Opposition Brief — Nixon v. United States

an the Supreme Court of the E

OCTOBER TERM, 1987;

WALTER L. NIXON, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

|

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General |

JOHN F. DE PUE |

Attorney |

— Department of Justice

Washington, D.C. 20530

(202) 633-2217

“BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the question to which petitioner gave a

false negative answer was sufficiently unambiguous to

support a perjury conviction.

2. Whether the evidence was sufficient to support a

perjury conviction.

3. Whether a suggestion for rehearing en banc is prop-

erly rejected when three judges vote against it, no judge

votes for it, and eleven judges are recused.

(I)

aes A Pe a

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abourezk v. Reagan, No. 84-5673 (D.C. Cir. May 23,

1986), aff'd, No. 86-656 (Oct. 19, 1987) .............. 16

Ahlers, In re, 794 F.2d 388 (8th Cir. 1986), cert. granted

sub nom. Norwest Bank Worthington v. Ahlers, No.

CE 16

Bronston v. United States, 409 U.S. 352 (1973) ......... 9, 10

Moody v. Albemarle Paper Co., 417 U.S. 622 (1974) .... 17

Shenker v. Baltimore & O.R.R., 374 U.S. 1 (1963) .~.... 17

United States v. Chapin, 515 F.2d 1274 (D.C. Cir.), cert.

EE tr li

United States v. Cowley, 720 F.2d 1037 (9th Cir. 1983),

cert. denied, 465 U.S. 1029 (1984) .................. i4

United States v. Fulbright, 804 F.2d 847 (Sth Cir. 1986) . . 13

United States v. Laite, 418 F.2d 576 (Sth Cir. 1969) ...... 14

United States v. Lighte, 782 F.2d 367 (2d Cir. 1986) ..... 11, 12

United States v. Marchisio, 344 F.2d 653 (2d Cir. 1965) .. 11

United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978) ..... 14

Western Pac. R.R. Corp. v. Western Pac. R.R. Co., 345

ER INES ee ge a 16

rowmeer ¥, fearves, 401 U.S. 37 CISTI)... cee. 6

Statutes and rule:

18 U.S.C. (1982 ed.) 201(g) (now codified at 18 U.S.C.

ST OD yk cs ce sec acascutescsanes 2

areas ccawehaeaeda 2

a eween cv ees ewdvns 17

a lp yaad ead we eb vad Bia 8, 15

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-650

WALTER L. NIXON, JR., PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals affirming

petitioner’s conviction (Pet. App. 9a-28a) is reported at

816 F.2d 1022. The opinion of the court of appeals deny-

ing the petition for rehearing (Pet. App. la-8a) is reported

at 827 F.2d 1019. The opinion of the district court (Pet.

App. 29a-41la) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 30, 1987. A petition for rehearing was denied on

September 8, 1987. The petition for a writ of certiorari

was filed on October 21, 1987. The jurisdiction of this

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

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Mississippi, petitioner, a

federal district judge, was convicted on two counts of

(1)

2

making false material statements before a grand jury, in

violation of 18 U.S.C. 1623.' He was sentenced to concur-

rent five-year terms of imprisonment on each count. The

court of appeals affirmed.

1. a. In August 1980, Drew Fairchild, the son of a

successful investor named Wiley Fairchild, conspired with

several others to pick up a load of marijuana in Colombia

and fly it to the United States. Drew Fairchild’s role in the

scheme was to provide access to an airport for refueling

the plane. The scheme was brought to a halt when the

plane was intercepted by law enforcement officials at the

airport. Pet. App. 10a.

A federal grand jury indicted three of the conspirators,

but not Drew Fairchild, on August 19, 1980. Following

that indictment, Drew Fairchild and his attorney, William |

Porter, went to Forrest County District Attorney Paul |

(“Bud”) Holmes to discuss the situation. Holmes, in turn,

sent them to United States Attorney George Phillips, who

was prosecuting the indicted conspirators. After meeting

with Phillips, Drew Fairchild agreed in writing on

November 19, 1980, to plead guilty to federal felony

charges and to cooperate with the government in exchange

for a recommendation of a five-year suspended sentence

and a $15,000 fine. Pet. App. 10a-lla. No charges were

_ filed against Drew Fairchild at that time, however, and he

did not enter the plea that he had negotiated.

