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104 Nev.

1, 1 (1988)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 104
____________
104 Nev. 1, 1 (1988) Beeny v. California State Auto Ass'n
RAYMOND MAX BEENY, Appellant, v. CALIFORNIA STATE AUTOMOBILE
ASSOCIATION INTER-INSURANCE BUREAU, an inter-insurance exchange, existing
under the law of California, Respondent.
No. 17607
CHARLES WILLIAMS, Appellant, v. FARMERS INSURANCE EXCHANGE, an
inter-insurance exchange existing under the laws of California, Respondent.
No. 18460
March 30, 1988 752 P.2d 756
Consolidated appeals from two grants of summary judgment. Second Judicial District
Court, Washoe County; William N. Forman, Judge; Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Passengers injured in separate automobile accidents brought separate actions seeking to
stack underinsured motorist and medical benefits of policies issued to drivers of automobiles.
The district courts entered judgment in favor of insurers, and passengers appealed.
104 Nev. 1, 2 (1988) Beeny v. California State Auto Ass'n
district courts entered judgment in favor of insurers, and passengers appealed. The Supreme
Court held that passengers could not stack underinsured motorist benefits and medical
benefits of driver-owners automobile policies.
Affirmed.
Durney & Brennan, Reno, for Appellant Raymond Max Beeny.
Albert D. Massi, Las Vegas, for Appellant Charles Williams.
Beckley, Singleton, DeLanoy, Jemison & List, Daniel F. Polsenberg, and C. Eric Funston,
Las Vegas, for Respondents California State Automobile Association Inter-Insurance Bureau
and Farmers Insurance Exchange.
1. Insurance.
Guest passenger could not stack underinsured motorist and medical coverage benefits of the
owner/drivers' automobile policies.
2. Insurance.
Uninsured motorist coverage of named insured, although contained in her automobile policy, was
personal in nature and not tied to the use of any of her vehicles and, at any given time, under the terms of
her insurance, she was covered against uninsured motorist by all of her policies and was thus entitled to
stack the benefits of those policies if necessary.
OPINION
Per Curiam:
The Facts
On November 21, 1985, a motorist negligently crossed the center line and struck an
automobile owned and driven by Ann Kaiser. Appellant Raymond Beeny, a passenger in
Kaiser's car, was injured by the collision. The motorist causing Beeny's injury was
underinsured. After settling with the tortfeasor for the policy limits of his liability insurance,
Beeny pursued claims for his remaining damages against respondent California State
Automobile Association (hereafter CSAA), which insured Ms. Kaiser and her vehicles.
Kaiser's single policy with CSAA covered four vehicles, including the one that was hit.
She paid four separate premiums for her coverage under this policy. Her policy provided for
$15,000 in uninsured or underinsured motorist (hereafter UM) benefits and $10,000 in
medical payment benefits for injury occurring in any of the four vehicles. Kaiser, her
relatives, and passengers were covered by the policy for injuries caused by an underinsured
motorist while in one of her insured vehicles.
104 Nev. 1, 3 (1988) Beeny v. California State Auto Ass'n
Beeny argued that he was entitled to stack the UM and medical payment coverage on
Kaiser's four vehicles and recover up to $60,000 in UM benefits and $40,000 in medical
benefits. CSAA conceded that the named insured, Kaiser, could stack the coverages under the
policy but argued that guest passengers were not entitled to stack under Kaiser's policy.
According to CSAA's interpretation of its policy, Beeny could only recover up to $15,000 in
UM benefits and up to $10,000 in medical benefits, the policy limits for the vehicle in which
he was injured.
Beeny brought an action and moved for partial summary judgment on the issue of
stacking. CSAA filed a counter-motion for summary judgment on this issue. The lower court
found that CSAA's position was the majority rule of other jurisdictions and that Nevada
would also disallow stacking by guest passengers. It therefore granted CSAA's
counter-motion for summary judgment.
1

Discussion
We have previously held, on several occasions, that a person who purchase a multi-vehicle
insurance policy or several policies may stack the policies' UM coverage. Rando v. Calif. St.
Auto. Ass'n, 100 Nev. 310, 684 P.2d 501 (1984; Allstate Ins. Co. v. Maglish, 94 Nev. 699,
586 P.2d 313 (1978); State Farm Mut. Auto. Ins. Co. v. Christensen, 88 Nev. 160, 494 P.2d
552 (1972); United Servs. Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970). But we
have not yet considered whether a guest passenger, like a named insured, may stack coverage
when he or she is injured in a vehicle covered by the named insured's multiple vehicle policy.
These consolidated cases present this issue.
[Headnote 1]
After consideration of the relevant provisions of the insurance policies and the arguments
made by the parties, we conclude that Beeny and Williams, as guest passengers, cannot stack
the UM and medical coverage benefits of the owners' insurance policies. Therefore, the
decisions of the lower court are affirmed.
Our decision is based, in part, on the express provisions of the insurance agreements. For
example, Kaiser's CSAA policy provides:
We will pay damages for bodily injury which an insured person is legally entitled to
recover from the owner or operator of an uninsured motor vehicle.
____________________

1
Williams' case involves the identical legal issue and it was also dismissed on summary judgment. In his
situation, the driver of the vehicle had two separate policies, rather than one multi-vehicle policy. However, we
deem this difference insignificant.
104 Nev. 1, 4 (1988) Beeny v. California State Auto Ass'n
. . . .
(1) Insured person or Insured persons means:
(a) You or a relative;
(b) any other person occupying your auto.
2

Under the terms of the policy, we note that two classes of insureds exists. First, the
named insured (and any relative); and second, any other person while occupying an insured
automobile. To be insured, the latter must actually be occupants of an insured vehicle. . . .
This is not true of the named insured. His coverage . . . is not tied to or limited by occupancy
of an automobile. Sturdy v. Allied Mut. Ins. Co., 457 P.2d 34, 40 (Kan. 1969). Courts have
generally labelled these two classes class one insureds and class two insureds.
[Headnote 2]
By the terms of the agreement, Kaiser, as a class one insured, was protected against
uninsured motorists regardless of whether she was in a car, in her house, or on the street. Her
UM coverage, although contained in her automobile insurance policy, is personal in nature
and not tied to use of any of her vehicles.
3
At any given time, under the terms of the
insurance, Kaiser was covered against uninsured motorists by all four of her policies,
4
and
therefore was entitled to stack the UM benefits of these policies, if necessary.
On the other hand, by the very terms of Kaiser's policy, Beeny's UM coverage was tied to
the vehicle he was in. It arose only because he was in a car Kaiser insured. Therefore, his
entitlement to UM benefits, unlike Kaiser's, arose under the terms of the one specific policy
covering the car he occupied.
____________________

2
A similar provision governs medical benefits.

3
As we noted in Rando v. California State Automobile Association, 100 Nev. 310, 315, 684 P.2d 501, 504
(1984), (quoting Emick v. Dairyland Ins. Co., 519 F.2d 1317,1325-26 (4th Cir. 1975)):
[T]he person is the subject of the coverage and it is not relevant that the protection afforded in the form
of uninsured motorist coverage . . . is attached to a policy of motor vehicle liability insurance. . . . [I]t is
precisely the floating, personal accident insurance character of . . . uninsured motorists coverage which
has led courts to ignore the fact that these coverages have been engrafted onto liability policies ensuring
particular cars, and to hold that . . . stacking will be allowed.

4
Although technically, in Beeny's case, only one policy existed, this policy provides When two or more cars
are insured under this policy, the terms of this policy shall apply separately to each. Analytically, this
multi-vehicle policy can be viewed as four separate policies, each covering one vehicle. Therefore, for ease of
explanation, we will discuss Kaiser's multi-vehicle policy as though it were four separate policies. However, the
driver/owner in Williams' case had two separate policies, rather than a multi-vehicle policy, and the individual
nature of the policies is evident without such an analytic construction.
104 Nev. 1, 5 (1988) Beeny v. California State Auto Ass'n
terms of the one specific policy covering the car he occupied. Under the terms of the other
three policies, he was not an insured. Because his coverage arose under only one policy, he
is entitled to the UM benefits of only that policy, and not the policies covering the other
vehicles.
We note that our decision is consistent both with the language of the policy and the
majority of decisions by other state courts. Our research indicates that although only three
states
5
have allowed stacking by guest passengers, at least fourteen other states
6
at this
point have disallowed stacking by guest passengers. In concluding that guest stacking is
impermissible, these fourteen courts have generally considered insurance policies similar to
those now considered by this court.
Our logic in Rando, 100 Nev. 310, 684 P.2d 501, also supports this decision. In Rando,
Stephanie Ritzer-Rando was a class one insured under a three-vehicle CSAA policy. This
policy covered Rando for any injury or death she caused when using another person's vehicle.
Rando killed Williams when using another person's vehicle. Williams' wife sued CSAA,
claiming that Rando's personal injury coverage under the three-vehicle CSAA policy could be
stacked.
In deciding Rando, we distinguished first-person coverage, in which the coverage focuses
on the person of the insured, from third-person coverage, which arises from the use . . . of a
vehicle. 100 Nev. at 314, 684 P.2d at 504. We noted that although first-person coverage
can be stacked, third-person coverage cannot. Id.
Kaiser's UM guest coverage is similar in nature to Rando's personal injury coverage.
____________________

5
Calibuso v. Pacific Ins. Co., 616 P.2d 1367 (Haw. 1980); Barbin v. United States Fidelity and Guar. Co.,
315 So.2d 754 (La. 1975); Kemp v. Allstate Ins. Co., 601 P.2d 20 (Mont. 1979).

6
Moomaw v. State Farm Mut. Auto. Ins. Co., 379 F.Supp. 697 (S.D.W.Va. 1974); Holloway v. Nationwide
Mut. Ins. Co., 376 So.2d 690 (Ala. 1979); American States Ins. Co. v. Kelley, 446 So.2d 1085 (Fla.Dist.Ct.App.
1984); Holland v. Hawkeye Sec. Ins. Co., 230 N.W.2d 517 (Iowa 1975); Sturdy v. Allied Mut. Ins. Co., 457
P.2d 34 (Kan. 1969); Ohio Casualty Ins. Co. v. Stanfield, 581 S.W.2d 555 (Ky. 1979); Auto-Owners Ins. Co. v.
Traviss, 248 N.W.2d 673 (Mich.Ct.App. 1977); Murphy v. Milbank Mut. Ins. Co., 388 N.W.2d 732 (Minn.
1986); Hines v. Gov't Employees Ins. Co., 656 S.W.2d 262 (Mo. 1983); Lopez v. Foundation Reserve Ins. Co.
646 P.2d 1230 (N.M. 1982); Babcock v. Adkins, 695 P.2d 1340 (Okla. 1984); Utica Mut. Ins. Co. v.
Contrisciane, 473 A.2d 1005 (Pa. 1984); Cunningham v. Insurance Co., 189 S.E.2d 832 (Va. 1972); Thompson
v. Grange Ins. Assoc., 660 P.2d 307 (Wash.App. 1983). See also 1 A. Widiss, Uninsured and Underinsured
Motorist Insurance 13.11 (2d ed. 1985) (suggests guest passengers should not be allowed to stack).
Some of these cases involve fleet coverage of a large number of vehicles, rather than a coverage of three or
four vehicles as is involved in this case. See, e.g., Stanfield, 581 S.W.2d 555. However, the principles involved
in fleet cases are the same as in this case; the only difference is that the number of vehicles involved is greater.
104 Nev. 1, 6 (1988) Beeny v. California State Auto Ass'n
although first-person coverage can be stacked, third-person coverage cannot. Id.
Kaiser's UM guest coverage is similar in nature to Rando's personal injury coverage.
Beeny's UM coverage arose only because he was a guest in a particular vehicle; Rando's
personal injury coverage arose only because she used a particular vehicle. Both coverages
essentially focus[ed] on a particular vehicle, without which the protection would not exist.
100 Nev. at 315, 684 P.2d at 504. Therefore, the logic behind Rando is consistent with our
present conclusion that guest passengers cannot stack UM coverage of multi-vehicle
insurance policies.
Our decision also produces a fair result. It does not limit Beeny, or any other class two
insureds, to recovery under only the policy of the vehicle they occupy as guests. If they have
their own vehicle policies, they will be covered as class one insureds under the UM
provisions of their policies. Therefore, they can stack their own class one UM coverage with
the additional class two coverage. Were we to allow guests to stack both their own and other's
UM coverages, however, passengers would be allowed the benefits of double stacking,
which, in our opinion, would be an anomalous result.
For the above stated reasons, we affirm the summary judgment in both cases.
____________
104 Nev. 6, 6 (1988) Duckett v. State
TONY DUCKETT, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17644
March 30, 1988 752 P.2d 752
Appeal from conviction of two counts of first degree murder and imposition of sentence.
Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court of two counts of first degree murder and one
count of burglary, and he appealed. The Supreme Court held that: (1) error in failing to give
alibi instructions was harmless; (2) requiring defendant to wear shackles and jail garb during
sentencing hearing was not abuse of discretion; and (3) defendant was not prejudiced by trial
judge's intervention and comments at trial.
Affirmed.
Morgan D. Harris, Public Defender, Lee A. Gates, Deputy, Susan Deems Roske, Deputy,
Clark County, for Appellant.
104 Nev. 6, 7 (1988) Duckett v. State
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, James
Tufteland, Deputy, and Thomas Moreo, Deputy, Clark County, for Respondent.
1. Criminal Law.
Alibi instructions must be given in criminal prosecution if requested by defendant and if defendant's alibi
theory is supported by evidence.
2. Criminal Law.
Trial court's error in failing to give alibi instruction in homicide and burglary prosecution was harmless
beyond reasonable doubt, in light of overwhelming evidence that defendant committed crime.
3. Criminal Law.
Constitutional foundation for defendant's right to wear normal apparel at guilt-innocence of phase trial no
longer existed at sentencing phase, and public safety concerns had to be accorded greater significance;
therefore, decision concerning necessity for physically restraining defendant at penalty stage of trial had to
be left to sound discretion of trial court. U.S.C.A.Const. Amend. 14.
4. Criminal Law.
Trial court did not abuse its discretion by refusing defendant's request to be free of manacles and prison
garb during sentencing phase of trial; conceivably, after being convicted of two heinous crimes for which
death penalty could have been imposed, defendant might have concluded that he had nothing to lose from
further acts of violence. U.S.C.A.Const. Amend. 14.
5. Criminal Law.
Defendant suffered no prejudice from trial judge's taking active role in soliciting testimony from
witnesses and, commenting to counsel during course of trial; although several comments made during trial
appeared to be inappropriate and judicial questioning of witnesses was overzealous, comments were made,
for most part, outside presence of jury, and questioning appeared to be evenhanded.
OPINION
Per Curiam:
The Facts
At approximately 9:30 p.m. January 31, 1986, Elmo Armstrong and his wife Margaret
were murdered in their home, both repeatedly shot in the head.
1
Their granddaughters
Latosha Armstrong and Ursula Page lived with them and were in the house when their
grandparents were shot. At that time, Latosha was about eighteen years old; Ursula was
nearly sixteen.
Latosha testified that at approximately 9:30, she heard someone knock loudly on the front
door. The front door, usually not used, led to a hallway that provided access to various
bedrooms and the kitchen.
____________________

1
Elmo was shot in the head five times; Margaret seven times. One expert testified that all but one of the
bullets were fired from the same gun.
104 Nev. 6, 8 (1988) Duckett v. State
and the kitchen. Latosha then heard a sound like someone knocking up against the wall.
Curious, she went from the family room to the kitchen. Latosha then heard her grandfather
say, Tony, and her grandmother say, Tony, what are you doing? She suddenly head four
or five shots, followed by her grandmother exclaiming Oh no. God. Oh, no. She then heard
more shots.
Frightened, Latosha ran back into the family room and out the side door. Ursula, who was
in the family room, followed her sister out of the house, running onto a sidewalk. Ursula
testified she then saw a person running in front of my sister, and then I saw my sister, and
then I saw a person run past me and behind her. Both persons were carrying long guns,
apparently rifles. Afraid that her sister would be shot, Ursula screamed. As a result, the
person who ran past her looked over his shoulder at her. Ursula testified that the area was
lighted, and from about seven to ten yards, she recognized this person as Tony Duckett, her
grandfather Elmo's nephew. She testified that she was well acquainted with his appearance
because (1) he was her cousin, and (2) she had seen him many times before this encounter.
Ursula then ran to the neighbor's yard and fainted. When the police came, she told them that
she had seen Duckett running away from her grandparents' house.
Latosha also testified that one month before the murders, Duckett came to the house and
asked his uncle, Elmo, for an advance on his salary. Duckett worked for Elmo. Elmo refused
to give him any money, asked him to leave, and finally hit him in an effort to force him out of
the house.
At trial, Duckett argued that he had been misidentified. He testified that at approximately
8:30 or 8:45 on the evening the murders occurred, he went to Francis Gilkey's home, together
with his brother Kevin and another person named Tony, and stayed there until 10:00 p.m. His
friends, Francis Gilkey and Brenda Montgomery, also testified that on the evening in
question, Duckett was with them at Gilkey's home.
The jury convicted Duckett for one count of burglary and two counts of first-degree
murder, sentencing him to life without the possibility of parole. He appeals these convictions.
Discussion
Duckett presents three important issues for our consideration: (1) whether he was
prejudiced by a failure to give alibi instructions; (2) whether he was prejudiced by being
forced to wear shackles and jail garb during the sentencing hearing, and; (3) whether he was
prejudiced by Judge Goldman's intervention and comments at trial.
104 Nev. 6, 9 (1988) Duckett v. State
Duckett requested the lower court to give the following jury instruction:
The defendant has introduced evidence for the purpose of showing that he was not
present at the time and place of the commission of the alleged offense for which he is
here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that
the defendant was present at the time the crime was committed, he is entitled to an
acquittal.
The lower court refused the proffered alibi instruction.
We have repeatedly held that A defendant in a criminal case is entitled, upon request, to a
jury instruction on his theory of the case so long as there is some evidence, no matter how
weak or incredible, to support it. Roberts v. State, 102 Nev. 170, 172-73 717 P.2d 1115,
1116 (1986). On the other hand, we have noted that a defendant is not entitled to multiple
instructions on the same subject. Wallace v. State, 84 Nev. 603, 605, 447 P.2d 30, 31
(1968). In this case, we are asked to determine whether alibi instructions must be given in
addition to other instructions requiring the State to prove its case beyond a reasonable doubt,
or whether they are an unnecessary reiteration of these other instructions.
[Headnote 1]
Although we have not addressed this exact issue, a number of other courts have. The clear
majority of states require a court to give alibi instructions if (1) there is some evidence to
support the position that defendant was elsewhere when the crime occurred, and (2) the
defendant request the instructions.
2
We agree with the majority view and conclude that,
when requested and supported, alibi instructions should be given.
Although alibi instructions may, to some extent, merely be a reiteration of other
instructions, they are not totally redundant.
____________________

2
E.g., United States v. Hicks, 748 F.2d 854, 857 (4th Cir. 1984); Carlisle v. State, 356 So.2d 702, 703
(Ala.Crim.App. 1978); Ferguson v. State, 488 P.2d 1032, 1038-39 (Alaska 1971); People v. Ratliff, 715 P.2d
665, 676 (Cal. 1986); Jackson v. State, 374 A.2d 1, 2 (Del. 1977), rev'd on other grounds sub. nom. Tramill v.
State, 425 A.2d 142 (1980); Williams v. State, 395 So.2d 1236, 1238 (Fla. 1981); Hill v. State, 228 S.E.2d 898,
899 (Ga. 1976); Pulley v. State, 382 A.2d 621, 625 (Md. 1978); People v. McGinnis, 262 N.W.2d 669, 671
(Mich. 1978); Young v. State, 451 So.2d 208, 211 (Miss.), cert. denied, 469 U.S. 860 (1984); State v.
Romesburg, 703 S.W.2d 562, 565 (Mo.Ct.App. 1985); People v. Bacon, 446 N.Y.2d 634, 635 (App.Div. 1981);
State v. Hunt, 197 S.E.2d 513, 515 (N.C. 1973); State v. Bridgeman, 366 N.E.2d 1378, 1389 (Ohio 1977),
modified 381 N.E.2d 184 (1978); Goodwin v. State, 654 P.2d 643, 644 (Okla.Crim.App. 1982); State v.
Yielding, 395 P.2d 172, 173 (Or. 1964); Commonwealth v. Brunner, 491 A.2d 150, 152-53 (Pa. 1985); State v.
Robbins, 271 S.E.2d 319, 320 (S.C. 1980); Christian v. State, 555 S.W.2d 863, 864 (Tenn. 1977); Jones v.
State, 398 S.W.2d 753, 754 (Tex. 1966).
104 Nev. 6, 10 (1988) Duckett v. State
For example, alibi instructions may prevent a jury from mistakenly believing that the
defendant has the burden of proving that he was elsewhere, thereby minimizing the prospect
of prejudicial error on the point. Such instructions also remind the jury of the main factual
dispute it must resolve. Finally, alibi instructions are justified under the general rule that a
defendant is entitled to have instructions given on his theory of the case if evidence supports
it.
3
It is preferable, when an alibi defense is asserted, to overclarify the law for the jury's
benefit, rather than take a chance that the jury is mistaken on a crucial point. Therefore, we
conclude that alibi instructions must be given if requested and if defendant's alibi theory is
supported by evidence.
[Headnote 2]
Having concluded that the lower court erred by not giving an alibi instruction, we can
sustain Duckett's conviction only if we can say that the error was harmless beyond a
reasonable doubt. United States v. Hicks, 748 F.2d 854, 858 (4th Cir. 1984). After
consideration of oral argument and the record, we hold that the district court's error was
harmless beyond a reasonable doubt. The State produced overwhelming evidence that
Duckett committed the crime. For example, Ursula Page testified that, from seven to ten
yards away, she saw Duckett running from the murder scene with a rifle. Both Ursula and
Latosha testified that they heard their grandparents call out Tony immediately before the
shootings. And Latosha testified about the altercation, prior to the murder, where Elmo struck
Tony in an effort to get him out of the house. Therefore, despite the error, the conviction
should be affirmed.
[Headnotes 3, 4]
Duckett also argues that, even if the failure to give alibi instructions is not reversible error,
he was deprived of a fair trial, a constitutional right guaranteed by the fourteenth amendment.
His contention is based upon the fact that during the penalty phase of the trial, despite his
counsel's objection, he was compelled to wear jail garb and manacles. He cites Estelle v.
Williams, 425 U.S. 501 (1976), and Elledge v. Dugger, 823 F.2d 1439 (11th Cir.), modified,
833 F.2d 250 (1987), to support his argument.
In Estelle, the United States Supreme Court held the State cannot, consistently with the
Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in
identifiable prison clothes. 425 U.S. at 512; see also Grooms v. State, 96 Nev. 142, 605
P.2d 1145 {19S0).
____________________

3
In Brooks v. State 103 Nev. 611, 747 P.2d 893 (1987), we noted that a defendant was entitled to a theory
of the defense instruction or position instruction that clarifies the law on a crucial issue, even if a positive
instruction about the elements of a crime had also been given.
104 Nev. 6, 11 (1988) Duckett v. State
Nev. 142, 605 P.2d 1145 (1980). The Court so concluded because of the possible
impairment of the presumption [of innocence] so basic to the adversary system. 425 U.S. at
504. The Court, however, was only considering the prejudicial impact of a defendant's attire
during the guilt-innocence phase of the trial; it did not consider whether a defendant has a
similar right during the sentencing phase.
In Elledge, the Eleventh Circuit considered whether a defendant was prejudiced by being
forced to wear shackles during the sentencing phase of a trial. The court concluded that the
Supreme Court's holding in Estelle applied not only to the guilt-innocence phase of the trial,
but also to the sentencing phase of the trial. The court concluded that before shackling a
defendant, a court must consider less restrictive alternatives, and a defendant must be given
an opportunity to challenge a decision to shackle. By its ruling, the court apparently created
a per se rule that requires a state trial judge always to hold a hearing before shackling a
defendant at the sentencing phase of a bifurcated trialeven when no hearing was
requested. 823 F.2d at 1439 (Edmondson, J., dissenting).
After consideration of the arguments advanced in Estelle, Elledge, Elledge v. State, 408
So.2d 1021 (Fla. 1982), vacated and remanded sub nom, Elledge v. Dugger, 823 F.2d 1439
(11th Cir. 1987), and Bowers v. State, 507 A.2d 1072 (Md. 1986), we are convinced the
lower court did not commit reversible error by refusing Duckett's request to be free of
manacles and prison garb during the sentencing phase of the trial.
As noted above, the Supreme Court's holding in Estellethat a defendant has a
constitutional right to wear normal apparel at the guilt-innocence phase of trialwas
designed to protect the presumption of innocence. However, as repeatedly noted, the
presumption no longer applies after a defendant has been convicted. See Elledge v. Dugger,
823 F.2d at 1453 (Edmondson, J., dissenting); Elledge v. Dugger, 833 F.2d 250, 250 (1987)
(Fay, J., dissenting); Elledge v. State, 408 So.2d at 1022-23; Bowers v. State, 507 A.2d at
1081. As a result, at a sentencing hearing, the constitutional foundation for the Estelle right
no longer exists, and public safety concerns must be accorded greater significance. Therefore,
the decision concerning the necessity for physically restraining a defendant at the penalty
stage of the trial must be left to the sound discretion of the trial court. In making this decision,
the trial judge must balance state interestsfor example, in preserving the safety and security
of the courtroomagainst the interest in preventing prejudice to the defendant. Unless an
abuse of discretion is shown, we will not reverse a sentencing verdict on this issue.
104 Nev. 6, 12 (1988) Duckett v. State
Our review of the record convinces us that the district court did not abuse its discretion in
denying Duckett's request to be free of the manacles and jail garb. Duckett, at the sentencing
phase of the trial, stood convicted of the callous, brutal murder of his aunt and uncle.
Conceivably, after being convicted of two heinous crimes for which the death penalty could
have been imposed, Duckett might have concluded that he had nothing to lose from further
acts of violence. The state had an important interest in safeguarding people in the courtroom,
and we cannot say, on review of the record, that this interest was outweighed by any possible
prejudice that might have resulted from the use of manacles. Therefore, abuse of discretion
has not been shown.
4

[Headnote 5]
Finally, Duckett argues that the manner in which the trial judge conducted the trial
deprived him of due process. More specifically, he argues that because of the active role the
judge took in soliciting testimony from witnesses and commenting to counsel during the
course of the trial, the judge tainted the trial atmosphere, ensuring conviction.
It appears the trial judge may have disregarded our counsel in Kinna v. State, 84 Nev. 642,
646-47, 447 P.2d 32, 35 (1968). In Kinna, we noted:
While we are not unmindful of the heavy court calendars of our district courts and the
sincere desire of our trial judges to expedite the disposition of cases pending before
them, the trial judge's conduct in this casehis display of impatience and active
participation during the trial as an advocateconstituted a disregard for the effect such
conduct might have upon the jury, who look to the judge as their guide and guardian.
Firmly embedded in our tradition of evenhanded justiceand indeed its very
cornerstoneis the concept that the trial judge must, at all times, be and remain
impartial. So deeply ingrained is this tradition that it is now well settled that the trial
judge must not only be totally indifferent as between the parties, but he must also give
the appearance of being so.
Harassment of counsel, prejudicial to his clientand this can take many formsmay
require a new trial. The court may not hamper or embarrass counsel in the conduct of the
case by remarks or rulings which prevent counsel from presenting his case effectively or
from obtaining full and fair consideration from the jury.
____________________

4
Because Duckett was convicted and no longer presumed innocent, he had no right to be free of jail garb.
Accordingly, Estelle does not govern, and the lower court did not err by refusing to grant Duckett's request to
wear normal apparel.
104 Nev. 6, 13 (1988) Duckett v. State
Although several of the comments made during Duckett's trial appear, from the record, to be
inappropriate, and although judicial questioning of witnesses was overzealous, we are not
convinced that Duckett was prejudiced thereby. The trial judge solicited testimony from state
and defense witnesses, when both the prosecution and the defense examined, in an apparent
attempt to explore matters he felt needed clarification or to expedite the trial. His questioning
appeared, from the record, to be even-handed. And the allegedly prejudicial comments he
made to defense counsel were, for the most part, outside the presence of the jury. Although
we do not condone the manner in which the trial judge proceeded, we do not perceive
prejudicial error mandating a new trial.
Duckett's remaining argumentsthat the trial court erred by not giving special instructions
on eye-witness identification, and that the trial court wrongly instructed the jury not to be
influenced by sympathywere rejected by this court in Nevius v. State, 101 Nev. 238, 699
P.2d 1053 (1985), and need not be reconsidered.
Having determined appellant's arguments to be without merit, we accordingly affirm the
judgment of the district court.
____________
104 Nev. 13, 13 (1988) Mahan v. State
DANIEL RAY MAHAN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17715
March 30, 1988 752 P.2d 208
Appeal from judgment of conviction of robbery with use of a deadly weapon and battery
with use of a deadly weapon. Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon and
battery with use of deadly weapon, and he appealed. The Supreme Court held that
prosecutor's comments during rebuttal phase of closing argument concerning fingerprint
evidence constituted misconduct, denying defendant fair trial.
Reversed and remanded.
David Parraguirre, Public Defender, David A. Cass, Deputy Public Defender, Washoe
County, for Appellant.
Brian McKay, Attorney General, Carson City, Mills Lane, District Attorney, and Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
104 Nev. 13, 14 (1988) Mahan v. State
Criminal Law.
Prosecutor's comments during rebuttal phase of closing argument concerning fingerprint evidence was
misconduct and required reversal of convictions for robbery with use of deadly weapon and battery with
use of deadly weapon; prosecutor argued that it was absolutely false to say that fingerprints taken from
victim's taxicab did not match defendant's, although print comparison showed that prints taken from cab
did not match defendant's.
OPINION
Per Curiam:
Appellant Daniel Ray Mahan was convicted of robbery with use of a deadly weapon and
battery with use of a deadly weapon. On appeal, Mahan contends he was denied a fair trial
due to prosecutorial misconduct. Although we do not agree with Mahan's characterization of
misconduct by the prosecutor, the practical equivalent of misconduct did occur and deprive
Mahan of a fair trial. We therefore reverse and remand for a new trial.
Facts
At approximately 10 p.m. on May 5, 1986, James Kane, a Reno taxicab driver, saw a man
approaching his cab. Kane noticed that the man had red hair, wore a black baseball cap and a
red and white plaid coat, and was carrying a blue vinyl bag. After asking if Kane was free, the
man got in and asked to be driven to a specified location. During the drive, which lasted at
most five minutes, Kane glanced at his passenger two or three times via the rear view mirror.
Upon reaching the requested destination, Kane commenced putting his vehicle in park
when he heard some stirring in the back seat and the sound of a folding knife opening.
Suddenly, Kane noticed a knife coming right for his head. Instinctively, Kane threw up his
arm to defend himself, which resulted in a cut to his wrist. Pulling the knife back, the man
again thrust the knife at Kane who, in an attempt to grab the man's hand, grabbed the knife
blade and suffered a cut palm. The man demanded money and Kane gave him approximately
$59.00. Kane's assailant got out of the cab and fled; his baseball cap was found in the back
seat.
Kane contacted the police and assisted them in compiling a composite drawing of his
assailant. An immediate search of the neighborhood produced no results. On the next day,
Officer Marvin Barnes, a participant in the Kane robbery investigation, was assisting fellow
officers in an entirely unrelated matterexecution of a misdemeanor arrest warrant. While
the person sought was not present at the prescribed address, Barnes noticed that one of
the adult males present, appellant Daniel Ray Mahan, bore a strong resemblance to the
individual in the composite drawing.
104 Nev. 13, 15 (1988) Mahan v. State
sought was not present at the prescribed address, Barnes noticed that one of the adult males
present, appellant Daniel Ray Mahan, bore a strong resemblance to the individual in the
composite drawing.
Kane was shown a photographic lineup containing Mahan's picture and identified Mahan
as the individual who assaulted and robbed him. At trial, a hair comparison expert testified
that hair fibers found on the baseball cap did not match Mahan's hair. Two witnesses testified
that at the time of the robbery, Mahan was at home watching television. A third witness who
lived across the street from Mahan stated that he saw Mahan around 9 p.m.
1
One of the
witnesses, Mahan's mother, also testified that Mahan did not own any red plaid clothes, a blue
vinyl bag or a black cap.
On direct examination, Officer Daniel Tapia testified that fingerprints were taken from
Kane's vehicle and that none of the prints belonged to Mahan. On cross-examination, Tapia
indicated that his conclusions regarding the fingerprints had been deduced from a report.
Defense counsel, noting that he had never seen this report or known of its existence,
immediately asked for a temporary adjournment in order that the report be produced;
however, the prosecutor stated that it was her understanding that no such report existed.
Accordingly, the trial judge ordered the State to produce the report if there was one, and
denied defense counsel's request. Following a noon recess, the prosecutor, during redirect
examination of Tapia, introduced the fingerprint report. Tapia testified that the result of the
report was that no identifiable fingerprints were effected.
During closing argument, defense counsel stated, you also heard . . . that the police . . .
were able to collect some fingerprints. You also heard from the same police officer, No, they
were notthey did not match the prints that Daniel Mahan voluntarily gave.' However,
during her rebuttal, referring to Tapia's statement that no identifications were effected, the
prosecutor told the jury, Now, as to what that means, there is no testimony. So to say that
they did not match is an absolute falsehood. Defense counsel objected, noting that it was
Tapia's testimony that the prints did not match Mahan's. The prosecutor, however, argued to
the court that Officer Tapia had corrected himself on the witness stand, to which the trial
judge replied, That's correct, you're both correct. Thereafter, the prosecutor again addressed
the jury and stated, Now he admitted his mistake. . . . He told you he was mistaken the first
time. And I restate his [defense counsel's] statement that the prints did not match is
absolutely incorrect."
____________________

1
This court, of course, expresses no opinion as to the strength or veracity of the alibi witnesses. The record
does indicate Mahan's alibi, as presented by the three witnesses, may have been discredited by voluntary
statements Mahan made to the police.
104 Nev. 13, 16 (1988) Mahan v. State
restate his [defense counsel's] statement that the prints did not match is absolutely incorrect.
Mahan was convicted of robbery with the use of a deadly weapon and battery with a
deadly weapon. A motion for a new trial was denied. In the hearing on that motion, Officer
David Billau, who filled out the fingerprint report introduced at trial, testified that the term
no identifications were effected means that a fingerprint comparison was made and that the
prints lifted off the cab did not match Mahan's prints.
Discussion
On appeal, Mahan argues that the prosecutor's comments concerning the fingerprint
evidence constitute misconduct denying him a fair trial. In response, the State, while
admitting the prosecutor's comments were wrong (i.e., incorrect), argues that the remarks
should be deemed harmless.
The only real evidence that Mahan committed the battery and robbery was Kane's
eyewitness identification. The fact remains that there was a print comparison made showing
that the prints from the taxicab did not match Mahan's. Despite this fact, the prosecutor,
arguing reasonably from Tapia's restated testimony, mischaracterized the evidence in telling
the jury that it was absolutely false to say that the prints did not match Mahan's. What further
exacerbates the problem created by the prosecutor is that, not only was the fingerprint report
belatedly introduced at trial, but the prosecutor's mischaracterization of the evidence received
the apparent support of the trial judge. Furthermore, although the prosecutor had a reasonable
basis for concluding that Tapia's revised testimony indicated that no identifiable fingerprints
were taken from the cab, nothing in Tapia's testimony constituted an admission of mistake in
his initial testimony. In any event, Officer Billau's post-trial testimony made it clear that his
report intended to reflect that fingerprints were indeed taken from Kane's taxicab and they did
not match those of the defendant, Mahan.
We have noted that improper remarks by a prosecutor will not require reversal if the
evidence supporting the conviction is substantial and the defendant was not prejudiced
thereby. Pickworth v. State, 95 Nev. 547, 550, 598 P.2d 626, 627 (1979). In the instant case,
the evidence convicting Mahan primarily consisted of Kane's eyewitness identification of
Mahan as his assailant. Both the hair analysis and the fingerprint report were exculpatory in
nature. The prosecutor's mischaracterization of the fingerprint evidence occurred during the
rebuttal phase of her closing argument, and defense counsel had no opportunity to respond.
104 Nev. 13, 17 (1988) Mahan v. State
respond. Although the effect of the prosecutor's remarks in depreciating and essentially
neutralizing the fingerprint evidence is speculative, we are persuaded that the comments may
have unfairly or wrongfully influenced the jury in its verdict. Our concerns are magnified in
the instant case because: (1) the evidence convicting the defendant does not appear to be
overwhelming, (2) the prosecutor's mischaracterization of the evidence received the apparent
approval of the trial judge, (3) the prosecutor's erroneous remarks occurred during rebuttal,
and (4) defense counsel had no opportunity to respond. We are therefore not persuaded that
Mahan was fairly convicted. Accordingly, we reverse and remand the case for a new trial.
____________
104 Nev. 17, 17 (1988) Puett v. Western Pacific Railroad
RYON R. PUETT, Appellant, v. WESTERN PACIFIC
RAILROAD COMPANY, a Corporation, Respondent.
No. 17764
March 30, 1988 752 P.2d 213
Appeal from summary judgment. Fourth Judicial District Court, Elko County; Joseph O.
McDaniel, Judge.
Owner of land crossed by railroad right of way brought action claiming a right to a private
vehicular crossing over the right of way. The district court held that: (1) owner was entitled to
license but did not have right to private vehicular crossing, and owner appealed. The Supreme
Court held that owner of servient estate did not have a right to private crossing over right of
way granted by the General Railroad Right of Way Act; (2) such a right could not be acquired
by adverse possession; and (3) as a matter of equity, owner was entitled to a license.
Affirmed.
Wilson and Barrows, Elko, for Appellant.
Woodburn, Wedge, Blakey & Jeppson and Suellen Fulstone, Reno, for Respondent.
1. Public Lands.
Right of way acquired by railroad under the General Railroad Right of Way Act of 1875 was an
easement; at the time of the grant, fee or servient estate remained in the United States. 43 U.S.C.A.
934-939.
2. Railroads.
Owner of servient estate crossed by railroad easement acquired under the General Railroad Right of Way
Act of 1875 could not acquire by adverse possession a right to a private vehicular crossing
over the railroad's right of way.
104 Nev. 17, 18 (1988) Puett v. Western Pacific Railroad
by adverse possession a right to a private vehicular crossing over the railroad's right of way. 43 U.S.C.A.
934-939.
3. Public Lands.
General Railroad Right of Way Act of 1875 was intended to give railroads exclusive use and possession
of the surface right of way granted by the Act. 43 U.S.C.A. 934-939.
4. Railroads.
Railroad's right to exclusive use and possession of right of way granted by General Railroad Right of
Way Act of 1875 does not contain an implied limitation to railroad purposes, permitting servient owner to
use right of way for other, non-railroad uses which do not interfere with the railroad's operation. 43
U.S.C.A. 934-939.
5. Railroads.
As a matter of equity, owner of servient estate crossed by railroad right of way was entitled to a license
for ingress and egress; license would require servient owner to pay for crossing and provide insurance
against risks created thereby.
OPINION
Per Curiam:
Appellant Ryon Puett owns land subject to respondent Railroad's right of way. Puett
contends that as owner of the servient estate, he has a right under the law to a private
vehicular crossing over the Railroad's right of way. The Railroad claims that, pursuant to the
federal act granting its right of way, Congress intended that the railroads have exclusive use
and possession of the surface of the way; consequently, the Railroad contends that the
appropriate remedyboth for Puett and as a matter of equityis for the Railroad to issue a
license to Puett. We agree with the Railroad and therefore affirm the summary judgment.
Facts
Puett owns property located in Section 30, Township 33 North, Range 53 East, just outside
Carlin in Elko County, Nevada. He traces his title to a Desert Land Entry Patent issued by the
United States in 1930 to his predecessors in interest. In 1913 his grandmother, Myrtle Puett,
originally filed an application under the Desert Land Entry Act for Section 30.
Puett's predecessor in interest acquired the property subject to the Western Pacific Railway
Company's right of way (now, by merger, a division of the Union Pacific Railroad Co.,
hereafter Railroad). The Railroad acquired that right of way under the federal General
Railway Right of Way Act of 1875 (codified at 43 U.S.C. 934-39, hereafter 1875 Act).
1
The Railroad does not dispute Puett's contentions that in 1911 the Railroad built a
crossing across its tracks when it traversed the Puett property, and that this crossing was
continually used by him and his predecessors from 1913 to January of 19S5.
____________________

1
The 1875 Act, in pertinent part, provides:
The right of way through the public lands of the United States is hereby granted to any railroad
company duly organized under the laws of
104 Nev. 17, 19 (1988) Puett v. Western Pacific Railroad
not dispute Puett's contentions that in 1911 the Railroad built a crossing across its tracks
when it traversed the Puett property, and that this crossing was continually used by him and
his predecessors from 1913 to January of 1985.
No question was raised about the private use of the crossing until approximately
September, 1982. At the time Puett came into the Railroad office in Elko to request upgrading
of the existing crossing; Puett explained that he wanted to subdivide and develop his property
south of the tracks for the purpose of creating a gravel business. The office, however, could
not find any documentation allowing Puett to use the crossing, and Puett was unable to
proffer any. As a result, the Railroad ordered the crossing removed. Subsequently, Puett made
application for a road crossing at the site. The Railroad sent a licensing form which Puett
rejected.
In November, 1982, Puett filed the instant action alleging his right to an easement for a
grade crossing across the Railroad's right of way. Puett also filed for a preliminary injunction
to restrain the Railroad from interfering with his use of the crossing. However, Puett failed to
pursue his actions and the case was inactive for two years.
In February of 1985, Puett again moved for preliminary injunctive relief; the motion was
denied. In its denial, the district court noted that the Railroad's right of way is an easement in
perpetuity to exclusive use and possession, and that the property was acquired by Puett's
predecessors after the Railroad had acquired its right of way. Consequently, the court
concluded that Puett could not acquire a prescriptive easement against the Railroad. The court
also suggested that Puett's remedy was limited to pursuing the Railroad's offer of a licensing
agreement.
2

In January 1986, Puett filed an action in federal district court (District of Nevada) seeking
similar relief purportedly under a different legal theory: a right to a grade crossing as an
owner of the servient estate to the Railroad's right of way.
____________________
any State or Territory, except the District of Columbia, or by the Congress of the United States, which
shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of
its organization under the same, to the extent of one hundred feet on each side of the central line of said
road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone,
and timber necessary for the construction of said railroad; also ground adjacent to such right of way for
station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in
amount twenty acres for each station, to the extent of one station for each ten miles of its road.
43 U.S.C.A. 934 (West 1986).

2
The Railroad has consistently offered to enter into a licensing agreement with Puett throughout this action.
Puett, however, continues to reject the Railroad's offer.
104 Nev. 17, 20 (1988) Puett v. Western Pacific Railroad
different legal theory: a right to a grade crossing as an owner of the servient estate to the
Railroad's right of way. Subsequently, Puett filed a motion for stay of proceedings in the Elko
court pending a final determination by the federal court; the motion was denied. The Railroad
moved for summary judgment and, pursuant to stipulation of the parties, Puett filed an
amended complaint purportedly dropping all claims to an easement and asserting the theory
proffered in the federal action.
The Railroad's motion for summary judgment was granted. Puett appeals, contending that
as owner of a servient estate, he has a right under the law to a vehicular grade crossing across
the Railroad's right of way as it crosses his property.
Discussion
[Headnotes 1, 2]
The right of way acquired by the Railroad under the 1875 Act is an easement; at the time
of the grant, the fee or servient estate remained in the United States. Great Northern Railway
Co. v. United States, 315 U.S. 262, 271, 276-77 (1941). Thus, in considering whether a right
of way for an irrigation ditch and flume could be acquired by prescription against the right of
way of a railroad (received via the 1875 Act), the Tenth Circuit in Himonas v. Denver &
R.G.W.R. Co., 179 F.2d 171 (10th Cir. 1949), held:
Since the Railroad Company did not own the fee, it could not dedicate or grant any part
thereof, and no right in the servient estate could be acquired by prescription. Neither
could the Railroad Company grant any part of its right of way for private use nor could
adverse interests be acquired in such right of way for private use by prescription.
179 F.2d at 172-73. Following similar reasoning, the Tenth Circuit rejected a claim of
adverse possession by a lumber company to the strips of land on each side of a railroad track.
The court noted that the right of way received by the railroad under the 1875 Act precluded
the lumber company from claiming the strips of land by reason of adverse possession,
abandonment or estoppel. Boise Cascade Corp. v. Union Pac. R. Co., 630 F.2d 720 (10th Cir.
1980).
[Headnote 3]
Puett, acknowledging that a railroad is prohibited from granting easements in its right of
way, dropped all claims to an easement and advanced an alternative theory that as the servient
owner of the land he has a right under the law to a vehicular grade crossing. A review of the
case law supports the Railroad's claim that the 1875 Act intended railroads to have exclusive
use and possession of the surface right of way granted by the act.
104 Nev. 17, 21 (1988) Puett v. Western Pacific Railroad
and possession of the surface right of way granted by the act. Although such a feature
(exclusive use and possession) is not ordinarily associated with an easement as it existed at
common law, the cases interpreting the 1875 Act demonstrate that the easements granted
thereby were not intended to be construed within the traditional definition of an easement.
Indeed, before 1942, the nature of the Railroad's right of way was termed as a limited
fee, See, e.g., Northern Pacific Ry. v. Townsend, 190 U.S. 267, 271 (1903). The Tenth
Circuit explained that term as follows:
The concept of limited fee was no doubt applied in Townsend because under the
common law . . . an easement did not give an exclusive right of possession. With the
expansion of the meaning of easement to include, as far as railroads are concerned, a
right in perpetuity to exclusive use and possession the need for the limited fee label
disappeared.
Wyoming v. Udall, 379 F.2d 635, 640 (10th Cir. 1967) (emphasis added). In Idaho v. Oregon
Short Line R. Co., 617 F.Supp. 207 (D.Idaho 1985), the Idaho federal court set forth in some
detail the history of federal railroad grants and the nature of the rights of way thus acquired.
Again, as noted in Udall, the Short Line court brought attention to the definitional problem
of the right of way granted to the railroads. In describing the efforts in the case law to define
property interest conveyed to a railroad by grant of a right of way, the Short Line court
reflected that the result was a rather unartful coinage of the term limited fee with an implied
condition of reverter,' something of a hybrid between a fee simple interest and a mere
easement interest. 617 F.Supp. at 210. After reviewing the legislative history, statutes and
cases dealing with the rights-of-way granted to railroads,
3
the Idaho court concluded that
Congress, in granting the 1875 Act rights-of-way, did not intend to convey to the
railroads a fee interest in the underlying lands. Congress did, however, intend to give the
railroads an interest suitable for railroad purposesa right-of-way, which, by definition,
carried with it the right to exclusive use and occupancy of the land.
617 F.Supp. at 212.
An analogous situation to the instant case was presented in Denver & S.L. Ry. Co. v.
Pacific Lumber Co., 278 P. 1022 (Colo. 1929). In Pacific Lumber, a lumber company sought
an injunction to keep the railroad from interfering with the lumber company's use of a
crossing where the railroad's tracks passed through the company's patented land; a
mandatory order compelling the railroad to reinstall the removed crossing was also
sought.
____________________

3
This excellent review, which we see no need to duplicate in this opinion, is found at 617 F.Supp. at 210-12.
104 Nev. 17, 22 (1988) Puett v. Western Pacific Railroad
company's use of a crossing where the railroad's tracks passed through the company's
patented land; a mandatory order compelling the railroad to reinstall the removed crossing
was also sought. As in the instant case, the railroad had acquired its right of way via the 1875
Act prior to the lumber company's predecessor in interest acquiring the fee to the property.
On those facts, the Colorado Supreme Court held that the lumber company had no right to a
private crossing, noting that
[S]o long as the defendant railway company maintains its line of road, it has the right of
exclusive use and possession of its right of way.
. . .the owner of the servient estate has no right to occupy the surface of the land
conveyed for right of way, in any mode, or for any purpose, without the railroad
company's consent.
278 P. at 1023-24 (emphasis added).
[Headnote 4]
Puett suggests that, even if the Railroad has the right to exclusive use and possession of its
right of way, exclusive contains an implied limitation to Railroad purposes which in turn
permits the servient owner to use the right of way for other non-railroad uses which do not
interfere with the Railroad's operation. The authorities cited by Puett do not support his claim.
For example, Puett places great reliance on Cincinnati, Hamilton & Dayton Ry. Co. v.
Wachter, 70 N.E. 974 (Ohio 1904). In Wachter, a railroad sought to prevent a landowner
from crossing the railroad's easement. The court held that there was a reserved right of the
estate owner to cross the easement. However, the context of Wachter simply renders it
inapposite to the instant case. Wachter arose out of a private grant of right of way to a
railroad. None of the federal rights of way grants was involved; the issue in Wachter was the
implied reservation in the grantor of a crossing easement. The Wachter court invoked the
common law doctrine of easement by necessity to imply such an easement in the landowner.
The United States Supreme Court has held that this common law doctrine is simply not
applicable to grants from the federal government to the railroads. Leo Sheep Co. v. United
States, 440 U.S. 668, 679-81 (1979).
4
Likewise, in urging this court to accept his theory,
Puett relies on cases which involve the acquisition of public rights to use a railroad's right
of way.
____________________

4
In Leo Sheep, the United States claimed that, when odd-numbered sections of land had been conveyed to the
railroad pursuant to the Union Pacific Act of 1862, it had reserved an implied easement in itself to cross those
sections to secure access to its even numbered sections. The Tenth Circuit agreed. A unanimous Supreme Court
reversed holding that the United States had no implied right either under the 1862 Act, the doctrine of easement
by
104 Nev. 17, 23 (1988) Puett v. Western Pacific Railroad
Likewise, in urging this court to accept his theory, Puett relies on cases which involve the
acquisition of public rights to use a railroad's right of way. As respondent Railroad concedes,
there has never been any question that the right of way granted the private railroad companies
are subject to the states' power of eminent domain.
5
Puett, however, wants to draw the
analogy of public crossings to the exercise of private crossing rights in individuals. There is
no authority supporting Puett's analogy.
Puett also argues that his theory finds support in Energy Transportation Systems, Inc. v.
Pac. R. Co., 435 F.Supp. 313 (D.Wyo. 1977), aff'd, 606 F.2d 934 (10th Cir. 1979). In Energy
Transportation, the fee owner of land (subject to a railroad's right of way) sought the right to
construct an underground coal slurry pipeline which involved crossing the railroad's right of
way beneath the surface. The court held for the landowner. Puett argues that Energy
Transportation stands for a much broader proposition than the right of the servient owner
to use the subsurface estate. We disagree. The court in Energy Transportation clearly limited
its opinion to subsurface rights, noting:
[Energy Transportation] asserts no rights to the surface of the railroad right of way, but
seeks a declaration that the railroad has no right to prohibit [Energy Transportation] from
using the surface at such depth and in such manner as not to interfere with the railroad's
exclusive occupancy and use of the surface right of way.
435 F.Supp. at 317.
[Headnote 5]
Finally, in denying Puett's request for injunctive relief, the district court determined that
Puett's remedy is to pursue the offered license agreement to obtain ingress and egress to his
property. Respondent Railroad suggests that as a matter of equity, the district court was
correct. We agree.
Respondent Railroad has licensed over 14,000 private grade crossings. A license requires
the servient owner to pay for the crossing and provide insurance against the risk created
thereby.
____________________
necessity or the Unlawful Enclosures of Public Lands Act. 440 U.S. at 680-85.
Pursuant to Leo Sheep, the United States retained no right of way as the fee owner of the land; consequently,
neither does Puett possess such a right as the current fee owner.

5
Indeed, in rejecting the idea that the government retained a common-law doctrine of easements by necessity
when granting the railroad right of ways, the Supreme Court in Leo Sheep saw the power of eminent domain as
an obvious device for ameliorating disputes. 440 U.S. at 681.
104 Nev. 17, 24 (1988) Puett v. Western Pacific Railroad
Such an arrangement comports with equity: instead of placing the cost and risk of a private
crossing upon the railroad (to be paid by the traveling public and consumers of goods shipped
by rail), the expense is placed upon the private party who primarily uses and benefits from the
crossing. A ruling in Puett's favor in effect entitles all other current servient owners of land,
along the Railroad's track, to require the Railroad to bear the expense of maintaining and
insuring any private crossings upon those lands; to pose such a financial burden on the
Railroad is unwarranted and inequitable.
In granting railroads a right of way pursuant to the 1875 Act, Congress intended such
railroads to have exclusive use and possession of the surface thereof. Hence, the district court
was correct in ruling that, as owner of the servient estate, Puett does not have a right under
the law to a private vehicular crossing. The appropriate remedy for Puett is a licensing
agreement with the Railroad. Because summary judgment was properly granted, we affirm.
____________
104 Nev. 24, 24 (1988) Whitlock v. Salmon
PHYLLIS WHITLOCK and J. T. WHITLOCK, Appellants, v.
DONALD SALMON, M.D., Respondent.
No. 18043
March 30, 1988 752 P.2d 210
Appeal from judgment and order denying motion for judgment notwithstanding the verdict
and for new trial. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Appeal was taken from order of the district court entered in favor of physician in medical
malpractice action. The Supreme Court held that: (1) although trial judge may reasonably
restrict right of supplemental attorney-conducted voir dire in civil case, he may not prohibit
right altogether, and (2) denying attorneys for both plaintiff and defendant opportunity to
conduct any voir dire examination of jury in medical malpractice action was reversible error.
Reversed and remanded.
[Rehearing denied June 28, 1988]
Crockett & Myers, Las Vegas, for Appellants.
Barker, Gillock, Perry, Koning & Spann, Las Vegas, for Respondent.
104 Nev. 24, 25 (1988) Whitlock v. Salmon
Galatz, Earl, Catalano & Smith, Las Vegas, for Amicus Curiae.
1. Jury.
Although trial judge may reasonably restrict right of supplemental attorney-conducted
voir dire in civil case, he may not prohibit right altogether. NRS 16.030, subd. 6; NRCP
47(a).
2. Appeal and Error; Jury.
Denying attorneys for both plaintiff and defendant opportunity to conduct any voir dire
examination of jury in medical malpractice action was reversible error. NRS 16.030,
subd. 6; NRCP 47(a).
OPINION
Per Curiam:
[Headnote 1]
This case hinges on the question of whether, in a civil case, a trial judge, under Nevada
law, may exclude counsel from participating directly in voir dire of the jury panel.
1
Although
a trial judge may reasonably restrict the right of supplemental attorney-conducted voir dire,
we hold that he may not prohibit the right altogether.
Appellants Phyllis and J. T. Whitlock brought an action against respondent Donald
Salmon, M.D., for personal injuries received by Mrs. Whitlock during surgery for the
removal of a brain tumor. In his pretrial memorandum and his proposed jury voir dire
questions, counsel for the Whitlocks requested permission to voir dire the jury. During the
voir dire process, the requestthis time joined by Dr. Salmon's attorneywas repeated.
Although the trial judge basically presented counsel's questions to the prospective jurors on
voir dire, he did not allow counsel to participate directly in the process. Voir dire was
conducted exclusively by the judge.
The jury returned a defense verdict. On appeal, the Whitlocks contend that the trial judge
committed reversible error in refusing to permit counsel's participation in voir dire. We agree.
NRS 16.030(6) provides:
The judge shall conduct the initial examination of prospective jurors and the parties or
their attorneys are entitled to conduct supplemental examinations which must not be
unreasonably restricted (emphasis added).
This statute appears to be in conflict with NRCP 47(a) which states that the court shall
conduct the examination of prospective jurors and may permit such supplemental
examination by counsel as it deems proper."
____________________

1
A right to attorney-conducted voir dire in criminal cases is granted by NRS 175.031. See Spillers v. State,
84 Nev. 23, 436 P.2d 18 (1968).
104 Nev. 24, 26 (1988) Whitlock v. Salmon
tive jurors and may permit such supplemental examination by counsel as it deems proper.
We have previously held that a trial judge acted within his discretion in refusing to ask certain
questions of prospective jurors proffered by counsel to assist in the intelligent exercise of
peremptory challenges. Frame v. Grisewood, 81 Nev. 114, 121, 399 P.2d 450, 454 (1965).
However, Frame was decided several years before NRS 16.030(6) was enacted. It thus
remains necessary to resolve the apparent conflict between the statute and the rule of court.
The judiciary, of course, has the inherent power to govern its own procedures; and that
power includes the right to adopt and promulgate rules of procedure. See State v. Connery, 99
Nev. 342, 661 P.2d 1298 (1983). We do not perceive the statute as a legislative encroachment
on judicial prerogatives. Although the statute does implicate trial procedure, it does not
interfere with procedure to a point of disruption or attempted abrogation of an existing court
rule. Rather, the statute confers a substantive right to reasonable participation in voir dire by
counsel; and this court will not attempt to abridge or modify a substantive right.
2
NRCP
47(a) contemplated a healthy respect on the part of trial judges for appropriate supplemental
participation by trial counsel in voir dire. Historically, in most of Nevada's courts of general
jurisdiction, counsel have been accorded meaningful opportunities for involvement in the voir
dire of prospective jurors. The Legislature thus saw fit to enthrone the historical practice
selectively enjoyed by counsel in most trial proceedings, in a substantive enactment that
vouchsafes the right to all counsel in every department of our district courts.
3
We
accordingly view the statutory right thus bestowed as an acceptable solidification of the basic
intendment of NRCP 47(a).
____________________

2
NRS 2.120 in pertinent part provides:
1. The supreme court may make rules not inconsistent with the constitution and laws of the state for
its own government, the government of the district courts, and the government of the State Bar of
Nevada.
2. Such rules shall not abridge, enlarge or modify any substantive right and shall not be inconsistent
with the constitution of the State of Nevada.

3
A review of the scant legislative history behind the enactment of NRS 16.030(6) convinces us that there was
no mistake by the Legislature as to the language used in the statute: it gives attorneys a right to conduct
supplemental examination of prospective jurors.
In the second draft of Assembly Bill 257 (the bill enacting NRS 16.030(6)) the Assembly Judiciary
Committee changed the language from may conduct supplemental examinations to are entitled to conduct
supplemental examinations. While the Senate Judiciary Committee expressed concern with the change, a
recommendation to change the language back to may was not followed. See Minutes of the Judiciary
Committee Meeting, 1979 AB 257 (Conduct of examinations of prospective jurors in civil actions).
104 Nev. 24, 27 (1988) Whitlock v. Salmon
Under the federal rule,
4
the decision to allow attorneys to directly examine prospective
jurors is left to the sound discretion of the trial judge. See Canterbury v. Spence, 464 F.2d
772, 796 n. 149 (D.C.Cir. 1972), cert. denied, 409 U.S. 1064 (1972).
5
Even so, the federal
practice has been rejected by a number of states. For example, the Texas courts hold that the
constitutional guarantee of the right to be represented by counsel includes the right to have
counsel interrogate the members of the jury panel. See De La Rosa v. State, 414 S.W.2d 668,
671 (Tex.Crim.App. 1967). A Connecticut statute provides that each party in civil actions
shall have the right to examine, personally or by his counsel, each juror outside the
presence of the other prospective jurors. Conn. Gen. Stat. 51-240(a) (1987). Similarly,
Florida, by court rule, provides that the parties have the right to examine jurors orally on
voir dire. Although the rule allows the court to ask prospective jurors questions, it expressly
provides that the right of the parties to conduct a reasonable voir dire of each juror orally
shall be preserved. Fla. R. Civ. P. 1.431(b) (West 1985).
We concur with those states that reject the federal approach. The importance of a truly
impartial jury, whether the action is criminal or civil, is so basic to our notion of
jurisprudence that its necessity has never really been questioned in this country. United States
v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974). The voir dire process is designed to
ensureto the fullest extent possiblethat an intelligent, alert and impartial jury which will
perform the important duty assigned to it by our judicial system is obtained. De La Rosa v.
State, 414 S.W.2d 668, 671 (Tex.Crim.App. 1967). The purpose of voir dire examination is
to determine whether a prospective juror can and will render a fair and impartial verdict on
the evidence presented and apply the facts, as he or she finds them, to the law given. See
Oliver v. State, 85 Nev. 418, 422, 456 P.2d 431, 434 (1969). We are convinced that
prohibiting attorney-conducted voir dire altogether may seriously impede that objective.
____________________

4
Fed. R. Civ. P. 47(a) which provides:
The court may permit the parties or their attorneys to conduct the examination of prospective jurors or
may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys
to supplement the examination by such further inquiry as it deems proper or shall itself submit to the
prospective jurors such additional questions as it deems proper.

