Davis v. Mobile County Board of School Commissioners Motion to Advance and Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 98-6121

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

FRANK SMITH and CONNIE TYREE, 

Defendants-Appellants.

A DIRECT APPEAL OF A CRIMINAL CASE FROM 
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN 

DISTRICT OF ALABAMA, WESTERN DIVISION

REPLY BRIEF OF APPELLANTS

PAMELA S. KARLAN 
559 Nathan Abbott Wav 
Stanford, CA 94305-8610 
(650) 725-4851

ELAINE R. JONES 
Dire ctor- Counse 1 

NORMAN J. CHACHKIN 
JACQUELINE A. BERRIEN 
LAURA E. HANKINS 
NAACP Legal Defense &

COLLINS PETTAWAY, JR. 
Chestnut, Sanders, Sanders & 

Pettaway
1405 Jeff Davis Avenue 
Selma, AL 36702 
(334) 875-9264

ROBERT H. TURNER
Law Offices of Robert H. Turner
P.O. Box 929
MARION, AL 36756
(334) 683-4111Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

COUNSEL FOR APPELLANTS



CERTIFICATE OF TYPE SIZE AND STYLE

Pursuant to this Court’s Rule 28-2(d), counsel for appellants state that 

the size and style of type used in this brief is WordPerfect Dutch 801 Roman 

14 point.

1



TABLE OF CONTENTS

Page

Certificate of Type Size and Style ................................................................... j

Table of C on ten ts..............................................................................................  ji

Table of C ita tions................................................................................................. jv

Summary of the Argument .............................................................................  1

A rgum ent............................................................................................................. 2

I. The Government Engaged in a Racially and Politically

Selective Prosecution .............................................................................  2

II. There Was Literally No Evidence in the Record 

Regarding an Essential Element of the Crime Charged

in Counts 12 and 1 3 ................................................................................ 6

III. The District Court Misapplied the Sentencing G uidelines..............  9

A. The Correct Base Offense Level for the Conduct Of

Which These Appellants Were Convicted Was .......................  9

B. Appellant Tyree’s Position as a Volunteer Deputy Registrar

Did Not Significantly Facilitate Her Offense ........................  11

C. The District Court’s Failure to Make Specific

Findings Requires Reversing Its Other Enhancem ents............ 13

IV. Appellants Properly Raised a Meritorious

Multiplicity Claim .................................................................................... 14

u



V. Under the Circumstances of this Case, Appellants Were 

Unfairly Prejudiced by the Introduction of Evidence

Regarding Other Absentee Ballots ..................................................... 16

VI. The District Court’s Charge Permitted the Jury to Convict

Appellants Without Finding an Actual Lack of C o n se n t.................17

VII. The Government’s Misconduct with Regard to Burnette

Hutton Deprived Appellant Tyree of Her Right to Present

Witnesses in Her D efense......................................................................19

C onclusion.......................................................................................................... 21

Certificate of Service............................................................ following page 22

i n



TABLE OF CITATIONS

CASES

Elston v. Talladega County Board o f Education,

997 F.2d 1394 (11th Cir. 1993) ............................................................  3

Smith v. Meese,

821 F.2d 1484 (11th Cir. 1987) ................................ .....................  4.16

*United States v. Armstrong,

517 U.S. 456 (1996) ......................................................................  2, 3, 4

*United States v. Barakat,

130 F.3d 1448 (11th Cir. 1997) .....................................................  4, 12

United States v. Chemical Foundation, Inc.,

272 U.S. 1 (1926) ........................................................................  2, 3, 4

United States v. Cole,

41 F.3d 303 (7th Cir. 1994) ................................................... 10, 11, 12

United States v. Dunnigan,

507 U.S. 87 (1993) ........................................................................... 4?

United States v. Garrison,

133 F.3d 831 (11th Cir. 1998) .......................................................  4. 12

*United States v. Gordon,

817 F.2d 1538 (11th Cir. 1987),

cert, dismissed 487 U.S. 1265 (1988)............................................ passim

IV



CASES (continued)

United States v. Langford,

946 F.2d 798 (11th Cir. 1991),

cert, denied, 503 U.S. 960 (1992) ..........................................................  4

