because Weingarten already knew (based upon the April interview) that Petitioner's answer would be: "No."
With respect to the first of these arguments, Petitioner wholly distorts the meaning of Weingarten's statement to Petitioner's question by removing it from the context of the entire interview. During the interview, Weingarten unambiguously informed Petitioner that the government was investigating Petitioner's mineral royalty investments with Wiley Fairchild, because the government had a confidential informant who alleged that there was an illicit connection between Petitioner and the Drew Fairchild criminal case. (Int. Tr. at pp. 37-38). Likewise, Weingarten clearly told Petitioner that the reason he asked him whether Holmes or Wiley Fairchild had ever discussed Drew's criminal case with him was to determine if there was any connection between Petitioner and the case. (Int. Tr. at pp. 46-47). Further, in their discussion, Weingarten and Petitioner discussed the fact that troubling questions were raised by the execution of and backdating of the conveyance documents and the promissory notes, to reflect an execution date prior to the drug bust.
In this context, Weingarten's statement meant that, other than the confidential informant's allegations and the backdating of the conveyance documents and the promissory notes, the government did not at that time have any information showing a connection between Petitioner and the handling or disposition of the Drew Fairchild criminal case. Moreover, until October 30, 1984, when Mississippi Attorney General Ed Pittman and Baltar spoke to FBI Agent Kennedy, the government did not have any information showing such a connection. Thus, Weingarten's statement was truthful and not misleading.
Petitioner's reliance upon Cox v. Louisiana, 379 U.S. 559, 13 L. Ed. 2d 487, 85 S. Ct. 476 (1965), Raley v. Ohio, 360 U.S. 423, 3 L. Ed. 2d 1344, 79 S. Ct. 1257 (1959), and Johnson v. United States, 318 U.S. 189, 87 L. Ed. 704, 63 S. Ct. 549 (1943), is unavailing. In Cox, local officials misled Cox when they told him that he could legally demonstrate at a specific location. When he later demonstrated there, he was charged with a crime. 379 U.S. at 571. In Raley, the defendants were misled by the members of the Ohio legislative committee who erroneously told the defendants that they could validly assert their privilege against self-incrimination. 360 U.S. at 437-438. In Johnson, the trial court misled Johnson by granting him his claim of privilege against self-incrimination and then allowing the prosecutor to comment during closing argument on Johnson's claim of privilege. 318 U.S. at 196-197. Petitioner has not shown any misleading of him by the government either during the April interview or during his grand jury appearance. The Court concludes that this first argument is factually and legally without merit.
Concerning Petitioner's second argument (that Weingarten knew that Petitioner's answer to the question, "Did [Holmes] ever discuss the Drew Fairchild case with you?" would be, "No"), Weingarten did not commit prosecutorial misconduct by asking the question. Weingarten did not at that time have any information that Petitioner's answer would be perjurious. Further, Petitioner's "No" answer was material to the grand jury's investigation into the handling and disposition of the Drew Fairchild criminal case. Weingarten had a legitimate purpose for asking the question and there is no basis for concluding that Weingarten knowingly and intentionally asked the question in order to trap Petitioner into lying. Therefore, this second argument is factually without merit.
Petitioner's remaining arguments in support of his perjury trap claim are equally without merit. Weingarten's question was not "innocuous-seeming and ambiguous." (Pet. Memo. in Supp. of Mot. to Vac. at p. 45). Rather, the question pointedly sought to determine whether there was any contact between Petitioner and Holmes regarding the Drew Fairchild criminal case. It strains credulity to believe that Petitioner, an experienced federal judge, could find that Weingarten's question was innocuous and ambiguous, when that question is considered in the context of Weingarten's thorough questioning about his investments with Wiley Fairchild, (Nixon Gr.T. Tr. at pp. 5-44), and his knowledge of the Drew Fairchild criminal case. (Nixon Gr.J. Tr. at pp. 45-50). The juxtaposition of these lines of questioning refutes the argument that the question was "innocuous-seeming." Nor was the question ambiguous. United States v. Nixon, 816 F.2d at 1029. Petitioner's answer was not ambiguous and it was not truthful.
His answer to Weingarten's question was an absolute, unwaivering, "No." (Nixon Gr.J. Tr. at p. 48, ll. 2-3). Thus, there was no reason whatsoever for Weingarten to continue the line of questioning with follow-up questions.
Based upon the foregoing, the Court concludes that Petitioner has not made even a colorable showing that Weingarten's questioning constituted a perjury trap. Therefore, Petitioner's fourth ground for relief is without merit.
