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NIXON v. UNITED STATES

December 19, 1988

WALTER L. NIXON, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: NANGLE

 JOHN F. NANGLE, UNITED STATES DISTRICT JUDGE

 The motion of Petitioner Walter L. Nixon, Jr., to vacate his conviction and sentence, pursuant to 28 U.S.C. § 2255, is before the Court for a decision on the merits after an evidentiary hearing.

 A. Introduction.

 1. The Grand Jury Indictment.

 On August 29, 1985, a special federal grand jury for the Southern District of Mississippi in Hattiesburg returned a four-count indictment against Petitioner who was then the Chief Judge of that Court. The Hattiesburg grand jury charged Petitioner with four offenses. Count I alleged the acceptance of an illegal gratuity, in violation of 18 U.S.C. § 201(g), based upon Petitioner's receipt of certain mineral royalty investments from Wiley Fairchild, a Hattiesburg businessman. Counts II, III and IV alleged perjury before the same grand jury, in violation of 18 U.S.C. § 1623. The trial jury returned verdicts of not guilty on Counts I and II, but guilty on Counts III and IV. The late Honorable James H. Meredith, the United States District Judge who tried the case, sentenced Petitioner to concurrent terms of five years imprisonment on each of the two perjury counts. The conviction and sentence were affirmed on direct appeal. 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).

 2. Section 2255 Grounds for Relief.

 Petitioner thereafter filed the instant motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. He raises five grounds for post-conviction relief:

 
(1) the government's failure to disclose favorable materials before trial;
 
(2) the government's knowing use of false testimony;
 
(3) the government's failure to disclose statements of witnesses as required by the Jencks Act;
 
(4) the government's creation of a perjury trap during the grand jury proceedings; and
 
(5) the government's prosecutorial abuse and misconduct.

 On August 5, 1988, Petitioner moved to amend his second ground for relief to add an additional specification of the government's knowing use of false testimony. On August 18, 1988, the Court denied this motion to amend. Thereafter, Petitioner moved for reconsideration, which the Court took under advisement. On August 29 and 30, 1988, an evidentiary hearing was held in Jackson, Mississippi, on the first three grounds. *fn1"

 3. Section 2255 Hearing Evidence.

 At the § 2255 evidentiary hearing, John Baltar, Wiley Fairchild, Barry Hess, and Michael Fawer testified for Petitioner. Jan Little, Reid Weingarten, H. Marshall Jarrett, Weldon Kennedy, Kenneth White-Spunner, Jr., and Donald Lawless testified for the United States. The parties submitted extensive pre- and post-hearing briefs and many documents including grand jury transcripts, the trial transcript, the post-trial motion hearing transcript and the House Sub-Committee impeachment hearing transcript.

 4. Section 2255 Legal Standards.

 The Court has examined Petitioner's five grounds for post-conviction relief in the context of the narrow scope of collateral attack permitted by § 2255. A § 2255 proceeding is not a retrial of the case. Petitioner is entitled to post-conviction relief pursuant to § 2255 only if he establishes a jurisdictional or constitutional error, or an error of law which is so fundamental that it inherently results in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure. United States v. Addonizio, 442 U.S. 178, 185-186, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979); United States v. Timmreck, 441 U.S. 780, 784, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979); Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962). On his claims for relief, Petitioner has the burden of sustaining his factual contentions by a preponderance of the evidence. United States v. Bondurant, 689 F.2d 1246, 1251 (5th Cir. 1982); Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980).

 B. Factual Background.

 At the outset, it should be noted that this is not a typical § 2255 proceeding. Petitioner has made allegations which relate to the government's motives in investigating him, impaneling a special grand jury, propounding certain questions to him before the grand jury and eventually prosecuting him.

 The evidence relating to the two perjury counts in issue is quite limited. However, in order to fully consider Petitioner's allegations, this Court must examine a complex factual background beyond the actual scope of the trial. Three separate sets of events - the Petit Bois Island condemnation proceedings, the Hattiesburg Airport drug bust followed by the Drew Fairchild criminal prosecution, and Petitioner's mineral royalty investments with Wiley Fairchild - combine to form this background. The following is an organized chronology of these events.