In the following months, the. federal prosecutors con-

cluded that Drew Fairchild was not being completely

cooperative. A federal prosecution against Drew Fairchild

was considered. Tr. 148-149, 219-220, 238. Before any

federal proceedings took place, however, District At-

torney Holmes offered to take over the prosecution and

seek indictments in state court (Tr. 220-221, 732-733). On

August 26, 1981, Holmes obtained an indictment from a

' Petitioner was acquitted of a third count alleging that he had

made a false statement to the grand jury, as well as a count alleging

that, in violation of 18 U.S.C. (1982 ed.) 201(g) (now codified at 18

U.S.C. (Supp. IV) 201(c)(1)(B)), he had received an illegal gratuity.

a eeenenee ee oe

state grand jury against Drew Fairchild and a co-defend-

ant on charges stemming from the Augusi 1980 drug-

smuggling incident. Pet. App. Ila.?

Drew Fairchild agreed to testify against his co-defend-

ant on the state charges in exchange for assurances from

Holmes that he would receive probation and a $5000 fine

on the state charges. On January 12, 1982, he entered a

plea of guilty in state court. Sentencing was postponed

several times, however. On December 23, 1982, Holmes

moved successfully to have Drew Fairchild’s case “passed

to the file,” a procedure that places a pending case in an in-

active status and typically results in its termination.

Because of media publicity, however, the case was recalled

to the active file just a few weeks later. Nevertheless, the

case was continued, without sentencing, throughout 1983

and 1984. Pet. App. Ila-12a.

b. Petitioner, seeking a source of income to augment

his salary as a federal judge, had made lucrative in-

vestments in oil and gas properties through the interces-

sion of Wiley Fairchild, Drew Fairchild’s father (Pet. App.

10a).? Petitioner was also a good friend of Holmes (/d. at

14a, 57a).

Sometime after Drew Fairchild’s January 1982 plea of

guilty in state court, Wiley Fairchild turned to petitioner

for help in dealing with Holmes (Pet. App. 14a). During a

meeting in Wiley Fairchild’s office, Wiley Fairchild told

? Holmes thought (correctly as it turned out) that indicting Drew

Fairchild would help Holmes’s friend Porter to collect the legal fee

that he sought for his services to Drew Fairchild (Pet. App. Ila).

3 Both petitioner and Wiley Fairchild were indicted on federal

charges on the theory that these investments, some of which were

made after Drew Fairchild’s troubles began, amounted to an unlawful

gratuity paid by Wiley Fairchild to petitioner. As petitioner notes

(Pet. 6n.2), Wiley Fairchild pleaded guilty to paying an illegal gratui-

ty to petitioner, but petitioner was acquitted at trial on the gratuity

charge.

4

petitioner about Drew Fairchild’s agreement with Holmes,

and he expressed the opinion that Holmes was picking on

Drew Fairchild because of Wiley Fairchild’s wealth (Tr.

480-484). Petitioner testified at trial that during this

meeting he “ ‘got the impression that [Fairchild] wanted

me to mention something about [the case] to Bud

Holmes’ ” (Pet. App. 15a).

Petitioner then visited Holmes in his office, and the two——

drove to Holmes’s farm. According to Holmes’s later

testimony, petitioner stated during the trip that he had

visited Wiley Fairchild and that Fairchild had asked him

“to put in a good word for his boy, or would I say

something to you about Drew’ ” (Pet. App. 15a). Holmes

-responded by inquiring what Wiley Fairchild wanted

(ibid.; Tr. 736, 737). When petitioner reiterated that he

was simply “ ‘put[ting] in a good word’ ” and not asking -

Holmes to do anything, Holmes ~ volunteered, “ ‘I’m

district attorney, I'll pass it to the files’ ” (Pet. App. 16a).

Petitioner replied, “ ‘I’m not asking you to do anything

now’ ” (ibid.).