United States v. Poole,

878 F.2d 1389 (11th Cir. 1989) .......................................................  4, 8

Wayte v. United States,

470 U.S. 598 (1985) ......................................................................  2, 3, 4

STATUTES

18 U.S.C. § 371 (1994) .............................................................................  5> 16

42 U.S.C. § 1973i(c) (1 9 9 4 ).................................................................... passim

42 U.S.C. § 19731(c)(1) (1994)........................................................................  5

OTHER MATERIALS

U.S. Sentencing Commission, Guidelines Manual § 2H 2 .1 .................  5, 9

U.S. Sentencing Commission, Guidelines Manual § 3 B 1 .3 ............... passim (*)

(*) Denotes cases primarily relied upon

v



SUMMARY OF THE ARGUMENT

The opening brief filed on behalf of appellants Frank Smith and Connie 

Tyree thoroughly discusses the errors committed by the Magistrate Judge and 

District Judge who presided over the action below and argues for the reversal 

of the appellants’ convictions, or alternatively, for a remand for further 

proceedings on the issues which were erroneously decided. Specifically, the 

appellants have challenged the district court’s denial of their motion to dismiss 

on the ground of racially and politically selective prosecution; the sufficiency 

of evidence in support of Counts 12 and 13 of the indictment; evidentiary 

rulings by the district court concerning certain absentee ballots; the 

multiplicitous framing of the indictment; the violation of appellant Tyree’s 

right to present witnesses in her defense; the propriety of the trial judge’s 

charge to the jury; and the legality of the sentences imposed upon appellants 

Smith and Tyree.

The government’s response to these arguments, as set forth in their brief 

filed with this Court on August 31, 1998, mischaracterizes many of the 

appellants’ arguments, misstates the applicable law in several instances, and 

ultimately fails to address the serious issues raised in the appellants’ opening 

brief. This Reply Brief clarifies the positions of the Appellants that have been 

misconstrued by the government and identifies the serious deficiencies of the 

arguments presented in the government’s brief.

1



ARGUMENT

I. The Government Engaged in a Racially and Politically Selective 

Prosecution

As we explained in our opening brief, Magistrate Judge Putnam made

several critical mistakes of law in assessing appellants’ claim of racially and

politically selective prosecution. See Brief of Appellants at 26-31.

Nonetheless, the factual findings he made actually establish a case of racially

and politically selective prosecution.

While the Magistrate Judge may have committed legal error, the

government goes beyond error to blatant misstatement of the relevant law:

[UJnder the standard set forth by the Supreme Court in 
Armstrong, in order to prove a claim of selective prosecution, the 
defendants must present "clear and convincing evidence" that a 
federal prosecution "had a discriminatory effect and that it was 
motivated by a discriminatory purpose." Armstrong, supra, 116 
S.Ct. at 1486-7 (emphasis supplied), citing Wayte v. United States,
470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), and United 
States v. Chemical Foundation, Inc., 272 U.S. 1, 47 S.Ct. 1, 71 
L.Ed. 131 (1926).

Brief of Appellee at 31 (emphasis in the brief). The first phrase in quotation 

marks, "clear and convincing evidence," appears nowhere in United States v. 

Armstrong, 517 U.S. 456 (1996), Wayte v. United States, id., or United States v. 

Chemical Foundation, Inc., id. In fact, a computer search produces no 

decision in which the Supreme Court has ever stated that defendants claiming 

selective prosecution must prove their contention by "clear and convincing

2



evidence," which is a term of art.

Rather, Armstrong expressly states that "ordinary equal protection 

standards" should govern claims of selective prosecution. Armstrong, 517 U.S. 

at 465. Ordinary equal protection cases are governed by a preponderance of 

the evidence standard. See, e.g, Elston v. Talladega County Board of 

Education, 997 F.2d 1394, 1414 (11th Cir. 1993) (applying the preponderance 

of the evidence standard to an equal protection claim). That evidence must 

be "clear" -  the phrase Armstrong, Wayte, and Chemical Foundation actually 

use -  is simply not the same thing as saying that a heightened standard of 

proof applies to selective prosecution claims. The principle of deference to 

executive branch decisions generally, and prosecutorial decisions specifically, 

means that courts should not lightly cast aside the presumption of 

prosecutorial good-faith. But it is well established that the presumption must 

give way when defendants show, by a preponderance of the evidence, that the 

prosecution was infected by an illegitimate purpose and that it has had a 

racially or politically adverse impact.