H. Ground 5: Challenges to the Prosecution.
1. Petitioner's Allegations.
As his fifth ground for relief, Petitioner alleges that, in violation of his due process rights, the government prosecutors "targeted [Petitioner] for investigation with improper motives and purposes and through improper means." Petitioner charges the government with prosecutorial misconduct during the investigatory and grand jury stages of the proceedings against him. He argues that the government intentionally obtained federal indictments charging Wiley Fairchild, Holmes, Stocks, and Lewis with baseless charges
in order to induce and coerce them into providing incriminating evidence against him. Petitioner also charges that the government wrongfully allowed Wiley Fairchild to testify before the grand jury on November 28, 1984, that he thought that one Preacher Shows had been able to obtain a reduction in his son's sentence by paying Holmes to intercede with Petitioner, despite the government's knowledge that Petitioner was not the federal judge who handled any aspect of the son's case. In addition, Petitioner argues that the government investigated his investments with Wiley Fairchild and prosecuted him on the gratuity and perjury charges, in order to retaliate against him for rendering the $ 6.1 million judgment in the Petit Bois Island condemnation proceedings.
2. Prosecutorial Misconduct.
Petitioner's overriding argument in this fifth ground for relief is that the government's methods and motive during its investigation of him constituted pretrial prosecutorial misconduct which requires that his convictions be overturned. In determining his entitlement to relief on this basis, this Court must employ the harmless error standard to determine whether Petitioner suffered any prejudice as a result of any pretrial prosecutorial misconduct. United States v. Mechanik, 475 U.S. 66, 70-73, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986); United States v. Hasting, 461 U.S. 499, 505-509, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983); see Bank of Nova Scotia v. United States, 487 U.S. 250, 101 L. Ed. 2d 228, 108 S. Ct. 2369, 2374 (1988). This Court must determine whether, on the whole record, any proven pretrial prosecutorial misconduct, measured by the jury's guilty verdicts, was harmless beyond a reasonable doubt. Mechanik, 475 U.S. at 70; Hasting, 461 U.S. at 510; see Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).
Petitioner has not shown that the charges against Fairchild and Holmes were baseless. Rather, the record before this Court demonstrates that the charges against Fairchild and Holmes were factually supported.
Although Petitioner charges that the government brought baseless charges against Fairchild and Holmes in order to induce them to provide damaging and incriminating evidence against him, he does not allege in support of this ground that their evidence against him was false. Without such an allegation, any proven pretrial prosecutorial misconduct directed against these men is harmless error beyond a reasonable doubt.
To the extent Petitioner does contend elsewhere that Fairchild and Holmes provided false evidence against him, he has not shown that they testified falsely at his trial on any historical facts material to Counts III and IV. The Court rejects Wiley Fairchild's testimony at the § 2255 evidentiary hearing that his trial testimony on material historical facts was false. Finally, even if Petitioner had proven the falsity of Fairchild's and Holmes' trial testimony, there is no evidence whatsoever that the government knew it was false.
The Court concludes that the government did not commit prosecutorial misconduct by allowing Wiley Fairchild to testify before the grand jury about the Shows matter. Although Preacher Shows did not obtain a reduction in his son's sentence by paying Holmes to intercede with Petitioner, Wiley Fairchild's belief that this event had occurred was relevant to the grand jury's investigation. It was for this reason that he believed that he "could 'deal' with Judge Nixon." (Wiley Fairchild, Nov. 28, 1984, Gr.J. Tr. at p. 24, ll. 18-19).
Moreover, during the government's direct examination of Wiley Fairchild at Petitioner's trial, the government did not elicit any testimony about the Shows matter. The Shows matter had no bearing whatsoever on whether Petitioner perjured himself in his testimony before the grand jury. Thus, any prosecutorial misconduct during the grand jury proceeding regarding the Shows matter, which the Court does not find, would have constituted harmless error beyond a reasonable doubt.
Petitioner charges that the government investigated and prosecuted him in order to retaliate against him for the Petit Bois Island condemnation judgment. Based upon the sequence of events in this case as set forth in Section B above, the Court concludes that Petitioner has not shown such a retaliatory purpose. Rather, Jarvis' allegations and the fact that the royalty conveyance documents were backdated motivated the government to investigate Petitioner. That information, supplemented by the information provided by Wiley Fairchild, Holmes and Ingram motivated the government to prosecute him. Any retaliatory purpose, which the Court does not find, would constitute harmless error beyond a reasonable doubt, because it would have no bearing upon whether Petitioner committed perjury.
For the foregoing reasons, the Court concludes that Petitioner has not established that any prosecutorial misconduct occurred, requiring that his conviction be overturned.
3. Prosecutorial Vindictiveness.
Petitioner cites cases where convictions have been overturned on due process grounds for prosecutorial vindictiveness. However, the prosecutorial vindictiveness theory applies only when the prosecutor acts adversely to the criminal defendant in a pending criminal proceeding in direct response to, and to penalize or retaliate against the defendant for, the defendant's prior exercise and invocation of constitutional or statutory rights during the course of the criminal proceeding. Thigpen v. Roberts, 468 U.S. 27, 82 L. Ed. 2d 23, 104 S. Ct. 2916 (1984); United States v. Goodwin, 457 U.S. 368, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978); Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974); Byrd v. McKaskle, 733 F.2d 1133 (5th Cir. 1984); United States v. Krezdorn, 718 F.2d 1360 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 79 L. Ed. 2d 742, 104 S. Ct. 1416 (1984). Petitioner was not a criminal defendant during any of the supposed acts of prosecutorial misconduct alleged in his motion to vacate. He has not identified any constitutional or statutory right which he exercised or invoked as a criminal defendant after his indictment (either before or after his trial) to which the prosecutor responded vindictively. He has not identified any prosecutorial action which has a vindictive response to any prior action of his as a criminal defendant. In sum, the prosecutorial vindictiveness theory is factually unsupported.
