’ cad) off the hearings in the

Federal court ease (963a). Ritholz made notes of things to

be cone Cobta-oita) and Dr. Feiler sat next. te hime and

copied his notes (J600a). Ritholz sugeested tliat the Sar

chick case be washed out by the beard on an ‘informs

hearing (221a) and assured the board members that

one would interfere with them, saying that pressure had

been put oon Lt. Gevernor Hart amd Deputy Attore,

General Gilmore but that he could: pull the pressure off,

He named senators whom he claimed put oon this pressure

and said “This is a nice clean way for everybody” (70a).

Heo went on’to say that he wanted to operate in Michisay

aud wanted to operate as legally as he could; that |

had ne horns, and that lite was tee short) (S70a 57 ta).

And he continued by saying that he would “hyeht if he

had to fight: that he had lots of pep and said. .vdesus.

Vii handle this case if it takes me six years and every

State in the United States” (S72a). He then said it world

be better to avoid this as it would be like, a war with

cs

a. fom

- a),

atomic bonths; that if he won dhe world lose ready. Amel

he again stuwested that the bord lotd.an informal fearins

and wash out the Sanehiek ease Co72an. He said he cdiad

Dr. Howe down for two days testimony on deposition in

the Federal court ease but that he wouldnt get throngh

with him inawo dave. that it would take two weeks (9750),

“He then said he would deliver the money the following

day (otmorrnd: that he thought Dro Feiler was Kidedine

becatse he didn't show Wt In Ddetredt cared hier edtedn't thin

anvone would ever show up Corba). Withelz then sugetsted

“Various means of delivery of the money CaTsad. Me said

he had S500 with him asad: that the beard: mepibers

could Lave that oon accent and that tie wonld deliver

the balanee the following day coTsay: that there weld

bene need for a hotel room: as lie: eonld give dt te therm

in a restaurant anywhere boasad. tbe assured them all he

would. take cee of paytnent and again reitetated his pro

posal by saving that he wonld give them So.000 if thes

world wash oat the Sanehiek case and ted that they contd

het held a hearing (o7%ad: that they world be in conternupt

of Court (3TGa)s he then padisedt the anmennmt te S20 eed:

“OO it would ive split eveth and then iiegiadreed “Yorn fellows

tring to pull sotrethine Pleo ray P54 hen). Jr. ‘oe deer replied

a»

ves VSTGa). He then handed three one. hundred dalfir

bills te Dr. Pedder who in tarn handed S100) each te Dr,

Howe and DirsGivigware Oda atta deed. Dre Howe prt

theo sto intial Y0 hin on the eoueh) Coseacdstad. Ritholz

pieked it up and handed it back to [yr Howe and) told

hire he wanted him te have dt (oSdad. Ritholz then snweeested

that the hoard cooperate with him and let him knew if

they thoneht that he had done anything wrong and that

bie wanted dlso teooperate (INdiana). Vyas then siteure steel that

he eonld send a certified cheek for the Dalanee payable

teat fietitious.person wud that it would be as good as scash

aed suevested as an alternative “DL cam meet you in a

meh tals

restaurant: we go ina toilet, and T throw it in vonr pocket

Thats all. Simples isn’t it?" He then asked Dr. Briler if b«

eould deliver the balanee of the money te him and Dy

Feiler agreed. Ritholz then said he would call Dr. Boiler

the next night and would tell hin ome restaurant sare ity

two minntes he would be an his war home Os2aJsiu i,

He then asked the board members if they trusted him for

dismissal of the Federal court case: Was given assurance

that they did. (D84a-585a-58Ga). The notes. detailing th:

transaction made by Ritholz and Dr. Peder were completed

cand Dr. Feiler’s notes were admitted in evidence on the

trial (222a). The netes made by Ritholz were never fornel

by police officers, Ritholz testified he left the motes in the:

hotel suites and later on cross-examination he testithed

he didn't Know what had: become of the notes (ostko.