5
Although the trend among the federal courts is for the trial judges to conduct the entire voir dire
examination themselves, at least one federal court has noted its dissatisfaction with the practice because, it is
the parties, rather than the court, who have a full grasp of the nuances and the strength and weaknesses of the
case. Peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary
information upon which to base such strikes.' [Citation omitted.] United States v. Ible, 630 F.2d 389, 395 (5th
Cir. 1980).
104 Nev. 24, 28 (1988) Whitlock v. Salmon
convinced that prohibiting attorney-conducted voir dire altogether may seriously impede that
objective.
Usually, trial counsel are more familiar with the facts and nuances of a case and the
personalities involved than the trial judge. Therefore, they are often more able to probe
delicate areas in which prejudice may exit or pursue answers that reveal a possibility of
prejudice. Moreover, while we do not doubt the ability of trial judges to conduct voir dire,
there is concern that on occasion jurors may be less candid when responding with personal
disclosures to a presiding judicial officer.
6
Finally, many trial attorneys develop a sense of
discernment from participation in voir dire that often reveals favor or antagonism among
prospective jurors. The likelihood of perceiving such attitudes is greatly attenuated by a lack
of dialogue between counsel and the individuals who may ultimately judge the merits of the
case. In that regard, we expressly disapprove of any language or inferences in Frame that tend
to minify the importance of counsel's voir dire as a source of enlightenment in the intelligent
exercise of peremptory challenges.
We have said or implied nothing in this opinion that detracts from the absolute right of a
trial judge to reasonably control and limit an attorney's participation in voir dire. Indeed, we
encourage the trial bench not to tolerate the desultory excursions of unprepared counsel who
show little regard for judicial economy. Both the scope of voir dire and the method by which
voir dire is pursued remain within the discretion of the district court. See Summers v. State,
102 Nev. 195, 718 P.2d 676 (1986). The trial judge has a duty to restrict attorney-conducted
voir dire to its permissible scope: obtaining an impartial jury. NRS 16.030(6) clearly
contemplates that the trial judge will supervise the process and that he may reasonably restrict
supplemental examination of prospective jurors by the litigants' counsel.
[Headnote 2]
In the instant case the trial judge denied both attorneys the opportunity to conduct any voir
dire examination. A complete denial of attorney-conducted voir dire cannot be construed as a
reasonable restriction and therefore the trial judge committed reversible error. Accordingly,
we reverse and remand this case for a new trial.
____________________

6
For example, one study suggests that the judge's presence evokes considerable pressure among jurors
toward conforming to a set of perceived judicial standards and that this is minimized when an attorney conducts
voir dire. Jones, Judge-Versus Attorney-Conducted Voir Dire; and Empirical Investigation of Juror Candor, 11
Law and Human Behavior 131, 143-44 (1987).
____________
104 Nev. 29, 29 (1988) Able Electric, Inc. v. Kaufman
ABLE ELECTRIC, INC., Appellant, v. HERBERT KAUFMAN and
JEFFRICK CORPORATION, Respondents.
No. 18236
March 30,1988 752 P.2d 218
Appeal from an order granting a motion for satisfaction of judgment and expungement of
liens and an appeal from an order denying a motion to alter or amend order. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
In applying payments made in partial satisfaction of mechanics' lien judgment, the district
court expunged three liens and left judgment creditor with liens on two worthless leasehold
interests. Judgment creditor filed motion to alter or amend. The court denied motion, and
judgment creditor appealed. The Supreme Court held that: (1) judgment creditor's appeal was
timely when made within thirty days after written notice of denial of motion to alter or
amend, and (2) manner of expungement of liens which was not in best interest of judgment
creditor was error.
Reversed.
Edwin A. Adamson, Las Vegas, for Appellant.
Michael Cherry and Douglas C. Crawford, Las Vegas, for Respondents.
1. Appeal and Error.
Filing of motion to alter or amend within thirty days of date of service of written notice of entry of order
stayed appeal time, and appellant had thirty days from written notice of denial of motion to alter or amend
in which to file notice of appeal NRAP 4(a).
2. Appeal and Error.
Motion to alter or amend order could not be construed as motion for rehearing, where trial court did not
consider any new evidence in arriving at its decision to deny motion and thus motion did toll thirty-day
notice of appeal period. NRAP 4(a).
3. Payment.
When debtor partially satisfies judgment, debtor has right to make appropriation of such payment to
particular obligations outstanding, but such application must be submitted at time payment is made.
4. Payment.
Where no appropriation to particular obligations outstanding is made by debtor concurrent with payment
in partial satisfaction of judgment, right to make such appropriation passes to creditor.
5. Payment.
Once right to make appropriation of payments in partial satisfaction of judgment to particular outstanding
obligations has passed from debtor to creditor, and creditor makes such appropriation, appropriation is
final and payment cannot thereafter be applied to another debt.
104 Nev. 29, 30 (1988) Able Electric, Inc. v. Kaufman
6. Payment.
Creditor's right to appropriate payments made in partial satisfaction of judgment to particular debts
terminates if not already exercised at time controversy regarding such application arises.
7. Payment.
If both debtor and creditor fail to apply payments made in partial satisfaction of judgment to outstanding
lien balances, court is authorized to apply reductions to particular debts.
8. Payment.
In directing application of payment being made in partial satisfaction of judgment to particular
outstanding debt, trial court should be guided by basic principles of justice and equity.
9. Payment.
Equity and justice are best served by disposition that is most favorable to creditor in directing application
of payments made in partial satisfaction of judgment to reduction of particular outstanding debts.
10. Mechanics' Liens.
In applying payments made by judgment debtor in partial satisfaction of judgment to outstanding
mechanics' liens, trial court erred in expunging three liens and leaving judgment creditor with two liens on
worthless leaseholds, inasmuch as reduction of the outstanding liens was not in best interests of lien
creditor.
OPINION
Per Curiam:
Appellant Able Electric, Inc. was hired as the electrical subcontractor to construct
improvements to several of respondent Jeffrick Corporation's leasehold interests located at
the Fashion Show Mall in Clark County, Nevada. A dispute arose between Jeffrick and Van's
Tenant Interiors, Inc., the general contractor, which resulted in a lien foreclosure action with
regard to the improved Fashion Show Mall leaseholds. Able intervened in the action.
Following a trial on the merits, the district court entered its judgment in favor of Able. In
conjunction with the judgment for the amounts due under the subcontract, Able was granted
lien relief on the following leasehold interests to the extent indicated below:
Herbie K's $47,553.93
Airline Associates $ 4,067.26
Midnight Lace $ 5,956.70
The Toy Circus $23,072.33
The Zoo $12,296.00
Shortly after the judgment was rendered, Jeffrick began making periodic payments against
the balance of the judgment, plus twelve percent interest. Jeffrick ceased making payments in
February of 19S7.
104 Nev. 29, 31 (1988) Able Electric, Inc. v. Kaufman
ruary of 1987. To satisfy the outstanding balance of the judgment, Able commenced a writ of
execution against one of the leasehold interests against which it held a lien, Herbie K's.
Meanwhile, Jeffrick filed a motion for satisfaction of judgment and expungement of liens.
Jeffrick then obtained a temporary restraining order forestalling execution of the judgment
lien pending the outcome of its motion.
After a hearing on Jeffrick's motion, the district court ordered the monies received by
Able, approximately $120,000.00, applied to satisfy the judgment in part and to expunge the
liens attached to Jeffrick's leasehold interests in the first three lien claims in the order
appearing above, namely, Herbie K's, Airline Associates and Midnight Lace. In response to
the district court's decision Able filed a motion to alter or amend. The court denied Able's
motion. Able now appeals from the denial of its motion to alter or amend as well as from the
order granting Jeffrick's motion for satisfaction and expungement of liens in which the liens
of Herbie K's, Airline Associates and Midnight Lace were expunged.
Thirty-Day Notice of Appeal Period
[Headnote 1]
As a threshold issue, Jeffrick challenges this court's jurisdiction to hear the instant appeal.
According to Jeffrick, Able did not timely file a notice of appeal thus depriving this court of
the necessary jurisdiction. We disagree.
Pursuant to Nevada Rules of Appellate Procedure 4(a), a notice of appeal must be filed
within thirty days of the date of service of written notice of the entry of the order appealed.
However, this thirty-day period is terminated as to all parties by a timely filed motion to alter
or amend. NRAP 4(a). Thus, Able had until May 17, 1987, thirty days after written notice of
the denial of the motion to alter or amend, in which to file its notice of appeal. Since the
notice of appeal was filed on May 8, 1987, within the thirty-day period, this court has
jurisdiction to consider the merits of this appeal.
[Headnote 2]
We are not persuaded by Jeffrick's attempt to convert Able's motion to alter or amend into
a non-tolling motion for rehearing. Although Jeffrick is correct in concluding that a motion
for rehearing does not toll the thirty-day notice of appeal period, see Alvis v. State, Gaming
Control Bd., 99 Nev. 184, 660 P.2d 980 (1983), we do not agree that Able's motion can be
properly considered as a motion for rehearing under the circumstances of this case. The
district court did not consider any new evidence in arriving at its decision to deny Able's
motion to alter or amend; accordingly, we decline to treat such motion as a motion for
rehearing and thus deprive Able of its appeal.
104 Nev. 29, 32 (1988) Able Electric, Inc. v. Kaufman
arriving at its decision to deny Able's motion to alter or amend; accordingly, we decline to
treat such motion as a motion for rehearing and thus deprive Able of its appeal.
Lien Satisfaction and Expungement
Able argues that the district court erred in the manner in which the monies received by
Able in partial satisfaction of the judgment were applied to expunge the liens. We agree.
In its order granting Jeffrick's motion for satisfaction of judgment and expungement of
liens, the district court without any apparent stated grounds removed only the liens attached to
Jeffrick's leasehold interests in Herbie K's, Airline Associates and Midnight Lace. Able was
left with liens on the two remaining, worthless leaseholds, The Toy Circus and The Zoo.
Expungement of liens in this fashion deprives Able of valuable security interests.
[Headnote 3]
When a debtor partially satisfies a judgment, that debtor has the right to make an
appropriation of such payment to the particular obligations outstanding. See Warren Bros. Co.
v. Sentry Ins., 433 N.E.2d 1253 (Mass.App.Ct. 1982). This application must be submitted at
the time the payment is made. Warren Bros. Co., 433 N.E.2d at 1255.
[Headnotes 4-6]
Where no appropriation is made by the debtor concurrent with the payment, the right
passes to the creditor. See Preston County Coke Co. v. Preston County Light & Power Co.,
119 S.E.2d 420 (W.Va. 1961). Once the creditor communicates to the debtor the
appropriation of the payment, it is final, and the creditor may not thereafter change the
application to another debt. See Wolf v. Aero Factors Corp., 126 F.Supp. 872 (S.D.N.Y.
1954), aff'd, 221 F.2d 291 (2nd Cir. 1955). The creditor's right to appropriate the payments
received terminates at the time a controversy regarding such application arises. See Diesel
Service, Inc. v. Accessory Sales, Inc., 288 N.W.2d 258 (Neb. 1980).
[Headnotes 7, 8]
If both the debtor and the creditor fail to make reductions in the outstanding lien balances,
then the court is authorized to make the application. See Atlantic & Gulf Properties, Inc. v.
Palmer, 109 So.2d 768 (Fla.Dist.Ct.App. 1959). In directing the application of a payment, the
district court should be guided by the basic principles of justice and equity so that a fair result
can be achieved. See Hayes Pipe Supply v. McKendree Manor, Inc., 695 S.W.2d 174 (Tenn.
1985).
104 Nev. 29, 33 (1988) Able Electric, Inc. v. Kaufman
[Headnotes 9, 10]
Acting on the assumption that the debtor would desire all debts be paid, and mindful that
the purpose for granting a lien is to secure a debt owed to the creditor by the debtor, we
believe that equity and justice will be best served by a disposition that is most favorable to the
creditor at the time the appropriation is made. The manner in which the district court applied
the payments in reduction of the outstanding liens was not in the best interests of the lien
creditor. We therefore reverse both orders challenged on appeal and remand the case to the
district court with instructions to apply the payments in a manner which will best preserve the
security interests of the lien creditor, Able Electric.
____________
104 Nev. 33, 33 (1988) Roberts v. State of Nevada
JAMES R. ROBERTS, ROBERT I. ROSE, JOHN A. BAILEY, LAWRENCE KIRK,
JOSEPH DOSER, BRUCE E. BLACKADAR, ANNE HOWARD, CHAD MURVOSH,
STANLEY HILLYARD, MOHAMED YOUSEF, on behalf of themselves and all other
person similarly situated, Appellants, v. STATE OF NEVADA, UNIVERSITY OF
NEVADA SYSTEM, BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA and
the UNIVERSITY OF NEVADA SYSTEM, DANIEL KLAICH, FRANKIE SUE DEL
PAPA, DOROTHY GALLAGER, CHRIS KARAMANOS, JOAN KENNEY, JOANN
SHEERIN, JUNE WHITLEY, CAROLYN SPARKS, in their capacity as the BOARD OF
REGENTS of the UNIVERSITY OF NEVADA SYSTEM, Respondents
No. 18314
March 30, 1988 752 P.2d 221
Appeal from an order of the district court granting respondents' motion for summary
judgment and from an order of the district court denying appellants' motion to alter or amend
the judgment and motion to file a first amended complaint. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Professional employees of state university brought action against State and university,
claiming entitlement to retroactive longevity pay. Defendants moved for summary judgment
on immunity grounds. The district court granted defendants' motion and denied employees'
motion to alter or amend judgment and to file first-amended complaint. Employees appealed.
The Supreme Court held that professional employees were not entitled to retroactive
longevity pay.
104 Nev. 33, 34 (1988) Roberts v. State of Nevada
Court held that professional employees were not entitled to retroactive longevity pay.
Affirmed.
Dyer and McDonald, Carson City, for Appellants.
Brian McKay, Attorney General, Carson City; Donald Klasic, General Counsel, University
of Nevada System, Reno, for Respondents.
1. Administrative Law and Procedure.
Administrative regulations cannot contradict or conflict with statute they are intended to implement.
2. Statutes.
When a statute is clear and unambiguous on its face, court may not go beyond language of statute in
determining legislature's intent.
3. Colleges and Universities.
Professional employees of state university were not entitled to retroactive longevity pay; legislature's use
of word certain in title of longevity incentive plan statute denoted intent not to include all state
employees in plan, it was inconsistent to construe statute to include university professional employees, in
that longevity plan was to be administered by Personnel Division which had no authority over university
employees, Personnel Advisory Commission adopted rule expressly excluding university employees from
longevity plan shortly after enactment of statute, and legislature never appropriated money to pay
university professional employees longevity pay. NRS 284.177.
4. Statutes.
Legislative intent behind statute may be determined by examining circumstances which propelled
enactment of statute.
5. Statutes.
Nearly contemporaneous constructions of state statutes by administrative agencies charged with their
implementation are entitled to great weight in ascertaining statutes' meaning, especially when legislature
fails to repudiate agency's construction.
6. Statutes.
Although not controlling, legislature's construction of its own act is persuasive in ascertaining act's
meaning.
OPINION
Per Curiam:
The appellants are, or were, professional employees under contract with the University of
Nevada System. They have all worked for the state continuously for eight or more years,
during which time their job performance was rated standard or better. The professional
employees claim that NRS 284.177 entitled them collectively to receive approximately one
and one-half million dollars in retroactive longevity pay. The respondents (hereinafter, "the
State") are the State of Nevada, the University of Nevada System, and the regents of the
University of Nevada.
104 Nev. 33, 35 (1988) Roberts v. State of Nevada
after, the State) are the State of Nevada, the University of Nevada System, and the regents
of the University of Nevada.
In 1973, the Nevada Legislature enacted Chapter 529 of the Statutes of Nevadathe
source of NRS 284.177which provided:
A longevity incentive plan administered by the personnel division is hereby established
for employees with 10 years or more of continuous state service. Employees rated
standard or better with 10 years of continuous service shall receive $125 semiannually
with a semiannual increase of $25 for each additional year of service up to a maximum
semiannual amount of $250 for 15 years or more of continuous state service.
1973 Nev. Stats. ch. 529, at 822. Subsequent amendments to NRS 284.177 decreased the
number of years of service required for longevity pay eligibility from ten to eight and changed
the amount of compensation.
In 1974in response to an inquiry from an official at the University of Nevada as to
whether professional employees of the University of Nevada System were eligible for
longevity pay under NRS 284.177the State Personnel Division proposed, and the State
Personnel Advisory Commission adopted, the following rule:
Basic Plan
This plan is designed to apply only to those employees covered by the State merit system.
This will include State classified and unclassified employees and exclude contract,
judicial, legislative and university administrative and academic employees.
(Emphasis added). This rule was incorporated in section M of Rule III of Chapter 8200 of the
State Administrative Manual.
In 1982, Rule III(M) was amended to provide simply that the longevity pay plan
authorized by NRS 284.177 applies to classified and unclassified employees of the state.
The language of the former rule that specifically excluded contract, judicial, legislative and
university administrative and academic employees was deleted.
In 1984, the State Personnel Department (formerly the State Personnel Division) attempted
to amend NAC 284.262 (formerly part of Rule III(M)) to read as follows:
The plan to encourage continuity of service established pursuant to NRS 284.177 applies
to:
(1) Classified employees; and
(2) Unclassified employees whose positions are mentioned in NRS 2S4.140 and are
specifically authorized as unclassified positions by the legislature in the pay bill for
unclassified positions.
104 Nev. 33, 36 (1988) Roberts v. State of Nevada
NRS 284.140 and are specifically authorized as unclassified positions by the legislature
in the pay bill for unclassified positions.
Since the positions occupied by professional employees of the University of Nevada System
apparently were not specifically authorized as unclassified positions by the legislature in the
pay bill for unclassified employees, this language would have excluded the University of
Nevada professional employees from coverage under the longevity pay statute.
The State Personnel Commission adopted the proposed regulation; however, the
Legislative Counsel Bureau refused to approve the new language and, instead, revised it to
read as follows: The plan to encourage continuity of service established pursuant to NRS
284.177 applies to classified and unclassified employees of the State. This language was
submitted to the Legislative Commission and ultimately became effective after the
Legislative Commission failed to object to it.
In 1985, the legislature enacted NRS 284.179 to eliminate the confusion that NRS 284.177
had generated. That statute states succinctly that [t]he professional employees of the
University of Nevada System are not entitled to receive the increases provided in NRS
284.177. NRS 284.179 (emphasis added.)
The district court granted the State's motion for summary judgment on the grounds that the
State was immune from suit under NRS 41.032.
1
The district court reasoned that the 1982
and 1984 amendments to NAC 284.262 (formerly part of Rule III(M)) were invalid because
they were adopted pursuant to unconstitutional administrative procedures. Specifically, the
district court found NRS 233B.062 through NRS 233B.070, which provide for legislative
review of administrative regulations, to be violative of both the constitutionally mandated
procedures for enacting legislation and the separation of powers provisions of the Nevada
State Constitution. The district court concluded that since the 1982 and 1984 amendments
were invalid, the 1974 regulation, as it existed before its amendment, remained in effect. The
district court further concluded that the State acted with due care to implement the original
1974 regulation by not paying University of Nevada professional employees longevity
pay; the State was therefore immune from suit under NRS 41.032.
____________________

1
NRS 41.032 provides in part:
Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an immune
contractor or an officer or employee of the state or any of its agencies or political subdivisions which is:
1. Based upon an act or omission of an officer, employee or immune contractor, exercising due care,
in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute
or regulation has not been declared invalid by a court of competent jurisdiction; or
. . . .
104 Nev. 33, 37 (1988) Roberts v. State of Nevada
care to implement the original 1974 regulation by not paying University of Nevada
professional employees longevity pay; the State was therefore immune from suit under NRS
41.032.
[Headnote 1]
Administrative regulations cannot contradict or conflict with the statute they are intended
to implement. Agsalud v. Blalack, 699 P.2d 17 (Haw. 1985); New Mexico Bd. of Pharmacy
v. New Mexico Bd. of Osteopathic Medical Examiners, 626 P.2d 854 (N.M. 1981). It
follows, then, that regulations may neither include nor exclude University of Nevada System
professional employees from the longevity pay provisions in NRS 284.177 unless in so doing
they conform to the original legislative intent behind the statute. Therefore, to determine
whether the University of Nevada professional employees are entitled to retroactive longevity
pay, we must construe NRS 284.177.
[Headnote 2]
As originally enacted, NRS 284.177 established a longevity payment plan for employees
who met specified requirements for duration and continuity of state service. See 1973 Nev.
Stats. ch. 529, at 822. We note that it is a fundamental rule of statutory construction that when
a statute is clear and unambiguous on its face, a court may not go beyond the language of the
statute in determining the legislature's intent. McKay v. Board of Supervisors, 102 Nev. 644,
730 P.2d 438 (1986); Cirac v. Lander County, 95 Nev. 723, 602 P.2d 1012 (1979). The term
employees, as used in the context of NRS 284.177, is subject to multiple interpretations
and thus ambiguous. When a statute is ambiguous, the plain meaning rule has no
application, McKay, 102 Nev. at 649, 730 P.2d at 442, and the statute can be construed in
line with what reason and public policy would indicate the legislature intended.' McKay, 102
Nev. at 649, 730 P.2d at 442 (quoting Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d
957, 959 (1983)).
[Headnote 3]
The over-generality of the language of NRS 284.177 becomes immediately apparent when
viewing the title of its source, 1973 Statutes of Nevada, Chapter 529, which declares that it is
AN ACT providing for a longevity incentive plan for certain state employees; and providing
other matters properly relating thereto. 1973 Nev. Stats. ch. 529, at 822 (emphasis added).
The legislature's use of the word certain in the title denotes an intent not to include all state
employees generally in the longevity incentive plan. See A Minor Girl v. Clark County
Juvenile Court Services, 87 Nev. 544, 490 P.2d 1248 (1971) (the title of an act or statute may
be considered in construing a statute).
104 Nev. 33, 38 (1988) Roberts v. State of Nevada
In addition, it is logically inconsistent to construe NRS 284.177 to include the University
of Nevada System professional employees. As originally enacted, NRS 284.177 provided that
the longevity plan was to be administered by the Personnel Division. The Personnel Division,
however, did not have authority over University of Nevada System professional employees.
We have noted in the past that, [t]he leading rule for the construction of statutes is to
ascertain the intention of the legislature in enacting the statute, and the intent, when
ascertained will prevail over the literal sense.' Welfare Div. v. Washoe Co. Welfare Dep't, 88
Nev. 635, 637, 503 P.2d 457, 458 (1972) (quoting State ex rel. O'Meara v. Ross, 20 Nev. 61,
63, 14 P. 827, 828 (1887)). In 1985 the legislature enacted section 1 of Chapter 277 of the
Statutes of Nevada.
2
This statute was later codified as NRS 284.179, which provides as
follows: The professional employees of the University of Nevada System are not entitled to
receive the increases provided in NRS 284.177. NRS 284.179. In section 2 of Chapter 277
of the 1985 Statutes of Nevada, the Legislature painstakingly explained that Section 1 of this
act does not change the rights of professional employees of the University of Nevada System.
It constitutes a declaration and clarification of existing law. 1985 Nev. Stats. Ch. 277 2, at
845. We observed in Sheriff v. Smith, 92 Nev. 729, 542 P.2d 440 (1975), that [w]here a
former statute is amended, or a doubtful interpretation of a former statute rendered certain by
subsequent legislation, it has been held that such amendment is persuasive evidence of what
the Legislature intended by the first statute. Sheriff v. Smith, 91 Nev. at 734, 542 P.2d at 443
(citations omitted). It would be difficult to imagine a more certain, if not more timely,
expression of the legislature's original intent regarding the scope of NRS 284.177.
[Headnote 4]
The legislative intent behind a statute may also be determined by examining the
circumstances which propelled the enactment of the statute. See McKay, 102 Nev. at 650, 730
P.2d at 443 (citation omitted). As NRS 284.177 was originally enacted, the State Personnel
Division was to administer the longevity pay compensation scheme. See 1973 Nev. Stats. ch.
529, at 822. A former chief of classification and pay of the Personnel Division of the State
Department of Administration stated in his affidavit that: The concept of the [1973]
longevity pay statute . . . originated with the Personnel Division.
____________________

2
The title of Chapter 277, 1985 Statutes of Nevada is AN ACT relating to public employees; confirming the
exclusion of professional employees of the University of Nevada System from the payment of additional
compensation for continuous service; and providing other matters properly relating thereto. 1985 Nev. Stats.
ch. 277, at 845 (emphasis added).
104 Nev. 33, 39 (1988) Roberts v. State of Nevada
The concept of the [1973] longevity pay statute . . . originated with the Personnel
Division. It was never the intention of the Personnel Division to include the University of
Nevada's professional employees in the coverage of the longevity pay law. In fact, in
helping to prepare the fiscal note for the legislature on this legislation, the Personnel
Division excluded the University of Nevada's professional employees from the
computations of the cost of a longevity pay plan.
. . . . The University of Nevada has always independently administered its professional
employees' positions and introduced separate lump-sum appropriations bills in the
legislature for the payment of its professional employees.
The University of Nevada had always claimed the right to administer its professional
employees' positions separately from the Personnel Division and to establish its own
compensation schedules for them, and this right had always been acquiesced in by the
legislature and the Personnel Division because of the University of Nevada's claim to
special constitutional status. . . .
The deputy budget director of the budget office of the Nevada Department of
Administration participated in the drafting of NRS 284.177 in 1973. In his affidavit he agreed
that it was never the Personnel Division's intention to include professional employees of the
University of Nevada System in the coverage of NRS 284.177. The former deputy budget
director explained:
The legislation as drafted by the Personnel Division did not, by its terms, specifically
exclude the University of Nevada's professional employees because of the common
belief in the Personnel Division and the Department of Administration that the
University of Nevada's professional employees did not need to be named in any
legislation which provided for the administration of employment positions by the
Personnel Division.
[Headnote 5]
As stated earlier, shortly after the enactment of NRS 284.177, the Personnel Division
proposed, and the State Personnel Advisory Commission adopted, a rule expressly excluding
University administrative and academic employees from the longevity plan. We believe that
such nearly contemporaneous constructions of state statutes by administrative agencies
charged with their implementation are entitled to great weight, especially when, as in the
present case, the legislature fails to repudiate the agency's construction. See Atlantic Richfield
Co. v. Federal Energy Admin., 429 F.Supp.
104 Nev. 33, 40 (1988) Roberts v. State of Nevada
429 F.Supp. 1052 (N.D.Ca. 1976); see also Davis v. Conour, 497 P.2d 1015 (Colo. 1972);
see also Hofmeister v. Frank Realty Co., 373 A.2d 273 (Md.App. 1977); see also Green
River Community College v. Higher Education Personnel Bd., 622 P.2d 826 (Wash. 1980).
[Headnote 6]
Finally, we are cognizant of the fact that during the entire time that NRS 284.177 has been
in effect, the legislature has never appropriated money to pay the University of Nevada
System's professional employees longevity pay. This may be taken as a confirmation of the
legislature's original and continuing intent to exclude the professional employees of the
University of Nevada System from the scope of NRS 284.177. Although not controlling, the
legislature's construction of its own act is persuasive in ascertaining the act's meaning.
Commercial Nat'l Bank v. Arkansas Children's Hospital, 511 S.W.2d 640 (Ark. 1974).
While our analysis proceeds along a path different from that of the district court, we reach
the same conclusion and, therefore, need not disturb the district court's decision. See Hotel
Riviera, Inc. v. Torres, 97 Nev. 399, 632 P.2d 1155 (1981). Accordingly, we affirm the order
of the district court granting summary judgment in favor of the State of Nevada, the
University of Nevada System, and the regents of the University of Nevada. For the same
reasons, we affirm the district court's order denying the motions of the professional
employees of the University of Nevada System to alter or amend the judgment and to file an
amended complaint.
____________
104 Nev. 40, 40 (1988) Varwig v. State
IVAN LEWIS VARWIG, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18408
JIMMY RAY PITSONBARGER, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18629
March 30, 1988 752 P.2d 760
Motions to hold appeals in abeyance pending post-conviction proceedings. Second Judicial
District Court, Washoe County; James J. Guinan, Judge.
Defendants were convicted by the district court. Defendants appealed. Defendants moved
to hold their appeals in abeyance pending resolution of petitions for post-conviction relief.
104 Nev. 40, 41 (1988) Varwig v. State
pending resolution of petitions for post-conviction relief. The Supreme Court held that mere
showing of prima facie case was no longer sufficient to hold direct appeals in abeyance.
Motions denied.
David G. Parraguirre, Public Defender, and David A. Cass, Deputy, Washoe County, for
Appellants.
Brian McKay, Attorney General, Carson City; and Mills Lane, District Attorney, Washoe
County, for Respondent.
1. Criminal Law.
Direct appeals will not be held in abeyance pending resolution of related post-conviction proceedings in
district court based on mere showing of prima facie case; rather, the Supreme Court will exercise its
discretion to hold appeals in abeyance only in unusual and extraordinary cases.
2. Criminal Law.
In order to establish good cause for granting motion to hold direct appeal in abeyance pending resolution
of related post-conviction proceeding in district court, appellant must demonstrate both that he is likely to
succeed on merits of post-conviction petition and that there is strong likelihood that holding direct appeal
in abeyance will serve end of judicial economy.
OPINION
Per Curiam:
These are appeals from judgments of conviction. Appellants have moved to hold their
appeals in abeyance pending resolution of their petitions in the district court for
post-conviction relief.
In Daniels v. State, 100 Nev. 579, 688 P.2d 315 (1984), this court indicated that we would
consider a motion to hold a direct appeal from a judgment of conviction in abeyance if
appellant affirmatively demonstrated that he had actually filed his petition for post-conviction
relief in the district court, and made a showing that his petition for post-conviction relief had
prima facie merit. The purpose for such a procedure was to promote judicial economy either
because an order of the district court granting a petition for post-conviction relief might
render a direct appeal moot or because this court could consider an appeal from the district
court's denial of a petition for post-conviction relief and a direct appeal in a single
proceeding.
It has been our experience that the end of judicial economy has not been served by the
abeyance procedure announced in Daniels. Specifically, direct appeals from judgments of
conviction which have been held in abeyance pending resolution of post-conviction matters
are increasingly clogging the dockets of this court.
104 Nev. 40, 42 (1988) Varwig v. State
court. The administrative burden of tracking these delayed appeals and insuring that the
matters pending below are pursued expeditiously has proven to be substantial. In addition, the
vast majority of petitions for post-conviction relief have been unsuccessful. Indeed, a review
of the records of our clerk's office has not revealed a single instance in which a direct appeal
has been rendered moot by post-conviction proceedings.
In a usual case, where the record on direct appeal is relatively short and the issues are
straightforward, delaying the direct appeal pending post-conviction proceedings and then
attempting to consolidate the two appeals often creates procedural and administrative
problems. For example, practitioners often neglect to inform this court when a
post-conviction proceeding has been resolved in the district court, thus delaying a direct
appeal beyond the time necessary for the resolution of the post-conviction proceedings. A
direct appeal is then further delayed while a record of the post-conviction proceeding is
prepared and transmitted to this court. Further, practitioners often request that the two appeals
be consolidated before the second appeal is docketed in this court. Also, practitioners often
neglect to file notices of appeal and to designate properly the record in the post-conviction
proceedings because of the misperception that the two appeals are a single proceeding. This
causes unnecessary confusion for the clerk of the district court and for the clerk of this court.
In addition, this court receives numerous requests from prisoners proceeding in proper
person to hold their direct appeals in abeyance pending post-conviction proceedings. Because
this court has no means of monitoring the status of proper person proceedings in the district
court, it is impracticable to grant such requests. Finally, the failure of this court to resolve
issues pending on direct appeal often impacts adversely on the case before the district court
because the district court must hear and consider issues that might be precluded by a decision
on the merits of the direct appeal. The result is that one difficult case is often created from
two simple cases.
[Headnotes 1, 2]
Accordingly, we will no longer hold direct appeals in abeyance pending resolution of
related post-conviction proceedings in the district court based on a mere showing of a prima
facie case. Instead, this court will henceforth exercise its discretion to hold appeals in
abeyance only in unusual and extraordinary cases. In order to establish good cause for
granting a motion to hold a direct appeal in abeyance, an appellant must demonstrate both
that he is likely to succeed on the merits of his post-conviction petition and that there is a
strong likelihood that holding the direct appeal in abeyance will serve the end of judicial
economy.
104 Nev. 40, 43 (1988) Varwig v. State
Appellants have not carried their burden of demonstrating good cause for their motions in
these cases. Nevertheless, as this opinion represents a departure from prior procedure, we
conclude that appellants should be allowed to pursue their motions if they believe they can
show good cause under the standard set forth above. Accordingly, we deny these motions
without prejudice to appellants' rights to refile properly documented and supported motions
for the relief they seek.
1

____________________

1
Appellants shall have thirty (30) days from the date of this opinion within which to serve and file their
opening briefs. Thereafter, briefing shall proceed pursuant to NRAP 31(a).
____________
104 Nev. 43, 43 (1988) Winiarz v. State
CONSUELO WINIARZ, aka CONSUELO WEST,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 17510
March 31, 1988 752 P.2d 761
Appeal from judgment of conviction of first degree murder with use of a deadly weapon.
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Defendant was convicted in the district court of premeditated first degree murder, and
defendant appealed. The Supreme Court, Springer, J., held that: (1) reversible error occurred
when psychiatrist, who was appointed by court to examine defendant at request of defense
counsel and who was called by state at trial, attacked defendant's credibility by saying that she
was lying and feigning when she claimed she shot her husband accidentally, and (2)
reversible error occurred when psychiatrist gave his expert opinion that defendant was
murderer who killed her husband in cold blood and in premeditated fashion.
Reversed and remanded.
George R. Carter and John G. Watkins, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Roberta J.
O'Neale, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Reversible error occurred in murder prosecution when psychiatrist, who was appointed by court to
examine defendant at request of defense counsel and who was called by state at trial, attacked defendant's
credibility by saying that she was lying and feigning when she claimed she shot her
husband accidentally, since defendant's credibility was most important element of
her defense.
104 Nev. 43, 44 (1988) Winiarz v. State
credibility by saying that she was lying and feigning when she claimed she shot her husband accidentally,
since defendant's credibility was most important element of her defense.
2. Criminal Law.
Reversible error occurred in murder prosecution when psychiatrist, who had been appointed by court to
examine defendant at request of defense counsel and who was called by state at trial, gave his expert
opinion that defendant was murderer who killed her husband in cold blood and in premeditated fashion;
psychiatrist's diagnosis of defendant as murderer went beyond bounds of permissible expert opinion since
psychiatrist's testimony came very close to answering impermissible question of whether defendant was
guilty or not.
OPINION
By the Court, Springer, J.:
Consuelo Winiarz shot Jacob Winiarz and killed him.
1
She claims that it was an accident,
done as part of an April Fools' routine acted out by Jacob and her on April Fools' Day and on
at least one other occasion prior to the fatal shooting. Consuelo stands convicted of
premeditated first degree murder with the use of a deadly weapon and is serving two
consecutive sentences of life imprisonment without possibility of parole.
Consuelo's story goes like this: On April Fools' Day, Consuelo and Jacob decided to play a
little joke on their friends. Jacob thought it would funny if they were to stage a fake shooting
with blank ammunition. The couple pretended to be engaged in an argument during which
Consuelo fired a blank shot at Jacob. Jacob ran down the hall screaming and then fell dead
on the floor, Consuelo fell to her knees over his corpse. Great fun. April Fool!
The trick worked so well, according to Consuelo, that they tried it again before the time of
the fatal shooting. Jacob did the loading of the gun. On April 22, Easter Sunday, they tried it
one last time. The day started out happily for Consuelo and Jacob. They enjoyed marital
relations together. Consuelo prepared breakfast. She worked in the garden and washed and
waxed her car. Consuelo drank beer, a case of it, according to Consuelo's testimony. Friends
stopped by. Consuelo says that she was not in any way angry with Jacob, and they had no
arguments or other conflict.
In the afternoon, Jacob came into Consuelo's bedroom and, by Consuelo's testimony, said
that he wanted to do their April Fools' routine. The plan was to fake an argument about Jacob
not waxing the car.
____________________

1
Consuelo and Jacob were married in a ceremony determined by the trial judge in this case to be invalid.
104 Nev. 43, 45 (1988) Winiarz v. State
waxing the car. Consuelo claims that Jacob handed her the gun and after screaming loudly for
the benefit of guests, that he had better go was the f---ing car or [she] would kill him,
Consuelo pulled the trigger. Jacob turned, as before, ran down the hall screaming and fell to
the floor, dead. Evidence indicated that four bullets were fired, and three bullets struck Jacob.
Consuelo testified that she walked past Jacob in the hall, laid the gun down on the kitchen
table, and returned to the bedroom to put on her makeup. When she still heard Jacob
screaming, she walked back to Jacob and said, Get up, asshole. Hearing him moan and
seeing blood, Consuelo tried to telephone for help and ran out to the street screaming for
help.
The prosecution rejected Consuelo's April Fools' story and charged a planned, intentional
killing on Consuelo's part. The prosecution's case casts the episode in a different light.
Witnesses for the prosecution testified that Consuelo admitted being angry with Jacob on the
day of the killing and testified that Jacob's ex-wife had annoyingly telephoned on that day.
One witness testified that Consuelo had, in her presence, ridiculed Jacob's sexual talents.
Another prosecution witness testified that Consuelo did not appear to be intoxicated or under
the influence of alcohol.
When the shots were heard by the guests, one of them remarked that they should not be
concerned because the couple had played this joke before. Later, however, one of the guests
testified to having heard Consuelo say, in an evil, queer voice: It wasn't a joke. Another
witness testified that as Consuelo placed the gun on the kitchen table she said: Don't touch
the gun. I just shot my husband. I have to call an ambulance. Afterwards, witnesses saw
Consuelo hysterically screaming, outside of the house, that she had shot Jacob.
Undisputed evidence establishes that Consuelo was intoxicated on that day. Her blood
alcohol analysis revealed a .19 percent by weight at 7:20 p.m., approximately two and
one-half hours after the shooting.
2
Consuelo did not have her glasses on at the time of the
shooting and her optometrist testified that Consuelo could not see clearly beyond four feet.
She has always claimed that the shooting was an accident.
A reading of these facts leaves the reader without any doubt as to what this case is all
about: Is Consuelo telling the truth about the April Fool's joke? The answer to this question
tells whether she is a murder or not. Unfortunately for Consuelo this question was answered
for her by her own doctor, who, when called by the prosecution, testified that in his opinion
she was a liar and that she "murdered her husband in cold blood in a premeditated
fashion."
____________________

2
Dr. Verdun Trione testified that an individual, like Consuelo, would have had a blood alcohol level of .23 or
.24 percent by weight at 5:00 p.m. if her blood alcohol at 7:20 p.m. was .19 percent by weight.
104 Nev. 43, 46 (1988) Winiarz v. State
by the prosecution, testified that in his opinion she was a liar and that she murdered her
husband in cold blood in a premeditated fashion. The jury agreed with Consuelo's doctor, a
psychiatrist appointed by the court to examine her, and by their verdict, found that she was
indeed a cold-blooded murderer, finding her guilty of murder in the first degree and punishing
her with a sentence of life imprisonment without possibility of parole.
We hold, first, that it was error under Esquivel v. State, 96 Nev. 777, 617 P.2d 857 (1980),
to permit Dr. Master to attack Consuelo's credibility, to say that she was lying and
feigning, when such testimony was based largely upon his psychiatric interview with her.
Secondly, under McKenna v. State, 98 Nev. 38, 639 P.2d 557 (1982), cert. denied, 106
S.Ct. 868 (1986), it was error for Consuelo's psychiatrist to use the confidential contents of
his interview with her in order to assist the prosecution in obtaining a conviction.
Finally, Dr. Master's testimony that he believed Consuelo was a cold-blooded murderer
goes to the ultimate issue in this case and constituted a highly prejudicial, improper
expression of opinion.
Some explaining is in order to show how this all could possibly have happened, a
defendant's being convicted at the hands of her own physician. Dr. Master was called in as
one of two psychiatrists appointed by the court at the request of defense counsel. Apparently
defense counsel, finding his client in a very disturbed emotional condition, asked the court to
appoint two psychiatrists under NRS 178.415, in order to have professional opinions on his
client's sanity at the time of the shooting and on whether his client was mentally competent to
stand trial.
The two appointed psychiatrists examined Consuelo and concluded that she was not
mentally incapacitated (that she was sane) at the time of the shooting and that she was
mentally competent to stand trial.
After receiving the report of the examination by Dr. Master and the other psychiatrist the
trial proceeded. No defense of insanity was interposed or suggested; and the defense did not,
naturally, call Dr. Master. The defense did, however, call a psychologist, Dr. Verdun Trione,
to testify on the effect that alcohol would have on a person of Consuelo's weight and level of
alcohol consumption on the date of the shooting. Had Dr. Trione's testimony stopped here,
there would not have been any justification for the state's calling Dr. Master as its own
witness because the defense had never made an issue of Consuelo's sanity and had maintained
only that she had, in a intoxicated condition, made a tragic mistake.
104 Nev. 43, 47 (1988) Winiarz v. State
Defense counsel went beyond the defense of accident and mistake, however, and asked Dr.
Trione if a person like Consuelo, one weighing what she did and having consumed the
amount of alcohol that she did, would be capable of premeditation or deliberation.
3

Defense counsel's asking Dr. Trione about a person's ability to premeditate and
deliberate introduced an issue that had not theretofore been before the jury. Consuelo herself
never claimed such a cognitive incapacity and, as stated, rested her defense entirely on
mistake and misadventure contributed to by alcohol abuse.
The prosecution, understandably and correctly, took this testimony as giving it an
opportunity to call a psychiatrist to rebut Dr. Trione's hypothesis, that someone in Consuelo's
condition was unable to perform the cognitive processes necessary to be able to premeditate
and deliberate. Consuelo's psychiatrist, Dr. Master, was called to do the task.
4

The crucial question in this case was the prosecutor's asking Dr. Master to describe the
state of mind of the defendant at the time of this offense. Permitting the doctor, over
objection, to answer this question opened up a chamber of horrors that culminated in the
jury's being told by the court-certified expert that his patient (in a sense) was a liar and a
murderer.
Asking the doctor to testify as to Consuelo's state of mind permitted comment on a wide
array of damning testimony.
____________________

3
Dr. Trione, was asked to give his opinion on the effect of alcohol on a hypothetical female person who
weighed 120 pounds, had had nothing to eat during the day, had been drinking beer all day and had a blood
alcohol content of between .19 and .23 percent (facts which fit Consuelo's case according to the evidence). The
psychologist testified as follows:
Q. A person whose [sic] a .19, .19 to a .23, would that person be capable of premeditation?
A. I don't see how.
Q. What about deliberation?
A. No. They are too disoriented.
The psychologist gave other testimony concerning the mental state of a person in the stated condition of
intoxication. He did not testify that Consuelo was insane or otherwise mentally incapacitated.

4
It may not be entirely accurate to refer to Dr. Master as Consuelo's physician even though it is safe to
assume that neither Consuelo nor her defense attorney thought that he was to be a state's witness, hired to give
incriminating evidence out of his psychiatric interview. Dr. Master was Consuelo's psychiatrist in the sense that
he was employed to diagnose her mental condition. In order for the doctor to do this, some kind of
physician-patient relationship had to exist. The doctor's duty to Consuelo arises out of this relationship, and, [I]t
is immaterial whether the court ordered examination was at the request of defendant or the prosecution or that
both were to receive copies of the report. McKenna, 98 Nev. at 39, 639 P.2d at 558 (citing Collins v. Auger, 428
F.Supp. 1079, 1082 (S.D. Iowa 1977).
104 Nev. 43, 48 (1988) Winiarz v. State
Although, as said, sanity was never in issue, the doctor testified that Consuelo had the ability
to know right from wrong and, in essence, was perfectly sane at the time of the shooting.
Worse, he described her as dis-social, as an histrionic, as a liar and as a murderer. Unlike
the testimony of the psychologist called by the defense, Dr. Master did not testify in terms of
a hypothetical person; rather, he gave his clinical impression of Consuelo herself. The
following is an outline of Dr. Master's broad-spectrum story of Consuelo's mental state:
The prosecution, in exploring Consuelo's mental state, went about asking Dr. Master
which of his two original impressions, (1) confused, accidental shooting while playing
a joke, or (2) cold-blooded murder, he now, as a witness for the prosecution, favored.
To assist the doctor in choosing between the two impressions the district attorney read
into the record several pages of incriminating what-ifs. For example, the district
attorney asked Dr. Master if he had taken, since his original examination of Consuelo,
the opportunity to review a large number of police reports and witness statements in this
matter? Dr. Master said, Yes, that he did have an opportunity to review a large
number of unspecified reports and statements. Dr. Master was then asked if he had
considered two specified reports, one from Dr. Acosta, another from a psychiatric
counselor, a Mr. Pheifer. Defense counsel advised the court that, as an officer of the
court, he had never received such reports.
Dr. Master then testified that in making his choice between the accident and the murder
scenarios, his conversation with the Metro dispatcher was of some assistance. No one
knows what this conversation was about or how it assisted the doctor in making his
choice between diametrically opposed impressions.
A number of other hypothetical facts were presented to Dr. Master in the presence of
the jury, including one that Consuelo tends to make verbal threats such as, I'm going to
shoot you in the balls if you don't do what I say to do. Defense counsel objected to this
line of questioning. The objection was overruled.
The prosecutor then asked Dr. Master to consider the various reports and a lengthy list
of hypothetical facts too numerous to include in this opinion, and asked him: [W]hat
would your opinion now be as to her state of mind? (Emphasis added). In answer to this
question Dr. Master testified that these new facts would lead him toward the second
possibility in his original reportthe coldblooded, premeditated murder possibility.
104 Nev. 43, 49 (1988) Winiarz v. State
blooded, premeditated murder possibility. He then went on to make a new diagnosis of
Consuelo as possessing a histrionic and dis-social personality, described in terms of
lying, faking, feigning and engaging in a Sarah Bernhart [sic] type routine,
thereby directly attacking Consuelo's credibility, the most important and crucial issue in
her defense.
[Headnote 1]
In Esquivel we condemned an examining psychiatrist's challenging an examined subject's
credibility. Esquivel was accused of rape. He admitted the sexual act but claimed that it had
been consented to. His credibility was clearly the most important element of his defense. The
prosecution impeached Esquivel's credibility with statements made to a psychiatrist during a
court-ordered mental examination. In Esquivel we said:
We believe that admission of these statements was error as a subject being examined by a
court appointed physician should feel free in such a clinical climate to discuss all the
facts relevant to the examination without the guarded fear that the statements may later
be used against him. Fair play dictates nothing less. . . . Here the principal issue in the
case was Esquivel's credibility; the damaging evidence introduced to impeach his own
testimony was garnered during Esquivel's mental examination. We may not deem the
evidence harmless error under the factual posture presented and must therefore reverse
and remand the case to the district court for a new trial.
(Footnotes and citations omitted). Exactly the same considerations are present in the case now
before us.
The rule in McKenna has also been violatednot so clearly as in the Esquivel rule, but
still violated.
In McKenna, we condemned the presentation by a psychiatrist of admissions of guilt made
by a defendant during his psychiatric interview and examination. The admission made by
McKenna related to commission of the criminal act itself, the actus reus, rather than the mens
rea. The issue in the case before us is not the act but the intent. Consuelo's intent in this case
is just as important a part of her guilt or innocence as was the question of whether McKenna
did or did not inflict a mortal would on his cellmate.
If Consuelo had admitted flatly to Dr. Master that she had intentionally killed Jacob, there
would be no distinction at all between this case and McKenna. The only difference between
the present case and one involving a direct admission is that Dr. Master's testimony that
Consuelo was lying and had in fact murdered her husband comes not from a
single-statement admission but rather from a composite of the statements made by
Consuelo in her psychiatric interview.
104 Nev. 43, 50 (1988) Winiarz v. State
murdered her husband comes not from a single-statement admission but rather from a
composite of the statements made by Consuelo in her psychiatric interview.
In McKenna we said that the testimony of Dr. Master (the same), telling of admissions
made by McKenna about killing his cellmate, could not in fairness be used to convict him.
Concerning the use of admissions made in the course of a psychiatric examination, we said
that [f]air play does indeed dictate that our trial courts not appoint a psychiatrist to examine
the accused and then apply the confidential contents of the interview to obtain a conviction.
McKenna, 98 Nev. at 39, 639 P.2d at 558.
In McKenna factual admissions of McKenna's criminal agency were used to establish his
guilt, whereas, the entire interview of Consuelo with Dr. Master was used by him to
establish her guilt. Id. To borrow additional language from McKenna, Dr. Master was
allowed to examine [the] accused and then apply the confidential contents of the interview
to obtain a conviction.
5
In doing this there was, as in McKenna, a violation of federal
constitutional rights to due process, and we are obliged to apply again the test of Chapman v.
California, 386 U.S. 18 (1966). To affirm this conviction we must be able to declare that the
constitutional error was harmless beyond a reasonable doubt. This we cannot do.
Borrowing again from McKenna: Applying the Chapman standard, it is within the realm
of possibility that, absent the constitutionally forbidden admissions contained in the
psychiatrists' testimony, honest, fair-minded jurors might have brought in a lesser verdict.
Under these circumstances, it is impossible for us to say that the state has demonstrated,
beyond a reasonable doubt, that the evidence did not contribute to [Consuelo's] conviction.
We therefore reverse and remand for new trial.
[Headnote 2]
As a final basis for reversal, we specify Dr. Master's expression of opinion as to
Consuelo's guilt or innocence. The doctor's diagnosis of Consuelo as a murderer goes
considerably beyond the bounds of permissible expert opinion. Dr. Master was not asked:
Doctor, in your opinion, based upon your examination of Consuelo Winiarz, is she or is she
not guilty of murder?, but Dr. Master's testimony comes very close to answering this
question.
____________________

5
The state argues that Dr. Master's testimony is exempt from the McKenna rule because he testified only as
to mental condition and not to guilt. In the case before us guilt and mental condition are inextricable. There is
no question about Consuelo's responsibility for the homicide. The question is whether she intended to kill Jacob
or made a giant mistake. Dr. Master pretty much settled this question.
104 Nev. 43, 51 (1988) Winiarz v. State
We hold that it was error to permit Dr. Master, under the guise of describing Consuelo's
mental state, to give to the jury, based on his psychiatric examination, an expert opinion that
the woman he examined, now before the bar of justice, was plainly and simply a murderer
who killed her husband in cold blood in a premeditated fashion. Such a usurpation of the
jury function by a qualified expert is undeniably, of itself, reversible error.
6

Independently and in concert, the four mentioned errors require that this conviction be
reversed. The matter is, then, reversed and remanded for a new trial.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________________

6
This proposition is codified in Rule 704(b) of the Federal Rules of Evidence in the following terms:
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a
criminal case may state an opinion or inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
____________
104 Nev. 51, 51 (1988) Walstrom v. State
ROBERT E. WALSTROM, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17957
March 31, 1988 752 P.2d 225
Appeal from a felony conviction for lewdness with a minor. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of lewdness with a minor, and he appealed.
The Supreme Court held that: (1) crime is done in a secret manner, under statute tolling
statute of limitations if crime is committed in secret manner, when it is committed in
deliberately surreptitious manner that is intended to and does keep all but those committing
crime unaware that offense has been committed, and (2) substantial evidence supported
conclusion that defendant committed crime of lewdness with a minor in a secret manner so as
to toll applicable statute of limitations until crime was discovered.
Affirmed.
Terry, Winter & Wessel, Carson City, for Appellant.
Brian McKay, Attorney General, and Noel S. Waters, District Attorney, Carson City, for
Respondent.
104 Nev. 51, 52 (1988) Walstrom v. State
1. Criminal Law.
Under statute tolling statute of limitations if crime is committed in a secret manner, burden is on State
to prove that crime was committed in secret manner. NRS 171.095.
2. Criminal Law.
Under statute tolling statute of limitations if crime was committed in secret manner, State's burden of
proving that crime was committed in secret manner is not one of proof beyond reasonable doubt, but only
by preponderance of evidence. NRS 171.095.
3. Criminal Law.
Crime is done in a secret manner, under statute tolling statute of limitations if crime is committed in
secret manner, when it is committed in deliberately surreptitious manner that is intended to and does keep
all but those committing crime unaware that offense has been committed; therefore, if crime of physical
abuse, or elated crime, is committed against victim who remains alive, it would not normally be committed
in secret manner under the statute. NRS 171.095.
4. Criminal Law.
Given inherently vulnerable nature of child, crime of lewdness with minor can be committed in secret
manner within meaning of statute tolling limitations period even though victim is involved. NRS
171.095.
5. Criminal Law.
Substantial evidence supported conclusion that defendant committed crime of lewdness with a minor in a
secret manner so as to toll applicable statute of limitations until crime was discovered; slides showing
defendant committing lewd acts with young girl indicated that defendant and victim were alone when slides
were taken, and slides were developed from film found in locked footlocker in defendant's private vehicle,
indicating defendant's desire to keep his illegal activity secret. NRS 171.095.
OPINION
Per Curiam:
THE FACTS
In June 1986, Janine Walstrom asked her friend Francis Grey to be a witness while they
examined the contents of a metal footlocker located in her husband's pickup truck. When they
opened the locker, they found child pornography. Based on the affidavit of Ms. Grey,
detective Susan Coffey of the Carson City Sheriff's Office executed a search warrant and
seized the materials in the footlocker.
Detective Coffey found a roll of undeveloped film in the bottom of the footlocker. When
developed, the slides showed appellant Walstrom committing lewd acts with a young girl.
1
The pictures of these acts were taken, at the very latest, in 1978, eight years before they were
seized. Despite some effort by the State, the victim was never located.
____________________

1
The girl appeared to between five and ten years old.
104 Nev. 51, 53 (1988) Walstrom v. State
Walstrom was arrested under NRS 201.2302 and interviewed. He admitted collecting child
pornography but denied ever using children to produce his own pornography.
After a bench trial, Walstrom was convicted of lewdness with a minor and sentenced to ten
years. He appeals.
DISCUSSION
Because the State produced irrefutable proof that Walstrom is guilty of the crime, the main
issue is whether the statute of limitations was tolled. NRS 171.085 provides:
Except as provided in NRS 171.095, an indictment for:
. . . .
2. Any other felony than murder, theft, robbery, burglary, forgery, arson or sexual
assault must be found, or an information or complaint filed, within 3 years after the
commission of the offense.
NRS 171.095(1) provides:
If a felony . . . is committed in a secret manner . . . an information [must be] filed
[within three or four years] after the discovery of the offense.
The felony crime was committed, at the latest, in 1978. The information was filed in 1986,
shortly after the film showing the crime was discovered. Unless the NRS 171.095 in a secret
manner exception tolls the statute of limitations, the conviction must be reversed as the
lower court did not have subject matter jurisdiction.
3
Brannen v. State, 102 Nev. 7, 714 P.2d
175 (1986); Melvin v. Sheriff, 92 Nev. 146, 546 P.2d 1294 (1976).
In interpreting NRS 171.095, we must first decide whether the State must bear the burden
of establishing that the crime was done in a secret manner, or whether the defendant must
bear the burden of establishing that the crime was not done in a secret manner. The lower
court held that the State had the burden to prove the crime was committed in a secret manner
beyond a reasonable doubt, and concluded it had done so.
[Headnote 1]
We note that exceptions to criminal statutes of limitations are narrowly construed and read
in a light most favorable to the accused.4 State v. Merolla, 100 Nev. 461, 464
____________________

2
NRS 201.230 provides: Any person who willfully and lewdly commits any lewd or lascivious act . . . upon
or with the body . . . of a child under the age of 14 years . . . shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 10 years.

3
Because the crime occurred before the 1985 modification of NRS 171.095, the exception in 171.095(2)
does not apply in this case.
104 Nev. 51, 54 (1988) Walstrom v. State
accused.
4
State v. Merolla, 100 Nev. 461, 464, 686 P.2d 244, 246 (1984). We therefore agree
with the lower court that, under NRS 171.095, the burden is on the State to prove that the
crime was committed in a secret manner in order to toll the statute of limitations for criminal
actions. This conclusion is consistent with our general rule of favorable construction for a
defendant. Moreover, it is consistent with the well-established principle that the State must
prove that an offense was committed within the statutorily permitted period for prosecution.
5
It is also consistent with the few decisions of other states that have considered the specific
issue.
6

[Headnote 2]
However, we conclude that the State's burden is not one of proof beyond a reasonable
doubt, but only by a preponderance of the evidence.
7
See State v. Tibor, 373 N.W.2d 877,
883 (N.D. 1985); People v. Zamora, 557 P.2d 75, 93 n. 27 (Cal. 1975). The lesser standard is
appropriate because proving the application of the exception to the statute is not the same as
proving an element of the crime. Proving the exception to the statute of limitations addresses
the issue of the court's jurisdiction; proving an element of the crime concerns the issue of a
defendant's guilt or innocence.
____________________

4
We should add, however, that one of the reasons for construing exceptions to statutes of limitations
narrowly does not exist in this situation. We construe exceptions narrowly because with the passage of time
exculpatory evidence may disappear, prejudicing the defendant. However, in this case, no such exculpatory
evidence exists.

5
See, e.g., State v. Lester, 317 S.E.2d 295, 297 (Ga.App. 1984); Duncan v. State, 384 A.2d 456, 457 (Md.
1978); State v. Tibor, 373 N.W.2d 877, 883 (N.D. 1985); Annotation, Burden on State To Show that Crime Was
Committed Within Limitation Period, 13 A.L.R. 1446, 1446 (1921) (It is well settled that, where the issue of
the Statute of Limitations is raised in a criminal case, the state must affirmatively prove the commission of the
offense within the statutory period.) (citations omitted).

6
See United States v. Gonsalves, 675 F.2d 1050, 1054 (9th Cir.), cert. denied, 459 U.S. 837 (1982); People
v. Zamora, 557 P.2d 75, 93 n. 27 (Cal. 1976); Tibor, 373 N.W. 2d 877, 883 (N.D. 1985). See also 29 Am.Jur.2d
Evidence 155 (1967) (In the event that the prosecution relies on an exception to remove the bar of the statute,
it has the burden of proof to show its right to prosecute for the offense.) (footnote omitted); Annotation, Burden
on State To Show that Crime Was Committed Within Limitation Period, 13 A.L.R. 1446, 1449 (1921) ([I]f the
prosecution relies on an exception to remove the bar of the statute, the burden of proof is on the state to show its
right to prosecute for the offense.) (citations omitted).

7
A preponderance of the evidence is evidence which leads the trier of fact to find that the existence of the
contested fact is more probable than its nonexistence. People v. Taylor, 618 P.2d 1127, 1135 (Colo. 1980). This
standard does not merely look to who has presented more evidenceit looks to whether, on an objective basis,
the party has established a certain fact probably exists.
104 Nev. 51, 55 (1988) Walstrom v. State
cence. The considerations that require proof beyond a reasonable doubt do not apply when the
State is merely attempting to prove jurisdiction. Given the difficulty of proving the secret
manner exception long after the commission of an offense, we see no sound reason to
compound the difficulty by imposing a higher standard upon the State.
Having established the State's burden, we now must consider what constitutes committing
a crime in a secret manner. Defendant urges this court to adopt the logic of State v. Bentley,
721 P.2d 227 (Kan. 1986), in deciding this issue. In Bentley, the Kansas Supreme Court
stated that Crimes against persons, by their very nature, cannot be concealed. 721 P.2d at
230. We reject this broad proposition, as it fails to take into account the vulnerability of
children and apparently assigns to them full adult responsibility for immediately reporting
crimes in which they are victims. However, as one author concluded:
Often, the already traumatized child retreats into silence. The perpetrator may have
extracted a promise of secrecy by using coercion, threats against the child or the child's
loved ones, subtle persuasion, or bribes. Such coercion has powerful force: the child
victim becomes confused, guilt-ridden, and terrified of losing the affection of people who
comprise his entire world. Additionally, the mystique surrounding sex often causes the
child to fear that he will not be believed or will be deemed responsible for the sexual
incident. The child may not fully comprehend that his tormentor's behavior is deviant.
Comment, The Young Victim as Witness for the Prosecution: Another Form of Abuse? 89
Dick. L. Rev. 721, 731 (1985) (footnotes omitted).
8
Some research indicates that a
substantial number of child abuse victims may be under the age of five.9 Given the limited
emotional, intellectual, psychological, and physical development of children, the Kansas
Supreme Court's assignment of responsibility is unrealistic.
____________________

8
See also Cerkovnik, The Sexual Abuse of Children: Myths, Research, and Policy Implications, 89 Dick. L.
Rev. 691 (1985). Therein, the author notes:
Male victims do not report being sexually victimized as readily as female victims because they equate
victimization with the loss or absence of masculinity. . . . The male victim often chooses not to report
because of the following fears: (1) Unable to protect himself, he fears being considered a sissy or
unmanly. (2) He may fear that people will think he is a homosexual and he fears becoming a homosexual.
(3) If abused by a woman he thinks a complaint will bring his masculinity into question. (4) Boys who are
molested by their mothers often assume responsibility for their own molestation viewing their mothers
incapable of abuse. (5) They fear no one will believe their report of sexual abuse or that most people
think such sexual activity is not harmful to the boy. (6) They fear risking their own safety and well being.
Id. at 706 (citation omitted). And in Wenck, Sexual Child Abuse: An American Shame That Can Be Changed,
12 Cap. L. Rev. 355, 359 (1983),
104 Nev. 51, 56 (1988) Walstrom v. State
number of child abuse victims may be under the age of five.
9
Given the limited emotional,
intellectual, psychological, and physical development of children, the Kansas Supreme
Court's assignment of responsibility is unrealistic.
[Headnotes 3, 4]
We conclude that a crime is done in a secret manner, under NRS 171.095, when it is
committed in a deliberately surreptitious manner that is intended to and does keep all but
those committing the crime unaware that an offense has been committed. Therefore normally,
if a crime of physical abuse, or a related crime, is committed against a victim who remains
alive, it would not be committed in a secret manner under the statute. The victim is aware of
the crime and has a responsibility to report it. However, given the inherently vulnerable
nature of a child, we conclude that the crime of lewdness with a minor can be committed in a
secret manner, even though a victim is involved.
On review, we view the facts in the light most favorable to the prosecution. Koza v. State,
100 Nev. 245, 250, 681 P.2d 44, 47 (1984). If substantial evidence supports a trier of fact's
determination that a crime was committed in a secret manner, we will not disturb this finding
on appeal. Cf. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). We have defined substantial
evidence as evidence a reasonable mind might accept as adequate to support a conclusion.
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
[Headnote 5]
We conclude, after review of the record, that substantial evidence supports the lower
court's conclusion that Walstrom committed the crime in a secret manner. First, the slides
show that Walstrom or his victim used a remote control device to take the pictures. Although
not totally conclusive, use of this device implies that Walstrom was alone with the child when
the pictures were taken. The fact that he apparently desired to be alone with the child, when
photographing his crime, implies that Walstrom, from the inception of his illegal activity, was
attempting to commit the crime in a secret manner. Second, after taking the pictures,
Walstrom secreted the undeveloped film in a locked footlocker in his private vehicle. The fact
that he had not developed the film and kept it locked away implies that Walstrom had both
an initial and continuous desire to keep his illegal activities secret.
____________________
the author concludes, The child victim of intra-family child abuse probably has been abused on the average of
at least two years before she finally has the courage to report what has been happening to her.

