United States v. Conforte

• Citation: 457 F. Supp. 641
• Decision Date: 04 August 1978
• Docket Number: No. CR 77-00024 BRT.,CR 77-00024 BRT.
• Parties: UNITED STATES of America, Plaintiff, v. Joseph CONFORTE and Sally Conforte, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

457 F. Supp. 641

UNITED STATES of America, Plaintiff, v. Joseph CONFORTE and Sally Conforte, Defendants.

No. CR 77-00024 BRT.

United States District Court, D. Nevada.

August 4, 1978.

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Leland E. Lutfy, Asst. U. S. Atty., Reno, Nev., for plaintiff.

Bruce I. Hochman and Harvey D. Tack, Hochman, Salkin & DeRoy, a Professional Corp., Beverly Hills, Cal., Stanley H. Brown, James Belford Brown, Stanley H. Brown, Chartered, Reno, Nev., for defendant Joseph Conforte.

Oscar B. Goodman, Goodman, Oshins, Brown & Singer, Chartered, Las Vegas, Nev., for defendant Sally Conforte.

MEMORANDUM OPINION

FERGUSON, District Judge.

Following a bench trial before Judge Bruce R. Thompson, the defendants were convicted and sentenced on four out of ten counts of an indictment charging them with violations of the federal tax laws. After filing notices of appeal, the defendants presented motions for a new trial on the ground that newly discovered evidence indicated that Judge Thompson had been personally biased and prejudiced against them at the time of their trial. The Court of Appeals for the Ninth Circuit remanded the case to permit consideration of the motions and assigned the undersigned to the District of Nevada for that purpose. An evidentiary hearing was conducted in order to resolve the factual issues presented. Having carefully considered the evidence produced at the hearing, as well as the briefs and oral argument of counsel, I conclude that the motions for new trial must be denied as to both defendants.¹

I

A. Factual Background.

Joseph Conforte is the owner of a house of prostitution known as the Mustang Ranch in Storey County, near Reno, Nevada. The present case does not represent his first experience with the criminal justice system:

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.

Apart from his appearances in court, the defendant has had only very limited personal contact with Judge Thompson. Both Conforte and Judge Thompson are avid bridge players, and on approximately 25 occasions they have played in the same tournaments, although never as partners. On each such occasion they said "hello" to each other, and at one tournament they spoke briefly about politics.

Conforte and Judge Thompson also recall having met outside the courtroom at three other times. The first was shortly after Judge Thompson had acquitted the defendant of the Mann Act charge. They both attended a play at the Reno Little Theatre, where Mr. Conforte introduced his daughter to the judge during an intermission. The second time was at a charitable event for which Mr. Conforte had donated two or three mink coats to be auctioned. The two talked briefly on that occasion. Their third meeting was in a men's clothing store, and again they spoke only briefly. Mr. Conforte describes Judge Thompson as having been "very cordial, very friendly" on each of these occasions.

B. The Present Case.

In the fall of 1977, a ten count indictment was filed against the Confortes charging them with violations of 26 U.S.C. § 7201, the willful attempt to evade and defeat withholding taxes due the United States. Prior to trial, the government and the defendants appeared before Judge Thompson for the purpose of entering a waiver of the right to a jury trial. A transcript of those proceedings is set out in the margin.² Before the jury waiver was accepted by the court, Judge Thompson advised the defendants that he had knowledge of facts about Mr. Conforte, based upon the defendant's prior court cases, which would constitute grounds for disqualification if he were a juror. The defendants then specifically waived any objection to Judge Thompson's qualification to sit as the trier of fact despite his prior knowledge regarding Mr. Conforte.