Ritholz then said, “Allright. are we set?" Dr. Powe said

“Ves.” Ritholz said. “All right. TP got it all wrertten dew:

Tid yon've gof it all written down. Tomorrow night}

wilfimeet vou in Flint and you ean trust mes” He then sail

“You don't think Tam trying to sefew anybody. TP wend

only be serewing myself. Powant peace that’s ally and

auvthing comes up, Doctor, where vor think semethous

has vone wrong, tell me” Cassa). Rithols then explain

how he used to fight with the Better: Business Bares

but that new they Called himoand he straighten. it ov

(a80a), Ritholz then said “That's all” rossad. Drs. Phew

Grigware, and Feiler. then bade hime farewell and Rit!

“said “Okeh, see veu tomorrow. Toam happy with this

(osfa), °

Drs. Howe, Grigware, and Feiler left the Rithelz suit

and went immediately to the adjeining room: occupied

State Police detectives and turned ower the one tind

dollar tills they fick reeemvedd (S20a). State Police DP

tective Lt. Sheridan and Sergeant Charispeell Went Teo 1

Ritholz suite, identitied themselves as police Gilcers, wel

~

et oe

admitted by Rithelz and placed him under’ arrest for”

violation of the bribery. statutes Ola dota). Havine in-

formation that the snite heed Teen reuisteyeed dn fwer niceties,

the officers asked Ritholz if anvene was with him (ita).

He told them he hid his own policemen (la) Rithely

ther knocked on the connecting door of his suite. aecorde,

ing tea prearranged signal. anel seme Pinkerton agents

eame ont the door (hola), Ritholz was handentfed te one

of them but when the Pinkerton agents identified therm

selves, the handeutf. were removed beta),

Mr. Wievins. the Pinkerton agent in charge of the detail.

turned “over the recorder and recordings te the spolies

42a d27a) and explained that the petitioner had tela ther

that he expected a Dr Julian te atternpt te extert money

from him and. that he wanted their services te. prevent

theextortion and that they were retained te take ao tame

“reeareding of a conversation amd te turn it aver te Rithels

for his “future reference” Codon oda)

The clef fered: int Ritholz was taken te the. Miehione State

Police Headquarters by Det. Lt. Berry. (42Ta)

Oh his arrival at State Polies Headuarters the abererelant

Was searched byw pelies d) then ynestioned: by an Mics

attarney general abet fiYtecr minutes Tater ¢ot The

etitiener refused: te answer whether feo gave amy treney

ar AS treeetry baer af the Cdyeleorre TEV Poosered Chaat evcenpmer.

stating he was an attorney, aormetiber at the Chieage Bort

wal American Bar As-oetation.: was withent an attern

and that all questions titafit tered tee dterinaitmate hit,

aed ) :

The defestise: oraaede am oop redtiee Sfaateetitetat detailing it-

theory thiat the petit bers *t chil reat brit viel te bop gtaee ert Aunt

S155. but only te eomnly with the last of ao series of

<j

extortion demands by Dr. Peiler for the purpose of ol,

taining evidences to turn over to authorities the follows »

day, and outhining its edatm oof previous Speeitie Tnstiness

of extortion it expected to prove (445a).

Petitioner took the stand in lis own defense, ane an,

cross examination admitted the bribery of the state often

(505a to SOla). Te also admitted hie wanted to Taye the

Sanchick case washed out (o9la).

"There is a.crest deal of testimony in the record reward): z

other previous relationships between petitioner and Le.

Feiler whieh we believe are well eavered by the Supre

Court of Michigan in its opinion, which we believe are

Immaterial here, iz :

‘ QUESTION PRESENTED

Respondent claims that he was convieted in violation of

the Tine Process ‘Chinse of the Fourteenth Amondmen

This claini ie hases upon the assertion that he awas induced

to commit bribery by state officials.

We respond as follows:

4

1. Respondent, in the conrse of the trial adopted tw

sconthcting anel Inconsistent theories inthis defense,

(a). .On the one hamd he claimed that he arrange!

the bribery transaction himself gn order te entran

eyrtain state officials who had been extorting money

from him for years. °

(hb) On the other hand, he claimed that the bribery

transaction Was engineered by State offfeials in ord

to entrap him.

* « .. —.; é

@ A .

The Supreme Court oof Michiwan., we believes am its

opinion, nightly characterized petitioner's first ehum as

verging on the incredible. Tt stated: .

