*1
Petitioner,
v. HARRY
NEVADA,
BAR OF
STATE
Respondent.
CLAIBORNE,
EUGENE
No.
May Howe, Counsel, Peti- for Vegas, Bar Las Nevada State John tioner. Goldwater, Goodman, John S. Vegas; Las David Oscar B.
Drendel, Reno, Respondent.
OPINION Court, Steffen, theBy J.:
On November this court entered a preliminary order in this matter indicating from our review of the pertinent legal us, authorities and the facts reflected in the record before we were “not persuaded that further discipline should be imposed upon respondent.” See Docket No. order filed November 25, 1987. Our order indicated that a full and formal opinion setting forth in detail the grounds for our decision would be forthcoming. Accordingly, this opinion constitutes our formal and final resolution of the issues presented this disciplinary proceeding.
The unique history and extensive interest permeating this pro- ceeding demand a protracted and detailed analysis of the complex of factors that culminated in this court’s determination not to impose further discipline on the respondent Harry Eugene Claiborne. The extent to which the judicial assets of this court have been allocated to the fair and just resolution of this matter reflect a predominate concern and sensitivity to the preservation of public and, confidence in the integrity of the state bar extension, judicial system of this state. We especially invite those who are and have been content to judge integrity and rightness of our preliminary decision result alone to travel forthrightly and objectively with us over the expansive terrain that follows. There can be little or understanding appreciation for the destination reached by this court without surveying path it followed.
117 TABLE OF CONTENTS PAGE 118 HISTORY. I. PROCEDURAL 129 NOTE. II. PRELIMINARY HISTORY OF RESPONDENT’S III. THE FACTUAL REMOVAL AND EVENTUAL CONVICTION 129 FROM OFFICE. FEDERAL A. THE TENSION BETWEEN NEVADA FEDERAL AND THE AGENTS JUDGES. DISTRICT COURT INVESTIGATORY
B. ALLEGATIONS OF MISCONDUCT. BARGAIN GOVERNMENT’S
C. THE FEDERAL JOSEPH CONFORTE. WITH JURY INDICTMENT.
D. THE GRAND *3 153 TRIAL. E. RESPONDENT’S FIRST SUBSEQUENT TRIAL AND F. THE SECOND AND CONGRESSIONAL APPELLATE 169 PROCEEDINGS. CONSEQUENCES OF 1. CONCERNS AND INDICTMENT. 172 THE GRAND JURY EVIDENCE OF RESPONDENT’S CON- “WILLFUL AND KNOWING” 176 DUCT. 177 RETURN. a. THE 1979 183 RETURN. b. THE 1980 AND CONGRESSIONAL 3. THE JUDICIAL 194 PROCEEDINGS. BACK- PROFESSIONAL IV. RESPONDENT’S GROUND.
V. DISCUSSION.
VI. CONCLUSION. HISTORY I. PROCEDURAL bar, the we will set Initially, public the benefit of the history of matter in order in this procedural forth detail the came this under which this case before clarify the circumstances court, resolving the employed legal the we in process as well as presented. issues (the Board) Nevada The Board of the State Bar of of Governors of annual May this matter in their first acted upon Diego, Following meeting, California. meeting San transmitted to this court a former Bar Counsel May Addition- of conviction. copy respondent’s judgment certified of motion, filed a to SCR ally, referring request- Bar Counsel from the temporarily “suspend” that this court ing the to the of this state and refer matter Southern law in practice State for the sole purpose Board of the Bar Nevada Disciplinary be reason assessing discipline imposed by the extent the July coun- respondent’s conviction.1 On respondent’s contending, motion for opposed temporary suspension, sel the Bar jurisdiction State had no among things, other the Ill against respondent Claiborne under SCR because proceed as member of the official status at that time federal judiciary.2 the aforementioned filed Bar Counsel time former
At provides pertinent part: 1SCR 111 (1) court certificate of conviction Upon filing supreme with the of a crime, as attorney of a serious demonstrating has been convicted suspending order rule ... the court shall enter an defined proceeding, attorney disposition disciplinary of a pending . . final . upon appropriate disciplinary board which shall be commenced cause, may order good the court set aside its For notice conviction. attorney practice from of law. suspending the the State Bar and other members 2Interestingly, former President of Justice, court, through that at the its current Chief the Board advised this bringing Diego meeting Counsel succeeded Bar above-noted San notice, customary Board without the disciplinary matter before the instant by moving consensus Bar acted in excess of Board’s and that Counsel *4 advised that it was respondent. Specifically, the Chief Justice was suspend merely notify court that Counsel should this the consensus the Board Bar assuming the an stance in without adversarial conviction matter. Barr, Counsel, position subsequently resigned his as counsel Michael Bar Attorney presently an United States the State serves as assistant Bar meeting Diego in Although the in San Vegas. the minutes of Board’s in Las part to this of the formal May never been court as of 1986 have submitted or the Bar has never clarified contradicted proceedings, record in these State meeting. particular, we note that recital of the Board’s actions at that our and order to these in the memorandum directed we made reference to facts 26, light the the Bar has January fact that State the Board on 1987. In opportunity to clarifications or correc- availed of the submit never itself May, understanding consensus at its pertaining our Board’s tions to 119 court, officially office respondent occupied motion with this for the District of Nevada. Judge of United States District law in actively practice in the this Respondent engaged was not by in such federal law precluded practice state and fact was from sitting he a federal See 28 U.S.C. 454 judge. because § is to (1982); underlying SCR 111 afford policy SCR 98. cf. are proceedings pend to while public disciplinary protection active, of the bar who have been members ing against practicing their fitness to reflecting upon convicted of criminal offenses attorneys against law. SCR 111 relates to practice proceedings crimes, by are and does not its terms who convicted of serious officers, to federal whose conduct office apply judicial state or See, Nev. e.g., is to different measures. Const. subject regulatory 3; Conduct, 7, 21 of Jud. Canons 1 art. and art. Nev. Code § § 7; II, 4; (1982). Const. art. 28 U.S.C. 372 through U.S. § § legal authority, Based extensive this court upon body concluded, therefore, on July in an order filed disciplinary proceedings State Bar lacked to conduct jurisdiction officially 111 he respondent to SCR while against pursuant District Addition Judge.3 retained of United States position that, we court also lacked ally, arguably, jurisdiction noted this to We nevertheless consid against sitting judge. federal proceed ered it undertake a prudent preliminary investigation a fair and resolution of the matter in would facilitate reasonable the event was removed. We jurisdictional impediment accordingly in our order that: specified in deferring conviction court justifies Claiborne’s jurisdiction pursuing a final as to our own decision that, Moreover, although this court believes
further inquiry.
over
jurisdiction
of Nevada lacks
State Bar
meeting,
accuracy
representations
no reason
1986
we have
to doubt the
of the
by
to the
regard
made
Chief Justice in this
the former
of the
President
State
Bar
other members of the Board.
following
upon the
July
we relied
order of
3Specifically, in our
(1955);
Watson,
Alabama State
P.2d 254
71 Nev.
286
In re
authorities:
Aderholt,
(state
(Ala. 1969)
bar cannot
149
v.
218 So.2d
ex rel. Steiner
Bar
provides the
the constitution
judge
court
where
discipline
or
a state
remove
(Cal.
Court,
removal);
Superior
278 P.
v.
State Bar
exclusive method of
office, subject
not, during
1929)
continuance
(judge
of record was
of court
association);
control,
bar
processes conferred
state
jurisdiction,
1958);
Association,
(Colo.
In re
P.2d 932
Bar
of Colorado
Petition
Meraux,
(La. 1943)
members
bar
(judges are inactive
transmitting: court; respondent’s transcripts of both of trials federal 1. 2. briefs the United and in the United All filed States Circuit; the Ninth Appeals States Court petition opposition respondent’s for a rehear- 3. The United States’ Circuit; ing filed in the Ninth File-stamped pretrial post-trial all to dis- copies 4. and motions trial, miss, judgment acquittal opposition or new motions for a trial; thereto, motions, resolving pertinent to those the second orders recusal, File-stamped judicial opposition all copies 5. of motions for thereto, pleadings or other documents relevant to the issue judge or court conducted trials in a biased whether federal district manner; prejudicial Any or in the criminal 6. other relevant documentation tendered filed government agents addressing proceedings the issue misconduct trial; during prosecutorial prior to and abuse hearings Transcripts conducted on the motions described above. counsel our complied On October with respondent’s record.5 directive and the requested Subsequently, transmitted us further record before supplemented counsel *6 of the of the Senate Impeach- with a multi-volume set “Report alia, inter transcripts the of containing, ment Trial Committee” the States Senate during proceedings all elicited United testimony by to the returned impeachment conducted articles of pursuant materials, the of these Upon receipt House of Representatives. its Central to review the volumi- Legal
this court directed Staff summarizing a detailed memorandum nous record and to prepare and evaluating its contents. 26, 1987, review,
On January óf upon our completion staff’s in an effort to the accuracy insure and completeness of our staff’s factual analysis, court this issued an order the Board an affording review, evaluate, opportunity to and comment upon our staff’s initial, extensive memorandum.6 We requested the eval- Board to uate carefully and objectively our staff’s analysis light “in the of record, the so that the truth may be as fully determined as to possible, the end that we may our func- perform judgmental tion.”7 to our a response
On Board submitted February 5The proceeding record in this is into parts. divided four I Part is comprised pleadings of the filed in the United States District Court District of Nevada. Parts II and transcript III consist of the respondent’s of trial, transcript first trial and the respectively. his second Part IV contains pleadings Appeals filed in the United States Court of for the Ninth Circuit and in Supreme the United States Court. References to the record are Pt., hereinafter referred to as “Rec. Vol.at.” 6We note regard in this that the record in been extensive this matter has readily by throughout major available for review the State part Bar these Counsel, Howe, proceedings. acknowledged hearing Present Bar John at the counsel, Goodman, respondent’s November Oscar had Bar, supplied through upon predecessor, State service Mr. Howe’s with a copy Further, complete which record Mr. Goodman transmitted to court. this hearing November Mr. Howe that he indicated directing had received no instructions from the Board him to review that record, was, quite understandably, underly and that he not familiar with the ing charges proceedings resulting conviction. 7Specifically, requested advising we Board to file memorandum this court: (1) Whether the facts stated prepared in the memorandum Legal perceived Court’s Central Staff ... are to be or inaccurate incomplete particulars might reasonably material which affect this herein; judgment Court’s (2) so, considered, If what further facts in the record should be or received, relating what further whether, should be questions evidence to the extent, disciplinary and to what further action is warranted as Harry E. Claiborne. January See Docket No. order filed “respectfully that the Board decline[d] stating part
request Legal Central comment on the record or the Claiborne review Instead, that it “would suggested Board it.” analysis of Staff’s so, an attorney perhaps to do retaining independent support who would have student law school recognized from a academic the evaluation enormous task out the carry available assistance disciplinary belief that its expressed The Board also would be.” pursuant be conducted should respondent against proceedings a member longer that time no was at 111 because SCR that, addition, in its opinion, the Board stated of the judiciary. of our staff’s memo- of the record or Governors’ review the Bar faith and which full . . establish facts “would not . randum judgment federal denied to [respondent’s] credit could be conviction,” investigative the Board lacked and that hearing.8 conduct a full necessary to support administrative who, Nonetheless, its of those support also expressed the Board trial, called for an impeachment Respondent’s “at the time of indictment, investigation, of his into the circumstances inquiry *7 Thus, seemed response the Board’s and conviction.” prosecution and, internally incon- our perspective, from express divergent for assistance. request our viewpoints respecting sistent event, finely focused equivocation the Board’s any In court. We could have besetting our concerns and alternatives outside the sought and assistance suggestion the Board’s followed of the “enormous task” court in accomplishing bar and the our of the extensive efforts of evaluation of the results further not to this alternative pursue staff. We elected legal own central of our and quality objectivity of our confidence in because with our dissat- record coupled of the voluminous analysis staff’s inherent in delay inefficiency of and with the portents isfaction concomitantly referring an academic while by a review obtaining Moreover, were than we less to a board. disciplinary the matter of commitment to a task lack by apparent enthused the Board’s with assistance at com- paid been accomplished that could have funds. surplus to the Bar’s substantial small expense paratively to invoke the Board’s request unreasonable equally We found 111. Given the sanction of SCR pendent and machinery court, and the history by the Claiborne exhaustive review of to the Board to undertake of resources available disavowal question court does not include a of inquiry 8Wenote that the before this IV, by U.S. Const. art. suggested the Board. See § “full faith and credit” as whether, Instead, on all the question before this court is based circumstances, imposed. v. discipline be See Sloan State professional should 330, Kristovich, 440, (1986); Bar, 436, 333 In re 556 726 P.2d 102 Nev. 771, 1976) (court attorney’s (Cal. may the whole course of look at P.2d 773 law). practice fitness to conduct which reflects on his 123 reviewing analysis enormous task of the record and our staff thereof, there was little expectancy timely effective by busy lawyers review as an extension of the Board in the sitting form of a disciplinary Although board. was disenti- state, tled to favored treatment the bench and bar of this basic fairness would not us to the tortured permit ignore history conviction, Claiborne’s prosecution, impeachment, and incarcer- ation combined with the prospect protracted disciplinary pro- could, alone, virtue of ceedings delay expand degree well the bounds of human punishment beyond decency and objective judicial discretion. court,
In our approach any SCR as with other rule of we are enjoined give the rule a liberal construction “to pro- mote and facilitate the justice by administration of the court.” Moreover, SCR 5. beyond it is cavil that the inherent rule-making of this court also include the powers power to or relax suspend any court rule in order to individual promote justice. Ashley See v. Court in and for Pierce 521 Superior County, P.2d 715 (Wash. 1974); (1940); 21 C.J.S. Courts 20 Am.Jur.2d § Lemme, (1965). Courts v. See also State 244 A.2d §§ (R.I. 1968); Norton v. Standard Coosa-Thatcher Com- (Tenn. 1958) (on pany, 315 S.W.2d rehearing). Based we upon foregoing principles, efficiency determined that justice would be served of SCR by suspending operation insofar itas the court to order the required suspension respond- conviction, ent upon receipt of the certificate of his and to refer the matter to a board of the state disciplinary bar. not respect suspend our decision respondent upon conviction, that, of the certificate of his we
receipt reiterate time, such suspension arguably beyond jurisdiction our unnecessary event because Claiborne was still a judge. federal At the point respondent’s impeachment *8 office, removal from he was incarcerated and therefore unable to law. as practice Finally, respondent’s counsel observed at our 24, 1987, of November had hearing voluntarily refrained from the of law this court’s resolution practice pending of his fitness to remain a licensed member of the question bar.9 Claiborne, 17294, Reporter’s Transcript 9State Bar v. Docket No. of 24, 1987, Hearing regard July of November We note in 105-06. this that in 1986, respondent’s proceedings disciplinary of counsel asserted that before a
panel during period respondent’s the bar state the incarceration would deprive respondent Authorities, process Respondent’s of due of law. See and Points 17294, 9, 1986, July particular, Docket No. filed at 22-26. In argued right respondent’s significantly his counsel to be heard would be 124 however, the protect was the concern to
More important, for the underlying purpose unfit the practitioner, from an public case, 111. In this the of SCR provision automatic suspension judge, status as federal by respondent’s was satisfied purpose in the voluntary nonparticipant and judge incarcerated former law, on the issue of equal persuasion Of respectively. practice record as a lengthy, exemplary was safety respondent’s public the bench and his to his federal lawyer appointment trial prior subject More will be said on that felony conviction. subsequent stated, the concern policy because Simply later in this opinion. mooted, 111 was SCR suspension provision behind facts of this case did not exist. need to under the suspend peculiar attempts that SCR 111 to foreclose danger public The in this instance.10 not present
There were also reasons for this court not to refer compelling the issue of Claiborne’s to the Southern Nevada Disci- discipline noted, Board as under SCR 111. As plinary provided previously court had commenced situation well reviewing respondent’s 9, And, removal a federal October judge before his 16, 1986, to our order of coun- pursuant September respondent’s sel, 22, 1986, on October 21 and this court and the State provided Bar with a record of the entire federal court complete proceedings both at the trial and At no time between the appellate levels. date 21, 1986, 26, 1987, January of October and our order of request- ing concerning accuracy evaluative assistance from the Board incarceration, unable because, respondent would be due to endangered own defense. hearing articulate his and to such a personally to attend previously observed: court has This process is flexible that “due emphasized Court has Supreme particular situation as the protections procedural for such calls 471, (1972). Brewer, To deter- 481 Morrissey 408 U.S. v. demands.” (1) private interest consider: we must procedure, appropriate mine affected; used; procedures deprivation (2) of erroneous the risk light of the fiscal protected (3) to be government interest safeguards. procedural by additional imposed burdens administrative 319, (1976). 335 Eldridge, 424 U.S. v. Mathews Nevada, 1204 643 P.2d Nev. Burleigh v. Bar State See a valuable right practice law is (1982). Unquestionably, without due deprived be that cannot private interest right and property practice or unable to respondent was either Id. Because process of law. prior to our order practice of law private voluntarily from the refrained public interest. danger to the minimal existed there November context, expressed the previously analogous this court has 10Ina somewhat concerning authority matters over its inherent policy it will exercise arbitrarily operates the rule a rule where provide relief from bar to Nort, re Nev. purpose. See In essential unrelated its effects a result 96, Bar, (1980); 103 Nev. Bennett v. State see also 605 P.2d (1987). P.2d 143
125 and completeness record, of our staff analysis of the did the court, otherwise, Board ask by this formal motion or to refer the 26, Claiborne matter to the bar board. disciplinary Our January 1987, order should have allayed any fears that this court intended to favor Claiborne hand, with unilateral review. On the other it made no sense for the court to employ academic to research the extensive Claiborne record and our staff analysis thereof while concomitantly referring matter to a disciplinary adjunct which, of the Board in the final analysis, could do no more than issue a non-binding recommendation to this court concerning the issue of respondent’s Kenick, discipline. See In re 100 Nev. 275-76, 680 (1984); al., P.2d 974 Haviland v. Foley et 55 455, 457, Nev. (1935); Scott, 39 P.2d 24, 38, 198 In re 53 Nev. (1930). 292 P. 295 The Board had declined to review the resources, record on grounds of inadequate and it was apparent that the Southern Nevada Disciplinary Board would have even Thus, less capacity to undertake the task. we were constrained to accept the Board’s evident determination that its review of the record and the facts underlying respondent’s judgment of convic- undertake, tion was too onerous a task to notwithstanding the precedents this court holding that the circumstances underlying the conviction must be considered in a disciplinary proceeding. Bar,
See Sloan v. State 102 Nev. 726 P.2d (1986); Cochrane, In re 92 Nev. (1976). P.2d Furthermore, observed, previously the Board’s February 1987, response to our order of January 26 of the same year revealed either a misapprehension or lack of commitment to the task with which this court would have to struggle. We were hardly concerned with an exhaustive analysis of the Claiborne record as a possible predicate to a judicially improper denial of full faith and credit to the federal judgment conviction. Our concerns dealt with the entire complex of circumstances underly- ing respondent’s conviction and its impact, any, if on the nature extent of further discipline imposed respondent by this court. The may Board have viewed such an undertaking as unduly futile, onerous and but we considered the effort necessary to a just disposition respondent’s future as a lawyer Nevada citizen.
Tragically, the hallmark of Claiborne’s prosecution, convic- tion, review, appellate and eventual removal from the bench has been an apparent unwillingness to consider all of the pieces However puzzle. imperfectly, we have forthrightly sought to assimilate and a more express complete picture Claiborne A episode. less review thorough board disciplinary would have, for merely respondent, perpetuated, as prologue, an abbre- court; viated formula for the final blow for us it would have constituted an meaningless effort at best and prejudicial to a We at worst. acknowl- acceptance understanding Ml public *10 review an a thorough our assumes less
edge premise board, of the but our keen appreciation ephemeral disciplinary to the reason provides in our own review assets invested extensive of group a practicing A investment small similar assumption. whose attention to the task laypersons and or more attorneys one entirely have an unac- required would only be intermittent could short, course was in no In our elected length delay. of ceptable character, of bar and wisdom denigration integrity, of the sense a Rather, of it was a discipline. on a lay sitting and members board substantial, and necessity a consistent of the for recognition to unequipped a board is temporary simply effort that prolonged If, any to have true process due analysis, handle. in the final delay had be 70-year-old respondent, protracted to the meaning avoided. declares that “the letter passage insightMly
A familiar biblical killeth, the letter of suspended life.”11 We giveth but the spirit general in both the give meaning spirit in order to its SCR 111 com justice highly this concerning administration specific inordinate matter. plex that, its inherent discharging is it well established
Finally, bar, has obligation this court authority discipline com any record and de novo review an independent conduct whether in order to determine proceeding in a piled disciplinary 39; is See warranted. SCR instance discipline any particular Kenick, 273, (1984); P.2d 972 In 99(1); In 100 Nev. 680 re SCR Miller, 65, (1971); re 68 Wright, 326 In 87 482 P.2d re Nev. Scott, re 53 Nev. 292 P. (1951); 232 In Nev. P.2d 398 California, v. Bar of 696 P.2d (1930); McCray State accord 291 Nelson, (Wash. 1976). 1985); (Cal. P.2d Matter utilized, Thus, are preliminary procedures of whatever regardless disciplinary the truth in arriving the ultimate responsibility already this Because this court had lies with court. matters ascertain the existence of record in order to reviewed extensive sanctions, subject disciplinary on the bearing facts record, to review that declined expressly the State Bar because fact-finding the State panel before disciplinary proceedings entailed, have in our SCR 111 would in accordance with Bar view, which in a needless waste resources delay and substantial not possess.12 indicated it did any event Board James). (King 11 2 3:6 Corinthians 24, 1987, hearing of Bar articu 12 Wenote that at the November Counsel enough to decide whether position that if this court had information lated his warranted, quarrel he with a deviation from the strict discipline is would not Specifically, following exchange cite from the SCR 111. we dictates of hearing: transcript of that Howe, your position that Mr. so it remains JUSTICE STEFFEN: After this court had familiarized itself with the thoroughly record, we factual undertook to utilize such resources as were available to us to define and to with the proceed prompt resolution confronting of the issues us. legal Accordingly, September Counsel, Howe, we directed Bar Mr. fiduciary as a to this court, “to provide objective legal assessment principles which should control” our review of the record. See No. Docket September order filed 1987.13 On October be a protracted and that there should should continue to be matter hearing?
discipline commission over months and on this matter these spite of all that’s been known involving something gained by to be years, you that there would be feel further? procedure to hear the matter discipline committee Well, certainly, problem I can understand the involved MR. HOWE: it, something extending certainly that is that is protracting it and decision, it that that's its disadvantage. And if this court decides issue, then I wouldn’t enough and can decide the has information *11 quarrel with that. — But I do think quarrel with that? You would not JUSTICE GUNDERSON: CHIEF think, quarrel with that. But I do and the I would not MR. HOWE: referring advocating following system it to the why the reason I’m board, system integrity impor- I think the of our is disciplinary is that any important this case be handled as other And I think it’s tant. rules, which, would be to refer it to be handled under the case would findings and recommendations get their disciplinary the board before the court considers it. court, Now, you circumstances that the may special be that there’s it know, you dispense to protracted nature that want feels because of with that. that, said, my the reason for quarrel with but that’s As I I wouldn’t handled. way the matter should be that that’s the recommendation Claiborne, Transcript Hearing Reporter’s Docket No. State Bar v. Reports of American Bar at See also 95 November 95-96. (1971) Special Committee on Evalua- (Report of the 826-34 Association Enforcement, addressing importance prompt Disciplinary tion of disposition disciplinary proceedings). on, that Bar Counsel’s discussion should focus but 13Ourorder indicated to, regarding following questions disciplinary bar need not be limited respondent’s position: proceedings appeared which to bear on goals practice, what are the of bar 1. Under established Nevada disciplinary proceedings? disciplinary be determining 2. In whether further sanctions should offense, following a imposed this Court conviction for criminal is it practice under established Nevada to look appropriate for this Court underlying beyond the fact of the conviction to determine whether the discipline? warrant further circumstances of such conviction determining imposition discipline 3. In whether the of further is justified, appropriate practice it under Nevada for this Court to is alleged whether the conduct that resulted in the conviction consider is character, well to evidence atypical isolated or as as consider character, legal attorney’s good reputation, profes- contributions to the order, indicating that to our his response submitted Bar Counsel control our that should the legal principles respecting his position position with the substantially congruent review of the record determined, however, subsequently We by respondent. espoused present to opportunity be afforded should parties posi- their defining evidence or argument further this court to resume the fitness reflecting respondent’s upon herein and tions court sched- this Accordingly, of law in this state. practice active to be held this for November matter hearing uled Nevada.14 in Las Vegas,
[Headnote 3] petitioned
On Bar Counsel this court November to the open including the entire record in this case all public, court, orders prior responses confidential of this memoranda thereto. observed that there was substantial public Bar Counsel interest in the case and that there had been disclosure of public the record unknown in violation of portions persons bar proceedings established rule that are confiden- disciplinary tial. See SCR 121. as the first order of Accordingly, business 24, 1987, and of November with con- hearing currence, the Chief Justice directed that court’s pleading this file and the matter be evidentiary open records henceforth public scrutiny.
We that a now are confident conscientious review of the public sion, standing legal community professional in the over course of his or her career? determining imposition discipline whether the of further is
justified, appropriate practice it Court is for this under Nevada already attorney the retribution exacted from the result of consider conviction? or her *12 court with state has vested this the the constitution of this 14Since anywhere of Nevada. See authority proceedings within the State to conduct frequently itself of has availed the Nev. art. This court § Const. the citizens of Southern Nevada fair opportunity to do so in effort to afford process. Numerous factors convinced appellate to the and convenient access proceed this appropriate venue for Vegas area was the most us the Las to an individual from ing. Specifically, proceedings primarily related these Nevada, right practice to law seeking to affirm his who Southern the Counsel lives and maintains office primarily area of state. Bar in that appeared be interest in matter Vegas. public most intense this in Las Nevada, prominent a mem where has been focused in Southern live and work in community Respondent’s two counsel since 1945. ber of the majority individuals who Vegas, that a of the we had been informed Las and in residences and offices Southern might us also maintain their appear before and in elder members of the bar one of these individuals are Nevada. Several years time away, old at the of the passed was 90 particular, who has since know, Thus, the conven taking public’s right to hearing. into account the us, court, might appear who before the and those parties, ience of the setting appropriate most for the Vegas Las was the court determined hearing. record unique of the of this matter will indi- procedural history cate that this endeavored these proceedings court to conduct a manner with the and primary goals consistent well-established Further, and procedures disciplinary of bar action. of the light Board’s evident determination take that it should a nonadversarial matter, solicit, stance in this we endeavored compile review a factual record from which comprehensive position, as well as contrary positions, accurately could be ascertained and verified. In so extensive of this doing, resources court have been in an to sift expended through complex effort factual unprecedented history of this matter to at an arrive truth, equitable only result not consistent with but with also public’s right to bar comprised attorneys possessing highest integrity standards of and professionalism.
II. NOTE PRELIMINARY our preliminary decision dated November we observed that the authorities cited to us both the State Bar and respondent establish that:
(1) the bar paramount objective of disciplinary proceed- ings is not additional of the punishment attorney, but rather from unfit protect to serve public persons attorneys as whole; and to public maintain confidence in the bar as a (2) in a it disciplinary is of this court proceeding, duty beyond look the label given to conviction in order to determine whether the underlying circumstances of the con- viction warrant discipline;
(3) this court must also consider isolated nature of an attorney’s prior, conduct as well as his exemplary profes- sional standing;
(4) this court should examine the retribution punish- ment already determining exacted in whether further disci- Furthermore, pline is warranted. humanitarian concerns health, such age, ill or other disability warrant consider- ation in disciplinary proceedings.
(Citations omitted.) We have reviewed factual record of this matter light below, Thus, these principles. fundamental as set forth our review has necessarily entailed a detailed factual analysis indictment, circumstances surrounding prosecution, Claiborne’s conviction, office, from judicial removal and personal history. III. THE OF FACTUAL HISTORY RESPONDENT’S
CONVICTION AND EVENTUAL
REMOVAL FROM OFFICE below, As fully discussed eventually indicted 130 Nevada, Reno, an following in by grand jury
in 1983 a federal separate grand four of his activities investigation extensive Appeals the Ninth Circuit Court of As Reinhardt of Judge juries. observed: has Judge Claiborne these
Throughout proceedings, a and constituted investigation prosecution claimed that his Organized of Justice’s Department of effort part discredit him person- Force and the F.B.I. to Crime Strike to his about removal from the bench. Prior ally bring his 1978, been Claiborne had a prominent in appointment individuals accused and had numerous lawyer trial defended his He contends that after of criminal offenses. committing him against launched vendetta government appointment significant rulings a number of of his issuance of result of Justice in criminal cases. adverse the Department 1327, Claiborne, (9th Cir. v. 781 F.2d 1328 United States See however, J., date, To in both the 1986) (Reinhardt, dissenting). in Senate impeachment proceedings federal criminal hearings evidentiary to obtain attempts respondent’s proceedings, investigation, to the allegations relating of his respecting many indictment, and to his grand jury proceedings leading four him, have been charges against criminal of the prosecution denied.15 eviden- inability to obtain respondent’s
From our perspective,
is
regard
regretta-
in this
many
allegations
of his
tiary hearings on
disciplinary
court
the instant
not
of this
It is
the function
ble.
however,
proceedings
review of the federal
to sit in
proceeding,
Nonetheless,
is
this court
conviction.
resulting
respondent’s
conviction
respondent’s
the mere fact of
beyond
to look
obligated
conduct, and the
extent
to what
in order
ascertain
conviction,
imposi-
mandate the
underlying circumstances of
Bar,
Nev.
v. State
102
sanctions. See Sloan
of disciplinary
tion
Gross,
(Cal.
P.2d 1137
(1986); In re
659
Significantly, analogous 114(3) SCR expressly provides that a disciplinary judgment of another jurisdiction against attorney licensed to practice in this state does not automatically that this require court the identical impose disci- 114(3) pline. SCR in provides that: part court shall impose identical discipline [T]his unless the demonstrates, finds,
attorney or this court that on the face of the record upon which the discipline is it predicated clearly appears:
(a) That the in the procedure other jurisdiction was so in notice lacking or to be opportunity heard as to constitute a of due deprivation process; or
(b) That there was such an infirmity proof establishing the misconduct as to give rise to the clear conviction that the not, court could consistent with duty, its accept decision reached; jurisdiction other fairly as or (c) That the misconduct established warrants substantially different in discipline this state.