 1) In 1979, Petitioner contacted Hattiesburg attorney Carroll Ingram and asked Ingram to investigate the possibility of Petitioner making an oil investment with Ingram's client, Wiley Fairchild, a Hattiesburg businessman and the president of Fairchild Construction Co.

 2) On August 4, 1980, federal and local Forrest County, Mississippi, law enforcement agents seized an airplane carrying marijuana at the Hattiesburg Municipal Airport. *fn2" Drew Fairchild, the son of Wiley Fairchild, was one of the managers of the airport and was an active participant in the marijuana smuggling conspiracy. On August 19, 1980, a federal grand jury returned indictments against three of the marijuana smugglers, but not against Drew Fairchild. Drew and his attorney, Bill Porter, approached Forrest County District Attorney Paul H. "Bud" Holmes to discuss Drew's situation. Holmes referred Drew and Porter to George Phillips, the U.S. Attorney prosecuting the three other marijuana smugglers. On November 19, 1980, Drew and Phillips entered into a written "Memorandum of Understanding" wherein they agreed that Drew would cooperate with the federal government in its prosecution of the other marijuana smugglers, would plead guilty to felony charges, would pay a $ 15,000 fine, and would be sentenced to five years probation.

 3) In early 1981, Wiley Fairchild's extensive investment portfolio included three certain mineral royalty interests. On February 25, 1981, at Wiley's direction, Robert L. "Skip" Jarvis, his employee at Fairchild Construction Co., prepared a set of royalty conveyance documents for these three mineral royalty interests. In early March 1981, again at Wiley's direction, Jarvis prepared a second set of documents conveying the same three mineral royalty interests to Petitioner. Wiley executed the second set of royalty conveyance documents in early March 1981. However, the documents were backdated to reflect an execution date of February 25, 1980. Upon receipt of the executed documents, Ingram prepared three promissory notes totaling $ 9,500, reflecting a debt from Petitioner to Wiley Fairchild. Petitioner thereafter executed the promissory notes in early March 1981, although they also were backdated to reflect an execution date of February 25, 1980.

 4) In March 1981, attorney Porter sued Drew Fairchild to collect a $ 10,000 legal fee for representing Drew in the plea negotiations with federal prosecutor Phillips. In July 1981, Wiley Fairchild paid Porter $ 2,669.19 of the fee. Porter was dissatisfied with this partial payment and complained to Holmes about his inability to collect his full legal fee from Drew. In order to determine what he could do to help Porter collect his full legal fee from Drew, Holmes called U.S. Attorney Phillips to discuss the status of the Drew Fairchild criminal case. By this time, Phillips had concluded that Drew had breached their plea agreement by not cooperating with the federal law enforcement officials. Thus, Phillips had already decided to prosecute Drew federally for his role in the marijuana smuggling conspiracy. Holmes offered to take over the prosecution of Drew and to indict Drew locally in Forrest County Circuit Court. Phillips agreed. On August 26, 1981, the Forrest County grand jury returned an indictment against Drew Fairchild and Robert Watkins, the pilot of the marijuana smuggling airplane. On September 3, 1981, Drew was arraigned in Forrest County Circuit Court, represented by Porter. Porter demanded the remainder of his fee. On September 3, 1981, Wiley Fairchild paid Porter $ 7,500.

 5) In 1980, the United States government instituted condemnation proceedings in the United States District Court for the Southern District of Mississippi to add Petit Bois Island to the Gulf Island National Seashore. From August 23, through early September 1981, Petitioner presided over an eight-day trial to determine the value of Petit Bois Island. The United States valued Petit Bois Island at $ 330,000. John Stocks and Eugene Lewis of Tallahassee, Florida, the principal owners of Petit Bois Island and representing all the landowners, valued Petit Bois Island at $ 6.6 million.

 6) On January 12, 1982, Drew Fairchild pled guilty in Forrest County Circuit Court to the marijuana smuggling charge. In a plea agreement with Holmes, Drew agreed to cooperate with Forrest County law enforcement officials in the prosecution of Watkins. Holmes agreed that Drew would receive a sentence of five years probation and a $ 5,000 fine. Drew Fairchild's sentencing was scheduled for March 19, 1982, but was continued to accommodate Drew's medical condition.

