Gordon v. United States Petition for a Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit

    No. 87-__

In the

©Hurt nt %  $mtp& &Mta
Ootobee T e em , 1987

S piv ee  W h it n e y  Gordon,

—against—
Petitioner,

U nited  S tates op A meeiga.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

J tjlitts L . C hambers 
#C. L a n i Gttinier 

J o h n  Chables B ogee 
S iegfried K nope

99 Hudson Street
New York, New York, 10013
(212) 219-1900

Attorneys for Petitioner 

* Counsel of Record



QUESTION PRESENTED

W h e t h e r  this Court's normal 
principles against the unforeseeable or 
overbroad construction of a federal 
criminal statute apply to the criminal 
provisions of the Voting Rights Act of 
1965?

i



TABLE OF CONTENTS

Question Presented ............. i
Table of Authorities ........... ii
Opinions Below ................  2
Jurisdiction ...................  2
Statutes Involved ..............  2
Statement of Facts ........... . . 3

A. Introduction ......... 3
B. Background: The Govern­
ment 's Alabama Voting Fraud 
Prosecutions ...............  5
C. Alabama Election Law
Relevant to The Government's 
Charges ....................  13
D. The Evidence Presented
At Trial ...................  17
E. The District Court's
Instructions ...............  24

REASONS FOR GRANTING THE
WRIT ...................... ...... 3 0

Page

- ii -



Page
THE COURT SHOULD GRANT
CERTIORARI TO CONSIDER
WHETHER CONGRESS INTENDED
THAT 42 U.S.C. 1973i(c) OF THE
VOTING RIGHTS ACT OF 1965
SHOULD BE INTERPRETED OR
APPLIED BY A FEDERAL COURT
TO REACH NOVEL, TECHNICAL
VIOLATIONS OF STATE VOTING LAW
THAT WERE NOT KNOWN TO BE
CRIMINAL BY THE DEFENDANT
CHARGED ....................  3 0
A. Certiorari Should Be 
Granted to Reassert This 
Court1s Teaching That 
Criminal Statutes, Espe­
cially Those Governing 
Constitutionally Protected 
Activities, Must Be
Strictly Construed ........  31
B. Certiorari Should Be 
Granted Because the Opinion 
Below Is Inconsistent With the 
Congressional Intent Behind
the Voting Rights Act .....  3 9
C. Certiorari Should Be 
Granted Because the Opinion 
Below Undermines Four Basic 
Principles of Due
Process ......... ..........  44

CONCLUSION ......................  52

iii



TABLE OF AUTHORITIES

Cases Page
Anderson v. United States, 417 U.S.

211 (1974) ....................  32
Bouie v. City of Columbia,

378 U.S. 347 (1963)............ 50
Broadrick v. Oklahoma, 413 U.S.

601 (1973).....................  36
DeJonge v. Oregon, 299 U.S. 353

(1937)   49
Dombrowski v. Pfister, 380 U.S.

479 (1965).....................  36
Dunn v. United States, 442 U.S. 100

(1979)   49
Garza v. Smith, 320 F. Supp. 131

(W.D. Tex. 1970)    43
In re Gault, 387 U.S. 1, (1967)....  49
Grayned v. City of Rockford, 408

U.S. 104 (1972)   44
Kolander v. Lawson, 461 U.S. 566

(1983).......................... 35
Kusper v. Pontikes, 414 U.S.

51 (1973)   36
Marks v. United States, 430 U.S.

188 (1977)    50
IV



Cases Page
McNally v. United States, ___ U.S.

___, 97 L.ed.2d 292 (1987). 30,32,35
Morris v. Fortson, 261 F. Supp. 538

(N.D. Ga. 1966)   37
NAACP v. Alabama, 357 U.S. 449

(1958)   36
NAACP V. Button, 371 U.S. 415

(1963)   36,38
Reynolds v. Sims, 377 U.S. 533

(1964)    37
Sandstrom v. Montana, 442 U.S. 510

(1979).......................... 52
Smith v. Goguen, 415 U.S. 566 (1974) 35
South Carolina v. Katzenbach, 383

U.S. 301 (1965)   44
Stirone v. United States, 361 U.S

212 (1960)   49
United States v. Carmichael, 685

F . 2d 903 (4th Cir. 1982) .... 32
United States v. Howard, 774 F.2d

838 (7th Cir. 1985)   32
United States v. Louisiana, 265

F. Supp. 703 (E.D.La. 1966) ... 43
United States v. Mississippi, 256

F. Supp. 344 (S.D. Miss. 1966) . 43

v



Cases Page
United States v. Morado, 454 F.2d

167 (5th Cir 1972) ............ 32
United States v. Turner, et al..

Cr. No.85-00014 (S.D. Ala.,
July 5, 1985) .................  16

Statutes
18 U.S.C. 241 ...............    32
18 U.S.C. 1341 .....................  32
42 U.S.C. §1971 (a) (2) (B)...........  42
42 U.S.C. §1973aa-6................ 38,42
42 U.S.C. §1973i(b)  38,42,43
42 U.S.C. § 1973i(c)   passim
42 U.S.C. §1973i(e)   32
Ala. Code §17-16-27 ................ 37

Legislative History
H. R. Rep. No. 94-196. 94th Cong.,
1st Sess. 32 (1975) ................  38
111 Cong. Rec. S8423-25, S8428-33, 
S8813-17, 8984-85, S8988 (April 26,
April 28, April 29, 1965).......... 41,42
111th Cong. Rec. H16246-50 (July 9,
1965)     41,42

- vi



No. 87
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1987

SPIVER WHITNEY GORDON,
Petitioner,

-against-
UNITED STATES OF AMERICA.

Petition For a Writ of Certiorari To The 
United States Court Of Appeals 

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Spiver Whitney Gordon 
respectfully prays that a writ of 
certiorari issue to review the judgment 
of the United States Court of Appeals for 
the Eleventh Circuit, entered June 2, 
1987, as modified on rehearing by an 
opinion rendered February 4, 1988.



2
OPINIONS BELOW

The opinion of the Court of Appeals, 
which is reported at 817 F.2d 1538 (11th
Cir. 1987), is annexed as Appendix A. 
The opinion of the Court of Appeals on 
rehearing, which is not yet officially 
reported, is annexed as Appendix B.

JURISDICTION
The opinion of the Court of Appeals 

was rendered on June 2, 1987. An opinion 
on rehearing was rendered on February 4, 
1988. On April 8, 1988, Justice Kennedy
entered an order extending the time for 
the filing of this petition to and 
including April 25, 1988. The jurisdic­
tion of this Court is invoked under 2 8 
U.S.C. § 1254(1).

STATUTES INVOLVED
(See Appendices C and D).



3
STATEMENT OF FACTS

A. Introduction
Petitioner Spiver Whitney Gordon was 

indicted on thirty-seven varied federal
criminal counts for his activity in
assisting black absentee voters in a
primary election held on September 4,
1984, in Greene County, Alabama. The 
Government dismissed sixteen counts 
against Mr. Gordon prior to trial because 
of a lack of evidence; he was tried on 
twenty-three counts in the Northern 
District of Alabama. Prior to trial, Mr. 
Gordon petitioned the Court of Appeals 
for a writ of mandamus and prohibition, 
seeking to preclude the Government from 
exercising its peremptory strikes in a 
racially discriminatory manner. That 
petition was denied by a panel of the 
Court on September 29, 1985. The
Assistant United States Attorney exer­



4
cised all six of his peremptory chal­
lenges to remove every black venireperson 
from Mr. Gordon's jury.

Trial before the all-white jury 
proceeded for eighteen days, including 
five days of deliberations during which 
the jury was given a modified "Allen 
charge." Mr. Gordon was ultimately 
acquitted of fourteen counts, but was 
convicted — ■ on two counts of violating 
the mail fraud statute, 18 U.S.C. §1341, 
and two counts of furnishing false 
information to an election official in 
violation of 42 U.S.C. § 1973i(c) —  for
witnessing two absentee ballots submitted 
as the respective votes of his wife's 
uncles, Nebraska and Frankland Underwood. 
The court granted government motions to 
dismiss five additional counts with



5
prejudice. (Rl-85).1

The district court sentenced Mr. 
Gordon to a $500 fine on each of two 
counts of mail fraud and to three-year 
concurrent sentences on all counts, 
suspending all but the first six months, 
with three years probation following 
release from custody, including five 
hundred hours of community service. (Rl- 
77) .
B. Background: The Government's Alabama

Voting Fraud Prosecutions
Spiver Gordon and a co-defendant, 

Frederick D. Daniels, were indicted at 
the request of the United States Attorney 
for the Northern District of Alabama for 
alleged acts of "voter fraud" and mail

1 Each reference to the Record on 
Appeal will be indicated by the abbrevia­
tion "R," followed by the volume number, 
the document number (if the volume 
contains multiple documents), and the 
page number on which the reference may be 
found.