If the court determines that any of the preceding factors exist, it shall enter an order. appropriate This provision of our rules is derived from the United States Radford, Supreme Court’s decision in v. Selling U.S. 50- (1917). In Selling, the Court articulated the well-established principle where an attorney’s right to in practice federal issue, court is in the natural of a consequences judgment in a state bar disciplinary proceeding should not take effect where an intrin- sic consideration of the state court record reveals either a want of heard, notice or opportunity to be an infirmity of proof establish- ing character, lack of fair private and professional or other grave reasons demonstrating unfairness or Id. injustice. Accord- ingly, we have endeavored to set forth below all the facts dis- closed our review of the record which are relevant to the issue of the nature and extent of discipline applicable respondent in this state proceeding. Agents
A. The Tension Between Federal and the Judges Nevada Federal District Court When respondent first assumed the federal bench in September area, he initially was assigned to the Reno where he remained until late fall of During 1979.16 his tenure on the bench II, 3036-37,
16Rec. Pt. Vol. XIII at events Reno, tran- Vegas, to Las several his return upon
in some fed- ultimately motivated claims which spired pursuit in the overzealous authority their eral to abuse officials criminal prosecution. Las First, Yablonsky Vegas, arrived in Joseph Nevada, Vegas Las office the Special-Agent-in-Charge Nevada, Yablonsky reportedly his arrival in of the FBI.17Upon Vegas was to “the plant that his mission proclaimed Las. testimony presented desert.”18 Nevada flag American Committee, Greenspun, Hank Trial Impeachment the Senate Sun, that he visited stated Vegas editor of the Las publisher Yablonsky arrived in day” office “second Yablonsky’s had decorated his Yablonsky recalled Vegas. Greenspun Las newspaper recounting articles with pictures *15 office walls investigations. in FBI criminal exploits previous Yablonsky’s time, indicated, that a at that Yablonsky Greenspun, According reserved had been specifically on his office wall large spot vacant Claiborne “going hang up he was because Judge for Claiborne Swanson, IRS Director for former District there.”19 Gerald Nevada, made similar comments when Yablonsky indicated office in December 1981.20 Yablonsky’s visited Swanson Second, returned to the Las Vegas when Claiborne 1979, had animosity hostility in arisen atmosphere area an and certain federal district in Nevada attor- judges between the was in Strike Force which investi- neys Department’s the Justice 1979, For in then example, crime Nevada.21 gating organized Foley Geoffrey Chief Judge Roger apparently suspected Anderson, force in chief for the federal strike Las prosecutor media from sealed leaked information to news Vegas, had Foley’s court. criti- Judge affidavits in a case in federal pending Anderson to seek cism of force tactics motivated apparently strike least prosecuted from at one case Judge Foley’s disqualification 1979, for attorneys.22 example, strike In December of by force Hearings Sen. Before the Select of William H. Webster: 17Noraination Comm, Webster, H. to be Intelligence on the Nomination William on 276, (1987) Intelligence, Cong., 100th 1st Sess. Director of Central Webster) (testimony cited as Webster Nomination]. of W. H. [hereinafter (testimony of supra 1 at 930 H. E. Hearings, Pt. 18Senate note Claiborne). (testimony supra of M. Hearings, Pt. 1 at 843-44 H. 19Senate note Greenspun). IV, I, Pleading Ex. B at 10. 20Rec. Vol. Pt. (series 21Id.; newspa Hearings, supra Pt. 4 2307-16 note Senate force).
per respecting strike articles (testimony of H.E. 1 at Hearings, supra Pt. 930-31 note 22Senate Misconduct,” Claiborne); of Governmental “Synopsis of Acts Respondent’s I, I, Pleading 1986); (filed Rec. Vol. No. August Pt. court on at 1 in this 6 at 6. by Federal denied an Anderson Judge Thompson attempt District from over a case Judge Foley disqualified presiding to have force because of actual bias. In denying strike prosecuted motion, Judge Anderson’s indicated that Thompson apparently judicial Anderson’s attitude toward the sensitive dis- problem unbecoming attorney government.23 for qualification Nevada court judges the federal district The tension between tran- events which further evidenced the strike force is Foley insulting learned that Chief of 1980. spired April a bulle- displayed were prominently materials and caricatures Oscar Goodman force.24 in the offices of the strike tin board full view bulletin board were in derisive items on the claimed the members of, upon, effect intimidating prejudicial had an witnesses. These grand jury as potential as well grand jury, with interview a mock man-on-the-street materials consisted of Sheriff County former Clark including individuals numerous Claiborne, defense counsel Judge Foley, McCarthy, Judge John individuals, Goodman, of whom were reputedly some and other Sardonic responses crime in Nevada.25 organized connected with run the casinos “[djoes really crime organized question, to the beneath the photographs Nevada??” appeared and the State of pho- Claiborne’s In the reserved space those depicted. Foley, please.” Judge “no pictures the notation tograph appeared hand, in circus as a clown dressed was depicted on the other forth the statements to set appropriate We do not deem it regalia. observe, We in the item in question. to those ridiculed attributed unknown this sarcasm osten- however, author of although within the that it was displayed it in the fact sibly compiled jest, *16 Justice, and appar- Department the United States confines of of the grand and witnesses of members ently purview within arrogance, contemptuousness, appalling demonstrated an jury, 4, 1980, Judge Foley ordered On April and lack of decorum. Thereafter, the remove these items.26 Marshals to United States dis- and the federal attorneys force between the strike problems attention of Nevada’s to attract the became so acute as judges trict 15, (testimony Hearings, supra 1 of H.E. 23Senate note Pt. at 930-31 Misconduct,” Claiborne); Respondent’s “Synopsis of Acts of Governmental 29, I, 1, 17294, I, August abo Rec. Pt. Vol. at Docket No. filed 1986. See Pleading No. 6 at 35. (testimony Hearings, supra Pt. 1 at of H.E. 24Senate note 931 Claiborne). I, I, Pleading No. 25Photocopies appear of this material in Rec. Pt. Vol. 6 931; 30-31; Hearings, supra Pt. 1 see also United States
at Senate note at J., Claiborne, (9th 1986) (Reinhardt, dissent v. 781 F.2d Cir. ing). Claiborne, F.2d 26SeeUnited States v. at the Justice officials in highest delegation,
congressional Bar Association.27 County the Clark Department, this atmosphere in light concluded Foley subsequently Judge the strike involving cases over longer preside no that he should assume to Further, was scheduled Claiborne respondent force. the District Judge Chief for duties as administrative Foley’s Judge facts, in that these claims Respondent May in of 1980. of Nevada adversely govern- to the he had ruled that to the fact addition in several force tactics criticized strike and had ment’s position him, motivated some eventually before which had come cases view him as an obstacle the FBI to force and within the strike from office.28 his removal and to seek path, their force and the strike between The difficulties 1980, when the April further exacerbated were Claiborne himself a was Claiborne Judge began reporting news media the strike by spearheaded investigation grand jury of a target a grand media reported the FBI.29In particular, force and Claiborne, prior Judge allegations investigating was jury detective, bench, Vegas hired a Las had to the his appointment in the LaRue, electronic surveillance illegal conduct Eddie Section of Integrity The Public investigation. of a defense course attorney dispatched of Justice States Department the United of the learning allegations.30 Upon these Vegas pursue Las 10, 1980, Claiborne publicly activity, April grand jury to his charges prior cleared of these same he had been stated that he denounced Additionally, publicly to office. appointment force, sug- grand jury, called for disbandment strike tactics improper tainted had been grand jury that the gested the Las attorneys. Specifically, force agents of some strike entitled, Sun, Says Strike Force Must in an article Vegas Go, as follows: Claiborne quoted Judge I, I, Pleading
27Rec. 44 and 57. Pt. Vol. No. 6 J., 1986) (Reinhardt, Claiborne, (9th Cir. 781 F.2d v. 28UnitedStates (Claiborne testi supra Pt. 1 at 930 Hearings, note dissenting); Senate rulings adverse of some of his testimony explanation mony). Respondent’s supra Pt. 1 at Hearings, note forth in the Senate government is set to the he directed case example, that in one such Respondent explained, 966-69. casino, who was indicted by a local employed coin-wrapper acquittal of a making false investigation, for force following a strike grand jury, automobile. respecting the sale of his tax return on his income statements prose only reason the individual explained that he felt Respondent in an otherwise force resources expenditure of strike justify the was to cuted investigation of a casino. fruitless I, I, *17 Pleading Pt. Vol. No. 6 at 29Rec. I, I, 23; Hearings, supra note Pleading 30Rec. No. 6 at Senate Pt. Vol. (testimony Jesinger). R.
Pt. 1 at 887-88 crooks,” were a “bunch of Charging they U.S. District Harry E. Claiborne said Judge Wednesday Vegas Las Strike Force attorneys should be thrown out of Nevada and their Federal Grand Special Jury disbanded. usefulness,
“I think have they outlived their and they should be removed from this community,” Claiborne said. grand jury “The has become tainted and be should dis- banded.” force,
Claiborne said the strike which he believes is for 25-30 responsible illegal also conducts wiretaps, illegal arrests and other such far-reaching illegal activity. crooks, it,”
“They’re a bunch of and they know I know Claiborne angrily said. “I’m not going let them ride over roughshod community. this I’m them.”31 going stop note, however, We that in May of Claiborne volun- tarily removed himself from presiding any over further strike then, force cases.32It was in this setting, federal law enforce- ment officials pursued first of four grand jury investigations of Portland, Claiborne Vegas, conducted in Las Oregon and Reno, respectively. Allegations Investigatory Misconduct
B. into the investigation allegations In the course of its surveillance, electronic illegal and LaRue conducted respondent Charles Lee in jury federal Vegas grand subpoenaed the Las the Las Metro- Vegas Lee was then April employed 1980.33 investigator poly- Police as a homicide Department politan grand jury before the concerned testimony His graph operator. 6; I, I, Hearings, supra Pleading note No. 6 at Senate 31Rec. Pt. Vol. Heflin, (in question from Senator response to a
Pt. 1 at 1139-40 “absolutely correct” newspaper’s report of his remarks was that the stated true”). to time “absolutely Throughout opinion, we will from time many We consider respecting the facets of this case. to media accounts refer years ten to this matter over last media attention devoted the extensive respects. particular, review in several our consideration and be relevant to Claiborne, reputation, perception of Mr. his public’s it is relevant to which he has been standing, obloquy and scorn to and the professional has been involved. We proceedings in which he subjected as a result of the however, clear, findings or references of this that no factual wish to make it other coverage of these events. Unless upon media court have been based indicated, media accounts cited appearing in the factual recitations wise independent and review verified our research herein have been matter. record in this 37, 39; I, I, supra Hearings, note Pleading Senate 32Rec. Pt. Vol. No. 6 at 15, Pt. 1 at 931. I, Lee). VIII, (affidavit Pleading 33Rec. Pt. Vol. of Charles No. 81 *18 he had administered to respondent examination
polygraph that, in his grand jury expert opinion, respond- Lee told the involving denied in activities truthfully any participation ent had was grand jury surveillance into which the illegal electronic inquiring.34 court, Lee averred to the federal submitted
In an affidavit he was sum- jury, the grand before following appearance McCarthy. John Sheriff superior, office of his moned to the by two Federal he “had been visited Lee that McCarthy informed [FBI, Special-Agent-In-Charge sent agents Force Strike Lee, stated McCarthy further According to Yablonsky.” Joseph] testimony, grand jury exculpatory Lee’s that as a result of witness” and “uncooperative Lee to be Yablonsky considered like a ton to “come down Yablonsky going [Lee] bricks.”35 Stuhff, to the fact that also has attested attorney, Michael
Lee’s Lee to requests released to pursuant subsequently information Act, Privacy Act and the Freedom of Information under investigation] by Yablonsky targeted that Lee was “confirms [for Yablonsky’s with join cooperate refusal to in or because of Lee’s Lee his attor- E. Claiborne.”36 Judge Harry against vendetta that, grand before the testimony a result of Lee’s maintain ney demoted and Yablonsky, Lee was and at the direction jury, and was further answering telephones, job to a desk reassigned investigation. investiga- three-year to an intensive subjected electronic extensive covert and activities involved tion into Lee’s however, the investi- Ultimately, Lee the FBI. surveillance of wrongdoing upon disclosed no having was terminated gation It can thus be inferred criminal could be based.37 charges which suffered extensive harassment may the record that Lee have from testi- exculpatory because he solely provided and intimidation jury investigating respondent. to the mony grand allegations into the investigation Similarly, grand jury at respondent’s surveillance illegal conducted electronic LaRue against respondent. indictment direction failed to result LaRue, however, with six counts of install- charged was formally Lee). (affidavit Charles
34Id. (affidavit Lee).
35Id. of Charles Stuhff). I, VIII, (affidavit Pleading No. 81 of Michael 36Rec.Pt. Vol. I, VIII, (affidavits Pleading of Charles Lee and 37Rec. Pt. Vol. No. Stuhff); Sep filed Respondent’s Compendium, Docket No. Michael Abuse, (Pretrial Jury First Trial—Grand Motion to Dismiss: tember 70). ing illegal listening charges devices.38These were unrelated to the affidavit, In an previous allegations involving respondent. LaRue indictment, has attested that after his an FBI advised him agent Further, “give up” Judge Claiborne.39 LaRue has averred: that, The agent advised me that if I would do all federal (the me) indictment charges against would be I dropped. told him to “give up” Judge Claiborne would be false since I didn’t know a single thing illegal or unlawful that Judge Claiborne had ever done. The message was clear to me I embarrassment, could rid of all myself the expense, intimi- dation and sorrow that I had suffered and was about to suffer *19 simply by lying against Judge Claiborne. This I pointedly refused to do and went to trial.
I went through anguish of defending myself against these false charges Reno Federal Court. The Government Reno, Nevada, removed the trial to 500 miles from my home, which added additional financial burden in travel for expenses myself, my attorney and witnesses. After a week-long trial I was acquitted. $35,000 alone,
This trial cost me in attorney fees say to nothing of the expense taking my witnesses all across the State to the trial.
I was wrongfully indicted for the sole purpose of giving the FBI to make a deal leverage with me. The sole purpose object my indictment was to “get” Judge Claiborne. He was their target, not me.40
Thus, the record reveals some factual basis for that concluding a lack of evidence of LaRue despite significant any wrongdoing, suffered harsh and retributive treatment as a result of his inability to evidence provide inculpatory against respondent. contends that additional
Respondent questions concerning investigation of his are raised propriety pre-indictment date, curious event that took on March On that place American bill and respondent opened monthly Express his found LaRue); I, VIII, (affidavit see Pleading of Eddie 38Rec. Pt. Vol. No. 81 AJA, LaRue, States United also United Case No. CR-LV-80-109 States v. District Court for the District of Nevada. I, VIII, (affidavit Pleading LaRue). 39Rec. Pt. Vol. No. 81 of Eddie We note upon that our reliance affidavits submitted to the United States District Court in proceedings necessary criminal is because in his impeachment proceedings, criminal and respondent was opportu denied an nity pursue develop to evidentiary support more extensive respecting his allegations investigative overreaching. supra. See note I, VIII, (affidavit LaRue). 40Rec. Pt. Pleading Vol. No. 81 of Eddie to Nevada State statement addressed Express
that an American with along included Thomas O’Donnell was District Judge wrote the Ameri- respondent April On respondent’s. and observed: explanation requesting Express Company can bill was also the containing my billing last envelope be It not surprising J. would Judge for Thomas O’Donnell. our with mine but bill was also included that someone’s fact Judge in view of the that curiosity is more than aroused be best friend. For his bill to my is closest and O’Donnell is circumstance. very with mine unusual included nature, I that might suspect I of a suspicious If were both of replaced our accounts and monitoring someone is true, this is then mistake. If envelope them the same it further.41 and I desire to pursue both O’Donnell Judge Thereafter, could replied the American that it Express Company explain mix-up.42 not trial, unsuccessfully first criminal
Prior the charges against district court dismiss moved federal governmental prosecution him on selective grounds O’Donnell an affidavit of abuse.43 attached Respondent he one that had at motion O’Donnell stated wherein Gallo, a defendant Claiborne Gus time informed Judge “promising was a candidate charges, tax gambling convicted further attested that he subse- Judge O’Donnell probation.”44 FBI had indicating investigated material obtained quently *20 ulti- respondent the sentence that in connection with respondent of these and other Gallo.45 On basis mately imposed upon facts, evidentiary hearing explore respondent sought an and the FBI were that because the strike force logical inference Gallo, they instituted imposed upon with the sentence dissatisfied Judge belonging respondent in which mail investigation of mix-up in intercepted resulting illegally O’Donnell was I, II, (Exhibit B). 41Rec.Pt. Pleading Vol. No. 8 42Id. I, II, Pleading 8.
43Rec.Pt. Vol. No. II, I, (affidavit Judge Pleading Pt. No. 8 Thomas O’Don 44Rec. Vol. nell). eight- 45Apparently, presentence report on Gallo recommended an jail probation. in months split month sentence of four months and four on however, concluded, $25,000 and two Respondent apparently that a fine impact years probation greater upon have Gallo than a short term would county jail Mr. Gallo where it would hurt—in the and would “hit I, II, (affidavits Pleading Vol. No. O’Don pocketbook.” Rec. Pt. 8 Gallo, Claiborne). generally v. F.2d See United States 659 nell (9th 1981). Cir. 110 March, how- Again, statements.46 Express their American ever, these fully explore denied an opportunity court or before the federal district hearings evidentiary events in Nonetheless, for the purposes Senate.47 before the United States view, allegations these factual and in our of these proceedings, serious about questions to raise sufficiently supported are indictment and in the pursuit of tactics propriety employed prosecution respondent. Bargain
C. The Federal Government’s With Joseph Conforte After Las Vegas grand jury failed to return an indictment Justice, against respondent, officials within the Department FBI and the IRS certain began pursue allegations regarding respondent’s association with a felon by notorious the name of Conforte. Joseph Three subsequent grand juries were empaneled, Portland, Reno, Nevada, two in Oregon, and one in in order to investigate allegations that respondent had solicited and accepted bribes from Conforte while as a federal serving district See judge. Claiborne, United (9th States v. 781 F.2d 1328-29 Cir. 1986) (Reinhardt, J., dissenting). The first Oregon grand jury proceeding involving respondent was convened on May This grand jury 1982. investigated allegations concerning respondent’s involvement with Conforte in alleged violations of 18 U.S.C. 201 (bribery of a public § official), (The and 18 Act). U.S.C. Travel The grand § mandate jury’s December of without the expired return of any indictment against The second respondent. Oregon grand jury was convened on March Similarly, grand jury investigated, other among things, allegations that respondent accepted bribes from Conforte. The Oregon second grand jury also never returned an indictment against A respondent. third Reno, Nevada, grand jury investigation was commenced in June of 1983.48Unlike the two prior Oregon investigations, the Conforte, Reno grand jury heard the direct testimony returned a seven-count against indictment respondent on Decem- ber day one after Conforte testified before it.49 As below, detailed the factual history underlying govern- federal I, II, Pleading
46Rec. Pt. Vol. No. 8. I, Ill, 26, 27; I, IV, Pleading 47Rec.Pt. Vol. Pleading Nos. Rec. Pt. Vol. *21 I, motions); IV, hearings (transcripts pretrial No. 28 Rec. Pt. Vol. (orders motions); Pleading pretrial Hearings, supra respecting No. 37 Senate (rulings respect note Pt. 1 at of Chairman Mathias ing scope impeachment inquiry). committee’s 4-6, I, V, note 6. 48Rec. and Pleading Pt. Vol. 47 at No. I, I, Pleading
49Rec.Pt. Vol. 1. No.
merit’s bargain with Conforte and the plea negotiations conces- government ultimately sions that the in extended for exchange testimony questions Conforte’s raise additional about the integ- rity of tactics in the investigatory employed pursuit respond- ent’s conviction. prostitu- owner of house of Conforte is a well-known
Joseph County, Conforte’s activities Storey tion located in Nevada. historically public have attracted extensive Northern Nevada following release coverage. example, media For attention and Grand County Jury report detailing of a Washoe in March with politicians, local dealings Conforte’s associations State Journal began Reno Gazette and Nevada Evening Conforte’s “web of influence” assailing editorial campaign series period local The editorial newspapers’ spanned affairs. May intensified in more than three months “was [of 1976] was boxer Oscar Bonavena shot Argentine heavyweight after Ranch brothel.”50 Subse- Mustang killed outside Conforte’s writers were awarded the three editorial quently, Gazette-Journal their recognition insight- Prize for editorial writing Pulitizer Conforte’s influence and condemning ful constructive series however, Nevada.51 the inten- Apparently, activities in Northern scrutiny Conforte had little effect on his public upon sive focused local activities. Conforte and filed against indictment was
In a ten-count willfully to evade wife, attempting them with Sally, charging his of 26 taxes in violation withholding employment and defeat Conforte, See, 457 F. States v. e.g., United U.S.C. 7201. § denied, (1980) 1978), U.S. 1012 (D. cert. Nev. Supp. 641 trial). new As the federal (decision Conforte’s motion denying decision, Conforte is no noted in the above-cited district court In the court particular, justice system. to the criminal stranger observed: by a Nevada of extortion he was convicted
1. prison. state and was sentenced to state court conviction, he to a fed- pled guilty Shortly after of Nevada and tax in District charge income violation eral to federal prison. William Mathes sentenced was sentence, a motion to Conforte made serving his While That federal motion charge. to the plea guilty withdraw and was denied. defend- Thompson by Judge was heard Island federal from McNeil ant released subsequently in 1965. prison Prize, Journal, April Writers Win 50Gazette-Journal Nevada State Pulitzer
19, 1977. 51 Id.
3. In Conforte was indicted and tried before Judge for a Thompson Act, violation of the Mann 18 U.S.C. 2421 § et seq. At the conclusion case, of the government’s Thompson granted a motion for judgment of acquittal. In the Internal Revenue Service filed a civil for
complaint condemnation and forfeiture of certain trailer houses used by Conforte in his prostitution business. Again, the matter was heard Judge Thompson, who decided the case in Conforte’s favor.
Id. at 645-46. Parenthetically, we note that respondent first became acquainted with Conforte when respondent successfully defended him in 1967 against the above-noted charges alleging that Conforte violated the Mann Act.52
Further,
in
Conforte was
indicted in
July
again
bribery
Lyon County
Washoe
with
of a
County
charged
meantime,
official.53In the
the federal district court had
public
four
entered
of conviction
the Confortes on
judgments
against
the ten counts of evasion of federal employment withholding
taxes.54The Confortes
those convictions and the subse
appealed
new trial to the Ninth Circuit
denial of their motion for a
quent
29, 1980, the Court of
April
Appeals
Court of
On
Appeals.
entered a decision
of conviction in the
affirming
judgments
case,
of the sentences
vacating portions
imposed by
tax
but
Conforte,
(9th
court. See United States v.
A resentencing hearing was scheduled for December II, 792; II, 52Rec.Pt. Vol. IV at Rec. Pt. Vol. XII at 3013. Conforte, C79-1045, Ct., 53Statev. Case No. Second Jud. Dist. Washoe (indictment 1979). July Co. filed years prison 54Thefederal district court sentenced Conforte five in on counts, consecutively twenty each of run the four the terms to for a total of addition, $10,000 count, years. was fined on Conforte each for a total of $40,000. prison years Mrs. Conforte was sentenced to concurrent terms of 4 counts; however, on each of the four execution of the sentence was sus $10,000 pended, placed probation. and she was She was also fined on Conforte, Supp. each v. count. See United States 457 F. at 647. Reno, night Nevada.55 court federal district before the carrying however, Mexico fled to Conforte hearing, before testified cash.56He million dollars” a half a him “at least with of the United jurisdiction he fled the first trial at impris- under his sentence confinement order to avoid States in States, he left the United Thus, the time Conforte onment.57 years, least five of at imprisonment a sentence faced his tax conviction twenty years, pursuant much as possibly Moreover, prosecution faced Conforte court. in federal *23 alleging Nevada, the indictment to County, pursuant Washoe with that In connection official. County Lyon local bribery of a District County Washoe prosecution, criminal state pending the event that in avowed that Dunlap publicly Attorney Cal an he would seek bribery charges, the on was convicted Conforte of a life warranting imposition enhancement habitual criminal Addi- felony convictions.58 prior of Conforte’s because sentence States, Conforte the United from flight of his as a result tionally, 1981, 10, on March jury grand a federal indicted of his conditions terms and by the as required failing appear 3150(1).59The of Nevada State of 18 U.S.C. in violation § bond connection with in Conforte against charges filed similar bribery case.60 in the Nevada to appear failure subsequent of the state jurisdiction fled Conforte Joseph At the time which he during courts, period throughout federal engaged were the Confortes justice, from fugitive remained of their exact amount IRS over the with the ongoing dispute an liability relating well as their liability, as tax income C.I.R., See, v. Conforte e.g., taxes. withholding employment of Conforte’s 1982). The exact amount (9th Cir. F.2d to assess. For been difficult has liability years over the tax overall 13, April grand jury a federal before testimony example, the IRS for Swanson, director of the former Gerald been Nevada, the IRS had since 1956 testified that District with the in conformance Mr. Conforte try to “working get II, 710; Conforte, 55Rec. Pt. Vol. IV at United v. States Case No. CR-R- JLS, 77-00024 United States District Court for the District of Nevada. 56Id. at 713.
57Id. at 712. Gazette, Sought, Evening September Term Is Reno 58Conforte Life Conforte, C79-1045, 1980. A review of the district court file in v. State No. Ct., Co., Second Jud. supplemental Dist. Washoe reveals that a information alleging habitual criminal enhancement was filed in the district court on February I, IV, Pleading 59Rec. Pt. Vol. No. Ex. G. Conforte, C83-1879, 60Statev. Case Nos. C79-1045 and Second Jud. Dist. Ct., Washoe Co. Income Tax laws of the United States.” Swanson further testified that “Mr. Conforte arranged his tax matters such a fashion it making virtually for the impossible Internal Revenue Service to determine his proper income.”61 Swanson,
According beginning in February the IRS instituted assessment jeopardy proceedings against Confortes’ assets because of the likelihood that Conforte flee might jurisdiction or “his assets place outside of the collection reach of the Internal Revenue Service.”62 Swanson further indicated that the exact although amount of Conforte’s tax liability had not been finalized, 13, 1982, as of April the IRS had “liens of record of $26 over million of jeopardy assessments against asserted Mr. and Mrs. Conforte.”63 Conforte,
In addition to the criminal it facing and tax concerns is also that at two civil were noteworthy pending least suits him in against federal court at the time of his departure. Specifi- contender, the slain cally, family heavyweight Oscar Bonavena, filed a May alleging civil action on Conforte’s resulted in negligent supervision employee Bonavena’s death.64 Conforte was also named as a wrongful defendant in a civil action for false arrest and for asserting claims the violation of the civil of an individual arrested in rights repute.65 connection with a fire at Conforte’s house of ill circumstances, Under these in December of Conforte *24 apparently decided to avail himself of a warmer and more hospi- Thus, Mexico, table climate. he the slipped across border into sojourned briefly in and Mexico Acapulco City, eventually Brazil, took residence in up where he was free from the threat of extradition back to the United States.66 I, IV, 33,
61Rec.Pt. Vol. Pleading No. Ex. A at 9. U.S., (CCH) 62Id.at 11. See also Conforte v. para. 1980-1 U.S. Tax Cas. (D. 1980) (court imposition jeopardy Nev. determined that assess reasonable). justified ments was and amount of assessments was I, IV, 33, Pleading 63Rec. Pt. Vol. No. Ex. A at 15. also Swanson indicated, however, $26 liability that million overstated the Confortes’ tax Conforte, duplicative due to Id. also In assessments. at 31. See re Case No. 82-966, Bankruptcy (disclo United States Court for the District of Nevada statements). sure Conforte, ECR, 64DeBonavena v. Case No. CV-R-77-81 United States (filed District May 1977). Court for the District of Nevada Carlo, al., CV-R-79-281, v. 65Baliotis Del et Case No. United States (filed District Court 1979). for the District of Nevada December II, 714-15; Treaty at see of Extradition Between the 66Rec. Pt. Vol. IV 13, 1961, Brazil, United of America and the United States of Jan. States U.S.T. T.I.A.S. No. 5691. however, Mexico, Conforte endeavored to
Before he entered respecting a deal receptiveness government’s test federal concern, He tele- imprisonment. pending his most pressing Anderson, prosecutor the chief for federal Geoffrey phoned testified first Vegas.67 respondent’s Las Conforte at strike force in was in read in the that Anderson newspapers trial that he had force, Anderson and Claiborne Judge of the strike and that charge each other.”68 Conforte told “opposing were or “fighting” owning “a little guilty he was was only thing Anderson that brothel,” from exchange help” that in “some suggested Anderson, incriminating could information about supply he stated, him, want you Conforte “If Judge Specifically, Claiborne. in give you platter.”69 I will him to [sic] with Ander- conversation telephone It is unclear whether this Conforte and first contact between son in late constituted the Judge Specifi- on Claiborne. investigating federal intent agents first that when he at trial cally, Conforte testified (Conforte) he “didn’t Anderson December telephoned [involving investigation know about an anything he left testified before Conforte further Claiborne].”70 met a for the FBI country special agent he had never on Additionally, named Dan Camillo.71 November Vegas of the Las Joseph Yablonsky, special-agent-in-charge FBI, assigned case that he had office of the testified in a related Conforte had only telephoned to contact Conforte after agent Anderson in December 1980.72 hand, Yablonsky had claims that On the other in the to contact Conforte Dan Camillo assigned agent special further asserts that early Respondent summer of 1980.73 Conforte, was advised visits Conforte course of Camillo’s with Conforte would willing work out deal if Yablonsky at According respondent, Claiborne. “deliver” time, nothing that “he had consistently maintained Conforte that after Ninth Circuit alleges judge.”74 also Respondent tax con- affirmance Conforte’s rendered its Court Appeals II, II, 67Rec.Pt. Vol. IV at Vol. V at Pt. II, 68Rec. Pt. Vol. IV 925. II, 69Rec.Pt. Vol. IV at 899. *25 II, 70Rec. Vol. IV at 925-26. Pt. II, 71Rec. Vol. IV at 897. Pt. 93; I, I, Compendium, Respondent’s Pleading 6 at 72Rec. Vol. No. 2, Pt. 17294, (Letter Outlining Sept. Governmental filed
Docket No. Misconduct). 73Respondent’s Misconduct,” “Synopsis of Acts of Governmental Docket No. Aug. filed at 11. 74Id.at 14. 29, 1980, Yablonsky viction on instructed April Camillo to take “one last shot” at Conforte to due Conforte’s “frame of mind.” however,
Again, maintains that Conforte respondent allegedly indicated at that time that he knew that could nothing implicate in respondent any wrongdoing.75
Most of in this to be respondent’s regard appear assertions for the Las Sun reporters Vegas based on information disclosed by in the late summer of 1982 a “federal source with intimate FBI In knowledge Vegas Las office.”76 a operations however, trial, hearing Vegas first two Las prior respondent’s Sun declined to reveal the official sources for those reporters Thus, credibility factual of the con- allegations.77 judging flicting regard, accounts in this this court is with some presented however, note, that the difficulty. obligated reputations We feel Conforte, as well veracity Joseph Joseph Yablonsky, for as have at times been as discussed subject question. particular, below, much testimony of Conforte’s at first trial and before the to return an indictment only grand jury against by has been discredited substantial evidence presented defense. Yablonsky always it seems that was not as truth-
Additionally, ful, forthcoming, expect or at least as as one would case law enforcement official. In for example, federal the FBI was censured and Yablonsky placed probation Director, Webster, a result of improper inquiries William as Air Force Yablonsky had made to the United States about Nevada, Brian records of a candidate state office personnel Yablonsky’s McKay At the time of McKay.78 inquiries, friend, Brown, in a Yablonsky’s hotly Mahlon running against Attorney of Nevada State General. contested race for office that he had made Yablonsky first denied such Reportedly, then later admitted that he had done so but denied that inquiries, information about fishing McKay he was for disparaging Although would benefit his friend’s Director Webster campaign.79 Yablonsky “highly competent experienced characterized as 75Id.at 11. Sept. filed Compendium, Docket No. 76Respondent’s I, I, Misconduct); (Letter Outlining see also Rec. Pt. Vol. Governmental
Pleading No. 6 68. III, 287-88, I, Pleading 27 at 77Rec.Pt. Vol. No. Nomination, supra (testimony W. H. 78Webster note at 150-51 Webster). very Director Webster stated that this sanction was “a severe agent Yablonsky. a career action” for such I, I, Pleading Vol. No. 6 at 68. We observe that no 79See Rec. Pt. by Yablonsky’s impugning McKay’s integrity was ever disclosed information inquiries. *26 stating also quoted Webster was manager,” field a time and and made at “were Yablonsky’s inappropriate actions integrity of bring question into likely circumstances under characterized Director Webster also inquiries.”80 the FBI’s bad in “extremely judgment involving actions as Yablonsky’s McKay about Mr. inquire another agency the files of utilizing or sufficient.”81Addition- adequate I did not consider for a reason retirement, the FBI investigated by was Yablonsky his ally, after his failure to inform bank concerning grand jury and a federal with mistakenly been credited his bank account had officials that $40,000 The credit error. mistaken computer as a result of years three until it was ulti- went undiscovered for apparently under the grand jury, a bank audit. mately revealed Section, Integrity Public Department’s direction of the Justice Yablonsky.82 against to return a criminal indictment declined rate, anyAt it is uncontested that Conforte’s overture to Ander- son the considerable interest of some within the piqued agents FBI, Section, the Public and the In June Integrity July IRS. or 1981, FBI special agent agent Camillo another went to the Colletti, residence of John Conforte’s former Con- bodyguard. telephoned forte Colletti’s residence from Brazil and with spoke time, On or agents.83 about this Conforte also engaged attorney Perry services Nevada Peter for the sole purpose him in his with the assisting negotiations government.84 federal Thereafter, that Conforte during period remained a fugitive Conforte, from justice, meetings numerous between Perry and FBI, the Public agents Integrity Section and the IRS took Brazil, Rica, in Costa and Mexico.85 place Conforte, negotiations Perry As the between Peter and the agents federal it became clear that Conforte progressed, for demanding expensive price exchange testimony he had bribed Judge example, Claiborne. For Conforte refused to testify return to the United States to unless the federal govern- guaranteed ment he would no more than one spend year 80Yablonsky Probation, Given Sun, Vegas 1983; Las July FBI Censures Yablonsky McKay Inquiry, Vegas Review-Journal, Las 2, 1983; July for Go, Nevada AG: ‘Time to Yablonsky’s Joe' Credibility Nearly Seen Destroyed, Sun, Vegas Las March 1983. Nomination, 81Webster supra note at 117. Jury Probe, 82Federal Yablonsky Ends Vegas Review-Journal, Las April Nomination, 1985. See Webster supra 116-17, note at II, 83Rec.Pt. Vól. IV at 717-18. II, 84Rec.Pt. Vol. IV at 913. II, 719-26; Conforte, Vol. IV at State v. Case Nos. C79-1045 85Rec.Pt. Ct., C83-1879, (transcript hearing Jud. Dist. Washoe Co. Second 11, 1984). change plea filed Jan. involved a demand that Additionally, negotiations
prison.86 be for three liability approximately Conforte’s overall tax settled one-half million dollars.87 demand, course, latter necessitated the participation This In an inter- negotiations. of IRS oiRcials cooperation Treasury Office of the United States view conducted Nevada, General, former IRS District Director Inspector *27 Swanson, contacted Archie Ban- Yablonsky Gerald indicated IRS, in Division of the bury, agent Investigation the Criminal and briefed on the substance of Banbury in September Thereafter, Swanson, according to Ban- Conforte’s demands.88 IRS should interview Conforte in Brazil suggested that the bury a to look into the Claiborne matter.89 grand jury and convene was of Conforte’s Although skeptical allegations Swanson he history, gave of his with Conforte’s familiarity per- because to interview go for an IRS Brazil to Conforte. agent mission Swanson, however, corroborative evi- Banbury get “wanted in a get grand jury before the IRS to involved allowing dence the FBI and being as the ‘deal’ part proposed” proceeding IRS return agent’s of Justice.90 Department Following remained skeptical Brazil in December Swanson from because, view, evidence corroborating “smoking gun” in his no Further, grand a justify jury inquiry.91 was which could presented Inspector interview with the Gen- a memorandum of Swanson’s that, on a office indicates based conversation with previous eral’s Yablonsky, it clear to Swanson mentality Louis” towards disposi- a “Joe Yablonsky had words, made it clear to Yablonsky other tion of tax issues. reduce IRS could Conforte’s simply that he felt that
Swanson cents on the dollar” in the lines of “10 along tax liabilities had on Federal allegedly Conforte for information exchange concessions Conforte with other (along Claiborne wanted).92 Webster, the IRS February Director
According FBI Perry may Peter that Swanson complaint alleging a from received Perry a from Conforte. soliciting bribe have been involved Alex Lemberes informed him that that Peter Lemberes claimed $7 liability tax from a reduction Conforte’s arrange could II, 86Rec.Pt. Vol. IV at 919. II, Pt. 87Rec. Vol. V at I, IV, Pleading No. B at 7. Pt. Ex. 88Rec. Vol.