4. Bad Faith Prosecution.
Petitioner cites cases where federal courts have enjoined bad faith state criminal prosecutions under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).
Petitioner contends that his prosecution was retaliatory and brought in bad faith within the meaning of the Younger-exception cases, because the government prosecuted him in order to retaliate for the Petit Bois Island condemnation judgment. He argues that, if federal courts can enjoin state criminal retaliatory bad faith prosecutions, then federal courts can enjoin similar federal criminal prosecutions and can overturn federal criminal convictions obtained pursuant to retaliatory bad faith prosecutions.
This Court entertains doubts that federal courts can overturn federal criminal convictions based upon challenges to the prosecutorial decisions, unless the defendant proves a selective prosecution equal protection violation. See Wayte v. United States, 470 U.S. 598, 607-610, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985). Nevertheless, the Court will assume that the Fifth Circuit would conclude that federal courts can overturn federal criminal convictions obtained pursuant to retaliatory bad faith prosecutions. See Smith v. Meese, Attorney General of the United States, 821 F.2d 1484, 1490-1493 (11th Cir. 1987); United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978). However, this Court finds below that Petitioner fails to establish that his prosecution was retaliatory or brought in bad faith.
The Fifth Circuit decision of Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979), sets forth a three-step procedure for determining whether a plaintiff has established that a state criminal prosecution of him is retaliatory and brought in bad faith:
The Court should consider whether the plaintiff [has] shown, first, that the conduct allegedly retaliated against or sought to be deterred was constitutionally protected, and, second, that the State's bringing of the criminal prosecution was motivated at least in part by a purpose to retaliate for or to deter that conduct. If the Court concludes that the plaintiff [has] successfully discharged [his] burden of proof on both of these issues, it should then consider a third; whether the State has shown by a preponderance of the evidence that it would have reached the same decision as to whether to prosecute even had the impermissible purpose not been considered.
593 F.2d at 1387 (footnote omitted). Accord Smith v. Hightower, 693 F.2d 359, 369 (5th Cir. 1982); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.), cert. denied, 452 U.S. 916, 69 L. Ed. 2d 420, 101 S. Ct. 3051 (1981). Under the Wilson three-step procedure, the plaintiff must show that a constitutionally impermissible retaliatory purpose was a motivating factor in the state's decision to prosecute. Wilson, 593 F.2d at 1387. The Court should examine the strength of the government's evidence and the seriousness of the criminal charges. Smith v. Hightower, 693 F.2d at 369; Wilson, 593 F.2d at 1387 n. 22. Strong evidence of criminal violations or evidence of serious criminal violations supports an inference that the prosecutor, in deciding to prosecute, was not influenced by a retaliatory bad faith purpose and instead was fulfilling his duty to bring evidence of criminal activity to the grand jury's attention. Smith v. Hightower, 693 F.2d at 369 & n. 25.
Petitioner argues that his conduct in rendering the Petit Bois Island condemnation judgment against the government caused his prosecution. The Court believes that rendering the judgment was conduct constitutionally protected by Article III and by the First Amendment, and concludes that Petitioner satisfies the first Wilson step.
However, Petitioner fails to satisfy the second Wilson step. He has not shown that the government, in deciding to prosecute him on the gratuity and perjury charges, was motivated in any part by a purpose to retaliate for the Petit Bois Island condemnation judgment. Rather, the government properly investigated his affairs because it had received substantial information that his investments with Wiley Fairchild were corruptly connected to Drew Fairchild's drug case. The government's investigation of Petitioner's affairs uncovered strong evidence that he had committed serious violations of the law and breaches of the public trust by accepting an illegal gratuity and by committing perjury in his grand jury testimony. The government's decision to prosecute Petitioner on the gratuity and perjury charges was motivated and supported by the evidence that had been uncovered during that investigation.
For the foregoing reasons, Petitioner fails to establish that his prosecution was retaliatory or brought in bad faith.
5. Selective Prosecution.
Petitioner contends that the government engaged in impermissible selective prosecution when it prosecuted him in order to retaliate against him for the Petit Bois Island condemnation judgment. In order to prevail on his claim of selective prosecution, he must establish two requirements, which the Fifth Circuit characterizes as a "heavy burden." United States v. Jennings, 724 F.2d 436, 445 (5th Cir.), cert. denied, 467 U.S. 1227, 81 L. Ed. 2d 877, 104 S. Ct. 2682 (1984).
First, [defendant] must make a prima facie showing that he has been singled out for prosecution although others similarly situated who have committed the same acts have not been prosecuted. Second, having made the first showing, he must then demonstrate that the government's selective prosecution of him has been constitutionally invidious. The showing of invidiousness is made if [defendant] demonstrates that the government's selective prosecution is actuated by constitutionally impermissible motives on its part, such as racial or religious discrimination.