The government’s argument regarding prosecutorial discretion to decide 

the timing and sequence of cases is similarly disingenuous. In our opening 

brief, we pointed out that while Magistrate Judge Putnam found that similarly 

situated individuals unaffiliated with the New South Coalition had not been 

prosecuted, see Brief of Appellants at 26 (citing his findings), he ultimately

3



discounted this factual finding because appellants had not shown that these 

individuals would not be prosecuted in the future. That requirement imposes 

an impossible burden on defendants claiming selective prosecution since, until 

the limitations period expires, it is always possible that the government will 

bring more prosecutions.

The government’s response to the appellants’ selective prosecution claim 

is unavailing. First, with regard to the government’s charging decisions, as the 

government points out, it has now indicted more individuals. See Brief of 

Appellee at 33.1 But they too are African Americans affiliated with the New 

South Coalition. More than four years after the election at issue, and despite 

the evidence referred to by Magistrate Judge Putnam, the government has not 

charged a single white individual or a single individual outside the "black 

majority faction", United States v. Gordon, 817 F. 2d 1538, 1540 (11th Cir. 

1987), cert, dismissed, 487 U.S. 1265 (1988), with vote fraud. Thus, the adverse

JThe government makes this point as it attempts to undermine the 

testimony of Spiver Gordon at the selective prosecution hearing. See Brief of 

Appellee at 33. Notably, (1) Mr. Gordon was not under indictment at the 

time he testified in this case; and (2) Mr. Gordon was the individual who 

successfully demonstrated the racial motivation of the government’s 

prosecutions in the 1980’s.

4



racial and political impact of the government’s prosecutorial selections is 

stronger today even than it was when the Magistrate Judge made his original 

findings.

Second, the government’s behavior at trial, where it again violated the 

equal protection clause by using its peremptory challenges in a racially 

discriminatory manner, strengthens appellants’ claim that this prosecution has 

been infected from beginning to end by impermissible racial purpose. See 

Brief of Appellants at 31-32. The government responds to this point with a 

mixture of disparaging2 and irrelevant3 observations. But nothing it says

See, e.g., Brief of Appellee at 35 ("While the undersigned cannot say 

what Judge Smith observed during the voir dire examination, he [the Judge] 

obviously wasn’t looking at Mr. Gray"). The government appears to be 

oblivious to the fact that Judge Smith, not Assistant United States Attorney 

Meadows, was the finder of fact during the Batson hearing.

3 No one disputes that juror inattentiveness can be a racially neutral 

reason for striking a venireperson. See Brief of Appellants at 31. In this case, 

however, Judge Smith found, as a matter of fact, that Mr. Gray was not 

inattentive. Thus, absent an appeal from Judge Smith’s finding concerning 

Mr. Gray’s demeanor (which would be reversible only if clearly erroneous), 

the government’s disagreement with that finding is irrelevant to this appeal.

5



undercuts the reality that, as noted in the appellants’ opening brief, Judge 

Smith found as a matter of fact that the stated justifications for two of the 

three strikes the government exercised against black venirepersons were 

"tenuous," 1SR-16, and that the third was factually unjustifiable and merely a 

pretext for discrimination, id. On this basis, Judge Smith correctly concluded 

that the government had violated Batson. The government’s Batson violation 

is clear evidence of its racially invidious purpose.

The government’s racially and politically discriminatory conduct in this 

case warrants the reversal of the appellants’ convictions, and entry of an order 

directing the district court to dismiss the indictment against them on the 

grounds of selective prosecution. In the alternative, the matter should be 

remanded for further proceedings on appellants’ claims of selective 

prosecution.