 7) On March 29, 1982, Petitioner rendered a $ 6.1 million judgment in favor of the landowners and against the United States in the Petit Bois Island condemnation proceedings. The United States filed a motion for a new trial based upon newly discovered evidence, which was denied by Petitioner.

 8) In May 1982, Robert Watkins became a fugitive. As a result, and because Holmes wanted to ensure Drew Fairchild's cooperation in Watkins' prosecution, Drew's criminal sentencing was continued several times during the summer of 1982. In October 1982, Watkins was apprehended in Florida and Mississippi began extradition proceedings. On December 23, 1982, on Holmes' motion, Forrest County Circuit Court Judge Jack B. Weldy ordered Drew Fairchild's criminal case "passed to the files," that is, placed in inactive status but not dismissed. This step was taken to toll a Mississippi sentencing deadline so that Drew's sentencing could be delayed until after Watkins' trial. The facts suggest that passing Drew's case may also have been done to impress Wiley Fairchild. In January 1983, Judge Richard W. McKenzie replaced Judge Weldy on the Drew Fairchild criminal case. Also in January 1983, Watkins was extradited to Mississippi. As a result, on January 26, 1983, one month after it was "passed to the files," Drew's criminal case was reinstated to the active docket. However, there was no activity on Drew's case during the remainder of 1983.

 9) In March 1983, the FBI in Tallahassee, Florida, received information indicating that Stocks and Lewis had fraudulently inflated the value of Petit Bois Island during the condemnation proceedings before Petitioner. This information did not implicate Petitioner in any misconduct in the condemnation proceedings. A federal grand jury in the Northern District of Florida began investigating the charges of fraud by Stocks and Lewis. The United States filed a motion for post-judgment relief in the Petit Bois Island condemnation proceedings. On July 21, 1983, Petitioner denied the United States' motion because it was not timely filed. The United States then moved for an in camera hearing in which it would demonstrate that Stocks' and Lewis' evidence at the condemnation trial had involved a fraud on the court. The United States refused to disclose this evidence to Stocks and Lewis. After two hearings in September 1983, Petitioner denied the United States' motion and refused to review the evidence in camera.

 10) On November 3, 10, and 17, 1983, Robert Jarvis, who had left Wiley Fairchild's employ in May 1983, placed anonymous telephone calls to the FBI office in Pascagoula, Mississippi. In these telephone calls, Jarvis alleged that Wiley Fairchild had conveyed certain mineral royalty interests to Petitioner in order to obtain Petitioner's aid in the handling of Drew's criminal case. Jarvis told the FBI that the royalty conveyance documents had been executed after the Hattiesburg Airport drug bust, but had been backdated to reflect execution dates prior to the drug bust. Jarvis alleged that this backdating had occurred so that it would appear that Petitioner had not obtained the mineral royalty interests in connection with Drew's criminal problems. Jarvis also alleged that the Petitioner's promissory notes were not made as part of the transaction, but rather were made after the fact.

 11) In early November 1983, attorney Porter was killed in an airplane crash. One morning in late November or early December 1983, at approximately 6:00 a.m., Holmes telephoned Judge McKenzie. Within an hour, Holmes picked up McKenzie and drove him to Wiley Fairchild's office. There, Holmes told Judge McKenzie and Wiley Fairchild that his term as Forrest County District Attorney was due to expire in January 1984, that he was going to be replaced by Glen L. White, and that he wanted to clear up some cases before he left office. Holmes and Wiley generally discussed Drew's plea agreement and Holmes asked Wiley whether Drew wanted to go through with his sentencing. Wiley told Holmes to put Drew's criminal case on a back burner and to let it simmer. In January 1984, Glen L. White replaced Holmes as Forrest County District Attorney. There was no activity in Drew's criminal case during 1984, though the case was active and had not been dismissed.

 12) The federal fraud investigation of Stocks and Lewis uncovered information indicating that Petitioner, Stocks, and Lewis had been at the same social gathering some time prior to the Petit Bois Island condemnation trial. In January 1984, the U.S. Attorneys for the Northern District of Florida and the Southern District of Mississippi determined that Petitioner could be a witness in the fraud investigation and that, if a fraud had been committed on the court, the fraud offense would have occurred in Mississippi where the court was located. In January 1984, the U.S. Attorney for the Northern District of Florida discussed the handling of the Petit Bois Island fraud investigation with his superiors in the Criminal Division of the Justice Department in Washington, D.C. The Public Integrity Section of the Criminal Division took over the Petit Bois Island fraud investigation in February, 1984, and transferred it to the Southern District of Mississippi.

