United States v. James G. Ryan, United States of America v. Adrian Wilson, United States of America v. Bernard Zeldin

WRIGHT, in ugee ill health and a licensed realtor Before KILKENNY and TRASK, Judges. Vegas the Las area. Circuit April Broadbent, acting On helping through was interested Wilson Reeves, intermediary, Morris that property. He visited told and sell

subdivide being led into a trap in Los he was and that he January Angeles get altogether. should out of the affair rezoning could Wilson that be accom- told Morris then withdrew from the retainer only political if a contribution to the plished agreement, returning the fee Wilson had were made. Mizera county commissioners Broadbent, paid This contact Ryan him. to talk with Commissioner informer, serving as a who was this matter. about gives rise to one of the issues on and Morris held a series of meet- Mizera thereafter appeal. Ryan. meeting, Ryan At the first ings with Broadbent Mizera continued meet with approval prospects Mizera that told May. purpose His at this time favorable. No discus- application were them to have one of take control of campaign of a bribe or contribution sion bribery plot and work ensure the votes meeting, made until the second when was particular, the commissioners. In $10,000 other political mentioned a contri- Mizera Commission, one them to make the Mizera wanted Planning After the bution. rezoning meeting. motion for the On rejecting the body, advisory recommended 16, 1972, Broadbent, May the behest of he rezoning plan, Mizera that Ryan told agents, state told Mizera that he had to approach other (Mizera) would have to the and back of the deal would not be able out himself. four commissioners zoning support application. the There re- given Mizera was an unenthusiаstic contact Mizera and was no further between Leavitt, Brennan, ception Commissioners until after Broadbent the Commission Broadbent, although all of and Wiesner meeting. least to Mizera that the them at indicated appellant Mizera was also in approval plan for of the contact with eventual prospects during Zeldin this time. meeting with Zeldin was a local Mizera on good. After was to charge businessman who take of the telephoned the Broadbent April development Wilson’s approv- land after Attorney and him informed state General rezoning plan. al of the Zeldin went to Los thought Mizera had a bribe he offered Angeles concerning to confer with Wilson exchange for his vote. Broadbent then bribery the scheme and obtain the brib- cooperate with state authorities money which had borrowed ery Wilson Mizera along” with and record- by “playing Angeles interstate from a Los bank. This with him. conversations ing all trip part of the the indict- formed basis for day, the Board of following Commis- The ment the Travel under U.S.C. § voted to continue consideration of sioners Act. May, when Wilson application until the plot, withdrew from the After Broadbent conveniently more be in Nevada. could Zeldin, in Los telephoned who was Mizera thereafter, Mizera a Las Shortly contacted Angeles, problem the two the and discussed Morris, attorney, inquire about the Vegas make the mo- which commissioner would representing possibility Wilson at approval application. tion of the This hearing. Exactly what terms were dis- part conversation also formed interstate between Morris and Mizera is sub- cussed following the section 1952 indictment. The dispute, appears it that Morris ject but 17, 1972, Ryan day, May Mizera met bribery informed scheme. was he Ryan and at this time said that event, agreement retainer between Thereafter, again make the motion. Mizera and Wilson was consummated. Miz- Morris telephoned Angeles. Zeldin in Los then told Broadbent Morris would era forthcoming in the representing approached Wilson was May Mizera On evi- meeting and detailed and agents commission state informed against him as it This conversation scheme then stood. dence had amassed Broadbent. through recorded. his conversations with was Act, 1952,1 immunity violate the Travel 18 U.S.C. § state offered The violating in return for his assist- the Travel Act prosecution second forward, therein, pursuant point aiding abetting From that Mizera was ance. jurisdic- agent conversations were re- 2.2 In case where whose to U.S.C. § a state upon nature of depends The tactics of tion interstate corded. give activity, as with section obtaining cooperation rise the criminal considerably prosecutor’s in this important appeal. issue section 2 eases another Because of he does not burden. section bribery was scheme discussed and nature of each have to show interstate in a conversation recorded activity, rather defendant’s evening. Mizera also very Mizera that whole inter- scheme as a had substantial Wilson, flown who had in from met with did, it must then If state connections. 21 for commission- Angeles May Los on or abetted prove each defendant aided day, meeting following at which ers’ violation of the scheme to make out his bribery money distribution of time the It is section 1952 each defendant. among the commissioners discussed. that, jurisdic- deciding this reason was also This conversation recorded. upon primary question, tional our focus The commissioners met 22. Com- as a whole. scheme motion, Ryan made and the missioner Mizera, application approved. zoning urge Appellants offenses Zeldin then caucused a motel here were of local con committed matters given Mizera the money and was room cern; there was no connection commissioners. distribute State usage the interstate travel and of interstate entire meeting monitored this agents they what as an facilities and characterize transmitting device through a Mizera argue Appellants offense.” “isolated local person. The following day, on his carried States, 808, that Rewis v. United gave Ryan’s went to home and him Mizera (1971), is dis- 28 L.Ed.2d 493 bribery money, accepted. which question jurisdiction positive of the of thereafter, Immediately agents, state who finding mandates a the acts committed hiding of in the trunk had in this do not come within the ambit of case car, Ryan. arrested case, section In that con petitioners Florida, just illegal lottery ducted an in I. Georgia-Florida south line. of state Al The first count of the indictment though petition no there was evidence that appellants conspiring with charged all ers themselves crossed in connec- state lines narcotics, 1952 states: paid, § 1. 18 U.S.C. excise tax has not been or prostitution offenses in of the laws violation “(a) Whoever in for- travels interstate or of any facility the State in which are committed or eign commerce or uses in inter- extortion, States, commerce, (2) bribery, foreign including of or the United state or mail, or arson in of laws of the State with intent to— violation “(1) proceeds any of unlaw- in or United States. distribute the which committed of the activity; “(c) Investigations or ful under this violations “(2) any involving liquor fur- commit crime violence to shall be section narcotics or activity; any unlawful or supervision ther of the Sec- conducted under the establish, manage, “(3) promote, Treasury.” otherwise retary of the on, carry promotion, manage- or facilitate the 2. 18 U.S.C. states: establishment, ment, on, carrying or against “(a) Whoever commits an offense activity, performs and thereafter or unlawful abets, counsels, aids, States or United perform any attempts specified of the acts commands, procures its commis- induces or (2), (3), subparagraphs (1), in be shall sion, punishable principal. $10,000 as a imprisoned more fined not than or “(b) willfully an act be years, causes Whoever not more than five or both. directly performed him or “(b) if done which As used in section activ- ‘unlawful ity’ (1) any enterprise means would be offense business involv- another ing gambling, liquor principal.” punishable which on the Federal as

