State Bar of Nevada v. Claiborne

756 P.2d 464 (1988)

STATE BAR OF NEVADA, Petitioner,

v.

Harry Eugene CLAIBORNE, Respondent.

No. 17294.

Supreme Court of Nevada.

May 18, 1988.

John Howe, Nevada State Bar Counsel, Las Vegas, for petitioner.

Oscar B. Goodman, David Goldwater, Las Vegas, John S. Drendel, Reno, for respondent.

OPINION

STEFFEN, Justice:

On November 25, 1987, this court entered a preliminary order in this matter indicating that from our review of the pertinent legal authorities and the facts reflected in the record before us, we were "not persuaded that further discipline should be imposed upon respondent." See Docket No. 17294, order filed November 25, 1987. Our order indicated that a full *465 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 in this disciplinary proceeding.

The unique history and extensive interest permeating this proceeding 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 confidence in the integrity of the state bar and, by extension, the judicial system of this state. We especially invite those who are and have been content to judge the integrity and rightness of our preliminary decision by result alone to travel forthrightly and objectively with us over the expansive terrain that follows. There can be little understanding or appreciation for the destination reached by this court without surveying the path it followed.

TABLE OF CONTENTS

I. PROCEDURAL HISTORY 465

II. PRELIMINARY NOTE 473

III. THE FACTUAL HISTORY OF RESPONDENT'S CONVICTION

AND EVENTUAL REMOVAL FROM OFFICE 473

A. THE TENSION BETWEEN FEDERAL AGENTS AND THE

NEVADA FEDERAL DISTRICT COURT JUDGES 474

B. ALLEGATIONS OF INVESTIGATORY MISCONDUCT 477

C. THE FEDERAL GOVERNMENT'S BARGAIN WITH JOSEPH

CONFORTE 479

D. THE GRAND JURY INDICTMENT 488

E. RESPONDENT'S FIRST TRIAL 489

F. THE SECOND TRIAL AND SUBSEQUENT APPELLATE

AND CONGRESSIONAL PROCEEDINGS 499

1. CONCERNS AND CONSEQUENCES OF THE GRAND

JURY INDICTMENT 501

2. EVIDENCE OF RESPONDENT'S "WILLFUL AND

KNOWING" CONDUCT 504

a. THE 1979 RETURN 504

b. THE 1980 RETURN 508

3. THE JUDICIAL AND CONGRESSIONAL PROCEEDINGS 516

IV. RESPONDENTS PROFESSIONAL BACKGROUND 523

V. DISCUSSION 525

VI. CONCLUSION 539

I. PROCEDURAL HISTORY

Initially, for the benefit of the public and the bar, we will set forth in detail the procedural history of this matter in order to clarify the circumstances under which this case came before this court, as well as the process we employed in resolving the legal issues presented.

The Board of Governors of the State Bar of Nevada (the Board) first acted upon this matter in May of 1986, at their annual meeting in San Diego, California. Following that meeting, on May 27, 1986, former Bar Counsel transmitted to this court a certified copy of respondent's judgment of conviction. Additionally, Bar Counsel filed a motion, referring to SCR 111, requesting that this court temporarily "suspend" respondent from the practice of law in this state and refer the matter to the Southern Nevada Disciplinary Board of the State Bar for the sole purpose of assessing the extent of the discipline to be imposed by reason of respondent's conviction. [1] On July 9, 1986, respondent's counsel opposed the motion for temporary suspension, contending, among other things, that the State Bar had no jurisdiction to proceed against respondent Claiborne under SCR 111 because of respondent's official status at that time as a member of the federal judiciary. [2]

*466 At the time former Bar Counsel filed the aforementioned motion with this court, respondent officially occupied the office of United States District Judge for the District of Nevada. Respondent was not actively engaged in the practice of law in this state and in fact was precluded from such practice by federal law because he was a sitting federal judge. See 28 U.S.C. § 454 (1982); cf. SCR 98. The policy underlying SCR 111 is to afford protection to the public while disciplinary proceedings are pending against active, practicing members of the bar who have been convicted of criminal offenses reflecting upon their fitness to practice law. SCR 111 relates to proceedings against attorneys who are convicted of serious crimes, and does not by its terms apply to state or federal judicial officers, whose conduct in office is subject to different regulatory measures. See, e.g., Nev. Const. art. 6, § 21 and art. 7, § 3; Nev. Code of Jud. Conduct, Canons 1 through 7; U.S. Const. art. II, § 4; 28 U.S.C. § 372 (1982). Based upon an extensive body of legal authority, this court concluded, therefore, in an order filed on July 22, 1986, that the State Bar lacked jurisdiction to conduct disciplinary proceedings against respondent pursuant to SCR 111 while he officially retained the position of United States District Judge. [3] Additionally, we noted that, arguably, this court also lacked jurisdiction to proceed against a sitting federal judge. We nevertheless considered it prudent to undertake a preliminary investigation that would facilitate a fair and reasonable resolution of the matter in the event that the jurisdictional impediment was removed. We accordingly specified in our order that:

Judge Claiborne's conviction justifies this court in deferring a final decision as to our own jurisdiction and in pursuing further inquiry. Moreover, this court believes that, although the State Bar of Nevada lacks jurisdiction over Judge Claiborne, [Bar Counsel] should be permitted to aid our inquiry by presenting any pertinent evidence he may possess concerning Judge Claiborne's contentions that proceedings against him in federal court have not been conducted fairly, in accord with due process, and in a manner entitling them to credit in disciplinary action by this court. (Emphasis added.)

Thereafter, on August 4, 1986, former Bar Counsel responded to our order and *467 acknowledged that the State Bar possessed "no evidence concerning [respondent's] contentions." In our view, his response indicated, among other things, that he had filed his petition seeking respondent's temporary suspension without any substantial preliminary legal or factual research. Consequently, based on our review of the preliminary documents and materials filed by respondent's counsel, this court determined that respondent's contentions could not be summarily dismissed. See Docket No. 17294, order filed September 16, 1986; see also In re Hallinan, 48 Cal.2d 52 , 307 P.2d 1 (1957); In re Hallinan, 43 Cal.2d 243 , 272 P.2d 768 (1954) (court refused to proceed summarily against an attorney solely on the basis of judgment of conviction for "wilfully and knowingly filing false and fraudulent federal income tax returns" without first inquiring into whether facts and circumstances surrounding the commission of the offense involved moral turpitude or other misconduct warranting disbarment or suspension). Accordingly, on September 16, 1986, we issued an order directing respondent to transmit to this court an extensive supplemental record of the federal proceedings against him which would fully apprise this court of matters essential to our complete understanding of the pending issues, and from which the federal government's position and the evidence against respondent could be accurately discerned. [4]

On October 21, 1986, respondent's counsel complied with our directive and transmitted the requested record. [5] Subsequently, respondent's counsel further supplemented the record before us with a multivolume set of the "Report of the Senate Impeachment Trial Committee" containing, inter alia, the transcripts of all testimony elicited during the United States Senate proceedings conducted pursuant to the articles of impeachment returned by the House of Representatives. Upon receipt of these materials, this court directed its Central Legal Staff to review the voluminous record and to prepare a detailed memorandum summarizing and evaluating its contents.

On January 26, 1987, upon completion of our staff's review, in an effort to insure the accuracy and completeness of our staff's factual analysis, this court issued an order affording the Board an opportunity to review, evaluate, and comment upon our staff's initial, extensive memorandum. [6] *468 We requested the Board to evaluate carefully and objectively our staff's analysis "in the light of the record, so that the truth may be as fully determined as possible, to the end that we may perform our judgmental function." [7]

On February 13, 1987, the Board submitted a response to our request stating in part that the Board "respectfully decline[d] to review the Claiborne record or comment on the Central Legal Staff's analysis of it." Instead, the Board suggested that it "would support retaining an independent attorney to do so, perhaps an academic from a recognized law school who would have student assistance available to carry out the enormous task the evaluation would be." The Board also expressed its belief that disciplinary proceedings against respondent should be conducted pursuant to SCR 111 because respondent was at that time no longer a member of the judiciary. In addition, the Board stated that, in its opinion, the Bar Governors' review of the record or of our staff's memorandum "would not ... establish facts by which full faith and credit could be denied to [respondent's] federal judgment of conviction," and that the Board lacked the investigative and administrative support necessary to conduct a full hearing. [8] Nonetheless, the Board also expressed its support of those who, "at the time of Respondent's impeachment trial, called for an inquiry into the circumstances of his investigation, indictment, prosecution and conviction." Thus, the Board's response seemed to express divergent and, from our perspective, internally inconsistent viewpoints respecting our request for assistance.

In any event, the Board's equivocation finely focused the concerns and alternatives besetting our court. We could have followed the Board's suggestion and sought assistance outside the bar and the court in accomplishing the "enormous task" of further evaluation of the results of the extensive efforts of our own central legal staff. We elected not to pursue this alternative because of our confidence in the quality and objectivity of our staff's analysis of the voluminous record coupled with our dissatisfaction with the portents of delay and inefficiency inherent in obtaining a review by an academic while concomitantly referring the matter to a disciplinary board. Moreover, we were less than enthused by the Board's apparent lack of commitment to a task that could have been accomplished with paid assistance at comparatively small expense to the Bar's substantial surplus funds.

We found equally unreasonable the Board's request to invoke the machinery and pendent sanction of SCR 111. Given the exhaustive review of the Claiborne history by this court, and the disavowal of resources available to the Board to undertake the enormous task of reviewing the record and our staff analysis thereof, there was little expectancy for timely and effective review by busy lawyers sitting as an extension of the Board in the form of a disciplinary board. Although respondent was disentitled to favored treatment by the bench and bar of this state, basic fairness would not permit us to ignore the tortured history of Claiborne's prosecution, conviction, impeachment, and incarceration combined with the prospect of protracted disciplinary *469 proceedings that could, by virtue of delay alone, expand the degree of punishment well beyond the bounds of human decency and objective judicial discretion.

In our approach to SCR 111, as with any other rule of court, we are enjoined to give the rule a liberal construction "to promote and facilitate the administration of justice by the court." SCR 5. Moreover, it is beyond cavil that the inherent rule-making powers of this court also include the power to suspend or relax any court rule in order to promote individual justice. See Ashley v. Superior Court in and for Pierce County, 83 Wash.2d 630 , 521 P.2d 711, 715 (1974); 21 C.J.S. Courts § 178 (1940); 20 Am.Jur.2d Courts §§ 79, 85 (1965). See also State v. Lemme, 104 R.I. 416 , 244 A.2d 585, 589 (1968); Norton v. Standard Coosa-Thatcher Company, 203 Tenn. 649 , 315 S.W.2d 245, 249 (1958) (on rehearing). Based upon the foregoing principles, we determined that efficiency and justice would be served by suspending the operation of SCR 111, insofar as it required the court to order the suspension of respondent upon receipt of the certificate of his conviction, and to refer the matter to a disciplinary board of the state bar.

In respect of our decision not to suspend respondent upon receipt of the certificate of his conviction, we reiterate that, at that time, such suspension was arguably beyond our jurisdiction and unnecessary in any event because Claiborne was still a federal judge. At the point of respondent's impeachment and removal from office, he was incarcerated and therefore unable to practice law. Finally, as respondent's counsel observed at our hearing of November 24, 1987, respondent had voluntarily refrained from the practice of law pending this court's resolution of the question of his fitness to remain a licensed member of the bar. [9]

More important, however, was the concern to protect the public from an unfit practitioner, the underlying purpose for the automatic suspension provision of SCR 111. In this case, the purpose was satisfied by respondent's status as federal judge, incarcerated former judge and voluntary nonparticipant in the practice of law, respectively. Of equal persuasion on the issue of public safety was respondent's lengthy, exemplary record as a trial lawyer prior to his appointment to the federal bench and his subsequent felony conviction. More will be said on that subject later in this opinion. Simply stated, because the policy concern behind the suspension provision of SCR 111 was mooted, the need to suspend under the peculiar facts of this case did not exist. The danger to the public that SCR 111 attempts to foreclose was not present in this instance. [10]

*470 There were also compelling reasons for this court not to refer the issue of Claiborne's discipline to the Southern Nevada Disciplinary Board as provided under SCR 111. As previously noted, this court had commenced reviewing respondent's situation well before his removal as a federal judge on October 9, 1986. And, pursuant to our order of September 16, 1986, respondent's counsel, on October 21 and 22, 1986, provided this court and the State Bar with a complete record of the entire federal court proceedings both at the trial and appellate levels. At no time between the date of October 21, 1986, and our order of January 26, 1987, requesting evaluative assistance from the Board concerning the accuracy and completeness of our staff analysis of the record, did the Board ask this court, by formal motion or otherwise, to refer the Claiborne matter to the bar disciplinary board. Our January 26, 1987, order should have allayed any fears that this court intended to favor Claiborne with unilateral review. On the other hand, it made no sense for the court to employ an academic to research the extensive Claiborne record and our staff analysis thereof while concomitantly referring the matter to a disciplinary adjunct of the Board which, in the final analysis, could do no more than issue a non-binding recommendation to this court concerning the issue of respondent's discipline. See In re Kenick, 100 Nev. 273, 275-76 , 680 P.2d 972, 974 (1984); Haviland v. Foley et al., 55 Nev. 455, 457 , 39 P.2d 198 (1935); In re Scott, 53 Nev. 24, 38 , 292 P. 291, 295 (1930). The Board had declined to review the record on grounds of inadequate resources, and it was apparent that the Southern Nevada Disciplinary Board would have even less capacity to undertake the task. Thus, we were constrained to accept the Board's evident determination that its review of the record and the facts underlying respondent's judgment of conviction was too onerous a task to undertake, notwithstanding the precedents of this court holding that the circumstances underlying the conviction must be considered in a disciplinary proceeding. See Sloan v. State Bar, 102 Nev. 436, 440 , 726 P.2d 330, 333 (1986); In re Cochrane, 92 Nev. 253 , 549 P.2d 328 (1976). Furthermore, as previously observed, the Board's February 13, 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 of conviction. Our concerns dealt with the entire complex of circumstances underlying respondent's conviction and its impact, if any, on the nature and extent of any further discipline imposed on respondent by this court. The Board may have viewed such an undertaking as unduly onerous and futile, but we considered the effort necessary to a just disposition of respondent's future as a Nevada lawyer and citizen.

Tragically, the hallmark of Claiborne's prosecution, conviction, appellate review, and eventual removal from the bench has been an apparent unwillingness to consider all pieces of the puzzle. However imperfectly, we have forthrightly sought to assimilate and express a more complete picture of the Claiborne episode. A less thorough review by a disciplinary board would have, for respondent, merely perpetuated, as prologue, an abbreviated formula for the final blow by this court; for us it would have constituted an effort meaningless at best and prejudicial to a full public understanding and acceptance at worst. We acknowledge that our premise assumes a less thorough review by an ephemeral disciplinary board, but our keen appreciation of the extensive assets invested in our own review provides reason to the assumption. A similar investment by a small group of practicing attorneys and one or more laypersons whose attention to the task could only be intermittent would have required an entirely unacceptable length of delay. In short, our elected course was in no sense a denigration of the character, integrity, and wisdom of bar and lay members sitting on a board of discipline. Rather, it was a *471 recognition of the necessity for a substantial, consistent and prolonged effort that a temporary board is simply unequipped to handle. If, in the final analysis, due process was to have any true meaning to the 70-year-old respondent, protracted delay had to be avoided.

A familiar biblical passage insightfully declares that "the letter killeth, but the spirit giveth life." [11] We suspended the letter of SCR 111 in order to give meaning to its spirit in both the general and specific administration of justice concerning this highly complex and inordinate matter.

