Opposition — Conforte v. United States

No. 80-399 NOV 7 1980

In the Supreme Court of the = Sis .

OCTOBER TERM, 1980

JoszpH CONFORTE AND SALLY. CONFORTE, PETITIONERS

ve

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT:

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCreg, Jr.

Solicitor General

M. CARR FERGUSON

Assistant Attorney General

ROBERT E. LINDSAY

Davip |. Pincus

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-399

JOSEPH CONFORTE AND SAcLY CONFORTE, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

QUESTION PRESENTED

Whether petitioners are entitled to a new trial on the

ground that the trial judge erred in failing to disqualify

himself from hearing petitioners’ case.

lil

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Craven v. United States, 22 F. 2d 605,

COGE, UIE, Be ie GRP sdacsitbetincrcctacinscnctens 8-9

Davis v. Board of School Commissioners of

Mobile County, 517 F. 2d 1044,

Cert. Gemied, 425 U.S. 944 ...ccccccsccccccccsseeee 10, 11

International Business Machines Corp.,

Be PR, GOO: F 5 BO FE. sactkerdsspcepilanisinceseenenvcin 10

Johnson v. United States, 318 U.S. 189 ........... 10

Mims v. Shapp, 541 F. 2d 415 w..cccccccccssssssesseenes 9

Potashnick v. Port City Construction Co.,

609 F. 2d 1101, cert. denied,

Nos TRs8TZ2 (Oct. 6, IDGD) ceccccscoccccccceosocccesssis 11

Rousell v. Tidelands Capital Corp.,

SSE Bs TU, GI aiiksa leet occecicecsecsonsetcctinns 10

SCA Services, Inc. v. Morgan,

See hy ee eta ns scetinciecieiv bees I]

United States v. Amerine, 411 F. 2d 1130 ........ 11

United States v. Brown, 539 F. 2d 467 ............ ll

lV

Page

Cases—Continued:

United States v. Daley, 564 F. 2d 645,

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United States v. Grinnell Corp.,

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United States v. Haldeman, 559 F. 2d 31,

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United States v. Patrick, 542 F. 2d 381,

GORE, GOIIG, GIO BC DSS be sesitinsesétecteorsscccesee 10

Zovluck v. United States, 448 F. 2d 3339,

Cort. Genied, 405 U.S. 1043 ccscccorcscccccccscccccceee 11

Statutes:

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Miscellaneous:

Code of Judicial Conduct for United States

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OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A25)

is reported at 624 F. 2d 869. The opinion of the district

court (Pet. App. A26-A59) is reported at 457 F. Supp.

641.

JURISDICTION

The judgment of the court of appeals was entered on

April 29, 1980. A petition for rehearing was denied on

August 11, 1980 (Pet. App. B1). The petition for a writ of

certiorari was filed on September 12, 1980. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a non-jury trial in the United States District

Court for the District of Nevada, petitioners were

convicted on four counts of willfully attempting to evade

and defeat federal employment taxes for the last quarter

of 1974 and the first three quarters of 1975, in violation

of 26 U.S.C. 7201. The district court sentenced petitioner

Joseph Conforte to consecutive terms of five years’

imprisonment and a $10,000 fine on each of the four

counts. Petitioner Sally Conforte was sentenced to

consecutive terms of four years’ imprisonment and a

$10,000 fine on each of the four counts, but the prison

sentences were suspended in favor of a five-year term of

probation, made conditional upon her filing complete and

accurate tax returns in future years (Pet. App. A32-A33

n.3).

The court of appeals vacated Joseph Conforte’s prison

sentence on the last three counts of the indictment,

vacated the special conditions on Sally Conforte’s

probation, and, as to each petitioner, vacated the fines

imposed on the last three counts of the indictment. The

court of appeals affirmed the convictions as so modified

(Pet. App. Al-A25).

2

The facts pertinent to the disqualification issue are set

out in detail in the district court’s opinion (Pet. App. A27-

A40) and are summarized in the opinion of the court of

appeals (Pet. App. Al4-A15). Petitioner Joseph Conforte

(hereinafter “Conforte”) was, at the time of trial, the

owner of a legal house of prostitution in Storey County,

near Reno, Nevada (Pet. App. A27). Judge Bruce R.