7«7 part took in at least two interstate tele- patrons lottery, several of the tion with facts, conversations Mizera.4 phone lottery did so. On these inapplicable. section 1952 held Court II. supports ap- Rewis not find We do Evidence obtained electronic surveil- specifically that noteWe position. pellants’ wiretapping investigation lance in the approval cited with in Rewis the Court this case into types. can divided three organ- court cases which three lower First, agents state obtained illegal either traveled scheme of an izers through wiretaps phone on Broad- organ- or caused other commerce interstate bent, county who commissioner served so.3 opposed patrons do izers —as —to informant, as a as well as a said, cases, Marshall “correct- Justice These tap” “body placed on Broadbent. A court 1952 to those individuals whose ly applied § pursuant order to state statute was obtain- cross lines in agents employees state the telephone ed for tap body but activity.” illegal atU.S. furtherance tap. party disputes No that Broadbent’s We the facts of find consent was obtained both forms of cases, involving gambling illegal all these Second, electronic surveillance. a wiretap much closer to our case than operations, pursuant order issued to the same Ne- Rewis, we are confronted those of since May 4, vada on permitting statute comparable patrons to the parties with no state to wire Mizera’s residence and of Rewis. office, tap telephones and to places. those broadly reads the statute as court This Many conversations were recorded under permit. In United will May Rewis this order between 5 and 1970), Roselli, 890-91 involving only those Broadbent were of- case, Third, May 19, we took broad view fered at trial. pre-Rewj‘s agreed cooperate act, variety govern- wide of chal- rejecting a ment authorities and also to allow applicability which would have lenges to its conversations, telephonе both per- considerably. This the act broad narrowed sonal, taped. to be with approval cited construction 1401, Colacurcio, v. F.2d 499 United States type wiretap As to the first 1974), (9th Cir. a case decided well 1405-06 evidence, the law this circuit is that clear after Rewis. party’s justifica one consent ‍​​‌​​​​​​​​​‌‌​​‌​​​​​​​‌​‌​​​​​‌​​‌​​‌​​​​‌‌‌‌​‍sufficient prior tion for electronic surveillance and no ap- to general this framework Applying judicial required. authorization Holmes case, difficulty we no in con- have pellants’ Burr, (9th 1973). 486 F.2d 55 v. Cir. Since cluding that this scheme comes well within party disputes that Broadbent’s no consent the and Zel- statute. Mizera ambit freely given, any from evidence derived to dis- din traveled interstate commerce wiretap challenge. is free from rezoning with Wilson in California. cuss $10,000 transport to gave Zeldin As type, to the secоnd we note that Nevada. Wilson trav- from tapes (except California none of these those which also Broadbent) to attend eled from California Nevada were introduced at tri involved hearing. county commissioners’ Zeldin al. Pursuant command Alderman Chambers, (6th 382 F.2d 910 3. United States v. reserved to the states in the Tenth Amendment. Barrow, 1967); States v. 363 F.2d Cir. United Contentions of this nature have consist- denied, 1001, 1966), (3d 62 U.S. Cir. cert. 385 rejected ently both this court and other 703, (1967); 17 541 United 87 S.Ct. L.Ed.2d Cozetti, United States v. 441 F.2d circuits. Zizzo, 1964), (7th F.2d 577 Cir. States v. 338 1971); 344, (9th 348 Cir. United States v. Nich- 915, 1530, denied, 381 U.S. 85 S.Ct. 14 cert. 570, ols, (8th 1970); 574 421 F.2d Cir. Turf (1965). 435 L.Ed.2d Center, States, 793, Inc. v. United contrast, By appellants 795-96 argue Appellants that Zeldin and also holding the have cited no cases statute uncon- impermis- Act is the Travel unconstitutional none. stitutional and know of infringement powers sibly vague or an of the 788 procured clude all evidence from the Mizera 961, 394 U.S. S.Ct. v. United wiretap May 19. after hearing after the (1969),

