Reply Brief — Lary v. Ansari

. ye ritpe& D

NOV 19 1987

JOSEPH F. SPANIOL, JR.

CLERK

Case No. 87-522

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1987

JOHN H. LARY, JR.,

Petitioner,

¥.

MANSOUR ANSARI AND

MANSOUR ANSAR! ORIENTAL RUGS, INC.,

Respondents

—_—

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPFALS

FOR THE ELEVENTH CIRCUIT

PETITIONER'S REPLY BRIEF

Jonni cary, ur., Petitioner

690 St. Clair Street S. Ww.

Huntsville, Alabama 38601

205/553-1510

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

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TABLE OF CONTENTS

Table of Contents

Table of Authorities

Reasons the Petition Should be Granted

Conclusion

Certificate of Service

TABLE OF AUTHORITIES

cases:

793 F.2d 1541 (11 Cir. 1986).

, 157 App DC 166,

482 F.2d 755, cert denied 414 US. 1076,

94 S.Ct. 593.

United States v. Williams, 341 U.S. 70,

71 S.Ct. S81

Woodman v. United States, 30 F.2d 482

(1929 CAS Tex), cert denied 279 U.S. 855,

49 S.Ct. 351

REASONS THE PETITION

SHOULD BE GRANTED

Ansari is indeed correct that ces judicata precludes

relitigation of an issue that was or could have been litigated in

prior action. | A Durbin, Inc. vy. Jefferson Nat'l Bank, 793 F.2d

1541 (11 Cir. 1986). Even assuming the absence of overriding

public policy considerations sufficient to avoid that preclusion,

what Ansari and the Eleventh Circuit have still failed to show,

however, is how Lary could possibly have litigated his conspiracy

Claim against Ansari at @ time when, due to Ansari’s untruthful

answers at deposition, the very existence of the conspiracy was

unknown. Is there now a new maxim of law that allows parties to

profit from fraudulent misconduct during discovery? And, since

conspiracy is a different crime from the underlying offenses,

Lary's conspiracy claim against Ansari is a different cause of action

from his earlier common law fraud claim, even though these two

causes of action share some common elements. “The commission of

@ substantive offense and conspiracy to commit it are seperate and

distinct crimes,” United States v. Boyle, 157 App DC 166, 482

F.2d 755, cert denied 414 U.S. 1076, 94 S.Ct. 593. “Ordinarily,

acquittal of a particular crime does not, on principle of res

judicata , operate as bar to prosecution for conspiracy to commit the

crime,” Woodman v. United States, 30 F.2d 482 (1929 CAS

Tex), cert denied 279 U.S. 855, 49 S.Ct. 351. “Acquittal of

particular crime does not, on theory of former acquittal or

jeapardy, bar subsequent prosecution for conspiracy to commit

crime,” United States vy, Williams, 341 U.S. 70, 71 S.Ct. S81.

Lary’s present common law fraud claim against Ansari now

contains the indispensable element of Ansari’s 1986 breach of the

Termination Agreement (this element is indispensable because

Ansari won prior lawsuit by raising defense of the covenant not to

sue contained in the Termination Agreement, a defense that is no

longer available to him because of his 1986 breach). Accordingly,

present common law fraud claim ts 6 different cause of action than

earlier common law fraud claim. Ansari‘s 1986 breach of the

Termination Agreement certainly was not litigated during the 1984

trial. Nor could it have possibly been litigated then; at that time

Ansar i's breach had not yet occurred.

Lary agrees that he cannot relitigate his 1984 common law

fraud claim against Ansari or, absent overriding judicial

considerations, any other claim that he could have litigated during

1984 trial. But his new common law fraud claim now includes as

indispensable element an event that occurred after conclusion of

prior action. And his R.1.C.0. conspiracy claim was not litigated and

could not have been litigated during trial of prior action.

Accordingly, the fourth test for the imposition of res judicata

preclusion, the requirement that the “same cause of action must be

involved in both cases" is not met for either Lary's conspiracy

Causes of action or his new common law fraud cause of action here.

That fourth element may preclude by res judicata Lary’'s

non-conspiratoral R.1.C.0. claim on grounds that it could have been

litigated during prior action, but Lary argues that overriding

public policy considerations should allow him to pursue this cause

of action as well. (i.6., res judicata may arguably bar Lary’'s

non-conspiratorial R.1.C.0. claim, unless Court decides that public

policy considerations are sufficiently strong so as to override bar

and allow that claim to go forward, but res judicata cannot proper ly

bar either Lary’'s R.1.C.0. conspiracy claim or his new common lew

fraud claim, since neither of these two claims were litigated or

could have possibly been litigated in prior lawsuit.)

CONCLUSION

Because the Court of Appeals, among other errors, decided an

important question of Federal law (erroneously held that R.1.C.0.

conspiracy cause of action is same cause of action as underlying

common law fraud claim) wrongly and in conflict with decisions of

United States Supreme Court and decisions of other Circuits, the

Petition for Writ of Certiorar! should be granted.

Respectfully submitted,

John H. Lary, Jr., Petitioner

600 St. Clair Street S.W.

Huntsville, Alabama 35801

205/533-1510

CERTIFICATE OF SERVICE

| certify that | have, this _ day of November, 1987,

served three copies of the foregoing upon Stephen E. O'Day, counsel

for the Respondent, by United States Mail, postage prepaid, as

follows:

Stephen E. O'Day, Esq.

Hurt, Richardson, Garner , Todd & Cadenhead

999 Peachtree Street N.E.

Atlanta, Georgia 30309-3999

404/870-6440

John H. Lary, Jr.