USA v Smith Brief of Appellants
Public Court Documents
July 15, 1998
73 pages
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Brief Collection, LDF Court Filings. USA v Smith Brief of Appellants, 1998. fddbadcd-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/205c157e-4adb-4f24-b25f-2b2b51e36cae/usa-v-smith-brief-of-appellants. Accessed July 31, 2025.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
9 8 - 6 1 2 1
NO. 98-6121
UNITED STATES OF AMEF ICA,
Plaintiff-Appellee,
filed
U.8. COURT OF APPEALS
ELEVENTH CIRCUIT
THOMAS K. KAHN
CLERK
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
BRIEF OF APPELLANTS
PAMELA S. KARLAN
559 Nathan Abbott Way
Stanford, CA 94305-8610
(650) 725-4851
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
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) 219-1900
COUNSEL FOR APPELLANTS
NO. 98-6121 UNITED STATES v. SMITH & TYREE
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record hereby certifies that the following
persons have an interest in the outcome of this case:
1. Patrick Samuel Arrington (counsel at the selective prosecution
hearing for appellant Smith)
2. Jacqueline A. Berrien (appellate counsel for appellants)
3. Shelton Braggs (alleged victim)
4. Gregory M. Biggs (Special Assistant United States Attorney; trial
counsel for appellee)
5. Willie C. Carter, Jr. (alleged victim)
6. Cassandra Lee Carter (alleged victim)
7. Norman J. Chachkin (appellate counsel for appellants)
8. Chestnut, Sanders, Sanders & Pettaway, P.C. (pretrial, trial, and
appellate counsel for appellant Tyree)
9. Eddie T. Gilmore (alleged victim)
10. Laura E. Hankins (appellate counsel for appellants)
11. Angela Hill (alleged victim)
12. Michael Hunter (alleged victim)
13. Elaine R. Jones (appellate counsel for appellants)
Cl-of 3
l
NO. 98-6121 UNITED STATES v. SMITH & TYREE
14. Pamela S. Karlan (appellate counsel for appellants)
15. Law Offices of Robert H. Turner (pretrial, trial, and appellate
counsel for appellant Smith)
16. J. Patton Meadows (Assistant United States Attorney; trial coun
sel for appellee)
17. NAACP Legal Defense & Educational Fund, Inc. (appellate coun
sel for appellants)
18. Office of the United States Attorney for the Northern District of
Alabama (counsel for appellee)
19. Collins Pettaway, Jr. (pretrial, trial, and appellate counsel for
appellant Tyree)
20. Sam Powell (alleged victim)
21. Caryl Privett (United States Attorney; counsel at the selective
prosecution hearing for appellee)
22. The Honorable T. Michael Putnam (magistrate judge; presided
over the selective prosecution hearing)
23. The Honorable C. Lynwood Smith, Jr. (trial judge)
24. Frank Smith (defendant-appellant)
C2-of 3
li
NO. 98-6121 UNITED STATES v. SMITH & TYREE
25.
26.
27.
Robert H. Turner (pretrial, trial, and appellate counsel for appel
lant Smith)
Connie Tyree (defendant-appellant)
Marvin W. Wiggins (counsel at the selective prosecution hearing
for appellant Tyree)
C3-of 3
in
STATEMENT REGARDING ORAL ARGUMENT
Appellants ask for oral argument in this matter. This case presents
several complex legal and factual claims regarding an election-related prosecu
tion in Greene County, Alabama. This case presents a substantial claim of
selective prosecution (which was the subject of an extensive evidentiary hear-
ing), as well as legal questions of first impression regarding the proper con
struction of a relatively little-used criminal statute, 42 U.S.C. § 1973i, its rela
tionship to state law, and the application of the sentencing guidelines to con
victions under section 1973i. Appellants believe that this Court’s understand
ing would be greatly assisted by oral argument.
IV
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 Roman
(scalable) 14 point.
v
TABLE OF CONTENTS
Certificate of Interested Persons ...................................................................... j
Statement Regarding Oral A rgum ent............................................................. jv
Certificate of Type Size and Style ................................................................... v
Table of C on ten ts........................................................................................... ^
Table of C ita tions.......................................................................................... ^
Statement of Jurisdiction ................................................................................. xy
Statement of the Is su e s ................................................................................ 1
Statement of the C a se ............................................................................. 2
Course of the Proceedings .................................................................... 3
Statement of F a c ts .................................................................................... 4
1. The decision to prosecute Frank Smith and Connie Tyree 6
2. Racial bias in the selection of the j u r y ............................. 11
3. The evidence at t r i a l ............................................................ 12
Standard of Review ............................................................................. 20
Summary of the Argument ........................................................................... 23
A rgum ent.............................................................................................. 25
I. The Indictment in this Case Should Be Dismissed
Because the Government Engaged in Racially and
Politically Selective Prosecution ........................................................ 25
Page
vi
Table of Contents {continued)
A. The Magistrate Judge Used the Wrong Legal
Standard for Determining Whether Similarly
Situated Individuals Had Not Been Prosecuted ................... 26
B. The Magistrate Judge Made Several Legal
Errors in Assessing the Evidence of
Discriminatory Purpose ............................................................ 28
C. The Government’s Behavior at Trial Provides
Additional Compelling Evidence of its
Discriminatory In te n t................................................................. 31
II. There Was Insufficient Evidence to Convict Appellant
Tyree on Counts 12 and 1 3 ................................................................. 32
III. Appellants’ Sentences Violated the Sentencing Guidelines .......... 34
A. The District Court Chose the Wrong Base Offense
Level ................................................................... 34
B. The District Court Erred in Enhancing
Appellant Tyree’s Sentence for Abuse of T r u s t ................... 36
C. The District Court Erred in Enhancing Appellant
Smith’s Sentence for Obstruction of Ju s tice ........................... 40
Page
Argument (continued)
vii
Table of Contents (continued)
D. The District Court Erred in Enhancing Appellants’
Sentences Because of Their Roles in the O ffenses.................41
IV. Appellants Were Improperly Convicted on
Multiplicitous C o u n ts ........................................................................... 43
V. Appellants Were Prejudiced by the Improper
Admission and Use of Evidence Regarding Other
Absentee Ballots .................................................................................. 45
VI. The District Court’s Charge Regarding "Proxy Voting"
Permitted the Jury to Convict Appellants Without Finding
Lack of Consent Beyond a Reasonable D o u b t ............................... 49
VII. Appellant Tyree Was Denied Her Constitutional Right
To Present Witnesses in Her D e fe n se .............................................. 51
A. The Government Substantially Interfered With
Burnette Hutton’s Decision Whether to Testify
on Appellants’ Behalf ............................................................... 51
B. Under the Circumstances, the District Court
Abused Its Discretion in Excluding Hutton’s
Prior Testim ony............................................................ .............. 53
Page
Argument (continued)
viii
Table of Contents {continued)
C onclusion..................................................................................................... 54
Certificate of Service............................................................ following page 55
TABLE OF CITATIONS
Cases’.
Anderson v. United States, 417 U.S. 211 (1974) ......................................... 35
Batson v. Kentucky, 476 U.S. 79 (1986)..................................................... 2, 3
Bonner v. City o f Prichard, 661 F.2d 1206 (11th Cir. 1981)
(en banc) ....................................................................................................
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1 9 9 0 )............................. 48
Hadnott v. Amos, 394 U.S. 358 (1969) .......................................................... 5
Hardy v. Wallace, 603 F. Supp. 174 (N.D. Ala. 1985)
(three-judge court) . .............................................................................. 5
Keyes v. School District No. 1, 413 U.S. 189 (1973) .................................. 32
Parr v. Woodmen o f the World Life Ins. Co., 791 F.2d
888 (11th Cir. 1 9 8 6 )............................................................................. 30
Swam v. Alabama, 380 U.S. 202 (1965).......................................................... 2
Smith v. Meese, 821 F.2d 1484 (11th Cir. 1 9 8 7 ).................................... 46-47
Page
IX
Taylor v. Cox, 710 So. 2d 406 (Ala. 1 9 9 8 )................................................... 50
United States v. Alpert, 28 F.3d 1104 (11th Cir. 1994) . . . .......................... 40
* United States v. Armstrong, 517 U.S. 456 (1996)...................... 25, 27, 28, 29
*United States v. Barakat, 130 F.3d 1448 (11th Cir. 1997) ............ 21, 38, 39
United States v. Benny, 786 F.2d 1410 (9th Cir.), cert.
denied, 479 U.S. 1017 (1986)............................................................... 21
United States v. Blackwell, 694 F.2d 1325 (D.C. Cir. 1 9 8 2 ) ............ .. 52, 53
-4,
United States v. Blum, 62 F.3d 63 (2d Cir. 1995) ....................................... 22
United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981)............................ 35
United States v. Deeb, 13 F.3d 1532 (11th Cir. 1994),
cert, denied, 513 U.S. 1146 (1995) ..................................................... 23
United States v. Dunnigan, 507 U.S. 87 (1993) ............................................ 40
* United States v. Garrison, 133 F.3d 831 (11th Cir. 1998)............... 21, 37, 38
United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980) ........................... 52
* United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987),
cert, dismissed, 487 U.S. 1265 (1988) . . . . 2, 5, 20, 25, 26, 27, 28, 29
United States v. Grubbs, 829 F.2d 18 (8th Cir. 1987) ............................. 43n
Table of Citations (continued)
Page
Cases (continued):
x
Table of Citations (continued)
United States v. Guerrero, 650 F.2d 728 (5th Cir. 1981) ........................... 48
United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979) ...................... 51
United States v. Henricksen, 564 F.2d 197 (5th Cir. 19 7 7 )................. 22, 52
United States v. Hubert, 138 F.3d 912 (11th Cir. 1998) ............................. 40
United States v. Jones, 52 F.3d 924 (11th Cir.), cert.
denied, 516 U.S. 902 (1995)................................................................. 20
United States v. Langford, 946 F.2d 798 (11th Cir. 1991),
cert, denied, 503 U.S. 960 (1992) ............................................ 44, 45, 46
United States v. Lumley, 135 F.3d 758 (11th Cir. 1998)...................... 21, 22
United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997),
cert, denied, 118 S. Ct. 1203 (1998) ................................................ 20n
United States v. Schlei, 122 F.3d 944 (11th Cir. 1997),
cert, denied, 118 S. Ct. 1523 (1998) ................................................... 22
United States v. Sirang, 70 F.3d 588 (11th Cir. 1995) ........................