Finally, it is well established that, in discharging its inherent authority to discipline the bar, this court has the obligation to conduct an independent and de novo review of any record compiled in a disciplinary proceeding in order to determine whether discipline in any particular instance is warranted. See SCR 39; SCR 99(1); In re Kenick, 100 Nev. 273 , 680 P.2d 972 (1984); In re Miller, 87 Nev. 65 , 482 P.2d 326 (1971); In re Wright, 68 Nev. 324 , 232 P.2d 398 (1951); In re Scott, 53 Nev. 24 , 292 P. 291 (1930); accord McCray v. State Bar of California, 38 Cal.3d 257 , 211 Cal. Rptr. 691 , 696 P.2d 83 (1985); Matter of Nelson, 87 Wash.2d 77 , 549 P.2d 21 (1976). Thus, regardless of whatever preliminary procedures are utilized, the ultimate responsibility for arriving at the truth in disciplinary matters lies with this court. Because this court had already reviewed an extensive record in order to ascertain the existence of any facts bearing on the subject of disciplinary sanctions, and because the State Bar expressly declined to review that record, disciplinary proceedings before a factfinding panel of the State Bar in accordance with SCR 111 would have entailed, in our view, substantial delay and a needless waste of resources which in any event the Board indicated it did not possess. [12]

After this court had thoroughly familiarized itself with the factual record, we undertook to utilize such resources as were available to us to define and to proceed with the prompt resolution of the legal issues confronting us. Accordingly, on September 18, 1987, we directed Bar Counsel, Mr. Howe, as a fiduciary to this court, "to provide his objective assessment of the legal principles which should control" our review of the record. See Docket No. 17294, order filed September 18, 1987. [13] *472 On October 5, 1987, Bar Counsel submitted his response to our order, indicating that his position respecting the legal principles that should control our review of the record was substantially congruent with the position espoused by respondent. We subsequently determined, however, that the parties should be afforded an opportunity to present to this court any further argument or evidence defining their positions herein and reflecting upon respondent's fitness to resume the active practice of law in this state. Accordingly, this court scheduled a hearing on this matter for November 24, 1987, to be held in Las Vegas, Nevada. [14]

On November 20, 1987, Bar Counsel petitioned this court to open the entire record in this case to the public, including all prior confidential orders of this court, memoranda and responses thereto. Bar Counsel observed that there was substantial public interest in the case and that there had been public disclosure of portions of the record by unknown persons in violation of the established rule that bar disciplinary proceedings are confidential. See SCR 121. Accordingly, as the first order of business at the hearing of November 24, 1987, and with respondent's concurrence, the Chief Justice directed that this court's pleading file and the evidentiary records in this matter henceforth be open to public scrutiny.

We are confident that a conscientious review of the now public record of the procedural history of this unique matter will indicate that this court endeavored to conduct these proceedings in a manner consistent with the primary and well-established goals and procedures of bar disciplinary action. Further, in light of the Board's evident determination that it should take a nonadversarial stance in this matter, we endeavored to solicit, compile and review a comprehensive factual record from which respondent's position, as well as any contrary positions, could be accurately ascertained and verified. In so doing, extensive resources of this court have been expended in an effort to sift through the complex and unprecedented factual history of this matter to arrive at an equitable result not only consistent with the truth, but also with the public's right to a bar comprised of attorneys possessing the highest standards of integrity and professionalism.

*473 II. PRELIMINARY NOTE

In our preliminary decision dated November 25, 1987, we observed that the authorities cited to us by both the State Bar and respondent establish that:

(1) the paramount objective of bar disciplinary proceedings is not additional punishment of the attorney, but rather to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar as a whole;

(2) in a disciplinary proceeding, it is the duty of this court to look beyond the label given to a conviction in order to determine whether the underlying circumstances of the conviction warrant discipline;

(3) this court must also consider the isolated nature of an attorney's conduct as well as his prior, exemplary professional standing; and

(4) this court should examine the retribution and punishment already exacted in determining whether further discipline is warranted. Furthermore, humanitarian concerns such as age, ill health, or other disability warrant consideration in disciplinary proceedings.

(Citations omitted.)

We have reviewed the factual record of this matter in light of these fundamental principles. Thus, as set forth below, our review has necessarily entailed a detailed factual analysis of the circumstances surrounding Claiborne's prosecution, indictment, conviction, removal from judicial office, and personal history.

III. THE FACTUAL HISTORY OF RESPONDENT'S CONVICTION AND EVENTUAL REMOVAL FROM OFFICE

As fully discussed below, respondent was eventually indicted in 1983 by a federal grand jury in Reno, Nevada, following an extensive investigation of his activities by four separate grand juries. As Judge Reinhardt of the Ninth Circuit Court of Appeals observed:

Throughout these proceedings, Judge Claiborne has claimed that his investigation and prosecution constituted a part of an effort by the Department of Justice's Organized Crime Strike Force and the F.B.I. to discredit him personally and bring about his removal from the bench. Prior to his appointment in 1978, Judge Claiborne had been a prominent trial lawyer and had defended numerous individuals accused of committing criminal offenses. He contends that after his appointment the government launched a vendetta against him as a result of his issuance of a number of significant rulings adverse to the Department of Justice in criminal cases.

See United States v. Claiborne, 781 F.2d 1327, 1328 (9th Cir.1986) (Reinhardt, J. dissenting). To date, however, in both the federal criminal proceedings and in the Senate impeachment proceedings, respondent's attempts to obtain evidentiary hearings respecting many of his allegations relating to the investigation, the four grand jury proceedings leading to his indictment, and prosecution of the criminal charges against him, have been denied. [15]

From our perspective, respondent's inability to obtain evidentiary hearings on many of his allegations in this regard is regrettable. It is not the function of this court in the instant disciplinary proceeding, however, to sit in review of the federal proceedings resulting in respondent's conviction. Nonetheless, this court is obligated to look beyond the mere fact of respondent's conviction in order to ascertain to what extent respondent's conduct, and the underlying circumstances of his conviction, mandate the imposition of disciplinary sanctions. See Sloan v. State Bar, 102 Nev. 436 , 726 P.2d 330 (1986); In re Gross, 33 *474 Cal.3d 561, 189 Cal. Rptr. 848 , 659 P.2d 1137 (1983); In re Hallinan, 43 Cal.2d 243 , 272 P.2d 768 (1954); In re Walker, 67 Ill.2d 48 , 7 Ill.Dec. 89 , 364 N.E.2d 76 (1977). Further, we have concluded that many of the facts underlying respondent's allegations are relevant to our deliberations and are appropriately considered as factors in mitigation of respondent's conduct. See Sloan v. State Bar, supra , In re Cochrane, supra ; see also Murray v. State Bar of California, 40 Cal.3d 575 , 220 Cal. Rptr. 677 , 709 P.2d 480 (1985); In re Kristovich, 18 Cal.3d 468 , 134 Cal. Rptr. 409 , 556 P.2d 771 (1976); Carter v. Cianci, 482 A.2d 1201 (R.I. 1984).

Significantly, in an analogous context, SCR 114(3) expressly provides that a disciplinary judgment of another jurisdiction against an attorney licensed to practice in this state does not automatically require that this court impose the identical discipline. SCR 114(3) provides in part that:

[T]his court shall impose the identical discipline unless the attorney demonstrates, or this court finds, that on the face of the record upon which the discipline is predicated it clearly appears:

(a) That the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(b) That there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept the decision of the other jurisdiction as fairly reached; or

(c) That the misconduct established warrants substantially different discipline in this state.

If the court determines that any of the preceding factors exist, it shall enter an appropriate order.

This provision of our rules is derived from the United States Supreme Court's decision in Selling v. Radford, 243 U.S. 46, 50-51 , 37 S.Ct. 377, 378-79 , 61 L.Ed. 585 (1917). In Selling, the Court articulated the well-established principle that where an attorney's right to practice in federal court is in issue, the natural consequences of a judgment in a state bar disciplinary proceeding should not take effect where an intrinsic consideration of the state court record reveals either a want of notice or opportunity to be heard, an infirmity of proof establishing a lack of fair private and professional character, or other grave reasons demonstrating unfairness or injustice. Id. Accordingly, we have endeavored to set forth below all the facts disclosed by our review of the record which are relevant to the issue of the nature and extent of discipline applicable to respondent in this state proceeding.

A. THE TENSION BETWEEN FEDERAL AGENTS AND THE NEVADA FEDERAL DISTRICT COURT JUDGES

When respondent first assumed the federal bench in September of 1978, he initially was assigned to the Reno area, where he remained until late fall of 1979. [16] During his tenure on the bench in Reno, and upon his return to Las Vegas, several events transpired which respondent claims ultimately motivated some federal officials to abuse their authority in the overzealous pursuit of his criminal prosecution.

First, in 1980, Joseph Yablonsky arrived in Las Vegas, Nevada, as the Special-Agent-in-Charge of the Las Vegas office of the FBI. [17] Upon his arrival in Nevada, Yablonsky reportedly proclaimed that his mission in Las Vegas was to plant "the American flag in the Nevada desert." [18] In testimony presented to the Senate Impeachment Trial Committee, Hank Greenspun, the publisher and editor of the Las Vegas Sun, stated that he visited Yablonsky's office the "second day" that Yablonsky *475 arrived in Las Vegas. Greenspun recalled that Yablonsky had decorated his office walls with pictures and newspaper articles recounting Yablonsky's exploits in previous FBI criminal investigations. According to Greenspun, Yablonsky indicated, at that time, that a large vacant spot on his office wall had been specifically reserved for Judge Claiborne because he was "going to hang Claiborne up there." [19] Gerald Swanson, the former IRS District Director for Nevada, indicated that Yablonsky made similar comments when Swanson visited Yablonsky's office in December of 1981. [20]

Second, when respondent Claiborne returned to the Las Vegas area in 1979, an atmosphere of animosity and hostility had arisen between the federal district judges in Nevada and certain attorneys in the Justice Department's Strike Force which was investigating organized crime in Nevada. [21] For example, in 1979, then Chief Judge Roger Foley apparently suspected that Geoffrey Anderson, the chief prosecutor for the federal strike force in Las Vegas, had leaked information to the news media from sealed affidavits in a case pending in federal court. Judge Foley's criticism of strike force tactics apparently motivated Anderson to seek Judge Foley's disqualification from at least one case prosecuted by strike force attorneys. [22] In December of 1979, for example, Federal District Judge Thompson denied an attempt by Anderson to have Judge Foley disqualified from presiding over a case prosecuted by the strike force because of actual bias. In denying Anderson's motion, Judge Thompson apparently indicated that Anderson's attitude toward the sensitive problem of judicial disqualification was unbecoming an attorney for the government. [23]

The tension between the federal district court judges in Nevada and the strike force is further evidenced by events which transpired in April of 1980. Chief Judge Foley learned that insulting materials and caricatures were prominently displayed on a bulletin board in the offices of the strike force. [24] Oscar Goodman claimed the derisive items on the bulletin board were in full view of, and had an intimidating and prejudicial effect upon, members of the grand jury, as well as potential grand jury witnesses. These materials consisted of a mock man-on-the-street interview with numerous individuals including former Clark County Sheriff John McCarthy, Judge Claiborne, Judge Foley, defense counsel Goodman, and other individuals, some of whom were reputedly connected with organized crime in Nevada. [25] Sardonic responses to the question, "[d]oes organized crime really run the casinos and the State of Nevada??" appeared beneath the photographs of those depicted. In the space reserved for Judge Claiborne's photograph appeared the notation "no pictures please." Judge Foley, on the other hand, was depicted as a clown dressed in circus regalia. We do not deem it appropriate to set forth the statements attributed to those ridiculed in the item in question. We observe, however, that although the unknown author of this sarcasm ostensibly compiled it in jest, the fact that it was displayed within the confines of the United States Department of Justice, and apparently within the purview of members and witnesses of the grand jury, demonstrated an appalling arrogance, contemptuousness, and lack of decorum. On April *476 4, 1980, Judge Foley ordered United States Marshals to remove these items. [26] Thereafter, the problems between the strike force attorneys and the federal district judges became so acute as to attract the attention of Nevada's congressional delegation, the highest officials in the Justice Department, and the Clark County Bar Association. [27]

Judge Foley subsequently concluded in light of this atmosphere that he should no longer preside over cases involving the strike force. Further, respondent Claiborne was scheduled to assume Judge Foley's administrative duties as Chief Judge for the District of Nevada in May of 1980. Respondent claims that these facts, in addition to the fact that he had ruled adversely to the government's position and had criticized strike force tactics in several cases which had come before him, eventually motivated some within the strike force and the FBI to view him as an obstacle in their path, and to seek his removal from office. [28]

The difficulties between the strike force and respondent Claiborne were further exacerbated in April of 1980, when the news media began reporting that Judge Claiborne was himself a target of a grand jury investigation spearheaded by the strike force and the FBI. [29] In particular, the media reported that a grand jury was investigating allegations that Judge Claiborne prior to his appointment to the bench, had hired a Las Vegas detective, Eddie LaRue, to conduct illegal electronic surveillance in the course of a defense investigation. The Public Integrity Section of the United States Department of Justice dispatched an attorney to Las Vegas to pursue these allegations. [30] Upon learning of the grand jury activity, on April 10, 1980, Judge Claiborne publicly stated that he had been cleared of these same charges prior to his appointment to office. Additionally, he publicly denounced the strike force, called for disbandment of the grand jury, and suggested that the grand jury had been tainted by the improper tactics of some strike force agents and attorneys. Specifically, the Las Vegas Sun, in an article entitled, Judge Says Strike Force Must Go, quoted Judge Claiborne as follows:

Charging they were a "bunch of crooks," U.S. District Judge Harry E. Claiborne said Wednesday Las Vegas Strike Force attorneys should be thrown out of Nevada and their Special Federal Grand Jury disbanded.

"I think they have outlived their usefulness, and they should be removed from this community," Claiborne said. "The grand jury has become tainted and should be disbanded."

Claiborne said the strike force, which he believes is responsible for 25-30 illegal wiretaps, also conducts illegal arrests and other such far-reaching illegal activity.

"They're a bunch of crooks, and they know I know it," Claiborne angrily said. "I'm not going to let them ride roughshod over this community. I'm going to stop them." [31] *477 We note, however, that in May of 1980, Judge Claiborne voluntarily removed himself from presiding over any further strike force cases. [32] It was in this setting, then, that federal law enforcement officials pursued the first of four grand jury investigations of Judge Claiborne conducted in Las Vegas, Portland, Oregon and Reno, respectively.

B. ALLEGATIONS OF INVESTIGATORY MISCONDUCT

In the course of its investigation into the allegations that respondent and LaRue conducted illegal electronic surveillance, the Las Vegas federal grand jury subpoenaed Charles Lee in April of 1980. [33] Lee was then employed by the Las Vegas Metropolitan Police Department as a homicide investigator and polygraph operator. His testimony before the grand jury concerned a polygraph examination he had administered to respondent in 1977. Lee told the grand jury that, in his expert opinion, respondent had truthfully denied any participation in activities involving the illegal electronic surveillance into which the grand jury was inquiring. [34]

In an affidavit submitted to the federal court, Lee averred that following his appearance before the grand jury, he was summoned to the office of his superior, Sheriff John McCarthy. McCarthy informed Lee that he "had been visited by two Federal Strike Force agents sent by [FBI, Special-Agent-In-Charge Joseph] Yablonsky." According to Lee, McCarthy further stated that as a result of Lee's exculpatory grand jury testimony, Yablonsky considered Lee to be an "uncooperative witness" and that Yablonsky was going to "come down on [Lee] like a ton of bricks." [35]

Lee's attorney, Michael Stuhff, also has attested to the fact that information subsequently released to Lee pursuant to requests under the Freedom of Information Act and the Privacy Act, "confirms that Lee was targeted [for investigation] by Yablonsky because of Lee's refusal to join in or cooperate with Yablonsky's vendetta against Judge Harry E. Claiborne." [36] Lee and his attorney maintain that, as a result of Lee's testimony before the grand jury, and at the direction of Yablonsky, Lee was demoted and reassigned to a desk job answering telephones, and was further subjected to an intensive three-year investigation. The investigation into Lee's activities involved extensive covert and electronic surveillance of Lee by the FBI. Ultimately, however, the investigation was terminated having disclosed no wrongdoing upon which criminal charges could be based. [37] It can thus be inferred from the record that Lee may have suffered extensive harassment and intimidation solely because he provided exculpatory testimony to the grand jury investigating respondent.

