Brief for Appellees

    IN TEE

UNITED STATES COURT OF APPEALS

FOR TEE

ELEVENTH CIRCUIT

No. 84-7286

I,TAGGIE S. BOZEI{AN,

Appellee

V.

EATON [tt. I"AUBERTT €t il.r

Appellants

On Appeal from the United States District Court
for the Middle District of Alabama

cv 83-H-579-N

BRIEF FOR APPELLEE

A}ITEONY G. AI,ISTERDAU JULIUS L. CEAUBERS
New York University LANI GUINIER
School of Law - NAACP Legal Defense Fund, Inc.
40 Washington Square South 99 Hudson Street
Room 327 New York, New York 10013
New York, New York 10012 16th Floor
1212) 598-2638 1212) 219- 1 9oo

SIEGFRIED KNOPF VAI{ZETTA PENN DURANT

555 California Street 639 tt{artha Street
Suite 5060 [rtontgon€rYr Alabama 36108
San Francisco, Cal. 94104 (205t 262-7337

ATTORNEYS FOR APPELLEE



,t

STATET,TENT REGARDING PREFERENCE

This appeal is entitled to preference as an appeal from a

grant of habeas corpus under 28 U.S.C. 52254-

tt



at

sfA8lttENr RqGARDTNG OryIr, ASGUUETr

Appellee respectfully requests oral argument. The legal

igeues are conplex and the 
"on".gl"nces 

for appellee are slgnlfi-
cant.

tlr



TABLE OF CONTENTS

STATET{ENT REGARDING PREFERENCE ....................... O

STATEITIENT REGARDING ORAL ARGUMENT .....................

rABLE oF CoNTENTS .....................................

TABLE oF CASES . .. .. .. . . . . .. . ... . .. . . . .. .. . . . . . . . .. . .. .

STATEITIENT OF TIIE ISSUES ...............................

STATEI|IENT oF THE cAsE . o. o......... o...................

I. PROCEEDINGS BELoW .... o.....o o i o o............

II. STATEII{ENT oF THE FACTS ..................o...

III. STATEII{ENT OF THE STANDARD OF REVIEW . . .. . .. . .

SUItll,lARY OF THE ARGUIT{ENT ...............................

STATEITIENT OF JURISDICTION .............................

ARGUIVIENT ......... o............. ' ' ' ' ' ' ' ' ' '' o ' '' ' ' ' ' ' ' ' '

I. THE DISTRICT COURT VIEWED THE EVIDENCE
IN THE LIGHT IITOST FAVORABLE TO IHE STATE
AND PROPERLY DETERI'IINED IT WAS INSUFFI-
CIENT AS A IUATTER OF FEDERAL CONSTITU-
TIONAL LAW ... ' '' ' ' ' ' o '' ' ' ' ' ' '' '' ' ' t ' ' ' ' ' ' ' ' '

A. The District Court Properly Applied
The Relevant Law To Conclude The
Evidence Was Insufficient . o.... o.... o..

Page

ii
iii
iv
vi
xi

1

1

3

9

10

12

12

B. In Enforcinq Jackson v. Virginia,
The District Court Was Not Requrred

12

13

20

22

To AccePt State Findings That The
Evidence Was Sufficient . ........... . " '

C. The District Court's View Of The
Evidence was Not Inconsistent wit'h
Factual Findings Of The Alabama
Court of Criminal Appeals ........... " '

II. THE INDICTMENT AGAINST IIIS. BOZEIIAN WAS

FATALLY DEFECTIVE IN THAT IT FAILED TO

INFORI4 IIER OF THE NATURE AND CAUSE OF
THE ACCUSATION ......... " " " "" " "" ""'

l.V-

27



A.

Page

The Indict,ment was Constitutionally
Defective In That It Failed To Pro-
vide Fair Notice Of A11 Of The
Charges On Which The JurY Was Per-
mitted To Return A Verdict of Guilt

The Indictment, Was FatallY Defec-
tive In That It, Failed To Include
Constitutionally Sufficient A1le-
gations Concerning The Charges Of
Fraud . . . o . . . . . . o . . . . . . . . . . . ' o t ' ' ' ' '

( 1 ) The factual allegations in
each count were constitu-
tionally insufficient to Pro-
vide notice of the nature and
cause of the at1egedlY fraudu-
lent conduct .....o.......o"' o..'

(2) Counts I and II were consti-
. tutionallY insufficient for

failure to allege the crucial
mental element of t'he offense
of fraudulent voting under
517-23-1 ............ o.. ""o""''

aaaa.aaaaaaa.aoaaoaaaa"t"""""""' t 47

SERVICE . . .. . . .. .. o. . . .. . . o o " ' ' ' " o " ' '

28

B.

CONCLUSION ...

CERTIFICATE OF

39

41

45

49



TABTE OF CASES

-

Case Page

Andrews v. State , 344 So.2d 533 Crim. App. ) ,
cert. deniedr 344 So.2d 538 (Ala. 19771 ............ 35

Bachellar v. tlaryland, 3g7 U.S. 564 (1970) ..""""" 40

Barbee v. State, 417 So.2d 611 (AIa. Crim.- --App . 1982) .................. o... ...... ... o.... .. ... 35

Boykin v. Alabama, 395 u.S. 238 (1959) ................ 39

Bozeman v. State, 401 So.2d 169i 454 U.S.
1058 ( 1981 ) . . ... . . .. .. . . .. . .. .. . .. .. . . . .. . . . . . ... .. 2 t5 r14

23,24,25 126

BfeWqf Vo WilliamS, 430 U.S. 387 (1977 ) ...............

BfOVrn V. A}}gn, 344 U.S. 443 ( 1953) ...................

Brorrrn v. St,ate, 24 So.2d 450 (A1a. APP. 1946) """"'
Carter v. State, 382 So.2d 610 (Ala. Crim.

App. 1980), cert. denied, 382 So.2d
614 (1980) .........o.""''"""""o..""'"t"'

cole v. Arkansas, 333 u.S. 196, 201 ( 1948) ........... o

County Court of Ulster County v. Allen, 442
U.S. 140 (1979) ....."'""""'..'"'""""""'

CUylef. V. SUlliVan, 446 U.S. 335 ( 1980) ...............

Davidson v. State, 351 So.2d 683 (Ala. Crim.
APP. 1977) .............."""""""""""o""

DeJonge v. oregon, 299 u.S. 353 (1937) ................

18,27

18

35

35

28,34

18,

39

19

35

34

Dickerson v. State of Alabama, 667 F.2d 1364
(11th Cir. 1982), cert. denied, 459 U'S'
gza (1982) ...................... o oo...... o.. o.. o... 18

Duncan v. Stynchcombe' 704 F.2d 1213' (11th
Cif. 1983J ..............o.......................o.. 14

Dunn v. United States, 442 U.S- 100 (1979) .....o..."' 34

Edwards v. State , 379 So.2d 338 (AIa. Crim.
App. 1g7g) .............""o'o""""""o"'o"" 35

-vI.



Case

Fendley v. State , 272 So.2d 600 (AIa. Crim'
ApP. 1973) .........."o"""""""""""to

FiEzgerald v. State, 303 So.2d 162 (Ala. Crim'
App. 1974) .............""".."""".."""

Goodloe v. Parrat'tr 505 F.2d 1041 (8th Cir'
1959) ............"""""""""t"t""""

Goodwin v. Balkomt,684 F.2d 794 (1lth Cir.
1982) , cert,. denied, 103 S.Ct. 1798 ( 1982) o " " " "

Gray v. Rains, 662 F.2d 589 (1Oth Cir. 1981) .""""'

Gunsby v. Wainwright, 596 F.2d 654 (5th Cir'
1g7g), cert. denied, 444 U.S. 946 (1979 ) ....... " ..

Harmon v. Statet 249 So.2d 369 (AIa. Crim.
App.)r cert. denied,- 249 So.2d 370 (Ala'
1971) ....o....,...o t"" "" o""" """ "'o " ""'

Holloway v. IrlcElroy, 632 F.2d 605 (5th Cir.
19801, cert. denied, 451 U.s. 1028 ( 1981 ) .. " " " "

In fe GaUItr 387 U.S. 1 (1967) ........................

In fe WinShip, 397 U.S. 358 ( 1970) . o..................

JaCkSOn V. Vifginia, 443 U.S. 307 (1979 ) ..............

Keck v. united st.ates, 172 U.S. 434 (1899) ............

La Vallee v. Delle Rose, 410 U-S. 690 (1973) ..o.."'o"

l'lagg io v. Fulf ord , U.S. , 76 L.Ed.2d
794 (1983) ............."""""""""""'o""

Nelson v. State, 278 So.2d 734 (Ala. Crim.
APp. 1973) ............o"""""o"o""".."""

Plunkett v. Estelle, 709 F-2d 1004 (5th Cir'
1983), cert. denied, 104 s.ct. 1000 ................

presnell v. Georgia, 439 u.S. 14 ( 1978) .. .. o.. o.......

Russell v. United Statesr 369 U.S. 749 (1962) ...... " o

Smith v. orGrady, 311 U.S. 329 ( 1941) ........ " " .. " '

Page

35

35

35

35

19

34

21

Pass im

36

21

35

38

34

34,36
41 ,46

28

18

38

18

17

-v11-



Case

Spray-Bilt. v. Intersoll-Rand World- F.2d 99 (5t,h Cir. 1955) .......

Street v. New York, 394 U.S. 576 (

Stromberg v. California, 283 U.S.

Sumner v. tlata , 449 U.S. 539 ( 1981

Trade, 350
aaaoaaaaaaaaaaaaa"t'

1969) ....
3s9 (1931)

) ........

aaaaoaaaaaa

o . . . . . . . . . 38 r 39 r 40

. . . .. o . . . . . 1 0 t12 t'l'l
20 r21 ,22,26

Paqe

19

40

35r36
41 t42

43

42

43

45 ,47

34 t45

41

46

Tarpley v. Estelle, 703 F.2d 157 (5th Cir'
1983), Ceft. denied, 104 S.Ct. 508 ................. 38

Terminiello v. chiCago , 337 u.S. 1 (.1949.) ............. 38r39r40

TOWnSend V. Sain, 31.2 U.S. 2g3 (1963) .....o......""' 18r22

United St,ates v. Berlin, 47 2 F. 2d 1 003 ( 2nd
Cif. 1973) ..... o................................... 46

United St,ates v. Car}I, 105 U.S. 511 (1882) """""' 46

United States v. Clark, 546 F.2d 1130 (5th
Cir. 1977) .....o.o"""""..""""..""o"o"' 42

United States v. Cruikshank, 92 U.S. 542
( 1875 ) . . . . . . ' ' ' ' ' t ' ' ' ' ' t ' t ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '

United States v. Curtis, 506 F.2d 985 (1Oth
Cir. 1974) ........."""'o""""""""""""

United States v. Diecidue, 603 F.2d 535 (5th
Cir. 1979) ........"""""""'o"""to""tt"'

United States v. Dorfman, 532 F. SupP' 1118
(N.D. I11. 1981) ...."""""'o""oo"'o"'o""'

United St.ates v. Dreyfus, 528 F.2d 1064 (5th
Cir. 1976) ........""""""""""""""""'