6
fraud in connection with a September 4, 
1984, primary election held in Greene 
County and throughout the State of 
Alabama, and a September 25, 1984, run­
off election in that county. ' (See Rl-1- 
1) . The indictments were among a series 
of similar federal charges pressed in 
mid-1985 against at least eight Alabama 
citizens (R3-30-33) , all residents of 
five counties in Alabama's so-called 
"Black Belt."

Alabama's "Black Belt" is distin­
guished by the high percentage of black 
citizens among its ten counties.2 In the 
decades prior to enactment of the Voting 
Rights Act of 1965, all of these counties

 ̂ According to the 1980 U.S. 
Census, the percentage of blacks in 
Alabama's ten Black Belt counties is as 
follows: Choctaw (43.46); Dallas
(54.63); Greene (78.00); Hale (62.80); 
Lowndes (74.98); Marengo (53.28); Perry 
(60.08); Pickens (41.80); Sumter (69.26); 
and Wilcox (68.80).



7
were politically dominated by the 
minority of white voters; the black 
majority was effectively shut out of all 
participation in the electoral process. 
(RS2 Fact Sheet, at l).3 Since the 1965 
Voting Rights Act —  as the United States 
Magistrate who heard Mr. Gordon's claim 
of selective prosecution found -- "there 
has been an intense struggle between 
whites and blacks in the Alabama Black 
Belt with white persons seeking to retain 
political power and blacks seeking to

J Each reference to the materials 
submitted to the District Court under 
seal in support of Mr. Gordon's selective 
prosecution claim will be indicated by 
the abbreviation "RS" followed by a 
number "1" or "2" —  for the first or 
second submission —  followed by some 
identifying information. (As the 
Magistrate noted in his Recommendation on 
this claim, these documents were "filed 
under seal in order that defense strate­
gies will not be compromised." (Rl-50-8 
n. 2). Although the trial has been 
completed, Mr. Gordon intends to honor 
the seal by identifying the accompanying 
documents in an abbreviated form, e.g. , 
Aff't of Ira B.)



8
share in it." (Rl-50-13).

In the late 1960's in Greene County, 
slates of black candidates were elected 
to a majority of countywide offices for 
the first time. By 1982, blacks had 
obtained political control of county 
commissions and school boards in Greene 
County and in four other Black Belt 
counties. (RS2 Aff't of Ira B., at 5; see 
also. RS2 Fact Sheet, at 1) . In Greene 
County, the principal political organiza­
tion representing these black interests 
was the Greene County Civic League 
("GCCL") (RSI Aff't of Debra H. , at 2). 
Spiver Gordon, a former official of the 
Southern Christian Leadership Conference, 
was a principal leader of the GCCL and, 
at the time of his indictment, had become 
the Director of the Community Service 
Block Grant Program, a member of the 
Greene County Hospital Board, and a



9
deputy registrar for the Greene County 
Board of Registrars. (Rl-1-2) . As an 
officer and the "spark plug" of the GCCL, 
Mr. Gordon was extremely well-known 
throughout the area. One witness
testified that some blacks called Mr. 
Gordon the "black Moses" of Greene 
County. (R13-81).

In the spring of 1984, a rival 
political organization, the People's 
Action Committee ("PAC"), was formed in 
Greene County. (See RSI, Aff't of Debra 
H. , 1- 2 ; Exh. 1 , newspaper article
entitled "New PAC claims runoff win.") 
Its membership and support was predomi­
nantly among white voters (RSI, Aff't of 
Ira B., at 7).

Mr. Gordon's evidence demonstrated 
that during 1984, the United States 
Attorneys for the Northern and Southern 
Districts of Alabama began an intensive



10
investigation of voting fraud in Alabama. 
The investigation was concentrated 
exclusively on Alabama's Black Belt (RS2, 
Aff't of Ira B., at 2; RS2 Fact Sheet at 
2), and within the Black Belt, exclusive­
ly on those five counties in which black 
citizens had obtained majority control of 
county offices. (RS2 Fact Sheet, at 2; 
RSI, Aff't of Dennis S., Aug. 8, 1984, at 
1). Moreover, within those five coun­
ties, federal attention focussed solely 
on those officials, predominantly black, 
who were the leaders of the majority 
faction. (RSI, Aff't of Susan J., at 1-2; 
RS2, Fact Sheet, 3-4).

One official, the Assistant Director 
of the Office of Public Affairs of the 
Department of Justice, reportedly 
explained the investigations as part of a 
"new policy . . . brought on by the 
'arrogance on the part of blacks' in



11 -
these counties." (RS2, Aff't of Ira B., 
at 2) . The result of the investigations 
-- characterized by widespread FBI 
interrogation of black voters, many of 
them elderly, rural citizens (RSI, Aff't 
of Susan J., at 6) —  was the indictment 
of seven black civil rights leaders (and 
one white sympathizer) in these counties. 
(R3-30-33).

Mr. Gordon presented evidence to the 
Magistrate that within Greene County 
scores of substantial allegations of 
voter misconduct by PAC officers and 
members were reported to investigating 
officials at the same time as an inten­
sive federal investigation of GCCL 
leaders was underway (see, e.g., RS2, 
Aff't of Ira B. , 13-28 and accompanying 
affidavits; see, e.g., RSI, Aff't of
Dennis S., Aug. 2, 1985, at 2; RSI, Aff't 
of Ruth H. , 1-2) ; yet these PAC viola­



12
tions went uninvestigated. (RSI, Aff't of 
Dennis S., Aug. 2, 1985, at 1; RS2, Fact 
Sheet, 3-4). Mr. Gordon's evidence 
revealed that prominent members of the 
rival, white-dominated PAC worked 
directly with FBI agents and officials of 
the Department of Justice in the inves­
tigation of GCCL members. (RSI, Aff't of 
Susan J., at 3; id. Aff't of Ruth H., at 
4) •

After considering the evidence, the 
Magistrate acknowledged that Mr. Gordon 
and his co-defendant had "made a showing 
of a 'colorable entitlement'" to relief 
under "the first prong of the selective 
prosecution [standard]" (Rl-50-12)—  

that is, they had shown "that while 
others similarly situated have not been 
proceeded against, [Gordon and his 
colleagues had] ... been singled out for 
prosecution." (Id. at 4).



13
However, the Magistrate declined to 

find sufficient evidence that "the 
decision to prosecute was invidious or in 
bad faith because . . . based upon some 
impermissible factor such as race ... or 
the exercise of constitutional rights." 
(Id., 4, 15).

The district court accepted the 
Magistrate' s recommendation in a summary- 
order, entered August 26th. (Rl-57).
C. Alabama Election Law Relevant To The

Government1s Charges_________________
Evidence adduced at trial showed 

that, under Alabama Law, a registered 
voter in Greene County was entitled in 
1984 to vote by absentee ballot in the 
county if physically incapacitated or if 
absent from the county on election day. 
Under Alabama law, a registered voter 
living outside Greene County could 
lawfully vote in county elections so long 
as he (i) was not registered elsewhere



14
and (ii) considered Greene County his 
legal domicile. (R16-21). An application 
to the appropriate county official (in 
Greene County, Mary Snoddy, the Absentee 
Election Manager) for an absentee ballot, 
had to be in writing. (R6-174) . Upon 
receipt of the application, and after 
checking whether the applicant was 
registered to vote in Greene County (R6- 
178) , Ms. Snoddy would forward a kit to 
the voter at the mailing address indi­
cated on the application. (Id. at 179) . 
The mailing address could be, and often 
was, other than the voter's own resi­
dence. (R7-100; R12-124; R12-152). The 
kit contained two envelopes and a ballot. 
(R6-179) . On the printed side of the 
ballot were the names of the candidates, 
with a place for the voter to indicate a 
choice. Once the ballot was voted, it 
was placed in a sealed envelope, "the



15
secrecy envelope." (R6-185). This 
envelope normally contained no identify­
ing marks or writing. The sealed secrecy 
envelope was then deposited in a larger 
"mailing envelope" addressed to the 
Absentee Election Manager. On the back 
of the mailing envelope was an affidavit 
with blank lines for the signature or 
mark of the voter, and for the signature 
either of a notary or of two witnesses. 
(R6-193). Nothing on the mailing 
envelope, or in the governing state 
statute, Appendix D, described the duties 
of a witness.4

Several questions of Alabama 
election law on absentee voting were 
raised by the evidence in this case: (i)

4 The mailing envelope's printed 
portion simply recited the statutory 
language: the word "WITNESS" was
followed by four blank lines for the 
witness to write his/her name and 
address. The witness was not required to 
administer an oath, nor make any affirmation.