United States v. Tapia, 59 F.3d 1137 (11th Cir.), cert.
denied, 516 U.S. 1001 (1995)............................................................... 21
Page
Cases (continued):
xi
Table of Citations (continued)
United States v. Tokars, 95 F.3d 1520 (11th Cir. 1 9 9 6 )......................... 21, 22
United States v. Veltmann, 6 F.3d 1483 (11th Cir. 1 9 9 3 )........................... 48
Washington v. Texas, 388 U.S. 14 (1967)..................................................... 51
*Wayte v. United States, 470 U.S. 598 (1985).................................... 25, 28, 30
Webb v. Texas, 409 U.S. 95 (1972) ............................................................... 52
Statutes
15 U.S.C. § 78j (1994)..................................................................................... 44
15 U.S.C. § 78ff (1994) .................................................................................. 44
18 U.S.C. § 371 (1994) .................................................................................... 3
18 U.S.C. § 1341 (1994) ................................................................................ 44
28 U.S.C. § 1291 (1994) ................................................................................ xv
42 U.S.C. § 1973i (1994) ........................................................ iv, 23, 24, 45, 50
42 U.S.C. § 1973i(c) (1 9 9 4 ).............................................. 3, 21, 35, 43, 44, 45
42 U.S.C. § 1973i(e) (19 9 4 )......................................................................... 3? 35
42 U.S.C. § 1973/(c)(l) (1994 )...................................................................... 45
Ala. Code § 17-10-7 ......................................................................................... 9
Ala. Code § 17-10-9 ....................................................................................... 13
Page
Cases (continued):
Xll
Table of Citations (continued)
Other Materials
Fed. R. App. P. 4 ....................................................................................... .. xv
Fed. R. Evid. 804(b)(1)........................................................................... 19, 53
1997 County and City Extra: Annual Metro, City, and
County Data Book (George E. Hall and Deirdre A.
Gacquin eds. 1997)........................................................................... 5n, 9
Kenneth J. Melilli, Batson in Practice: What We Have
Learned About Batson and Peremptory Challenges,
71 Notre Dame L. Rev. 447 (1996) ................................................... 31
Nomination o f Jefferson B. Sessions, III, to be U.S
District Judge for the Southern District o f Alabama'.
Hearings Before the Sen. Judiciary Comm., 99th Cong.,
2d Sess. (1986)......................................................................................... 7
Michael J. Raphael & Edwards J. Ungvarsky, Excuses,
Excuses: Neutral Explanations Under Batson v.
Kentucky, 27 U. Mich. J.L. Ref. 229 (1 9 9 3 )............................... 31-32
Joshua E. Swift, Note, Batson’s Invidious Legacy:
Discriminatory Juror Exclusion and the "Intuitive"
Peremptory Challenge, 78 Cornell L. Rev. 336 (1993) ................... 32
Page
xiii
Table of Citations (continued)
Page
U.S. Sentencing Commission, Guidelines Manual (1997) . . . . 4, 35, 39, 42
Other Materials (continued):
(*) Denotes cases primary relied upon
xiv
STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291
and Fed. R. App. P. 4. This case involves the direct appeal of criminal
convictions in the United States District Court for the Northern District of
Alabama.
xv
STATEMENT OF THE ISSUES
1. Whether the government engaged in selective prosecution.
2. Whether there was insufficient evidence to convict appellant Tyree
on Counts 12 and 13.
3. Whether the district court imposed an illegal sentence because it:
(a) chose the wrong Base Offense Level;
(b) improperly enhanced appellant Tyree’s offense level for
abuse of a position of trust;
(c) improperly enhanced appellant Smith’s offense level for
obstruction of justice; and
-4.
(d) improperly enhanced both appellants’ offense levels for their
roles in the offenses.
4. Whether appellants were convicted on multiplicitous counts.
5. Whether appellants suffered unfair prejudice from the introduction
of evidence regarding entirely legal, constitutionally protected conduct.
6. Whether the district court’s instructions to the jury regarding
so-called "proxy" voting permitted the jury to convict appellants without
concluding, beyond a reasonable doubt, that appellants had cast other voters’
ballots without those voters’ permission.
7. Whether appellant Tyree was denied her right under the Fifth and
Sixth Amendment to present witnesses in her defense.
1
STATEMENT OF THE CASK
This case marks a disturbing reappearance of the discriminatory
prosecution of black voting rights activists in Greene County, Alabama. Ten
years ago, this Court found that the government’s prosecutorial decisions in
a similar case suggested a "pattern" of "specifically targeting those counties
where blacks since 1980 had come to control some part of the county
government" and prosecuting only individuals who "were members of the black
majority faction." United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.
1987), cert, dismissed, 487 U.S. 1265 (1988). The government’s racial
selectivity did not stop at the courthouse door. This Court further noted "a
4.
recurrent pattern of exclusions of black venirepersons" in the government’s
voting fraud prosecutions in Alabama, id. at 1541, that mandated not only a
hearing regarding the then-newly announced rule of Batson v. Kentucky, 476
U.S. 79 (1986), but also a hearing into whether, under "the seminal case of
Swain v. Alabama, 380 U.S. 202 [(1965)]," id., the U.S. Attorney’s Office was
engaging in the pervasive and systematic exclusion of black citizens.1
The government seems to have learned nothing from its disgraceful
conduct in the 1980’s. Once again, it has targeted black political activists,
1 On remand, the government ultimately dismissed all remaining charges
against Mr. Gordon.
2
launched a massive investigation that produced a set of doubtful and unfounded
charges, pressured witnesses, and violated the central equal protection
command of Batson v. Kentucky. Once again, this Court should intervene to
rein in a prosecution effort that threatens more injury to the basic values of
American democracy than anything the appellants are alleged to have done.
Course of Proceedings
On January 30, 1997, appellants Frank Smith and Connie Tyree were
charged in a thirteen-count indictment with a set of allegations arising out of
the November 8, 1994, general election in Greene County. R l-1. Count 1 of
the indictment charged both appellants with a conspiracy in violation of 18
U.S.C. § 371; count 2 charged both appellants with voting more than once in
violation of 42 U.S.C. § 1973i(e); and counts 3-13 charged one or both
appellants with providing false information for the purpose of establishing
eligibility to vote in violation of 42 U.S.C. § 1973i(c).
Appellants moved to dismiss the indictment on grounds of selective
prosecution. On the basis of their threshold showing of racial or political
selectivity, Rl-46, Magistrate Judge T. Michael Putnam conducted a five-day
evidentiary hearing. See R10-R14. Ultimately, his report and
recommendation suggested that appellants’ motion be denied, R2-88-29, and
the district court adopted that conclusion, R2-95.
Judge C. Lynwood Smith, Jr., presided over appellants’ jury trial, which
3
lasted from September 8 to September 15,1997. Appellant Smith was convicted
on all seven counts with which he had been charged and appellant Tyree was
convicted on all eleven counts with which she had been charged. See R20-
1348-50. Over appellants’ objection that they had initially been informed prior
to trial that the Base Level for their offenses would be 6, see R22-3-4, the
court concluded that the appropriate Base Level was 12. See id. at 11; U.S.
Sentencing Commission, Guidelines Manual § 2H2.1(a)(2) (1997). The court
enhanced that Base Level by 6 additional levels for each appellant, yielding
an Offense Level of 18. See R22-12. The court then sentenced each defen
dant to 33 months of imprisonment (the maximum permissible under the
Guideline Imprisonment Range), two years of supervised release, forty hours
of community service, and the required $50.00 per count assessment fee. See
id. at 17-18. Over the United States’ objection, Magistrate Judge Putnam
granted appellants’ motion for release pending appeal, R3-134, and they
remain free on bond.
Statement of Facts
Greene County, Alabama, is one of the most heavily African-American
jurisdictions in the United States. Its population is somewhere between 80
and 92 percent black.2 Like many counties in the Alabama Black Belt,
According to the 1990 Census, Greene County’s population was 80.9
4
Greene has been the site of fiercely waged, racially polarized political contests
since the passage of the Voting Rights Act of 1965, which began the process
of enfranchising its black citizens. See, e.g., R2-88-3; RIO-65; R13-823. The
pre-existing white political power structure has resisted the black majority’s
pursuit of political power in a variety of ways. See R10-66-68; see also, e.g,
Hadnott v. Amos, 394 U.S. 358, 362-63 (1969) (local probate judge kept
qualified black candidates off the general election ballot through
discriminatory application of unprecleared state election laws); Hardy v.
Wallace, 603 F. Supp. 174, 176-77 (N.D. Ala. 1985) (three-judge court) (soon-
to-be-displaced white state legislators obtained "unprecedented" legislation to
strip soon-to-be-elected black legislators of their appointment power over the
Racing Commission, the county’s largest source of revenue and employment).
Today, the rival blocs might be described as, on one side, a "black majority
faction," Gordon, 817 F.2d at 1540, affiliated with the Alabama New South
Coalition, and, on the other, an ostensibly nonpartisan and biracial group, the
percent black. See 1997 County and City Extra: Annual Metro, City, and County
Data Book 24 (George E. Hall and Deirdre A. Gacquin eds. 1997) (Table B.
States and Counties - Land Area and Population). In his opinion on
appellants’ selective prosecution claim, the Magistrate Judge indicated that
Greene County now "has a 92% African-American population." R2-88-2.
5
political opponents of the black majority faction and backed by most of the
remaining white power structure within the County.
Absentee voting plays a distinctive and critical role in Greene County’s
electoral politics. As the Magistrate Judge found:
Because of the history of violence and intimidation associated with
efforts by African-Americans to exercise their vote, many African-
Americans continued to be uncomfortable going to the polls to
vote, and felt more comfortable voting an absentee ballot in the
privacy of their homes. Due to the unique racial history of voting
in Greene County and perhaps others, absentee voting became a
widespread practice evidenced by a significantly higher rate of
absentee voting in Greene County compared to counties with
predominantly white populations.
R2-88-3. In 1994, 1,429 of the roughly 3,800 votes cast in Greene County
were cast absentee. Id. at 3-4. Fewer than 40 of these were cast by white
voters. Id. at 4.