89Id.
90Id.at 8.
91Id.
92Id.at 8-9. $350,000. $3.5 The IRS and exchange
million to
million in
whether Swanson improperly
FBI then began investigating
Peter Lemberes.93
disclosed tax information to Alex and
Subsequently,
Section,
the FBI and the Public Integrity
assisted by agents of the IRS and
attorney
Conforte’s
Peter Perry,
Swanson,
reportedly
“sting”
initiated a
operation targeting
Alex
brother,
Lemberes and
Lemberes,
Alex’s
Peter Lemberes. Alex
Swanson,
commander,
close friend of
was a former Green Beret
graduate of West Point and a recipient of the Army’s Legion of
Merit award.94To conduct this “sting”
known
investigation
“Confortescam,” the FBI obtained the assistance of Conforte’s
attorney Peter
Perry.
Perry
FBI wired
with electronic listen-
ing and recording
equipment
dispatched him to secure
incriminating evidence against Swanson and the Lemberes broth-
essence,
ers in a
scheme. In
conspiracy-bribery
Perry’s role was
to entice Peter Lemberes with a substantial monetary incentive to
Alex,
persuade
Swanson,
his brother
and eventually
to conspire
illegally to reduce
liability.95
Conforte’s tax
Interestingly, attorney
Perry thus simultaneously
Conforte,
served as counsel for
and as
an agent
Further,
for the federal government.
we note
just
events,
prior
these
Perry had served as counsel for Peter
See,
Lemberes in a criminal case in Nevada.
e.g., Lemberes v.
*28
State,
492,
Thus,
Nev.
(1981).
Further, about Conforte’s skepticism because Swanson’s and his proposed testimony incriminating respondent, expressed reduction in significant concerns about the Con- propriety agents may tax Swanson has asserted that federal liability, forte’s in order to targeted sting have him in the “Confortescam” him as “an obstacle to the ‘deal’ that would them help remove ”96 Moreover, it alleged a federal has been ‘hang judge.’ may that Peter Lemberes have been in the targeted reported that he government’s sting Confortescam because rumors had 17, Nomination, (appendix). at 240-41 supra note 93Webster Foes, Sun, 10, 1982; 94Sting Vegas Snares Las October Fed Bid Conforte Fizzles, Sun, 11, Vegas to Frame IRS Boss Las October 1982. 9; I, I, II, IV, 31, Pleading Pleading 95Rec. Pt. Vol. No. Pt. Vol. No. Peek, B; Exhibits A and behind-the-Scenes Reno Gazette- ‘Confortescam’: Journal, July I, IV, Pleading No. Ex. B at 10. 96Rec.Pt. Vol. with Conforte linking allegedly evidence to disclose
threatened Bonavena.97 of Oscar killing resulted eventually undercover activities Perry’s questionable Alex and Peter Lemberes. indictments grand jury against however, to indict Gerald Swanson. declined grand jury, to a reduced eventually guilty pleaded Alex Lemberes Although he nothing that he maintains did has charge, press reported negotiate in order only pleaded guilty and that he illegal, brother, maximum possible who faced a lesser sentence for his years.98 of twenty-five sentence
Swanson, indicted, not was transferred to an IRS although post A jurisdiction.99 Treasury Department investigator in another later tendered a “the FBI-IRS report condemning sting operation ” work.’ See United ‘very dangerous, misleading poor Claiborne, (9th 1986) States v. 781 F.2d Cir. J., (Reinhardt, as in the of Eddie LaRue dissenting). Again, cases Lee, and Charles it would that there is indeed factual appear Judge assertion that in the support pursuit office, have agents may Claiborne’s removal from some federal authority by harshly, unjus- overreached and abused their dealing in the tifiably retributively with those who stood apparently way Judge prosecution. Claiborne’s hand, concessions substantial Conforte, received on the other December early authorities. and local the federal from custody by taken into and was United States to the
he returned before he testified December On agents. federal Reno, Claiborne investigating jury grand federal Claiborne noted, indicted grand jury As Nevada. testimony before for Conforte’s exchange day. In following trial, the subsequent Claiborne’s grand jury recommend: agreed of Justice Department tax convic- in his federal resentenced be (1) that Conforte the four each of terms on five-year concurrent tion case to convicted; he was which upon counts senten- (2) five-year but 15 months of each that all ces be suspended; *29 I, I, 6 at 75. Pleading No. Pt. Vol.
97Rec. EBH, Lemberes, v. No. 82-00034 United 98U.S. Case States District I, II, 9; I, Nevada; Pleading Pt. Vol. No. Pt. Court for the District of Rec. Peek, I, 6; Pleading Vol. Gazette-Journal, No. behind-the-Scenes Reno “Confortescam”: 15, Nomination, July supra 1984. See also Webster note 17, (appendix). at 241 17, Nomination, (appendix). 241 at supra note 99Webster 150 should be the court
(3) imposed sentence any on Conforte imposed with sentence concurrently served Nevada; the State of charges pending to pursuant with Conforte charging indictment (4) the federal case conviction in the tax resentencing appear failure to dismissed; be should would assist Conforte Justice of (5) Department that the charges pend- to the regard with agreements negotiating plea him in Nevada.100 against ing 1983, 9, in Nevada district appeared Conforte On December charge alleging to the guilty negotiated plea court and entered accordance with the plea official.101In Lyon County of a bribery Guinan sentenced District James Judge Nevada negotiations, with the concurrently to be served to months eighteen Conforte pursuant thereafter receive that Conforte would sentence $10,000 addition, was fined Conforte federal conviction. $200,000 dismissed the Judge pending in bail. Guinan forfeited failure to in the state appear Conforte’s earlier charge respecting action, recommendation.102 attorney’s the district pursuant 1983, 15, pursuant Conforte was resentenced
On December Washington, in a federal district court in his tax conviction had been transferred from the federal tax case D.C.103Conforte’s Smith in the United States District District of Nevada 1982, order of the Chief the District of Columbia in Court for Court, Burger.104 Warren On December Justice of the Supreme 15, 1983, with conformity resentenced Conforte Judge Smith above. set forth agreement terms out: pointed has the Ninth Circuit
As Reinhardt well have violated may Conforte’s sentence reduction in Hetrick, 644 F.2d 35, v. United States P. see Fed. R. Crim. Pollack, 243 655 F.2d v. 1980); United States (9th Cir. (1982), not to 1980), 18 U.S.C. as well as (D.C.Cir. § motions to tardy on policy Department’s Justice mention the sentences. reduce Sept. filed No. Compendium, Docket 100Respondent’s 730-35; II, also Webster at see Vol. IV (Conforte Agreement); Rec. Pt. Plea
Nomination, (appendix). at supra note 239-40 C83-1879, Conforte, Second Jud. Case Nos. C79-1045 v. 101State change plea filed Jan. Ct., hearing (transcript on Co. Dist. Washoe 1984). 31-33) hearing change plea filed Jan. (transcript 102Id. 9, 1983). (judgment December filed 734; Docket No. II, Compendium, Respondent’s Vol. IV at 103Rec.Pt. (Dismissal of Conforte (Conforte Agreement) Plea Sept. filed Indictment). JLS, Conforte, United States District Case No. CR-R-77-00024 v. 104U.S. 4, 1982). Oct. (designation filed of Nevada for the District Court
151 1327, Claiborne, (9th Cir. See United States v. 781 F.2d 1329 J., case, 1986) (Reinhardt, In the Hetrick cited dissenting). above, time 120-day by the court ruled that the limit established Fed. R. Crim. P. 35 for reduction of a sentence is jurisdictional. Hetrick, Further, at court See 644 F.2d the stated in Hetrick: Court,
We held in United States v. United States District
(9th Cir.),
sub
v.
F.2d 1352
cert. denied
nom. Rosselli
509
States,
421
United
U.S.
95 S.Ct.
In with regard expressly government stipulated: federal JLS, Conforte, States District Case No. CR-R-77-00024 United 105U.S.v. I, IV, Nevada; Pleading see Rec. Pt. Vol. Court for the District Exhibit F. 1985), Claiborne, (9th Cir. v. 765 F.2d 792 n. 106InUnited States denied, (1986), panel which affirmed appellate cert. 475 U.S. Smith, v. F.2d 206 United States conviction cited case of Claiborne’s 1981), (9th rejecting Judge assertion that Conforte’s Claiborne’s Cir. little if reading of the Smith reveals illegally reduced. Our case sentence was Smith, any legality of Conforte’s support for the the reduction sentence. flexibility retain had some acknowledged that a district court the court “reasonable timely of sentence for a
jurisdiction motions for reduction over would 120-day limit. Id. 208-09. We expiration of time time” after the within a reason of sentence occurred question whether Conforte’s reduction noted, Moreover, already Conforte’s Judge Reed had denied able time. be, however, may well that the It initial reduce his sentence. motion to standing Claiborne lacked appellate panel properly concluded that raise the issue. any receive financial benefit shall not Mr. Conforte tax The amount agreement. of this kind because Treasury to the U.S. may Mr. Conforte owe liability that Revenue Service between the Internal be determined shall Division, of Justice Department Tax U.S. and/or the *31 the favorably not influence This shall agreement himself. fact, In as Mr. Conforte liability. of such tax determination believes, may herein has and as set forth his cooperation deter- government’s influence the detrimentally to continue liability.107 mination of such however, It appear, would that Conforte’s financial prospects suddenly after he improved began negotiating with the federal the agents regarding Claiborne matter. Conforte himself testified at first trial in March respondent’s that although IRS at one claimed his tax was in the point liability neighborhood of million, $19 $20 or eventually he settled his “whole tax liabil $7.3 ity” for million.108 the factual record reveals that in summary, our review of Claiborne, investi- against Judge an indictment federal
pursuit grand juries convened no less than four gators prosecutors felon, of a convicted brothel owner testimony before grand jury panel convinced the Reno fugitive justice finally from indictment. The record before us further reveals to return an agents limited number of federal substantial indications against respondent quite a vendetta overzealously pursued and the trust vested in them authority public abused the possibly may In so these well have doing, agents virtue of their offices. retaliatory retributive and tactics in an effort to discredit utilized and more balanced per- who maintained a less vindictive those Finally, investigatory process. the criminal spective regarding 107Respondent’s Compendium, Docket No. Sept. 17294 filed (Conforte II, 730-35; Agreement); Plea Rec. Pt. Vol. IV at see also Webster Nomination, supra note (appendix). 239-40 II, testimony regard 108Rec.Pt. Vol. V at 1005. Conforte’s in this pleadings comprise public Chapter support finds some which record in involving February Bankruptcy proceedings the Confortes’ assets. On example, stipulation entered for the IRS and the Confortes into a objections proposed bankruptcy reorgani to a wherein the IRS withdrew its against plan totaling zation and set forth secured claims Confortes $18,446,530.47. approximately The IRS also stated therein that its unse $653,614.08. priority approximately totaled A cured claims document dated Opposition November entitled “Debtors to the Government’s Proceeding Chapter to Convert to a or In the Alternative to Motion Dismiss,” $25,000,000 negotiations against states that had reduced a lien $7,300,000. therefore, entirely possible, It is Confortes’ assets to Conforte, may credibly point. Sally Conforte have testified on this See In re 82-966, Bankruptcy Case No. United States Court for the District of Nevada 26, 1982). (Petition Chap. Under 11 filed Nov. Relief agents, those who for whatever became upon reasons intent Claiborne, successful were prosecution reduced strik- ing bargain with individual past history whose and whose financial and provided status considerable incentives for fugitive truth, him to distort the as well as substantial indications he hereafter, would not be disinclined do so. As noted the record that, trial respondent’s first discloses abundant evidence so, whether or not it they perceived may to be federal well agents have purchased perjurious testimony in their bargain Joseph with Conforte. Jury
D. The Grand Indictment An analysis of the between the relationship grand jury indict- ment and conviction on tax counts at the conclusion second trial will be some discussed in detail hereafter. At it point is that the important reemphasize indicting grand jury only Reno was the panel to hear of Con- testimony We only speculate forte. can the nature of the impact had Conforte on the members of the panel. cleansing Without the process presentation cross-examination and the of documen- *32 tary evidence to illuminate the true character of Conforte’s offer- ings, it is jury conceivable that the grand found Conforte’s testimony is also credible. It conceivable that the panel concluded that of representation Claiborne’s Conforte prior attorney as an supported an inference of an ongoing association that was cor- noted, rupt. As if the previously grand jury believed that Con- forte enriched Claiborne with bribe money, that fact alone would support two of the tax-related counts since Claiborne’s tax returns event, to ill-gotten failed reflect such gain. any it cannot reasonably gainsaid be testimony Conforte’s was the linchpin which the indictment was upon Despite based. the char- suspect claims, of acter the Conforte as exposed during the abortive first trial, the Conforte foundation later leaving was excised the Conforte, Conforte-generated, but now unconnected with tax counts, as the upon vehicle which to achieve a As will conviction. seen, later be there remains doubt as to whether the gnawing rate, second trial was of the taint. free Conforte At the significance of the grand jury aspect tainted indictment is an the overall circumstances we compelled are to consider in addressing subject disciplinary Claiborne’s entitlements. Respondent’s
E. First Trial noted, Reno, As on December grand a Nevada federal indicted on seven jury respondent felony counts. Four indictment, counts,” counts of seven the so-called “Conforte involved assertions that respondent Conforte’s had solicited and
154
accepted from bribes Conforte. Two of the remaining counts involved income tax returns for respondent’s years 1979 1980. The final count filed in charged had false financial disclosure statement to the Judicial Ethics Commit- tee for year 1978.109 9, 1983, desig Burger Justice Warren Chief On September Hoffman, Eastern from the judge E. a senior Walter Judge nated trial.110 Judge over Claiborne’s preside Virginia,
District of designated been specially Hoffman had Judge Previously, grand investigations jury over the Burger preside Chief Justice Reno, Portland, All of in Nevada. Oregon, of respondent recused eventually Nevada for the District of judges district case, and respondent’s any participation themselves from of the Judge Browning Chief designated after Hoffman dis of an out-of-circuit the appointment Ninth Circuit requested See v. States over the trial.111 United trict to preside judge J., 1986) (Reinhardt, Claiborne, (9th Cir. F.2d dissenting). trial, counsel commencement to the Prior denied Hoffman motions.112 thirty pre-trial
filed in excess I, I, Essentially, alleged Pleading Vol. No. 1. the indictment 109Rec.Pt. serving judge: as a federal while (1) accepted Joseph a bribe Conforte Respondent solicited and from being performance an official act return for influenced in his “in (Count 201(c). I) . violation of 18 U.S.C. § . .’’in (2) of 18 Respondent provisions U.S.C. § violated money executing a defraud and from devising and scheme to obtain by utilizing telephonic in the an interstate communication Conforte (Count II) execution of that fraudulent scheme. (3) attempted subpoenaed to tes- Respondent persuade witness Portland, testimony grand jury give tify Oregon false before a (Count III) of 18 U.S.C. § violation (4) perjury, signed income tax Respondent, penalties under years he knew were not and 1980 which returns for particular of 26 every as to material in violation true and correct V, (Counts IV, VI) 7206(1). U.S.C. § *33 (5) knowingly willfully filed false financial disclo- Respondent and year for the to the Judicial Ethics Committee sure statement (Count VII) U.S.C. § violation of 18 that, among government alleged Conforte in that the Count IV involved income, allegedly report the he respondent failed to monies other in 1978 in bribes from Conforte. received Ill, IV, at 3. Pleading No. 32 Vol. 110Rec.Pt. 111Id. see, trial); Ill, (minutes IV, and Pleading of first Vol. No. Pt. 112Rec. I, Prosecution, Rec. Pt. e.g., for Selective to Dismiss Indictment Motion 8; Jury and to II, for Grand Abuse Pleading Motion to Dismiss
Vol. No. id., Pleading Evidentiary Hearing, Jury for Materials and Discover Grand Evidentiary 9; and Proffer Supplemental Memorandum File No. Motion to id., Indictment, Pleading No. 17. Motion Quash evidentiary hearings conducting of these motions without many set forth therein. In matters allegations the factual respecting allowed, were Hoffman evidentiary hearings Judge in which We are hesitant scope inquiries."113 limited the severely in this many Judge rulings Hoffman’s question propriety trials. In we particular, and regard during respondent’s prior whether, to comment as a matter upon not deem it appropriate do law, allegations had set forth sufficient of federal respondent prima other evidence to establish a affidavits or supported by evidentiary hearings all entitling pretrial case him to facie observe, however, that from our perspective raised. We matters to review all the circumstances fulfilling responsibility and in our conviction, that a it is indeed unfortunate underlying respondent’s not developed respecting record was more factual comprehensive and abuse. investigative prosecutorial claims of respondent’s Others, well, regarding respond similar concerns have voiced investigative prose- and have suggested ent’s allegations law, right process to due cutorial abuses violated “the fruit of the poisoned conviction thereby rendering respondent’s tree .”"114
For after the United States Senate voted to example, shortly office, Pryor remove from Senator David H. addressed the Senate in as follows: part days
After as a member of the sitting impeachment committee, I have to the best of my ability attempted and determine the case of Claiborne. I fairly judge Harry I, must admit to that a month like most my colleagues ago, Americans, wondered we were him even the why giving reading benefit of the doubt. As the weeks after passed, wit- transcripts listening observing to and witness after ness, time, say during day, I must at this that at least my mind there was a reasonable doubt about his willful- or intent to defraud the Government. ness his deliberate But, President, Mr. there no reasonable doubt in my is case, and is the aspect long mind about another of this arm the the abuse of power U.S. Government and ultimately led to Claiborne’s conviction.
I have concluded that he was the Federal targeted by very arbitrary Bureau of in a Investigation capricious having manner. If we have doubts about Claiborne been a then I ask these target, questions: 27; IV, I, Ill, I, Pleading Pleading 113Rec.Pt. Yol. Nos. Rec. Pt. Vol. 11, 1984); hearings January (transcripts pretrial No. 28 10 and Rec. I, IV, motions, (order Pleading respecting Pt. various filed Vol. No. 17, 1984). February 9, 1986) (statement Cong. (daily 114 132 Rec. S15779 ed. Oct. of Senator Pryor). *34 156 $16 in back million forgive Government
Why did our named to come fugitive Conforte to a criminal income taxes against Judge a case make help from Brazil and back Claiborne? citizens, Claiborne, not unlike most other Harry did Why civil division to an IRS audit the face opportunity have the occurred? charges criminal prosecution before assigned sting operation to this agent did IRS Why one and rebelled to become so incensed Claiborne Harry was ultimately participate, that he refused degree State? to another demoted and sent a test to administering polygraph was it that after Why Claiborne, passed, polygraph a which he test Harry himself, by a of intimidation target became operator, Investigation? Bureau of Federal this sort when we allow country is this going What occur? practice Ill, by No. we were asked the Article of Impeachment Harry Why? office Claiborne. managers to from impeach Because, court and a by he convicted lower simply, jury. was, III afternoon concerning Article My question actually obtained? how was that conviction had my own mind that I have concluded again, Once of the Federal Govern- target not been Harry Claiborne ment, been had accountant not intimi- Harry Claiborne’s Government, Harry Claiborne had the by the U.S. had dated into the lower court to submit all evidence opportunity trial, had en banc the Ninth Circuit appeal decision an Harry believe the case of granted, been I Appeals Court today. Senate not been before U.S. Claiborne have might 9, 1986) (statement ed. (daily 132 Rec. S15778 Oct. Cong. See Cong. (daily Rec. ed. Oct. Pryor); Senator see also S15779 the view that 1986) (remarks expressing Senator Heflin of the Members of the Senate feel there “no that most question is committee an investigation appropriate that there should be executive branch overreaching pertaining possible investigation procedure and an into judicial into the branch Cong. (daily Rec. S16824 targeting”); which has been called (remarks 1986) indicating of Senator Levin ed. October engaged in a clearly suggests that the Government the “evidence overreaching, prosecution, prosecutorial of selective pattern other improprieties”). intimidation of witnesses and perhaps the United States Senate to ultimately prompted Such concerns for calling hearings a resolution on October adopt Judiciary procedures protect- Committee on before the Senate investigations prosecutorial improper citizens ing against Sess., Rec. (99th Cong. 2d Cong., Res. 514 See S. practices. 18, 1986)). (daily ed. Oct. S17058 *35 in this concerns allegations regard most troubling One of the and appearance grand jury to Conforte’s prior the possibility trial, in respond- federal involved agents first some respondent’s have known or had may and investigation prosecution ent’s bribery allegations that Conforte’s suspect substantial cause to significant has that this occurred possibility were false. grand for that Conforte’s arguable, example, It is implications. only elfect contaminating upon had a testimony may have jury to return an indictment testimony hear his and jury to grand have may entire indictment against Arguably, respondent. the counts seem- testimony, including by been tainted Conforte’s Moreover, if allegations. with Conforte’s ingly unconnected by grand jury indictment returned all the counts of the indeed Conforte, the government and testimony were infected was testimony that Conforte’s suspect reasonable cause to had the substan- depreciate it bemay appropriate then perjurious, of convic- normally judgment accorded weight tial and respect 114; Selling action. See SCR for the purposes disciplinary tion Radford, (1917). Although respondent 51 v. 243 U.S. alone and those counts convicted on the tax counts eventually we must allegations, to Conforte’s unrelated seemingly were would have of the counts any whether an indictment question returned, whatsoever would any prosecution or whether been and prosecu- of an investigative forward in the absence gone have costs, and in at all bent on prosecuting torial mind-set infectious allega- and contaminating absence of Conforte’s See, Mesarosh v. g.,e. integrity. tions disparaging States, (1956) (where inform- government 352 U.S. United concluded that informant Court testimony, had false given ant reservoir, the reservoir and the water in this had “poisoned impurity”). it of all draining without first cannot be cleansed count of underlying the first testimony allegations Conforte’s indictment, pro- which the prosecution the manner in count, regard. troublesome in are particularly ceeded on that alleged: indictment Count I of the Specifically, and December December on or about Between Defendant, Nevada, HARRY the District of official, CLAIBORNE, that is a being public EUGENE District of for the Court United States District asked, demanded, Nevada, indirectly, corruptly directly solicited, exacted, agreed received accepted, sought, value, that is United States thing himself a receive for Conforte, $30,000, Joseph from in the amount currency of an performance influenced in his being return for act, regard . . . with rulings the decisions and
official that is jury subpoenas quash grand motions to to two consolidated him, In the captioned, motions before said then pending For an Order Karaway Irene Olga Matter of Application R-78-36, Cause, Jury and In Re Grand Misc. to Show R-78-35; Lowe, Misc. in viola on Sessina Served Subpoena Code, 201(c).115 Section United States tion of Title (1982) 201(c) 18 U.S.C. added.) Prosecutions under § (Emphasis officials) by 18 U.S.C. governed are (bribery § of public (1982), which provides: law, no person expressly provided as otherwise Except offense, tried, not or punished
shall be prosecuted, information is is found or the the indictment unless capital, offense shall have next after such years within five instituted been committed. by this statute imposed of limitations general, period *36 United crime is See complete. the moment the to run at
begins denied, Coia, 1983), (11th Cir. cert. F.2d 1120 States v. not indict (1984). jury respond did grand Because U.S. 973 1983, 8, five- and because of the until December ent on Count I 3282, U.S.C. by 18 limitation established year provision § alleged that the proof restricted to necessarily government 8, December 1978. bribery occurred after observed: has respect, respondent In this with FBI CONFORTE agents, the first interviews In one of late in Count I occurred in bribery scenario related that trial, November, testified as to At the CONFORTE 1978. occurred in late FBI the event he had told the whether November, he is “Could be.” CONFORTE testified 1978: November,” just he didn’t he not state late “not sure did been would not have . . . The time of this scenario recall. the asserted offense because prosecution to the acceptable by the applicable have been barred from prosecution would of limitations."116 statute however, evening on the trial, Conforte testified
At the watching his home he was at Monday, December Claiborne. Judge from call telephone received a when he football him to “come Conforte, requested Claiborne Judge According I, I, Pleading 1. No. Vol. Pt. 115Rec. I, VI, testimony citing Pleading Conforte Vol. No. 63 116Rec.Pt. II,
Rec. Pt. Vol. IV at 823-24. further my night.”117 tomorrow Conforte testified that up place 12, 1983, he drive Tuesday, arrangements on December made Reno where he “ladyfriend’s” apartment car to evening met with Claiborne later at approximately p.m.118 8:00 to 9:00 Conforte further testified at trial that the p.m. events following transpired: then kitchen-dining into a escorted Conforte Respondent
1. sat down and faced room area and Conforte table, dining area from separating across a or a counter the kitchen.119 that his or indicated gestured apart-
2. Claiborne on a message yellow be and wrote a might “bugged” ment stating, it to “I need Conforte paper passed pad $30,000 your about case.” Conforte read worry and don’t case?” The judge wrote in “Which message reply “The again writing, subpoenas.”120 replied, me, wrote back have it with I 3. Conforte then “I don’t Conforte, the it bring According judge will tomorrow.” burned the meaning okay,” then “shook his head it was written, communications were which these paper upon washed the ashes down the kitchen sink.121 Wednesday, December following day, 4. The $30,000 cash “got he together” Conforte claimed and, “to the of the brothel best receipts from the partly he had in safe memory,” deposit from cash available [his] Nevada.122 Sparks, National Bank in box at the Nevada Later, December night Wednesday, on the 1978, Conforte claimed that he went back to Judge II, 117Rec.Pt. Vol. III at 587. *37 118Id. 590-91. II, 592-94; II,
119Rec.Pt. Vol. Vol. IV at 837-38. III at Rec. Pt. II, Subpoenas Vol. had been 120Rec.Pt. III at 596-97. issued in the employees voting fall of to two Conforte’s in a federal fraud registration Storey investigation probing County, Conforte’s voter elforts in II, Nevada. See Rec. Pt. 576. Vol. Ill at Conforte hired counsel the two quash subpoenaed employees filed motions federal court who Id. at 579-80. subpoenas. issuance of the II, 121Rec.Pt. Vol. III at 597-98. trial, II, Vol. At the under cross-examination 122Rec.Pt. III at 604-09. counsel, actually he hedged whether somewhat as to Conforte money deposit from box at Nevada National Bank on withdrew his safe however, grand acknowledged, jury had told the question. He that he date in II, do Pt. Vol. at 845. that he did in fact so. Rec. IV delivered personally apartment Reno
Claiborne’s $30,000 to the judge.123
Thereafter, trial, testimony the defense elicited at respondent’s that the events conclusively establishing evidence presented testimony simply could above-referenced described in Conforte’s days during the week on two successive not have occurred question.