Similarly, the grand jury investigation into the allegations that LaRue conducted illegal electronic surveillance at respondent's direction failed to result in any indictment against respondent. LaRue, however, was formally charged with six counts *478 of installing illegal listening devices. [38] These charges were unrelated to the previous allegations involving respondent. In an affidavit, LaRue has attested that after his indictment, an FBI agent advised him to "give up" Judge Claiborne. [39] Further, LaRue has averred:

The agent advised me that if I would do that, all federal charges (the indictment against me) would be dropped. I 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 could rid myself of all the expense, embarrassment, intimidation and sorrow that I had suffered and was about to suffer simply by lying against Judge Claiborne. This I pointedly refused to do and went to trial.

I went through the anguish of defending myself against these false charges in Reno Federal Court. The Government removed the trial to Reno, Nevada, 500 miles from my home, which added additional financial burden in travel expenses for myself, my attorney and witnesses. After a week-long trial I was acquitted.

This trial cost me $35,000 in attorney fees alone, to say nothing of the expense of taking my witnesses all across the State to the trial.

I was wrongfully indicted for the sole purpose of giving the FBI leverage to make a deal with me. The sole purpose and object of my indictment was to "get" Judge Claiborne. He was their target, not me. [40]

Thus, the record reveals some factual basis for concluding that despite a lack of significant evidence of any wrongdoing, LaRue suffered harsh and retributive treatment as a result of his inability to provide inculpatory evidence against respondent.

Respondent contends that additional questions concerning the propriety of his pre-indictment investigation are raised by a curious event that took place on March 19, 1981. On that date, respondent opened his monthly American Express bill and found that an American Express statement addressed to Nevada State District Judge Thomas O'Donnell was included along with respondent's. On April 9, 1981, respondent wrote to the American Express Company requesting an explanation and observed:

In the envelope containing my last billing was also the bill for Judge Thomas J. O'Donnell. It would not be surprising that someone's bill was also included with mine but our curiosity is more than aroused in view of the fact that Judge O'Donnell is my closest and best friend. For his bill to be included with mine is a very unusual circumstance.

If I were of a suspicious nature, I might suspect that someone is monitoring our accounts and replaced both of them in the same envelope by mistake. If this is true, then both Judge O'Donnell and I desire to pursue it further. [41]

Thereafter, the American Express Company replied that it could not explain the mix-up. [42]

Prior to his first criminal trial, respondent unsuccessfully moved the federal district court to dismiss the charges against him on the grounds of selective prosecution and governmental abuse. [43] Respondent attached an affidavit of Judge O'Donnell to that motion wherein Judge O'Donnell stated that he had at one time informed Judge Claiborne that Gus Gallo, a defendant convicted on gambling tax charges, was a *479 "promising candidate for probation." [44] Judge O'Donnell further attested that he subsequently obtained material indicating that the FBI had investigated respondent in connection with the sentence that respondent ultimately imposed upon Gallo. [45] On the basis of these and other facts, respondent sought an evidentiary hearing to explore the logical inference that because the strike force and the FBI were dissatisfied with the sentence imposed upon Gallo, they instituted an investigation in which mail belonging to respondent and Judge O'Donnell was illegally intercepted resulting in the mix-up of their March, 1981 American Express statements. [46] Again, however, respondent was denied an opportunity fully to explore these events in evidentiary hearings before the federal district court or before the United States Senate. [47] Nonetheless, for the purposes of these proceedings, and in our view, these factual allegations are sufficiently supported to raise serious questions about the propriety of tactics employed in the pursuit of the indictment and prosecution of respondent.

C. THE FEDERAL GOVERNMENT'S BARGAIN WITH JOSEPH CONFORTE

After the Las Vegas grand jury failed to return an indictment against respondent, officials within the Department of Justice, the FBI and the IRS began to pursue certain allegations regarding respondent's association with a notorious felon by the name of Joseph Conforte. Three subsequent grand juries were empaneled, two in Portland, Oregon, and one in Reno, Nevada, in order to investigate allegations that respondent had solicited and accepted bribes from Conforte while serving as a federal district judge. See United States v. Claiborne, 781 F.2d 1327, 1328-9 (9th Cir.1986) (Reinhardt, J. dissenting).

The first Oregon grand jury proceeding involving respondent was convened on May 11, 1982. This grand jury investigated allegations concerning respondent's involvement with Conforte in alleged violations of 18 U.S.C. § 201 (bribery of a public official), and 18 U.S.C. § 1952 (The Travel Act). The grand jury's mandate expired in December of 1982 without the return of any indictment against respondent. The second Oregon grand jury was convened on March 16, 1983. Similarly, this grand jury investigated, among other things, allegations that respondent accepted bribes from Conforte. The second Oregon grand jury also never returned an indictment against respondent. A third grand jury investigation was commenced in Reno, Nevada, in June of 1983. [48] Unlike the two prior Oregon investigations, the Reno grand jury heard the direct testimony of Conforte, and returned a seven-count indictment against respondent on December 8, 1983, one day after Conforte testified before it. [49] As detailed below, the factual history underlying the federal government's plea bargain negotiations with Conforte and the concessions that the government ultimately extended in exchange for Conforte's testimony raise additional questions about the integrity of investigatory tactics employed in the pursuit of respondent's conviction.

*480 Joseph Conforte is a well-known owner of a house of prostitution located in Storey County, Nevada. Conforte's activities in Northern Nevada historically have attracted extensive public attention and media coverage. For example, following the release in March of 1976 of a Washoe County Grand Jury report detailing Conforte's associations and dealings with local politicians, the Reno Evening Gazette and the Nevada State Journal began an editorial campaign assailing Conforte's "web of influence" in local affairs. The newspapers' editorial series spanned a period of more than three months and "was intensified in May [of 1976] after Argentine heavyweight boxer Oscar Bonavena was shot and killed outside Conforte's Mustang Ranch brothel." [50] Subsequently, three Gazette-Journal editorial writers were awarded the Pulitzer Prize for editorial writing in recognition of their insightful and constructive series condemning Conforte's influence and activities in Northern Nevada. [51] Apparently, however, the intensive public scrutiny focused upon Conforte had little effect on his local activities.

In 1977, a ten-count indictment was filed against Conforte and his wife, Sally, charging them with willfully attempting to evade and defeat employment withholding taxes in violation of 26 U.S.C. § 7201 . See, e.g., United States v. Conforte, 457 F. Supp. 641 (D.Nev. 1978), cert. denied, 449 U.S. 1012 , 101 S.Ct. 568 , 66 L.Ed.2d 470 (1980) (decision denying Conforte's motion for new trial). As the federal district court noted in the above-cited decision, Conforte is no stranger to the criminal justice system. In particular, the court observed:

1. In 1960, he was convicted of extortion by a Nevada state court and was sentenced to state prison.

2. Shortly after that conviction, he pled guilty to a federal income tax violation charge in the District of Nevada and was sentenced by Judge William Mathes to federal prison. While serving his sentence, Conforte made a motion to withdraw his plea of guilty to the federal charge. That motion was heard by Judge Thompson and was denied. The defendant was subsequently released from McNeil Island federal prison in 1965.

3. In 1968, Conforte was indicted and tried before Judge Thompson for a violation of the Mann Act, 18 U.S.C. § 2421 et seq. At the conclusion of the government's case, Judge Thompson granted a motion for judgment of acquittal.

4. In 1970, the Internal Revenue Service filed a civil complaint for condemnation and forfeiture of certain trailer houses used by Conforte in his prostitution business. Again, the matter was heard by 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 July of 1979, Conforte was again indicted in Washoe County and charged with bribery of a Lyon County public official. [53] In the meantime, the federal district court had entered judgments of conviction against the Confortes on four of the ten counts of evasion of federal employment withholding taxes. [54] The Confortes appealed those convictions and the subsequent denial of their motion for a new trial to the Ninth Circuit Court of Appeals. *481 On April 29, 1980, the Court of Appeals entered a decision affirming the judgments of conviction in the tax case, but vacating portions of the sentences imposed by the district court. See United States v. Conforte, 624 F.2d 869 (9th Cir.) cert. denied, 449 U.S. 1012 , 101 S.Ct. 568 , 66 L.Ed.2d 470 (1980). In part, the Court of Appeals concluded that although one of the five-year sentences imposed on Joseph Conforte was entirely proper, the sentences imposed by the federal district court on the remaining counts were improperly based upon a legal and factual conclusion for which there was no support. Id. at 882-83. Accordingly, the case was remanded to the district court for further sentencing. The Confortes then sought review in the United States Supreme Court, and that court denied certiorari on December 1, 1980. See Conforte et ux. v. United States, 449 U.S. 1012 , 101 S.Ct. 568 , 66 L.Ed.2d 470 (1980).

A resentencing hearing was scheduled for December 23, 1980, before the federal district court in Reno, Nevada. [55] The night before that hearing, however, Conforte fled to Mexico carrying with him "at least a half a million dollars" in cash. [56] He testified at respondent's first trial that he fled the jurisdiction of the United States in order to avoid confinement under his sentence of imprisonment. [57] Thus, at the time Conforte left the United States, he faced a sentence of imprisonment of at least five years, and possibly as much as twenty years, pursuant to his tax conviction in federal court. Moreover, Conforte faced prosecution in Washoe County, Nevada, pursuant to the indictment alleging bribery of a local Lyon County official. In connection with that pending state criminal prosecution, Washoe County District Attorney Cal Dunlap publicly avowed that in the event that Conforte was convicted on the bribery charges, he would seek an habitual criminal enhancement warranting the imposition of a life sentence because of Conforte's prior felony convictions. [58] Additionally, as a result of his flight from the United States, Conforte was indicted by a federal grand jury on March 10, 1981, for failing to appear as required by the terms and conditions of his bond in violation of 18 U.S.C. § 3150 (1). [59] The State of Nevada filed similar charges against Conforte in connection with his subsequent failure to appear in the Nevada bribery case. [60]

At the time Joseph Conforte fled the jurisdiction of the state and federal courts, and throughout the period during which he remained a fugitive from justice, the Confortes were engaged in an ongoing dispute with the IRS over the exact amount of their income tax liability, as well as their liability relating to the employment withholding taxes. See, e.g., Conforte v. C.I.R., 692 F.2d 587 (9th Cir.1982). The exact amount of Conforte's overall tax liability over the years has been difficult to assess. For example, in testimony before a federal grand jury on April 13, 1982, Gerald Swanson, the former director of the IRS for the District of Nevada, testified that since 1956 the IRS had been "working to try to get Mr. Conforte in conformance with the Income Tax laws of the United States." Swanson further testified that "Mr. Conforte arranged his tax matters in such a fashion making it virtually impossible for the Internal Revenue Service to determine his proper income." [61]

According to Swanson, beginning in February of 1978, the IRS instituted jeopardy assessment proceedings against the Confortes' assets because of the likelihood that *482 Conforte might flee the jurisdiction or place "his assets outside of the collection reach of the Internal Revenue Service." [62] Swanson further indicated that although the exact amount of Conforte's tax liability had not been finalized, as of April 13, 1982, the IRS had "liens of record of over $26 million of jeopardy assessments asserted against Mr. and Mrs. Conforte." [63]

In addition to the criminal and tax concerns facing Conforte, it is also noteworthy that at least two civil suits were pending against him in federal court at the time of his departure. Specifically, the family of the slain heavyweight contender, Oscar Bonavena, filed a civil action on May 18, 1977, alleging that Conforte's negligent supervision of an employee resulted in Bonavena's wrongful death. [64] Conforte was also named as a defendant in a civil action asserting claims for false arrest and for the violation of the civil rights of an individual arrested in connection with a fire at Conforte's house of ill repute. [65]

Under these circumstances, in December of 1980, Conforte apparently decided to avail himself of a warmer and more hospitable climate. Thus, he slipped across the border into Mexico, sojourned briefly in Acapulco and Mexico City, and eventually took up residence in Brazil, where he was free from the threat of extradition back to the United States. [66]

Before he entered Mexico, however, Conforte endeavored to test the federal government's receptiveness to a deal respecting his most pressing concern, his pending imprisonment. He telephoned Geoffrey Anderson, the chief prosecutor for the federal strike force in Las Vegas. [67] Conforte testified at respondent's first trial that he had read in the newspapers that Anderson was in charge of the strike force, and that Anderson and Judge Claiborne were "fighting" or "opposing each other." [68] Conforte told Anderson that the only thing he was guilty of was owning "a little brothel," and suggested that in exchange for "some help" from Anderson, he could supply incriminating information about Judge Claiborne. Specifically, Conforte stated, "If you want him, I will give him to you in [sic] a platter." [69]

It is unclear whether this telephone conversation with Anderson in late 1980 constituted the first contact between Conforte and federal agents intent on investigating Judge Claiborne. Specifically, Conforte testified at respondent's first trial that when he telephoned Anderson in December 1980, he (Conforte) "didn't know anything about an investigation [involving Judge Claiborne]." [70] Conforte further testified that before he left the country in 1980, he had never met a special agent for the FBI named Dan Camillo. [71] Additionally, on November 2, 1982, Joseph Yablonsky, the special-agent-in-charge of the Las Vegas office of the FBI, testified in a related case that he had assigned an agent to contact Conforte only after Conforte had telephoned *483 Anderson in December of 1980. [72]

On the other hand, respondent claims that Yablonsky had assigned special agent Dan Camillo to contact Conforte in the early summer of 1980. [73] Respondent further asserts that in the course of Camillo's visits with Conforte, Conforte was advised that Yablonsky was willing to work out a deal if Conforte would "deliver" Judge Claiborne. According to respondent, at that time, Conforte consistently maintained that "he had nothing on the judge." [74] Respondent also alleges that after the Ninth Circuit Court of Appeals rendered its affirmance of Conforte's tax conviction on April 29, 1980, Yablonsky instructed Camillo to take "one last shot" at Conforte due to Conforte's "frame of mind." Again, however, respondent maintains that Conforte allegedly indicated at that time that he knew nothing that could implicate respondent in any wrongdoing. [75]

Most of respondent's assertions in this regard appear to be based on information disclosed to reporters for the Las Vegas Sun in the late summer of 1982 by a "federal source with intimate knowledge of the operations of the Las Vegas FBI office." [76] In a hearing prior to respondent's first trial, however, two Las Vegas Sun reporters declined to reveal the official sources for those factual allegations. [77] Thus, in judging the credibility of the conflicting accounts in this regard, this court is presented with some difficulty. We feel obligated to note, however, that the reputations for veracity of Joseph Conforte, as well as Joseph Yablonsky, have at times been subject to question. In particular, as discussed below, much of Conforte's testimony at respondent's first trial and before the only grand jury to return an indictment against respondent has been discredited by substantial evidence presented by the defense.