9
According to one study conducted by the American Humane Society and the National Center on Child
Abuse and Neglect, 28.5 percent of child sexual abuse victims are under the age of five. Highlights of Official
Child Neglect and Abuse Reporting 1985, p.19.
104 Nev. 51, 57 (1988) Walstrom v. State
oped the film and kept it locked away implies that Walstrom had both an initial and
continuous desire to keep his illegal activities secret. Third, at the time Walstrom was
arrested, he denied ever personally participating in the production of child pornography, again
suggesting a continuous desire to keep his criminal activity secret. And finally, because of
this crime's inherently repugnant nature, we note that it is almost always intended to be kept
secret. See Bentley, 721 P.2d at 230 (Sexual abuse of children, by its very nature, is done in
secrecy.).
From this evidence, a reasonable mind could conclude Walstrom committed his crime in a
secret manner. In light of the above, we find no error in the district court's decision and
accordingly affirm the conviction.
____________
104 Nev. 57, 57 (1988) Ramadanis v. Stupak
GUS RAMADANIS, and MARATHON, INC., Appellants, v. BOB STUPAK and BOB
STUPAK, INC., dba BOB STUPAK'S VEGAS WORLD HOTEL and CASINO,
Respondents.
No. 18028
March 31, 1988 752 P.2d 767
Appeal from order of district court denying appellants' post-judgment motions for costs
and attorney's fees. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Tenants filed suit against hotel for wrongful eviction and false arrest of the tenant's
principal. The district court entered judgment on a jury verdict, but denied post-judgment
motions for costs and attorney fees. Appeal was taken. The Supreme Court held that: (1) an
offer of judgment which was not apportioned was invalid and did not bar the recovery of
costs and attorney fees, even though the verdict was less favorable than the offer; (2) the offer
was made under the rule governing costs and attorney fees and, therefore, did not bar an
award of prejudgment interest; and (3) the jury's verdict did not commingle past and future
damages and, therefore, an award of prejudgment interest was appropriate.
Reversed and remanded.
Peter L. Flangas, Las Vegas, for Appellants.
E. Leslie Combs, Jr., Las Vegas, for Respondents.
1. Costs.
Offer of judgment which was not apportioned among offerees was invalid as unapportioned joint offer
and, therefore, rejection of offer did not bar recovery of costs and attorney fees, even though judgment
obtained against offeror was less favorable than offer. NRCP 68.
104 Nev. 57, 58 (1988) Ramadanis v. Stupak
2. Interest.
Offer of judgment was made pursuant to rule which does not provide for denial of prejudgment interest
when final judgment is less favorable than offer and, therefore, did not bar recovery of prejudgment
interest. NRS 17.115; NRCP 68.
3. Interest.
Jury's award of damages for physical restraint, public humiliation, embarrassment, mental anguish, and
frustration resulting from false arrest did not commingle past the future damages and, therefore, award of
prejudgment interest on damages was appropriate. NRS 17.130, subd. 2.
OPINION
Per Curiam:
This case arises from the district court's ruling on post-judgment motions made pursuant to
NRCP 68, NRS 17.130(2) and NRS 18.010.
On July 2, 1982, Marathon, Inc. (Marathon) and Gus Ramadanis (Ramadanis) filed a
complaint against respondents Bob Stupak and Bob Stupak, Inc., dba Bob Stupak's Vegas
World Hotel and Casino (Stupak), and Chris Karamanos (Karamanos). In the first cause of
action, Marathon alleged wrongful eviction from leased restaurant space at Vegas World.
Marathon sought money damages for the value of restaurant supplies taken or destroyed as a
result of the wrongful eviction, for prepaid rent, and for payment due for meals served to
employees and guests of Las Vegas World. In the second cause of action, Ramadanis sought
damages for false arrest.
On February 3, 1986, Stupak made an offer of judgment in the amount of $15,000
pursuant to NRCP 68. The offer was not accepted. On February 26, 1986, Karamanos paid
$10,000 in settlement of the claims against him, and an order of dismissal with prejudice was
entered that date.
Following the trial of the case against the remaining defendants, Stupak and Vegas World,
the jury was informed of the Karamanos settlement
1
and was instructed to assess full
damages, if they found for the plaintiffs, from which the court would deduct the amount of
the settlement. By separate verdicts, the jury awarded Marathon damages of $9,528.75 and
Ramadanis damages of $8,000, for a combined judgment of $17,528.75.
By separate motions, Ramadanis and Marathon then moved for prejudgment interest
pursuant to NRS 17.130(2) and attorney's fees pursuant to NRS 18.010. Stupak opposed
appellants' motions and made a counter-motion for attorney's fees and costs pursuant to
NRCP 68. The district court denied all motions. From this order and judgment, Ramadanis
and Marathon appeal. Stupak has not filed a cross-appeal.
____________________

1
The jury was not informed of the amount paid in settlement.
104 Nev. 57, 59 (1988) Ramadanis v. Stupak
The district court denied appellants' motions for prejudgment interest and attorney's fees
based upon its finding that the judgment obtained by appellants was less favorable than the
valid offer of judgment made by Stupak for $15,000. Appellants, Ramadanis and Marathon,
allege, as their first point of error, that the offer of judgment submitted under NRCP 68 was
invalid because it was a joint offer made to both plaintiffs and not apportioned between the
plaintiffs. We agree.
[Headnote 1]
In Randles v. Lowry, 84 Cal.Rptr. 321 (Cal.Ct.App. 1970), the court considered the
validity of a joint offer of judgment made to all plaintiffs injured in an automobile accident.
2
The court held that where an offer is made jointly to all plaintiffs and does not apportion the
offer among the plaintiffs, it is impossible to say that any one plaintiff received a less
favorable result than he would have under the offer of compromise. 84 Cal.Rptr. at 325.
Accord Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937 (Alaska 1983); see also
Hutchins v. Waters, 123 Cal.Rptr. 819, 822 (Cal.Ct.App. 1975) (an offer apportioned among
the plaintiffs which was conditional upon acceptance of the offer by each plaintiff did not
support the granting of defendant's costs.)
3

Stupak's offer of judgment entailed $15,000 and accrued costs in consideration of a full
discharge from all claims as alleged in the Complaint on file herein against said
Defendants. There was no attempt made in the offer to apportion the amount offered
between Ramadanis and his corporation, Marathon, Inc., as separate plaintiffs. We hold that
the offer of judgment was invalid as an unapportioned joint offer. Therefore, the judgment of
the district court, such as it is based upon a finding of a valid offer of judgment, is reversed.
[Headnote 2]
Based upon its conclusion that the offer of judgment made pursuant to NRCP 68 was
valid, the trial court concluded that according to NRS 17.115(4)(a) appellants could not
recover prejudgment interest. Since we have held the joint offer invalid, this reasoning fails.
However, we note additionally that Stupak's offer of judgment was made specifically
pursuant to NRCP 68, which does not provide for the denial of prejudgment interest when the
final judgment is less favorable than the offer of judgment. Because Stupak's offer was not
made pursuant to NRS 17.11S but rather NRCP 6S, his remedy is confined to the scope of
NRCP 6S.
____________________

2
The offer of judgment was made pursuant to Cal. Civ. Code 997 which was substantially similar to NRCP
68. Cal. Civ. Code 997 has been repealed and replaced by Cal. Civ. Code 998 which is likewise similar in
substance to NRCP 68.

3
The offer of judgment was made pursuant to Cal. Civ. Code 998. See footnote 2, supra.
104 Nev. 57, 60 (1988) Ramadanis v. Stupak
17.115 but rather NRCP 68, his remedy is confined to the scope of NRCP 68. See Trustees,
Carpenters v. Better Building Co., 101 Nev. 742, 710 P.2d 1379 (1985).
[Headnote 3]
Alternatively, Stupak argues that Ramadanis should be denied prejudgment interest on his
jury award of $8,000 for general damages because Ramadanis failed to separate or apportion
the award between past and future damages. Where an award fails to distinguish past
damages from future damages and such past damages are combined with future damages,
there can be no award of prejudgment interest. Jacobson v. Manfredi, 100 Nev. 226, 233, 679
P.2d 251, 256 (1984); Stickler v. Quilici, 98 Nev. 595, 655 P.2d 527 (1982). In both
Jacobson and Stickler, the judgments did not specifically apportion the damages to the past or
future; however, it is unquestionable that the judgments included an award for future
damages. Both cases involved extensive physical injuries.
Ramadanis alleged damages of physical restraint, public humiliation, embarrassment,
mental anguish, and frustration which resulted from his false arrest. The jury was instructed
in accordance with damages alleged. Jury instruction number 23 directed the jury's attention
only to damages suffered, and it made no reference to future damages. There was no
commingling of past and future damages apparent in the jury's verdict; therefore, the award of
prejudgment interest on the damages for which Stupak is liable is proper.
Accordingly, we reverse and remand this matter for further proceedings in conformance
with this opinion.
4

____________________

4
The Honorable John C. Mowbray, Justice, has voluntarily disqualified himself from consideration of this
case. Nev. Const., art. 6, 4.
____________
104 Nev. 60, 60 (1988) Resnick v. Nevada Gaming Commission
IRVING ASH RESNICK, Appellant, v. NEVADA GAMING COMMISSION,
STATE GAMING CONTROL BOARD, Respondents.
No. 17675
March 31, 1988 752 P.2d 229
Appeal from order dismissing complaint. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Gaming license applicant petitioned for review of Gaming Commission's order denying
applicant discovery of Gaming Board's investigative report. The district court held that it
lacked jurisdiction to reverse the Commission's decision.
104 Nev. 60, 61 (1988) Resnick v. Nevada Gaming Commission
jurisdiction to reverse the Commission's decision. Applicant appealed. The Supreme Court
held that: (1) district court lacked jurisdiction to consider Commission's order denying
discovery; (2) applicant was not entitled to pre-hearing discovery of Board's investigative
reports; and (3) applicant's contention that he would be denied license, and, therefore,
deprived of property or liberty, was not ripe for review.
Affirmed.
[Rehearing denied June 23, 1988]
Gary Logan, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, and Ellen F. Whittemore, Las Vegas, for
Respondents.
1. Administrative Law and Procedure; Gaming.
District court lacked jurisdiction to consider Gaming Commission's order denying gaming license
applicant discovery of Gaming Board's investigative report; Commission's order was not final decision or
order nor was order made after hearing or rehearing. NRS 463.315.
2. Administrative Law and Procedure; Gaming.
Gaming license applicant was not entitled to pre-hearing discovery of Gaming Board's investigative
reports; applicant's right to cross-examine witnesses did not include right of access to all materials which
would assist him in cross-examination, and applicant had not shown that existing pre-hearing discovery
inadequately protected his rights. NRS 463.313(1).
3. Administrative Law and Procedure; Declaratory Judgment; Gaming.
Gaming license applicant's contention that he would be denied a license, and, therefore, deprived of
property or liberty, was not ripe for review, in that it was based on a purely hypothetical premise.
OPINION
Per Curiam:
The Facts
In 1984, the State Gaming Commission (hereafter Commission) determined that
Resnick was an employee who exercised significant influence over the operation of the Dunes
Hotel and Casino and ordered him to apply for a license. In May 1986, Resnick was informed
that his public hearing with the State Gaming Board (hereafter Board) would be held in
July 1986. He then filed a petition with the Commission, asking it to compel the Board to
provide him with a copy of the investigative report the Board had prepared, or at least provide
him with a hearing on the issue of whether he should be granted discovery of the report.1
These requests were denied by the Commission, which issued an order to that effect.2
104 Nev. 60, 62 (1988) Resnick v. Nevada Gaming Commission
report.
1
These requests were denied by the Commission, which issued an order to that effect.
2

Resnick then filed a petition to review the Commission's order denying discovery with the
district court, together with a complaint for declaratory judgment. Resnick sought (1) an order
reversing the Commission's decision that it would not compel the Board to provide Resnick
with a copy of the report, and (2) a declaratory judgment construing NRS 463.313(1)(b) to
permit prehearing discovery by Resnick of the Board's investigative materials. The court held
that it lacked jurisdiction to provide the relief requested. Resnick now appeals the lower
court's decision.
3

Discussion
We have often reiterated that Nevada law requires the courts to play a limited role in
gaming license decisions by the Commission and Board. For example, in Gaming Control Bd.
v. District Ct., 82 Nev. 38, 40, 409 P.2d 974, 975 (1966), we noted The State Constitution,
art. 6, 6, does not authorize court intrusion into the . . . licensing . . . of gaming. And in
State of Nevada v. Rosenthal, 93 Nev. 36, 41, 559 P.2d 830, 834 (1977), we noted that
judicial review of the Commission's final orders and decisions was appropriate only in
specified instances.
[Headnote 1]
Despite this general principle of non-intervention, Resnick asserts that the lower court had
jurisdiction to consider and reverse the Commission's order under NRS 463.315. NRS
463.315(1) provides any person aggrieved by a final decision or order of the commission
made after hearing or rehearing by the commission pursuant to NRS 463.312 to 463.3145,
inclusive, and whether or not a petition for rehearing was filed, may obtain a judicial review
thereof. However, we are convinced that the Commission's order denying discovery was not
a decision or order which could be appropriately reviewed under NRS 463.315. The
Commission's order to deny discovery was not, under NRS 463.315, a "final decision or
order."
____________________

1
Resnick is concerned because in 1978, to become Director of Casino Operations at the Aladdin Hotel, he
apparently underwent the licensing process. He alleges that, having undergone the process, he now realizes he
must have a copy of the report to ensure that he has the best possible chance of being licensed. He claims that
the Board and the Commission's decisions are unduly influenced by the information contained in the report,
which may not be accurate.

2
The Commission allowed counsel for Resnick and the Board to submit briefs on whether discovery should
be required but did not hold a formal hearing on the issue.

3
The Board and Commission hearings are on hold, pending the resolution of this dispute.
104 Nev. 60, 63 (1988) Resnick v. Nevada Gaming Commission
under NRS 463.315, a final decision or order. By using the words final decision or order,
the legislature has indicated that dispositions such as disciplinary orders, decisions to suspend
or revoke licenses, and resolutions on the merits of certain controversies may be reviewed by
the courts. The legislature did not intend, by using the words final decision or order, that an
interlocutory Commission determination about the discoverability of certain materials would
be immediately subject to judicial scrutiny.
4

Even if we assumed that the Commission's order was a final order under NRS 463.315,
there is no proof it was made after a hearing or rehearing by the commission pursuant to
NRS 463.312 to 463.3145. Both parties argue at some length about which hearings are
hearings pursuant to NRS 463.312 to 463.3145. Resnick argues that all hearings are
hearings pursuant to NRS 463.312 to 463.3145 and that therefore any decision or final order
from a hearing is subject to judicial review. Respondents argue, however, that NRS 463.312
to 463.3145, as mentioned in NRS 463.315, only covers disciplinary hearings, and that only
final orders from such hearings are subject to judicial review.
The issue of what hearings are covered by NRS 463.315 need not now be decided because
the Commission, prior to issuing its order, did not conduct any hearing whatsoever. When
hearings are conducted by the Commission, certain procedures must be followed. For
example, NRS 463.3133 requires that at least three members of the Commission attend all
hearings, and that proceedings be reported. NRS 463.313 also provides that if a hearing is
held, the parties have certain rights, including the right to be present when the hearing is held.
However, the record clearly indicates that no hearing was held by the Commission prior to
issuing its order.
5
Moreover, Resnick has not shown that the Commission was required to
hold a hearing on the matter. Therefore, it cannot be seriously contended that the
Commission's order was an order made after hearing or rehearing.
Finally, to hold that the district court had jurisdiction under NRS 463.315 to consider and
reverse the Commission order would be contrary to our holding in George v. Nevada Gaming
Comm'n, S6 Nev. 374
____________________

4
We note that under NRS 463.318, Judicial review is not available for actions, decisions and orders of the
commission relating to the denial of a license or to limited or conditional licenses. If the legislature did not
intend the courts to have jurisdiction to review final decisions pertaining to a denial of licensing, it is hard to
believe it intended to allow the courts to review interlocutory orders denying discovery.

5
Resnick, in fact, concedes in his statement of the facts that the Commission's order, signed by Paul Bible . .
. was denied without hearing.
104 Nev. 60, 64 (1988) Resnick v. Nevada Gaming Commission
Comm'n, 86 Nev. 374, 468 P.2d 995 (1970). In George, the Board recommended denying an
applicant a license. Before the Commission hearing, the applicant petitioned the district court
for a writ of mandamus compelling the Commission to order the Board to supply George with
all materials the Board had obtained about George's background. The district court, however,
held that it did not have jurisdiction to issue the writ. We affirmed the lower court's decision,
suggesting that the licensing procedure was normally beyond the scrutiny of the courts.
Although Resnick is not requesting equitable relief as George did, the end Resnick seeks is
the same sought by George. George sought an equitable order compelling the Commission to
order the Board to provide materials; Resnick seeks to compel the Commission to order the
Board to produce certain materials. The legislature, however, did not intend judicial
intervention in such matters. Therefore, the lower court correctly determined that it did not
have jurisdiction, under NRS 463.315, to consider the Commission's ruling.
[Headnote 2]
Resnick also asked the lower court, under NRS 463.343,
6
to interpret NRS 463.313(1) to
allow pre-hearing discovery of investigative reports. However, NRS 463.313(1) does not
permit discovery of the report. It provides:
At all hearings before the commission other than investigative hearings:
. . . .
(b) Every party has the right to:
(1) Call and examine witnesses;
(2) Introduce exhibits relevant to the issues of the case, including the transcript of
testimony at any investigative hearing conducted by or on behalf of the board or the
commission;
(3) Cross-examine opposing witnesses on any matters relevant to the issues of the
case, even though the matter was not covered in a direct examination;
(4) Impeach any witness regardless of which party first called him to testify; and
(5) Offer rebuttal evidence.
Resnick argues that in order to fully exercise these rights, he must have access to the report.
He contends that the procedural safeguards of NRS 463.313(1) are attenuated unless an
applicant has access to the materials that would help him fully exercise these rights.
____________________

6
NRS 463.343 provides: [A]ny applicant . . . which is registered with the commission may obtain a judicial
determination of any question of construction . . . arising under this chapter . . . by bringing an action for a
declaratory judgment.
104 Nev. 60, 65 (1988) Resnick v. Nevada Gaming Commission
has access to the materials that would help him fully exercise these rights. He concludes,
therefore, that NRS 463.313 must be interpreted to allow pre-hearing discovery.
Resnick's argument is flawed in several respects. First, he incorrectly assumes that because
he has the right to cross-examine a witness, he has a right of access to all materials which
would assist him in this cross-examination. This logical leap, in our opinion, simply is not
justified. Second, Resnick assumes that the safeguards provided by the legislature in NRS
463.313 are not adequate. We disagree. Although an applicant does not have the right to
discover the Board's report, he does have other rightsthe right to call witnesses, offer
evidence, cross-examine and impeach witnesses, and provide exhibits. Resnick has not shown
that these protections inadequately protect an applicant's rights. And most importantly, if the
legislature intended an applicant to have access to the Board's report or to otherwise be
entitled to conduct discovery, it could have so specified.
7
Therefore, Resnick's argument that
NRS 463.313 should be interpreted to allow pre-hearing discovery is without merit.
[Headnote 3]
Finally, Resnick argues that under the fourteenth amendment of the U.S. Constitution, and
art. I, 8 of the Nevada Constitution, he is guaranteed the right of due process before being
deprived of property or liberty. He contends that the continuation of employment in the
gaming industry is a property or liberty interest which is protected by the due process clauses
of the federal and state constitutions. He thus maintains that, in order to have due process of
law, he must be allowed discovery of the report prepared by the Board as a predicate to the
Commission's right to take any action that could deprive him licensure.
Resnick's entire constitutional argument is based on a purely conjectural premisethat in
the future, he will be denied a license, and therefore deprived of property or liberty. He is
assuming an outcome which may not occur. At this point, the Board and Commission
hearings are on hold, and we do not know what the Commission decision will eventually be.
Resnick's argument that he will be deprived of property or liberty is therefore purely
conjectural.
In Doe v. Bryan, 102 Nev. 523, 525, 729 P.2d 443, 444 (1986) (quoting Kress v. Corey, 65
Nev. 1, 26, 189 P.2d 352, 364 (1948)), we noted Nevada has a long history of requiring an
actual justiciable controversy as a predicate to judicial relief.
____________________

7
Other state legislatures, for example, have expressly provided for discovery in an administrative proceeding.
See W. Gellhorn, C Byse, P. Strauss, Administrative Law: Cases and Comments 682 (7th ed. 1979). Some
scholars feel, however, that this may cause delay, which the administrative process generally attempts to avoid.
Id. at 682-83.
104 Nev. 60, 66 (1988) Resnick v. Nevada Gaming Commission
actual justiciable controversy as a predicate to judicial relief. Moreover, litigated matters must
present an existing controversy, not merely the prospect of a future problem. . . . The issue
involved in the controversy must be ripe for judicial determination.'
As Tribe notes, In gauging the fitness of the issues in a case for judicial resolution, courts
are centrally concerned with whether the case involves uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur at all.'
8
In order to be ripe,
however, a party need not necessarily show that he has been harmed in the past by a
constitutional violation. If harm is likely to occur in the future because of a deprivation of a
constitutional right, then a ripe case or controversy may exist. But the party must show that it
is probable future harm will occur. See Regional Rail Reorganization Cases, 419 U.S. 102,
143 (1974) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923) (One does not
have to await the consummation of threatened injury to obtain prevention relief. If the injury
is certainly impending that is enough.); cf. Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
In this action, Resnick has not shown that it is probable that he will be denied a license in
the future. In fact, because he was previously granted a license in 1978, one could reasonably
conclude that he will again be approved for a license, unless facts have arisen during the
intervening period that would lead the Commission to a different conclusion.
Once the hearings are completed, and if Resnick is eventually denied a license, then he can
challenge the denial on the basis that he has been deprived of property or liberty without due
process of law. At that point, Resnick may have a factual foundation for an assertion that he
has been deprived of something. At this point, however, his argument is based on a purely
hypothetical premise that we decline to consider. The order of the district court is affirmed.
____________________

8
L. Tribe, American Constitutional Law 78 (2nd ed. 1988) (quoting 13A C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure 3532 (2d. ed. 1984)).
____________
104 Nev. 67, 67 (1988) Smith v. Cladianos
DENA SMITH, Appellant, v. PETE CLADIANOS and ZANTE, INC., a Nevada Corporation,
dba SANDS HOTEL AND CASINO, Respondents.
No. 17945
March 31, 1988 752 P.2d 233
Appeal from summary judgment. Second Judicial District Court, Washoe County; Robin
Anne Wright, Judge.
Employee brought action against former employer for wrongful discharge. The district
court granted summary judgment against employee. Employee appealed. The Supreme Court,
Springer, J., held that: (1) employee handbook contained no provision which would modify
common law employment termination rights flowing from employee's at-will employment
contract, and (2) discharge of employee could not form basis for action for bad faith
discharge.
Affirmed.
Jonathan H. King and Arnold Brock, Jr., Reno, for Appellant.
Laxalt & Nomura, and Mary Phelps Dugan, Reno, for Respondents.
1. Master and Servant.
Generally, at-will employment contract can be terminated whenever and for whatever cause by employer
without liability for wrongful discharge if employment is not for definite term and if there is no contractual
or statutory restrictions on right of discharge.
2. Master and Servant.
Employee handbook contained no provision which would modify common law employment termination
rights flowing from employee's at-will employment contract.
3. Master and Servant.
Discharge of employee for insubordination could not form basis for at-will employee's bad faith
discharge action; employee made no suggestion that discharge was for any untoward purpose or for
retaliation, but rather, claimed that discharge was result of misunderstanding.
OPINION
By the Court, Springer, J.
1
:
Appellant Dena Smith (Smith) was employed by the Sands Hotel-Casino (Sands).
After approximately four and one-half years of employment, respondent Peter Cladianos
{"Cladianos") fired her for paying funds to CJP Air in contravention of direct orders
prohibiting such action.
____________________

1
This appeal was previously dismissed as an unpublished order of this court. Pursuant to a request, we have
determined that our decision should be issued in a public opinion. Accordingly, we hereby issue this opinion in
place of our order dismissing this appeal filed January 21, 1988.
104 Nev. 67, 68 (1988) Smith v. Cladianos
years of employment, respondent Peter Cladianos (Cladianos) fired her for paying funds to
C/P Air in contravention of direct orders prohibiting such action. Asserting that the
prohibitory order was issued after such payout, Smith claims that she was wrongfully
terminated. Finding, in essence, that Smith was an at-will employee, the district court
granted summary judgment against Smith.
Initially, Smith contends that an implied contract for employment existed in view of the
parties' conduct, the Sands' personnel policies, the length of Smith's employment and reliance
by Smith on the employee handbook. In support, Smith relies on Aluevich v. Harrah's, 99
Nev. 215, 660 P.2d 986 (1983). Smith's reliance, however, is misplaced because Aluevich
concerned a lease contractnot an employment contract.
It is clear from a review of the record that Smith was an at-will employee.
2
In her
deposition, Smith admitted that no written contract of employment existed. She said that she
was employed full-time with no specific termination date. Moreover, she admitted that she
was not a permanent employee. If desired, Smith could leave her employ with the Sands at
any time.
[Headnote 1]
Generally, an at-will employment contract can be terminated whenever and for whatever
cause by an employer without liability for wrongful discharge if the employment is not for a
definite term and if there is no contractual or statutory restrictions on the right of discharge.
Smith insists that a provision found in the employee handbook contractually restricts
Cladianos' ability to discharge her without first hearing Smith's explanation.
3

[Headnote 2]
Smith contends that the handbook is part of the original oral employment contract. See
Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983). Even if we were to
consider the provisions of the employee handbook as part of Smith's employment contract
with the Sands, no provision in the handbook modifies the Sands' common law right to
discharge Smith at its whim.
____________________

2
An at-will employee can properly be discharged without cause at the will of the employer. See K Mart v.
Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).

3
The employment handbook provision underlying Smith's position provides:
PROBATIONARY PERIODAll employees are hired on a 90-day probationary period. This
probationary period benefits both you, the employee, and the Sands. It will allow you to evaluate the
Sands and for your supervisor to evaluate your performance in the job you have been assigned. However,
at any time during this probationary period your supervisor feels that you will not be able to meet the
qualifications and standards necessary for the job you have to perform, he may terminate your services
without prior notice.
104 Nev. 67, 69 (1988) Smith v. Cladianos
modifies the Sands' common law right to discharge Smith at its whim.
The handbook provision upon which Smith relies so heavily concerns the initial 90-day
probationary period of employment. Because Smith had long since completed her
probationary employment period, such provision has no relationship to the manner of Smith's
termination. Furthermore, a review of the employee handbook reveals no provision which
would modify the common law employment termination rights flowing from her at-will
employment contract. Consequently, it was not error for the district court to find the absence
of any procedure either spelled out or guaranteed in the handbook which would restrict the
Sands' at-will employment termination rights.
[Headnote 3]
In the alternative, Smith contends that it was error for the district court to grant summary
judgment against her because there exist genuine issues of material fact with regard to her tort
claim of bad faith discharge. We disagree.
In K Mart v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987), this court recognized the tort of
bad faith discharge where the employer breached the implied covenant of good faith and fair
dealing. K Mart, 103 Nev. at 47, 732 P.2d at 1370. The underlying rationale for extending tort
liability in that case was founded upon the premise that ordinary contract damages did not call
K Mart to account adequately for its grievous and perfidious conduct. K Mart, 103 Nev. at 49,
732 P.2d at 1371. To serve its own financial ends, K Mart, [a]fter involving itself in a
relationship of trust and special reliance between itself and its employee and allowing the
employee to rely and depend on continued employment and retirement benefits . . .
wrongfully and in bad faith, breached the employment agreement. K Mart, 103 Nev. at
51-52, 732 P.2d at 1372. We severely restricted the tort remedy afforded in K Mart, however,
to those rare and exceptional instances where the employer's conduct goes well beyond the
bounds of ordinary breach of contract liability. K Mart, 103 Nev. at 48, 732 P.2d at 1370.
In the case at bar, Smith was nothing more than an at-will employee. As such, she was
subject to employment termination at any time, so long as the purpose for termination did not
offend the public policy of the State of Nevada. Unlike the employee in K Mart, Smith was
fired for insubordination. Smith makes no suggestions that such discharge was for any
untoward purpose or for retaliation.
4
Rather, Smith contends that her dismissal was a result
of a misunderstanding.
____________________

4
Furthermore, except in narrowly circumscribed circumstancese.g., where an employer has fired an
employee in apparent bad faith, for its own financial advantage, in order to deprive the employee of his promised
104 Nev. 67, 70 (1988) Smith v. Cladianos
result of a misunderstanding. Viewing the incident in that light, we see no bad faith on the
part of the Sands. Consequently, a claim for bad faith discharge does not lie, and thus there
exists no genuine issue of material fact with respect to such claim.
Based on a review of the record, as well as for the reasons set forth above, we find no error
by the district court in ordering summary judgment against Smith. Accordingly, we affirm the
judgment of the district court.
5

Gunderson, C. J., Steffen and Young, JJ., concur.
____________________
expectation of employment benefits; or where the employer has fired an employee to retaliate against him for
invoking his legislatively established right to SIIS benefitsthis court has never held that an employee can
defeat the at will character of an employment contract through the invocation of an allegation of retaliation.

5
The Honorable John Mowbray, Justice, voluntarily disqualified himself from consideration of this case.
____________
104 Nev. 70, 70 (1988) Sheriff v. Hawkins
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v.
DAVID KENNEY HAWKINS, Respondent.
No. 17628
March 31, 1988 752 P.2d 769
Appeal from order granting a pretrial petition for a writ of habeas corpus; Second Judicial
District Court, Washoe County, Robert L. Schouweiler, Judge.
Accused, who was arrested in decoy operation when he took money from apparently drunk
man lying in doorway, filed pretrial petition for writ of habeas corpus. The district court
granted petition, and state appealed. The Supreme Court, Gunderson, C.J., held that decoy
operation created extraordinary temptation which resulted in entrapment of defendant.
Affirmed.
Steffen and Mowbray, JJ., dissented.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy G.
Randolph, Deputy, Reno, for Appellant.
David Parraguirre, Public Defender, John Petty, Deputy, Reno, for Respondent.
104 Nev. 70, 71 (1988) Sheriff v. Hawkins
1. Criminal Law.
Decoy operation, which placed apparently intoxicated man in doorway with $126 dangling from back
pocket and which had backup officer who communicated to decoy to whom he should expose money based
on criminal profile developed by police, created extraordinary temptation which resulted in entrapment of
accused; accused's conduct at time of incident showed he was not disposed to criminal activity, accused did
no more than slip exposed money from decoy's pocket and walk away, accused did not engage in any act of
violence or any attempt to find other valuables on decoy's person, decoy operation planted idea of crime
into mind of accused, and decoy operation did not address any actual crime problem.
2. Criminal Law.
Fact that accused had prior arrest record did not make decoy operation, in which accused took money
from apparently intoxicated man lying in doorway, permissible.
3. Witnesses.
Arrests and convictions for misdemeanors may not ordinarily be admitted even for limited purpose of
attacking witnesses' credibility. NRS 50.095.
4. Witnesses.
Felony convictions may be admitted to attack credibility, but court may properly exercise discretion to
exclude such evidence. NRS 48.035, subds. 1, 2, 50.095.
5. Criminal Law.
Evidence of character traits is not admissible except in specifically defined circumstances, and neither
fact that accused has claimed innocence nor fact that in so doing he has asserted entrapment defense would
justify admission. NRS 48.045.
6. Criminal Law.
In order to be lawful, decoy operation must focus upon some real, substantial, and subsisting problem of
antisocial behavior, and decoy operation must be structured so as to identify actual social predators who
are engaging in such behavior.
OPINION
By the Court, Gunderson, C. J.:
On May 27, 1986, a twenty-six-year-old black male, David Kenney Hawkins, had the
night off from his job at a downtown casino in Reno. Hawkins, it appears, had been steadily
and successfully employed at the casino for some time. On the evening in question, he went
out to enjoy his leisure time with a white male friend and, as they walked by the corner of
First and Center Streets, the two young men saw a well-dressed man lying in a doorway
alcove, apparently intoxicated. Several bills protruded temptingly from a brown envelope that
was dangling from the apparent drunk's back pocket. However, Hawkins and his friend
continued on their way to the Brass Moose Saloon, which was nearby.
104 Nev. 70, 72 (1988) Sheriff v. Hawkins
About one-half hour later, they left the drinking establishment. As they re-traced their
steps, the ostensible drunk still lay in the alcove, apparently unconscious. Upon
approaching him, Hawkins' friend jumped up and down, and made loud noises, apparently to
see if the drunk was unconscious. Then, when the purported drunk remained
unresponsive, Hawkins reached down and slipped the bills out of the prone man's pocket. Six
police officers thereupon immediately emerged from hiding and arrested Hawkins, but
promptly released his white friend. The man in the alcove had been a police decoy.
Hawkins had succumbed to bait planted as part of a decoy operation.
1

We are advised by the prosecutor that the Reno police department had contrived the
decoy operation under the tutelage of a young deputy prosecutor, in order to test how
they might avoid, limit, or minimize this court's decisions in Oliver v. State, 101 Nev. 308,
703 P.2d 869 (1985), and in Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985). In the
course of setting up this test case, other persons were arrested, but only Hawkins was
prosecuted. In the ensuing judicial proceedings that form the basis for this appeal, the district
court granted Hawkins' petition for a writ of habeas corpus, concluding that this decoy
operation could not be distinguished from the ones condemned in Oliver and Moreland and
was therefore controlled by our decisions in those cases. We agree.
[Headnote 1]
In our view, the decoy operation used to ensnare Hawkins is indistinguishable from those
employed in Oliver and Moreland, supraat least in any ways that justify any result more
favorable to the prosecution. In each operation, a decoy officer posed as a drunk with
money protruding from one of his pockets, appearing to be completely helpless, vulnerable
and nonresponsive. In each case, it appeared from the duped defendant's conduct that, at the
time of the incident, he was not disposed to criminal activity. In each case, when the
defendant ultimately succumbed to temptation, he did no more than slip the exposed money
from the decoy's pocket and walk away. As in Oliver and Moreland, Hawkins and his friend
neither engaged in acts of violence, nor in attempts to find other valuables on the decoy's
person, when they finally succumbed to the artificially created temptation. As in Oliver and
Moreland, it thus appears that the decoy operation planted the idea of crime in the minds of
Hawkins and his friend. The police did not uncover crime; they created it.
____________________

1
In this opinion we shall from time to time refer to the brandished money as bait, just as the record reveals
the police and district attorney's office consistently alluded to it.
104 Nev. 70, 73 (1988) Sheriff v. Hawkins
A close reading of the grand jury transcript reveals why the money was exposed in this
decoy operation. Members of the Grand Jury repeatedly asked the prosecutor why the money
was made visible. In the words of one grand juror, you can get almost anybody to pick a
hundred dollar bill off of you if you are laying there passed out. The prosecutor admitted to
the grand jurors, This is designed to get the hit.
2
In other words, as in Oliver and
Moreland, the money was exposed for the express purpose of entrapping someone who might
not otherwise be disposed to commit crime. In fact, the bait had been increased from the
meager $10.00 tendered to the sucker entrapped in Oliver, up to $126.00. This hardly is a
factual distinction which favors the prosecution herein.
As the cases we relied on in Oliver and Moreland point out, the format of this particular
kind of decoy operation is especially troubling because it does not address any actual crime
problem. In fact, before formulating this decoy operation, the police department admittedly
made a survey of crimes committed in the Reno area in April and May of 1986. They counted
54 grand larcenies, 30 robberies, and 9 larcenies from the person which did not amount to
robbery. Not one of the offenses thus reviewed involved an ostensibly helpless drunk with
money hanging out of his pocket. Indeed, the prosecutor admitted to us during oral argument
that he does not know of a single complaint ever made by a theft victim who was lying in the
street with money bulging from his pockets.
3

Unfortunately, even after taking their survey the police failed to focus their decoy
operations in a way substantially more relevant to social realities than were the artificial
temptations we condemned in Oliver and Moreland. Indeed, as noted earlier, the value of the
bait was increased to $126.00, supposedly to make any theft a grand larceny, but with the
result that the artificially created temptation was increased. It appears to us that this change
enhanced and did not reduce the extraordinary temptation condemned in Oliver and
Moreland.
Thus, in this case, we continue to agree with the decisions of the Florida courts to which
we have previously referred with approval, and which conclude that such decoy operations
constitute impermissible entrapments:
____________________

2
Another grand juror stated to the prosecutor that he could not understand, in light of our Oliver decision,
which the prosecutor had mentioned, why the decoy team had been counseled to leave the bait money
exposed. Instead of answering the salient question with any coherent explanation, the prosecutor offered to give
the grand juror a copy of Oliver to read.

3
Interestingly, too, the public defender representing Hawkins asserted during oral argument, and the
prosecutor did not attempt to deny, that the police have only conducted this type of operation in the summer
months, while the sidewalks are warm.
104 Nev. 70, 74 (1988) Sheriff v. Hawkins
approval, and which conclude that such decoy operations constitute impermissible
entrapments:
[T]he decoy did not detect or discover, nor could he reasonably be intended to discover,
the type of crime the police were attempting to prevent by the use of the decoy, i.e.,
robberies and purse snatchings. Indeed, lifting some money protruding from the pocket
of a seemingly unconscious, drunken bum is just not sufficiently similar to either robbery
or purse snatchings. Upon these facts, the decoy simply provided the opportunity to
commit a crime to anyone who succumbed to the lure of the bait.
State v. Holliday, 431 So.2d 309, 310-11 (Fla.App. 1983), citing State v. Casper, 417 So.2d
263, 265 (Fla.App. 1982); cited in Oliver, supra, 101 Nev. at 310, 703 P.2d at 870.
The prosecutor has also mentioned a difference between this case and Oliver which he
evidently believes offers the possibility of a distinction favoring the prosecution, but which in
our opinion does not. In this case, we are told, one officer watched over the decoy, and
communicated with him by radio. This back-up officer decided to whom the decoy would
expose the bait, and signaled the decoy to hide it from passersby whom the back-up officer
did not wish to tempt. In particular, the prosecutor admitted to us that the officers were
seeking to ensnare persons who fit a criminal profile developed by the policei.e., males
between 18 and 30, who are black, white, or hispanicand also any other persons who, for
any other reason, impressed the back-up officer as being criminal types. According to the
prosecutor, then, Hawkins was therefore exposed to the bait and thereafter arrested and
prosecuted because he was encompassed by the criminal profile the police had formulated:
he was black, male, and 26 years old. Interestingly, however, Hawkins' friend, a young white
male, was not arrested, although he could certainly have been held as an accomplice. In any
case, we feel the efforts of the Reno police in the area of social science research hardly
provide a valid basis for distinguishing Oliver and Moreland.
4

By structuring their decoy operation in the way they didcontrary to our previous rulings,
and the cases therein cited, see e.g.,
____________________

4
There is nothing new, of course, about the discovery of the Reno police that young adults constitute the
age-group most prone to the commission of street crime. Data compiled and analyzed long ago by academically
credible social scientists establish that this nation's young adults are more prone to engage in street crime than
are the middle aged and senior citizens. Nonetheless, we do not believe a legitimate inference follows that young
adults should therefore be subjected to artificial temptations, in order to arrest them and, perhaps, incarcerate
them until they are older.
104 Nev. 70, 75 (1988) Sheriff v. Hawkins
e.g., Cruz v. State, 465 So.2d 516, 522 (Fla. 1985)the police again failed to cast their nets
in permissible waters. The use of exposed money and a supposedly helpless, vulnerable
decoy created an extraordinary temptation which resulted in the entrapment of young men
who were not at the time discernibly bent on committing a crime. See Oliver, supra, 101 Nev.
at 309; Froggatt v. State, 86 Nev. 267, 271, 467 P.2d 1011, 1013 (1970). As noted, Hawkins
and his friend did not approach the decoy the first time they saw him. Nearly an hour later,
when they saw the decoy again, they merely succumbed to the lure of the bait. Even then,
these young men did not molest the decoy in any other way. Thus, there is nothing to suggest
they would have stopped at all, if the money had not been openly exposed.
[Headnote 2]
Finally, although we need not ground our opinion on the fact, we wish to note that while
the police arrested a number of others, only Hawkins was prosecuted. The prosecutor
indicated he thought Hawkins would make the best test case because Hawkins had a prior
arrest record. Prior arrests, of course, cannot generally be used to prove bad character. NRS
48.045(2); Yates v. State, 95 Nev. 446, 596 P.2d 239 (1979). Nonetheless, with no citation to
any contrary legal authority, the prosecutor has suggested vaguely that Oliver is
distinguishable from this case because Hawkins had an arrest record. This being so, he seems
to say, if we will allow him to proceed to trialand if Hawkins thereafter tries to assert that
he was not criminally disposed on the night in question, but simply succumbed to the
extraordinary temptation presented by the policethen in this case the trial judge might allow
him to impeach Hawkins through the introduction of Hawkins' previous arrest record.
[Headnotes 3-5]
Now, of course, a purely technical refutation of the prosecutor's legally unsupported
notions is that, even for rebuttal at trial, evidence of character traits would not be admissible
under the Evidence Code except in specifically defined circumstances. Neither the fact that a
defendant has claimed innocence, nor the fact that in so doing he has asserted entrapment,
appear among those enumerated exceptions. See NRS 48.045. Furthermore, we note that by
specific provision of the Code, mere arrests and convictions for misdemeanors may not
ordinarily be admitted even for the limited purpose of attacking a witness's credibility. See
NRS 50.095.
5
Also, it should be mentioned in passing that this court refrained from
structuring any judicially created exception to these provisions of the Evidence Code,
when we decided the Oliver casein which the defendant likewise had a record of prior
arrests, as well as convictions.
____________________

5
Conviction of a felony may be admitted to attack credibility, id., but even as to felony convictions, a trial
court may properly exercise discretion to exclude such evidence. See NRS 48.035(1),(2); emphasis added.
104 Nev. 70, 76 (1988) Sheriff v. Hawkins
refrained from structuring any judicially created exception to these provisions of the Evidence
Code, when we decided the Oliver casein which the defendant likewise had a record of
prior arrests, as well as convictions.
Before leaving the subject of the Evidence Code, we note the prosecutor has omitted from
the record on appeal Hawkins' arrest record or rap-sheet, to which the prosecutor referred
before the Grand Jury in apparent contravention of NRS 48.045(2)for the explicitly stated
purpose of proving to the jurors that Hawkins was an ordinary crook.
6
However, the
prosecutor's vague references in the transcript to Hawkins' prior brushes with the law indicate
that six years ago, in 1981when Hawkins was 20 years oldhe was arrested on an
unspecified felony charge which the Reno police were later constrained to dismiss. Reno
police had also arrested Hawkins in 1980, and Sparks police arrested him in 1979, but these
unspecified charges likewise were dismissed. The prosecutor also told the Grand Jury that
Hawkins had several previous brushes with the law in California, none of which are identified
as having resulted in convictions. Now, on appeal, the prosecutor has not contended that the
circumstances of any of the arrests bear such similarity to the facts of this case as would
justify or compel their admission at trial, to evidence either motive or common plan. See, e.g.,
Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979), and cases cited therein. Thus, tested by the
foregoing principles articulated in the Evidence Code, the prosecutor's references to Hawkins'
arrests can hardly be deemed such evidence as would establish that the district court erred by
applying Oliver and Moreland. In any event, the prosecutor has not tendered any principled
distinction in this regard.
Finally, placing aside considerations based on the Evidence Code, we think it would be
highly questionable policy to single out for prosecution young people who, like Hawkins,
succumb to extraordinary temptationsolely because they previously have been arrested. As
Justice Felix Frankfurter once noted:
Permissible police activity does not vary according to the particular defendant concerned;
surely if two suspects have been solicited at the same time in the same manner, one
should not go to jail simply because he has been convicted before and is said to have a
criminal disposition. . . . A contrary view runs afoul of fundamental principles of equality
under law, and would espouse the notion that when dealing with the criminal classes
anything goes.
____________________

6
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.; emphasis added.
104 Nev. 70, 77 (1988) Sheriff v. Hawkins
dealing with the criminal classes anything goes. The possibility that no matter what his
past crimes and general disposition the defendant might not have committed the
particular crime unless confronted with inordinate inducements, must not be ignored.
Past crimes do not forever outlaw the criminal and open him to police practices, aimed at
securing his repeated conviction, from which the ordinary citizen is protected. The whole
ameliorative hopes of modern penology and prison administration strongly counsel
against such a view.
Sherman v. United States, 356 U.S. 369, 383 (1958) (Frankfurter, J., concurring in result). Of
course, if Justice Frankfurter was correct as to persons who previously have been convicted of
crime, we think that, a fortiori, he was correct as to persons who merely have previously been
arrested.
Thus, so far as we can perceive, the prosecutor in this case has tendered no basis for a
principled distinction between the facts of this case and the facts involved in our previous
holdings, Oliver and Moreland. So far as we can see, there was neither social utility,
7
nor
legal legitimacy, in tempting Hawkins into crime, and in returning him to the criminal justice
system on the basis of purely creative police activity. Sorrells v. United States, 287 U.S. 435,
451 (1932).
[Headnote 6]
In conclusion, we wish to make it clear that we do not deem all decoy operations to be
unlawful per se. If it is not to be illegitimate, however, we believe that a decoy operation
must focus upon some real, substantial, and subsisting problem of antisocial behavior, and
that it must be structured so as to identify actual social predators who are engaging in such
behavior, rather than merely being structured to ensnare weak and gullible persons in the
hope of frightening the predators. If a decoy operation is not so structured, we will not deem
it to be justified by a contention that the operation may have successfully lured young
potential criminals of tomorrow into actual criminal conduct today.
____________________

7
In regard to the matter of social utility, it perhaps may be well to recall again that, at the time of the arrest in
question here, Hawkins was a working, contributing member of society. If the judicial system were to
countenance such entrapments, working young people baited into crime in the manner of Hawkins could thus
be transformed into prison inmates, each costing the State of Nevada many thousands of dollars yearly.
Moreover, other incalculable social damage could be done by subjecting underclass young men such as
Hawkinswho like Hawkins may be making at least some effort to work and lead productive livesto unfair
temptations, gamesmanship, and arbitrary choices made in decoy operations of the kind concerned in the instant
case. Query: Can prosecutions initiated in the manner of the instant one really be expected to enhance their
victim's respect for the law, and to inculcate better social values? Or is the converse true?
104 Nev. 70, 78 (1988) Sheriff v. Hawkins
criminals of tomorrow into actual criminal conduct today. Even in dealing with the young, the
police must detect crime; they may not manufacture it.
In light of the foregoing, we have determined that the district court correctly concluded
that our prior decisions in Oliver and Moreland were controlling in the circumstances of this
case. We therefore affirm the district court.
Addendum Re Dissent
We certainly agree with our respected brother Steffen's admission that he threads a very
fine needle in contrasting his dissent today with his concurring vote in Oliver and Moreland.
We also agree with our brother's candid acknowledgment that it is fair to say the essential
differences between Oliver and Moreland and the instant case relate only to Hawkins' attire
and the placement of the currency openly tendered as bait. We further agree that, in a judicial
system committed to the principle of stare decisis, [i]t is admittedly troubling to attempt to
distinguish the instant case from the other two on such gossamer grounds.
We disagree, however, with our brother Steffen's newly adopted perception that this Court
should not substitute its wisdom for the policy choices of a young prosecutor and a few
youthful officers, who have tried to formulate and justify an attempt to evade our prior
rulings. The policy choice of whether the resources of the Nevada courts and related services
should be expended on manufactured crimeto punish vulnerable persons who have been
duped, in the hope of frightening others who truly are social predatorsdoes not in our
opinion become vested in an attorney simply because he has landed a job as a district
attorney's deputy. Nor does it become vested in police officers merely because they have
survived the rigors of the local police academy. In our view, as laudable as they may be, such
accomplishments do not establish prosecutors and police as the living embodiment of a
separate, coordinate branch of government which possesses a vested power to define
acceptable methodology for dealing with crime that is superior to this Court's authority to
decide whether the already overtaxed resources of the Nevada court system should be
expended to fight manufactured crime. In disputed cases, the executive branch does not
define what constitutes real crime; the judiciary performs this function.
We level no personal condemnation at the fine young people who conducted the decoy
program now under examination. For healthy, energetic people in the prime of lifeduring
balmy summer months when the sidewalks are warmperhaps few pastimes could seem
more enticing than to go fishing for suckers, like Hawkins, as decoy officers commonly
speak of the dupes who succumb to their artificial bait.
104 Nev. 70, 79 (1988) Sheriff v. Hawkins
dupes who succumb to their artificial bait. And, we fully understand that few such tyros will
pause to weigh the social costs of entrapping young underclass males into manufactured
crime, to-wit:
(1) the loss to the entrapped person's employer of a trained, apparently acceptable
employee, as was the case here;
(2) the loss to society in general of the entrapped person's productivity;
(3) the cost to society for the services of publicly paid prosecution and defense counsel,
and support personnel;
(4) the expenditure of the court system's time, in the justice's court, the district court,
the supreme court, and in several stages of post-conviction proceedings in the state and
federal courts;
(5) the overhead cost of imprisoning a person who previously was self-supporting, at an
annual expenditure in the neighborhood of $14,000 per year;
(6) the lost use of a prison cell with a replacement value of perhaps $60,000 (generating
what economists call an opportunity cost of an additional number of thousands of
dollars per year), which might otherwise be used to incarcerate a real criminal;
(7) the cost to any family and dependents of the entrapped person, who lose their
breadwinner because of a vagrant fortune that he was abroad on a warm night when
young officers were out fishing for young blacks and other criminal types; and
(8) finally, the cost to society of maintaining a larger-than-necessary parole and
probation system in order to supervise entrapped persons after their release, even though
no supervision would foreseeably have been necessary if the entrapped persons had been
left in peace to begin with.
We venture to say nothing about the prospect that, if such officers were not out fishing for
crime-prone young blacks and other underclass males, they could utilize their energies
discerning real crime elsewheresurely with less certitude of success, but with much greater
social utility. Nor will we attempt to quantify the probable social cost of making criminals
and convicts out of productive persons, who may upon release never return to the ranks of the
gainfully employed.
In short, then, we do not agree with our respected brother Steffen that this Court should
leave the above-mentioned concerns to be assessed solely by the executive branchas
represented by the youthful prosecutor and officers who shaped the decoy operation with
which we are concerned in the instant case.
104 Nev. 70, 80 (1988) Sheriff v. Hawkins
At least three more observations concerning other aspects of our brother's dissent should
be made, to-wit:
(1) Our brother Steffen suggests that, commonly, entrapment is determined as a matter of
law only where there has been an active as opposed to passive tender of a criminal
opportunity. As we see it, the doctrine of decisions in decoy cases from Florida and other
jurisdictions, which we adopted in Oliver and Moreland, are not at odds with this view.
Rather, they simply recognize that in situations like the instant one, in which police officers
set out to tempt vulnerable people by blandishing valuables in circumstances communicating
a message that the property may be taken without risk, there is indeed an active and
unacceptable solicitation on the part of the police.
(2) Our brother Steffen also says that he simply is unwilling to assume, on the basis of the
record, that the officers were pursuing Hawkins because of his color. Of course, this
majority opinion is not premised upon any finding of racial bias. Still, as we recall, in
previous Nevada cases involving similar entrapment through decoys, the ensnared persons
were black. Indeed, in the instant case, Hawkins a black man, was arrested and prosecuted
although the police immediately released his white companionwho arguably was equally
implicated.
Although our brother indicates he does not subscribe to what he calls racial overtones of
our mentioning such phenomena, we continue to think that minority members of society may
find several aspects of the record before us to be quite disconcerting. For example, minorities
may strongly suspect, and quite possibly resent, that this kind of decoy operation proceeds
according to a self-fulfilling prophecy that young blacks and other underclass males in the
police profile, such as hispanics, are criminal types. As one of the police officers told the
Grand Jury when explaining why the decoy team exposed the bait to Hawkins, while hiding it
from three other persons they feared might take it: He fits the age, sex and race.
8

Thus, here, still another serious societal cost could result from sanctioning manufactured
criminal prosecutions against blacks and any others whom young police officers viscerally
sense to be within the profile of criminal types that they have targeted to be purged from
free society.
____________________

8
It explicitly appears in the Grand Jury Transcript that, before exposing the bait to Hawkins, the officers
withheld it from the view of at least three persons whom they did not wish to entrap, because they were waiting
for someone they felt was a criminal type. As one officer explicitly told the Grand Jury: [T]here were
probably three people that we didn't want to take the money that didn't look like they were criminal types or the
type that would ordinarily get into something like that without some obvious temptation. In other words, with
calculation, the police waited and then presented the obvious temptation to Hawkins.
104 Nev. 70, 81 (1988) Sheriff v. Hawkins
(3) Finally, our brother has attempted to distinguish this court's decision in Oliver and
Moreland in ways which, we respectfully believe, cannot legitimately be recognized in a
jurisprudential system contemplating only distinctions that are meaningful and
comprehensible. In setting precedents to be applied by the trial courts, we believe the law
must be kept stable and intelligible. We are unwilling, therefore, to join our brother in
propounding a distinction declaring thatwhile the entrapment defense protected Oliver, a
black who took ten dollars from an apparently impoverished black decoy in Las Vegasthe
defense is now unavailable to Hawkins, a black who took $126.00 from a well-dressed,
apparently affluent white decoy in Reno. Nor can we perceive any possibility of saying (as
our brother Steffen also suggests) that the instant case is distinguishable from Oliver because
the black entrapped in Oliver had perhaps rationalized his act by thinking he was protecting
the decoy against further harm from liquor. Neither our decision, nor the record in Oliver,
provides any basis whatever for making such a statement. Finally, we can see no basis for
suggesting, as does our brother, that the prosecutor's claims about the supposed fears of Reno
citizens, totally dehors the record, provide any basis for a meaningful distinction.
9

Young and Springer, JJ., concur.
Steffen, J., with whom Mowbray, J., agrees, dissenting.
With a degree of reluctance which I shall hereafter explain, I respectfully dissent.
To me, the real issue of this appeal concerns the proper role of the judiciary in dictating to
a separate, coordinate branch of government acceptable methodology for dealing with crime.
However, I would observe at the outset that my concern here does not implicate such
court-generated constraints as Mapp v. Ohio, 367 U.S. 643 {1961) and Miranda v. Arizona,
3S4 U.S. 436 {1966), that relate to law enforcement activities that have been held to
impinge individual rights under the United States Constitution.
____________________

9
As one justification for concluding that this Court should permit police officers, if it pleases them, to entrap
young citizens in the manner now being considered, our brother has mentioned that we were informed by the
state during oral argument that criminal activity in downtown Reno has reached such a high level that many local
citizens avoid the area. The young prosecutor did indeed make such a statement, for which we have discerned
no support at all in the record. We can locate no data showing that Reno citizens avoid the vicinity of First and
Center Streets because they fear crime of any kindand certainly no support for any suggestion that citizens fear
their pockets will be raided if they lie down in a doorway alcove to sleep off a hang-over. In the past, members
of this Court ordinarily have not accepted as evidence assertions made by counsel about matters outside the
record, and it seems particularly inappropriate to do so about matters which could only be resolved by survey
research that has not been performed, so far as anyone can tell from the record. Generally, it has been the
practice, rather, to chastise counsel who seek to bias proceedings before us through justification which the
record does not support.
104 Nev. 70, 82 (1988) Sheriff v. Hawkins
367 U.S. 643 (1961) and Miranda v. Arizona, 384 U.S. 436 (1966), that relate to law
enforcement activities that have been held to impinge individual rights under the United
States Constitution. No such rights are at stake here. The milieu presented by this case
involved a simple larceny from the person and the availability of entrapment as a defense to
conviction. The judiciary has accorded to defendants such as Hawkins the opportunity to
avoid strict legal accountability, thus nullifying improvident or improper prosecutions
directed at persons who, without predisposition, have succumbed to extraordinary
temptations or inducements employed by the state. Oliver v. State, 101 Nev. 308, 309, 703
P.2d 869, 870 (1985) (citing Froggatt v. State, 86 Nev. 267, 467 P.2d 1011 (1970)).
As a rule, entrapment is an issue to be decided by the trier of fact as part of its function to
determine the innocence or guilt of an accused. Sherman v. United States, 356 U.S. 369, 377
(1958). There are, of course, exceptions when the issue may be decided as an issue of law. Id.
In Sherman, the Court determined that entrapment had been shown as a matter of law because
of repeated entreaties to entice a formerly active addict back into involvement with drugs.
The picture thus presented portrayed a former addict who was trying to overcome the
degradations and deprivations of drug use and who, at last, succumbed to the majestic efforts
of the government to promote his return to drug involvement. I have little trouble invoking
entrapment as a matter of law under those circumstances. However, as Justice Frankfurter
noted in his concurrence in Sherman:
This does not mean that the police may not act so as to detect those engaged in criminal
conduct and ready and willing to commit further crimes should the occasion arise. Such
indeed is their obligation. It does mean that in holding out inducements they should act in
such a manner as is likely to induce to the commission of the crime only these persons
and not others who would normally avoid crime and through self-struggle resist ordinary
temptations.
356 U.S. at 383-84.
In the decoy case of Reyes v. Municipal Court, 173 Cal.Rptr. 48, 51 (Ct.App. 1981), the
court said:
[R]uses, stings and decoys are permissible stratagems in the enforcement of criminal law,
and they become invalid only when badgering or importuning takes place to an extent
and degree that is likely to induce an otherwise law-abiding person to commit a crime. . .
. Official conduct that does no more than offer that opportunity to the suspectfor
example, a decoy programis therefore permissible; but it is impermissible for the
police or their agents to pressure the suspect by overbearing conduct such as
badgering, cajoling, importuning, or other affirmative acts likely to induce a normally
law-abiding person to commit the crime.
104 Nev. 70, 83 (1988) Sheriff v. Hawkins
impermissible for the police or their agents to pressure the suspect by overbearing
conduct such as badgering, cajoling, importuning, or other affirmative acts likely to
induce a normally law-abiding person to commit the crime.
In the instant case, the decoy operation was entirely passive in nature insofar as unsuspecting
participants were concerned.
1
I therefore have great difficulty placing this case in the
category of entrapment as a matter of law.
Admittedly, I thread a fine needle in contrasting today's dissent with my approval in Oliver
and Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985). In Oliver, we were unwilling to
permit the state to tempt passersby with an apparently drunken, unconscious derelict who
exhibited a ten-dollar bill hanging from his tattered pocket. The enticement thus presented
was that of an alcoholic who, upon awakening, would likely stagger to the nearest purveyor
of liquor to exchange the bill for a liquid pacifier. Even those with borderline commitments to
honest behavior could rationalize their act of larceny as one of benefit to the health of the
derelict. Moreover, the ten-dollar bill could be viewed as more of a symbol for amelioration
of the desperate than enticement to the criminal. In any event, the spectacle of the decoy
operation in Oliver seemed to have the distinct flavor of an affront to human dignity and a
rational society, factors that persuaded me to decide the issue as a matter of law. Admittedly,
those factors waft more of an odor of arrogated judicial wisdom than that of an appropriate
jurisdictional basis for dictating law enforcement policy. I suppose it could be argued that an
analogue to Oliver would be a decision by the court directing the geographic placement of
police officers in efforts to prevent and detect crime. This court simply should not substitute
its wisdom for that of the governmental agency entrusted with the rights and responsibilities
of law enforcement. Reverting, nevertheless, to the usual methodology of jurisprudes who
frequently distinguish the non-distinguishable, the instant case does present, in contrast to
Oliver, a well-dressed decoy who was ostensibly unconscious. Those who passed the fallen
man could only speculate as to the cause of his plight. The currency observably protruding
from an envelope in his rear pocket was not hanging as an invitation to removal by minuscule
manipulation. Nor was it an indivisible source of relief to the desperate.
____________________

1
Although I share the concerns of the majority in the wisdom of the type of unfocused net employed in
apprehending Hawkins, I do not subscribe to the racial overtones in the majority opinion. If, in fact, race was a
motivator in the prosecution of Hawkins, the effort is deserving of condemnation; I am simply unwilling to
assume, on the basis of this record, that the officers were pursuing Hawkins because of skin color.
104 Nev. 70, 84 (1988) Sheriff v. Hawkins
source of relief to the desperate. It was, however, a passively tempting morsel to a thief.
The Moreland case fell prey to Oliver and was essentially of the same character. The
decoy masqueraded as a derelict who was intoxicated or asleep. Protruding from his pocket
were three one-dollar bills and a simulated $100 dollar bill. What I have said about Oliver
may generally be said about Moreland with the exception of the large simulated bill and,
depending upon the quality of the bill, its potential effect on those attracted to the bait. Still,
the spectacle was that of a drunken vagrant whose use of the carelessly exposed currency was
predictable.
It could be fairly stated that the essential differences between Oliver and Moreland and the
instant case relate only to the attire and the denominations and placement of the currency. It is
admittedly troubling to attempt to distinguish the instant case from the other two on such
gossamer grounds. And perhaps what I am honestly doing is re-thinking the course we have
taken through Oliver and Moreland.
2
However, from the prospect of a judge living in a
society with limited assets and a healthy regard for individual freedom, the Oliver
scenario seemed inherently offensive to both.
____________________

2
It is difficult to place our Oliver and Moreland decisions in either of the two recognized species of judicial
responses to crime generated in part by law enforcement officers. The majority of courts have adopted the
so-called subjective theory of entrapment that focuses on the issue of a defendant's predisposition to commit
the crime. Although Oliver and Moreland have muddied Nevada's law on the subject, clearly prior to those
decisions, Nevada stood among the majority of jurisdictions in its approach to entrapment. Thus, in Hill v. State,
95 Nev. 327, 330, 594 P.2d 699, 701 (1979), we said: Since the defense of entrapment focuses on an
appellant's predisposition to commit the crime as charged, evidence that he previously supplied marijuana was
relevant in establishing his state of mind while supplying marijuana to the undercover agents. Moreover, we
inferentially rejected the minority or so-called objective theory of entrapment by referencing a California case
that had embraced that theory. Id. at 330 n. 8, 594 P.2d at 701 n. 8 (citing People v. Barraza, 591 P.2d 947 (Cal.
1979)). The objective theory looks only to the conduct of the police and therefore views the predisposition of an
accused as irrelevant. But even under the objective theory of entrapment Oliver and Moreland find no harbor, as
can be seen from the court's holding in Barraza:
[W]e hold that the proper test of entrapment in California is the following: was the conduct of the law
enforcement agent likely to induce a normally law-abiding person to commit the offense? For the
purposes of this test, we presume that such a person would normally resist the temptation to commit a
crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than
offer that opportunity to the suspectfor example, a decoy programis therefore permissible; but it is
impermissible for the police or their agents to pressure the suspect by overbearing conduct such as
badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person
to commit the crime.
591 P.2d at 955 (footnote omitted). The decoy operations in Oliver and Moreland would not rise to the level of
entrapment under the objective test because there was no badgering, cajoling, importuning or other acts that
104 Nev. 70, 85 (1988) Sheriff v. Hawkins
judge living in a society with limited assets and a healthy regard for individual freedom, the
Oliver scenario seemed inherently offensive to both. For the price of a ten-dollar bill
displayed as an apple on an isolated tree, a man then rightfully free lost his freedom. And the
honest taxpayers of Nevada were forced to divert scarce assets to the cost of incarcerating
Oliver for at least part of a ten-year sentence. Equally troubling is the tragic realization that
our society has produced a large number of basically honest people who rationalize their
entitlement to whatever they can take with impunity. Employers consistently sustain
substantial losses from employee pilferage justified by the conclusion that the employee is
underpaid and exploited. The underprivileged in many walks of life conclude that the affluent
enjoy life at their expense, and therefore are willing to view life in part as the law of the
jungle and the survival of the fittest. While I do not condone theft or dishonesty even on the
level of Oliver, I do not see societal benefit stemming from efforts to entice and incarcerate
persons who succumb to the temptation of a ten-dollar bill dangled before them in trappings
that virtually assure an undetected opportunity for some rationalized enrichment at perhaps
not great personal expense to the victim. Even if the state elects not to prosecute after arrest,
the trauma of the arrest and the stigma of the record cause one to reflect on the value of such
an operation. Moreover, if the arrest reveals a fish that has frequented the criminal justice
waters on previous occasions, can we truly claim triumph in having developed an artifice that
has successfully strengthened the recidivism rate?
On the other hand, we were informed by the state during oral argument that criminal
activity in downtown Reno has reached such a high level that many local citizens avoid the
area. The challenges facing law enforcement agencies in preventing crime and apprehending
criminals are enormous. Because, as judicial officers, we do not shoulder the burden of our
law enforcement agencies, I am most reluctant to limit the options available to them in
protecting society. It seems to me that the measured response of the criminal justice system to
the unacceptable manufacturing of crime by police is the defense of entrapment. Rarely, I
suggest, should the issue of entrapment be decided as a matter of law. The Olivers and
Morelands should be the exception rather than the rule. Moreover, I am reluctant to decide, as
a matter of law, that the police decoy operating here was either unwarranted or inordinately
enticing. As previously stated, the decoy was well dressed and the bait less readily available
than in Oliver and Moreland.
____________________
could reasonably be viewed as overbearing. It therefore appears that our Oliver and Moreland precedents
represent some form of hybrid approach that tends to invalidate police efforts based upon a judicially perceived
lack of prudence or practical worth. As previously noted, I seriously question whether our hybrid is worthy of an
extended life.
104 Nev. 70, 86 (1988) Sheriff v. Hawkins
dressed and the bait less readily available than in Oliver and Moreland. The stage thus
presented was not that of a drunken derelict who would likely awaken and perhaps do no
more than wonder where or how he lost the money to buy another bottle. Additionally, as in
Oliver and Moreland, there was no importuning, cajoling, badgering or affirmative measures
taken to induce Hawkins to commit the crime. In short, however tenuous the differences
between the instant case and Oliver and Moreland, I cannot conclude as a matter of law that
the decoy operation utilized here constituted entrapment.
Although I am becoming progressively persuaded that we should not presume to dictate
how, when and where police officials should exercise their rightful prerogatives in protecting
society, I do not wish to be understood as favoring indiscriminate decoys that do not focus on
existing criminal activity. As noted previously, even if a passive decoy operation snares an
individual who has demonstrated past criminal propensities, but is otherwise apparently
functioning within the lawor at least is not wanted by law enforcement authoritiesI have
some difficulty viewing the creation of a recidivist as a sensible triumph of law enforcement.
I am nevertheless willing to assume that our law enforcement officials, who must answer to
the public concerning the use of their limited resources, will utilize those resources
reasonably. If they do not do so in the area of decoy operations, the law of entrapment should
protect an accused from an improper conviction.
I must also disagree with the majority's view of the evidence code in an attempt by the
State to prove predisposition. In Busby, a recent case on the subject, the court held:
In determining whether a criminal defendant is predisposed to commit a particular
crime we examine: the character or reputation of the defendant, including any prior
criminal record; whether the suggestion of the criminal activity was initially made by the
Government; whether the defendant was engaged in the criminal activity for profit;
whether the defendant evidenced reluctance to commit the offense, overcome only by
repeated Government inducement or persuasion; and the nature of the inducement or
persuasion supplied by the Government.
United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (emphasis added) (quoting United
States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926,
(1978)). Obviously, an appellate court could not review the character, reputation, and prior
criminal record of a defendant if they were inadmissible at trial. In my view, they clearly are
admissible to show predisposition under the intent exception specified in NRS 4S.045{2).
104 Nev. 70, 87 (1988) Sheriff v. Hawkins
specified in NRS 48.045(2). Moreover, we have already held in Nevada that evidence of prior
offenses is admissible on the issue of predisposition unless its probative value is outweighed
by its prejudicial impact, a determination left to the sound discretion of the trial judge. Hill v.
State, 95 Nev. 327, 329-30, 594 P.2d 699, 700-01 (1979). The rule admitting such evidence
to show predisposition is so well established throughout the country that further citation is
unnecessary.
Because I cannot conclude as a matter of law that Hawkins was entrapped, I would reverse
and remand for trial.
____________
104 Nev. 87, 87 (1988) Flick Theater v. City of Las Vegas
FLICK THEATER, INC., dba FLICK THEATER, a Nevada Corporation, Appellant, v. CITY
OF LAS VEGAS, NEVADA, a Municipal Corporation and a Political Subdivision of the
State of Nevada, Respondent.
No. 18075
March 31, 1988 752 P.2d 235
Appeal from an order of the district court denying appellant's motion for preliminary and
permanent injunctions. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Adult theater operator sought an injunction against enforcement of an ordinance
prohibiting the operation of sexually oriented businesses within 1,000 feet of a school or
church. The district court refused injunctive relief, and the theater operator appealed. The
Supreme Court, Springer, J., held that: (1) the ordinance prohibiting the establishment of
sexually oriented businesses within 1,000 feet of schools or churches was intended to apply to
new businesses and to existing businesses; (2) state law did not preempt the ordinance; and
(3) the ordinance did not violate the first amendment.
Affirmed.
[Rehearing denied April 28, 1988]
Marquis & Haney, and James P. McBride, Las Vegas, for Appellant.
Rex Bell, District Attorney, Clark County; George Ogilvie, City Attorney, John Edward
Roethel, Chief Civil Deputy City Attorney, Las Vegas, for Respondent.
104 Nev. 87, 88 (1988) Flick Theater v. City of Las Vegas
1. Zoning and Planning.
City ordinance prohibiting operation of sexually oriented businesses within 1,000 feet of school or church
applied to sexually oriented businesses in operation at time of ordinance's enactment; whether
establishment of sexually oriented business meant opening of business or continued operation of
business, ordinance was intended to ban operation of those businesses in proximity to schools and churches
by declaring any existing businesses in violation of ban to be nonconforming use after expiration of five
year amortization period.
2. Zoning and Planning.
State has delegated to city express authority to regulate location of sexually oriented businesses and,
therefore, ordinance prohibiting operation of sexually oriented businesses within 1,000 feet of school or
church was not preempted by state law. NRS 278.020, 278.020, subd. 1, 278.0222, 278.250, 278.250,
subd. 1.
3. Constitutional Law; Zoning and Planning.
Adult theater operator failed to show that requiring sexually oriented businesses to operate outside
shadows of schools and churches unduly burdened protected speech and, therefore, ordinance prohibiting
operation of those businesses within 1,000 feet of school or church did not violate first amendment.
U.S.C.A.Const. Amend. 1.
OPINION
By the Court, Springer, J.:
Appellant Flick Theater sought an injunction in the district court enjoining the
enforcement of local ordinances prohibiting the operation of sexually oriented businesses
within one thousand feet of a school or church. The district court refused injunctive relief and
we affirm the district court action.
[Headnote 1]
In 1978 the City of Las Vegas enacted an ordinance which provides that [n]o person shall
cause or permit the establishment of . . . sexually oriented businesses . . . within one thousand
feet of . . . [a] church [or] school. . . . LVMC 19.74.030(A). Flick stipulates that it is engaged
in a sexually oriented business within the prohibited one thousand feet distance. It argues,
however, that since it was already engaged in a sexually oriented business in the prohibited
location when the ordinance was enacted, it cannot be said to have caused or permitted the
establishment (that is, Flick claims, the creation or commencement) of a business. As we see
Flick's position in this case, it does not make any difference whether establishment refers to
the opening of this kind of business or the continued operation of such business because at
the time of enacting LVMC 19.73.030(A) the city enacted LVMC 19.74.040 which deals
expressly with existing businesses and makes very clear the city's intention to ban
operation of these businesses in proximity to schools and churches by declaring any
existing businesses in violation of the school-church ban to be a nonconforming use after
five years from the enactment of the ordinance.1
104 Nev. 87, 89 (1988) Flick Theater v. City of Las Vegas
ing businesses and makes very clear the city's intention to ban operation of these businesses in
proximity to schools and churches by declaring any existing businesses in violation of the
school-church ban to be a nonconforming use after five years from the enactment of the
ordinance.
1

The intent of the Las Vegas City Council clearly prevails over the literal sense of the
wording of the two ordinances. See Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635,
503 P.2d 457 (1972). It is clear from reading LVMC 19.74.030 and LVMC 19.74.040 that the
Las Vegas City Council intended any sexually oriented business existing as of April 16, 1978,
and located within one thousand feet of any church or school, to be a nonconforming use
subject to the five-year amortization period. Since Flick, by its own admission, satisfies these
criteria, Flick is subject to enforcement of LVMC 19.74.040.
[Headnote 2]
Flick also claims that LVMC 19.74.030 and LVMC 19.74.040 improperly regulate beyond
the express delegation of power in NRS 278.0222.
2

The city did not exceed the legislative authority granted under NRS 278.0222 because the
ordinances in question are not in conflict with the state statute. In Lamb v. Mirin, 90 Nev.
329, 526 P.2d 80 (1974), we noted that in determining whether the legislature intended to
occupy a particular field to the exclusion of all local regulation the courts should look to
the whole purpose and scope of the legislative scheme. "That which is allowed by the
general laws of a state cannot be prohibited by local ordinance, without an express grant
on the part of the legislature." Lamb, 90 Nev. at 333, 526 P.2d at S2.
____________________

1
LVMC 19.74.040 reads as follows:
19.74.040 Existing as of 1978. Any business existing as of April 16, 1978, that is in violation hereof
shall be deemed a nonconforming use. Such a nonconforming use will be permitted to continue for a
period not to exceed five years, unless sooner terminated for any reason whatsoever or voluntarily
discontinued for a period of thirty days or more. Such nonconforming uses shall not be increased,
enlarged, extended or altered except that the use may be changed to a conforming use. In the event that
two or more sexually oriented businesses are within one thousand feet of one another and otherwise in a
permissible zone, the first such sexually oriented business licensed and continually operating at a
particular location shall be the conforming use and the later-established business(es) shall be
nonconforming.
We have not lost sight of Flick's contention that it cannot be in violation of the ordinance because it never
caused or permitted establishment of a sexually oriented business; we merely reject the argument as being
unpersuasive.

