Brief for Appellee

    IN TEE

uNrrED srATEs cbunr oF AppEArs

FOR THE

ELEVENTH CIRCUIT

No.84-7286

ITIAGGIE S. BOZEII,AN,

AppeIIee

V.

EALON ItI. LAUBERT, €t El.r

Appellants

On Appeal from the United States District Court
for the l{lddle District of Alabama

cv 83-H-579-N

BRIEE' FOR APPELLEE

A}ITEONY G. AMSTERDAM JT'LIT'S L. CEAT,TBERS
New York University LANf GUINIER
school of Law NAAcp Legal Defense Fund, rnc.
40 l{ashington Square South 99 Eudson Street
Room 327 New york, New york 10013
New York, New York 10012 15th Floor
(212) s98-2638 (2121 219-1900

STEGFRIED KNOPF VAI{ZETTA PENN DT'RANT
555 California Street 639 lrtartha Street
Suite 5060 t{ontgom€Eyr Alabarna 36108
San Francisco, CaI. 94104 (2051 262-7337

ATTORNEYS FOR APPELLEE



qTATEIIIENT REGARDING PREFERENCE

This appear is entitred to preference as an appear from a
grant of habeas corpus under 28 U.S.C. 52254.

11



SIATEf,BtrT NEGANDIEG ORAI, ANGUf,BNT

Appellee respectfully requests oral argunent. The lega1

issues are complex and the consequences for appellee are signifi-
cant.

- ttt



TABLE OF CONTENTS

STATEMENT REGARDING

STATEMENT REGARDING

PREFERENCE

ORAL ARGUMENT

TABLE OF CONTENTS

STATEII{ENT OF THE ISSUES .. . . .

STATEMENT OF THE CASE ..........

Page

ii

iii

iv

vi

xi

1

1

3

9

10

12

12

I.

II.

III.

SUI.{MARY O

STATEMENT

ARGUMENT

PROCEEDINGS BELOW

STATEMENT OF THE

STATEI,iIENT OF THE

FACTS

STANDARD OF REVIEW

F THE ARGUMENT ...............

OF JURISDICTION ........ O '

I. THE DISTRICT COURT VIEWED THE EVIDENCE
rN THE LIGHT MOST FAVORABLE TO THE STATE
AND PROPERLY DETERII{INED IT WAS INSUFFI-
CIENT AS A MATTER OF FEDERAL CONSTITU-
TIONAL LAW

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

B. In Enforcing Jacksgn v. Virginia,
The District a
To Accept State Findings That The
Evidence Was Sufficient .....

C. The District Courtrs View Of The
Evidence Was Not Inconsistent With
Factual Findings Of The Alabama
Court of Crininal Appeals ..............

II. THE INDICTMENT AGAINST II{S. BOZEIT{AN WAS
FATALLY DEFECTIVE IN THAT IT FAILED TO
INFORI4 HER OF THE NATURE AND CAUSE OF
THE ACCUSATION ............... .....

12

13

20

22

1V-

27



A. The Indictment Was Constitutionally
Defective In That It Failed To Pro-
vide Fair Notice Of A11 Of The
Charges On Which The Jury Was Per-
mitted To Return A Verdict Of Guilt . o o.

The Indictment Was Fatally Defec-
tive In That It Failed To Include
Constitutionally Sufficient A1le-
gations Concerning The Charges Of
Fraud ....................o..r...r......

( 1 ) The factual allegations in
each count were constitu-
tionally insufficient to pro-
vide notice of the nature and
cause of the allegedly fraudu-
lgnt conduct ......o. o.............

(2) Counts I and If were consti-
tutionally insufficient for
failure to allege the crucial
mental element of the offense
of fraudulent voting under
517-23-1 ............. ........

Page

45

B.

28

39

41

47

49

CONCLUSTON

CERTIFICATE



Case

Andrews v. State , 344 So.2d
cert. denied, 344 So.2d

Bachellar v. Maryland | 397

Barbee V. Statet 417 So.2d

TABTE OF CASES

533 Crim. App. )
538 (A1a. 19771

u.s. 564 ( 1 970 )

61 I (AIa. Crim.

aaaaaaaaaaaa

Page

35

40

35

39

2t5t14

18 r27

18

35

35

28 r34

39

18, 1g

35

34

18

14

34

3s

Boykin v. Alabama,

Bozeman v. State,
1058 (1981) ...

App. 1982)

Brewer v. Will

Brown v. Allen

Brown v. State

Carter v. Stat
App. 1980),
614 (1980)

Cole v. Arkans

County Court o
u.s. 140 ('l

Cuyler v. SuIl

Davidson v. St
App.1977)

DeJonge v. Ore

Dickerson v. S
(11th Cir.
878 (1982)

395 U.S. 238 ( 1969)

401 So.2d 169i 454 U.S.

23,24,25,26

iams, 430 U.S. 387 (19771

, 344 u.S. 443 (1953)

, 24 So.2d 450 (AIa. App. 1946)

e, 382 So.2d 610 (AIa. Crim.
cert. denied, 382 So.2d

aaaaaaaaaaaa

€rs r 333 U.S. 196, 201 ( 1948 )

f U1ster County v. Allen, 442
979) ......o... .........

ivan, 446 U.S. 335 ( 1980)

lll:.::l .?l: il.:::. i11l: .

gonr 299 U.S. 353 (1937)

tate of Alabama, 667 F.2d
1982) | cert. denied | 459

aaaaaaaaaaaa

Crim.
a a aa aa aa a a a a a a a a

1 364
U.S.

Duncan v. Stynchcombe, 704 F.2d 1213, (11th
Cir. 1983) .............................

Dunn v. United States, 442 U.S. 100 (19791

Edwards v. State, 379 So.2d 338 (AIa. Crim.

aaaaaaaoaaaa



Case Page

Fendley v. State, 272 So.2d 600 (AIa. Crim.
App. 1973 ) ......................... o............... 35

Fitzgerald v. State, 303 So.2d 162 (Ala. Crim.
App. 1974 ) ........ o... o...... o o................... o 35

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir.
1969 ) .... o........ . o.... o. . o..... ..... . .. ..... 36

Goodwin V. Balkomt 684 F.2d 794 (1lth Cir.
19821t cert. denied, 103 S.Ct. 1798 (1982) o..o..... 18

Gray v. Rains, 662 F.2d 589 (10th Cir. 1981) .o........ 38

Gunsby V. Wainwright, 596 F.2d 654 (5th Cir.
1979) | cert. denied, 444 U.S. 946 (1979 ) .... o. o.. o. 18

Harmon v. Statet 249 So.2d 369 (A1a. Crim.
App.), cert. denied, 249 So.2d 370 (AIa.
197 1) . .... . . .. o .. . . . . .. . . .. o o . . . . . .. . . . . .. .. .. . ... . 35

Holloway v. ttlcElroy, 632 F.2d 605 (5th Cir.

Jackson v. Virginia, 443 U.S. 307 (1979 ) .............. passim

Keck v. United States, 172 U.S. 434 (1899) 36

La Vallee v. Delle Rose | 410 U.S. 690 (1973 ) .......... 21

Maggio v. Fulford, U.S. ,76 L.Ed.2d
794 ( 1983) .....-......-.............. o.. o o.. . 17

Nelson v. State, 278 So.2d 734 (Ala. Crim.
App. 1973 ) .................. o.... o. o............... 35

Plunkett v. Estellet 709 F.2d 1004 (5th Cir.

1980), cert. denied, 451 U.S. 1028 ( 1981 ) .....
In re Gault, 387 u.s. 1 (1967) .........o.......o......
In re Winship, 397 U.S. 358 (1970) ............oo......

1983), cert. deniedt 104 S.Ct. 1000 ...o............
Presnell v. Georgia, 439 U.S. 14 ( 1978) ...............
Russell v. United States | 369 U.S. 749 (1962) .........

Smith v. orGrady, 3'l 1 U.S. 329 ('1941)

19

34

21

38

34

34 t36
41 ,46

28

-vl.1-



Case Page

Spray-Bilt V. Intersoll-Rand World Trade, 350
F.2d 99 (5th Cir. 1965) .............. o............. 19

Street v. New York, 394 U.S. 576 ( 1969) .... o........ o. 40

Stromberg v. California, 283 U.S. 359 ( 1931 ) .. o....... 38r39r40

Sumner v. Ivlata, 449 U.S. 539 ( 1981) . o o... o o........... 10r12t17
20 r21 ,22r26

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

Terminiello v. Chicago, 337 U.S. 1 ( 1949) ............ o 38r39r40

Townsend v. Sain, 37 2 U.S. 293 ( 1963) ......... o. o.... o 18r22

United States v. Berlin, 472 F.2d 1003 (2nd
Cir. 1973 ) ........... o o...... o o o.. o o............... 46

United States v. Carll, 105 U.S. 61 1 ( 1882) .... o. o.... 46

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

35r36
41 r42

United States v. Curtis, 506 F.2d 985 (1Oth
Cir. 1974) ... 43

United States v. Diecidue, 603 F.2d 535 (5th
Cir. 1979 ) ..... o........ o o. o..... o..... . .... o...... 42

United States v. Dorfman, 532 F. Supp. 1118
(N.D. I11. 1981) ................................... 43

United States v. Dreyfus, 528 F.2d 1064 (5th
Cir. 1976 ) ............. ....................... 46r47

United States v. Haas, 583 F.2d 216t reh.
denied, 588 F.2d 829 (5th Cir. 1978)l
cert. denied, 440 U.S. 981 (1979 ) ..................