Holmes testified that he informed petitioner of the plea

agreement that he had reached with Drew Fairchild’s at-

torney (Pet. App. 17a). According to both Holmes (ibid.)

and Wiley Fairchild (/d. at 21a), petitioner then tele-

phoned Wiley Fairchild from Holmes’s farm and said

either that Drew Fairchild “ ‘isn’t going to jail’” (/d. at

17a) or that “ ‘everything [is] going to be taken care of to

your satisfaction’ ” (id. at 21a). According to Holmes,

petitioner also expressed appreciation for Wiley

Fairchild’s assistance in making investments (/d. at 17a).

Holmes then got on the phone. According to Wiley Fair-

child, Holmes said, “‘when this man asks me to do

something, | don’t ask no questions, I just go ahead and

do it’” (id. at 22a). According to Holmes’s testimony,

petitioner’s conversation with him subsequently “caused

enough influence on [him] to go ahead and do what | did,”

5

that is, pass the case to the file (Tr. 938, 942; see also Tr.

754).

c. On November 3, 1983, an attorney who had worked

for Wiley Fairchild telephoned the FBI and alleged that

Wiley Fairchild had conveyed mineral rights to petitioner

in exchange for his intercession in the drug case involving

Wiley Fairchild’s son (Tr. 273, 300, 315-319, 347). In con-

nection with an investigation of the allegation, a federal

prosecutor interviewed petitioner on April 19, 1984. After

the prosecutor outlined to petitioner the chronology of

events relating to the case, petitioner denied having any

knowledge of the case; denied that Holmes had ever talked

to him about the case; and denied having been asked by

Wiley Fairchild to intercede on behalf of his son (Pet.

App. 50a, 53a-54a). Shortly thereafter, petitioner spoke

with Holmes, denied having talked with anyone about the

Drew Fairchild case, and inquired whether his phone call

to Wiley Fairchild from Holmes’s farm had been recorded

(Tr. 758-759).

A federal grand jury began an investigation of the mat-

ter. On July 18, 1984, petitioner testified before the grand

jury. The prosecutor explained that the case involving

Drew Fairchild had been “indicted by the state.” Petitioner

agreed with the prosecutor that there had been “some

criticism of the way the state handled the case.” The prose-

cutor also stated that Holmes was the state prosecutor who

handled the case, and petitioner described Holmes as his

“long time friend.” Immediately after this background

discussion, the prosecutor inquired whether Holmes, the

state prosecutor, had “ever discuss[ed] the Drew Fairchild

case with” petitioner. Petitioner responded that, to the

best of his recollection, he had not. He then immediately

explained that “the federal government has nothing to do

with a state court prosecution. * * * The federal courts are

prohibited, even if we were asked by properly filed pro-

ceedings, from interfering in any way or having any input

6

or say so with reference to any state court — ongoing state

court criminal action.” Pet. App. 56a-57a.‘

The prosecutor then asked petitioner further questions

about “the criticism that you read about or heard about

directed at Bud Holmes’ handling of the Drew Fairchild

case” (Pet. App. 58a). Petitioner acknowledged having

read such criticism in a newspaper, and he was then asked,

“Did Wiley Fairchild ever discuss the case with you?”

(ibid.). Petitioner denied that any such discussion had

taken place, and, when he was asked whether “Wiley Fair-

child ever ask[ed] you to do anything vis-a-vis his son’s

case,” petitioner replied, “Absolutely not” (ibid.).

At the conclusion of his grand jury testimony, petitioner

was asked if there was anything he wanted to add. Peti-

tioner then made the following statement (Pet. App.

60a-61a):

I’ve been told and led to believe and read in the

newspaper and heard on the news media so much

about this is an investigation of the Drew Fairchild

criminal case. Now, I have had nothing whatsoever

officially or unofficially to do with the Drew Fair-

child criminal case in federal court or state court. |

don’t need to reconstruct anything with reference to

that. I’ve told you that from the beginning.