 13) In March 1984, Jarvis came forward and identified himself to the FBI as the anonymous telephone informant from November 1983. Jarvis agreed to cooperate with the United States and, on April 18, 1984, Jarvis consensually recorded a meeting with Wiley Fairchild.

 14) On April 19, 1984, attorney Reid Weingarten of the Public Integrity Section interviewed Petitioner in his chambers in Biloxi, Mississippi. In response to one of Weingarten's questions, Petitioner stated that Holmes had not ever discussed the Drew Fairchild criminal case with him. (April Interview Transcript [hereinafter "Int. Tr."] at p. 28).

 15) In May 1984, the United States requested the impaneling of a special federal grand jury to investigate whether there was any impropriety in Petitioner obtaining the mineral royalty interests from Wiley Fairchild and whether there was any connection between those investments and the handling of the Drew Fairchild criminal case. A special federal grand jury was impaneled in Hattiesburg on July 18, 1984.

 16) Petitioner voluntarily appeared and testified before the special federal grand jury in Hattiesburg on July 18, 1984. Midway through the grand jury appearance, Weingarten asked:

 Did [Holmes] ever discuss the Drew Fairchild case with you?

 (Nixon Gr.J. Tr. at p. 47, l. 25, through p. 48, l. 1). Petitioner answered:

 
No, not to the best of my recollection. I think I would recall if he had.

 (Nixon Gr.J. Tr. at p. 48, ll. 2-3). This testimony was the basis for Count III of the indictment against Petitioner. Toward the end of Petitioner's grand jury appearance, Weingarten stated:

 All right. Judge, do you have anything you want to add?

 (Nixon Gr.J. Tr. at p. 75, ll. 14-15). Petitioner proceeded to make a lengthy narrative statement. (Nixon Gr.J. Tr. at p. 75, l. 17, through p. 79, l. 16). Midway through this narrative statement, Petitioner stated:

 
Now, I have had nothing whatsoever officially or unofficially to do with the Drew Fairchild criminal case in federal court or state court . . . I have 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 [to] influence anybody with respect to this case.

 (Nixon Gr.J. Tr. at p. 76, ll. 10-13 & p. 76, 1. 23 through p. 77, l.1). This testimony was the basis for Count IV. Count II (the perjury count for which the jury returned a not guilty verdict) was based upon Petitioner's testimony that Wiley Fairchild had not ever discussed the Drew Fairchild criminal case with him, and had not ever asked him to do anything about that criminal case. (Nixon Gr.J. Tr. at p. 50, ll. 9-23).

 17) Wiley Fairchild appeared and testified before the federal grand jury on July 18 and 19, 1984. Holmes appeared and testified before the grand jury in July and September, 1984. *fn3" On September 6, 1984, the grand jury indicted Wiley Fairchild on one count of paying an illegal gratuity to Petitioner in the form of the mineral royalty interests and on one count of perjury based upon Fairchild's testimony before the grand jury.

 18) On October 30, 1984, Mississippi Attorney General Ed Pittman appeared at the Jackson, Mississippi, FBI offices and met with Special Agent in Charge Weldon Kennedy. Pittman advised Kennedy that John Baltar, Wiley Fairchild's assistant, had contacted Pittman and had asked Pittman to discuss certain information with Kennedy. According to Pittman, Baltar:

 
indicated that Mr. [Wiley] FAIRCHILD has other significant information concerning the activities of Judge NIXON and others which he is willing to provide to the FBI if the Government will negotiate with him concerning the case on which he has been indicted. For example, BALTAR mentioned that on one occasion Mr. [Wiley] FAIRCHILD had a telephone call from BUD HOLMES who was then District Attorney in Forrest County, M[ississippi]. HOLMES put extreme pressure on Mr. [Wiley] FAIRCHILD to go through with a transfer of royalties in some oil and gas wells to Judge NIXON. HOLMES indicated to [Wiley] FAIRCHILD that this would be important if the case concerning DREW FAIRCHILD were to be disposed of with the least amount of problems for DREW FAIRCHILD. Judge NIXON was also on an extension during this phone call, and HOLMES further indicated that it really didn't matter whether the case on DREW FAIRCHILD were handled Federally or locally in Hattiesburg. On the one hand if the case were Federally handled, Judge NIXON would be able to take care of the matter, and if it were handled locally, BUD HOLMES would be able to handle the matter. HOLMES further indicated that after all he did what Judge NIXON told him to do.