16
whether Alabama law prohibited "proxy- 
voting"5 —  that is, a practice whereby a 
person other than the voter would 
actually fill out the voter's absentee 
ballot and affidavit, or would sign the 
ballot and affidavit, in either case with 
the voter's consent. but outside the 
voter's presence; and (ii) whether a 
witness to the affidavit on the face of 
the mailing envelope must actually see 
the voter sign his affidavit, or must 
require the voter in person to attest his

"Proxy voting," is a term 
coined by The Honorable Emmett R. Cox, 
United States District Judge for the 
Southern District of Alabama during one 
of the related prosecutions, United 
States v. Turner, Hogue and Turner, Civ. 
No. 85-00014 (S.D. Ala., July 5, 1985) 
(jury verdict of acquittal). Judge Cox 
charged the jury in Turner that marking a 
ballot with the consent of the voter was 
legal and constitutionally protected 
activity in Alabama. Mr. Gordon fur­
nished the District Court in this case 
with a copy of Judge Cox's instruction, 
but the Court determined, contrary to 
Judge Cox, that proxy voting was illegal 
in Alabama. (R15-25-29).



17
signature on the envelope.
D. The Evidence Presented At Trial

The counts on which Mr. Gordon was 
convicted linked him to two absentee 
ballots. One of these ballots was cast 
in the name of Nebraska Underwood and the 
other in the name of Frankland Underwood, 
each of whom is an uncle of Mr. Gordon's 
wife. Mr. Gordon acknowledged that he 
signed the mailing envelopes of these 
ballots as a witness. No other evidence 
was introduced linking Mr. Gordon to the 
absentee ballots themselves or the 
accompanying envelopes, or to any of the 
handwriting on any of these documents, 
other than his own signature on the 
outside envelope as witness. (Rll-52-54).

These ballot envelopes were signed 
by Mr. Gordon during a family reunion, 
held at his wife's family home, shortly 
before the September 4th election. (R12-



18
67-68, R13-103) . A number of family 
members attended this reunion and, 
consistent with past family practice, 
filled out absentee ballots at that time. 
(R13-103-109).

Family matriarch Mattie Underwood 
explained that these gatherings were 
important to her because of the "very 
hard time" she and her family had 
experienced in registering to vote in 
earlier decades. She was determined that 
her children would vote in each election. 
(R12-43-44). At the gatherings, family 
members would discuss and decide how they 
would be voting in the upcoming election. 
(R13-103-09). After coming to a deci­
sion, an absentee ballot for each member 
of the family who had communicated a 
desire to vote, but who would not be able 
to go to the polls, would be marked, and 
the affidavit on the mailing envelope



19
would be completed. (Id.)

Mattie Underwood and each of her 
three children testified that absentee 
ballots were prepared for both Nebraska 
and Frankland Underwood, with their 
permission, at the September 1984 pre­
election family gathering, although 
neither Nebraska or Frankland Underwood 
was then present. (R7-109, 162, R12-46-
48, 73, 79, R13-120, 123-24). Mattie
Underwood testified that Mr. Gordon 
arrived at the gathering after the 
absentee ballots had been voted. (R12-67- 
68). Mr. Gordon, at his family's
request, then signed as a witness the 
mailing envelopes of Nebraska and 
Frankland Underwood, along with those of 
a number of family members who were 
present.

The thrust of Mr. Gordon's defense 
was that the Underwood family's voting of



20
Nebraska and Frankland Underwood's 
ballots constituted proxy voting. Mr. 
Gordon maintained throughout trial that 
absentee voting by proxy was a legal, 
common, and widely tolerated practice in 
the State and in Greene County, in
particular.6 Four expert witnesses"7
testified that a voter may authorize
another person to assist the voter in
casting, and in some instances signing,

In its remarks following its 
presentence report, a United States 
Probation Officer noted that the "U.S. 
Probation Officer agrees that there 
existed the practice of 'Proxy voting' in 
Greene County. The Court may wish to 
consider this as a mitigating factor." 
(Rl-78-5). This practice was confirmed 
by testimony at trial. (R13-52-53, 62
74-75).

7 The witnesses were: (i) Mary
Snoddy, The Circuit Clerk of Greene 
County; (ii) Helen Moore, Alabama's 
administrator of elections, as well as a 
panel member of the Federal Election 
Commission; (iii) Dr. Robert Brown, a 
member of the Greene County Board of 
Registrars; and (iv) Edward Still, 
General Counsel to the State Democratic 
Executive Committee.



21
his or her ballot. (R7-93-94, R12-129- 
130, R13-52, 61-62, 74-75, R12-143-149). 
In addition, many Greene County residents 
testified that they had engaged in proxy 
voting on one or more occasions. (R12- 
103, R13-172, 183). No evidence was 
presented that any prohibition against 
proxy voting was codified or known to Mr. 
Gordon. Nor had the practice of proxy 
voting ever been reviewed by the Alabama 
Courts.8

Mr. Gordon also contended that 
absentee balloting was critical to the 
ability of blacks in Greene County to

°  An Attorney General opinion 
issued July 13, 1984, in response to a 
guery from the Secretary of State, 
announced that the ballot affidavit may 
not be executed by a third party who had 
been given power of attorney by tele­
phone. This opinion was unknown to any 
of the experts who testified on Alabama 
election law (R12-144, 145-46), and was 
not disseminated to the public by the 
Greene County Absentee Election Manager. 
(R7-37).



22
participate in elections, since large 
numbers of the county's citizens worked 
in Birmingham or Tuscaloosa, or were 
otherwise absent from the county between 
8:00 a.m. and 6:00 p.m. when the polls 
were open. (R12-152). In addition, many 
elderly and illiterate blacks, proud of 
their "voting rights" and eligible to 
vote absentee, could not do so without 
assistance from persons like Mr. Gordon. 
(R13-37-56).

The government tried to prove that 
Mr. Gordon had furnished false informa­
tion to an election official when he 
signed, as a witness, the mailing envel­
opes containing the absentee ballots of 
Frankland and Nebraska Underwood outside 
of their presence .9 Relying on test-

It was conceded that both 
Frankland and Nebraska Underwood were 
duly registered and eligible to vote in 
Greene County. (R14-45-48). There was no 
suggestion that their votes were the



23
imony from both Frankland and Nebraska 
Underwood, witnesses of admittedly poor 
memory,* 10 the government contended that 
neither had in fact consented to their 
family voting an absentee ballot for them

subject of multiple voting or any other 
irregularity.

10 At trial, Frankland Underwood, 
a self-proclaimed "drinking man," had 
little recollection of events from 1984, 
except that during a visit to his family 
in Greene County that summer, he had been 
preoccupied with drinking and getting 
drunk. (R7-162; R12-79). He specifical­
ly denied, for example, that he met with 
the FBI in September 1984 or at any time 
that year. (R7-158-59). The government 
stipulated that such a meeting had in 
fact taken place. (R7-159). At trial 
his eyes were red and tearing and the 
smell of liquor was on his breath. Mr. 
Underwood admitted drinking the night 
before, but the judge foreclosed any 
further inquiry into the state of his 
intoxication. (R7-149, 151-52, 155).

The trial judge permitted the 
deposition of the other uncle, Nebraska 
Underwood, to be read to the jury in lieu 
of in-person testimony. (R10-202). 
According to his deposition, Nebraska 
Underwood has multiple sclerosis, tires 
easily and concededly has problems 
remembering things. (RIO-212-213, R12- 
121-22).



24
and, therefore, anyone participating in 
the witnessing of the mailing envelope 
affidavit was furnishing false informa­
tion.

Various family members contradicted 
the testimony of the two uncles.
Supporting the claim of proxy voting, 
they claimed that during trips to Greene 
County prior to the primary, each uncle 
had consented to have the family vote an
absentee ballot in his name in the
primary. (R7-109, 162, R12-46-48, 73,
79, R13-123-4).
E . The District Court's Instructions

At the close of the trial, over 
strenuous defense objection (R15-25-31), 
the district court instructed the jury 
that proxy voting is per se illegal in 
Alabama (R16-26-28). The court charged 
that under Alabama law an absentee voter 
had no right to grant his proxy to



25
another to cast an absentee ballot for 
him, and it even specified that an uncle 
had no right to give his proxy to his 
nephew. (R16-2 6-28) . The court also 
charged, over defense objection (R15-37- 
41), that a witness to a voter's signa­
ture must observe the voter either 
personally sign the affidavit on the 
mailing envelope or personally acknow­
ledge the signature. (R16-27). It
charged further that a knowing violation 
of any state law would establish Mr. 
Gordon's criminal intent under §1973i(c). 
(R16-40, 46, 58-60).

The court refused Mr. Gordon's 
request to charge the jury that a false 
or forged writing is not established 
merely if one person has signed the name 
of another, if there may have been real 
or perceived authorization for so 
signing. (R15-78-79) . The court refused



26
another request by Mr. Gordon to charge- 
- as Judge Cox had done three months 
earlisr —  that both Constitutional and 
statutory authority exists "giv[ing] ... 
voters the right to seek assistance in 
voting absentee, including by allowing 
someone else to mark their ballots for 
them." (R15-79-81).