I have never talked to anyone about the case, any

federal judge or state judge, federal prosecutor or

State prosecutor, and I never handled any aspect of

this case in federal court. As you said, Judge Cox

handled it. | don’t know where—someone told me

maybe Judge Russell handled one of the other

defendants also and— but I never handled any part of

it, never had a thing to do with it at all, and never

talked to anyone, state or federal, prosecutor or

* To reinforce this point, petitioner made reference (Pet. App.

57a-58a) to the docrine of Younger v. Harris, 401 U.S. 37 (1971).

7

judge, in any way influence [sic] anybody with respect

to this case.

d. In March 1985, many months after petitioner gave

this testimony, something finally happened in Drew Fair-

child’s long-pending case in state court. The judge to

whom the case had been reassigned announced that he

vould not honor Drew Fairchild’s plea agreement with

District Attorney Holmes. Pet. App. 12a. On March 29,

1985, Drew Fairchild was for the first time indicted on

federal charges stemming from the August 1980 con-

spiracy to smuggle marijuana (id. at 10a). He entered a

guilty plea in federal court and was sentenced to six

months in prison (id. at 12a).

2. On August 29, 1985, the grand jury indicted peti-

tioner On One count of accepting a gratuity (Count I) and

on three counts alleging that he had made false statements

during his appearance before it (Counts II-IV). Count II

alleged that he had testified falsely that Wiley Fairchild

had never discussed the case with him and that Wiley Fair-

child had never asked him to do anything vis-a-vis Drew

Fairchild’s case. Count III alleged that petitioner had

testified falsely in denying that District Attorney Holmes

had ever discussed “the Drew Fairchild case” with him.

Count IV alleged that petitioner had testified falsely that

he had “had nothing whatsoever officially or unofficially

to do with the Drew Fairchild criminal case in federal

court or state court” and that he had “never talked to

anyone, state or federal, prosecutor or judge, in any way

[to] influence anybody with respect to this case.” Count IV

alleged that that testimony was false because petitioner, in

fact, “did have something to do with the Drew Fairchild

drug case as he had sought to influence the case by asking

state prosecutor Paul H. ‘Bud’ Holmes to do what he

could for Drew Fairchild and thereby handle the case in a

way that would please Wiley Fairchild.” Pet. App. 64a-7la

(emphasis omitted).

At trial, the jury returned verdicts of guilty on Counts

II] and IV. It acquitted petitioner on Counts I and II. The

district court denied petitioner’s post-trial motion for a

judgment of acquittal (Pet. App. 29a-4la). Among other

things, the court rejected petitioner’s contention that the

evidence was insufficient to support the convictions on

Counts III and IV, observing that “there was ample

evidence from which a jury could find guilt beyond a

reasonable doubt on Counts III and IV” (id. at 31a).

2. A panel of the court of appeals, consisting of two

Fifth Circuit judges and a judge of the Second Circuit sit-

ting by designation, unanimously affirmed, also rejecting

petitioner’s claims regarding the sufficiency of the

evidence. In particular, the court of appeals rejected peti-

tioner’s argument that the question whether he had ever

discussed the Drew Fairchild case with Holmes was am-

biguous. Pet. App. 9a-26a.°

Petitioner then filed a petition for rehearing with a sug-

gestion for rehearing en banc. Of the 14 active judges on

the court of appeals, 11 were recused (Pet. App. 2a & n.1).

Because, under Fifth Circuit Rule 35.6 (see id. at 45a),

rehearing en banc is granted only on a favorable vote of a

majority of all active judges, and not just a majority of all

nonrecused judges, it was impossible that petitioner’s sug-

gestion of rehearing en banc would succeed under Rule

35.6. While the suggestion was pending, petitioner and the

government both filed memoranda addressing the pro-

cedure for handling the suggestion of rehearing en banc.

Petitioner suggested that rehearing en banc should be

granted if a majority of the nonrecused judges in regular

active service voted in favor of rehearing en banc. Alter-

natively, he maintained that the number of judges voting

> The court of appeals also rejected petitioner’s claims of prose-

cutorial misconduct, imprope: denial of a bill of particulars, improper

failure to sever or dismiss the gratuity count, and evidentiary error

(Pet. App. 26a-28a).

