Unpublished Disposition, 896 F.2d 555 (9th Cir. 1987)

MEMORANDUM^* 

Thomas timely appeals the district court's grant of summary judgment in favor of appellees in his action under 42 U.S.C. §§ 1983 and 1985. He alleges that members of the Nevada Gaming Control Board and the Nevada Gaming Commission violated his fifth amendment privilege against self-incrimination and his fourteenth amendment rights under the equal protection and due process clauses, by improperly including him in a list of persons excluded from licensed gaming establishments in Nevada. We affirm.

* The Nevada legislature has declared that the exclusion of certain persons from licensed gaming establishments is necessary to maintain the strict regulation of licensed gaming. See Nev. Gaming Comm'n Reg. 28 (1988). Persons are nominated for an exclusion list by the Nevada Gaming Control Board ("Board"), an administrative agency that serves as an investigative and prosecutorial body. See Nev.Rev.Stat. Secs. 463.030-.080; 463.140 (1987). The Nevada Gaming Commission ("Commission"), a lay administrative agency that functions in a quasi-judicial capacity, makes final decisions on whether to add the Board's recommended candidates to the exclusion list. Id. at Secs. 463.022-.029; 463.151-.155.

Until 1979, Thomas held a Nevada gaming license and owned two small casinos--the Bingo Palace and Slots-of-Fun. On June 25, 1979, the Board moved to revoke Thomas's gaming licenses as a result of information obtained from certain FBI wiretaps in which Thomas was heard instructing several organized crime figures about skimming operations in Las Vegas casinos. The Board also initiated an exclusion proceeding against Thomas, separate from the license revocation action. The Board, however, withdrew Thomas's nomination for exclusion because the wiretap tapes were unavailable due to a motion to suppress.

The tapes became available on May 31, 1983, and on October 10, 1983, a federal court convicted Thomas on ten felony counts arising out of his involvement with skimming in the Tropicana Hotel and Casino. See United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert. denied, 474 U.S. 980 (1985) ("Tropicana ").

In 1984, the Board again nominated Thomas for the exclusion list. Board agent Carr twice contacted Thomas's attorney asking whether Thomas would agree to be interviewed in connection with the Tropicana case. Thomas's attorney responded that Thomas would not be interviewed "under any circumstances."

On December 5, 1985, Thomas filed a motion for reduction of his fifteen-year sentence in Tropicana before Judge Albert Lee Stevens, Jr., who had presided in the trial of that case. On January 14, 1986, former Board chairman Jacka informed Judge Stevens that Thomas would not testify before the Board. Judge Stevens nonetheless reduced Thomas's sentence to two years with eligibility for immediate parole.

On March 21, 1986, the Board entered an order placing Thomas's name on the exclusion list. The Board did not include others who had also been convicted in Tropicana; nor did the Board include other persons who had been convicted of gaming-related offenses. After the Board notified him of its action, Thomas requested a hearing, as well as discovery of all evidentiary materials the Board had relied upon in making its decision.

On November 12, 1986, Thomas requested the custodian of records to produce documents relating to the identity of persons who hold a Nevada gaming license or work card and who have also been convicted of a felony. On November 18, 1986, the Board filed a motion for a protective order to preclude production on the grounds of confidentiality and the burden of production. On December 5, Commission Chairman Bible denied the Board's motion in part and Thomas was given a summary of documents from July 1982 to the date of the discovery request.

The Commission hearing on Thomas's candidacy for the list commenced on December 17, 1986. Thomas did not attend and no witnesses spoke on his behalf. Oral argument was set for January 22, 1987. At argument, Thomas's attorney did not present additional evidence, although the Board did through deputy attorney general Rumbolz. The Commission then voted unanimously to place Thomas's name on the exclusion list. The Commission granted and later extended a stay of its order to allow Thomas to file this action in federal court.

II

Thomas contends that the Board violated his fifth amendment privilege against self-incrimination by putting his name on the list for his refusal to cooperate with the Board. We disagree.

The fifth amendment provides that " [n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. Thomas assumes that he properly asserted his fifth amendment privilege when he chose to remain silent.

A defendant is not excused from answering merely because he believes that in so doing he would incriminate himself. Hoffman v. United States, 341 U.S. 479, 486 (1951). It is for the court to decide whether his silence is justified by examining the implications of the questions and the setting in which they are asked. Hoffman, 341 U.S. at 486-87 (citing Rogers v. United States, 340 U.S. 367 (1951)); see also Marchetti v. United States, 390 U.S. 39, 50 (1968). Proper application of the Hoffman standard requires that a fifth amendment claim be raised in response to specific questions. United States v. Tsui, 646 F.2d 365, 367 (9th Cir. 1981), cert. denied, 455 U.S. 991 (1982). A blanket refusal to answer any question is insufficient unless the court has special knowledge of the case and the testimony expected from the witness. See id.

Here, nothing in the record indicates that Thomas ever effectively invoked his fifth amendment privilege. The Board twice asked Thomas to cooperate in its investigation. Thomas responded only that he would not be interviewed "under any circumstances." He did not meet with any Board member, nor did he communicate a claim of privilege in response to a specific question. He did not even attend his hearing before the Commission.

