Reply Brief — Nixon v. United States

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| ~ ll JAN 5 1988

JOSEPH F. SPANIOL, JF

No. 87-650 CLERK

IN THE

Suprenw Cart of the United States

OCTOBER TERM, 1987

WALTER L. NIXON, JR.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITIONER’S REPLY BRIEF

Of Counsel: WILLIAM H. JEFFRESS, JR.

Boyce HOLLEMAN DAVID emnock STEWART

Boyce HOLLEMAN, P.A. (C ounsel of —.

Post Office Drawer 1030 gee

1913 15th Street Bash mn

Gulfport, Mississippi 39502 2555 M Street, N.W., Suite 500

(601 ) 863-3142 W ashington, D.C. 20037

- or (202) 293-6400

ENJAMIN (©. TOLEDANO i E aoF

291 Seat Aeaell Attorneys for Petitioner

Pass Christian, Mississippi 39571

(601) 452-4311

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

Spar + — x RIT st cn

TABLE OF AUTHORITIES

CASES

Bronston v. United States, 409 U.S. 352 (1978) ......

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

cert. denied, 423 U.S. 1015 (1975) ..............2........

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

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IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1987

No. 87-650

WALTER L. NIXON, JR.,

. Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITIONER’S REPLY BRIEF

Petitioner Walter L. Nixon, Jr. makes the following

reply to the Brief for the United States:

1. The government’s brief deals only glancingly with

the key legal issue whether a perjury conviction may be

based upon a response to an ambiguous question when the

response was literally true under a reasonable under-

standing of the question. This issue was reserved in Bron-

ston v. United States, 409 U.S. 352 (1973), and there is

a square conflict among the circuits on it. See Petition

for Certiorari, at 15-16.

The government incorrectly implies that the courts that

have reversed perjury convictions based on ambiguous

2

questions have adopted the Second Circuit’s view that the

question must be “fundamentally ambiguous.” See Gov’t

Br. at 11, discussing United States v. Lighte, 782 F.2d

367 (2d Cir. 1986). In fact, none of the other four cir-

cuits and two states has adopted that “fundamentally

ambiguous” standard. See cases cited on pp. 15-16 of

Petition for Certiorari. Similarly, the government incor-

rectly suggests that the Second Circuit’s standard was

elucidated by the D.C. Circuit in United States v. Chapin,

515 F.2d 1274, 1280 (D.C. Cir), cert. denied, 423 U.S.

1015 (1975). In fact, those two courts are in direct con-

flict on this issue. Chapin held that a jury may convict

for perjury even when the question “may have a number

of interpretations,” and thus Chapin allowed “the jury

to determine that the question as the defendant under-

stood it was falsely answered.” Jd. (emphasis in orig-

inal). The Second Circuit in Lighte refused to allow the

jury to make that determination if the question was

fundamentally ambiguous.

2. The government attempts to portray the Petition

as presenting only a factual dispute over Count III of

the indictment. The government argues that the full con-

text of Nixon’s testimony makes clear that Nixon could

not have understood the term “Drew Fairchild’s case” to

refer to federal (as opposed to state) proceedings involv-

ing Drew Fairchild. Gov’t Brief, at 11-13. But it is the

government that ignores the full context of Nixon’s testi-

mony.

The investigation of Nixon was prompted by an allega-

tion that Nixon had steered the Drew Fairchild case from

federal to state authorities. Tr. 316-18, 347. When Nixon

was interviewed by the prosecutor in April of 1984, the

prosecutor stated that he was investigating how Drew

Fairchild’s case “got passed” from federal to state au-

thorities. Pet. App. 46a-47a. The interview returned to

that subject several times. Jd. at 49a, 50a, 52a.

3

Consequently, when Nixon was asked before the grand

jury if he had discussed “Drew Fairchild’s case” with

state prosecutor Holmes, Nixon reasonably understood

the question to address whether Nixon had discussed

with Holmes how the federal case was steered into state

hands. Nixon told the grand jury that the federal courts

have no involvement in state prosecutions, and then added

(in a passage ignored by the government’s brief) that

the federal courts also have no involvement in federal

prosecutorial decisions. Pet. App. 57a-59a. The entire

sequence of testimony reflects Nixon’s understanding—

first established by the prosecutor’s own statements in

the April interview—that, the prosecutor was asking

about how “Drew Fairchild’s case’ “got passed” from

federal to state authorities.