22 L.Ed.2d “the held to determine was nonetheless trial on rely particularly Justice Appellants conviction of and relevance nature [their] in United Rehnquist’s statement States may which have been any conversations 423, 431-32, Russell, 411 Alderman, supra, at overheard,” (1973), may “we 36 L.Ed.2d 366 hearing, At this district at 973. S.Ct. presented with a situation in day be some had an ruled court the conduct of law enforcement which source, Broadbent, for all in- independent outrageous process is so that due wiretap on Miz- obtained formation absolutely govern- bar principles May during period phones era’s judicial processes invoking ment from The court also ruled that May 19. 5 and argue that this is a conviction” and obtain independent became an himself Appel- type situation. precisely May this same evidence after source upon passage reliance from Rus- lants’ cooperate with the au- when distinct bases. sell has two gone them all that had and told thorities specifically Russell was directed appellant was able time. No prior to that of the nature of the a consideration toward the court’s satisfaction to demonstrate faintly ar entrapment Appellants defense. trial, or leads to evi- used at that evidence forced them to commit gue that Mizera trial, were discovered as used at dence they would not otherwise have acts criminal Therefore, interceptions. of these result This, course, en would be committed. that aside from the court concluded They trapment under the Russell standard. sources, “the information or indepеndent however, strenuously, argue more Rus wiretap the Mizera leads obtained [from entrapment another sell considered insignificant and in- before 19] “objective ap perspective so-called —the thorough After a review of substantial.” “pro where the focus is not on the proach,” presented hearing at this pensities predisposition specific of a of counsel on behalf of their arguments defendant, police con but on ‘whether clients, not “left with the definite we are case falls particular revealed in duct conviction a mistake has been firm standards, feelings to which common below United States committed.” proper governmental for the use of respond, Co., 364, 395, ” Gypsum Russell, supra at S.Ct. power.’ (1948). 92 L.Ed. 746 We J., (Stewart, dissenting). While the trial court’s conclu- affirm the therefore very clearly in Russell ex opinion Court’s sions. “objective approach” cludes use cases, above-quoted admissible on the basis Finally, entrapment we hold most Rehnquist consent evidence obtained the party’s one of Justice for Court passage telephone person may and taps approach on Mizera’s that this in from does indicate Burr, supra. The appropriate. 19. Holmes v. May after limited instances be certain is discussed in Mizera’s consent question of sur- examining the circumstances In III, infra. in Part more detail rounding government’s the confrontation Mizera, agreed cooper- which he to with in III. authorities, Miz- government and ate thereafter, that, activities we conclude arguments are also directed era’s Appellants’ standard, against the Russell the government the manner in which measured at the not rise to the conduct did government government’s Mizera as a informant. enlisted appellants’ proc- due rights violation of process that their due level of a They claim to agents first read government’s rights. Government violated ess have been statute, the “un- bribery They would have us Mizera the Nevada of Mizera. treatment predi- which served as the altogether activity” on indictment due lawful dismiss the indictment, least, and or, the section 1952 grounds, very at the ex- cate for process