II. There Was Literally No Evidence in the Record Regarding an Essential

Element of the Crime Charged in Counts 12 and 13

The government’s argument regarding appellants’ claim of insufficient 

evidence to support appellant Tyree’s conviction on Counts 12 and 13 (the 

counts related to Shelton Braggs) rests on a misrepresentation of appellants’ 

argument and a misunderstanding of the relevant law. The government claims 

that it is "not required to negate whether Shelton Braggs, who did not testify 

at trial, did or did not give permission for Tyree to fill out an absentee ballot

6



application and affidavit at his direction." Brief of Appellee at 36. But that 

is not the question. By using the word "negate," the government sets up a 

straw man. It suggests that appellants are somehow claiming that there is a 

presumption that Braggs gave Tyree permission. Of course there is no such 

presumption. But it is equally clear, as Judge Smith correctly charged the jury 

at trial, that to convict a defendant of violating 42 U.S.C. § 1973i(c), the 

government "must prove, beyond a reasonable doubt, that the defendant under 

consideration knowingly and willfully signed the voter’s name on the affidavit 

envelope4 without the knowledge and consent of that voter." R20-1290 

(emphasis added). Thus, although it might be a violation of state law for an 

individual to sign another voter’s ballot affidavit or application even with the 

consent of that voter, that act would not constitute a federal crime. Put 

somewhat more concretely, if a voter had testified without contradiction or 

impeachment that he had directed Tyree to sign his voter affidavit for him, 

she would have been entitled to a directed verdict of acquittal.5

4 Or "the Application for Absentee Ballot," R20-1285.

5 Indeed, if the government believed its own argument, it is difficult to see

why it sought so hard to impeach the voters who testified at trial that they had 

consented to having Smith or Tyree assist them since whether they had 

consented or not would have been irrelevant to the government’s case.

7



The government concedes, as it must, that there was literally no 

testimony at trial regarding Braggs’ consent. Brief of Appellee at 19. Unlike 

the other six alleged "victim voters," Braggs did not testify. Nor did the 

government call any other witness on this indispensable element of its case. 

Thus, there was no evidence, direct or circumstantial, from which the jury 

could find, beyond a reasonable doubt, that Tyree performed any action 

without Braggs’ consent.

The government’s brief seeks to muddy this issue by conflating it with 

a different question — whether Tyree filled out any of the material on either 

the application or the affidavit. As we explained in our opening brief, there 

is evidence on this separate issue.6 But no amount of evidence that Tyree 

filled out portions of Braggs’ voting materials proves that she did so without 

his knowledge or consent. Indeed, nothing in the government’s brief explains 

how a juror could infer lack of knowledge or consent, particularly given the 

undisputed evidence in the record that Braggs had been Tyree’s boyfriend and 

had been living with her, R18-879-80. While the jury is free to choose

6 Tyree filled out the "administrative" portions of the application but did 

not sign the application, see R17-712-13, 719, 756; Tyree signed the ballot 

affidavit, R17-707.

8



between "reasonable conclusions to be drawn from the evidence presented at 

trial," United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989), those 

conclusions must be reasonable and they must be drawn from some evidence. 

In this case, there simply was no evidence regarding Braggs’ knowledge or 

consent and it would therefore be unreasonable for a juror to conclude that 

Tyree knowingly or willfully acted without his consent. Thus, appellant 

Tyree’s convictions on Counts 12 and 13 should be reversed and the district 

court should be directed to dismiss those counts due to the lack of evidence 

to support them.

III. The District Court Misapplied the Sentencing Guidelines

A. The Correct Base Offense Level for the Conduct Of Which These 

Appellants Were Convicted Was 6

The most striking thing about the government’s discussion of appellants’ 

sentences is its complete failure to address the question of the proper base 

offense level. As we explained in our opening brief, the applicable guideline, 

section 2H2.1 (a)(2) contains an exceptions clause. See Brief of Appellants at 

34-35. While election forgery, fraud or deceit generally merits a base offense 

level of 12, the base offense level is lowered to 6, if the defendant "(B) gave 

false information to establish eligibility to vote, or (C) voted more than once in 

a federal election." U.S. Sentencing Commission, Guidelines Manual §

9



2H2.1(a)(3) (1997) (emphasis added).