 (Gov't. Exh. S). Agent Kennedy relayed the above information to attorney Reid Weingarten. Weingarten directed Kennedy to tell Pittman to tell Baltar that Baltar should establish direct contact with Kennedy.

 19) Later, on October 30, 1984, Baltar telephoned Agent Kennedy and stated that Wiley Fairchild wanted to cooperate with the government and that he was seeking immunity in exchange for that cooperation. Baltar indicated that Fairchild had information concerning:

 
a telephone call to WILEY FAIRCHILD from District Attorney BUD HOLMES with United States District Judge NIXON also on the line. This call had something to do with the handling of the prosecution of WILEY FAIRCHILD's son, DREW FAIRCHILD. * * *
 
[Baltar] also reiterated that from the very outset of this case, Mr. [Wiley] FAIRCHILD was under extreme pressure by BUD HOLMES and others to transfer royalties to Judge NIXON. Although FAIRCHILD did not realize by making such payments he was doing anything wrong, he felt that the payments were being extorted from him due to the fact that his son, DREW FAIRCHILD, was subject to possible prosecution by the Federal Government as well as by the State of Mississippi.

 (Gov't. Exh. T).

 20) On November 1, 1984, in the FBI office in Jackson, Wiley Fairchild made a plea bargain proffer of evidence to the United States. The United States was represented by Reid Weingarten, H. Marshall Jarrett (Weingarten's superior in the Public Integrity Section) and Agent Kennedy. Wiley Fairchild was represented by his attorney, Wallace Gunn, and was accompanied by Baltar. In his proffer, Wiley stated that Carroll Ingram had asked him to put Petitioner in a profitable investment. Fairchild said that he then did so out of fear for his son's criminal liability. Thereafter, in response to perceived blackmail threats by Bob Royals, Drew's partner at the Hattiesburg Airport, and by attorney Porter about Drew's case, Wiley told Ingram to bring Petitioner to his office. Fairchild stated that one afternoon thereafter Ingram did so. Wiley told Petitioner about his blackmail concerns. Wiley stated that later that evening Petitioner telephoned him and said, "Wiley . . . the man that we talked about this evening, I am over at his house. . . . I've talked to him and things are going to be all right." Petitioner gave the telephone to Holmes who told Wiley, "Wiley, when this man asks me to do something, . . . I don't ask no questions, I just do it." (Pet. Exh. No. 12 at pp. 6-9).

 21) After the proffer, Wiley Fairchild and the United States reached a plea agreement which provided: Fairchild would plead guilty to the gratuity charge; the United States would dismiss the perjury charge; and the United States would make Fairchild's cooperation known to the sentencing judge. On November 26, 1984, as agreed, Wiley Fairchild pled guilty to the gratuity charge. On November 28, 1984, Wiley testified for a second time before the Hattiesburg federal grand jury. The following is a brief summary of Wiley Fairchild's testimony during his second grand jury appearance:

 
He had not been completely truthful or honest during his first grand jury appearance. After the Hattiesburg Airport drug bust, Ingram approached him about putting Judge Nixon in a good deal. Wiley Fairchild agreed to do so. Ingram asked Wiley to backdate the royalty conveyance documents. The promissory notes executed by Nixon were discussed and created only after the mineral royalty interests had been conveyed to Nixon. The $ 9500 price for the three investments was about one-third of their market value at the time of the transaction. After the deal was consummated, Ingram brought Nixon to Fairchild's office for a social visit. Nixon said to Fairchild: "If I can ever help you, I will. If I can't, I'll just tell you I can't." Sometime later, Royals made a blackmail demand to Fairchild on behalf of Porter. Because Wiley thought that Nixon owed him a favor for putting him in the three investments and because Wiley thought he could "deal" with Nixon, Wiley called Ingram and told him that he wanted to speak to Nixon. One afternoon soon thereafter, Ingram brought Nixon to Fairchild's office. Fairchild told Nixon that he thought he was being blackmailed by Porter, Royals, and Holmes regarding Drew's criminal case. Later that evening, Nixon telephoned Fairchild and (referring to Holmes) said: "You know the man that we was talking about this evening . . . I'm out at his house. . . . Well, I talked to him and he said that everything is all right." Nixon then said: "He wants to talk to you." Holmes got on the telephone and said: "Wiley, when this man asks me to do something, I do it. I don't ask no questions." Sometime later, Drew's criminal case was "passed to the files."