2
NRS 278.0222 provides as follows:
A commission may recommend or a governing body may adopt zoning regulations restricting the
construction, reconstruction, alteration, repair or use of buildings, structures or land as adult bookstores
or adult motion picture theaters to specific districts within the geographical jurisdiction of the
commission and governing body.
104 Nev. 87, 90 (1988) Flick Theater v. City of Las Vegas
legislature intended to occupy a particular field to the exclusion of all local regulation the
courts should look to the whole purpose and scope of the legislative scheme. That which is
allowed by the general laws of a state cannot be prohibited by local ordinance, without an
express grant on the part of the legislature. Lamb, 90 Nev. at 333, 526 P.2d at 82. There is
nothing in the ordinances enacted by the city that appears to prohibit any activities that are
expressly allowed by state legislation, and NRS 278.0222 cannot be said to preempt the city's
ordinance enactments here in question.
The state has delegated to the city express authority to regulate the location of sexually
oriented businesses. General authority to regulate the location and use of buildings and
structures, in order to promote the health and general welfare of the community, is granted
under NRS 278.020 and NRS 278.250.
3
These state statutes do not constitute a
comprehensive statutory scheme which purports to regulate the location of sexually oriented
businesses throughout the state and do not indicate any attempt by the state to occupy the
field. To the contrary, the intent of the state, as clearly manifested in the above statutes, is to
vest in local government the authority to regulate such matters as they see fit. These
ordinances are not, as claimed by Flick, an excessive exercise of municipal legislative power
that renders the ordinances void under state law.
[Headnote 3]
As previously stated, it is clear that LVMC 19.74.040 applies to Flick. Since Flick has
failed to offer facts demonstrating that enforcement of this ordinance against Flick infringes
upon Flick's first amendment rights, and since the city had the authority to enact ordinances
regulating the location of sexually oriented businesses in proximity to schools and churches,
it does not appear that the trial court abused its discretion in denying Flick's motion for a
preliminary injunction.4
____________________

3
NRS 278.020(1) states:
1. For the purpose of promoting health, safety, morals, or the general welfare of the community, the
governing bodies of cities and counties are authorized and empowered to regulate and restrict the
improvement of land and to control the location and soundness of structures.
NRS 278.250(1) states:
1. For the purposes of NRS 278.010 to 278.630, inclusive, the governing body may divide the city,
county or region into zoning districts of such number, shape and area as are best suited to carry out the
purposes of NRS 278.010 to 278.630, inclusive. Within the zoning district it may regulate and restrict the
erection, construction, reconstruction, alteration, repair or use of buildings, structures or land.
104 Nev. 87, 91 (1988) Flick Theater v. City of Las Vegas
appear that the trial court abused its discretion in denying Flick's motion for a preliminary
injunction.
4

The district court judgment is affirmed.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________
____________________

4
There are no valid first amendment claims asserted here, as there is no showing that requiring these kinds of
businesses outside the shadows of schools and churches unduly burdens protected speech. See, e.g., Lydo
Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984), in which the federal circuit court reversed
a district court's order granting Lydo Enterprises a preliminary injunction prohibiting enforcement of LVMC
19.74.040 against it. The circuit court noted that it was mindful that Lydo waited five years after enactment of
LVMC 19.74.030 and LVMC 19.74.040 before taking legal action to protect itself from the effect of the
ordinances. The court also noted that the difficulty with Lydo's position was that Lydo made no showing relating
to the availability of relocation sites. The appeals court concluded that Lydo's case for a preliminary injunction
was based on mere conjecture, since there was no record on which either the trial court or the appellate court
could find the ordinance created a substantial restriction on protected speech. Basically the same considerations
apply to the case now before us.
104 Nev. 91, 91 (1988) State v. District Court
THE STATE OF NEVADA, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF DOUGLAS, THE
HONORABLE DAVID R. GAMBLE, DISTRICT JUDGE, Respondent,
EDWIN FERRELL DOUGLASS, Real Party in Interest.
No. 18266
March 31, 1988 752 P.2d 238
Original petition for a writ of certiorari.
State petitioned for writ of certiorari challenging the reversal of the conviction for driving
while intoxicated. The Supreme Court held that driving while intoxicated, when charged as a
misdemeanor, is a petty offense for which a trial by jury is not constitutionally mandated,
whether the driver is charged in municipal court or justice's court.
Petition granted.
Brian McKay, Attorney General; Brent T. Kolvet, District Attorney, and Harold Kuehn,
Deputy District Attorney, Douglas County, for Petitioner.
104 Nev. 91, 92 (1988) State v. District Court
Loren Graham, Zephyr Cove, for Respondent.
Jury.
Driving while intoxicated, when charged as misdemeanor, is petty offense for which trial by jury is not
constitutionally mandated, whether driver is charged in municipal court or in justice's court. NRS
484.379; U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
This petition for a writ of certiorari challenges an order of the district court ruling that
individuals charged with violating NRS 484.379 are entitled to a jury trial, reversing the
conviction of the real party in interest herein, and remanding the matter to the justice's court
for a jury trial.
In Blanton v. North Las Vegas Mun. Ct. 103 Nev. 623, 748 P.2d 494 (1987), this court
concluded that driving under the influence of alcohol, when charged as a misdemeanor, is a
petty offense for which trial by jury is not constitutionally mandated. See also Baldwin v.
New York, 399 U.S. 66 (1970); State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983). Our
holding in Blanton applies whether the individual is charged in municipal court or justice's
court. Respondent has presented no authorities or arguments not considered by this court in
reaching its decision in Blanton.
Accordingly, we grant this petition.
1

____________________

1
This petition was previously granted in an unpublished order of this court. Pursuant to a request, we have
determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion
in place of our order dismissing this appeal filed December 31, 1987. We note that on December 31, 1987, the
clerk of this court issued a writ of certiorari, pursuant to our order, compelling the district court to vacate its
order reversing the conviction of real party in interest Edwin Ferrell Douglass, and to enter a new order
consistent with our decision in Blanton, supra.
____________
104 Nev. 93, 93 (1988) Citibank Nevada v. Wood
CITIBANK NEVADA, N.A., Appellant, v. GILBERT R.
WOOD and SUSAN WOOD, Respondents.
No. 18388
April 28, 1988 753 P.2d 341
Appeal from an order granting a countermotion for summary judgment. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Lender bank brought action against debtors-trustors to recover unsatisfied portion of debt
after trustee's sale had extinguished interest securing debt. The district court awarded surplus
proceeds from trustee's sale to debtors-trustors. Lender bank appealed. The Supreme Court
held that as junior lienholder, lender bank's interest in excess trustee's sale proceeds was
superior to interest held by debtors-trustors, and lender bank was entitled to distribution from
trustee's sale surplus.
Reversed and remanded with instructions.
Wiener, Waldman, Gordon & Silver and Anthony V. Sorrentino, Las Vegas, for Appellant.
Monte J. Morris, Henderson, for Respondents.
1. Mortgages.
Generally, funds received at trustee's sale are to be distributed as follows: costs of trustee's sale,
satisfaction of senior liens, satisfaction of junior liens, and remainder to trustor.
2. Mortgages.
As junior lienholder, lender bank's interest in excess trustee's sales proceeds was superior to interests held
by debtors-trustors; therefore, lender bank was entitled to distribution from trustee's sale surplus.
OPINION
Per Curiam:
This is an appeal by Citibank from a summary judgment which awards surplus proceeds
from a trustee's sale to respondents Wood, who are the debtors-trustors named in the deed of
trust. Basing its order granting summary judgment on Carrillo v. Valley Bank, 103 Nev. 157,
734 P.2d 724 (1987), the district court determined that Citibank's only remedy in seeking to
recover the unsatisfied portion of the Wood debt, after the trustee's sale had extinguished the
interest securing that debt, was to sue on the promissory note. Since Citibank failed to bring
such a deficiency action within the six-month statutory period, the trial court concluded that
Citibank was precluded from recovering any of the trustee's sale surplus.
104 Nev. 93, 94 (1988) Citibank Nevada v. Wood
Although we agree that the six-month period limiting Citibank's ability to sue on the
promissory note has run and thereby precludes an action on such note, we do not believe that
Citibank is foreclosed from claiming an interest in the trustee's sale surplus. The Carrillo case
did not limit a junior lienor's right to claim an interest in the surplus proceeds of a trustee's
sale.
In Carrillo, we were concerned with the ability of a junior lienor who had purchased the
property securing the debt to sue for a deficiency judgment without regard to the fair market
value of the purchased property. In connection with that particular problem, we held that a
purchasing junior lienor can appropriately seek a deficiency judgment, but only to the extent
that the combined indebtedness associated with the purchased property exceeds the fair
market value of such purchased property on the date of the trustee's sale. Carrillo, 103 Nev.
at 159, 734 P.2d at 725. By restricting the amount of the purchasing junior lienor's remedy,
we refused to allow the purchasing junior lienor to restructure the debt equation to produce a
return greater than its full entitlement. Carrillo, 103 Nev. at 158, 734 P.2d at 725. In Carrillo
this court did not deal with an unsatisfied purchasing junior lienor's right to claim an interest
in the trustee's sale proceeds; hence Carrillo does not control the instant case.
[Headnotes 1, 2]
Generally, the funds received at a trustee's sale are to be distributed as follows:
1. The costs of the trustee sale;
2. Satisfaction of the senior lien;
3. Satisfaction of the junior liens; and
4. Remainder to the trustor.
As junior lienholder, Citibank's interest in the excess trustee's sale proceeds is superior to the
interest held by the Woods as debtors and trustors. Thus, the trustee's sale surplus should be
distributed to Citibank.
Citibank's claim in the trustee's sale surplus, however, is not unlimited. Citibank or a
similarly situated creditor may not be allowed to restructure the debt equation in a manner
which would lead to an excessive recovery. In the instant case, Citibank realized $13,000.00
from the security; the property was purchased at the trustee's sale for $67,000.00 and
subsequently sold by Citibank for $80,000.00. There is nothing in the record to suggest that
the $80,000.00 sales price did not represent the fair market value of the property. Since the
Wood debt owed to Citibank was $48,197.89 at the time of the trustee's sale, and because
Citibank has since realized $13,000.00 from the property securing such debt, Citibank's claim
appears to remain unsatisfied in the amount of $35,197.89. Accordingly, Citibank's claim to
the trustee's sale surplus is limited to that amount.
104 Nev. 93, 95 (1988) Citibank Nevada v. Wood
claim to the trustee's sale surplus is limited to that amount. Because the trustee's sale surplus,
$25,817.48, does not exceed the unsatisfied portion of the Citibank debt, Citibank is entitled
to the entire residual amount.
Since the Carrillo case does not limit Citibank's remedy exclusively to that of a deficiency
judgment, Wood was not entitled to judgment as a matter of law; thus, summary judgment
was not warranted. In addition, Citibank holds an interest in the trustee's sale surplus superior
to that held by the Woods. As a result, Citibank is entitled to judgment as a matter of law.
There existing no unanswered questions of material fact, summary judgment in Citibank's
favor is justified. We therefore reverse the summary judgment and remand the case to the
district court with instructions to enter summary judgment in favor of Citibank and to
distribute to Citibank the excess trustee's sale funds, in full.
____________
104 Nev. 95, 95 (1988) Jensen v. Jensen
BARBARA E. JENSEN, Appellant, v. DONALD L. JENSEN, and JENSEN
ENTERPRISES, INC., a Nevada Corporation, Respondents.
No. 17919
April 28, 1988 753 P.2d 342
Appeal from a divorce decree. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Wife filed petition for divorce. The district court filed decree of divorce, awarded wife
primary physical custody of child, and made support awards, and wife appealed. The
Supreme Court held that: (1) agreement by which wife's compensation for work performed
for husband's company would be lumped with husband's compensation did not violate
antenuptial agreement, as modified; (2) ordering wife to execute documentation allowing
husband to claim income tax exemption for child was inappropriate; and (3) substantial
evidence supported determination that husband did not commingle community property with
his own separate property and equitable division of community property.
Affirmed in part, modified in part.
George E. Graziadei and Scott Michael Cantor, Las Vegas, for Appellant.
Dickerson, Dickerson & Lieberman, Las Vegas, for Respondents.
104 Nev. 95, 96 (1988) Jensen v. Jensen
1. Divorce.
There was substantial evidence that husband's company fully compensated wife for work performed, as
agreed, so that wife did not have wage claim against company at time of divorce, even assuming that trial
court's finding that company had not agreed to compensate wife for her work was not supported by
substantial evidence, where husband and company accountant testified wife agreed that during time she
worked for company her compensation would be lumped with husband's, during period in question
company paid husband at least $330,000, and that income was deposited in joint account and used by both
parties to pay community expenses.
2. Husband and Wife.
Modification of antenuptial agreement can be implied from conduct consistent with asserted
modification.
3. Evidence.
Parol evidence can be admitted to show oral agreement modifying contract.
4. Husband and Wife.
Arrangement by which wife's compensation for work performed for husband's company would be lumped
with husband's compensation did not violate modified antenuptial agreement, which initially required that
wife's income be treated as separate property, given wife's post-agreement oral consent to combine income,
her acquiescence in allowing income to be deposited in joint checking account, her willingness to use funds
for community expenses, and her failure to demand, at any time before divorce, separate salary or income.
5. Divorce.
Coercive equitable relief in form of ordering wife to execute documentation allowing husband to claim
income tax exemption for their child, who was in wife's primary physical custody, was inappropriate, where
lower court could have achieved similar economic result, as matter of law, by merely adjusting the amount
of alimony husband would have to pay wife. 26 U.S.C.A. 152(e).
6. Divorce; Husband and Wife.
Substantial evidence supported trial court's determination that husband did not commingle community
property with his own separate property and trial court's equitable division of community property.
OPINION
Per Curiam:
The Facts
Barbara and Donald were married in September 1981. On the day of their marriage, they
signed an antenuptial agreement (hereafter Agreement), designed to keep their income and
property separate after marriage. Soon after marriage, Barbara decided she wanted to work,
and in May, 1982, pursuant to an informal arrangement, she began working for Jensen
Precast, Donald's company.
1
For about three years she worked part-time, mostly trying to
speed up or enforce collections.
____________________

1
Donald is the sole officer, director and shareholder of this corporation.
104 Nev. 95, 97 (1988) Jensen v. Jensen
Donald and his accountant testified that, about one year after Barbara began work, she and
Donald agreed Jensen Precast would not pay her a separate salary, but her income would be
included in Donald's income. Donald and his accountant testified that Barbara agreed to this
means of compensation so Jensen Precast would not have to pay separate payroll taxes for her
wages. Throughout the marriage thereafter, Donald deposited this income into the couple's
joint checking account, and it was used to pay community expenses.
Barbara filed for divorce in September, 1986, and the district court filed the decree in
October. The court awarded Barbara primary physical custody of their child, Megan; Donald
was ordered to pay $500 a month child support, maintain health insurance for Megan, and
designate her as beneficiary for a $50,000 life insurance policy. Barbara was ordered to
execute documents, on a yearly basis, allowing Donald to claim the exemption for Megan on
his income tax returns.
Discussion
[Headnote 1]
Barbara argues that Jensen Precast owes her $83,040 for work she performed. The lower
court concluded that Jensen Precast had not agreed to compensate Barbara for her work and
therefore was not liable to her. We agree with the lower court's conclusion that Jensen Precast
is not liable for the compensation Barbara seeks.
The district court, in denying liability, found:
There was never a meeting of the minds concerning employment of the Plaintiff with the
Defendant Company and there is [sic] insufficient facts to be the basis for any contract,
express or implied, or on a quantum meruit basis.
The court then concluded:
There was no employment agreement, expressed or implied, between the Plaintiff and
Defendant, Jensen Enterprises, Inc., nor was there any other basis for claiming
entitlement to compensation from Jensen Enterprises, Inc., including quantum meruit.
Barbara argues that this finding is not supported by the record. However, even assuming
that the district court's finding is not supported by substantial evidence and Jensen Precast did
agree to compensate Barbara for her work, the record contains substantial evidence that
Jensen Precast fully compensated Barbara, as agreed. As noted, both the company accountant
and Donald testified Barbara agreed that during the time she worked for Precast her
compensation would be lumped with Donald's. From 19S2 to 19S4, Precast paid Donald at
least $330,000;2 this income was deposited in the joint account and used by both parties
to pay community expenses.
104 Nev. 95, 98 (1988) Jensen v. Jensen
1982 to 1984, Precast paid Donald at least $330,000;
2
this income was deposited in the joint
account and used by both parties to pay community expenses.
[Headnotes 2, 3]
Barbara argues this arrangement violates the terms of their antenuptial agreement, which
requires her income be treated as separate property. However, the Agreement expressly
provided that its terms could be changed.
3
We have noted that parties to a written contract
who agree to new terms may orally modify the contract. Joseph F. Sanson Inv. Co. v. Cleland,
97 Nev. 141, 142, 625 P.2d 566, 567 (1981).
4
Moreover, parties' consent to modification can
be implied from conduct consistent with the asserted modification. Clark County Sports
Enter. v. City of Las Vegas, 96 Nev. 167, 171, 606 P.2d 171, 175 (1980).
[Headnote 4]
The record clearly suggests that, after the Agreement had been entered, both Barbara and
Donald elected to treat their separate income as community property. By Barbara's
post-Agreement oral consent to combine income, her acquiescence in allowing the income to
be deposited in their joint checking account, her willingness to use the funds for community
expenses, and her failure to demand, at any time before the divorce, a separate salary or
income, Barbara, like Donald, obviously agreed to modify the Agreement and thereafter treat
her income, like Donald's, as community property.
5
Therefore, even assuming arguendo
that the lower court erroneously concluded no compensation agreement existed,6 the
record supports a conclusion that Barbara was fully compensated, as agreed, for her
part-time work for Precast.
____________________

2
In 1982, Precast paid Donald $121,500; in 1983, it paid Donald $60,800; in 1984, it paid Donald $148,000.

3
The Agreement stated:
It is the purpose of this paragraph that no community property arise out of the marriage relationship
absent some subsequent agreement between the parties to the contrary, all amounts earned through the
efforts of the individuals during their marriage shall be the separate property of the individual expending
the effort or financial resources. (Emphasis added).
The Agreement did not require any subsequent modifications to be in writing.

4
Parol evidence can be admitted to show an oral agreement modifying a contract, Silver Dollar Club v.
Cosgriff Neon Co., 80 Nev. 108, 110, 389 P.2d 923, 924 (1964).

5
Normally, in order to modify a contract, both parties must provide consideration. J. Calamari & J. Perillo,
Contracts 262 (3d ed. 1987). In this case, as consideration for the modification, Barbara gave up the right to
have her income treated as separate property, and Donald agreed (1) to allow her to continue work for Jensen
Precast and (2) to continue to treat his income as community property, rather than separate property.
104 Nev. 95, 99 (1988) Jensen v. Jensen
arguendo that the lower court erroneously concluded no compensation agreement existed,
6
the record supports a conclusion that Barbara was fully compensated, as agreed, for her
part-time work for Precast.
[Headnote 5]
Barbara also argues that the lower court exceeded it jurisdiction by ordering her to execute
documentation allowing Donald to claim an income tax exemption for their child. Although
the court awarded Barbara primary physical custody of their daughter Megan, it ordered
Barbara to execute, on a yearly basis, the forms necessary for Donald to claim a tax
exemption for Megan as a dependent, if his $500 monthly payments were timely.
Normally, the custodial parent is entitled to claim the exemption, unless this parent waives
the right. I.R.C. 152(e). And coercive equitable relief is appropriate only when a legal
remedy is inadequate. See Leftwich v. Leftwich, 442 A.2d 139 (D.C. 1982) (spouse
improperly ordered to sign joint income tax return). In this case, the lower court could have
achieved a similar economic result, as a matter of law, by merely adjusting the amount of
alimony Donald would have to pay Barbara; the more extreme remedy of coercive equitable
relief was inappropriate. Therefore, although we affirm the district court's award of $500 a
month child support, we reverse the district court's order insofar as it requires Barbara to
execute the tax forms necessary for Donald to claim the exemption. We do not remand,
however, as further adjustment of the court's judgment is unnecessary.
[Headnote 6]
Finally, Barbara contends that the district court abused its discretion in dividing the
couple's community property and erred by finding Donald did not commingle community
property with his own separate property. We have often noted that we will disturb a district
court's equitable distribution of community property on appeal only if the court abuses its
broad discretion. Shick v. Shick, 97 Nev. 352, 354, 630 P.2d 1220, 1221 (1981). And, a
district court's factual determinations will be disturbed only when unsupported by
substantial evidence.
____________________

6
The lower court's conclusion that no compensation agreement was reached by Barbara and Jensen Precast
might also be supported by substantial evidence. For example, Barbara testified that the parties did not expressly
agree about the manner or amount of compensation:
[E]ven prior to my going to work, we did not discuss salary. You know, giving me one or not per se. We
had in fact even discussed the possibility of me down the road returning and going to law school or
something, having, you know, a career of my own kind of thing. Or he even offered at one point to help
me set up a business of my own and to finance it and work with me on an individual business. That would
be mine.
104 Nev. 95, 100 (1988) Jensen v. Jensen
only when unsupported by substantial evidence. Johnson v. Johnson, 89 Nev. 244, 246, 510
P.2d 625, 626 (1973) (citation omitted). In this case, there is substantial evidence on record to
support both the district court's findings of fact and equitable division. Therefore, after
consideration of the parties' arguments and the law, we accordingly affirm the district court's
decision as modified herein.
____________
104 Nev. 100, 100 (1988) Shaw v. State
SANDY MARIE SHAW, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18229
April 29, 1988 753 P.2d 888
Appeal from judgment of conviction on one count of first degree murder with the use of a
deadly weapon. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of one count of first degree murder with use
of deadly weapon, and she appealed. The Supreme Court held that: (1) it was not necessary to
certify defendant as adult before she could stand trial for murder; (2) state was not guilty of
prosecutorial misconduct; and (3) testimony concerning conversation overheard between two
participants in murder, involving telephone call to defendant, was admissible.
Affirmed.
Ralph J. Rohay, Las Vegas, for Appellant.
Brian McKay, Attorney General; Rex Bell, District Attorney, James Tufteland, Deputy
District Attorney, Daniel M. Seaton, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
State need not charge underlying felony in proving first degree murder using felony-murder rule. NRS
200.030, subd. 1.
2. Infants.
It was not necessary to certify juvenile, who was not yet 16 at time of murder or at time of trial, as adult
with respect to charge of first degree murder under felony-murder rule; delinquent acts within juvenile
court's exclusive original jurisdiction excluded murder, and crime of robbery, as felony underlying
felony-murder charge, did not have to be charged. NRS 62.040, subd. 1, 62.080, 200.030, subd. 1.
3. Criminal Law.
Fact that probation of witness was lifted and his bail dropped prior to trial, standing alone, was
insufficient to establish impropriety on part of prosecutor in failing to disclose agreement
made with witness, in light of trial testimony of witness that state indicated no plea
bargain deal would be offered and that no deal was struck with prosecution.
104 Nev. 100, 101 (1988) Shaw v. State
of prosecutor in failing to disclose agreement made with witness, in light of trial testimony of witness that
state indicated no plea bargain deal would be offered and that no deal was struck with prosecution.
4. Criminal Law.
Any error in admitting testimony of witness, whose testimony was alleged by defendant to be tainted as
result of undisclosed deal with prosecution, was harmless, where there was no challenge to testimony and
where such testimony was substantially duplicated by testimony of brother of witness.
5. Criminal Law.
Testimony concerning substance of conversation overheard between two participants in murder, during
which one participant telephoned defendant and related defendant's statements to other participant, was
admissible over defendant's hearsay objections; testimony concerning defendant's statements over
telephone was admissible as statements of party offered against that party, and testimony concerning
participant's recitation of defendant's telephone statements was admissible under coconspirator exception to
hearsay ban. NRS 51.035, subd. 3(a), (e) 51.067.
6. Infants.
Juvenile charged with murder was not entitled to immediate notification of one of her parents at time she
was taken into custody; juveniles charged with murder were specifically excepted from jurisdiction of
juvenile courts and therefore did not come within purview of attendant juvenile laws. NRS 62.040.
7. Criminal Law.
State's offering testimony of various witnesses recounting statements made to them by defendant did not
preclude state's attacking credibility of defendant's testimony concerning those same events. NRS
51.035, subd. 3(a).
8. Criminal law.
Jury, not public in general, must be prejudiced by state's conduct for prosecutorial misconduct to occur.
9. Criminal Law.
State's allegedly lopsided portrayal of homicide case to media, without mention of any mitigating facts
adduced at trial, was not prosecutorial misconduct.
OPINION
Per Curiam:
This is an appeal by Sandy Marie Shaw who was convicted of one count of first degree
murder with the use of a deadly weapon. Shaw received two consecutive life sentences
without the possibility of parole.
During closing argument at trial, the state discussed the felony-murder rule and its
potential application to the death of James Cotton Kelly. In addition, the jury was read
instruction number eleven which stated in part: Murder of the First Degree is Murder which
is (a) perpetrated by means of any kind of wilful, deliberate and premeditated killing or {b)
committed in the perpetration or attempted perpetration of robbery."
104 Nev. 100, 102 (1988) Shaw v. State
deliberate and premeditated killing or (b) committed in the perpetration or attempted
perpetration of robbery. Shaw contends that it was possible that she was convicted of first
degree felony-murder without being charged with the underlying felony. Since she was not
charged with the robbery, nor certified as an adult to stand trial for that felony, Shaw insists
that she was denied a fair trial, and thus her conviction must be overturned. We disagree.
Juvenile Certification
At trial, the state primarily proceeded under the theory that Shaw was guilty of
premeditated first degree murder. A review of the record clearly indicates the presence of
substantial evidence in support of a first degree murder conviction under a premeditation
theory. Nevertheless, we will address Shaw's suggestion of error concerning application of
the felony-murder rule.
[Headnote 1]
Shaw was charged and convicted of the crime of murder. First degree murder is defined, in
part, as a killing [c]ommitted in the perpetration or attempted perpetration of . . . [a]
robbery. NRS 200.030(1). In proving first degree murder using the felony-murder rule, the
state need not charge the underlying felony. We have in the past stressed that:
The law is well settled in this State that a felony and a homicide committed together
constitute the crime of murder and may be charged as such and in the same manner as the
other murders are charged, and it is not necessary to allege that it was committed in
perpetrating another felony.
Rogers v. State, 83 Nev. 376, 378, 432 P.2d 331, 332 (1967). It is clear, therefore, that the
prosecution's use of the felony-murder rule at Shaw's murder trial does not mandate an
additional charge of the underlying felony.
[Headnote 2]
At both the time the murder was committed and at the time of trial, Shaw had not attained
sixteen years of of age. Under the laws governing juveniles, Nevada Revised Statute Chapter
62, a child under the age of sixteen may not be certified by the juvenile court to stand trial as
an adult. NRS 62.080. The juvenile court, however, may retain for trial only those minors
who have committed an act which falls within the jurisdiction of the juvenile court.
According to the juvenile laws, the juvenile courts hold exclusive original jurisdiction over
proceedings concerning a child who has committed a delinquent act. NRS 62.040(1). The
term delinquent act is specifically defined to exclude the crimes of murder and attempted
murder. NRS 62.040(1). As a result, it was not necessary to certify Shaw as an adult
before she could stand trial for the murder of James Cotton Kelly.
104 Nev. 100, 103 (1988) Shaw v. State
result, it was not necessary to certify Shaw as an adult before she could stand trial for the
murder of James Cotton Kelly. Furthermore, since the crime of robbery was not, and need not
have been charged, it was not necessary to certify Shaw as an adult in conjunction with such
crime. Consequently, the district court's failure to certify Shaw as an adult in connection with
the robbery of James Cotton Kelly did not deny Shaw a fair trial.
Bargained-for Testimony
[Headnotes 3, 4]
Shaw maintains that the testimony of Thomas Varela was tainted by an alleged deal with
the prosecution. Because it is elemental that prosecutors must disclose agreements made with
material witnesses, People v. Phillips, 711 P.2d 423 (Cal. 1985), and since no agreement was
revealed at trial, Shaw insists that Thomas Varela's testimony was tainted to a degree
sufficient to justify reversal of her conviction. Once again we must disagree.
On direct examination, Thomas Varela explained that he had inquired into whether a deal
could be reached for information regarding Shaw's case. Thomas Varela further testified that
the state indicated no plea bargain deal would be offered. Moreover, he denied that he had
struck any such deal with the prosecution.
The only support for Shaw's attack is the inference of a possible deal derived from the fact
that Thomas Varela's probation was lifted and his bail dropped prior to trial. In light of the
trial testimony, this inference, standing alone, is hardly sufficient to establish the alleged
prosecutorial impropriety. In addition, Thomas Varela's testimony was substantially
duplicated by the testimony of his brother, Jerry Varela. Since there is no challenge to Jerry
Varela's testimony, and since such testimony is similar to that offered by Thomas Varela, any
error arising from the admission of Thomas Varela's testimony would be harmless.
Double Hearsay
[Headnote 5]
Shaw challenges the admissibility of Christopher Couzens's testimony. Couzens testified
to the substance of a conversation he overheard between two participants in the murder, Troy
Kell and Billy Merritt. According to Couzens, with both Kell and him in the room, Merritt
telephoned Shaw. During the phone call, Merritt relayed Shaw's statements to Kell. Shaw
contends that Couzens's entire testimony was inadmissible hearsay which extremely
prejudiced her case, and thereby warrants reversal of her conviction.
Couzens's testimony, although partly hearsay and partly double hearsay, was properly
admitted. Hearsay within hearsay is admissible where each hearsay statement falls within
the confines of a hearsay exception.
104 Nev. 100, 104 (1988) Shaw v. State
admissible where each hearsay statement falls within the confines of a hearsay exception.
NRS 51.067. Couzens's testimony concerning Shaw's statements over the telephone were
properly admitted since they were statements of a party offered against that party. NRS
51.035(3)(a). Couzens's testimony pertaining to Merritt's recitation of Shaw's over-the-phone
statements were likewise properly admitted by the district court pursuant to the co-conspirator
exception to the hearsay ban. NRS 51.035(3)(e). Thus, the district court acted appropriately in
admitting Couzens's testimony.
Inculpatory Statements
[Headnote 6]
Shaw argues that because she was a minor at the time of her arrest she was entitled to the
protections set forth in Nevada's juvenile statutesNevada Revised Statutes Chapter 62.
Since one of those protections, the required immediate notification of one of Shaw's parents
at the time she was taken into custody, was not provided, Shaw submits that her statements of
October 4, 1986, October 5, 1986, and October 8, 1986, should have been supressed at trial.
As previously stated, individuals charged with murder are specifically excepted from the
jurisdiction of the juvenile courts and therefore do not come within the purview of the
attendant juvenile laws. NRS 62.040. Shaw was not entitled to any of the protections set forth
in NRS Chapter 62, and accordingly, we find no error by the district court.
Prior Admissions
[Headnote 7]
Shaw contends that the prosecution improperly questioned Shaw's credibility at trial in
light of the state's use of Shaw's admissions. It is Shaw's position that the district court erred
by permitting the prosecution to offer testimony of various witnesses recounting statements
made to them by Shaw while permitting the state to attack the credibility of Shaw's testimony
concerning those same events.
Although hearsay, the testimony of those witnesses who recounted Shaw's out-of-court
statements were properly admitted into evidence pursuant to NRS 51.035(3)(a). In addition,
since such admissions were inconsistent with Shaw's position at trial, they were relevant and
admissible. Turner v. State, 98 Nev. 103, 641 P.2d 1062 (1982). In light of the inconsistency
between the properly admissible extra-judicial statements made by Shaw to various witnesses
and her in-court testimony, it was proper for the prosecution to attack Shaw's credibility.
104 Nev. 100, 105 (1988) Shaw v. State
the prosecution to attack Shaw's credibility. As such, we find no error.
Prosecutorial Misconduct
[Headnotes 8, 9]
Shaw suggests that the prosecution's lopsided portrayal of the case to the media, without
mention of any mitigating facts adduced at trial, amounts to prosecutorial misconduct. Suffice
it to say, that for prosecutorial misconduct to occur, the jury, not the public in general, must
be prejudiced by the state's conduct. See Yates v. State, 103 Nev. 200, 734 P.2d 1252 (1987);
Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986); Collier v. State, 101 Nev. 473, 705 P.2d
1126 (1985); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984); Dearman v. State, 93
Nev. 364, 566 P.2d 407 (1977). The challenged statements do not represent prosecutorial
misconduct.
Conclusion
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that Shaw cannot demonstrate error in this appeal. Accordingly, we affirm the judgment of
the district court.
____________
104 Nev. 105, 105 (1988) Flanagan v. State
DALE EDWARD FLANAGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 17130
May 18, 1988 754 P.2d 836
Appeal from judgment of conviction and imposition of sentence of death. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted of murdering his grandparents following jury trial in district
court and he appealed. The Supreme Court, Mowbray, J., held that cumulative effect of
prosecutor's misconduct during penalty phase was of such magnitude as to render sentencing
hearing fundamentally unfair, requiring a new penalty hearing.
Affirmed in part; reversed in part.
Gunderson, C. J., and Steffen, J., dissented.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy, Terrence M. Jackson,
Deputy, Clark County, for Appellant.
104 Nev. 105, 106 (1988) Flanagan v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy, Ronald C. Bloxham, Deputy, Clark County, for Respondent.
1. Criminal Law.
When guilty verdict is free from doubt, even aggravated prosecutorial remarks will not justify reversal.
2. Criminal Law.
Prosecutor's conduct during guilt phase of murder trial did not render determination of guilt
fundamentally unfair in light of over-whelming evidence of defendant's involvement in the planning and
execution of the murders.
3. Criminal Law.
Allegations of prosecutorial misconduct at penalty phase of murder trial would be considered as if there
had been compliance with contemporaneous objection rule, where life was at stake and procedure whereby
defense counsel had acted in accordance with perceived wish of the court, that counsel not interrupt
continuity of proceedings but wait until recess, was apparently acquiesced in by the prosecution.
4. Criminal Law.
Prosecutor's conduct, while arguing for death penalty for murder, in repeatedly referring to defendant's
improbable rehabilitation and likelihood of future killings, as well as reference to possibility of escape, was
improper.
5. Criminal Law.
It was improper for prosecutor in murder case to inform jury that he did not take his responsibilities
lightly, that he tried to discriminate between penalties, and that death penalty was the only penalty that he
would even suggest jury consider in the instant case.
6. Criminal Law.
It was improper for prosecutor in murder prosecution to criticize jury in a totally different case for giving
another young defendant life with the possibility of parole and urging jury in the present case not to make
the same mistake.
7. Criminal Law.
Prosecutor's reference to fact that defendants, unlike another witness, did not give testimony under oath,
and statement that defendants could or could not take the stand whenever they wanted were violation of
defendant's right to remain silent, and constituted reversible error with respect to penalty phase of murder
trial. U.S.C.A.Const. Amend. 5.
8. Criminal Law.
It was improper for prosecutor to state, in arguing for death penalty in murder case, that If we don't
punish, then society is going to laugh at us.
9. Criminal Law.
Cumulative effect of prosecutor's extensive misconduct during penalty phase of murder trial was of such
magnitude as to render sentencing hearing fundamentally unfair, requiring a new penalty hearing.
OPINION
By the Court, Mowbray, J.:
A jury convicted Dale Edward Flanagan of murdering his grandparents and sentenced
him to death.
104 Nev. 105, 107 (1988) Flanagan v. State
grandparents and sentenced him to death. For the reasons set forth below, we affirm the
conviction but set aside the death sentence and remand for a new penalty hearing.
On the afternoon of November 6, 1984, Carl and Colleen Gordon were found dead in their
las Vegas residence. Mr. Gordon, a fifty-eight year old air traffic controller, had been shot
seven times in the back and chest. Mrs. Gordon, a fifty-seven year old housewife, had been
shot three times in the head. The record contains overwhelming evidence that nineteen year
old Flanagan and his co-defendants planned to kill the Gordons in an effort to obtain
insurance proceeds and an inheritance. With the express purpose of killing the Gordons,
Flanagan and the others broke into the Gordon residence and accomplished their deadly
objective.
[Headnotes 1, 2]
This appeal, once again, focuses our attention on the troubling and recurring issue of
prosecutorial misconduct. Flanagan contends that prosecutorial misconduct at the guilt and
sentencing phases of his trial denied him a fundamentally fair trial. Having carefully reviewed
Flanagan's claims of misconduct at the guilt phase, we conclude that the prosecutor's actions
were not so prejudicial as to mandate reversal. When a guilty verdict is free from doubt, even
aggravated prosecutorial remarks will not justify reversal. Yates v. State, 103 Nev. 200, 734
P.2d 1252 (1987); Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977). Here, there was
overwhelming evidence of Flanagan's involvement in the planning and execution of the
murders. Given the strength of the State's case, we hold that the prosecutor's conduct did not
render the determination of Flanagan's guilt fundamentally unfair.
We cannot, however, reach the same conclusion when considering the allegations of
prosecutorial misconduct at the sentencing phase of Flanagan's trial. At the sentencing phase,
it is most important that the jury not be influenced by passion, prejudice, or any other
arbitrary factor. Hance v. Zant, 696 F.2d 940, 951 (11th Cir. 1983). With a man's life at
stake, a prosecutor should not play on the passions of the jury. Id. Even in what was
apparently intended to be a review of the facts, the prosecutor could not resist the temptation
to weave in an inappropriate appeal to passion when he stated:
Well, I remember grandma. I remember my kindly Swedish grandmother. I remember
the cookies and milk and I remember crawling up into her lap, a warm ample lap.
But I don't ever remember crawling into that lap and wrestling her down and holding
my hand over her mouth and shooting her three times in the head with a .22 pistol. I don't
remember that about my grandmother. That is what [the defendant] remembers about his
grandmother.
104 Nev. 105, 108 (1988) Flanagan v. State
Based on our evaluation of the seventeen allegations of prosecutorial misconduct, we have
identified five categories of misconduct which warrant our consideration and unequivocal
condemnation.
[Headnote 3]
While objections by defense counsel were hardly an exemplar of a properly made
contemporaneous objection, the delay was caused by what was perceived to be the court's
wish that counsel not interrupt the continuity of proceedings but rather wait until a recess.
This procedure apparently was acquiesced in by the prosecution, which stated, We have all
pretty much stayed away from objecting; I will go along with that.
Moreover, the State did not argue this as an issue in its brief. Accordingly, under these
circumstances, where a life is at stake, we will consider the allegations of misconduct as if
there had been compliance with the contemporaneous objection rule.
REFERENCE TO IMPROBABLE REHABILITATION
AND FUTURE KILLINGS
[Headnote 4]
We find particularly objectionable, the prosecutor's repeated references to Flanagan's
improbable rehabilitation and future killings. In direct contravention of our ruling in Collier
v. State, 101 Nev. 473, 705 P.2d 1126 (1985), in which we stated that such comments were
highly inappropriate, the prosecutor in the instant case made the following egregious remarks:
Now, there are three reasons for the death penalty. One is to keep a particular defendant
from ever killing again. Now, if they are given parole, they can go out into society and
kill again. If they escape, they can go into society and kill again. If they are kept in prison
forever, they can kill again, prison guards, other inmates. . . .
And I don't like the burglary and robbery and sexual assault inmates that I and others
have sent to the Nevada State Prison, but I don't suggest they should ever have to die at
the hands of a Dale Flanagan or a Randolph Moore.
And I suggest to you these two, as well as anyone else who have proved their ability,
their capability, their willingness to murder, is capable of doing it again. And so that is
one reason that we can give to give the death penalty so that an individual will never kill
again.
Moreover, we note that the prosecutor's above reference to the possibility of escape is
improper. The prospect of escape is not part of the calculus that the jury should consider in
determining a defendant's sentence. Id. at 479.
104 Nev. 105, 109 (1988) Flanagan v. State
As in Collier, the prosecutor also made a number of comments which we deem to be
deliberate exhortations to convince the jury that the only rational solution was to execute
Flanagan before he could kill again. Statements like if I take that chance and give them life, I
hope I am right because if you are wrong, there are more Carl and Colleen Gordons out there
waiting to be killed and tell them . . . you as a jury have decided that they are never going to
have the opportunity to kill again impermissibly inflamed the jury's emotions. Such
statements placed undue pressure on the jury to conclude that Flanagan would undoubtedly
kill again unless he himself were put to death.
EXPRESSION OF PERSONAL BELIEFS
[Headnote 5]
This court has consistently held that it is improper for a prosecutor to inject his opinion or
personal beliefs into his argument. Aesoph v. State, 102 Nev. 316, 322-23, 721 P.2d 379, 383
(1986); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). In Collier, 101 Nev. at 480,
705 P.2d at 1130, we stated:
Such an injection of personal beliefs into the argument detracts from the unprejudiced,
impartial, and nonpartisan role that a prosecuting attorney assumes in the courtroom.
(Citations omitted.) By stepping out of the prosecutor's role, which is to seek justice
(citations omitted), and by invoking the authority of his or her own supposedly greater
experience and knowledge, a prosecutor invites undue jury reliance on the conclusions
personally endorsed by the prosecuting attorney.
Accordingly, we find it was impermissible for the prosecutor in the case at bar, to inform the
jury that he did not take his responsibilities lightly, that he tried to discriminate between
penalties, and that the death penalty was the only penalty that he would even suggest that the
jury consider.
The prosecutor tendered his own credentials by telling the jury that he had been doing
these kinds of cases for fifteen years. In urging the death penalty, he said the defendants
may con this jury but [they] haven't conned this prosecutor. He further suggested that a
death penalty in this case would avoid the error committed when a jury just one month earlier
gave only a life sentence to Scotty Sloane for the horrible crime of killing Nancy Menke.
Remarks such as these are prime examples of a prosecutor's invoking the authority of his
office. The effect of these arguments is to assure the jurors that someone with greater
experience has already made the decision that the law imposes on them. Tucker v. Zant, 724
F.2d SS2, SS9 {11th Cir.
104 Nev. 105, 110 (1988) Flanagan v. State
v. Zant, 724 F.2d 882, 889 (11th Cir. 1984). Moreover, there is no question that the
prosecutor stepped out of his role as a representative of the State when he informed the jury
that if he had to make the decision, giving Flanagan the death penalty would be an easy
choice. We simply will not condone such an expression of personal belief in the context of a
penalty hearing.
REFERENCES TO ANOTHER CONVICTED MURDERER
[Headnote 6]
During the trial, one of Flanagan's co-defendants called sixteen year old convicted
murderer Scott Sloane as a defense witness.
1
In arguing for the death penalty for Flanagan,
the prosecutor first compared young Sloane to the fuzzy-cheeked, rose complected
defendants in the case at bar and then went on to criticize the jury which had given Sloane life
with the possibility of parole.
2
Next, the prosecutor informed the jury that it, like Sloane's
jury, might have a tussle with its conscience because the defendants were so young. Later,
the prosecutor referred to an alleged death threat made by Sloane and stated that the jury need
only look to Sloane for the suggestion that Flanagan could kill again if he were not given the
death penalty.
In Collier, 101 Nev. at 478, 705 P.2d at 1128, we held that a prosecutor's references to a
notorious Nevada criminal were improper because they discussed matters not in evidence and
because there was not factual basis to suggest a relationship between the defendant and the
notorious criminal. Here, Scott Sloane had absolutely no connection with the defendants.
Sloane and the defendants were similar in that they were all very young men who committed
heinous crimes.
____________________

1
Sloane's conviction stemmed from the kidnap, rape, and murder of a woman in Las Vegas. Sloane received
a life sentence with the possibility of parole.
The substance of Sloane's testimony was that he had been in detention with co-defendant Luckett for five
months and that Luckett had discussed various details of the crime with him. Prior to this period of incarceration,
Sloane had not known any of the defendants in this case.

2
The comment in its entirety reads:
You never saw in that trial the Scotty Sloane we saw in this stand. He even stood up here in front of
the jury and he pawed at the ground and made the same kind of noises that these fellows have made. And
it worked. That jury gave him life with the possibility of parole for the killing of Nancy Menke.
And until today, I have not criticized that jury and it is not my habit ever to do so. And irrespective of
your verdict, I would never criticize a jury.
But looking at it from the other side of the coin, I think we can guess that the jury didn't have all the
information before it it needed. It was wrong about Scott Sloane.
104 Nev. 105, 111 (1988) Flanagan v. State
men who committed heinous crimes. These similarities, however, do not constitute an open
invitation to the prosecutor to criticize the jury in Sloane's case for giving him life with the
possibility of parole and then urging Flanagan's jury not to make the same mistake. A jury's
decision in a totally different case has nothing whatsoever to do with whether Flanagan
should be sentenced to death. Similarly, a death threat made by Sloane is totally irrelevant
and no indication that Flanagan would ever kill again. Such remarks are patently prejudicial
and serve to divert the focus of the juror's attention.
REFERENCES TO FLANAGAN'S FAILURE TO TESTIFY
[Headnote 7]
The established test for determining whether prosecutorial comment constitutes a
prohibited direct reference to a defendant's failure to testify is whether the language used was
manifestly intended or was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to respond. Deutscher v. State, 95 Nev.
669, 682, 601 P.2d 407, 416 (1979). Here, the prosecutor first made reference to Scott
Sloane's testimony under oath and then argued that these fellows [the defendants] for the
most part, by the way, didn't even do that. Our close examination of this language indicates
that this remark is a direct comment on Flanagan's failure to testify. Next, the prosecutor
stated that [t]hey [the defendants] could or could not take the stand, whatever they wanted.
While we note that this comment is not so direct that the jury would necessarily take it to be a
comment on Flanagan's failure to respond, we find that, when taken in context, this comment
as well, is an impermissible reference to Flanagan's silence. We conclude that the prosecutor's
remarks were a violation of Flanagan's fifth amendment right to remain silent and constitute
reversible error.
REFERENCES REGARDING COMMUNITY STANDARDS
[Headnote 8]
We finally wish to express our strong disapproval of the prosecutor's statement If we
don't punish, then society is going to laugh at us.
3
In Collier, 101 Nev. at 479, 705 P.2d at
1129, this court held that a prosecutor could not blatantly attempt to inflame the jurors by
urging that if they wished to be deemed "moral" and "caring" then they must approach
their duties in anger and give the community what it needs.
____________________

3
The entire remark is as follows:
There is a third reason. Simply to punish. . . . If we don't punish, then society is going to laugh at us. They
are going to say Well, it's just another case of we read all about the stuff about society complaining
about the ills of the world and crimes taking over and they refuse to do anything about it. Well, as has
been said before in this courtroom today, now is your chance.
104 Nev. 105, 112 (1988) Flanagan v. State
court held that a prosecutor could not blatantly attempt to inflame the jurors by urging that if
they wished to be deemed moral and caring then they must approach their duties in anger
and give the community what it needs. We observe that the prosecutor's remark in the instant
case serves no other purpose than to raise the specter of public ridicule and arouse prejudice
against Flanagan.
[Headnote 9]
We are compelled to conclude that the cumulative effect of the prosecutor's extensive
misconduct was of such magnitude as to render Flanagan's sentencing hearing fundamentally
unfair. Given the uncontroverted evidence of guilt, there is simply no justification for such
outrageous behavior. See State v. Cyty, 50 Nev. 256, 256 P. 793 (1927). This case is
remanded for a new penalty hearing.
We have examined Flanagan's other assignments of error and find them to be without
merit.
Young and Springer, JJ., concur.
Gunderson, C. J., and Steffen, J., concurring and dissenting:
We agree that any improprieties which may have occurred during the guilt phase of the
trial were not prejudicial. However, we respectfully dissent from the majority opinion insofar
as it requires a new penalty hearing.
The United States Supreme Court, in United States v. Young, 470 U.S. 1 (1984), declared
that a criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial. Id. at 11. Although prosecutorial misconduct did occur in this case, the remarks did not
deprive Flanagan of a fair trial. Anything the prosecutor said about Flanagan paled in
comparison to the portrait painted by Flanagan himself as he terrorized and murdered his
grandparents. See Wainwright v. Darden, 106 S.Ct. 2464 (1986); Darden v. State, 329 So.2d
287 (Fla. 1976). We are persuaded that the prosecutor said nothing that influenced the jury to
deal more harshly with Flanagan than it would have absent the prosecutor's comments.
Moreover, this court said in Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975):
In State v. Hunter, 48 Nev. 358, 367, 232 P. 778, 781 (1925), this court held that to
entitle a defendant to have improper remarks of counsel considered on appeal,
objections must be made to them at the time, and the court must be required to rule
upon the objection, to admonish counsel, and instruct the jury."
104 Nev. 105, 113 (1988) Flanagan v. State
improper remarks of counsel considered on appeal, objections must be made to them at
the time, and the court must be required to rule upon the objection, to admonish counsel,
and instruct the jury. This requirement was reiterated in State v. Fitch, 65 Nev. 668, 200
P.2d 991 (1948), and more recently in Mears v. State, 83 Nev. 3, 442 P.2d 230 (1967).
No such request was made in the instant case.
Id. at 814, 544 P.2d at 427 (emphasis added).
The rule just mentioned has since been relied upon in cases even more recent than Moser.
See, e.g., Kelso v. State, 95 Nev. 37, 44, 588 P.2d 1035, 1040 (1979); Mercado v. State, 100
Nev. 535, 538, 688 P.2d 305, 307 (1984). Therefore, as stated in Point v. State, 102 Nev. 143,
717 P.2d 38 (1986), we need not consider the issues of misconduct which defendant's counsel
belatedly seeks to raise, since there was no objection at trial that would have alerted the
district court to the necessity of avoiding the possibility of error, 102 Nev. at 147, 717 P.2d
at 42. This rule may not be nullified by any agreement, express or implied, between counsel
even when promoted or endorsed by the trial judge.
____________
104 Nev. 113, 113 (1988) Moore v. State
RANDOLPH MOORE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17900
May 18, 1988 754 P.2d 841
Appeal from judgment of conviction on two counts of murder with use of a deadly
weapon, one count of robbery with use of a deadly weapon, one count of burglary, and three
counts of conspiracy, and from imposition of sentence of death. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted on two counts of murder with use of a deadly weapon, one count
of burglary, and three counts of conspiracy, and from imposition of sentence of death
following a jury trial in the district court. The Supreme Court held that cumulative effect of
prosecutor's misconduct during penalty phase was of such magnitude as to render sentencing
hearing fundamentally unfair, requiring reversal of the sentence and a new penalty hearing.
Affirmed in part; reversed in part.
Gunderson, C.J. and Steffen, J., dissented.
Earl T. Ayers, Las Vegas, for Appellant.
104 Nev. 113, 114 (1988) Moore v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Daniel M. Seaton, Deputy District Attorney, Clark
County, for Respondent.
OPINION
By the Court, Springer, J.:
This is an appeal from a judgment of conviction and the subsequent sentence of death.
Once again we are faced with the problematic issue of prosecutorial misconduct. In support of
his claim of a fundamentally unfair trial, Randolph Moore submits more than twenty alleged
incidents of prosecutorial misconduct occurring at his penalty hearing.
Randolph Moore, Dale Flanagan and two others were jointly tried and subsequently
convicted of the murders of Carl and Colleen Gordon. The underlying facts of this case have
been adequately set forth in our opinion in the case of Flanagan v. State, 104 Nev. 105, 754
P.2d 836 (1988). In addition, a substantial portion of the incidents of prosecutorial
misconduct currently propounded by Randolph Moore have been directly addressed in the
Flanagan opinion. Having meticulously reviewed Moore's claims of misconduct and for the
reasons set forth in Flanagan, we conclude that Moore was indeed denied a fair penalty
hearing.
We have carefully examined Moore's remaining assignments of error concerning the
judgment of conviction and find them to be without merit. However, the cumulative effect of
the prosecutor's extensive misconduct at the penalty hearing is of such magnitude as to render
Moore's penalty hearing fundamentally unfair. Accordingly, we reverse Moore's sentence and
remand this case for a new penalty hearing. In all other respects, we affirm the judgment of
conviction.
Young and Mowbray, JJ., concur.
Gunderson, C.J., and Steffen, J., concurring and dissenting:
We agree that any improprieties which may have occurred during the guilt phase of the
trial were not prejudicial. However, for the reasons set forth in the dissent to Flanagan v.
State, 104 Nev. 105, 754 P.2d 836 (1988), we respectfully dissent from the majority opinion
insofar as it requires a new penalty hearing.
____________
104 Nev. 115, 115 (1988) State Bar of Nevada v. Claiborne
STATE BAR OF NEVADA, Petitioner, v. HARRY
EUGENE CLAIBORNE, Respondent.
No. 17294
May 18, 1988 756 P.2d 464
Original proceedings relating to attorney discipline.
Attorney disciplinary proceeding was brought. The Supreme Court, Steffen, J., held that
no additional discipline would be imposed upon impeached 70-year-old federal judge who
had been convicted of filing false federal tax returns, where serious questions existed
regarding propriety of investigation and trial of judge, and there was evidence of judge's good
character and exemplary professional standing.
Proceedings dismissed.
John Howe, Nevada State Bar Counsel, Las Vegas, for Petitioner.
Oscar B. Goodman, David Goldwater, Las Vegas; John S. Drendel, Reno, for Respondent.
1. Attorney and Client.
In interest of justice, Supreme Court suspended court rule requiring it to order suspension of attorney
upon receipt of certificate of his conviction where attorney was impeached federal judge, who was arguably
beyond Supreme Court's jurisdiction, and attorney had voluntarily refrained from practice of law after his
release from incarceration, pending resolution of disciplinary proceeding. SCR 111.
2. Attorney and Client.
Issue of convicted federal judge's discipline would not be referred to Disciplinary Board for evidentiary
review where State Bar Board of Governors had declined to review record on ground of inadequate
resources, and Disciplinary Board had even less capacity to undertake task. SCR 111.
3. Records.
Record of bar disciplinary proceeding would be opened to public where there was substantial public
interest in case and there had already been public disclosure of portions of record by unknown persons.
SCR 121.
4. Attorney and Client.
Supreme Court has obligation in disciplinary proceeding to look beyond label given to attorney's
conviction to true nature of facts, in order to determine whether underlying circumstances of conviction
warrant discipline. SCR 111, subd. 3.
5. Attorney and Client.
Supreme Court could consider retribution thus far exacted upon convicted attorney, in mitigation of
extent of discipline to be imposed.
6. Attorney and Client.
No additional discipline would be imposed upon impeached 70-year-old federal judge who had been
convicted of filing false federal tax returns, where serious questions existed regarding
propriety of investigation and trial of judge, and there was evidence of judge's good
character and exemplary professional standing; though judge's negligent inattention
to his tax obligations warranted discipline, he had already suffered more retribution
than combined criminal and disciplinary sanctions previously imposed upon any
individual member of Bar convicted of similar tax offenses.
104 Nev. 115, 116 (1988) State Bar of Nevada v. Claiborne
returns, where serious questions existed regarding propriety of investigation and trial of judge, and there
was evidence of judge's good character and exemplary professional standing; though judge's negligent
inattention to his tax obligations warranted discipline, he had already suffered more retribution than
combined criminal and disciplinary sanctions previously imposed upon any individual member of Bar
convicted of similar tax offenses. SCR 111.
OPINION
By the Court, Steffen, J.:
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 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.
104 Nev. 115, 117 (1988) State Bar of Nevada v. Claiborne
TABLE OF CONTENTS
page
I. PROCEDURAL HISTORY..................................................................118
II. PRELIMINARY NOTE........................................................................129
III. THE FACTUAL HISTORY OF RESPONDENT'S CONVICTION AND
EVENTUAL REMOVAL FROM OFFICE..........................................129
A. THE TENSION BETWEEN FEDERAL AGENTS AND THE
NEVADA FEDERAL DISTRICT COURT JUDGES.................... 131
B. ALLEGATIONS OF INVESTIGATORY MISCONDUCT..........135
C. THE FEDERAL GOVERNMENTS'S BARGAIN WITH JOSEPH
CONFORTE.................................................................................... 139
D. THE GRAND JURY INDICTMENT............................................153
E. RESPONDENT'S FIRST TRIAL.................................................... 153
F. THE SECOND TRIAL AND SUBSEQUENT APPELLATE AND
CONGRESSIONAL PROCEEDINGS..........................................169
1. CONCERNS AND CONSEQUENCES OF THE GRAND
JURY INDICTMENT.............................................................. 172
2. EVIDENCE OF RESPONDENT'S WILLFUL AND
KNOWING CONDUCT........................................................ 176
a. THE 1979 RETURN............................................................ 177
b. THE 1980 RETURN............................................................ 183
3. THE JUDICIAL AND CONGRESSIONAL PROCEEDINGS
194
IV. RESPONDENT'S PROFESSIONAL BACKGROUND........................ 205
V. DISCUSSION........................................................................................210
VI. CONCLUSION.................................................................................. 230 I.
104 Nev. 115, 118 (1988) State Bar of Nevada v. Claiborne
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

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.
____________________

1
SCR 111 provides in pertinent part:
(1) Upon the filing with the supreme court of a certificate of conviction demonstrating that an attorney
has been convicted of a serious crime, as defined by this rule . . . the court shall enter an order suspending
the attorney . . . pending final disposition of a disciplinary proceeding, which shall be commenced by the
appropriate disciplinary board upon notice of conviction. For good cause, the court may set aside its
order suspending the attorney from the practice of law.