Finally, the government argues that the term “Drew

Fairchild’s case” could not have referred to any federal

action “because at the time of petitioner’s grand jury

testimony there never had been a ‘Drew Fairchild case’

in federal court.” Gov’t Br. at 12. This contention is

contrary to the common parlance of attorneys and is

contradicted by the prosecutor’s statements in the April

1984 interview. |

The federal prosecutor told Nixon in April that the

Drew Fairchild prosecution “originally ... was a federal

case,’ Pet. App. at 46a, that Drew’s “case got picked

up” by the state prosecutor, id. at 50a, and that some-

time between November of 1980 and August 1981, “that

case, on DREW FAIRCHILD and another defendant

who was a fugitive, was passed down... .” Jd. The

prosecutor added that “[Federal District] Judge COX

never had DREW’s case, . . . The case was never in-

dicted [in federal court].” Jd. at 5la (emphases sup-

plied). Thus, in five separate instances the federal pros-

ecutor used the term “case” to describe federal pre-in-

dictment activities concerning Drew Fairchild, and that

4

is precisely what Nixon understood that term to mean

when he testified before the grand jury.’

3. The Petition’s second question concerns whether the

government proved the truth assertion of Count IV, that

Nixon sought to influence state prosecutor Holmes’ han-

dling of Drew Fairchild’s case. The government now ar-

gues that such proof was established by (i) Nixon’s call

to Wiley Fairchild to describe Drew’s preexisting plea

agreement and (ii) Holmes’ statement to Wiley that

Holmes does whatever Nixon asks. Gov’t Br. at 14. But

Nixon’s description to Wiley of the preexisting plea

agreement cannot prove that Nixon attempted to influ-

ence Holmes, particularly since Nixon had no influence

on the plea agreement which had been implemented when

Drew Fairchild pled guilty at least four months earlier.

And Nixon’s flat disavowals of an intent to influence

Holmes—which are established through the testimony of

the government’s own witness, Holmes—cannot be con-

tradicted by Holmes’ admittedly “misleading” statement

to Wiley that he does whatever Nixon asks. Tr. 740.?

4. On the third question, concerning the Fifth Cir-

cuit’s en bane procedures, the government offers no rea-

soning or analysis, but only the flat ipse dixit that the

10QOn an unrelated point, the government misstates the record

when it suggests that “some” of Nixon’s investments with Wiley

Fairchild ‘were made after Drew Fairchild’s troubles began.”

Gov’t Br. at 3, n.3. It is uncontradicted that all three investments

were concluded in February 1980, Tr. 1044, 1118, 1053, 593-94,

while Drew Fairchild’s legal problems did not arise until August

1980.

2The government also misstates Holmes’ testimony when it

asserts that, while visiting Holmes, Nixon “reiterated that he was

simply ‘put[ting] in a good word’ and not asking Holmes to do

anything.” Gov’t Br. at 4. According to Holmes, however, Nixon

stated only that Wiley Fairchild had asked him to put in a good

word. Pet. App. at 16a. No one ever testified that Nixon stated

—much less reiterated—that he actually was “put|ting]” in a

good word. Pet. App. at 15a-l6a.

5

“en bane procedure that Congress has authorized, there-

fore, is fundamentally different from the right to appeal.”

Gov’t Br. at 17. En bane review, of course, differs from

direct appeal because it is discretionary. But that dis-

tinction is irrelevant to petitioner’s claim that he is en-

titled to a fair opportunity to win en banc review, just

as he is entitled to a fair direct appeal. In this case,

only three Fifth Circuit judges (two of whom had served

on the original panel) were not recused from the en banc

proceeding. Because eight votes were needed for Nixon

to win en banc review, he was denied his constitutional

right to a fair opportunity to win en banc review.

CONCLUSION

For all of these reasons, and the reasons stated in the

initial petition for certiorari, the petition should be

granted.

Respectfully submitted,

Of Counsel: WILLIAM H. JEFFRESS, JR.

DAVID OVERLOCK STEWART

BoYcE HOLLEMAN

Boyce HOLLEMAN, P.A. (Counsel of Record)

Post Office Drawer 1030 oe LARROCA

1913 15th Street

(601) 863-3142 Washington, D.C. 20037

(202) 293-6400

recy 9 snc ammagma Attorneys for Petitioner

Pass Christian, Mississippi 39571

(601) 452-4311

January 5, 1988