The 1994 general election for the Greene County Commission was hotly
contested. It pitted candidates supported by the black majority - including
appellant Frank Smith ~ against candidates whose support came from the
Citizens for a Better Greene County. See R10-74-75. Appellant Connie Tyree
was one of Smith’s supporters.
1. The decision to prosecute Frank Smith and Connie Tyree: The
investigation that led to this prosecution began even before the 1994 election,
when politicians in the anti-New South faction contacted the FBI and the U.S.
Citizens for a Better Greene County ("CBGC"), see RIO-70-72, founded by
6
Attorney’s Office to complain about possible voting irregularities. R2-88-8.
Members of the black majority faction also complained, after the election,
about violations committed by their opponents. See, e.g. R14-1004,1006,1012,
1020, 1023-24, 1028, 1034-37; RIO-237; Rll-376; Rll-412. Until October
1995, however, the investigation was essentially "dormant," in part because the
United States District Court for the Southern District of Alabama had
impounded all absentee ballots throughout the state in connection with an
unrelated election dispute. See R2-88-8.
The investigation was revived in the fall of 1995 at the instigation of the
Alabama Attorney General’s Office, which contacted the FBI to ask whether
it was looking into allegations concerning Greene County. Alabama’s
Attorney General at the time was Jefferson Sessions, a white Republican.
RIO-37. In the 1980s, as U.S. Attorney for the Southern District of Alabama,
Sessions had been responsible for the unsuccessful prosecutions of black
voting rights activists in Perry County, Alabama; disapproval of his tactics in
that case - which had included bringing a series of charges on which the
government ultimately introduced no evidence, and pressuring elderly black
voters - contributed to the Senate Judiciary Committee’s refusal to confirm
him to a seat on the federal bench. See generally Nomination o f Jefferson B.
Sessions, III, to be U.S District Judge for the Southern District o f Alabama:
Hearings Before the Sen. Judiciary Comm., 99th Cong., 2d Sess. (1986); id. at
7
338 (petition from various black elected officials in Greene County opposing
Sessions’ nomination). As Alabama Attorney General after 1994, Sessions
pursued state-court voting rights prosecutions in two other majority-black
counties, R 10-38, cases which were quite similar to the allegations involved in
Greene County, R12-503-06.3 His office had no investigations of voting rights
improprieties in any majority-white counties, R10-40-42; nor was it
investigating any white activists.
The most readily apparent distinction between the cases Attorney
General Sessions decided to bring in state court and the Greene County case
involves the local forums. In Wilcox and Hale Counties, where the state filed
-4.
indictments in state court, the circuit court judges and local district attorneys
were white;4 in Greene County, by contrast, both the circuit court judge and
3 As might have been expected, given the history of questionable voting-
rights prosecutions in the Alabama Black Belt, mistrust and personality con
flicts between local black elected officials and white state officials hampered
investigation and prosecution. See R2-88-16-17.
And even in Wilcox County, the Attorney General’s Office essentially
bypassed local law enforcement personnel, who were black, in favor of using
their own staff. See R 13-925 (state investigators did not contact the Wilcox
County Sheriff although that is their standard operating procedure).
8
the local prosecutor were black. See R10-40-42. Bringing a prosecution
involving Greene County in federal court had one other clearly foreseeable
consequence: dramatically changing the racial composition of the jury pool.
There are 31 counties in the Northern District of Alabama. 28 U.S.C. § 81(a)
(1994). Greene is the smallest and by far the most heavily African-American
county within the Northern District. In contrast to Greene County, 22 of the
other 30 counties in the Northern District are more than 80 percent white,
and 12 are more than 90 percent white. See 1997 County and City Extra:
Annual Metro, City, and County Data Book at 24, 38. Thus, rather than pre
senting its case to an overwhelmingly black jury in a county where the jurors
were likely to be familiar with the nature of Greene County politics and high
levels of absentee voting, federal prosecution insured an overwhelmingly white
jury pool from counties with a very different structure of absentee voting, a
pool whose members were likely to be unfamiliar with, and suspicious of,
customary Greene County politics.
Under Alabama law, absentee ballots must be witnessed by two
individuals, see Ala. Code § 17-10-7. The federal and state investigators
decided to focus on the approximately 800 absentee ballots that had been
witnessed by persons who had witnessed more than fifteen ballots. Among
those who had witnessed a substantial number of ballots were appellant Tyree,
who had witnessed 166, R2-88-6, and several members of the opposing
9
political camp, including Rosie Carpenter, who witnessed approximately 100,
R14-990, and Lenora Burks and Annie Thomas, id. at 991.
In a sweep reminiscent of the 1980s investigation, agents from the FBI,
the Alabama Bureau of Investigation, and the Attorney General’s Office
fanned out across Greene County to question voters about their ballots. At
times, they melded that investigation with an investigation into recent,
apparently racially motivated, church burnings. While the decision to combine
the investigations might have been made essentially to save manpower and
resources, R2-88-12, its effect was to sow confusion and disquiet within the
black community. R11-252.
At the selective prosecution hearing in this case, substantial lay and
expert testimony was presented, and the Magistrate Judge found, that "a
number of other people, aside from the defendants, may have been involved
in obtaining forged or fraudulent signatures on absentee ballots." R2-88-13.
A number of witnesses testified that they had contacted the FBI or the
Alabama authorities with complaints about violations committed by activists
in the anti-New South Coalition bloc. See, e.g., R10-94-110; R10-140-42; R10-
204, 213-24; Rll-409; Rll-423-26.
The testimony also established that investigators had not followed up on
indications of voting violations committed by a number of white individuals or
black anti-New South Coalition partisans. See, e.g. R14-1004, 1006, 1012,
10
1020, 1023-24, 1028, 1034-37; RIO-237; Rll-376; Rll-412. The evidence
further suggested that, to the extent the FBI did investigate allegations
brought by New South Coalition members, it did so after the filing of the
selective prosecution motion in this case, see Rll-426, suggesting that the
investigation was conducted for the purpose of rebutting the motion.
Throughout the selective prosecution hearing, the government sought
to explain away the existing focus of its probe by insisting that its investigation
was "ongoing." See, e.g., id. at 362, 415; R13-808, 817; R14-975, 976, 1058.
The government’s massive investigative effort yielded an indictment in
which appellants were alleged to have acted illegally with respect to seven of
the 1,429 absentee ballots cast in the 1994 general election. At trial, Assistant
U S. Attorney Meadows acknowledged, with regard to the other absentee
ballots that appellants may have witnessed, that "I honestly can’t prove any
thing illegally about these," R15-206; "I can’t prove that they’re improper," id.
at 207. Nonetheless, over appellants’ objection, see id. at 174-75, Meadows
elicited lengthy testimony regarding the other ballots Tyree had witnessed, see
id. at 176-205; R17-594-645. As Meadows’s closing argument shows, see R20-
1199-1200, the introduction of that evidence could only be understood as an
attempt to suggest massive criminal activity on the basis of uncharged - even
constitutionally protected -- conduct.
2. Racial bias in the selection of the jury: The juiy in this case was
11
selected from a pool drawn from the entire Northern District of Alabama,
which, as we have already seen, had the foreseeable consequence of producing
an overwhelmingly white venire.
Faced with claims regarding racial discrimination in the parties’ use of
their peremptory strikes, the district court found that appellants’ decisions
were "racially neutral." 1SR-16. By contrast, it found that the United States
had used its peremptory strikes in a racially discriminatory manner. The
United States used three of its six peremptory strikes to remove African
Americans. Assistant U.S. Attorney J. Patton Meadows explained that he had
struck two female black venirepersons because they had family members who
lived in Greene County. See id. at 14-15. With regard to a third black
venireperson struck by the government, Anthony Gray, Meadows claimed that
Gray had not been paying attention during voir dire.
The district court observed that the two women’s connections with
Greene County seemed "tenuous," although it ultimately accepted the
government’s explanation. Id. at 16. But the district court rejected Meadows’s
proffered justification as to Anthony Gray, finding that the government’s
claims were "not consistent" with its observations. Id. It therefore ordered
that Anthony Gray be seated on appellants’ jury.
3. The evidence at trial. Absentee voting in Alabama is a two-step
process, involving first an application and then a ballot. An eligible voter can
12
file an application with the county Circuit Clerk, R15-117, containing his
name, various other information and an address to which he wishes to have
the ballot sent, id. at 118. (The address need not be his voting address.) The
clerk then checks the voting rolls to make sure the person requesting the
ballot is properly registered to vote and sends him an absentee ballot packet.
id. at 134. The packet contains a ballot, a plain envelope (commonly referred
to as a "secrecy" envelope) and an outer envelope (commonly called an
"affidavit" envelope). See Ala. Code § 17-10-9. The affidavit requires the
voter’s name, place of residence, voting precinct, date of birth, and reason for
voting absentee, as well as his signature or mark. The affidavit must either be
notarized or witnessed by two witnesses. See id.
The government’s case centered on seven absentee ballots, see R15-147-
48, which it contended that either one or both of the appellants were
responsible for casting without the consent of the nominal voter. The key
evidence, in addition to live testimony from some of the voters and two expert
witnesses, consisted of the absentee applications and affidavits connected with
each of the seven voters.
It was undisputed that one or both of the appellants were involved with
each ballot, as a witness or in filling out "administrative" information such as
the voter’s name, address, or polling place. (It is perfectly legal for someone
other than the voter to fill out this "administrative" information; the Circuit
13
Clerk testified that on occasion, the staff in her office would insert the
necessary information. See R15-225.) As to some, but not all, of the
applications or affidavits, appellants also provided the voter’s signature. Table
1 summarizes the evidence, taken in the light most favorable to the government.
Voter Signature on Ballot
Application
Signature on Voter
Affidavit
Angela
Hill
No testimony regarding who
signed the ballot application.
Tyree signed the voter
affidavit. R17-708.
Eddie
Gilmore
Neither Smith nor Tyree
signed the ballot application.
See R17-719/1)
Tyree signed the voter
affidavit. R17-707.
Sam
Powell
Tyree "probably" signed the
ballot application. R17-715.
Neither Smith nor Tyree
signed the voter affida
vit/2)
Shelton
Braggs
Neither Smith nor Tyree
signed the ballot application.
R17-756.
Tyree signed the voter
affidavit. R17-707.
Willie
Carter
Smith signed the ballot appli
cation. R17-709.
Not able to determine who
signed the voter affidavit.