Mr. Gordon articulated several 
reasons for his objection to the district 
court's incorporation of Alabama law on 
proxy voting into its instructions. The 
law had not been codified or promulgated 
in any fashion by either the Alabama 
courts or legislature. In addition, 
varying methods of proxy voting were 
widespread throughout Greene County and 
much of the state. He argued there was 
no evidence that he had known or could 
have known that the law in Alabama on 
proxy voting was as the district court



27
instructed the jury. He also requested a 
charge, that was not given, that "a 
violation of Alabama law is not at issue 
in this case." (R15-83).11 He urged that 
unless the district court's proposed 
charges were modified to state that some 
difference of opinion exists among 
experts (R15-32) and that in September, 
1984, there were people with "an honestly 
different view," the instruction would 
mean then, "Your Honor is instructing 
them to find the defendant guilty." (Id.) 
The instruction on proxy voting was given 
without any of the requested defense 
modification.

Petitioner argued on appeal, inter *

-LX Mr. Gordon also requested a 
charge that, notwithstanding reference to 
Alabama laws, violation of Alabama law in 
and of itself does not constitute a 
violation of federal law. The district 
court refused the charge as requested 
(Rl-70-73), indicated that it would seek 
to incorporate the substance (R15-82), 
but then did not. See, e.g.. Rl-74-6.



28
alia, that "[t]he District Court errone­
ously instructed the jury on essential 
elements of each count on which Spiver 
Gordon was convicted" (Pet. App. Brief, 
dated June 30, 1986, at 51) (citations 
omitted). Specifically addressing the 
furnishing false information statute, 
petitioner contended (i) that the 
statutory language was significantly more 
limited than the construction given to it 
by the district court in this case (see 
Pet. App. Brief, 53-55, 56-57), (ii) that 
this narrower statutory reading was 
consistent with legislative history and 
Congressional intent (id., 55-56) and 
(iii) that the erroneous instructions, 
and the manner in which Alabama law was 
instructed upon and incorporated into the 
false information voting statute, 
constituted grave constitutional error on 
a number of grounds (id. 52-53, 62-65, 65



29
n.33, 69-70).

The court of appeals treated these 
claims only in passing. It interpreted 
petitioner's claim as a contention "that 
it was improper for the court to describe 
to the jury the procedure under the 
Alabama statutes for absentee voting," 
App. A at 16a, and held simply that 
"[t]he jury was entitled to know the 
state voting law," id. , and that there 
was "nothing unusual about a violation of 
a state statute being involved in a 
federal election prosecution." App. A at 
17a (citation omitted).

The court vacated and remanded Mr. 
Gordon's convictions for an evidentiary 
hearing on his selective prosecution 
claim and on his claim that it was 
discriminatory for the government to use 
all six of its peremptory challenges to 
exclude every black person from Mr.



30
Gordon's jury. On July 9, 1987, Mr.
Gordon petitioned the court for a 
rehearing on the two counts on which he 
was convicted under the mail fraud 
statute in light of the intervening
decision of McNally v. United States. ___
U.S. ___, 97 L. Ed. 2d 292 (1987). On
February 4, 1988, the court of appeals
vacated Mr. Gordon's conviction on the 
two mail fraud counts, following McNally.

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER CONGRESS INTENDED THAT 
42 U.S.C. 1973i(c) OF THE FEDERAL VOTING 
RIGHTS ACT OF 1965 SHOULD BE INTERPRETED 
OR APPLIED BY A FEDERAL COURT TO REACH 
NOVEL, TECHNICAL VIOLATIONS OF STATE 
VOTING LAW THAT WERE NOT KNOWN TO BE 
CRIMINAL BY THE DEFENDANT CHARGED WITH 
THE FEDERAL OFFENSE

The indictment and conviction of 
petitioner Spiver Gordon under 42 U.S.C. 
1973i(c) have offended a number of



31
interrelated principles of constitutional 
law and statutory construction that this 
Court has long guarded with great 
jealousy. It has also expanded the reach 
of 42 U.S.C. 197 3 i(c) beyond anything 
that Congress appears ever to have 
approved or even contemplated.

A. Certiorari Should Be Granted To 
Reassert This Court's Teaching 
That Criminal Statutes, 
Especially Those Governing 
Constitutionally Protected 
Activities, Should Be Strictly 
Construed

The conviction of petitioner for the 
act of witnessing two absentee ballots 
outside of the presence of the named 
voters constitutes a radical departure 
from all of the other federal convictions 
for misuse of the franchise of which 
counsel is aware. In other federal 
prosecutions —  whether under § 1973i(c)



32
or under other statutes12 —  there has 
been among those convicted a common 
denominator: they have been found to have 
used fraud or some other corrupt practice 
to enable themselves to vote (or register 
to vote) illegally. In all cases, the 
fraudulent means --- whether vote buying, 
see, e.q.. United States v. Carmichael, 
685 F . 2d 903 (4th Cir. 1982), ballot box 
stuffing, see, e.q.. Anderson v. United 
States . 417 U.S. 211 (1974), voter 
intimidation or deception, see, e.q..
United States v. Morado, 454 F . 2d 167
(5th Cir.) r cert. denied, 406 U.S. 917
(1972), or the use of false information, 
see. e.q.. United States v. Howard, 774
F .2d 838 (7th Cir. 1985) —  were intended 
to allow the defendants to effect the

See 18 U.S.C. § 241, 42 U.S.C.
1973i(e), and prior to McNally v. United
States, __  U.S. ___, 97 L.Ed.2d 292
(1987), 18 U.S.C. § 1341.



33
casting of votes according to their own 
electoral preferences.

By contrast, petitioner's convic­
tion, based on the way in which §1973i(c) 
was applied to him, did not require a 
finding by the jury that he intended to 
vote at all. There was no requirement 
that the jury find that petitioner had 
intended to vote the ballot cast in the 
name of Frankland or Nebraska Underwood 
as his own. There was no requirement 
that the jury find that the actual voter 
of either of those ballots was other than 
Frankland or Nebraska Underwood.

The statute, as applied to Mr. 
Gordon through the instructions to his 
jury, made the name of the person 
actually witnessing rather than actually 
voting the absentee ballots into the 
decisive factual issue for determining 
whether Mr. Gordon had used "false



34
information." (R16-46). It made the 
"intent or consciousness of disobeying 
the requirements of law, federal or 
state" — ■ including any provision of 
Alabama absentee voting law as it was 
charged to the jury —  rather than the 
intent to make the ballots reflect his 
vote, into the decisive factual issue for 
determining whether Mr. Gordon had pos­
sessed the requisite criminal intent. 
(Id.; see also R16-48, 59-60, R17-94).

The Eleventh Circuit approved this 
use of § 1973i(c), upholding Mr. Gordon's 
conviction for what it called "fraudu­
lently misusing the Alabama absentee 
voting law." App. A at 16a. As did the 
district court, it saw fit to allow Mr. 
Gordon's conviction to rest on the issue 
of his compliance with the disputed 
provisions of Alabama absentee voting
law.



35
This Court has recently reasserted 

the importance of the rule that penal 
statutes be strictly construed. McNally
v. United States. ___ U.S. ___, 97
L.Ed. 2d 292 (1987). McNally is fully
consistent with this Court's prior cases 
repeatedly recognizing limits to criminal 
statutes that potentially overreach 
activities protected by the Constitution. 
See. e . q , » Kolander v. Lawson. 461 U.S. 
566 (1983); Smith v. Goguen. 415 U.S. 566 
(1974) .

The district court's expansive 
interpretation of § 1973i(c) sanctioned
in the courts below, particularly the 
vague and overbroad allowance to 
incorporate non-criminal, technical 
provisions of state law into its con­
fines, not only violates this Court's 
traditional rule against construing 
criminal statutes broadly; it fails to



36
meet the strict standards required of 
laws that potentially could dampen the 
exercise of federally protected activity. 
Broadrick v. Oklahoma. 413 U.S. 601 
(1973); Dombrowski v. Pfister, 380 U.S. 
479, 487 (1965).

Mr. Gordon has the right, under the 
First and Fourteenth Amendment, to meet 
with other members of his community to 
discuss the electoral process, to discuss 
the various candidates running for 
office, to express his opinion regarding 
the relative merits of those candidates, 
and to assist others in voting for 
particular candidates. NAACP v. Button. 
371 U.S. 415 (1963). He further has the 
right to join with others and associate 
to further these activities. NAACP v . 
Alabama, 357 U.S. 449 (1958) ; Kusper v. 
Pontikes. 414 U.S. 51 (1973). His 
conviction encompasses as criminal



37
behavior activities which lie at the core 
of the right to free speech and associa­
tion .

Mr. Gordon has the right, under the 
Thirteenth, Fourteenth and' Fifteenth 
Amendments, to participate in the 
political process and to assist others in 
doing so. Morris v. Fortson. 261 F. 
Supp. 538 (N.D. Ga. 1966) (Georgia rule 
forbidding assistance by an individual to 
more than one voter held to violate the 
Constitution). He is entitled to assist 
voters who are allowed under Alabama law 
to vote by absentee ballot as well as 
those who would vote at the polling 
place, Ala. Code § 17-16-27, since the 
right to vote is the right to an effec­
tive exercise of that right. Reynolds v. 
Sims, 377 U.S. 533 (1964). Mr. Gordon's 
assistance to voters by witnessing their 
ballot affidavits is constitutionally



38
protected activity. "Meaningful assis­
tance to allow a voter to cast an 
effective ballot is implicit in the 
granting of the franchise." H.R. Rep. 
No. 94-196, 94th Cong., 1st Sess. 32 
(1975) . The opinions below sanction Mr. 
Gordon's conviction for engaging in 
activities which are vital to the full 
enfranchisement of disabled voters.