United States v. Hess, 124 U.S. 483 ( 1888) ............

34 t45

41

United States v. Huff, 512 F.2d 66 (5th
Cir. 1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

United States v. Cruikshank, 92 U.S. 542
(187s)

- VIII



Caqe

United States v. Nance | 144
477, 533 F.2d 699 (1976)

United States v. Outler, 659
Cir. unit B 198f), cert.
950 (1982) ........o.....

oaaaaaaaaaaaaa

( srh
u.s.

a a a a a a a aaaa aa aaa

U.S. App. D.C.

F.2d 1306

:::::::.::.

ooaaaaaa

Page

43

14

40

35

14

2 ,40 ,42

12

passim

12

United States
Cir. 1982)

United States
( 5th Cir.

Von Atkinson
Cir. 1 978 )

Wainwright V.

Wainwright v.
21, 1985)

433 u.S. 72

53 u. s. L.w.

34 ,41
42t45

]:.llTll :.'.'.1.1:31.i::.i]]::............. 34,41,4s

v. Strauss, 283 F.2d 1955
1950) .............o.... ......o...o.. 34145

v. Smith, 575 F.2d 819 (1Oth

Sykes,

wirr,

38

39

18

Watson v. Jingo, 558 F.2d 330 (6th Cir. 1977) .

Wilder v. State, 40 'l So.2d 151 (Ala. Crim.
App.), cert. denied, 401 So.2d 167 (A1a.
1981 ), cert. denied | 454 U.S. 1057 (1982)

Williams v. North Carolina, 317 U.S. 287 (1942) .......
Williams v. State, 333 So.2d 510 (Ala. Crim.

App.), aff'd, 333 So.2d 613 (AIa. 1976) .o...
Wilson v. State, 52 Ala. 299 (1875) ...................

United States Constitution and Statutes

Sixth Amendment .. o....... aaaoaaaaaa

Fourteenth Amendment

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

28 u.S.C. S22s4(d)

38

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

IX



llebera Statutce

Ala. Acts 1980, No. 80-732, p. 1478, SS3, { ... o.... o..

Ala. Code S13-5-115 (1975) ............................

AIa. Code S17-10-3 (1975) .o...o.......................
Ala. Code 517-10-6 (1975) .............................

AIa. Code S17-10-7 (1975) .............................

AIa. Codg 517-23-1 (1975) .............................

Othcr Autboritlcr ')",

-

75 Am. Jr.2d Trlal 5885 oooii....1a.......'$.........o..

75 Am. Jr.2d Trlal 51111 .,........G.o.o..o..o...o....o.

Pagc

31

11 ,29
31 ,32

11 ,29 r30

11 t29
30, 31

11 ,29
30r31

PaEsim

{0

40

-I-



SrATErErt Ot rEE I88UE8

I.
Iilhether the District Court correctly applled
the applicable law to find under Jackson'v;
Virolnla, {13 U.S. 307 ( 1979) thatT-EFffi-fil
the llght most, favorable to the prosecutlon,
the evidence was lnsufficlent to support a
convictlon?

II.
IYhether an lndictment whlch faile to lnforrn a
defendant of the nature and cauae of the
accusation agalnst her violates the Sixth
Amendnent?

-ri



UNITED

FOR

IN TEE

STATES COURT OF APPEALS

TEE ELEVENTH CIRCUIT

No. 84-7286

I,IAGGIE S. BOZEUAN,

V.

EALON I'I. LAMBERTT €t el.r

Appellee

Appellants

On Appea1 from
for the

the United States District Court
l{iddle Dlstrict of Alabama

cv 83-H-579-N

STerpHgNT OF THE cAsE

I. PROCEEDINGS BELOW

Indicted on three counts of voting fraud (Alabama Code

S17-23-1 (1975)), appellee Maggie S. Bozeman was tried by jury in
the circuit court of Pickens county, Alabama. Her motion for a

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

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

specifying the count or counts on which its verdict rested. Ms.

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

conviction, challenging ig!S--r aIi.a the sufficiency of the

evidence and the constitutionarity of the indictment. The

Arabama court of criminal Appeals affirmed, holding that the



verdict was 'not patently against the weight. of the evidence" and

that the indictment was adequate. Bozeman v. State, 401 So.2d

L67t L7L (1981). After denial of a motion for rehearing, the

issues $rere presented to the Alabama Supreme Court and the

Supreme Court. of the United States, but both denied certiorari.
Bozeman v. State, 401 So.2d LTLi 454 U.S. 1058 (1981).

The instant federal habeas corpus proceeding was initiated

by the filing of a Petition for a Writ of Habeas Corpus (herein-

after "Petition") on June 8, 1983. On January 20, 1984, I{s.

Bozeman filed a Motion for Summary Judgment asserting that the

evidence offered at trial was insufficient to prove guilt beyond

a reasonable doubt under the Due Process st.andards of BgEsgLv.
Virginia, 443 U.S. 307 (L979') , and that the indictment was

insufficient, to inform her of the nature and cause of the

accusation against her as required by the Sixth and Fourteenth

Amendments. The district court granted the motion on April 13,

1984, and ordered that Ms. Bozemanrs conviction be vacated. The

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

prosecution, the evidence at trial was insufficient for any

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

reasonable doubt. The court also held that Ms. Bozemanrs

constitutional rights were violated because the indictment failed

to provide any notice of a number of criminal statutes and

theories of liability submitted to the jury.

2-



This appeal

district court

appeal.

was taken on April 27, 1984. On May I, 1984, the

granted appellants a stay of judgment pending

II. STATEI,TENT OF TBE FACTS

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

President, and }ong-time civil rights activist, vras convicted by

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

her alleged participation in an effort to assist elderly and

illiterate black voters to cast absentee ballots in the Demo-

cratic Primary Run-Off of September 26, 1978 (hereinafter

'run-off" ). The three count indictment charged that, she:

COUNT ONE

did vote more than oncer oE did deposit more
than one ballot for the same office as her
vote t ot did vote iIIegaIIy or fraudulently,
in the Democratic Primary Run-off Election of
September 26, 1978,

couNT Two

did vote more than once as an absentee voter,
or did deposit more than one absentee ballot
for the same office or offices as her voter oE
did cast illegaI or fraudulent absentee
ballots, in the Democratic Primary Run-off
Election of September 26, 1978,

3



COUNT THREE

did cast illegaI or fraudulent absentee
ballots in the Democratic primary Run-off
Election of September 26, 1978, in that she
did deposit with the pickens County Circuit
Clerk, absentee ballots which erere fraudulent
and which she knew to be fraudulent, against
the peace and dignity of the State of
Alabama.

Tr. 211

At trial the prosecution introduced thirty-nine absentee

ballots, Tr. 41, and craimed that Ms. Bozeman had participated in
the voting of these ballots in violation of s17-23-1. rt vras

undisputed that each balrot had been cast in the run-off, and

purported to be the vote of a different black elderly resident of
Pickens County.

No evidence was presented that Ms. Bozeman had cast or
participated in the casting, filring out or procurement of any of
the thirty-nine absentee ballots. Indeed there is nothing in the

record to indicate who cast those ballots. Tr. 2!. The tran-
script is also silent as Lo whether Ms. Bozeman voted even once

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

played a minor role in the notarizing of the 39 absentee ballots,
and contended that her role in the notarizing was sufficient to

The following abbreviations wiIl
Court trial transcript; "Hrg. Tr."
Judge Truman Hobbsi 'R." for Record

be used: "Tr.' for Circuit
for Hearing before DistricL
on Appeal.

4-



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

appear before the notary. Tr. I95-L97i cf. Tr. 90, I05-106.

District Attorney Johnston, in his response to [t{s. Bozemanrs

motion for a directed verdict at the close of the Staters case,

claimed that the t.hirty-nine absentee ballots "were not properly

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

stated that "the act of the Defendant in arranging the conference

lat which the ballots were notarizedl and in participating in the

presentation of the ballots to [the notary] to be notarized was

fraud." Tr. 196.

The prosecution called only nine of the thirty-nine absentee

voters to testify. Each of these witnesses was elderly, of poor

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

rudimentary knowledge of voting or notarizing procedures. The

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

sing in several instances. 40I S.2d at 170. The court below

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

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

Nevertheless, insofar as any synthesis could be made of the

individual testimony, the court below construed it in the light
most favorable to the prosecution.

It is uncontested that only two of the nine voters, 1,1s.

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

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

Ms. Lucille Harris (Tr. 189) and lls. Maudine Latham (Tr. 91-93)

5



tionrs closing argument, Record on Appeal, Volume 3 of 3, at 26.)