R17-719/3)
Cassandra
Carter
Smith signed the ballot appli
cation. R17-709.
Not able to determine who
signed the voter affidavit.
R17-719/4)
Michael
Hunter
Neither Smith nor Tyree
signed the ballot application.
R17-724/5)
Neither Smith nor Tyree
signed the voter affidavit.
R17-724.
Table l 5 [footnotes on next page]
14
The pivotal issue in this case was the question of the seven voters’
consent. See R20-1285, 1290. The government called six of the alleged "victim
voters" as witnesses. The government did not call the seventh voter -- Shelton
Braggs, whose vote was the subject of Counts 12 and 13 of the indictment. 5
5 Notes to Table 1:
The government failed to obtain any handwriting exemplars from
Gilmore; appellants’ expert, on the basis of his exemplar, concluded that
Gilmore had probably written his own signature. See R19-1025.
Burnette Hutton, Sam Powell’s daughter - signed the affidavit.
R17-737.
On cross-examination, the government’s expert looked at addition
al exemplars of Carter’s signature provided by Carter and testified that the
signature looked similar to some known Carter signatures. R17-764.
The signature could have been written by the same person who
signed the Willie C. Carter affidavit, see R17-763, which appellants’ expert
testified it was "highly probable" Willie C. Carter had in fact signed, R19-1015.
The government failed to obtain exemplars from Hunter or from
his brother. See R17-760.
15
Each of the six alleged victim voters who testified provided some
evidence from which the jury might have concluded that the voter did not
consent to cast an absentee ballot in the 1994 general election. But the
government was forced to rely on several voters’ grand jury testimony because,
on the stand, the voters indicated that they had consented to the casting of
their votes. See, e.g., R16-472 (voter Michael Hunter testified at trial that his
brother had signed his ballot with his consent; the government introduced his
testimony before the grand jury to prove lack of consent); R17-567 (voter
Willie C. Carter testified at trial that he had given appellant Smith permission
to submit an absentee application; the government introduced his testimony
before the grand jury to prove lack of consent).
The government presented no evidence with regard to Shelton Braggs’s
consent. The government had no known examples of Braggs’s handwriting,
see id. at 757, and its expert witness testified that Tyree had not signed
Braggs’s absentee ballot application, id. at 756. The only evidence in the
record regarding Braggs was that he was a registered voter in Greene County
who spent most of his time out of state and that, during the summer of 1994,
#he had been Tyree’s boyfriend and had been living with her, R18-879-80.
On the counts relating to Sam Powell, appellant Tyree was prevented
from presenting evidence regarding his consent by the district court’s exclusion
of a key witness’s testimony. There was undisputed testimony by the
16
government’s own expert witness that Burnette Hutton, Powell’s daughter, had
signed Powell’s voter affidavit. R17-737. Hutton appeared as a defense
witness at the selective prosecution hearing. Before she was permitted to
testify, however, the government asked the court to advise her of her Fifth
Amendment right to remain silent and to appoint counsel for her. R11-288.
After discussion with the magistrate judge, Hutton indicated her willingness
to testify. She testified that she had assisted her father, who was illiterate and
whose business affairs she handled, with his absentee ballot in 1994 by signing
for him. Id. at 294. She also testified that she had told FBI agents who had
interviewed her that she had signed her father’s ballot with his consent. See
id. at 300. After a somewhat frustrating cross-examination, the government
abruptly demanded that Hutton provide handwriting exemplars while on the
witness stand, id. at 327. The clear import of this demand, particularly in light
of the government’s earlier representations, was to threaten Hutton with
prosecution for sticking to her story. Certainly, the magistrate judge
understood that to be the message, since he interrupted the hearing and
renewed his "suggestion]" that he appoint counsel for her. Id. at 333.
Ultimately, Hutton agreed. Magistrate Judge Putnam recessed the hearing
and appointed Rick L. Burgess, Esq., to represent her.
That afternoon, during a discussion among counsel for Hutton,
appellants, and the government, Meadows became incensed, id. at 355 ("THE
17
COURT: Calm down. All right. Go ahead, Pat."), and claimed that Hutton’s
testimony was "all a lie." Id. at 337. He insisted that Hutton had never told
him that she had signed her father’s affidavit. See, e.g., id. at 342, 343, 355
("I’m here to tell you that is a point blank lie.").
In light of the government’s threat to open a perjury investigation and
her newly appointed attorney’s sense that she had not intelligently waived her
rights, the magistrate judge announced that "I’m not going to make her get on
the stand now," id. at 345. In response, U.S. Attorney Privett responded:
Judge, we certainly understand that. And basically the last thing,
I think, that we had was the handwriting, wasn’t it Pat? [J. Patton
Meadows].
MR. MEADOWS: The handwriting. And I wanted to mark those
affidavits so that they could be identified that those are the affida
vits that we were talking about, and the application. I haven’t had
a chance to do that yet.
Id. at 346, 347 (emphasis added). The magistrate judge refused to require her
to testify as to the affidavit:
I’m not going to make her do that. It seems to me that that goes
more to helping establish the perjury charge, because ultimately
what that would be is that would be the basis for saying, this is the
affidavit you claim to have signed for your father. Here the hand
writing on this affidavit does not match your actual handwriting
exemplars, therefore it must be a peijuiy.
Id. at 349. He did, however, order Hutton to provide handwriting exemplars.
Ultimately, the government’s own expert witness concluded that "the Sam
Powell voter signature on the affidavit, compared to the known handwriting
18
of Burnette Hutton writing the name Sam Powell, again is very good
agreement." R17-737.
At trial, Sam Powell testified in a somewhat confused fashion. He was
unsure of the year in which he was bom, compare R 16-440 with R 16-442; and
his age, compare R16-437 with R16-443. He testified that he did not
remember giving Hutton permission to fill out his ballot, see R16-438-39, but
he also testified that his daughter had never done anything for him in handling
his affairs that he had not told her to do, see id. at 448.
When appellants called Hutton to testify, the government represented
that it had an "open" case file in its office regarding Hutton’s peijury. R18-
855. Since it could hardly now claim that she had lied about whether she had
signed her father’s affidavit, it now represented that it was considering a
perjury prosecution on the question whether Hutton had indeed told AUSA
Meadows this when he had interviewed her. R18-862. In light of this
apparent vendetta, Hutton, provided with a second court-appointed lawyer,
quite sensibly declined to testify. R19-978.
Since Hutton was therefore unavailable, appellants sought to introduce
her testimony from the selective prosecution hearing under Fed. R. Evid.
804(b)(1). They wished to introduce solely that part of her testimony in which
she said she had signed Powell’s affidavit with his consent. The government
objected on the grounds that it had not had a full opportunity to cross
19
examine her. R19-975. The district court agreed and excluded Hutton’s
entire testimony. R19-1056.
Standard of Review
Appellants’ claim o f selective prosecution: This Court has not expressly
identified the standard of review for claims of selective prosecution once, as
here, defendants have shown their entitlement to an evidentiary hearing.6 It
has suggested in dicta that the appropriate standard is de novo. See United
States v. Jones, 52 F.3d 924 (11th Cir.) ("[T]he record is sufficient for us to
determine that Jones’s selective prosecution defense is clearly without merit.
No additional facts need be developed, and any district court decision of the
4.
issue would be reviewed de novo by this Court anyway."), cert, denied, 516 U.S.
902 (1995). The most comparable case within this Circuit, United States v.
Gordon, 817 F.2d 1538, 1540-41 (11th Cir. 1987), cert, dismissed, 487 U.S. 1265
(1988), appears to have treated the question whether particular evidence is
6 The case law employing the more deferential abuse of discretion
standard quite clearly concerns only the question whether defendants are
entitled to an evidentiary hearing, see, e.g., United States v. Quinn, 123 F.3d
1415, 1425-26 (11th Cir. 1997), cert, denied, 118 S. Ct. 1203 (1998), and has no
bearing on whether the evidence adduced at the hearing is sufficient to
establish the defense.
20
sufficient to establish invidiousness as a legal one subject to de novo review.
Other courts of appeals reviewing claims of selective prosecution have applied
the clearly erroneous standard to questions of historical fact and
discriminatory purpose, see, e.g., United States v. Benny, 786 F.2d 1410, 1418
(9th Cir.), cert, denied, 479 U.S. 1017 (1986).
Appellant Tyree’s claim o f insufficient evidence to support a conviction on
Counts 12 and 13\ The standard of review is "de novo, viewing the evidence
in the light most favorable to the government and drawing all reasonable
inferences and credibility choices in favor of the jury’s verdict." United States
v. Lumley, 135 F.3d 758, 759 (11th Cir. 1998).
Appellants’ claims regarding their sentences: The standard of review for
the district court’s interpretation and application of the guidelines is de novo,
see United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997); United States
v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996), as is the standard of review
regarding whether Tyree’s conduct justifies an abuse-of-trust enhancement, see
United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998). A sentencing
court’s determination regarding a defendant’s role in the offense is reviewed
for clear error. See United States v. Tapia, 59 F.3d 1137, 1143 (11th Cir.), cert,
denied, 516 U.S. 1001 (1995).
Appellants’ claims regarding the district court’s interpretation o f 42 U.S.C.
§ 1973i(c): These are questions of law and the standard of review is de novo.
21
See, e.g., United States v. Lumley, 135 F.3d at 759-60; United States v. Sirang,
70 F.3d 588, 595 (11th Cir. 1995) (applying "essentially de novo" review to
claims of multiplicity).
Appellants’ claim regarding the introduction o f evidence involving other
ballots witnessed by Tyree: A trial court’s evidentiary rulings are reviewed
under an abuse of discretion standard. See Tokars, 95 F.3d at 1530.
Appellant Tyree’s claims regarding her inability to introduce the testimony
of Burnette Hutton: The standard of review for a claim that the prosecutor or
court has substantially interfered with a defense witness’ decision to testify is
an open question. While an abuse of discretion standard is used in reviewing
evidentiary decisions challenged on compulsory process grounds, see, e.g.,
United States v. Blum, 62 F.3d 63, 67 (2d Cir. 1995), the decisions of this Court
concerning the underlying claim of "substantial government interference with
a defense witness’ free and unhampered choice to testify," see, e.g., United
States v. Schlei, 122 F.3d 944, 991-93 (11th Cir. 1997), cert, denied, 118 S. Ct.