Additionally, it seems that Yablonsky was not always as truthful, or at least as forthcoming, as one would expect in the case of a federal law enforcement official. In 1983, for example, Yablonsky was censured and placed on probation by the FBI Director, William Webster, as a result of improper inquiries Yablonsky had made to the United States Air Force about the personnel records of a candidate for state office in Nevada, Brian McKay. [78] At the time of Yablonsky's inquiries, McKay was running against Yablonsky's friend, Mahlon Brown, in a hotly contested race for the office of Nevada State Attorney General. Reportedly, Yablonsky first denied that he had made any such inquiries, then later admitted that he had done so but denied that he was fishing for disparaging information about McKay that would benefit his friend's campaign. [79] Although Director Webster characterized Yablonsky as a "highly competent and experienced field manager," Webster was also quoted as stating that Yablonsky's actions "were inappropriate and made at a time and under circumstances likely to bring into question the integrity of the FBI's inquiries." [80] Director Webster also characterized Yablonsky's *484 actions as involving "extremely bad judgment in utilizing the files of another agency to inquire about Mr. McKay for a reason I did not consider adequate or sufficient." [81] Additionally, after his retirement, Yablonsky was investigated by the FBI and a federal grand jury concerning his failure to inform bank officials that his bank account had been mistakenly credited with $40,000 as a result of a computer error. The mistaken credit apparently went undiscovered for three years until it was ultimately revealed by a bank audit. The grand jury, under the direction of the Justice Department's Public Integrity Section, declined to return a criminal indictment against Yablonsky. [82]

At any rate, it is uncontested that Conforte's overture to Anderson piqued the considerable interest of some agents within the FBI, the Public Integrity Section, and the IRS. In June or July of 1981, special agent Camillo and another FBI agent went to the residence of John Colletti, Conforte's former bodyguard. Conforte telephoned Colletti's residence from Brazil and spoke with the agents. [83] On or about this time, Conforte also engaged the services of Nevada attorney Peter Perry for the sole purpose of assisting him in his negotiations with the federal government. [84] Thereafter, during the period that Conforte remained a fugitive from justice, numerous meetings between Conforte, Perry and agents of the FBI, the Public Integrity Section and the IRS took place in Brazil, Costa Rica, and Mexico. [85]

As the negotiations between Conforte, Peter Perry and the federal agents progressed, it became clear that Conforte was demanding an expensive price in exchange for his testimony that he had bribed Judge Claiborne. For example, Conforte refused to return to the United States to testify unless the federal government guaranteed he would spend no more than one year in prison. [86] Additionally, the negotiations involved a demand that Conforte's overall tax liability be settled for approximately three and one-half million dollars. [87]

This latter demand, of course, necessitated the participation and cooperation of IRS officials in the negotiations. In an interview conducted by the Office of the United States Treasury Inspector General, the former IRS District Director for Nevada, Gerald Swanson, indicated that Yablonsky contacted Archie Banbury, an agent in the Criminal Investigation Division of the IRS, in September of 1981, and briefed Banbury on the substance of Conforte's demands. [88] Thereafter, according to Swanson, Banbury suggested that the IRS should interview Conforte in Brazil and convene a grand jury to look into the Claiborne matter. [89] Although Swanson was skeptical of Conforte's allegations because of his familiarity with Conforte's history, he gave permission for an IRS agent to go to Brazil to interview Conforte. Swanson, however, "wanted Banbury to get corroborative evidence before allowing the IRS to get involved in a grand jury proceeding as part of the `deal' being proposed" by the FBI and the Department of Justice. [90] Following the IRS agent's return from Brazil in December of 1981, Swanson remained skeptical because, in his view, no corroborating "smoking gun" evidence was presented which could justify a grand jury inquiry. [91] Further, a memorandum of Swanson's interview with the Inspector General's office *485 indicates that, based on a previous conversation with Yablonsky, it was clear to Swanson

that Yablonsky had a "Joe Louis" mentality towards disposition of tax issues. In other words, Yablonsky made it clear to Swanson that he felt that IRS could simply reduce Conforte's tax liabilities along the lines of "10 cents on the dollar" in exchange for information Conforte allegedly had on Federal Judge Claiborne (along with other concessions Conforte wanted). [92]

According to FBI Director Webster, in February 1982, the IRS received a complaint from Peter Perry alleging that Swanson may have been involved in soliciting a bribe from Conforte. Perry claimed that Peter Lemberes informed him that Alex Lemberes could arrange a reduction in Conforte's tax liability from $7 million to $3.5 million in exchange for $350,000. The IRS and the FBI then began investigating whether Swanson improperly disclosed tax information to Alex and Peter Lemberes. [93]

Subsequently, the FBI and the Public Integrity Section, assisted by agents of the IRS and Conforte's attorney Peter Perry, reportedly initiated a "sting" operation targeting Swanson, Alex Lemberes and Alex's brother, Peter Lemberes. Alex Lemberes, a close friend of Swanson, was a former Green Beret commander, a graduate of West Point and a recipient of the Army's Legion of Merit award. [94] To conduct this "sting" investigation known as "Confortescam," the FBI obtained the assistance of Conforte's attorney Peter Perry. The FBI wired Perry with electronic listening and recording equipment and dispatched him to secure incriminating evidence against Swanson and the Lemberes brothers in a conspiracy-bribery scheme. In essence, Perry's role was to entice Peter Lemberes with a substantial monetary incentive to persuade his brother Alex, and eventually Swanson, to conspire illegally to reduce Conforte's tax liability. [95] Interestingly, attorney Perry thus simultaneously served as counsel for Conforte, and as an agent for the federal government. Further, we note that just prior to these events, Perry had served as counsel for Peter Lemberes in a criminal case in Nevada. See, e.g., Lemberes v. State, 97 Nev. 492 , 634 P.2d 1219 (1981). Thus, it would appear that in assisting the FBI, Perry was motivated by more than an upright desire to uncover corruption. As Conforte's attorney, Perry had a vested interest in the outcome of the investigation. Obviously, by implicating Swanson in criminal wrongdoing, Perry could much improve Conforte's prospects of negotiating a favorable deal with the IRS.

Further, because of Swanson's skepticism about Conforte's proposed testimony incriminating respondent, and his expressed concerns about the propriety of a significant reduction in Conforte's tax liability, Swanson has asserted that federal agents may have targeted him in the "Confortescam" sting in order to remove him as "an obstacle to the `deal' that would help them `hang a federal judge.'" [96] Moreover, it has been alleged and reported that Peter Lemberes may have been targeted in the government's Confortescam sting because of rumors that he had threatened to disclose evidence allegedly linking Conforte with the killing of Oscar Bonavena. [97]

Perry's questionable undercover activities eventually resulted in grand jury indictments against Alex and Peter Lemberes. The grand jury, however, declined to indict Gerald Swanson. Although Alex Lemberes eventually pleaded guilty to a reduced charge, the press has reported that he maintains he did nothing illegal, and *486 that he only pleaded guilty in order to negotiate a lesser sentence for his brother, who faced a possible maximum sentence of twenty-five years. [98]

Swanson, although not indicted, was transferred to an IRS post in another jurisdiction. [99] A Treasury Department investigator later tendered a report condemning "the FBI-IRS sting operation as `very dangerous, misleading and poor work.'" See United States v. Claiborne, 781 F.2d 1327, 1329 (9th Cir.1986) (Reinhardt, J., dissenting). Again, as in the cases of Eddie LaRue and Charles Lee, it would appear that there is indeed factual support for respondent's assertion that in the pursuit of Judge Claiborne's removal from office, some federal agents may have overreached and abused their authority by dealing harshly, unjustifiably and apparently retributively with those who stood in the way of Judge Claiborne's prosecution.

Conforte, on the other hand, received substantial concessions from the federal and local authorities. In early December 1983, he returned to the United States and was taken into custody by federal agents. On December 7, 1983, he testified before the federal grand jury investigating Judge Claiborne in Reno, Nevada. As noted, the grand jury indicted respondent Claiborne the following day. In exchange for Conforte's testimony before the grand jury and at Judge Claiborne's subsequent trial, the Department of Justice agreed to recommend:

(1) that Conforte be resentenced in his federal tax conviction case to concurrent five-year terms on each of the four counts upon which he was convicted;

(2) that all but 15 months of each of the five-year sentences be suspended;

(3) that any sentence imposed by the court should be served concurrently with any sentence imposed on Conforte pursuant to pending charges in the State of Nevada;

(4) that the federal indictment charging Conforte with failure to appear for resentencing in the tax conviction case should be dismissed;

(5) that the Department of Justice would assist Conforte in negotiating plea agreements with regard to the charges pending against him in Nevada. [100]

On December 9, 1983, Conforte appeared in Nevada district court and entered a negotiated plea of guilty to the charge alleging bribery of a Lyon County official. [101] In accordance with the plea negotiations, Nevada District Judge James Guinan sentenced Conforte to eighteen months to be served concurrently with the sentence that Conforte would thereafter receive pursuant to his federal conviction. In addition, Conforte was fined $10,000 and forfeited $200,000 in bail. Judge Guinan dismissed the pending charge respecting Conforte's earlier failure to appear in the state action, pursuant to the district attorney's recommendation. [102]

On December 15, 1983, Conforte was resentenced pursuant to his tax conviction in a federal district court in Washington, D.C. [103] Conforte's federal tax case had been transferred from the District of Nevada to Judge Smith in the United States *487 District Court for the District of Columbia in 1982, by order of the Chief Justice of the Supreme Court, Warren Burger. [104] On December 15, 1983, Judge Smith resentenced Conforte in conformity with the terms of the agreement set forth above.

As Judge Reinhardt of the Ninth Circuit has pointed out:

The reduction in Conforte's sentence may well have violated Fed.R.Crim.P. 35, see United States v. Hetrick, 644 F.2d 752 (9th Cir.1980); United States v. Pollack, 655 F.2d 243 (D.C. Cir.1980), as well as 18 U.S.C. § 3651 (1982), not to mention the Justice Department's policy on tardy motions to reduce sentences.

See United States v. Claiborne, 781 F.2d 1327, 1329 (9th Cir.1986) (Reinhardt, J., dissenting). In the Hetrick case, cited above, the court ruled that the 120-day time limit established by Fed.R.Crim.P. 35 for reduction of a sentence is jurisdictional. See Hetrick, 644 F.2d at 756 . Further, the court stated in Hetrick :

We held in United States v. United States District Court, 509 F.2d 1352 (9th Cir.), cert. denied sub nom. Rosselli v. United States, 421 U.S. 962 , 95 S.Ct. 1949 , 44 L.Ed.2d 448 (1975), that the timely filing of a Rule 35 motion does not give a district court jurisdiction to entertain subsequent, untimely Rule 35 motions. The second motion will not be deemed to relate back to the first motion. 509 F.2d at 1356 . Nor is the jurisdictional defect cured by styling the subsequent motion as a "motion for reconsideration." Cf. United States v. United States District Court, 509 F.2d at 1356 (motion styled as a "motion for clarification").

Id. (Footnote omitted.) In Conforte's case, the Ninth Circuit Court of Appeals affirmed Conforte's conviction and five-year sentence on Count VII of the charging indictment on April 29, 1980. See United States v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012 , 101 S.Ct. 568 , 66 L.Ed.2d 470 (1980). On April 8, 1981, Judge Reed, a federal district judge for the District of Nevada, entered an order denying a motion filed by Conforte's attorneys seeking a reduction in the sentence imposed in Count VII pursuant to Fed.R. Crim.P. 35. [105] Thus, in light of the Hetrick case, it would appear that Judge Reinhardt reasonably questioned the propriety of Judge Smith's order entered in December of 1983, resentencing Conforte well beyond the 120-day jurisdictional time limit set forth in Rule 35. [106]

In regard to Conforte's tax liability, his agreement with the federal government expressly stipulated:

Mr. Conforte shall not receive financial benefit of any kind because of this agreement. The amount of any tax liability that Mr. Conforte may owe to the U.S. Treasury shall be determined between the Internal Revenue Service and/or the Tax Division, U.S. Department of Justice and himself. This agreement shall not favorably influence the determination of such tax liability. In fact, as Mr. Conforte believes, his cooperation as set forth herein has and may continue to *488 detrimentally influence the government's determination of such liability. [107]

It would appear, however, that Conforte's financial prospects suddenly improved after he began negotiating with the federal agents regarding the Claiborne matter. Conforte himself testified at respondent's first trial in March of 1984, that although the IRS at one point claimed his tax liability was in the neighborhood of $19 or $20 million, he eventually settled his "whole tax liability" for $7.3 million. [108]

In summary, our review of the factual record reveals that in the pursuit of an indictment against Judge Claiborne, federal investigators and prosecutors convened no less than four grand juries before the testimony of a convicted felon, brothel owner and fugitive from justice finally convinced the Reno grand jury panel to return an indictment. The record before us further reveals substantial indications that a limited number of federal agents overzealously pursued a vendetta against respondent and quite possibly abused the authority and the public trust vested in them by virtue of their offices. In so doing, these agents may well have utilized retributive and retaliatory tactics in an effort to discredit those who maintained a less vindictive and more balanced perspective regarding the criminal investigatory process. Finally, those agents, who for whatever reasons became intent upon the successful prosecution of Judge Claiborne, were reduced to striking a bargain with an individual whose past history and whose financial and fugitive status provided considerable incentives for him to distort the truth, as well as substantial indications that he would not be disinclined to do so. As noted hereafter, the record of respondent's first trial discloses abundant evidence that, whether or not they perceived it to be so, federal agents may well have purchased perjurious testimony in their bargain with Joseph Conforte.

D. THE GRAND JURY INDICTMENT

An analysis of the relationship between the grand jury indictment and respondent's conviction on tax counts at the conclusion of his second trial will be discussed in some detail hereafter. At this point it is important to reemphasize that the indicting grand jury in Reno was the only panel to hear the testimony of Conforte. We can only speculate as to the nature of the impact Conforte had on the members of the panel. Without the cleansing process of cross-examination and the presentation of documentary evidence to illuminate the true character of Conforte's offerings, it is conceivable that the grand jury found Conforte's testimony credible. It is also conceivable that the panel concluded that Claiborne's prior representation of Conforte as an attorney supported an inference of an ongoing association that was corrupt. As previously noted, if the grand jury believed that Conforte enriched Claiborne with bribe money, that fact alone would support two of the tax-related counts since Claiborne's tax returns failed to reflect such ill-gotten gain. In any event, it cannot reasonably be gainsaid that Conforte's testimony was the linchpin upon which the indictment was based. Despite the suspect character of the Conforte claims, as exposed during the *489 abortive first trial, the Conforte foundation was later excised leaving the Conforte-generated, but not unconnected with Conforte, tax counts, as the vehicle upon which to achieve a conviction. As will later be seen, there remains gnawing doubt as to whether the second trial was free of the Conforte taint. At any rate, the significance of the tainted grand jury indictment is an aspect of the overall circumstances we are compelled to consider in addressing the subject of Claiborne's disciplinary entitlements.

E. RESPONDENT'S FIRST TRIAL

As noted, on December 8, 1983, a Reno, Nevada federal grand jury indicted respondent on seven felony counts. Four of the seven counts of the indictment, the so-called "Conforte counts," involved Conforte's assertions that respondent had solicited and accepted bribes from Conforte. Two of the remaining counts involved respondent's income tax returns for the years 1979 and 1980. The final count charged that respondent had filed in 1979 a false financial disclosure statement to the Judicial Ethics Committee for the year 1978. [109]

On September 9, 1983, Chief Justice Warren Burger designated Judge Walter E. Hoffman, a senior judge from the Eastern District of Virginia, to preside over Judge Claiborne's trial. [110] Previously, Judge Hoffman had been specially designated by Chief Justice Burger to preside over the grand jury investigations of respondent in Portland, Oregon, and in Reno, Nevada. All of the district judges for the District of Nevada eventually recused themselves from any participation in respondent's case, and Judge Hoffman was designated after Chief Judge Browning of the Ninth Circuit requested the appointment of an out-of-circuit district judge to preside over the trial. [111] See United States v. Claiborne, 781 F.2d 1327, 1330 (9th Cir.1986) (Reinhardt, J., dissenting).

Prior to the commencement of the trial, respondent's counsel filed in excess of thirty pre-trial motions. [112] Judge Hoffman denied many of these motions without conducting evidentiary hearings respecting the factual allegations set forth therein. In the matters in which evidentiary hearings were allowed, Judge Hoffman severely limited the scope of the inquiries. [113] We are hesitant to question the propriety of many of Judge Hoffman's xrulings in this regard prior to and during respondent's trials. In particular, we do not deem it appropriate to comment upon whether, as a matter of federal law, respondent had set forth *490 sufficient allegations supported by affidavits or other evidence to establish a prima facie case entitling him to pretrial evidentiary hearings in all the matters raised. We observe, however, that from our prespective and in fulfilling our responsibility to review all the circumstances underlying respondent's conviction, it is indeed unfortunate that a more comprehensive factual record was not developed respecting respondent's claims of investigative and prosecutorial abuse. Others, as well, have voiced similar concerns regarding respondent's allegations and have suggested that investigative and prosecutorial abuses violated respondent's right to due process of law, thereby rendering respondent's conviction "the fruit of the poisoned tree." [114]

For example, shortly after the United States Senate voted to remove respondent from office, Senator David H. Pryor addressed the Senate in part as follows:

After sitting for days as a member of the impeachment committee, I have attempted to the best of my ability to fairly judge and determine the case of Harry Claiborne. I must admit to my colleagues that a month ago, I, like most Americans, wondered why we were giving him even the benefit of the doubt. As the weeks passed, after reading transcripts and listening to and observing witness after witness, I must say at this time, and during this day, that at least in my mind there was a reasonable doubt about his willfulness or his deliberate intent to defraud the Government.