 (Wiley Fairchild, Nov. 28, 1984, Gr.J. Tr. at pp. 6-21, 24 & 29).

 23) Drew Fairchild's sentencing on his guilty plea in Forrest County Circuit Court was set for March 8, 1985. By letter dated March 5, 1985, Weingarten advised Glen L. White, the Forrest County District Attorney who replaced Holmes, that Drew Fairchild had cooperated in a federal grand jury investigation in Hattiesburg. (Pet. Exh. No. 4). Thereafter, White and Judge McKenzie announced that Drew Fairchild's plea agreement with Holmes would not be honored. On March 8, 1985, Drew withdrew his guilty plea. Shortly thereafter, Attorney Barry Hess, Drew's new attorney, determined that Drew was going to get an unfair and heavy sentence from Judge McKenzie. Hess telephoned Weingarten and asked Weingarten to indict Drew Fairchild federally. Hess proposed that Drew plead guilty and be sentenced in federal court. Hess anticipated using the federal plea and sentence as a bar to further proceedings in the state court.

 24) On March 22, 1985, Weingarten and Jan Little, his assistant, recommended to their superiors that the United States indict Drew Fairchild. Among the reasons cited by Weingarten and Little were their opinions that:

 
(a) Drew Fairchild was being punished by White and McKenzie for his cooperation with the United States in the Hattiesburg grand jury investigation of Royals, Holmes, and Petitioner;
 
(b) White and McKenzie were friendly with and controlled by Holmes, making it unlikely that Drew would receive a fair state trial or sentence;
 
(c) for Drew to receive justice, he needed to be tried and sentenced in the impartial federal forum;
 
(d) the United States needed the cooperation of Drew and Wiley in its investigations and prosecutions of Royals, Holmes, and Petitioner;
 
(e) failure to indict Drew federally could jeopardize those investigations and prosecutions.

 (Pet. Exh. No. 5 at pp. 2-3). The Justice Department approved the federal prosecution of Drew Fairchild. On March 29, 1985, a federal grand jury indicted Drew for his role in the marijuana smuggling conspiracy. On that same day, Drew pled guilty to that federal indictment.

 25) Also on March 29, 1985, the Hattiesburg grand jury indicted Holmes for obstruction of justice because Holmes had concealed from the grand jury the fact of the Holmes-Petitioner-Wiley Fairchild telephone call from Holmes' farm, and for four counts of perjury. In June 1985, Holmes and the United States entered into a plea agreement: Holmes agreed to plead guilty to a one-count information charging him with criminal contempt for concealing the telephone call; Holmes agreed to cooperate with the government; and the government agreed to dismiss the five charges contained in the indictment. Following his guilty plea, Holmes testified before the grand jury for a fourth time on June 28, 1985.

 26) On July 11, 1985, a specially designated United States District Judge sentenced Drew Fairchild on the federal indictment to six months imprisonment to be followed by two and one-half years probation.

 27) On August 29, 1985, the Hattiesburg grand jury returned its four-count indictment against Petitioner described in Section a above.

 28) On September 18, 1985, a specially designated United States District Judge sentenced Wiley Fairchild, then age 73, on the gratuity charge to two years imprisonment with twenty-two months of it suspended. On December 11, 1985, the same District Judge sentenced Holmes on the one-count information to one year imprisonment plus a $ 10,000 fine. *fn4"

 30) In June 1986, after a jury trial in the United States District Court for the Northern District of Alabama, Stocks and Lewis were acquitted of the perjury and obstruction of justice charges which had been brought against them in October 1985.