9

on whether to rehear the case en banc should be enlarged

by a waiver or withdrawal of recusals, the designation of

senior judges to vote, or the assignment of judges from

other circuits. Pet. App. 2a-4a & n.2.

All three members of the panel voted to deny rehearing.

In addition, none of the three nonrecused active judges of

the court of appeals called for a vote on the suggestion of

rehearing en banc, and all three indicated that they would

vote against rehearing en banc if a poll were taken (Pet.

App. la-2a, 3a n.3, 4a-Sa).° All 11 recused judges main-

tained their recusals (id. at 3a n.2, 4a n.4). The court re-

jected petitioner’s suggestion that senior judges or judges

from other circuits vote on the rehearing suggestion, on

the ground that there is no statutory authority for sucha

procedure (id. at Sa-6a). The court also rejected

petitioner’s suggestion that the Constitution required such

a procedure regardless of the lack of statutory authority

(id. at 6a-7a). Finally, the court observed that, although

petitioner had characterized his contentions otherwise,

any error in the panel opinion “would at most amount to

one of misapplication of precedent to the facts at hand”

and thus would not present the kind of issue worthy of en

banc consideration (id. at 8a).

ARGUMENT

1. Relying on Bronston v. United States, 409 U.S. 352

(1973), petitioner contends (Pet. 14-18) that the question

whether District Attorney Holmes had ever discussed “the

Drew Fairchild case” with him was so ambiguous that his

conviction on the count alleging the falsity of his denial

that such a discussion occurred should be reversed. That

6 The court also indicated that it would abide by Rule 35.6 even if a

majority of the nonrecused judges had voted in favor of rehearing en

banc (Pet. App. 4a).

10

faet-bound claim was properly rejected by the court below

and does not warrant further review.’

In Bronston, 409 U.S. at 359, the Court held that the

perjury statute did not embrace a literally true but

unresponsive answer, even though the answer was

arguably misleading by negative implication. The Court

reasoned that a perjury conviction must rest on the ut-

terance by the accused of a false statement and not on the

particular interpretation that the questioner or factfinder

places on an answer (id. at 360).

This case is a far cry from Bronston. The statement

alleged to be perjurious in Bronston was “[t]he company

had an account there [in Switzerland] for about six

months, in Zurich”—a statement that was absolutely true

but happened to be unresponsive to the question asked,

which was whether Bronston himself had ever had a Swiss

bank account (409 U.S. at 354). Petitioner, by contrast,

did not make a true but unresponsive statement; he simply

denied that Holmes had “ever discuss[ed] the Drew Fair-

child case” with him (Pet. App. 57a). And Holmes Aad dis-

cussed the Drew Fairchild case with petitioner.

Petitioner’s real argument is not that his denial of

having ever discussed the Drew Fairchild case with Holmes

was literally true, as in Bronston, but that he could have

taken the question as an inquiry only into his discussions

with Holmes (a state prosecutor) of the federa/ authorities’

handling of matters relating to Drew Fairchild. In making

that argument, petitioner seeks to draw on cases from the

? Petitioner also suggests that the court below has held “that juries

may decide perjury charges even when the question was ambiguous”

(Pet. 16) and that there is sharp division among the lower courts on

that question. Petitioner’s premise is false, however. Far from holding

that there was an ambiguous question in this case but that the issue

should go to the jury, the court of appeals held that there was no am-

biguous question in this case. The court of appeals specifically stated,

“There is certainly no ambiguity in the question, ‘Did [Holmes] ever

discuss the Drew Fairchild case with you?’ ” (Pet. App. 24a).

11

lower courts in which perjury convictions have been

reversed because, although the answers given to particular

questions have been responsive, the questions themselves

have been reasonably susceptible to consiructions under

which the answers given were true.