But, Mr. President, there is no reasonable doubt in my mind about another aspect of this case, and that is the long arm of the U.S. Government and the abuse of power that ultimately led to Judge Claiborne's conviction.

I have concluded that he was targeted by the Federal Bureau of Investigation in a very arbitrary and capricious manner. If we have any doubts about Judge Claiborne having been a target, then I ask these questions:

Why did our Government forgive $16 million in back income taxes to a criminal fugitive named Conforte to come back from Brazil and help make a case against Judge Claiborne?

Why did Harry Claiborne, unlike most other citizens, not have the opportunity to face an IRS audit in the civil division before criminal prosecution charges occurred?

Why did one IRS agent assigned to this sting operation of Harry Claiborne become so incensed and rebelled to the degree that he refused to participate, and ultimately was demoted and sent to another State?

Why was it that after administering a polygraph test to Harry Claiborne, a test which he passed, the polygraph operator, himself, became a target of intimidation by the Federal Bureau of Investigation?

What is going on in this country when we allow this sort of practice to occur?

In the Article of Impeachment No. III, we were asked by the managers to impeach from office Harry Claiborne. Why? Because, simply, he was convicted by a lower court and a jury.

My question concerning Article III this afternoon was, how was that conviction actually obtained?

Once again, I have concluded in my own mind that had Harry Claiborne not been a target of the Federal Government, had Harry Claiborne's accountant not been intimidated by the U.S. Government, had Harry Claiborne had the opportunity to submit all evidence into the lower court decision and trial, had an appeal en banc to the Ninth Circuit Court of Appeals been granted, I believe the case of Harry Claiborne might not have been before the U.S. Senate today.

See 132 Cong.Rec. S15778 (daily ed. Oct. 9, 1986) (statement of Senator Pryor); see also 132 Cong.Rec. S15779 (daily ed. Oct. 9, 1986) (remarks of Senator Heflin expressing the view that there is "no question that most of the Members of the Senate feel that there should be an investigation by an appropriate committee pertaining to the possible overreaching by the executive branch into the judicial branch and an investigation *491 into the procedure which has been called targeting"); 132 Cong.Rec. S16824 (daily ed. October 16, 1986) (remarks of Senator Levin indicating that the "evidence clearly suggests that the Government engaged in a pattern of selective prosecution, prosecutorial overreaching, and perhaps intimidation of witnesses and other improprieties"). Such concerns ultimately prompted the United States Senate to adopt a resolution on October 18, 1986, calling for hearings before the Senate Judiciary Committee on procedures for protecting citizens against improper investigations and prosecutorial practices. See S.Res. 514 (99th Cong., 2d Sess., 132 Cong.Rec. S17058 (daily ed. Oct. 18, 1986)).

One of the most troubling allegations in this regard concerns the possibility that prior to Conforte's grand jury appearance and respondent's first trial, some federal agents involved in respondent's investigation and prosecution may have known or had substantial cause to suspect that Conforte's bribery allegations were false. The possibility that this occurred has significant implications. It is arguable, for example, that Conforte's grand jury testimony may have had a contaminating effect upon the only grand jury to hear his testimony and to return an indictment against respondent. Arguably, the entire indictment may have been tainted by Conforte's testimony, including the counts seemingly unconnected with Conforte's allegations. Moreover, if indeed all the counts of the indictment returned by the grand jury were infected by the testimony of Conforte, and the government had reasonable cause to suspect that Conforte's testimony was perjurious, then it may be appropriate to depreciate the substantial respect and weight normally accorded a judgment of conviction for the purposes of disciplinary action. See SCR 114; Selling v. Radford 243 U.S. 46, 51 , 37 S.Ct. 377, 379 , 61 L.Ed. 585 (1917). Although respondent was eventually convicted on the tax counts alone and those counts were seemingly unrelated to Conforte's allegations, we must question whether an indictment on any of the counts would have been returned, or whether any prosecution whatsoever would have gone forward in the absence of an investigative and prosecutorial mind-set bent on prosecuting respondent at all costs, and in the absence of Conforte's contaminating and infectious allegations disparaging respondent's integrity. See, e.g., Mesarosh v. United States, 352 U.S. 1, 14 , 77 S.Ct. 1, 8 , 1 L.Ed.2d 1 (1956) (where government informant had given false testimony, Court concluded that informant had "poisoned the water in this reservoir, and the reservoir cannot be cleansed without first draining it of all impurity"). Conforte's allegations and testimony underlying the first count of the indictment, and the manner in which the prosecution proceeded on that count, are particularly troublesome in this regard.

Specifically, Count I of the indictment alleged:

Between on or about December 14, 1978 and December 15, 1978, in the District of Nevada, the Defendant, HARRY EUGENE CLAIBORNE, being a public official, that is a United States District Court Judge for the District of Nevada, directly and indirectly, corruptly asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive for himself a thing of value, that is United States currency in the amount of $30,000, from Joseph Conforte, in return for being influenced in his performance of an official act, that is the decisions and rulings ... with regard to two consolidated motions to quash grand jury subpoenas then pending before him, said motions captioned, In the Matter of Application of Olga Irene Karaway For an Order to Show Cause, Misc. R-78-36, and In Re Grand Jury Subpoena Served on Sessina Lowe, Misc. R-78-35; in violation of Title 18, United States Code, Section 201 (c). [115]

(Emphasis added.) Prosecutions under 18 U.S.C. § 201 (c) (1982) (bribery of public officials) are governed by 18 U.S.C. § 3282 (1982), which provides:

Except as otherwise expressly provided by law, no person shall be prosecuted, *492 tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

In general, the period of limitations imposed by this statute begins to run at the moment the crime is complete. See United States v. Coia, 719 F.2d 1120 (11th Cir.1983), cert. denied, 466 U.S. 973 , 104 S.Ct. 2349 , 80 L.Ed.2d 822 (1984). Because the grand jury did not indict respondent on Count I until December 8, 1983, and because of the five-year limitation provision established by 18 U.S.C. § 3282 , the government was necessarily restricted to proof that the alleged bribery occurred after December 8, 1978.

In this respect, respondent has observed:

In one of the first interviews with FBI agents, CONFORTE related that the bribery scenario in Count I occurred in late November, 1978. At the trial, CONFORTE testified as to whether he had told the FBI the event occurred in late November, 1978: "Could be." CONFORTE testified he is "not sure he did not state late November," he just didn't recall... . The time of this scenario would not have been acceptable to the prosecution because the asserted offense would have been barred from prosecution by the applicable statute of limitations. [116]

At the trial, however, Conforte testified that on the evening of Monday, December 11, 1978, he was at his home watching football when he received a telephone call from Judge Claiborne. According to Conforte, Judge Claiborne requested him to "come up to my place tomorrow night." [117] Conforte further testified that on Tuesday, December 12, 1983, he made arrangements to drive a "ladyfriend's" car to respondent's Reno apartment where he met with Judge Claiborne later that evening at approximately 8:00 p.m. to 9:00 p.m. [118] Conforte further testified at trial that the following events then transpired:

1. Respondent escorted Conforte into a kitchen-dining room area and Conforte sat down and faced respondent across a table, or a counter separating the dining area from the kitchen. [119]

2. Judge Claiborne gestured or indicated that his apartment might be "bugged" and wrote a message on a yellow pad of paper and passed it to Conforte stating, "I need $30,000 and don't worry about your case." Conforte read the message and wrote in reply "Which case?" The judge replied, again in writing, "The subpoenas." [120]

3. Conforte then wrote back "I don't have it with me, I will bring it tomorrow." According to Conforte, the judge then "shook his head meaning it was okay," burned the paper upon which these communications were written, and washed the ashes down the kitchen sink. [121]

4. The following day, on Wednesday, December 13, 1978, Conforte claimed he "got together" $30,000 in cash partly from the receipts of the brothel and, "to the best of [his] memory," from cash he had available in a safe deposit box at the Nevada National Bank in Sparks, Nevada. [122]

*493 5. Later, on the night of Wednesday, December 13, 1978, Conforte claimed that he went back to Judge Claiborne's Reno apartment and personally delivered the $30,000 to the judge. [123]

Thereafter, at respondent's trial, the defense elicited testimony and presented evidence conclusively establishing that the events described in Conforte's above-referenced testimony simply could not have occurred on two successive days during the week in question.

First, it was established at trial that the Conforte story described above could not have occurred because Conforte was not even in Reno, Nevada, on December 12, 1978, the night that Conforte claimed he first visited respondent's apartment and respondent had allegedly solicited a $30,000 bribe. Specifically, an employee of the United States Department of State testified that a review of official passport records revealed that Conforte personally applied for and picked up a passport on an emergency basis in New York City on December 12, 1978. The passport official further testified that if another person had picked up the passport for Conforte there would have been a letter of authorization. Apparently, the official records revealed no such letter. [124] Additionally, Conforte's passport records indicated that he entered Brazil sometime between and including December 13 and 18, 1978. [125] It should be noted that, at one point in his testimony, Conforte himself acknowledged that he personally had obtained a passport in New York City, on an emergency basis. [126]

Second, an operations manager at Nevada National Bank testified that "firm and solid" procedures of the bank required customers wishing to gain access to their safe deposit boxes to sign an entry ticket before they would be allowed such access. [127] The operations manager further testified that she personally conducted a search of the bank's records of the entry tickets of Conforte's safe deposit box and found that the records indicated that Conforte had not accessed his safe deposit box between December 5, 1978 and December 15, 1978. [128] As respondent noted in a motion to dismiss the indictment against him filed shortly before the second trial, the government had knowledge of these bank records prior to the first trial. [129]

Third, FBI Special Agent Wick testified at trial that his investigation of the apartment complex where respondent resided in 1978 revealed that some studio apartments in the complex contained a long counter at which a person could sit and which divided the open areas of the apartments from the kitchen areas. Such an arrangement would have been consistent with Conforte's description of respondent's apartment. Wick testified, however, that he did not find such an arrangement in the apartment in which respondent resided. [130] Further, the manager of the apartment complex testified that respondent's apartment did not have a bar, or a counter of any kind where persons could sit *494 on either side and look at one another. [131] Thus, the defense established that the floorplan of respondent's apartment was simply not as Conforte had described it in his sworn testimony.

It is apparent from the foregoing evidence that it was quite conclusively established at respondent's first trial that the bribery scenario alleged by Conforte could not possibly have occurred on the dates in question. [132] Moreover, because Conforte's passport revealed that he was clearly not in the United States after December 18, 1978, and because the statute of limitations required the government to prove that the bribery occurred after December 8, 1978, the prosecution was necessarily restricted to proof that the alleged bribery occurred between December 8, 1978 and December 18, 1978.

In addition, it was established at the trial that Judge Claiborne ultimately ruled in favor of the government and against Conforte's interests in the matter involving the subpoenas which Conforte claimed was the basis of the alleged $30,000 bribe. Specifically, in April of 1979, Judge Claiborne denied the motions filed on behalf of the two Conforte employees seeking to quash the service of the grand jury subpoenas. [133] Further, Leland Lutfy, the assistant United States Attorney who handled these subpoena matters for the government, testified that he observed nothing "irregular on the part of Judge Claiborne in his handling of [the] case." [134] Thus, Judge Claiborne's actual rulings in that matter were not favorable to Conforte's best interests.

As we previously indicated, the untruthful nature of Conforte's allegations underlying Count I of the indictment posed inherent difficulties of proof for the prosecution, which suggest, at the very least, that the prosecutors had reasonable cause to question the veracity of Conforte's scenario prior to trial. Interestingly, respondent's counsel has observed that during Conforte's grand jury testimony "not once ... was [Conforte] ever asked ... to state the day, the day of the month, or even the year, when the scenario of Count I was supposed to have occurred." [135]

Moreover, the record reveals that the prosecution had considerable difficulties in pinpointing the exact dates that the offense in Count I allegedly occurred. In particular, the record reveals that the government prosecutors served three successive amended demands for notice of alibi upon respondent prior to trial. See Fed.R.Crim.P. 12.1(a) (upon written demand of attorney for the government, the defendant shall within ten days serve upon the government's attorney a written notice of the defendant's intention to offer a defense of alibi stating the specific place at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which the defendant intends to rely). On January 23, 1984, for example, the government notified respondent's counsel that it "believe[d] the evidence [would] establish" that the offense alleged in Count I occurred at respondent's Reno apartment, " [b]etween approximately 6:00 p.m. and 11:00 p.m. on December 14, 1978; and between approximately 6:00 p.m. and 11:00 p.m. on December 15, 1978. ..." [136] In response, respondent submitted a notice of intention to offer the testimony of Mary Hilt, the official court reporter in 1978 for the federal court in Reno, Nevada. Respondent indicated that Ms. Hilt would testify that she was with respondent from approximately 7:00 p.m. to 10:00 p.m. on December 14, *495 1978. [137] Later, at the trial, Ms. Hilt did in fact testify that on December 14, 1978, she drove respondent to his apartment at the end of the workday, and later, at approximately 7:00 p.m. to 7:30 p.m., she picked up respondent at his apartment and drove him to a car lot in Reno. Further, Ms. Hilt testified that she and respondent later dined together at a Reno restaurant, and that she returned respondent to his apartment that evening at approximately 10:00 p.m. [138] Similarly, respondent's counsel submitted a notice of intention to offer the testimony of numerous witnesses as well as evidence obtained from airline records establishing that respondent was in Las Vegas, Nevada, at the time in question on the night of December 15, 1978. [139]

Thereafter, after investigating the evidence revealed in respondent's notice of alibi, on March 9, 1984, two days after respondent filed his notice of alibi, the prosecution filed a "Second Amended Demand For Notification of Intention to Offer Alibi Defense." [140] In this demand, the prosecution asserted that "recently conducted government interviews and investigation [had] revealed that the crime alleged in Count I ... may have occurred on days immediately preceding the December 14-15 cited dates cited in the indictment." Accordingly, the prosecution amended its demand for notice of intention to offer an alibi to the offense charged in Count I, to include the hours of 6:00 p.m. through 11:00 p.m. on the dates between and including December 12, 1978, and December 15, 1978. [141] On March 12, 1984, the date that the jury selection for the trial was set to commence, the prosecution filed a third amended demand, once again enlarging the time frame to encompass the period between and including December 11 and December 15, 1978. [142] These events suggest that Conforte's position was sufficiently flexible to shift with the strength of respondent's alibi evidence.