1523; United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977),7 quite
clearly employed a less deferential standard. The standard of review on the
7 In Bonner v. City o f Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc), this Court adopted as binding precedent all decisions of the Fifth
Circuit handed down prior to October 1, 1981.
22
question whether the district court ought to have admitted Hutton’s prior
testimony from the selective prosecution hearing is abuse of discretion. See
United States v. Deeb, 13 F.3d 1532, 1534 (11th Cir. 1994), cert, denied, 513
U.S. 1146 (1995).
SUMMARY OF THE ARGUMENT
This appeal is complicated only because the government’s invidious
behavior manifested itself in so many violations of appellants’ rights and
because the court below so pervasively misunderstood both the substantive law
regarding 42 U.S.C. § 1973i and the legal standard for assessing a claim of
selective prosecution.
These prosecutions were unconstitutionally initiated and improperly
maintained. Instead of applying the "ordinary equal protection standards" that
the Supreme Court has held govern claims of selective prosecution, the Magis
trate Judge invented a legal standard under which no selective prosecution
claim can ever succeed: one that ignored its own findings of fact about what
the government had already done on the hypothesis that at some time in the
future the government might cure its existing, constitutionally defective charg
ing pattern. The Magistrate Judge compounded this flagrant legal error with
a series of other erroneous legal rulings regarding appellants’ burden of proof
and the relevant comparison set for assessing a claim of political selectivity.
The government then proceeded to a trial rife with constitutional and
23
legal error. The indictment’s multiplicitous counts disregarded the allowable
unit of prosecution under 42 U.S.C. § 1973i, and denied appellants’ rights
under both the double jeopardy and due process clauses of the Fifth Amend
ment. The government’s behavior in jury selection, as the district court found,
constituted prohibited racial discrimination. The government threatened one
prospective defense witness to dissuade her from testifying and the district
court compounded the Sixth Amendment violation by refusing, in abuse of its
evidentiary discretion, to admit the witness’s prior testimony. The government
then introduced irrelevant evidence involving absentee ballots as to which it
conceded no illegality or impropriety could be shown in a grossly prejudicial
attempt to insinuate that appellants’ First Amendment-protected activity was
somehow evidence of criminality. And it proceeded on two counts against
appellant Tyree despite having literally no evidence regarding an essential
element of the offense: the nonconsent of the allegedly affected voter.
The district court’s misinterpretations of section 1973i infected both its
charging and its sentencing decisions. Its charge to the jury permitted the jury
to convict appellants without finding, beyond a reasonable doubt, that
appellants had knowingly and willfully cast other voters’ ballots without those
voters’ actual consent; under the court’s charge, the jury was permitted to
disregard evidence of consent-in-fact in favor of a theory under which, as a
matter of law, even a voter’s explicit assent was insufficient. The sentences it
24
meted out reflected an egregious misreading of the clear text of the relevant
sentencing guideline and were impermissibly enhanced in ways prohibited both
by the relevant guidelines and by prior decisions of this Court.
Such a catalog of prosecutorial misbehavior and induced legal error
would be scarcely plausible were it not for the background of this case. As
this Court knows only too well, the sorry history of this proceeding
recapitulates the pattern of prosecutorial abuse found a decade ago. Its
recurrence is both disheartening and outrageous.
ARGUMENT
I. The Indictment in this Case Should Be Dismissed Because the Govern-
ment Engaged in Racially and Politically Selective Prosecution
To support a claim of selective prosecution, a defendant must establish
two things: first, "that he has been singled out for prosecution while others
similarly situated have not generally been proceeded against for the type of
conduct with which he has been charged," United States v. Gordon, 817 F.2d
1538, 1539 (11th Cir. 1987) (what Magistrate Judge Putnam called the
selectivity prong, R2-88-21) and second, that the decision to prosecute "was
based upon an impermissible factor such as race" or political affiliation,
Gordon, 817 F.2d at 1539 (what Magistrate Judge Putnam called the
motivation" prong, R2-88-21). See United States v. Armstrong, 517 U.S. 456,
465 (1996); Wayte v. United States, 470 U.S. 598, 608-09 (1985).
25
In this case, there was an extensive evidentiary hearing on appellants’
claim of racially and politically selective prosecution. The Magistrate Judge
found, as a matter of fact, that persons other than the defendants "have
engaged in fraudulent absentee-ballot voting activities, including forging
voters’ signatures and altering ballots." R2-88-24-25. See also id. at 13-16. In
particular, he found "evidence of potentially illegal activity by Rosie Carpenter,
who clearly is a member of and associated with Citizens for a Better Greene
County," id. at 27 n.5, a "rival political organization," id. at 27, which opposes
the "black majority faction," Gordon, 817 F.2d at 1540, to which both
appellants belong. Nonetheless, Magistrate Judge Putnam held that appellants
4 .
had failed to show either selectivity or discriminatory motivation. R2-88-24.
A. The Magistrate Judge Used the Wrong Legal Standard for Determining
Whether Similarly Situated Individuals Had Not Been Prosecuted
The linchpin of Magistrate Judge Putnam’s conclusion with regard to the
"selectivity" prong was his belief that
the defendant is required to show by clear and convincing evi
dence that a prosecutorial decision was made to prosecute him or
her and not to prosecute other persons similarly situated to the
defendant. It is not enough to show simply that the defendant has
been prosecuted and that some other person like him as not yet
been prosecuted.... [Sjome are prosecuted presently, and others
will be prosecuted in the future.... [I]t is the burden of the defen
dants to show that, in fact, no other prosecutions are planned and
that they alone have been singled out for prosecution.
R2-88-21, 22, 25 (underlining in original).
26
The standard applied by the Magistrate Judge contains two critical legal
errors. First, under the "ordinary equal protection standards" that the
Supreme Court has directed be used in selective prosecution cases, Armstrong,
517 U.S. at 465, defendants are not required to prove a discriminatory effect
by clear and convincing evidence; they need meet their burden by only a
preponderance.
The Magistrate Judge’s second error is even more serious. Essentially
he held that defendants can never satisfy the similarly situated requirement as
long as it is possible that the government may prosecute similarly situated
individuals in the future. The Magistrate Judge cited no legal authority for this
novel proposition, and indeed there is none. In Armstrong, the Supreme Court
phrased the appropriate comparison retrospectively: "the claimant must show
that similarly situated individuals of a different race were not prosecuted." 517
U.S. at 465 (emphases added). Similarly, in Gordon, this Court found that the
defendant would establish a discriminatory effect if he could show that the
government "chose to prosecute him and other black political leaders in
Alabama’s majority-black ‘Black Belt’ counties for voting fraud, while not
prosecuting county residents who were members of a rival white-dominated
political party and committing similar election offenses." 817 F.2d at 1540
(emphases added).
The standard the Magistrate Judge proposed would completely gut the
27
law of selective prosecution: until the statute of limitations expires, it is always
possible for the government to prosecute other individuals. There is simply
no way - short of an express concession by the prosecutor that he will pursue
no other cases, a concession which no prosecutor would ever provide — for a
defendant to prove that no future prosecutions will be forthcoming and to
meet the standard for selectivity imposed by the Magistrate Judge in this case.
Had he applied the standard identified by the Supreme Court in Armstrong
and this Court in Gordon, he would have concluded that appellants had met
their burden of showing that "others similarly situated generally had not been
prosecuted for conduct similar to" theirs, Wayte, 470 U.S. at 605.
B. The Magistrate Judge Made Several Legal Errors in Assessing the
Evidence of Discriminatory Purpose
Yet another series of legal errors infected the Magistrate Judge’s
conclusion that appellants had failed to establish that the government acted
with a discriminatory motive.
First, again in defiance of the Supreme Court’s directive that courts
draw on "ordinary equal protection standards" in reviewing claims of selective
prosecution, Armstrong, 517 U.S. at 465, the Magistrate Judge held that appel
lants were required to make their showing "by clear and convincing evidence,"
R2-88-22, rather than by a preponderance of the evidence. That the Supreme
Court has observed that evidence of discrimination must be "clear" in order
28
to overcome the presumption of prosecutorial good faith, Armstrong, 517 U.S.
at 464, is simply not the same thing as requiring defendants to meet a higher
burden of proof on the discrete question of discriminatory purpose.
Second, in contradiction to the clear import of this Court’s decision in
Gordon, the Magistrate Judge held that race could not be "a motivating factor"
in the decision to prosecute appellants because "[a]ll of the other [similarly
situated] people identified by the defendants are themselves African-
American, like the defendants." R2-88-26. In fact, despite the fact that
Greene County is overwhelmingly black, appellants did present testimony of
voting-rights violations committed during the 1994 election season by white
persons. See, e.g. RIO-97 (Patsy Rankins); id. at 99 (Betty Banks). But in any
event, the Magistrate Judge was simply wrong as a matter of law in concluding
that there could be no racially discriminatory purpose, under the circumstances
of this case, if some or all of the similarly situated individuals were also black.
The claim here, as in Gordon, was that the government chose to prosecute
members of the black majority faction, while not prosecuting "members of a
rival white-dominated political party." 817 F.2d at 1540. A decision to
prosecute made on the basis of the races of the people with whom a
defendant associates is a decision "based upon an unjustifiable standard such
as race, religion, or other arbitrary classification, including the exercise of
protected statutoiy and constitutional rights," such as freedom of association.
29
Wayte, 470 U.S. at 608 (internal quotation marks and citations omitted); cf
Parr v. Woodmen o f the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)
(holding that an applicant for employment has been discriminated against "on
the basis of his race" within the meaning of Title VII if he is denied a job on
the basis of the race of someone he associates with). It clearly must violate
the equal protection clause for a prosecutor to pursue cases against defendants
who are members of a virtually all-black political faction while not pursuing
cases against individuals, whatever their race, who are members of a biracial
or majority-white faction.
Third, the Magistrate Judge committed legal error with regard to appel
lants’ claim of politically selective prosecution. He correctly recognized that
a prosecutor violates the equal protection clause when he chooses his targets
based on their political affiliation, R2-88-23 n. 4; see also Wayte, 470 U.S. at
608, and he correctly found that both appellants were members of an identifi
able political faction, see R2-88-27. But he then concluded that the fact that
some similarly situated individuals were members of neither appellants’ faction
nor the opposing faction somehow rebutted appellants’ allegation that they had
been singled out. This conclusion reflected a fundamental misunderstanding
of the basis for a claim of selective political prosecution: the relevant question
is whether members of an identifiable political group have been singled out
for prosecution while non-members o f that group have not. Under the
30
Magistrate Judge’s logic, a Democratic prosecutor who prosecuted only
Republicans for speeding, while not charging similarly situated Democrats
would be able to rebut the inference of a discriminatory political motive by
pointing out that he also had not prosecuted any independents or non-voters.