Those cases hold that, when a line of questioning is so

vague as to be fundamenially ambiguous, the answers

associated with the questions posed may be insufficient as

a matter of law to support a perjury conviction. See, e.g.,

United States v. Lighte, 782 F.2d 367 (2d Cir. 1986). As

the court explained in Lighte, 782 F.2d at 375 (citations

omitted): —

A question is fundamentally ambiguous when it “is

not a phrase with a meaning about which men of or-

dinary intellect could agree, nor one which could be

used with mutual understanding by a questioner and

answerer unless it were defined at the time it were

sought and offered as testimony.” * * * When am-

biguity in questioning is raised, the “defense . . . may

not be established by isolating a statement from con-

text, giving it in this manner a meaning entirely dif-

ferent from that which it has when the testimony is

considered as a whole.”

In assessing whether a question is fundamentally am-

biguous, an appellate court has the limited role of deter-

mining whether, when considered in context, the question

asked was “ ‘subject to a reasonable and definite inter-

pretation by the jury.’ ” United States v. Chapin, 515 F.2d

1274, 1280 (D.C. Cir.) (quoting United States v. Mar-

chisio, 344 F.2d 653, 662 (2d Cir. 1965)), cert. denied, 423

U.S. 1015 (1975); see United States v. Lighte, 782 F.2d at

372.

Petitioner maintains that the question whether he dis-

cussed “the Drew Fairchild case” with District Attorney

Holmes was ambiguous because, from the context of the

question, he could reasonably have construed it to relate

12

only to the federal authorities’ actions concerning Drew

Fairchild (Pet. 16). Such a construction, however,

“ “solat[es] [the] statement from [its] context, giving it

* * * a meaning entirely different from that which it ha[d]

when the testimony is considered as a whole’ ” (Lighte, 782

F.2d at 375). It also ignores the parts of petitioner’s

testimony that demonstrate that, whether or not he could

have understood the question to refer to a federal “Drew

Fairchild case,” he did not in fact so understand the ques-

tion.

The prosecutor introduced the topic of petitioner’s dis-

cussion with Holmes by reminding him that he had

testified that “there was some criticism of the way the state

handled the case.” The prosecutor then added that “[tjhe

grand jury has heard evidence that the prosecutor, the

state prosecutor, who eventually handled the case was an

individual named Bud Holmes.” He then inquired whether

Holmes “ever discuss[ed] the Drew Fairchild case with

you.” Pet. App. 56a-57a (emphasis added). In this con-

text, it was readily apparent that the prosecutor’s question

was directed toward the state prosecution; indeed the

question would have made no sense if it had referred to the

federal authorities’ handling of the matter. This is

especially so because at the time of petitioner’s grand jury

testimony there never had been a “Drew Fairchild case” in

federal court. There had only been a prosecution in which

Drew Fairchild was an unindicted co-conspirator, and a

pre-indictment plea agreement between Drew Fairchild

and the federal prosecutor.’

§ Petitioner also errs in suggesting that the term “discuss” as used in

the question was ambiguous because it can imply an extensive explora-

tion of a subject rather than a passing exchange (Pet. 16 n.6). As the

court below observed in rejecting this claim, “ ‘[wJords that are clear

on their face are to be understood in their common sense and usage’ ”

and, therefore, do not require further definition. Pet. App. 25a

aA

13

It is also readily apparent that petitioner construed the

question to refer to the state prosecution. Immediately

after responding to the question in the negative, petitioner

explained that “the federal government has nothing to do

with a state court prosecution * * * [and federal courts]

are prohibited * * * from interfering in any way or having

any input or say so with reference to any state

court —ongoing state court criminal action” (Pet. App.

57a). Petitioner thus made it quite clear that he

understood that the “Drew Fairchild case” being discussed

in his grand jury testimony was the state-court prosecu-

tion. :

2. Petitioner also contends (Pet. 18-21) that the

evidence relating to Count IV failed to establish the asser-

tion in the indictment that he “sought to influence the

[Drew Fairchild] case by asking * * * Holmes to do what

he could for Drew Fairchild” (Pet. App. 71a). Con-

comitantly, petitioner contends that the evidence failed to

establish the falsity of his statements that “I have had

nothing whatsoever officially or unofficially to do with the

Drew Fairchild criminal case in federal court or state

court” and that “I never handled any part of it, never had a

thing to do with it at all, and never talked to anyone, state

or federal, prosecutor or judge, in any way influence [sic]

anybody with respect to this case” (id. at 60a, 61a). This

challenge to the sufficiency of the evidence was explicitly

resolved against petitioner by both courts below (see id. at

23a-25a, 30a-3ia) and warrants no further review by this

Court. In any event, it is without merit.