United States v. Haasr 583 F.2d 216, reh'
denied, 588 F.2d 829 (5th Cir. 1978),
cert. denied, 440 u.s. 981 ( 1979) ..................

united slates v. Hessr l24 U.S. 483 (1888) ........o...

United States v. Huff , 512 F.2d 66 ( 5th
cir. 1975) .................. o......................

- vlll



Caqe

United States v. Nance , 144 U.S. App- D.C.
477, 533 F.2d 699 (1976) ....o...........o..........

United States v. Outler, 659 F-2d 1305 (5th
Cir. unit B 1981 ), cert. denied, 445 U.S.
950 ( 1982 ) . .. .. .. . . . .. ' t " " t ' ' ' ' ' " ' ' ' ' ' ' ' " ' " ' t '

United States v. Ramos , 665 F.2d 469 ('l lth
Cir. 1982) .........o.....o""""""""""""'

united States v. Strauss, 283 F.2d 1955
(5th Cif . 1950) ......................... o..........

Von Atkinson v. Smith, 575 F.2d 819 (1Oth
Cir. 1978) ..............."""""""""""""

WainWfight V. SykeS , 433 U.S. 72 (1977 ) ...............

Wainwright v. Wittr 53 U.S.L.W.4108 (Jan.
21, 1985) ........ ''"""""'"tt""..'"""

Watson v. Jingo, 558 F.2d 330 (5th Cir. 1977 ) "..""'
Wilder v. State , 401 So.2d 151 (A1a. Crim.

App.), cert. denied, 401 So.2d 167 (A1a'
tgAt l, cert. denied, 454 U-S. 1057 ( 1982) .. " " " "

williams v. North Carolina, 317 U.S. 287 (1942') . " " "
Williams v. St,ate, 333 So.2d 610 (AIa. Crim'

App.)r affrdr 333 So.2d 613 (AIa.19761 o"""""'

i{ilSOn V. Stat,e, 52 Ala. 299 ( 1875) ...................

united states constitution and st'atut-eq

SiXth Amgndment ..............................o........

FOUftegnth Amendmgnt ..................................

28 U.S.C. 52241 (C) (3) ........ o........................

28 u.S.C. 52254 (d ) . . .. .. . . o . . o . . . . .. . . . .. . o . . o . . ... . ..

Fed. R. CiV. P. 54(b) ....... o o........................

Paqe

43

34t41
42t45

34 r41 ,45

34 r45

38

39

14

40

35

14

2 ,40 ,42

2

12

Passim

12

18

38

1X



Ahbgga Statutes

AIa. Acts 1980, No.

Ala. Code S1 3-5-1 1 5

Ala. Code Sl7-10-3

Ala. Code S17-10-6

AIa. Code S17-10-7

Ala. Code S17-23-l

Other AuthorltleP

75 Am. Jr.2d Trial
76 Am. Jr.2d Trial

80-732, p. 1478, SS3, 4 .......... o

( 1 9 7 5 ) . . . . . . . . . . . . . . " " " " " " "

(1975)............".."""".."' 11

(1975) ...............""t.."tt"'

(1975) ............"""""""t"

( 1975 ) . . . . . . . . . . . . . . ' ' ' ' ' ' ' ' t ' ' ' ' o '

5885 ................" "' ".."""
51111 .... .......... " " .. " " t " .. '

Page

31

11r29
31 t32

,29 r30

11 t29
30r31

11 ,29.
3o ,31

passim

40

40

-x



STATEI.{ENI OF TEE ISSUES

I.
whether the District Court correctly applied
the applicable law to f ind under Jackson v.
Virqiiia, 443 U.S. 307 (1979) tnat7E]iFn'-Til
Effi most favorabre to the prosecution,
the evidence was insufficient to support a
conviction?

II.
Whether an indicLment which fails to inform a
defendant of the nature and cause of the
accusation against her violates the Sixth
Amendment?

-xl.



UNITED

FOR

IN TEE

STATES COURT OF APPEALS

TEE ELEVENTE CIRCUIT

No. 84-7286

II{AGGIE S. BOZEUAN,

EALON TI{.

Vr

LA!{BERTT €t 01.1

AppeLlee

Appellants

On Appeal from
for the

the United States District Court
ttlddle Dlstrict of Alabama

cv 83-E-579-N

STATEIIENT OF TEts CASE

I. PROCEEDINGS BELOW

Ind icted on three count,s of vot ing f raud (Alabama Code

S17-23-1 (1975)), appellee Maggie S. Bozeman vras tried by jury in

the Circuit Court of Pickens County, Alabama. Her motion for a

directed verdict at the close of the Statets case was denied, and

the jury returned a single verdict of "guilty as charged" without

specifying the count or counts on which its verdict rested. I'ts.

Bozeman was sentenced to four years in prison. She appealed her

conviction, challenging inter alia the sufficiency of Ehe

evidence and the constitutionality of the indictment. The

Alabama Court of Criminal Appeals affirmed, holding that' the



verdict was,not patently against, the weight of the evidence" and

t,hat. the indictment $ras adequate. Bozeqgn v. State, 40I So'2d

L67,171 (1981). After denial of a motion for rehearing, the

issues were presented to t,he Alabama Supreme Court and the

Supreme Court of the United States, but both denied certiorari.

Bozeman v. state, 401 So.2d LTLi 454 U.S. 1058 (1981).

The instant federal habeas corpus proceeding was initiated

by the filing of a pe.tit,ion for a writ of Habeas corpus (herein-

af ter 'Petition" ) on June 8, 1983. On Janua'ry 20, 1984, l'Is'

Bozeman filed a Motion for summary Judgment asserting that, the

evidence offered at t,rial was insufficient, to prove guilt beyond

a reasonable doubt under t,he Due Process standards of Jschson %

Virginia, 443 U.S. 307. (I979), and that, t,he indictment was

insuf f icienE t,o inf orm her of the nature and cause of the

accusation against her as required by the Sixth and Fourteenth

Amendments. The district court granted t,he motion on April 13,

19 g 4 r and ordered t,hat t*ls. Bozeman's conviction be vacated - The

court held that, taken in the light most, favorable to the

prosecution, the evidence at, trial was insuff icient for any

rational trier of fact to find each element of the crime beyond a

reasonable doubt. The court also held that Ms. Bozemanrs

constitutional rights were violated because the indictment failed

t,o provi<ie any notice of a number of iriminal statutes and

t,heories of Iiability submitted to the jury'

2



This appeal was taken on ApriL 27, 1984. On llay L, 1984, the

district court granted aPpellants a stay of judgment pending

appeal.

II. STATET{ENT OF TEE FACTS

ltaggie S. Bozeman, a black school teacher, NAACP Branch

presidentr dnd long-giln. civil rights activist, was convicted by

an al1-white jury of violating Alabama Code 517-23-1 because of

her alleged participation in an effort to assist elderly and

illiterate black voters to cast absentee ballots in the Demo-

crat,ic Primary Run-Of f of Sept,ember 26, 1978 (hereinafter

"run-of f t') The three count, indictment, charged that she:

COUNT ONE

did vote more than once t ot did deposit more
than one ballot for the same office as her
vote t ot did vote iIlegally or fraudulent'Iy,
in the Democratic Primary Run-off Election of
September 26, L978,

COUNT T!{O

did vote more than once as an absentee voter,
or did deposit more than one absentee ballot
for t,he sahe of f ice or off ices as her voEe t oE
did cast illegaI or fraudulent absentee
ballots, in tha Democratic Primary Run-off
Election of SePtember 26, L978,

3



COUNT THREE

did cast illegal or fraudulent absentee
ballots in the Democratic Primary Run-off
Election of Sept'ember 26, 1978, in Lhat she
did deposit with the Pickens County Circuit
C1erk, absentee ballot,s which vrere fraudulent
and which she knew to be fraudulent, against
Ehe peace and dignity of the State of
AIabama.

ITr. 211'

At trial the prosecution int,roduced thirty-nine absentee

ballots, TE. 41, and claimed that trls. Bozeman had participated in

the voting of these ballots in violation of S17-23-1. It was

undisputed that each ballot had been cast in the run-off r €tDd

purport,ed t.o be the vote of a different, black elderly resident of

Pickens County.

No evidence was present,ed that lls. Bozeman had cast or

participat,ed in t,he casting, f illing out or procurement of any of

the thirty-nine absentee ballots. Indeed there is nothing in the

record to indicate who cast t,hose baIlots. Tr. 2L. The tran-

script is also silent as to whether I'ls. Bozeman vot,ed even once

in the run-off.
The prosecution hinged its case on evidence that tils. Bozeman

played a minor role in the not,arizing of the 39 absentee ballots,

and contended that her role in the notarizing gras sufficient to

The following abbreviations
Court trial transcriPt; "Hrg.
Judge Truman Hobbsi 'R." for

will be used: "Tr." for Circuit
Tr.'t f or Hearing before Dist.rict

Record on Appeal.

4



warrant her conviction under 517-23-1, because the voters did not

appear before the notary. Tr. 195-197; g!. Tr. 90, 105-106.

District Attorney Johnston, in h is response to t'ls. Bozeman I s

moti6n for a directed verdict at t,he close of the Staters case,

claimed that the thirty-nine absent,ee ballots 'were not properly

notarized, and in that Sense, they were fraudulent." Tr. 195. He

staEed t,hat',the act of the Defendant in arranging the conference

lat which the ballots srere notarizedl and in participating in the

presentation of the ba.llots to [the notary] to be notarized was

fraud." Tr. 195.

The prosecution called only nine of the thirty-nine absentee

voters to t,estify. Each of t.hese witnesses tras elderly, of poor

memory, illiterate or semi-literate, and Iacking in even a

rudimentary knowledge of voting or notarizing procedures. The

Alabama Court of Criminals Appeals found t.heir testimony confu-

sing in several instances. 401 s.2d at 170. The court below

found that most of their testimony did not concern Ms. Bozeman,

R. L66, and when it, did it was "simply incomprehensible.'R. 168.

Nevertheless, insofar as any synthesis could be made of the

individual testimony, the court, below construed it, in the light

most favorable to the prosecution.

It. is uncontested that only two of the nine voters, Ivls.

Sophia Spann and Ms. Lou Sommerville, gave evidence of any

contact with Ms. Bozeman regarding absentee voting.2 (Prosecu-

Ir,ls. Lucille Harris (Tr. 189) and Ms. Maudine Latham (Tr. 91-93)

5



tion's closing argument, Record on Appeal, Volume 3 of 3, at 26.')