2
Interestingly, the former President of the State Bar and other members of the Board advised this court,
through its current Chief Justice, that at the above-noted San Diego meeting Bar Counsel succeeded in bringing
the instant disciplinary matter before the Board without the customary notice, and that Bar Counsel acted in
excess of the Board's consensus by moving to suspend respondent. Specifically, the Chief Justice was advised
that it was the consensus of the Board that Bar Counsel should merely notify this court of respondent's
conviction without assuming an adversarial stance in the matter.
Bar Counsel, Michael Barr, subsequently resigned his position as counsel for the State Bar and presently
serves as an assistant United States Attorney in Las Vegas. Although the minutes of the Board's meeting in San
Diego in May of 1986 have never been submitted to this court as part of the formal record in these proceedings,
the State Bar has never clarified or contradicted our recital of the Board's actions at that meeting. In particular,
we note that we made reference to these facts in the memorandum and order directed to the Board on January
26, 1987. In light of the fact that the State Bar has never availed itself of the opportunity to submit any
clarifications or corrections pertaining to our understanding of the Board's consensus at its May,
104 Nev. 115, 119 (1988) State Bar of Nevada v. Claiborne
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
____________________
1986 meeting, we have no reason to doubt the accuracy of the representations made to the Chief Justice in this
regard by the former President of the State Bar and other members of the Board.

3
Specifically, in our order of July 22, 1986, we relied upon the following authorities: In re Watson, 71 Nev.
227, 286 P.2d 254 (1955); Alabama State Bar ex rel. Steiner v. Aderholt, 218 So.2d 149 (Ala. 1969)
Claiborne, [Bar Counsel] (state bar cannot remove or discipline a state court judge where the constitution
provides the exclusive method of removal); State Bar v. Superior Court, 278 P. 432 (Cal. 1929) (judge of court
of record was not, during continuance in office, subject to jurisdiction, control, and processes conferred on state
bar association); Petition of Colorado Bar Association, 325 P.2d 932 (Colo. 1958); In re Meraux, 12 So.2d 798
(La. 1943) (judges are inactive members of the bar and hence are not subject to disciplinary authority of the state
bar association); In re Strahl, 195 N.Y.S. 385 (App. Div. 1922) (court dismissed petition by the bar association
to discipline as an attorney a state court judge reasoning that the right to practice law by one holding such a
judicial office as the respondent is suspended during his incumbency); Chambers v. Central Committee, 224
P.2d 583 (Okla. 1950).
104 Nev. 115, 120 (1988) State Bar of Nevada v. Claiborne
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
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, 307 P.2d 1 (Cal. 1957); In re Hallinan, 272 P.2d 768 (Cal. 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, 19S6, 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 multi-volume 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.
____________________

4
Specifically, this court placed upon respondent's counsel the burden of transmitting:
1. The transcripts of both of respondent's trials in federal court;
2. All briefs filed by the United States and respondent in the United States Court of Appeals for the
Ninth Circuit;
3. The United States' opposition to respondent's petition for a rehearing filed in the Ninth Circuit;
4. File-stamped copies of all pretrial and post-trial motions to dismiss, motions for a judgment of
acquittal or new trial, opposition thereto, and orders resolving those motions, pertinent to the second trial;
5. File-stamped copies of all motions for judicial recusal, opposition thereto, and any pleadings or
other documents relevant to the issue of whether the federal district court judge conducted the trials in a
biased or prejudicial manner;
6. Any other relevant documentation tendered or filed in the criminal proceedings addressing the
issue of misconduct of government agents and prosecutorial abuse prior to and during trial; and
7. Transcripts of the hearings conducted on the motions described above.
104 Nev. 115, 121 (1988) State Bar of Nevada v. Claiborne
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 multi-volume 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
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."
____________________

5
The record in this proceeding is divided into four parts. Part I is comprised of the pleadings filed in the
United States District Court for the District of Nevada. Parts II and III consist of the transcript of respondent's
first trial and the transcript of his second trial, respectively. Part IV contains the pleadings filed in the United
States Court of Appeals for the Ninth Circuit and in the United States Supreme Court. References to the record
are hereinafter referred to as Rec. Pt. .., Vol. .. at ...

6
We note in this regard that the extensive record in this matter has been readily available for review by the
State Bar throughout a major part of these proceedings. Present Bar Counsel, John Howe, acknowledged at the
hearing of November 24, 1987, that respondent's counsel, Oscar Goodman, had supplied the State Bar, through
service upon Mr. Howe's predecessor, with a copy of the complete record which Mr. Goodman transmitted to
this court. Further, at the hearing of November 24, 1987, Mr. Howe indicated that he had received no
instructions from the Board directing him to review that record, and that he was, quite understandably, not
familiar with the underlying charges and proceedings resulting in respondent's conviction.

7
Specifically, we requested the Board to file a memorandum advising this court:
(1) Whether the facts stated in the memorandum prepared by this Court's Central Legal Staff . . . are
perceived to be inaccurate or incomplete in any material particulars which might reasonably affect this
Court's judgment herein; and
(2) If so, what further facts in the record should be considered, or what further evidence should be
received, relating to the questions of whether, and to what extent, further disciplinary action is warranted
as to Harry E. Claiborne.
See Docket No. 17294, order filed January 26, 1987.
104 Nev. 115, 122 (1988) State Bar of Nevada v. Claiborne
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
____________________

8
We note that the inquiry before this court does not include a question of full faith and credit as suggested
by the Board. See U.S. Const. art. IV, 1. Instead, the question before this court is whether, based on all the
circumstances, professional discipline should be imposed. See Sloan v. State Bar, 102 Nev. 436, 440, 726 P.2d
330, 333 (1986); In re Kristovich, 556 P.2d 771, 773 (Cal. 1976) (court may look at the enormous task of
reviewing the record whole course of attorney's conduct which reflects on his fitness to practice law).
104 Nev. 115, 123 (1988) State Bar of Nevada v. Claiborne
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 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, 521 P.2d 711, 715 (Wash.
1974); 21 C.J.S. Courts 178 (1940); 20 Am.Jur.2d Courts 79, 85 (1965). See also State
v. Lemme, 244 A.2d 585, 589 (R.I. 1968); Norton v. Standard Coosa-Thatcher Company, 315
S.W.2d 245, 249 (Tenn. 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.
[Headnote 1]
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.
____________________

9
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at
105-06. We note in this regard that in July of 1986, respondent's counsel asserted that proceedings before a
disciplinary panel of the state bar during the period of respondent's incarceration would deprive respondent of
due process of law. See Respondent's Points and Authorities, Docket No. 17294, filed July 9, 1986, at 22-26. In
particular, his counsel argued that respondent's right to be heard would be significantly
104 Nev. 115, 124 (1988) State Bar of Nevada v. Claiborne
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

[Headnote 2]
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.
____________________
endangered because, due to his incarceration, respondent would be unable personally to attend such a hearing
and to articulate his own defense.
This court has previously observed:
The Supreme Court has emphasized that due process is flexible and calls for such procedural
protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). To
determine appropriate procedure, we must consider: (1) the private interest affected; (2) the risk of
erroneous deprivation by the procedures used; and (3) the government interest to be protected in light of
the fiscal and administrative burdens imposed by additional procedural safeguards. Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
See Burleigh v. State Bar of Nevada, 98 Nev. 140, 145, 643 P.2d 1201, 1204 (1982). Unquestionably,
respondent's right to practice law is a valuable property right and private interest that cannot be deprived without
due process of law. Id. Because respondent was either unable to practice or voluntarily refrained from the private
practice of law prior to our order of November 25, 1987, there existed minimal danger to the public interest.

10
In a somewhat analogous context, this court has previously expressed the policy that it will exercise its
inherent authority over matters concerning the bar to provide relief from a rule where the rule operates arbitrarily
and effects a result unrelated to its essential purpose. See In re Nort, 96 Nev. 85, 96, 605 P.2d 627, 635 (1980);
see also Bennet v. State Bar, 103 Nev. 519, 746 P.2d 143 (1987).
104 Nev. 115, 125 (1988) State Bar of Nevada v. Claiborne
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.
104 Nev. 115, 126 (1988) State Bar of Nevada v. Claiborne
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
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, 696 P.2d 83 (Cal. 1985); Matter of Nelson, 549 P.2d 21 (Wash. 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 fact-finding 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.
____________________

11
2 Corinthians 3:6 (King James).

12
We note that at the hearing of November 24, 1987, Bar Counsel articulated his position that if this court
had enough information to decide whether discipline is warranted, he would not quarrel with a deviation from
the strict dictates of SCR 111. Specifically, we cite the following exchange from the transcript of that hearing:
JUSTICE STEFFEN: Mr. Howe, so it remains your position that this
104 Nev. 115, 127 (1988) State Bar of Nevada v. Claiborne
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
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.
____________________
matter should continue to be protracted and that there should be a discipline commission hearing?
In spite of all that's been known on this matter over these months and years, you feel that there would
be something to be gained by involving the discipline committee procedure to hear the matter further?
MR. HOWE: Well, certainly, I can understand the problem involved in protracting it and extending it,
and certainly that is something that is a disadvantage. And if this court decides that that's its decision, that
it has enough information and can decide the issue, then I wouldn't quarrel with that.
But I do think
CHIEF JUSTICE GUNDERSON: You would not quarrel with that?
MR. HOWE: I would not quarrel with that. But I do think, and the reason why I'm advocating following
the system and referring it to the disciplinary board, is that I think the integrity of our system is important.
And I think it's important that this case be handled as any other case would be handled which, under the
rules, would be to refer it to the disciplinary board and get their findings and recommendations before the
court considers it.
Now, it may be that there's special circumstances that the court, you know, feels because of the
protracted nature that you want to dispense with that.
As I said, I wouldn't quarrel with that, but that's the reason for my recommendation that that's the way
the matter should be handled.
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at 95-96.
See also 95 Reports of American Bar Association 783, 826-34 (1971) (Report of the Special Committee on
Evaluation of Disciplinary Enforcement, addressing the importance of the prompt disposition of disciplinary
proceedings).

13
Our order indicated that Bar Counsel's discussion should focus on, but need not be limited to, the following
questions regarding bar disciplinary proceedings which appeared to bear on respondent's position:
1. Under established Nevada practice, what are the goals of bar disciplinary proceedings?
2. In determining whether further disciplinary sanctions should be imposed by this Court following
conviction for a criminal offense, is it appropriate for this Court under established Nevada practice to
look beyond the fact of the conviction to determine whether the underlying circumstances of such
conviction warrant further discipline?
3. In determining whether the imposition of further discipline is justified, is it appropriate under
Nevada practice for this Court to consider whether the alleged conduct that resulted in the conviction is
isolated or atypical in character, as well as to consider evidence of the attorney's good character,
reputation, contributions to the legal profes-
104 Nev. 115, 128 (1988) State Bar of Nevada v. Claiborne
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

[Headnote 3]
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.
____________________
sion, and professional standing in the legal community over the course of his or her career?
4. In determining whether the imposition of further discipline is justified, is it appropriate for this
Court under Nevada practice to consider the retribution already exacted from the attorney as a result of
his or her conviction?

14
Since 1976, the constitution of this state has vested this court with the authority to conduct proceedings
anywhere within the State of Nevada. See Nev. Const. art. 6, 7. This court has frequently availed itself of the
opportunity to do so in an effort to afford the citizens of Southern Nevada fair and convenient access to the
appellate process. Numerous factors convinced us that the Las Vegas area was the most appropriate venue for
this proceeding. Specifically, these proceedings primarily related to an individual from Southern Nevada, who
was seeking to affirm his right to practice law primarily in that area of the state. Bar Counsel lives and maintains
his office in Las Vegas. The most intense public interest in this matter appeared to be focused in Southern
Nevada, where respondent has been a prominent member of the community since 1945. Respondent's two
counsel live and work in Las Vegas, and we had been informed that a majority of the individuals who might
appear before us also maintain their residences and offices in Southern Nevada. Several of these individuals are
elder members of the bar and one in particular, who has since passed away, was 90 years old at the time of the
hearing. Thus, taking into account the public's right to know, the convenience of the parties, the court, and those
who might appear before us, this court determined that Las Vegas was the most appropriate setting for the
hearing.
104 Nev. 115, 129 (1988) State Bar of Nevada v. Claiborne
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.
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 19S3 by a federal grand
jury in Reno, Nevada, following an extensive investigation of his activities by four
separate grand juries.
104 Nev. 115, 130 (1988) State Bar of Nevada v. Claiborne
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, 659 P.2d 1137 (Cal.
1983); In re Hallinan, 272 P.2d 768 (Cal. 1954); In re Walker, 364 N.E.2d 76 (Ill. 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.
____________________

15
Rec. Pt. I, Vol. III, Pleadings Nos. 26, 27 at 314-15; Rec. Pt. I, Vol. IV, Pleading No. 28 (transcripts of
hearings on pretrial motions); Rec. Pt. I, Vol. IV, Pleading No. 37 (orders respecting pretrial motions); Report of
the Senate Impeachment Trial Comm.: Hearings Before the Senate Impeachment Trial Comm. on the
Impeachment of Harry E. Claiborne, Judge of the U.S. Dist. Ct. for the Dist. of Nevada, of High Crimes and
Misdemeanors, 99th Cong., 2nd Sess. 812, Pt. 1 at 108, 690, 876, 1181 (1986) (rulings of Chairman Mathias
respecting scope of the impeachment committee's inquiry) [hereinafter cited as Senate Hearings].
104 Nev. 115, 131 (1988) State Bar of Nevada v. Claiborne
mitigation of respondent's conduct. See Sloan v. State Bar, supra; In re Cochrane, supra; see
also Murray v. State Bar of California, 709 P.2d 480 (Cal. 1985); In re Kristovich, 556 P.2d
771 (Cal. 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 the 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 (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.
____________________

16
Rec. Pt. II, Vol. XIII at 3036-37, 3091.
104 Nev. 115, 132 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________

17
Nomination of William H. Webster: Hearings Before the Sen. Select Comm. on Intelligence on the
Nomination of William H. Webster, to be Director of Central Intelligence, 100th Cong., 1st Sess. 276, 93 (1987)
(testimony of W. H. Webster) [hereinafter cited as Webster Nomination].

18
Senate Hearings, supra note 15, Pt. 1 at 930 (testimony of H. E. Claiborne).

19
Senate Hearings, supra note 15, Pt. 1 at 843-44 (testimony of H. M. Greenspun).

20
Rec. Pt. I, Vol. IV, Pleading 33, Ex. B at 10.

21
Id.; Senate Hearings, supra note 15, Pt. 4 at 2307-16 (series of newspaper articles respecting strike force).

22
Senate Hearings, supra note 15, Pt. 1 at 930-31 (testimony of H. E. Claiborne); Respondent's Synopsis of
Acts of Governmental Misconduct, at 1 (filed in this court on August 29, 1986); Rec. Pt. I, Vol. I, Pleading No.
6 at 6.
104 Nev. 115, 133 (1988) State Bar of Nevada v. Claiborne
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 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
____________________

23
Senate Hearings, supra note 15, Pt. 1 at 930-31 (testimony of H. E. Claiborne); Respondent's Synopsis of
Acts of Governmental Misconduct, at 1, Docket No. 17294, filed August 29, 1986. See also Rec. Pt. I, Vol. I,
Pleading No. 6 at 35.

24
Senate Hearings, supra note 15, Pt. 1 at 931 (testimony of H. E. Claiborne).

25
Photocopies of this material appear in Rec. Pt. I, Vol. I, Pleading No. 6 at 30-31; Senate Hearings, supra
note 15, Pt. 1 at 931; see also United States v. Claiborne, 781 F.2d 1327, 1328 (9th Cir. 1986) (Reinhardt, J.,
dissenting).

26
See United States v. Claiborne, 781 F.2d at 1328.
104 Nev. 115, 134 (1988) State Bar of Nevada v. Claiborne
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.
____________________

27
Rec. Pt. I, Vol. I, Pleading No. 6 at 23, 34, 44 and 57.

28
United States v. Claiborne, 781 F.2d 1327 (9th Cir. 1986) (Reinhardt, J., dissenting); Senate Hearings,
supra note 15, Pt. 1 at 930 (Claiborne testimony). Respondent's testimony in explanation of some of his rulings
adverse to the government is set forth in the Senate Hearings, supra note 15, Pt. 1 at 966-69. Respondent
explained, for example, that in one such case he directed the acquittal of a coin-wrapper employed by a local
casino, who was indicted by a grand jury, following a strike force investigation, for making false statements on
his income tax return respecting the sale of his automobile. Respondent explained that he felt the only reason the
individual was prosecuted was to justify the expenditure of strike force resources in an otherwise fruitless
investigation of a casino.

29
Rec. Pt. I, Vol. I, Pleading No. 6 at 6, 7.

30
Rec. Pt. I, Vol. I, Pleading No. 6 at 23; Senate hearings, supra note 15, Pt. 1 at 887-88 (testimony of R.
Jesinger).
104 Nev. 115, 135 (1988) State Bar of Nevada v. Claiborne
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

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.
____________________

31
Rec. Pt. I, Vol. I, Pleading No. 6 at 6; Senate Hearings, supra note 15, Pt. 1 at 1139-40 (in response to a
question from Senator Heflin, respondent stated that the newspaper's report of his remarks was absolutely
correct and absolutely true). Throughout this opinion, we will from time to time refer to media accounts
respecting the many facets of this case. We consider the extensive media attention devoted to this matter over the
last ten years to be relevant to our consideration and review in several respects. In particular, it is relevant to the
public's perception of Mr. Claiborne, his reputation, his professional standing, and the obloquy and scorn to
which he has been subjected as a result of the proceedings in which he has been involved. We wish to make it
clear, however, that no factual findings or references of this court have been based upon media coverage of these
events. Unless otherwise indicated, any factual recitations appearing in the media accounts cited herein have
been verified by our independent research and review of the record in this matter.

32
Rec. Pt. I, Vol. I, Pleading No. 6 at 37, 39; Senate Hearings, supra note 15, Pt. 1 at 931.

33
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Charles Lee).
104 Nev. 115, 136 (1988) State Bar of Nevada v. Claiborne
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 of installing illegal
listening devices.3S These charges were unrelated to the previous allegations involving
respondent.
____________________

34
Id. (affidavit of Charles Lee).

35
Id. (affidavit of Charles Lee).

36
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Michael Stuhff).

37
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavits of Charles Lee and Michael Stuhff); Respondent's
Compendium, Docket No. 17294, filed September 2, 1986 (Pretrial Motion to Dismiss: First TrialGrand Jury
Abuse, at 70).
104 Nev. 115, 137 (1988) State Bar of Nevada v. Claiborne
ing 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.
____________________

38
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Eddie LaRue); see also United States v. LaRue, Case
No. CR-LV-80-109 AJA, United States District Court for the District of Nevada.

39
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Eddie LaRue). We note that our reliance upon affidavits
submitted to the United States District Court in respondent's criminal proceedings is necessary because in his
criminal and impeachment proceedings, respondent was denied an opportunity to pursue and develop more
extensive evidentiary support respecting his allegations of investigative overreaching. See note 15, supra.

40
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Eddie LaRue).
104 Nev. 115, 138 (1988) State Bar of Nevada v. Claiborne
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 this 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 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, 19S1 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.
____________________

41
Rec. Pt. I, Vol. II, Pleading No. 8 (Exhibit B).

42
Id.

43
Rec. Pt. I, Vol. II, Pleading No. 8.

44
Rec. Pt. I, Vol. II, Pleading No. 8 (affidavit of Judge Thomas O'Donnell).

45
Apparently, the presentence report on Gallo recommended an eight-month split sentence of four months in
jail and four months on probation. Respondent apparently concluded, however, that a fine of $25,000 and two
years on probation would have a greater impact upon Gallo than a short term in county jail and would hit Mr.
Gallo where it would hurtin the pocketbook. Rec. Pt. I, Vol. II, Pleading No. 8 (affidavits of Judge O'Donnell
and Judge Claiborne). See generally United States v. Gallo, 659 F.2d 110 (9th Cir. 1981).
104 Nev. 115, 139 (1988) State Bar of Nevada v. Claiborne
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, 1328-29 (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.
____________________

46
Rec. Pt. I, Vol. II, Pleading No. 8.

47
Rec. Pt. I, Vol. III, Pleading Nos. 26, 27; Rec. Pt. I, Vol. IV, Pleading No. 28 (transcripts of hearings on
pretrial motions); Rec. Pt. I, Vol. IV, Pleading No. 37 (orders respecting pretrial motions); Senate Hearings,
supra note 15, Pt. 1 at 108, 690, 876, 1181 (rulings of Chairman Mathias respecting scope of the impeachment
committee's inquiry).

48
Rec. Pt. I, Vol. V, Pleading No. 47 at 4-6, and note 6.

49
Rec. Pt. I, Vol. I, Pleading No. 1.
104 Nev. 115, 140 (1988) State Bar of Nevada v. Claiborne
ment'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.
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 (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.
____________________

50
Gazette-Journal Writers Win Pulitzer Prize, Nevada State Journal, April 19, 1977.

51
Id.
104 Nev. 115, 141 (1988) State Bar of Nevada v. Claiborne
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. 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
(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 (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.
____________________

52
Rec. Pt. II, Vol. IV at 792; Rec. Pt. II, Vol. XII at 3013.

53
State v. Conforte, Case No. C79-1045, Second Jud. Dist. Ct., Washoe Co. (indictment filed July 2, 1979).

54
The federal district court sentenced Conforte to five years in prison on each of the four counts, the terms to
run consecutively for a total of twenty years. In addition, Conforte 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. See United States v. Conforte, 457 F. Supp. at 647.
104 Nev. 115, 142 (1988) State Bar of Nevada v. Claiborne
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."
____________________

55
Rec. Pt. II, Vol. IV at 710; United States v. Conforte, Case No. CR-R-77-00024 JLS, United States District
Court for the District of Nevada.

56
Id. at 713.

57
Id. at 712.

58
Conforte Life Term is Sought, Reno Evening Gazette, September 15, 1980. A review of the district court
file in State v. Conforte, No. C79-1045, Second Jud. Dist. Ct., Washoe Co., reveals that a supplemental
information alleging habitual criminal enhancement was filed in the district court on February 26, 1982.

59
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. G.

60
State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist. Ct., Washoe Co.
104 Nev. 115, 143 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________

61
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. A at 9.

62
Id. at 11. See also Conforte v. U.S., 1980-1 U.S. Tax Cas. (CCH) para. 9159 (D. Nev. 1980) (court
determined that imposition of jeopardy assessments was justified and amount of assessments was reasonable).

63
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. A at 15. Swanson also indicated, however, that $26 million
overstated the Confortes' tax liability due to duplicative assessments. Id. at 31. See also In re Conforte, Case No.
82-966, United States Bankruptcy Court for the District of Nevada (disclosure statements).

64
DeBonavena v. Conforte, Case No. CV-R-77-81 ECR, United States District Court for the District of
Nevada (filed May 18, 1977).

65
Baliotis v. Del Carlo, et al., Case No. CV-R-79-281, United States District Court for the District of Nevada
(filed December 18, 1979).

66
Rec. Pt. II, Vol. IV at 714-15; see Treaty of Extradition Between the United States of America and the
United States of Brazil, Jan. 13, 1961, 15 U.S.T. 2093, T.I.A.S. No. 5691.
104 Nev. 115, 144 (1988) State Bar of Nevada v. Claiborne
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 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, 19S0, Yablonsky instructed Camillo to
take "one last shot" at Conforte due to Conforte's "frame of mind."
____________________

67
Rec. Pt. II, Vol. IV at 898, Pt. II, Vol. V at 933.

68
Rec. Pt. II, Vol. IV at 925.

69
Rec. Pt. II, Vol. IV at 899.

70
Rec. Pt. II, Vol. IV at 925-26.

71
Rec. Pt. II, Vol. IV at 897.

72
Rec. Pt. I, Vol. I, Pleading No. 6 at 93; Respondent's Compendium, Docket No. 17294, filed Sept. 2, 1986
(Letter Outlining Governmental Misconduct).

73
Respondent's Synopsis of Acts of Governmental Misconduct, Docket No. 17294, filed Aug. 29, 1986, at
11.

74
Id. at 11, 14.
104 Nev. 115, 145 (1988) State Bar of Nevada v. Claiborne
viction 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.
____________________

75
Id. at 11.

76
Respondent's Compendium, Docket No. 17294, filed Sept. 2, 1986 (Letter Outlining Governmental
Misconduct); see also Rec. Pt. I, Vol. I, Pleading No. 6 at 68.

77
Rec. Pt. I, Vol. III, Pleading No. 27 at 287-88, 291.

78
Webster Nomination, supra note 17, at 150-51 (testimony of W. H. Webster). Director Webster stated that
this sanction was a very severe action for a career agent such as Yablonsky.

79
See Rec. Pt. I, Vol. I, Pleading No. 6 at 68. We observe that no information impugning McKay's integrity
was ever disclosed by Yablonsky's inquiries.
104 Nev. 115, 146 (1988) State Bar of Nevada v. Claiborne
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 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.S6 Additionally, the negotiations involved a demand that Conforte's overall
tax liability be settled for approximately three and one-half million dollars.S7
____________________

80
Yablonsky Given Probation, Las Vegas Sun, July 2, 1983; FBI Censures Yablonsky for McKay Inquiry,
Las Vegas Review-Journal, July 2, 1983; Nevada AG: Time to Go, Joe' Yablonsky's Credibility Seen Nearly
Destroyed, Las Vegas Sun, March 27, 1983.

81
Webster Nomination, supra note 17, at 117.

82
Federal Jury Ends Yablonsky Probe, Las Vegas Review-Journal, April 21, 1985. See Webster Nomination,
supra note 17, at 116-17, 152.

83
Rec. Pt. II, Vol. IV at 717-18.

84
Rec. Pt. II, Vol. IV at 913.

85
Rec. Pt. II, Vol. IV at 719-26; State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist.
Ct., Washoe Co. (transcript of hearing on change of plea at 17, filed Jan. 11, 1984).
104 Nev. 115, 147 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________

86
Rec. Pt. II, Vol. IV at 919.

87
Rec. Pt. II, Vol. V at 1004.

88
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. B at 7.

89
Id.

90
Id. at 8.

91
Id.

92
Id. at 8-9.
104 Nev. 115, 148 (1988) State Bar of Nevada v. Claiborne
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
____________________

93
Webster Nomination, supra note 17, at 240-41 (appendix).

94
Sting Snares Conforte Foes, Las Vegas Sun, October 10, 1982; Fed Bid to Frame IRS Boss Fizzles, Las
Vegas Sun, October 11, 1982.

95
Rec. Pt. I, Vol. II, Pleading No. 9; Pt. I, Vol. IV, Pleading No. 31, Exhibits A and B; Confortescam':
behind-the-Scenes Peek, Reno Gazette-Journal, July 15, 1984.

96
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. B at 10.
104 Nev. 115, 149 (1988) State Bar of Nevada v. Claiborne
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 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;
____________________

97
Rec. Pt. I, Vol. I, Pleading No. 6 at 75.

98
U.S. v. Lemberes, Case No. 82-00034 EBH, United States District Court for the District of Nevada; Rec.
Pt. I, Vol. II, Pleading No. 9; Pt. I, Vol. I, Pleading No. 6; Confortescam: behind-the-Scenes Peek, Reno
Gazette-Journal, July 15, 1984. See also Webster Nomination, supra note 17, at 241 (appendix).

99
Webster Nomination, supra note 17, at 241 (appendix).
104 Nev. 115, 150 (1988) State Bar of Nevada v. Claiborne
(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 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.
____________________

100
Respondent's compendium, Docket No. 17294, filed Sept. 2, 1986 (Conforte Plea Agreement); Rec. Pt. II,
Vol. IV at 730-35; see also Webster Nomination, supra note 17, at 239-40 (appendix).

101
State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist. Ct., Washoe Co. (transcript of
hearing on change of plea filed Jan. 11, 1984).

102
Id. (transcript of hearing on change of plea filed Jan. 11, 1984, at 31-33) (judgment filed December 9,
1983).

103
Rec. Pt. II, Vol. IV at 734; Respondent's Compendium, Docket No. 17294, filed Sept. 2, 1986 (Conforte
Plea Agreement) (Dismissal of Conforte Indictment).

104
U.S. v. Conforte, Case No. CR-R-77-00024 JLS, United States District Court for the District of Nevada
(designation filed Oct. 4, 1982).
104 Nev. 115, 151 (1988) State Bar of Nevada v. Claiborne
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 (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.
____________________

105
U.S. v. Conforte, Case No. CR-R-77-00024 JLS, United States District Court for the District of Nevada;
see Rec. Pt. I, Vol. IV, Pleading 33, Exhibit F.

106
In United States v. Claiborne, 765 F.2d 784, 792 n. 2 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986),
the appellate panel which affirmed Judge Claiborne's conviction cited the case of United States v. Smith, 650
F.2d 206 (9th Cir. 1981), in rejecting Judge Claiborne's assertion that Conforte's sentence was illegally reduced.
Our reading of the Smith case reveals little if any support for the legality of the reduction of Conforte's sentence.
In Smith, the court acknowledged that a district court had some flexibility to retain jurisdiction over timely
motions for reduction of sentence for a reasonable time after the expiration of the 120-day time limit. Id. at
208-09. We would question whether Conforte's reduction of sentence occurred within a reasonable time.
Moreover, as noted, Judge Reed had already denied Conforte's initial motion to reduce his sentence. It may well
be, however, that the appellate panel properly concluded that Judge Claiborne lacked standing to raise the issue.
104 Nev. 115, 152 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________

107
Respondent's Compendium, Docket No. 17294 filed Sept. 2, 1986 (Conforte Plea Agreement); Rec. Pt. II,
Vol. IV at 730-35; see also Webster Nomination, supra note 17, at 239-40 (appendix).

108
Rec. Pt. II, Vol. V at 1002, 1005. Conforte's testimony in this regard finds some support in pleadings
which comprise the public record in Chapter 11 Bankruptcy proceedings involving the Confortes' assets. On
February 15, 1984, for example, the IRS and the Confortes entered into a stipulation wherein the IRS withdrew
its objections to a proposed bankruptcy reorganization plan and set forth secured claims against the Confortes
totaling approximately $18,446,530.47. The IRS also stated therein that its unsecured priority claims totaled
approximately $653,614.08. A document dated November 17, 1984, entitled Debtors Opposition to the
Government's Motion to Convert to a Chapter 7 Proceeding or In the Alternative to Dismiss, states that
negotiations had reduced a $25,000,000 lien against the Confortes' assets to $7,300,000. It is entirely possible,
therefore, that Conforte may have testified credibly on this point. See In re Sally Conforte, Case No. 82-966,
United States Bankruptcy Court for the District of Nevada (Petition for Relief Under Chap. 11 filed Nov. 26,
1982).
104 Nev. 115, 153 (1988) State Bar of Nevada v. Claiborne
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 abortive first trial,
the Conforte foundation was later excised leaving the Conforte-generated, but now
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.
104 Nev. 115, 154 (1988) State Bar of Nevada v. Claiborne
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.
____________________

109
Rec. Pt. I, Vol. I, Pleading No. 1. Essentially, the indictment alleged that while serving as a federal judge:
(1) Respondent solicited and accepted a bribe from Joseph Conforte in return for being influenced in
his performance of an official act. . . in violation of 18 U.S.C. 201(c). (Count I)
(2) Respondent violated the provisions of 18 U.S.C. 1343 by devising and executing a scheme to
defraud and obtain money from Conforte and by utilizing an interstate telephonic communication in the
execution of that fraudulent scheme. (Count II)
(3) Respondent attempted to persuade a witness subpoenaed to testify before a Portland, Oregon
grand jury to give false testimony in violation of 18 U.S.C. 1503. (Count III)
(4) Respondent, under penalties of perjury, signed income tax returns for the years 1978, 1979, and
1980 which he knew were not true and correct as to every material particular in violation of 26 U.S.C.
7206(1). (Counts IV, V, VI)
(5) Respondent willfully and knowingly filed a false financial disclosure statement for the year 1978
to the Judicial Ethics Committee in violation of 18 U.S.C. 1001. (Count VII)
Count IV involved Conforte in that the government alleged that, among other income, in 1978 respondent
failed to report the monies he allegedly received in bribes from Conforte.

110
Rec. Pt. IV, Vol. III, Pleading No. 32 at 3.

111
Id.

112
Rec. Pt. IV, Vol. III, Pleading No. 32 (minutes of first trial); and see, e.g., Motion to Dismiss Indictment
for Selective Prosecution, Rec. Pt. I, Vol. II, Pleading No. 8; Motion to Dismiss for Grand Jury Abuse and to
Discover Grand Jury Materials and for Evidentiary Hearing, id., Pleading No. 9; Motion to File Supplemental
Memorandum and Evidentiary Proffer on Motion to Quash Indictment, id., Pleading No. 17.
104 Nev. 115, 155 (1988) State Bar of Nevada v. Claiborne
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 rulings 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 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 perspective 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 as 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?
____________________

113
Rec. Pt. I, Vol. III, Pleading Nos. 26, 27; Rec. Pt. I, Vol. IV, Pleading No. 28 (transcripts of pretrial
hearings of January 9, 10 and 11, 1984); Rec. Pt. I, Vol. IV, Pleading No. 37 (order respecting various motions,
filed February 17, 1984).

114
132 Cong. Rec. S15779 (daily ed. Oct. 9, 1986) (statement of Senator Pryor).
104 Nev. 115, 156 (1988) State Bar of Nevada v. Claiborne
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 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.
104 Nev. 115, 157 (1988) State Bar of Nevada v. Claiborne
ing 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 (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 (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.
104 Nev. 115, 158 (1988) State Bar of Nevada v. Claiborne
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, 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 (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.
____________________

115
Rec. Pt. I, Vol. I, Pleading No. 1.

116
Rec. Pt. I, Vol. VI, Pleading No. 63 at 10, citing Conforte testimony in Rec. Pt. II, Vol. IV at 823-24.
104 Nev. 115, 159 (1988) State Bar of Nevada v. Claiborne
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

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
____________________

117
Rec. Pt. II, Vol. III at 587.

118
Id. at 587, 590-91.

119
Rec. Pt. II, Vol. III at 592-94; Rec. Pt. II, Vol. IV at 837-38.

120
Rec. Pt. II, Vol. III at 593, 596-97. Subpoenas had been issued in the fall of 1978 to two of Conforte's
employees in a federal voting fraud investigation probing Conforte's voter registration efforts in Storey County,
Nevada. See Rec. Pt. II, Vol. III at 576. Conforte hired counsel for the two subpoenaed employees who filed
motions in federal court to quash the issuance of the subpoenas. Id. at 579-80.

121
Rec. Pt. II, Vol. III at 597-98.

122
Rec. Pt. II, Vol. III at 604-09. At the trial, under cross-examination by respondent's counsel, Conforte
hedged somewhat as to whether he actually withdrew money from his safe deposit box at Nevada National Bank
on the date in question. He acknowledged, however, that he had told the grand jury that he did in fact do so. Rec.
Pt. II, Vol. IV at 845.
104 Nev. 115, 160 (1988) State Bar of Nevada v. Claiborne
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 197S 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.
____________________

123
Rec. Pt. II, Vol. III at 614-15.

124
Rec. Pt. II, Vol. XI at 2756-82; Rec. Pt. I, Vol. VI, Pleading No. 63 at 8.

125
Id. at 2780.

126
Rec. Pt. II, Vol. IV at 884-85.

127
Rec. Pt. II, Vol. VI at 1376-77.

128
Rec. Pt. II, Vol. II at 1375-76.

129
Rec. Pt. II, Vol. VI at 1370; Rec. Pt. I, Vol. VI, Pleading No. 63 at 11. We note in this regard that
Conforte's assertion that he would sometimes enter his safe deposit box without signing the entry record is belied
by the
104 Nev. 115, 161 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________
testimony of the bank operations officer. Specifically, the officer testified that if a bank employee had allowed
someone to enter a safe deposit box without signing in properly, the bank would have dismissed that employee
and since officers of the bank always sit towards the back of the bank, in the safe deposit area, she was sure if
someone had gone in without signing, we would be aware of it. See Rec. Pt. II, Vol. VI at 1378. We further
observe that although this particular bank operations officer was not stationed at the Sparks branch on the exact
date in question, she had been employed by Nevada National Bank since 1975 and testified that the safe deposit
entry procedures were the same for all of our offices. Id. at 1377.

130
Rec. Pt. II, Vol. X at 2336.

131
Rec. Pt. II, Vol. X at 2357.

132
It is noteworthy that in spite of the fact that Conforte's agreement with the government was predicated
upon Conforte giving truthful testimony, and in spite of the considerable evidence that he failed to do so, the
government fulfilled all its obligations under its agreement with Conforte and, thus far, has declined to prosecute
Conforte for perjury.
104 Nev. 115, 162 (1988) State Bar of Nevada v. Claiborne
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, 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.,
____________________

133
Rec. Pt. II, Vol. X at 2498-99.

134
Rec. Pt. II, Vol. X at 2503.

135
Rec. Pt. I, Vol. VI, Pleading No. 63 at 13.

136
Rec. Pt. I, Vol. II, Pleading No. 18 at 2.

137
Rec. Pt. I, Vol. IV, Pleading No. 39.
104 Nev. 115, 163 (1988) State Bar of Nevada v. Claiborne
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, 197S.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.
____________________

138
Rec. Pt. II, Vol. XII at 2856-59.

139
Rec. Pt. I, Vol. IV, Pleading No. 39 and No. 43 at 5.

140
Rec. Pt. I, Vol. IV, Pleading No. 40.

141
Id.

142
Rec. Pt. I, Vol. IV, Pleading No. 42.

143
Rec. Pt. I, Vol. IV, Pleading No. 43 at 4-5.
104 Nev. 115, 164 (1988) State Bar of Nevada v. Claiborne
paring 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 last-minute 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 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
____________________

144
Id. at 8.

145
Id. at 15.

146
Id. at 21-28.

147
Id. at 28. We note in this regard that the actual trial commenced on March 15, 1984, three days after the
above-referenced hearing. In the opening remarks to the jury on the first day of trial, the prosecution summarized
the Conforte bribery scenario and indicated that it took place some time after the 10th of December. The week
after the 10th of December. See Rec. Pt. II, Vol. I at 13.

148
Rec. Pt. I, Vol. IV, Pleading No. 43 at 28.
104 Nev. 115, 165 (1988) State Bar of Nevada v. Claiborne
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 scenario 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 (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 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, 197S,
because, as the United States State Department official unequivocally confirmed, on
December 12, 197S, Conforte was in fact in New York City picking up his passport.
____________________

149
Rec. Pt. II, Vol. XVI at 3780 (court declared a mistrial as to all counts in first trial); Rec. Pt. I, Vol. VI,
Pleading No. 58 (government's motion to dismiss all but counts V, VI, and VII for purposes of second trial).

150
It is important to note that Conforte's testimony that he paid respondent a second bribe in March of 1979,
in Portland, Oregon, was also discredited during the course of the first trial. See Rec. Pt. II, Vol. XII at 2973-98;
Rec. Pt. II, Vol. XIV at 3394 (testimony of Ben and Susan Johnson, and Clyde R. Maxwell contradicting
Conforte's scenario that he only met with respondent in an underground garage while in Portland and indicating
that Conforte was seen with respondent in the hallway of the federal courthouse); see also Rec. Pt. II, Vol. III at
635-47; Pt II, Vol. IV at 868 (setting forth Conforte's version of the Portland bribery scenario).

151
Rec. Pt. II, Vol. IX at 2142-55 (transcript of proceedings of March 27, 1984, on defense motion for order
directing the issuance of subpoena duces tecum).

152
Rec. Pt. II, Vol. XII at 2834.

153
Id. at 2846.
104 Nev. 115, 166 (1988) State Bar of Nevada v. Claiborne
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 7S4, S00 {9th Cir. 19S5), cert.
denied, 475 U.S. 1120 {19S6) {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.
____________________

154
Rec. Pt. II, Vol. XVI at 3778-83.

155
Id. at 3784.

156
Rec. Pt. I, Vol. VI, Pleading No. 58.

157
Id.

158
It appears that under Rule 14 of the Federal Rules of Criminal Procedure and existing case law, Garris v.
United States, 418 F.2d 467 (D.C. Cir. 1969), the government could have moved to merely sever, rather than
dismiss, the Conforte counts if it perceived the counts to have any merit.
104 Nev. 115, 167 (1988) State Bar of Nevada v. Claiborne
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 (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

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 (1917).
____________________

159
In this regard, we note that one such criticism, an editorial entitled Conforte Reels in Some Mighty Big
Suckers, appeared in the Reno Gazette-Journal on June 29, 1984. From our review of the record of the first trial,
as summarized above, we are hard-pressed to dismiss or devalue the insights expressed by the Reno
Gazette-Journal concerning the motives and actions of some of the federal agents involved. In particular, the
editorial observed that retaliation against respondent may have been a primary motivation for the investigation
and prosecution, and that the government dug and dug, and when Conforte put out his bait, the government
swallowed it right up to the fishing pole. Additionally, the editorial observed that Conforte's testimony at
Claiborne's trial was riddled time and again by the defense, and recited the major contradictions in Conforte's
allegations which we have detailed above. Further, the editorial observed that [t]he defense discovered all this
[the contradictory evidence] easily. Why couldn't the Justice Department? Because Justice was too busy with its
retaliation to bother with the facts. See Conforte Reels in Some Mighty Big Suckers, Reno Gazette-Journal, June
29, 1984. Although we are inclined to accord general respect for the observations of the editorial, we would add,
as a matter of clarification, that the questionable conduct involved was not undertaken by the Justice
Department, the FBI or the IRS as a whole, but was instead the indiscretion of a very limited number of people.
104 Nev. 115, 168 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________

160
We take judicial notice of the fact that this is not the first occasion when Conforte sought to exercise a
maleficent influence on the future course of the lives of public officials in the State of Nevada. In Conforte v.
State, 77 Nev. 269, 362 P.2d 274 (1961), Conforte was convicted of extortion in threatening the respected
district attorney of Washoe County if he did not arrange the dismissal of a criminal charge against Conforte.
Similarly, in 1983, Conforte entered a plea of guilty for attempting to bribe the district attorney of Lyon County
in order to secure a brothel license. State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist. Ct.,
Washoe Co. (transcript of hearing on change of plea filed Jan. 11, 1984).

161
Wright, who had undergone lung surgery and radiation therapy in 1982, also moved his office, destroyed
various papers thought unimportant, and was subjected to prolonged and intensive preparation by federal agents
prior to his trial testimony. Moreover, he admitted that most of his testimony was based upon reconstruction of
events as assisted by federal agents, rather than independent recollection. Wright also expressed concern for his
own well-being during his involvement with government authorities over the Claiborne matter. See Senate
Hearing, supra note 15, Pt. 1 at 534, 555, 557-58, 559-61, 565-66.
104 Nev. 115, 169 (1988) State Bar of Nevada v. Claiborne
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.
____________________

162
Rec. Pt. I, Vol. VI, Pleading No. 58; Rec. Pt. I, Vol. VI, Pleading No. 62.

163
Rec. Pt. I, Vol. VI, Pleading Nos. 63-67.

164
Rec. Pt. I, Vol. V, Pleading Nos. 49, 51; Rec. Pt. I, Vol. VI, Pleading No. 57.

165
Rec. Pt. I, Vols. V and VI, Pleading Nos. 50, 56, 61, 68; Rec. Pt. IV, Vol. I, Pleading No. 4 at 70.

166
Senate Hearings, supra note 15, Pt. 3 at 1488-89 (transcript of second trial).

167
Rec. Pt. I, Vol. VI, Pleading No. 75.

168
Rec. Pt. I, Vol. IX, Pleading No. 98.
104 Nev. 115, 170 (1988) State Bar of Nevada v. Claiborne
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 (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 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 (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.
____________________

169
Rec. Pt. IV, Vol. II, Pleading No. 8.

170
Rec. Pt. IV, Vol. IV, Pleading No. 44 at A-125 (Order of United States Court of Appeals for the Ninth
Circuit, No. 84-1294, filed Dec. 10, 1985).

171
The three dissents were written by Judge Ferguson, see United States v. Claiborne, 781 F.2d 1325 (9th
Cir. 1985), Judge Reinhardt, see United States v. Claiborne, 781 F.2d 1327 (9th Cir. 1986), and Judge
Pregerson, see United States v. Claiborne, 781 F.2d 1334 (9th Cir. 1986).

172
Rec. Pt. IV, Vol. III, Pleading No. 23.

173
Senate Hearings, supra note 15, Pt. 1 at 6-10.

174
Senate Hearings, supra note 15, Pt. 1 at 689-91.

175
Senate Hearings, supra note 15, Pt. 1 at 848-913 (testimony of D. Skelton, R. Jesinger and L. Halper).
104 Nev. 115, 171 (1988) State Bar of Nevada v. Claiborne
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 Bar, 102 Nev. 436, 726 P.2d 330 (1986); In re
Cochrane, 92 Nev. 253, 549 P.2d 328 (1976); In re Kristovich, 556 P.2d 771 (Cal. 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.
____________________

176
132 Cong. Rec. S15761 (daily ed. Oct. 9, 1986) (Roll call vote on Article III). We note that Senator
Howell T. Heflin has publicly remarked on this topic:
Along these same lines, during the Senate floor trial of Judge Claiborne, many of my colleagues believed
that a prior criminal conviction in either federal or state court was sufficient basis for impeachment. The
third article of impeachment passed by the House of Representatives against Judge Claiborne stipulated
that the prior conviction of Judge Claiborne was, itself, an adequate offense for removal from office.
While I believe that a Senate impeachment trial should certainly take any prior conviction into
consideration, I did not believe that the conviction, alone, constituted sole or determinative grounds for
impeachmentsimilarly, I do not believe that the verdict of not guilty in a criminal case absolves a
defendant in an impeachment trial. Rather, I believe an impeachment trial should always be separate and
distinct from a trial in a federal or state court. Therefore, when the Senate voted on this article of
impeachment, I voted present, and was joined by 34 other senators. Because a two-thirds majority of the
Senate did not vote guilty on this article, it was not approved, and precedent was not set.
Speech of Senator Howell T. Heflin Before the American Judicature Society on the Federal Impeachment
Process (Feb. 6, 1988) at 9.
104 Nev. 115, 172 (1988) State Bar of Nevada v. Claiborne
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 (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.
____________________

177
Rec. Pt. I, Vol. VI, Pleading No. 63 (pretrial motion to dismiss indictment); Rec. Pt. IV, Vol. I, Pleading
No. 3 (Claiborne's opening brief on appeal).

178
Rec. Pt. I, Vol. VI, Pleading No. 63 at 5.

179
The prosecution attempted to explain away this fact by noting that the term of the first Portland grand jury
expired before returning an indictment, and that the second Portland grand jury was never asked to return an
indictment. See Rec. Pt. IV, Vol. II, Pleading No. 6 at 19; Rec. Pt. I, Vol. V, Pleading No. 47 at 4-6. In our view,
however, this explanation only serves to highlight the apparent significance and importance which the
prosecution attached to Conforte's grand jury testimony as it pertained to all the counts and buttresses
respondent's contention that the grand jury was unduly influenced and prejudiced by Conforte's perjury.

180
Rec. Pt. IV, Vol. I, Pleading No. 3 at 12. We have been unable to verify this allegation because the
transcript of the grand jury proceedings is not
104 Nev. 115, 173 (1988) State Bar of Nevada v. Claiborne
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 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 (1978).
On appeal, however, the specially designated appellate panel concluded: There is no
evidence to support [Judge Claiborne's] assertions.
____________________
included in the record before us. Respondent explained in his brief on appeal that because he was not accorded
an evidentiary hearing on his pretrial motion to dismiss the indictment, the Conforte grand jury testimony was
not made part of the record. . . . Id. at 11. We note, however, that the prosecution never refuted respondent's
allegation that Conforte was not questioned before the grand jury regarding the specific dates on which the bribe
alleged in Count I had occurred.

181
Rec. Pt. I, Vol. VI, Pleading No. 63 at 6.
104 Nev. 115, 174 (1988) State Bar of Nevada v. Claiborne
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 proceeding. 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 of our supervisory
powers. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-92 (9th Cir.
1983), cert. denied, . U.S. ., 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 testified before the grand jury and an
indictment had been obtained. In Franklin v. State, 94 Nev. 220, 225-26, 577 P.2d 860, 863
(1978), this court stated: mitted to a theory quite possibly inconsistent with the truth and
the [search] for truth.
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
104 Nev. 115, 175 (1988) State Bar of Nevada v. Claiborne
mitted 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 the 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.
____________________

182
Rec. Pt. I, Vol. VI, Pleading No. 66 (attachment to government's opposition to motion to dismiss).

183
Rec. Pt. IV, Vol. I, Pleading No. 3 at 34-39 (Claiborne's opening brief on appeal detailing voir dire
examination of two potential trial jurors who admitted to being influenced by press accounts of first trial).
104 Nev. 115, 176 (1988) State Bar of Nevada v. Claiborne
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 observed 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)
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 of 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. . . .
____________________

184
Rec. Pt. IV, Vol. I, Pleading No. 3 at 15-16.

185
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987
(testimony of R. Paul Sorenson at 59-64).
104 Nev. 115, 177 (1988) State Bar of Nevada v. Claiborne
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 (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 $S,000 check, to which the letter refers, was to accompany an application
for an extension which Wright was preparing.1S9
____________________

186
Rec. Pt. III, Vol. I at 118.

187
Rec. Pt. III, Vol. II at 293; and see Senate Hearings, supra note 15, Pt. 4 at 2185.

188
Senate Hearings, supra note 15, Pt. 1 at 124.
104 Nev. 115, 178 (1988) State Bar of Nevada v. Claiborne
$8,000 check, to which the letter refers, was to accompany 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.
____________________

189
Rec. Pt. III, Vol. II at 276.

190
Rec. Pt. III, Vol. IV at 869.

191
Rec. Pt. III, Vol, III at 618-21; Senate Hearings, supra note 15, Pt. 1 at 677.

192
Senate hearings, supra note 15, Pt. 1 at 667-68.

193
Rec. Pt. III, Vol. II at 276, 351-52.

194
Id.

195
Rec. Pt. III, Vol. VI at 1178.
104 Nev. 115, 179 (1988) State Bar of Nevada v. Claiborne
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]
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.
____________________

196
Senate Hearings, supra note 15, Pt. 4 at 2077-82.

197
Id. at 2080.

198
Id. at 2081.

199
Id. at 2078.

200
Id. at 2080. We note that Ahlstrom testified that when she delivered the letter, she handed it to a secretary
who she later concluded must have been Mrs. Wright. See Senate Hearings, supra note 15, Pt. 1 at 677. At the
Senate hearings, Annette Quintana submitted an affidavit asserting that she was familiar with the appearance of
both Mrs. Wright and Ellen Arthur. Quintana averred that, in her opinion, it would not be unusual for a person
who did not know either Mrs. Wright or Mrs. Arthur to take one for the other after a brief encounter. See
Senate Hearings, supra note 15, Pt. 4 at 2076. Under these circumstances, and in light of the fact that Mrs.
Wright denied having ever received the April 11th letter, it is perhaps understandable that the defense
investigation did not reveal Arthur's testimony and evidence prior to trial.
104 Nev. 115, 180 (1988) State Bar of Nevada v. Claiborne
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 (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 Claiborne's
petition for a rehearing of the appeal, Judge Ferguson explained: The panel's Brady analysis
ignored United States v. Bagley, .. U.S. .., 105 S.Ct.
____________________

201
Due process requires the prosecution to disclose materially exculpatory information in its possession to
the defense upon a proper request. See United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs,
427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). Additionally, the Jencks Act, 18 U.S.C. 3500
(1985), provides for the mandatory disclosure of certain pretrial statements made by a trial witness in pretrial
interviews or during the witness's grand jury testimony. See Campbell v. United States, 373 U.S. 487 (1963).

202
Rec. Pt. IV, Vol. I, Pleading No. 3 at 42.
104 Nev. 115, 181 (1988) State Bar of Nevada v. Claiborne
The panel's Brady analysis ignored United States v. Bagley, U.S. , 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 (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.
104 Nev. 115, 182 (1988) State Bar of Nevada v. Claiborne
rect. 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 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.
____________________

203
Senate Hearings, supra note 15, Pt. 4 at 2115.

204
Id. at 2115, 2222; Rec. Pt. III, Vol. III at 620.

205
Senate Hearings, supra note 15, Pt. 4 at 2146-47; Rec. Pt. III, Vol. IV at 870-71.

206
Senate Hearings, supra note 15, Pt. 4 at 2147.

207
Rec. Pt. III, Vol. IV at 871; Senate Hearings, supra note 15, Pt. 1 at 994.
104 Nev. 115, 183 (1988) State Bar of Nevada v. Claiborne
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
$22,332.87 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
Judge Claiborne was introduced to Watson by the judge's ex-wife, and the
judge was immediately impressed by Watson's air of professionalism.
____________________

208
Rec. Pt. III, Vol. IV at 873-76.

209
Id. at 873-76.

210
Id.

211
Id. at 876.

212
Senate Hearings, supra note 15, Pt. 1 at 381, 938-39; Rec. Pt. III, Vol. V at 969.
104 Nev. 115, 184 (1988) State Bar of Nevada v. Claiborne
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 conclusions 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 makeand I will do this myselfI intend to write
to the Internal Revenue Office in Nevada, and suggest that they start forthwith and 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.
____________________

213
Senate Hearings, supra note 15, Pt. 1 at 939; Rec. Pt. III, Vol. IV at 883-86.

214
Senate Hearings, supra note 15, Pt. 1 at 783.

215
Rec. Pt. III, Vol. V at 970.

216
Senate Hearings, supra note 15, Pt. 1 at 720.

217
Senate Hearings, supra note 15, Pt. 4 at 2149.
104 Nev. 115, 185 (1988) State Bar of Nevada v. Claiborne
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 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 19S0
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.
____________________

218
Senate Hearings, supra note 15, Pt. 1 at 1104.

219
Rec. Pt. III, Vol. IV at 886.

220
Senate Hearings, supra note 15, Pt. 4 at 2223; Rec. Pt. III, Vol. IV at 888.

221
Id.

222
Senate Hearings, supra note 15, Pt. 1 at 782.

223
Id. at 781-826. In this regard, we observe that Travaglia was originally subpoenaed by the prosecution to
testify at respondent's first trial. She was under the impression, as a result of that subpoena, that she should not
talk to the defense and in fact refused to discuss her involvement in the matter with defense counsel prior to the
first trial. See Senate Hearings, supra note 15, Pt. 1 at 789. In pretrial interviews with an FBI agent, after she had
testified before the grand jury, Travaglia identified a document known as the yellow sheet upon which
respondent had fully disclosed his income to Watson. She further indicated in that interview that she utilized the
yellow sheet in the preliminary work she did on respondent's return. A copy of the FBI report of that interview is
attached as Exhibit 1 to this opinion. See Senate Hearings, supra note 15, Pt. 3 at 2047 (FBI Report of
Interview); see also Affidavit of Charlotte Travaglia, Senate Hearings, supra note 15, pt. 3 at 1992. Respondent
has alleged that the prosecution withheld this evidence from the indicting grand jury, and that the FBI agent's
memorandum of interview was wrongfully withheld from the defense during the pretrial discovery and at trial.
See Rec. Pt. I, Vol. IX, Pleading No. 105 at 7, 13 (amended motion to vacate judgment of conviction).
Apparently, Travaglia, although available to testify at the first trial, was excused as a witness by the defense and
the prosecution prior to trial. Respondent's counsel represented, in the opening brief on appeal to the Ninth
Circuit, that Travaglia was ill with cancer during the second trial and did not testify. See Rec. Pt. IV, Vol. I,
Pleading No. 3 at 31. We observe that disclosure to respondent's counsel of Travaglia's statements memorialized
in the FBI agent's memorandum of interview may well have
104 Nev. 115, 186 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________
insured that the defense would have attempted to present her exculpatory testimony to the trial jury. Like the FBI
memoranda of Mr. Wright's statements, defense counsel's unawareness of Travaglia's exculpatory statements to
the FBI prior to trial may have significantly affected the outcome of the trial.

224
Senate Hearings, supra note 15, Pt. 1 at 783.

225
Id. at 783-84.

226
Id. at 807; and see Senate Hearings, supra note 15, Pt. 4 at 2223 (copy of yellow sheet in question).

227
Id. at 807.

228
Senate Hearings, supra note 15, Pt. 1 at 720; Pt. 4 at 2137.

229
Senate Hearings, supra note 15, Pt. 1 at 722-24, 1165.

230
Senate Hearings, supra note 15, Pt. 4 at 2137.

231
Senate Hearings, supra note 15, Pt. 1 at 1045-50 (detailing Watson's enigmatic explanation).

232
Id. at 805.
104 Nev. 115, 187 (1988) State Bar of Nevada v. Claiborne
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 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.
____________________

233
Senate Hearings, supra note 15, Pt. 4 at 2137-38.

234
Senate Hearings, supra note 15, Pt. 1 at 1025; Rec. Pt. III, Vol. IV at 897-98.

235
Senate Hearings, supra note 15, Pt. 1 at 786.

236
Id. at 786, 820, 822-23.

237
Id.

238
Id. at 946; Rec. Pt. III, Vol. IV at 893-95.

239
Senate Hearings, supra note 15, Pt. 1 at 946-48.
104 Nev. 115, 188 (1988) State Bar of Nevada v. Claiborne
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 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
____________________

240
Id.

241
Id. at 710-11, 952.

242
Id. at 829; Senate Hearings, supra note 15, Pt. 4 at 2137.

243
132 Cong. Rec. S15763-66 (daily ed. Oct. 9, 1986) (statement of Senator Orrin Hatch).