“We have examined the remainder. of the albescd

errops made, inelnding these relating te evidentians

tnatters, the charge, and te the puree: a

examination of. the defendant. as welleas his tinal

arcninent, ane find they are without merit. & °° Db

fendant'’s aeeaniit of the extortion. practiced an han,

Overa period of vears.stufered by him, in silened) verue

on the ineredible. Tle arune- That becefid) tot earp tate

tothe polices of them because his werd ta}ene Wweeatd

not have Teen effecting. A citizen's Yarbtre te perert

erime is not exeusable by reason vet gueh aesmtmeption

on his part. We tiete., alse, that at tee tebepebiane car

Versation Chetween Dr Peiler and defendaeit Yo men

tored hey the State pralion daow.- find eormelaints of peast

extortions | oy defendant, theonad he testifies bee nriade

them in abundanes at conv rations unheard by ethers.

Thus the conyersation held oon January D2. 1a. in

© the Shernton-Cadiliae hotel in Detroit? heard an it.

centinety | v this police (ated the first tromitarerd can

Versation) has a signitieanes Devore that ef its cetas

content. Up te this potnt defendant’s versions of the

theetings hell with Dro Beil daive beer repdete with

his (defendant's) protest. against the shakedowns”

te whieh he wae allegedly being shjected Weta

though we have Vxamined the polies versiens ofoth is

conversation With eare, the testimony of the mers,

Van Wie. Bowan, and Cant. wee thee at ter dee out

barren of reference fo past extortion s. sHivkeadow ne. et

other coercion naa npn defendant byw Por. Precher.

Rather. itis de feudaut whe is nears seat Lag done tid wet

that Dr. Feiler have the Savehuk cas ‘washed re) 2a

not ona for el preevdee Uh Ve ward, beth at wat, needed pure

—22—

of receiving the same bind of legal harassment as

de fendant had, in his own words, exercised aaqainst

Officials of the Peake of Indiana.) The picture, in skort,

is not that of a public officer exercising the powers of

- his office for purposes of intimidation and coercion,

but rather that of a citizen demanding that. official

action cease, both for reward and under threat.

“The Olds hotel incident was, as we have noted,

likewise barren of such accusations on the part of

the defendant, though his bargaining was frank enoug)

to inelndé other considerations, including the dismissal

of the Federal ¢ase by defendant. Finally, regardless

of the merits or demerits of Dr. Feiler, we do not

overlook the fact that money was offered to: the other

members of the board, whose connéetion with: any ex-

tortion was far more tenuous than that of Dr. Feiler,

if indeed, it ean fairly he said to have existed at all

The case was carefully tried by competent counsel.

The evidence adduced against defendant was ample

to justify the verdiet reached. We find no substantial

error in the ease and no need to disenss additiona!

claims of error.’ (Emphasis supplied)

With reference to the second claim, defense counsel, as

admitted by the petitioner, did not argue the matter ¢'

entrapment to the jury (petitioner’s brief p 14).

Moreover, defendant eounsel clearly showed his intent

to abandon the defense of entrapment when he stated to

the jury in his final argument: (669a-670a)

‘*Now, he [Ritholz] goes to the hotel suite with the

intent to bribe, and this is the thing, and he doesn't

have but $500 in his pocket to pay money, whieh, as

eo ——

a

the testimony appeared, they wanted then and there,

based on an understanding of $9,000,

“Now, when he was there, when he passed over the

money, did he do it corruptly, to bribe these gentlemen,

wilfully and corruptly to bribe them, so.that they would

be influenced in their decision pertaining to the Board?

Or, rather, did he, with $500 and this set up we have .

. deseribed, isn’t it more logieal and more consistent,

and doesn't it stand the test of reasonable doubt, that

when he gave them that’ money and engaged in that

talk, he did so as he said, to eet evidence, on Dr.

Feiler particularly?) Evidence of what?) Evidence that

he was being extorted.

“Now, Mr. Beattie, a representative of the Attorney

General, was already in the camp on August Sth. 1

don’t mean.the camp, but he was advising Dr. Feiler.