Both the district court and the government completely ignored the 

exceptions clause and the express language of section 2H2.1(a)(3). That 

section, which mandates a base offense level of six, uses language identical to 

the language used in the indictment to describe appellants’ substantive 

offenses. Thus, appellants were convicted of the conduct expressly assigned 

to the exceptions clause.

As to the question of base offense level, the government’s citation of 

United States v. Cole, 41 F.3d 303 (7th Cir. 1994), is completely misplaced. 

First, the proper base offense level for Cole’s crime was not even raised, let 

alone discussed or decided, by the Seventh Circuit’s opinion. Its focus was 

solely on whether the base offense level should have been enhanced. See 

Cole, 41 F.3d at 310.

Second, and more significantly, Cole engaged in different offense conduct 

than the appellants in this case. In addition to forbidding giving false 

information for the purpose of establishing eligibility to vote, 42 U.S.C. § 

1973i(c) can also be violated if an individual "pays or offers to pay or accepts 

payment either for registration to vote or for voting ...." When the language 

of Guideline 2H2.1 is superimposed on the statutory scheme, its scope 

becomes clear: violations of 42 U.S.C. § 1973i(c) that involve soliciting, 

demanding, or accepting something of value in return for voting and violations

10



of 42 U.S.C. § 1973i(c) that involve giving false information trigger a base 

offense level of 6; other violations -- including offering something of value to 

a voter -- consist of the kind of bribery or deceit that triggers a base offense 

level of 12. See also Brief of Appellants at 35-36.

The testimony at Cole's trial showed that, in addition to illegally filling 

out some voters’ ballots, "several witnesses testified that they were given beer 

or cigarettes from Cole or his associate, and one witness testified she also 

received a dollar in addition to cigarettes." Cole, 41 F.3d at 306. Thus, Cole 

committed the kind of fraud, bribery, or deceit that merits a base offense level 

of 12. By contrast, the appellants in this case were not alleged to have bribed 

anyone; thus, the acts which the appellants were charged with committing 

were different from Cole’s.

B. Appellant Tyree’s Position as a Volunteer Deputy Registrar Did Not 

Significantly Facilitate Her Offense

The government’s argument regarding the two-level enhancement of 

appellant Tyree’s sentence for abuse of trust consists of a citation to Cole and 

the allegation that she registered Sam Powell without his knowledge or 

permission. Neither contention merits the enhancement.

The entire discussion of abuse of trust in Cole consists of a single 

sentence: "The court did not err in finding Cole an organizer or leader of a 

conspiracy involving five or more participants, U.S.S.G. § 3Bl.l(a) (1991), and

11



in finding that as registrar of voters he violates a position of public trust, id. 

§ 3B1.3 (1991)." Cole, 41 F.3d at 310. The Seventh Circuit’s approach in Cole 

differs from the approach taken by this Court. Two cases from this Circuit 

decided after Cole squarely reject the proposition that an abuse of trust 

enhancement is appropriate simply because a defendant occupies a position 

of public trust at the time he commits an offense. As we explained in our 

opening brief, United States v. Garrison, 133 F.3d 831 (11th Cir. 1998), and 

United States v. Barakat, 130 F.3d 1448 (11th Cir. 1997), make clear that the 

relevant question is whether "the position of trust ... contributed in some 

significant way to facilitating the commission or concealment of the offense," 

Garrison, 133 F.3d at 837 (emphasis added).7 The fact that appellant Smith 

was convicted of identical offenses — without being in a position of trust — 

shows that "anyone" could commit the offense of conviction and thus that an 

abuse of trust enhancement is inappropriate. See Barakat, 130 F.3d at 1455.

Second, with regard to the government’s reliance on appellant Tyree’s 

"registration" of Sam Powell, Barakat is equally clear. Appellant Tyree was 

neither charged with nor convicted of any impropriety regarding Powell’s

7 We also reiterate that, given the circumstances of this case, Tyree’s 

position as a volunteer deputy registrar was not a position of public trust in 

the first place. See Brief of Appellants at 37-38.