789 agent entrapment ment constitute in they had of the evidence recited some then Thereafter, “subjective,” is un- sense. only him. it Russell “It is amassed actually included deception “conversation” when the Government’s that this disputed design the criminal mind of implants factors: following entrap the defense of the defendant to that he assertions Mizera Repeated teaches, play” comes Russell ment into years he to if refused go jail would Here, at 1645.5 at 93 S.Ct. sen- (10 was the maximum years cooperate government cooperation enlisted Mizera’s tence; years allows 1-10 statute conspiracy very when in a ad no defendant was ulti- imprisonment stage, just prior to vanced its culmination mately given maximum).. conspiracy ongo 22. The had on get to Mizera not to 2. Admonitions January ing year. since least of that agents or “usefulness” to state attorney his Moreover, there is no evidence that Miz- be over. would course changed any era’s of conduct his suf- Prophecies that health would after on May sense his enlistment 19 or that jail. he went to irreparably if fer he of the appellants influenced friends, .his 4. Assurances change their course of conduct after ‍​​‌​​​​​​​​​‌‌​​‌​​​​​​​‌​‌​​​​​‌​​‌​​‌​​​​‌‌‌‌​‍he Zeldin, kept be “out of it.” would agent. a became He continued to meet and discuss the bribery plan with help if he did not 5. Reminders Wilson had Ryan. previously made a com- he against Ryan, sufficient evidence obtain mitment come to Las Vegas May indicted. himself and, planned, then, as Mizera met with him not condone the tactics This court does which time the distribution of the brib- gain co-operation. ex- We used money ery was discussed. Zeldin was also court, disagree which lower plicitly meeting, at this as The present planned. government’s efforts as characterized argument emplanted that Mizera criminal professional police work.” On “excellent unwilling participants intent at this late applicable legal standards basis stage transparently implausible. Russell, however, find that derived unpersuaded appel- Likewise we are not violate treatment of does argument that Mizera’s decision to lants’ rights. This court appellants’ process due cooperate was coerced. Whether consent process the due chan- emphasized that has essentially coerced voluntary open nar- kept is a most nel which Russell Page, question of fact. United States v. one, only invoked when the row to be (9th present- 302 F.2d 81 Cir. When shocking grossly is so government’s conduct problem, ed with District Court univer- outrageous so violate the page wrote Judge memorandum Lue, justice. sense of United sal exclusively which he dealt with the Mizera 1974). The F.2d did, resolving as he question. issue conduct, exemplary, while not government’s he not pointed only out that had Hampton rise this level. See does clearly testimony of Mizera in mind but tape he also had considered the two (1976). 48 L.Ed.2d recordings meeting between Mizera government’s coop- treat Nor does the when Mizera govern- judge as a commented on those of Mizera and acts erate. trial ment reject 30; For this Wilson’s contention 5A Even reason Federal Practice 51.04. ¶ Moore’s give entrapment however, objection, the trial court’s refusal to posed timely that his if he had a relating to contact Broadbent’s instructions presented proposed to would have instructions is no reversible error. There with Wilson was upon jury an statements of the law based the posed any objection to indication that “objective odds and therefore standard” give proposed to trial court’s refusal his the holding. They thus Russell’s clear were with normally object a to instructions and failure rejected. properly preclude appellate Fed.R.Crim.P. will review. coming length,6 to threatening by Government, at some acts the jar conversations voluntarily con- Mizera that guilt. the conclusion admitting them into their In still cooperate.7 sented to cases, post-indictment other the accumu- may of convince lation evidence the de- up to face to the a defendant Requiring and his counsel that a trial fendant is not his cooperation to obtain in order real world guilt plea agony expense of and of or a worth the the de- admissions or to obtain system. under our guilty permissible family. his All these pleas fendant and Brady v. United U.S. guilty spite are valid in of the of State’s 25 L.Ed.2d the 90 S.Ct. responsibility for somе of the factors mo- Court said: tivating pleas; pleas the the are no more degree encourages to some