244
Id. at S15763.
104 Nev. 115, 189 (1988) State Bar of Nevada v. Claiborne
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
under-reporting was willful.
The Supreme Court, in United States v. Pomponio, 429 U.S. 10 (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 (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.
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.
____________________

245
Id.
104 Nev. 115, 190 (1988) State Bar of Nevada v. Claiborne
deliberate and witting tax evasion. It would be simple negligence, which as the
Supreme 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
incomeconsistently 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.
____________________

246
Id.

247
Id. at S15764.

248
Id.

249
Id.
104 Nev. 115, 191 (1988) State Bar of Nevada v. Claiborne
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.
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.
____________________

250
Id. at S15764-65.
104 Nev. 115, 192 (1988) State Bar of Nevada v. Claiborne
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 specialists such as
Wright, during his years in private practice he also repeatedly referred his clients' tax matters
to other attorneys.
252
In this regard, the Senator concluded that Judge Claiborne had
justifiably relied in good faith on both Wright and Watson:
As a matter of law, reliance on a tax accountant is justified if the judge fully
disclosed all pertinent facts and if his reliance was in good faith. In this case, the judge
had fully disclosed his income in both 1979 and 1980. He had reason to rely in good
faith on Wright because Wright had done his taxes for 30 years without a hitch. He had
a reason to rely in good faith on Watson because Watson came highly recommended by
his wife and seemed to handle business competently.
253

Finally, in Senator Hatch's view, respondent did not turn a blind eye to the problems of his
returns. Senator Hatch observed that, in 1979, Judge Claiborne signed the return in blank,
fully relying on Wright to report his income correctly as detailed in the letter of April 11,
1980, because he had been assigned to preside over a case outside of Nevada. As for 1980,
Senator Hatch found it "simply inconceivable that Judge Claiborne would attempt to
escape tax liability" when he knew the FBI was investigating him and scrutinizing his
affairs. "Not even a 4-year-old attempts to raid the cookie jar when he knows he is being
watched.
____________________

251
Id. at S15765.

252
Id.

253
Id.
104 Nev. 115, 193 (1988) State Bar of Nevada v. Claiborne
simply inconceivable that Judge Claiborne would attempt to escape tax liability when he
knew the FBI was investigating him and scrutinizing his affairs. Not even a 4-year-old
attempts to raid the cookie jar when he knows he is being watched.
254
Senator Hatch further
found the sloppiness of this return to be significant:
It is even more unlikely that in this time of tension Judge Claiborne would file a
fraudulent return that begs for examination and audit. This is the equivalent of the
judge shouting at the top of his lungs that he intends to raid the cookie jar and then
proceeding to attempt the feat under his parents' noses.
255

Neither could Senator Hatch reconcile Judge Claiborne's full disclosure of his 1980 income
on an ethics report, with a willful failure to report income to the IRS for that year. A copy
of respondent's financial disclosure report for 1980 is attached to this opinion as Exhibit 4.
The Senator queried: Why would he deliberately evade taxes and then tell the Government
the facts that disclose his fraud in another filing?
256
Answering his own question, Senator
Hatch remarked: If Judge Claiborne was acting with a criminal state of mind, it is
inexplicable that he would lie on one Government filing and confess his guilt on another. The
judge simply did not act willfully.
257

Senator Hatch concluded that there was no evidence that Judge Claiborne willfully filed a
false tax return:
If he had intended to violate the law, he would not have done it so poorly. Neither the
1979 nor the 1980 return shows any evidence of cunning or guile. They contain
mistakes discernible by a grade school observer. The judge relied too heavily on
unreliable accountants. The judge was negligent in failing to check his accountant's
errors. Frankly if one of the Articles of Impeachment had cited the judge's gross
negligence and disregard, I would have voted to impeach. The House Articles,
however, are all based on the criminal conviction. The criminal conviction is only valid
if Judge Claiborne acted willfully. For the reasons I have cited, I could not find
sufficient evidence of willfulness.
258
Senator Hatch's assessment of the evidence of
the willfulness of Judge Claiborne's conduct is persuasive.
____________________

254
Id.

255
Id.

256
Id. at S15766.

257
Id.

258
Id.
104 Nev. 115, 194 (1988) State Bar of Nevada v. Claiborne
Senator Hatch's assessment of the evidence of the willfulness of Judge Claiborne's conduct is
persuasive. As a member of the impeachment committee, Senator Hatch personally heard all
the testimony presented, and had an opportunity to evaluate the demeanor of the various
witnesses. Comparing the judge's testimony, with that of the other witnesses, Senator Hatch
found Judge Claiborne to be a credible witness, believed the judge's explanation of the
circumstances leading to his conviction, and found that the other evidence presented
supported that explanation.
259

I listened very carefully to every aspect of the testimony before the Impeachment
Committee. I compared each witness' statements to the assertions made by other
witnesses. In the long run, I found Judge Claiborne to be a credible witness. I believed
him. Moreover, the evidence in this case supported the judge's explanations of the
circumstances that led to his indictment and conviction. Giving the judge the benefit of
the doubt, as I believe we are obligated to do when his life's work and reputation are at
stake, the evidence did not support a finding of willfulness. The evidence clearly
showed that the judge had been grossly negligent and had carelessly disregarded his
obligations as a taxpayer. He did not, however, conspire or craftily design a plan to
defraud the Government. In the absence of willfulness, beyond a reasonable doubt, he
should not have been convicted, should not have been impeached, and, in my opinion,
should not have been removed from office. This was why I voted not guilty on each of
the Articles of Impeachment.
260

Our review of the record compels respect for Senator Hatch's evaluation of the facts.
Furthermore, his assessment of the credibility of the witnesses is compelling because he had
an opportunity to view their testimony first-hand. More importantly, as Senator Hatch states,
there is a significant lack of evidence showing that respondent willfully sought to falsify his
income tax returns. The evidence weighs more persuasively that respondent acted negligently
concerning his obligations as a taxpayer.
3. THE JUDICIAL AND CONGRESSIONAL PROCEEDINGS
In addition to the specific matters discussed above, the procedural history of Judge
Claiborne's case raises disturbing questions about whether or not he received a full and fair
opportunity to present his defense. As noted, prior to respondent's first trial, Judge Hoffman
denied a series of pretrial motions filed by the defense.
____________________

259
Id.

260
Id.
104 Nev. 115, 195 (1988) State Bar of Nevada v. Claiborne
defense. Respondent immediately appealed those rulings to the Ninth Circuit Court of
Appeals. See United States v. Claiborne, 727 F.2d 842 (9th Cir.), cert. denied, 469 U.S. 829
(1984). As Judge Reinhardt of the Ninth Circuit has explained:
At the time of the pre-trial appeal, the case against Judge Claiborne still included the
charges relating to his alleged acceptance of a bribe intended to influence the results in
an appeal before one of our panels. We as a court agreed, although in a rather informal
manner, to recuse ourselves from hearing Judge Claiborne's pretrial appeal. The Chief
Justice then specially selected a panel of three judges from other circuits to hear it. The
special panel affirmed the pretrial rulings of the specially assigned district judge. 727
F.2d 842, cert. denied, U.S. , 105 S.Ct. 113, 83 L.Ed.2d 56 (1984).
See United States v. Claiborne, 781 F.2d 1327, 1330 (9th Cir. 1986) (Reinhardt, J.,
dissenting).
Upon the entry of the judgment of conviction in the second trial, Judge Claiborne again
appealed to the Ninth Circuit. In explaining the Ninth Circuit's actions respecting that appeal,
Judge Reinhardt stated:
This time we took no action to recuse ourselves. In fact, we did nothing at all. Although
the bribery charges that indirectly involved our court in the proceedings were no longer
a part of the case, we simply failed to consider, formally or informally, the question
whether we now had an obligation to hear the appeal or whether a new special panel
should be appointed. Apparently acting on the assumption that our prior recusal was a
continuing one, the Chief Justice specially selected another panel of three judges from
other circuits to hear the appeal.
Id.
Noting that an overwhelming majority of the judges of the appellate court believed that
they were not required to recuse themselves from voting on a critical aspect of the
proceedings on appeal, Judge Reinhardt went on to explain why in his view the Court of
Appeals had committed a serious error with serious consequences. Id. Judge Reinhardt
wrote:
Specifically, we erred when we failed to consider whether we should hear Judge
Claiborne's appeal from his conviction or whether, instead, the appointment of a second
special panel was required. Because of our error, outside judges were appointed to hear
an appeal that we had an obligation to hear ourselves. Our court system is structured so
that a defendant will normally have his trial and any appeals heard by judges residing
in the circuit in which the charged crime was allegedly committed.
104 Nev. 115, 196 (1988) State Bar of Nevada v. Claiborne
by judges residing in the circuit in which the charged crime was allegedly committed.
Here, we erroneously, albeit inadvertently, deprived Judge Claiborne of this feature of
our laws; en banc consideration of the Judge's case would have been a proper means of
at least partially remedying our mistake.
Rehearings en banc provide a means for ensuring that the law of our circuit is
applied not only consistently but correctly. Here, as a result of our failure to act, judges
from other circuits, not as familiar as we are with the precedents of our court,
considered a case that we had a duty to hear. Judge Claiborne's appeal raises several
issues of importance. In disposing of at least one of those issues, the special outside
panel cited no authority from any appellate court, let alone a decision by the judges of
this court. The special panel also stated that it was not following the result reached in
two of the three district court opinions that it cited. 765 F.2d at 794-95. In my view,
when a substantial question of law not previously decided by the judges of this court is
decided by a panel of outside judges and we subsequently recognize that we have erred
in failing to decide that question ourselves, it is our responsibility to grant en banc
reconsideration.
Id. at 1330-31 (footnotes omitted).
In Judge Reinhardt's view, the fact that Judge Claiborne was, at that time, a United States
District Judge from the Ninth Circuit may have figured in the decision of some of the judges
of the Ninth Circuit to deny Judge Claiborne a rehearing en banc, because to do so might
have raised an appearance of impropriety. In this regard, Judge Reinhardt stated:
The fact that Harry Claiborne is a United States District Judge does not mean that he
is less entitled than any other individual to the full benefit of the orderly procedures of
this court. Those procedures, including en banc consideration, have been established to
ensure that justice is done. Our en banc process is also designed, as I noted earlier, to
ensure that the law of this circuit will be applied uniformly to all defendants. Judge
Claiborne has just as much right to have his case considered en banc as any other
defendant. En banc proceedings are different in one critical respect, however, from all
other proceedings this court conducts: only the judges of our court can hear a case of
ours en banc. There is no procedure in current law for obtaining an out-of-circuit en
banc panel. This is true even when an appeal is heard initially by a specially selected
panel of out-of-circuit judges. Thus, if in fact an appearance of impropriety existed
here, the rule of necessity would apply, and we would be required to disregard that
appearance.
104 Nev. 115, 197 (1988) State Bar of Nevada v. Claiborne
here, the rule of necessity would apply, and we would be required to disregard that
appearance. Accordingly, if a factor in our decision to deny Judge Claiborne en banc
consideration of his case was our concern over an appearance of impropriety, we have,
in my view, seriously misconstrued our duty as judges of this circuit. In doing so, we
have, unfortunately, also denied Judge Claiborne equal justice.
Id. at 1331-32.
Moreover, in Judge Reinhardt's view, an equally significant appearance of impropriety
would have existed regardless of whether Judge Claiborne's appeal was heard by the members
of the Ninth Circuit Court of Appeals, or by a panel of out-of-circuit judges. In Judge
Reinhardt's opinion, the failure of the Ninth Circuit judges to grant an en banc rehearing
allowed the record to rest with the appearance that Judge Claiborne may have been the
object of adverse special treatment and, thus, the victim of injustice. Id. at 1332 (emphasis
in original). Further, Judge Reinhardt concluded:
Judge Claiborne is one of the few criminal defendants in the Ninth Circuit, if not in the
nation, whose case has been handled, both in the District Court and in the Court of
Appeals, exclusively by judges specially and specifically chosen to hear that particular
case. There is, in my opinion, a rather substantial appearance of injustice when a
defendant who claims he is the victim of a vendetta on the part of various branches and
agencies of the Department of Justice is deprived of the opportunity to be judged by
those who would normally preside over his case and instead is tried and convicted
before, and has his appeal heard by, judges all of whom are specially selected for their
assignments.
There is no doubt that every step taken in appointing the specially designated judges
fully complied with all existing statutes and rules. Moreover, there is no suggestion in
this case that there was in fact anything improper about the designation of the judges, or
that any of the judges involved in the selection process acted with anything less than the
utmost integrity. Nevertheless, in a case in which the defendant contends that he is the
object of a prosecutorial vendetta, in which the judges who heard the case were all
specially selected under a process that permits the selector total discretion to choose
whom he wishes, and in which we as a court erred in permitting the specially selected
panel to hear the appeal, I believe that an en banc hearing is requiredif for no other
reason than to ameliorate, to the extent possible, the appearance of injustice. En banc
consideration by the judges of this court, judges who were not specifically selected
to hear Judge Claiborne's appeal, would have gone a considerable way towards
accomplishing that objective.
104 Nev. 115, 198 (1988) State Bar of Nevada v. Claiborne
eration by the judges of this court, judges who were not specifically selected to hear
Judge Claiborne's appeal, would have gone a considerable way towards accomplishing
that objective.
Unfortunately, as events unfolded, only an en banc review by this court or a hearing
by the United States Supreme Court could have afforded Judge Claiborne consideration
of his case by a tribunal that had all the appearances of fairness. All courts that have
previously heard his case are open to the charge that they were specially selected for the
purpose of ensuring the desired governmental objective. In my opinion, the proceedings
thus far afforded Judge Claiborne fall far short of meeting the appearance of justice
standard. Because of our obligation to administer justice in a manner that maintains
confidence in the fairness and objectivity of the judicial system, I believe that it was our
duty and responsibility to hear his case en banc.
Id. at 1332-33 (emphasis added; footnote omitted).
Although it is not our intention to invade the province of the federal courts, we are in
sympathy with the views expressed by Judge Reinhardt. As detailed above, from the very
inception of this case, there has been, at the very least, an appearance that respondent was
unfairly targeted for investigation, unfairly indicted and unfairly tried and convicted. Further,
as Judge Reinhardt indicates, there is also an appearance of injustice relating to the conduct of
the appellate proceedings which suggests that respondent may well have received adverse
special treatment and may well have been denied the full measure of his procedural rights
solely on account of his office and position.
Moreover, it appears that anomalous and arguably unfair procedures were imposed upon
Judge Claiborne during the United States Senate impeachment proceedings. Specifically, for
the first time in history, the Senate utilized an impeachment procedure whereby a
twelve-member special committee was formed to receive evidence on behalf of the full
Senate. See S. Res. 481, 99th Cong., 2d Sess. (1986), Senate Hearings, supra note 15, Pt. 1 at
2-3 (providing for the appointment of a committee to receive and to report evidence with
respect to articles of impeachment against Harry E. Claiborne).
261

In recent remarks before the American Judicature Society, Senator Howell T. Heflin
discussed the federal impeachment process in light of his experience during the
impeachment proceedings involving Judge Claiborne.262 Senator Heflin explained his
perceptions of the special procedures invoked in Judge Claiborne's case, in part, as
follows:
____________________

261
S. Res. 481 was enacted pursuant to Rule XI of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials. Rule XI was adopted by the Senate in its present form in 1935, after the
impeachment trial of Judge Harold Louderback in 1933. Rule XI provides:
That in the trial of any impeachment the Presiding Officer of the Senate, upon the order of the Senate,
shall appoint a committee of
104 Nev. 115, 199 (1988) State Bar of Nevada v. Claiborne
process in light of his experience during the impeachment proceedings involving Judge
Claiborne.
262
Senator Heflin explained his perceptions of the special procedures invoked in
Judge Claiborne's case, in part, as follows:
In 1935, in an attempt to modernize the Senate impeachment process, the Senate
adopted Rule 11 of the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials. . . . Reportedly, this rule was adopted because of the high level of
absenteeism among senators during the protracted trial of Judge Harold Louderback in
1933. This committee was first utilized by the Senate in the fall of 1986 to compile an
official record of information and hear the testimony of Judge Claiborne and other
witnesses. However, the committee was not allowed to make any recommendation
whatsoever in regards to whether or not Judge Claiborne should be removed from
office. The legitimacy of the committee was, itself, questioneda challenge that I feel
was indicative of the overall problems of the current impeachment process.
____________________
twelve Senators to receive evidence and take testimony at such times and places as the committee may
determine, and for such purpose the committee so appointed and the chairman thereof, to be elected by
the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions
conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of
procedure and practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate when sitting
on impeachment trials shall govern the procedure and practice of the committee so appointed. The
committee so appointed shall report to the Senate in writing a certified copy of the transcript of the
proceedings and testimony had and given before such committee, and such report shall be received by the
Senate and the evidence so received and the testimony so taken shall be considered to all intents and
purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as
having been received and taken before the Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the
entire trial in open Senate.
See Senate Manual Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the
United States Senate, S. Doc. No. 1, 96th Cong., 1st Sess. at 174-75. Although Rule XI was adopted prior to the
impeachment trial of Judge Halsted Ritter in 1936, the Senate did not proceed in accordance with the provisions
of that Rule until Judge Claiborne's case came before it. See Senate Hearings, supra note 15, Pt. 1 at 241-51
(Judge Claiborne's Motion to Declare Rule XI, Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials as Unconstitutional).

262
Senator Heflin is a former Chief Justice of the Supreme Court of Alabama, a former Chairman of the
National Conference of Chief Justices, and was selected as the Most Outstanding Appellate Judge in the United
States by the Association of Trial Lawyers of America in 1976. See Congressional Directory, 100th Cong. 4
(1987). He is a member of the Senate Judiciary Committee and served on the twelve-member Senate
Impeachment Trial Committee in the proceedings involving Judge Claiborne.
104 Nev. 115, 200 (1988) State Bar of Nevada v. Claiborne
was indicative of the overall problems of the current impeachment process. I believe,
however, that there is no question that the Senate was authorized to form such a
committee. Constitutional justification for the creation of the Select Impeachment
Committee lies in Article I, Section 5, Clause 2 of the Constitution, which states that,
Each House (of Congress) may determine the Rules of its Proceedings. . . .
Yet, even with the existence of the committee, there were tremendous problems in
the overall impeachment process. One problem was that while the 12 senators on the
select impeachment committee were well aware of the facts and issues in the case, this
is not true for the rest of the Senate. The transcript of the Claiborne hearing totaled over
3500 pages, and it is highly improbable that many senators had time to review this
material thoroughly. Not surprisingly, at the time of the actual trial on the Senate floor,
a majority of the Senate had neither the benefit of the information in the report, nor the
time to prepare properly for deciding Judge Claiborne's fate. Furthermore, after the
committee finished its work and the matter went before the full Senate, the Senate
leadership decided not to rehear committee witnesses but to accept the committee's
written record, and to only allow the House managers, Judge Claiborne and his
attorneys to make statements on the floor. During these statements on the Senate floor,
approximately 40 members were not present in the Senate chamber during any portion
of Judge Claiborne's closing statement and I estimate that at least 35 senators were
never on the floor during the presentations by the prosecution and defense.
Though other senators had some very important business to attend to, their absence
from the proceedings (I hesitate to call it a trial) was not, in my judgment, fair to Judge
Claiborne. While I believe that the Senate satisfied its constitutional responsibilities in
the impeachment trial of Judge Harry Claiborne, I believe the process can, and should,
work better. In the futureeven, perhaps, in the immediate futurethe Senate may be
faced with a number of impeachment trials. A United States Senator cannot carry out
his impeachment responsibilities if he neither participates in the committee hearing nor
has an opportunity to gain knowledge of the case from a full trial on the Senate floor.
(Emphasis added.)
263
Other Senators have also expressed criticism of the manner in
which the Senate proceeded in Judge Claiborne's case.
____________________

263
Speech of Senator Howell T. Heflin on The Federal Impeachment Process before The American
Judicature Society (Feb. 6, 1988) at p. 4-6; see also 132 Cong. Rec. S15779 (daily ed. Oct. 9, 1986) (statement
of Senator Heflin).
104 Nev. 115, 201 (1988) State Bar of Nevada v. Claiborne
Other Senators have also expressed criticism of the manner in which the Senate proceeded
in Judge Claiborne's case. Senator Daniel J. Evans observed, for example, that [i]n prior
impeachment cases, the full Senate had an opportunity to receive all the evidence directly. No
committee was appointed to serve as a buffer between the accused and those responsible for
making the final judgment.
264
Senator Evans further remarked:
Our vote was the final word on Judge Claiborne's career. We were the trial court and
the appellate court at the same time. It was thus incumbent upon us to take the utmost
care to ensure that our proceedings were proper. I believe we lost sight of the fact that
the procedures of justice are often more important than the substance of the laws in
creating the perception of fairness.
(Emphasis added.)
265

Senator Carl M. Levin also criticized aspects of the process employed during respondent's
impeachment trial and noted that the full Senate deprived itself of a crucial feature of the
fact-finding process, the opportunity to evaluate firsthand the demeanor and credibility of
witnesses. Commenting that only the twelve members of the Senate comprising the
impeachment panel had such an opportunity, Senator Levin observed:
The rule 11 committee did an excellent job of developing a record. I have the
greatest respect for the members and staff of the committeethey had a difficult job
and they discharged it with dignity and devotion. The record they developed is essential
to understanding the case. But, in my view, it was not adequate to let the Senate make
findings in those disputed areas where witness demeanor or credibility is critical to the
process of determining what the facts are. The Senate, as a finder of fact, did not hear
or see a single witness. And, as a result, our ability to fairly reach decisions, when the
facts were in dispute, was restricted.
To reach a judgment on issues involving disputed facts where the demeanor and
credibility of the witnesses are important, I believe the Senate needed to see the
witnessesas the rule 11 committee didand not just see a record or even tapes of
witnesses testifying.
When we voted not to hear any additional witnesses, we set up a process which
made it impossible for the Senate, as the finder of fact, to fully and fairly evaluate the
credibility of witnesses.266
____________________

264
132 Cong. Rec. S16821 (daily ed. Oct. 16, 1986) (statement of Senator Evans entitled The Trial of Judge
Harry E. Claiborne).

265
Id.
104 Nev. 115, 202 (1988) State Bar of Nevada v. Claiborne
the finder of fact, to fully and fairly evaluate the credibility of witnesses.
266

(Emphasis added.) Thus, whether or not one is persuaded that respondent's conviction and his
removal from office were justified by the facts, there can be little doubt that an appearance
and atmosphere of procedural impropriety has plagued his case from its inception.
An additional circumstance contributing to the general perception and appearance of
injustice surrounding this matter warrants our discussion. Following the first trial,
respondent's counsel filed motions seeking the recusal or disqualification of Judge Hoffman
from further participation in the case.
267
The initial motion alleged that bystanders and
courtroom observers had reported that Judge Hoffman appeared to be partial towards the
prosecution, and biased against the Defendant. Therefore, defense counsel requested Judge
Hoffman to
deliberately and consciously assess his state of mind with reference to the foregoing
matters and determine whether or not:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the Defendant;
(c) he has a personal bias or prejudice concerning the Defendant's counsel; or
(d) he has personal knowledge of disputed evidentiary facts concerning a
proceeding.
268

In subsequent supplemental pleadings, defense counsel alleged specific instances wherein
Judge Hoffman had purportedly demonstrated bias and prejudice toward respondent. On June
22, 1984, Judge Hoffman filed a thirty-six page order denying respondent's motion and
responding to each factual allegation suggesting bias or the appearance of bias or prejudice on
Judge Hoffman's part.
269

Again, following the second trial, respondent filed post-conviction motions (1) to vacate
his judgment of conviction and sentence; (2) for evidentiary hearings; (3) for discovery
proceedings; and {4) for a new trial.270 On July 15, 19S6, Judge Hoffman entered an
order apprising the parties that on July S, 19S6, Chief Justice Burger had designated him
to continue as the presiding judge in any further post-conviction proceedings arising out
of respondent's criminal case.271 Judge Hoffman's order further observed that counsel
for Claiborne had not assigned as error on appeal Judge Hoffman's prior refusal to recuse
himself from presiding over the trial.
____________________

266
132 Cong. Rec. S16823 (daily ed. Oct. 16, 1986) (statement entitled: Opinion of Senator Levin on the
Claiborne Impeachment).

267
Rec. Pt. I, Vol. V, Pleading Nos. 49 and 51; Vol. VI, Pleading No. 57 (motion for judicial recusal under
28 U.S.C. 455, and first and second supplements thereto).

268
Rec. Pt. I, Vol. V, Pleading No. 49 at 3.

269
Rec. Pt. I, Vol. V, Pleading No. 56.
104 Nev. 115, 203 (1988) State Bar of Nevada v. Claiborne
ings; and (4) for a new trial.
270
On July 15, 1986, Judge Hoffman entered an order apprising
the parties that on July 8, 1986, Chief Justice Burger had designated him to continue as the
presiding judge in any further post-conviction proceedings arising out of respondent's
criminal case.
271
Judge Hoffman's order further observed that counsel for Claiborne had not
assigned as error on appeal Judge Hoffman's prior refusal to recuse himself from presiding
over the trial. Judge Hoffman concluded, therefore, that any further motions for recusal and
specific allegations of bias and prejudice must be confined to acts, words or events
occurring since the last order denying recusal was entered. Accordingly, Judge Hoffman
allowed defense counsel fifteen days within which:
[T]o file any appropriate motion for recusal, specifically alleging facts in support of any
charge of bias and prejudice on the part of the undersigned United States District Judge,
but such allegations of fact shall be limited to acts, words or events occurring since the
entry of the last order denying the motion to recuse, filed in late July, 1984. If such
motion is not filed, the Court will assume that no acts, words or events indicating bias
or prejudice of the undersigned judge in fact exist.
272

In response, on July 28, 1986, defense counsel filed a Verified Motion for Judicial
Disqualification or Recusal.
273
Counsel asserted that Judge Hoffman should recuse himself
from further participation in the case because of (1) attitudinal bias and partisanship . . . in
favor of the prosecution herein and against the Defendant; and (2) [t]he appearance of
impropriety. In this regard, defense counsel noted that a motion had been filed on behalf of
respondent in the Court of Appeals seeking the designation of a judge from within the Ninth
Circuit to preside over any post-conviction proceedings. Further, counsel observed that he
had received a letter from Judge Hoffman, dated July 11, 1986, in which Judge Hoffman
stated that he had written to Chief Judge Browning of the Ninth Circuit with respect to the
need for a new designation if there was any desire for me to hear the post-conviction
motions."274
On October 6, 19S6, after further pleadings addressing this issue were submitted, Judge
Hoffman entered an order denying the motion of judicial disqualification.275 Judge
Hoffman stated that he entertained no "feeling of bias or prejudice against Judge
Claiborne as evidenced by the record and transcripts. . . ."276
We do not suggest that defense counsel set forth sufficient factual allegations of bias or
prejudice on the part of Judge Hoffman to warrant the reversal of respondent's
conviction; nor do we suggest that Judge Hoffman was, in fact, biased or prejudiced
against respondent.
____________________

270
Rec. Pt. I, Vol. VIII, Pleading No. 81; Rec. Pt. I, Vol. IX, Pleading No. 105. Recently Judge Hoffman
entered an order denying the relief requested in those post-conviction proceedings. United States v. Claiborne,
Case No. CR-R-83-57 WEH, United States District Court for the District of Nevada (filed Jan. 27, 1988). We
understand that respondent is presently pursuing an appeal.

271
Rec. Pt. I, Vol. IX, Pleading No. 91.

272
Id.

273
Rec. Pt. I, Vol. IX, Pleading No. 92.
104 Nev. 115, 204 (1988) State Bar of Nevada v. Claiborne
designation if there was any desire for me to hear the post-conviction motions.
274

On October 6, 1986, after further pleadings addressing this issue were submitted, Judge
Hoffman entered an order denying the motion of judicial disqualification.
275
Judge Hoffman
stated that he entertained no feeling of bias or prejudice against Judge Claiborne as
evidenced by the record and transcripts. . . .
276

We do not suggest that defense counsel set forth sufficient factual allegations of bias or
prejudice on the part of Judge Hoffman to warrant the reversal of respondent's conviction; nor
do we suggest that Judge Hoffman was, in fact, biased or prejudiced against respondent. We
have, however, considered counsel's allegations and Judge Hoffman's conduct of the legal
proceedings in the context of the overall atmosphere and appearance of injustice associated
with the federal proceedings involving respondent. In this context, we regretfully conclude
that a number of Judge Hoffman's rulings may have contributed to a perception that
respondent was subjected to anomalous and prejudicial procedures in the course of the
proceedings against him. Specifically, we refer to: (1) Judge Hoffman's refusal to allow
evidentiary hearings respecting many of respondent's accusations of investigative and
governmental misconduct; (2) his rulings relative to the Brady and Jencks Act material; (3)
his rulings in connection with the prosecution's demands for notices of alibi; and (4) his
denial of the defense motion for a continuance prior to the first trial. We also note that Judge
Hoffman ordered the sequestration of a critical defense witness, Judy Ahlstrom, during a
recess in the second trial.
277
Respondent's counsel has alleged that up until that point no such
action had been taken preventing a witness from communicating with counsel during a recess.
Accordingly, respondent has asserted that Judge Hoffman's action unfairly prevented defense
counsel from attempting to reassure and calm Ms. Ahlstrom and allow her to collect her
thoughts after she was visibly shaken by a particularly grueling cross-examination.
278
Again
we stress that although these and similar allegations do not establish actual bias or prejudice
against respondent during the conduct of the trial, they do contribute to the aforementioned
perception and appearance of injustice and suggest that special adverse and prejudicial
procedures were imposed upon respondent.
____________________

274
Id. at 4-5; see Respondent's Compendium, Docket No. 17294 filed Sept. 2, 1986 (section entitled Judge
Hoffman).

275
Rec. Pt. I, Vol. IX, Pleading No. 106.

276
Id. at 14.

277
Rec. Pt. III, Vol. III at 633.

278
Rec. Pt. IV, Vol. I, Pleading No. 3 at 44-47. It should also be noted that Judge Hoffman himself
conducted a good part of that cross-examination.
104 Nev. 115, 205 (1988) State Bar of Nevada v. Claiborne
appearance of injustice and suggest that special adverse and prejudicial procedures were
imposed upon respondent.
In sum, these circumstances are relevant to our deliberations in two respects. First, we
consider them in the context of the punishment thus far exacted during the course of
respondent's trials and incarceration. See In re Ross, 99 Nev. 657, 660, 668 P.2d 1089, 1092
(1983). Second, of course, they detract from the weight which we would ordinarily accord a
judgment of conviction. In our view, the record suggests that respondent may have been
subjected to special adverse treatment restricting his right to established procedures. The
imposition of special procedures in respondent's case may well have restricted his ability to
present and defend his position fully. Accordingly, these circumstances reflect upon the
punishment respondent has suffered, as well as the weight which should be accorded his
conviction, for the purpose of assessing disciplinary sanctions.
Lastly, we observe that two additional circumstances reflect upon the unusual procedures
and the extent of the punishment thus far imposed in the protracted course of this matter. At
this court's hearing in Las Vegas on November 24, 1987, for example, more than one witness
alluded to the scorn and notoriety attached to the judicial and congressional proceedings and
the obvious torment respondent suffered as a result of that notoriety.
279
Unquestionably, as
discussed below, the scorn and ignominy respondent has suffered as a result of the protracted
federal judicial proceedings and the ensuing impeachment proceedings has been substantial.
In June of 1987, following his removal from office and after serving thirteen months in
prison, respondent was released from prison to a federally supervised halfway house in Las
Vegas to complete his term.
280
In all, respondent served seventeen months of his two-year
term before he was fully released from confinement.
281

IV. RESPONDENT'S PROFESSIONAL BACKGROUND
Respondent Harry E. Claiborne officially assumed the duties of United States District
Judge for the District of Nevada on September 1, 1978. He was nominated by President
Carter to fill a vacancy on the bench in July of that year, and was confirmed by the United
States Senate on August 11, 197S.2S2 During the appointment process, on August S,
197S, a hearing was held before the United States Senate Committee on the Judiciary
respecting Mr.
____________________

279
See, e.g., State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing at 45.

280
Claiborne Returns to L.V. to Complete Term, Las Vegas Sun, June 17, 1987.

281
Claiborne Disbarment Hearing Set, Las Vegas Sun, November 17, 1987.
104 Nev. 115, 206 (1988) State Bar of Nevada v. Claiborne
the United States Senate on August 11, 1978.
282
During the appointment process, on August
8, 1978, a hearing was held before the United States Senate Committee on the Judiciary
respecting Mr. Claiborne's qualifications and background.
283
At the start of that hearing, the
acting chairman, Senator DeConcini, stated for the record that he had been advised that a
substantial majority of the Standing Committee on the Federal Judiciary of the American
Bar Association was of the opinion that Mr. Claiborne was well qualified for appointment
to the federal bench. A minority of the Bar Association's committee found him not qualified
on the sole ground that Claiborne was, at that time, sixty-one years of age.
284

Thereafter, Senator DeConcini recognized Senators Howard W. Cannon and Paul Laxalt
of Nevada who testified on Mr. Claiborne's behalf respecting his character and his
qualifications. Specifically, Senator Cannon praised Mr. Claiborne as one of the foremost
criminal attorneys in the west and noted that [h]e is known and respected in every
courtroom in our state and, by reputation, in many others throughout the United States. In
regard to respondent's professional accomplishments, Senator Cannon observed that Mr.
Claiborne had distinguished himself not only as an exceptional defense attorney but also as a
police officer, an assistant district attorney, a city attorney for North Las Vegas and
Henderson, Nevada, and an assemblyman in the Nevada Legislature.
285
In the latter position,
Senator Cannon observed that although respondent had served only one term in the Nevada
State Assembly,
he was elected Assistant Majority Leader and chairman of the Judiciary Committee.
And, in that one term he was primarily responsible for passage of legislation placing the
question of a probation law on the ballot for statewide consideration. He then
campaigned throughout the state to win approval of the measure. When the probation
law was approved, he was then appointed to be Nevada's first Director of Probation.
286
Senator Laxalt also praised Mr.
____________________

282
The American Bench 1453 (S. Livermore 3rd ed. 1985/86); W. Dornette and R. Cross, Federal Judiciary
Almanac 648-49 (1986); see generally Claiborne to be Nominated to Judgeship, Reno Evening Gazette, July 24,
1978.

283
Senate Hearings, supra note 15, Pt. 4 at 2251-62.

284
Senate Hearings, supra note 15, Pt. 4 at 2254-55 (Claiborne Ex. 24).

285
Senate Hearings, supra note 15, Pt. 4 at 2256-57 (Claiborne Ex. 24, statement of Senator Howard
Cannon). See Rec. Pt. III, Vol. IV at 820-21.

286
Senate Hearings, supra note 15, Pt. 4 at 2256-57 (Claiborne Ex. 24, statement of Senator Howard
Cannon).
104 Nev. 115, 207 (1988) State Bar of Nevada v. Claiborne
Senator Laxalt also praised Mr. Claiborne's nomination to the federal bench testifying in part:
The people of the State of Nevada are very, very respectful of this man's abilities not
only as a lawyer but as a person who has been heavily engaged in all aspects of
community activity in our state.
287

The record of the United States Senate Judiciary Committee proceedings of August 8, 1978,
further discloses that in 1974 and 1975 Mr. Claiborne served as a special assistant to the
United States Senate Committee on Rules and Administration during the historic hearings on
Nelson Rockefeller's nomination to the vice-presidency.
288

At the time of respondent's nomination and confirmation by the United States Senate, the
print media throughout this state echoed the testimony of Senators Laxalt and Cannon
respecting respondent's background, qualifications, contributions to the legal community, and
the high esteem in which he was held by his colleagues. For example, on August 6, 1978, in
an editorial entitled: U.S. Judge Claiborne More Than Qualified, the Las Vegas
Review-Journal stated that few attorneys can boast the kind of record Harry Claiborne has
put together in his 31 years in the State of Nevada.
289
The Review-Journal observed that
Mr. Claiborne has a great deal of respect from his peers, and one consistent thing about his
character keeps popping uphard-working. Everyone describes the intense determination he
puts into his efforts in a courtroom or while studying his legal papers.
290

Similarly, in an editorial entitled: Claiborne Good Choice, the Reno Evening Gazette
stated:
Claiborne also has caught the attention and praise of his peers for his charity work.
He tops the list of Nevada trial lawyers willing to represent people and organizations
without compensation whenever he was impressed by the importance of a case or the
gravity of an issue to be defended by an individual or organization unable to pay.
291
{Emphasis added.)
____________________

287
Senate Hearings, supra note 15, Pt. 4 at 2258 (Claiborne Ex. 24, statement of Senator Paul Laxalt).

288
Senate Hearings, supra note 15, Pt. 4 at 2261 (Claiborne biography).

289
U.S. Judge Claiborne More Than Qualified, Las Vegas Review-Journal, Aug. 6, 1978.

290
Id.

291
Claiborne Good Choice, Reno Evening Gazette, July 27, 1978.
104 Nev. 115, 208 (1988) State Bar of Nevada v. Claiborne
(Emphasis added.) The Gazette's observation in this regard is evidenced by the fact that, in
1972, Mr. Claiborne was recognized for supporting and providing legal services to the poor
when he received an annual award from the Clark County Legal Services.
292
Moreover, over
the years Mr. Claiborne has unselfishly responded to the call of the trial courts of this state
whenever they experienced difficulties in finding attorneys to represent an unpopular cause.
293
Further, the Gazette correctly noted that Mr. Claiborne has provided his considerable
talents as a defense attorney, without charge, to numerous indigent defendants whose legal
problems stirred his compassion.
294
See, e.g., Roy v. State, 87 Nev. 517, 489 P.2d 1158
(1971) (respondent Claiborne successfully prosecuted appeal of mentally retarded defendant
employed as a busboy who had been convicted of the offense of selling a lid of marijuana
to an undercover police officer who had feigned interest in and friendship for the defendant).
The many newspaper articles and editorials appearing throughout the state during this
period of time observed that Mr. Claiborne first came to Nevada during World War II as a
member of the United States Army Air Corps stationed at what is now known as Nellis Air
Force Base.
295
Previously, he was educated at Ouachita Baptist University, and he received
his degree in law from Cumberland University in 1941.
296
In 1942, he was admitted to
practice in his home state of Arkansas, but, after the war, he remained in Southern Nevada
and worked for approximately two years as a police officer in Las Vegas before taking and
passing the Nevada Bar Examination in 1946.
297
Later, Mr. Claiborne not only represented
many police officers in legal matters without charge, but helped establish the police
protective association in Las Vegas and was instrumental in securing the passage of
legislation providing for civil service status for policemen and firemen by the Nevada
legislature.29S
____________________

292
Senate Hearings, supra note 15, Pt. 1 at 194 (pre-trial statement of H. E. Claiborne).

293
Senate Hearings, supra note 15, Pt. 3 at 1513-14.

294
See also Rec. Pt. III, Vol. IV at 823.

295
Prominent Vegas Attorney in Line for Federal Judgeship, Nevada State Journal, July 25, 1978; Claiborne
to be Nominated to Judgeship, Reno Evening Gazette, July 24, 1978; U.S. Judge Admits to Being Colorful,
Las Vegas Review-Journal, August 6, 1978; Where I Stand, Las Vegas Sun, July 30, 1978 (editorial by H.
Greenspun). See also Senate Hearings, supra note 15, Pt. 4 at 2254-61 (Claiborne Ex. 24); and Rec. Pt. III, Vol.
IV at 818-19.

296
The American Bench, supra note 14; Rec. Pt. III, Vol. IV at 817.

297
The American Bency, supra note 14; Senate Hearings, supra note 15, Pt. 1 at 925 (testimony of H. E.
Claiborne) and Pt. 4 at 2256-57 (Claiborne Ex. 24, statement of Senator Howard Cannon); Rec. Pt. III, Vol. IV
at 819-20.
104 Nev. 115, 209 (1988) State Bar of Nevada v. Claiborne
lation providing for civil service status for policemen and firemen by the Nevada legislature.
298

For the next thirty-one years, as the above-noted articles, editorials, and testimony
indicate, he earned the wide respect of his peers, as well as the public-at-large. He was
considered a consummate professional dedicated to the practice of law. In 1960, his
colleagues in the State Bar of Nevada presented him with an award in recognition of his
outstanding service in a criminal case.
299
His colleagues also elected him as president of the
Clark County Bar Association in the early 1970's. Additionally, he was named a Fellow in the
American College of Trial Lawyers.
300
Thus, it cannot be questioned that, on September 1,
1978, when Mr. Claiborne officially assumed the duties of United States District Judge, he
left behind a well-respected and well-established private practice reflecting thirty-one years of
dedication to exemplary legal advocacy. It is equally noteworthy that the conviction giving
rise to this proceeding is apparently the only spot on respondent's previously unblemished
record. Our review of the record before us, as well as this court's disciplinary files, reveals
that the instant proceeding is the only instance in which the question of respondent's ethical
fitness to practice law has been submitted to this court. Further, the State Bar has not apprised
us of any other disciplinary action against respondent during the course of his career. As a
justice of the Illinois Supreme Court observed in a case remarkably similar to this one:
This record indicates that this member of our bar, who has given so much to public
service, now in his seventieth year, has until this unhappy event enjoyed an excellent
reputationsomething which cannot be bought or sold in any market place, but is
acquired only by cultivation in all phases of human conduct.
See In re Walker, 364 N.E.2d 76, 79 (Ill. 1977) (Dooley, J., concurring). In light of this
record, we conclude that we would be remiss in our obligations in this disciplinary
proceeding if we failed to give careful and thoughtful consideration [to] the evidence of
good character and reputation of the Respondent, and his exemplary professional standing. . .
. See State v. Steger, 433 P.2d 225, 227 (Okla. 1966); see also District of Columbia Bar v.
Kleindienst, 345 A.2d 146 (D.C. 1975); In re Ford's Case, 149 A.2d 863, 864 (N.H. 1959).
____________________

298
Senate Hearings, supra note 15, Pt. 1 at 926 (testimony of H. E. Claiborne).

299
The American Bench, supra note 14.

300
Id.
104 Nev. 115, 210 (1988) State Bar of Nevada v. Claiborne
V. DISCUSSION
As previously indicated, in order to afford the parties an opportunity to present their
respective views concerning the legal issues before us, and, if they so desired, to present the
testimony of witnesses addressing the factual and legal issues under consideration, we
scheduled a public hearing in this matter for November 24, 1987. At that hearing, present Bar
Counsel, John Howe, Esq., appeared for and on behalf of the State Bar of Nevada. Oscar
Goodman, Esq., and David Goldwater, Esq., appeared for and on behalf of respondent
Claiborne. Numerous other persons appeared and spoke as friends of the court. In addition,
counsel for the parties advised this court as to their respective positions regarding the
applicable law.
Thereafter, on November 25, 1987, we issued a preliminary decision observing in part:
Fundamentally, the authorities cited to us by counsel for both parties 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; see In re
Cochrane, 92 Nev. 253, 549 P.2d 328 (1976); (2) [i]n 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;
see Sloan v. State [Bar], 102 Nev. 436, 726 P.2d 330 (1986); In re Cochrane, supra; (3)
this court must also consider the isolated nature of an attorney's conduct as well as his
prior, exemplary professional standing; see Sloan v. State [Bar], supra; In re
Francovich, 94 Nev. 104, 575 P.2d 931 (1978); and (4) this court should examine the
retribution and punishment already exacted in determining whether further discipline is
warranted. See Sloan v. State Bar, supra; In re Ross, 99 Nev. 657, 668 P.2d 1089
(1983); Flanders v. State Dep't of Commerce, 87 Nev. 303, 486 P.2d 499 (1971); In re
Reno, 57 Nev. 314, 64 P.2d 1036 (1937). Furthermore, humanitarian concerns such as
age, ill health, or other disability warrant consideration in disciplinary proceedings. See
In re Parks, 64 Nev. 478, 480, 184 P.2d 355, 356 (1947).
Our preliminary decision stated that application of these fundamental legal principles to
the facts reflected in the record persuaded us that no further discipline was warranted, and
that, therefore, we declined to impose additional punishment upon respondent by way of
professional discipline. See Docket No. 17294, order filed November 25, 1987.
104 Nev. 115, 211 (1988) State Bar of Nevada v. Claiborne
Having heretofore set forth in some detail the facts disclosed by our review of the record,
we now turn to a more particularized discussion of the applicable legal principles as they
relate to those facts and the evidence adduced at the hearing of November 24, 1987.
[Headnote 4]
We begin our analysis by again emphasizing that it is this court's obligation in a
disciplinary proceeding to look beyond the label given to a conviction to the true nature of the
facts, in order to determine whether the underlying circumstances of the conviction warrant
discipline. See Sloan v. State Bar, 102 Nev. 436, 440, 726 P.2d 330, 333 (1986); see also In
re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976). Although SCR 111(3) provides that a
certificate of conviction is conclusive evidence of the commission of the crime stated in it in
any disciplinary proceeding instituted against an attorney based on the conviction, it remains
this court's obligation to explore the actual conduct of the attorney that resulted in that
conviction. After all, the question of the extent of the discipline to be imposed centers around
the attorney's conduct itself, not merely the fact of a conviction. See Sloan v. State Bar,
supra; In re Cochrane, supra; see also In re Gross, 659 P.2d 1137, 1140 (Cal. 1983)
(whatever may prompt an inquiry into an attorney's fitness to practice law, it is the attorney's
conduct itself which warrants discipline, and not the conviction which arises therefrom); In re
Crane, 178 N.E.2d 349, 350 (Ill. 1961) (a consideration of the actual conduct of an attorney is
not only proper, but may be indispensable, to an informed appraisal of the appropriate
disciplinary action).
It is true, of course, that courts have considered the facts and circumstances underlying an
attorney's conviction in different contexts and for various purposes. First, in disciplinary
matters courts often review the underlying circumstances of a conviction to ascertain whether
the attorney's conduct involved moral turpitude. In the cases of In re Hallinan, 272 P.2d 768
(Cal. 1954), and In re Hallinan, 307 P.2d 1 (Cal. 1957), for example, the California Supreme
Court considered the matter of an attorney who had been convicted of willfully and
knowingly fil[ing] false and fraudulent income tax returns, in violation of 26 U.S.C.
145(b).
301
See Hallinan, 272 P.2d at 770 n.1. In the first Hallinan decision, Justice Traynor,
writing for the court, concluded that an attorney's conviction under 26 U.S.C. 145{b),
was insufficient to warrant summary disbarment because, under the applicable California
statutes, summary disbarment of an attorney is only warranted "when the crime of which
he was convicted involves moral turpitude." Id. at 771 {emphasis in original).
____________________

301
At that time, 26 U.S.C. 145(b) provided:
Any person required under this chapter to collect, account for, and pay over any tax imposed by this
chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who
willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment
thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction
thereof, be
104 Nev. 115, 212 (1988) State Bar of Nevada v. Claiborne
decision, Justice Traynor, writing for the court, concluded that an attorney's conviction under
26 U.S.C. 145(b), was insufficient to warrant summary disbarment because, under the
applicable California statutes, summary disbarment of an attorney is only warranted when
the crime of which he was convicted involves moral turpitude. Id. at 771 (emphasis in
original). Moreover, Justice Traynor observed, If an attorney could be summarily disbarred
after conviction for a crime, the minimum elements of which do not involve moral turpitude,
he would never have an opportunity to be heard on the issue on which his disbarment
depends. Id. at 772. After reviewing the pertinent authorities, Justice Traynor further
observed:
The foregoing cases establish that fraud is not an essential element of the offense
proscribed by section 145(b), that some measure of bad faith or evil intent is an
essential element, but that such bad faith or evil intent, which can be inferred from
evidence that the defendant acted without justifiable excuse, without ground for
believing his acts were lawful, or in careless disregard of the lawfulness of his acts, do
not necessarily involve moral turpitude.
Id. at 774 (emphasis added). Accordingly, Justice Traynor concluded:
When, as in the present case, it appears that an attorney, whose conviction does not
warrant summary disbarment, might nevertheless have been guilty of acts involving
moral turpitude, we have established the practice of referring the matter to the State Bar
for an investigation of the question whether in the commission of the crime the
convicted lawyer was guilty of misconduct that requires his suspension or disbarment.
This court has inherent power over the admission, suspension, and disbarment of
attorneys, and in the exercise thereof can initiate disciplinary proceedings on its own
motion, and, in so doing, it may adopt any suitable process or mode of proceeding.
Id. at 774-75 (citations omitted; emphasis added). In short, the California court's two
decisions in the Hallinan matter demonstrate that the facts and circumstances underlying an
offense are properly considered where there is sufficient doubt whether the elements of the
crime and the actual conduct resulting in the conviction necessarily involve moral
turpitude.
____________________
fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs
of prosecution.
The Internal Revenue Code has since been amended. The provisions of 26 U.S.C. 145(b) have been
incorporated primarily in 26 U.S.C. 7201 (attempt to evade or defeat tax) and 26 U.S.C. 7202 (willful failure
to collect or pay over tax).
104 Nev. 115, 213 (1988) State Bar of Nevada v. Claiborne
elements of the crime and the actual conduct resulting in the conviction necessarily involve
moral turpitude. See also In re Cochrane, 92 Nev. 253, 254-55, 549 P.2d 328, 329 (1976)
(this court's de novo review of the facts underlying an attorney's conviction for willful failure
to file an income tax return under 26 U.S.C. 7203 established insufficient facts to support a
finding that the attorney had an intent to defraud, or was intentionally dishonest for the
purpose of personal gain; accordingly, this court refused to deem the conviction to be one
involving moral turpitude).
Second, even where the elements of a conviction necessarily establish conduct involving
moral turpitude, courts examine the facts and circumstances underlying an attorney's
conviction to determine the severity of the discipline warranted by the conduct involved. For
example, in the case of In re Kristovich, 556 P.2d 771 (Cal. 1976), the California Supreme
Court concluded:
We are here concerned with petitioner's fitness to continue serving as an attorney.
[T]he purpose of a disciplinary proceeding is not to punish the attorney but to inquire
into the moral fitness of an officer of the court to continue in that capacity and to afford
protection to the public, the courts and the legal profession. (Clancy v. State Bar
(1969) 71 Cal.2d 140, 151, 77 Cal.Rptr. 657, 664, 454 P.2d 329, 336.) For the purposes
of these proceedings, petitioner's convictions for perjury conclusively establish that he
committed acts under circumstances which together constitute perjury (Bus. & Prof.
Code, 6101). The question of moral turpitude is one of law, and the determination of
that issue is this court's responsibility. (In re Higbie (1972) 6 Cal.3d 562, 569, 99
Cal.Rptr. 865, 493 P.2d 97.)
We have repeatedly regarded the offense of perjury, which entails a willful false
statement, contrary to oath, as to a material matter which one knows to be false, to
involve moral turpitude. (See In re Rothrock (1940) 16 Cal.2d 449, 454, 106 P.2d 907;
In re Allen (1959) 52 Cal.2d 762, 768, 344 P.2d 609, (soliciting others to commit
perjury).) Accordingly, petitioner has engaged in conduct involving moral turpitude,
and this court is required by section 6102 subdivision (b) of the Business and
Professions Code to discipline him. The severity of such discipline depends upon the
gravity of the crime and the circumstances of the case. In examining the circumstances
giving rise to the offense in question, we are not restricted to a consideration of the
specific elements of the crime, but may look to the whole course of the attorney's
conduct which reflects upon his fitness to practice law. (In re Higbie, supra, 6 Cal.3d
562, 572, 99 Cal.Rptr.
104 Nev. 115, 214 (1988) State Bar of Nevada v. Claiborne
572, 99 Cal.Rptr. 865, 493 P.2d 97.) Therefore, we now proceed beyond the bare
conviction to the wider analysis, including the facts of petitioner's case and his
explanation of them.
556 P.2d at 773 (emphasis added).
Similarly, in In re Walker, 364 N.E.2d 76 (Ill. 1977), the Illinois Supreme Court
considered the extent of the discipline warranted in a case involving an attorney convicted of
the same crime as respondent Claiborne. The court observed:
We need not consider whether the offense defined in section 7206(1) of title 26 of
the United States Code is a crime involving moral turpitude. The Hearing Board found
that the respondent's conviction of that offense tended to bring the legal profession into
disrepute and warrants discipline. This finding was concurred in by the Review Board.
Although a mere conviction may not necessarily establish moral turpitude, it does
establish misconduct constituting grounds for discipline in the absence of mitigating
circumstances. (In re O'Hallaren, 64 Ill.2d 426, 1 Ill.Dec. 332, 356 N.E.2d 520.) As we
stated in In re Andros, 64 Ill.2d 419, 426, 1 Ill.Dec. 325, 327, 356 N.E.2d 513, 515:
An attorney, above all others, is aware of the responsibility to observe the
requirements of the law. We have reviewed the record and conclude that the finding
that the respondent's conviction tended to bring the legal profession into disrepute is
supported by clear and convincing evidence and justifies disciplinary action. Indeed the
respondent's brief does not seriously contend otherwise. The issue before us, then, is
what quantum of discipline is merited by respondent's conviction. In making that
determination, we may look beyond the plea and the conviction, not to consider
whether discipline is warranted, but to consider the nature of the discipline justified by
the conduct of respondent. In re Andros, 64 Ill.2d 419, 1 Ill.Dec. 325, 356 N.E.2d 513;
In re Crane, 23 Ill.2d 398, 178 N.E.2d 349.
364 N.E.2d at 77 (emphasis added). Thereafter, the court in Walker detailed the facts
underlying that case. We deem those facts of such similarity and significance to the instant
matter that we quote the Illinois Supreme Court's discussion at length.
Respondent entered the practice of law in 1935. In 1938 he was elected to the first of
his three terms as county judge. After service in the armed forces during World War II
he served one term in the Illinois legislature. Following that he was a hearing officer
with the Illinois Commerce Commission for eight years. He was elected to the office of
State's Attorney of Jefferson County in 1966, and served in that capacity until 1972.
104 Nev. 115, 215 (1988) State Bar of Nevada v. Claiborne
Attorney of Jefferson County in 1966, and served in that capacity until 1972. During his
tenure as State's Attorney he also engaged in the private practice of law. It was in 1969,
when respondent was endeavoring to simultaneously fulfill the duties of State's
Attorney and maintain a private practice, that the events which ultimately led to the
instant action occurred.
The indictment which forms the basis for the present disciplinary action charged that
for the year 1969 respondent had taxable income of $22,602.68 but reported only
$13,055. Although respondent was prosecuted by the Federal authorities, his plea
accepted by the district court, and a $5,000 fine imposed, the record reflects that
attorneys for the office of the regional counsel of the Internal Revenue Service stated in
a report after investigating the respondent that it was felt that these unreported receipts
that were reflected on the return lacked a criminal intent. It is clear that respondent's
failure to report all his taxable income was the result of a bookkeeping system so
shoddy that it has been variously characterized before this court as incomprehensible
and nonexistent. . . . Prior to 1969, this had once resulted in respondent overstating his
income and receiving a tax refund; in 1969, the opposite occurred. In short, the proper
amount of income was recorded for the year 1969, but many notations were in the
wrong books and so were not found when the year's income was totalled by his office
help for tax purposes. When respondent discovered the error, he filed an amended
return, 14 months prior to his indictment. The income reported on this amended return,
this time calculated after searching all the ledger books for 1969 income, so closely
approximated the correct income figure that the tax to be paid on it was just $292 less
than the tax liability eventually assessed against respondent's 1969 income.
There is no question but that respondent's conduct fell short of that degree of care
which an attorney should give to the keeping of his income records and cannot be
condoned. His apparent lack of fraudulent intent, however, as recognized by the
Internal Revenue Service's own attorneys, together with a background in public service
which can only be labeled exemplary, mitigate against the suspension recommended by
the majority report of the Review Board. We, therefore, hold that in light of
respondent's conduct and all the aforementioned extenuating circumstances he is
deserving of the censure of this court.
Id. at 77-78. Thus, in Walker, the Illinois Supreme Court examined the circumstances
underlying the attorney's conviction and concluded that extenuating factors mitigated
against a sanction more severe than censure.
104 Nev. 115, 216 (1988) State Bar of Nevada v. Claiborne
concluded that extenuating factors mitigated against a sanction more severe than censure. See
also District of Columbia Bar v. Kleindienst, 345 A.2d 146, 149 (D.C. 1975) (court
considered fact that attorney was caught up in a highly charged political atmosphere. . .'
mitigated the criminal behavior involved, i.e., repeated misrepresentations to a United States
Senate committee); Louisiana State Bar Ass'n v. Loridans, 338 So.2d 1338, 1347 (La. 1976)
(although issue of guilt may not be relitigated, character of misconduct resulting in conviction
may be examined for mitigating circumstances); In re La Duca, 299 A.2d 405 (N.J. 1973);
Levy v. Association of the Bar of City of New York, 333 N.E.2d 350 (N.Y. 1975); Office of
Disciplinary Counsel v. Troback, 383 A.2d 952 (Pa. 1978).
A third consideration has compelled our attention to the facts and circumstances
underlying respondent's conviction in the instant case. As we have noted throughout the
above factual discussion, respondent has tendered for our consideration the issue of whether
the proceedings against him in federal court were conducted fairly, in accord with due process
of law, and in a manner entitling them to undiminished weight in a disciplinary proceeding
before this court. Early on in these proceedings, in our order issued on September 16, 1986,
we observed:
On the basis of evidence obtained to date as a result of this court's order of July 22,
1986, and in light of the several dissenting opinions of judges of the United States
Court of Appeals for the Ninth Circuit, this court has determined that it cannot
summarily dismiss respondent's contentions.
See State Bar v. Claiborne, Docket No. 17294, order filed September 16, 1986; see, e.g.,
United States v. Claiborne, 781 F.2d 1334 (9th Cir. 1986) (Pregerson, J., dissenting); United
States v. Claiborne, 781 F.2d 1327 (9th Cir. 1986) (Reinhardt, J., dissenting); United States v.
Claiborne, 781 F.2d 1325 (9th Cir. 1985) (Ferguson, J., dissenting).
Although it is not the function of this court to sit in review of respondent's federal
judgment of conviction, or to relitigate the question of guilt, nonetheless it is clear that [t]he
two judicial systems of courts, the state judicatures and the federal judiciary, have
autonomous control over the conduct of their officers. . . . See Theard v. United States, 354
U.S. 278, 281 (1957). Accordingly, the United States Supreme Court, in considering the
question of whether disbarment by a state should be followed by disbarment by the federal
courts, concluded that it was proper for it to inquire into whether the state procedures
resulting in state disbarment suffered from any lack of due process. See In Re Ruffalo, 390
U.S. 544, 550, modified 392 U.S. 919 (1968); Selling v. Radford, 243 U.S. 46, 51 {1917).
104 Nev. 115, 217 (1988) State Bar of Nevada v. Claiborne
Selling v. Radford, 243 U.S. 46, 51 (1917). Additionally, in Selling the Court stated that it
would recognize the judgment of a state court in a bar proceeding unless
from an intrinsic consideration of the state record, one or all of the following conditions
should appear: 1. That the state procedure from want of notice or opportunity to be
heard was wanting in due process; 2, that there was such an infirmity of proof as to
facts found to have established the want of fair private and professional character as to
give rise to a clear conviction on our part that we could not consistently with our duty
accept as final the conclusion on that subject; or 3, that some other grave reason existed
which should convince us that to allow the natural consequences of the judgment to
have their effect would conflict with the duty which rests upon us not to disbar except
upon the conviction that, under the principles of right and justice, we were constrained
so to do.
See Selling, 243 U.S. at 51. See also SCR 114(3).
Analogously, where grave allegations are raised respecting the investigative, prosecutorial,
and procedural fairness of the proceedings underlying an attorney's conviction, any
disciplinary action based solely on that conviction, without an intrinsic consideration of the
record of those proceedings, would clearly conflict with the duty which rests upon us in the
performance of our disciplinary function, to proceed in accordance with principles of right
and justice. Selling v. Radford, 243 U.S. at 51. See generally Potter v. State Bd. of Med.
Exam'rs, 101 Nev. 369, 371, 705 P.2d 132, 134 (1985) (the interest in practicing one's
profession cannot be arbitrarily abridged or revoked); Burleigh v. State Bar of Nevada, 98
Nev. 140, 145, 643 P.2d 1201, 1204 (1982) (a state cannot exclude a person from the practice
of law without due process of law).
With these considerations in mind, and from our review of the facts, circumstances and
conduct underlying respondent's federal conviction, we conclude that respondent has indeed
engaged in conduct deserving of discipline. Respondent himself has conceded that he was
careless and negligent with regard to his personal obligations as a taxpayer. Unquestionably,
that conduct, as in the case of In re Walker, 364 N.E.2d 76, 77 (Ill. 1977), tends to bring the
legal profession into disrepute. In our view, respondent's conduct fell short of that degree of
care which an attorney should give to the keeping of his income tax records and cannot be
condoned. Id. at 78. Moreover, the disciplinary rules governing the legal profession in this
state during the period in question prohibited a lawyer from engaging in conduct prejudicial
to the administration of justice and reflecting adversely on his fitness to practice law.
104 Nev. 115, 218 (1988) State Bar of Nevada v. Claiborne
cial to the administration of justice and reflecting adversely on his fitness to practice law. See
ABA Code of Professional Responsibility, DR 1-102(A)(5), (6).
302
We conclude, therefore,
that respondent slighted his responsibilities under these provisions by virtue of his negligent
and careless attention to his legal obligations as a taxpayer during the years 1979 and 1980.
In so concluding, for perhaps the first time throughout the tortured history of respondent's
travails, respondent has been extended the benefit of the doubt. Based upon our extended
consideration of the record, we have emerged with an abiding doubt as to respondent's guilt
under a criminal standard of proof. Therefore, as to respondent's conviction, we are precisely
in the position specified by the United States Supreme Court, having concluded that there
was such an infirmity of proof as to facts found to have established the want of fair private
and professional character as to give rise to a clear conviction on our part that we could not
consistently with our duty accept as final the conclusion on that subject. Selling, 243 U.S. at
51.
Although our conclusion in this regard renders it unnecessary to consider whether the
conduct resulting in respondent's conviction involved moral turpitude, we reiterate that our
view of the facts is in complete accord with the factual analysis tendered by Senator Hatch.
As noted, Senator Hatch carefully reviewed the facts of this case and concluded that they do
not sufficiently support a finding that respondent willfully signed his returns intending to
defraud, or that he was intentionally dishonest for the purpose of personal gain. Under these
circumstances, were it necessary for us to reach the issue, we would entertain grave doubts as
to whether respondent's conduct was sufficiently willful and intentional to justify a finding of
moral turpitude. See In re Cochrane, 92 Nev. at 255, 549 P.2d at 329; see also In re Reno, 57
Nev. 314, 330, 64 P.2d 1036, 1041 (1937) (where physician's license to practice was revoked
based upon a criminal conviction, this court modified the order of revocation where
circumstances created substantial doubt as to whether physician's conduct involved moral
turpitude).
As stated, however, the record in the instant case nonetheless demonstrates grounds
warranting the imposition of discipline. Therefore, the issue before us is the severity of the
disciplinary sanction to be imposed. The underlying facts and circumstances of the
conviction, as well as all relevant factors in mitigation of any possible sanction, are
appropriately considered in this regard. Sloan v. State Bar, supra; In re Cochrane, supra; In re
Kristovich, 556 P.2d 771, 773 {Cal.
____________________

302
These specific provisions, among others, were repealed on March 28, 1986, and replaced by the Model
Rules of Professional Conduct. See SCR 150.
104 Nev. 115, 219 (1988) State Bar of Nevada v. Claiborne
Kristovich, 556 P.2d 771, 773 (Cal. 1976); In re Walker, 364 N.E.2d 76, 77 (Ill. 1977).
Moreover, this court must consider all the relevant factors and mitigating circumstances on a
case-by-case basis. See Murray v. State Bar of California, 709 P.2d 480, 485 (Cal. 1985).
See generally In re Kellar, 88 Nev. 63, 493 P.2d 1039 (1972); In re Parks, 64 Nev. 478, 481,
184 P.2d 355, 356 (1947). There are no fixed standards as to the appropriate penalty in
disciplinary actions. Alberton v. State Bar of California, 686 P.2d 1177, 1185 (Cal. 1984),
cert. denied, 470 U.S. 1007 (1985).
Further, in reaching a just determination in this regard, we must remain mindful of the
primary goals of disciplinary action. As we observed in Cochrane, the fundamental
objective of disciplinary action . . . 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. See Cochrane, 92 Nev. at 255, 549 P.2d at 329, citing In re
Ford's Case, 149 A.2d 863, 864 (N.H. 1959).
303
Accordingly, we turn to an examination of
those factors relevant to respondent's fitness to serve as an officer of the court and to continue
the practice of a profession imbued with the public interest and trust. See In re Echeles, 430
F.2d 347 (7th Cir. 1970) (purpose of bar proceedings is not to punish but to determine the
fitness of an officer of the court to continue in that capacity and to protect the courts and the
public from the official ministration of persons unfit to serve); Standing Com. on Dis. of
United States v. Ross, 735 F.2d 1168, 1170 (9th Cir.), cert. denied, 469 U.S. 1081 (1984); see
also Ex Parte Wall, 107 U.S. 265, 273 (1882).
The obvious circumstances to be considered in this regard encompass the alleged conduct
underlying the charges against respondent in the criminal proceedings. As we detailed above,
however, the first four counts of the indictment related to the accusations respecting the
solicitation and acceptance of bribes from Joseph Conforte.304 In view of the substantial
evidence that Conforte's accusations were nothing more than the unreliable, highly
motivated effusions of a brothel owner and fugitive from justice, we are compelled to
discount completely, as did the government in dismissing the Conforte counts, any
inference of attorney misconduct that might be associated with them.
____________________

303
Our review of the legal authorities reveals that an overwhelming majority of states has adopted a similar
approach in bar disciplinary matters. See, e.g., Ex Parte Wall, 107 U.S. 265 (1882) (bar proceedings are not for
purposes of punishment but seek to protect the courts and the public from attorneys unfit to serve); Matter of
Riley, 691 P.2d 695, 706 (Ariz. 1984); In re Kristovich, 556 P.2d 771 (Cal. 1976); District of Columbia Bar v.
Kleindienst, 345 A.2d 146, 147 (D.C. App. 1975); The Florida Bar v. Saphirstein, 376 So.2d 7 (Fla. 1979); In re
Crisel, 461 N.E.2d 994 (Ill. 1984); Louisiana State Bar Ass'n v. Bosworth, 481 So.2d 567 (La. 1986); Matter of
Freedman, 277 N.W.2d 635 (Mich. 1979); Matter of Discipline of Kraemer, 361 N.W.2d 402 (Minn. 1985); In
re Maier, 664 S.W.2d 1 (Mo. 1984); Matter of Kushner, 502 A.2d 32 (N.J. 1986); Matter of Maragos, 285
N.W.2d 541 (N.D. 1979); In re Scannell, 617 P.2d 256 (Or. 1980); Office of Disciplinary Counsel v. Tumini,
453 A.2d 310 (Pa. 1982); Carter v. Cianci, 482 A.2d 1201 (R.I. 1984); McInnis v. State, 618 S.W.2d 389 (Tex.
Civ. App. 1981), cert. denied, 456 U.S. 976 (1982); Matter of Stock, 704 P.2d 611 (Wash. 1985).
104 Nev. 115, 220 (1988) State Bar of Nevada v. Claiborne
however, the first four counts of the indictment related to the accusations respecting the
solicitation and acceptance of bribes from Joseph Conforte.
304
In view of the substantial
evidence that Conforte's accusations were nothing more than the unreliable, highly motivated
effusions of a brothel owner and fugitive from justice, we are compelled to discount
completely, as did the government in dismissing the Conforte counts, any inference of
attorney misconduct that might be associated with them. Thus, we conclude that these
unfounded charges support no inference that respondent's continued practice of law would
endanger the public.
Next, Count VII of the indictment charged that respondent submitted a false financial
disclosure form to the Judicial Ethics Committee in 1978. The jury acquitted respondent of
this charge, and we have discovered nothing in the record supporting a conclusion that
respondent otherwise violated any rules of professional or judicial conduct relating to the
Judicial Ethics Committee disclosure form. Accordingly, we conclude that the record reveals
on impairment to the public's interest in a competent bar arising out of the conduct underlying
Count VII.
The remaining counts of the indictment against respondent concern his tax returns for the
years 1979 and 1980. As Senator Hatch has observed, respondent's conduct in this regard is
far more consistent with negligence than with an intent to defraud or intentional dishonesty
for the purpose of personal gain.
____________________

304
Count IV of the indictment charged that respondent willfully signed his income tax return for the year
1978 knowing that it falsely understated his income for that year. The prosecution argued at the first trial that,
along with other unreported income, the 1978 return failed to report the alleged $30,000 bribe from Conforte.
See Rec. Pt. II, Vol. XV at 3561. As previously noted, the prosecution dismissed Count IV of the indictment
along with the remaining Conforte counts prior to the second trial. We further note in this regard that attorney R.
Paul Sorenson testified at the November hearing respecting respondent's tax returns. Mr. Sorenson holds both a
law degree and an accounting degree and is a Certified Public Accountant. Prior to the hearing in Las Vegas on
November 24, 1987, Mr. Sorenson advised the Chief Justice that he felt he possessed knowledge that could be of
significance at the hearing. After Sorenson briefly outlined his knowledge of the case, the Chief Justice
concluded that Sorenson's testimony at the hearing would be appropriate. See Nevada Code of Judicial Conduct
Canon 3A(4). Indeed, at the hearing, there were no objections to Sorenson's testimony. Sorenson explained that
in 1983, respondent had asked him to review respondent's tax returns for the years 1972 through 1980, and that
Sorenson prepared amended returns for respondent for the years 1977, 1978, and 1979. Further, Mr. Sorenson
stated that both the 1977 and 1978 returns had overstated respondent's taxable income and respondent had a
refund due from the IRS. See State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of
November 24, 1987, at 59-64. Thus, according to Mr. Sorenson, in 1978 respondent had overpaid his taxes.
Therefore, in the absence of Conforte's bribery accusations it appears that there was no basis whatsoever for
Count IV of the indictment.
104 Nev. 115, 221 (1988) State Bar of Nevada v. Claiborne
intentional dishonesty for the purpose of personal gain. Respondent's negligent inattention to
his tax obligations during the years in question, however, does adversely reflect on his fitness
to practice law. Accordingly, as we have noted, the conduct underlying these counts
establishes grounds for discipline.
Nevertheless, as in the Cochrane case, an important consideration is whether [t]here is . .
. a scintilla of evidence before us that [respondent] was derelict in any duties owed to, or
performed for, his clients. In re Cochrane, 92 Nev. at 255, 549 P.2d at 329. In the present
case, respondent's transgressions related solely to his personal tax obligations, and there have
been no allegations that respondent was ever derelict in his obligations as an attorney or as a
federal judge. In fact, the numerous witnesses who addressed this court at the hearing of
November 24, 1987, lauded respondent's contributions as a lawyer. For example, Marion
Earl, who until his recent death was the senior practicing attorney in Clark County and a
highly respected member of the bar, observed:
I do not excuse his carelessness and his negligence in the matter of his tax returns,
but I am strongly convinced that there were no wrongful intentions on his part.
I have known Harry Claiborne, Judge Harry Claiborne, since he first began his
practice of law here in 1947.
I have never known any attorney who worked harder at his chosen profession than
Judge Claiborne.
I join with my colleagues in feeling that he has been punished enough and has
suffered enough.
And on behalf of myself and my colleagues, I respectfully ask this honorable body to
season justice with mercy.
305

Similarly, attorney George Dickerson, a past president of the State Bar of Nevada and
member of its Board of Governors for twelve years stated:
Nobody in this room could tell you today that Harry Claiborne cannot handle the
process in behalf of individuals in our judicial system.
As a matter of fact, denying him that right may very well be depriving those to
whom we owe the duties to provide the best, the very best among us in the criminal
process. That's one aspect of this case for your consideration.
306

Attorney Edward G. Marshall, former District Attorney of Clark County, echoed these
sentiments by nothing that respondent: has always been, in my experience . . . a very skilled
adversary.
____________________

305
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at
27-28.