12



registration. Thus, it cannot justify enhancement. See Barakat, 130 F.3d at 

1455 (emphasis added) ("the required connection" must be "between the abuse 

of the position of trust and the offense o f conviction" not other wrongful 

conduct). Moreover, the fact that the government’s case regarding Sam 

Powell’s vote was identical to its case involving voters Tyree was not alleged 

to have registered further undermines the government’s claim that her 

position as a volunteer deputy registrar "significantly facilitate^]" the offense 

of which she was convicted. Sentencing Guideline § 3B1.3.

C. The District Court’s Failure to Make Specific Findings Requires 

Reversing Its Other Enhancements

The government’s argument regarding the two other enhancements 

imposed by the district court — a two-level obstruction of justice enhancement 

for appellant Smith and a four-level leadership role enhancement for each 

appellant — fails to address the central problem with the district court’s 

decision: the court’s complete disregard of its obligation to make specific 

findings that would enable this Court to review its decisions. As we explained 

in our opening brief, the district court "must review the evidence and make 

independent findings" to justify sentencing enhancements. United States v. 

Dunnigan, 507 U.S. 87, 95 (1993). See Brief of Appellants at 40, 41-42. A 

district court may incorporate by reference statements in a presentence report. 

But in this case, the district court did not do even that. Rather, it simply

13



repeated the statutory boilerplate.

The government seeks to cure this failure by claiming that its Sentencing 

Memorandum and various facts in the record provide support for the district 

court’s decision. See Brief of Appellee at 39, 40. But nothing in the record 

shows that the district court in fact relied on these matters in rendering the 

sentences imposed here. Moreover, the district court made no findings to 

support its decision.

Thus, if this Court affirms the appellants’ convictions on any counts, it 

must nevertheless vacate the sentences imposed by Judge Smith and remand 

the case both for application of the correct base offense level and for proper 

factfinding with regard to any enhancements the district court imposes.

IV. Appellants Properly Raised a Meritorious Multiplicity Claim

Appellants are frankly mystified by the government’s allegation that their 

claim of multiplicity was not raised before the district court. Brief of Appellee 

at 40-41. In the Record Excerpts, we included the portion of counsel’s 

argument during the charging conference before the district court that clearly 

raised a claim of multiplicity:

... [T]he pattern in Counts Three through Thirteen, they charge 
making eligibility for an application in one count and the next 
count, making eligibility for an affidavit, no, for the same voter. 
However, the voting process for an absentee ballot, the application 
is part of the process. See it’s all part o f one process to vote....

What they’ve done, those counts apparently are duplication

14



in that, the process of voting is one process absentee, the 
application is one process, the affidavit is another process, their 
counting process, their canvasfs] process, is all one process. All of 
those should have been in one indictment because what they’re doing 
is they’re charging us twice for one conduct for one act o f voting, one 
voter.

R19-972-93 (emphasis added).

On the merits of appellants’ multiplicity claim, the government never 

responds to the key point: the "allowable unit of prosecution, United States v. 

Langford, 946 F.2d 798, 802 (11th Cir. 1991), cert, denied, 503 U.S. 960 (1992), 

in a voting fraud case "shall include all action necessary to make a vote 

effective," 42 U.S.C. § 19737(c)(1). Thus, all false information given with 

regard to one "voting opportunity" gives rise to one violation of the statute. 

A voter who illegally registers and then votes based on his illegal registration 

has committed one, and not two, offenses. The fact that a voter may commit 

more than one crime if he votes more than once on the basis of the same false 

information is irrelevant.

Thus, if the Court declines to reverse appellants’ convictions, it should 

nevertheless order the government to elect between the multiciplitous counts 

on which each appellant was convicted and vacate the multiplicitous 

convictions of appellants Smith and Tyree.

15



V. Under the Circumstances of this Case, Appellants Were Unfairly

Prejudiced by the Introduction of Evidence Regarding Other Absentee

Ballots

Appellants were political activists in a county in which absentee voting 

is a widespread and necessary part of the political process for African 

Americans. See Brief of Appellants at 6 (quoting from the Magistrate Judge’s 

Report). Their actions in encouraging and assisting absentee voting were 

constitutionally protected. Smith v. Meese, 821 F.2d 1484, 1489-90 (11th Cir. 