The court below found that no connection was drawn by even these

voters between I{s. Bozeman and any of the absentee ballots cast

in the run-off.3
The court found that rnot one of the elderly voters testi-

fied that Bozeman ever came to see him or her about voting in

connection with the runoff," R. 165, and that the only evidence

against l,ls. Bozeman was the testimony of Paul Rollins, a notary

from Tuscaloosa. t{r.. Roltins' testimony was that }ls. Bozeman was

one of a group of women who brought ballots to be notarized, that

she may have called to arrange the meet,ing, and that she was

present when the notary notarized the ballots afEer the women as

a group assured him the signat,ures were genuine. Id.4 The

testified to never having seen the absentee ballot introduced
into evidence as their vote. l,ts. Anne Billups (Tr. 97-981, t'ts.
[lattie Gipson (Tr. 110 ), ]ls. Janie Richey (Tr. 127_), and l'ls.
Fronnie nite (Tr. I35-I37, 148, 151) each remembered voting by
absentee ballot in the run-off . l'1r. Nat Dancy (Tr. 113) did not
provide any coherent, testimony whatever on the way in which he
voted in the run-off.

Ms. Spann testified that she did not sign an aPplication or a
ballotl and was told that an absentee ballot was cast in her name
when she went to her usual polling place. The court below found
that "She stated that Bozeman came at some time prior to the
run-off and asked if Spann wanted to vote absentee and Spann said
she did not. JuIia Wilder witnessed Spannfs aPplication." R.
I59. t'1s. Sommerville stated in an out-of-court "deposition" that
lrls. Bozeman "may have filIed in her ballot and that she never
signed the ballot." R. 169. The deposition was not admitted
int-o evidence, id., and, at trial the witness vehemently denied
its contents. 

=d.-Mr. Rollins testified that. he notarized the thirty-nine ballots
in his office in Tuscaloosa without the voters being Present. TE.
56-64. He testif ied that I'ls. Bozeman, with three or four other

6



district court found t,haL all other circumstant,ial indicat,ions of

guilt were stricken or were ruled inadmissible. R. L72. The

circumst,ant.ial evidence to which the court referred $ras the

testimony of t,he court clerk and the t,estimony of ti{rs. Lou

Sommerville. The court found with regard t,o t,he clerk:

Janice Tilley, the court c1erk, testified that
Bozeman came in several times to pick up
applications for absentee ballots. This was
entirely Iegal. She also stated that one
t ime 7 j us t, pr ior t,o the ..run of f , Bozeman and
Wilder came together in a car, although only
Wilddr iarne into the office. Upon objection by
defense counsel, however, the trial judge
struck most of this testimony, including all
references to Wilder. The only testimony that
was not st,ricken was that Bozeman was in a car
alone and did not come inside.

The court

ba1lot hras

attempted

R. 166

found that Mrs, Sommerville's testimony about, her

incomprehensible, in part. because the Prosecution

to introduce evidence connecting l'ls. Bozeman with Mrs.

Sommerville's absent,ee ballot by reading t,o the jury notes pur-

porting to be the transcript, of an out-of-court "deposition" of

Flrs. Sommerville conducted erithout an attorney present, for either

vromen, was present in the room when he was notarizing the
ballots. Tr. 57. But l,tr. Rollins denied Ehat Ms. Bozeman
personally requested him to not,arize t,he ballots. Tr. 59, 60,
62, 64. He also stated that he had no memory of [tls. Bozeman
representing to him that the signatures on the ballots were
genuine. Tr. 73-74. All Ehe prosecution could elicit from l'1r.
Rollins was that Ms. Bozeman and t.he ot,her women present at the
notarizing were 'toget,her. " Tr. 50-61 , 62, 64, 7L.



the witness or MS. Bozeman.5 On the stand, MrS. Sommerville

test,ified that l,[s. Bozeman had never signed anything for her, and

denied ever giving a deposition. R. 169. The court determined

Ehat "Lou Sommervillets deposition was never placed in evidence

and would not have been admissible as substant,ive evidence

anyway.' R. 172.

The district court concluded:

Although there was convincing evidence to show
that the ballots were i1legaIIy cast, there
was no evidence of intent on Bozeman's part
and no evidence that she forged or helped to
forge the ballots. There is no evidence that
she t,ook applicat,ions to any of the votersr oE
that she helped any of the voters fill out an
application or ballot, t ot that she returned an
applicat.ion or ballot for any of the vot'ers,
and no ballot was mailed to her residence.
Thus, there was no evidence that Bozeman
realized when she accompanied Wilder and
others to the office of Rollins that the
ballots she helped to 9et notarized were
fraudulent.

R, 172.

5 testifying in person, Mrs. Somerville vehemently challenged the
veracity of the notes represented by the prosecutor to be a
transcript of her out-of-court statements, and st.eadfastly denied
that l'Is. Bozeman was involved in any way with Mrs. Sommervillers
voting activit,ies. Tr. 163, L69, I73, 174, 175. According to the
out-of-court st.atements, Ms. Bozeman aided Mrs. Sommerville to
fill out an application for an absentee ballot in order that Mrs.
Sommerville could vote by absentee ballot in the run-off. TE.
151, 169. Taken in the light most favorable to the prosecution,
even the out-of-court st,atements -- which were neit,her admitted
nor admissible in evidence showed only that, Ivls. Bozeman aided
Mrs. Sommerville to engage in lawful voting activities wiE,h the
latterrs knowledge and consent,

8



Af ter f irst determining t,hat. Ms. Bozeman had exhausted all
her state remedies, the dist,rict court applied the ggsEeg v.

Virgiqia sE,andard and held the evidence insufficient for a

rational trier of fact, to find guilt beyond a reasonable doubt.

The court also ruled that the indicEment was constitutionally
defective.

III. STATEI{ENT OF TTIE STNIDARD OF REVIEW

Appellants I explicit contentions on appeal are that the

district court failed to observe rules prescribed by statute and

caselaw for analyzing const,itutional issues presented in federal

habeas corpus proceedings. The st,andard of review of these

asserted errors is whether the district court disregarded

applicable legal principles in its analysis of the const,ituEional

merits of the case. Appellants do not explicitly contend that if
t,he district court analyzed Ms. Bozeman I s .f acf son v. Virginia
claim according to the applicable legal principles, it erred in
finding const.itutionally insufficient, evidence t.o sustain her

conviction. If this contention is nevertheless implied in
appellantsr argumenEs, the standard of review is whether the

dist.rict court's conclusion is fairly supported by the record as

a whole.

9



SUIIMARY OF ARGU!'IENT

I. Appellantst submission that, the district court erred

under Sumner v. Flat,a and 28 U.S.C. 52254(d) in f ailing to defer

to state-court fact findlngs (or to explain its refusal to do so)

when adjudicating trts. Bozemants E$ggg claim is utterly baseless

on this record and in law. In the first place, the district

court made no findings of historical fact that differ materially

from those of t,he stat,e court,s, it disagreed only with the state

courts r' ultimat,e conclusions regarding the constitutional

sufficiency of the evidence. In Ehe second placer state-court

fact findings that lack the minimal evidentiary support demanded

bytheconstitutiona1ru1eof@se1f-evident1y
fall outside t,he scope of the 'determination[s] ... on the merits

of a factual issuen which are "presumed to be correct' under 28

u.s.c. s2254(d), because, by definition, they are "not fairly

supported by the recordrn 28 U.S.C. 52254(d)(8). Thus, the

district courtrs explicit conclusion that there was no constitu-

tionally sufficient evidence to sustain }ls. Bozemanrs conviction

fully satisfied Sumner and 52254(d) at the same time that it

established a Jackson violation.
The district court properly conducted an independent review

of t,he state-court record as required by Jackson. Its determina-

tion t,hat, the evidence, Eaken in the light most favorable to the

prosecution, was insufficient t,o sustain a conviction is amply

t0



support,ed by the record as a whole, and is not based on any

. factual findings inconsistent with the Alabama Court of Criminal

Appeals' opinion. Appellants t effort to create such inconsisten-

cies by pointing to the trivially different phraseologies used by

the district court, and by the court of criminal Appeals in

summarizing the trial transcript will not withstand analysis.

II. The district court found that the trial judge instruct-

ed the jury on four statutes, Ala. Code 517-10-3 (1975) [miscited

by the trial judge as 517-23-31, Tr. 202i AIa. Code 517-10-5

(1975) [miscited by the trial judge as S17-10-7)t Tr. 202-203i

Ala. code s17-10-7 (1975), Tr. 203-204i and AIa. code s13-5-115

(1975), Tr. 204i and on the offense of conspiracy, Tr. 206. The

jury was further instruct,ed that Proof that Ms. Bozeman had

commited. any aCL trnOE authOrized by ... or ... cOntrary tO' any

Iaw would constitute an "i1legal" act warranting her conviction

under s17-23-1. Tr. 201. The effeCt, Of theSe inStructions was to

make a violation of each of the other statutes a separate ground

for liability under SI7-23-L. Yet the indicEment contained no

allegat.ions that }ls. Bozeman had violat,ed those other st'atuEes or

had engaged in act,s which would constit,ute violations of them.

For these reasons the district court correctly held that the

indictment failed E,o provide notice of the offenses for which t'ls.

Bozemanrs conviction was actually sought and that, her conviction

vras accordingly obtained in violation of due process.

1l



I.

STATEIIENT OF JURISDICTION

The district court, had jurisdiction under 28 U.S.C.

52241(c)(3). The district court's final judgment was cert,ified

pursuant to Fed. R. Civ. P. 54(b).

ARGUI.IENT

THE DISTRICT COURT VIEWED TIIE EVIDENCE IN TEE LIGET II{OST
FAVORABLE TO TEE STATE AND PROPERLY DETERI{INED IT WAS
INSUFFICIENT AS A I,IATTER OF FEDERAL CONSTITUTIONAL.LAW.

The district court held under {g$g9g v. Virginia, 443 U.S.

307 (1g7g), that no rational trier of fact could have found Ms.

Bozeman guilty of the offense charged. Appellants apparently do

not seek this Court's review of t.he correctness of.. that conclu-

sion upon the evidence revealed by the trial record. Rather,

they invoke .9gg!g5 v. EB!g, 449 U.S. 539 ( 1981), to contend that

the district court "inexplicablyn ignored factual findings of

the Alabama Court of Criminal Appeals (Brief at 19-20) and failed
to ident,ify its reason for doing sor inasmuch as it, did not

specify the particular exception to 28 U.S.C. 52254(d)r5 on which

it relied. Appellants also contend that the district court did

not view all the evidence in the light most favorable to Ehe

prosecution.