If the opinion below is not cor­
rected, the Voting Rights Act will have 
been amended to criminalize activity 
which is protected by the First, Thir­
teenth, Fourteenth and Fifteenth Amend­
ments of the Constitution of the United 
States, and other provisions of the Act, 
such as 42 U.S.C. § 1973aa-6 and
1973i(b). Such overbroad applications of 
the statute violate Mr. Gordon's right to 
due process of law. NAACP v. Button, 371 
U.S. 415 (1963).



39

B. Certiorari Should Be Granted 
Because the Opinion Below Is 
Inconsistent With the Congres­
sional Intent Behind the Voting 
Rights Act

By its plain language, § 19731(c)
applies to a narrow range of acts 
committed with a specific intent clearly 
specified in the statute. The range of 
acts are the providing of false informa­
tion as to the voter's (1) name, (2) 
address, or (3) period of residence. The 
specified intent is the willful use of 
that false information "for the purpose 
of establishing [the user's] eligibility 
to register or vote." Thus the statute 
reveals itself to penalize the fraud 
involved in stealing votes. Since Mr. 
Gordon was charged with providing false 
information as to the name of the voter, 
the statute plainly required proof that 
Mr. Gordon willfully acted to falsify the



40
name of the actual voter of the two 
Underwood ballots in order to establish 
his own eligibility to mark and cast 
those ballots. At minimum, therefore, 
the statute required proof that Mr. 
Gordon had knowledge that the Underwood 
brothers had not consented to vote their 
absentee ballots in the primary. The 
instructions required no such proof. As 
stated above, the instructions required 
conviction even if the jury found such 
consent.13

Apart from their inexplicable

XJ Mr. Gordon does not contend 
that state law can never properly be 
explained to a jury in a § 1973i(c)
prosecution. There are certainly some 
cases where state law would be helpful to 
a jury trying to evaluate the three 
categories of ’’false information," 
particularly concerning the address or 
period of residence. It is inconceiv­
able, however, that state law could be 
useful to determine the defendant's 
criminal intent, i .e .. whether the 
accused acted "for the purpose of 
establishing his eligibility to register 
or vote." 42 U.S.C. § 1973i(c).



41
deviation from the plain terms of the 
statute, the district court's instruc­
tions fly in the face of Congress's 
expressed intent in passing § 1973i(c).
The provision was purposely drafted 
narrowly to reassure Members of both 
Houses who expressed concern that it 
might otherwise be used to prohibit 
legitimate forms of voter assistance or 
protected efforts to increase voter 
turnout. Ill Cong. Rec. S8423-25, S8428- 
33, S 8984-85, H16146-47, H16246 (1965).
The sponsors allayed these concerns by 
specifying that the amendment would 
proscribe only fraudulent acts which 
taint or potentially taint election 
results. Id. at S8988, H16246. Repeated
citations were made to events which had 
allegedly taken place in Chicago during 
the 1960 presidential election, id. , at 
S8814-15, H16247-49, and other elections



42
in which the election was "stolen," id..
at 58813- 17, H16249-50, as examples of
the kind of large-scale voting fraud
schemes the amendment intended to
prevent. See, e . q. . id. . at S8988, 
H16246.

To broadly transform § 1973i(c), as 
the district court did, into a sweeping 
prohibition criminalizing technical 
violations of state election law, not 
only subverts the will of Congress in 
passing the measure, it also conflicts 
with, or compromises, other provisions of 
the Voting Rights Act. See. e.q. , 42
U.S.C. § 1971(a)(2)(B); 42 U.S.C. §
1973aa-6; 42 U.S.C. § 1973i(b).14

14 42 U.S.C. § 1973aa-6 provides:
Any voter who requires assistance to 
vote by reason of blindness, 
disability, or inability to read or 
write may be given assistance by a 
person of the voter's choice, other 
than the voter's employer or agent 
of that employer or officer or agent



43

of the voter's union.
42 U.S.C. § 1973i(b) provides in relevant 
part:

No person, whether acting under 
color of law or otherwise, shall 
intimidate, threaten, or coerce, or 
attempt to intimidate, threaten, or 
coerce any person for urging or 
aiding any person to vote or attempt 
to vote....

42 U.S.C. § 1973i(c) must be read in pari 
materia with the other two sections of 
the same statute cited above. Mr. 
Gordon's assistance of family numbers who 
are registered voters in Greene County is 
specifically protected activity under 
those provisions of the Voting Rights 
Act. Indeed, even before the 1982
Amendments which added § 1973aa-6, the
Voting Rights Act had been interpreted to 
require that assistance be provided to 
all disabled voters, whether disabled by 
blindness, physical incapacity or il­
literacy. United States v. Louisiana. 
265 F. Supp. 703 (E.D. La. 1966) (three-
judge court), aff'd 386 U.S. 270 
(1967)(Louisiana statute denying assis­
tance to illiterates held to violate 
Voting Rights Act); see also United 
States v. Mississippi. 2 56 F. Supp. 34 4 
(S.D. Miss. 1966)(3-judge court); Garza 
v. Smith. 320 F. Supp. 131 (W.D. Tex.
1970)(3-judge court)(cited by sponsors of 
1982 Amendment). Mr. Gordon's assistance 
of voters, which is statutorily pro­
tected, cannot be made criminal by an



44
This Court has emphasized the 

importance of the Voting Rights Act as a 
guarantor of the effective exercise of 
the right to vote. See, e.g. . South 
Carolina v. Katzenbach. 383 U.S. 301 
(1965).

Certiorari should be granted to 
ensure that § 1973i(c) is interpreted
strictly and in accordance with the 
language of, and legislative intent 
behind, both § 1973i(c) itself and the
Voting Rights Act as a whole.

C. Certiorari Should Be Granted 
Because the Opinion Below 
Undermines Four Basic Prin­
ciples of Due Process

The district court's treatment of § 
1973i(c) deprived Mr. Gordon of basic 
constitutional protections afforded by

overbroad interpretation of another 
provision of the very same statute. To 
do so violates due process of laws. 
Gravned v. City of Rockford. 408 U.S. 
104, 108 (1972).



45
the federal Constitution.

First, Mr. Gordon was deprived of 
the notice guaranteed by the Sixth Amend­
ment. The act petitioner was ultimately 
convicted for having committed —  signing 
his own name as a witness on the mailing 
envelopes of two absentee ballots, 
outside the presence of the voters -- is 
not forbidden, so far as present counsel 
have been able to determine, by any 
Alabama statutory provision or by any 
reported decision of an Alabama state 
court. To the contrary, "proxy voting," 
the casting of an absentee ballot by a 
third party on behalf of a registered 
voter, with his or her express permis­
sion, was widespread and overtly 
practiced in Alabama in 1984. Evidence 
at petitioner's trial established that 
Alabama election law experts either felt 
the practice was legal or were at worst



46
uncertain about its status.

Petitioner was convicted, as we have 
noted, not for actually engaging in proxy 
voting himself, but merely for signing as
a witness the mailing envelopes into
which someone else had placed the
absentee ballots of his wife's two
uncles, Frankland and Nebraska Underwood, 
at some time prior to petitioner's 
arrival at a family gathering. Peti­
tioner contended that proxy voting was 
understood, at that time, to be legal in 
Alabama —  in other words, that Mr. 
Gordon believed, at the time he signed 
the outside envelope as a witness, that 
Frankland and Nebraska Underwood could 
lawfully have authorized someone else to 
have voted their absentee ballots on 
their behalf in their absence.

The witness form petitioner signed, 
moreover, did not require petitioner to



47
recite, as would a notary public's 
statement, that the signatory had 
personally come before the witness, or 
even that the witness knew the signature 
to be that of the signatory. It simply 
provided four lines for the witness's
name and address. To counsel's knowl-
edge, there is neither an Alabama
statute, nor any court opinion, that
details or otherwise clarifies the
obligations of a witness who signs the
mailing envelope for an absentee voter.

In the absence of clear Alabama 
election law on either proxy voting or 
the obligations of a witness on an 
absentee voter's mailing envelope, the 
district court reached out to create new 
Alabama law which it then used to replace 
one of the existing statutory elements.

It declared proxy voting to be 
unlawful, and decreed that Alabama



48
witnesses must actually observe any 
absentee voter sign his or her mailing 
envelope. The district court then used 
this new Alabama law as a means to expand 
substantially the reach of the federal 
voting fraud statute.