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

voters between Ms. Bozeman and any of the absentee ballots cast

in the run-off.3

The court found that "not one of the elderly voters testi-
fied that Bozeman ever came to see him or her about voting in

connection with the runoff," R. L65, and that the only evidence

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

from Tuscaloosa. Mr. Rollinsr testimony was that Ms. Bozeman was

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

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

present when the notary notarized the ballots after the women as

a group assured him the signatures were genuine. Id.4 The

testified to never having seen the absentee ballot introduced
into evidence as their vote. Ms. Anne Billups (Tr. 97-98), lls.
Mattie Gipson (Tr. 1f0), Ms. Janie Richey (Tr. L27), and Ms.
Fronnie Rice (Tr. I36-137, 148, 15f) each remembered voting by
absentee ba11ot in the run-off . tlr. Nat Dancy (Tr. 113) did not
provide any coherent testimony whatever on the way in which he
voted in the run-off.
Ms. Spann testified that she did not sign an application or a
ballot, and was told that an absentee ballot was cast in her name
when she went to her usual polling place. The court below found
that nShe stated that Bozeman came at some time prior to the
run-off and asked if Spann wanted to vote absentee and Spann said
she did not. Julia Wilder witnessed Spannrs application.n R.
169. Ms. Sommerville stated in an out-of-court "deposition" that
l'ls. Bozeman "may have filted in her ballot and that she never
signed the ballot. " R. 169. The deposition was not admitted
into evidence, .i9., andr Et trial the witness vehemently denied
its contents. Id.
Mr. RolIins testified that he notarized the thirty-nine ballots
in his office in Tuscaloosa wiLhout the voters being present. Tr.
55-54. He testified that Ms. Bozeman, with three or four other

6



district court found that all other circumstantial indications of
guilt were stricken or were ruled inadmissibre. R. L72. The

circumstantial evidence to which the court referred was the
testimony of the court crerk and the testimony of Mrs. Lou

sommerville. The court found with regard to the crerk:

Janice Ti1ley, the court clerk, testified that
Bozeman came in several times to pick upapplications for absentee ballots. this was
entirely 1egal. She also stated that one
time, just prior to the runoff, Bozeman andWilder came together in a car, although only
Wilder came into the office. Upon objeciion bydefense counsel, however, the trial judge
struck most of this testimony, including all
references Lo Wilder. The only testimony that
was not stricken was that Bozeman was in a car
alone and did not come inside.

R. I55

The court found that Mrs. Sommerville's testimony about her
ba1lot was incomprehensible, in part because the prosecution
attempted to introduce evidence connecting Ms. Bozeman with Mrs.

Sommervillers absentee barrot by reading to the jury notes pur-
porting to be the transcript of an out-of-court ,deposition', of
Mrs. Sommerville conducted without an attorney present for either

women, was present in the room when he $ras notarizing the
bal rots . Tr. 57 . But Mr. Rol l ins den ied that l,ts. Bozemanpersonally requested him to notarize the barrots. Tr. 59, 60,62, 64. He also stated that he had no memory of Ms. Bozemanrepresenting to him that the signatures on Ehe ballots hreregenuine. Tr. 73-74. A11 the prosecution could ericit from Mr.Rollins was that Ms. Bozeman and the other women present at thenotarizing were "t,ogether. o Tr. 5O-Gl , 62, 64, 1L.

7-



the witness or Ms. Bozeman.5 on the stand, Mrs. sommervirle

testified that Ms. Bozeman had never signed anything for her, and

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

that rLou Sommerville's deposit.ion was never placed in evidence

and would not have been admissible as substantive evidence

anyway. n R. L72.

The district court concluded:

Although there was convincing evidence to show
that the ballots were iIlegally cast, there
was no evidence of intent on Bozemants part
and no evidence that she forged or helped to
forge the ballots. There is no evidence that
she took applications to any of the votersr or
that she helped any of the voters fill out an
application or ba1lot t oE that she returned an
application or ba1lot for any of the voters,
and no ballot was mailed to her residence.
Thus, there was no evidence that Bozeman
realized when she accompanied Wilder and
others to the office of Rollins that the
ballots she helped to get notarized were
fraudulent.

R. 172.

Testifying in person, Mrs. somervilre vehemently challenged the
veracity of the notes represented by the prosecutor to be a
transcript of her out-of-court statements, and steadfastly denied
that l'ls. Bozeman was involved in any way with Mrs. sommervilrets
voting activities. Tr. 163, L69, L73, L74t 175. According to the
out-of-court statements, Ms. Bozeman aided Mrs. sommerville to
fill out an application for an absentee ballot in order that Mrs.
Sommerville could vote by absentee ballot in the run-off. Tr.
161, 169. Taken in the light most favorable to the prosecution,
even the out-of-court statements -- which were neither admitted
nor admissible in evidence showed only that Dts. Bozeman aided
Mrs. Sommerville to engage in lawful voting activities with the
Iatterrs knowledge and consent.

8



After first determining that Ms. Bozeman had exhausted all
her state remedies, the district court appried the Jackgon v.
VirgLnia standard and held the evidence insufficient for a

rational trier of fact to find guilt beyond a reasonable doubt.
The court also ruled that the indictment was constitutionally
defective.

III. STATEIIENT OF TIIE STANDARD OF REVIEIT

Appellantsr explicit contentions on appeal are that the

district court failed to observe rules prescribed by statute and

caselaw for analyzing constitutional issues presented in federal
habeas corpus proceedings. The standard of review of these

asserted errors is whether the district court disregarded

applicable legal principles in its analysis of the constitutional
merits of the case. Appellants do not explicitly contend that if
the district court analyzed Ms. Bozemanrs J""t 

""n ". virgini.
claim according to the appricable regal principles, it erred in
finding constitutionally insufficient evidence to sustain her

conviction. If this contention is nevertheless implied in
appellantsr arguments, the standard of review is whether the
district court's conclusion is fairly supported by the record as

a whole.

-9



SU}IUARY OF ARGUMENT

r. Appellantsr submission that the district court erred

under sumner v. Mata and 28 u.s.c. 52254(d) in failing to defer

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

when adjudicating tils. Bozeman's ggglpg claim is utterly baseless

on this record and in 1aw. rn the first prace, the district
court made no findings of historical fact that differ materially
from those of the state courEs, it disagreed only with the state
courts I ultimate conclusions regarding the consLitutional
sufficiency of the evidence. rn the second pIace, state-court
fact findings that lack the minimal evidentiary support demanded

by the constitutional rule of Jacksgn v. V-irginia self-evidently
faII outside the scope of the "determination [s] ... on the merits

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

U.S.C. S2254(d), because, by definition, they are "not fairly
supported by the recordr " 28 U.S.C. 52254 (d ) ( 8). Thus, the

district courtrs explicit conclusion that there was no constitu-
tionally sufficient evidence to sustain Ms. Bozemanrs conviction
fully satisfied sumner and 52254(d) at the same time that it
established a Jackson violation.

The district court properly conducted an independent review

of the state-court record as required by Jackson. fts determina-

tion that the evidence, taken in the light most favorable to the

prosecution, was insufficient to sustain a conviction is amply

10



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

factual findings inconsistent with the Alabama Court of Criminal

Appealsr opinion. Appellantsr effort to create such inconsisten-

cies by pointing to the trivially different phraseologies used by

the district court and by the Court of Criminal Appeals in
summarizing the trial transcript will not withstand analysis.

II. The district court found that the trial judge instruct-
ed the jury on four statutes, Ala. Code SI7-10-3 (I975) [miscited

by the trial judge as S17-23-3), Tr. 202i AIa. Code 517-10-6

(I975) [miscited by the trial judge as S17-10-77t Tr. 202-203i

AIa. Code S17-10-7 (1975), Tr. 203-204; and AIa. Code S13-5-115

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

jury was further instructed that proof that Ms. Bozeman had

commited any act "not authorized by ... or ... contrary to" any

law would constitute an "i1Iega1" act warranting her conviction

under 517-23-1. Tr. 20L. The effect of these instructions was to
make a violation of each of the other statutes a separate ground

for Iiabillty under SI7-23-L. Yet the indictment contained no

allegations that Ms. Bozeman had violated those other statutes or

had engaged in acts which would constitute violat,ions of them.

For these reasons the district court correctly held that the

indictnent failed to provide notice of the offenses for which Ms.

Bozemanrs conviction was actually sought and that her conviction

vras accordingly obtained in violation of due process.

11



I.

STATET.IENT OF i'URISDICTION

The district court had jurisdiction under 2g u.s.c.
52241 (c) (3). The district courtrs final judgment was certified
pursuant to Fed. R. Civ. p. 54(b).

ARGUI,tEN.T

THE DISTRICT COT'RT VIEWED THE EVIDENCE TN TEE LIGET IIOST
FAVORABLE TO TEE STATE AND PROPERLY DETER}TINED IT T{AS
INSUPFICIENT AS A I'IATTER OF FEDERAL CONSTITUTIONAL LAw.

The district court held under gg*ggg v. virginia, 443 u.s.
307 (1979) | that no rational trier of fact could have found Ms.

Bozeman guilty of the offense charged. Appellants apparently do

not seek this Courtrs review of the correctness of that conclu-
sion upon the evidence reveared by the triar record. Rather,

they invoke ggIEE v. IiE, 449 u.s. 539 (1981), ro conrend that
the district court "inexplicably" ignored factual findings of
the Alabama Court of Criminal Appeals (Brief at 19-20) and failed
to identify its reason for doing sor inasmuch as it did not

specify the particular exception to 28 u.s.c. s2254(d)r6 on which

it relied. Appellants also contend that the district court did
not view all the evidence in the light most favorable to the
prosecution.

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

enumerated exceptions,
as correct the factual

12



The Dlstrlct Court Properly Applied The Relevant Law to
Conclude The Evidence lilas Insufficient

In O=Sfsog v. JiIgjIjE, the Supreme Court established the

standard by which federal habeas courts should measure the

constit,utional sufficiency of evidence in state criminal prosecu-

tions. Jackson analysis begins with an identification of the

elements of the crime under state raw. rt then requires an

examination of the record evidence with reference to each element

of the crime, deferring to factual findings of the trial court or
jury and resolving all disputes in favor of the prosecution. It
ends with a determination whetherr on t,his evidence, a rational
trier of fact could find every element of the crime proved beyond

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

In the present case, the district court scrupulously

followed the Jackson standard. It first outlined the Jackson

ruler exPlaining that 'a mere 'modicum' of evidence is insuffi-
cient,.' R. 170. See Jackson v. Vlrginia, supra , 443 U.S. at

320. It next determined the elements of the crime under Alabama

Iaw, quoting the language of the statute under which lrls. Bozeman

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

A.