A hearing before Judge Hoffman was conducted just prior to the start of the jury selection on the morning of March 12, 1984, relating to the propriety of the government's second and third amended demands. At this hearing, respondent's counsel represented to the court that substantial time and resources over a period of six weeks had been expended in an attempt to piece together respondent's whereabouts on the particular dates of December 14 and 15, 1978, in reliance upon the government's indication that it would attempt to prove the facts alleged in Count I specifically occurred on those dates. [143] Further, counsel represented that the defense team had expended substantial time preparing the opening argument to the jury which would stress the fact that respondent could effectively refute the government's allegations that the alleged offense occurred on December 14 and 15, 1978. [144] Counsel also articulated the substantial time and difficulties involved in trying to refresh the recollections of potential witnesses who might have been able to assist respondent in reconstructing and establishing his exact whereabouts during an entire week over five years before. Finally, counsel argued that severe prejudice to respondent's defense would occur if the prosecution was allowed to expand the time frame of the alleged offenses in accordance with its lastminute demands. Accordingly, defense counsel urged the court to hold the government to proof that the offense alleged in Count I took place as originally represented by the prosecution. Alternatively, defense counsel requested a two-week continuance of the trial so that respondent could effectively investigate and discover respondent's whereabouts between and including December 11 and December 15, 1978. Counsel observed that "[i]t's not just a *496 question of responding [to the government's amended demands], ... it's a question of being properly prepared to defend the case." [145] Judge Hoffman ultimately ruled, however, that although respondent should not be required to respond to the government's new demands within the time frame provided in Fed.R.Crim.P. 12.1, the prosecution would not be limited to proof that the alleged offense took place on December 14 and 15, 1978. The judge also denied respondent's motion for a continuance. [146] Prior to the ruling, the prosecutor objected to the continuance, noting that the actual presentation of respondent's case would not "even start for a period of three weeks" and that respondent would have "a full week to conduct any investigation he needs." [147] Judge Hoffman, in refusing the two-week delay, stated, "All right. It's your responsibility. I'm not going to worry about it." [148] Thus, the issues of fundamental fairness and due process of law were left to another time and another court. However, the issue relating to Judge Hoffman's refusal to grant a continuance was ultimately rendered moot when the jury at the first trial could not agree upon a verdict as to any of the seven counts upon which respondent was indicted, and when the prosecution elected to proceed only on the counts unrelated to Conforte's allegations in the second trial. [149]

Although prosecutor Shaw specifically represented to Judge Hoffman that no prosecution witnesses had changed their stories in light of the notice of alibi provided by respondent, it strains credulity to suppose that at some point, in the course of these events and prior to the commencement of the first trial, the prosecution did not begin to suspect that the difficulties it was encountering in terms of proof might well have stemmed from a senario that was simply not verifiable in truth. Nonetheless, in spite of these obstacles the government prosecutors insisted upon sending to the jury the counts based upon the obviously suspect accusations volunteered by Conforte. [150] See United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir.1974) (prosecutor who discovers perjury by a grand jury witness after indictment must inform the defendant, the trial court and the grand jury so that the indictment can be cured); see also United States v. Bracy, 566 F.2d 649, 655 (9th Cir.1977), cert. denied, 439 U.S. 818 , 99 S.Ct. 79 , 58 L.Ed.2d 109 (1978).

The defense did not discover the evidence establishing that Conforte was absent from the Reno area on December 12, 1978, until well after the first trial had begun. [151] Prior to the discovery of that information, however, the defense had subpoenaed a member of this court to testify as to his personal knowledge of certain facts at respondent's first trial. [152] Pursuant to that subpoena, on March 30, 1984, this court's *497 present Chief Justice, E.M. Gunderson, testified that he and Judge Claiborne had dinner together at a hotel in downtown Reno, Nevada, on December 12, 1978, and that he was with Judge Claiborne from approximately 7:30 p.m. to 11:00 p.m. on that particular night. [153] Quite apart from Chief Justice Gunderson's testimony, however, it was conclusively established that respondent could not possibly have solicited a bribe from Conforte on the night of December 12, 1978, because, as the United States State Department official unequivocally confirmed, on December 12, 1978, Conforte was in fact in New York City picking up his passport.

On April 13, 1984, after a lengthy trial and prolonged deliberations, the jury announced that it was "hopelessly deadlocked" and was unable to come to a unanimous verdict on any of the seven counts charged in the indictment. Accordingly, Judge Hoffman declared a mistrial and ordered that the case be retried. [154] Judge Hoffman further directed that the retrial would commence on July 31, 1984. [155]

On June 27, 1984, the prosecution filed a motion seeking to dismiss the "Conforte counts" of the indictment. [156] The prosecution expressed the belief that the evidence presented in the first trial relating to the "Conforte counts" may have "distracted the jury in its consideration of [the remaining counts] and contributed to its inability to reach a verdict...." [157] Thus, after subjecting respondent to prolonged grand jury investigations and a lengthy, sensational trial based on Conforte's accusations of bribery and corruption, all accompanied by extensive media coverage, the prosecution finally, impliedly admitted that Conforte's allegations lacked substance. [158] Nonetheless, in light of the intense publicity surrounding the allegations of bribery and corruption of a federal judge by a brothel owner, respondent's reputation and integrity were sullied notwithstanding the jury's failure to convict on any of the counts at the first trial. The allegations of corruption reported in the media were given added credence by the prosecution's refusal to recognize explicitly the questionable veracity of Conforte's accusations, by its continued adherence to the terms of the Conforte bargain, and by the failure to seek the criminal prosecution of Conforte on charges of perjury. In our view, given the conduct of the prosecution and the intense media scrutiny of the evidently false bribery accusations, there can be little doubt that the public's perception of respondent's character and integrity was severely diminished within the Reno community. This publicity may well have affected respondent's ability to obtain a fair second trial from a jury untainted by the spurious allegations linking him with a notorious brothel owner and attacking his honesty and integrity. See, e.g., United States v. Claiborne, 765 F.2d 784, 800 (9th Cir.1985), cert. denied, 475 U.S. 1120 , 106 S.Ct. 1636 , 90 L.Ed.2d 182 (1986) (discussing trial judge's refusal to excuse two trial jurors for cause thus requiring defendant's use of peremptory challenges); see also Rec.Pt. IV, Vol. I, Pleading No. 3 at 34-39 (Claiborne's opening brief on appeal citing voir dire testimony of the two prospective jurors in question). Although the prosecution's decision no longer to pursue the "Conforte counts" in the second trial prompted media criticism of the prosecution's tactics, the damage to respondent's public image undoubtedly had already been done. [159]

*498 The costs of defending against the false Conforte accusations must be calculated not only monetarily but also in human terms taking into account the substantial opprobrium and obloquy to which respondent has been exposed. As we discuss in more detail below, these factors are relevant to our deliberations in the instant matter and are appropriately considered in mitigation of any conduct warranting discipline. See In re Ross, 99 Nev. 657, 660 , 668 P.2d 1089, 1092 (1983); Carter v. Cianci, 482 A.2d 1201 (R.I. 1984). Further, we may appropriately consider whether respondent obtained an impartial evaluation in the second trial from a jury untainted by the Conforte allegations of corruption and dishonesty in assessing the weight to be accorded respondent's conviction for disciplinary purposes. SCR 114; Selling v. Radford, 243 U.S. 46, 51 , 37 S.Ct. 377, 379 , 61 L.Ed. 585 (1917).

One of the most compelling reasons for focusing at length on the Conforte aspects of the Claiborne prosecution is because it is cogently arguable that in spite of an unrelenting prosecutorial commitment, no criminal indictment would have issued without the facile foundation supplied by Conforte. [160] Although our record does not include transcripts of any of the grand jury proceedings, it is strongly inferable that government allegations of Claiborne's failure to report the Conforte bribe money on his tax returns infected the grand jury proceedings in both Oregon and Reno. In fact, it appears from our overall survey of the record available to us, that the tax counts evolved from the Conforte nexus to the ultimate case that was unmoored from its initial Conforte foundation. This evolution of the tax counts has great significance, it seems, for it fairly implicates an entirely different scenario for Claiborne that would have altogether obviated the criminal indictment and conviction. Although we will hereafter examine in some detail the 1979 and 1980 tax returns relevant to Claiborne's criminal conviction, suffice it to observe here that absent the patently criminal nature of the alleged Conforte involvement in Claiborne's generation of taxable income, other, more reasonable circumstances and inferences likely would have prevailed. For example, the record reflects, as we will hereafter specify, that Claiborne's 1979 and 1980 tax returns were legitimate prospects for a civil audit by the Internal Revenue Service. In the context of a civil audit, it appears beyond speculation to suggest that Claiborne's former tax accountant and C.P.A., Joseph C. Wright, would have approached the subject of his former client's taxes much differently than he did in the criminal arena. [161] As will be *499 seen hereafter, there is substantial evidence to support Claiborne's contention that he never concealed income from his accountants or otherwise sought to evade payment of his tax obligations. The Conforte connection simply cannot be ignored in any fair analysis of respondent's predicament, including his entitlement to further discipline by this court.

F. THE SECOND TRIAL AND SUBSEQUENT APPELLATE AND CONGRESSIONAL PROCEEDINGS

On July 10, 1984, Judge Hoffman granted the prosecution's unopposed motion to dismiss the first four counts of the indictment pending against respondent. [162] The second trial thus proceeded on only those counts involving respondent's income tax returns for the years 1979 and 1980, and the count pertaining to respondent's judicial financial disclosure report for 1978. Once again, respondent filed pretrial motions attacking the validity of the entire indictment because of investigative and prosecutorial misconduct. In addition, respondent argued that the entire indictment should be dismissed because the perjurious testimony of Conforte had unfairly prejudiced the indicting grand jury. Respondent renewed his requests for evidentiary hearings and discovery on his allegations of governmental abuses. [163] Further, defense counsel sought the recusal or disqualification of Judge Hoffman from further participation in the case, alleging that the judge had demonstrated bias against respondent in the first trial. [164] Judge Hoffman subsequently denied these pretrial motions and, thereafter, the retrial commenced on July 31, 1984. [165]

On August 10, 1984, the jury in the second trial returned guilty verdicts on the two income tax related counts. Respondent was acquitted on the charge that he had submitted a false judicial financial disclosure report. [166] On October 3, 1984, Judge Hoffman entered a judgment of conviction, pursuant to the jury's verdict, and sentenced respondent to serve two years in federal prison on each count, the terms to be served concurrently. Respondent was also fined a total of $10,000. [167] In addition to the $10,000 fine, Judge Hoffman assessed costs of prosecution in the amount of $14,384 against respondent. [168]

A specially designated three-judge panel comprised of senior judges from the second, seventh and tenth circuits heard respondent's appeal and affirmed his conviction. See United States v. Claiborne, 765 F.2d 784 (9th Cir.1985), cert. denied, 475 U.S. 1120 , 106 S.Ct. 1636 , 90 L.Ed.2d 182 (1986). Thereafter, defense counsel filed a petition for rehearing and a "suggestion of appropriateness of rehearing en banc " with the Ninth Circuit Court of Appeals. [169] The petition for rehearing was denied by the same senior circuit judges who heard respondent's appeal, and the Ninth Circuit Court of Appeals sitting en banc voted upon and rejected the request for an en banc rehearing. [170] Six out of the twenty-five judges recused themselves from this vote and three judges dissented from the *500 outcome. [171] Respondent, thereafter, petitioned the United States Supreme Court for a writ of certiorari. That Court denied the petition without comment in April of 1986. See Claiborne v. United States, 475 U.S. 1120 , 106 S.Ct. 1636 , 90 L.Ed.2d 182 (1986). Respondent began serving his sentence in May of 1986, after the Ninth Circuit Court of Appeals denied his request for a stay of execution of sentence. [172]

In September of 1986, trial proceedings were instituted in the United States Senate on four articles of impeachment voted by the House of Representatives. [173] In an unprecedented procedure, evidence was presented to a twelve-member special committee of the Senate, rather than to the Senate as a whole. Notably, respondent was once again denied an opportunity to solicit and present detailed evidence concerning his allegations of governmental and prosecutorial misconduct leading to his indictment and subsequent conviction. [174] The Senate committee, however, did allow respondent's counsel to present witnesses and other evidence pertaining to Judge Claiborne's allegations of improper prosecutorial influence and "coaching" of witnesses at the trials and grand jury proceedings. [175]

On October 9, 1986, the full Senate voted on the four articles of impeachment. The necessary two-thirds of the members voted "guilty" on all of the articles except Article III, which premised respondent's removal from office solely on the basis of his conviction. The requisite two-thirds of the Senate did not view this as an adequate and appropriate basis upon which to remove respondent from office. [176]

As we previously observed, it is neither our function nor within our jurisdiction to sit in review of the federal and congressional proceedings resulting in respondent's conviction and removal from office. Nonetheless, just as the United States Senate declined to remove respondent from his office on the sole ground that he was convicted of violating the provisions of 26 U.S.C. § 7206 (1), so must we consider more than just the fact of respondent's conviction in discharging our disciplinary function. In essence, we view it as our obligation to scrutinize carefully the entire record heretofore compiled in this matter in order to weigh those factors which reflect upon respondent's fitness to practice law and to make an independent factual determination regarding the extent of the bar discipline that is warranted by the whole course of respondent's conduct and career, as well as the circumstances underlying his conviction. See Sloan v. State, 102 Nev. 436 , 726 P.2d 330 (1986); In re Cochrane, *501 92 Nev. 253 , 549 P.2d 328 (1976); In re Kristovich, 18 Cal.3d 468 , 134 Cal. Rptr. 409 , 556 P.2d 771 (1976). Moreover, as previously suggested, we have determined that in light of the substantial indications of investigative and prosecutorial improprieties, we are obligated to examine the record of the federal court proceedings to ascertain whether any violations of due process of law should diminish the weight normally accorded a judgment of conviction in disciplinary matters.

Accordingly, with these obligations in mind, in our review of the second trial and the proceedings which followed, we have focused primarily on three major categories of facts and circumstances relevant to our deliberations. First, we have focused on those facts relevant to the fairness and impartiality of the grand jury proceedings resulting in the indictment upon which respondent was tried and convicted. Second, we have considered all the facts and evidence disclosed in the second trial, as well as in the Senate impeachment hearings, which bear upon the question of respondent's willful and knowing violation of the income tax code in the years 1979 and 1980. Third, we have focused upon those facts relevant to the issue of whether the federal judicial and congressional proceedings were conducted in such a manner so as to afford respondent a fair and full opportunity to present his defense.

1. Concerns and Consequences of the Grand Jury Indictment

In his pretrial pleadings, and on appeal, respondent argued that the counts in the indictment upon which he was tried and convicted in the second trial were the product of a biased grand jury which was prejudiced by perjurious testimony. [177] Specifically, respondent maintained that as a matter of fundamental fairness an accused has the basic right to an indictment returned by a legally constituted and unbiased grand jury. [178] See Costello v. United States, 350 U.S. 359 , 76 S.Ct. 406 , 100 L.Ed. 397 (1956). Respondent supported this contention by noting that only one of the three grand juries that had investigated him had returned an indictment, and that the indicting grand jury was the only one that had actually heard Conforte's testimony. [179] Further, as noted, respondent argued on appeal that not once during Conforte's grand jury appearance did the prosecution ever question Conforte respecting the specific dates upon which the bribe alleged in Count I took place. [180] Additionally, respondent pointed to the numerous instances detailed above, wherein testimony and evidence adduced at the first trial substantially contradicted and discredited Conforte's testimony. Respondent also argued in his appeal that the prosecution's three amended demands for notices of intention to rely on an alibi defense strongly implied that prior to the first trial federal agents and prosecutors knew, or at least had good cause to suspect, that Conforte's testimony was self-serving and perjurious. Thus, respondent maintained on appeal that his conviction should be reversed because the entire indictment was the product of a grand *502 jury persuaded by perjurious testimony that Judge Claiborne was a corrupt judge. Respondent noted that the prosecution had conceded that the Conforte counts may have distracted the jury in the first trial. Thus, it was likely that the grand jury, in the absence of the evidence discrediting Conforte's scenario, may have been unfairly influenced against respondent by Conforte's testimony. In essence, respondent asserted that the indictment on the counts unrelated to Conforte's accusations was unfairly obtained and that those counts "were no more than `the tail of the dog.'" [181] See United States v. Hogan, 712 F.2d 757, 761 (2d Cir.1983) (dismissal of indictment is justified if necessary to eliminate prejudice to a defendant or, pursuant to court's supervisory power, to prevent prosecutorial impairment of grand jury's independent role); United States v. Samango, 607 F.2d 877, 882 (9th Cir.1979) ("[a]lthough deliberate introduction of perjured testimony is perhaps the most flagrant example of misconduct, other prosecutorial behavior, even if unintentional, can also cause improper influence and usurpation of the grand jury's role."); United States v. Basurto, 497 F.2d 781, 785-87 (9th Cir.1974) (due process considerations prohibit the prosecution from obtaining an indictment based on material testimony known to be perjurious, and conviction was reversed where the prosecuting attorney failed to take appropriate action to "cure the indictment" after pretrial discovery of the perjury). See also United States v. Bracy, 566 F.2d 649, 655 (9th Cir.1977), cert. denied, 439 U.S. 818 , 99 S.Ct. 79 , 58 L.Ed.2d 109 (1978).

