U.S. v. Nixon
| Decision Date | 30 April 1987 |
| Docket Number | No. 86-4248,86-4248 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Walter L. NIXON, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William F. Goodman, Jr., Jackson, Miss., Fawer & Zatzkis, New Orleans, La., Benjamin C. Toledano, Pass Christian, Miss., Martha G. Carson, Ocean Springs, Miss., for defendant-appellant.
Reid H. Weingarten, Jan Nielsen Little, Attys., Washington, D.C., George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before VAN GRAAFEILAND, * GARWOOD, and JONES, Circuit Judges.
Walter L. Nixon, Jr. (hereinafter "appellant") appeals from a judgment of the United States District Court for the Southern District of Mississippi, convicting him of perjury before a grand jury. 18 U.S.C. Sec. 1623. We affirm.
Although appellant's trial was a lengthy one, the events leading to his grand jury testimony may be fairly briefly summarized. Appellant had been a judge of the very court in which he was convicted since 1968, and Chief Judge of that court since 1982. A married man with three children, he had for some years prior to the incidents at issue herein been dissatisfied with his modest judicial salary, and had looked for means of augmenting it. In 1980, he found these means in the person of Wiley Fairchild, a successful investor in oil and gas properties. Through the intercession of Carroll Ingram, Fairchild's attorney, appellant was able to purchase an interest in three oil well properties at an extremely modest price. By the time appellant's case went to trial in 1986, appellant had recouped his investment some six times over.
Fairchild, the source of appellant's good fortune, had a son, Reddit Andrew Fairchild, more generally known as "Drew". With a partner named Bob Royals, Drew operated a business at the Hattiesburg Municipal Airport, in which, among other things, they serviced airplanes. In August 1980, Drew and Royals conspired with several others to pick up a load of marijuana in Colombia and fly it to the United States. Drew's and Royals' role was to provide confidential access to the airport and to refuel the plane. See United States v. Royals, 777 F.2d 1089 (5th Cir.1985). The conspiracy was brought to an abrupt halt by law enforcement officials who met the plane at the airport.
Despite Drew's admitted participation in the conspiracy, he was not indicted by a federal grand jury until March 29, 1985. The events which intervened were somewhat bizarre. Although Drew was not arrested at the scene of the crime, he was concerned that eventually he would be. Three of Drew's coconspirators were indicted by a federal grand jury on August 19, 1980, and, shortly thereafter, Drew sought legal help. He and attorney William Porter went to Forrest County District Attorney Paul ("Bud") Holmes to discuss Drew's situation, and Holmes sent them to United States Attorney George Phillips, who was overseeing the prosecution of the indicted conspirators. The end result of their meeting with Phillips was a "Memorandum of Understanding", executed on November 19, 1980, in which Drew agreed to plead guilty and to cooperate with the Government, in exchange for which the Government would recommend a five-year sentence with execution suspended and a $15,000 fine.
Porter then requested $10,000 in payment for his services. Upon Drew's refusal to pay, Porter commenced suit against him in March 1981. When Drew was questioned by his father, he told his father that he thought Porter had spent about twenty-five hours on his case. Unknown to Drew, his father then sent Porter a check for $2,669.19 on July 3, 1981. Porter insisted, however, that he was entitled to the full amount of his bill, and he complained to his friend Holmes about his inability to collect it. Concluding that an indictment of Drew would help bring about payment of the balance of Porter's fee, Holmes, after clearing the matter with United States Attorney Phillips, presented the case against Drew and a theretofore unindicted coconspirator, Robert Watkins, to a State grand jury. On August 26, 1981, the grand jury returned an indictment against both Drew and Watkins. On September 3, 1981, the day on which Drew was arraigned, his father gave Porter a check for $7,500.
Thereafter, Drew agreed to testify against Watkins in return for assurances from Holmes that he would receive five years probation and a $5,000 fine. On January 12, 1982, he pled guilty, and sentencing was scheduled for March 19, 1982. Because Drew was recovering from back surgery in March, his sentencing was continued to the July 1982 term. Thereafter, it was continued to the August term, to the November term, and then indefinitely. On December 23, 1982, Holmes moved successfully to have Drew's case "passed to the file", a procedure which places cases in an inactive status and generally results in their termination.