Thompson, the trial judge, was the only district court

judge sitting in Reno, Nevada (Pet. App. A55). At the

time of trial Conforte had been involved in at least four

previous proceedings involving criminal charges or civil

tax matters, all of them known to Judge Thompson (Pet.

App. A27). These were: (1) a 1960 conviction in Nevada

state court resulting in a state prison sentence; (2) a

federal tax conviction in the District of Nevada based on

a guilty plea that Conforte unsuccessfully sought to

withdraw while serving his sentence, the motion being

heard and denied by Judge Thompson; (3) a 1968 trial

before Judge Thompson on a charge of violating the

Mann Act, 18 U.S.C. 2421, ending with the grant of a

motion of acquittal by Judge Thompson; and (4) a 1970

civil action brought by the Internal Revenue Service for

condemnation and forfeiture of trailer houses used in

Conforte’s prostitution enterprise, ending in a decision by

Judge Thompson in Conforte’s favor (Pet. App. A27).

Apart from his appearances in court, Conforte’s personal

contacts with Judge Thompson consisted of little more

than the exchange of greetings on several occasions (Pet.

App. A27-A28).

Before the start of the trial in this case, petitioners

sought to waive their right to a jury trial. Upon hearing

this application, Judge Thompson first made certain that

petitioners’ waiver was knowingly and intelligently made.

He then put the following statement on the record with

3

“respect to his knowledge of Conforte’s criminal record,

and received the following answers from petitioners and

their counsel (Pet. App. A28-A30, n.2):

THE COURT:

There is something else involved in this waiver

of jury trial that should be brought out in the

open. | am aware of Mr. Conforte’s criminal

record; Some years ago | passed upon a

postconviction remedy motion that was filed on

behalf of Mr. Conforte. | am aware of two trials

in this court which involved Mr. Conforte, one

in which | believe he was charged with a

violation of the White Slave Traffic Act, and

another which involved an effort to abate the

operation of the so-called Mustang Ranch for

Internal Revenue violations.

Facts of that nature, if known to a juror prior

to impanelment of the jury, would be a basis for

disqualification of a juror. If 1 am going to be

the trier of the facts in this case, | can’t eliminate

the knowledge | already have. So | want you to

know—and you know what | know—that if 1 am

going to preside over this trial without a jury,

you will have to waive any basis of disqualifica-

tion because of my prior knowledge of facts

concerning Mr. Conforte primarily; I don’t

know much about Mrs. Conforte.

Do you understand what I have told you?

MR. CONFORTE:

Yes, sir.

MRS. CONFORTE:

Yes, sir.

THE COURT:

Do you agree that | am not disqualified to try

the case?

MR, CONFORTE:

I agree, sir.

THE COURT:

Do you, Mrs. Conforte?

MRS. CONFORTE:

Yes.

THE COURT:

Mr. Maxwell, is this proposed waiver of a jury

trial with your approval and after full con-

ferences and explanations with your client?

MR. MAXWELL:

{Mrs. Conforte’s attorney]: It is, your Honor.

THE COURT:

Is that true of you, also, Mr. Brown?

MR. BROWN:

[Mr. Conforte’s attorney]: Yes. We have discuss-

ed it for days, your Honor.

5

Judge Thompson accepted the waiver and tried the case

without a jury. At the conclusion of the trial, he acquitted

petitioners on the first six counts of the indictment! and

convicted them on the remaining four. After filing notices

of appeal, petitioners filed a motion for a new trial. The

asserted ground was “newly discovered evidence” in-

dicating that Judge Thompson had been personally biased

and prejudiced against them at the time of trial (Pet. App.

A32). The court of appeals remanded the case to permit

consideration of the motion and assigned Judge Warren

J. Ferguson of the Central District of California to hear

the motion.