(quoting United Siates v. Fulbright, 804 F.2d 847, 851 (Sth Cir.

1986)). In any event, it is clear from the record that petitioner’s discus-

sion of the Drew Fairchild case with Holmes was not merely a passing

exchange. It began in Holmes’s office, continued during a drive to

Holmes’s farm, and culminated in the telephone call made to Wiley

Fairchild from Holmes’s farm (see Pet. App. 1Sa-18a).

14

In the context of a perjury prosecution, the indictment

must set out the alleged perjurious statement and the ob-

jective truth in stark contrast, so that the claim of falsity is

clear. See, e.g., United States v. Cowley, 720 F.2d 1037,

1042 (9th Cir. 1983), cert. denied, 465 U.S. 1029 (1984);

United States v. Tonelli, 577 F.2d 194, 195 (3d Cir. 1978).

But “it is not necessary to prove the exact words of the ac-

cused in giving the false testimony, it being sufficient to

prove substantially what he said.” United States v. Laite,

418 F.2d 576, 580 (Sth Cir. 1969). Thus, “[t]he exact words

charged in the indictment need not be proved; if the charge

is substantially proved, any variance is immaterial”(ibid.).

In this case, petitioner’s testimony before the grand jury

that he did not attempt to influence anyone with respect to

the case does, in fact, stand in stark contrast with the

allegation that he sought to influence the case by asking

Holmes to do what he could for Drew Fairchild. And the

proof of that allegation at trial was sufficient to allow the

jury to find that it was true. Holmes testified that, during

his meeting with petitioner, petitioner stated that,

although he did not wish Holmes to do anything wrong, he

was “ ‘just saying that Mr. Fairchild asked [him] to put in -

a\good word’ ” for his son, Drew (Pet. App. 16a). That

petitioner intended his “good word” on Drew Fairchild’s

behalf io influence Holmes’s disposition of the case,

despite his assertion to the contrary, is demonstrated by

his ensuing call to Wiley Fairchild informing him that

“ “everything [is] going to be taken care of to your satisfac-

tion’ ” (id.. at 21a) and Holmes’s statement to Wiley Fair-

child in petitioner’s presence that “ ‘when [petitioner] asks

me to do something, I don’t ask no questions, I just go

ahead and do it’ ” (/d. at 22a). Finally, the purpose of peti-

tioner’s request to Holmes is evidenced by a subsequent

statement to Carroll Ingram, Wiley Fairchild’s attorney, in

which petitioner said that he had spoken to Holmes about

Drew Fairchild’s case and Wiley Fairchild’s request, and

ae 2

15

that Holmes had said that he would consider the request

(Tr. 1070).°

3. Finally, petitioner claims (Pet. 21-25) that the

operation of Fifth Circuit Rule 35.6 denied him a fair op-

portunity to have his suggestion for rehearing en banc con-

sidered by the court because it was impossible, unless

recusals were withdrawn or additional judges were

designated to vote on the suggestion, to secure the

necessary majority vote of all judges in regular active serv-

ice. Petitioner correctly notes (Pet. 22) that some courts of

appeals permit rehearing en banc on the favorable vote of

a majority of the nonrecused judges, although most courts

of appeals do not. Petitioner does not claim that any court

of appeals has ever allowed senior judges who were not

members of the panel or judges from other circuits to vote

on suggestions of rehearing en banc, or that there is

statutory authority for such a procedure, although he con-

tends that the Constitution requires such a procedure in

the circumstances of this case.