306
Id. at 25.
104 Nev. 115, 222 (1988) State Bar of Nevada v. Claiborne
has always been, in my experience . . . a very skilled adversary. But not only that, he
has always been a fair man. He was always anxious and solicitous for the welfare of his
own clients. He always played by the rules of the game fairly. I never, at any time, saw
anything that would suggest to me that he was morally unfit.
307

Additionally, Neil Galatz, a past president of the Western Trial Lawyers' Association and a
member of the Nevada Trial Lawyers' Association, the Board of Governors of the American
Trial Lawyers' Association, and the Board of Directors of the International Academy of Trial
Lawyers, stated that Mr Claiborne has always, as a lawyer, conducted himself with the
utmost honor, outstanding courage and great talent.
308

State Senator Herbert Jones, a past president of the State Bar of Nevada, expressed the
view that if this community were deprived of the right to have [respondent] assist them with
their legal problems, that . . . would be a great loss to this community.
309
All of the
statements tendered by the remaining witnesses at the hearing expressed similar views
respecting respondent's dedication to the legal profession.
310

As set forth above, our independent review of respondent's professional background
corroborates the representations of the eminent and distinguished members of the public and
the bar who stated that respondent's continued practice of law will pose no threat to the
public's interest in a competent bar. Moreover, as we have observed, this proceeding is the
only instance during respondent's approximate forty-year membership in the Nevada Bar, in
which respondent's ethical fitness to practice law has been formally questioned in this court.
The conduct underlying respondent's violations of the disciplinary rules is unquestionably
isolated and atypical.
____________________

307
Id. at 37.

308
Id. at 39.

309
Id. at 42.

310
The remaining witnesses presented by respondent's counsel included William P. Curran, the
President-Elect of the State Bar of Nevada; George Foley, Sr., a distinguished former District Attorney of Clark
County; Paul C. Parraguirre, a former President of the State Bar of Nevada; Daniel M. Markoff, the Federal
Public Defender; Edward R. J. Kane, a former Chief Deputy District Attorney and Chief Assistant United States
Attorney for the District of Nevada and O. C. Lee, the head of the Las Vegas Metropolitan Police Protective
Association and President of the Nevada Conference of Police and Sheriffs. In addition, written statements were
placed in the record from Brian Greenspun, a member of the Nevada Bar and editor of the Las Vegas Sun;
William K. Woodburn, a past president of the State Bar of Nevada; and Claude Evans, the Executive
Secretary-Treasurer of Nevada A.F.L./C.I.O.
104 Nev. 115, 223 (1988) State Bar of Nevada v. Claiborne
isolated and atypical. This fact, in addition to respondent's long and distinguished career in
public and private practice, his contributions to the improvement of the administration of
justice and his exemplary record of pro bono representation, weigh heavily in mitigation of
his conduct. See Sloan v. State Bar, 102 Nev. 436, 443, 726 P.2d 330, 335 (1986) (suspension
of professional license inappropriate when isolated instance of negligent behavior is
committed); In re Francovich, 94 Nev. 104, 106, 575 P.2d 931, 932 (1978) (single incident of
misconduct, as opposed to a pattern of misconduct, weighs against suspension); In re Parks,
64 Nev. 478, 480, 184 P.2d 355, 356 (1947) (lack of prior disciplinary action considered
when imposing discipline).
311

Further, we observe that the parties to these proceedings have been afforded an equal
opportunity to call to our attention facts and circumstances in aggravation or mitigation of the
disciplinary sanction to be imposed in this case. As we have previously explained,
respondent's counsel tendered the voluminous record of the federal proceedings to the State
Bar. The Board was afforded an opportunity to review that record and to call to our attention
any further evidence relevant to these disciplinary proceedings. Unquestionably, it was within
the Board's authority to conduct such a review or to instruct Bar Counsel to do so.
Nonetheless, no aggravating circumstances reflecting upon the public impact of respondent's
continued practice were ever tendered by the State Bar for our consideration.
____________________

311
Our review of the authorities from other jurisdictions establishes that consideration of such mitigating
factors is clearly appropriate in disciplinary proceedings. See, e.g., Perloff v. Disciplinary Bd. of Ala. State Bare,
424 So.2d 1305, 1307 (Ala. 1982) (court reversed board's decision to disbar, considering as mitigating factors
attorney's long and distinguished career in private practice and the state legislature, and devotion of time and
energy to bar projects which improved the administration of justice); District of Columbia Bar v. Kleindienst,
345 A.2d 146, 148 (D.C. 1975) (attorney's previous, unblemished and laudable record in private practice and
public service is considered in determining discipline); Office of Disciplinary Counsel v. Eilberg, 441 A.2d
1193, 1197 (Pa. 1982) (lawyer's significant contributions while a public servant, his good character, high repute,
and fitness to practice law, notwithstanding his conviction, mitigate sanction); In re Walker, 364 N.E.2d 76, 78
(Ill. 1977) (exemplary public service background mitigates against sanction of suspension); Louisiana State Bar
Ass'n v. Marcal, 430 So.2d 47, 50 (La. 1983) (in refusing to disbar, court noted not only attorney's
post-conviction behavior, but his high integrity, dedication to the legal profession, acceptance of unpopular
cases, voluntary service to community organizations, groups and individuals, as well as his reputation as a
dedicated advocate whose work exemplified his thoroughness and preparation); State ex rel. Okl. Bar Ass'n v.
Hensley, 560 P.2d 567, 569 (Okla. 1977) (court considered attorney's previous record concerning professional
conduct in rejecting recommendation to disbar attorney); State v. Steger, 433 P.2d 225, 227 (Okla. 1966) (court
would be remiss in its duty if it did not carefully and thoughtfully consider an attorney's good character,
reputation and exemplary professional standing).
104 Nev. 115, 224 (1988) State Bar of Nevada v. Claiborne
public impact of respondent's continued practice were ever tendered by the State Bar for our
consideration. From our own independent, de novo review of what we consider to be an
adequate record, we conclude that there is ample basis for endorsing the consensus of the
eminent members of the bar and the public who spoke in mitigation of respondent's conduct
at the November hearing. Accordingly, we conclude that respondent's continued practice of
law will pose no threat to the interests of the public in a competent bar.
Nonetheless, our determination respecting the appropriate disciplinary sanction does not
end with the conclusion that the public's interest in a competent bar will not be endangered by
respondent's continued practice. As Bar Counsel has correctly observed, the purpose of
professional disciplinary proceedings is both to protect the public and also to maintain public
confidence in the bar as a whole.
312
In attempting to attain the latter objective, however, we
must carefully balance the need to protect the good name of the profession against the
retribution already exacted through the criminal justice system or otherwise. See Sloan v.
State Bar, 102 Nev. 436, 443, 726 P.2d 330, 335 (1986) (demands of justice were served
through punishment received through the criminal justice system); In re Ross, 99 Nev. 657,
660, 668 P.2d 1089, 1092 (1983) (court considered fact that attorneys had been subjected to
an extensive amount of improper, inflammatory, unfair and concerted public obloquy and
extra-legal torment in assessing retribution already exacted); In re Cochrane, 92 Nev. 253,
255, 549 P.2d 328, 329-30 (1976) (suspension or disbarment would be inappropriate because
it could only be construed as additional punishment); Flanders v. State Dep't of Commerce,
87 Nev. 303, 308-9, 486 P.2d 499, 502 (1971) (reversing order which affirmed revocation of
license of a real estate broker because no further punishment warranted where the demands of
justice had already been served); In re Reno, 57 Nev. 314, 330, 64 P.2d 1036, 1041 (1937)
(retribution previously exacted had satisfied the demands of justice); In re Winters, 40 Nev.
335, 337, 163 P. 244, 245 (1917) (good name of the profession must be maintained and those
guilty of professional misconduct should suffer consequences, but rights of an attorney must
not be sacrificed in an effort to maintain high standing of the bar).
[Headnote 5]
Our consideration of the retribution thus far exacted upon respondent, in mitigation of the
extent of discipline to be imposed, comports with the decisions of other courts faced with
the problem of attorney discipline.
____________________

312
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at 86
(emphasis added).
104 Nev. 115, 225 (1988) State Bar of Nevada v. Claiborne
imposed, comports with the decisions of other courts faced with the problem of attorney
discipline. For example, the case of In re Del Mauro, 341 A.2d 325 (N.J. 1975), concerned a
judge who, for a considerable period of time, received fees for performing marriage
ceremonies despite a court directive prohibiting such practice. Because of this misconduct,
the judge was suspended from the practice of law for one year. Subsequent to his
reinstatement, a federal indictment was returned against him charging him with two counts of
filing false tax returns, in violation of 26 U.S.C. 7206(1), for failing to report the improper
fees on his returns. He pleaded guilty to one count and served four months of a two-year jail
sentence. In proceedings to determine whether and to what extent additional discipline should
be imposed as a result of the federal conviction, the New Jersey Supreme Court concluded,
under the circumstances, that a short suspension was an appropriate sanction:
The question of punishment, as usual, is difficult. Respondent's conduct of course
requires discipline. It is true, however, that he has suffered much. He was compelled to
resign his judgeship under a cloud of obloquy. Thereafter he was suspended from the
practice of law for one year and later required to pay a substantial fine and to undergo a
custodial prison sentence. It is impossible, as it would be wrong, not to take account of
these successive instances of manifest personal disgrace and hardship with their
undoubted effect upon the respondent.
Id. at 326.
313

Similarly, in the instant case, we believe the principles of fairness, justice and equity, as
well as a proper application of strictly legal rules . . . demand our consideration of the
hardship, humiliation, personal disgrace, mental suffering and financial costs which
respondent has endured as a result of the federal proceedings against him.
____________________

313
See also Matter of Swartz, 630 P.2d 1020, 1026-27 (Ariz. 1981) (where evidence did not establish that
attorney violated a legal duty of disclosure because he was either incompetent, incapable or he sought to enrich
himself, and disciplinary proceedings had been pending for six years, censure rather than suspension was
appropriate sanction); In re Mekler, 406 A.2d 20, 25 (Del. 1979) (court considered fact that attorney sustained
substantial penalty in judgment rendered against him in civil litigation arising out of same facts and course of
conduct); In re Scott, 455 N.E.2d 81, 85-86 (Ill. 1983) (in light of evidence of attorney's past service as Attorney
General and State Treasurer, and the high caliber of his performance as a public official, and excellent reputation
for truth, veracity, and integrity both before and after his conviction, court refused to sanction attorney beyond
the two year interim suspension already served); Carter v. Cianci, 482 A.2d 1201, 1203 (R.I. 1984) (severe
sanction of loss of public office resulting from conviction mitigates against sanction of disbarment or
suspension); In re Hansen, 584 P.2d 805, 807 (Utah 1978) (the great amount of time, effort, expense, adverse
publicity and criticism, due in part to attorney's status as public official, is factor to be considered in mitigation).
104 Nev. 115, 226 (1988) State Bar of Nevada v. Claiborne
ship, humiliation, personal disgrace, mental suffering and financial costs which respondent
has endured as a result of the federal proceedings against him. See In re Pray, 64 Nev. 402,
411, 183 P.2d 627, 631 (1947).
In this context, we observe that respondent has suffered under a cloud of obloquy and
innuendo for nearly ten years, ever since it was disclosed to the press that he was under
investigation by a Las Vegas grand jury. He endured three additional grand jury investigations
and the accompanying publicity before he was finally indicted on seven felony counts, four of
which subsequently proved to be unfounded. Although the first trial ended in a mistrial and
the second trial proceeded only on those counts unrelated to Conforte's allegations,
respondent was put to the considerable expense during the first trial of defending against all
the charges including those lacking any substantial foundation. We deem it of considerable
significance that respondent evidently was subjected to the financial and emotional burdens
of defending against the unfounded Conforte allegations largely as a result of what appears to
have been a vendetta by a limited number of federal officials.
Moreover, following respondent's conviction in the second trial, he was assessed $10,000
in fines, over $14,000 in costs of prosecution and served seventeen months of a two-year
prison term. He has further been burdened with considerable costs relative to the
congressional impeachment proceedings. During much of his prison term, respondent was
deprived of the opportunity to earn a living in his chosen profession. Even after his release, he
voluntarily refrained from the practice of law until this court entered its order of November
25, 1987, allowing him to do so.
In addition, we observe that when respondent assumed the federal bench at the age of
sixty-one, he gave up a lucrative private practice and took a substantial reduction in salary.
Following his impeachment and the Senate trial, he forfeited his judicial salary, plus the
eventual prospect of substantial financial benefits and security respondent could have enjoyed
as a federal judge in senior status. See 28 U.S.C. 371 (1984).
314
Even without the precise
calculations that a professional actuarial evaluation would provide, we deem the loss of
these benefits to be of considerable consequence in the case of a seventy-year old
individual who has undoubtedly expended substantial resources in a legal battle spanning
almost a decade.
____________________

314
Under the provisions of 28 U.S.C. 371(a), (b) and (c), respondent would have had the option in the fall
of 1988, after serving ten years in office and attaining the age of 70, to retire from his office or to retain the
office but retire from regular active service. A federal judge who chooses to retire from office receives an
annual annuity during the remainder of his lifetime equal to the salary he was receiving at the time he retired.
See 28 U.S.C. 371(a). A federal judge who chooses to retain his office but retire from regular active service
receives the salary of the office during the remainder of his lifetime. See U.S.C. 371(b).
104 Nev. 115, 227 (1988) State Bar of Nevada v. Claiborne
without the precise calculations that a professional actuarial evaluation would provide, we
deem the loss of these benefits to be of considerable consequence in the case of a
seventy-year old individual who has undoubtedly expended substantial resources in a legal
battle spanning almost a decade. Under these circumstances, if this court were to deprive
respondent of the opportunity to earn a living at the only profession to which he has dedicated
his life, and at this stage of his life, the resulting hardship, in light of the isolated nature of his
professional derelictions, would be extreme and disproportionately severe. Such humanitarian
concerns have weighed heavily in our determination. See, e.g., In re Parks, 64 Nev. 478,
480-81, 184 P.2d 355, 356 (1947) (court took into account that attorney was sixty-nine, in ill
health and partly disabled, and that he may have been the victim of local bar association's
attempt to strike at the improper practices of another); In re Winters, 40 Nev. 335, 337, 163 P.
244, 245 (1917) (court considered the serious consequences of disciplinary action that could
deprive an attorney of the age of the individual there involved from earning a living for
himself and his family in the calling in which he was trained and for which he was
presumably best suited); Matter of Tapper, 477 N.Y.S.2d 16, 17 (N.Y. App. Div. 1984)
(where attorney was convicted of making a false written statement, court determined that a
lengthy suspension would result in severe deprivation in light of attorney's age, illness, and
fact that he was sole support for a dependent son and his personal problems had prevented
him from practicing for approximately one year).
As we have noted, the statement of Brian Greenspun was included in the record of this
court's November hearing. In light of Mr. Greenspun's perspective as an attorney, and as an
editor of the Las Vegas Sun, and although we are fully aware of the supportive stance that the
Las Vegas Sun has articulated throughout respondent's trials, we consider his observations
regarding the public's perception of this matter with some deference. In this regard, Brian
Greenspun stated:
On this issue, I can report an overwhelming belief among the people from whom I
have heard that Claiborne has been punished enough.
From the precedential standpoint, it is clear that others who have been convicted of
similar offenses spent little, if any, time in prison and were allowed to practice their
profession, benefiting not only themselves and their families but their clients as well.
Clearly, not one of them has been impeached on national television in front of
millions of Americans. Suffering the ultimate humiliation by being stripped naked of
high judicial office in front of his fellow countrymen, having to serve the fullest
extent of a prison sentence, being denied any form of early release or parole, and
having to return to a community which once held you in high esteem as a federal
judge and a respected defense attorney, has provided Harry Claiborne with a degree
of ignominy heretofore unmatched in legal history.
104 Nev. 115, 228 (1988) State Bar of Nevada v. Claiborne
office in front of his fellow countrymen, having to serve the fullest extent of a prison
sentence, being denied any form of early release or parole, and having to return to a
community which once held you in high esteem as a federal judge and a respected
defense attorney, has provided Harry Claiborne with a degree of ignominy heretofore
unmatched in legal history.
The public sentiment I have heard, and which I report to you today, is that to strip
the last vestiges of dignity from Harry Claiborne by refusing to allow him to earn a
living in a profession to which he has brought honor throughout his adult life is
unnecessary and cruel and is not in keeping with the level of tolerance for human frailty
for which Nevadans have become known and envied.
315

We also take note of the statement of Claude Evans, the Executive Secretary-Treasurer of
the A.F.L./C.I.O. in Nevada, which was submitted for our consideration at the November
hearing. Mr. Evans observed in part:
We in organized labor feel strongly that Mr. Claiborne deserves the opportunity to
continue to earn his living in his chosen profession.
. . .
We feel that he has paid his penalty to society, if, indeed, he owed one, and should
not continue to be persecuted and denied the right to continue in his profession.
316

We have given appropriate consideration to these expressions of the public's sentiment in
assessing the impact of our decision upon the public's confidence in the legal profession in
this state.
As many of the speakers at the November hearing urged, we have also given appropriate
consideration to the punitive impact upon respondent of the congressional proceedings. As
attorney George Foley, Sr., observed, respondent had the terrible punishment of going before
this nation on television, and when the United States Senator of his own state went to shake
his hand, he was shoved aside by United States Marshals.
317

It is indeed of no little significance that respondent endured the ignominy of being the first
federal judge in over fifty years to be impeached and removed from office. No less significant
is the fact that respected United States Senators have expressed the belief that although the
unprecedented procedural rules employed during the Claiborne impeachment trial may
have comported with constitutional standards vesting each body of Congress with the
authority to determine its own rules, those unprecedented procedures, and perhaps the
press of Senate business as Congress rushed to complete its agenda before an election
year adjournment, may well have denied respondent the full, fair, and meaningful hearing
the Senate historically has accorded to others in respondent's position.
____________________

315
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at
69-70.

316
Id. at 73-74.

317
Id. at 45.
104 Nev. 115, 229 (1988) State Bar of Nevada v. Claiborne
belief that although the unprecedented procedural rules employed during the Claiborne
impeachment trial may have comported with constitutional standards vesting each body of
Congress with the authority to determine its own rules, those unprecedented procedures, and
perhaps the press of Senate business as Congress rushed to complete its agenda before an
election year adjournment, may well have denied respondent the full, fair, and meaningful
hearing the Senate historically has accorded to others in respondent's position.
In reaching our determination, we have further carefully considered the substantial
indications that adverse special and selective investigative, prosecutorial, trial, and appellate
procedures were imposed on respondent throughout the proceedings against him. This overall
appearance of impropriety, as defined in part by Judge Reinhardt, has influenced our
decision not only in terms of the weight which we have accorded respondent's federal
conviction for the purposes of these disciplinary proceedings, but also in terms of the
substantial mental anguish that respondent has thus far endured.
Additionally, we note that a review of similar attorney disciplinary cases in this
jurisdiction reveals that respondent may have already suffered more retribution than the
combined criminal and disciplinary sanctions previously imposed upon any individual
member of the Bar convicted of a similar tax offense. In the Cochrane case for example, it
does not appear that Cochrane suffered any imprisonment as a result of his income tax
conviction, nor did this court impose suspension or disbarment. This court did, however,
impose monetary sanctions upon Cochrane in an amount less than $4000. A review of this
court's files also reveals an unreported case involving an attorney who was convicted of
income tax evasion and fined $10,000, pursuant to a plea of nolo contendere. The attorney did
not receive a sentence of imprisonment. Upon the recommendation of the Board of Bar
Governors, this court suspended him from the practice of law for six months. See Order No.
6214, filed October 12, 1970. He lost no position and was not subjected to any comparable
humiliation, stress, or public obloquy, and never served time in prison.
Finally, we have given serious consideration to the eloquent observation of Marion Earl
who reminded us that [t]he quality of mercy is not strained, and respectfully requested that
we season justice with mercy in behalf of Judge Harry Claiborne.
318
In light of the
magnitude of the hardship and retribution that respondent has endured, we consider Mr. Earl's
eloquent plea particularly meaningful.
____________________

318
Id. at 28-29.
104 Nev. 115, 230 (1988) State Bar of Nevada v. Claiborne
In the final analysis, after a careful review of the massive record before us and the
principles of law applicable to attorney discipline, we have concluded that the imposition of
additional sanctions upon respondent would serve no proper purpose and could only be
construed as additional punishment. See In re Cochrane, supra. In our view, the magnitude of
the retribution heretofore exacted from respondent has satisfied the demands of justice and
has adequately insured against any repetition of the attorney misconduct revealed by our
review of the facts. See Sloan v. State Bar, 102 Nev. at 443, 726 P.2d at 335; In re Ross, 99
Nev. 657, 668 P.2d 1089 (1983); see also Flanders v. State Dep't of Commerce, 87 Nev. 303,
486 P.2d 499 (1971); In re Reno, 57 Nev. 314, 64 P.2d 1036 (1937).
VI. CONCLUSION
[Headnote 6]
Harry Eugene Claiborne will forever remain an historical enigma. If our review of the
record had enabled us to conclude, in good conscience, that Claiborne had been fairly
prosecuted and convicted, we unhesitatingly would have imposed severe sanctions given the
position of high judicial office and public trust he enjoyed at the time of his conviction.
Accordingly, we do not fault those who, however precipitously, criticize us for having
apparently diminished the magnitude of a criminal conviction sustained by one of our own.
319
Indeed, we have not been unmindful of the fact that countless numbers of citizens will not
have or take the opportunity to study and ponder seriously what has occurred beyond the
headlines respecting respondent's prosecution, conviction, and removal from office, and our
ultimate disposition of the disciplinary proceeding. Thus, we are admittedly troubled by the
prospect that this court's motives and actions may be perpetually misunderstood to the
detriment of our judicial and legal system in Nevada. We are equally sensitive to the views of
some non-Nevadans who, with an existing disdain for gaming and legalized prostitution, may
simply conclude that our decision was consistent with their perceptions of the moral
atmosphere of our state. We thus understand that there are undoubtedly those within and
without the bar, the judiciary, and this state who would exact of Harry Eugene Claiborne
"the uttermost farthing."
____________________

319
For example, an editorial in the National Law Journal, December 14, 1987 edition, declared: The fact
that Mr. Claiborne is again a lawyer in good standing is a perfect example of lawyers protecting their own. It
never should have happened. See Claiborne Found Fit to Practice Law in Nevada, National Law Journal,
December 14, 1987. Each of us received a letter from a law student expressing outrage over our decision not to
subject Claiborne to further punishment, and decrying our gutter ethics as the source of Claiborne's relief.
104 Nev. 115, 231 (1988) State Bar of Nevada v. Claiborne
this state who would exact of Harry Eugene Claiborne the uttermost farthing. We would
join them if we could ignore what the record reveals about his conviction. We would join
them if we could cast aside what we must recognize as sound legal precedents. We may have
joined them if we could have simply cast stones at him without considering the human
frailties that permeate all aspects and all sides of this case. And perhaps we could have joined
them if we had disregarded the spirit of our procedural rules and merely followed the
recommendation of a disciplinary board ill-equipped to provide an in-depth review of the
record.
The most difficult of the issues before us concerns the tension between public perceptions
of the integrity of the judiciary and the bar on the one hand, and individual justice to Harry
Claiborne on the other. Ultimately, we concluded that if the cherished values of individual
dignity and due process of law are to have any real meaning, our course was clear. In that
regard, we do not imply that respondent has been denied a form of due process. Our concerns
relate to the quality of the due process he received. Although we can readily appreciate the
need to remove corrupt judges from office, and certainly the machinery and will exists for so
doing, it nevertheless is essential to even-handed justice that he or she to whom the task of
assuring that due process prevails in our courtrooms, may also feel secure in the benefits
thereof when involved in the process as a criminal defendant.
Similarly, in this nation's highest traditions of deference to human dignity, we have
accorded a presumption of innocence to those accused of a crime. From the record, we are
forced to question whether that presumption was ever meaningfully enjoyed by respondent.
And yet, we emphatically declare that our decision has not been, to any extent, based upon
what are popularly referred to as legal technicalities. Hence, by way of illustration, we have
paid not the slightest attention to respondent's allegations that his residence was unlawfully
entered by or at the behest of federal agents to secure information useful to the prosecution.
320
When it comes to a judicial officer, proof of guilt, however obtained, would have to be
considered in a disciplinary proceeding; maintaining public confidence in the bench and bar
would demand no less.
Harry Claiborne, to this date, remains a convicted felon. It has been neither the nature of
this proceeding nor our jurisdictional prerogative to alter that status. Any relief to which
respondent may be entitled in that regard must be sought through the federal system that
produced the conviction.
____________________

320
Rec. Pt. I, Vol. VIII, Pleading No. 81; Rec. Pt. I, Vol. IX, Pleading No. 105.
104 Nev. 115, 232 (1988) State Bar of Nevada v. Claiborne
system that produced the conviction. We, of course, have no way of knowing whether
Claiborne is innocent or guilty of the charges that eventually caused his downfall. We have
therefore brought to bear our combined efforts and resources to analyze fairly and thoroughly
the large record in an attempt to responsibly uphold our duty to dispense justice. There will be
those who will objectively and patiently track the slow pace of this lengthy opinion and still
honestly conclude that we arrived at the wrong destination. There may also be those who will
agree that our conclusions are just, but nevertheless feel that respondent should be sacrificed
on the altar of ongoing respect for public perceptions of the integrity of the bench and bar.
321
And inevitably there will be those who, in their harsh and precise judgment will prove anew
the truth of George Herbert's observation that the ignorant hath an eagle's wings and an owl's
eyes. Neither this court, nor respondent, nor any other earthly source can disabuse those in
the latter category; we would prefer that it were otherwise, for it would greatly serve the
principles underlying this opinion, as well as future discourse on improving the
administration of justice.
In summary, we wish to stress that our disposition of this matter should in no manner be
construed to diminish the significance and the consequences which ordinarily are accorded to
an attorney's conviction of a serious crime. See SCR 111. As we have endeavored to set forth
above, however, this was no ordinary conviction. Questionable investigative and
prosecutorial motivations, as well as anomalous and arguably unfair practices and procedures,
pervade the record of this matter from its inception. Indeed, the very procedures utilized by
this court in resolving the issues at hand have been the subject of much recent discussion in
the press and among the members of the bar. We are cognizant of the fact that regardless of
our ultimate disposition of this case, its controversial nature and the widespread public
attention which it has engendered will inevitably result in further public debate. Accordingly,
in an attempt to insure that such debate, regardless of its focus, may be informed, based upon
fact rather than anonymous speculation, we have endeavored to set forth in detail the
manner in which this matter came before us, the procedures we employed in resolving the
factual and legal issues presented and the underlying facts and legal rationale which led
to our ultimate conclusion.
____________________

321
Such feelings would not be without some justification. It is clear that respondent, as a sitting federal
judge, was both intemperate and provocative in his comments to the press concerning the integrity and character
of federal agents assigned to the task of bringing criminal elements to justice in Nevada. See textual discussion,
page 19, supra, including the footnoted material therein. Hence, the contention is not totally without reason that
respondent invited the treatment he received and that he, rather than the bench and bar, should suffer the
consequences of the vendetta provoked by his intemperate public statements. Again, we may have had some
sympathy for that view if the record had reflected a true and fair path from the point of agitation through
respondent's conviction and impeachment.
104 Nev. 115, 233 (1988) State Bar of Nevada v. Claiborne
rather than anonymous speculation, we have endeavored to set forth in detail the manner in
which this matter came before us, the procedures we employed in resolving the factual and
legal issues presented and the underlying facts and legal rationale which led to our ultimate
conclusion. In so doing we are hopeful that the public and the bar will come to understand
that we acted in accordance with well-established and frequently stated principles of law
pertinent to professional disciplinary proceedings.
In light of the above, we decline to impose additional punishment upon respondent
Claiborne by way of professional discipline, and we hereby dismiss these disciplinary
proceedings.
322

Young and Springer, JJ., concur.
____________________

322
Pursuant to the request of respondent's counsel, The Honorable John C. Mowbray, Justice, recused
himself from consideration of this case. Nev. Const. art. 6, 4.
104 Nev. 115, 234 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #1
(See book) EXHIBIT #2
EXHIBIT #2
104 Nev. 115, 235 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #2
(See book) EXHIBIT #3
EXHIBIT #3
104 Nev. 115, 236 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #3
(See book) EXHIBIT #3 cont.
104 Nev. 115, 237 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #3 cont.
(See book) EXHIBIT #4
EXHIBIT #4
104 Nev. 115, 238 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #4
(See book) EXHIBIT #4 cont.
104 Nev. 115, 239 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #4 cont.
(See book) Gunderson, C. J., concurring:
104 Nev. 115, 240 (1988) State Bar of Nevada v. Claiborne
Gunderson, C. J., concurring:
I applaud our brother Steffen's conscientious and scholarly effort to provide for history an
organized and documented recitation of the sequence of facts involved in the years-long
pursuit of Judge Claiborne, the prosecutions of Judge Claiborne and various others, and the
eventual conviction and impeachment of Judge Claiborne himself.
Nonetheless, this court cannot hope to proveby hundreds of citations to the many
thousands of pages contained in the record before usthat we have arrived at the final,
complete, and ultimate truth concerning the Claiborne saga. Nor can we hope to validate, to
the satisfaction of everyone, that we are correct in deciding that the 71-year-old respondent
has at long last suffered enough. I would hope, however, that through Justice Steffen's careful
and measured exposition of the historical background, it will be demonstrated, to
open-minded folk at least, that there are principled basesboth in fact and in lawfor our
conclusion that he should not be punished further.
There is a venerable allegorical tale about three sightless mendicants who sensed an
elephant passing by them, and who each reached out a hand and touched a different part of
his anatomy. One beggar, who contacted the pachyderm's leg, pronounced it confidently to be
a tree. Another, who encountered the beast's side, felt himself without question to be facing a
wall. And the third, who grasped the animal's trunk, believed beyond any doubt that he had
taken hold of a great snake. Each stated his own view with certitude, and wondered what evil
demons had possessed his fellows and impelled them to announce their obviously false and
groundless claims. A heated dispute ensued between the beggars. All accused the others of
being fools and liars; no agreement was ever reached.
As experienced by many, discussions of the Claiborne case almost certainly will be
destined for a similar fate. The pursuit, the trials, the conviction, and the impeachment of
Judge Claiborne has generated an elephantine body of data, from which diverse inferences
and conclusions can be drawnperhaps even by someone who carefully evaluates the data.
And, although most of those data are available in the huge record lodged with this court's
clerk here in Carson City, the public neither has any practical access to the record, nor the
time and training to sift and weigh its contents. One might argue that, in the interest of our
country, the press as the public's surrogate should undertake to analyze the record carefully on
behalf of the citizenry. Certainly, as Justice Steffen's efforts demonstrate, its contents reveal a
taleindeed, several talesworth telling.
104 Nev. 115, 241 (1988) State Bar of Nevada v. Claiborne
I am informed by this court's staff, however, that except for the few token passing glances,
no one from outside the courtjournalist, lawyer, or lay personhas sought to look at the
record at all. There are those who justify their unwillingness to address or assess the facts by
professing to believenotwithstanding the fact that Judge Claiborne was wrongly pursued
for years on a series of baseless chargesthat the only fact now of importance is that the
government ultimately managed to convict him, on very tenuous evidence, of filing false tax
returns. Well, let anyone who so desires start and end his or her personal thought processes
with that one fact. If the pachyderm's tailthe convictionis all such persons wish to
consider, so be it! I will concede such persons the right to their opinionsalthough, as
Bernard Baruch once opined, I tend to think no one is entitled to be wrong or ignorant about
the facts.
In regard to such persons' notions of what the law should be, I can only respondbased on
the authorities cited in our brother Steffen's opinionthat under the established law of this
state, and of many other jurisdictions for that matter, our court clearly has had a more
expansive and more difficult duty to fulfill than merely to notice that Judge Claiborne was
ultimately convicted of a federal offense. And it does seem to me, franklyafter so many
laws and rules have been ignored and altered throughout the federal system in the long
process of achieving Judge Claiborne's conviction and impeachmentthat the man should at
least be entitled now to have this court adhere with fidelity to our prior precedents: precedents
which clearly dictate that we should evaluate all mitigating factors in the course of deciding
whether or not, as a further and collateral consequence of his conviction, to strip away this
elderly man's only remaining means of earning a livelihood.
If each member of this court were to set forth all of his thoughts about this case, I think we
would probably quadruple the length of Justice Steffen's opinion. I, for example, am just as
astounded as the Reno Gazette-Journal has been over the bargain government agents struck
with a multiply-convicted brothel owner, and I hereby adopt that newspaper's comments by
reference. See Reno Gazette-Journal, June 29, 1984, Conforte Reels in Some Mighty Big
Suckers, at 21A. I consider the editorial just cited to be as relevant today as when it was
written, because the Gazette-Journal set forth a very cogent picture of how and why the
prosecution of Judge Claiborne was initiated and pursued. In the crucial area covered by the
editorial, I could not present my thoughts nearly so lucidly, although I would attempt to be
less strident. The Gazette-Journal stated: The Justice Department and the FBI were so
incensed at Judge Claiborne that the need for revenge blinded them to everything but one
burning desire.
104 Nev. 115, 242 (1988) State Bar of Nevada v. Claiborne
The Justice Department and the FBI were so incensed at Judge Claiborne that the need
for revenge blinded them to everything but one burning desire. The federal government
could not rest after Claiborne denounced its Strike Force lawyers as rotten bastards
and crooks and liars. It could not bear Claiborne's other insinuations without
retaliating.
So it dug and dug, and when Conforte put out his bait, the government swallowed it
right up to the fishing pole.
I have discovered nothing in the record that does not support the Gazette-Journal's further
observation that agents of the government were too busy with retaliation to bother with
facts. However, I would notas the Gazette-Journal seems tocondemn all representatives
of the Justice Department and the FBI. I believe that the vendetta the newspaper described
was pursued by only a limited number of agents, one of whom (Yablonsky) has since exited
both his office and Nevada under a cloud of charges that related to misuse of his office and to
apparent expropriation of a large sum of money belonging to a bank. As to other dubious
prosecutorial behavior that has been revealedfor just one example, the persecution of
respected Nevada IRS Director Gerald SwansonI join Justice Steffen in hoping the same
did not result from a knowing vendetta by the Justice Department or FBI, but from the
indiscretions of a small group of people. I believe the management of the Gazette-Journal
must understand the reason that better men, higher in government, tolerated the abuses was
because the targeted judge had traversed the important principle of political science that the
Gazette-Journal implicitly recognized in its editorial. That is, if members of a group are
criticized and embarrassed, cohesion tends to develop among all of its members, and this
tends to be particularly true when the criticism is harsh and directed toward the group as a
whole.
In any case, in our brother Steffen's effort to apply the law to the evidence in the record, he
has alluded to the foregoing and to most of the other significant facts and ideas that have
occurred to me while studying this record. Also, to the extent they have relevance to the case
before us, Justice Steffen has touched upon the more important considerations which repel
certain unfair allegations anonymous sources have tendered to the media concerning
procedural aspects of the handling of this caseallegations that never have been raised as
issues by Bar Counselbut which the sources, by distorting facts, have attempted to
convince the media should be deemed burning concerns nonetheless.
104 Nev. 115, 243 (1988) State Bar of Nevada v. Claiborne
As tempted as I am to do so, I will therefore not enlarge extensively upon Justice Steffen's
work in order to repel spurious non-issues which have been raised to the press by bar
sources but never by Bar Counsel. Issues not preserved for our consideration, either by
objection or by motion of counsel, are not normally considered by this court.
1
Thus, the
attacks launched through the media by anonymous bar sources, which concern notions
never tendered to this court as issues by Bar Counsel, either contemporaneously or at all,
should be considered no proper part of the case before us.
Before concluding, I want to mention that I have now served nearly 18 years on this court,
which is vested with the solemn task of providing a final resolution for the most hotly
debated issues which arise in our courts. Members of this court now must gird themselves to
decide more than four cases per judicial day. This does not leave unlimited time to reflect.
This court is no longer the relaxed, contemplative environment law students envision when
they think of O. W. Holmes, Jr., and Learned Hand, and, to anyone who suggests our
decisions are sometimes flawed by the imperatives of haste, I must acknowledge my fear that
this is true. I do not believe such a thing occurred in the instant case, however.
In the time I have served here, I have participated in the determination of over 12,000
cases, involving some 30-thousand or so litigants plus their attorneys. For every successful
litigant, there is a loser. In the nature of things, at least half or more of them must go away
dissatisfied with our judgmentssometimes desperately so. And, in cases with a high public
profile, such as this one, the number of the general public who will be disappointed,
disgruntled, or incensed necessarily increases quite markedly. In my time, few matters have
possessed as much potential for sharply dividing public opinion as the case before us.
Unfortunately, in matters as controversial as this one, citizens who find their wishes have not
prevailed tend to vent their frustrations in personal, ad hominem attacks against this court.
____________________

1
See Trustees, Carpenters v. Better Building Co., 101 Nev. 742, 743, 710 P.2d 1379, 1381 (1985) (in
absence of objection, point not considered on appeal); Whalen v. State of Nevada, 100 Nev. 192, 194, 679 P.2d
248, 250 (1984) (objection to allegedly incompetent evidence is necessary, or court will accept same as
admissible); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (point not
contemporaneously urged is deemed waived); Diversified Capital v. City of N. Las Vegas, 95 Nev. 15, 19 n.4,
590 P.2d 146, 148 n.4 (1979) (appellant without standing to assert master's failure to make a record, since no
request made); Auto Fair, Inc. v. Spiegelman, 92 Nev. 656, 659, 557 P.2d 273, 275 (1976) (absent objection to
testimony, point not later considered by this court).
104 Nev. 115, 244 (1988) State Bar of Nevada v. Claiborne
As one example of this kind of reaction, I wish to note that, apparently on the basis of
anonymous sources, who could have nothing substantial to back up their claims, it has
repeatedly been printed as a fact that I am a close friend of Judge Claiborne. Without
belaboring the point, I believe such an appellation totally mischaracterizes my past
associations with the respondent herein. The Recorder, a San Francisco legal newspaper
which has reported on this matter with more objectivity than some, quoted legal ethicist
Charles W. Wolfram, a Cornell University law professor, as characterizing my acquaintance
with Judge Claiborne as not shocking at all and almost to be expected in such a small legal
communityespecially when both Gunderson and Claiborne are two of its best known
figures. The Recorder, Apr. 4, 1988, at 18. In any case, Bar Counsel knew that I believed I
should not disqualify myself, and he never saw fit to raise the question by tendering any
motion for my disqualification, in the manner provided by law.
In my view, I was not disqualified to sit either because of my fictive closeness to Judge
Claiborne, or because I had testified under subpoena as a fact witness in his first trial, about
matters which later neither remained at issue nor were subject to any question. Obviously, I
could have taken the easy way out by disqualifying myself. But under Nevada law, I had a
positive obligation not to disqualify myself as to matters concerning which I did not believe
myself disqualified. Now, of course, a judge's own views on the subject of his disqualification
are not the final authority. Under Nevada statutes, counsel for either side may question the
judge's assessment of such an issue by formal motion. If Bar Counsel had done so, of course,
I would have been afforded a chance to present my views in a public hearing, held openly
pursuant to NRS 1.225(4). No motion for disqualification has ever been filed.
2

Again, another media outlet has printed speculationsaltogether without basis and
contrary to factthat this court has been "dragging its feet" in regard to producing an
opinion in this matter.
____________________

2
In this regard, I refer particularly to the case of Ham v. District Court, 93 Nev. 409, 566 P.2d 420 (1977), in
which the Supreme Court of Nevada issued a writ of prohibition to prevent a judge from disqualifying himself
voluntarily in a case when, in so doing, he had stated he felt there was no cause for him to do so. In other words,
this court held that a judge is not free to disqualify himself voluntarily, without good cause, thereby shirking
over to another judge his own obligations in a contentious or difficult matter. If he does not deem himself
disqualified, the judge has a duty under Nevada law to continue presiding, unless and until he is removed by
other authority.
The aforedescribed concept, which has been called the duty to sit doctrine, is not peculiar to Nevada law.
It is also recognized by federal courts and, in fact, Judge Walter Hoffman referred to the doctrine in denying
requests for his disqualification. See, e.g., Rec. Pt. I, Vol. VI, Pleading No. 56.
104 Nev. 115, 245 (1988) State Bar of Nevada v. Claiborne
been dragging its feet in regard to producing an opinion in this matter. Quite to the
contrary, as I believe Justice Steffen's opinion makes obvious, we have given a maximum
effort and priority to trying to satisfy the demands of history for a full and documented
analysis of the pertinent facts and the relevant law. The problem in formulating an opinion in
this matter has not been that supporting data are sparse, as it has been hypothesized, but that
they are so many.
And to take a final example, another media outlet has gone so far as to suggest to its
readerswithout any facts to justify the notion, of coursethat the members of this court
perhaps think of Harry Claiborne as a hero. Well, I do not regard Judge Claiborne as a hero;
nor do I know anyone on this court who does. Certainly, Judge Claiborne acted precipitously
by the manner in which he retaliated verbally against his tormentors; he was at least negligent
in handling his personal affairs; he thereby left himself vulnerableand he has paid a terrible
price for these lapses.
Yet, while I certainly would not seek to tender Judge Claiborne to the world as a hero, I
will suggest that if the man had been a quitterhad he capitulated, rolled over as the saying
goes in courthouse circlesso that the background facts of his pursuit and prosecution
remained forever obscured, it could have been extremely unfortunate for the American bench
and bar. Indeed, it could have been most unfortunate for America. One of the greatest
bulwarks for freedom in this country is our independent, life-tenured federal judiciary. It is
vitally important, therefore, for the notion never to gain credence that a United States District
Court judge can easily be targeted, discredited and destroyed. Whenever such an effort to
discredit and destroy a federal judge is undertaken, I think it is essential that any suspect facts
concerning the undertaking shall be made known. Hence, through Judge Claiborne's
stubbornnessI will not say whether his resistance should be call courageI suggest that he
has impelled, and is impelling, an important examination of the processes by which his
indictment, conviction and impeachment were achieved.
While I suppose anonymous sources may castigate me for even tendering it, I will close
by offering the idea that, because the independence of the federal judiciary is so important, it
may be fortunate for our country's system of checks and balances that the targeting and
pursuit of the United States District Court judge herein question has not ended with his total
annihilation. There is no doubt whatever that pursuit began with a fixed purposebut
without any evidence whateverthat the United States District Court judge should be
destroyed. The pursuit was totally goal-oriented toward that end. The notion of tax charges
had not even been dreamed of, when the effort began to find something to justify a
prosecution, any prosecutionl
104 Nev. 115, 246 (1988) State Bar of Nevada v. Claiborne
even been dreamed of, when the effort began to find something to justify a prosecution, any
prosecution!
And when the pursuit ended, it did not culminate with any clear affirmation of the premise
on which it startednamely, that the United States District Court judge was corruptbut,
rather, it ended with a collection of data that, as Senator Orrin Hatch cogently argued, is more
consistent with a finding of mere negligence than with any inference of criminal culpability.
In these circumstances, I concur in the majority's conclusion that the final denouement of this
unfortunate episode in American history should not be the total and complete destruction of
the judge as a human being and as a productive citizen.
____________
104 Nev. 246, 246 (1988) Harris v. State
In the Matter of the CRIMINAL CASE OF: RUPERT HARRIS and RALPH TROISI,
PONDEROSA INSURANCE COMPANY and A-1 BAIL BONDS, SURETIES FOR
RUPERT HARRIS, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 18333
June 24, 1988 756 P.2d 556
Appeal from order of district court upholding the forfeiture of a bail bond. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Sureties on bail bond for criminal defendant who did not appear moved to set aside
forfeiture. The district court denied the motion. Sureties appealed. The Supreme Court held
that the fact that affidavit of mailing did not accompany notice of intent to forfeit bond did
not preclude forfeiture where sureties received actual notice.
Affirmed.
Carmine J. Colucci, Las Vegas, for Appellants.
Rex Bell, District Attorney, Mitchell M. Cohen, Deputy District Attorney, Clark County,
for Respondent.
Bail.
That affidavit of mailing did not accompany notice of intent to forfeit bail bond, as required by statute,
did not preclude forfeiture of bond, where sureties received actual notice of intent to forfeit bond and were
not prejudiced. NRS 178.508.
104 Nev. 246, 247 (1988) Harris v. State
OPINION
Per Curiam:
Appellants, sureties for the defendant Rupert Harris, were forced to make payment to
respondent, the State of Nevada, on Harris' forfeited bail bond when he failed to appear for
trial in August, 1985. Appellants claim the district court erred in denying their motion to set
aside the forfeiture. The motion was premised on noncompliance with NRS 178.508. An
affidavit of mailing did not accompany the Notice of Intent to Forfeit, as required by the
statute.
1
Appellants alleged no other grounds for setting aside the forfeiture.
Appellants concede that they received actual notice of the intent to forfeit the bond and
were not prejudiced by the lack of compliance with NRS 178.508. Where there is actual
notice, lack of prejudice, and substantial compliance with the statute, a district court's order
forfeiting a bail bond will not be reversed. However, we do not condone the district court's
failure to comply with the requirements of NRS 178.508. Forfeitures are not favored at law,
and statutes imposing them must be strictly construed. Wilshire Insurance Co. v. State, 94
Nev. 546, 582 P.2d 372 (1978). While Wilshire did not concern the technical requirements of
an affidavit of mailing, the reasoning is valid. We hold that district courts must adhere to the
provisions of NRS 178.508; an affidavit of mailing shall accompany the notice of intent to
forfeit a bond, as the language of the statute requires.
In this case, appellants were not prejudiced. Accordingly, we affirm the order of the
district court.
____________________

1
NRS 178.508 provides:
If the defendant fails to appear when his presence in court is lawfully required and not excused, the court
shall direct the fact of such failure to appear to be entered upon its minutes. If the undertaking exceeds
$50 or money deposited instead of bail bond exceeds $500, the court shall direct that the sureties and the
local agent of each surety, or the depositor if he is not the defendant, be given notice that the defendant
has failed to appear, by certified mail within 15 days after the failure to appear, and shall execute an
affidavit of mailing to be kept as an official public record of the court. The undertaking or money instead
of bail bond is forfeited upon the expiration of 90 days after the notice is mailed, except as otherwise
provided in NRS 178.509. A copy of the notice must be transmitted to the district attorney at the time
notice is given to the sureties or the depositor. (Emphasis added.)
____________
104 Nev. 248, 248 (1988) Nau v. Sellman
PAUL E. NAU, JR., Appellant, v. NORMAN G. SELLMAN and JACQUELINE
McMONAGLE, Respondents.
No. 18606
June 24, 1988 757 P.2d 358
Appeal from judgment in a tort action. Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
Vendor sued purchasers of land for false arrest and negligent infliction of emotional
distress. Purchasers counterclaimed for fraud. The district court returned a verdict in favor of
purchasers and awarded damages. Vendor appealed. The Supreme Court held that: (1) there
was no evidence to support jury finding that vendor defrauded purchasers, and (2) vendor
failed to show that purchasers had misrepresented or neglected to provide any material
information in their report to police officer so as to be liable for false arrest.
Reversed in part, affirmed in part.
Richard F. Cornell, Reno, for Appellant.
Ohlson, Edmiston and Aimar, and Mary K. Bickett, Reno, for Respondents:
1. Vendor and Purchaser.
To prove fraud, purchaser needs to show that vendor made false representation, that vendor knew of
falsity at time of representation, that vendor made false representation with intent to induce sale through
reliance on misrepresentation, that purchaser justifiably relied on misrepresentation, and that purchaser
suffered damages as result of his reliance.
2. Vendor and Purchaser.
There was no substantial evidence to support jury's finding that vendor misrepresented foundation of
home as legal, when in fact it both extended into set back area and was out of square.
3. Evidence.
In suit for false arrest and negligent infliction of emotional distress, testimony of chief deputy district
attorney that, in his opinion, plaintiff was guilty of grand larceny and, judging by plaintiff's demeanor at
preliminary hearing, plaintiff acted like guilty party, was improper; testimony was tantamount to opinion
that defendant was not liable for false arrest.
4. False Imprisonment.
In order to prove false arrest, plaintiff must show defendant instigated or effected an unlawful arrest.
5. False Imprisonment.
Vendor failed to show that purchasers misrepresented or neglected to provide any material information in
their report to police officer about circumstances surrounding firewood allegedly stolen by vendor, so as to
sustain claim of false arrest, where purchasers accurately and fully reported their personal
knowledge about loss to police officer under good-faith belief that firewood was
theirs and was wrongfully taken, and purchasers left decision whether to instigate
charges up to police and district attorney's office.
104 Nev. 248, 249 (1988) Nau v. Sellman
reported their personal knowledge about loss to police officer under good-faith belief that firewood was
theirs and was wrongfully taken, and purchasers left decision whether to instigate charges up to police and
district attorney's office.
OPINION
Per Curiam:
The Facts
Appellant Nau, a real estate appraiser and broker, owned a lot in Incline Village on which
he had constructed a house foundation. In 1980, he sold this lot to respondents Sellman and
McMonagle. The lot, at the time of sale, contained some trusses, a garage door, assorted
construction lumber, as well as severed timber, some of which Nau had chopped for
firewood. There was no mention of the timber or firewood in the sales and escrow agreements
between the parties. The parties disagreed, at trial, as to what oral agreement about the
firewood, if any, was reached at or before the time of sale.
1

Four years after the sales transaction, Nau, apparently acting under the belief that the
firewood was still his personal property, returned to Sellman's lot, on which in the interim
Sellman had constructed a house. Nau noticed that some of the wood, which previously had
been there, was missing. Nau knocked on Sellman's door, but Sellman was not there at the
time. Nau then spoke with a next door neighbor, Janice Jackson. Jackson told him that
someone had been taking the firewood from Sellman's lot. Concluding that someone was
stealing his firewood, Nau informed Jackson that he was going to reclaim his wood and asked
if he could gain access to it by using a small road on her property. He also left her his card
with his name and number in case anyone concerned about the wood wanted to contact him.
He then spent most of the next day at Sellman's lot, loading the firewood. He loaded
approximately two to four cords of wood, making several trips. Nau testified that shortly
thereafter, he tried to inform Sellman that he had taken the wood, but because Sellman's
phone numbers in Palm Springs and elsewhere were unlisted, Nau could not reach him.
____________________

1
Nau testified that before the lot was sold, he reached a gentleman's agreement with Sellman that if he
would allow me to leave [my] wood there [on the lot], that he would be free to use what he needed for his home
there. He added I thought that he had agreed to allow me to leave the wood there, with the freedom on his part
to use what he needed for his home, and that when I wanted some wood, or needed some wood, I could come get
some, also.
Sellman, however, testified that Nau merely told him, before the sale, that I [Sellman] would have wood for
many years. Sellman interpreted that statement to mean that Nau was including the firewood with the sale of the
lot, even though the wood was not included in the sales agreement.
104 Nev. 248, 250 (1988) Nau v. Sellman
to inform Sellman that he had taken the wood, but because Sellman's phone numbers in Palm
Springs and elsewhere were unlisted, Nau could not reach him.
When Sellman and McMonagle returned to their house, they discovered the wood was
missing. They spoke with their neighbor and she told them Nau had taken the wood. Without
attempting to reach Nau, they then contacted the police and informed Officer Salkowski that
Nau had taken the firewoodwhich they valued at approximately $1,500without their
permission. After questioning Jackson, Salkowski filed a criminal complaint against Nau, and
he was subsequently arrested for grand larceny.
Although at the preliminary hearing Nau protested his innocence, arguing that he thought
the wood was his, Nau was bound over.
2
He later entered a plea of nolo contendere to
trespassing. He was fined $50 and ordered to pay $500 restitution to Sellman. Nau then filed
a civil action against Sellman, alleging false arrest and negligent infliction of emotional
distress. Sellman filed a counterclaim, alleging that Nau had earlier committed fraud when he
sold Sellman the lot.
The jury found for Sellman and McMonagle on Nau's false imprisonment and negligent
infliction of emotional damage actions; it awarded Sellman and McMonagle $8,000 for their
counterclaim alleging fraud. The district court also awarded Sellman approximately $7,000 in
attorney fees. Nau appeals.
Discussion
Two years after Nau sold Sellman the lot, Sellman discovered that the foundation Nau
built extended about seven feet into a setback area. As a result, the County halted
construction on his house until he obtained a variance. When Nau sued Sellman for false
arrest, Sellman counterclaimed for fraud, alleging Nau had misrepresented that the foundation
on the lot was legal, when in fact it was both set back and out of square. As noted, the
jury awarded Sellman $8,000 on this counterclaim.
Nau argues that there is no substantial evidence to support the jury's conclusion that he
defrauded Sellman. After examination of the record, we agree.
[Headnotes 1, 2]
To prove fraud, Sellman needed to show: (1) that Nau made a false representation (2) with
knowledge of its falsity (3) and with the intent to induce a sale through reliance on the
misrepresentation.
____________________

2
Justice of the Peace Pope, after considering the evidence presented in the preliminary hearing, bound Nau
over. However, he immediately thereafter issued a Statement of Error in which he declared that The Court,
upon further reflection, believes that it did not have probable cause to support a determination in favor of the
State on the element of knowing intention to permanently deprive the owner of the property alleged to have been
stolen.
104 Nev. 248, 251 (1988) Nau v. Sellman
the intent to induce a sale through reliance on the misrepresentation. Sellman also needed to
show that (4) he justifiably relied on the misrepresentation, and (5) he suffered damages as a
result of his reliance. Sanguinetti v. Strecker, 94 Nev. 200, 206, 577 P.2d 404, 408 (1978).
Despite counsel's attempt, during oral argument, to support and justify the jury's verdict, the
record simply reflects no significant support for any of the elements of fraud. Accordingly,
we reverse the jury's verdict on the fraud action and $8,000 award.
[Headnotes 3, 4]
Nau also argues that the district court committed error prejudicing his false arrest cause of
action. At trial, Mr. Kenneth Howard, a Chief Deputy District Attorney, testified for Sellman
about Nau's arrest and prosecution. Howard first testified that in his opinion, Nau was guilty
of the crime of grand larceny. He then added that he had seen thousands of guilty defendants,
and, judging by Nau's demeanor in the preliminary hearing, Nau also acted like a guilty
guy. Nau's trial counsel did not object. Nau argues that by allowing this testimony, the
district court committed plain error.
In Winiarz v. State, 104 Nev. 43, 752 P.2d 761 (1988), this court concluded that it was
error for a court to allow an expert to testify that the defendant was a murderer and thereby
usurp the jury function. In this appeal, Howard's testimony that Nau was guilty of grand
larceny was tantamount to testimony that Sellman was not liable for false arrest. And, with
due respect to Howard's ability to perceive guilt based solely on appearance and demeanor,
3
his opinion on the subject was improper and should not have been admitted.
Nevertheless, we conclude that the improper testimony is not a basis for reversal of the
false arrest verdict. In order to prove false arrest, a plaintiff must show the defendant
instigated or effected an unlawful arrest. However, as Restatement (Second) of Torts 45(A)
comment c (1965) notes:
It is not enough for instigation that the actor has given information to the police about
the commission of a crime, or has accused the other of committing it, so long as he
leaves to the police the decision as to what shall be done about any arrest, without
persuading or influencing them.
____________________

3
The prosecutorial judgment that Nau was guilty of grand larceny may not have been too keen. Not too many
would-be thieves leave their business card, with name and phone numbers, at the neighbors, ask permission to
use their road, and then spend all day, in broad daylight, purloining firewood of a quantity hardly worth the risk
of apprehension and criminal prosecution.
104 Nev. 248, 252 (1988) Nau v. Sellman
[Headnote 5]
In this case, Nau did not show that Sellman or McMonagle misrepresented or neglected to
provide any material information, in their report to the police officer, about the circumstances
surrounding the firewood. The record on appeal suggests that Sellman and McMonagle
accurately and fully reported their personal knowledge about the loss, to Officer Salkowski,
under a good faith belief that the wood was theirs and wrongfully taken and left the decision
whether to instigate charges up to the police and district attorney's office. Accordingly,
although we reverse the jury verdict with respect to Sellman's fraud counterclaim and the
district court's award of attorney fees,
4
we affirm the jury verdict that Sellman and
McMonagle are not liable for false arrest.
____________________

4
See generally Barnum v. Williams, 84 Nev. 37, 42, 436 P.2d 219, 222-23 (1968).
____________
104 Nev. 252, 252 (1988) Larson v. B.R. Enterprises
JACK LARSON, Appellant, v. B.R. ENTERPRISES, INC., d/b/a RNR TOURS, and
BERTRAM S. ROSS and the ESTATE OF JOSEPHINE F. ROSS, Respondents.
No. 18336
June 24, 1988 757 P.2d 354
Appeal from a district court judgment on a counterclaim. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Joint venturers and respective corporations filed actions against each other for conversion,
monies due on promissory note, and accounting. The district court entered judgment from
which one venturer appealed. The Supreme Court held that: (1) one venturer had converted
entire $15,375 in commissions owed to other venturer; (2) venturer was entitled to interest on
repayment of $15,000 given for option, under terms of promissory note; and (3) trial court
erred in accounting and distribution of net profits of corporations without consideration of
above the line expenses.
Reversed and remanded.
[Rehearing denied December 8, 1988]
Gang & Berkley, Las Vegas, Michael, Best & Friedrich and Gaar W. Steiner, Milwaukee,
Wisconsin, for Appellant.
Lovell, Bilbray & Potter, Las Vegas, for Respondents.
1. Trover and Conversion.
Joint venturer exercised wrongful dominion over entire $15,375 and not merely $9,375 of other
venturer's commission, even though joint venturer used $6,000 of other venturer's
commission to pay an alleged debt of other venturer's, where joint venture had ended
at time commission was collected, joint venturer admitted that commission was other
venturer's, joint venturer did not obtain or care about other venturer's approval
before paying purported debt, and joint venturer paid $6,000 alleged debt to protect
joint venturer's own reputation.
104 Nev. 252, 253 (1988) Larson v. B.R. Enterprises
not merely $9,375 of other venturer's commission, even though joint venturer used $6,000 of other
venturer's commission to pay an alleged debt of other venturer's, where joint venture had ended at time
commission was collected, joint venturer admitted that commission was other venturer's, joint venturer did
not obtain or care about other venturer's approval before paying purported debt, and joint venturer paid
$6,000 alleged debt to protect joint venturer's own reputation.
2. Bills and Notes.
Optionee who made $15,000 down-payment, evidenced by promissory note, for option to purchase stock
in corporation was entitled to interest on repayment of note, where language of note which shareholder
signed and which provided for payment of interest to optionee was plain and its meaning was clear.
3. Bills and Notes.
Trial court erred in finding that only corporation was liable for $15,000 down-payment evidenced by
promissory note which optionee paid to shareholder for option to purchase shares where, under terms of
note, shareholder was debtor, corporation was guarantor, and optionee sued shareholder for monies owned
under note.
4. Joint Ventures.
Joint venture agreement, which provided for sharing of net profits of two corporations, was intended to
ensure equal compensation to each venturer, so that trial court erred in not making adjustments to
accounting and distribution of net profits to reflect fact that one venturer paid larger salary to himself and
made contributions to profit-sharing plan from corporate profits.
OPINION
Per Curiam:
The Facts
Larson, appellant, was the sole shareholder of Casino Holiday Inc. (hereafter CHI).
Ross, respondent, was the sole shareholder of B.R. Enterprises (hereafter BRE). Both
corporations arranged junket trips to Las Vegas.
On September 11, 1979, Larson and Ross entered a venture wherein they generally agreed
to share the net profits of the two corporations and give each other options to purchase 50%
of the other's corporation. They signed two contractsentitled Agreement and Service
Contractdetailing the terms of their agreement and relationship. At the same time, Larson
paid Ross $15,000, as a down payment under a purchase option, for which Ross executed a
promissory note, guaranteed by his corporation, in the event that the purchase was not
consummated. The Agreement, Service Contract, and option to purchase were initially
intended to expire on April 30, 1980. However, the parties later agreed to extend all three to
September 11, 1981. During the two years of the venture, BRE entrusted Larson, for
investment purposes, with $60,000; Larson never exercised his option to purchase.
104 Nev. 252, 254 (1988) Larson v. B.R. Enterprises
purposes, with $60,000; Larson never exercised his option to purchase.
Toward the end of this two-year period, the relationship between the two men cooled, and
they allowed the venture to end on September 11, 1981. At this time, Larson still had BRE's
$60,000; Ross still had CHI's $15,000. In November, 1981, the Four Queens Hotel gave Ross
$15,375 it owed CHI, for junkets CHI had produced. Ross unilaterally refunded the Four
Queens $6,000, out of the $15,375, to satisfy an alleged debt of one of Larson's customers,
and retained the remainder of the commission.
In May, 1982, BRE sued Larson, alleging he converted the $60,000 that BRE had placed
in his trust. Larson's counterclaim against BRE and Ross sought recovery of his $15,375 Four
Queens' commission plus interest, recovery of the $15,000 he had paid Ross under the
purchase option, with interest, and an accounting/equitable division of the two corporations'
profits, as provided by the Agreement.
Following a bench trial, the district court concluded that Larson was liable to BRE for the
$60,000 BRE had given him to invest. In deciding Larson's counterclaims against BRE, the
court found that BRE had converted only $9,375 of Larson's $15,375 commission from the
Four Queens. The court also concluded that BRE was liable to Larson and CHI for $15,000,
but no interest was due on this sum. And finally, the court, after an accounting, determined
the net profits of the two corporations for the Agreement period and ordered the parties to
split these profits.
Discussion
We have appropriately held that It is the exclusive province of the court, sitting without a
jury, to determine facts on conflicting evidence and its findings, if supported by substantial
evidence, should not be disturbed on appeal. Johnson v. Johnson, 89 Nev. 244, 246, 510
P.2d 625, 626 (1973) (citation omitted). Larson argues that there is not substantial evidence to
support the district court's finding that Ross only converted $9,375 of the $15,375 Ross
collected from the Four Queens. We agree.
[Headnote 1 ]
In Bader v. Cerri, 96 Nev. 352, 357 n.1, 609 P.2d 314, 317 n.1 (1980), this court noted
Conversion exists where one exerts wrongful dominion over another's personal property or
wrongful interference with the owner's dominion. The record contains little or no evidence
that Larson authorized Ross to use his money to pay an alleged debt to the Four Queens. At
the time Ross collected Larson's commission, the venture between the two men had ended.
104 Nev. 252, 255 (1988) Larson v. B.R. Enterprises
had ended. Ross admitted, at trial, that the money was Larson's, and that he did not obtain or
care about Larson's approval before paying Larson's purported debt, and that he paid the
$6,000 debt to protect his own reputation. As a result, we conclude that the record clearly
shows that Ross exercised wrongful dominion over the entire $15,375, and not merely $9,375
of Larson's commission. Because the district court's finding on this issue is unsupported by
substantial evidence, it must be reversed.
1

[Headnote 2]
Larson also argues that the district court erred by failing to award interest on a $15,000
loan he made to Ross. As noted, the parties' venture began after Ross made an offer to sell
half of his BRE stock to Larson, which offer Larson did not accept. Larson then apparently
made a counter-offer for a purchase option, whereby he would pay Ross $15,000 up front in
order to reserve the right to later pay an additional amount, if necessary, to finalize the
purchase of BRE stock. The parties agreed to this counter-offer. Larson's attorney prepared
the three documents, including the promissory note that Ross signed detailing the treatment of
the $15,000 until the option was exercised.
The Note Ross signed provides:
On or before April 31, 1980 . . . Bertram S. Ross and Josephine F. Ross, jointly and
severally promise to pay to Casino Holiday, Inc. . . . the sum of Fifteen Thousand and
00/100 Dollars ($15,000.00) with interest at the rate of 10 percent per annum from date
[September 11, 1979] until paid, interest payable in a lump sum upon payment of the
principal amount or the due date whichever is sooner, and if not so paid, to be
compounded at the lesser of 15 percent or the maximum legal rate of interest for
individuals allowable by law. . . .
2

The Agreement signed the same day designates this transfer of money as a loan.
Larson maintains that the $15,000 he paid Ross on September 17, 1979, was both
consideration for a purchase option and a loan. He argues that even though the option was
never exercised, the express terms of the promissory note mandate an award of $15,000
with interest, and the district court erred by awarding him $15,000 without interest.
____________________

1
We also note that although the district court awarded BRE interest, from October 1, 1981 until paid, on the
$60,000 Larson converted, it did not reciprocate with regard to the $15,375 that Ross converted. We see no
reason, under the facts, why the parties should be treated differently in this matter. As a result, the $15,375 that
Ross converted will also bear interest, until fully paid, at the legal rate, from October 1, 1981.