“The State improperly compelled than is the decision important in every step pleas guilty of a at the close of the defendant State’s people, For some process. the criminal at trial that he must take the is alone of a State’s law their breach certain conviction.” stand face surrendering them- reason sufficient Bustamonte, also Schneckloth v. See accepting punishment. For selves and 2041, 36 L.Ed.2d 854 and others, apprehension charge, both that, stating position, representatives about Nevada Attor- Mizera’s in of 6. “When view approached ney alternatives, position on the first Mizera in a General he was not they morning Mizera that immunity. told bargain if he was to receive Once cooperation, they ask for his were there to provided protec- with assured that he would be knowledge of his in outlined their involvement possible tion from threats to his life because of County project bribing ongoing an criminal cooperation, agreed cooperate. his Mizera Commissioners, Mizera read let NRS 197.020 a Mizera’s decision was made in matter of public felony), (offering a bribe to a official is a minutes time he was from the confronted. The offering ‘campaign that a con- Mizera assured agents tapes reflect the fact that the were di- clearly upon which is conditioned tribution’ vociferously overbearing. but rect not zoning vote on a matter falls within favorable they statute, indicated that more that were . Mizera alsо testified he was discovering who Commissioners interested term, prison subjectively not fearful but he bribes, they fully accept stated that would were get concluded that he would medical point prepared Mizera at that and that to arrest prison. care he felt He he needed stated that they enough evidence to had convict him and agents that medicine never said would not years, prison for ten send him to but offered provided cooperate. be Mizera, him if he refused to cooperation, Mizera the alternative in which cross-examination, under indicated prosecution, peniten- could avoid event he clearly agents say that he understood the tiary, his real and loss of estate broker’s that, attorney while an he could call if he might if he Mizera asked call an license. When wished, it mean that no deal would be responded that, would attorney, officers because state they attorney he he might notify offered him. While cooperate stated consented to an feared that reluctance, investigation, Mizera nevertheless Commissioners of and attorneys might thereby compro- cooperate testified that he went because some they position, voluntarily. agents did mise not want him Mizera’s with the They attorney. quickly “Finally, recordings although tape an added contact made saying he an day were not could not call during meetings of that show that did, saying only attorney, were that if he afterthoughts had reluctant occasional (It might over. be offer of a deal was major portions cooperating, about testimony parenthetically that at the tri- added recordings freely volunteering reveal Mizera al gation intimations of has indicated that the investi- proceed suggestions with the on how to investi- given fact to some of the Com- gation.” attorney, missioners a local and that whole, “Considering the circumstances as agents’ totally unfounded.) fears were not tone, approach and statements agents disadvantages outlined some of agents, rapidity which Mizera con- conviction, noting arrest that Mizera sented, cooperation willing Miz- active years prison, would face ten that it would immediately agreeing after era demonstrated family, impact his have an that he would investigation, assist the and Mizera’s own testi- lose his license and income derived there- mony voluntarily cooperated began from, go he and stated that unable to cooperation, specialist’s finds that this Court back to New York for a treatment ‘voluntary’ of his headaches. The were candid initial consent was and valid.” Henderson, responsibility by for acts its in- Tollett v. committed (1973); (1973). formants, unique 36 L.Ed.2d 235 we do that on hold these process violation the Russell facts no due in preferred that the While we would have transpired. sense restraint after had shown more government confronting Mizera with the evidence him, judg- say we cannot that

against IY. clearly court was ment of the trial errone- Appellant Ryan contends that therefore, We, wiretap that all ous. hold was insufficient support evidence evidence derived electronic surveillance a coconspirator. him as He verdict May after from Mizera’s conversations argues participation that his in conspir the basis of one properly admitted on was only by be acy proved can acts committed Burr, party’s consent. Holmes v. 19, 1972, May prior to date Mizera be agent, theory on the came a state raise an Zeldin and Wilson Appellants conspire cannot with himself and person process argument regard- independent due acting government agent one is as a is who Broadbent, who, it ing the contact being a member of a criminal incapable recalled, government was also a will conspiracy. Accepting, arguendo, ap Morris, informant, at- Wilson’s retained case, propriateness principle this in this undisputed that torney. It Broadbent we the evidence more than sufficient find intermediary through Morris an approached support verdict. April and told Morris that he on being trap, into a after which Mor- met with on occa- Ryan led Mizera numerous representing rezoning. from ris withdrew Wilson. discuss the At the second sions to however, this, the circumstances Beyond meetings, February in these this are in surrounding contact shrouded exchange contributions in for a campaign mystery. favorable vote did Ryan were mentioned. time, repudiate not the scheme at clear, example, It is not on what basis upon becoming had Broadbent done first rights his due process Zeldin claims Rather, of it. he to meet aware continued Broadbent’s contact. Morris violated rezoning. concerning Mizera this with that he never met testified at trial Zeldin specifically bribe dis- While the 27,1972. Zeldin claims one prior April meeting, cussed in the March it is difficult enter point that he had into a assumed imagine Ryan Wilson, with whilе at another partnership dropped original proposal. April In had he was in point partnership states repudiate plan alto- did alleged time of this interfer- had gether “kitty” his share of the because the terms ence. Nor do know reduced, but resumed his role agreement retainer Morris-Wilson —wheth- thereafter, shortly when Mizera scheme alleged Wilson retained Morris for the er $3,000 that he receive rather told him partnership, individually, Wilson-Zeldin $2,000 originally promised. Final- than the on some other basis. ly, May Ryan told Mizera that event, any In all the indi necessary make the motion at the he would acting Broadbent was indepen cates that meeting. commission dently long-time out of concern for a conspir- analyzing Ryan’s role urging friend Morris to remove himself important keep in mind that acy, it is absolutely There evi case. no the other Mizera had been rebuffed all that Broadbent consulted with state dence course, Broad- (except, commissioners before Morris approaching or that informant). bent, serving as who was state was in manner involved Thus, Ryan’s cooperation Miz- without contract. While we do not hold 17th, conspiracy almost always up can fall era back on agency principles certainly to disclaim would have dissolved. conventional 792 findings court’s factual The district ‍​​‌​​​​​​​​​‌‌​​‌​​​​​​​‌​‌​​​​​‌​​‌​​‌​​​​‌‌‌‌​‍repeatedly held that court has