Section 2254(d) provides that, subject to
federal habeas corpus courts shalI accept
determinations made by state courts.

enumeraEed except, ions,
as correct the factual

12



The District Court Properly Applied The Relevant Law to
Conclude The Evidence Was Insufficlent

In .{gg!so!. v. fi5g!31;!3., the Supreme Court established the

standard by which federal habeas courts should measure the

const,iEutional suff iciency of evidence in st.ate criminal prosecu-

tions. Jackson analysis begins with an identification of the

elements of the crime under state 1aw. It then requires an

examinat,ion of the record evidence with reference to each element

of the crime, deferring to factual findings of the trial .court or

jury and resolving all disputes in favor of the prosecution. It

ends with a determination wheEherr on t,his evidence, a rational

trier of fact could find every element of the crime proved beyond

a reasonable doubt. 443 U.S. at 318-19.

In the present, case, the district court scrupulously

followed the J=g!1o-[ standard. It f irst outlined the J_ackson

ruler €xplaining that, 'a mere tmodicumr of evidence is insuffi-

cient. n R. 170. See Jackson v. gi-fg]-It!J suPra, 443 U.S. at

320. It, next ,iletermined the elements of the crime under Alabama

Iaw, quoting t,he language of the st,atute under which !1s. Bozeman

was charged, Alabama Code S17-23-1 (1975):

"t[a]ny person who votes more than once at any
election held in t ts more
than one ballot for the same office as his
vote at such election, or knowingly attempts
t,o vote when he is not entiE[Ei-E6-do sor or
is guilty of any kind of illegal or fraudulent
voting' is gulrty of
emphasis added. )

A.

13



The court referred to relevant state case law holding that "rthe

words "iIIegal or fraudulent" . . . are. . . descriptive of the

intent necessary for the commission of the offense, t' and that n I

[t]he offense denounced by the statute. . . is voting more than

Ongert ... Or vOting when the vOter iS not entitled tO so.n R.
.,

1't-1.' The two essential elements of knowledge or jglgg! to carry

out i1legaI_ voting act,iviEv vrere thus isolated, and the court

t,hen examined Ehe evidence in Eggg to determine whether these

elements were proved. R. 171-73.

It, expressly started from the premise that, under Jackson,

the evidence must be "viewed in a lighE mosC favorable to the

prosecution. . . .' R. 170. It fUrther recognized that n Ii]n
determining whet,her the evidence established Ithe] ... elements

[of the crime as defined by state law], the court may not resolve

issues of credibility. DuncaTr [v. Stlnchcombe] , 704 F.2d [1213tJ

at 1215 t(11th Cir. 1983)1. Thus, where the evidence conflicts

the court must assume thaE the jury accepted the prosecutionts

version, and must defer to thaE result. 443 U.S. at 325." Id.

The elements of the offense Proscribed by S17-23-1 are employing
fraud to vote more than once. Wilson v. Stat,e, 52 Ala. 299t 303
(1875); wilder V. state, 401 5612A-151r-T6T--(AIa. crim. APP.),
cert. denT6?Ii-401 s6F2ttoz (A1a. 1981), cert. denie!, 454 u.s.-1T'57 rITSZr.

14



Reviewing the trial transcript with these principles in

mind, the district court f ound t.hat t,he only evidence of f ered

against I{s. Bozeman $ras that she: (i) picked uP "Ia]pproxi-

mately 23 to 30 applications" for absentee ballots from the

circuit clerk's office during the week preceding the run-off, Tr.

18; (ii) was present with three or four other women, who did not

include the voEers, dt the notarizing of some absentee ballots

which were cast in the run-off, Tr. 57i (iii) may have made a

t.elephone call to Ehe notary "pert'aining to ballotsrtr Tr' 76'77i

and (iv) spoke to prosecution witness Ms. sophia spann about

absentee voting when "it wasn't voting timer" Tr. 184. Addition-

allyr t.he court found t.hat there was evidence presented by the

prosecution but not admiEted by the trial judge: (v) t'hat lls'

Bozeman aided FlS. Lou SommerviIle, with llls ' Sommerville's

consent, to fill out an application for an absentee ballot, Tr.

161-162, 169i and 1vi) that in an election held prior to the

run-of f., lrls. Bozeman may have aided l,ts. sommerville to f ill out

an absentee ba11ot,, TE. 173-174, 176-77. Finally, the court

observed that evidence on which the state relied in the proceed-

ings below had been stricken from the record by the trial

judge.S R.171-172.

In the proceeding below, appellants stated that. the testimony- at
trial s[rowed that Ms. Bozeman "went to the courthouse with Ju1ia
Wilder the day that she carried atl these thirty-five or fort'y
f raudulent Uittots up t,here and deposited them in the clerk's
off ice." (Recrcrd on Ap-peal, vol. 2 of 3 at 22-23). The district
court found that the [6stimony to which appellants referred had
been stricken and the jury instructed to disregard it. R' 172'

15



At trial the prosecution had contended that the evidence of

Ms. Bozeman's presence at the notarization vras sufficient to

establish culpability under S17-23-1 because the voters were not

bef ore the notary. Tr. 195'-97. Alternatively, in the court

belowr appellant.s argued that there was sufficient evidence to

convict Ms. Bozeman of conspiracyt ot aiding and abetting.

(Record on Appeal, Vol. 2 of 3, at 22-23). The district court

conscientiously reviewed the state court record in the light most

favorable to both theories, and rejected both as unsupport,ed by

the evidence under the standards of Jackson v. v-gs.iglE. R.

17 2-17 4 .

Specif icalIy:

rAtthough there vras convincing evi_dence to
show t,hat, Ehe t 39I ballots were illegally
cast, there ivas no evidence of intent on
Bozemanrs part and no evidence Ehat she torgecl
oE EdI6?a
e ions to anY of
the voters ' or Ehat she helped any of the
voters f ill out, an apPlicat,ion or ballot'r oE
that she returned an apPlication or ballot for
any of the voters, and no ballot was mailed to
her residence. r!g"r 

-that Bozeman realized when she accomPanred

het, she helped to get
-flft-emEh'as-is

Even considering the excluded
show that Ms. Bozeman or Ms.
2t-23.

Eestimony, Ehere was no attemPt to
Wilder deposited any bal1ots. TE.

15



Similarly, even under appellantsr theory of aiding and abetting'
nthere ... was nO evidenCe of int,ent." R. 173. The diStriCt

court concluded that,:

trThe evidence did not show Bozeman to have
played any role in the Process of ordering,
collecting t ox f illing out the ballot's. The
record alio lacks anv Lvidence of any contAAE
EAffiBo,zemE-enA
ffiu5, there is no evidence to
indicate Ehat Bozeman knew tne balrots E,o De

lEua

Since on this record 'no rrational trier of fact could have found

the essential elements of the crime beyond a reasonable doubtrr"

R. 170 | the disLrict court ruled that t,he evidence was insuff i-

cient to sustain a constitutional conviction.

Thus, the district courtrs analysis of the record was

conducted precisely as required by Jackson. Its independent

review of the evidence, taken in the light, most favorable to t,he

prosecution, was entirely consistent wit,h its responsibilities

under 28 U.S.C. S2254(d).

Section 2254(dl requires a federal habeas court to aPPly a

presumption of correctness to the fact.ual determinations made by

a state court. Summer V. Mata, 449 U.S. 539 (1981). The statute

is designed to ensure thaL deference will be given to state-court

evidentiary findings , arrived at, after weighing the credibility

of witnesses at t,ria1. t'laggio v. FuIford, U.S. ,76
L.Ed.2d 794 1t983); S@, sjpll. On guestions of

17



historical fact, the state courtrs findings are controlling

unless there are subst.antive or procedural deficiencies in the

findingsr oE the findings are not fairly supported by the record.

28 U.S.C. S2254(d) (1-8).

The deference required by 52254(d), however, applies only to

historical facts. A federal habeas court is not bound by

state-court determinations of questions of Iaw, or mixed ques-

tions of law and fact. that, require the apPlication of constitu-

tional principles to historical facts. CYyler v. Sulliyan | 446

U.S. 335, 342 11980); Brewer v. ,Williams, 430 U.S. 387, 403-04

(1977). @, Wainwrlgh.t v..witt, 53 u.s.L.w. 4108, 4112 (U.S.

Jan. 21 , 1985). The Supreme Court explicitly reiterated the

principle in gSgkson, 443 U.S. at 318, citing the leading

opinions which announced it, Townsend v. Sain, 372 U.S. 293, 318

(1953); Brown v. A1len, 344 U.S. 443, 506-07 (1953) (opinion of

Justice Frankfurter). This court has also held consistently in

cases involving questions of law or mixed questions of law and

fact that the presumption of correctness does not aPPly. 9S9,

9.9:, @, 684 F-2d 794, 803-04 (11t'h Cir. 1982),

cert. denied, 103 S.Ct. 1798 (1982) i Dickerson v. State of

4lgqg4q,667 F.2d 1364, 1368 (11th Cir. 1982) cert denied,459

U.S.878 (1982); Gunsby v. Wainwrightr 596 F.2d 654r 555 (5eh

Cir. 1979) , gs-rt.- {Sri€, 444 U.S. 946 (1979). And the law of

the Circuit is settled that determinations of the sufficiency of

the evidence involve the application of lega1 judgment requiring

18



an independent review of the record. @, 632

F.2d 605, 640 (5th Cir. 1980)r cert. denied, 451 U.S. 1028

( 1981); see also Sp,ray-Bi1t, v. Intersoll-Rand Woi-13- g3,ge, 350

F.2d 99 (5th Cir. 1955).

A federal district court which makes a proper analysis of a

Jackson v. Viqlinia claimr is t,he court below did here, affronts

no rule or .policy of 52254(d). By viewing the evidence 'in a

light most, favorable to the Prosecution" (R. 170), presuming

'that the jury accepted the prosecutionts version".of conflicting

evidence (!S. ), and ndeferIing] to that result," (!{. ), the court

not. merely accepts all f indings of historical fact which the

state courts actually made in favor of the prosecuEion, but, every

such finding which they might have made. To be sure' the

district court may disagree with the stat,e courtrs ultimate

conclusions regarding t,he suf f iciency of the evidence, 443 U.S.

at 323-24, but these conclusions are the very paradigm of

judgments which are not nenEitled to a presumpt,ion of correctness

under 28 U.S.C. 52254(d)n because they represent, 'a mixed

determination of law and fact that. requires the apPlication of

Iegal principles to the historical facts . . .', Cuyler v.

SuIlivan, supra, 446 U.S. at 341-342i compare .I-*kggq--v..-

Virginiar 443 U.S. at 318 ("A federal court has a duty to asssess

the historic facts when it is called upon to apply a constitu-

tional standard to a conviction obtained in a state courtr ).

Against the background of these settled principles, $re turn now

19



to appellants' argument,

more r or t,hat the court'

fulfilment of this duty.

B.

that Sumner v. Mata demands something

below did something 1ess, than the

In Enforclng Jackson v. Virginla, the Dlstrict Court
was Not nequi;6d-6- Acc-e!ffiEe Findings that the
Evidence Was Sufflclent.