Petitioner’s contention that this Court should require a

court of appeals to convene en banc when a majority of

nonrecused judges vote in favor of rehearing en banc is

purely academic. All three nonrecused judges of the court

9 Petitioner also claims that his statement that “I have had nothing

whatsoever officially or unofficially to do with the Drew Fairchild

criminal case in federal court or state court” (Pet. App. 60a) was

literally true because “[t]he last phrase * * * must be read to modify

the entire statement, and it is indisputable that [petitioner] played no

role in Drew’s case ‘in’ any court” (Pet. 20 (emphasis added)). There is

no reason, however, why the sentence must be read in the unnatural

way suggested. It was well within the province of the jury to interpret

petitioner’s words to mean what they seem to say, /.e., that petitioner

had nothing whatsoever, officially or unofficially, to do with any

criminal case brought in federal court or in state court against Drew

Fairchild. Because petitioner did have something “to do” with the state

criminal case “unofficially,” /.e., he discussed the matter with Holmes,

the jury had an ample basis to conclude that petitioner’s statement was

false.

16

of appeals opposed rehearing en banc in this case. Thus,

even if this contention had merit, it would not help peti-

tioner. In any event, the contention lacks merit.'°

Petitioner’s contention that the Constitution required

the court of appeals to go even further and find additional

judges to vote on the suggestion of rehearing en banc is

supported by no authority and is without merit. As the

Court explained in Western Pac. R.R. Corp. v. Western

Pac. R.R. Co., 345 U.S. 247, 250 (1953):

In our view, [the en banc statute] is not addressed

to litigants. It is addressed to the Court of Appeals. It

is a grant of power. It vests in the court the power to

order hearings en banc. It goes no further. It neither

forbids nor requires each active member of a Court of

Appeals to entertain each petition for a hearing or

rehearing en banc. The court is left free to devise its

'0 In this Term alone there have been before this Court two cases in

which the requirement of the vote of a majority of judges in regular

active service, rather than just a majority of the voting judges, has

worked to the detriment of the government. Because the teachings of

this Court are clear —it is for the courts of appeals, not this Court, to

fashion en banc procedures —we have refrained from petitioning on

that issue in One case and have affirmatively urged the Court not to

review the issue in the other case. See Abourezk v. Reagan, No.

84-5673 (D.C. Cir. May 23, 1986) (order denying government’s sug-

gestion for rehearing en banc despite favorable vote of five out of nine

voting judges), aff'd by an equally divided Court, No. 86-656 (Oct. 19,

1987); In re Ahlers, 794 F.2d 388, 415 (8th Cir. 1986) (suggestion for

rehearing en banc, supported by United States as amicus curiae,

denied despite favorable vote of five out of nine voting judges), cert.

granted sub nom. Norwest Bank Worthington v. Ahlers, No. 86-958

(June 22, 1987). We are serving on petitioner’s counsel a copy of our

amicus curiae brief at the petition stage in AA/ers, in which, although

we expressed strong disagreement with the court of appeals on the

merits, we also noted (at 9 & n.3) that the issue concerning en banc

procedures was insubstantial. This Court’s grant of certiorari in

Ahlers was limited to one issue on the merits.

17

own administrative machinery to provide the means

whereby a majority may order such a_ hearing.

Accord Moody v. Albemarle Paper Co., 417 U.S. 622,

624-625 (1974); Shenker v. Baltimore & O.R.R., 374 U.S.

1, 4-5 (1963).'' The en bane procedure that Congress has

authorized, therefore, is fundamentally different from the

right to appeal, which —although not constitutionally re-

quired—must meet constitutional demands if the

legislature does provide it. No litigant has a constitutional

right to any particular procedures in the consideration of a

suggestion for rehearing en banc.

Petitioner’s suggestion of rehearing en bane was re-

viewed by three circuit judges, all of whom concluded that

it was without merit. He was not entitled to anything

more.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOHN F. DE PUE

Attorney

DECEMBER 1987

'! This Court also explained in Moody, 417 U.S. at 626, that the ex-

press language of 28 U.S.C. 46(c) “confines the power to order a

rehearing in bane to those circuit judges who are in ‘regular active

service.’ * * * [NJeither the Court nor Congress has suggested that any

other than a regular active service judge is eligible to participate im the

making of the decision whether to hear or rehear a case mi bane.”

\. US. GOVERNMENT PRINTING OFFICE: 1987 — 202 .037/60174