Thus, § 1973i(c) was broadened in 
the instructions to Mr. Gordon's jury so 
as to permit the incorporation of various 
purported Alabama laws into the offense 
charged against him. He received no 
notice in his indictment of the district 
court's eventual interpretation of § 
1973i(c) or of any of the district 
court's interpretation of Alabama laws 
that were eventually charged against him 
in the instructions. But "[njotice, to 
comply with the due process requirements, 
must be given sufficiently in advance of 
the scheduled proceedings so that a 
reasonable opportunity to prepare will be



49
afforded, and it must 'set forth the 
alleged misconduct with particularity.'" 
In re Gault. 387 U.S. 1, 33 (1967). The 
expansions of the charges against Mr. 
Gordon during the instructions to his 
jury offended the standards of fair 
notice that this Court has repeatedly 
held to be required by "the most basic 
notions of due process." Dunn v. United 
States. 442 U.S. 100, 106 (1979); DeJonge 
v. Oregon. 299 U.S. 353, 362 (1937).

Second, the same actions that denied 
Mr. Gordon his Sixth Amendment right to 
notice also denied him his Fifth Amend­
ment right to be charged only by a Grand 
Jury. Stirone v. United States. 361 U.S. 
212, 218-19 (1960).

Third, even if Mr. Gordon had 
received fair notice in his indictment of 
the charges eventually presented to his 
jury, the district court's broadening of



50
§ 1973i(c) and its creation of Alabama
law subjected Mr. Gordon to Ex Post Facto 
liability as condemned, e.q.. in Bouie v. 
City of Columbia. 378 U.S. 347 (1963).
The construction of both § 1973i(c) and
of the incorporated provisions of 
purported Alabama law was "unexpected and 
indefensible by reference to the law 
which had been expressed prior to the 
conduct in issue." Id., at 353-54; see 
also Marks v. United States. 430 U.S. 
188, 191, 196 (1977).

Fourth, the district court, by 
instructing the jury that proxy voting 
was illegal per se in Alabama and that 
all witnesses to the mailing envelope 
must personally observe the signature of 
any absentee voters, took from the jury 
the most crucial factual issues in 
petitioner's defense. Petitioner
contended (i) that proxy voting and the



51
manner in which petitioner acted as 
witness were widespread and accepted 
practices in Greene County and throughout 
much of the state, (ii) that Mr. Gordon, 
along with various experts, felt that 
such acts were legal in Alabama, and 
(iii) that there was no guidance from the 
Alabama courts or legislature on these 
issues. If the status of proxy voting, 
and petitioner's good-faith belief 
concerning its legality, had been left 
open for the jury's consideration, the 
jury might well have concluded that Mr. 
Gordon did not possess the criminal 
intent necessary to violate § 1973i(c). 
Even if one assumes arguendo that the 
district court's interpretation of § 
1973i(c) was correct, the instructions 
strictly construing Alabama law converted 
crucial facts at issue into virtual 
irrebuttable presumptions against Mr.



52
Gordon. Thereby, the government was 
relieved of the burden of proving Mr. 
Gordon guilty beyond a reasonable doubt, 
and Mr. Gordon was denied his right to 
due process. See generally. Sandstrom v, 
Montana. 442 U.S. 510 (1979).

CONCLUSION
For these reasons, the Court should 

grant petitioner a writ of certiorari and 
reverse the decision of the Court below. 
Dated: April 25, 1988

Respectfully submitted,
JULIUS L. CHAMBERS 
*C. LANI GUINIER 
JOHN CHARLES BOGER 
SIEGFRIED KNOPF 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

ATTORNEYS FOR PETITIONER
Ll a / aw trTi'cT1

*Attorney of Record



APPENDIX "A



la
UNITED STATES of America, 

Plaintiff-Appellee, 
v.

Spiver Whitney GORDON,
Defendant-Appellant.- 

No. 85-7726.
United States Court of Appeals, 

Eleventh Circuit.
June 2, 1987.

Before RONEY, Chief Judge, JOHNSON, 
Circuit Judge, and ESCHBACH*, Senior Circuit Judge.

PER CURIAM:
The defendant, Spiver Whitney

Gordon, was convicted, following a jury
trial in October 1985 in Tuscaloosa,
Alabama, on four counts: two counts of
mail fraud for placing in the mail an
envelope containing a fraudulently marked
*Honorable Jesse E. Eschbach, Senior U.S. 
Circuit Judge for the Seventh Circuit, 
sitting by designation.



2a
primary election ballot, 18 U.S.C.A. § 
1341; and two counts of furnishing false 
information to the Absentee Election 
Manager in order to permit a vote by 
absentee ballot in the Alabama Primary 
Election. 42 U.S.C.A. § 1973i(c). We
vacate and remand for an evidentiary 
hearing on Gordon's selective prosecution 
claim, and on his claim that it was 
discriminatory for the Government to use 
all six of its peremptory challenges to 
exclude every black venireperson from the 
petit jury. The four other claims 
asserted on appeal would not require a 
reversal.

I. Selective Prosecution Claim
The district court denied an 

evidentiary hearing on the selective 
prosecution claim. To support a defense 
of selective or discriminatory prosecu­
tion, a defendant must establish first,



3a
that he has been singled out for prosecu­
tion while others similarly situated have 
not generally been proceeded against for 
the type of conduct with which he has 
been charged, and second. that the 
decision to prosecute was invidious or in 
bad faith because it was based upon an 
impermissible factor such as race. See 
Wayte v. United States. 470 U.S. 598, 
608-09, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 
547 (1985); Oyler v. Boles. 368 U.S. 448, 
455-56, 82 S.Ct. 501, 505-06, 7 L.Ed.2d 
446 (1962) ; United States v. Pleasant. 
730 F .2d 657, 663 (11th Cir.), cert.
denied. 469 U.S. 869, 105 S.Ct. 216, 83
L.Ed.2d 146 (1984)? United States v.
Berrios. 501 F.2d 1207, 1211 (2d Cir. 
1974) . In an effort to support his 
claim, Gordon sought a hearing and 
disclosure of Government records based on 
affidavits and significant other evidence



4a
that show the Government chose to 
prosecute him and other black political 
leaders in Alabama's majority-black 
"Black Belt" counties for voting fraud, 
while not prosecuting county residents 
who were members of a rival white- 
dominated political party and committing 
similar election offenses.

The magistrate assigned to this case 
considered motions and evidence submitted 
by Gordon and other defendants regarding 
the selective prosecution claim. The 
magistrate found that the defendants 
"have presented some evidence of similar 
violations by other persons who have not 
yet been prosecuted." The magistrate 
went on to conclude "that the defendants 
have made a showing of a 'colorable 
entitlement' as to the first prong of the 
selective prosecution, however tenuous 
that showing may be." As to the second



5a
or bad faith prong of the selective 
prosecution test, the magistrate, despite 
noting that some affidavits referenced 
the illegal voting of absentee ballots of 
whites and that "no serious scholar would 
ever be tempted to point to the areas 
covered by these materials as paradigms 
of democratic government, either now or 
in the past," determined that the 
defendants presented insufficient direct 
evidence of prosecutorial invidiousness. 
The magistrate rejected a "results" test, 
whereby "invidiousness would be shown by 
virtue of the fact these defendants are 
being prosecuted while some others are 
not."

The district court adopted the 
magistrate's findings and recommenda­
tions. On appeal, the Government relies 
on the magistrate's recommendation, which 
found that Gordon met only the first



6a
prong of the selective prosecution test. 
Thus, the real nub of dispute is whether 
the district court erred in adopting the 
magistrate's recommendation that Gordon 
had not presented enough evidence to 
establish a "colorable basis" of in­
vidiousness .

The record reveals that the district 
court erred for two reasons in adopting 
the magistrate's recommendation as to the 
invidious prong. First. Gordon presented 
sufficient evidence to establish a 
"colorable entitlement" for a selective
prosecution claim, or as one court has
held, sufficient facts "to take the
question past the frivolous state and
raise[s] a reasonable doubt as to the
prosecutor's purpose." United States v. 
Hazel. 696 F.2d 473, 475 (6th Cir. 1983) 
(quoting United States v. Larson. 612 
F .2d 1301, 1304-05 (8th Cir.), cert.



7a
denied. 446 U.S. 936, 100 S.Ct. 2154, 64 
L.Ed.2d 789 (1980)). Gordon presents one 
piece of direct evidence, a statement 
made by a Department of Justice spokes­
person who allegedly explained to a 
college student that the investigations 
were part of a "new policy ... brought on 
by the 'arrogance on the part of blacks' 
in these counties." This statement 
standing alone would not be enough, but 
assumes significance in light of other 
evidence suggesting a pattern of Govern­
ment activity in the voting fraud cases 
that were prosecuted. Gordon presented 
evidence to show that the Government 
targeted only those counties where blacks 
were a majority, specifically targeting 
those counties where blacks since 1980 
had come to control some part of the 
county government. Within those coun­
ties, the individuals targeted were



8a
members of the black majority faction. 
The members of the rival white political 
organization assisted law enforcement 
officials in their investigations of the 
Greene County Civil League, the principal 
political organization representing 
blacks, of which Gordon was a leader.