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

t3



The court referred to relevant state case law holding that ''the
words "illegal or fraudulent". . . are. . . descriptive of the

intent necessary for the commission of the offehs€7 rrr and that ,tr

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

oncert ... or voting when the voter is not entitled to so., R.

171.7 The two essentiar erements of knpwledge or ing,ent to carry
out i1}-egal volinq activitv were thus isolated, and the court
then examined the evidence in Bozeman to determine whether these

elements were proved. R. 171-73.

It expressly started from the premise that, under Jackson,

Lhe evidence must be "viewed in a light most favorable to the

prosecution. . . .' R. 1'10. rt f urther recognized that " Ii]n
determining whether t,he evidence established tthel ... elements

[or the crime as defined by state law], the court may not resolve
issues of credibility. Duncan Iv. stvnshcombe] , 704 F.2d 11213r)

at 1215 [(11th Cir. 1983)]. Thus, where the evidence conflicts
the court must assume that the jury accepted the prosecution's

version, and must defer to that result. 443 u.s. at 326." rd.

The elements of the offense proscribed by sl7-23-1 are emproying
fraud to vote more than once-. wils_on v. s_lsqq, 52 Ala. zbgr- goi
(1875)_; El}lgr v. state, 401 -so7l-t51,-Ttr0'-(Ata. crim. App.),
cerr. jgff4ot s6-78--tsz (Ala. 1981); ceEL denied, asa--u.s.TdsT'rrts?r.

14



Reviewing the trial transcript with these principles in

mind, the district court found that the only evidence offered

against Ms. Bozeman vras that she: (i) picked up "[a]pproxi-
mately 25 to 30 applications'for absentee ballots from the

Circuit Clerkrs office during the week preceding the run-off, Tr.

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

include the votersr dt the notarizing of some absentee ballots

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

telephone call to the notary "pertaining to ballotsr' Tr. 76-77i

and ( iv ) spoke to prosecution witness llls. Sophia Spann about

absentee voting when rit wasnrt voting timer' Tr. 184. Addit.ion-

ally, the court found that there was evidence presented by the

prosecution but not admitted by the trial judge: (v) that Ms.

Bozeman aided t{s. Lou Sommerville, with Ms . Sommerville's

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

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

run-off, Ms. Bozeman may have aided Ms. Sommerville to fill out

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

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

ings below had been stricken from the record by the trial
judge.S R. 171-172.

In the proceeding below, appellants stated that the testimony at
trial showed that Ms. Bozeman owent to Lhe courthouse with Julia
Wilder the day that she carried all these thirty-five or forty
fraudulent ballots up there and deposited them in the clerkrs
office.n (Recrord on Appeal, VoI. 2 of 3 at 22-23). The district
court found that the testimony to which appellants referred had
been stricken and the jury instructed to disregard it. R. 172.

15



At trial the prosecution had contended that the evidence of
Dls. Bozeman I s presence at the notarization hras suf f icient to
establish culpability under S17-23-1 because the voters were not

before the notary. Tr. 195-97. Arternatively, in the court
belowr aPPellants argued that there was sufficient evidence to
convict Ms. Bozeman of conspiracyr oE aiding and abetting.
(Record on Appeal, vol. 2 of 3, at 22-23). The district court

conscientiously reviewed the state court record in the light most

favorable to both theories, and rejected both as unsupported by

the evidence under the standards of Jackson v. yirginig. R.

172-17 4.

Specifically:

trAlthough there was convincing evidence to
show that the t3e1 ballots were illegally
cast, there $ras no evidence of intent on
Bozeman's part and no evidence that she forqed
or-E'EI
e ions to any of
the voters t ot that she helped any of the
voters fill out an application or ballot t oT
that she returned an application or ballot for
any of the voters, and no ballot was mailed to
her residence. Thus, there was no evidence
that Bozeman realized
that the ballots that she helped to get

adcled. )

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

testimony, there was no attempt to
Wilder deposited any ballots. Tr.

16



similarly, even under appellants' theory of aiding and abetting,

"there ... was no evidence of intent." R. 173. The district
court concluded that:

trThe evidence did not show Bozeman t,o have
played any role ln the process of ordering,
collecting t ot filling out the ballots. The
record also lacks any evidence of any contlldE
between - B-

noEary's. Tnus, there is no evidence to
indT .frauourent,. " ( rcl. i emphasis added. )

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

the essential elements of the crime beyond a reasonable doubtr "'
R. 170, the district court ruled that Lhe evidence was insuffi-
cient to sustain a constitutional conviction.

Thus, the district courtts analysis of the record was

conducted precisely as required by Jackson. rts independent

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

prosecution, vras entirely consistent with its responsibilities
under 28 V.S.C. S2254 (d ) .

section 2254(d) requires a federal habeas court to apply a

Presumption of correctness to the factual determinations made by

a state court. summer v- Mata, 449 u.s. 539 (1991). The statute
is designed to ensure that deference will be given to state-court
evidenLiary findings, arrived at after weighing the credibility
of witnesses at trial. tlaggio v. Fgl_ford, _ U.S. _t 76

L.Ed.2d 794 ( 1983); sumne.r v. Mata, s_g.p3. on questions of

17-



historical fact, the state court's findings are controlling
unless there are substantive or procedural deficiencies in the

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

28 u.s.c. s2254 (d) ( 1-8).

The deference required by 52254(d), however, applies only to
historical facts. A federal habeas court is not bound by

state-court determinations of questions of }aw, or mixed ques-

tions of 1aw and fact that require the application of constitu-
tional principres to historical facts. cuyrer v. su}livan, 446

U.S. 335, 342 ( 1980); Bre$rer v. Williams, 430 U.S. 397, 403-04

(1977',). asg9, wainwrigh.r v. wirr, 53 u.s.L.w. 4108 | 4112 (u.s.

Jan. 21, 1985). The supreme court explicitly reiterated the

principle in .7=$:gg , 44 3 U. S . at 31 I , cit ing the teading

opinions which announced it, Townsend v. saigt 372 u.s. 293, 3,l8

( 1 963 ) ; grow-n v. A1len , 344 U.S. 443, 506-07 ( 1953 ) (opinion of
Justice Frankfurter). This court has also held consistently in
cases involving questions of law or mixed questions of law and

fact that the presumption of correctness does not apply. see,

".9:, Goodwin v. Balkom, 684 E.2d 794t 803-04 (11th Cir. 1982),

cert. denied, 1 03 S. Ct . 1798 ( 1982) i Dickerson v. State of

9, 667 F.2d 1364, 1368 (1lth Cir. 1982) cert genied, 459

U.S. 878 ( 1982); Gq}sby v. wsinwriglrt , 596 F.2d 654, G55 (Srh

Cir. 1979) , g-ert._ {Sljie9, 444 U.S. 946 (1979). And rhe taw of
the Circuit is settled that determinations of the sufficiency of
the evidence involve the application of legal judgment requiring

18



an independent review of the record. @, 632

F.2d 605, 640 (sth cir. 'l 980), cert. denigj, 451 u.s. 1028

( 1981); see also Spf av-Bi1_r v. I,nters-olI-Ra!3Joft-d-Ilsg.g, 350

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

A federal district court which makes a proper analysis of a

Ja_ckson v. Virginia claimr ds the court below did here, affronts
no rule or poricy of s2254(d). By viewing the evidence "in a

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

"that the jury accepted the prosecution's version" of conflicting
evidence ( id. ), and "defer Iing] to that result', (!!. ), the court
not. merely accepts all findings of historical fact which the

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

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

district court may disagree with the state courtrs ultimate
conclusions regarding the sufficiency of the evidence, 443 U.S.

at 323-24, but these concrusions are the very paradigm of
judgments which are not 'entit.led to a presumption of correctness
under 28 u. s. c . s2254 ( d ) " because they represent ,a mixed

determination of law and fact that requires the application of
legal principles to the historical facts . . .,, Cuy1er v,

su_lrivaEr supra, 446 u.s. at 341-342i compare J_acksoq-y-._

virginiar 443 u.s. at 318 (trA federal court has a duty to asssess

the historic facts when it is calred upon to apply a constitu-
tionar standard to a conviction obtained in a state court').
Against the background of these settled principres, vre t,urn now

l9



to appellants I argument

morer oE that the court
fulfilment of this duty.

that Sumner v. Itlata demands something

below did something 1ess, than the

In Enforeing ilackson v. V:r$nig, the District Court
riras Nor Requi;6d-6- ac&pffiEe Findings rhar rhe
Evidence Was Sufficient.

Appellants I contention that a federal court enforcing
Jackson v. Virgin_ia must give deference to state-court findings
under Sumner q. I'lata misconceives the whole point of Jackson and

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

claims could re! be enforced, because it is arways the case

that federar habeas proceedings raising JiSISoq craims are

preceded by (1) a state jury finding that the evidence is
sufficient to prove every erement of the offense; (z) a state
trial-court finding that the evidence is sufficient to support

the jury's verdict, and (3) a state appellate-court finding of
that same fact. Federal-court deference to these omnipresent

findings would render the Jackson decision an exercise in
futilit.y, the Jackson opinion an absurdity.

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

u.s. at 323 ("The respondents have argued . that whenever a

person convicted in a state court has been given a 'fulI and fair
hearing' in the state system -- meaning in this instance state
appellate review of the sufficiency of the evidence further
federal inquiry . . . should be foreclosed. This argument would

B.