 C. Trial Evidence Relating to Counts III and IV.

 On the direct appeal of Petitioner's conviction, the Court of Appeals stated, "It is undisputed that on one occasion, the exact date being unclear, [Petitioner] visited Wiley Fairchild in Fairchild's office." United States v. Nixon, 816 F.2d at 1025-1026. At Petitioner's trial, Wiley Fairchild and Petitioner disputed the content of their conversation in Fairchild's office. It is undisputed that, following this conversation, Petitioner and Holmes "went to Holmes' farm." Id. at 1026. However, at trial, Holmes and Petitioner disputed in whose car(s) they traveled and the content of their conversations enroute to the farm and at the farm. Finally, it is undisputed that a telephone call was placed from Holmes' farm to Wiley Fairchild and that both Holmes and Petitioner spoke to Fairchild during the telephone call. Id. at 1027-1029. However, at trial, Wiley Fairchild, Holmes, and Petitioner disputed who placed the telephone call and the content of the conversation between Fairchild and Petitioner during the telephone call. Petitioner's convictions on Counts III and IV are based upon the precise content of the disputed conversations which occurred at Fairchild's office, at Holmes' farm, and on the telephone. (Hereinafter, this sequence of events and conversations is referred to as the "disputed conversations.")

 In all important respects, Wiley Fairchild, Holmes and Ingram testified at Petitioner's trial consistently with each other regarding the disputed conversations. (See Tr.Tr. at pp. 479-486, 517-519, 600-602, 614, 621, 639, 649-650, & 666 [Wiley Fairchild]; Tr.Tr. at pp. 736-740, 743-745, 749, 750, & 756-762 [Holmes]; and Tr.Tr. at pp. 1068-1070, 1074-1077, 1144, 1148, 1156, & 1168 [Ingram]). On the other hand, Petitioner's testimony in some instances confirmed and in other instances contradicted their version of what happened. (See Tr.Tr. at pp. 1512, 1513, 1515, 1524-1526, 1529-1545, 1559, 1560, 1572, 1574, 1597, 1598, 1670, 1672, 1677, & 1680 [Nixon]).

 The trial testimony of Wiley Fairchild, Holmes, Ingram, and Petitioner reveals the following:

 
(1) The testimony of Petitioner and Wiley Fairchild concur that:
 
(a) Petitioner made a social visit to Fairchild in his office in early spring 1981 at which time Petitioner thanked Fairchild for the mineral royalty interest investments and said to Wiley: "If I can ever help you, I will and if I can't, I'll just tell you I can't."
 
(b) Sometime thereafter, Petitioner visited Wiley in his office at which time Wiley told Petitioner that he believed that he was being blackmailed by Holmes about Drew's criminal case, and that another person equally as involved as Drew had not been criminally prosecuted.
 
(c) During the evening of the same day as the second office visit, Wiley received a telephone call during which both Petitioner and Holmes spoke to Wiley from Holmes' farm.
 
(2) Petitioner and Wiley Fairchild contradicted each other with respect to:
 
(a) whether the disputed conversations occurred before or after Drew's criminal case was "passed to the files;"
 
(b) whether Wiley (through Ingram) summoned Petitioner for the second office visit and how Petitioner got to Fairchild's office;
 
(c) whether Petitioner or Holmes placed the telephone call from the farm; and
 
(d) the content of the conversation between Wiley and Petitioner during this telephone call.
 
(3) Petitioner and Holmes testified in agreement that:
 
(a) They conversed and Petitioner told Holmes that Petitioner had talked to Wiley Fairchild earlier that day during which Wiley had mentioned Drew's criminal case to Petitioner.
 
(b) At Holmes' farm, Holmes served a "Royal Salute" scotch whiskey.
 
(c) After the drink, a telephone call was placed to Fairchild during which both Holmes and Petitioner spoke to Fairchild.
 
(4) Petitioner and Holmes contradicted each other with respect to:
 
(a) whether the disputed conversations occurred before or after Drew's criminal case was "passed to the files;"
  
(b) whether Petitioner went to Holmes' office before the two of them went to Holmes' farm;
  
(c) how they got to Holmes' farm;
  
(d) whether they had a conversation enroute to Holmes' farm;
  
(e) the content of their conversations either enroute to or at Holmes' farm; *fn5"
  
(f) who placed the telephone call to Fairchild from Holmes' farm;
  
(g) what Petitioner said to Fairchild during that telephone call; and
  
(h) whether Petitioner went with Holmes to a tavern after the visit to Holmes' farm.
  