This as follows:2 issue can be summarized established, it this as was conspiracy is once a consent, officers told To secure slight evidence is nec abundantly, only here they prepared him to arrest him that an support jury verdict essary to immediately enough and that had evi- awas member. Unit defendant individual prison years. him to for ten to send Turner, 143, (9th dence F.2d 162 528 v. ed States But, they suggested, “cooperat- if Mizera Westover, v. 511 1975); United States Cir. ed,” prosecution dropped. would be 1154, (9th 1975). At 1157 Cir. F.2d also him that if he did not told The officers time, that mere knowl have said same livelihood, his dam- cooperate, would lose conspiracy or existence of edge of the deprived special family, and be age conspirator with a insuf association mere his severe head- treatments medical United to sustain a conviction. ficient asked if he could call his Basurto, 781, (9th aches. 793 v. 497 F.2d States The officers said that he could do lawyer. must show Cir. did, so, if he the deal was off. The had a “stake in the ven a defendant that “consent” court held thus se- Cianchetti, district 315 United ture.” States affirmed, “voluntary,” panеl cured (2d 1963). We find the 588 Cir. F.2d the court has refused to take this case conspiracy linking en banc. “slight” clearly considerably more than

indicating illegal a stake in the venture. early Supreme As Court rec- ognized that coercion need not take the for the reasons set