Appellants I contention thaE a federal courE enforcing

Jaskson v. Virgin_ia must give deference to state-cour.t f indings

under Sumner v. l{ata misconceives the whole point of Jackson and

the whole point of SumneE. If this contention had merit, Iackson

claims could never be enforced, because it. is qU.4jt-q the case

that f ederal 
. 
habeas Proceed ings rais ing g=cf son claims are

preceded by ( 1 ) a state jury finding that the evidence is

suf f icient to prove every element of the of f ense; 12) a st'ate

trial-court finding that t,he evidence is sufficient to support

the jury's verdict, and (3) a state apPellate-court finding of

that, same fact.. Federal-court, deference to these omnipresent

findings would render the Jackson decision an exercise in

futility, the JAcEg-o-4 opinion an absurdity.

The Jackson Court lras not unaware of this point. See 443

U.S. at 323 ("The respondents have argued. . . that whenever a

person convicted in a stat,e court has been given a 'fu1l and fair

hearing' in the state system meaning in this instance state

appellate review of the sufficiency of the evidence further

federal inquiry . . . should be foreclosed. This argument, would

20



prove far too much.n). Indeed, the precise question debated in

the Jackson opinion was whether In re WigfEfp, 397 U.S. 358

(1970) required federal habeas courts to review state-court

factual findings to the extent necessary to enforce the federal

constitutional requirement, of proof beyond a reasonable doubt as

the condition precedent to a due-process criminal conviction.

Jacksqn,rs plainr clear answer t,o that quest,ion was yes.

There is nothing in this answer that is inconsistent with

Eggn"-g in the slight,est measure. Sumner was based squarely on 28

u.s.c. s2254, and merely held t.hat the requirements of s2254

applied to findings of fact of state appellate courts as well as

f indings of f act of state t,rial court,s. Well before either

Sumner or Jackson, it was settled law that federal habeas courts

vrere required to defer to stat,e t,rial-court findings of fact,

such as the jury's finding of guilt, or the trial judgers finding

of the sufficiency of the evidence, under the conditions speci-

f ied by 52254. E, 93fu-, lt-Ygllsq v. DelI? E, 410 u.s. 690

( 1 973 ) . The reason why Jackson nonetheless concluded that

federal habeas courts could review these findings independently

t,o determine whether the evidence of guilt was constitutionally

sufficient is obvious, It is that any case in which the Jacksog

test, of constitutional insufficiency of the evidence is met is g

f ortiori a case in which 52254 (d ) explicitly permit,s federal

habeas corpus redetermination of the facts because "the record in

the StaEe court proceeding, considered aS a whole, does not

21



fairly support Ithe] factual determination" of the jury that

every element, of guilt, was proved beyond a reasonable doubt' t ot

t,he f actual f indings of the state trial court and appellate

courts t,hat t,he evidence was sufficient for conviction. In

short, every substantively valid Jackson claim is, by definition,

within the class of cases in which 52254(d) permits (and To-wnsend

v. lain , 3'1.2 U.S. 293 ( 1963 ), requires ) f ederal habeas corpus

redetermination of state-court fact f inding. S-umnsr v. t'lata

neit.her reguires a federal disErict court to ignorer nor to

'explainr" this patently obvious point.

C. The District Courtre Vlew of the Evidence Was Not
Inconsistent With Factual Flndings of the Alabama Court
of Crimlnal ApPeaIs

Appellants further urge t,hat the court below disregarded

specific findings of historical fact by the Alabama Court of

Criminal Appeals. They note (Brief at, 18) t'hat Judge Hobbs was

able go reduce the prosecut,ionts evidence to a single sentence:

trthe only evidence against Bozeman was Rollins' test,imony that

she was one of the ladies who brought the ballot,s to be nota-

rized, that, she may have called to arrange the meeting, and that

the ladies as a group represented t,he ballots to be genuine after

he told them that the signators were supposed to be present.' R.

171 . Appellants complain t,hat, th is sentence does not summarize

22



the trial transcript in language identical t,o the summary of the

transeript found in the Alabama Court of Criminal Appealsl

opinion.

This is a quarrel about opinion-writ,ing phraseology and

nothing eIse. For while appellants contend that the district

court I s f actual f indings $rere "consi.derably at odds wit'h the

facts found by the Alabama Court of Criminal Appeals in the same

case" (Brief at 19), they point to only three trivial instances

of alleged inconsisEencies:

( I ) Paul Rollins 'testif ied that he had t,alked with
Bozeman about notarizing the ballocElr 401 So. 2d
at 169 (emPhasis supplied) (as opposed to rshe may
have called I 

)

(21 rMr. Rollins stated . . . that he subsequently
went to Pickens County to f ind t,hose persons who
had allegedIy signed the ballots. He had
IBozeman t i ] assistance on t,hat occasion, however,
he was not sure he did not go to Pickens County
prior to September 26, 1978.r 401 So. 2d 159 (no
mention of this in the district court opinion)

(3) The state court relied heavily on the testimony of
Sophie Spann. 401 So.2d at 169-70. The district
court, in contrast,, treated her evidence briefly
in section II of its opinion (R. 169); then, quit,e
inexplicably, ignored the evidence entirely when
it rLached t.he critical summary of the state rs
case. (R. 1711.n (Appellantsr Brief at 19-20.)

Upon examination, even these insignificant discrepancies dis-

appear.

23



(1) Judge Hobbsr paraphrase of Rollins' testimony with

respect t,o t,he telephone call simply summarizes the fuller

version of that, test,imony set forth earlier in the district

court's opinion:

'He [Rol1ins] also stated that he received two
ca1ls t,o set uP the meeting, but, t'hat he could
not remember whether Bozeman made either call.
Ile later testified, however, that Bozeman made
one call pertaining to some ballot,s, but he
was not sure wh i cli bal lots. " (R. 166-6Tl
ffinaETs a-&lEa. )-

Summing up later, Judge llobbs underst,andably described this

t,estimony by saying that Bozeman nmay have called to arrange the

meecing. T R. 171. The only variation between this formulation

and the one employed by the Alabama Court, of Criminal Appeals was

that the Alabama court wrote that l[s. Bozeman "had" arranged a

meeting with the notary. The nhad/may have" Iine is plainly a

distinction without a difference, since as with all the

evidence Judge llobbs viewed Roll ins ' testimony in the light

most, favorable to the prosecution.

(2) The second of the cr it ical 'r f acts " which appellants

claim that Judge Hobbs did not ment,ion is incorrectly quoted.

Corrected, it, becomes irrelevant.9

9 Correctly, 'Mr. Rollins stated . . . that he subsequenEly went to
pickens -ounty to find those persons who had allegedly signed the
ballots. He had [Iuls. Bozeman's] assistance on that occasion,
however, he eras sure he did not qo to Pickens County prior to
s 

" 
p c.*u". @ : t{1TE: -( E mPE6-STS-a d a6d i .--f E'5f 6:ffi

no reason%ffiGage Hobbs to mention this incident since it
occurred af ter t,he run-of f primary in question and involved

24



(3) The third supposed discrepancy of "fact" ciEed by

appellants is that the st.at,e court "relied heavily on t,he

t,estimony of Sophie Spannr' while Judge Hobbs treated her

evidence "briefly.n In summarizing the record, the Alabama Court

of Criminal Appeals did not indicat,e specif icaIly the facts on

which it, based its conclusion that the evidence !'ras suff icient,

saying only that the evidence was circumst,antial'and confusing in

several instances, 401 So.2d at 170. Even if appellants are

correct't,hat, the Alabama court relied nheavilyn on trls. Spann's

testimony, there is nothing in the testimony cited by that court

or contained in the Erial transcript linking !ts. Bozeman to I'ts.

Spann's absentee ba1lot. Neither the ballot application nor the

ballot contained a signature, PurPorting to be that of . I'ts.

Bozeman. According to the Alabama court,, all t,hat I1S. Spann said

with regard to l'ls. Bozeman is that they were life-long friends

who had a conversation about voting absentee "when it wasnrt

vOting time." Tr. 184.10 fh.t same conversation is described by

another unrelated election. The testimony about it, was intro-
duced at trial by the defense to show l'ls. Bozemanrs good faith
and was not, treated otherwise by the Alabama court.

10 According t,o t,he Alabama Court, I{s. Spann testif ied that:

(a) "she had never voted an absentee baIlot, but that
[BozemanJ had come to her house and had talked to her
about it.'r This occurred "before voting time.'

(b) She had known Bozeman all her Iife.

(c) She had never made an aPplication for an absentee ballot
nor had she ever signed her name to one.

25



the court below. R. 159.11 Judge Hobbs treated the testimony of

Ms. Spann in the same way that he treated all other t,estimony

by highlighting only those aspects of the evidence that could be

viewed as materially supporting ttls. Bozeman's conviction of the

charges in the indictment.

Thus, Judge Hobbs did not disregard or disagree wit,h any

fact,s found by the state appellate court. His sole disagreement

was with the st,at,e courtrs ultimate conclusion that those facts

added up to sufficient proof to allow a rea'sonable mind t,o find

1,1s. Bozeman guilt,y beyond a reasonable doubt. The rule laid down

in Summer v. Mata, 449 U.S. 539 (1981), requires that federal

habeas courts must specify their reasons for denying state

factual findings a presumption of correctness under S2254(d) if

and when they disregard those findings. Since Judge Hobbs did

(d) She knew Wilder, but knew Bozeman bett,er; Wilder had never
come to her house nor ever discussed voting with her.

(e) She went to Cochran t,o vote and was informed that an
absentee ballot was cast for her in Aliceville.

401 So.2d 169-70.

1'l Judge llobbs'summary of the Spann testimony went as follows:

"sophia Spann tesEified that she did not sign an
application or a ballot. She also stated that
when she went, to her usual polling p1ace, she was
told that her absentee ballot had been cast. She
stated t,hat Bozeman came at, some time prior to
the runoff and asked if Spann wanted to vote
absentee, and Spann said she did not. Julia
wilder wiLnessed S-pann ts application. " (R.-1@
EfrF'6',t3iE-ffilED.-- 

-
26



not disregard any sCate-court findings, he was obviously not

obliged to sEate reasons for doing something that he did not do.

9J: Pretfe: v. Willians, 430 U.S. 387, 395'397 ' 401-406 (1977).

In Brewer both part,ies agreed to submit the case to the

federal district court on the basis of the state-court record.

The district court made findings of fact based on its examination

of that record. It found a number of facts in addition to those

which the state courts had found, but none of its findings

including the supplemental findings conflicted with those of

the St,ate courts. The Supreme Court held that the district court

had ful1y complied with t,he strictures of 28 U.S.C. 52254(d). 430

U. s. at 39'7 .

gere too, while Judge Hobbs made some additional findings,

none of his findings conflicts with any historical facts found by

the Alabama courts. Appellantst attempt no$, to find some

inconsistency between specific factual findings of the Alabama

Court of Criminal Appeals and the factual findings of the

district court below is groundless.