That cannot be the law. So, too, the fact that the government in this case
prosecuted neither associates of Citizens for a Better Greene County nor
unaffiliated voters, while it may be evidence tending to rebut appellants’ claim
of politically selective prosecution, does not pretermit that claim altogether.
Finally, the Magistrate Judge completely ignored the larger context in
which appellants’ claim arose. As AUSA Meadows’ remarks during voir dire
show, the decision to bring this case in federal court can be explained, at least
in part, by the desire to avoid a Greene County (i.e., overwhelmingly black)
jury.
C. The Government’s Behavior at Trial Provides Additional Compelling
Evidence of its Discriminatory Intent
This Court is surely well aware that findings of Batson violations are
relatively rare. Both trial courts and appellate courts tend to accept
prosecutors’ explanations based on a venireperson’s demeanor. See generally
Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson
and Peremptory Challenges, 71 Notre Dame L. Rev. 447 (1996); Michael J.
Raphael & Edwards J. Ungvarsky, Excuses, Excuses: Neutral Explanations
31
Under Batson v. Kentucky, 27 U. Mich. J.L. Ref. 229 (1993); Joshua E. Swift,
Note, Batson’s Invidious Legacy: Discriminatory Juror Exclusion and the
"Intuitive" Peremptory Challenge, 78 Cornell L. Rev. 336 (1993).
Nonetheless, in this case, the trial court rejected the government’s expla
nation for one of its three strikes of a black venireperson as pretextual. And
it found the prosecutor’s other two strikes, which were arguably infected by
racial considerations since they involved striking jurors because of their con
nection with overwhelmingly black Greene County, to be "tenuous." The fact
that the prosecutor was discriminating on the basis of race in jury selection
provides powerful corroborative evidence of appellants’ claim that racial con-
siderations also infected his charging decision. Cf Keyes v. School District No.
I, 413 U.S. 189, 208 (1973) (holding that a finding of intentional racial dis
crimination "in a meaningful portion of a school system ... creates a presump
tion that other segregated schooling within the system is not adventitious").
So, too, here: the government’s subsequent actions in violating the equal
protection clause overcome the normal presumption of prosecutorial fairness.
II. There Was Insufficient Evidence to Convict Appellant T>ree on Counts
12 and 13
Counts 12 and 13 charged appellant Tyree with knowingly or willfully
giving false information as to Shelton Braggs’s eligibility to vote. Count 12
involved Braggs’s application for an absentee ballot. Count 13 involved
32
Braggs absentee ballot affidavit. Even taking all the evidence in the record
in the light most favorable to the government, these counts cannot stand.
As the district court recognized, Counts 12 and 13 required the
government to prove, beyond a reasonable doubt, that Braggs had neither
filed the application or affidavit himself nor had consented to their being filed
on his behalf, and that Tyree nonetheless knowingly and willfully provided
false information for the purpose of casting his ballot.
The government, however, did not call Shelton Braggs as a witness at
trial. Nor did it call any other witness on the question of his consent. Thus,
there was literally no evidence in the record regarding whether Braggs’s
application and affidavit were filed at his direction. With respect to Braggs’s
application, in fact, the undisputed testimony of the government’s own expert
witness was that Tyree wrote various "administrative" information but that she
did not sign the application. See R17-712-13, 719, 756. The government
possessed no known examples of Braggs’s handwriting. Id. at 757. All the
evidence in the record was entirely consistent with a finding that Braggs
himself had signed his application for an absentee ballot. The jury had no
basis for concluding that anyone other than Braggs signed the application, let
alone evidence from which it could conclude beyond a reasonable doubt that
Tyree or someone acting in concert with her had done so.
With regard to Braggs’ ballot affidavit, there was expert testimony that
33
Tyree signed for Braggs. Id. at 707. But again there was literally no evidence
that she signed without his consent. The only evidence in the record regarding
Braggs was that during the summer of 1994, he had been Tyree’s boyfriend
and had been living with her, R18-879-80. That evidence is equally consistent
with the hypothesis that Braggs directed Tyree to fill out his ballot, or acqui
esced in her doing so as with the hypothesis that she did so without his con
sent. Under these circumstances, Tyree’s conviction on Counts 12 and 13
should be reversed, with directions to the district court to dismiss the counts.
III. Appellants’ Sentences Violated the Sentencing Guidelines
A. The District Court Chose the Wrong Base Offense Level
Over appellants’ objections, and in reliance on the revised Presentence
Investigation Reports, R3-122 and R3-125, the district court held that the
appropriate Base Offense Level for appellants’ offenses was 12. See R22-11.
That conclusion squarely violates the express language of the relevant
Guideline which provides that appellants’ conduct constitutes a Base Offense
Level of 6.
Section 2H2.1(a) provides, in pertinent part, that the Base Offense Level
for "Obstructing an Election or Registration" is
(2) 12, if the obstruction occurred by forgery, fraud, theft, brib
ery, deceit, or other means, except as provided in (3) below,
or
34
(3) 6, if the defendant (A) solicited, demanded, accepted, or
agreed to accept anything of value to vote, refrain from
voting, vote for or against a particular candidate, or register
to vote, (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 § 2H2.1 (1997) (emphasis
added). The district court acted as if § 2H2.1(a)(3) simply did not exist, and
completely ignored the exceptions clause of § 2H2.1 (a)(2).
The substantive offenses of which appellants were convicted were (1)
providing false information to establish eligibility to vote, 42 U.S.C. § 1973i(c)
(Counts 3-13), and (2) voting more than once in a federal election, 42 U.S.C.
§ 1973i(e) (Count 2). The conspiracy in which they were alleged to have been
engaged was a conspiracy to commit those two substantive offenses. See R20-
1330. The language of the Guidelines that provides for a base offense level
of 6 tracks exactly the statutes under which appellants were convicted. The
Sentencing Guidelines clearly provide that the particular forms of fraud or
deceit of which appellants were convicted warrant a base level of 6. Other
forms of forgery, fraud, or deceit -- such as casting fictitious votes on voting
machines and then destroying poll slips to conceal the fraud, see Anderson v.
United States, 417 U.S. 211, 214-15 (1974) or paying voters to vote for partic
ular candidates, see, e.g, United States v. Bowman, 636 F.2d 1003, 1006-07 (5th
35
Cir. 1981)8 - justify the higher Base Offense Level. Nothing in the record
would support a claim that appellants engaged in any criminal activities not
covered by § 2H2.1 (a)(3) and neither the government, the presentence
investigation report, nor the district court identified any such activity. Indeed,
the Presentence Investigation Report explains that appellants’ conduct "clearly
falljs] within § 2H2.1 (a)(2) because the obstruction to the election in those
counts involved forgery and deceit." R3-125-7. But the forgery and deceit
involved lay precisely in the fact that appellants gave false information to
establish voter eligibility. Providing false information and voting more than
once inherently involve fraud and deceit; they will also often involve forgery.
To permit district courts to use the presence of forgery, fraud, or deceit in
false statement and voting-more-than-once cases will essentially write
§ 2H2.1 (a)(3) out of the Guidelines altogether.
B. The District Court Erred in Enhancing Appellant Tyree's Sentence for
Abuse of Trust
The district court enhanced appellant Tyree’s sentence two levels for
abuse of trust because she held the position of Deputy Registrar. The
8 The voter himself, however, would be subject to Base Level 6 for "ac
cepting] or agreeing] to accept anything of value to vote." Guidelines §
2H2.1(a)(3).
36
Presentence Report claimed therefore that she "used her position of public
trust in a manner that significantly facilitated the commission of the offense
in that she fraudulently registered Sam Powell and others to vote in Greene
County, Alabama, without their knowledge or permission." R3-125-8.9
This Court has quite firmly held that an abuse of trust enhancement is
appropriate only if the defendant was both (1) "in a position of trust with
respect to the victim of the crime" and (2) "the position of trust ... contributed
in some significant way to facilitating the commission or concealment of the
offense," United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998) (internal
quotation marks and citations omitted).
M.
In this case, appellant Tyree meets neither of the necessary criteria.
First, the mere fact that Tyree was a Deputy Registrar does not mean she was
in a position of trust. As Garrison noted,
Because there is a component of misplaced trust inherent in the
concept of fraud, a sentencing court must be careful not to be
overly broad in imposing the enhancement for abuse of a position
of trust or the sentence of virtually every defendant who occupied
any position of trust with anyone, victim or otherwise[,] would
receive a section 3B1.3 enhancement.
Garrison, 133 F.3d at 838 (internal quotation marks and citations omitted).
There was absolutely no evidence in the record to support the
Presentence Report’s assertion that Tyree improperly registered any voter
other than Powell.
37
The district court s finding that "the position of Deputy Registrar in Greene
County, Alabama is a position of public trust," R3-125-7, was mistaken. Deputy
Registrars in Greene County are not government employees, nor are they paid
for their work. Several of them were simply volunteers who were interested
in assisting in registration. R16-299. Moreover, as this Court has explained,
§ 3B1.3 contemplates that the defendant’s position be "characterized by
professional or managerial discretion (i.e., substantial discretionary judgment
that is ordinarily given considerable deference)," Garrison, 133 F.3d at 838
(quoting from the application note accompanying § 3B1.3). There was no
evidence in this record to support a finding that Deputy Registrars had any
4
discretionary authority or managerial authority whatsoever.
Even if this Court were to conclude that the position of Deputy Regis
trar is one of public trust, there is nothing in this record to support the neces
sary finding that Tyree occupied any position of trust with respect to any victim
of her conduct. Simply being a public employee or official at the time of an
offense does not make "society," see R3-125-5-6, the victim for purposes of
abuse-of-trust enhancement. See United States v. Barakat, 130 F.3d 1448,1454-
55 (11th Cir. 1997) (setting aside the enhancement in a tax evasion case in
volving kickbacks received by the head of a local public housing authority).