First, story the Conforte established at trial it was because Conforte was could not have occurred described above Reno, Nevada, night December even in not respondent’s apartment claimed he first visited Conforte $30,000 bribe. Specifically, solicited a allegedly had respondent of State testified Department of the United States employee an records revealed Conforte passport that a review of official emergency on an up passport for and personally applied picked on December City passport basis in New York if another had person picked up official further testified that there would have been a letter of authoriza- for Conforte passport letter.124 the official records revealed no such tion. Apparently, records indicated that he Additionally, passport Conforte’s December 13 and including Brazil sometime between and entered that, in his testimony, be noted at one point 1978.125It should that he had obtained a acknowledged personally Conforte himself on an basis.126 City, emergency in New York passport Bank testi- Second, Nevada National manager at an operations the bank cus- required procedures that “firm and solid” fied sign safe boxes to deposit access to their wishing gain tomers access.127The would be allowed such they before entry ticket conducted personally testified that she further manager operations entry tickets of Conforte’s records of the a search of the bank’s Con- the records indicated that box and found that deposit safe between December safe box deposit had not accessed his forte noted in a motion As and December 1978.128 before the shortly him filed against the indictment to dismiss trial, of these bank knowledge had government second the first trial.129 records prior II, III at 614-15. Pt. Vol. 123Rec. I, VI, 2756-82; II, Pleading No. 63 Rec. Pt. Vol. 124Rec.Pt. Vol. XI at
at 8. 125Id. at 2780. II, IV at 884-85. 126Rec.Pt. Vol. II, VI at 1376-77.
127Rec.Pt. Vol. II, II at 1375-76. 128Rec.Pt. Vol. I, VI, II, 1370; Pleading No. 63 at 11. Rec. Pt. Vol. Pt. Vol. VI at 129Rec. that he would sometimes regard that Conforte’s assertion We note in this entry by the signing the record is belied deposit box without enter his safe *38 Third, Special FBI Agent Wick testified at trial that his investi- gation apartment the where in complex respondent resided revealed some studio the apartments in con- complex tained a counter at long person which sit could and which divided the apartments areas of the the open from kitchen areas.
Such been arrangement would have with consistent Conforte’s testified, however, description of respondent’s Wick apartment. that he did arrangement not such an the apartment in in find Further, which respondent resided.130 the manager of the apart- ment testified complex that respondent’s apartment did not have bar, or a counter where persons kind could sit on either Thus, side and look at one another.131 the defense established that the floorplan respondent’s apartment simply was not as Con- forte had described it in his sworn testimony.
It is from foregoing the apparent evidence it was quite conclusively established at first trial that the bribery scenario by Conforte not have alleged possibly could occurred on Moreover, the dates in because question.132 Conforte’s passport revealed was in clearly that he not the United States after Decem- ber and because statute of limitations required the government bribery that the after prove occurred December 1978, the prosecution necessarily was restricted to proof that the alleged occurred bribery between December 1978 and Decem- ber 1978. addition, was at the it established trial that Claiborne in ultimately government against ruled of the Con- favor in the involving interests matter which subpoenas
forte’s $30,000 Conforte was the of the claimed basis bribe. alleged Specifically, April in Claiborne denied the motions filed behalf of the two Conforte employees seeking testimony operations Specifically, officer of the bank officer. testified that deposit if a employee bank had allowed to enter a box someone safe without signing employee properly, in the bank have would dismissed that and since bank, always officers of the bank sit the back in towards the safe area, deposit gone signing, was “sure if had without we she someone II, would be aware of it.” See Rec. Pt. Vol. VI at We further observe although particular operations bank officer was not stationed Sparks question, employed branch on the exact date she been had deposit entry Nevada Bank since and testified safe National that the offices.” Id. at 1377. procedures our were the same for “all of II,
130Rec.Pt. Vol. X at 2336. II,
131Rec.Pt. Vol. X at 2357. noteworthy 132It spite is that in agreement fact that Conforte’s with government predicated upon giving Conforte testimony, truthful spite so, of the considerable that he government evidence failed to do obligations and, fulfilled agreement far, all its under its with Conforte thus has declined prosecute perjury. Conforte for Further, Leland subpoenas.133 grand jury the service
quash *39 these who handled Attorney United States Lutfy, the assistant he observed testified that government, for the matters subpoena handling Claiborne his part on the “irregular nothing in that Thus, rulings actual Judge Claiborne’s case.”134 of [the] best interests. to Conforte’s favorable matter were not indicated, As the untruthful nature Conforte’s previously we underlying Count I of the indictment inherent allegations posed at the prosecution, suggest, difficulties of for the which proof least, the had reasonable cause to very prosecutors question that veracity prior the of Conforte’s scenario to trial. Interestingly, during observed Conforte’s respondent’s grand counsel has that . testimony “not once . . ever asked ... to jury [Conforte] month, day year, the the or even the when the day, state I was to have occurred.”135 supposed scenario Count Moreover, the had consider- prosecution the record reveals that dates that the offense in the exact pinpointing able difficulties reveals that In record allegedly particular, I occurred. Count amended three successive served government prosecutors to trial. See alibi upon respondent prior for notice of demands attorney 12.1(a) written demand of for (upon Crim. P. Fed. R. upon serve days shall within ten the defendant government, notice of the defendant’s attorney written government’s stating the at specific place to offer a defense of alibi intention alleged been at the time of the defendant claims have which the witnesses which upon names and addresses of the offense and the 23, 1984, example, rely). January On the defendant intends to it counsel that respondent’s notified government “believe[d] in Count alleged that the offense the evidence establish” [would] “[bjetween approxi- at Reno respondent’s apartment, I occurred 14, 1978; and mately on December p.m. p.m. 6:00 11:00 on 11:00p.m. December approximately 6:00p.m. between ,”136 notice of . . submitted a response, respondent 1978. Hilt, the official court Mary testimony intention offer Reno, Respond- Nevada. for the federal court in in 1978 reporter that she was with testify Hilt would ent indicated that Ms. to 10:00 p.m. p.m. 7:00 respondent approximately from Later, trial, Hilt in fact at the Ms. did December 1978.137 14, 1978, to his respondent she drove testify that on December later, workday, approximately at at the end of the apartment II, Pt. X 133Rec. Vol. at 2498-99. II,
134Rec.Pt. X 2503. Vol. at VI, I, Pleading 63 at 13. No. Vol. 135Rec.Pt. II, I, Pleading at18 No. Vol.
136Rec.Pt. I, IV, Pleading No. 39. Pt. Vol. 137Rec. up respondent apart- to 7:30 she at his p.m. p.m., picked 7:00 Further, to a Reno. Hilt ment and drove him car lot in Ms. dined a Reno respondent together testified she and later at restaurant, and that she returned respondent apartment 10:00 evening p.m.138Similarly, approximately testimony notice of to offer the counsel submitted a intention numerous as well as evidence obtained from airline witnesses Nevada, records was in Las establishing Vegas, time in at the on the of December question night 1978.139 Thereafter, after the evidence investigating revealed in alibi, respondent’s notice on March days two after alibi, respondent filed his notice of prosecution a “Sec- filed ond Amended For Demand Notification of Intention Offer demand, Alibi Defense.”140In this prosecution asserted that “recently government conducted interviews and investigation *40 revealed that crime alleged the in Count I . . . may have [had] days occurred on the immediately preceding 14-15 December dates cited cited in the indictment.” Accordingly, the prosecution amended its demand notice of intention to offer an alibi to the I, charged offense in Count to the include hours of p.m. 6:00 through 11:00 on the p.m. dates between and Decem- including 12, 1978, 12, 1984, ber and December On 1978.141 March the commence, that the date for the jury selection trial was set to the demand, filed a third prosecution amended once again enlarging time frame the to the encompass period between and including December 11 and December 1978.142These events suggest that Conforte’s position flexible to with sufficiently shift the strength of respondent’s alibi evidence.
A hearing before Judge Hoffman was conducted just prior to 12, 1984, the start of the jury selection on the morning March to relating the propriety government’s second and third amended demands. At this respondent’s hearing, repre- counsel to the sented court that substantial time and over resources a of six period weeks had been in an expended to attempt piece together respondent’s whereabouts on the particular dates of December 14 and in reliance the upon government’s indication that it attempt would to the prove facts Count alleged in Further, I specifically occurred on those dates.143 repre- counsel sented that the team defense had expended substantial time pre- II,
138Rec.Pt. at Vol. XII 2856-59. I, IV, Pleading 139Rec.Pt. Vol. No. and No. 43 at 5. I, IV,
140Rec.Pt. Pleading Vol. No. 40.
141Id. I, IV, 142Rec.Pt. Pleading Vol. No. 42. I, IV,
143Rec.Pt. Pleading Vol. No. 43 4-5. the the which would stress argument jury to opening the
paring the effectively government’s refute could respondent fact that on December 14 and occurred alleged offense that allegations time and the substantial also articulated 1978.144Counsel poten- to refresh recollections trying involved in difficulties respondent able to assist might have been witnesses who tial during exact whereabouts establishing reconstructing Finally, counsel years argued before. week over five entire pros- if the to defense would occur respondent’s prejudice severe alleged to the time frame of the expand ecution was allowed Accord- with its last-minute demands. in accordance offenses to hold the government the court ingly, urged defense counsel originally took place in Count I alleged offense proof counsel defense Alternatively, represented by prosecution. respondent of the trial so that a two-week continuance requested where- respondent’s and discover effectively investigate could December and December including between and abouts “[ijt’s question not just observed that 1978. Counsel demands], . . . it’s amended government’s responding [to the case.”145 defend being properly prepared question however, ruled, although respondent ultimately Hoffman new to the respond government’s not be required should in Fed. R. Crim. P. provided the time frame demands within 12.1, that the not be limited proof 15, would prosecution on December place offense took alleged motion for a continuance.146Prior respondent’s denied judge also continuance, noting objected to ruling, prosecutor to the not “even case would that the actual presentation have three weeks” and that would start for a period investigation he needs.”147 “a full week to conduct stated, *41 Hoffman, “All It’s delay, right. the two-week refusing in Thus, the to about it.”148 going worry I’m not your responsibility. to of law were left process fairness due issues of fundamental However, relating court. the issue time and another another ultimately a continuance was grant Hoffman’s refusal not agree upon at the first trial could jury rendered moot when a was upon respondent which verdict as of the seven counts
144Id. at 8.
145Id. 15. at
146Id. at 21-28. 147Id. at 28. We note in this regard that the actual trial on commenced 15, 1984, days hearing. March three after the above-referenced trial, opening jury day prosecution remarks to the on the first summa bribery place rized the Conforte scenario and indicated that it took “some 10th of December.” See time after the of December. The week after the 10th II, I at Rec. Pt. Vol. IV, I, Pleading 148Rec.Pt. Vol. No. 43 at 28. indicted, and when the prosecution elected to proceed on only counts unrelated to Conforte’s allegations in the second trial.149
Although Shaw prosecutor specifically represented to Judge Hoffman that no witnesses had prosecution changed their stories in of the light notice of alibi it provided respondent, strains credulity to that at in suppose point, some the course of these trial, events and to the commencement of the prior first did not that the prosecution begin suspect difficulties it was encountering in terms of well have stemmed proof might from a Nonetheless, scenario that simply not verifiable in truth. of these obstacles the
spite government prosecutors insisted upon to the sending jury counts based upon obviously suspect accusations volunteered by Conforte.150See United States v. Basurto, 781, (9th 1974) 497 F.2d 785-86 Cir. who (prosecutor discovers perjury by grand jury witness after indictment must defendant, inform the the trial the grand court and so that jury cured); indictment can be see also United States v. Bracy, 566 denied, (9th 1977), F.2d Cir. cert. U.S. 818 (1978).
The defense did not discover the evidence establishing that Conforte was absent from the Reno area on December until well after the first trial begun.151 had Prior to the discovery information, however, of that the defense had subpoenaed a member of this court to testify as to his personal knowledge of certain facts at respondent’s first trial.152Pursuant to that sub- poena, on March Justice, court’s present Chief Gunderson, E.M. testified that he and Judge Claiborne had din- Reno, ner together Nevada, at a hotel in downtown on December 12, 1978, and that he was with Judge Claiborne from approxi- mately 7:30 p.m. to 11:00 on that p.m. particular Quite night.153 II, (court 149Rec.Pt. Vol. XVI at 3780 declared a mistrial as to all counts I, VI, trial); Pleading (government’s Rec. Pt. Vol. No. 58 motion to first V, VI, trial). purposes dismiss all but counts and VII for of second testimony paid respondent he that Conforte’s important 150Itis to note Portland, Oregon, was also discredited bribe in March of second II, 2973-98; Pt. Vol. XII at Rec. during of the first trial. See Rec. the course Johnson, Clyde II, (testimony and Susan R. of Ben Pt. Vol. XIV 3394 only that he met with contradicting Conforte’s scenario Maxwell indicating that Conforte was underground garage while in Portland and in an courthouse); also Rec. hallway federal see respondent in the seen with 635-47; II, II, (setting at 868 forth Conforte’s Pt. Vol. IV Pt. Vol. III at scenario). bribery of the Portland version II, (transcript proceedings of March 151Rec.Pt. Vol. IX at 2142-55 subpoena directing the issuance of duces motion for order defense tecum). II, 152Rec.Pt. Vol. XII at 2834.
153Id.at 2846. however, it was testimony, Gunderson’s from Chief Justice apart have could not possibly respondent conclusively established of December night on the Conforte a bribe from solicited official because, Department States State as the United 12, 1978, Conforte was confirmed, on December
unequivocally passport. City up York picking in fact in New 13, 1984, On after a trial and delibera April lengthy prolonged tions, it jury the announced that was deadlocked” “hopelessly and was unable to to a any come unanimous verdict on of the seven charged counts in the indictment. Hoff Accordingly, man declared a mistrial and ordered that the retried.154 case be Judge Hoffman further directed the retrial would commence on July 1984.155 a seeking filed motion to prosecution
On June the The prosecu- counts” of the indictment.156 dismiss the “Conforte presented the that the evidence in the first tion belief expressed have may the counts” “distracted the relating trial to “Conforte contributed remaining in its consideration of and jury [the counts] ,”157Thus, to verdict. . . after inability subjecting to reach a its investigations lengthy, to and prolonged grand jury bribery trial Conforte’s accusations of and sensational based on by coverage, all extensive media the accompanied corruption, finally, allegations admitted that Conforte’s prosecution impliedly Nonetheless, of the light publicity lacked intense substance.158 of a federal bribery corruption of surrounding allegations owner, reputation integrity a brothel judge by respondent’s to any failure convict on notwithstanding jury’s were sullied trial. allegations corruption of the counts at the first by prosecu- in the were credence reported given media added veracity to explicitly questionable tion’s refusal recognize accusations, terms its continued adherence to the Conforte’s bargain, the Conforte the failure seek criminal view, given our charges perjury. of Conforte on prosecution scrutiny the intense media the conduct prosecution accusations, there little evidently bribery false can be doubt integ- character and public’s perception respondent’s community. the Reno rity severely diminished within This obtain may ability well have affected publicity II, 154Rec.Pt. Vol. XVI at 3778-83.
155Id.at 3784. I, VI, Pleading No. Vol. Pt.
156Rec.
157Id.
Proce
Rules of Criminal
14 of the Federal
appears that under Rule
158It
States,
(D.C.
law,
Cir.
167
fair second
jury
trial from a
untainted
by
spurious allegations
linking him with a notorious brothel owner and attacking his
See,
Claiborne,
honesty and integrity.
e.g., United States v.
765
denied,
(9th
1985),
F.2d
800
Cir.
cert.
The costs of
terms
but also in human
only monetarily
not
must be calculated
obloquy
and
opprobrium
the substantial
into account
taking
in more detail
As we discuss
exposed.
has been
which respondent
in the instant
below,
to our deliberations
are relevant
these factors
any
in
mitigation
considered
and are appropriately
matter
Ross,
re
Nev.
See In
99
warranting discipline.
conduct
Cianci,
A.2d 1201
(1983);
v.
482
Carter
P.2d
Further,
whether
consider
1984).
may appropriately
we
(R.I.
trial
in the second
evaluation
impartial
obtained an
corruption
allegations
the Conforte
by
untainted
jury
from
respond-
to be accorded
weight
dishonesty
assessing
and
114;
v.
Selling
SCR
disciplinary purposes.
ent’s conviction
Radford,
(1917).
243 U.S.
criticism,
regard,
159Inthis
we note that one such
an editorial entitled
Suckers,
Mighty Big
appeared
Reels in Some
in the Reno Gazette-
Conforte
trial,
on June
From our review of the record of the first
Journal
above,
insights
hard-pressed
we are
to dismiss or devalue the
summarized
by
concerning the motives and actions of
expressed
the Reno Gazette-Journal
agents
particular,
of the federal
involved. In
the editorial observed that
some
may
primary
against respondent
have been a
motivation for the
retaliation
investigation
government “dug
dug,
prosecution,
and that the
bait,
government
right up to the
put
when Conforte
out his
swallowed it
Additionally,
testimony
fishing pole.”
the editorial observed that “Conforte’s
defense,”
by
again
time and
and recited
at Claiborne’s trial was riddled
major
allegations which we have detailed
contradictions in Conforte’s
Further,
all
the editorial observed that
defense discovered
“[t]he
above.
easily. Why
Department?
contradictory
couldn’t the Justice
evidence]
[the
busy
to bother with the facts.” See
Because Justice was too
with its retaliation
Suckers,
Gazette-Journal,
Mighty Big
Reno
June
Reels
Some
Conforte
1984.
Although
general respect for the observations
we are inclined to accord
clarification,
editorial,
add,
question
that the
we would
as a matter of
Department,
involved
not undertaken
the Justice
the FBI
able conduct
whole,
very
the indiscretion of a
limited
or the IRS as a
but was instead
people.
number of
One
compelling
most
reasons for
focusing
length
the Conforte
of the Claiborne
aspects
prosecution is because it is
cogently
that in
of an
arguable
spite
unrelenting prosecutorial
commitment,
criminal
no
indictment would have issued without
the facile foundation
Conforte.160
supplied
Although our record
does not include
transcripts
grand jury
of the
proceedings,
it
strongly
government
is
inferable that
allegations Claiborne’s
failure to
the Conforte bribe
on his
report
money
tax returns
infected the
grand jury proceedings
both
Oregon
Reno. In
fact,
survey
it
from our overall
appears
record available to
us, that the tax
evolved
counts
from the Conforte nexus to the
ultimate case that was unmoored from its initial Conforte founda-
tion. This evolution of the tax counts has great significance, it
*44
seems,
fairly
for it
implicates
entirely different scenario for
Claiborne that would have
obviated
altogether
the criminal indict-
ment and conviction.
we will
Although
hereafter examine in
some detail the
and
1980 tax returns relevant to Claiborne’s
conviction,
criminal
suffice it to observe here that absent the
patently criminal nature of the alleged Conforte involvement in
income, other,
Claiborne’s generation of taxable
more reasonable
circumstances and inferences likely would have prevailed. For
reflects,
the record
example,
as we will hereafter specify, that
Claiborne’s 1979 and 1980 tax returns were legitimate prospects
for a
civil audit
the Internal Revenue Service. In the context of
audit,
a civil
it appears beyond speculation to suggest that
A.,
Claiborne’s former tax accountant and C.P.
C.
Joseph Wright,
would have
the
approached
subject of his former client’s taxes
much differently than he did in the criminal arena.161As will be
hereafter,
seen
there is substantial
evidence to support
Claiborne’s contention that he never concealed income from his
judicial
160Wetake
notice of the fact that this is not the first occasion when
sought
Conforte
to exercise a maleficent influence on the future course of the
public
State,
lives of
269,
in
officials
the State of Nevada. In Conforte v.
77 Nev.
(1961),
F. The Trial and Second Congressional Proceedings prosecution’s On Hoffman July granted motion to dismiss the first four counts indict- unopposed trial thus pending against pro- ment second respondent.162 income tax only involving respondent’s ceeded those counts pertaining for the and the count years returns financial disclosure for 1978. Once judicial report validity motions respondent attacking filed again, pretrial entire investigative prosecutorial indictment because addition, entire that the indict- respondent argued misconduct. because the testimony ment should be dismissed perjurious indicting grand had unfairly jury. Conforte prejudiced Respondent requests evidentiary hearings renewed his Further, discovery governmental on his abuses.163 allegations recusal or sought disqualification defense counsel case, alleging from further in the that the participation Hoffman against had demonstrated bias first trial.164 judge and, Judge Hoffman denied these motions subsequently pretrial thereafter, on July retrial commenced 1984.165 On August jury in the second trial returned guilty verdicts on the two income tax related Respondent counts. acquitted on the he charge that had submitted false judicial *45 financial 3, disclosure On report.166 1984, October Judge Hoffman conviction, entered a judgment of pursuant verdict, jury’s to the and sentenced serve two years in federal prison on count, each the terms to be served concurrently. Respondent was fined $10,000.167 also a total $10,000 of In fine, addition to the Judge Hoffman assessed costs of prosecution amount of $14,384 against respondent.168 58; VI, I, VI, I, Pleading Pleading 162Rec.Pt. No. Rec. No. Vol. Pt. Vol. 62. I, VI, Pleading 163Rec.Pt. Vol. Nos. 63-67. 49, 51; VI, I, V, I, Pleading Pleading 164Rec. Vol. Pt. Vol. Nos. Rec. Pt. 57. No. VI, 50, 68; IV, I, Pleading 165Rec. Nos. Rec. Pt. Pt. Vols. V and I, Pleading Vol. No. 4 at 70. Hearings, supra 166Senate (transcript note Pt. 3 at 1488-89 of second trial). I, VI, Pleading 167Rec.Pt. Vol. No. 75. I, IX, Pleading 168Rec.Pt. Vol. No. 98.
170 of senior designated three-judge panel comprised
A specially
second,
respond
tenth circuits heard
seventh and
judges from
v.
See United States
ent’s
and affirmed his conviction.
appeal
denied,
Claiborne,
(9th
1985), cert.
475 U.S.
F.2d 784
Cir.
765
Thereafter,
for
counsel
a
(1986).
petition
defense
filed
en
rehearing
a
of
of
“suggestion
appropriateness
and
rehearing
for
of
The
Appeals.169
petition
banc” with the Ninth Circuit Court
who heard
judges
denied
the same senior circuit
rehearing was
and
Ninth Circuit Court of Appeals
respondent’s appeal,
en banc
request
for an
sitting
upon
rejected
en banc voted
themselves
twenty-five judges
Six out of the
recused
rehearing.170
and three
dissented from the outcome.171
judges
from this vote
thereafter,
petitioned
Supreme
United States
Respondent,
petition
of
That Court denied the
Court for a writ
certiorari.
v. United
April
without comment in
of
See Claiborne
1986.
States,
(1986).
his
Respondent began serving
On October
voted
of the members
two-thirds
necessary
impeachment.
III,
premised
Article
which
except
the articles
on all of
“guilty”
IV,
II, Pleading
169Rec.Pt.
Vol.
No.
IV,
IV,
(Order
170Rec.
Pleading
Pt.
Vol.
No. 44 at A-125
of United States
84-1294,
Circuit,
10, 1985).
Court of Appeals for the Ninth
No.
filed Dec.
by Judge Ferguson,
171The
were
three dissents
written
United
v.
see
States
Claiborne,
(9th
Reinhardt,
1985), Judge
F.2d 1325
Cir.
see United
Claiborne,
(9th
1986),
v.
States
F.2d
Judge Pregerson,
Cir.
see
Claiborne,
(9th
1986).
United States v.
171 solely removal from office on the basis of his con- viction. The requisite two-thirds of the Senate did not view this as an which adequate appropriate upon basis to remove respond- ent from office.176 observed,
As we previously it is neither our function nor within our to sit in jurisdiction review of the federal and congres- sional proceedings resulting respondent’s conviction and Nonetheless, removal from office. just as the United States Senate declined to remove from his office on the ground sole that he was convicted of violating provisions of 26 U.S.C. § 7206(1), so must we consider more than just the fact of respond- ent’s conviction in discharging our disciplinary function. In essence, we view it as our scrutinize obligation to carefully entire record heretofore compiled this matter in order to weigh those factors which reflect upon respondent’s fitness to practice law and to make an factual independent determination regarding the extent of the bar that is discipline warranted whole career, course of respondent’s conduct and as well as the circum- stances underlying Bar, his conviction. See Sloan v. State 102 (1986); Cochrane, Nev. 726 P.2d In re 92 Nev. (1976); Kristovich, P.2d In re (Cal. 1976). P.2d 771 Moreover, as previously suggested, we have determined that in light substantial indications of investigative and prosecu- torial improprieties, we are obligated to examine the record of the federal court to ascertain proceedings whether any violations of due process law should diminish the weight normally accorded a judgment of conviction in disciplinary matters. 9, 1986) (Roll Cong. (daily 176 132 Rec. S15761 ed. Oct. call vote on III). publicly
Article We note that Senator Howell T. Heflin has remarked on topic: this lines, Along during these same the Senate floor trial of Clai- borne, many my colleagues prior believed that a criminal conviction impeachment. in either or federal state court was sufficient basis for impeachment passed by Representa- The third article of the House of against Judge stipulated prior tives Claiborne that the conviction of was, itself, adequate Claiborne offense for removal from impeachment certainly office. While I believe that Senate trial should consideration, any prior take conviction into I did not believe that the conviction, alone, grounds constituted sole or determinative guilty impeachment similarly, I do not believe that the verdict of not — impeachment in a criminal case absolves a defendant in an trial. Rather, impeachment always separate trial be I believe an should Therefore, distinct from a trial in a federal or state court. when the impeachment, present, I Senate voted on this article of voted and was joined by majority 34 other senators. Because a two-thirds of the Senate article, guilty approved, precedent not vote on it was not did was not set. Society Speech of Senator Howell T. Heflin Before the American Judicature (Feb. 1988) Impeachment Federal Process *47 mind, in in our of obligations with these review Accordingly, followed, the which we have proceedings second trial and the facts categories on three and circum- primarily major focused First, we have on relevant to our deliberations. focused stances to the fairness and the impartiality grand those facts relevant which resulting upon respond- in the indictment jury proceedings Second, tried we have considered all the ent was and convicted. trial, the and evidence disclosed in the second as well as in facts the upon which bear impeachment hearings, question Senate and violation of the income tax knowing willful Third, the we have years upon code in 1979 and focused judicial to the of whether the federal and those facts relevant issue were conducted in such a manner so as congressional proceedings present full to opportunity to afford fair and respondent defense. THE
1. CONCERNS AND
OF
GRAND
CONSEQUENCES
JURY INDICTMENT
that
appeal, respondent
In his
and on
pretrial pleadings,
argued
he was tried
con
the counts
the indictment
which
and
upon
the
trial
a biased
product
grand jury
second
were the
victed
by
testimony.177
was prejudiced
perjurious
Specifically,
which
that
an
maintained
as a matter
fundamental fairness
respondent
has
an indictment returned
right
by legally
accused
the basic
to
jury.178
constituted and unbiased
See Costello v. United
grand
States,
(1956).
On appeal, the specially designated appellate panel concluded: Respondent explained appeal brief on the record before us. his included in evidentiary hearing pretrial on his
that because he was not accorded indictment, jury testimony grand was “the Conforte motion to dismiss note, however, . . .” Id. at 11. We that the part not made of the record. allegation Conforte was not prosecution never refuted which the grand jury regarding specific dates on questioned before the alleged in Count I had occurred. bribe VI, I, Pleading No. 63 at 6. 181Rec.Pt. Vol. 174 asser [Judge evidence to support Claiborne’s]
There is no
mere
showing, beyond
made no
The defendant has
tions.
before
testimony
gave perjured
that Conforte
speculation,
any
Nor has he made
at the first trial.
or
grand jury
had
reason to believe
Government
that the
showing
jus
cannot
Speculation
testimony
perjured.
Conforte’s
grand jury’s proceed
into the
court’s intervention
tify this
Chanen,
(9th
1312
F.2d
States v.
549
ing. See United
reasons
1977)
powers
(discussing separation
Cir.
cert.
jury
in grand
proceedings),
refusal to intervene
court’s
denied,
Under
Moreover, that even if Conforte concluded appellate panel testimony was not jury, before the grand did himself perjure allega- unrelated to his counts of the indictment material to the convicted. Id. Claiborne was tions and which upon no judge that “the trial committed held Accordingly, panel defendant’s indictment refusing to dismiss abuse of discretion *49 (Cita- Id. grand jury.” before the perjury presentation due omitted.) tion analysis set forth in the legal we cannot fault the
Although with the disagree we must respectfully appellate panel’s opinion, is based. As we have analysis which that predicate upon factual above, the concessions enormity the set in some detail forth for his exchange extended to Conforte in government that the of the evidence adduced at and the conclusive nature testimony, allega- Conforte’s contradicting discrediting the first trial tions, allegations perjury that respondent’s us persuade much more than “mere speculation.” amounted to not resentenced in we note that Conforte was Additionally, government the terms of his with the agreement accordance with and an indictment grand jury after he had testified before the until 220, 225-26, State, In Franklin v. Nev. had been obtained. (1978), this court stated: P.2d testimony implicate a defend- By bargaining specific ant, the benefits of the until after withholding bargain becomes com- prosecution the witness has performed, mitted to a theory quite possibly inconsistent with the truth and the for truth. We deem contrary to public [search] policy, to due and to process, justice. sense (Footnote omitted.) Even not though respondent was convicted counts,” on the “Conforte and the agreement between Conforte and the prosecution expressly that its provided terms were not dependent any conviction upon resulting from Conforte’s testi- mony, we are inclined to view the manner in which the indict- ment apparently was obtained in the instant case with similar view, concern. In our the facts surrounding prosecution’s presentation of Conforte’s testimony the grand jury implicates issues of public policy, due process and a sense of justice.
Moreover, our review of the record indicates that Conforte’s effect, testimony could well have had a material not only upon indicting grand jury, but also upon outcome of respondent’s second trial. At the outset of the investigation, it appears that there was more than a mere casual nexus between the Conforte allegations and the income tax violations for which respondent ultimately convicted. For example, September of the Public Section of the Integrity Justice Department initially obtained access to respondent’s 1978 and 1979 income tax returns parte an ex through order issued by Judge Hoffman. The order was issued upon representations of Justice Department prosecutors that there was reasonable cause to believe “based upon information believed to be reliable that” respondent may Thus, have solicited and bribes from accepted Conforte.182 it appears that the initial investigation into respondent’s tax returns began as a direct result of Conforte’s allegations.