II. THE INDICTIT{ENT AGAINST lls. BOZEI{AN WAS FATALI.Y DEFECTM IN
THAT TT FAILED TO TNFORU TIER OF THE NATURE AND CAUSE OF THE
ACCUSATION

The indictment f iled against Itls. Bozeman failed in numerous

respects t,o provide the level of notice required by t,he Sixth

Amendmentrs guarantee that in all criminal cases the accused

27



shall receive "notice of the nature and cause of the accusat,ion'

against her. Each of t,hese f ailures, standing alone, amounEs to

a denial of constitutionally required notice; together, they add

up to a stunningly harsh and egregious denial of notice, a right

which the Supreme Court has deemed "the first, and most universal-

Iyrecognizedrequirement,ofdueproceSs.'@,311
U.S. 329, 334 ( 1941); see also Cqle-Y-:-3Ilans11, 333 U.S. 196,

201 (1948).

The district court found that t,he indictment, failed to

provide any not,ice of a number of charges which were submitted to

the jury. Ms. Bozeman was tried,'to put it simpIy... upon

charges that were never made and of which [she was] ... never

not,if ied." R. 183. She did not discover the precise charges

againSt her, "unti1 [she] ... had rested Iher] ... case.' R.

182. The district court held thaE she vras thereby denied due

process.

The Indictment Was Conetitutionally Defective In That
It Patled To Provlde Pair Notice Of All Of The Charges
On Whlch The Jury $las Permltted To Return A Verdict Of
Guilt

The district court not,ed that various st,at,utes and theories

of liabilit.y as to which the indict,ment provided no notice

whatsoever vrere incorporated into t.he charges submitted to the

jury as the basis for a f inding that Dls. Bozeman had violated

S17-23-1 by "any kind of illegal ... voting." The indictment, is

A.

28



set f orth at, pages 3-4, s-.re,. In each of its three counts it,

ostensibly tracked various provisions of S17-23-1. It alleged

disjuncE,ively with other charges in Count I that Lls. Bozeman had

"'vot Ied] i1}egally or f raudulently, " and in Counts II and III

that she had "cast illega1 or fraudulent absentee ballots. " Only

in Count III was any factual specification provided; and t,here it,

lvas alleged that lls. Bozeman had deposited fraudulent absentee

ballot,s which she knew to be fraudulent. In none of t,he counts

was any elaboration given to that, portion of the charge which.

accused Ms. Bozeman of having "vot [ed] illegally' or having 'cast

i11ega1 ... absentee ballots."
In the instruct,ions to t,he jury, the t,ria] judge did frame

elaborate charges under which Ms. Bozeman could be convicted of

illegal voting. After reading S17-23-1 to the jury, he explained

the st,at,uters provision against 'any kind of illegal or fraudu-

Ient vot,ing" by def ining t,he terms "i11egaI' and "f raudulent.'

Tr. 201. Concerning the term "i1legalr" he instructed the jury

that "illegal, of course, means an act that, is not authorized by

law or is contrary to t,he Iaw.' Tr . 201 . He then instructed t'he

jury on four statutes: AIa. Code S17-10-3 ( 1975) lmiscited as

S17-23-31 , Tr. 2O2i AIa. Code S17-10-6 ( 1975) lmiscited as

S17-10-71, Tr. 202i Ala. Code S17-10-7 (19751 t Tr. 203-204i and

Ala. Code S13-5-115 (1975) t Tr., 204-205. None of these stat'utes

or their elements was charged againsE rt{s. Bozeman in the indict-

ment. Their terms provided numerous new grounds on which to

29



convict. The jury was thus authorLzed to f ind [tls. Bozeman guilty

under S 1 7-23-1 if she had act,ed in a manner "not authorized by or

. . . contrary to.' any one of the provis ionS of a number Of

statutes not specif ied or even hint,ed at in the indictment.

For exampler the jury vras first, instructed on S17-10-3,

miscited by the trial judge as s17-23-3, which set,s forth certain

qualificat.ions as to who nay vote by absentee baIlot. The trial

judge instructed that under 517-10-3 a person is e1i9ib1e to vote

absentee if he will be absent from the county on election day or

is afflicted with "any physical illness or infirmit'y which

prevenEs his attendance it the polls.n Tr. 202. Thus a finding

by the j ury that, one of t,he absentee voters had not been physi-

cally "prevent, Ied] " f rom going to the polls t'o vote in the

run-off would have constituted the finding of an "act not

authorized by ... or ... contrary to" S17-10-3, negessitating lls.

Bozeman's conviction under S17-23-1 even though she was given no

notice in the indictmenE that, such Proof could be grounds for

I iabil ity.
The trial judge then instructed the jury t,hat, s17-10-5,

miscited as S17-10-7' requires, lI!$ alia, that' all absentee

ballots "shall be sworn to before a Notary Public" except in

cases where the vot,er is conf ined in a hospital or a similar

institution, or is in t,he armed forces. Tr. 203. Furt,her, under

Sl7-10-7, the trial judge stat,ed that the notary must swear that

the voter 'personally appeared" before him. Tr. 203. Accord-

30



inglyr €vidence that t,he voters were not, present at the notariz-

ing,
under

ggs

s1

Tr. 56-64t suff iced to establish Per 1e- culpability

7-23-1 although, again, the indictment gave t'ls. Bozeman

no warning whatsoever of any such basis for culpability.l2

The trial judge then ins.tructed the jury that S13-5-115

provides:

"'Any person who shall falsely and incorrectly
make any sworn statement or affidavit as to
any matters of fact required or auEhorized to
be made under the election lawsr generalr
ptimary, special or loca1 of t'his state shaLl
Le guilty of Perjury. The section makes it
iIlegal to make a sworn statement, oathr oE
affidavit as to any matters of fact required
or authorized to be made under the election
laws of this staEe. r'

Tr. 204. Both sentences of this instruction contain egregious

misstaEements concerning S13-5-115. The firsE sent,ence repre-

sents a verbatim reading of S13-5-115 with one crucial error. The

trial judge insLructed that S13-5-115 proscribes "falsely and

incorrect,lyo making the sworn statemenEs described in the

sE,atute, whereas in f act t,he sEatute Proscribes the making of

such statement,s "f alsely and corruptlyn -- i.e., with criminal

intent. The second sentence of t,he instruction, which apparently

12 It is noteworthy that SS17-10-5 and 17-10-7 were amended several
months after t'ts. Bozemanrs trial by Act,s 1980, No.80-732, P.
1478, SS3, 4, and no longer require notarization of the ballot.

31



represents t,he trial judge's interpretat,ion of S13-5-115, has

the absurd result, of making illegal every sworn statement duly

made under t,he election laws.

Irrespective of these misst,atements, t,he charging of

S13-5-115 deprived Ms. Bozeman of constitut,ionally required

notice. The missE,atements of the t,erms of a st,atute which t'ls.

Bozeman had no reason to suspect she $ras confronting in the

first place only aggravated this denial of due pro"""".13

The district court found that, the trial courtrs charge r. by

explicitly permitting t.he jury to convict Mrs. Bozeman of casting

an improperly notarized ballotr wdS especially prejudicial

because the only evidence against ljls. Bozeman was her partici-

pation in the notarization. R. 181-82. Thq indictment contained

no allegat,ions which could have Put her on notice thaE her

participation in the notarizing process was violative of S17-23-1

or in any way criminal. As the district court said: "There is a

world of difference between forging a person's ballot and failing

to follow the proper procedure in gett,ing that person's ballot

13 tne trial judge also misread S17-23-l in a way which expanded the
charges againsE Ms. Bozeman. He instructed the jury that
517-23-1 penalizes one who "deposits more than one ballot for the
same offiC€.n Tr. 201. In fact S 17-23-1 penalizes one who
"deposits more than one ballot for the same office as his vote"
(eriphasis added). This omission by the trial jud6'6 fiiii6ETly
changed the meaning of the statute so that the mere physical act
of deposit,ing two or more ballots at the same election -- even
ballots deposited on behalf of other voters violates
517-23-1. IE thus produced a new charge against Ms. Bozeman of
which t,he indictment provided no notice.

32



notarized. " R. 183. Yet, three of the four stat,utes not charged

in the indictment, but submitted to the jury as a basis for

conviction under S17-23-1 made Ms. Bozemanrs minor participation

in the not,arizing into grounds of PSI 5 cu1pabiliEy. At trial

a large part of t,he prosecutionts case was spent attempting to

prove through t,he testimony of lrlr. Rollins, and through questions

posed to virtually aLl of t,he t,estifying voters, that, the

not,arizing took place outside of the presence of the voters, and

that lrls. Bozeman had in some tray participated in t,hat, noEarizing.

Hence, the charges made for the first time in the instructions

provided new grounds for culpability which were crucial to her

conviction.

The court below held that the failure to a11ege these

grounds for culpability in the indictment violated }ts. Boz.emanrs

Fourteenth Amendment rights. The violation was all the more

significant because evidence of the proper elements of the one

stat,ute charged in the indictment was insufficient or nonexis-

tent.
The only'relevant allegations in the indictment were that,

Ms. Bozenan had nvoteId] il1ega1lyn (Count I) or had "cast

illegal... absentee ballots" (Counts II and III) in the run-off.

These allegations in no way informed Dls. Bozeman with particula-

rity t,hat, she could be Prosecuted under t,he rubric of illegal

voting for acts 'not authorized by . . . or . . o contrary to' the

four unalleged statut,es char'ged in the instructions. But

33



" [n]otice, to comply with due process requirements, must be given

sufficiently in advance of the scheduled court proceedings so

that reasonable opportunity to Prepare will be afforded, and it

must 'set forth the alleged misconduct with particularitY.t' In

re Gault, 387 U. S. 1 , 33 ( 1 967 ) .

"Conviction uPon a charge not made would be a
sheer denial of due Process.'

DeJonge v. Oregont 299 U.S. 353, 362 (1937); ses also Dunn v.

United States | 442 U.S. 100, 106 11979); Jacksgn v; Virginia, 443

u.s. 307, 314 119791i Presnell v. Georgia, 439 U.S. 14, 15

( 1978 ) ; Cole v. Arkq4sgq, 333 U.S. 196, 201 ( 1948 ).

lrls. Bozeman was plainly subjected to an egregious violation

of the rule thag, in order to satisfy the Notice Clause of t'he

Sixth Amendment, an indictment must allege each of t,he essential

elements of every statut,e charged against t,he accused. ESg

Russell v. United States, 369 U.S. 749, 761-766 (1962)i United

State,s v. Ramos, 666 F.2d 469 , 47 4 ( 1 1th Cir. 1982) i UniI'ed

States v. Outler, 559 F.2d 1305, 1310 (5t,h Cir. Unit B 1981),

cert. denied, 455 U.S. 950 ( 1982); United States va Hajrs, 583

F.2d 216t 219 reh. denied, 588 F.2d 829 (5th Cir. 1978)t cert.

denied, 440 U.S. 981 11979); UniLed SLates v. Strauss, 283 F.2d

34



155, 158-59

remot,e 1y to

(5th Cir. 1960).14 Here, the indictment failed even

identify the critical elements upon which her guilt

was made to dePend at trial.