20



prove far too much.'). rndeed, the precise question debated in
the Jacks_on opinion was whether rn re winsl ip , 397 u.s. 359

( 1 970 ) required federal habeas courts to review state-court
factual findings to the extent necessary to enforce the federal
constitutional requirement of proof beyond a reasonable doubt as

the condition precedent to a due-process criminal conviction.
Jackso!rs p1ain, clear answer to that question was yes.

There is nothing in this answer that is inconsistent with

u.s.c. s2254, and merely herd that the requirements of s22s4

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

findings of fact of state trial courts. WeIl before either
S-$}.1]E or #,cksog, it was settled law that federal habeas courts

were required to defer to state trial-court findings of fact,
such as the jury's finding of guilt or the trial judgers finding
of the sufficiency of the evidence, under the conditions speci-
fied by 52254. ESg, s,g,., La Vqllee v. pellg ESg, 410 U.S. 690

(1973). The reason why Jacksojr nonetheless concluded that
federal habeas courts could review these findings independently

to determine whether the evidence of guilt was constitutionally
suf f icient is obvj.ous. It is that any case in which the Jacksoq

test of constitutional insufficiency of the evidence is met is a

foftiori a case in which s2254(d) expricitly permits federal
habeas corpus redetermination of the facts because trthe record in
the state court proceeding, considered as a whole, does not

-21



fairly support It,he] factual determination" of the jury that
every element of guilt was proved beyond a reasonable doubtr or

the factuar findings of the state trial court and apperlate

courts that the evidence was sufficient for conviction. In
short, every substantively valid Jackson claim is, by definition,
within the class of cases in which 52254(d) permits (and Townsend

v, SaiJr, 372 U.S. 293 (1953), requires) federal habeas corpus

redetermination of state-court fact finding. srmrer ". Mata

neither requires a federal district court to ignore, nor to

"explainr" this patently obvious point.

The Dlstrlct Courtrg View of the Evldence $Ias Not
Inconslstent With Factual Flndlngs of the Alabama Court
of Criminal Appeals

APpellants further urge that, the court below disregarded

specific findings of historical fact by the Alabama Court of

criminal Appears. They note (Brief at 18) that Judge Hobbs was

able to reduce the prosecutionrs evidence to a single sentence:

'rThe only evidence against Bozeman was Rollins' testimony that
she was one of the ladies who brought the ballots to be nota-

rized, that she may have called to arrange the meeting, and that
the ladies as a group represented the ballots to be genuine after
he told them that the signators were supposed to be present. " R.

1'71. Appellants complain t.hat this sentence does not summarize

C.

22-



the trial transcript in language identical to the summary of the

transcript found in the Alabama court of criminal Appealsl

opinion.

This is a quarrel about opinion-writing phraseorogy and

nothing else. For while appellants contend that t.he district
courtrs factual findings were nconsiderably at odds with the

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

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

of alleged inconsistencies:

"(1) Paul Rollins 'testified that he had talked with
Bozeman about notarizing the ballotElJ 401 So. 2d
at 169 (emphasis supplied) (as opposed to 'she may
have cal1ed I )

(2) 'Mr. Rollins stated . . . that he subsequently
went to Pickens County to find those persons who
had allegedIy signed the ballots. He had
[Bozemants] assistance on that occasion, however,
he vrras not sure he did not go to pickens County
prior to September 26, 1978., 401 So. 2d 169 (no
mention of this in the district court opinion)

(3) The state court relied heavily on the testimony of
Sophie Spann. 401 So.2d at 169-70. The distiict
court, in contrast, treated her evidence briefly
in section II of its opinion (R. 169) i then, quite
inexplicably, ignored the evidence entirely when
it reached the critical summary of the staters
case. (R. 1 71 ). " (Appellants I Brief at 19-20.)

Upon examination, even these insignificant discrepancies dis-
appear.

23



( 1 ) Judge Hobbs I paraphrase of Rollins' testimony with
respect to the telephone call simply summarizes the fuller
version of that testimony set forth earlier in the district
court's opinion:

'He [Rollins] also stated that he received two
calls to set up the meeting, but that he could
not remember whether Bozeman made either calI.
He later testified, however, that Bozeman made
one call pertaining to some ballots, but hetaq gg! sSrE yhictr gglf-ggg." (R. 166-6Ti
empnasls aclclecl. )

Summing uP later, Judge Hobbs understandably described this
testimony by saying that Bozeman'may have called to arrange the

meet.ing.' R. 171. The only variation bet,ween this formulation
and the one employed by the Alabama Court of Criminal Appeals was

that the Alabama court wrote that Ms. Bozeman "had" arranged a

meeting with the notary. The nhad/may haver line is prainry a

distinction without a difference, since as with all the

evidence Judge Hobbs viewed Rollins' testimony in the light
most favorable to the prosecution.

(2) The second of the critical',facts" which appellants

claim that Judge Hobbs did not mention is incorrectly quoted.

Corrected, it becomes irrelevant.9

9 correctry, 'l,lr. Rollins stated . . . that he subsequentry went to
Pickens County to find those persons who had allegedly signed the
ballots. He had [Ms. Bozemanrs] assistance on that occasion,
however, he was sure he did not qo to Pickens Countv prior toseprember EmFEffiTreaaaai.ffi
no reason ffiage Hobbs to mentio-n this inciient since it
occurred af t,er the run-of f primary in question and involved

24



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

appellants is that the state court "reried heavily on the

testimony of sophie spann, " while Judge Hobbs treated her

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

of Criminal Appeals did not indicate specifically the facts on

which it based its conclusion that the evidence was sufficient,
saying only that the evidence was circumstantial and confusing in
severar instances, 401 so.2d at 170. Even if appellants are

correct t,hat the Alabama court relied "heavily" on lrls. spannrs

testimony, there is nothing in the testimony cited by that court
or contained in the trial transcript linking Ms. Bozeman to Ms.

Spannrs absentee ba1Iot. Neither the ballot application nor the

ballot contained a signature purporting to be that of Ms.

Bozeman. According to the Alabama court, arr that Ms. spann said

with regard to tls. Bozeman is that they were life-long friends
who had a conversation about voting absentee 'when it wasnrt

voting time." Tr. 184.10 th"t same conversation is described by

another unrelated elect.ion.
duced at trial by the defense
and was not treated otherwise

testimony about it was intro-
show ltls. Bozemanrs good f aith
the Alabama court.

The
to
by

10 According to the Alabama Court, Ms. Spann testified that:
(a) "she had never voted an absentee baIlot, but that

[Bozeman] had come to her house and had talked to her
about it.n This occurred "before voting time."

(b) She had known Bozeman all her life.
(c) She had never made an application for an absentee ballot

nor had she ever signed her name to one.

25



the court below. R. 159.11 Judge Hobbs treated the testimony of
Ms. spann in the same way that, he treated alr other testimony

by highlighting only those aspects of the evidence that could be

viewed as materially supporting Ms. Bozemanrs conviction of the

charges in the indictment.

Thus, Judge Hobbs did not disregard or disagree with any

facts found by the state appellat,e court. His sole disagreement

was with the state court's ultimate conclusion that those facts
added up to sufficient proof to al1ow a reasonable mind to find
Ms. Bozeman guilty beyond a reasonable doubt. The rule laid down

in srqmmer v. _Mata, 449 u.s. 539 ( 198,l), requires that federal
habeas courts must specify their reasons for denying state
f act,uar f indings a presumption of correctness under S2254(d) if
and when thev disregard those findings. Since Judge Hobbs did

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

(e) She went to Cochran to vote and was informed that an
absentee ballot was cast for her in Alicevil1e.

401 So.2d 169-70.

1 1 Judge Hobbs' summary of the spann testimony went as follows:

"Sophia Spann testified that she did not sign an
application or a baIlot. She also stated that
when she went to her usual polling pIace, she was
told that her absentee ballot had been cast. She
stated that Bozeman came at some time prior to
the runoff and asked if Spann wanted to vote
absentee, and Spann said she did not. Julia
Wilder witnessed gpqnlrtg q52plication.,' (R.-TBq
empnasls aooed).

26



not

obl

Cf:

disregard any state-court findings, he was obviously

iged to state reasons for doing something that he did not

Brewer v. Wil1iams, 430 U.S. 387, 395-397, 401-406 (1977).

not

do.

fn Brewer both parties agreed to submit the case to the

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

The district court made findings of fact based on its examination

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

which the state courts had found, but none of its findings
including the supplemental findings -- conflicted with those of
the State courts. The Supreme Court held that the district court
had fully complied with the strictures of 28 u.s.c. s2254(d). 430

U.S. at 397.

Here too, while Judge Hobbs made some additional findings,
none of his findings conflicts with any historical facts found by

the Arabama courts. Appellantst attempt now to find some

inconsistency between specific factual findings of the Alabama

court of criminal Appeals and the factuar findings of the

district court below is groundless.

II. TEE INDICTIIENT AGAINST T.tS. BOZEITAN WAS FATALLY DEFECTIVE IN
TEAT IT FAILED TO INFORU IIER OF TIIE NATURE AND CAT'SE OF THE
ACCT'SATION

The indictment filed against Ms. Bozeman failed in numerous

respects to provide the level of notice required by the Sixth
Amendmentrs guarantee that in all criminal cases the accused

27



shall receive "notice of the nat,ure and cause of the accusation'

against her. Each of these fairures, standing arone, amounts to
a deniar of constitutionally required notice; together, they add

up to a stunningly harsh and egregious denial of not.ice, a right
which the Supreme Court has deemed "the first and most universal-
Iy recognized requirement of due process.n gmith v. Orcr?dy, 311

U.S. 329, 334 ( 194l ); EeS also Cole v. Afkans*, 333 U.S. 196,

201 (1948).