Additionally, it cannot be questioned Conforte’s allega- tions raised serious questions about respondent’s honesty and integrity. As we have suggested, Conforte’s aspersions on respondent’s character were the of extensive subject media atten- Thus, tion prior to and the first trial. during likely it is that the trial, venire in jury the second well as as the indicting grand jury, well may have been to and exposed influenced Conforte’s Where, here, accusations.183 as determination of guilt was predicated upon finding respondent willfully and knowingly returns, signed false materially income tax Conforte’s allegations of corruption may well have had a material impact upon all the counts of the indictment grand returned as well jury, *50 I, VI, 182Rec. Pt. Vol. Pleading (attachment No. 66 government’s to opposition to dismiss). motion to IV, I, (Claiborne’s Pleading opening 183Rec.Pt. Vol. 3No. at 34-39 brief appeal detailing potential jurors voir dire of two examination trial who trial). being by press admitted to influenced accounts of first community from jury rendered a trial guilt
verdict of false accusations. of these coverage media extensive exposed and his least, credibility wrongful where very respondent’s At the deliberations, the impact jury’s were factors in the intent crucial ignored. be Conforte’s accusations cannot by obtaining that observe again we Lastly, significantly, and for of investi- purpose returns the release of Claiborne’s tax arguably bribery allegations, prosecution Conforte’s gating and customary steps in what be bypassing appears succeeded any tax inves- accorded normally taxpayers procedures routine has contended: respondent tigation. Specifically, some mistake or omission of these when steps, At one he correct matter may has been made taxpayer, customary steps other proceedings. conference or audit; (c) (b) investigation; (a) Intelligence Division include: Intelligence and Division taxpayer conference between (d) Regional the case IRS Counsel forwarding Supervisor; conference, ask which may he for a notify taxpayer who will denied; (e) transfer IRS will not be from requested if (f) pre-indictment Department; Counsel Justice Regional taken, case, only last was step conference. In the instant shortly before indictment.184 only court’s regard, hearing In this evidence was at this presented tax for indicating respondent’s returns November reflected “tax errors” which years preparer 1979 and 1980 the basis normally any prosecution.185 would not have been evidence, we are of Conforte’s light opinion materially impacted upon allegations unquestionably indictment, trial and conviction. More his respondent’s however, for our these circumstances cast importantly, purposes, the fairness upon impartiality a substantial shadow jury ultimately deliberations that led to indict- grand we view Accordingly, ment and conviction. are constrained to continuing vitality respond- with measured depreciation ent’s conviction as a reliable to further precursor discipline. “WILLFUL OF
2. EVIDENCE RESPONDENT’S' CONDUCT AND KNOWING” false noted, willfully filing a convicted of As of 26 in violation years tax return income (1967), pertinent part: 7206(1) provides which U.S.C. § IV, I, Pleading 184Rec.Pt. Vol. 3 at No. 15-16. Claiborne, 17294, Reporter’s Transcript 185StateBar v. No. Docket 59-64). (testimony
Hearing of of R. November Paul Sorenson at
177 makes and subscribes [w]illfully . . who . Any person document, contains or is statement, which return, other or made under that it is declaration by a written verified true not believe to be which he does and of perjury, penalties of guilty . . . shall be material matter every and correct as to . . . felony. than a more “requires this statute a violation of Proof rather, a volun- but for the truth” disregard careless showing known, United duty. See legal violation of intentional tary, 10, con- (1976). Respondent U.S. 12 429 Pomponio, v. States impeachment proceedings during at his trial and tended careless, he did not and negligent have been may he although returns. See Senate false tax submit willfully and purposefully 1149; v. 15, United States Pt. 1 at note Hearings, supra in this Claiborne, argued counsel Defense 765 F.2d his income in accurately reported and fully regard accountants, faith good and that he relied and to his 1980 1979 his returns. signed when he accountants of his expertise on with coupled accountant qualified reliance on a faith good Such charge defense to a is “a valid of taxable income disclosure full F.2d Whyte, v. 699 . .” See United States a false return. . filing 375, 1983). (7th Cir. 379 Return
a. respondent’s who prepared accountant was the Wright Joseph tax prepared had Wright previously return. signifi- A thirty years.186 of approximately over a period returns full disclosure of respondent’s the question regarding cant issue letter a handwritten around a copy centers Wright of income Wright April he wrote sent contended which respondent part: in pertinent The letter stated 1980.187 $8,000 Enclosed check in the amount of and W-2 form from U.S. received requested. during Courts as Fees $41,073.93. for before I became a are I also practice judge $11,000.1 $11,000 sold Received my airplane April. paid it, so there is no or loss. profit fees, $41,073.93, The amount of the statement of legal plus earnings contained in Claiborne’s W-2 form constituted full and correct he during amount of income received 1979.188The Ill,
186Rec.Pt. Vol. I at 118. III, 293; 187Rec.Pt. Vol. II at Hearings, supra see Senate note Pt. 4 at 2185. Hearings, supra 188Senate note Pt. 1 at 124. refers, check, was to accompany letter
$8,000 which Wright preparing.189 which for an extension application Judy secretary, he instructed testified Claiborne form, $8,000 April check dated Ahlstrom, the W-2 to deliver morning on the Mr. office Wright’s the letter to did testified that she consistently Ahlstrom April 1980.190 on that date office Wright’s these documents fact deliver Swanson, an Ken secretary.191 to a handed them personally firm, corroborated accounting further Wright’s employee *52 that, or the time at near by testifying hearings the Senate at story 1980, he a witnessed either or were due in tax returns secretary Claiborne’s to him was identified woman who office.192 something Wright’s deliver wife, however, they that testified Wright Wright’s Both 11, letter.193 April received the having recall could not recall Further, they the time could that first they maintained the when respondent’s was in fall of 1983 this letter having seen Goodman, Mr. of it.194 counsel, copy showed them Oscar or losing no of ever that he had recollection also testified Wright Judge Claiborne.195 concerning tax documents mislaying Thus, crucial before the involved jury issue the question 11, If actually April whether received the letter of 1980. Wright letter, secretary the believed that delivered the jury respondent’s had necessarily then it followed that disclosed respondent fully hand, his his On if jury income to accountant. the other the found credible, story to be then defense of full Wright’s severely jeopardized. disclosure was verdict, its the was not of two reaching jury apprised the pieces reflecting credibility of evidence of the important 11, delivery April the letter of concerning witnesses of the 1980. First, contradicted, and Wrights’ story the Ms. Ahlstrom’s by at the story hearings was corroborated Senate an affidavit Arthur, Ellen employee Wright’s accounting submitted Arthur did during period question. testify firm Ms. not trial; however, impeachment hearings second Senate stating her affidavit that on or about April she submitted from telephone received a call Claiborne’s she Ill, II at 276. Pt. Vol. 189Rec. Ill, Pt. Vol. IV at 869. 190Rec. 618-21; Ill, supra Hearings, Vol. Pt. 1 at 191Rec.Pt. Ill at Senate note
677. Hearings, supra note 192Senate Pt. 1 at 667-68. Ill, 193Rec.Pt. Vol. II at 351-52.
194Id. Ill, 195Rec.Pt. Vol. VI at 1178. that would hand- indicated she secretary and that secretary, materials, W2 and including [respondent’s] “tax deliver some Additionally, Ms. year information for tax 1979.”196 income in fact deliver an that Ahlstrom did Arthur’s affidavit confirms on Mr. desk with a Wright’s that Arthur it placed envelope not on his desk so that he would note “to look instructing Wright the fact Arthur further attested to envelope.”'197 miss seeing was not an unusual or of materials misplacing loss “[t]he Arthur Notably, explained in Mr. office.”198 Wright’s occurrence during Goodman attorney did to contact although attempt she information, she did not divulge pursue trial to the second against was fearful of repercussions matter in because “she part indicates Finally, the FBI.”199 Arthur’s affidavit her the IRS or envelope after Ahlstrom delivered days” that “two or three office, office clearly “Mrs. came into Affiant’s Wright Wright’s Affiant she had seen and she asked if agitated tense and somewhat as it could not been Mr. Claiborne’s letter the information from Thus, Arthur’s testimony had been misplaced.”200 found or [sic] Ms. substantially trial have corroborated at the second would and, would have signifi testimony consequently, Ahlstrom’s that he had disclosed fully defense cantly supported respondent’s April income to in the letter Wright Second, argued unfairly has his defense was information in the deprived exculpatory possession *53 that would have allowed for of prosecution impeachment trial Claiborne contended Wright’s testimony. Specifically, Judge from his conviction that the trial court had commit- appeal by refusing ted reversible error to disclose to the defense certain Mr. to FBI Wright agents summaries of statements made the In these interviews with during pretrial investigation. pretrial revealed that tax government agents, Wright documents and supra 4 Hearings, note Pt. at 2077-82. 196Senate 197Id. at 2080.
198Id. at 2081.
199Id. at 2078. testified that when she delivered 200Id. at 2080. We note that Ahlstrom letter, have been secretary who she later concluded must she handed it to a Hearings, supra Pt. 1 at 677. At the Senate See Senate Wright. note Mrs. asserting an affidavit that she was hearings, Annette submitted Quintana Wright appearance both Mrs. and Ellen Arthur. familiar with the Quintana that, person be unusual for a who did opinion, her “it would not averred the other after a Wright or Mrs. Arthur to take one for not know either Mrs. Hearings, supra note Pt. 4 at 2076. Under brief encounter.” See Senate circumstances, having Wright denied light of the fact that Mrs. and in these letter, perhaps it is understandable that April 11th ever received testimony prior to and evidence investigation did not reveal Arthur’s defense trial. misplaced clients had been of his number of a substantial records prior at least one office on Wright’s away” by “thrown or Claiborne, 1326 F.2d v. 781 States See United occasion. J., v. United States dissenting); 1985) (9th (Ferguson, Cir. denied, (9th 1985), cert. Claiborne, Cir. 800-01 765 F.2d (1986). 1120 475 U.S. discovery trial, requested specifically the defense to the Prior material, statements, in the Brady possession known as of all credibility impeach would tend prosecution Act mate- witness, of Jencks the production and for government trials, Hoffman the two During advance of trial.201 rial in Jencks Act or reviews of potential in camera conducted had con- the material ascertain whether in order to Brady material After the was entitled. which the defense tained information however, trial, in the second verdict returned its jury of FBI summaries and he had a packet Hoffman discovered he had investigators which by IRS prepared analogous documents material information. unexamined This for such failed to examine FBI and IRS inves- Wright’s statements summaries included Claiborne, 781 F.2d v. See United States tigators.202 J., 1985) dissenting). (9th (Ferguson, Cir. concluded that the FBI special appellate panel On appeal, were not Jencks Act materials statements Wright’s summaries of that, therefore, their the defense was not entitled to disclo- (1985). United States v. See sure under 18 U.S.C. § Further, Claiborne, panel the appellate F.2d at 801-02. the undisclosed information was some of although concluded evidence, Brady the failure to disclose Brady impeachment accordingly the defense and did not prejudicial material was 802-03; Id. at conviction. not warrant reversal Claiborne, F.2d at 1326 (Ferguson, States v. see also United J., dissenting). in these was subse- analysis respects
The appellate panel’s
in his dissent from the
Specifically,
criticized.
severely
quently
Claiborne’s
denying Judge
petition
of the Ninth Circuit
order
Judge Ferguson explained:
rehearing
appeal,
materially exculpatory
prosecution to disclose
process requires the
201Due
request.
United
upon proper
See
to the defense
possession
in its
information
(1985);
Agurs,
States v.
Ample evidence from undermines the material suppression confidence key govern- witness in Wright was the trial outcome. cli- number his significant that a ment’s case. Evidence ’ discarded, contradicting his directly ents had been files credibility/ certainly undermine testimony, would earlier had to conclude that jury sufficiently defendant for Thus, should have conviction truthfully. Claiborne’s testified been Brady withheld government reversed because key one its witnesses. evidence impeachment Claiborne, (1985) (empha- F.2d at 1326 v. See United States that the added). appellate also concluded Ferguson sis only not incorrect because it analysis Act Jencks panel’s but restricted a crimi- Court precedent, with Supreme conflicted transcribed contem- to witness statements nal defendant’s access in a and taken down the FBI interview with poraneously Id.; v. United see also Campbell verbatim fashion. substantially , (1963) (it necessary for States, is not U.S. 487 492 n.6 the witness nor or written signed Act statements to be Jencks of a recordings substantially verbatim to be they required are Further, statement). Ferguson appellate criticized prior the material at issue: to review failing panel its failure committed was error the panel The fundamental the materials on examination of independent an to conduct I fail to see how the rulings. based its the trial court which material, fairly have could looking without panel, reviewing A were erroneous. rulings whether those decided and Jencks Act Brady examine obligation court has cor- court’s were rulings that the district to ensure material *55 182 493, After at 1360. at 83 S.Ct. 373 U.S. Campbell, rect. See at the material the in camera judge opened court
the district documents. the withheld he resealed hearing, posttrial since by anyone read unsealed or not been have documents hearing. posttrial the district court’s Claiborne, Under the F.2d at 1327. 781 v. United States See case, with Judge are in accord we circumstances fragile to disclose that the failure conclusion and his analysis Ferguson’s confidence in undermines the defense to Wright summaries noted, Moreover, of Ms. Arthur the affidavit outcome. the trial weight adds substantial testimony Judy Ahlstrom’s corroborating supporting trial at the second evidence presented to the other to his his income fully he disclosed that contention respondent’s the fact that light significance This has special accountant. and one secretary his former including respondent, three persons, to affirmatively as testified employees, former Wright’s to his account- information of his income provision Claiborne’s did they able to state ant, only were and his wife Wright whereas Claiborne. supplied statement recall the disclosure seeing not discussion. warrants some evidence presented The additional to file of time for an extension application For example, 11, and dated by Wright April signed return was respondent’s $8,000, the “balance due” of indicates a The application 1980.203 1980, 11, April check also dated amount of precise along office Wright’s delivered to claimed she that Ms. Ahlstrom 11, letter of 1980.204 April with the Moreover, later, testified that on the afternoon of respondent 11, 1980, bring by called him and asked him to Wright April $2,500 to a voucher accompany another check in the amount due stated Respondent of estimated declaration of tax for 1980. $2,500 day take a check to later that Wright that he did in fact The check number on the estimate at that time.205 signed $8,000 0302, $2,500 and the check number on the check check is 11, (also 1980) testified Respondent dated is 0303.206 also April 1980, he letter on desk at the time April Wright’s that saw he delivered the second check.207 he called May further testified that in
Respondent he to Los Wright being assigned Angeles to inform him that was supra Pt. 4 at 2115. Hearings, note 203Senate 204Id. at 2115, 2222; III, III at 620. Rec. Pt. Vol. III, 2146-47; Hearings, supra Rec. Pt. Vol. IV note Pt. 205Senate at 870-71. Hearings, supra note Pt. 4 at 2147. 206Senate 871; III, Hearings, supra Vol. IV at Senate note Pt. 1 at 207Rec.Pt. time. would be there for a considerable try period a case and he and Wright agreed contends that
Accordingly, respondent having return in order avoid sign should blank tax Wright extension.208 stated that tele- Respondent file another regarding additional information his 1979 phonically requested income, information had been including precise provided when he According respondent, in the letter.209 April he those already figures, Wright told had Wright provided *56 moment, and announced that he did have the for a then paused income from his former law figures, but misstated Claiborne’s $41,073.93. $22,332.87, Respondent to be instead of practice a figure that he wrote this misstated on (respondent) contends tax data and later along requested with additional worksheet sum, In it supplied Wright.210 this worksheet was utili- miscommunication resulted in testimony Wright’s that this $22,332.87 on the tax return figure zation of an incorrect Wright’s that office before it was signed blank completed.211 body there substantial of evidence com- was a
Unquestionably, establishing in both the trial and piled impeachment proceedings letter of April fully disclosing respondent’s year Wright’s income for the was delivered to office. The however, have it jury, did not Ms. Arthur’s evidence before when Further, it evidence materially exculpatory reached its verdict. was tended to Wright’s withheld from defense that impeach credibility respondent fully on the issue whether disclosed observed, As this fact alone is sufficient Judge Ferguson income. verdict jury regarding respond- undermine confidence in the ent’s return.
b. Return The 1980 Judge thirty Joseph Wright, after with years Jerry the services Watson employ elected to Claiborne of a Watson was the owner income tax return. prepare his 1980 Planning. as Creative Tax known planning financial business he judge, he became a federal after Respondent explained considerably complicated tax situation to be less perceived his Additionally, practice. he in private than it was when was with had turned relationship Wright that his respondent suggested cold, Wright.212 that he he was on “imposing” and felt somewhat III, 208Rec.Pt. Vol. IV at 873-76. 209Id. at 873-76.
210Id.
211Id. at 876. III, 381, 938-39; supra Pt. Vol. 1 at Rec. Hearings, note Pt. 212Senate V at 969. ex- judge’s Claiborne was introduced Watson wife, by Watson’s air immediately impressed and the judge Watson recognized Claiborne also of professionalism. However, Watson apparently fellow member of his church.213 knowledgeable out to be more professional held himself allowed. One of Watson’s former reality employ- tax matters than ees, Impeachment testified before Senate Travaglia, Charlotte Watson’s demeanor towards the Committee and characterized further indicated that “he Travaglia pro- as “exalted.” public he was in all areas.”214 doing Respondent fessed to know what to be a man” and appeared “topright testified that Watson testified, he Watson “he talked like he knew what was doing.”215 am, however, all the I I’m not is things thing that “of tax and an preparation company accountant. And I own a business, but that doesn’t mean that I am a accounting qualified Nonetheless, accountant, held out to be.”216 it myself nor have I easily good that one could faith belief in Wat- appears adopt as a tax qualifications, competency professionalism son’s letterhead, one could assume from Watson’s Certainly, preparer. thirty types which listed dilferent of financial approximately services, consulting that Watson’s firm offered planning tax and investment advice.217 expert professional however, before the Senate left a testimony panel, Watson’s *57 For at the conclusion of impression. example, somewhat different committee, Watson’s final before the Senator Rudman appearance be to the testimony commented that Watson’s should forwarded action. Senator Rudman fur- Department appropriate Justice ther stated: effort to
Anyone sitting through this trial has seen an active country, certainly by defraud the of this taxpayers accountant. alleged I want to make—and I will do this
And the third comment in myself intend to write to the Internal Revenue Office —I Nevada, suggest they any start forthwith audit on frankly return that Mr. Watson has because I think prepared, that we have seen here a of the most fraud pattern egregious Claiborne aside from whether has taxpayers, knowledge separate question. of them. A 15, 939; III, Hearings, supra 213Senate note Pt. 1 at Rec. Pt. Vol. IV at 883-86. 15, supra Hearings, note Pt. 1 at 783. 214Senate III, 215Rec.Pt. Vol. V at 970. 15, Hearings, supra
216Senate note Pt. 1 at 720. 15, Hearings, supra
217Senate
note
Pt. 4 at 2149.
before this
panel
today,
This witness that has been
cases,
has to be the
yesterday,
my many years
trying
seen,
most
incredible witness that I have ever
particularly
before a
conducted before the United States Senate.218
hearing
noted,
1981, however,
As
after meeting Watson and being
impressed
demeanor,
with his professional
respondent
engaged
Watson to prepare his 1980 return.219 Pursuant
to a subsequent
conversation,
respondent supplied Watson with a handwritten list
of his tax information.220 This list specifically indicated respond-
ent’s wages in
$88,500
1980 as a federal
judge and
in income
during
year “from private practice
appointment
.before
[to
such,
judiciary]
1978.
. . .”221As
this handwritten
fully
list
See,
disclosed respondent’s
income for the year
e.g.,
1980.
Claiborne,
United States v.
Charlotte was Travaglia employed by Watson’s firm at the time Claiborne’s 1980 return being was She prepared.222 did not testify trials, at either the first or second but she did appear before the Senate panel testified in some detail about the preliminary work she did on respondent’s 1980 return.223 In particular, Hearings, supra
218Senate note Pt. 1 at 1104. III,
219Rec.Pt. Vol. IV at 886. 2223; Hearings, supra III, 220Senate note Pt. 4 at Rec. Pt. Vol. IV at 221Id. Hearings, supra
222Senate note Pt. 1 at 782. regard, Travaglia originally 223Id.at 781-826. In this we observe that testify subpoenaed prosecution respondent’s first trial. She was impression, subpoena, under the of that result she should not talk to the defense and in fact refused to discuss her involvement in the matter with Hearings, supra prior defense to the first trial. See Senate note counsel pretrial agent, Pt. 1 at after 789. In interviews with an FBI she had testified grand jury, Travaglia “yellow before the identified a document known as the fully upon sheet” which had disclosed his income Watson. She yellow indicated in utilized the in the further that interview that she sheet copy preliminary report work she did on return. A of the FBI opinion. Hearings, that interview Exhibit See Senate is attached as 1 to this (FBI Interview); supra Report note Pt. 3 at 2047 see also Affidavit of Travaglia, Hearings, supra Respond Charlotte Senate note Pt. 3 at 1992. alleged indicting prosecution ent has that the withheld this evidence from the *58 grand jury, agent’s wrong and that the FBI memorandum of interview was discovery fully during pretrial withheld from defense trial. See I, IX, (amended Pleading Rec. Pt. Vol. No. 105 at motion to vacate conviction). judgment Travaglia, although testify Apparently, available to trial, prosecution at the first excused as a the defense and the was witness prior opening on Respondent’s represented, to trial. counsel brief Circuit, during appeal Travaglia to the Ninth that was ill with cancer IV, I, testify. Pleading second trial and did not See Rec. Pt. Vol. No. 3 at 31. respondent’s Travaglia’s We observe that disclosure to counsel of statements agent’s may memorialized in the FBI memorandum of interview well have Watson, her the at one task point, assigned testified that Travaglia respondent’s worksheet regarding preliminary preparing her of tax information handed a stack return.224Watson compiled by list handwritten which contained the aforementioned sheet” “yellow referred to as the list has been This respondent.225 copy A yellow paper. on legal because it was written 2. Travaglia to this as Exhibit opinion sheet” attached “yellow is yellow on the appears handwriting further stated that her own $88,500 sheet, figure that an asterisk beside placed she received indicated his income from Claiborne had Judge that to the prior appointment to his practice fees due from his private on appearing page that certain items bench.226 testified Travaglia her in her handwriting.227 list were notations respondent’s one of testimony, as well as Watson’s reveals Travaglia’s testimony, by which he to reduce plan hoped Watson contrived a that had off losses writing somehow that liability Claiborne’s tax practice assuming from law judge quitting suffered testified, fee example, respondent’s Watson bench. D of the return Schedule as appeared income inappropriately C income.228 According rather than on Schedule capital gain $88,500 Watson, fee legal added the income Travaglia apparently amounts Claiborne received with some unidentified law establish a library capital a sale of books from his from $150,000.229 then on Schedule D of figure This gain appeared $250,000 as a which offset the gain partially the return capital $250,000 Watson arrived at the amount as a losses.230How capital private practice loss the “loss” capital from Watson maintained mystery.231Although remains somewhat of a $250,000 figure, Travag- he and came with the Travaglia up rate, At “plan.”232 any in this Schedule complicity lia denied exculpatory attempted present her that the would have insured defense Wright’s of Mr. testimony statements, jury. to the Like the FBI memoranda trial Travaglia’s exculpatory unawareness of state- defense counsel’s may significantly have affected outcome of prior ments to the FBI to trial the trial. 15, Pt. 1 Hearings, supra note at 783. 224Senate 225Id.at 783-84. 807; Hearings, supra (copy Pt. 4 at 2223 note 226Id.at and see Senate yellow question). sheet in 227Id. at 807. 720;
228SenateHearings, supra note Pt. 1 at Pt. 4 at 2137. 722-24, Hearings, supra 229Senate note Pt. 1 at Hearings, supra 230Senate note Pt. 4 at 2137. Hearings, supra 231Senate note Pt. (detailing 1 at 1045-50 Watson’s
enigmatic explanation). 232Id.at 805. *59 $100,000.233A copy respond- reflected a total loss of capital
D Exhibit 3. to this opinion ent’s D form is attached Schedule because mainly improper was procedure that this It is clear fees were legal and the the law practice, never a sale of there was on Sched- belonged therefore The fees gains. capital income not however, testified, D. Respondent not on Schedule ule C and treating legal concept fully explained had not Watson until well after D on Schedule gains as capital fee income testified that Travaglia also the return.234 signed had respondent essentially preliminary was signed the return that Watson, never and that she had had prepared worksheet she that she she stated Additionally, it to be a final return.235 intended were prob- that there to Watson on several occasions indicated incorrect, return, was work preliminary that the lems with out straighten information in order to needed more and that she When on the return.236 wrong felt were that she things some of her finally put she forthcoming, not from Watson was help desk, it to intending never on Watson’s product work preliminary final, return.237 completed be a work preliminary product essentially
Apparently, return which and which was filed. respondent signed Watson Claiborne testified that he was notified subsequently he went to Watson’s office to it. ready sign that the return was secretary was not but a According present, Watson respondent, signature page him a number of loose documents. The brought it, signed briefly through had a on it and he thumbed paper clip documents, to have Watson mail him a secretary asked of the return and left.238 copy with the Claiborne’s office came to later Watson days Three it through glanced Respondent and the return.
bill for his services accomplished he had about how Watson again questioned manner, that he had in a authoritative Watson explained, refund. law practice. on respondent’s a loss to establish way found a with the IRS wanted no trouble that he told Watson Respondent I can handle with the FBI that the trouble he had “all because nonetheless, could Watson, him that he assured now.”239 right Hearings, supra 4 at 2137-38. 233Senate note Pt. 1025; III, Hearings, supra Pt. 1 at Rec. Pt. Vol. IV at 234Senate note 897-98. Hearings, supra note Pt. 1 at 786. 235Senate 236M.at 822-23. 237Id. III,
238Id. 946; Vol. IV at 893-95. Rec. Pt. Hearings, supra
239Senate note Pt. 1 at 946-48. Watson’s before appearance the return.240 after “support” Again, that the Watson told Claiborne grand jury, Portland correct, to two IRS and that he had shown the return return was was “right.”241 that the return both of whom said employees, written in however, It was return, an audit. cried out for the words indicating drawn it D an arrow had Schedule pencil. *60 as to opinion attached D is of Schedule A copy here.” “type would such return that established testimony 3. Expert Exhibit an audit.242 ordinarily raise sum, that suggests the evidence the 1980 return regarding confidence in a man who placed good Claiborne his faith tax skill in knowledge exuded authoritative
superficially Watson, however, clearly return respondent’s handled matters. Further, Senate which the incompetently. Travaglia’s testimony, disclosed, hear, respondent not confirms on the jury trial did that sheets, the received from former law yellow all income tax of the 1980 practice purpose preparing to Watson for Watson, hid from but due apparently nothing return. He and his of fundamental incompetence misperceptions Watson’s the return obscured accounting, incorrectly of tax concepts income. respondent’s on the of
Shortly after the United States Senate voted articles Hatch, a the Senate Senator Orrin member of impeachment, evidence on gathering with the panel charged responsibility Senate, full the Senate and set forth his behalf addressed Hatch his view that analysis expressed of the evidence.243Senator “duty had a constitutional to reach obligation the Senate [its] which rise to gave own conclusion about facts independent to the existence of these and should not defer charges,” simply discharging obligations criminal conviction in its See clause constitution.244 U.S. impeachment under the. I, Further, 3. the Senator stated: Const. art. § [Judge reasonable about there remains a doubt [I]f intentions, was obligated then the Senate Claiborne’s] not have been in court and conclude that he should convicted he should not have been impeached he should they Relying not have been convicted Senate. did conviction, the House Articles of Impeachment the criminal 240Id. 241 710-11, Id. at 829; 242Id. Hearings, supra Senate note Pt. 4 at 2137. 243 Cong. 32 (daily 1 Rec. (statement 1986) S15763-66 ed. Oct. Hatch).
Senator Orrin 244M.at S15763. whether,
required the Senate beyond to ascertain a reasonable doubt, Judge Claiborne intentionally filed a false return.245 7206(1), of 26 U.S.C. reviewing pertinent provisions After § convicted in federal under which was statute court, Senator Hatch further observed: were reducible to today All of the issues before the Senate Claiborne Judge Harry willfully one Did simple question: file a false tax return? Both Claiborne and the House report that the tax returns fail to agreed Nevada Court taxable income. The issue before the District today under-reporting and the Senate was whether “willful.” Court, in v. Pomponio, United States Supreme (1976) that the term in the tax “willfully”
U.S. 10
stated
negli
code
more than a
of carelessness or
requires
showing
of an
violation
a known
requires proof
it
intentional
gence;
(1973),
Bishop,
In United States v.
The cases that willfulness is the inten- of these is import tional, deliberate, voluntary, witting or violation of a known obligation. legal duty Claiborne knew the to file an accurate
Certainly Judge return. It is far from clear from the evi- tax complete during either in trial or the impeachment dence presented deliberately that Claiborne or intention- Judge proceedings tried to ally wittingly purposefully escape obligation or or To the there is much to indicate every contrary, taxpayer. were an attempt Claiborne’s deliberate actions Judge that According judge an accurate and return. to the complete file evidence, miscommunications with corroborating and much errors and mistakes those accountants caused accountants returns, [unjaware of which he was until in the tax judge’s underway. was If the investigation already judge the criminal correct, most that he the voluminous evidence at shows is accountant’s errors. failing was to detect his negligent This, however, not be willfulness. It would not be would 245Id. witting
deliberate and tax evasion. It would simple negli- be stated, which gence, Court’s case Supreme Bishop would corrected by be a civil not a criminal proceeding, action.246 further that
Senator Hatch observed no direct evidence of willful violation of the of the tax provisions code Therefore, existed in this case. in order to establish Judge willful intent it was to infer necessary Claiborne’s such an intent from circumstantial evidence. Senator Hatch noted that the fac- (1) tors considered in this included evidence appropriately regard (2) of a consistent pattern underreporting, magnitude return, (3) error in the factors such as sudden changes accountants.247After carefully reviewing the evidence set forth concluding clearly above and it established that Judge accountants, Claiborne fully disclosed his income to his Senator Hatch the first of these analyzed factors as follows: point alleged
On the of whether this underreporting was activity, consistent the House made much of the fact that these errors occurred in 2 successive An years. examination evidence, however, offers a plausible explanation. all, only After Claiborne had taken recently his posi- tion on the bench. He was still to new adjusting financial schedules, new work new arrangements, responsibilities, new demands on his time and talents. It was time of turmoil in his life. He was change selling his residence and He turning another. over his law firm to purchasing his former his assets in that partners liquidating business. These drastic were also an changes important reason that he elected to switch accountants. With of this changes magni- life, underway wholly tude his it is not unexpected miscommunications, and mistakes misperceptions, might 2 years.248 occur in these sum, concluded in this regard Senator “[i]n underreport
Claiborne did not or other- consistently income— wise.”249 *62 regard In to the circumstantial evidence relating to the magni- error, tude of the Senator Hatch observed: The next circumstantial made the point by House concerns $18,700 magnitude the of the error. The shortfall in his 1979 246Id.
247Id.at S15764.
248Id.