In Drew's case, however, the media, in his words, "made a big issue of it", and his case remained "in the file" for only three weeks. When Holmes was asked why this was so, he testified in part:
Well, because I had made the statement once Watkins [who had been a fugitive] got back I was going to open it up. That and the fact it was an awful lot of publicity on it, the television, newspapers had picked it up, they were talking about the fact this very wealthy, son of a very, very wealthy man in Hattiesburg, like his case had been swept under the rug, they were editorializing about it. I made the public statement that when we got Watkins got back up here I was going to bring it back out of the file if we could get him.
Although the reinstated case was assigned to a different judge, Drew still was not called for sentencing. His case was continued through 1983 and 1984 and into March 1985, when the Forrest County Circuit Judge to whom the case had been reassigned announced that he would not honor Drew's plea agreement. Drew then was indicted in federal court, and, after pleading guilty, was sentenced to six months in prison.
When the FBI was informed of appellant's oil deal with Fairchild, it suspected that there might be an illicit relationship between it and the somewhat unusual treatment of Fairchild's son. It began an investigation which culminated in the presentation of evidence to a federal grand jury. Appellant voluntarily appeared and testified. The grand jury returned an indictment charging appellant with one count of bribery and three counts of perjury. He was acquitted on the bribery count and the first perjury count but was convicted on the remaining two counts of perjury.
The first count on which appellant was convicted was based on the following allegedly false testimony before the grand jury:
Q. The grand jury has heard evidence that the prosecutor, the state prosecutor, who eventually handled the case was an individual named Bud Holmes. Is he a friend of yours?
A. Very good friend of mine, long time friend, yes.
Q. Did he ever discuss the Drew Fairchild case with you?
A. No, not to the best of my recollection. I think I would recall if he had.
The second such count was based on the following testimony:
All right. Judge, do you have anything you want to add?
THE WITNESS:
Yes, I do.
I want to say this. I--Here (indicating) are your notes too, copies of your instruments, rather.
I came here voluntarily and am very happy to cooperate with this grand jury and give them all the information that I have and that I could. And I have always thought everyone should do that, and that goes for the grand jury over which I'm supervising right now, the other federal grand jury that's sitting at this time. I have nothing at all to--had nothing to hide or nothing to withhold and I brought everything that you asked me to bring.
And I want to say this. That 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 Fairchild criminal case in federal court or state court. I 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. I 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 judge, in any way influence anybody with respect to this case. Didn't know anything about it until I read that account in the newspaper. Didn't even know Mr. Fairchild had a son when I was dealing with him in the business transaction.
So I want to say that because I understand that's what this is all about. The investigation is apparently, if the news media is correct, and if I understand it correctly, that's what this is about, the Drew Fairchild criminal case.
Some of the testimony offered by the Government in support of its claim that the foregoing testimony was false is substantially undisputed. It is undisputed that on one occasion, the exact date being unclear, appellant visited Wiley Fairchild in Fairchild's office. Fairchild testified that he sought out appellant because appellant was a good friend of Holmes and Fairchild "wanted [appellant] to get Bud Holmes to do what he had promised to do." In response to questions by his own attorney, appellant summarized this portion of his conversation with Fairchild as follows:
Q. Did he ask you to do anything?
A. No.
Q. Did he discuss or you discuss with him in any way the case of Drew Fairchild?
A. No, I did not.
Q. Did you...
To continue reading
Request your trial
-
U.S. v. Espinoza-Seanez
...all reasonable inferences and credibility choices must be viewed in the light most favorable to the government. United States v. Nixon, 816 F.2d 1022 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 4......
-
U.S. v. Aguilar
...States v. Claiborne, 765 F.2d 784 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986); United States v. Nixon, 816 F.2d 1022 (5th Cir.), reh'g denied, 827 F.2d 1019 (5th Cir.1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988); and United S......
-
U.S. v. Gaudin
...States v. Holley, 942 F.2d 916, 923 (5th Cir.1991); United States v. Abroms, 947 F.2d 1241, 1246 (5th Cir.1991); United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987); United States v. Thompson, 637 F.2d 267, 268 (5th Cir.1981); United States v. Bell, 623 F.2d 1132, 1134 (5th Cir.1980)......
-
U.S. v. Holmes
...with Leonard Melvin respecting Melvin's then pending civil case before Judge Nixon.2 As reflected in the opinion in United States v. Nixon, 816 F.2d 1022 (5th Cir.1987), Judge Nixon was indicted and tried on one count of accepting something of value respecting an official act (18 U.S.C. Sec......