As to the second prong of the Garrison test, if "anyone" could commit
the offense of conviction, then enhancement is inappropriate regardless of the
38
defendant’s position vis-a-vis the victim. See Barakat, 130 F.3d at 1455. In
this case, it is plain that Tyree’s position as a Deputy Registrar made no actual
contribution to her ability to commit or conceal the offense. Even if Tyree
fraudulently registered Sam Powell — and she was neither charged with nor
convicted of doing so, 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) - that registration did
not "significantly facilitate" the offense of which she was convicted. Sentencing
Guideline § 3B1.3. Whatever crime Tyree committed with regard to Powell’s
ballot was identical to the crimes she committed with regard to the six other
voters involved in this case and nothing suggests her position as a Deputy
Registrar facilitated those crimes in any way. Moreover, appellee Smith was
convicted of engaging in the same conduct as Tyree — providing false
information on a set of identified ballots and voting more than once. Yet he
occupied no position of trust. This powerfully shows that Tyree’s "position of
trust" did not contribute "in some substantial way to facilitating the crime"; at
most it may "merely have provided an opportunity that could easily have been
afforded to other persons." Barakat, 130 F.3d at 1454 (emphasis added)
(quoting U.S. Sentencing Commission, Guidelines Manual § 3B1.3,
Commentary Note 1 (1997)).
39
C. The District Court Erred in Enhancing Appellant Smith’s Sentence for
Obstruction of Justice
The district court imposed a two-level enhancement on appellant Smith
for obstruction of justice, stating that "[tjhe evidence at trial presented or
established, beyond a reasonable doubt, that the Defendant Smith influenced
Michael Hunter to give a false affidavit concerning material facts." R22-12.
This Court’s review of that decision is hampered by the complete lack
of any specific factual findings regarding either which material facts Michael
Hunter testified falsely about or how appellant was responsible for them. See
United States v. Alpert, 28 F.3d 1104, 1106 (11th Cir. 1994) ("We hold that, to
permit meaningful appellate review, district courts must make specific findings
of fact when they enhance sentences under Guidelines § 3C1.1.1."). See also
United States v. Dunnigan, 507 U.S. 87, 95 (1993) ("if a defendant objects to
a sentence enhancement resulting from her trial testimony, a district court
must review the evidence and make independent findings necessary to
establish a willful impediment to, or obstruction of, justice, or an attempt to
do the same"). In contrast to this Court’s recent decision in United States v.
Hubert, 138 F.3d 912, 915 (11th Cir. 1998), where the district court’s failure to
make sufficiently detailed findings was excused because "[tjhe Pre-Sentence
Investigation Report, which the district court adopted, spelled out the
perjurious statements and the government elaborated on these perjurious
40
statements during the sentencing hearing," Michael Hunter’s testimony was a
welter of recantations and confusion. While the jury may have been entitled
to disbelieve Hunter’s statements on the witness stand that his ballot was cast
with his consent and that the FBI tried to intimidate him into testifying for the
government,10 the evidence regarding Smith’s role in the preparation of
Hunter s affidavit is sufficiently muddy that it does not support the district
court’s conclusory assertion, which simply piggybacked on the even more
conclusory assertion in the Presentence Report that "This defendant contacted
witnesses and attempted to influence witnesses and to suborn perjury. In
particular, according to the government, he coerced, intimidated and
influenced Michael Hunter." R3-122-6.
D. The District Court Erred in Enhancing Appellants' Sentences Because
of Their Roles in the Offenses
The district court imposed a four-level enhancement on each appellant
pursuant to Guideline § 3Bl.l(a), finding that "each defendant was, beyond
a reasonable doubt, ‘an organizer or leader of criminal activity that involved
five or more participants or was otherwise extensive.’" R22-12. In doing so,
As we suggest below in Point VI, the trial court’s instructions
might have led the jury to convict appellants with regard to Hunter’s ballot
even if it found that he had consented to its being cast.
41
the district court simply repeated the statutory boilerplate. It failed to identify
whether it was imposing the enhancement because of the number of
participants in the activity or because the activity was otherwise extensive.
Under either theory, however, the enhancement was unjustified. First,
there was simply no evidence that appellants’ criminal activity, as opposed to
their First Amendment-protected political activity in seeking support and
encouraging absentee voting by qualified voters, was extensive. They were
charged with, and convicted of, crimes regarding only seven votes, and AUSA
Meadows acknowledged, as to all the other ballots involved, that the
government could prove no illegality. See R15-206-07.
Second, the court failed adequately to identify five "participants" as that
term is used in the Guidelines:
A "participant" is a person who is criminally responsible for the
commission of the offense .... A person who is not criminally
responsible for the commission of the offense ... is not a
participant.
U S. Sentencing Commission, Guidelines Manual § 3B1.1 Commentary,
Application Note 1 (1997). While the Presentencing Reports identified four
other individuals with some connections to appellants’ overall participation in
the election process, see R3-125-7, nothing in the record establishes that three
or more of these individuals, who were not charged with any offense, were in
fact "criminally responsible," that is, that they knowingly and willfully violated
42
any federal statute. See, e.g., R17-641 (colloquy regarding whether Cora Stew
art violated any federal law).
IV. Appellants Were improperly Convicted on Multiplicitous Counts
Appellants were each convicted of multiple violations of 42 U.S.C. §
1973i(c) - which prohibits giving "false information" in connection with
establishing eligibility to vote - with respect to a single vote cast in the name
of a single voter. Appellant Smith was convicted on two such pairs of counts:
the first with respect to Cassandra Carter (Counts 8 and 9) and the second
with respect to Willie Carter (Counts 10 and 11). Appellant Tyree was
convicted on three such pairs: the first with respect to Angela Hill (Counts 3
and 4); the second with respect to Eddie Gilmore (Counts 5 and 6); and the
third with respect to Shelton Braggs (Counts 12 and 13).
These convictions were multiplicitous and therefore violated the double
jeopardy clause’s ban on multiple punishments for the same offense.11
Multiplicity occurs when a defendant is charged with a single offense in more *
Even though appellants received concurrent sentences, they were
in fact subjected to multiple punishments within the meaning of the double
jeopardy clause because the district imposed mandatory statutory assessments
of $50 for each count on which each appellant was convicted. See, e.g., United
States v. Grubbs, 829 F.2d 18, 19 (8th Cir. 1987) (per curiam).
43
than one count. See United States v. Langford, 946 F.2d 798, 802 (11th Cir.
1991), cert, denied, 503 U.S. 960 (1992).
To determine whether an indictment is multiplicitous, a court must first
determine "the allowable unit of prosecution." Id. That issue is a question of
first impression with respect to 42 U.S.C. § 1973i(c). This Court’s opinion in
Langford, however, provides a useful analogy. Langford concerned provisions
of the securities laws which made it unlawful for any person "by the use of any
means or instrumentality of interstate commerce or of the mails ... [t]o use or
employ, in connection with the purchase or sale of any security ... any
manipulative or deceptive device," 15 U.S.C. § 78j, and made it a crime to
•4
"willfully and knowingly make[], or cause[] to be made, any statement in any
application, report, or document required to be filed under this chapter or any
rule or regulation thereunder ... which statement was false or misleading with
respect to any material fact," 15 U.S.C. § 78ff. Langford held that false
statements made in a proxy statement, a letter, and a telephone call which all
related to a single sales transaction could not form the basis for multiple
counts of an indictment. See Langford, 946 F.2d at 799, 803-04. Langford
contrasted the securities laws -- where the allowable unit of prosecution is
each separate purchase or sale of securities, rather than each use of the mails
or other instrumentality of interstate commerce - with the mail fraud statute,
18 U.S.C. § 1341, under which each separate mailing could be charged as a
44
discrete offense. See id.
Section 1973i(c), the provision at issue in this case, is concerned with the
provision of false information that allows the casting of an illegal ballot. The
definitional provision governing § 1973i provides in pertinent part that the
term "vote" "shall include all action necessary to make a vote effective
including, but not limited to, registration, ... or other action required by law
prerequisite to voting, casting a ballot, and having such ballot counted ...." 42
U S.C. § 1973/(c)(l) (emphasis added). Section 1973i(c) prohibits all false
statements in conjunction with a single vote. Therefore, the "allowable unit
of prosecution" under § 1973i(c) should consist of all steps preparatory to
casting a ballot. The number of pieces of false information knowingly or
willfully supplied is irrelevant. So, for example, an individual who gives false
information as to his "name, address, \and\ period of residence in the voting
district" has committed only one offense, not three. Similarly, as in Langford,
the number of times that false information is provided with regard to the
casting of a single vote does not change the character of the offense. For
example, if a voter gives a false address when he registers to vote and then
announces that false address at his polling place, he has committed only one
offense.1" Applying for a ballot in another individual’s name and casting that
Of course, each separate election at which he uses the false address
45
ballot are simply two steps in a single "device, scheme, or artifice to defraud,"
Langford, 946 F.2d at 803.
In addition to violating the double jeopardy clause, the multiplicitous
counts, particularly in conjunction with the introduction of evidence regarding
other absentee ballots discussed in the next section, "improperly prejudice[d
the] jury by suggesting that [the] defendants] ha[d] committed several crimes
-- not one" with respect to each of the voters. Id. at 802.
V. Appellants Were Prejudiced by the Improper Admission and Use of
Evidence Regarding Other Absentee Ballots
Appellants were charged with crimes relating to the casting of seven
voters’ absentee ballots. Nevertheless, over appellants’ strong objection on
grounds of both relevance and prejudice, the prosecution introduced evidence
regarding roughly 160 other absentee ballots witnessed by Connie Tyree.
AUSA Meadows conceded that the government could not prove
"anything" illegal, R15-206, or even "improper," id. at 207, about these ballots.
In fact, appellants’ involvement in encouraging and assisting absentee voting
was constitutionally protected: as this Court recognized in Smith v. Meese, 821
to vote can be charged as a separate offense, but that is because each election
involving a separate act of voting.
46
F.2d 1484 (11th Cir. 1987),13 "the constitutional rights to associate freely and,
perhaps most important in our governmental structure, to vote" includes
"voting with absentee ballots." Id. at 1489-90. And the Magistrate Judge held
that absentee voting in Greene County is critical to black citizens’ ability to
participate at all. R2-88-3.
The Magistrate Judge also recognized that absentee voting on the scale
practiced in Greene County is "significantly higher" than the level familiar to
"counties with predominantly white populations," id., the counties from which
the government deliberately selected its jury. See 1SR14-15 (government
purposefully struck two black jurors because they were from Greene County).