249Id. Judge willful act on Claiborne’s return not due to was on 11 was he disclosed thought April He the income part. the actually not review return. The did judge of the part May he was before it was filed. On tax return in another assigned jurisdiction. to take an case leaving town deadline, the filing not return before might that he Fearing a return signed to office and Wright’s the went judge was going the return in blank because he signed blank. He it He that certainly expected on assignment. out of town he to account- reported income which had his would contain hand-delivered letter. ant in earlier hand-written and he had changed this that testimony point on is Wright’s It is returns be in blank. allowing signed tax practice Wright that in his career early uncontroverted nonetheless Judge in blank. signed had tax returns be permitted The with for 30 Wright years. had been associated Claiborne on a may binding have been practice recent not changes Judge like Claiborne who testifies customer longstanding in blank that he form sometime persuasively signed May 2. $88,500 Watson the reported Claiborne told “yellow sheets.” Watson
in income on the now-famous D in the was reflected schedule income judge the sale part because it was concerning gains form capital had method Watson out pointed law business. who the actual work on CPA did been checked with the IRS. return further checked judge’s tax was a It contained numerous tax return mess. with even Claiborne errors. It did not credit blatant $22,000 taxes for already paid he had in estimated out and had arrows It filled in pencil same tax was year. had others. If the judge one of the return to part drawn from more defraud, have been he would certainly intended to he to defraud, had intended Judge Claiborne cunning. If red flags a return would not have certainly filed full of likely its pointing to deficiencies.250 added.) (Emphasis of willful- aspect
As for the third of circumstantial evidence ness, had good remarked that several Senator Hatch years: accountants after change thirty reasons managing a law business. longer In the first he no place, He need wide of services range provided had no Moreover, had Wright. Wright judge coldly treated been may some recent conversations. This well have of their 250Id.at S15764-65. *63 Mr. Wright
because had moved on to a different clientele years may after 30 in the business. He have he wished was receiving more for his compensation services. reasons Judge Claiborne and his accountant began drifting apart clear, however, fully are not stated. It is that the judge that his accountant was no perceived longer as interested in his account as he had been in the past. Watson, hand,
Mr. on the other came highly recom- mended wife and had judge’s impressed the judge the one he occasion had to observe his work. Watson was interested in very Judge Claiborne’s account. He forthrightly solicited Claiborne’s Judge business with the that he promise be able to save him might money on taxes in a legitimate manner. Claiborne was selling large his home and Watson specifically mentioned in his letter a to treat plan favorably. light transaction of the distance between the accountant, judge and his former this offer must have been very attractive.251
Additionally, that, Senator Hatch noted contrary to the House brief, Judge Claiborne was no tax expert. Not only did respond- ent refer his personal tax matters to specialists such as Wright, during years in private practice he also repeatedly referred his clients’ tax matters to other attorneys.252In this regard, the Sena- tor concluded that Judge Claiborne had justifiably relied in good faith on both Wright and Watson: law,
As a matter of reliance on a tax accountant is justified if the judge fully disclosed all pertinent facts and if his reliance case, was in good faith. In the judge fully had disclosed his income in both 1980. He had reason rely good faith on Wright because Wright had done his taxes for years without a hitch. He had a reason to rely in good faith on Watson because Watson came highly recom- mended by his wife and seemed to handle business compe- tently.253 view,
Finally, in Senator Hatch’s did not turn a “blind eye” to the problems that, of his returns. Senator Hatch observed blank, Claiborne signed the return in fully relying on Wright to his income report correctly as detailed in the letter because he April had been assigned over preside case outside of Nevada. As for Senator Hatch found it 251,Id.at S15765.
252Id.
253Id. “simply inconceivable that Judge Claiborne would attempt escape tax when he liability” knew the FBI was him investigating and scrutinizing his affairs. “Not a 4-year-old even attempts to raid the cookie when jar he he is being knows watched.”254 *64 Senator Hatch further found the sloppiness this return to be significant: Judge
It that in this time of unlikely is even more tension return exami- Claiborne would file a fraudulent for begs of the judge shouting nation and audit. This is the equivalent at the his that he to raid the lungs jar intends cookie top and then to the feat under his proceeding attempt parents’ noses.255
Neither Hatch Judge could Senator reconcile Claiborne’s full disclosure income on ethics “will- report, of his 1980 an with a ful” failure income to for that year. copy to the IRS A report disclosure to respondent’s financial 1980 is attached report opinion queried: “Why as Exhibit The Senator would he taxes and the deliberately evade then tell Government the facts filing?”256 that disclose in another own Answering his fraud “If Judge Senator Hatch remarked: Claiborne was question, mind, with it acting a criminal state of is that he inexplicable would lie on Government filing one confess his guilt willfully.”257 another. The did not judge simply act Senator Hatch concluded that there was no Judge evidence that willfully Claiborne filed a false tax return: law, If he had intended violate the he would done not have it so Neither the the poorly. 1979 nor 1980 return shows evidence of or cunning guile. They contain mistakes discern- ible a grade school observer. The judge heavily relied too on unreliable accountants. The judge negligent failing to check his accountant’s Frankly errors. if one of the Articles Impeachment had cited the judge’s gross negli- gence disregard, I would have voted to impeach. Articles, however, House are based on all the criminal conviction. The criminal conviction is only Judge valid if cited, Claiborne willfully. acted For reasons I I the have could not find sufficient evidence of willfulness.258 254Id.
255Id.
256Id.at S15766. 257Id.
258Id. of the of the willfulness of Hatch’s assessment evidence
Senator As a member of the persuasive. conduct is Judge Claiborne’s committee, heard Hatch all the personally Senator impeachment to evaluate the and had testimony presented, opportunity judge’s testi- Comparing various witnesses. demeanor witnesses, Senator Hatch found with that of the other mony, witness, the judge’s Claiborne be a credible believed conviction, to his leading the circumstances explanation explana- presented supported other evidence found tion.259 carefully testimony very every aspect
I listened each wit- compared Committee. I before Impeachment other witnesses. the assertions made ness’ statements to run, be a credible long I found Claiborne Moreover, in this the evidence case I believed him. witness. of the circumstances that explanations supported judge’s Giving judge and conviction. to his led indictment doubt, to do obligated I believe are when benefit of the we *65 stake, are the evidence did life’s reputation his work clearly The evidence finding of willfulness. support not a and had negligent had been judge grossly showed that the He as a did carelessly obligations taxpayer. his disregarded not, however, to craftily design plan or defraud conspire willfulness, beyond a In the absence of the Government. convicted, doubt, he should not have been should reasonable and, should not my opinion, not have been impeached, I voted why office. This was not have been removed from of on the Articles Impeachment.260 each of guilty for Senator Hatch’s compels respect review the record Our Furthermore, the credi- his assessment evaluation the facts. opportu- he had an because bility compelling of the witnesses is importantly, More testimony view first-hand. nity to their states, significant is a lack evidence Hatch there Senator his income tax willfully sought falsify to showing that respondent persuasively more weighs The evidence returns. obligations taxpayer. his as a concerning negligently acted AND CONGRESSIONAL PROCEEDINGS 3. THE JUDICIAL above, the proce- matters discussed specific addition disturbing ques- Claiborne’s case raises history Judge dural opportunity he received a full and fair about whether or not tions trial, noted, first prior defense. As present filed pretrial motions Hoffman denied a series Judge 259Id.
260Id.
195
defense.
to the
Respondent immediately appealed
rulings
those
Claiborne,
Ninth Circuit Court of
See
States v.
Appeals.
United
denied,
(9th Cir.),
(1984).
At the time of the pre-trial appeal, against Judge case Claiborne still included the charges relating to his alleged acceptance of a bribe intended to influence the results in an appeal before one of our We as a court panels. agreed, manner, in a although rather informal to recuse ourselves hearing from Claiborne’s pretrial The Chief appeal. Justice then specially selected a of three panel judges from other circuits to hear it. The affirmed the special panel rulings of the pretrial specially assigned judge. district denied, U.S. ....., F.2d cert. ..... 105 S.Ct. (1984).
L.Ed.2d 56 Claiborne, (9th See United States v. 781 F.2d Cir. J., 1986) (Reinhardt, dissenting). entry of the Upon judgment of conviction in the second trial, Judge Claiborne to the again appealed Ninth Circuit. In explaining Ninth Circuit’s actions respecting appeal, Reinhardt stated: fact, time This we took no action to recuse ourselves. In we did at all. nothing Although bribery charges that indi- rectly involved our court in the were proceedings no longer case, consider, part we failed simply formally or informally, the whether we question obligation now had to hear the or appeal whether a new should special panel be appointed. Apparently acting that our assumption one, recusal was a prior continuing the Chief Justice spe- cially selected another of three from panel judges other circuits to hear the appeal.
Id.
Noting that an “overwhelming majority of the judges” of the court appellate they “believed that were not required to recuse themselves from voting on a critical of the aspect proceedings appeal,” Judge Reinhardt went on to in his explain why view the Court of had committed a Appeals “serious error” with “serious Id. consequences.” Judge Reinhardt wrote: Specifically, we erred when we failed to consider whether we should hear Claiborne’s Judge appeal from his conviction whether, instead, or of a appointment second special error, panel was Because of our outside required. judges were to hear an appointed appeal that we had an obligation hear system ourselves. Our court is structured so that a defendant will normally any have his trial and appeals heard crime the charged in which in the circuit residing
by judges Here, inad- erroneously, albeit we committed. allegedly of our of this feature Judge Claiborne vertently, deprived would have laws; case Judge’s of the en banc consideration remedying our least partially means of at been a proper mistake. that the ensuring means for en banc a Rehearings provide consistently but cor- only not circuit is applied law of our act, from Here, judges result of our failure as a rectly. circuits, the precedents we are with not as familiar as other court, a to hear. duty a case that we had considered of our impor- issues of raises several Claiborne’s Judge appeal issues, the special those of at least one of tance. In disposing court, let any appellate from authority cited no outside panel court. The special of this by judges a decision alone the result reached following it was not stated that also panel that it cited. 765 district court opinions in two of the three view, question when a substantial my F.2d at In 794-95. court is of this judges decided law not previously and we judges subsequently of outside decided a panel to decide that failing ques- have erred in that we recognize ourselves, en banc grant our responsibility tion it is reconsideration. omitted). (footnotes at 1330-31
Id. was, view, Judge Claiborne Reinhardt’s the fact Judge time, the Ninth Circuit Judge District from a United States of the judges in the decision of some figured have may banc, en rehearing Claiborne deny Judge Ninth Circuit to of impropriety. have raised an might appearance to do so because Reinhardt stated: regard, Judge In this District Claiborne is a United States Harry The fact that any than other mean that he is less entitled does not of this orderly procedures to the full benefit individual consideration, en banc including court. Those procedures, is done. Our en justice to ensure that have been established earlier, noted to ensure as I designed, banc is also process uniformly to all applied circuit will be that the law of this to have just right has as much defendants. Claiborne En banc other defendant. en banc case considered however, in one critical respect, are different proceedings only this court conducts: other proceedings from all en banc. There is can hear a case of ours of our court judges an out-of-circuit obtaining in current law for no procedure heard appeal even when an is en This is true panel. banc of out-of-circuit panel selected initially by specially Thus, existed appearance impropriety if in fact an judges. *67 here, the rule of necessity would and we apply, would be required disregard that appearance. if a Accordingly, factor in our decision to deny Judge Claiborne en banc consideration of his case was our concern over an appear- have, view, ance of we impropriety, my in seriously miscon- strued our duty so, of judges this circuit. In doing we have, unfortunately, also denied Judge Claiborne equal jus- tice.
Id. at 1331-32.
Moreover, view, in Judge Reinhardt’s an equally significant appearance of impropriety would have existed regardless of whether Judge Claiborne’s appeal was heard the by members of the Ninth Circuit Court of or Appeals, by a of panel out-of-circuit judges. In Judge Reinhardt’s the opinion, failure of the Ninth Circuit judges to an en banc grant allowed “the rehearing record to rest with the appearance Judge Claiborne have may been and, thus, object adverse special treatment the victim of Id. at injustice.” Further, (emphasis original). Judge Reinhardt concluded: Claiborne is one of the few criminal defendants in the Circuit, nation,
Ninth if not whose case has been handled, both in the District Court and in the Court of Appeals, exclusively by judges specially and specifically is, chosen to hear that particular case. There in my opinion, a rather substantial appearance of when a injustice defendant who claims he is the victim of a vendetta on the part various branches and agencies of the Department Justice is deprived of the to be opportunity judged those who would normally preside over case and instead is tried and before, convicted and has his heard appeal by, judges all of whom are selected specially assignments. for their
There is no doubt every taken in step appointing specially designated judges fully complied with all existing Moreover, statutes and rules. there suggestion is no in this case that there was in fact anything about improper designation judges, or that judges involved in the selection acted with process anything less than the Nevertheless, utmost integrity. in a case which the defendant contends that he is the object prosecutorial vendetta, in which the judges who heard the case were all specially selected under a process that permits selector wishes, total discretion to choose whom he and in which we as a court erred in permitting selected specially panel hear the appeal, I believe that an en banc hearing is ameliorate, for no required other reason than to to the —if extent possible, the appearance of En injustice. banc consid- court, not who were judges judges eration would appeal, selected to hear Claiborne’s specifically *68 that way a considerable towards gone accomplishing have objective. unfolded, en review
Unfortunately, only as events an banc or a the by hearing by Supreme this court United States of Judge could have afforded Claiborne consideration Court the of fair- a tribunal that had all by appearances his case are open All courts that have heard his case previously ness. pur- that were selected for the charge they specially the my In the pose ensuring governmental objective. of desired opinion, Judge the thus Claiborne proceedings far afforded stand- meeting “appearance justice” short the fall of of far justice Because our to administer in obligation ard. of the objec- manner that maintains in confidence fairness tivity judicial system, duty I believe it was our of to hear his case en banc. responsibility added; omitted). (emphasis Id. 1332-33 footnote it not our to invade of the Although is intention the province courts, by federal we are in with the expressed views sympathy above, Judge very Reinhardt. As detailed from the of inception case, been, least, very there has at the appearance an unfairly was respondent targeted investigation, unfairly Further, unfairly Judge indicted and tried and convicted. indicates, appearance injustice Reinhardt there is also an of sug- to the conduct which relating appellate proceedings gests may well have received “adverse special may treatment” and well denied the of his have been full measure procedural rights solely on account of his office and position.
Moreover, it appears that anomalous unfair arguably pro upon cedures were Claiborne the United imposed Judge during States impeachment Specifically, Senate for the first proceedings. time in the Senate an history, impeachment procedure utilized whereby a twelve-member committee formed to special receive evidence on behalf of the full Senate. See S. Res. (1986), 2d Cong., Hearings, supra 99th Sess. Senate note Pt. at1 2-3 for “the a committee to (providing appointment of receive respect and to evidence with to articles of report impeach- Claiborne”).261 Harry ment E. against Society, Judicature American before remarks In recent impeachment federal Heflin discussed T. Howell Senator Procedure XI of pursuant to Rule the Rules enacted 261S.Res. 481 was XI was Trials. Rule Sitting Impeachment on When in the Senate Practice trial impeachment after present in in its form adopted the Senate provides: Rule XI Judge in Harold Louderback 1933. Presiding of the Officer any impeachment trial of That in the Senate, committee Senate, appoint shall upon the order of the during of his process light experience impeachment pro- ceedings involving Judge explained Claiborne.262 Senator Heflin of the invoked in perceptions special procedures Judge case, Claiborne’s as follows: part, impeach- the Senate to modernize attempt the Rules of Rule 11 of adopted the Senate
ment process, Sitting in the Senate When and Practice Procedure was adopted . this rule Reportedly, Trials. . . Impeachment senators among level of absenteeism high because Louderback in trial of Harold during protracted the Senate in the was first utilized This committee of information and an official record fall of to compile and other witnesses. Claiborne testimony hear the rec- However, not allowed to make the committee was not Judge ommendation whatsoever in to whether or regards Claiborne should be removed from legitimacy office. *69 was, itself,
the committee that I feel questioned challenge —a twelve Senators to receive testimony evidence and take at such times places determine, and may as the committee purpose and for such the thereof, appointed committee so committee, and the by chairman to be elected the (unless shall by Senate) otherwise ordered the exercise all powers the and upon functions conferred the Senate Presiding and the Senate, Officer of the respectively, under procedure the rules of and practice sitting in the Senate impeachment when on trials. Senate, by Unless otherwise ordered the procedure the rules of and practice sitting in the impeachment Senate when on govern trials shall procedure the practice and appointed. of the committee so The commit- appointed report tee so shall writing to the Senate in a certified copy of transcript the proceedings testimony of the and given had and before committee, report such and by such shall be received the Senate and the testimony evidence so received and the so taken shall be considered to all purposes, subject right intents and to the of the Senate to determine competency, relevancy, materiality, having and been received and Senate, taken nothing before the but prevent herein shall the Senate sending Senate, from for hearing testimony witness and open by having or order the of Senate the open entire trial in Senate. Rules, Orders, Containing Laws, See Senate Standing Manual the and Senate, Affecting Resolutions the Business of the United States S. Doc. No. Cong., Although 96th 1st adopted Sess. at 174-75. Rule prior XI was impeachment the Judge trial of Halsted Ritter in the Senate did not proceed in provisions accordance with the Judge of that Rule until Claiborne’s case came Hearings, supra before it. See Senate note Pt. 1 at (Judge XI, 241-51 Claiborne’s Motion to Declare “Rule Rules of Procedure Sitting Practice in the Senate When Impeachment on Trials” as Uncon- stitutional). Supreme 262SenatorHeflin is a former Chief Justice of the Court of Justices, Alabama, of Chief a former Chairman of the National Conference Outstanding Appellate as the Most in the United and was selected Lawyers Congres the Trial of America in 1976. See States Association of (1987). Directory, Cong. 4 He is a member of the Senate sional 100th Judiciary Impeachment Committee and served on the twelve-member Senate involving Judge Claiborne. proceedings Trial Committee in the the current overall of problems of the was indicative believe, however, there no is I impeachment process. to form such a was authorized that the Senate question creation for the justification committee. Constitutional I, Article Section Committee lies in Impeachment Select that, Constitution, “Each House which states Clause 2 of the the of (of Proceedings. determine Rules Congress) may .its committee, Yet, there were the even with the existence process. impeachment in the overall tremendous problems on the the senators select was that while problem One the facts were aware of committee well impeachment case, the not true the rest of Senate. in the this is for issues totaled over 3500 hearing the Claiborne transcript many senators had highly improbable pages, it is surprisingly, Not thoroughly. time to this material review floor, majority trial on the the time the actual Senate in the the Senate had neither benefit information deciding Judge prepare properly nor the time to report, Furthermore, committee finished after the Claiborne’s fate. Senate, went the full its work and the matter before not to rehear committee witnesses Senate decided leadership record, only and to committee’s written but accept and his attor- managers, Judge Claiborne allow House During these state- floor. neys make statements 40 members were floor, approximately ments on the Senate any portion during the Senate chamber present not and I estimate that at closing Claiborne’s statement during presen- least 35 were never on the senators floor tations the prosecution defense. Though very important had some business other senators to, (I attend hesitate to proceedings their absence from *70 not, trial) my in judgment, call it a was fair its believe that the Senate satisfied con- Claiborne. While I trial of Judge in the impeachment stitutional responsibilities can, should, Claiborne, the Harry I believe process even, in the immediate perhaps, work better. In the future — impeach- number of may be faced with a future—the Senate out carry cannot ment trials. A United States Senator if he neither the impeachment responsibilities participates opportunity gain knowledge committee nor has an hearing on floor. of the case from a full trial the Senate (Emphasis added.)263 Impeachment The Federal T. Heflin on 263Speechof Howell Senator 4-6; 1988) (Feb. p. Society see Judicature before The American Process 9, 1986) (statement of (daily Senator Cong. ed. Oct. Rec. S15779
also 132 Heflin). have Other Senators also expressed criticism of the manner which the proceeded Senate in Judge Claiborne’s case. Senator observed, Daniel J. Evans for example, prior impeach- “[i]n cases, ment the full Senate had an to receive all the opportunity evidence No directly. committee was appointed to serve as a buffer between the accused and responsible those the making final judgment.”264Senator Evans further remarked: the career.
Our vote was final word on Claiborne’s trial court at same appellate We were the court and the care to incumbent us to take the utmost upon time. It was thus I we lost proper. were believe proceedings ensure that our justice are more procedures of the fact sight often creating the laws in than the substance important perception of fairness. added.)265 (Emphasis
Senator Carl M. Levin also criticized aspects of the process employed during trial impeachment and noted that the full Senate deprived itself of crucial a feature of the fact- finding process, evaluate opportunity firsthand the demeanor credibility of witnesses. Commenting only twelve members of Senate comprising impeachment panel had such an Senator opportunity, Levin observed:
The “rule 11” committee did an excellent job of develop- a I ing record. have the greatest respect for the members and staff of the a they had difficult job they committee— it with devotion. discharged dignity and they record But, is essential to
developed understanding case. in my view, it not adequate was to let the Senate findings make those areas disputed credibility where witness demeanor or is critical process determining to the what the are. The facts Senate, fact, as a finder of not did hear or single see a And, result, witness. as a ability fairly our deci- reach sions, when the facts were in dispute, restricted.
To reach judgment involving issues facts disputed where the credibility demeanor and of the witnesses are important, I believe the to see Senate needed the witnesses— as the not or just “rule 11” committee did—and see a record even tapes of witnesses testifying. witnesses,
When voted we not to hear additional we Senate, set which made for the up process impossible it (statement 1986) Senator (daily Cong. S16821 ed. Oct. 264 132 Rec. Claiborne”). Judge Harry Trial of E. Evans entitled “The 265Id.
202 fact, fairly credibility and evaluate the fully
the finder of witnesses.266 Thus, persuaded or not one is added.) whether (Emphasis justi- office were his removal from and conviction
respondent’s and facts, appearance little doubt that there can be fied case from plagued has impropriety procedural atmosphere inception. its contributing general percep- circumstance
An additional this matter warrants surrounding injustice tion and appearance trial, counsel respondent’s the first Following our discussion. Judge or disqualification the recusal seeking motions filed The initial in the case.267 participation from further Hoffman “courtroom observers” “bystanders” alleged motion to be towards “appeared partial Hoffman Judge had reported Therefore, the Defendant.” against and biased the prosecution, Hoffman Judge requested defense counsel of mind with consciously assess his state deliberately matters and determine whether or foregoing reference to the not:
(a) reasonably be might questioned; his impartiality (b) concerning he bias or personal prejudice has Defendant;. (c) concerning he bias or personal prejudice has a counsel;
Defendant’s or
(d) evidentiary knowledge disputed he has personal concerning proceeding.268 facts pleadings, alleged defense counsel subsequent supplemental Judge purportedly instances wherein Hoffman had dem- specific bias and toward On June prejudice respondent. onstrated order thirty-six page denying Hoffman filed a to each factual responding allegation motion bias or the of bias or suggesting appearance prejudice Hoffman’s part.269 trial,
Again, following second respondent filed post- (1) conviction motions judgment vacate his of conviction and sentence; (2) (3) for evidentiary hearings; for discovery proceed- (statement Cong. (daily 1986) Rec. S16823 ed. Oct. entitled: “Opinion Impeachment”). of Senator Levin on the Claiborne I, V, 51; VI, Pleading Pleading 267Rec.Pt. Vol. Nos. Vol. No. 57 (motion judicial recusal under 28 U.S.C. and first and second § thereto). supplements I, V, Pleading 268Rec.Pt. Vol. No. 49 at 3. I, V,
269Rec. Pleading Pt. Vol. No. 56. *72 15, 1986, Hoffman (4) Judge July and for a new trial.270On ings; 8, 1986, Chief July that on parties entered an order apprising the presiding had him to continue as Burger designated Justice out of proceedings arising in further judge any post-conviction Hoffman’s order further Judge criminal case.271 respondent’s error on assigned that counsel for Claiborne had not observed refusal to recuse himself from Hoffman’s appeal Judge prior concluded, therefore, Hoffman Judge over the trial. presiding of “bias allegations for recusal and any specific further motions acts, be confined to words or events” occur- and must prejudice entered. Accord- denying the last order recusal was ring since fifteen within days Hoffman allowed defense counsel ingly, Judge which: recusal, specifically motion for any appropriate file [T]o any charge prejudice in of of bias
alleging support facts District Judge, United States part undersigned on acts, words or of fact shall be limited allegations but such of the last order entry denying events since the occurring recuse, If such motion is July, motion to filed in late filed, acts, or events the Court assume that no words not will in fact undersigned judge bias or indicating prejudice exist.272 defense counsel filed a “Veri- July response,
In Counsel or Recusal.”273 Disqualification fied Motion for Judicial from further Hoffman should recuse himself Judge asserted (1) “attitudinal bias and case because- of in the participation herein and against favor of the prosecution ... in partisanship Defendant; (2) this impropriety.” appearance [t]he been filed on noted that a motion had defense counsel regard, seeking designa- Appeals in the Court of behalf of respondent any over preside the Ninth Circuit to of a from within judge tion Further, observed that he counsel proceedings. post-conviction 11, 1986, Hoffman, July from dated Judge had received a letter Judge written to Chief that he had which Hoffman stated Judge new to the need for a respect the Ninth Circuit “with Browning IX, 81; I, I, VIII, Pleading Pleading No. Rec. Pt. Vol. 270Rec.Pt. Vol. denying Recently the relief Judge Hoffman entered an order No. 105. Claiborne, proceedings. United States v. requested post-conviction in those WEH, District Court for the District of CR-R-83-57 United States Case No. 27, 1988). (filed presently is We understand that Nevada Jan. pursuing appeal. I, IX, Pleading 271Rec.Pt. Vol. No. 91.
272Id. I, IX,
273Rec. Pleading Pt. Vol. No. 92. designation if there was desire for me to hear the post- conviction motions.”274 addressing
On October after further pleadings submitted, Hoffman entered an order Judge denying issue were the motion of Hoffman stated judicial disqualification.275Judge that he entertained no of bias or “feeling prejudice against Judge evidenced the record and . . .”276 transcripts. Claiborne as that defense counsel set forth sufficient suggest We do not Judge of bias or on the Hoff- allegations prejudice part factual conviction; nor do we man to warrant the reversal of was, fact, Hoffman biased or prejudiced suggest have, however, alle- We considered counsel’s against respondent. legal Hoffman’s conduct of the proceedings gations atmosphere appearance injustice the context of the overall *73 In involving respondent. with the federal proceedings associated context, Hoff- Judge we conclude that a number of regretfully this to a that rulings may perception respond- man’s have contributed in the to anomalous and subjected prejudicial procedures ent was we to: course of the him. refer proceedings against Specifically, (1) evidentiary hearings respect- Hoffman’s refusal to allow Judge investigative govern- accusations of and ing many respondent’s of misconduct; (2) Brady relative to the and rulings mental his material; (3) with the rulings prose- Act his in connection Jencks alibi; (4) and his denial of the cution’s demands notices to the first trial. We also prior motion for a continuance defense Hoffman ordered the of a critical sequestration note that witness, Ahlstrom, a recess in the second Judy during defense alleged trial.277 counsel has that until that Respondent’s up point taken a witness from commu- preventing no such action had been during Accordingly, respondent with counsel a recess. nicating unfairly Hoffman’s action prevented has asserted to and calm Ms. Ahl- attempting defense counsel from reassure thoughts visibly allow her to collect her after she was strom and Again a cross-examination.278 we by particularly grueling shaken do not establish allegations stress that these and similar although during or the conduct of prejudice against respondent actual bias trial, do contribute to the aforementioned and they perception 4-5; Respondent’s Compendium, 274Id.at see Docket No. 17294 filed (section Hoffman”). “Judge Sept. entitled I, IX, Pleading No. 106. Pt. Vol. 275Rec. 276Id.at 14. III, Pt. Vol. III at 633. 277Rec. I, IV, Pleading should also be noted that No. 3 at 44-47. It 278Rec.Pt. Vol. good part a of that cross-examination.
Judge Hoffman himself conducted appearance injustice special and adverse and suggest were prejudicial procedures imposed upon respondent. sum, these circumstances are relevant to our deliberations in First,
two we respects. consider them in the context punishment far thus exacted during course of respondent’s Ross, trials and incarceration. See In re 99 Nev. (1983). Second, course, P.2d they detract from which weight we would ordinarily accord of convic- judgment view, tion. In our record suggests may have respondent been subjected special adverse treatment right restricting established procedures. imposition special procedures may case well have restricted his ability present and defend his position fully. Accordingly, these circumstances reflect upon suffered, the punishment has well respondent as conviction, the weight which should be accorded his for the purpose assessing disciplinary sanctions.
Lastly, we observe that two additional circumstances reflect upon procedures unusual and the extent of the punishment thus far in the imposed protracted course of this At matter. court’s hearing in Las on November Vegas for exam- more ple, than one witness alluded the scorn notoriety attached to the judicial congressional and the proceedings obvious respondent torment as a suffered result of that notori- below, ety.279 Unquestionably, as discussed the scorn and ignominy has respondent suffered as result of the protracted federal judicial proceedings ensuing impeachment pro- ceedings has been substantial.
