BACKGROUND
Appellant, Judge Walter L. Nixon, Jr. was convicted by a jury on two counts of perjury. His conviction and sentence were affirmed on direct appeal.
United States v. Nixon,
Acting on information supplied by an informant, the government convened a special grand jury for the purpose of determining whether the Petitioner (and others) acted improperly regarding Drew Fairchild’s drug case. Petitioner voluntarily appeared before that grand jury. He denied discussing the case with Prosecutor [Bud] Holmes and denied having anything to do with it or trying to influence anyone with respect to it. Subsequently, he was charged with certain violations of the law, including two counts of perjury with respect to these denials.
Nixon was charged with one count of receiving an illegal gratuity and three perjury counts. The jury acquitted Nixon on the gratuity charge and on one of the perjury counts. His conviction was based on the following grand jury testimony:
Count III
Q. Did [Bud Holmes] ever discuss the Drew Fairchild case with you?
A. (Nixon). No, not to the best of my recollection. I think I would recall if he had.
Count IV
(Nixon). 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.
One important witness, who testified twice before the grand jury, at Nixon’s trial and at the evidentiary hearing, was Wiley Fairchild, a Hattiesburg, Mississippi businessman. Wiley Fairchild had pleaded guilty to giving Nixon an illegal gratuity in return for Nixon’s helping Fairchild’s son Drew in connection with Drew’s drug case. Another witness critical to Nixon’s presentation in the § 2255 hearing was John Bal-tar, who had been an aide to Wiley Fair-child during Fairchild’s plea bargaining and the trial of Judge Nixon. The habeas court found neither of these witnesses credible.
On appeal, Nixon’s multiple claims for relief have been winnowed down to three. First, Nixon asserts that the government knowingly concealed from him information which could have been used to impeach Wiley Fairchild and in doing so violated
Brady v. Maryland,
Wiley Fairchild’s role in the prosecution should be briefly recapitulated to clarify the following discussion. Wiley Fairchild testified at Nixon’s trial as a government witness, explaining his relationship with the judge that led to the back-dated transfer of oil property interests about the time Drew Fairchild was arrested in a drug conspiracy. Wiley further testified that at some point during Drew’s state prosecution, Wiley became convinced that several
BRADY MATERIAL
Brady v. Maryland, supra,
established that the prosecution’s suppression of “evidence favorable to an accused upon [his] request violates due process where the evidence is material either to guilt or punishment.”
Brady,
The
Brady
rule is designed to prevent miscarriages of justice. Consequently, the discovery of a
Brady
violation does not automatically entitle a defendant to a new trial. Reversible error entitling the defendant to a new trial occurs only when the court determines that there is a reasonable probability that the trial result would have been different.
United States v. Bag-ley,
1. First, he argues that Wiley Fair-child’s plea bargain included an undisclosed promise from prosecutor Weingarten to do what he could to help Wiley’s son Drew with drug charges which were pending against him. 1 The district court, having reviewed the record, made a factual finding that no such promise had been made to Wiley Fairchild to procure a plea bargain. Nixon must demonstrate that the habeas court’s finding was clearly erroneous.
Nixon makes much of a statement by Weingarten at the evidentiary hearing that “someone hearing what I said to [Wiley’s lawyer] perhaps could have interpreted my words” as promising to help Drew Fair-child. (emphasis added). This statement, by itself, does little to contradict the finding of the district court that no promise was made. In the overall context of this testimony, Weingarten appears to have been referring to the March 1985 discussions leading up to Drew’s federal indictment. Those discussions occurred roughly four months after Wiley effected his plea bargain with the federal prosecutors.