The case proceeded to trial before Judge Thompson. Following the presentation of evidence by the prosecution and the defense, the Confortes were acquitted by the judge on the first six counts of the indictment pertaining to the filing of false quarterly returns. However, they were found guilty on the remaining four counts of evasion of withholding taxes. Mr. Conforte was sentenced to 5 years in prison on each count, the terms to run consecutively for a total of 20 years. In addition, he was fined $10,000 on each count, for a total of $40,000. Mrs. Conforte was sentenced to concurrent prison terms of 4 years on each of the four counts; however, execution of the sentence was suspended, and she was placed on probation. She was also fined $10,000 on each count.

At the time of sentencing Judge Thompson commented extensively regarding his reasons for imposing sentences which he recognized to be particularly severe. The relevant portions of his remarks are printed in full in the margin.³ The judge explained that he was especially concerned about the fact that, in at least one of the tax years in question, the defendants had filed "Sullivan" tax returns. In such returns, named after the decision in United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), the taxpayer declares only his net income and tax due based upon his own undisclosed computation of net worth. No other information is furnished because the taxpayer claims a Fifth Amendment privilege against any additional disclosure. Judge Thompson felt very strongly that the Confortes were not entitled to file such limited returns, and he candidly informed the defendants and their counsel that the sentences were designed to assure that the "Sullivan" return question would be addressed and decided by the appellate courts.

C. The "Newly Discovered Evidence."

In their motions for a new trial, the defendants allege that following their convictions they discovered evidence which indicates that Judge Thompson harbored a personal bias against them at the time of their trial and sentencing. The evidence relates to two incidents: (1) comments made by Judge Thompson in a 1973 letter on behalf of the Reno Unit of the American Contract Bridge League; and (2) remarks allegedly made by Judge Thompson at a cocktail party following a football game in 1973. As developed at the evidentiary hearing, the facts regarding these two incidents may be summarized as follows:

1. The Bridge Club Letter.

In late 1972, Mr. Conforte submitted a membership application to the Reno Unit of the American Contract Bridge League. At the time that Mr. Conforte applied for membership, Judge Thompson was the president of the Reno Unit. When Mr. Conforte's application was received by the Board of Directors there was extensive discussion as to whether or not it should be accepted. Although prostitution was not illegal in Storey County, Nevada, the women on the Board objected to Mr. Conforte being a member of their organization because of his occupation. During the discussion, Judge Thompson also informed the Board members of Mr. Conforte's felony record.

The consensus of the Board was that, if possible, Mr. Conforte's application to the Reno Unit should be rejected. As president, Judge Thompson was asked to write to the national organization for guidance on the procedure and the propriety of declining to accept Mr. Conforte as a member. The Board also felt that Judge Thompson was an appropriate person to write the inquiry because it was anticipated that rejection of the application might raise legal questions and that he would be able to understand any such discussion.

On February 2, 1973, Judge Thompson wrote on court stationery to the national headquarters of the League and presented the questions which had been raised by the Board regarding Mr. Conforte's application.⁴ The letter was straightforward in expressing the Board's opinion that Mr. Conforte was not of "good moral character" and that he was not the sort of person with whom the members of the unit desired to associate.

In response to his letter, Judge Thompson was advised by the general counsel to the American Contract Bridge League that rejection of Mr. Conforte's application on the grounds stated by the Board appeared to be appropriate. A majority of the Board then voted to deny membership to Mr. Conforte. Again using his court stationery, Judge Thompson wrote to the defendant informing him of the decision of the Reno Unit and forwarding a check for $3 as a refund of the application fee. The rejection by the bridge club had a profound effect upon Mr. Conforte. He was very upset, and his pride was so hurt that he tore up the check and the letter from Judge Thompson and declined to tell any of his acquaintances about the incident.

2. The Football Cocktail Party.

In the fall of 1973, the University of Nevada-Reno defeated the University of Nevada-Las Vegas in football. After the game there was a cocktail party at the home of one of the Reno assistant coaches who was the son of Judge Thompson's secretary. Judge and Mrs. Thompson attended, together with about fifty other guests. Also at the party was Mr. Roy Woofter...