In June of his removal following from office after serving thirteen months in prison, was released from *74 prison to a federally supervised halfway house in Vegas Las all, complete his term.280In served respondent seventeen months of his two-year fully term before he was released from confine- ment.281
IV. RESPONDENT’S PROFESSIONAL BACKGROUND Harry officially E. Claiborne Respondent assumed the duties United States on District for the District of Nevada Sep- 1, by tember was to fill 1978. He nominated President Carter a on the in and vacancy July year, bench of that was confirmed 279See, Claiborne, 17294, e.g., Reporter’s Bar v. No. Tran State Docket script Hearing 45. Term, 17, Sun, Complete Vegas June to L.V to Las 280ClaiborneReturns 1987. Set, 17, Sun, Hearing Vegas Las November Claiborne Disbarment 1987. the August During on 1978.282 the United States Senate held hearing August appointment process, Judiciary on the United Senate Committee before the States At and background.283 Mr. qualifications Claiborne’s respecting DeConcini, chairman, Senator acting the the hearing, start of that a he had been advised “substantial for the record that stated Judiciary of Committee on the Federal Standing majority” that Mr. opinion Bar was of Association American for to the federal appointment was “well qualified” Claiborne committee found him minority the Bar Association’s bench. A was, time, that Claiborne at that ground not on the sole qualified sixty-one years age.284
Thereafter, DeConcini Senators Howard recognized Senator W. Laxalt of Nevada who testified on Mr. Cannon Paul and his behalf character respecting qualifications. Claiborne’s “one of praised Senator Cannon Mr. Claiborne as Specifically, in attorneys criminal the west” and noted that foremost “[h]e and, every is in courtroom in our respected known state throughout others the United States.” In reputation, many regard respondent’s professional accomplishments, Senator distinguished Cannon observed that Mr. Claiborne had himself attorney not as an defense but as a only exceptional police also officer, attorney, attorney Las city assistant district for North Nevada, Henderson, Vegas assemblyman and an In the latter Legislature.285 position, Nevada Senator Cannon only observed that had served one term although State Assembly, Nevada elected Majority he was Assistant Leader chairman of And, Judiciary Committee. in that one term he was responsible passage legislation primarily placing probation of a law on the ballot for con- statewide question He throughout sideration. then to win campaigned state of the measure. When the probation law was approval he was then to be Direc- approved, appointed Nevada’s first tor of Probation.286 (S. 1985/86); American Livermore 3rd ed. W. Dornette 282The Bench Cross, (1986); Judiciary generally
and R. Federal Almanac 648-49 see Gazette, Judgeship, Evening July to be Nominated to Reno Claiborne Hearings, supra note Pt. 4 at 283Senate 2251-62. (Claiborne 24). Hearings, supra note Pt. 4 at 2254-55 Ex. 284Senate (Claiborne Hearings, supra Pt. 2256-57 Ex. 285Senate note 4 at III, Cannon). Rec. Pt. Vol. IV at 820-21. statement of Senator Howard See *75 24, (Claiborne Hearings, supra note Pt. 4 at 2256-57 Ex. 286Senate Cannon). statement of Senator Howard Senator Laxalt also Mr. to the praised Claiborne’s nomination federal bench testifying part: very, very of the State of Nevada are people respectful
of this man’s abilities not but only lawyer as a person who has been in all heavily engaged aspects community in our state.287 activity
The record of the United States Senate Committee Judiciary 8, 1978, further discloses that in proceedings August 1975 Mr. Claiborne served as a assistant to the United special during States Senate Committee on Rules and Administration hearings historic on Nelson Rockefeller’s nomination to the vice- presidency.288 At the time of respondent’s nomination and by confirmation Senate,
United States media print throughout this state echoed the testimony of Senators Laxalt and Cannon respecting respond- ent’s background, qualifications, contributions to legal com- munity, high esteem in which he was held his For colleagues. example, August in an editorial entitled: U.S. Judge Claiborne More Than Qualified, the Las Vegas Review-Journal stated that “few can attorneys boast the kind of record Harry Claiborne has put together in his 31 years in the state of Nevada.”289The Review-Journal observed that Mr. Claiborne “has a great deal of from respect his and one peers, consistent thing about his character keeps popping up—hard- working. Everyone describes the intense determination he puts into his efforts in a courtroom or while his studying legal papers.”290 Choice,
Similarly, in an editorial entitled: Claiborne Good Reno Evening Gazette stated:
Claiborne also has caught attention and praise for his peers charity tops work. He the list Nevada trial lawyers willing represent people organizations with- out compensation whenever he was impressed by impor- tance gravity case or the an issue to be defended organization individual or unable pay.291 (Claiborne Hearings, supra 287Senate note Ex. Pt. 4 Laxalt). statement of Senator Paul (Claiborne biography). Hearings, supra Pt. 4 at 2261 288Senate note Review-Journal, Qualified, Vegas More Than Las 289U.S. Claiborne Aug. 1978. 290Id. Choice, Gazette, Evening July
291ClaiborneGood Reno *76 208 is added.) regard in this observation (Emphasis Gazette’s that, 1972, recog- was Mr. Claiborne the fact in
evidenced
poor
services to the
legal
providing
for
and
supporting
nized
County Legal
the Clark
award from
he received an annual
when
Moreover,
unself-
Mr. Claiborne has
years
over the
Services.292
of this state when-
the trial courts
to the call of
responded
ishly
attorneys
represent
finding
difficulties
they experienced
ever
Further,
noted that
correctly
cause.293
Gazette
unpopular
talents
a defense
his considerable
as
has provided
Mr. Claiborne
defendants whose
indigent
to numerous
charge,
without
attorney,
See,
State,
v.
e.g., Roy
his compassion.294
stirred
legal problems
suc-
517,
(1971)
Claiborne
(respondent
87
Pt. at of H. E. and Pt. 4 at 1 925 2256-57 III, Cannon); Rec. Ex. statement Senator Howard Pt. Vol. IV 819- providing lation civil service status for policemen firemen the Nevada legislature.298 articles, as the above-noted years, thirty-one the next For indicate, editorials, respect he the wide earned testimony He was considered well the public-at-large. as his peers, of law. In to the practice dedicated professional consummate him presented Bar of Nevada in the State colleagues service in a outstanding of his in recognition an award with him as president also elected colleagues case.299His criminal Addition- early 1970’s. County Bar Association the Clark College of Trial in the American he was named a Fellow ally, that, Thus, September questioned it cannot be Lawyers.300 *77 the duties of United 1978, officially assumed when Mr. Claiborne and well- well-respected he left behind a District Judge, States years dedica- reflecting thirty-one private practice established noteworthy is that the It advocacy. equally exemplary legal tion to only is the proceeding apparently to this giving rise conviction Our review unblémished record. respondent’s previously spot files, us, disciplinary well as this court’s record before as of the is instance in which only the the proceeding instant reveals has practice ethical fitness to law of respondent’s question the Further, Bar has not the State this court. been submitted any against respondent action disciplinary us of other apprised the a Illinois justice course his career. As during one: case similar this remarkably Court observed in a Supreme bar, our has record indicates that this member of who This service, much in his year, so now seventieth given public an excellent enjoyed has until event unhappy which be or sold in bought cannot reputation something — only cultivation in all place, acquired phases market but is human conduct. J., Walker, 76, (Ill. 1977) (Dooley, re See In 364 N.E.2d 79 record, we we In conclude that would be concurring). light of this in this if we proceeding remiss in our obligations disciplinary consideration give thoughtful failed to “careful and [to] Respondent, of the good reputation evidence character v. professional standing. Steger, ...” See State exemplary 1966); (Okla. 227 see P.2d also District Columbia 433 (D.C. Kleindienst, 1975); re A.2d 146 Ford’s Bar v. 345 Case, (N.H. 1959). A.2d 864 149 Hearings, supra 298Senate note Pt. (testimony 1 at 926 of H. E.
Claiborne). Bench, supra 299TheAmerican note 14.
300Id.
V. DISCUSSION indicated, As order to afford the previously parties opportunity to their views present respective concerning legal us, and, desired, issues before if so they present testimony addressing of witnesses the factual and issues under consid- legal eration, we hearing scheduled a in this matter for Novem- public Counsel, Howe, ber At that Bar hearing, present John for and on behalf of the State Bar of Nevada. Esq., appeared Goodman, Goldwater, Oscar and David Esq., Esq., appeared and on behalf of Claiborne. Numerous other persons addition, friends of the court. In appeared spoke as counsel for the advised this court as to their parties respective positions regarding the law. applicable
Thereafter, on November we issued a preliminary observing decision in part: the authorities
Fundamentally,
cited to us
counsel for
(1)
both
establish that:
parties
paramount objective of bar
disciplinary proceedings is not additional
punishment
but rather to
attorney,
protect
public from
unfit
persons
attorneys
to serve as
and to maintain public confidence in the
whole;
Cochrane,
bar
see In re
Nev.
P.2d
(1976); (2)“[i]n
it
disciplinary proceeding,
duty
is
of this court to look
beyond
given
label
to a conviction in
order to determine whether the underlying circumstances of
[Bar],
the conviction warrant
see
v.
discipline”;
Sloan
State
Cochrane,
(1986);
102 Nev.
211
detail the facts disclosed
set forth in some
heretofore
Having
record,
particularized
now turn to a more
we
our review of
relate to those
they
legal principles
of the applicable
discussion
24,
of November
hearing
adduced at the
facts and the evidence
that it is this
by again emphasizing
begin
analysis
We
our
beyond
to look
proceeding
in a
obligation
disciplinary
court’s
facts,
order
true nature of the
a conviction to the
given
label
circumstances of the convic-
underlying
whether the
to determine
Bar,
v. State
102 Nev.
See Sloan
discipline.
tion warrant
Cochrane,
Nev.
(1986); see also In re
92
P.2d
333
726
111(3)
that a
(1976).
provides
SCR
Although
P.2d 328
549
of the commis-
is “conclusive evidence
certificate of conviction
any disciplinary proceeding
in it in
sion of the crime stated
conviction,”
it remains
attorney
an
based on
against
instituted
the attor-
the actual conduct of
obligation
explore
this court’s
all,
After
question
in that conviction.
that resulted
ney
attor-
centers around the
imposed
to be
discipline
extent of
itself,
the fact of a conviction. See
merely
not
ney’s conduct
Cochrane,
Bar,
also In re
supra;
In re
see
supra;
v.
Sloan
State
1983) (whatever
Gross,
(Cal.
may prompt
P.2d
1140
659
law, it is the
practice
fitness to
attorney’s
an
into an
inquiry
and not the
discipline,
itself which warrants
attorney’s conduct
Crane,
therefrom);
N.E.2d
In re
which arises
conviction
actual conduct of an
(Ill. 1961) (a consideration
be
to an
may
indispensable,
but
attorney
only proper,
is not
action).
disciplinary
the appropriate
informed
appraisal
true,
course,
the facts and
courts have considered
It is
conviction in different
attorney’s
an
underlying
circumstances
First,
matters
in disciplinary
and for various purposes.
contexts
circumstances of a conviction
underlying
review the
courts often
moral turpi
conduct involved
attorney’s
whether the
to ascertain
Hallinan,
1954),
(Cal.
In re
When, attorney, that an appears it present as in the disbarment, summary warrant conviction does not whose involving moral guilty have been acts nevertheless might referring practice we have established turpitude, investigation question the State Bar for an matter to lawyer the convicted commission of the crime whether in the misconduct or requires suspension guilty over the admis- power has inherent This court disbarment. sion, and in the attorneys, and disbarment suspension, on its disciplinary proceedings can initiate exercise thereof motion, and, may “any in so it suitable doing, adopt own proceeding.” or mode process short, omitted; added). (citations emphasis Id. at 774-75 the Hallinan matter demon- two decisions in California court’s are underlying circumstances an offense the facts and strate that whether the there is sufficient doubt considered where properly $10,000, five imprisoned not more than or more than fined not both, prosecution. together the costs of years, with or provisions of 26 amended. The has since been Revenue Code The Internal U.S.C. 145(b) incorporated primarily in 26 § have been U.S.C. § (willful tax) failure to U.S.C. and 26 § or defeat (attempt to evade tax). pay or over collect
213 elements of the crime and the actual conduct in the resulting conviction necessarily involve moral turpitude. See also In re Cochrane, 253, 254-55, 328, (this 92 Nev. (1976) 549 P.2d 329 court’s de novo review of the facts underlying an attorney’s conviction for willful failure to file an income tax return under 26 U.S.C. 7203 established insufficient facts to support finding § defraud, that the attorney had an intent to or was intentionally dishonest for the of purpose personal gain; this court accordingly, refused to deem the conviction to be one involving moral turpi- tude).
Second, even where the elements of a conviction necessarily establish conduct involving moral turpitude, courts examine the facts and circumstances an underlying attorney’s conviction to determine severity the of the discipline warranted the conduct Kristovich, involved. For in the case of In re example, 556 P.2d (Cal. 1976), 771 the California Supreme Court concluded:
We are here concerned with petitioner’s fitness to continue serving as an attorney. purpose of a disciplinary “[T]he proceeding is not to the punish attorney but to into inquire the moral fitness of an officer of the court to continue in that and to capacity afford to the protection public, the courts and the legal profession.” (1969) v. (Clancy State Bar 71 Cal.2d 140, 151, 657, 664, 329, 336.) 77 454 Cal.Rptr. P.2d For the of purposes proceedings, these petitioner’s convictions for perjury conclusively establish that he committed acts under (Bus. circumstances which constitute together perjury Code, 6101). & Prof. The question moral turpitude is § of law, one and the determination that issue is this court’s of of (In (1972) 562, 569, responsibility. re 6 Higbie Cal.3d 99 865, 97.) P.2d Cal.Rptr. 493 We have repeatedly the offense of regarded perjury, which statement, oath, entails a willful false contrary as to a false, material matter which one knows to be to involve (See (1940) moral turpitude. In re Rothrock 16 Cal.2d 907; (1959) 106 P.2d In re Allen 52 Cal.2d 344 P.2d others to (soliciting commit perjury).) Accordingly, has petitioner engaged conduct involving moral turpitude, this court is required by section 6102 (b) subdivision of the Business and Professions Code to him. discipline severity discipline such depends upon of gravity the crime and the circumstances case. examining the circumstances giving rise to the offense question, we are not restricted to a consideration crime, specific may elements but look to the whole attorney’s course conduct which upon his reflects (In practice Higbie, law. re supra, 6 Cal. 3d fitness 97.) Therefore, we now P.2d Cal.Rptr. analysis, conviction the wider beyond the bare
proceed
his explanation
case and
petitioner’s
including
facts of
them.
added).
P.2d at 773 (emphasis
1977),
Walker,
(Ill.
The indictment which forms the for for the year respondent action disciplinary charged $22,602.68 only but reported had taxable income of $13,055. Fed- Although prosecuted by court, authorities, and a plea eral district accepted $5,000 for attorneys fine the record reflects that imposed, Revenue regional the office of the counsel Internal investigating in a the respondent Service stated after report was felt that were unreported receipts “that it that these a criminal It is clear reflected on return lacked intent.” all his taxable income was report failure to system shoddy result of a so that it has been bookkeeping court as variously characterized before this incomprehensi- had once ble and nonexistent. . . . Prior receiving his income and respondent overstating resulted refund; short, occurred. In opposite tax year amount of income was recorded proper books were not wrong but notations were in the and so many *82 by was totalled his office year’s help found when the income error, he tax When discovered the purposes. respondent for return, months his indictment. prior filed an amended 14 return, time income on this amended this reported ledger after all the books for 1969 searching calculated income, figure the correct income closely so approximated $292 tax to be it was less than the paid just that the tax 1969 eventually against respondent’s assessed liability income. no conduct fell question respondent’s
There is but that attorney give which an should degree short of that of care of his records and cannot be condoned. keeping the income intent, however, recog- of His lack fraudulent apparent attorneys, the Revenue Service’s own nized Internal background only with a in service which can together public the rec- exemplary, mitigate against suspension be labeled of the Review Board. report ommended the “majority” therefore, We, respondent’s hold in of conduct light he is extenuating circumstances all the aforementioned of the censure of this court. deserving Walker, Thus, Illinois Court exam- Supreme Id. in at 77-78. attorney’s conviction underlying ined the circumstances 216 a sanction mitigated against factors extenuating
concluded
Bar
Columbia
v.
See also District of
more severe than censure.
Kleindienst,
(D.C. 1975) (court considered
345 A.2d
149
in
‘highly charged political
“caught up
attorney
fact
”
i.e.,
involved,
. .
the criminal behavior
mitigated
atmosphere
committee);
to a United States Senate
repeated misrepresentations
Loridans,
v.
338 So.2d
State Bar Ass’n
1347
Louisiana
1976)
may
charac-
(La.
guilt
relitigated,
issue of
not be
(although
examined
be
resulting
may
conviction
ter of misconduct
Duca,
(N.J.
circumstances);
A.2d 405
In re La
mitigating
York,
New
1973);
City
v.
of the Bar of
of
Levy Association
(N.Y. 1975);
Counsel
Office of
v.
Disciplinary
N.E.2d 350
Troback,
1978).
(Pa.
A third
has
our
consideration
respondent’s conviction
underlying
and circumstances
noted
the above factual
throughout
case. As we have
instant
discussion,
has tendered for our consideration
against him in federal court
proceedings
issue of whether the
law,
with
of
and in a
fairly,
process
conducted
in accord
due
were
disciplinary
to undiminished
in a
weight
manner
them
entitling
Early
proceedings,
this court.
on in these
proceeding before
16, 1986, we observed:
September
our order issued on
of
evidence obtained to date as
result
this
On
basis of
court’s,
of the several
July
light
order of
and in
of the United States Court of
dissenting
judges
opinions
Circuit,
Ninth
this court has determined that
Appeals for the
summarily
respondent’s
it cannot
dismiss
contentions.
Claiborne,
filed
Bar
Docket No.
order
Sep-
See State
v.
see,
Claiborne,
16, 1986;
United
v.
781 F.2d
e.g.,
tember
States
J.,
(9th
1986)
Cir.
United States v.
(Pregerson,
dissenting);
J.,
Claiborne,
(9th
1986) (Reinhardt,
Cir.
217 Radford, (1917). 243 51 in Additionally, v. U.S. Selling the stated that it would the of a Selling recognize judgment Court state court in a bar unless proceeding record,
from an intrinsic consideration of the state one or all following conditions should 1. That the state appear: notice to be heard opportunity from want of or procedure in due that there was such an wanting process; as to found to the infirmity proof of facts have established want of fair character as to rise private professional give to a clear conviction on our that we could not consist- part as final the on that ently duty accept with our conclusion or that some other reason existed which subject; grave should convince us that to allow the natural of consequences duty to have their effect would conflict with the judgment which rests us not to disbar the conviction upon except upon that, right justice, under the we were principles to do. constrained so 114(3). Selling,
See 243 U.S. at See also SCR where are raised Analogously, grave allegations respecting investigative, fairness of the prosecutorial, procedural pro conviction, ceedings underlying attorney’s disciplinary conviction, action on that without an “intrinsic solely based consideration” of the record of those would proceedings, clearly “with which in the duty upon performance conflict rests us” function, of our in accordance with disciplinary proceed Radford, v. 243 U.S. at “principles right justice.” Selling Exam’rs, generally 51. See Potter v. State Bd. of Med. 101 Nev. 369, 371, (1985) (the 705 P.2d interest in practicing revoked); one’s cannot be or Bur profession arbitrarily abridged Nevada, v. State Bar of Nev. 643 P.2d leigh (1982) (a state cannot exclude a from the person practice law). law without due process mind,
With these considerations and from our review of facts, federal underlying respondent’s circumstances and conduct conviction, we conclude that has indeed engaged conduct himself has con- deserving discipline. Respondent regard ceded that he was careless and with to his negligent conduct, personal obligations taxpayer. as a Unquestionably, Walker, (Ill. 1977), as in the case of In re 364 N.E.2d view, “bring legal profession disrepute.” tends to into In our of that care which an “respondent’s degree conduct fell short attorney should to the of his income tax records and give keeping Moreover, be condoned.” Id. at 78. rules disciplinary cannot in this state governing legal profession during period lawyer engaging from in conduct question prohibited prejudi- *84 218 on his reflecting adversely justice to the administration of
cial ABA of Responsi- to law. See Code Professional fitness practice therefore, conclude, (6).302 1-102(A)(5), We DR bility, under provisions these responsibilities his respondent slighted legal obliga- and careless attention to negligent virtue of his the during years as 1979 and 1980. taxpayer tions a throughout first the time concluding, perhaps In so travails, has been respondent of history respondent’s tortured Based our extended upon of the doubt. the benefit extended record, emerged abiding we have with of the consideration of proof. under a criminal standard guilt as to respondent’s doubt conviction, Therefore, we are in respondent’s precisely toas Court, Supreme having United by the States position specified infirmity as to facts proof “there was such an of concluded that private professional to the want of fair found have established our that we part to a clear conviction on give character as to rise as the conclusion duty accept with our final consistently could not 243 at 51. Selling, U.S. subject.” on unnecessary it regard in this renders our conclusion Although in convic- resulting respondent’s whether conduct to consider reiterate that our view of moral we turpitude, tion involved analysis with the factual tendered is accord complete facts noted, reviewed the carefully As Senator Hatch Senator Hatch. they sufficiently not concluded that do facts of this case and willfully his returns signed finding a support defraud, he dishonest for the intentionally that was or intending circumstances, were it these gain. Under purpose personal issue, entertain grave we would for us reach necessary sufficiently willful whether conduct was doubts as to re moral See In turpitude. justify finding and intentional 329; Reno, 255, Cochrane, also In re P.2d at see Nev. at 549 92 1036, (where (1937) physician’s Nev. 64 P.2d 1041 57 conviction, upon revoked criminal license to based practice where circumstances modified the order revocation this court conduct as whether physician’s created doubt substantial moral turpitude). involved stated, however, in the instant case nonetheless
As the record imposition discipline. grounds warranting demonstrates Therefore, severity disciplinary us is the the issue before and circumstances underlying facts imposed. sanction to be conviction, mitigation well as all relevant factors sanction, are considered in appropriately any possible Cochrane, Bar, re supra; In re supra; v. State regard. Sloan 28, others, among repealed were specific provisions, March 302These 1986, of Professional Conduct. See SCR by Model replaced Rules
219 Walker, 771, 1976); Kristovich, (Cal. In re 364 P.2d 773 556 Moreover, (Ill. 1977). this court must consider N.E.2d circumstances on a case- mitigating “all the relevant factors and California, v. State Bar of 709 P.2d Murray basis.” See by-case Kellar, (Cal. 1985). In re 88 Nev. generally See Parks, 184 P.2d (1972); In re 64 Nev. P.2d 1039 as to the (1947). appropriate There are no fixed standards v. State Bar of Califor actions. Alberton disciplinary penalty *85 denied, 1177, nia, 1984), (Cal. cert. 470 U.S. 686 P.2d 1185 (1985). 1007
Further,
in
we
regard,
in
a
determination
this
reaching
just
of
action.
goals
disciplinary
must remain mindful of the primary
Cochrane,
the fundamental
“objective
As we observed in
not additional
punishment
action ...
is
disciplinary
rather to
from
unfit to
attorney
protect
public
persons
but
. . . and to maintain
confidence in the
attorneys
public
serve as
Cochrane,
329,
whole.”
Nev. at
549 P.2d at
bar as a
See
92
Case,
(N.H. 1959).303
A.2d
864
In re Ford’s
149
citing
we turn to an examination of those factors relevant
Accordingly,
as an officer of the court and to
fitness to serve
respondent’s
imbued with the
profession
public
continue the
practice
Echeles,
1970)
(7th Cir.
and trust. See In re
tent bar against the indictment counts of remaining As Senator and 1980. years for the tax returns concern *86 far is observed, regard in this conduct respondent’s has Hatch defraud or an intent to than with negligence with more consistent willfully signed his charged respondent that IV of the indictment 304Count falsely knowing understated his year that it return for the 1978 income tax that, along argued with year. prosecution at the first trial income for that $30,000 income, alleged report the return failed to unreported other 1978 noted, II, previously Vol. XV at 3561. As Rec. Pt. bribe from Conforte. See along with the remain indictment Count IV of the prosecution dismissed regard We further note in this prior the second trial. ing counts Conforte hearing respecting at the November attorney testified R. Paul Sorenson that degree and an holds both a law Mr. Sorenson respondent’s tax returns. hearing to the Accountant. Prior accounting degree a Certified Public and is 24, 1987, the Chief Justice Mr. Sorenson advised Vegas in Las on November significance at the knowledge be of that could possessed he felt he that hearing. case, knowledge the Chief briefly his of the outlined After Sorenson hearing appro testimony at the would be concluded that Sorenson’s Justice Indeed, 3A(4). at the Conduct Canon Nevada Code of Judicial priate. See testimony. Sorenson objections to Sorenson’s hearing, were no there respondent’s tax him to review respondent had asked explained in that prepared through and that Sorenson years 1972 returns for Further, years for the 1979. for amended returns returns had overstated both the stated that Mr. Sorenson due the IRS. respondent had a income and respondent’s taxable from refund Claiborne, Transcript of Reporter’s Docket No. Bar v. See State Sorenson, Thus, according to Mr. at 59-64. Hearing of November Therefore, in the absence overpaid his taxes. respondent had in 1978 there was no basis whatsoever bribery appears it accusations Conforte’s indictment. for Count IV of the dishonesty gain. intentional for the purpose personal Respond- ent’s inattention to tax negligent obligations during years his however, does reflect on question, adversely his fitness to noted, law. as we have practice Accordingly, the conduct under- lying these counts establishes for grounds discipline.
Nevertheless, case, as in the Cochrane an important consider- ation is whether is ... a scintilla of evidence before us “[t]here to, was derelict in [respondent] any duties owed or per- for, Cochrane, formed his clients.” In re 92 Nev. at case, P.2d at In the present respondent’s 329. transgressions related solely personal to his tax and there obligations, have been no allegations respondent was ever derelict in obligations his fact, as an or as a federal attorney judge. In the numerous witnesses who addressed this court of November hearing 24, 1987, lauded lawyer. contributions as For Earl, Marion example, who until his recent death was the senior practicing attorney in Clark County highly and a mem- respected bar, ber of the observed: I do not excuse his carelessness and his in the negligence returns,
matter of his tax but I am strongly convinced that there were no wrongful intentions on his part. Claiborne, Claiborne,
I have Harry known Judge Harry since he began first of law here in practice
I have never known any attorney who worked harder at his chosen than Claiborne. profession
I join my with he colleagues feeling that has been and has suffered punished enough enough.
And myself my on behalf of I colleagues, respectfully ask this honorable body justice season with mercy.305 Dickerson, Similarly, attorney George a past president State Bar of Nevada and member of its Board of Governors years twelve stated:
Nobody in this room could tell you today that Harry Claiborne cannot handle the process behalf of individuals in our judicial system. fact,
As a matter of denying right him that well may very *87 be depriving those to whom we owe the duties to provide best, the best very among us the criminal process. That’s one of this case for aspect your consideration.306 Marshall, Attorney Edward G. former District of Clark Attorney County, by echoed these sentiments noting respondent: Claiborne, Transcript Reporter’s Docket No. Bar v. 305State Hearing at 27-28. of November 306Id. at 25. been, very ... a skilled my always experience
has that, been a fair man. only always he has adversary. But not for the welfare of his always anxious and solicitous He was game the rules of always played own clients. He time, never, anything suggest saw that would fairly. I morally me that he was unfit.307 Galatz, Trial of the Western president Neil a Additionally, past Trial Law- member of the Nevada Association and a Lawyers’ Association, Trial Governors of the American the Board of yers’ Association, the Interna- the Board of Directors of Lawyers’ that “Mr. Claiborne has Lawyers, of Trial stated Academy tional honor, himself with the utmost lawyer, as a conducted always, outstanding courage great talent.”308 Jones, Bar of of the State past president Herbert a Senator State community were Nevada, that “if this the view expressed with their assist them [respondent] to have right of the deprived this commu- be a loss to great that . . . would legal problems, witnesses remaining tendered All of the statements nity.”309 respondent’s views respecting similar hearing expressed at the legal to the dedication profession.310 above, our review of independent respondent’s As set forth of the representations corroborates professional background eminent and members of the and the bar who distinguished public of law will no practice pose stated that continued respondent’s Moreover, interest in a bar. as we public’s competent threat to observed, instance only during have is proceeding forty-year in the Nevada respondent’s approximate membership Bar, ethical fitness to law has been respondent’s practice in which in this court. The conduct formally questioned underlying rules is disciplinary unquestionably violations 307Id.at 37.
308Id.at 39. at 42. 309Id. included by respondent’s counsel remaining presented 310The witnesses Nevada; George Curran, Bar of of the State P. the President-Elect William County; Sr., Attorney Paul C. of Clark distinguished District Foley, former Nevada; M. Bar of Daniel the State Parraguirre, a former President of Kane, Defender; Markoff, J. a former Chief Edward R. Public the Federal Attorney for the United States Attorney Chief Assistant Deputy District Lee, Nevada; Vegas Metropolitan head of the Las and O. C. District Conference of of the Nevada and President Protective Association Police addition, record placed were in the written statements Police and Sheriffs. the Las Bar and editor of of the Nevada Greenspun, a member from Brian Woodburn, Bar of Sun; president of the State past Vegas Nevada; K. William Evans, Secretary-Treasurer of Nevada the Executive and Claude A.F.L./C.I.O.
223 fact, long respondent’s in addition to This atypical. isolated and his contri- private practice, in and public career distinguished and and justice of of the administration to the improvement butions heavily weigh pro representation, record of bono his exemplary Bar, v. 102 Nev. conduct. See Sloan State of his mitigation in 330, 436, 443, (1986) (suspension professional P.2d 335 726 behav- negligent instance of when isolated inappropriate license 106, Francovich, 104, 575 P.2d committed); Nev. In re 94 ior is misconduct, 931, as to (1978) opposed incident of (single 932 Parks, misconduct, re In weighs against suspension); pattern 355, (1947) (lack of prior 356 184 P.2d 64 Nev. when imposing discipline).311 action considered
disciplinary have Further, to these proceedings the parties we observe that attention facts to call to our equal opportunity afforded an been mitigation disciplinary or in aggravation and circumstances we have previously this case. As be imposed to sanction record the voluminous tendered counsel respondent’s explained, The Board was State Bar. to the proceedings the federal our and to call to that record to review an opportunity afforded pro- to these disciplinary relevant further evidence attention authority the Board’s it was within ceedings. Unquestionably, do so. Bar Counsel to instruct a review or conduct such Nonetheless, reflecting upon circumstances aggravating no jurisdictions 311‘Ourreview of the from authorities other establishes that mitigating clearly consideration of such appropriate disciplinary factors is See, Bar, proceedings. e.g., Disciplinary Perloff v. Bd. of Ala. State 424 1305, (Ala. 1982) (court disbar, So.2d 1307 reversed board’s decision to considering mitigating attorney’s long distinguished factors and career in private practice legislature, energy and the state and devotion of time and projects bar improved justice); which the administration of District of Kleindienst, (D.C. 1975) Columbia Bar v. 345 (attorney’s A.2d 148 previous, private unblemished practice public and laudable record in and determining service discipline); Disciplinary is considered in Office of Coun (Pa. 1982) Eilberg, (lawyer’s v. significant sel 441 A.2d 1197 contri servant, character, public good while a high repute, butions his and fitness to law, conviction, practice Walker, notwithstanding mitigate sanction); his re (Ill. 1977) (exemplary 364 N.E.2d public background 78 service mitigates against Marcal, suspension); sanction of Louisiana State Bar Ass’n v. (La. 1983) (in disbar, 430 refusing So.2d court noted not behavior, only attorney’s post-conviction high integrity, but his dedication to cases, legal profession, acceptance unpopular voluntary service to individuals, community organizations, groups reputation as well as his exemplified thoroughness as a dedicated advocate work whose preparation); Hensley, State ex rel. Okl. Bar v. Ass’n 560 P.2d (Okla. 1977) (court attorney’s previous concerning considered profes record rejecting attorney); sional conduct in recommendation to disbar State v. (Okla. 1966) (court Steger, 433 P.2d duty would be remiss in its if it character, carefully thoughtfully did not attorney’s good consider an reputation exemplary professional standing). were ever ten- practice continued respondent’s public impact From our own for our consideration. the State Bar dered we consider to be an review of what de novo independent, record, there is basis ample conclude that we adequate members of the bar and of the eminent the consensus endorsing at the conduct mitigation spoke who public *89 that respondent’s we conclude hearing. Accordingly, November the interests of the no threat to pose of law will practice continued bar. competent in a public Nonetheless, dis- respecting appropriate determination our that the with the conclusion does not end sanction ciplinary endangered by will not be bar competent interest in public’s correctly Bar Counsel has As practice. continued observed, proceedings professional “the of purpose disciplinary public to maintain and also public both to protect is confi- ”312 the latter to attain attempting bar as a whole. dence in the however, balance the need to carefully protect must we objective, already the retribution against the profession name of good or otherwise. See system justice the criminal through exacted 443, 330, Bar, 436, (1986) 726 P.2d 335 102 Nev. Sloan v. State received (demands through punishment were served justice of Ross, 657, Nev. In re 99 justice system); the criminal through 660, 1089, (1983) (court fact that considered P.2d 1092 668 amount of improper, to an extensive attorneys subjected had been extra- public obloquy unfair and concerted inflammatory, exacted); In re already assessing retribution legal torment 255, 328, (1976) Cochrane, P.2d 329-30 Nev. 549 92 because it inappropriate would be or disbarment (suspension Flanders punishment”); be construed as “additional only could 303, 308-9, Commerce, P.2d 87 Nev. 486 Dep’t v. State revocation of license (1971) order which affirmed (reversing 502 further warranted punishment broker because no of a real estate served); been In re already had justice where the demands of 314, 330, (1937) (retribution Reno, 1041 Nev. 64 P.2d In re justice); the demands of exacted had satisfied previously (1917) Winters, (good name 163 P. 40 Nev. guilty profes- maintained and those must be profession of an rights but consequences, should sional misconduct suffer high effort to maintain not be sacrificed in an attorney must bar). standing of the retribution far upon
Our consideration
thus
exacted
of the extent of
to be
respondent,
mitigation
discipline
Claiborne,
17294, Reporter’s Transcript
v.