1987).

The government conceded at trial that it could not prove "anything 

illegal[]," R15-206, or even "improper," id. at 207, about the overwhelming bulk 

of the absentee ballots that appellant Tyree witnessed. Nonetheless, it 

introduced these ballot affidavits into evidence (Govt. Exh. 21), purportedly 

because they were "directly relevant to the charges contained in the conspiracy 

count." Brief of Appellee at 43.

But every conspiracy under 18 U.S.C. § 371 must have as its objective 

the achievement of some purpose that is illegal under federal law. The 

government fails to show how any ballot as to which there is nothing illegal 

or improper is probative evidence of an agreement to violate federal voting 

rights laws (a conspiracy), rather than evidence of concerted, constitutionally 

protected First Amendment activity. The government did not show that any

1 6



of the "voting activities which occurred at the Eutaw Activity Center," Brief of 

Appellee at 43 -  other than, at most, the witnessing of the "victim voter" 

ballots -- was actually illegal as a matter of federal law. So whether Tyree or 

Smith was directly involved in those activities was legally irrelevant to the 

conspiracy count.

But it did unfairly prejudice appellants. Reference to these other ballots 

was intended by the government to leave the impression that appellants were 

engaged in wholesale vote fraud, when the actual evidence at trial established 

that, at most, they violated federal law with regard to seven ballots. The jury 

might well have convicted appellants of "conspiracy to get a lot of absentee 

ballots cast" or "conspiracy to witness ballots in violation of Alabama law," 

neither of which is a federal crime.

VI. The District Court’s Charge Permitted the Jury to Convict Appellants

Without Finding an Actual Lack of Consent

As we explained in our opening brief, the district court’s discussion of 

Alabama law regarding so-called "proxy voting" might have misled the jury into 

thinking that it could convict appellants even if particular voters had permitted 

(or even directed) them to sign absentee ballot applications or voter affidavits. 

The jurors might well have thought that because a voter could not consent to 

such assistance under Alabama law, such ratification could not be consensual 

under federal law either. See Brief of Appellants at 49-51.

17



The government’s sole response to this argument is a citation to this 

Court’s opinion approving Judge Haltom’s charge in United States v. Gordon. 

See Brief of Appellee at 44-45. But Gordon, unlike the defendants in this case, 

was charged with violation of the federal mail fraud statute. See United States 

v. Gordon, 817 F.2d 1538,1539 (11th Cir. 1987). As this Court recognized, the 

theory of the government’s case was that "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." Id. at 1542 (emphasis added). Thus, a violation of Alabama law 

was essentially an element of Gordon’s offense.

In this case, by contrast, whether or not appellants violated Alabama law 

is legally irrelevant to the offenses with which they were charged, namely, 

providing false information, voting more than once, and conspiring to provide 

false information or vote more than once. None of those offenses requires 

showing that appellants misused Alabama law. Thus, especially given the 

contradictory evidence on whether certain voters actually did consent, see Brief 

of Appellants at 50-51, this Court cannot be sure that every juror concluded, 

beyond a reasonable doubt, that appellants knowingly and willfully cast the 

charged absentee ballots without the knowledge or consent of the nominal 

voters. This requires, at a minimum, that appellants’ convictions be reversed 

and the case remanded for anew trial at which the jury will be properly charged.

1 8



VII. The Government’s Misconduct with Regard to Burnette Hutton 

Deprived Appellant Tyree of Her Right to Present Witnesses in Her 

Defense

Count 7 of the indictment charged appellant Tyree with providing false 

information with regard to Sam Powell’s voter affidavit.8 At trial, Tyree 

sought to introduce the testimony of Burnette Hutton -  Sam Powell’s 

daughter -  that she had signed her father’s voter affidavit with his consent. 

But she was prevented from offering this extremely probative testimony by the 

government’s threat to prosecute Hutton for perjury for statements she had 

already made. Needless to say, the government discarded that threat as soon 

as Hutton invoked her Fifth Amendment right against self-incrimination and 

declined to testify on Tyree’s behalf.