The district court found that the indictment failed to
provide any notice of a number of charges which were submitted to
the jury. Ms. Bozeman was tried,'to put it simp1y... upon

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

notified." R. 183. she did not discover the precise charges

against her, 'until Ishe] ... had rested Iher] ... case.' R.

182. The district court held that she was thereby denied due

process.

The Indictment lrlas Constitutionally Defective In That
ft Failed To Provide Fair Notice Of All Of The Charges
On Whlch The ilury Was Permitted To Return A Verdict Of
Guilt

The district court noted that various stat,utes and theories

of liability as to which the indictment provided no notice

whatsoever $rere incorporated into the charges submitted to the
jury as the basis for a finding that Ms. Bozeman had violated

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

A.

28



set forth at pages 3'4, E-!lpjg. rn each of its three counts it
ostensibly tracked various provisions of S17-23-1. rt alreged

disjunctively with other charges in Count I that Ms. Bozeman had

"votIed] iIlegally or fraudulently," and in Counts II and III
that she had "cast illegal or fraudulent absentee ballots. " Only

in Count III was any factual specifieation provided; and there lt,
was alleged that Ms. Bozeman had deposit.ed fraudulent absentee

ballots which she knew to be fraudulent. fn none of the counts

was any elaboration given to that portion of the charge which

accused Ms. Bozeman of having "vot [ed] illegalry" or having 'cast
i11egal ... absentee ballots. "

rn the instructions to the jury, the triar judge did frame

elaborate charges under which lrls. Bozeman could be convicted of
illegar voting. After reading s17-23-1 to the jury, he explained

the statuters provision against "any kind of illegal or fraudu-
lent voting" by defining the terms "i1regal" and "fraudulent.',
Tr. 201. concerning the term "illegarr" he instructed the jury
that "il1egal, of course, means an act that is not authorized by

law or is contrary to the raw." Tr. 201. He then instructed the

jury on four statutes: Ala. Code S17-10-3 (1975) [miscited as

S17-23-3) , Tr. 202i A1a. Code S17-10-6 ( 1975) [miscited as

S17-10-7), Tr. 202i AIa. Code S17-10-7 (1975), Tr. 203-204i and

AIa. Code S13-5-115 (19751t Tr. 204-205. None of these statutes
or their elements was charged against Ms. Bozeman in the indict-
ment. Their terms provided numerous new grounds on which to

29



convict. The jury was thus authorized to find Ms. Bozeman guilty
under S 1 7-23-1 if she had acted in a manner I'not authorized by or

... contrary to' any one of the provisions of a number of
statutes not specified or even hinted at in the indictment.

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

miscited by the trial judge as 517-23-3, which sets forth certain
qualifications as to who may vote by absentee ballot. The trial
judge instructed that under S17-10-3 a person is eligible to vote

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

is afflicted with "any physicar illness or infirmity which

prevents his attendance at the polls.' Tr. 202. Thus a finding
by the jury that one of the absentee voters had not been physi-

cally 'preventIed]" from going to the polls to vote in the

run-off would have constituted t,he finding of an'acL not

authorized by ... or ... contrary to' S17-10-3, necessitating lls.
Bozemanrs conviction under S17-23-1 even though she was given no

notice in the indictment that such proof could be grounds for
1 iabil ity.

The trial judge then instructed the jury that Sl7-10-6,
miscited as S17-10-7, requires, inler alia, that aIl absentee

barrots "shall be sworn to before a Notary publicr except in
cases where the voter is confined in a hospital or a similar
institution, or is in the armed forces. Tr. 203. Further, under

s17-10-7, the triar judge stat.ed that the notary must swear that
the voter "personally appeared" before him. Tr. 203. Accord-

30



ingly r €vidence that the voters were not present at the notariz-
ing, see Tr. 56-64, sufficed to establish per Sie culpability
under S17-23-1 although, again, the indictment gave Ms. Bozeman

no warning whatsoever of any such basis for culpabiIity.l2
The trial judge then instructed the jury that S13-5-115

provides:

''Any person who shall falsely and incorrectly
make any svrorn statement or af fidavit as to
any matters of fact required or authorized to
be made under the election laws, general,
primary, special or local of this state shall
be guilty of perjury. The section makes it
illegal to make a sworn statement, oath t ot
affidavit as to any matters of fact required
or authorized to be made under the election
Iaws of this state. r'

Tr. 204. Both sentences of this instruction contain egregious

misstatements concerning S13-5-115. The first sentence repre-

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

trial j udge instructed that S 1 3-5- 1 't 5 proscribes "f alseIy and

incorrectly" making the sworn statements described in the

statute, whereas in fact the st.atute proscribes the making of

such statements "falsery and corruptlyn -- i.e., with criminal
intent. The second sentence of the instruction, which apparently

12 rt is noteworthy that SS17-10-6 and 17-10-7 were amended several
months after I{s. Bozemanrs trial by Acts 1980, No.80--132, p.
1478, SS3, 4, and no longer require notarization of the ballot.

31



represents the trial judgers interpretation of S13-5-,l15, has

the absurd result of making illegal every sworn statement duly
made under the election laws.

rrrespective of these misstatements, the charging of
S 13-5-1 15 deprived ltls. Bozeman of constitutionally required
notice. The misstatements of the terms of a st.atute which Ms.

Bozeman had no reason to suspect she was confronting in the

first place only aggravated this denial of due proc."".13
The dist,rict court found Lhat, the trial courtrs charge, by

explicitly permitting the jury to convict Mrs. Bozeman of casting
an improperly notarized barlot, was especially prejudicial
because the only evidence against Ms. Bozeman was her partici-
pation in the notarization. R. 181-82. The indictment contained

no allegaLions which could have put her on notice that her
participation in the notarizing process was violative of S17-23-1

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

world of difference between forging a person's ballot and failing
to follow the proper procedure in getting that person's balrot

13 rhe trial judge also misread S17-23-l in a way which expanded the
charges against Ms. Bozeman. He instructed the jury that
517-23-1 penalizes one who "deposits more than one ballot for the
same office.' Tr. 201. rn fact s 17-23-1 penarizes one who
"deposits more than one ballot for the same ofiice as his vote,'(emphasis added). This omission by the triat judE6 fatiic-ETfy
changed the meaning of the statute so that the mere physical actof depositing two or more ballots at the same eleclion -- evenballots deposited on behalf of other voters viorates
517-23-1. It thus produced a nehr charge against Ms. Bozeman of
which the indictment provided no notice.

32



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

in the indictment but submitted to the jury as a basis for
conviction under S17-23-1 made Ms. Bozemanrs minor participation
in the notarizing into grounds of pg se culpability. At trial
a large part of the prosecution's case was spent attempting to
prove through the testimony of Mr. Rollins, and through questions

posed to virtually all of the testifying voters, that the

notarizing t,ook place outside of the presence of the voters, and

that Ms. Bozeman had in some way participated in that notarizing.
Hence, the charges made for the first time in the instructions
provided new grounds for culpability which were crucial to her

convi ct ion.

The court. below herd that the failure to arlege these

grounds for culpability in the indictment violated trls. Bozemanrs

Fourteenth Amendment rights. The violation was all the more

significant because evidence of the proper elements of the one

statute charged in Lhe indictment was insufficient or nonexis-

tent.

The only relevant allegations in the indictment were that
Ms. Bozeman had "voteId] iIlegally" (Count I) or had ,cast

illegal ... absentee ballots" (counts rr and rrr) in the run-off.
These allegations in no way informed l'ls. Bozeman with particula-
rity that she could be prosecuted under the rubric of illegal
voting for acts 'not authorized by . . . or . .. contrary to' the

four unalleged statutes charged in the instructions. But

33



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

sufficiently in advance of the scheduled court proceedings so

that reasonable opportunity to prepare will be afforded, and it
must rset forth the alleged misconduct with particularity." In

re Gault, 387 U.S. 1, 33 (1967).

'Conviction upon a charge not made would be a
sheer denial of due process.r!

DeJonge v. Oregon , 29 9 U. S. 353, 362 ( 1937 ) ; see also Dunn )r.
United Stateg,442 U.S. 100, 106 (1979)i Jackson v; Virglnia,443
U.S. 307, 314 (1979) i ?resnell v. Gaorgia, 439 U.S. 14, 16

(1978); CoIe v. Arkansas, 333 U.S. 196, 201 (1948).

Ms. Bozeman was plainly subjected to an egregious violation
of the rule that, in order to satisfy the Notice Clause of the

Sixth Amendment, an indictment, must allege each of the essential

elements of every statute charged against the accused. See

Russell v. United States, 369 U. S. 7 49 , 7 61-766 ('1962) i United

States v. Ramos, 666 P.2d 469, 474 (11th Cir. 1982)i United

States v. Ou!le!, 659 F.2d 1306, 1310 (5th Cir. Unit B 1981),

cert. 9g!i.d, 455 U.S. 950 (1982)i United States v..,Ha?s, 583

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

9glied, 440 U.S. 981 (1979)i United States v. Strauss, 283 F.2d

34



1 55, 1 58-59 ( 5th Cir. 1960).14 Here, the indictment failed even

remotely to identify the critical elements upon which her guilt

was made to depend at trial.
The indictment also violated the rule of United States v.