Docket No.
312StateBar
added).
Hearing
(emphasis
of November
imposed, comports with the decisions of other courts faced with
the problem of attorney
For
discipline.
example, the case
Inof
re
Mauro,
(N.J.
Del
1975),
who,
ent’s conduct of true, course requires It discipline. is how- ever, that he has suffered much. He was compelled to resign his judgeship under a cloud of obloquy. Thereafter he was suspended from the practice of law for one year and later *90 required to a pay substantial fine and to undergo a custodial
prison sentence. It is impossible, as it would be wrong, not to take account of these successive instances of manifest personal disgrace and hardship with their undoubted effect upon respondent.
Id. at 326.313 Similarly, case, in the instant “we believe the principles of
fairness, justice and equity, well as a proper application of strictly legal rules ...” demand our consideration of the hard- Swartz, 1020, 313See also Matter of (Ariz. (where 1981) 630 P.2d 1026-27 attorney legal duty evidence did not establish that violated a of disclosure himself, incompetent, incapable sought because he was either or he to enrich disciplinary proceedings years, pending had been for six censure rather and Mekler, 20, suspension sanction); appropriate was In re 406 A.2d 25 than 1979) (court (Del. attorney penalty considered fact that sustained substantial judgment against litigation arising in rendered him in civil out of same facts Scott, conduct); (Ill. 1983) (in and course of In re 455 N.E.2d 85-86 light attorney’s past Attorney of evidence of service as General and State Treasurer, official, high performance and the public caliber of his as a and truth, reputation veracity, integrity excellent for and both before and after his conviction, attorney beyond year court refused to sanction the two interim Cianci, served); suspension already (R.I. Carter v. 482 A.2d 1203 1984) (severe public resulting sanction of loss of office from conviction mitigates against Hansen, suspension); sanction of disbarment or In re 584 (Utah time, 1978) (the effort, great P.2d expense, amount of criticism, publicity part attorney’s adverse official, public due in status as mitigation). is factor to be considered in humiliation, suffering mental and finan- disgrace, ship, personal as a result the federal has endured respondent cial costs which re Pray, In 64 Nev. against him. See proceedings (1947). P.2d context, suffered under a has respondent In this we observe nearly ten ever since it years, innuendo obloquy cloud of investigation he under a to the that was press was disclosed jury grand He endured three additional Vegas jury. Las grand he was before accompanying publicity and the investigations counts, four of which subse- felony on seven finally indicted ended the first trial Although to be unfounded. proved quently only on those counts proceeded the second trial a mistrial and was to the allegations, respondent put Conforte’s unrelated to all defending against the first trial during expense considerable foundation. lacking any those substantial charges including evidently that respondent significance deem it of considerable We defending and emotional burdens of subjected to the financial was as a result of allegations largely unfounded Conforte against limited number of to have been a vendetta appears what federal officials. Moreover, second conviction following respondent’s $10,000 fines, $14,000
trial, over in costs of he was assessed two-year prison seventeen months of a and served prosecution with considerable costs He further been burdened term. has During impeachment proceedings. the congressional relative to term, deprived opportu- much of his prison respondent Even after his in his chosen nity living profession. to earn release, of law until voluntarily practice he refrained from 25, 1987, allowing November him court entered its order of so. to do addition, we that when assumed observe sixty-one, up he a lucrative age gave bench at the
federal salary. reduction in Fol- and took a substantial private practice trial, he forfeited his Senate lowing impeachment financial the eventual substantial judicial salary, plus prospect enjoyed could have as a federal security respondent benefits *91 (1984).314Even See 28 U.S.C. 371 in senior status. judge § 371(a), provisions (b) (c), respondent 314Under the of U.S.C. 28 § option years have serving would had the in the fall of after ten in office attaining age retire from his office or retain “to the office but regular judge retire from active service.” A federal who chooses to retire annuity during from office receives an annual the remainder of his lifetime salary “equal receiving to the at the he was time he retired.” See 28 U.S.C. § 371(a). judge A federal who chooses to retain his office but retire from regular salary active during service receives “the of the office” the remain 371(b). der of his lifetime. See 28 U.S.C. §
227 eval- that a actuarial professional calculations precise without the to be of the loss of these benefits we deem provide, uation would old indi- seventy-year in the case of consequence considerable in a resources undoubtedly substantial expended vidual who has these circum- almost a decade. Under battle legal spanning stances, opportu- of the deprive respondent if this court were to which he has living only profession to earn a at the nity life, life, resulting his stage and at this dedicated his dere- professional of the isolated nature of his light hardship, lictions, severe. Such be extreme and disproportionately would in our determina- weighed heavily concerns have humanitarian See, 478, 480-81, Parks, P.2d Nev. 184 e.g., tion. In re 64 (1947) (court attorney sixty-nine, was took into account disabled, have been the may and that he in ill health and partly at the improper bar strike attempt victim of local association’s Winters, another); 40 Nev. 163 P. In re practices 244, (1917) (court consequences considered the serious of the attorney age could an deprive action that disciplinary himself and earning living from individual there involved and for which he in which he was trained calling in the family suited); N.Y.S.2d Matter of Tapper, best presumably was 1984) (where was convicted of (N.Y. attorney Div. App. statement, a lengthy court determined that a false written making of attor- deprivation light result in severe would suspension illness, for a support depen- and fact that he was sole ney’s age, him from had problems prevented and his personal dant son one year). for approximately practicing noted, Greenspun the statement of Brian
As we have hearing. light court’s November in the record of this included as an editor of attorney, as an Mr. Greenspun’s perspective Sun, fully we are aware although Vegas the Las through- Sun has articulated Vegas stance that the Las supportive trials, regarding his observations we consider out with deference. In this of this matter some perception the public’s stated: Greenspun Brian regard, issue, belief overwhelming among I can report
On this been that Claiborne has whom I have heard from people enough. punished that others it is clear standpoint, the precedential From little, if spent of similar offenses
who have been convicted their practice profes- and were allowed time in any, prison families but sion, and their only not themselves benefiting clients as well. their on national been impeached of them has
Clearly, not one Suffering of Americans. in front of millions television of high judicial naked by being stripped ultimate humiliation *92 the having to serve countrymen, of his fellow in front office of sentence, any form denied being prison extent of a fullest community return to a having or parole, release early judge as a federal esteem high in you once held which Harry Claiborne provided has attorney, defense respected legal in unmatched heretofore ignominy of degree with a history. heard, report which I I have sentiment public from dignity vestiges last the strip that to today, is you in a living to earn a allow him by refusing Claiborne Harry his throughout honor brought he has to which profession with not in keeping and is and cruel unnecessary life is adult which Nevadans frailty for for human tolerance the level of and envied.315 known have become Evans, of Claude the We take note of the statement also Nevada, A.F.L./C.I.O. Secretary-Treasurer Executive of the at the November which was submitted for our consideration Mr. hearing. part: Evans observed that Mr. Claiborne strongly We in labor feel organized living to continue to earn his his opportunity deserves chosen profession. if, indeed, penalty society,
We feel that he has his paid one, not continue to be persecuted he owed and should in his right profession.316 denied the to continue consideration to these given appropriate expressions We have decision assessing sentiment in our public’s impact in this state. legal profession confidence in the upon public’s at the November we many speakers hearing urged, As of the consideration to the given appropriate punitive impact have also attorney As congressional proceedings. upon respondent Sr., observed, pun- “had the terrible George Foley, respondent television, this nation on and when going ishment of before hand, own state went to shake his he United States Senator was shoved aside United States Marshals.”317 It is indeed of no little significance that endured the ignominy being the first federal in over judge fifty years to be impeached and removed from office. No less is the significant fact that respected United States Senators have expressed Claiborne, Transcript of Reporter’s No. v. Docket 315StateBar Hearing at 69-70. of November 316Id.at 73-74.
317Id.at belief that although unprecedented rules procedural employed during Claiborne impeachment may trial have comported with constitutional standards each with vesting body Congress rules, the authority to determine its own those unprecedented *93 procedures, and perhaps press Congress of Senate business as rushed to its complete agenda before election year adjourn- ment, full, fair, may well have denied respondent and mean- ingful the Senate hearing historically has accorded to others in respondent’s position. determination,
In our reaching we have further con- carefully sidered the substantial indications that adverse special and selec- trial, tive investigative, prosecutorial, and appellate procedures were imposed respondent throughout proceedings against him. This “appearance overall part as defined in impropriety,” Reinhardt, by Judge has influenced our decision not only in terms of the weight which we have accorded federal con- viction for the purposes disciplinary of these but proceedings, also in terms of the substantial anguish mental has respondent thus far endured.
Additionally, we note that a similar attorney review of discipli- nary cases in jurisdiction have respondent may reveals already suffered more retribution than the combined and criminal disciplinary sanctions previously upon any imposed individual member of the Bar convicted tax of a similar offense. In the Cochrane case for example, it does not appear Cochrane suffered any of his imprisonment as a result income tax convic- tion, nor did this court or impose disbarment. This suspension did, however, court impose monetary upon sanctions Cochrane in $4000. an amount less than A review of this court’s also files reveals an attorney case con- unreported involving an who was $10,000, victed of tax income evasion and fined to a pursuant plea of nolo not attorney contendere. did receive a sentence of imprisonment. Upon the of the recommendation Board of Bar Governors, suspended this court him from the of law for practice six months. See Order No. October He lost filed humiliation, no position and was not subjected any comparable stress, or public obloquy, and never time in prison. served Finally, we given have serious to the eloquent consideration observation of Earl Marion who reminded us that quality “[t]he strained,” of mercy is not we requested that respectfully justice “season with mercy Judge Harry in behalf of Claiborne.”318 light In of the magnitude hardship endured, retribution that we respondent has consider Mr. Earl’s eloquent plea particularly meaningful.
318Id. at 28-29.
230 of the massive a careful review analysis, after In the final attorney applicable law principles before record us that the of additional imposition concluded we have discipline, proper purpose would serve no upon respondent sanctions re In See punishment. construed as additional only could be view, Cochrane, of the retribution magnitude our supra. has the demands satisfied exacted from heretofore any repetition of against insured and has justice adequately See our review of facts. revealed attorney misconduct Ross, 335; Bar, 726 In re 102 Nev. at P.2d v. State Sloan (1983); see also Flanders v. State P.2d Nev. 668 1089 99 Commerce, (1971); In re P.2d 499 Nev. Dep’t (1937). Reno, 57 Nev. P.2d
VI. CONCLUSION remain an historical Eugene Claiborne will forever Harry conclude, had us of the record enabled If our review enigma. *94 conscience, fairly that had been prosecuted Claiborne good convicted, have severe unhesitatingly imposed we would and and trust high judicial of office given position public sanctions not Accordingly, of conviction. we do the time enjoyed he who, having criticize us for those however precipitously, fault criminal of a conviction magnitude diminished apparently Indeed, of our we have not been by “one own.”319 sustained will not that countless numbers of citizens unmindful the fact and what study ponder seriously or take the to opportunity have respecting respondent’s prose- occurred headlines beyond has conviction, office, cution, and removal from and our ultimate Thus, we are admit- disciplinary proceeding. of the disposition that court’s and motives tedly prospect troubled to the detriment of our may be misunderstood perpetually actions to system equally and in Nevada. We are sensitive legal judicial who, with an disdain existing the views some non-Nevadans conclude that prostitution, may simply and gaming legalized their moral decision was consistent with of the perceptions our are state. We thus understand that there atmosphere of our bar, the undoubtedly judiciary, within and without the those Journal, National Law December an editorial in the example, 319For edition, again lawyer in Mr. is “The that Claiborne declared: fact lawyers their It never standing protecting own. perfect example good is a Nevada, Found Fit to Practice Law In See Claiborne happened.” have should Journal, of us received a letter from December 1987. Each Law National subject outrage not to Claiborne over our decision expressing student a law “gutter as decrying our ethics” the source punishment, and further Claiborne’s relief. this state who would exact of Harry Eugene Claiborne “the farthing.” uttermost We would them if we join could what ignore the record reveals about his conviction. We would join them if we could cast aside what we must as recognize legal sound prece- dents. We may joined have them if we could have simply cast stones at him without considering human frailties that perme- ate all and all sides of this aspects case. And we could perhaps have joined them if we had disregarded of our spirit proce- dural merely rules and followed the recommendation of a disci- board plinary ill-equipped provide in-depth review of the record. most difficult of issues before us concerns the tension
between of the public perceptions integrity judiciary hand, the bar the one justice Harry individual Claiborne on the other. we concluded that if the Ultimately, cherished values of individual and due of law are to have dignity process any meaning, real our course was clear. In that we do not regard, has been denied a form of due imply process. Our concerns relate to the of the due he received. quality process Although readily we can the need to remove appreciate corrupt office, judges certainly machinery from and will exists for so it nevertheless is essential to even-handed doing, justice he assuring process or she to whom the task of that due prevails courtrooms, in the may our also feel secure benefits thereof when a criminal defendant. involved in the process in this nation’s traditions of deference to Similarly, highest dignity, presumption human we have accorded innocence record, of a crime. From the we are forced to to those accused ever meaningfully whether question presumption And we declare that our by respondent. yet, emphatically enjoyed extent, been, upon has not based what are popu- decision Hence, by way referred to as technicalities.” larly “legal illustration, not the attention to paid slightest respond- we have *95 unlawfully by was entered or allegations ent’s that his residence to secure information useful to the agents at the behest of federal officer, of judicial proof guilt, When it comes to prosecution.320 obtained, a disciplinary would have to be considered in however in the bench and bar maintaining confidence proceeding; public would demand no less. date, felon. It has Claiborne, a convicted this remains to
Harry jurisdictional nor our of this proceeding neither the nature been to which Any respondent relief alter that status. to prerogative the federal through sought must be regard in that may be entitled IX, I, 81; Pleading I, VIII, Pleading Rec. Pt. Vol. No. 320Rec. Pt. Vol. No. 105. course, We, way have no the conviction. system produced charges guilty is innocent or Claiborne knowing whether brought have therefore We caused his downfall. eventually and analyze fairly efforts and resources bear our combined attempt responsibly uphold record in an large thoroughly objec- will be those who will There duty dispense justice. our lengthy opinion of this pace track the slow tively and patiently wrong we arrived at the destina- conclude that honestly and still that our conclusions agree be those who will may There also tion. should be sacrificed nevertheless feel that are but just, public perceptions ongoing respect on the altar of there will be inevitably and bar.321And of the bench integrity who, will anew judgment prove harsh and precise those in their that “the hath ignorant Herbert’s observation George the truth of court, nor owl’s Neither this eyes.” and an eagle’s wings can disabuse those in earthly other source nor respondent, otherwise, that it were for it prefer we would category; the latter this underlying opinion, greatly principles would serve the administration of improving future discourse on well as justice. of this disposition to stress that our summary, we wish signifi- to diminish the manner be construed
matter should in no to an ordinarily which are accorded and the consequences cance 111. As we a serious crime. See SCR conviction of attorney’s however, above, this was no ordi- to set forth have endeavored Questionable investigative prosecutorial conviction. nary motivations, arguably practices unfair as well as anomalous from its incep- the record of this matter and procedures, pervade Indeed, utilized this court in resolv- very procedures tion. much recent subject hand have been the the issues at ing the members of the bar. We are among in the press discussion ultimate disposition of our regardless of the fact cognizant case, nature and the widespread public its controversial in farther inevitably it has will result engendered attention which in an to insure that such Accordingly, attempt debate. public focus, informed, debate, fact be based may upon of its regardless feelings justification. 321Such would not be without some It is clear that respondent, sitting judge, intemperate provocative both as a federal press concerning integrity in his comments to the and character of federal agents assigned bringing justice to the task of criminal elements to discussion, 19, supra, including page Nevada. textual the footnoted See Hence, totally the contention is not without material therein. reason that he, respondent invited the treatment he received and that rather than the bar, consequences provoked bench and should suffer the of the vendetta Again, may intemperate public sympathy statements. we have had some path point view reflected true and for that if the record had fair from the agitation through impeachment. respondent’s conviction and *96 we have endeavored to set anonymous speculation, rather than us, matter came before in detail the manner in which this forth legal the factual and issues resolving we procedures employed legal facts and rationale which led underlying presented In we that the doing hopeful to our ultimate conclusion. so are come to understand that we acted in and the bar will public stated frequently principles accordance with well-established disciplinary proceedings. of law pertinent professional above, we decline to additional light impose punish- by way ment Claiborne disci- upon respondent professional hereby disciplinary proceedings.322 and we dismiss these pline, JJ., Young concur. Springer, counsel, request 322Pursuantto the The Honorable John Justice, Mowbray,
C. recused himself from consideration of this case. Nev. Const. art. 4.§ *98 EXHIBIT #2
EXHIBIT #3 -hhii uttamui manocomci tii-on-« ir ux #3 EXHIBIT
EXHIBIT #4 *101 EXHIBIT #4 J., C.
Gunderson, concurring: and scholarly Steffen’s conscientious I our brother applaud and documented recita- history organized provide effort years-long pursuit in the of facts involved tion of the sequence Claiborne, Judge Claiborne various prosecutions others, impeachment the eventual conviction Claiborne himself. Nonetheless, prove by cannot hundreds of hope this court — in the many thousands of contained record pages citations to the final, complete, we arrived at before us—that have ultimate Nor we concerning saga. Claiborne can “truth” validate, everyone, that we are satisfaction of hope has at deciding 71-year-old respondent long that the “correct” in however, through Justice enough. hope, suffered I would last *102 of the historical back- Steffen’s careful and measured exposition demonstrated, least, be to folk open-minded it will ground, are bases—both in fact and in law—for our there principled be conclusion that he should not further. punished sightless tale about three men- allegorical There is a venerable them, and who by an each elephant passing dicants who sensed part anatomy. a hand touched a different of his reached out and the it pachyderm’s leg, pronounced One who contacted beggar, Another, the to be a who encountered beast’s confidently tree. side, felt to be a wall. And the question facing himself without third, trunk, any beyond who the animal’s believed doubt grasped he hold Each stated his own view great had taken of a snake. certitude, evil demons had his possessed with and wondered what obviously their fellows and them to announce false impelled A ensued the dispute beggars. claims. heated between groundless liars; no being agreement All accused the others of fools ever reached. of experienced by many,
As discussions the Claiborne case pursuit, will destined a similar fate. The certainly almost be for conviction, trials, impeachment and the data, body from which generated elephantine Claiborne has conclusions can be even perhaps diverse inferences and drawn— And, carefully although someone who evaluates the data. most by those are in the with this huge lodged data available record neither City, public court’s clerk here Carson has record, to training access to the nor the time sift and practical that, its One in the interest our weigh might argue contents. should to country, public’s surrogate undertake press analyze citizenry. Certainly, the record on behalf of the carefully demonstrate, its reveal a as Justice Steffen’s efforts contents tale— indeed, several tales—worth telling. staff, however,
I am informed this court’s for the except few token passing no one from glances, outside the court- journalist, or lawyer, lay person sought look at the record —has at all. There are those who justify their unwillingness to address or assess the facts professing notwithstanding believe— fact that Judge Claiborne was wrongly pursued years on a series of charges baseless the only fact now of importance —that him, is that the government ultimately managed to convict on evidence, very Well, tenuous of filing false tax returns. let anyone who so desires start and end his or her personal thought processes with that one fact. If the pachyderm’s tail—the conviction—is all consider, such persons wish to so be it! I will concede such persons right to their opinions although, as Bernard Baruch — once I opined, tend to think no one is entitled to be wrong or
ignorant about the facts.
In regard be, to such persons’ notions of what the law should I can only respond the authorities cited in our brother —based state, Steffen’s under the opinion established law of this —that matter, of many jurisdictions other for that our court clearly has had a more expansive and more difficult duty to fulfill than merely notice that Judge Claiborne was ultimately convicted of me, a federal offense. And it does seem to frankly many so—after laws and rules have ignored been and altered throughout federal in the system long process achieving Judge Claiborne’s conviction and impeachment the man should at least be —that entitled now to have this court adhere with fidelity to our prior precedents: precedents which dictate clearly that we should eval- uate all mitigating factors in the course of whether deciding or not, conviction, as a further and collateral consequence *103 strip away this man’s elderly only remaining means of earning a livelihood.
If each his member of this court were to set forth all of case, thoughts about this I think we would probably the quadruple I, length of Justice opinion. Steffen’s for am example, just as astounded as the Reno Gazette-Journal has been over the bargain government agents struck with a multiply-convicted brothel owner, and I hereby adopt that newspaper’s by comments refer- Gazette-Journal, ence. See Reno June Reels in Conforte Suckers, Mighty Some Big at 21A. I consider the editorial just written, cited to be as relevant today as when it was because the Gazette-Journal set forth a very cogent of how picture why and the prosecution of Claiborne was initiated and pursued. In the editorial, crucial area by covered I could not present my thoughts nearly lucidly, so although I would attempt to be less strident. The Gazette-Journal stated: incensed at the FBI were so Department
The Justice them to blinded revenge that the need Claiborne government desire. The federal burning but one everything its Strike Force Claiborne denounced could not rest after “crooks and liars.” It as “rotten bastards” lawyers without retali- other insinuations could not bear Claiborne’s ating. bait, when Conforte out dug, put it dug So to the up fishing pole. it right swallowed government support in the record that does not nothing I have discovered agents gov- further observation the Gazette-Journal’s to bother with facts.” with retaliation busy ernment were “too to— However, the Gazette-Journal seems I would not—as and the of the Justice Department all representatives condemn described newspaper I believe that the vendetta FBI. one of whom agents, a limited number by only pursued his office and Nevada under has since exited both (Yablonsky) misuse of his office and to that related to charges cloud of to a money belonging sum of large of a expropriation apparent behavior that has been dubious prosecutorial bank. As to other persecution respected one just example, revealed—for Justice Steffen in join Director Gerald Swanson—I Nevada IRS vendetta knowing not result from a the same did hoping FBI, from the indiscretions of a small or but Department Justice of the Gazette-Journal management I believe the group people. men, higher govern- the reason that better must understand ment, targeted judge because the had tolerated the abuses was that the science principle political traversed the important is, editorial. That if its implicitly recognized Gazette-Journal embarrassed,' cohesion are criticized and group members of members, and this tends to be among all of its develop tends the criticism is harsh and directed toward true when particularly as a whole. group case, in our brother Steffen’s effort to the law to apply record, foregoing he alluded to the and to the evidence in the has that have occurred to facts and ideas significant most of the other Also, have they record. to the extent studying me while us, touched upon to the case before Justice Steffen has relevance which certain unfair repel the more considerations important have tendered to the media allegations anonymous “sources” of this case- handling concerning procedural aspects been raised as issues Bar that never have allegations facts, “sources,” by distorting have Counsel—but which burning convince the media should be deemed attempted *104 nonetheless. concerns
243 so, enlarge am I therefore not As as I to do will tempted in order to extensively repel spurious Justice Steffen's work upon by have raised to the “bar sources” press non-issues which been never Issues not for our consider by preserved but Bar Counsel. ation, counsel, of are not by objection by either or motion Thus, court.1 the attacks launched normally by considered this sources,” “bar which concern through by anonymous media Counsel, by this court issues Bar notions never tendered to as all, at be no either or should considered contemporaneously case us. part of the before proper I to mention that I have now served concluding,
Before want court, this which vested with the solemn nearly years 18 on is hotly resolution for the most debated providing task final this now must which in our courts. Members of court issues arise day. per judicial to decide more than four cases gird themselves time reflect. court is no This does not leave unlimited to This relaxed, law envi- environment students longer contemplative Hand, Jr., Holmes, and Learned sion when think O. W. they and, flawed anyone to who our decisions are sometimes suggests haste, that this acknowledge my I must fear imperatives case, in the thing true. I do believe such a occurred instant is not however. here, in the In the time I have served I have participated cases, 12,000 some 30-thousand involving determination of over every litigant, their For successful litigants attorneys. or so plus least or more of things, is a In the half there loser. nature with away judgments them must dissatisfied our go —sometimes And, as profile, with a such high public so. cases desperately one, disap- number of the who will be general public this necessarily quite or incensed increases pointed, disgruntled, time, much few matters have markedly. my possessed before as the case sharply dividing public opinion potential one, this citizens in matters as controversial as Unfortunately, us. not tend vent their prevailed who find their wishes have against ad hominem this court. frustrations in attacks personal, Trustees, Co., Building 710 1See Carpenters v. Better 101 Nev. 1379, (1985) (in objection, point not considered P.2d 1381 absence 194, 248, Nevada, 192, 250 appeal); v. State of 100 Nev. 679 P.2d Whalen (1984) necessary, (objection allegedly incompetent is or court evidence 49, Mine, Brown, admissible); accept Aztec Inc. v. Nev. will same as Old 97 981, (1981) urged deemed (point contemporaneously P.2d not is 623 983 n.4, waived); City Vegas, N. 19 Capital v. Las 95 Nev. Diversified (1979) standing to master’s (appellant P.2d 148 n.4 without assert record, Fair, made); request Inc. v. no Auto failure make since (absent (1976) objection P.2d Spiegelman, Nev. court). testimony, point not later considered *105 that, reaction, kind of I wish to note of this example As one sources, who could have anonymous on the basis apparently claims, it has been repeatedly back their up substantial to nothing Judge “close friend” of Claiborne. a fact that I am a as printed totally appellation I believe such an belaboring point, Without herein. associations with my past mischaracterizes Recorder, which has legal newspaper a San Francisco The some, quoted more than objectivity on this matter with reported Wolfram, University Cornell law W. a ethicist Charles legal Judge with characterizing my acquaintance professor, and almost to be in expected at all shocking Claiborne as “not when both Gunderson community especially legal such a small — Recorder, best known figures.” are two of its and Claiborne case, knew that I Bar Counsel any at 18. In Apr. he never saw fit to myself, I not disqualify believed should any my disqualifica- motion by tendering raise the question tion, by law. provided in the manner view, of my to sit either because disqualified I was not my Claiborne, or because I had testified to Judge Active “closeness” trial, in his first about matters as a fact witness subpoena under any nor were to subject neither remained at issue which later by out easy way I could have taken the Obviously, question. law, positive under Nevada I had a But disqualifying myself. myself concerning as to matters disqualify not to obligation Now, course, myself disqualified. not believe which I did of his are not subject disqualification own views on the judge’s statutes, either side Under Nevada counsel for authority. the final assessment of such an issue formal judge’s may question so, course, I would have been Bar Counsel had done motion. If held hearing, views in a my public afforded a chance to present 1.225(4). No motion for disqualification to NRS openly pursuant has ever been filed.2 media outlet has printed speculations— another
Again, court contrary basis and to fact—that this has without altogether Court, the case of Ham v. District regard, particularly to I refer 2Inthis (1977), Supreme Court of Nevada in which the Nev. 566 P.2d judge disqualifying himself prevent a from prohibition to issued a writ of when, was no doing, he had stated he felt there voluntarily in so in a case words, judge not free court held that a is other him to do so. In cause for cause, thereby shirking voluntarily, good over without disqualify himself matter. If he obligations in a contentious or difficult judge own to another duty judge under Nevada law to disqualified, the has a himself does not deem authority. by other until he is removed presiding, unless and continue “duty to sit concept, which has been called The aforedescribed doctrine,” recognized federal It is also to Nevada law. peculiar is not fact, denying and, the doctrine in Hoffman referred to Walter courts See, VI, I, e.g., Rec. Pt. Vol. Pleading No. disqualification. requests for his been feet” in regard its an in this “dragging producing opinion Quite matter. I Justice contrary, opinion as believe Steffen’s obvious, makes we have given maximum effort and priority trying to the demands of for a full satisfy history and documented analysis facts and the relevant law. The pertinent problem has not formulating opinion support- this matter been that ing data are as it has been but are sparse, hypothesized, they so many.
And to take example, gone a final another media outlet has so far as to its suggest to readers —without facts to justify notion, of course—that the members this court think perhaps Well, as a I Harry *106 Claiborne “hero.” do not regard hero; Claiborne nor anyone as a do I know on who this court does. Claiborne Certainly, Judge precipitously acted the man- tormentors; ner in which he retaliated his he was verbally against affairs; at least negligent handling thereby his he left personal himself he a vulnerable—and has terrible these paid price for lapses.
Yet, while I would not to tender certainly seek Claiborne hero, to the world as a I will that if the man been suggest had a quitter he goes “rolled over” as the capitulated, saying —had courthouse circles—so that the facts background pursuit of his obscured, and prosecution remained forever it could have been Indeed, extremely for the bench unfortunate American and bar. it could have been most for of the unfortunate America. One greatest country bulwarks for freedom in this is our independent, therefore, life-tenured It judiciary. vitally federal is important, for the gain notion never to credence a United District States Court easily can be judge targeted, destroyed. discredited and Whenever effort such an to discredit and a is destroy judge federal undertaken, I it is any think essential that facts concern- suspect Hence, ing the shall be made known. undertaking through say Claiborne’s will stubbornness—I not whether his resistance should be he courage suggest called has and is impelled, —I impelling, an examination of the which important processes by indictment, conviction were achieved. impeachment anonymous
While I me suppose may castigate “sources” it, that, even will offering I close the idea because tendering of the federal is so it independence judiciary may important, be fortunate country’s system for our checks and balances that States targeting pursuit judge United District Court here in not question has ended with his total annihilation. There is no doubt that the pursuit began whatever with a fixed purpose— but without evidence whatever—that the United Dis- any States trict Court be destroyed. totally should was judge pursuit goal-oriented that end. The notion of tax had not charges toward of, something to find when the effort began
even been dreamed
any prosecution!
a
justify prosecution,
ended,
any
culminate with
it did not
when the pursuit
And
namely,
which it
premise
affirmation of
clear
started —
rather, it
corrupt but,
Court
judge
United States District
—
that,
Hatch
Senator Orrin
a
of data
as
ended with
collection
negli-
with
of mere
finding
more
argued, is
consistent
cogently
these
culpability.
of criminal
than
inference
with
gence
circumstances,
conclusion that the final
majority’s
in the
I concur
history
in American
episode
of this unfortunate
denouement
destruction of
judge
be
total and complete
not
should
citizen.
being
as a productive
human
OF: RUPERT
the CRIMINAL CASE
In the Matter
TROISI,
INSUR
PONDEROSA
HARRIS and RALPH
BONDS,
A-1 BAIL
SURETIES
ANCE COMPANY and
Appellants,
HARRIS,
v. THE STATE
FOR RUPERT
Respondent.
NEVADA,
OF
No. 18333