The State’ Police were -on his side. Where could this

layman (1390) from Chicago go without professional

status, and how would he be received if he didn't have

some proof positive; and to his mind, right or wrong,

at the time, he believed the only way he could present

this evidence to the proper authorities was to put if

up in such a form that they couldn't turn it down, and

with a recording and the testimony of three other men,

these Pinkerton fellows, he had it, and he thought,

and that is what le wanted, to nail it down, to deliver

it to the authorities and let them do what they wanted,

_ based upon the evidence he brought to them:

“Now, that, ina sense, is the crux of this ease. Ut

is intent. And it must be that he had a corrupt in-

tent, to do only one thing, despite the circumstantial |

evidence to the contrary, that he had a‘corrupt intent

allen.

‘to influence these men to do something in reference to

their Board.’’ (Emphasis supplied)

Furthermore, in his brief to the Supreme Court of Michi-

gan, petitioner did not raise the question of entrapment as

a Federal issue. He claimed that the trial court had erred

in his instruction by taking the issue of entrapment away

from the jury. The following language from petitioner's *

brief‘in the lower court clearly manifests this:

‘*that b the very minimum there was presented a

factual question for the jury as to whether defendant

was éntrapped by the extoftionate inducements of Dr.

Feiler and by the activities of the other board members,

police officers and the assistant, attorney general, but

the-Court committed prejudicial and reversible error by,

instructing the jury, that in his view there was no evi-

dence of entrapment;’’ (p 114)

‘‘Sinee there was convincing evidence of extortion

practiced by a member of the board upon defendant

over a period of years, the prosecution’s scheme af

entrapment in which the board member participated by

‘continuing his threats, removed the criminality ef the

act of mere payment of money to public officers, and

reversible error was committed by the court when it

instructed the jury there was no evidence of entrap-

ment.’’ (p 126)

With reference to the entrapment itself the petitioner

sought, both before the jury aud the Supreme Court, to

make it appear’ that the certain language used by an As-

sistant Attorney General was proof that the state officials

were attempting to involve Ritholz in a criminal transac- .

tion which was not initiated by him. In this statement the

Assistant Attorney General advised Dr. Feiler not to be

. —25—

“too careful of entrapment’? when he reported to the

Optometry Board the fact that he had been approached by

Ritholz to ‘‘wash out’’ the Sanchick case.

However, the language used must be read in context.

The statement was made by the Assistant Attorney Gen-

eral after he had been advised that Ritholz had approached

Dr. Feiler with the intent of bribing him and the Board.

Thjs statement, reviewed in context, makes it clear the

Assistant Attorney General was giving a legal opinion that

in view of Ritholz’s initiation of the proceedings, the State

officials could go along with him without being guilty of

entrapment. We invite the Court's attention to the fol-

lowing facts which indicate clearly that the bribery trans-.

action originated with the petitioner and was actively

promoted by him and that the state officials merely went

along with him in his acts.

Dr. Grigware, one of the members ‘of the Optometry

- Board, testified that Ritholz *tealled him and asked him

to drop the Sanchiek charges and that he would refer sev-

eral hundred patients a year to him, and also threatened

him’ (314a). ,

It was Ritholz who sugge eated to k ‘eiler to have the San-

chick ease ‘*washed out’’ and told him it would be werth

-a lot of money to do so. On January 12, 1955 petitioner

ealled Dr. Feiler and asked him what he could do about

“washing out’? the ease and told him it would be worth

3 or 4 thousand dollars. Dr. Feiler told him ‘the didn't

think he would do anything about it.’’ (18la) This con-

versation was repeated by Feiler to an FBI agent and to

the Michigan State Police. (184a to 187a) Subsequently,

at the request of the Michigan State Police and Detroit

' police detectives, Dr. Feiler oceupied a roonr at the Shera-

ton-C'adillac Hotel on January 12, 1955, in which a micro-

26.

phone had been installed hy the police; an adjoining room

was occupied by the Michigan State Police who were

equipped with headphones to overhear the conversation in

Dr. Feiler’s room, (182a - 183a) The testimony showed

that Dr. Feiler-was instructed by the police to meet with

Ritholz but not to lead him or entrap (him) that he was

not to agree to dq anything for Ritholz, but was to accept

any money offered for use as evidence. (184a) The peti-

tioner telephoned Dr. Feiler and conversed with him, and

went to Dr. Feiler’s room and there a conversation enstwa

between them. (185a -186a) Petitioner brought up the San-

chick case, asked Dr. Feiler-what he could do about wash:

ing it out and Feiler replied he did not know whether he

could do.anything as he was only one member of the board.