(5) Wiley Fairchild and Holmes testified consistently:
  
(a) that the disputed conversations occurred before Drew's criminal case was "passed to the files;"
  
(b) that Petitioner placed the telephone call from Holmes' farm to Fairchild and spoke to Fairchild first; and
  
(c) regarding what Petitioner and Holmes each said to Fairchild during that telephone call.
  
Fairchild and Holmes did not contradict each other with respect to the disputed conversations.
  
(6) Ingram confirmed:
  
(a) Holmes' and Fairchild's dating of the disputed conversations; and
  
(b) Holmes' testimony regarding Holmes' and Ingram's conversations about the telephone call.

  D. Section 2255 Hearing Record and Credibility of Witnesses.

  At the evidentiary hearing, Wiley Fairchild attempted to recant portions of his trial testimony, of his second grand jury appearance testimony, and of his proffer of evidence to the United States, concerning relevant historical facts. Specifically, he attempted to recant his prior testimony that the disputed conversations occurred before Drew's criminal case was "passed to the files." Essentially, Wiley Fairchild testified during the § 2255 hearing that, with respect to the dating of the disputed conversations, he lied to the United States during his proffer in order to induce the United States to plea bargain with him and then perjured himself during his second grand jury appearance and at Petitioner's trial.

  More specifically, Fairchild testified before this Court that: (1) His proffer statement was the truth to the best of his knowledge. (E.H.Tr. at p. 239). (2) At the time of Petitioner's trial, he believed and testified that the disputed conversations occurred before Drew's criminal case was "passed to the files." (E.H.Tr. at pp. 222-223). (3) Yet, after his brother Rodney Fairchild refreshed his memory, he remembered that the disputed conversations occurred after Drew's criminal case was "passed to the files." (E.H.Tr. at pp. 201-201 & 222). (4) His testimony at Petitioner's trial to the contrary (i.e., that the disputed conversations occurred before Drew's criminal case was "passed to the files") was not true and he knew it was not true when he so testified. (E.H.Tr. at pp. 214 & 216).

  Wiley Fairchild also attempted to recant his trial and second grand jury appearance testimony regarding when Ingram approached him about putting Petitioner in an investment. At trial and during his second grand jury appearance, Fairchild testified that Ingram approached him after the drug bust. (Tr.Tr. at pp. 492-493; Wiley Fairchild, Nov. 28, 1984, Gr.J. Tr. at pp. 8-9). At the evidentiary hearing, Fairchild testified that Ingram approached him before the drug bust. (E.H.Tr. at pp. 195-196 & 216).

  Wiley Fairchild did not attempt to recant his trial and second grand jury appearance testimony regarding the content of his conversation with Petitioner during the office visit, who telephoned him that evening, the content of his conversation with Holmes and Petitioner during the telephone call, or any other of his testimony concerning the historical facts of this case.

  At the evidentiary hearing, Fairchild, Baltar, Hess, and representatives of the United States, including Weingarten, testified concerning interactions among themselves about Fairchild's proffer, statements to Fairchild and Baltar by Weingarten, and the conduct of Fairchild's pretrial witness preparation session. The testimony of Fairchild and Baltar on these matters directly and irreconcilably conflicted with the testimony of Hess, Weingarten, and the other representatives of the United States.

  Baltar testified about his participation in preparing Fairchild to testify at Petitioner's trial and during Fairchild's second grand jury appearance. Baltar testified that, among other things, he knowingly prepared Fairchild to testify to matters which he knew that Fairchild did not remember or did not remember clearly. Baltar justified his conduct in this regard by stating that he was doing what his boss, Fairchild, wanted him to do and told him to do. He further justified his conduct by reasoning that, because he was not present during any of the factual events which formed the basis for Fairchild's substantive testimony, he could not know which of Fairchild's substantive testimony was the truth and which was not.

  This Court finds Wiley Fairchild's testimony to be self-contradictory, puzzling and incredible! Whatever factors have combined to make him the rather pathetic figure he appeared to be on the witness stand is not for this Court to determine. Suffice it to say that, as ...


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