The evidence submitted indicates 
that Gordon has sufficiently established 
the essential elements of the selective 
prosecution test to prove a "colorable 
entitlement" to the defense. United 
States v. Murdock. 548 F.2d 599 (5th Cir. 
1977) ; United States v. Berrigan. 482 
F .2d 171, 181 (3d Cir. 1973). Thus, 
Gordon is entitled to an evidentiary 
hearing on the selective prosecution 
claim so the full facts may be known. 
Gordon is entitled to discovery of the 
relevant Government documents relating to 
the local voting fraud cases the Govern­



9a
ment has prosecuted and any voting fraud 
complaints which they have decided not to 
pursue.

The second error the district court 
made in adopting the magistrate's 
recommendation on the absence of in­
vidiousness was the magistrate's rejec­
tion of racial impact or results evi­
dence. In deciding if a defendant has 
established selective prosecution, a 
court must undertake "a sensitive inquiry 
into such circumstantial and direct 
evidence of intent as may be available." 
Village of Arlington Heights v. Metro­
politan Housing Development Coro.. 429 
U.S. 252, 266, 97 S.Ct. 555, 564, 50 
L.Ed.2d 450 (1977). "Circumstantial 
evidence of invidious intent may include 
proof of disproportionate impact." 
Batson v. Kentucky. ___ U.S. , ,
106 S.Ct. 1712, 1721, 90 L.Ed.2d 69, 85



10a
(1986) (citing Washington v. Davis. 426 
U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 
L.Ed.2d 597 (1976)). Indeed, under some
circumstances proof of discriminatory 
impact "may for all practical purposes 
demonstrate unconstitutionality because 
in various circumstances the discrimina­
tion is very difficult to explain on 
nonracial grounds." Washington. 426 U.S. 
at 242, 96 S.Ct. at 2049. At the
evidentiary hearing on remand, the court 
must take into consideration this kind of 
evidence in deciding the selective 
prosecution claim.

II. Peremptory Challenges 
Despite repeated defense objections, 

the Government exercised its six peremp­
tory challenges to remove every black 
venireperson from Gordon's jury. Those 
peremptory strikes followed a recurrent 
pattern of exclusions of black venireper-



11a
sons in the Government's other voting 
fraud cases against black leaders. 
Gordon asserts a violation of the recent
case of Batson v. Kentucky. __ U.S. ___,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and 
the seminal case of Swain v. Alabama. 380 
U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, 
reh'q denied. 381 U.S. 921, 85 S.Ct. 
1528, 14 L.Ed.2d 442 (1965).

The district court denied Gordon's 
motion for dismissal of the indictment, 
for a mistrial, and for a hearing to 
determine the basis for the Government's 
use of peremptory challenges. The 
Government voluntarily stated its reasons 
for the strikes. Gordon requested a 
rebuttal hearing to challenge the 
Government's reasons. The court denied 
the motion and defense counsel then made 
a general proffer that they would be able 
to produce testimony "to the effect that



12a
even before the venire was brought into 
this courtroom on Monday morning, it was 
the intention of the United States 
Attorney to strike every black from this 
jury...." The district court, without 
giving any reasons, entered a written 
order denying Gordon's motion.

Gordon then petitioned this Court 
for a writ of mandamus and prohibition 
pending the Supreme Court's decision in 
Batson, or alternatively, for an order 
compelling a hearing concerning the 
strikes. At that juncture, the petition 
was denied.

Batson v. Kentucky was not available 
to the district court, being decided 
approximately six months after Gordon was 
convicted. In Batson, the Supreme Court 
removed Swain's burden reguiring proof 
over a number of cases of the Govern­
ment's discriminatory use of peremptory



13a
challenges. Batson allows a defendant to 
establish purposeful racial discrimina­
tion in the selection of the venire based 
solely on the facts of his own case. 
Gordon is entitled to make a Batson claim 
as a result of the Supreme Court's recent 
decision holding that Batson will be 
retroactively applied to cases pending on 
direct appeal. Griffith v, Kentucky. _
U.S. ____ , 107 S.ct. 708, 93 L.Ed.2d 649
(1987) .

Although the Government volunteered 
explanations for its peremptories, the 
district court failed to make any 
independent inquiry or allow Gordon the 
opportunity to offer rebuttal evidence 
pertaining to the Government's reasons. 
It is therefore necessary to remand this 
case to the district court to determine 
the facts concerning the Batson claim. 
It is important to emphasize, as we did



14a
in United States v. David. 803 F.2d 1567, 
1571 (11th Cir. 1986), that under Batson, 
the striking of a single black juror for 
a racial reason violates the Equal 
Protection Clause, even where other black 
jurors are seated, and even when there 
are valid reasons for the striking of 
some black jurors.

Because it was the standard ap­
plicable at the time, Gordon argues for 
an evidentiary hearing on his claim that 
the Government had systematically 
employed their peremptory challenges to 
disenfranchise blacks in other voting 
fraud cases. Swain. 380 U.S. at 223-4, 
85 S.Ct. at 837-8. Gordon informed the 
district court that in two similar voting 
fraud prosecutions, the Government had 
used five of six peremptory challenges to 
strike black jurors in one case and four 
of six to strike black jurors in the



15a
other. This proffer was sufficient under 
the circumstances to entitle Gordon to a 
hearing on his Swain claim. Therefore on 
remand, Gordon should be permitted to 
offer evidence in support of- his Swain 
claim. This hearing should be conducted 
in accordance with the guidelines set 
forth by this Court in Willis v. Zant. 
720 F .2d 1212, 1220-21 (11th Cir. 1983), 
cert, denied. 467 U.S. 1256, 104 S.Ct. 
3546, 3548, 82 L.Ed.2d 849, 851 (1984).

H I  • Other Claims
Gordon presents four other claims, 

none of which merit relief. Gordon 
argues that the district court erred when 
it instructed the jury that any violation 
of federal or state law would suffice to 
make out the intent required under the 
mail fraud statute, 18 U.S.C.A. § 1341, 
and the false information statute, 42 
U.S.C.A. § 1973i(c).



16a
In reviewing allegations of error in 

charging the jury this Court will examine 
the entire charge to determine whether, 
on the whole, the issues of law presented 
to the jury were adequate. United States 
v. Blanton. 793 F.2d 1553, 1560 (11th 
Cir. 1986) . The jury instructions, read 
in their entirety, accurately defined the 
elements of the mail fraud and false 
information statutes, upon which Gordon 
was convicted.

Gordon contends it was improper for 
the court to describe to the jury the 
procedure under the Alabama statutes for 
absentee voting. Gordon was charged with 
violating federal law by fraudulently 
misusing the Alabama absentee voting law 
in an election of candidates for a 
federal office where there was a use of 
the United States mails. There is 
nothing unusual abut a violation of a



17a
state statute being involved in a federal 
election prosecution. United States v. 
Odom. 736 F.2d 104, 116-17 (4th Cir. 
1984) . See also. Donsanto, Federal 
Jurisdiction Over Local Vote Fraud. 13 U. 
Balt. L. Rev. 1 (1983). The jury was 
entitled to know the state voting law, 
particularly in view of the extensive 
testimony about Alabama voting law. The 
court carefully separated the explana­
tions of Alabama voting law from the 
federal charges.

This decision disposes of the Gordon 
claim that the jury instructions con­
stituted a constructive amendment of the 
indictment.

Gordon claims there was insufficient 
evidence of his intent. The record, read 
most favorably to support the jury 
verdict, was sufficient to prove that 
Gordon participated in a scheme in which



18a
he fraudulently witnessed the signatures 
on the verification oaths of the ballots 
of Nebraska and Frankland Underwood 
without their consent and participation. 
These ballots were mailed and cast in the 
primary election of September 4, 1984. 
See Glasser v. United States. 315 U.S. 
60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 
(1942) ; United States v. Bell. 678 F.2d 
547, 549 (5th Cir. Unit B 1982)(en banc), 
aff'd on other grounds. 462 U.S. 356, 103 
S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Gordon claims the district court's 
modified Allen charge coerced the jury to 
render a guilty verdict. The instruction 
occurred after the jury had returned a 
partial verdict of not guilty on nine 
counts and after nine jurors had indi­
cated upon polling by the court that the 
jury would be unable to reach unanimous 
verdicts on the remaining counts. After



19a
consultation with counsel, the district 
court decided to bring the jury back for 
further deliberations and stated:

I direct and instruct you each 
to report back to this courthouse in 
Tuscaloosa and to the jury room and 
be in the jury room at the hour of 
nine o'clock, at which time I will 
then bring you back into the 
courtroom.

Then, ascertaining that all 
members of the jury are here, I will 
then instruct you to return to the 
jury room for additional delibera­
tions.

I want to make this further
observation. I don't want you to
think that I am not unmindful of the 
opinion that you have expressed to 
the Court in response to my inquiry. 
I thank you for your opinion.