(186a) Petitioner asked Dr. Feiler if he thought half a

dozen lawsuits would help and suggested that she would ste

‘the board members as individuals in F edera¥ Court so that

they would have to hire attorneys and would be subject to

a lien and judgment. Ritholz asked Dr. Feiler if the board

members ‘‘scare pretty eood.’? Dr. Feiler replied he did

not think so and that in the course of the conversation Dr.

Feiler said: he did not uyderstand what the defendant

wanted him to do, and that the petitioner replied **T want

you to do just like anything on You know what to do.

Find a way to wash it out. Instead of the lawyers getting

the money, I give it to-you. It is just as sfmple as that.”

(187a - 188a - 396a - 533a -584a) Ritholz made all. the ar-

rangements for the meeting in Lansing where the bribe

transaction took place. At the time the bribe was paid, |

was Ritholz who offered the bribe and suggested what pro-

cedure should be followed by the board to dismiss the San-

chick case, as the Supreme Courpof Michigan porets out

in its opinion. :

In view of the cited testimony, the court's instr uction was

in accordance with the rule laid down in People v Smith.

iD

paar, Bias

296 Mich 176 at 182, in which the court quoted Butts > U.S... -

273 Fed. 35 (18, ALR 145) to the following effect: .

‘Where the criminal intent originates in the mind of

. ; the defendant, the fact that the officers of. the govern-

. ment. used decoys. or truthful statements to furnish

opportunity for or to aid the aceused in the commis-

sion of:a crime, in order suecessfully to prosecute

him therefor, constitutes no defense to such a prosecu- |

tion.’’ . :

As a result, the court in this Sith case held that defend-

ants were not inspired into crime by police authorities;

they merely furnished opportunity or’ aid in furtherance

of an already completed conspiracy in order to acquire

evidence of the wontemplated crime.

The Smith ease, we believe, is on all fours with the in-

stant case and refutes defendant’s claim of entrapment.

See also United States v Cerone, 150 F 2d 3882; cert. de-

nied, 66S. Ct. 98, in which the facts were parallel to those

of the instant ease and in which the court held, furthermore,

there was no entrapment.

From the above it is clear that the trial “court was cor-

rect in his comment to the effect that he could remember

no evidence which showed that the officers of the law per-

sonally or through Board members induced or persuaded

the defendant initiated the proceedings which led to the

bribe attempt and it was not until then that the officers

furnished him with the opportunity he sought of bribing

the board.’’ (p. 82). The Court’s charge was therefore -

proper and in accord not only with Michigan rulings but

is Federal rulings also. No Federal or State rights of re-

spondent were violated thereby.

—28—

CONCLUSION

Petitioner was given a fair and impartial trial. He was

well and ably represented by counsel, took the stand him-

self, produced numerous witnesses in his behalf, and cross

examined all the People’s \vitnesses at length. He was thns

able to present to the jury all the evidence which was

available to him. The trial Court was fair and impartial

in its treatment of petitioner and its instructions to the

jury, which found him guilty. .

-Proof of petitioner’s guilt was overwhelming. Witnesses

testified who participated in the transaction, and most im-

portant of all, petitioner admitted that he attempted to

bribe the board members. He sought to evade the conse-

quences of his admission by presenting the claim that he

made the bribe attempt in order to obtain evidence which

would be used by him to entrap the board members in

order to prevent further extortion upon him. The jury

disbelieved this story, and we agree that their verdict was

proper. A significant factor which we believe contributed

to the jury’s conclusion that petitioner’s story was in-

credible, is this: Petitioner, an experienced and successful

businessman — and a: lawyer in the bargain — admitted on

the stand that at no time did he use the simple and common

sense means of protecting himself which were in his power

—that is, the filing of a complaint with law enforcement

officers, either in Illinois or Michigan, who would hive

used all resources of both States to protect him.

mae

RELIEF

_-For the above reasons, it is respectfully submitted that

this petition for writ of certiorari should be denied.

Respectfully submitted,

PAUL L. ADAMS

Attorney General of the State of

Michigan :

SAMUEL J. TORINA

Solicitor Gieneral of the State of

Michigan

- Counsel for Respondent