# Reply Brief — Nixon v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1057%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1026 ## Text : | Rika | ~ 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. RRR RE calPe AlputSeesr Coens. Ver Pree O RE STE See Maen 5 na bye Ke ee Fe, Doli pnt geneent. terre e < fas Sere AP 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1057%3A3. Public record. Not legal advice.