20a
But I am the ultimate decision­

maker as far as this particular 
question is concerned. And I have 
formed an opinion that is perhaps 
different from many of you.

But in any event, it is my 
prerogative as Judge to make that 
decision, and my duty, if I think it 
is correct. And I do. And I have 
therefore made it.

And I hope each of you will 
have a good weekend, whatever is 
left of it. And Monday, I believe, 
is a holiday, at least for some.
The district court was entitled to 

encourage the jury to spend a reasonable 
amount of time deliberating, even after 
the jury indicated it was deadlocked 
after acquitting Gordon's co-defendant. 
Neither the above-mentioned instruction 
nor any other comment can be construed as



21a
coercive on the merits of the case. 
Indeed the jury found Gordon not guilty 
on five charges, and guilty of four. 
Moreover, the jury remained unable to 
reach a verdict on all the charges 
thereby further undermining the assertion 
that the jury was unduly influenced into 
reaching a verdict. United States v. 
Alonso. 740 F.2d 862, 878 (11th Cir. 
1984), cert, denied. 469 U.S. 1166, 105 
S.Ct. 928, 83 L.Ed.2d 939 (1985).

There is no merit to Gordon's claims 
that the district court erred in not 
sequestering the jury and in not declar­
ing a mistrial.

VACATED AND REMANDED.



APPENDIX



lb -
UNITED STATES of America, 

Plaintiff-Appellee, 
v.

Spiver Whitney GORDON, 
Defendant-Appellant.

No. 85-7726.
United States Court of Appeals, 

Eleventh Circuit.
Feb. 4, 1988.

ON PETITION FOR REHEARING 

PER CURIAM:
On June 2, 1987, this Court held,

inter alia, that there was sufficient 
evidence to support Spiver Whitney 
Gordon's convictions for mail fraud 
arising from the mailing of fraudulently 
marked absentee ballots. United States 
v. Gordon. 817 F.2d 1538 (11th Cir. 
1987). On June 24, 1987, the United 
States Supreme Court decided McNally v.



2b
United States. ____ U.S. ____, 107 S.Ct.
2875, 97 L .Ed.2d 292 (1987), which 
significantly changed the law of federal 
mail fraud in this circuit. On Gordon's 
motion for rehearing, it is apparent that 
Gordon's mail fraud convictions are 
inconsistent with the holding in McNally 
and must be reversed.

In McNally v. United States. ___
U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292
(1987), the Supreme Court held that the 
federal mail fraud statute, 18 U.S.C.A. § 
1341, did not proscribe a scheme or 
artifice to defraud the citizenry of the 
"intangible" right to honest Government.
The Court reviewed the history of the
mail fraud statute and concluded that
Congress intended to reach only those
schemes involving the deprivation of
money or property.



3b
Since the fraud charges against 

Gordon did not involve the deprivation of 
money or property, his mail fraud 
convictions under 18 U.S.C.A. § 1341 
would be invalid under McNally. Gordon 
was convicted on an indictment charging 
the use of the mails in furtherance of

a scheme or artifice to defraud the 
electors and residents of Greene 
County, and the people of the State 
of Alabama, of a fair and impartial 
election process, free from the 
procurement, marking, casting, and 
tabulation of false, illegal, 
spurious and fraudulent absentee 
ballots in connection with the 1984 
primary and run-off elections....

In prosecuting Gordon, the Government 
neither alleged nor attempted to prove 
that any person suffered a loss of money 
or property as a result of Gordon's



4b -
actions, but rather relied exclusively on 
a deprivation of intangible rights.

The prior law in this circuit which 
was the consensus position among the 
courts of appeal, was contrary to the 
McNally holding. See. e.g.. United
States v. O'Malley. 707 F.2d 1240, 1246-
48 (11th Cir. 1983) . See also McNally.
107 S.Ct. at 2882-85 nn.1-4 (Stevens, J. 
dissenting).

Gordon's convictions were not final 
at the time McNally was rendered because 
our prior decision had remanded the case 
to district court for an evidentiary 
hearing, and Gordon's time for filing a 
petition for writ of certiorari to the 
Supreme Court had not expired. Under
Griffith v. Kentucky. ___  U.S. ___ , 107
S.Ct. 708, 93 L. Ed. 2d 649 (1987), it is
clear that McNally should apply retro­
actively to this case. We take no



5b -
position on the retroactive application 
of McNally to a conviction which had 
become final prior that decision.

We requested the Government to 
respond to Gordon's petition for rehear­
ing. It argues that the intangible right 
of citizens to fair elections necessarily 
implicates the citizens' property right 
to a meaningful vote in such elections. 
The Government's contention, in essence, 
is that mail fraud cases involving 
election fraud are a hybrid of the 
intangible and the tangible, and thus 
withstand scrutiny under McNally. The 
McNally opinion, however, cites United 
States v. States. 488 F.2d 761 (8th Cir. 
1973), cert, denied. 417 F.2d 909, 94
S.Ct. 2605, 41 L.Ed.2d 212 (1974).
States. like this case, involved a 
conviction under Section 1341 based on 
the mailing of fraudulent absentee



6b -
ballots and involved no deprivation of 
money or property. The Court cited 
States as an example of a case employing 
the intangible rights doctrine and made 
no attempt to distinguish "voting" cases 
from other cases involving a deprivation 
of an intangible right. Based on this 
reference, the Supreme Court would seem 
to have repudiated the argument that 
election fraud cases involve more than an 
intangible right. Gordon's mail fraud 
convictions must be reversed.

Accordingly, that portion of our 
prior opinion relating to the validity of 
Gordon's mail fraud convictions is 
VACATED and Gordon's convictions on two 
counts of violating 18 U.S.C.A. § 1341 
are REVERSED. In all other respects this 
Court's prior opinion remains in full
force and effect.



7b -
VACATED and REMANDED in part and 

REVERSED in part.



APPENDIX "C"



1c

42 U.S.C. 1973i(c):
Whoever knowingly or willfully gives 
false information as to his name, address, 
or period of residence in the voting 
district for the purpose of establishing 
his eligibility to register or vote, or 
conspires with another individual for the 
purpose of encouraging his false 
registration to vote or illegal voting, or 
pays or offers to pay or accepts payment 
either for registration to vote or for 
voting shall be fined not more than 
$10,000 or imprisoned not more than five 
years, or both: Provided, however, That
this provision shall be applicable only to 
general, special, or primary elections 
held solely or in part for the purpose of 
selecting or electing any candidate for 
the office of President, Vice President,



2c
presidential elector, Member of the United 
States Senate, Member of the United States 
House of Representatives, Delegate from 
the District of Columbia, Guam, or the 
Virgin Islands, or Resident Commissioner 
of the Commonwealth of Puerto Rico.



APPENDIX "D"



Id

§ 17-10-7. Form of affidavit to be
printed on envelopes—  
General, special or
municipal elections.

Each absentee ballot shall be 
accompanied by an envelope upon which 
shall be printed an affidavit. This 
affidavit which shall be used in general, 
special or municipal elections shall be 
substantially as follows:

"State of Alabama
"County of ...............
"I, the undersigned, do swear (or 

affirm) that:
"(1) I am a resident of .........
county in the state of Alabama.
"(2) My place of residence in
Alabama is:

(street)
................... Alabama

(city or town)
"(3) My voting precinct (or place 
where I vote) is:................
"(4) My date of birth is:

(month) (day) (year)
"(5) I am entitled to vote an 
absentee ballot because:
"Check only one:
______  I have moved from Alabama
less than thirty days prior to the 

election.
_______  I will be out of the

or the state on election day. 
_______  I am physically

county



2d

incapacitated and will not be
able to vote in person on election 
day.

"I further swear (or affirm) that I 
have not voted nor will I vote in person 
in the election to which this ballot 
pertains.

"I have marked the enclosed absentee 
ballot voluntarily and that I have read 
or had read to me and understand the 
instructions accompanying this ballot nd 
that I have carefully complied with such 
instructions.

"Moreover, I further swear (or 
affirm) that all of the information given 
above is true and correct to the best of 
my knowledge and that I understand that 
by knowingly giving false information so 
as to vote illegally by absentee ballot 
that I shall be guilty of a misdemeanor 
which is punishable by a fine not to 
exceed $1,000.00 and/or confinement in 
the county jail for not more than six 
months.

(Signature or mark of voter.)
"Note: Your signatiire must be

witnessed by either: A notary public or
other officer authorized to acknowledge 
oaths or two witnesses 18 year of age or 
older.

"Sworn to and subscribed before me
this...... day of......19.................
I certify that the affiant is known (or 
made known) to me to be the identical 
party he claims to be.



................... (Signature of
Official)
(Title of Official)

- 3d -

(Address of Official

OR
"1st Witness

"2nd Witness

Signature

Print Name

Address

City Zip Code

Signature

Print Name

Address

City Zip Code"
(Acts 1975,No, 1147, p. 2251,§ 5;Acts
1980,No.80-732,p.1478,§ 4.)



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.—(212) 966-4177