Nothing in the government’s brief explains how the testimony Tyree 

proposed to offer -  first, that Hutton signed the affidavit and, second, that she 

did so with Powell’s consent -  was false. As for the first point, the 

government’s own expert confirmed Hutton. See R17-737. As for the second 

point, while Powell did deny giving Hutton such consent, R 16-438, it is also 

true that he was confused on several issues at trial, that he backed off

8 Tyree’s conduct with respect to Powell’s voter affidavit was also listed 

as an overt act in the conspiracy charged in Count 2.

19



somewhat on whether he was sure that he had never consented, see R 16-439, 

and that he acknowledged that Hutton had never done anything regarding his 

business affairs -  which she handled -  that he had not told her to do, see 

R 16-448. A jury might well have believed Hutton on this point. Hutton’s 

testimony would have created a reasonable doubt as to whether Tyree cast 

Powell's vote without his knowledge or consent.9

Moreover, nothing in the government’s brief explains how the 

prosecution’s cross-examination on this issue was in any way curtailed. Thus, 

the district court erred in refusing to admit her testimony from the selective 

prosecution hearing on this point when she declined to testify at the trial 

itself.

First, Hutton was prepared to testify that she cast the ballot with her 

father’s knowledge and consent. If the jury believed her testimony in its 

entirety, this would obviously have required acquitting Tyree. Second, even 

if the jury disbelieved that part of Hutton’s testimony that concerned Powell’s 

knowledge and consent, it could still have concluded that appellant Tyree 

believed Hutton, which would have negated the claim that Tyree knowingly 

and willfully witnessed a nonconsensual ballot.

20



CONCLUSION

For the reasons stated in this brief and in appellants’ opening brief, this 

Court should either reverse appellants’ convictions and direct the district court 

to dismiss the indictment against them on the grounds of selective prosecution 

or remand this case for further proceedings on appellants’ claims of selective 

prosecution. In the alternative, if this Court does not order the dismissal of 

the entire indictment, it should reverse appellant Tyree’s convictions on 

Counts 12 and 13 and direct the district court to dismiss those counts for 

insufficient evidence and should order the government to elect between the 

multiplicitous counts on which each appellant was convicted and vacate the 

multiplicitous convictions.

If this Court does not order the dismissal of the indictment in whole or 

in part, it should reverse appellants’ convictions on any improperly charged 

counts and remand the case for a new trial at which the jury will be properly 

instructed as to the law regarding 42 U.S.C. § 1973i(c). At that new trial, 

appellants should be permitted to present the improperly excluded evidence 

regarding Count 7 and the government should be precluded from using 

evidence regarding appellants’ constitutionally protected activities regarding 

the casting of other absentee ballots as evidence of wrongdoing in this case.

21



Finally, even if this Court affirms appellants’ convictions on any counts, 

it should nonetheless vacate their sentences and remand for resentencing 

under a correct interpretation of the Sentencing Guidelines.

Respectfully submitted,

PAMELA S. KARLAN 
559 Nathan Abbott Way 
Stanford, CA 94305-8610 
(650) 725-4851

ELAINE R. JONES 
Director-Counsel 

NORMAN J. CHACHKIN 
JACQUELINE A. BERRIEN 
LAURA E. HANKINS 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

COLLINS PETTAWAY, JR. 
Chestnut, Sanders, Sanders & 

Pettaway
1405 Jeff Davis Avenue 
Selma, AL 36702 
(334) 875-9264

ROBERT H. TURNER
Law Offices of Robert H. Turner
P.O. Box 929
MARION, AL 36756
(334) 683-4111

COUNSEL FOR APPELLANTS 

Dated: September 14, 1998

22



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Reply Brief of Appellants 

has been served upon the following by United States mail, first class, postage 

prepaid:

J. Patton Meadows, Esq. 
Assistant U.S. Attorney 
Vance Building 
1800 Fifth Avenue North 
Birmingham, AL 35203

Gregory M. Biggs, Esq.
Office of the Attorney General 
Alabama State House 
11 South Union Street 
Montgomery, AL 36130

fnsel for Appellants

Dated: September 14, 1998