The government’s apparent purpose in drawing out testimony about the other
ballots was to suggest that anyone who witnessed as many ballots as Tyree did
must have been doing something wrong.
But there is absolutely no logical connection between any number of
consensual ballot attestations and what appellants were charged with here: the
nonconsensual casting of ballots in other individuals’ names. This Court has
repeatedly recognized that evidence that purports to show that defendants
Smith held that black voters in Greene County had stated a legally
cognizable claim of racially selective voting-rights prosecutions by federal
officials including then-U.S. Attorney Sessions. See Smith, 821 F.2d at 1496.
47
have committed similar acts requires that the other acts actually be similar
along the relevant dimension. Thus, in United States v. Guerrero, 650 F.2d 728
(5th Cir. 1981), this Court reversed the conviction of a doctor who had been
charged with dispensing controlled medications outside the usual course of
professional medical practice because he had been prejudiced by the introduc
tion of evidence regarding other prescriptions as to which no illegality of
impropriety was shown. "The common characteristic" rendering such evidence
relevant and admissible, this Court held, "must be the significant one for the
purpose of the inquiry at hand." Id. at 733 (internal citations omitted). Sales
that were not intentionally outside the usual practice were not "in any way
relevant" to the question of the intent behind the charged sale. Id. at 734. As
this Court later recognized, such evidence carries a "high risk of unfair prej
udice." United States v. Veltmann, 6 F.3d 1483, 1499 n.31 (11th Cir. 1993).
In this case, that risk was realized. The government expressly suggested
that in light of the number of absentee ballots tied to appellants, they must
have done something wrong with regard to the few as to which they were
charged with illegal conduct.
Since evidence of conduct as to which the government cannot allege
nonconsent is irrelevant as a matter of law to the question of consent, the
district court necessarily abused its discretion in admitting that evidence. See
Cooter & Cell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
48
VI. The District Court’s Jury Charge Regarding "Proxy Voting" Permitted
the Jury to Convict Appellants Without Finding Lack of Consent
Beyond a Reasonable Doubt
Lack of consent was an essential element of the government’s case.
Thus, for the jury to convict appellants on any of the counts with which they
were charged, the jury had to find, beyond a reasonable doubt, that the voters
in whose names ballots were submitted did not assent to their being cast. But
the district court’s jury instructions did not mandate this jury finding; they
permitted the juiy to convict even if the jury concluded that appellants’ actions
were taken with the knowledge and approval of the voters involved.
4 .
The court did instruct the jury that in order to convict appellants it had
to find, beyond a reasonable doubt that, that appellants "knowingly and willfully
signed a particular application or affidavit "without the knowledge and consent
of that voter," R20-1285, 1290. But it almost immediately contradicted that
statement with its instruction regarding so-called "proxy voting":
[Tjhere is no such thing in Alabama as proxy absentee voting....
In other words, no absentee voter can lawfully grant his or
her proxy to another person, granting permission to the other
person to cast a voter’s absentee ballot for him or for her.
Further, only the absentee voter himself, or herself, should
sign the affidavit on the back side of the return-mail or affidavit
envelope, addressed to the absentee election manager.
Id. at 1289. The district court may well have been correct that, as a matter of
49
Alabama law, a voter cannot direct another individual to cast a ballot on his
behalf and that any consent to its being done is nugatory. See Taylor v. Cox,
710 So. 2d 406 (Ala. 1998) (holding that voters cannot have a "designated agent"
sign the application form for them). But that in no way disposes of the
question of consent as a matter of federal law, because § 1973i is not part of
the Assimilative Crimes Act. The court’s charge invited the jury to conflate
the two issues. A reasonable juror could understand the charge as stating, as
a matter of law, that a voter’s direction to another person to sign his application
or affidavit for him could not constitute consent. That is, a juror might find
as a matter of fact that Voter A directed Defendant B to sign his ballot for him,
•4.
but might interpret the court’s charge as directing her to convict nonetheless,
because the invalidity of even an explicit request under state law meant it could
not constitute consent as a matter of federal law.
But as a matter of federal law, such a request would negate the essential
element of nonconsent. (Moreover, it might also negate the element of
willfulness or knowledge, if the defendant subjectively believed that he had
received the voter’s consent - regardless of state law.)
In this case, the risk of confusion was particularly great. Several "victim
voters," for example, Willie C. Carter and Michael Hunter, testified in a
contradictory fashion both that they did not consent and that they had permitted
someone else to sign their ballot. It is impossible to tell from the jury’s verdict
50
which version of those witnesses’ stories they believed. Thus, the jury might
have believed Hunter’s testimony that he "ratified" his brother’s signing his
ballot and convicted appellants nonetheless. And this sort of jury confusion
provides the only plausible account for Tyree’s conviction regarding Shelton
Braggs’ ballot. Given the court’s instructions, the absence of any testimony
of nonconsent on Braggs’s part could well have seemed irrelevant to the jury:
they might have convicted Tyree for signing Braggs’s voter affidavit even if they
believed that he had explicitly asked her to do so. Thus, this Court should
reverse appellants’ convictions because they were denied their constitutional
right to have the jury determine every element of their offenses beyond a
reasonable doubt.
VII. Appellant T y re e Was Denied Her Constitutional Right To Present
Witnesses in Her Defense
A. The Government Substantially Interfered With Burnette Hutton’s
Decision Whether to Testify on Appellants’ Behalf
Appellant Tyree has a constitutional right, under the compulsory process
clause of the Sixth Amendment and the due process clause of the Fifth
Amendment to "present [her] own witnesses to establish a defense." Washington
v. Texas, 388 U.S. 14, 19 (1967). "[Substantial government interference with
a defense witness’ free and unhampered choice to testify violates due process"
rights of the defendant. United States v. Hammond, 598 F.2d 1008, 1012 (5th
51
Cir. 1979), quoting Henricksen, 564 F.2d at 198.
In this case, the government substantially interfered with Tyree’s ability
to present the testimony of Burnette Hutton. Hutton was prepared to testify
that she had signed her father’s absentee ballot affidavit (he was illiterate),
with his consent. That testimony, if believed by the jury, might have led the
jury to acquit appellant Tyree on Count 7, which involved her having signed
Powell’s absentee ballot application.
Faced with potentially fatal testimony along these lines at the selective
prosecution hearing, the government reacted by both trying to intimidate
Hutton on the stand - through the extraordinary stratagem of demanding that
she provide handwriting exemplars in public and without notice - and threat
ening to indict her for peijury. In the end, of course, the government did not
indict her for peijury: indeed, the handwriting exemplars disproved the gov
ernment’s hypothesis that she had lied about signing the ballot affidavit.
As this Court recognized in interpreting Circuit cases following Webb v.
Texas, 409 U.S. 95 (1972), "[tjhreats against witnesses are intolerable." United
States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980). "The constitutional right
of a criminal defendant to call witnesses in his defense mandates that they be
free to testify without fear of governmental retaliation." United States v.
Blackwell, 694 F.2d 1325,1334 (D.C. Cir. 1982). While it is not per se improper
for a prosecuting attorney or court to advise prospective witnesses of the risk
52
if they testify falsely, those warnings "cannot be emphasized to the point where
they threaten and intimidate the witness into refusing to testify." Id.
Given the government’s threats at the selective prosecution hearing,
Hutton was virtually compelled to invoke her Fifth Amendment rights and
terminate her testimony. Thus, appellant Tyree was deprived of a potentially
critical witness on the question of Sam Powell’s consent.
B. Under the Circumstances, the District Court Abused Its Discretion in
Excluding Hutton’s Prior Testimony
Faced with Hutton’s understandable refusal to testify at trial, appellant
Tyree sought at trial to introduce her prior testimony at the selective
prosecution hearing pursuant to Fed. R. Evid. 804(b)(1). The district court
rejected the proffered testimony on the ground that the government had not
had a full opportunity to cross-examine her. R19-1056.
Any restriction on the government’s ability to cross examine Hutton was
entirely of its own making: the government chose to goad her into invoking
her Fifth Amendment rights — by repeatedly suggesting to the magistrate
judge that she be warned - rather than completing its cross examination.
More importantly, at the selective prosecution hearing itself, the government
expressly identified the subjects on which its cross examination was not yet
complete and they involved simply identification of the documents about
which she had been testifying. Those documents had already been admitted
53
at appellants’ trial, without objection, by the time Hutton had been called to
testify; they would have occasioned no cross examination. Moreover, had
Hutton’s testimony been limited as appellant Tyree proposed, the additional
subjects of cross examination that the government identified for the first time
at trial in its effort to keep her prior testimony away from the jury would have
been beyond the scope of her direct testimony. Under these circumstances,
the district court abused its discretion in excluding her prior testimony.
CONCLUSION
This Court should reverse appellants’ convictions and direct the district
court to dismiss the indictment against them on the grounds of selective prose
cution. In the alternative, this Court should remand this case for further
proceedings on appellants’ claims of selective prosecution, including receipt
of evidence about whether the government’s "continuing investigation" resulted,
after appellants’ convictions, in prosecution for vote fraud of any individuals
from Greene County not associated with the Alabama New South Coalition.
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. It should
also order the government to elect between the multiplicitous counts on which
each appellant was convicted and vacate the multiplicitous convictions.
In addition, if this Court does not order the dismissal of the entire
54
indictment, it should reverse appellants’ convictions on any properly charged
remaining 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) and at
which appellants will be able to present the improperly excluded evidence
regarding Count 7 and the government will be precluded from using evidence
regarding appellants’ constitutionally protected activities regarding the casting
of other absentee ballots as evidence of wrongdoing in this case.
Finally, 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
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
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) 219-1900
MARION, AL 36756
(334) 683-4111
COUNSEL FOR APPELLANTS
Dated: July 13, 1998
55
CERTIFICATE OF SERVTCF
This is to certify that a copy of the foregoing Brief of Appellants has been
served on all interested parties by depositing it in the United States mail, postage
prepaid and addressed as follows:
J. Patton Meadows, Esq.
Assistant U.S. Attorney
Vance Building
Birmingham, AL 35203
Gregory M. Biggs, Esq.
Office of the Attorney General
Alabama State House
11 South Union Street
Montgomery, AL 36130
Dated: July 13, 1998