The indictment also violated the rule of United States v.

Cruikshank, 92 U.S. 542 (1875), that:

"where t.he def inition of an of fence, whettrer
it be at common law or by statute, includes
generic terms, it is not sufficient that the
indictment shalI charge the offence in the
same generic terms as in t,he def inition; but
it must stat,e the species it, musL descend
to. the particulars. "

14 fhis rule is followed by the Alabama courts as a proposition of
both Alabama law and f ederal constitutional law. E, €.9.r
Andrews v. state, 344 So.2d 533, 534-535 (AIa. Crim. ApP. ), cert.
ffid 538 (Ala. 19771. rn fact, under Alabama Iaw,
ETIGe to include an essential element of the offense in the
indictment is regarded as such a f undament,al error that it
renders the indictment void, and objection to such an indictment
cannot be waived. See g.9.r !]., Barbee v. State, 417 So.2d 611
(AIa. Crim. epp.-T9aE'ca7t6r@o.2d 510 (Ala.
irim. App. 1980i, ""Ir. aeniffit+ (1980); Edwards v.
State,-iZ9 So.ZdTE,-3T9-TAIa. Crim. App. 1979) i DffiTffi-if
S ,' gs t so.2d 683 (Ara. irim. App . lg11) ; rendlei-ii].ffi
fr*o.2d 5OO (AIa. Crim. ApP. 19731 ; ritzgerffi
So.2d 152 (AIa. c.i*. App. litl)t grow 450
(AIa. App. 1946); Nelson ir-. State, 2ffiIa. Crim. App.
igZgl; isittiams v.ffi2d 610 (Ala. Crim. App. ), af f td,
33g So.ffi); Harmon v. €tate, 249 So.2d 369-[AIa.
crim. App. ) , cert. deniedrffi(Ara. 197't ).

35



Ig. at 558 (citation omitted). The Cruikshank rule is fundamen-

tal to t,he notice component of due Process. See Russe!}.3.'-

United States', 359 U.S. 749, 765 (1962). lt is apposite to this

case because "i11ega1" iS unqueStiOnably a "generic term." g!

v. United States, 172 U.S. 434, 437 (1899); Goodloe v. Parratt,

605 F.d 1041, 1045-45 (8th Cir. 19791. An indictment which

charges unspecified illegalities as did Ms. Bozemanrs in

charging her with 'vot tingl i1legally" or "cast Iing] illega1 ...

absentee ballotS" must, under Cruikshank, 'descend to the

particulars" and identify the acts and underlying laws which

allegedIy constit,uted the illegalitieS. Id. In Dls . Bozemanrs

situat.ion, Cruikshank required that the indictment alIege that

she violated S17-23-1 by failing to comply with.each of ,the four

st,atutes as t,hey were charged against her in t,he inst,ructions,

and contain specific factual allegations giving her fair notice

of the acts which rdere allegedly criminal under those charges.

Such was the conclusion which the court below derived from

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir. 1979), where habeas

petitioner Goodloe had been convicted in a state court of

operating a motor vehicle to avoid arrest. Under Nebraska 1aw

t,he crime aIlegedIy commit,ted by t,he defendant for which he was

subject to arrest, and because of which he lfas resist,ing, had t,o

be proven as an element of the offense of resisting arrest. .I9.

at ,|045. The Goodloe court found that during trial the prosecu-

tion changed the offense it was relying on as the crime for which

35



Goodloe was allegedly resisting arrest. f9. at 1044-1045. This

change denied Goodloe constitutionally required notice. Ig. In

addition, irrespective of the change in underlying offenses at

triaI, the Eighth Circuit held under Cruiks4Snk that Goodloe was

denied constitutionally required notice because the initial

charge against him had failed to include notice of the underlying

offense which Goodloe had allegedIy committed and because of

which he was allegedIy resisting arrest. .The indictment there-

fore failed to 'allege an essential substantive element." -E. at

1045.15

The facts of Goodloe are anqlogous to Ms. Bozeman's case,

since the four

failed to charge

tive elements of

statutes invoked against her which the state

in the indictment, were incorporated as subsEan-

S17-23-1's prohibition against illegal voting.

15 The court reasoned:

"The indictment upon which Goodloe was tried
charged that he did, in the words of the statute,
'unIiwfully operate a motor vehicle to flee in
such vehi6te- in an effort to avoid arr'est for
violating any law of this State. I There is no
indication from this st,atutory language thatr ds
the trial court held and instructed the juryr Erl

additional element must be proven for conviction:
actual commission of the violation of state 1aw
for which the defendant fled arrest. Once prior
violation of a sPecif ic stat'e statut,e became an
element of the offense by virtue of the trial
c.ourt ruling, Goodloe was entitled not only to
notice of that general fact, but also to specific
notice of what law he was alleged to have
violated. "

Ig. at 1 045.

37



4ccord, Watson v. Jiegg, 558 F.2d 330 (6t,h Cir. 1977). See also

Plunkett v. Esteller TOg F.2d 1004 (5th Cir. 1983)' cert. denied,

104 S.Ct. 1000; Tarpley v. Estelle, 703 F.2d 157 (5t'h Cir. 1983),

cert. deq_leq, 104 S.Ct. 508; Gray v. Rains, 662 F.2d 589 (1Qth

cir. 1981); Von Atkinson v. smith, 575 F.2d 819 (1o.th cir. 1978).

The district court followed the basic approach of these cases in

deternining that tlte jury could reasonably have convicted l'ls.

Bozeman of a crime not charged in the indictment. The courtts

determination was based on its examination of the trial as a

who1e, including t,he charge, the arguments of counsel, the theory

of the prosecution and the evidence. R. 179-80. The court

rejected appellants' argument that Ms. Bozeman was challenging

the. jury charge rather than the. indictmentrs failure to provide

fair notice of the charge. As aPPellantsr now realLze, "Judge

Hobbs considered the instruction on statutes not contained in the

indictment to amount to a constructive amendment to t,he charging

instrument, dllowing the j ury t,o convict the def endane for an

unindicted crime. See, Plunkett v. ng!,el-le | 709 F.2d 1004 (5th

Cir. 1 983 ). " Brief at 22.

This vras ent,irely correct. It was the challenged indictment

which created the substantial pot,ential for abuse eventually

realized by the oral charge. See Stromberg v. California, 283

u.s. 359, 354-55 ( 1931); Te-Eminiello v. chicago, 33'7 u.s. 1t 5

(1949). As Judge Hobbs explained, Ms. Bozeman "went into court

facing charges that Ishe] ... had 'StoIen'voteS and ended uP

3gu



being t,ried on the alternative theory that [she] had committed

one or more st,atutory wrongs in the notarization of ballots. " R.

l g2-83. Because t.he indictment. f ailed to give IvIs. Bozeman f air

"notice of the nature and cause of t,he accusationr against her as

required by Lhe Sixth and Fourteenth Amendments, the district

court properly overturned her conviction.l6

The Indictnent Was Fatally Defective In That It Failed
To Include Constitutionitty Sufficient Allegations
Concerning The Charges Of Fraud

Additional grounds support the district court's judgment

invalidating the indictment. Each count alleged at least in the

alternat ive that, l,ls. Boz eman had in some way committed f raud

through her voting act.ivities in the run-off. For the reasons

set forth in the following subsection ( 1 ), these allegations of

f raud f ailed t,o provide t.he quantum of notice required by the

B.

1 5 strombers and Terminiello demonstrate the fallacy of appellants I

r-61TIii6 on ffi v. Syke5, 433 U.S. 72 (1977 ) (Brief at
it-ZZl . sinceffiault 1ay in the indictment, no
objeciions to the jury instructions were required to Preserve t'ts.
Bo-zeman's challenge to it. Svkes is inapposite because Ms.
Bozeman properly and consistentlyEa-cked the indictment for its
failure to iive her adequate notice of the charges throughout the
st.ate proceediogs, beginning with her plea filed on May 28t 19,791

and cbntinuing tfrrbugh her motion for a new trial f iled on
November 28, 1979. ELkS is inapposite because Ms. Bozeman
raised the nol,ice issue-6t-?-irect appeal to the Alabama Court of
Criminal Appeals, and that court entertained the issue on the
merits. 4Ol-So.2d at 170. See, €.$..7 County Court of Ulqtqr
county v. Al1en , 442 u.-s - 1F0', m'TSl
rnapposrcS-EGuse the Alabama courts considerEright to
notici to be so fundamental that objections to indictmenEs on the
ground of lack of proper notice cannot be waived. N?t9-11^:-gPt*-
See, 9:-L-, Boykin- v. Alabam3, 395 U-S. 238, 241-42 (1959) '

39



Sixth Amendment.. Moreover, as noted in subsection (21 belowt

Counts I and II failed to allege fraudulent, int,ent or knowledge

as a necessary element of the offense charged. Counts I and II

failed to allege any re'Iea whatsoever. Only in Count III was

Us. Bozeman accused of having acted with fraudulent intent.

The prejudice caused by these constitutionally defective

counts is incalculable since Ms. Bozeman was convicted under what

can only be described as an 'extra-general verdict." In a

general verdict, the jury gives its verd.ict g each count

without elaboration as to the findings of fact. ESg generally 75

Am. Jur.2d Trial 5885l. 75 Am. Jur. 2d Trial Sll11. But in Ms'

Bozemanrs case, despite a three-count indictment,, there was

merely a one-line verdict pronouncing her "guilty as chargedu of

a s ingle undif f erent,iated violation of S'17-23-1 . Tr. 223. Since

t,here is no way of determining under which count or counts the

jury convicted her, prejudice owing Lo even one defective count

requires the invalidation of her conviction. ESg, *-
Stromberg v. Cal if orLi-a, 283 U.S. 359 ( 1931 ) ; Williams v. North

Carolina | 317 U.S. 287 (1942) i Ierm,iniello , v. Chicago , 337 U.S. 1

(1949)t Street v. New York, 394 U.S. 576 (1969); Bachellar v:

M.arvland , 397 U.S. 564 ( 1970 ) .