Judge Ferguson conducted an evidentiary hearing at

which the following evidence, as summarized by the court

of appeals (Pet. App. Al4), was adduced. In 1972

Conforte submitted an application to the American

Contract Bridge League’s Reno Unit, of which Judge

Thompson was then president. Members of the unit

wished to reject his application because of his felony

convictions and his proprietorship of a house of

prostitution. At their request, Judge Thompson wrote the

national headquarters of the Bridge League to ask

whether the unit was permitted to reject Conforte’s

application.2 The national headquarters responded that

it could, and Judge Thompson wrote a rejection letter to

Conforte on court stationery.

'These counts charged petitioners with filing false employers’

quarterly tax returns for six quarters in 1974, 1975, and 1976, in

violation of 26 U.S.C. 7206(1).

2In the letter, Judge Thompson observed that “Mr. Conforte has

twice been convicted of felonies, extortion and income tax evasion

and has served terms in state and federal penitentiaries. He is a

notorious bawdy house keeper and is presently engaged in that

business in nearby counties” (Pet. App. A35 n.4).

6

In 1973 Judge Thompson attended a cocktail party

following a university of Nevada football game. A

discussion of fund-raising for the team occurred, and

Conforte was mentioned as a possible contributor. Judge

Thompson opposed accepting a contribution from

Conforte because he ran a house of prostitution. He also

stated that the only problem with one member of the

athletic staff was that he was a good friend of Conforte,

who, the judge observed, was “not good for Reno.”

After the hearing, Judge Ferguson denied petitioners’

motion for a new trial (Pet. App. A26-A59). The court of

appeals affirmed. In affirming, the court held that the

motion for a new trial was properly denied for three

reasons: first, to the extent that it rested on the bridge

club incident, the motion was properly denied as untimely

(Pet. App. Ai4-A16); second, the remarks made by Judge

Thompson at the university function did not demonstrate

reasonable grounds for finding that the judge could not

try the case fairly (Pet. App. A1l6-A20); and third,

petitioners’ waiver of a jury trial, permitting their trial by

Judge Thompson despite his knowledge of Conforte’s

criminal record, was knowingly and intelligently made

(Pet. App. A20).

ARGUMENT

Petitioners advance four contentions in support of their

argument that they were entitled to a new trial because of

the trial judge’s failure to disqualify himself. All are

without merit, and none raises an issue as to which the

decision below squarely conflicts with a decision of this

Court or of any court of appeals.

3Judge Thompson testified that his low opinion of Conforte’s

character was based on his knowledge of Conforte’s criminal record

(Deposition of Judge Thompson at 32; see also id. at 20).

7

1. Under 28 U.S.C. 455(a), a judge is obligated to

disqualify himself “in any proceeding in which his

impartiality might reasonably be questioned,” and 28

U.S.C. 455(b) states specific circumstances in which

disqualification is obligatory, including the existence of

“personal bias or prejudice concerning a party.” Pursuant

to 28 U.S.C. 455(e), a judge may accept a waiver of

disqualification from the parties if disqualification would

be based on Section 455(a) and if the waiver “is preceded

by a tull disclosure on the record of the basis for

disqualification”; but no such waiver is permitted if the

ground for disqualification is one of those specified in

Section 455(b).

Petitioners contend (Pet. 14-15) that, even assuming

that Section 455(a) was the only ground for disqualifica-

tion, no waiver of disqualification was permissible here

because the 1977 version of Canon 3 of the Code of

Judicial Conduct for United States Judges in effect at the

time they made their new trial motion (Pet. App. D2-D3)

imposed disqualification obligations similar to those in 28

U.S.C. 455, but precluded waivers under any cir-

cumstances. They contend that the Code, rather than the

statute, controlled disposition of their motion.

As the district court reasonably observed, however (Pet.

App. A49), “the disqualification provisions of the Code of

Conduct can only be construed as establishing a standard

for judicial behavior rather than as imposing a mandatory

duty enforceable after the fact by the reversal of otherwise

proper judicial decisions.” The Code thus did not replace

Section 455 as a basis for obtaining a new trial. But in any

event, Canon 3 of the Code was amended in 1979 to bring

it into conformity with Section 455, and it now permits a

waiver of disqualification where, as here, the only ground

is that a judge’s impartiality might reasonably be

8

questioned. Code of Judicial Conduct for United States

Judges, Part | at 1-14, 1-18d. Thus petitioners’ contention

has no continuing significance and does not warrant

further review.