The evidentiary hearing record supports the district court’s finding. Weingarten, government attorney Jan Little, and Barry Hess, Wiley’s former attorney, all testified that the prosecution’s plea bargain with Wiley did not include a promise to help Drew. John Baltar, an assistant to Wiley Fairchild, made contemporaneous notes of the substance of Wiley Fairchild’s “informal plea agreement” with the prosecution. Baltar’s notes were based on a conversa
In contrast, Nixon contends that testimony by Wiley Fairchild and Baltar avowing such a promise at the habeas hearing proves that the district court clearly erred. Baltar’s testimony on this point is contradicted by his contemporaneous notes. Furthermore, Baltar signed two conflicting affidavits on this point. In one affidavit, he stated that discussions with the prosecutors seeking leniency for Drew commenced in early 1985 — after Wiley’s plea bargain. The other, later-filed affidavit placed these discussions at the time of the plea bargain agreement. Wiley’s constantly vacillating testimony, as all parties agree, had to be treated skeptically by the fact finder, who in this case was the district judge. Moreover, Wiley himself characterized this “promise” to help Drew as simply an “impression” that he formed in his own mind. In short, having carefully reviewed the record, we find no basis to overturn this finding of fact.
2. Nixon also alleges that the prosecution concealed the fact that as part of Drew’s plea bargain with the federal government, Weingarten had promised not to make a sentencing recommendation for Drew. It is undisputed that Weingarten informed Hess, then acting as Drew’s attorney, that he (Weingarten) would not recommend a specific sentence for Drew if he were to plead guilty. Whether or not this statement constituted a promise or inducement which should have been disclosed under Brady, 2 this information fails the test of materiality for impeachment of Wiley at Nixon’s trial. As the district court found, Nixon failed to prove that Drew’s lawyer ever informed Wiley about this aspect of Drew’s plea bargain. Thus, such a promise would not impinge on Wiley’s credibility.
Even if Wiley had been informed of Weingarten’s decision not to recommend a sentence for Drew, this evidence was at best cumulative and at worst immaterial to impeaching Wiley’s credibility. Nixon’s defense counsel was informed well before trial of requests by Drew and Wiley Fair-child that the government prosecute Drew in federal court. Drew had been federally sentenced before Judge Nixon was tried. It thus borders on the incredible to suggest that the defense could have impeached Wiley any more effectively by knowing of Weingarten’s decision not to recommend a sentence for Drew than by knowing (a) that the federal government had intervened against Drew’s pending state charges and (b) the outcome of Drew’s sentencing. Such evidence, if it was material at all, was merely cumulative in its impeachment capability.
See United States v. McKenzie,
3. Nixon alleges that the decision to prosecute Drew Fairchild in the federal courts was part of an inducement to ensure Wiley’s cooperation as a prosecution witness and therefore constitutes
Brady
material. To make his argument, Nixon relies on a portion of a March 22, 1985 internal prosecution memorandum regarding Drew reflecting the prosecution’s awareness that removing Drew from state proceedings, whose impartiality had been seriously questioned, would naturally relieve Wiley of one source of anxiety. Both Drew’s attorney and the federal prosecutors had reason to believe that Drew’s state trial would be used as a vehicle for punishing Drew for cooperating with the federal investigations of Holmes, Royals, and Nixon. The internal memorandum lists four considerations in favor of prosecuting Drew federally: (1)
We do not believe that the withholding from Nixon of the March 22, 1985 internal prosecution memorandum regarding Drew’s federal prosecution constitutes
Brady
error. The government’s actions here were not veiled in secrecy. On January 7,1986, well before Nixon’s trial, Wein-garten sent Nixon’s counsel a letter explaining that Hess, acting as Drew’s attorney, had contacted the federal prosecutors asking that Drew be indicted federally, and that this was “one of several factors weighing into the decision to recommend an indictment.” Nixon’s counsel also possessed documents, including Fairchild’s grand jury testimony, indicating Wiley Fairchild’s concern about his son’s criminal case. Since Nixon knew about the request to prosecute Drew federally and the government’s decision to do so, and since Nixon knew or should have known about Wiley’s interest in Drew’s case, the prosecution was not required to provide the actual contents of the memorandum.