40



(l) The factual
const itutionally
the nature and

a1 legat ions
insufficient

cause of the

in each count were
to provide notice of
allegedly fraudulent

conduct

None of the t,hree counts charging fraud stated the asserted-
Iy fraudulent conduct.with particularity. The counts alleged
nothing more than that Ms. Bozeman voted fraudulently (Count I),
or cast fraudulent absentee ballots (Counts II and III) in.the
run-off. In Count III only was this latter allegation elaborated

albeit insufficiently to satisfy the constitutional require-
ment of fair notice -- by accusing Ms. Bozeman of depositing the
fraudulent absentee ba1lot,s with the Pickens County Circuit
C1erk, knowing that, the ballots were fraudulent.

fn order to pass constitutional musterr do indictment ,'rmust

be accompanied with such a statement of the facts and circum-
stances as will inform the accused of the specific offence,
coming under the generar description, with which he is charged.'"
Russell v. United states, 369 u.s. 749, 765 (1962) (quoting

united states v. Hgpg, 124 u.s. 493, 497 ( lggg) ); see also unit.eg

states v. Ramos, 665 F.2d 469, 474 (11th cir. 1gg2)i united
states v. outl_er, 659 F.2d 1305, 1310 n.5 (5t,h cir. unit B,

1981). Fraud is a "generic term" which is insufficient to
provide the constitutionally required notice unless detailed
factual allegat,ions are included in the indictmenL. See United

st,ates v. cruiksha_nk , 92 u.s. 542, 558 ( 1875) (discussed at pp.

35-37 s-g.p!e). The indictment 'rmust descend to t.he particulars,'

41



of the acts

also United

of the

S t ates

accused which

v. Diecidue

allegedly fraudulent. See

F. 2d 535, 547 ( 5th Cir.
9rere

603

1979).

It, was inadequate for the state to allege (as it, did in

Count I I I only ) that, l{s . Bozeman had depos ited f rPudulent

absentee ballots in the run-off. Such an accusation failed to

inform "the defendant ... of which tranSaction, or facts give

rise to the alleged of f ens€. n United States v. Outler, 99!8,
659 F.2d at 1310 n.5.17 In order. to satisfy the rule of

Cruikshank, the indict,ment in its charging of fraud was required

to set forth the transaction alleged to have been fraudulent, and

to inforn the accused of what representations vrere alleged to

have been 'used to carry out the f raud. 1 8

Rulings on indictments in federal cases are also premised on the
Fifth Amendment requirement of indictment by grand jury, the
Federal Rules of Criminal Procedure, and federal common 1aw.
See, €.ct., United States v. Outler, supra. However the cases
EiEed rffiin esffiinvoked are mandated
coextensively by the Sixth Amendment Notice Clause.

For example in United States v. Clarkt 546 F.2d 1130 (5th Cir.
1977), th; court charging the accused with
making fraudulent representations in a loan aPPlication to a
United States agenqf. The court established that it,s scrutiny was
based inter alia on the Sixth Amendmentts Notice Clause, !4. at
1i33 .=t-""E'-ffi'en proceeded t.o determine whether the indiEment
adequately identified the alleged fraudulent stat,ements. Since
t,he indictment specified the aPProximat.e date on which the
alleged1y fraudulent representat.ions were made, the precise forms
on wfrictr such representations were made, the purPose for which
such represent,ations $rere made, and the entries on the forms
which were not. accurate, the court held that the indictment. had
sufficiently put the defendant on notice as to the substance of
the alleged f raudulent statements. }|. at 1 133-1 1 34.

By cont.rast if the indictment fails reasonably to identify

17

18

42



This indictment, did not. even begin to descend to the

particulars of the alleged fraud. In Count. Tt t,here is only a

bare disjunctive allegation of fraudulent voting, with no

elaboration whatsoever. In Counts II and III, the absentee

ballots are alleged to have been fraudulent; and in Count III,

Ms. Bozeman is accused of having knowingly deposited fraudulent

absentee ballots. But how those ballots became fraudulentr and

what Ms. Bozeman allegedly did to effect that unexplained result,

is unsaid.

the acts or stat,ements t,hrough which the alleged fraud was
perpetrat.ed, it is constitutionally deficient under the Notice
Clause. See e.g., United States v. Nance, 144 U.S. APP. D.C.
477 , 533 e.TeffTi s , 506 F .2d 985
(10th Cir. 19741. tn Cur tment alleged:
(1) that Curtisr busiiffiurported to be a computer matching
service for single people; (2) that Curtis sent, out "compatibi-
lity Questionnaires" which he represented would be fed into the
computer; (3) thaL Curtis took money for this service and placed
ads soliciting customersi (4) that he sent out purported invoices
for computer service work for the purpose of convincing customers
that he was providing compuEer services; and, (5) that in fact he
crcntracted for services he did not provide. fd. at 987-989. The
indictrnent was held defective becauie, vrhile E staEed in detail
the acts used to implement the scheme, it did not stat,e what the
actual false promise was. Id. at 987, 989. Quite plainly,
however, it came much closer to!-inpointing for Curtis the nature
of the alleged fraudulent statements, and the vehicle used to
perpetrate the fraud, t,han did the indictment f iled against [Lls.
Bozeman. Sgg a+?g _IJn 

jrted Statgs, v. ,Dgf fman, . 53.2. F.. SuPP. 1 1 18,
124 (N.D. Tff.-T9€-t@m indictment which stated only
that defendants engaged in a "scheme or artifice ... [t]o obtain
money" through fraud, "[S]tanding alone clearly would not meet
the constitutional requirement of fair notice of the facts
underly ing the charge. " Ig. at 1125) .

43



Certainly the mere depos it ing of more than one absent,ee

baIIot, each purport,ing to be the baIlot of a different voter,

would not, in itself have constituted fraud. The alleged fraud

had to have occurred during the preparation of t,hose ballot,s for

casting. The state was required to charge the event or transac-

tion during which the fraud allegedly was committedr and the

nature of the acts by l,ls. Bozeman which aIlegedly constituted

that fraud. Because the indictment failed in this regard, Ms.

Bozeman had .; advance warning of which of her .activities on

behalf of the effort to bring out the black vote among the

elderly in Pickens County rras being seized upon by t,he state as

supposedly.fraudulent. This failure to provide constitutionally

required notice was extremely prejudicial to her ability to

defend herself especially in view of the expansive array of

grounds and theories of liability which were spun out of the

indictment in the judge's charge to the jury. And if even one or

two of the three counts was insufficient in its factual allega-

tions, Fls . Bozeman's conviction must be set aside because the

potential prejudice inhering in the clefective count or counts

necessarily infects the juryts extra-general verdict finding her

guilty of a single undifferent,iated violation of S17-23-1.

44



l2l Counts I and II were constitutionally insufficient
for failure to allege the crucial mental elemenE
of the offense of fraudulent voting under
s 1 7-23-1

In order to satisfy the Sixth and Fourteenth Amendments, the

indict,ment was required to notify t'[i. Bozeman of every element of

the of f ense charged. 9- United States v.. Ramos, 665 F.2d 469,

474 (Itth Cir. 1982) i United..Stales v. Out1er | 659 F.2d 1305,

1310 (5rh Cir. Unit B 1981); cert. 9sI$!, 455 U.S. 950 11982);

Ugite4 Suates v. -Eqas, 583 F.2d.216t reh. denieg, 588 F'2d 829

(5th Cir. l978li cer!- 99I-iS3, 440 U.S. 981 (19791 i gnit-ed

States v. Strauss, 283 F.2d 155, 158-159 (sth Cir. 1950)' Since

fraud was a necessary element of that offenser !!! P. 14 & n.7

supra (discussion of the elements of 517-23-1)' each count of the

indictment, $ras required to allege that she had act'ed with

Eraudulent knowledge or intent.

Both Count I and Count II failed to alleged any fraudulent,

knowledge or intent, and were therefore constitutionally lnsuffi-

cient. The fact that, they were casE in the precise language of

S17-23-1 -- whose mental element is implicit rather than explicit

does not Save them. u'In an indictment' uPon a statute, iE is

not sufficient to set forth the offence in the words of the

st,atute, unless those words of themselves f ul1y, directly, and

expressly, without any uncertainty or ambiguity, set forth aI1

45



the elements necessary to constitute the offence intended to be

punished.', Russ,el,l- v. united states, 369 U.S 749, 765 (1962)

(quot,ing united states v. carlI, 105 U.S. 511t 612 ( 1882)',).

Ordinarily, of course, because 'each count of an indictment

is meant to charge a separate offense and is therefore to be

treated in effect as a separate indicEment, the finding of a

f atal def ect in one count would not impair the ot,her counts of

the indictment or any guilty verdict, announced as Lo those

counts..qee United States v.'HY.]Ff ,. 512 F.2d 66, 59 (5tn Cir.

1975). But Ms. Bozeman's case is removed from the operation of

that rule by the ext,ra-general verdict under which she was

convicted. That f orm of ,r".d'i"t renders it impossible to

determine on which count or counts t,he conviction rests. Under

these circumstances, the constitutionally defective counts are

inextricable from anything else. This is not a case such as

United St,ates v. Berlin, 472 F.2d 1002, 1008 ( 2nd Cir. 19731 ,

where it was apparent on the record that the "jury very carefully

considered the evidence on each count and reached its verdict on

the evidence relative thereto." Rather, Fls. Bozeman's situation

is comparable to gnited State9 v. Drevfus, 528 F.2d 1064 (5th

Cir. 19761, where the court overturned the conviction on a

twenty-two count indictment. because of a single defective count

since, under the circumstances present in that case, the court

felt that there was a significant probability that the submission

of one defective count to the jury prejudiced the deliberations

46



as a who1e. Ig. at 1071-1072. Ms. Bozemanrs conviction by a

single verdict of "guilty as charged" upon all three counts of

her indictment without differentiation suggests even more

st rongly than in Dreyf us a signif icant possibilit,y of pre judice;

and the judgment of conviction must, therefore fall because of the

unconstitutional failure of Counts I and If to allege each

necessary mental element of S17-23-1.

qoNcLusroN

For the reasons stated, the judgment, of the district court

should be affirmed.

Respectfully submitted,

JUEIUS L. CHAI,TBERS
LANI GUINIER
NAACP Legal Defense Fund, Inc.
99 Eudson Street
New York, New York 10013
16th Floor
(212) 219-r900

AI{IEONY G. AI.ISTERDAI*I
New York University
School of Law
40 Washington Square South
Room 327
New York, New York 10012
(212) 598-2538

47



VA}IZETTA PENN DURAT{T
639 l,tartha St,reet
llontgom€ry, Alabana 35108
(2051 262-7337

SIBGFRIED KNOPF
555 Callfornla Street
Suite 5060
San Franclsco, Callfornla 9{lOtl

Attorneye for Appellee

48



CERUTICATE oF sE-RVrcE

I hereby certify that I have this lst day of February 1985

served a copy of the foregoing on t,he attorney for appellants by

placing same in the united states mailr Postage prepaid and

addressed as follows:

P .l{. Johnston
P.O.. Box 442
Aliceville, Alabama 35442

IrAt{I GUINIEA'
ATTORNEY FOR APPELLEE

49