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

nwhere the def inition of an offence, whetlrer
it be at common law or by statute, includes
generic terms, it is not tufficieni that the
indictment sha11 charge the offence in the
same generic terms as in the definition; but
it must state the species it must descend
to the particulars. "

14 rhis rule is followed by the Alabama courts as a proposition of
both Alabama law and f ederal constitutional law. E, e.g.,
Andrews v. S_!e!er 344 So.2d 533, 534-535 (Ala. Crim. App-If, Affi
ffia 538 (Ala. 1977). rn fact, under Ai;ba;a-iffi
failure to include an essential element of the offense in the
indictment is regarded as such a fundamental error that it
renders the indictment void, and objection to such an indictment
cannot be waived. See e.9.7 id.7 tsarbee v. State, 417 So.2d 611
(Ara. crim. App.-T9Wt ci?ter@o.2d 610 (Ata.
Crim.ApP.1980),ceqt.aeniffita(1980);EdwardsV.
State , 37 9 So.2dTI8,-Tf9-Tala. Crim. App. 1g7g), pfrfffi
state,351So.2d683(AIa.Crim.App..l977)irendIeffi
ffio.2d 600 (AIa. Crim. App. 1971i; Fitzgerffi
So.2d 162 (AIa. Crim. App. 1974)i grow 45O
(Ala. App. 1945); Nelson v. State, 2ffiIa. Crim. App.
1973); williams v.ffi2d G1o (AIa. crim. App. ), af f-'i,
:gg so.m); Harmon v. srare, 249 so.2l 369-TAIf,
Crim. App. ) , cert. denied ,m (A1a. 1971 ).

35



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

ta1 to the notice component of due process. See EgssSlf_-v.-
united statelr 369 u.s. 749,765 (19621. rt. is apposite to this
case because "illegal" is unquestionabry a "generic term." Keck

v! United Staleq, 172 U.S. 434, 437 (1899); Goodloe v. parratt

605 F.d 1041 , 1045-45 ( 8th cir. '1979). An indictment which

charges unspecified illegarities as did Ms. Bozemanrs in
charging her with "vot Iing1 iIlegal1y" or "cast Iing] illegal ...
absentee ballots" must, under cruikshank, "descend to the

particulars" and identify the acts and underlying laws which

allegedly constituted the illegalities. Id. In lvis. Bozeman's

situation, Cruikshank required that the indictment allege t.hat

she violated S17-23-1 by failing to comply with each of the four
statutes as they were charged against her in the instructions,
and contain specific factual allegations giving her fair notice

of the acts which were allegedry criminal under those charges.

Such was the conclusion which the court below derived from

Goodloe v. Pq::g!!, 605 F.2d 104't ( 8th Cir. 1979) , where habeas

petitioner Goodloe had been convicted in a state court of
operating a motor vehicle to avoid arrest. Under Nebraska law

the crime aIlegedly committed by the defendant for which he was

subject to arrest, and because of which he was resisting, had to
be proven as an erement of the offense of resisting arrest. rd.
at 1045. The Goodloe court found that during trial the prosecu-

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

36



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

change denied Goodloe constitutionally required notice. Ig. In

addition, irrespective of the change in underlying offenses at

trial, the Eighth Circuit held under Cruikshalk that Goodloe was

denied constitutionally required notice because the initial
charge against him had failed to include notice of the underlying

offense which Goodloe had allegedly committed and because of

which he was al1egedly resisting arrest. The indictment there-
fore failed to "allege an essential substantive element. " Id. at

1046.15

The facts

since the four

failed to charge

tive elements of

of Goodloe are analogous to Ms. Bozemanrs case,

statutes invoked against her which the state

in the indictment were incorporated as substan-

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

15 rhe court reasoned:

"The indictment upon which Goodloe was tried
charged that he did, in the words of the statute,runlawfully operate a motor vehicle to flee in
such vehicle in an effort to avoid arrest for
violating any law of this State.' There is no
indication from this statutory language thatr Ers
the trial court held and instructed the juryr dD
additional element must be proven for conviction:
actual commission of the violation of state law
for which the defendant fled arrest. Once prior
violation of a specific state statute became an
element of the offense by virtue of the trial
court ruling, Goodloe $ras entitled not only to
notice of that general fact, but also to specific
notice of what 1aw he was alleged to have
violated. "

Id. at 1045.

37



, Wats_on v. Jilgg, 558 F.2d 330 (6rh Cir. 1977). See also

Plunkett v. gg!s_I_Lg-, 7 09 F .2d 1004 ( 5th cir. 1 gg3 ) , cert. denied,

104 s.ct. 1000i Tarpley v. Esrelle, 703 F.2d 157 (5th cir. lgg3),
cer_t. {gis9, 104 S.Ct. 508; Gray v. Rains, 662 F.2d 589 (1Oth

cir. 1981); von Atkinson v. smithr 575 F.2d 819 (1Oth cir. 1978).

The district court followed the basic approach of these cases in
determining that the jury could reasonably have convicted Ms.

Bozeman of a crime not charged in the indictment. The court's
determination was based on its examination of the trial as a

whole, including the charge, the arguments of counser, the theory

of the prosecution and the evidence. R. 179-80. The court
rejected appellants' argument that Ms. Bozeman was challenging

the jury charge rather than the indictment's failure to provide

fair notice of the charge. As appellantst now realize, "Judge

Hobbs considered the instruction on statutes not contained in the

indictment to amount to a constructive amendment to the charging

instrument, allowing the jury to convict the defendant for an

unindicted crime. see, Brunkett v. Estelle, 709 E.2d 1004 (5th

Cir. 1983)." Brief at 22.

This was entirely correct. It was the challenged indictment

which created the substantial potential for abuse eventually
rearized by the oral charge. see stromberg v. california, 283

U.S. 359, 364-65 ( 1931); TeEmirliello v. Chicagg, 337 U.S. j, 5

(1949). As Judge Hobbs exprained, Ms. Bozeman 'went into court
facing charges that Ishe] ... had tstolent votes and ended up

38



being tried on the alternative theory that [she] had committed

one or more statutory wrongs in the notarization of ballots.', R.

182-83. Because the indictment failed to give Ms. Bozeman fair

"notice of the nature and cause of the accusation'against her as

required by the Sixth and Fourteenth Amendments, the district
court properly overturned her conviction.l6

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

Additional grounds support the district court's judgment

invalidating the indictment. Each count alleged at least in the

alternative that Ms. Bozeman had in some way committed fraud

through her voting activities in the run-off. For the reasons

set forth in the following subsection ( 1 ), these alregations of
fraud failed to provide the quantum of notice required by the

B.

15 Eo*U"rg and Terminiello demonstrate the fallacy of appellants'ftTiE-e on ffiTiv-iilffi v. Sykes , 433 U.S . 72 (tgll )- -(sriet 
ar

21-22). Since ult lay in the indictment, no
objections to the jury instructions were required to preserve Ms.
Bozeman's challenge to it. S$es is inapposite because Ms.
Bozeman properly and consistently attacked the indictment for its
failure to give her adequate notice of the charges throughout the
state proceedings, beginning with her plea filed on ltay 28, 1979,
and continuing through her motion for a new trial filed on
November 28, 1979. Sykes is inapposite because Ms. Bozeman
raised the notice issue on--ti-irect appeal to the Alabama Court of
Criminal Appeals, and that court entertained the issue on the
merits. 401 So.2d at 170. See, €.9.., Countv Court of U1ster
County v. Allen, 442 U.S. ffi, 1AT54
@use the Arabama courts consider-ffililright to
notice to be so fundamental that objections to indictments on the
ground of lack of proper noLice cannot be waived. Note 14 supra.
$9, g-*-, Boykin v. Alabam?, 395 U.S. 238, 241-42 (1969)=

39



Sixth Amendment. Moreover, as noted in subsection (2) be1ow,

Counts I and fI failed to aIlege fraudulent intent or knowledge

as a necessary element of the offense charged. Counts I and II
failed to allege any Egl rea whatsoever. OnIy in Count III was

Ms. Bozeman accused of having acted with fraudulent intent.
The prejudice caused by these constitutionally defective

counts is incalculable since Ms. Bozeman $ras convicted under what

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

general verdict, the jury gives its verdict for each count

without elaboration as to the findings of fact. ES gsnerally 75

Am. Jur.2d Trial 5885i 76 Am. Jur. 2d Trial S1111. But in Ms.

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

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

a single undifferentiated violation of S17-23-1. Tr. 223. Since

there is no way of determining under which count or counts the

jury convicted her, prejudice owing to even one defective count

requires the invalidation of her conviction. g3g, g:g:-r-

Stromberg v. Califorqia, 283 U.S. 359 (1931); Williams v. North

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

(1949); Street v. New Yorkr 394 U.S. 576 (1969); Bachellar v.

[laryland, 397 U.S. 564 (1970).