See United States v. Ramirez,
4. Nixon is also mistaken in claiming that Exhibit 20, a 1984 internal FBI teletype sent from the Jackson, Mississippi, office to FBI Headquarters, constitutes Brady material. The teletype contains two statements attributed to Wiley Fairchild which Nixon claims are favorable and material to his case: (1) that the phone call from Holmes’s farm to Wiley, in which Judge Nixon incriminatingly participated, occurred in December 1982, and (2) that Holmes rather than Nixon placed the call. Wiley’s formal proffer of evidence to the government, made almost contemporaneously with the teletypes, does not mention when the call was placed or who placed the call. The district court specifically rejected the evidentiary hearing testimony of Baltar and Wiley that material statements were made during the proffer which were not included in the proffer transcript. Where the court’s finding rests on credibility determinations, as it did here, we will not substitute our reading of the evidence for that of the district court.
In any event, the internal FBI teletype does not reflect the actual testimony given by Wiley at the proffer, because the author of the teletype, agent White-Spunner, was not present at the proffer. The teletype represents a third-hand attempt to characterize Wiley’s proffer testimony accurately. However, an internal FBI communication made by an agent not present at the event and used to keep the home office apprised of the progress of the case cannot substitute for the actual testimony given at the proffer and cannot be equated with an inconsistent statement made by a witness.
This conclusion is consistent with our recent decision in
United States v. Weintraub,
5. The district court found that Weingarten never promised Wiley Fairchild that it would help him obtain a pardon after Nixon’s trial. Again, we review this factual finding under the clearly erroneous standard. The district court was entitled to accept Weingarten’s testimony that he never promised to help Wiley obtain a pardon. Weingarten did explain the pardon process to someone in the Wiley Fairchild camp, although there is conflicting testimony as to whether or not such a conversation occurred before Nixon’s trial. Merely explaining the pardon procedure, however, does not constitute
Brady
evidence. The procedure for obtaining a pardon is published in the Code of Federal Regulations, 28 CFR 1.1,
et seq.,
and is available to any interested person.
See United States v. Burroughs,
The district court had ample justification for doubting the credibility of Baltar and Wiley on this issue. Baltar testified at the evidentiary hearing that Wiley never talked directly to Weingarten about a pardon, but that such conversations were held between Baltar and Weingarten. Baltar’s two affidavits conflict as to whether Baltar discussed the possibility of a pardon before or after Nixon’s trial. In contrast, Wiley testified that he discussed the possibility of a pardon with Weingarten in Baltar’s presence. Additionally, although Wiley initially testified that Weingarten promised to help with the pardon, on cross-examination Wiley testified that Weingarten had never made a specific promise to help; rather, Wiley had again merely formed such an impression in his mind. Such “impressions” are not
Brady
material.
See United States v. Bashes,
Recantation of Trial Testimony
Wiley Fairchild testified at the habeas hearing that his trial testimony was erroneous in regard to two matters: whether Carroll Ingram sought him out to put Judge Nixon in an oil and gas investment before or after Drew’s drug bust, and whether Nixon telephoned Wiley from Bud Holmes’s farm before or after Holmes passed Drew’s state case “to the files”, in an attempt to kill it. At trial, he swore that Ingram approached him after the drug bust and Judge Nixon called him before the case was passed to the files. At the habe-as hearing, he testified just the opposite. His only explanations for giving allegedly false testimony at trial were that (1) he feared, and therefore wanted to please, prosecutor Weingarten, in order to plea bargain effectively and (2) his brother Rodney refreshed his recollection after trial on the proper chronology.
Motions for new trial based on newly discovered evidence are generally disfavored by the courts and are viewed with caution.
United States v. Adi,
According to our general standards, a petitioner’s motion for new trial should be granted only if: (1) the new evidence was discovered after trial; (2) the failure to learn of the evidence was not due to petitioner’s lack of diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) a new trial would
probably
produce a new result.