2. Petitioners also contend (Pet. 15-18) that their

Section 455(e) waiver was invalid because Judge Thomp-

son did not, at the time of the waiver, inform them of the

bridge club letter he had written or his remarks at the

university function. But as both courts below correctly

held (Pet. App. A20, A47-48), petitioners were on notice

that Judge Thompson was aware of Conforte’s prior

encounters with the criminal justice system. Because his

knowledge of that record was the basis for his negative

views towards Conforte, petitioners had sufficient

information to make the waiver decision. Judge Thomp-

son revealed that Conforte’s prior brushes with the

criminal justice system and the Internal Revenue Service

had remained in his memory, and it should surely have

occurred to petitioners that such knowledge would not

induce a favorable view of Conforte’s character.

Moreover, as the district court observed (Pet. App. A47-

A48), “full disclosure” cannot reasonably be construed as

imposing on a judge “the impossible task” of reciting

remarks he does not recall having made. In any event, this

fact-bound issue does not warrant further review.

3. Petitioners also contend (Pet. 19-22) that the courts

below erred in finding that Judge Thompson did not have

a personal bias or prejudice concerning Conforte within

the meaning of Section 455(b)(1)—a ground as to which

the statute permits no waiver. This contention rests on a

misconstruction of the term “personal,” which, as used in

Section 455 (or the similarly-worded 28 U.S.C. 144),

stands “in contrast with judicial; it characterizes an

attitude of extra-judicial origin * * *.” Craven v. United

States, 22 F. 2d 605, 607 (ist Cir.), cert. denied, 276 U.S.

9

627 (1927). Accord, United States v. Grinnell Corp., 384

U.S. 563, 583 (1966); United States v. Haldeman, 559 F.

2d 31, 132, 135-136 (D.C. Cir. 1976), cert. denied, 431

U.S. 933 (1977). As the district court properly found (Pet.

App. A53), Judge Thompson's opinion of Conforte was

derived from the facts disclosed in the various judicial

proceedings in which Conforte had appeared before him.

Furthermore, “personal bias” has been defined as “an

attitude toward [a litigant] that is significantly different

from and more particularized than the normal, general

feelings of society at large against convicted wrongdoers.”

Mims v. Shapp, 541 F. 2d 415, 417 (3d Cir. 1976).

Petitioners failed to show that the attitude of Judge

Thompson, who knew from official proceedings that

Conforte operated a house of prostitution and was a

twice-convicted felon, was different from popularly held

views concerning persons with criminal records engaged

in that trade.* Accordingly, the courts below were correct

in holding that Judge Thompson had no “personal bias or

prejudice” in the statutory sense concerning Conforte.

‘Petitioners also contend (Pet. 21) that the “savage 20-year sentence

imposed on Joseph Conforte * * * constitutes convincing evidence of

Judge Thompson’s personal bias and prejudice.” But as the court of

appeals observed (Pet. App. A21), “the record makes clear that the

sentences were imposed to test [petitioners’] right to file Sudlivan-

Garner returns and not because of any perscnal bias against them.”

Furthermore, as the following colloquy from Judge Thompson's

deposition shows, it was apparent to all concerned that the 20-year

sentence was not meant to stand (Deposition of Judge [Thompson at

25-26):

Q. [by Conforte’s attorney] At the time the additional

fifteen-year sentence was imposed, was it your intention, sir,

that if the sentence was affirmed on appeal that you would

reduce the sentence if a subsequent motion to modify was

brought?

A. Yes. | think that is probably the only time * * * that you

ever heard a judge preface a sentence with a statement to the

defendant that he had rights under Rule 35 to move to

modify.

10

4. Petitioners finally contend (Pet. 23-24) that the

courts below erred in holding that the motion for a new

trial, insofar as it was based on the “newly discovered”

bridge club letter written by Judge Thompson, was

untimely; and they assert a conflict with decisions of other

circuits on the question whether a disqualification motion

based on 28 U.S.C. 455 and alleging personal bias or

prejudice is subject to any timeliness requirement.