On appeal, however, the specially designated appellate panel concluded:

There is no evidence to support [Judge Claiborne's] assertions. The defendant has made no showing, beyond mere speculation, that Conforte gave perjured testimony before the grand jury or at the first trial. Nor has he made any showing that the Government had any reason to believe that Conforte's testimony was perjured. Speculation cannot justify this court's intervention into the grand jury's proceedings. See United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir.1977) (discussing separation of powers reasons for court's refusal to intervene in grand jury proceedings), cert. denied, 434 U.S. 825 , 98 S.Ct. 72 , 54 L.Ed.2d 83 . Under these circumstances, the Government's presentation of Conforte's testimony to the grand jury was not the sort of flagrant misconduct required to justify dismissal of the indictment under the Due Process Clause or our supervisory powers. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-92 (9th Cir.1983), cert. denied, 465 U.S. 1079 , 104 S.Ct. 1441 , 79 L.Ed.2d 762 (1984).

See United States v. Claiborne, 765 F.2d at 792 (footnote omitted).

Moreover, the appellate panel concluded that even if Conforte did perjure himself before the grand jury, his testimony was not material to the counts of the indictment unrelated to his allegations and upon which Judge Claiborne was convicted. Id. Accordingly, the panel held that "the trial judge committed no abuse of discretion in refusing to dismiss defendant's indictment due to presentation of perjury before the grand jury." Id. (Citation omitted.)

Although we cannot fault the legal analysis set forth in the appellate panel's opinion, we must respectfully disagree with the factual predicate upon which that analysis is based. As we have set forth in some detail above, the enormity of the concessions that the government extended to Conforte in exchange for his testimony, and the conclusive nature of the evidence adduced at the first trial contradicting and discrediting Conforte's allegations, persuade us that respondent's allegations of perjury amounted to much more than "mere speculation."

Additionally, we note that Conforte was not resentenced in accordance with the terms of his agreement with the government until after he had testified before the grand jury and an indictment had been obtained. In Franklin v. State, 94 Nev. 220, 225-226 , 577 P.2d 860, 863 (1978), this court stated:

*503 By bargaining for specific testimony to implicate a defendant, and withholding the benefits of the bargain until after the witness has performed, the prosecution becomes committed to a theory quite possibly inconsistent with the truth and the [search] for truth. We deem this contrary to public policy, to due process, and to any sense of justice.

(Footnote omitted.) Even though respondent was not convicted on the "Conforte counts," and the agreement between Conforte and the prosecution expressly provided that its terms were not dependent upon any conviction resulting from Conforte's testimony, we are inclined to view the manner in which the indictment apparently was obtained in the instant case with similar concern. In our view, the facts surrounding the prosecution's presentation of Conforte's testimony to 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 testimony could well have had a material effect, not only upon the indicting grand jury, but also upon the 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 was ultimately convicted. For example, in September of 1982, the Public Integrity Section of the Justice Department initially obtained access to respondent's 1978 and 1979 income tax returns through an ex parte order issued by Judge Hoffman. The order was issued upon the representations of Justice Department prosecutors that there was reasonable cause to believe "based upon information believed to be reliable that" respondent may have solicited and accepted bribes from Conforte. [182] Thus, 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 that Conforte's allegations raised serious questions about respondent's honesty and integrity. As we have suggested, Conforte's aspersions on respondent's character were the subject of extensive media attention prior to and during the first trial. Thus, it is likely that the jury venire in the second trial, as well as the indicting grand jury, may well have been exposed to and influenced by Conforte's accusations. [183] Where, as here, the determination of guilt was predicated upon a finding that respondent willfully and knowingly signed materially false income tax returns, Conforte's allegations of corruption may well have had a material impact upon all the counts of the indictment returned by the grand jury, as well as the verdict of guilt rendered by a trial jury from a community exposed to extensive media coverage of these false accusations. At the very least, where respondent's credibility and his wrongful intent were crucial factors in the jury's deliberations, the impact of Conforte's accusations cannot be ignored.

Lastly, and significantly, we again observe that by obtaining the release of Claiborne's tax returns for the purpose of investigating Conforte's bribery allegations, the prosecution arguably succeeded in bypassing what appears to be customary steps and routine procedures normally accorded taxpayers in any tax investigation. Specifically, respondent has contended:

At any one of these steps, when some mistake or omission has been made by a taxpayer, he may correct the matter in conference or other proceedings. The customary steps include: (a) audit; (b) Intelligence Division investigation; (c) conference between taxpayer and Intelligence Division Supervisor; (d) forwarding the case to IRS Regional Counsel who will notify taxpayer he may ask for a conference, which if requested will not be denied; (e) transfer from IRS Regional Counsel to Justice Department; (f) *504 pre-indictment conference. In the instant case, only the last step was taken, and that only shortly before indictment. [184]

In this regard, evidence was presented at this court's hearing on November 24, 1987, indicating that respondent's tax returns for the years 1979 and 1980 reflected "tax preparer errors" which normally would not have been the basis of any prosecution. [185] In light of this evidence, we are of the opinion that Conforte's allegations unquestionably and materially impacted upon respondent's indictment, his trial and his conviction. More importantly, however, for our purposes, these circumstances cast a substantial shadow upon the fairness and impartiality of the grand jury deliberations that ultimately led to respondent's indictment and conviction. Accordingly, we are constrained to view with measured depreciation the continuing vitality of respondent's conviction as a reliable precursor to further discipline.

2. Evidence of Respondent's "Willful and Knowing" Conduct

As noted, respondent was convicted of willfully filing a false income tax return for the years 1979 and 1980 in violation of 26 U.S.C. § 7206 (1) (1967), which provides in pertinent part:

Any person who ... [w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter ... shall be guilty of a felony... .

Proof of a violation of this statute "requires more than a showing of careless disregard for the truth" but rather, a voluntary, intentional violation of a known, legal duty. See United States v. Pomponio, 429 U.S. 10, 12 , 97 S.Ct. 22, 23 , 50 L.Ed.2d 12 (1976). Respondent contended at his trial and during the impeachment proceedings that although he may have been negligent and careless, he did not willfully and purposefully submit false tax returns. See Senate Hearings, supra note 15, Pt. 1 at 1149; United States v. Claiborne, 765 F.2d at 797 . Defense counsel argued in this regard that respondent fully and accurately reported his income in 1979 and 1980 to his accountants, and that he relied in good faith on the expertise of his accountants when he signed his returns. Such good faith reliance on a qualified accountant coupled with full disclosure of taxable income is "a valid defense to a charge of filing a false return... ." See United States v. Whyte, 699 F.2d 375, 379 (7th Cir.1983).

a. THE 1979 RETURN

Joseph Wright was the accountant who prepared respondent's 1979 return. Wright had previously prepared respondent's tax returns over a period of approximately thirty years. [186] A significant issue regarding the question of respondent's full disclosure of income to Wright centers around a copy of a handwritten letter which respondent contended he wrote and sent to Wright on April 11, 1980. [187] The letter stated in pertinent part:

Enclosed check in the amount of $8,000 and W-2 form from U.S. Courts as requested. Fees received during 1979 for practice before I became a judge are $41,073.93. I also sold my airplane in April. Received $11,000. I paid $11,000 for it, so there is no profit or loss.

The amount of legal fees, $41,073.93, plus the statement of earnings contained in Judge Claiborne's W-2 form constituted the full and correct amount of income he received during 1979. [188] The $8,000 check, to which the letter refers, was to accompany *505 an application for an extension which Wright was preparing. [189]

Judge Claiborne testified that he instructed his secretary, Judy Ahlstrom, to deliver the W-2 form, the $8,000 check dated April 11, 1980, and the letter to Mr. Wright's office on the morning of April 11, 1980. [190] Ahlstrom consistently testified that she did in fact deliver these documents to Wright's office on that date and personally handed them to a secretary. [191] Ken Swanson, an employee of Wright's accounting firm, further corroborated this story at the Senate hearings by testifying that, at or near the time tax returns were due in either 1979 or 1980, he witnessed a woman who was identified to him as Judge Claiborne's secretary deliver something to Wright's office. [192]

Both Wright and Wright's wife, however, testified that they could not recall having received the April 11, 1980 letter. [193] Further, they maintained that the first time they could recall having seen this letter was in the fall of 1983 when respondent's counsel, Oscar Goodman, showed them a copy of it. [194] Mr. Wright also testified that he had no recollection of ever losing or mislaying any tax documents concerning Judge Claiborne. [195]

Thus, a crucial issue before the jury involved the question of whether Wright actually received the letter of April 11, 1980. If the jury believed that respondent's secretary delivered the letter, then it necessarily followed that respondent had fully disclosed his income to his accountant. On the other hand, if the jury found Wright's story to be credible, then respondent's defense of full disclosure was severely jeopardized.

In reaching its verdict, the jury was not apprised of two important pieces of evidence reflecting on the credibility of the witnesses concerning the delivery of the letter of April 11, 1980. First, the Wrights' story was contradicted, and Ms. Ahlstrom's story was corroborated at the Senate hearings by an affidavit submitted by Ellen Arthur, an employee of Wright's accounting firm during the period in question. Ms. Arthur did not testify at the second trial; however, in the Senate impeachment hearings she submitted her affidavit stating that on or about April 11, 1980, she received a telephone call from Judge Claiborne's secretary, and that the secretary indicated that she would hand-deliver some "tax materials, including [respondent's] W2 and income information for the tax year 1979." [196] Additionally, Ms. Arthur's affidavit confirms that Ahlstrom did in fact deliver an envelope and that Arthur placed it on Mr. Wright's desk with a note instructing Wright "to look on his desk so that he would not miss seeing the envelope." [197] Arthur further attested to the fact that "[t]he loss or misplacing of materials was not an unusual occurrence in Mr. Wright's office." [198] Notably, Arthur explained that although she did attempt to contact attorney Goodman during the second trial to divulge this information, she did not pursue the matter in part because "she was fearful of repercussions against her by the IRS or the FBI." [199] Finally, Arthur's affidavit indicates that "two or three days" after Ahlstrom delivered the envelope to Wright's office, "Mrs. Wright came into Affiant's office clearly tense and somewhat agitated and she asked Affiant if she had seen the information from Mr. Claiborne's letter as it could not been [sic] *506 found or had been misplaced." [200] Thus, Arthur's testimony at the second trial would have substantially corroborated Ms. Ahlstrom's testimony and, consequently, would have significantly supported respondent's defense that he had fully disclosed his income to Wright in the letter of April 11, 1980.

Second, respondent has argued that his defense was unfairly deprived of exculpatory information in the possession of the prosecution that would have allowed for impeachment of Wright's trial testimony. Specifically, Judge Claiborne contended in his appeal from his conviction that the trial court had committed reversible error by refusing to disclose to the defense certain summaries of statements made by Mr. Wright to FBI agents during the pretrial investigation. In these pretrial interviews with government agents, Wright revealed that tax documents and records of a substantial number of his clients had been misplaced or "thrown away" by Wright's office on at least one prior occasion. See United States v. Claiborne, 781 F.2d 1325, 1326 (9th Cir.1985) (Ferguson, J., dissenting); United States v. Claiborne, 765 F.2d 784, 800-01 (9th Cir.1985), cert. denied, 475 U.S. 1120 , 106 S.Ct. 1636 , 90 L.Ed.2d 182 (1986).

Prior to the trial, the defense specifically requested discovery of all statements, known as Brady material, in the possession of the prosecution that would tend to impeach the credibility of any government witness, and for the production of Jencks Act material in advance of trial. [201] During the two trials, Judge Hoffman had conducted in camera reviews of potential Jencks Act or Brady material in order to ascertain whether the material contained information to which the defense was entitled. After the jury returned its verdict in the second trial, however, Judge Hoffman discovered that he had a packet of FBI summaries and analogous documents prepared by IRS investigators which he had failed to examine for such information. This unexamined material included summaries of Wright's statements to FBI and IRS investigators. [202] See United States v. Claiborne, 781 F.2d 1325, 1326 (9th Cir.1985) (Ferguson, J., dissenting).

On appeal, the special appellate panel concluded that the FBI summaries of Wright's statements were not Jencks Act materials and that, therefore, the defense was not entitled to their disclosure under 18 U.S.C. § 3500 (1985). See United States v. Claiborne, 765 F.2d at 801-02 . Further, the appellate panel concluded that although some of the undisclosed information was Brady impeachment evidence, the failure to disclose the Brady material was not prejudicial to the defense and accordingly did not warrant reversal of respondent's conviction. Id. at 802-03 ; see also United States v. Claiborne, 781 F.2d at 1326 (Ferguson, J., dissenting).

The appellate panel's analysis in these respects was subsequently severely criticized. Specifically, in his dissent from the order of the Ninth Circuit denying Judge *507 Claiborne's petition for a rehearing of the appeal, Judge Ferguson explained:

The panel's Brady analysis ignored United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), announced six days before Claiborne. Under Bagley ,

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

Id. at 3384. The panel should have decided whether suppression of the Wright interview material "undermined confidence in the outcome of the trial." Instead, the panel employed a two part test: whether the evidence would have "created a reasonable doubt" or whether it "might have affected the outcome" of the trial. Claiborne, 765 F.2d at 802-03 .

Ample evidence from the record supports the conclusion that suppression of the material undermines confidence in the trial outcome. Wright was a key witness in the government's case. Evidence that a significant number of his clients' files had been discarded, directly contradicting his earlier testimony, would certainly undermine his credibility sufficiently for the jury to conclude that the defendant had testified truthfully. Thus, Claiborne's conviction should have been reversed because the government withheld Brady impeachment evidence of one of its key witnesses.

See United States v. Claiborne, 781 F.2d at 1326 (1985) (emphasis added). Judge Ferguson also concluded that the appellate panel's Jencks Act analysis was incorrect because it not only conflicted with Supreme Court precedent, but restricted a criminal defendant's access to witness statements transcribed contemporaneously with the FBI interview and taken down in a substantially verbatim fashion. Id.; see also Campbell v. United States, 373 U.S. 487 , 492 n. 6, 83 S.Ct. 1356 , 1360 n. 6, 10 L.Ed.2d 501 (1963) (it is not necessary for Jencks Act statements to be signed or written by the witness nor are they required to be substantially verbatim recordings of a prior statement). Further, Judge Ferguson criticized the appellate panel for failing to review the material at issue:

The fundamental error the panel committed was its failure to conduct an independent examination of the materials on which the trial court based its rulings. I fail to see how the panel, without looking at that material, could have fairly decided whether those rulings were erroneous. A reviewing court has an obligation to examine Brady and Jencks Act material to ensure that the district court's rulings were correct. See Campbell, 373 U.S. at 493 , 83 S.Ct. at 1360 . After the district court judge opened the in camera material at the posttrial hearing, he resealed the withheld documents. The documents have not been unsealed or read by anyone since the district court's posttrial hearing.

See United States v. Claiborne, 781 F.2d at 1327. Under the fragile circumstances of this case, we are in accord with Judge Ferguson's analysis and his conclusion that the failure to disclose the Wright summaries to the defense undermines confidence in the trial outcome. Moreover, as noted, the affidavit of Ms. Arthur corroborating Judy Ahlstrom's testimony adds substantial weight to the other evidence presented at the second trial supporting respondent's contention that he fully disclosed his income to his accountant. This has special significance in light of the fact that three persons, including respondent, his former secretary and one of Wright's former employees, testified affirmatively as to Claiborne's provision of his income information to his accountant, whereas Wright and his wife were only able to state they did not recall seeing the disclosure statement supplied by Claiborne.