2
As noted, this note was later extended from April 31, 1980 to September 11, 1981.
104 Nev. 252, 256 (1988) Larson v. B.R. Enterprises
the express terms of the promissory note mandate an award of $15,000 with interest, and the
district court erred by awarding him $15,000 without interest. We agree.
The language of the note Ross signed is plain and its meaning is clear. It unequivocally
provides that the $15,000 Larson paid Ross will be repaid with interest, the rate depending on
when the Note is repaid. The Note, prominently labelled as such, is not long, nor are the
terms detailed or complex. The parties had similar bargaining power, were experienced
businessmen, and Ross had time to read the Note before agreeing to its terms. We have held
that Courts are bound by language which is clear and free from ambiguity and cannot, using
the guise of interpretation, distort the plain meaning of an agreement. Watson v. Watson, 95
Nev. 495, 496, 596 P.2d 507, 508 (1979).
[Headnote 3]
We conclude that the district court's finding, that the parties understood no interest was to
accrue as to the Fifteen Thousand ($15,000) Dollars paid by Defendant LARSON to Plaintiff
B.R. Enterprises, contradicts the plain terms of the Note, which provides for payment of
interest to Larson. Accordingly, we reverse the district court's award which disallows interest
and remand with instructions to enter judgment, for Larson, in accordance with the Note's
terms.
3

[Headnote 4]
Finally, Larson contends that the district court, in its accounting, failed to arrive at the
proper net profit for BRE, and as a result, he was not awarded his fair share of BRE's profits
under the Agreement. The Agreement provides:
Larson/Casino and Ross/BR shall share equally, as their interests may appear, in all net
profits of the two corporate entities during the period October 1, 1979, through April
30, 1980, said profits to be determined in accordance with good accounting practice
consistently applied and payable, unless otherwise agreed, on June 1, 1980. For this
division of profits, it is recognized that equitable adjustments may be necessary to fairly
reflect operations, income, and expenses of Casino and BR during the period.
The district court determined that, during the period in question, BRE's net profit was
$27,052. Accordingly, the district court ordered BRE to pay LarsonJCHI one-half of
$27,052.
____________________

3
As well, we conclude that the district court also erred by holding only BRE liable for the $15,000, and not
Ross as well. Under the terms of the note, Ross was the debtor, BRE the guarantor. In his third-party complaint,
Larson sued Ross for the monies owed under the note. Accordingly, both Ross and BRE should be liable for
repayment of the note.
104 Nev. 252, 257 (1988) Larson v. B.R. Enterprises
court ordered BRE to pay Larson/CHI one-half of $27,052. Larson argues that in doing so,
the court failed to make equitable adjustments, as allowed by the Agreement, necessary to
fairly reflect the operations, income and expenses of Casino and BR during the two years of
the venture. More specifically, Larson argues that because Ross paid himself, out of BRE's
gross income, more salary than he paid Larson, and also made significant contributions to the
BRE profit-sharing plan, BRE's net profit was lower than it should have been. We also agree
with this contention.
In construing contracts, a court should ascertain the intention of the parties from the
language employed as applied to the subject matter in view of the surrounding
circumstances. Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 112, 424 P.2d 101, 105
(1967). We are convinced, on review of the record, that the parties intended the Agreement to
ensure, during the period in question, equal compensation, rather than a mere division of
profits after differing salaries were taken. Ross testified, for example, that when the
Agreement was signed, he intended to draw a thousand a week, the same salary that the
parties had agreed to pay Larson. Instead, Ross apparently drew as a salary approximately
$100,000 per year, or about $50,000 more a year than Larson.
4
It is apparent that the use of a
net profit without consideration of above the line expenses has allowed Ross to manipulate
BRE's profit and escape the Agreement's intent and spirit.
5

Accordingly, because the district court's accounting and division did not fairly reflect the
intent of the parties in entering the Agreement, and because of the other errors herein
discussed, we remand for a new accounting and judgment in accordance with this decision.
____________________

4
In addition, over the two years Ross apparently contributed, from BRE's gross income, about $142,000 into
the profit sharing plan, which will inure to his benefit but not Larson's. To the extent that Ross's periodic
contributions to the profit sharing plan during the period of his agreement with Larson exceeded the amount of
his periodic contributions antedating the agreement, such excess should be divided equally between the parties.

5
Again, the district court also erred by holding both Larson and CHI liable for Ross's half of CHI's profits,
but holding only BRE liable for Larson's half of BRE's profits.
____________
104 Nev. 258, 258 (1988) Shetakis v. Centel Communications
JIM L. SHETAKIS DISTRIBUTING COMPANY, INC., dba SHETAKIS WHOLESALERS,
INC., Appellant, v. CENTEL COMMUNICATIONS COMPANY dba CENTEL BUSINESS
SYSTEMS, Respondent.
No. 18322
June 24, 1988 756 P.2d 1186
Appeal from a judgment of the district court in a civil action. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Communications company brought action against corporate customer when customer
refused to pay for communications equipment alleging customer had repudiated and breached
contract and that communications company was entitled to liquidated damages. The district
court found that valid contract had been formed and awarded communications company
liquidated damages, and customer appealed. The Supreme Court held that no legally binding
contract was formed between communications company and customer since circumstances
indicated that particular manner of contract formation was contemplated by parties in that
customer would not be bound unless sales agreement of communications company was
executed by authorized agent of customer, and sales agreement was not signed by authorized
agent of customer.
Reversed and remanded, with instructions.
Denton & Denton, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Todd Touton, Las Vegas, for Respondent.
1. Contracts.
Where circumstances indicate that particular manner of contract formation is contemplated by parties,
binding contract is not formed in absence of compliance with contemplated procedure.
2. Sales.
No legally binding contract was formed between communications company and customer; circumstances
indicated that particular manner of contract formation was contemplated by parties in that customer would
not be bound unless sales agreement of communications company was executed by authorized agent of
customer, and sales agreement was not signed by authorized agent of customer.
OPINION
Per Curiam:
Centel Communications Company (Centel) believed that it had formed a contract with
Shetakis Wholesalers {"Shetakis") binding Shetakis to purchase $52,552.00 worth of
specialized communications equipment from Centel.
104 Nev. 258, 259 (1988) Shetakis v. Centel Communications
had formed a contract with Shetakis Wholesalers (Shetakis) binding Shetakis to purchase
$52,552.00 worth of specialized communications equipment from Centel. When Centel
attempted to bill Shetakis for the equipment, Shetakis refused to pay, claiming that no
contract had been formed. The trial court decided that a valid contract had been formed and
awarded Centel $13,893.44 in liquidated damages.
Jim Shetakis is the resident of Shetakis Distributing Company, doing business as Shetakis
Wholesalers, Inc. Sometime prior to the summer of 1983, Jim Shetakis was contacted by a
Centel representative who stated that he had a communications system that could improve
Shetakis's date processing system. Jim Shetakis referred the Centel representative's call to
Glenn Oderkirk, who was the data processing manager at Shetakis.
In the mid-summer of 1983, Oderkirk contacted David Markham, Centel's west division
service center manager, to discuss the possibility of acquiring a communications system from
Centel. After several in-person meetings between Oderkirk and Markham, Centel prepared a
written proposal and presented it to Oderkirk.
In September of 1983, Centel furnished Shetakis with Centel's standard sales agreement.
Paragraph Seven of the Centel Sales agreement stated that the agreement binds Customer
when it is executed by Customer and Centel when it is executed by Centel and delivered to
Customer. That same month, Oderkirk personally delivered a Shetakis form purchase order
(first purchase order) to Centel's Markham at Markham's office.
The first purchase order was signed by Jim Shetakis and had typed on the bottom the
following: This purchase order is subject to the same terms & conditions of Centel Business
Systems standard Sales Agreement. Relying on Paragraph Seven of the Centel sales
agreement, it was Jim Shetakis's position that the first purchase order was not binding on
Shetakis. The particular form used for the first purchase order was in fact ordinarily used by
Shetakis for purchasing the merchandise that Shetakis would sell to its institutional
customers; but it was not assigned a purchase order number by the computer as would
ordinarily have been done, and the document was not used or intended to be used in the
manner that these forms are ordinarily used in the normal course of Shetakis's business.
After reviewing the first purchase order, Centel declined to accept it because (1) it
contained notations about a lease agreement which Centel had not discussed with Shetakis;
(2) there were deletions which had not been initialed; and (3) two different typewriter prints
could be discerned.
In early December of 1983, Centel received a second form purchase order from Shetakis
(second purchase order). The second purchase order, dated December 15, 19S3, was
signed by Shetakis's vice-president, Glenda Sue Beasley.
104 Nev. 258, 260 (1988) Shetakis v. Centel Communications
second purchase order, dated December 15, 1983, was signed by Shetakis's vice-president,
Glenda Sue Beasley. Beasley testified that she did not believe the second purchase order was
a binding offer by Shetakis; instead, she believed that her signature on the form was necessary
merely to preserve the prices that had been quoted to Shetakis by Centel. The second
purchase order contained a fictitious purchase order number
1
and, similar to the first
purchase order, stated that: This purchase order is subject to the same terms and conditions
of Centel Business Systems standard Sales Agreement.
After receiving the second purchase order, Centel's president prepared and signed one of
Centel's form sales agreements. The signed sales agreement recited that Shetakis's purchase
order was attached and made a part of the agreement. The purchase order number appearing
on the second purchase order was written on the blank line of the Centel sales agreement
where the customer would ordinarily sign. On December 28, 1983, Centel delivered the
Centel sales agreement signed by Centel's presidentwith the second purchase order attached
to itto Shetakis.
Since Centel had rejected the first purchase orderin apparent conformity with the
restrictions on the manner of contract formation specified in Paragraph Seven of the Centel
sales agreementJim Shetakis believed that Centel similarly would not treat the second
purchase order as forming a binding agreement. Jim Shetakis testified that he believed that
the purpose of having Beasley sign the second purchase order was merely to fix the prices on
the equipment Shetakis was interested in.
Centel, however, took the position that delivery of the second purchase order, signed by
Beasley, when attached to the Centel sales agreement, signed by Centel's president,
consummated the negotiations between Centel and Shetakis. Believing Shetakis to be
contractually bound, Centel committed itself to pay $26,948.00 to Trembly Associates for the
equipment ordered by Shetakis. Centel also ordered an additional $1,750.00 worth of
equipment from Conklin Equipment Corporation to satisfy Shetakis's order.
In February, 1984, Shetakis informed Centel that Shetakis was not certain it still wanted
the equipment. Centel then invoiced Shetakis for the down payment on the equipment,
only to be told by Beasley that Shetakis did not need the equipment.
____________________

1
Beasley testified that this was a dummy purchase order number. Real purchase orders are assigned by the
computer and have six digits. The five digit dummy purchase order number on the second purchase order was
really Shetakis's post office box number.
The presence of the fictitious purchase order number on the second purchase order, like the absence of any
purchase order number on the first purchase order, indicates that Shetakis's use of the second purchase order in
this case was not in the ordinary course of Shetakis's business.
104 Nev. 258, 261 (1988) Shetakis v. Centel Communications
Shetakis for the down payment on the equipment, only to be told by Beasley that Shetakis did
not need the equipment.
Centel filed a complaint, claiming that Shetakis had repudiated and breached its contract
with Centel and that Centel was entitled to $13,893.44, pursuant to the liquidated damages
clause contained in the Centel sales agreement. The trial court ruled for Centel, awarding
Centel $13,893.44 in liquidated damages and an additional $5,379.66 in interest, and this
appeal followed.
[Headnote 1]
We agree with Shetakis that where the circumstances indicate that a particular manner of
contract formation is contemplated by the parties, a binding contract is not formed in the
absence of compliance with the contemplated procedure. See Widett v. Bond Estate, Inc., 79
Nev. 284, 382 P.2d 212 (1963); Dolge v. Masek, 70 Nev. 314, 268 P.2d 919 (1954); cf.
Pacific Photocopy v. Canon U.S.A., Inc., 646 P.2d 647 (Or.App. 1982) (provisions of offer
relating to manner of acceptance must be complied with); Cochran v. Connell, 632 P.2d 1385
(Or.App. 1981) (offeror may restrict manner of acceptance if his intention to do so is clearly
expressed); NRS 104.2206 (offer to make contract shall be construed as inviting acceptance
in any reasonable manner unless otherwise unambiguously indicated by the language or
circumstances); Restatement (Second) of Contracts sec. 60 (1981). Nevertheless, we are
aware that some degree of agreement is usually manifested prior to the formation of a
contract in the manner contemplated by the parties. As we have previously stated in this
regard, where negotiations have yet to be consummated in the contemplated manner, if such
prior manifestations of agreement are to be held to constitute binding contractual assent, the
evidence that the parties . . . intended presently to be bound should . . . be convincing and
subject to no other reasonable interpretation. Dolge, 70 Nev. at 319, 268 P.2d at 921; see
also Tropicana Hotel v. Speer, 101 Nev. 40, 43, 692 P.2d 499, 502 (1985).
In the present case, the circumstances indicate that a particular manner of contract
formation was contemplated by the parties. That manner was expressed unambiguously in
Paragraph Seven of the Centel sales agreement, which was provided to Shetakis at the
initiation of negotiations between the parties. Paragraph Seven of the Centel sales agreement
stated that it binds Customer when it is executed by Customer and Centel when it is
executed by Centel and delivered to Customer. We believe that Shetakis reasonably assumed
that it would not be bound unless the Centel sales agreement was executed by [the]
Customer, that is by an authorized agent of Shetakis.
104 Nev. 258, 262 (1988) Shetakis v. Centel Communications
[Headnote 2]
The Centel sales agreement was signed by Centel's president; however, it was not signed
by an authorized agent of Shetakis. Since the Centel sales agreement was not signed by an
authorized agent of Shetakis, the particular procedure for contract formation contemplated by
both parties was not complied with. In the absence of such compliance, the evidence in this
case that both parties intended to be presently bound is neither convincing nor is it subject
to no other reasonable interpretation. Dolge, 70 Nev. at 319, 268 P.2d at 921. We therefore
hold that no legally binding contract between Shetakis and Centel was formed.
2

Accordingly, we reverse the judgment of the trial court and remand this matter with
instructions that judgment be entered for Shetakis.
____________________

2
Shetakis's second purchase order stated that it was subject to the same terms and conditions of Centel
Business Systems standard Sales Agreement. The Centel sales agreement signed by Centel's president stated
that Shetakis's purchase order was attached and made a part of the agreement.
We reject Centel's argument that the above language resulted in the incorporation by reference of the second
Shetakis purchase order in the Centel sales agreement, obviating the need for the signature of an authorized
agent of Shetakis on the Centel sales agreement. Even though the format of the Centel sales agreement clearly
contemplated referencing attached documents, such as the second Shetakis purchase order, we find no reason to
believe that this changed the effect of Paragraph Seven.
____________
104 Nev. 262, 262 (1988) Koza v. State
MAGGIE JO KOZA aka MAGGIE ADAMS, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18196
June 24, 1988 756 P.2d 1184
Appeal from a judgment of conviction of first degree murder with use of a deadly weapon,
robbery with use of a deadly weapon and imposition of sentence of life imprisonment without
the possibility of parole for the murder, consecutive life sentence for the use of the deadly
weapon, fifteen years for the robbery, and fifteen consecutive years for use of the deadly
weapon, murder and robbery sentences to run consecutively. Eighth Judicial District Court,
Clark County; Addeliar D. Guy, Judge.
Defendant was convicted of first degree murder with use of deadly weapon by the district
court. Defendant appealed. The Supreme Court, 718 P.2d 671, reversed and remanded. After
retrial, and conviction, defendant appealed. The Supreme Court held that: (1) fact that
information did not reveal the State's intention to proceed on alternative theories of aiding
and abetting and felony murder doctrine did not warrant reversal, and {2) even if
testimony of people, who allegedly gave defendant ride following crime, was "fruit of the
poisonous tree," admission of testimony was not reversible error.
104 Nev. 262, 263 (1988) Koza v. State
intention to proceed on alternative theories of aiding and abetting and felony murder doctrine
did not warrant reversal, and (2) even if testimony of people, who allegedly gave defendant
ride following crime, was fruit of the poisonous tree, admission of testimony was not
reversible error.
Affirmed.
[Rehearing denied December 8, 1988]
Monte J. Morris, Henderson, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland and Ulrich Smith, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Where defendant has not been prejudiced by charging instrument's inadequacy, conviction will not be
reversed.
2. Criminal Law.
Fact that information did not reveal the State's intent to proceed on alternative theories of aiding and
abetting and felony murder doctrine did not require reversal of murder conviction entered at defendant's
second trial; defendant had ample notice of the State's intent to proceed on alternative theories in that the
State had proceeded against defendant on the alternative theories at defendant's first trial, and supplemental
information was filed revealing the intent to proceed on alternative theories.
3. Criminal Law.
Even if testimony of people who allegedly gave murder defendant ride following crime was fruit of the
poisonous tree, admission of testimony was not reversible error; sufficient other evidence existed to
establish defendant's guilt.
OPINION
Per Curiam:
Maggie Jo and Joseph Koza were arrested and charged with conspiracy to commit robbery
on November 5, 1980. Subsequently, they were also charged with the murder of a Las Vegas
taxi cab driver. Joseph Koza was convicted of that murder and his conviction was upheld by a
decision of this court in Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984). We reversed and
remanded for retrial appellant Maggie Jo Koza's murder conviction on the basis of an illegally
obtained confession. Koza v. State, 102 Nev. 181, 718 P.2d 671 (1986). Appellant was retried
in January, 1987. This appeal followed.
[Headnotes 1, 2]
First, appellant contends that it was reversible error for the district court to allow
respondent State of Nevada to proceed on alternative theories of prosecution.
104 Nev. 262, 264 (1988) Koza v. State
alternative theories of prosecution. The Information did not reveal that the State intended to
proceed on the theories of aiding and abetting and the felony murder doctrine. This court has
ruled that the charging document must give adequate notice to the defendant of the theories of
prosecution. Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983); Wright v. State, 101 Nev.
269, 701 P.2d 743 (1985); NRS 173.075. The defendants in Barren and Wright had no prior
notice of the prosecutions' intent to proceed on alternative theories. This deprived them of the
ability to properly defend against the accusations and denied them their fundamental rights.
Wright. Maggie Jo Koza had ample notice of the State's intent and was not prejudiced by the
inadequacy of the Information. The State proceeded against appellant on the alternative
theories at her first trial. A Supplemental Information was filed revealing the prosecution's
intent to proceed on those theories. Counsel for Koza filed a motion in the district court
alleging inadequacy of the Information five months before the second trial. We do not
condone the State's failure to amend its Information to properly reveal the theories under
which it intended to proceed, but due process was served by appellant's actual knowledge of
the prosecution's intent to proceed on those theories. Where a defendant has not been
prejudiced by the charging instrument's inadequacy the conviction will not be reversed. Laney
v. State, 86 Nev. 173, 466 P.2d 666 (1970).
[Headnote 3]
Second, Koza argues that the testimony of the people in the pickup truck who allegedly
gave her and Joseph Koza a ride following the crime, was fruit of the poisonous tree and
admitted in error. Wong Sun v. United States, 371 U.S. 471 (1963). The witnesses were
discovered as a result of a Las Vegas newspaper article requesting that the people with the
pickup truck come forward to assist the prosecution in bolstering its case against the Kozas.
The district attorney's office acquired the ride information from Maggie Jo Koza's illegally
obtained confession. Even if the testimony was fruit of the poisonous tree its admission was
not reversible error. There was sufficient other evidence to establish Maggie Jo Koza's guilt
with respect to the crime charged. See Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985).
Her fingerprints were found on the bumper of the taxi cab driven by the murder victim. The
murder weapon was found in the apartment belonging to Maggie Jo and Joseph Koza.
Finally, Koza raises issues related to the testimony of switchboard operator Joseph Ulrey.
We disposed of the admissibility of this testimony in Koza v. State, 100 Nev. 245, 681 P.2d
44 (1984) and decline to address related concerns.
104 Nev. 262, 265 (1988) Koza v. State
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that appellant Maggie Jo Koza has failed to demonstrate error in this appeal. Accordingly, we
affirm the judgment of the district court.
____________
104 Nev. 265, 265 (1988) Owens v. District Court
CHIRS J. OWENS, Appellant, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE
JOHN MENDOZA, DISTRICT COURT JUDGE, DEPARTMENT V, Respondents.
No. 17870
June 24, 1988 756 P.2d 1183
Appeal from an order of contempt of court. Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Appeal was taken from an order of contempt of court entered by the district court. The
Supreme Court held that comments of prosecutor during closing argument of trial, focusing
on advisory instruction and testimony of two defense witnesses, constituted proper closing
argument and district court abused its discretion in finding prosecutor in contempt.
Reversed.
[Rehearing denied December 8, 1988]
Rex A. Bell, District Attorney, James Tufteland, Deputy District Attorney, Clark County,
for Appellant.
Brian McKay, Attorney General, Carson City; Philip R. Byrnes, Deputy Attorney General,
Las Vegas; C. Stanley Hunterton, Las Vegas, for Respondents.
Contempt.
Comments of prosecutor during closing argument of trial, focusing on advisory instruction and testimony
of two defense witnesses, constituted proper closing argument and district court abused its discretion in
finding prosecutor in contempt.
OPINION
Per Curiam:
Appellant Chris Owens was held in contempt of court for comments uttered during the
closing argument of a criminal trial. We hold that such remarks do not rise to the level of
contempt under the circumstances of this case.
104 Nev. 265, 266 (1988) Owens v. District Court
Prior to closing arguments, the district court read various instructions to the jury including
jury instruction number thirteen, an advisory instruction of acquittal. NRS 175.381. During
closing argument and in the process of explaining to the jury why he thought the evidence
supported a conviction, the prosecution said: As I indicated earlier, the Court has given you
an opinion to dismiss this case or to find the Defendant not guilty. That's a glaring Instruction
in the group of Instructions that you have. It's a highly unusual Instruction. At that point the
district court interjected stating that such prosecutorial comments were uncalled for and
contrary to the law stated. The court went on to say that [a]ny further conduct along this line
will require me to take further proceedings against you, sir. (Emphasis added.) Owens made
no further comments along this line.
The defense's closing argument focused, in part, on the testimony of two defense
witnesses, both of whom were in some way involved with the University of Nevada-Las
Vegas basketball team. Subsequently, as the state would up its rebuttal to the defense's
closing argument, Owens said:
Be fair. Look at the evidence. Consider your common experiences. Freely discuss what
you have seen. Do the fair thing. Rise up as citizens of this State and brand Lawrence
West for what he is. Stem the tide of athletic politics in this case and convict Mr.
Lawrence West because he is guilty, ladies and gentlemen. He is guilty as charged.
Thank you.
After the jury returned a guilty verdict, the district court considered contempt charges
against Owens. The district court found Owens's comments to be contemptuous, citing
Owens's athletic politics comment and his argument concerning the court's advisory
instruction as grounds for its finding. Later, when the order was formalized, additional
grounds were added.
Upon a careful review of the record, viewing the aforementioned athletic politics remark
and advisory instruction argument as the foundation for the district court's contempt finding,
we cannot conclude that Owens's conduct was contemptuous; rather, we view his statements
as proper closing argument. Thus, we hold that the district court has abused its discretion and
consequently reverse the district court's order of contempt.
____________
104 Nev. 267, 267 (1988) Courtney v. State
SEAN OLIVER COURTNEY, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 17941
June 24, 1988 756 P.2d 1182
Appeal from judgment of conviction of cheating at gambling. Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
Defendant was convicted in the district court of cheating at gambling and he appealed. The
Supreme Court held that error which occurred when jury was given exhibit indicating that
defendant had previously been charged with cheating at gambling required reversal.
Reversed.
Michael A. Cherry, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy
Randolph, Deputy District Attorney, and Larry G. Sage, Deputy District Attorney, Washoe
County, for Respondent.
Criminal Law.
Error which occurred when jury, which was considering charges of cheating at gambling against
defendant, was given an exhibit which contained a notation on back indicating that defendant had
previously been charged with cheating at gambling required reversal of the conviction; court's instruction
to the jury that the note referred to accusations or charges against the defendant, not to prior convictions,
and that the jury should disregard the notation was not sufficient to cure the harm.
OPINION
Per Curiam:
On October 6, 1985, appellant Sean Oliver Courtney was observed playing one particular
slot machine in Fitzgerald's Hotel and Casino, in Reno, in a suspicious way. He would cover
the window of the slot machine with a newspaper when he pulled the handle. A few days
later, after the machine was moved, Courtney was observed playing the machine the same
way at the new location. Casino personnel observed that some of the reels remained
stationary when Courtney pulled the slot machine's handle, and said he pulled the handle
excessively hard. Courtney was arrested and charged with cheating at gambling by
racheting or handle popping.
104 Nev. 267, 268 (1988) Courtney v. State
The jury in Courtney's trial was inadvertently exposed to a notation on the back of an
exhibit listing Courtney's name, address, and other personal data, and the following: 8/12/78,
consp. [conspiracy] to cheat at gaming, (2), cheat at gambling, (2). The exhibit was admitted
to show that Courtney had given a false name when he was first detained by casino security
personnel. The prosecutor and defense attorney had both examined the exhibit without
noticing the notation on the back. The jury discovered the note during its deliberations and
asked the court whether it should be considered. The court struck the notation and
admonished the jury to disregard it.
The note concerned Courtney's prior conviction of cheating at gambling. The court
recognized that the jury could consider it as such, and attempted to undo the damage by
explaining that the note referred to accusations or charges against Courtney, not convictions.
In our view, however, the damage could not be undone. We have previously explained that
[i]t is without question that, absent special conditions of admissibility, reference to past
criminal history is reversible error. Porter v. State, 94 Nev. 142, 149, 576 P.2d 275, 279
(1978) (citing Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794 (1967)); Marshall v. United
States, 360 U.S. 310 (1959). The reference need not be explicit, it is enough that a juror
could reasonably infer from the facts presented that the accused had engaged in prior criminal
activity. Manning v. Warden, 99 Nev. 82, 86, 659 P.2d 847, 850 (1983) (quoting
Commonwealth v. Allen, 292 A.2d 373, 375 (Pa. 1972)). NRS 48.045(2) provides that
[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. Even considering the trial
court's explanation that the note referred to previous charges, not convictions, it is impossible
to discount an inference by the jurors that Courtney was a cheat. Such an inference is a
violation of due process because it affects the presumption of innocence. See Manning, 99
Nev. at 87, 659 P.2d at 850.
The statute which forms the primary basis of the charges against Courtney offered the jury
little guidance in evaluating the evidence in this case. That statute, NRS 465.015, defines
[c]heat as to alter the selection of criteria which determine: (a) The result of a game; or (b)
The amount or frequency of payment in a game. Casino personnel did not observe Courtney
manipulate the slot machine handle in the way usually associated with racheting or handle
popping.
Under the statute, the evidence against Courtney required the jury to exercise a relatively
large amount of deduction and judgment. Cf. Coffman v. State, 93 Nev. 32, 559 P.2d 828
(1977) {defendant was observed pulling slot machine handle irregularly and "walking" the
reels).
104 Nev. 267, 269 (1988) Courtney v. State
(defendant was observed pulling slot machine handle irregularly and walking the reels).
Thus, it seems likely that the jury's knowledge or inference of Courtney's past cheating
affected its deliberations and verdict.
We cannot find, beyond a reasonable doubt, that the note concerning Courtney's prior
conviction for cheating had not effect on the jury. Manning, 99 Nev. at 87-88, 659 P.2d at
850; Chapman v. California, 386 U.S. 18, 24 (1967). Therefore, the jury's exposure to the
note concerning Courtney's prior conviction was not harmless error. Accordingly, the district
court's judgment is reversed and Courtney's conviction is vacated.
____________
104 Nev. 269, 269 (1988) Browning v. State
PAUL LEWIS BROWNING, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18157
June 24, 1988 757 P.2d 351
Appeal from a judgment of conviction of first degree murder with the use of a deadly
weapon, robbery with the use of a deadly weapon, burglary, escape and imposition of
sentence of death. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge.
Defendant was convicted in the district court of first degree murder with use of deadly
weapon, robbery with use of deadly weapon, burglary, and escape, and defendant appealed.
The Supreme Court held that: (1) defendant was not denied his constitutional and statutory
right to speedy trial, (2) State did not engage in purposeful racial discrimination in use or
peremptory challenges, (3) prosecutor's remarks during closing argument did not require
reversal, and (4) identification testimony was properly admitted
Affirmed.
[Rehearing denied August 16, 1988]
Beury & Schubel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Clark County,
for Respondent.
1. Criminal Law.
Twenty-eight day delay in defendant's first degree murder, robbery, and burglary prosecution did not
violate defendant's constitutional and statutory right to speedy trial; due to severity of crimes court
would tolerate longer delay than for crime of less egregious proportions,
prosecutor's honest but negligent mistake in writing down wrong trial date and
professed inability to locate key prosecution witnesses prior to trial did not reveal
improper motive by state in requesting delay, and defendant failed to identify how
twenty-eight day delay prejudiced his defense.
104 Nev. 269, 270 (1988) Browning v. State
tolerate longer delay than for crime of less egregious proportions, prosecutor's honest but negligent mistake
in writing down wrong trial date and professed inability to locate key prosecution witnesses prior to trial
did not reveal improper motive by state in requesting delay, and defendant failed to identify how
twenty-eight day delay prejudiced his defense. U.S.C.A.Const. Amend. 6; NRS 178.556, subd. 1.
2. Criminal Law.
Dismissal of information is within discretion of district court where defendant is not brought to trial
within sixty days. NRS 178.556, subd. 1.
3. Jury.
Prosecution did not engage in purposeful racial discrimination when exercising peremptory challenges to
dismiss two black veniremen in murder prosecution; state's reason for dismissal that veniremen expressed
unalterable opposition to death penalty was sufficiently racially neutral to warrant removal by peremptory
challenge in capital case. U.S.C.A.Const. Amend. 14.
4. Criminal Law.
State's reference to horror movie Friday-the-13th and presumption of innocence as farce in closing
argument in capital murder prosecution did not require reversal in light of overwhelming evidence
presented at guilt phase of trial.
5. Homicide.
Defendant's claim that he was given insufficient notice of state's intent to seek death penalty in murder
prosecution could not be raised on appeal; at penalty hearing defendant did not argue insufficient notice but
only that testimony concerning prior crimes of violence committed by defendant was hearsay. NRS
175.552.
6. Criminal Law.
Although one-man show-up identification procedure applied by police officers may have been suggestive,
identification testimony was not inadmissible in murder, burglary, and robbery prosecution since
identifications were reliable; witnesses gave consistent detailed descriptions matching defendant to crime,
one witness positively identified defendant, and very little time had elapsed between initial viewing of
suspect and showup further diminishing risk of memory loss or contamination.
7. Criminal Law.
Witness' in court identification of defendant was properly admitted although witness could not make
previous out-of-court identification; witness' inability to identify defendant during pre-trial photographic
lineup was factor to be weighed by trier of fact but did not render in court identification inadmissible.
OPINION
Per Curiam:
At approximately 4:20 p.m. on November 8, 1985, Hugo Elsen was senselessly stabbed to
death while working in his jewelry store. Josy Elsen, Hugo's wife, was resting in the back
room of the jewelry store at the time of the killing. When she heard a scuffling sound, Josy
entered the showroom where she saw a black man wearing a blue cap squatting over Hugo
and holding a knife.
104 Nev. 269, 271 (1988) Browning v. State
holding a knife. Josy immediately fled out the back of the store. Appellant Paul Lewis
Browning was apprehended shortly thereafter. Based on overwhelming evidence, Browning
was convicted of Hugo's killing.
On December 31, 1985, Browning was arraigned in district court and trial was set for
March 3, 1986. On February 28, 1986, the state informed the district court that the deputy
district attorney who had appeared at the December 31, 1985, arraignment had erroneously
written down the trial date as March 31, 1986. As a result, the state was not prepared to go
forward with the trial as scheduled on March 3, 1986. Upon the state's request, the district
court granted a continuance, setting the trial for March 31, 1986.
On appeal, Browning contends that by delaying his trial twenty-eight days, the district
court violated his constitutional right to a speedy trial. We disagree.
[Headnote 1]
Although Browning promptly invoked his right to a speedy trial, under the circumstances
of this case, the mere twenty-eight day delay is insufficient to justify dismissal of the charges
against him. Due to the severity of the crimes charged, we will tolerate a longer delay than we
might for a crime of less egregious proportions. See Barker v. Wingo, 407 U.S. 514 (1972). In
addition, the reasons underlying the delay do not justify Browning's release; namely, the
deputy district attorney's honest, but negligent, mistake in transcribing the appropriate trial
date and the professed inability to locate key prosecution witnesses prior to trial do not reveal
an improper motive by the state in requesting the delay. Thus, this is not a case involving a
deliberate attempt to delay trial in order to hamper the defense, and therefore we need not be
so concerned with policing the state's activity. See Barker, 407 at 531. Moreover, Browning
has not reasonably identified how the twenty-eight day delay has prejudiced his defense. In
light of the overwhelming evidence of guilt presented against him at trial, it is clear that any
alleged prejudice would not rise to the level justifying dismissal of the charged crimes.
[Headnote 2]
Browning also contends that by delaying his trial twenty-eight days the district court
violated Browning's statutory right to a speedy trial. Once again we disagree. Dismissal of the
information is within the discretion of the district court where the defendant is not brought to
trial within sixty days. NRS 178.556(1). For the reasons set forth in connection with the
constitutional speedy trial claim, we hold that the district court did not abuse its discretion by
failing to dismiss the charges against Browning.
104 Nev. 269, 272 (1988) Browning v. State
During jury selection, two black men were drawn as part of the jury panel. The state,
however, used peremptory challenges to remove both black men from the jury. Browning, a
black man, argues that the elimination of both black prospective jurors deprived him of his
right to an impartial jury drawn from a representative cross section of the community in
violation of his fourteenth amendment right to equal protection of the law.
[Headnote 3]
Browning appropriately suggests that the elimination of both black jury panel members
established a prima facie case of purposeful discrimination. Batson v. Kentucky, 476 U.S. 79
(1986). Thus, it is encumbent upon the state to provide a racially-neutral explanation for
dismissing both black panel members by peremptory challenge. Batson, 476 U.S. at 97. The
state promptly explained that each of the dismissed panel members had expressed an
unalterable opposition to the death penalty. Upon review of the record, it is unmistakably
clear that each of the dismissed black panel members did indeed express the position that they
would automatically vote against the imposition of capital punishment without regard to the
evidence presented at trial. We hold that this reason is sufficiently racially-neutral to
warrant removal by peremptory challenge in a capital case such as the instant action. See
Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970). Consequently, there was no showing of
purposeful racial discrimination, and Browning's right to equal protection was not
transgressed.
Browning also submits that he was denied a fair trial by numerous acts of prosecutorial
misconduct. Of those few alleged acts of misconduct properly preserved for review, we
believe only one alleged incident of misconduct merits discussion.
[Headnote 4]
During closing argument the state recounted the stabbing episode according to its view of
the evidence. The prosecutor became overly-animated, saying, And there was probably wild
stabbing going on, a hacking, a Friday-the-13th kind of scenario. Reference to the horror
flick Friday-the-13th served no purpose other than to divert the jury's attention from its
sworn task. However, in light of the overwhelming evidence presented at the guilt phase of
the trial, we cannot find the quantum of prejudice required to reverse.
1
Browning also
argues that he was given insufficient notice of the state's intent to seek the death
penalty.
____________________

1
We also denounce the state's reference to the presumption of innocence as a farce. The fundamental and
elemental concept of presuming the defendant innocent until proven guilty is solidly founded in our system of
justice and is never a farce. Even this outrageous but unpreserved act of misconduct, however, does not
prejudice Browning to the extent justifying reversal.
104 Nev. 269, 273 (1988) Browning v. State
Browning also argues that he was given insufficient notice of the state's intent to seek the
death penalty. According to NRS 175.552, the state is permitted to introduce evidence of
additional aggravating circumstances other than the aggravated nature of the offense itself
only if the defendant has been notified of the intended introduction before the penalty hearing
commences. NRS 175.552. The presentation of evidence regarding the aggravated nature of
the crime is not restricted by NRS 175.552.
[Headnote 5]
The only penalty hearing evidence attacked by Browning on appeal which involves
aggravating circumstances, other than the aggravated nature of the offense itself, is testimony
concerning prior crimes of violence committed by Browning. At the penalty hearing,
however, Browning did not argue NRS 175.552 as grounds for excluding the testimony;
rather, Browning contended that such testimony was inadmissible hearsay. The trial court
properly rejected Browning's hearsay challenge pursuant to the directive of NRS 175.552
which permits the introduction of aggravating circumstances evidence whether or not the
evidence is ordinarily admissible. NRS 175.552. Since new grounds for an objection may
not be raised on appeal, Geer v. State, 92 Nev. 221, 548 P.2d 946 (1976), we reject
Browning's attack.
2

After the police apprehended Browning, he was escorted back to the crime scene where he
was shown to three individuals. Two of these individuals had seen a black man in a blue cap
jogging away from the scene of the crime at approximately the time of the crimes. Browning
argues that the pretrial identification testimony of the two witnesses was improperly admitted
at trial because it was derived from an unnecessarily suggestive procedure resulting in
irreparable mistaken identifications, thereby denying him due process. See Neil v. Biggers,
409 U.S. 188 (1972).
[Headnote 6]
Although the one-man show-up procedure applied by the police officers may have been
suggestive under the circumstances of this case, the related testimony is not inadmissible
unless the identifications were unreliable. See Gehrke v. State, 96 Nev. 581, 613 P.2d 1028
(1980). We hold that the identifications were reliable, and hence the related testimony was
properly admitted into evidence.
3
See Gehrke, 96 Nev. at 584, 613 P.2d at 1030 {important
factors to be weighed against the corrupting influence of a suggestive identification
procedure includes the opportunity a witness has to view the criminal at the time of the
crime, the witness' degree of attention, the accuracy of the witness' prior description of
the criminal, the level of certainty demonstrated at the confrontation, and the time lapse
between the crime and the confrontation).
____________________

2
We note that Browning had actual notice of the state's intent to produce the contested testimony of at least
six days, and possibly seven days. Under the circumstances of this case, this six-day notice period is adequate to
meet the mandate of NRS 175.552.

3
Both witnesses gave consistent, detailed descriptions matching Browning to the crime. Both witnesses were
acutely aware of the man leaving the crime scene; one witness peered out a window for the express purpose of
locating
104 Nev. 269, 274 (1988) Browning v. State
(important factors to be weighed against the corrupting influence of a suggestive
identification procedure includes the opportunity a witness has to view the criminal at the
time of the crime, the witness' degree of attention, the accuracy of the witness' prior
description of the criminal, the level of certainty demonstrated at the confrontation, and the
time lapse between the crime and the confrontation).
[Headnote 7]
Finally, Browning insists that Josy Elsen's in-court identification of Browning should have
been suppressed by the district court because Josy could not make a previous out-of-court
identification. Josy's inability to identify Browning during a pre-trial photographic line-up is a
factor to be weighed by the trier of fact. Such inability, however, does not render the in-court
identification inadmissible. Jones v. State, 95 Nev. 613, 600 P.2d 247 (1979). Thus, the
district court properly admitted Josy Elsen's in-court identification testimony.
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that Browning has failed to demonstrate error in this appeal. Accordingly, we affirm the
judgment of the district court.
____________________
the perpetrator; the other witness was forced to move from where he was standing to avoid a collision with the
man who was leaving the area. One witness was fairly certain Browning was the man she had seen through a
pane of glass; while the other witness positively identified Browning. These identifications were made despite
the fact that Browning was not wearing the clothing described by the witnesses. In addition, one witness had
been previously shown another suspect prior to viewing Browning, but positively rejected that suspect. Finally,
very little time had elapsed between the initial viewing of the suspect and the show-up, further diminishing the
risk of memory loss or contamination.
____________
104 Nev. 274, 274 (1988) A.L.M.N., Inc. v. Rosoff
A.L.M.N., INC., a Nevada Corporation, dba LA MIRAGE HOTEL & CASINO; ROBERT L.
MAYER, Trustee of the Robert L. Mayer Trust of 1982, Dated June 22, 1982; ROBERT L.
MAYER, Individually, Appellants, v. ALLEN H. ROSOFF, MARY E. ROSOFF, and
BETTY ROSOFF, Co-Partners, MIRAGE MOTEL/MIRAGE HOTEL, Respondents.
No. 18189
June 24, 1988 757 P.2d 1319
Appeal from summary judgment and a permanent injunction. Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
104 Nev. 274, 275 (1988) A.L.M.N., Inc. v. Rosoff
Motel operators brought trade name infringement suit against competitors. The district
court granted summary judgment in favor of operators and enjoined competitors from using
word Mirage in any advertising. Competitors obtained stay of injunction and appealed. The
Supreme Court held that: (1) trade name Mirage Motel was arbitrary name, subject to
protection without further factual inquiry, rather than descriptive, in which case proof of
secondary meaning would have been required, even though motel was in desert; (2) whether
there was likelihood of confusion with regard to alleged infringement of trade name Mirage
Motel was factual issue, precluding summary judgment; and (3) logs prepared by operators
in attempt to document confusion that occurred were hearsay and were not admissible under
business records exception to hearsay rule.
Reversed and remanded.
Lionel, Sawyer & Collins and Charles H. McCrea, Jr., Las Vegas, for Appellants.
Rudiak, Oshins, Segal & Larsen and Monte Hall, Las Vegas, for Respondents.
1. Appeal and Error.
Trial court based its decision to grant permanent injunctive relief against use of trade name on initial
conclusion that summary judgment was appropriate, and thus, proper standard of review was that for
summary judgment, and not merely whether trial court abused its discretion.
2. Trade Regulation.
Whether, and to what extent, trade name is protectable depends upon its distinctiveness and strength.
3. Trade Regulation.
Right to corporate name arises from prior use, and first registration provides no absolute protection
against action for common law trade name infringement.
4. Trade Regulation.
Suggestive and arbitrary names, considered distinctive, are afforded legal protection against
infringement; however, generic names, considered nondistinctive, are not, and descriptive trade names
are protected only if secondary meaning has been proved.
5. Trade Regulation.
Suggestive trade names, the middle category between arbitrary and descriptive, are protected without
proof of secondary meaning, as in arbitrary category.
6. Trade Regulation.
Trade name Mirage Motel was arbitrary name, subject to protection without further factual inquiry,
rather than descriptive, in which case proof of secondary meaning would have been required, even
though motel was in desert.
104 Nev. 274, 276 (1988) A.L.M.N., Inc. v. Rosoff
7. Trade Regulation.
Senior user of trade name bringing infringement suit must prove that junior user's use of similar or
identical name is likely to confuse, cause mistake, or deceive appreciable number of reasonable customers.
8. Trade Regulation.
Likelihood of confusion in trade name infringement suit is considered factual issue in Nevada.
9. Trade Regulation.
Whether there was likelihood of confusion with regard to alleged infringement of trade name Mirage
Motel was factual issue, precluding summary judgment in trade name infringement suit.
10. Trade Regulation.
Foundational factors to consider in deciding likelihood of confusion issue in trade name infringement suit
include degree of similarity between trade names, similarity of services offered by users, marketing
channels used, evidence of actual confusion, strength of senior user's name, intent of junior user, and
degree of care likely to be exercised by purchasers.
11. Evidence.
Logs prepared by senior user of trade name for motel in attempt to document confusion that occurred
were hearsay and were not admissible under business records exception to hearsay rule; logs contained
written statements by desk clerks, were being used in attempt to prove matters such as fact that customer
phoned wrong hotel to illustrate customer confusion, and were first kept shortly before suit was
commenced. NRS 51.135, subd. 1.
OPINION
Per Curiam:
The Facts
Respondents Rosoffs own and operate the Mirage Motel, a forty-six-unit motel with a pool
and approximately eight employees. The Rosoffs have operated the Mirage Motel under the
same name since 1953.
In October, 1985, Robert Mayer registered, with the Secretary of State, the tradename La
Mirage Hotel and Casino for his business, previously known as the Ambassador Inn. At that
point, Rosoffs' tradename Mirage Motel was not registered with the Secretary of State.
Appellant A.L.M.N. apparently began leasing La Mirage from Mayer's trust and
refurbished the business, ordering signs, chips, stationery, and hotel supplies bearing the
name La Mirage. By January 1, 1986, A.L.M.N. had entered into contracts for such goods
and services and had invested a significant amount of money in items bearing the name La
Mirage. The La Mirage Hotel and Casino is a 320-room hotel and casino, employing
approximately 250 people.
In early January 1986, the Rosoffs began noticing that some people, including customers,
were confusing the two businesses.
104 Nev. 274, 277 (1988) A.L.M.N., Inc. v. Rosoff
They sent a letter to A.L.M.N., suggesting it cease using the name La Mirage, but A.L.M.N.
declined the suggestion. On January 14, 1986, the Rosoffs registered their tradename Mirage
Motel/Mirage Hotel with the Secretary of State. In February, they sued appellants, alleging,
among other causes of action, common law tradename infringement.
The Rosoffs sought summary judgment on their infringement claim. The district court
granted the motion, concluding appellants were liable for damages because they had infringed
the Rosoffs' tradename. After filing its initial order, the court amended it, adding a permanent
injunction enjoining appellants from using the word Mirage in any advertising. Appellants
obtained a stay of this injunction and appealed the order.
Discussion
The initial issue to be decided is what standard of review governs this appeal. A.L.M.N.
argues that a summary judgment standard of review applies: whether the lower court erred in
granting a motion because a genuine issue of material fact existed, assuming evidence most
favorable to the non-moving party to be true. The Rosoffs, however, argue that because the
lower court conducted a trial by affidavit and granted a permanent injunction, we merely
need to examine the record to determine whether the lower court abused its discretion in
making its decision.
[Headnote 1]
We are convinced, however, that the court based its decision to grant permanent injunctive
relief on its initial conclusion that summary judgment was appropriate. The court first granted
the summary motion, and later amended its summary judgment order to include the
permanent injunction as a remedy. Because the court's permanent injunction is based on a
legal determination that summary judgment could properly be granted under the
circumstances, we conclude the proper standard of review is that for summary judgment, and
not merely whether the court abused its discretion. See Coca-Cola Co. v. Overland, Inc., 692
F.2d 1250, 1253 (9th Cir. 1982) (summary judgment standard of review appropriate for trade
mark dispute when district court granted summary judgment and permanent injunction).
Therefore, we must decideassuming evidence favorable to A.L.M.N. as truewhether the
district court erred by concluding, on summary judgment, that A.L.M.N. infringed the
Rosoffs' tradename.
Common law tradename infringement falls within a broader category of prohibited unfair
competition. At the heart of [cases alleging] trademark infringement . . . are two questions:
Has a protectable right been created? Has it been infringed? beef & brew INC. v. BEEF &
BREW, INC., 3S9 F.Supp.
104 Nev. 274, 278 (1988) A.L.M.N., Inc. v. Rosoff
brew INC. v. BEEF & BREW, INC., 389 F.Supp. 179, 184 (D.Ore. 1974). Our review
focuses on these two issues.
[Headnotes 2, 3]
Whether, and to what extent, a tradename is protectable depends on its distinctiveness and
strength.
1
1 J. McCarthy, Trademarks and Unfair Competition 11:1, 11:24 (2nd ed. 1984)
(hereafter McCarthy). In this case, the lower court concluded:
Plaintiffs have used the names Mirage Motel/Mirage Hotel for more than thirty-three
(33) years as the tradename of their motel at 4613 Las Vegas Boulevard South, Las
Vegas, Nevada, and have thereby established that name as their common law tradename.
A.L.M.N. contends, however, that even though the Rosoffs used the name Mirage Motel
for over thirty years,
2
a material issue of fact exists about whether this name is entitled to
protection.
[Headnote 4]
Courts have developed the following litmus test to help measure a tradename's
distinctiveness. Tradenames are divided into four categories: generic, descriptive, suggestive
and arbitrary/fanciful. Suggestive and arbitrary names, considered distinctive, are afforded
legal protection against infringement. However, generic names, considered non-distinctive,
are not.
____________________

1
One reason a distinctive tradename is protected, but a non-distinctive tradename is not, is that a distinctive
tradename assumedly attains a greater public recognition and awareness of the service it represents. As a result,
the senior user is entitled to protection against others who attempt to usurp this recognition or otherwise confuse
customers.

2
Because the right to a corporate name arises from prior use, the fact that A.L.M.N. registered its tradename
first is irrelevant in determining whether the Rosoffs' tradename is entitled to protection. First registration
provides no absolute protection against an action for common law tradename infringement. As McCarthy notes:
The reality of the trademark world is that one who commences use of a new mark is in somewhat the
same position as a squatter who starts building a cabin (which the builder hopes will someday evolve into
a palace) on a vacant city lot. When sued as a trespasser and facing an injunction to tear down the
structure, it rings hollow for the squatter to argue that, But I didn't know somebody owned that land.
The obligation is to check out possible conflicts before investing time and money in a new mark.
McCarthy, supra, at 23:21. See also Comment, Utah's Business Name Statutes: An Open Invitation to
Litigation, 1983 B.Y.U. L. Rev. 795, 795 ([S]ecretary of State approval has little if anything to do with
acquiring business name rights.) (Footnote omitted.)
104 Nev. 274, 279 (1988) A.L.M.N., Inc. v. Rosoff
generic names, considered non-distinctive, are not. Descriptive tradenames are protected only
if secondary meaning
3
is proved.
An arbitrary tradename has been defined as one in common linguistic use but which,
when used with the goods or services in issue, neither suggest nor describe any ingredient,
quality, or characteristic of those goods and services. McCarthy, supra, at 11:4. The
Rosoffs argue MIRAGE Motel is clearly an arbitrary tradename, and therefore no issue of fact
exists about whether it is protected. The district court agreed.
On appeal, however, A.L.M.N. argues that MIRAGE Motel could be considered: (1) a
descriptive tradename, or (2) a weak suggestive name. It argues that the word MIRAGE
alludes to a desert, thus describing or suggesting the business's geographical situs. A.L.M.N.
argues that the correct categorization of a tradenamewhether a name is descriptive or
arbitraryis a genuine issue of material fact, mandating a trial. A.L.M.N. also notes that if
the name is considered descriptive, the Rosoffs must show that it has secondary meaning
before it is entitled to protection, which is also a factual determination. Both latter assertions
are accurate general statements of the law.
4

[Headnote 5]
A geographically descriptive tradename has been defined as one which designates
geographical location and would tend to be regarded by buyers as descriptive of the
geographic location or origin of the goods or services.
5
McCarthy, supra, at 14:2. As
noted, geographically descriptive corporate names are protected only if secondary
meaning is proved.
____________________

3
Secondary meaning has been described as consumer acceptance and recognition of [a descriptive trade
name] as denoting only one seller or source. McCarthy, supra, at 11:9.


The categorization of a tradename is normally a factual determination. E.g., WSM, Inc. v. Hilton, 724 F.2d
1320, 1326 (8th Cir. 1984) (citing 3 Callman, The Law of Unfair Competition, Trademarks and Monopolies 66
(Supp. 1982)); McCarthy, supra, at 11:1 n.6 However, on occasion, when there can be no genuine dispute
about the category of a tradename, courts have determined, on summary judgment, the category of a tradename
or mark. E.g., Gimex, Inc. v. JS & A Group, Inc., 699 F.2d 901 (7th Cir. 1983); Team Cent. Inc. v. Xerox Corp.,
606 F.Supp. 1408 (D.Minn. 1985).

5
McCarthy suggests that questions such as the following help determine whether a tradename is
geographically descriptive:
1. Is the business name the place or region from which the goods or services are produced or exist?
2. Is the geographic term likely to denote to reasonable customers that the goods or services are
produced or offered in the region or place named?
3. Is the place or region named noted for these particular goods or services?
McCarthy, supra, at 14:3.
104 Nev. 274, 280 (1988) A.L.M.N., Inc. v. Rosoff
noted, geographically descriptive corporate names are protected only if secondary meaning is
proved. A suggestive tradename is one in which use of imagination, thought and perception
[is necessary] to reach a conclusion as to the nature of the goods. Stix Prods., Inc. v. United
Merchants & Mfrs., Inc., 295 F.Supp. 479, 488 (S.D.N.Y. 1968). Suggestive tradenames, a
middle category falling between arbitrary and descriptive, are protected without proof of
secondary meaning, as in the arbitrary category.
6

[Headnote 6]
Determining the correct category of tradenames can be difficult. One court noted
although meant as pigeon holes, these [categories] are instead central tones in a spectrum;
they tend to merge at their edges and are frequently difficult to apply. Soweco, Inc. v. Shell
Oil Co., 617 F.2d 1178, 1183 (5th Cir. 1980), cert. denied, 450 U.S. 981 (1981). As a result,
argument about correct categorization is sometimes easy. This, together with the favorable
standard of review, works to A.L.M.N.'s favor in deciding this issue.
However, even with these advantages, A.L.M.N.'s argument that MIRAGE is descriptive
or suggestive of Rosoffs' business's geographic location is strained. It is one thing to name a
business the SILVER STATE Casino, the LAS VEGAS Billiards, or the CARSON CITY
Cleaners; it is another to name it after a phenomenon or thing somehow connected with the
topography of a general geographic area. If MIRAGE is considered geographically descriptive
of the business, arguably so would many other names that, by some vast leap of logic,
tangentially implicate a business's situs.
7
Following A.L.M.N.'s logic, any name remotely
connected with the geographic location of a business apparently would be protected only if
secondary meaning could be proved in a lawsuit. However, cases finding tradenames to be
geographically descriptive are considering, for the most part, a name or nickname of towns,
regions, cities, and states, rather than a characteristic or phenomenon somehow connected
with these entities.S As a result, we conclude that the lower court's determination that
there was no material issue of fact about the classification of the tradename "Mirage
Motel" was correctit is clearly an arbitrary name, subject to protection without further
factual inquiry.9
____________________

6
A.L.M.N. argues this rule is not absolute, asserting that weak suggestive marks need proof of secondary
meaning before they are protected. A.L.M.N. cites a couple of cases sup