As petitioners point out, Section 455 contains no

express timeliness requirement. The “personal bias and

prejudice” subsection of that provision, however, is in pari

materia with 28 U.S.C. 144 (dn re International Business

Machines Corp., 618 F. 2d 923, 928 (2d Cir. 1980), citing

Davis v. Board of School Commissioners of Mobile

County, 517 F. 2d 1044, 1052 (Sth Cir. 1975), cert. denied,

425 U.S. 944 (1976)); and Section 144 does require that a

motion to disqualify be timely made.’ This timeliness

requirement has, accordingly, been declared applicable to

a personal bias claim under Section 455 as well. Jn re

International Business Machines Corp., supra, 618 F, 2d

at 932; United States v. Daley, 564 F. 2d 645, 651 (2d Cir.

1977), cert. denied, 435 U.S. 933 (1978). See also United

States v. Patrick, 542 F. 2d 381, 390 (7th Cir. 1976), cert.

denied, 430 U.S. 931 (1977). As the district court noted

(Pet. App. A44 n.7): “[To conclude otherwise] would

allow any litigant to evade the procedure established in

section 144 by simply ignoring that section in favor of

section 455. The result would be to effectively repeal

section 144 and render it meaningless.” See Rousell v.

Tidelands Capital Corp., 438 F. Supp. 684, 691 (N.D.

Ala. 1977). See also Johnson v. United States, 318 U.S.~

189, 201 (1943).

SThe text of 28 U.S.C. 144 is reprinted at Pet. App. D1-D2.

The cases on which petitioners rely (Pet. 23) are all

distinguishable. In three of them, Potashnick v. Port City

Construction Co., 609 F. 2d 1101 (Sth Cir, 1980), cert.

denied, No. 79-1522 (Oct. 6, 1980); SCA Services, Inc. v.° .

Morgan, 557 F. 2d 110 (7th Cir. 1977), and United States

v. Amerine, 411 F. 2d 1130 (6th Cir. 1969), the claims

concerned the relationship of the judge or his relatives to

one of the parties, not claims of personal bias. No overlap

between Section 144 and Section 455 was involved, and

thus the question of the interaction between those

provisions was not there presented. In the other two cases,

Davis v. Board of School Commissioners of Mobile

County, supra, and United States v. Brown, 539 F. 2d 467

(Sth Cir. 1976), claims of bias were involved but no

timeliness issue was presented. In Davis, which affirmed

the trial judge’s denial of the motion to disqualify, the

motion had been made early in the proceedings and was

clearly timely. In Brown, the motion, although made

years after trial, was filed promptly once the facts relating

to the trial judge’s apparent bias were made known to the

defendant. In the present case, by contrast, Conforte,

although having personal knowledge that Judge Thomp-

son had been involved in the rejection of his bridge club

application, not only did not move to disqualify Judge

Thompson, or at least remind him of the incident, but

rather asked the judge to try the case without a jury. The

present case thus clearly did present a timeliness question,

which the courts below properly resolved against

petitioners.°

*Petitioners argue (Pet. 23) that the failure of Congress, despite the

Justice Department's recommendation, to insert a_ timeliness

requirement into Section 455 when it amended that section in 1974

indicates that Congress wished to allow Section 455 disqualification

motions to be made at any time. Under old Section 455, however,

courts assumed a timeliness requirement. See, e.g., Zoviuck v. United

States, 448 F. 2d 339, 343 (2d Cir. 1971), cert. denied, 405 U.S. 1043

(1972). Thus, Congress’ failure to act on the Justice Department's

°

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wapbe H. McCrae, Jr.

Solicitor General

M. CARR FERGUSON

Assistant Attorney General

ROBERT E. LINDSAY

Davip |. PINCUS

Altorneys

NOVEMBER 1980

suggestion could just as reasonably be construed as evidence that

Congress was satisfied with the then-existing judicial gloss on Section

455 and saw no need for additional legislation.

w

DOJ-1980-11

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