U.S. v. Rodriguez,
The district court analyzed separately the items of allegedly false testimony given by Wiley Fairchild at trial. The court concluded that even if Wiley committed perjury in testifying that Ingram approached him on Judge Nixon’s behalf after Drew's drug bust, this testimony was not material to the perjury counts for which Nixon was convicted. The date of the approach bears significantly on whether Nixon accepted an illegal gratuity, a charge against which Judge Nixon prevailed. It has no relevance to whether Judge Nixon discussed Drew’s ease with Bud Holmes or attempted to influence any person regarding that case. Nixon’s brief does not address this reasoning, which we find thoroughly persuasive. Wiley’s flip-flop on this testimony could not have legitimately influenced a jury to acquit Judge Nixon of Counts III and IV.
As for Wiley’s vacilliation on the timing of Nixon’s telephone call, the district court rejected his attempted recantation and held that Nixon did not prove that Wiley’s trial testimony was false. For reasons thoroughly aired in its opinion, the district court simply did not believe that Wiley Fairchild had experienced a mental or moral sunrise sufficient to convince the court of his truthfulness at the habeas hearing as compared with Nixon’s trial or Fair-child’s second grand jury appearance.
Nixon responds to this conclusion with two arguments. He urges that Wiley’s recantation should be regarded as more trustworthy than the usual recantation because it went against his penal interest. He also argues, rather puzzlingly, that because Wiley was self-contradictory both at Nixon’s trial and at the habeas hearing, the habeas court had no basis for crediting either version of his testimony. We disagree with each of these assertions.
There is no doubt Wiley Fairchild risked indictment for perjury (again) by disavowing in the habeas hearing both his second grand jury and trial testimony. Nixon distinguishes the “disinterestedness” of Wiley’s belated “confession” from the lesser credibility of witnesses who might have been threatened or induced into recanting or of codefendants who, after being convicted themselves, have “no more to risk” by coming forward with new testimony.
See, e.g United States v. Metz,
Nixon’s second argument glosses over his burden of proof as a petitioner for a new trial. He should have at least “reasonably well satisfied” the court that Wiley testified falsely at trial.
See Newman, supra,
Miscellaneous Arguments
Nixon asserts that the trial court failed to consider the cumulative impact of the Brady errors on his opportunity to impeach Wiley Fairchild’s testimony. Because we have rejected his substantive Brady claims, their “cumulative” impact is irrelevant. He also charges that the government knowingly procured false testimony about the alleged “inducements” to Wiley and about his and Drew’s plea bargains. This charge also fails as a result of our rejection of the Brady claims.
CONCLUSION
Judge Nixon was not denied a fundamentally fair trial. Wiley Fairchild was vigorously and effectively cross-examined at his trial, and the leniency of Wiley’s plea bargain, as well as his interest in his son’s case, were thoroughly aired. We are not prepared to overturn the district court’s findings and conclusions on Brady issues or Wiley’s attempt to recant his trial testimony. The court did not abuse its discretion in failing to order a new trial.
AFFIRMED.
Notes
. As the district court found, under the express terms of his plea bargain Fairchild would plead guilty to the gratuity charge; the United States would dismiss the perjury charge against Fair-child, and the United States would make Fair-child’s cooperation known to the sentencing judge.
. Nixon’s trial and the relevant sentencing discussions occurred before the advent of Federal Sentencing Guidelines. We assume that the potential impact of the government’s recommendation of some sentence, or failure to recommend, has diminished under the new federal sentencing procedures.
. The district court held that this memo was not discoverable under Brady because it represented the government attorneys’ work product. We need not discuss this rather dubious conclusion because it is clear that the memorandum contained no information that was concealed from Nixon before trial.
. At trial, Wiley testified that he received Nixon’s phone call from Bud Holmes’s farm sometime before Drew's case was passed to the files. On cross-examination, Nixon's defense counsel skillfully led him to admit several times that the call came after the case was passed to the files. The government then attempted to rehabilitate him by a disavowal of this admission.