Accordingly, forth physical torture: form herein, judgment of the court is district “ confession, in ‘But a order be ad Affirmed. missible, voluntary: must be free and request for en banc consideration hav- A is, by any sort that must be extracted by made an active member of the ing been violence, by nor obtained of threats or court, the matter submitted to all of implied promises, however any direct or judges, request rejected active slight, by improp nor the exertion of majority thereof. An order was there- by a A confession can er influence. ... denying en upon entered banc considera- be received in evidence where the never Judge following Hufstedler files the tion. by any influenced prisoner has been order, Judge Ely in which dissent from that the law cannot promise; threat or joins. used, force of the influence measure the upon upon its effect the mind of or decide HUFSTEDLER, Judge, dissent- Circuit prisoner, and therefore excludes the ing hearing denial of en banc any degree if of influence has declaration ” joins: Judge ELY whom (Bram been exerted.’ v. United 532, 542-43, S.Ct. is whether Mizera’s consent was The issue L.Ed. 568. voluntary. If Mizera’s consent was invol- recently: And more him untary, the conversations between inadmissible under 18 Fourth and Four- Ryan were U.S.C. “. . . [T]he 2511(2)(c).1 require that a con- Amendments teenth (9th 1973) g., appellate see Holmes v. Burr Cir. 1. E. clusion. The standard of review of 55; (6th 1975) F.2d United States v. Franks Cir. applied is the same as this determination 25; (4th Bragan United States v. Cir. 511 F.2d sufficiency reviewing to sus of evidence 1974) 499 F.2d 1376. (E. g., Channel tain a conviction. 217, 220.) 1960) are, findings court’s factual 2. The district of the standard of course, clearly either formulation subject Under to the erroneous stan- review, However, appellate conclusion the district court’s of review. the district court’s dard unsupported ultimate conclusion that the consent was vol- and is reversi- of voluntariness untary legal determination rests on error. ble sufficiency support of the evidence to con- coerced, Rogers (1961) explicit implicit v. Richmond not be sent (Uncounseled means, implied threat or covert force. 5 L.Ed.2d 760 con- subtly how the coercion defendant who was threatened For, no matter fession of ques- resulting brought be in for the consent would that his wife would aрplied, was also, pretext unjust- tioning involuntary.) a United than See be no more 38; (2d 1973) intrusion which the v. Huss Cir. 482 F.2d police States ified Laughlin (D.D.C.1963) is directed.” v. Amendment United 222 States Fourth 264; (1973) (9th F.Supp. McGarrity Bustamonte 412 and v. Wilson (Schneckloth v. 228, 677, 218, 1966) (“Incriminating 679 93 36 Cir. 368 F.2d S.Ct. U.S. 854.) or a by statements confession extorted L.Ed.2d involuntary coercion are as as if mental pressures employed by psychological The they by were obtained violence or threats of present represent in the case officers violence.”).)3 of threats of comprised coercion just such long imprisonment, Judge Duniway of the pointed and As out in United prosecution treatment, (9th 1973) vital medical to receive States v. Rothman Cir. 492 F.2d inability 1263; 1260, immunity, of promises “Where consent a unauthorized [to through of counsel. The deprivation misrepresen- methods is obtained a of the search] torture, government, clumsy physical by Bumper as but v. not as tation North Carolina, supra, 543, 1788, bit 391 every were no more subtle and 88 U.S. S.Ct. ., 797 . L.Ed.2d . or 20 under inherent- effective. pressure and ly coercive the color of the court, of the district af- The conclusion badge, supra, v. United Johnson 333 panel, by the that this conduct was firmed 10, 436; 367, 68 S.Ct. 92 L.Ed. United U.S. coercive, produced and that the consent not Marshall, 1973, Cir. 488 States v. 9 F.2d pressures voluntary flatly by these 1169, 1188-1189, such consent is not volun- controlling teachings contrary of the Moreover, implied tary.” coercion is when to the law of Cir- Supreme our Court consent is obtained “under color (1963) (E. Lynum v. Illinois g., cuit. badge,” and the must show Government 917, 528, (Con- 9 L.Ed.2d 922 83 S.Ct. U.S. (United there was no coercion in fact. by secured threats that defendant fession “ (9th 1973) 482 v. Irion Cir. F.2d States get years children ‘could [that] ” 1244; 1962) Page v. States away’ “coopera- unless she be taken could 81, 84.) 302 F.2d ted,” (372 involuntary. at held 919) attempted justify at “We think it is clear district court its 83 S.Ct. such that a confession made under circum- conclusion Mizera’s consent was volun- voluntary, by suggesting not tary must be deemed “voluntariness” stances teaching meaning is the of our cases.” on a different in the coerced. That takes context 920).) it 83 S.Ct. at coerced confessions than does (372 U.S. at Shotwell (1963) participation in moni- of consent to Mfg. Co. United context by (Evidence toring protected activities 448, 9 or other L.Ed.2d 357. (Although the district promise immunity under “can Amendment. procured Fourth regarded product as the of a found that the threatened denial of no more be court in the than that obtained treatment was not coercive free act accused medical case, it would have physical psychological present or coer- it said by official 347-48, 453).) if case involved a con- (371 concern” “great U.S. at S.Ct. cion.” fear, pressure tery hope, impressions of of ca- 3. “The human mind under or liable, seduced; easily lamity, may implant- slightly and is the emotions however acknowledge danger, evidence; indiscrimi- ed, alarm . . is not admissible truth, agita- nately a as different falsehood prisoner be made suffer a law will not confession, therefore, may prevail. tions A own instrument deluded upon an official examination or made whether (1897) (Bram v. United States conviction.’” persons, private which is with discourse 188.) U.S. at defendant, by the flat- either obtained from ultimately guilty found or to those who are right associated waiver of or “the fession innocent. Coer- ultimately found is un- are trial.”) This distinction who a fair it is unac- both because forbidden evaporate cion is does Coercion founded. ceptable police justice conduct in our sys- climate between change in assumed produce tem and because it tends to Nor does invol- Amendments. Fifth Fourth untary words and deeds. ap- it is We should be free choice when become coercion ever mindful that “if we carefully, reflect it rather than to force consent to obtain plied Rothman, abundantly becomes clear that we can nev- (United States a confession. er acquiesce principle in a 1260.) condones supra,