Thomas claims that through his actions he asserted a blanket privilege. His fear of self-incrimination, however, is speculative. Thomas had already been convicted in the Tropicana case and had been granted immunity in the Argent case. A hypothetical situation giving rise to a fear of criminal prosecution is an insufficient basis for a fifth amendment claim. Boday v. United States, 759 F.2d 1472, 1474-75 (9th Cir. 1985). We are not persuaded that Thomas invoked the fifth amendment here.

III

Thomas contends that his right to equal protection was violated. Essentially, he argues that the Board singled out and prosecuted him because he invoked his fifth amendment right against self-incrimination. In an attempt to support this argument of selective prosecution, Thomas claims that other similarly situated individuals were not placed on the list and that the Board had an improper motive in prosecuting him.

To support a claim of selective or discriminatory prosecution under the equal protection clause of the fourteenth amendment, Thomas must show that others who are similarly situated and committing the same acts have not been prosecuted. United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126 (1981). He must also demonstrate that the government's prosecution is in bad faith, or selectively based on impermissible factors such as race, religion, or the exercise of a constitutional right. United States v. McWilliams, 730 F.2d 1218, 1221 (9th Cir. 1984) (per curiam).

Equal protection does not require identity of treatment. It requires only that a classification rest on real differences which have some rational relation to the purpose for which the classification is made, and that the different treatments not be so disparate, relative to the difference in classification, as to be wholly arbitrary. United States v. Bell, 506 F.2d 207, 222 (D.C. Cir. 1974). Under the Nevada gaming statute, the Board is given broad discretionary power to regulate the gaming industry and keep out those who pose a threat to the state's public interest. See Nev.Rev.Stat. Sec. 463.0129(b). The "conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, 368 U.S. 448, 456 (1962).

Thomas compares himself to individuals in a variety of groups: his co-defendants in the Tropicana and Argent cases, other felons who have been granted work permits or gaming licenses, and felons in general who have not been placed on the exclusion list. Thomas, however, was the ringleader who induced, instructed, and supervised his co-defendants on how to skillfully skim from the casinos. A leader is not similarly situated to his subordinates. Bell, 506 F.2d at 221-22. Thomas has failed to show that the Board selected him for exclusion based on an impermissible factor. See McWilliams, 730 F.2d at 1221.

Thomas has offered insufficient evidence to suggest that the Board had an improper motive. In light of his past conduct, it was not only rational but also appropriate for the Board to investigate and nominate Thomas for the list. The record shows that the manner in which Thomas was selected was rationally related to the purpose of the statute and was within the Board's prosecutorial discretion. Thomas has failed to raise a genuine issue of material fact sufficient to establish an equal protection violation. We therefore uphold the district court's judgment on this issue.

IV

Thomas also contends that his due process right to a fair and impartial hearing was violated, arguably because the Board refused to give him the detailed information about similarly situated felons while at the same time the Commission ruled against him for lack of sufficient evidence.

The due process clause guarantees an aggrieved party an opportunity to present his case and have the merits fairly judged. Jackson Water Works, Inc. v. Public Utilities Comm'n, 793 F.2d 1090, 1097 (9th Cir. 1986), cert. denied, 479 U.S. 1102 (1987). There is, however, no constitutional right to pretrial discovery in administrative proceedings. Sims v. National Transp. Safety Bd., 662 F.2d 668, 671-72 (10th Cir. 1981) (citing Silverman v. Commodity Futures Trading Comm'n, 549 F.2d 28, 33 (7th Cir. 1977)). A review of the Board's actions illustrates that the facts are not susceptible to Thomas's interpretation of them.

Thomas requested discovery of " [a]ll documents which refer or relate to the identity of all persons (i) who currently hold a Nevada gaming license, ... or work card ... and (ii) who have been convicted of any felony." In response, he was given a summary of information dating from July 1982 through the date of his discovery request. He challenges the adequacy of this data because it lacked information on identities. However, the information he sought was available through other means. Thomas could have obtained the identity of every licensee under Nev.Rev.Stat. Sec. 463.120(2). This regulation makes applications for licenses, their dispositions, and the transcripts of the application proceedings a matter of public record. Thomas could have compelled any person helpful to his case to give testimony under oath by Commission subpoena. Nev.Rev.Stat. Sec. 463.3125. He could have obtained a court order under Nev.Rev.Stat. Sec. 463.120(4), or asked for a continuance. Furthermore, Thomas chose not to present additional evidence at oral argument.

We find, therefore, that Thomas has failed to raise an issue of material fact sufficient to establish that the proceedings amounted to a violation of Thomas's constitutional right to procedural due process.

V

The Board seeks attorney's fees and costs for the appeal. Under Learned v. City of Bellevue, 860 F.2d 928, 934 (9th Cir. 1988), cert. denied, 109 S. Ct. 1530 (1989), attorney's fees will be awarded if an appeal is entirely frivolous. Thomas's appeal is not frivolous. Attorney's fees are denied.

AFFIRMED.