The additional evidence presented warrants some discussion. For example, the 1979 application for an extension of time to file respondent's return was signed by *508 Wright and dated April 11, 1980. [203] The application indicates a "balance due" of $8,000, the precise amount of respondent's check also dated April 11, 1980, that Ms. Ahlstrom claimed she delivered to Wright's office along with the letter of April 11, 1980. [204]

Moreover, respondent testified that later, on the afternoon of April 11, 1980, Wright called him and asked him to bring by another check in the amount of $2,500 to accompany a voucher of estimated declaration of tax due for 1980. Respondent stated that he did in fact take a $2,500 check to Wright later that day and signed the 1980 estimate at that time. [205] The check number on the $8,000 check is 0302, and the check number on the $2,500 check (also dated April 11, 1980) is 0303. [206] Respondent also testified that he saw the April 11, 1980, letter on Wright's desk at the time he delivered the second check. [207]

Respondent further testified that in May of 1980, he called Wright to inform him that he was being assigned to Los Angeles to try a case and would be there for a considerable period of time. Accordingly, respondent contends that he and Wright agreed that respondent should sign a blank tax return in order to avoid having to file another extension. [208] Respondent stated that Wright telephonically requested additional information regarding his 1979 income, including the precise information that had been provided in the April 11, 1980, letter. [209] According to respondent, when he told Wright that he had already provided those figures, Wright paused for a moment, and then announced that he did have the figures, but misstated Claiborne's income from his former law practice to be $22,332.87, instead of $41,073.93. Respondent contends that he (respondent) wrote this misstated figure on a worksheet along with the additional tax data requested and later supplied this worksheet to Wright. [210] In sum, it was respondent's testimony that this miscommunication resulted in Wright's utilization of an incorrect $22,322.87 figure on the 1979 tax return that respondent signed in blank in Wright's office before it was completed. [211]

Unquestionably, there was a substantial body of evidence compiled in both the trial and impeachment proceedings establishing that the letter of April 11, 1980, fully disclosing respondent's income for the year 1979, was delivered to Wright's office. The jury, however, did not have Ms. Arthur's evidence before it when it reached its verdict. Further, materially exculpatory evidence was withheld from the defense that tended to impeach Wright's credibility on the issue of whether respondent fully disclosed his income. As Judge Ferguson observed, this fact alone is sufficient to undermine confidence in the jury verdict regarding respondent's 1979 return.

b. THE 1980 RETURN

In 1981, after thirty years with Joseph Wright, Judge Claiborne elected to employ the services of Jerry Watson to prepare his 1980 income tax return. Watson was the owner of a financial planning business known as Creative Tax Planning. Respondent explained that after he became a federal judge, he perceived his tax situation to be considerably less complicated than it was when he was in private practice. Additionally, respondent suggested that his relationship with Wright had turned somewhat cold, and that he felt he was "imposing" on Wright. [212]

*509 Judge Claiborne was introduced to Watson by the judge's ex-wife, and the judge was immediately impressed by Watson's air of professionalism. Judge Claiborne also recognized Watson as a fellow member of his church. [213] However, Watson apparently held himself out to be more professional and knowledgeable on tax matters than reality allowed. One of Watson's former employees, Charlotte Travaglia, testified before the Senate Impeachment Committee and characterized Watson's demeanor towards the public as "exalted." Travaglia further indicated that "he professed to know what he was doing in all areas." [214] Respondent testified that Watson appeared to be a "topright man" and that "he talked like he knew what he was doing." [215] Watson testified, however, that "of all the things I am, the thing I'm not is an accountant. And I own a tax preparation company and an accounting business, but that doesn't mean that I am a qualified accountant, nor have I held myself out to be." [216] Nonetheless, it appears that one could easily adopt a good faith belief in Watson's qualifications, competency and professionalism as a tax preparer. Certainly, one could assume from Watson's letterhead, which listed approximately thirty different types of financial planning and consulting services, that Watson's firm offered expert and professional tax and investment advice. [217]

Watson's testimony before the Senate panel, however, left a somewhat different impression. For example, at the conclusion of Watson's final appearance before the committee, Senator Rudman commented that Watson's testimony should be forwarded to the Justice Department for appropriate action. Senator Rudman further stated:

Anyone sitting through this trial has seen an active effort to defraud the taxpayers of this country, certainly by this alleged accountant.

And the third comment I want to make — and I will do this myself — I intend to write to the Internal Revenue Office in Nevada, and suggest that they start forthwith an audit on any return that Mr. Watson has prepared, because I frankly think that we have seen here a pattern of the most egregious fraud on taxpayers, aside from whether Judge Claiborne has any knowledge of them. A separate question.

This witness that has been before this panel today, and yesterday, in my many years of trying cases, has to be the most incredible witness that I have ever seen, particularly before a hearing conducted before the United States Senate. [218]

As noted, in 1981, however, after meeting Watson and being impressed with his professional demeanor, 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 respondent's wages in 1980 as a federal judge and $88,500 in income during that year "from private practice before appointment [to the judiciary] in 1978...." [221] As such, this handwritten list fully disclosed respondent's income for the year 1980. See, e.g., United States v. Claiborne, 765 F.2d at 796 .

Charlotte Travaglia was employed by Watson's firm at the time Claiborne's 1980 return was being prepared. [222] She did not testify at either the first or second trials, but she did appear before the Senate panel *510 and testified in some detail about the preliminary work she did on respondent's 1980 return. [223] In particular, Travaglia testified that Watson, at one point, assigned her the task of preparing a preliminary worksheet regarding respondent's 1980 return. [224] Watson handed her a stack of tax information which contained the aforementioned handwritten list compiled by respondent. [225] This list has been referred to as the "yellow sheet" because it was written on yellow legal paper. A copy of the "yellow sheet" is attached to this opinion as Exhibit 2. Travaglia further stated that her own handwriting appears on the yellow sheet, and that she placed an asterisk beside the $88,500 figure that Judge Claiborne had indicated was his income received from fees due from his private practice prior to his appointment to the bench. [226] Travaglia testified that certain items appearing on page one of respondent's list were her notations in her handwriting. [227]

Travaglia's testimony, as well as Watson's testimony, reveals that Watson had contrived a plan by which he hoped to reduce Judge Claiborne's tax liability by somehow writing off losses that the judge suffered from quitting his law practice and assuming the bench. Watson testified, for example, that respondent's fee income inappropriately appeared on Schedule D of the return as a capital gain rather than on Schedule C as income. [228] According to Watson, Travaglia apparently added the $88,500 legal fee income with some unidentified amounts that Judge Claiborne received from a sale of books from his law library to establish a capital gain of $150,000. [229] This figure then appeared on Schedule D of the return as a capital gain which partially offset the $250,000 in capital losses. [230] How Watson arrived at the $250,000 amount as a capital loss from the "loss" of respondent's private practice remains somewhat of a mystery. [231] Although Watson maintained that he and Travaglia came up with the $250,000 figure, Travaglia denied any complicity in this *511 "plan." [232] At any rate, Schedule D reflected a total capital loss of $100,000. [233] A copy of respondent's Schedule D form is attached to this opinion as Exhibit 3.

It is clear that this procedure was improper mainly because there was never a sale of the law practice, and the legal fees were income not capital gains. The fees therefore belonged on Schedule C and not on Schedule D. Respondent testified, however, that Watson had not fully explained his concept of treating the legal fee income as capital gains on Schedule D until well after respondent had signed the return. [234] Travaglia also testified that the return that respondent signed was essentially the preliminary worksheet she had prepared for Watson, and that she had never intended it to be a final return. [235] Additionally, she stated that she indicated on several occasions to Watson that there were problems with the return, that the preliminary work was incorrect, and that she needed more information in order to straighten out some of the things that she felt were wrong on the return. [236] When help from Watson was not forthcoming, she finally put her preliminary work product on Watson's desk, never intending it to be a final, completed return. [237]

Apparently, this preliminary work product was essentially the return which respondent signed and which was filed. Judge Claiborne testified that he subsequently was notified by Watson that the return was ready and he went to Watson's office to sign it. According to respondent, Watson was not present, but a secretary brought him a number of loose documents. The signature page had a paper clip on it and he signed it, thumbed briefly through the documents, asked the secretary to have Watson mail him a copy of the return and left. [238]

Three days later Watson came to Claiborne's office with the bill for his services and the return. Respondent glanced through it again and questioned Watson about how he had accomplished a refund. Watson explained, in an authoritative manner, that he had found a way to establish a loss on respondent's law practice. Respondent told Watson that he wanted no trouble with the IRS because he had "all the trouble with the FBI that I can handle right now." [239] Watson, nonetheless, assured him that he could "support" the return. [240] Again, after Watson's appearance before a Portland grand jury, Watson told Judge Claiborne that the return was correct, and that he had shown the return to two IRS employees, both of whom said that the return was "right." [241]

The return, however, cried out for an audit. It was written in pencil. Schedule D had an arrow drawn on it indicating the words "type here." A copy of Schedule D is attached to this opinion as Exhibit 3. Expert testimony established that such a return would ordinarily raise an audit. [242]

In sum, the evidence regarding the 1980 return suggests that Judge Claiborne placed his good faith confidence in a man who superficially exuded authoritative knowledge and skill in tax matters. Watson, however, clearly handled respondent's return incompetently. Further, Travaglia's Senate testimony, which the trial jury did not hear, confirms that respondent disclosed, on the yellow sheets, all the income received from his former law practice to Watson for the purpose of preparing the 1980 tax return. He apparently hid nothing from Watson, but due to Watson's incompetence *512 and his misperceptions of fundamental concepts of tax accounting, the return incorrectly obscured respondent's income.

Shortly after the United States Senate voted on the articles of impeachment, Senator Orrin Hatch, a member of the Senate panel charged with the responsibility of gathering evidence on behalf of the full Senate, addressed the Senate and set forth his analysis of the evidence. [243] Senator Hatch expressed his view that the Senate had a constitutional obligation and "duty to reach [its] own independent conclusion about the facts which gave rise to these charges," and should not simply defer to the existence of respondent's criminal conviction in discharging its obligations under the impeachment clause of the constitution. [244] See U.S. Const. art. I, § 3. Further, the Senator stated:

[I]f there remains a reasonable doubt about [Judge Claiborne's] intentions, then the Senate was obligated to conclude that he should not have been convicted in court and that he should not have been impeached and that he should not have been convicted by the Senate. Relying as they did on the criminal conviction, the House Articles of Impeachment required the Senate to ascertain whether, beyond a reasonable doubt, Judge Claiborne intentionally filed a false return. [245]

After reviewing the pertinent provisions of 26 U.S.C. § 7206 (1), the statute under which respondent was convicted in federal court, Senator Hatch further observed:

All of the issues before the Senate today were reducible to one simple question: Did Judge Harry Claiborne willfully file a false tax return? Both Judge Claiborne and the House agreed that the 1979 and 1980 tax returns fail to report taxable income. The issue before the Nevada District Court and the Senate today was whether that underreporting was "willful."

The Supreme Court, in United States v. Pomponio, 429 U.S. 10 [ 97 S.Ct. 22 , 50 L.Ed.2d 12 ] (1976) stated that the term "willfully" in the tax code requires more than a showing of carelessness or negligence; it requires proof of an intentional violation of a known legal duty. In United States v. Bishop, 412 U.S. 346 [ 93 S.Ct. 2008 , 36 L.Ed.2d 941 ] (1973), the Supreme Court stated:

Degrees of negligence give rise in the tax system to civil penalties ... The Court's consistent interpretation of the word "willfully" to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the wellmeaning, ... mass of taxpayers. Id. at 360-361 [ 93 S.Ct. at 2017 ].

The import of these cases is that willfulness is the intentional, deliberate, voluntary, or witting violation of a known legal obligation.

Certainly Judge Claiborne knew the duty to file an accurate and complete tax return. It is far from clear from the evidence presented either in trial or during the impeachment proceedings that Judge Claiborne deliberately or intentionally or wittingly or purposefully tried to escape the obligation of every taxpayer. To the contrary, there is much to indicate that Judge Claiborne's deliberate actions were an attempt to file an accurate and complete return. According to the judge and much corroborating evidence, miscommunications with accountants and mistakes by those accountants caused errors in the judge's tax returns, of which he was [un]aware until the criminal investigation was already underway. If the judge is correct, the voluminous evidence at most shows that he was negligent in failing to detect his accountant's errors. This, however, would not be willfulness. It would not be deliberate and witting tax evasion. It would be simple negligence, which as the Supreme *513 Court's Bishop case stated, would be corrected by a civil proceeding, not a criminal action. [246]

Senator Hatch further observed that no direct evidence of respondent's willful violation of the provisions of the tax code existed in this case. Therefore, in order to establish Judge Claiborne's willful intent it was necessary to infer such an intent from circumstantial evidence. Senator Hatch noted that the factors appropriately considered in this regard included (1) evidence of a consistent pattern of underreporting, (2) the magnitude of the error in the return, and (3) factors such as sudden changes in accountants. [247] After carefully reviewing the evidence set forth above and concluding that it clearly established that Judge Claiborne fully disclosed his income to his accountants, Senator Hatch analyzed the first of these factors as follows:

On the point of whether this alleged underreporting was a consistent activity, the House made much of the fact that these errors occurred in 2 successive years. An examination of the evidence, however, offers a plausible explanation. After all, Judge Claiborne had only recently taken his position on the bench. He was still adjusting to new financial arrangements, new work schedules, new responsibilities, new demands on his time and talents. It was time of turmoil and change in his life. He was selling his residence and purchasing another. He was turning over his law firm to his former partners and liquidating his assets in that business. These drastic changes were also an important reason that he elected to switch accountants. With changes of this magnitude underway in his life, it is not wholly unexpected that miscommunications, misperceptions, and mistakes might occur in these 2 years. [248]

The Senator concluded in this regard that "[i]n sum, Judge Claiborne did not underreport his income — consistently or otherwise." [249]

In regard to the circumstantial evidence relating to the magnitude of the error, Senator Hatch observed:

The next circumstantial point made by the House concerns the magnitude of the error. The $18,700 shortfall in his 1979 return was not due to any willful act on Judge Claiborne's part. He thought the income he disclosed on April 11 was part of the return. The judge did not actually review the 1979 tax return before it was filed. On May 2, 1980, he was leaving town to take an assigned case in another jurisdiction. Fearing that he might not return before the filing deadline, the judge went to Wright's office and signed a return in blank. He signed the return in blank because he was going out of town on assignment. He certainly expected that it would contain income which he had reported to his accountant in an earlier hand-written and hand-delivered letter.

Wright's testimony on this point is that he had changed his practice of allowing tax returns to be signed in blank. It is nonetheless uncontroverted that early in his career Wright had permitted tax returns to be signed in blank. Judge Claiborne had been associated with Wright for 30 years. The recent changes in practice may not have been binding on a longstanding customer like Judge Claiborne who testifies persuasively that he signed the form in blank sometime on May 2.

In 1980, Judge Claiborne reported to Watson the $88,500 in income on the now-famous "yellow sheets." Watson told the judge that the income was reflected in the schedule D form concerning capital gains because it was part of the sale of the law business. Watson pointed out that this method had been checked by the CPA who did the actual work on the judge's tax return and further checked with the IRS.

*514 The 1980 tax return was a mess. It contained numerous blatant errors. It did not even credit Judge Claiborne with the $22,000 he had already paid in estimated taxes for that same tax year. It was filled out in pencil and had arrows drawn from one part of the return to others. If the judge had intended to defraud, he certainly would have been more cunning. If Judge Claiborne had intended to defraud, he certainly would not have filed a return full of red flags pointing to its likely deficiencies. [250]

(Emphasis added.)

As for the third aspect of circumstantial evidence of willfulness, Senator Hatch remarked that respondent had several good reasons to change accountants after thirty years:

In the first place, he no longer was managing a law business. He had no need of the wide range of services provided by Wright. Moreover, Wright had treated the judge coldly in some of their recent conversations. This may well have been because Mr. Wright had moved on to a different clientele after 30 years in the business. He may have wished he was receiving more compensation for his services. The reasons that Judge Claiborne and his accountant began drifting apart are not fully stated. It is clear, however, that the judge perceived that his accountant was no longer as interested in his account as he had been in the past.

Mr. Watson, on the other hand, came highly recommended by the judge's wife and had impressed the judge on the one occasion he had to observe his work. Watson was very interested in Judge Claiborne's account. He forthrightly solicited Judge Claiborne's business with the promise that he might be able to save him money on taxes in a legitimate manner. Judge Claiborne was selling his large home and Watson specifically mentioned in his letter a plan to treat that transaction favorably. In light of the distance between the judge and his former accountant, this offer must have been very attractive. [251]

Additionally, Senator Hatch noted that, contrary to the House brief, Judge Claiborne was no tax expert. Not only did respondent refer his personal tax matters to

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