lawlessness law enforcers in the name of just (United a end.” (2d States v. Huss Cir. justify panel’s The effort to its conclusion 1973) 38, 52.) 482 F.2d similarly panel postu- is unsuccessful. The lates that the officers’ threats did not in- analogy taking exists between the No consent; rather, duce Mizera guilty pleа by a a court and the extraction brought plight upon his himself. The offi- “cooperation” or a confession law cers, panel says, simply required officers, ‍​​‌​​​​​​​​​‌‌​​‌​​​​​​​‌​‌​​​​​‌​​‌​​‌​​​​‌‌‌‌​‍presence without the enforcement up “to face to the defendant real world any judicial pres- officer and without the cooperation;” pres- his order to obtain of counsel. As Mr. Justice White said ence adds, entirely appropriate, it sure is guilty plea Brady: grave “That a is a analogy pleas guilty, quoting Brady v. accepted only and solemn act to be (1969) 397 United States U.S. 90 long recog- and discernment has care 1463, 1470, 25 L.Ed.2d 747. S.Ct. plea Central to the and the founda- nized. entering judgment against tion for the de- The panel’s assumption that Mizera was fendant is the defendant’s admission in guilty of a unsupported crime is by the open court thаt he committed the acts record. Mizera has not been convicted of charged (397 in the indictment.” at U.S. crime, any except by the rhetoric of the 748, 1468.) 90 at “Since Gideon v. S.Ct. speculations officers and the panel. Wainwright, 792, 372 U.S. 335 9 S.Ct. [83 The give Constitution does not law enforce- (1963), L.Ed.2d it has been clear that a 799] personnel ment right guilt decide guilty plea felony charge ato without coun- innocence, give nor does it power courts the sel and without a waiver counsel is inval- to make that determination with neither a (397 at 748- id. omitted.]” [Citations guilty plea nor a trial. But even if Mizera 49, 6, 1469.) at n. 90 S.Ct. guilty had been of the crime for which the effectively prevented officers officers prosecution threatened The Mizera and convic- tion, consulting guilt would be counsel after he asked to irrelevant in decid- ing deprivatiоn do so. That cannot be brushed coercion issue.4 Coercion is not acceptable aside. His need for counsel was evident.5 applied whether it is persons Burr, panel supra, 5. As Mr. The v. Justice Sutherland relies on Holmes observed in Powell (1932) 45, 55, question v. Alabama 53 77 where there was no of coercion. It S.Ct. 1974) L.Ed. 158: States v. Lue also uses United 531, Hampton v. United States intelligent “. . . Even the and educat- (1976) 425 U.S. 48 L.Ed.2d layman has ed small and sometimes no skill cases, entrapment holding which are charged in the science of law. If with a techniques crime, incapable, generally, law enforcement certain take he is of determin- advantage subject’s “predisposition” ing of a are for himself whether the indictment Here, process. good of due or bad. He not violative the fact is unfamiliar with the rules pressure requires guid- hаd to be used of evidence. ... He that extreme to induce ing every step cooperation hand of counsel at in the belies notion that Mizera was proceedings against (Id. p. cooperate. predisposed him.” 64.) p. surely have revealed him Counsel would al., Douglas K. et KNUTSON “compelling” the officers’ statements Plaintiffs-Appellants, The told Mizera were deceitful. officers convicted, years, serve if that he would ten v. years knowing well that ten was the full INC., REVIEW, corpora- DAILY The alleged mis- penalty for Mizera’s maximum tion, al., Defendants-Appellees. et assured Mizera of The also

deed. officers INC., REVIEW, corpora- DAILY conviction, although they had to know that al., tion, Defendants-Appellants, et worse, Even not a certitude. conviction drop any charges officers offered pow- legal had no when against al., Douglas et K. KNUTSON obtained immunity. Consent promise er to Plaintiffs-Appellees. misrepresentation is invol- by governmental 74-2802, Nos. 74-3423. Rothman, (United supra, untary. States Appeals, Court States 1263; Fuller v. United see 492 F.2d at Ninth Circuit. (1967) U.S.App.D.C. (“Of garnering course F.2d Dec. permissible artifice is no more confession Dec. 1976. Rehearing Denied achieving the same result some than Rehearing En Banc Rehearing and coercion.”).)

cruder Denied Feb. 1977. to eradicate the banc this case would en I conflict

intra-circuit Rothman, supra, 492 F.2d States antecedents, bring and to

1260, and its Supreme controlling

Ryan in line merits, I authority. On the

Court Ryan for a new trial and remand

reverse evidence.6 tainted from the

free noteworthy that the Government’s re- the evidence culled this source was said It rights sources, spect has independent for Mizera’s constitutional be available from in more than one instance. The deficient ‍​​‌​​​​​​​​​‌‌​​‌​​​​​​​‌​‌​​​​​‌​​‌​​‌​​​​‌‌‌‌​‍panel did rules its admission not constitute panel Ryan, office and (United observes that Mizera’s resi- error. grant “bugged” prior to (1976).) con- p. dence were Nevertheless, because sent on

Case Details

Case Name: United States v. James G. Ryan, United States of America v. Adrian Wilson, United States of America v. Bernard Zeldin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 30, 1976

Citation: 548 F.2d 782

Docket Number: 75-1317, 75-1314 and 75-1313

Court Abbreviation: 9th Cir.