40



in each count wereto provide notice ofalleSedly fraudulent

None of the three counts chErging fraud stated the asserted-
ly fraudurent conduct with particurarity. The counts arreged
nothing more than that Ms. Bozeman voted fraudurently (count r),
or cast fraudulenL absentee ballots (counts rr and rrr) in the
run-off' rn count rrr only was this latter allegation eraborated

arbeit insufficientry to satisfy the constitutional require-
ment of fair notice -- by accusing Ms. Bozeman of depositing the
fraudulent absentee barlots with the pickens county circuit
crerk, knowing that the balrots were fraudulent.

rn order to pass constitutional musterr dD indictment ,, rmust

be accompanied with such a statement of the facts and circum-
stances as wirl inform the accused of the specific offence,
coming under the generar description, with which he is charged.r,,

, 369 U.S. -149, 765 (1g62) (quoting
united states v. Heqs, 124 u.s. 4g3, 4g7 (1Bgg)); see also united
States v_. Ramos, 666 F.2d 469, 474 ( 11th Cir. 19g2) i United
states v. outlert 659 F.2d 1306, 1310 n.5 (5th cir. unit B,
1981). Eraud is a "generic term" which is insufficient to
provide the constitutionally required notice unless detailed
factual allegations are included in the indictment. see united
states v- cruiksha_nk , 92 u.s. s42, 55g ( 1gz5) (discussed at pp.
35-37 gg,e). The indictment "must descend to the particulars,

(1) The factual
const itut ionally
the nature and
conduct

a1 Iegat ions
insufficient

cause of the

11



of the acts of the accused which were alIegedIy fraudulent. See

F.2d 535, 547 (5th Cir.also United States v. Diecidue, 603

1979).

rt was inadequate for the state to alrege (as it did in
Count III only) that Ms. Bozeman had deposited fraudulent

absentee ballots in the run-off. Such an accusation failed to
inform "the defendant ... of which transactionr or facts give

rise to the alleged offense., United qtates v. Outler, 9EIg,
659 F.2d at 'l 310 .r.5.17 rn order to satisfy the rure of
CruikshaqE, the indictment in its charging of fraud was required

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

to inform the accused of what representations were alleged to
have been used to carry out the fraud.18

Rulings on indictments in federal cases are also premised on the
Fifth Amendment requirement of indictment by grand jury, the
Federal RuIes of Criminal Procedure, and federal common law.
9ee, e.9., United States v. Out1er, supra. However the cases
EiEed tiffiin esffiinvoked are mandared
coextensively by the Sixth Amendment Notice Clause.

For exampre in united states v.-_cIark, 546 F.2d 1.l30 (5th cir.
1977), the court charging the accused with
making fraudulent representations in a loan application to a
United States agensy. The court established that its scrutiny was
based inter alia on the sixth Amendment rs Notice crause, id. at
1133 nTfrl-nii-Ehbn proceeded to determine whether the inaiEEmeni
adequately identified the alleged fraudulent statements. Since
the indictment specified the approximate date on which the
allegedly fraudulent representations were made, the precise forms
on which such representations were made, the purpose for which
such representations were made, and the entries on the forms
which were not accurate, the court held that the indictment had
sufficiently put the defendant on notice as to the substance of
the alleged fraudulent statements. Ig. at 1133-1134.

By contrast if the indictment fails reasonably to identify

17

18

42



This indictment did not even begin to descend to the
particurars of the alreged fraud. rn count r, there is only a

bare disjunctive arlegation of fraudulent voting, with no

elaboration whatsoever. rn Counts rr and rrr, the absentee

balrots are alleged to have been fraudulent; and in count rrr,
Ms. Bozeman is accused of having knowingly deposited fraudulent
absentee ballots. But how those ballots became fraudulent, and

what Ms. Bozeman allegedly did to effect that unexplained result
is unsaid.

the acts or statements through which the alleged fraud r{asperpetrated, it is constitutionally deficient under the Notice
C1ause. See g-:S-, United States v. Na!!e, 144 U.S. App. D.C.
477 , 533 F zTaTTTt g urris, 506 F. za 985(10th Cir. 1974). tn Cur tment alleged:(1) that curtis' busififfiurported to be a computer matcfiing
service for singre people; (2) that curtis sent out 'compatibi:Iity Questionnaires" which he represented would be fed into the
computer; (3) that curtis took money for this service and placed
ads soliciting customers; (4) that he sent out purported invoices
for computer service work for the purpose of convincing customers
that he was providing computer services; and, (5) that in fact he
crcntracted for services he did not provide. rd. at 987-989. The
indictment was held defective because, while TE stated in detail
the acts used to implement the scheme, it did not state what the
actual false promise was. Id. at 987, 989. euite pIainly,
however, it came much closer to-p-inpointing for curtis tha natuie
of the alleged fraudulent statements, and the vehicre used to
perpetrate the fraud, than did the indictment filed against Ms.
Bozeman. see arso united states v. Dorfman, 532 F. supp. 111g,
124 (N.D. Tm.-TqE-t t which stlled only
that defendants engaged in a'scheme or artifice ... [t]o obtain
money" through fraud, "[sltanding alone clearly would not meet
the constitutional requirement of fair notice of the facts
underlying the charge." Ig. at 1125).

-43



Certainly the mere depositing of more than one absentee

ballot, each purporting to be the ballot of a different voter,
would not in itself have constituted fraud. The alleged fraud

had to have occurred during the preparation of those ballots for
casting. The state was required to charge the event or transac-
tion during which the fraud a1legedly $ras committed, and the

nature of the acts by Ms. Bozeman which allegedly constituted
that fraud. Because the indictment failed in this regard, Ms.

Bozeman had no advance warning of which of her activities on

beharf of the effort to bring out the brack vote among the

elderly in Pickens county lras being seized upon by the state as

supposedly fraudulent. This failure to provide constitutionally
required notice was extremely prejudiciar to her ability to
defend herserf especially in view of the expansive array of
grounds and theories of liability which r.rere spun out of the

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

two of the three counts was insufficient in its factual allega-
tions, Ms. Bozemanrs conviction must be set aside because the

potential prejudice inhering in the defective count or counts

necessarily infects the jury's extra-general verdict finding her

guilty of a single undifferentiated viotation of S17-23-1.

44



l2') Counts I and
for failure
of the of

II were constitutionally insufficient
to allege the crucial mental element

fense of fraudulent voting under
s t 7-23-1

In order to satisfy the Sixth and Fourteenth Amendments, the

indictment was required to notify Ms. Bozeman of every element of

the offense charged. ggg United States,v._-Ramos, 666 F.2d 469,

474 (11th Cir. 1982) i United -states v. Outler, 659 F.2d 1306,

1310 (5th Cir. Unit B 1981); cert. deniedr 455 U.S.950 (1982)i

United States v. Haasr 583 F.2d 216t reh. deniedr 5SS F.2d 829

(5t.h Cir. 1978)i cert. denied, 440 U.S. 981 (1979)i Unlted

States v. Straussr 2E3 F.2d 155, 158-159 (5th Cir. 1950). Since

fraud was a necessary element of that offense, 
= 

p. 14 & n.7

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

indictment was required to alIege that she had acted with

fraudulent knowledge or intent.

Both Count I and Count II failed to alleged any fraudulent

knowledge or intent, and were therefore constitutionally insuffi-

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

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

does not save them. ''In an indictment upon a statute, it is

not suf f icient to set f orth t.he of f ence in the words of the

statute, unless those words of themselves fu1Iy, directly, and

expressly, without any uncertainty or ambiguity, set forth all

45



the elements necessary to constitute the offence intended to be

punished.'" Rusgell v. United Statesr 369 U.S 749r 765 (1962)

(quoting United States v. Carl1, 105 U.S. 611t 612 (1882)).

Ordinarily, of course, because each count of an indictment

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

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

fatal defect in one count would not impair the other counts of

the indictment or any guilty verdict announced as to those

counts. See United States v. Huffr 512 F.2d 66r 69 (5th Cir.
1975). But Ms. Bozemanrs case is removed from the operation of

that rule by the extra-general verdict under which she was

convicted. That form of .r"rd'i"t renders it impossible to
determine on which count or counts the conviction rests. Under

these circumstances, the constitutionally defective counts are

inextricable from anything e1se. This is not a case such as

United States y. BerIin , 472 P.2d 1002, 1 008 ( 2nd Cir. 1973) ,

where it was apparent on the record that the "jury very carefully
considered the evidence on each count and reached its verdict on

the evidence relative thereto." Rather, lls. Bozemanrs situation
is comparable to Unit-ed States v. Dreyf us, 528 F.2d 1064 (5t.h

Cir. 1976), where the court overturned the conviction on a

twenty-two count indictment because of a single defective count

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

felt that there was a significant probabilit.y that the submission

of one defective count to the jury prejudiced the deliberations

46



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

single verdict of "guilty as charged' upon a1r three counts of
her indictment without differentiation suggests even more

strongly than i. Egllgg u signif icant possibirity of prejudice;
and the judgment of conviction must therefore fall because of the

unconstitutional failure of Counts r and rr to allege each

necessary mental element of S17-23-'l .

CONCLUSION

For the reasons stated, the judgment of the district court
should be affirmed.

Respectfully subnitted,

JULIUS IJ. CEAI{BERS
LANT GUINIER
NAACP Lega1 Defense Fund, Inc.
99 Hudson Street
New York, New York 10013
16th Floor
(212) 219-1900

ANTEONY G. AIISTERDAI{
New York University
Schoo1 of Law
40 I{ashington Square South
Roon 327
New York, New York 10012
(212) s98-2638

47



VAf,ZEr?A PEIIH DT'RAf,T
539 Uartha Street
llontgoreEy, Alabana 36108
(20s1 262-7337

8IEGFETED If,OPT
555 Callfornla Street
Sult,i 5060'
San FrancLsco, Callfornla 94104

Attorneye for Appellee



CERUFICATE OF SBRVICE

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

served a copy of the foregoing on the attorney for appellants by

placing same in the United States nai1, postage prepaid and

addressed as follows:

P.lll. Johnston
P.O. Box 442
Aliceville, Alabama 35442

LAXT GT'TITTER
ATTORflEY FOR APPELLEE

t9-