Bozeman v. Lambert Judgment; Memorandum Opinion

    t("

MAGGIE S. BOZEMAN

Petitioner

vs.

EAION M. LAI'{BERT; et aI

ResPondents

EILED
APR t g t9B4

THOMAS C. CAVER, CLLH/T
BY-

DEPUTY CLERK

CIVIL ACTION NO. 83-H-579.N

IN TI{E UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

)

)

)

)

)

JUDGMENT

I xo\[ ,^ou

I a,.t ' orl' $sOv' Xo e-'
nk^r 6. 

G.

Pursuant to the attached memorandum opinion, it is

hereby

oRDERED that petitioner's rnotion for sumnary

judgment is granted.

It iS thE ORDER, JTIDG}ENT, ANd DECREE Of thc COUTI

that the judgment of eonviction and the sentence pronounced

thereon by the circuit court of Pickens county, Alabama,

on November 2L, 1980, wherein l"laggie s. Bozeman was found

guilty in state criminal case ltCC-78-109 of fraudulent or

illegal voting and sentenced to four years' imprisonment,

is hereby vacated. It is further ORDER-ED that respondents

release petitioner from all restraints imposed as a result

of said conviction not later than April 30, 1984.

Ir is further oRDERED that the costs of this Pro-

ceeding be taxed against the State of Alabama.

DONE this 13th daY of APri1, 1984'

4,,ir,jor,, #//t
I]NITED STATES DISTRICT JUDGE



(

MAGGIE S. BOZEMAN

Petitioner

vs.

IN THE TJNITED STATES DISTRICT COI,RT
FOR THE MIDDLE DISTRICT OF AI.ABAMA

NORTIIERN DIVISION

)

)

BY

FILED
APR 13 1984

DEPUTY CLERK

EALON M. LAI.'IBERT; et aI )

Respondents

JIILIA P. WILDER )

Petitioner )

vs. ) CIVIL ACTION NO. 83-H-580-N

EAION M. i-AI'IBERT; et aI )

Respondents

MEMORANDUI'{ OPINION

This cause is before the Court on pet.itioners' motions

for summary judgrment. Although the Court has not

consolidated these cases, it will issue a joint opinion,

with Separate judgments. Bozeman in her motion argues that,

under Jackson v. Virginia, 443 U.S. 307 (1979), the evidence

was insufficient to support her conviction. She also

contends that she was deprived of her constitutional right

to notice of the charges against her. ldilder raises only

the latter claim in her motion. She raises the Jackson

claim in her petition, however, and the court thus will

consider it now. For the reasons stated below, the Court

THOMAS C. CAVER, CLEHI(

) crvrl AcrroN No. 83-H-579-N



(

finds for both petitioners on their notice claims and for

Bozeman on her Jackson claim.

FACTS

Both petitioners were convicted under a statute

proscribing voting more than once or voting when one is not

entitled to do so, in connection with their participation in

the casting of absentee ballots in the Democratic primary

runoff on September 25, 1978 in Pickens County. The

contention of the prosecution was, essentially, that

petitioners procured absentee ballots in the names of

registered voters and voted the ballots themselves.

Specifically, the prosecution contended that petitioners

would take applications for absentee ballots around to

elderly blacks and ask them if they wanted to be able to

vote without going to the po11s. l'lost of these elderly

people were illiterate, so petitioners ordinarily would help

them fill it out, and the voter would make an rrxrr mark.

Sometimes the application would direct that the ballot be

mailed to the voter and sometimes to one of three addresses.

Wilder's address was among the three; Bozeman's was not.

Either petitioners or the voter would turn the applications

for an absentee ballot in to the Pickens County Clerk's

office. According to the prosecution, petitioners obtained

thirtlz-nine of these ballots, filIed them out, and signed

the registered voters' names to them. Wilder and Bozeman.

took the ballots to a notary public, who notarized them upon

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petitioners' assurance that the signatures were va1id. The

ballots were subsequentlY voted.

When a court clerk noticed that all of the absentee

ballot applications turned in by Wilder had one of three

addresses on them, she notified her superior, who contacted

the District Attorney. The District Attorney had the box

containing the absentee ballots inspected, and it was

discovered that thirty-nine ballots had been notarized by

Paul Rollins, a notary in Tuscaloosa. A11 thirty-nine

ballots were voted identically, and none was signed with an

"x," even though many of the corresponding apPlications

were. Some of the corresponding applications had one of the

three addresses on them, and some did not. Wilder witnessed

some of the applications that were signed with an "x";

Bozeman did not witness any.

I. EVIDENCE OF WILDERIS GUTLT

The Court has thoroughly reviewed the record of

Idilder's trial. Gi-ven that the Alabama Court of Criminal

Appeals set out the testimony at Wilder's trial in its

opinion, and given tnit this Court finds that the evidence

clearly was sufficient under Jackson to convict Wilder,

there is no need for this Court to go beyond the Court of

Criminal Appeals' review of the evidence'

II. EVIDENCE OF BOZEMAN'S GUILT

The Court will detail the testimony at Bozeman's trial.

The witnesses included nine elderly blacks whose votes were

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among those removed from the box. Not one of the elderly

voters testified that Bozeman ever came to see him or her

about voting in connection with the runoff. Most of their

testimony concerned Wilder's activities. A1so, none of the

voters had any knowledge of Paul Rollins, the notary public

who notarized their ballots.

Janice Ti1]ey, the court clerk, testified that Bozeman

came in several times to. pick uP aPPlications for absentee

baIlots. This was entirely 1ega1. She also stated that one

time, just prior to the runof f , Bozeman and l^lilder came

together in a car, although only wilder came into the

office. upon objections by defense counsel, however, the

trial judge struck most of this testimony, including all

references to Wilder. The only testimony that was not

stricken was that Bozeman was in a car alone and did not

come inside.

The State also presented evidence pertaining to the

opening of the ballot box and the removal of thirty-nine

ballots notarized by Paul Rollins.

P.au1 Rollins testified that he notarized some ballots

for the runoff election in Tuscal00sa. He stated that

l,iilder, Bozeman, and two or three other ladies brought the

ballots. He refused to say that Bozeman herself asked him

to notarj-ze the ba1lots, testifying instead that the group

did, and that the grouP represented that the signatures were

genuine after he told them that the signators were supposed

to be present. He also stated that he received two cal]s to

set up the meetirg, but that he could not remember whether

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Bozeman made either caI1. He later testified, however, that

Bozeman made one call pertaining to some ballots, but he was

not sure which bal]ots. Fina11y, he testified that he went

to Pickens County to notarize a second set of ba]lots, and

that he believed this occurred at the general election.

Maudine Latham testified that she signed an application

that was brought to her by Clemmie Grice and his wife, but

that she was not told what it was. She stated that she

never saw a ballotr or Bozeman.

Annie Billups testified that wilder made an rrxrr on her

application, and also fi1led out her ballot with her

consent. She was unsure whether Wilder read the names,

although she stated that Wilder told her who the blacks were

voting for. Bozeman was not present at either of these

times.

Mattie Gipson testified that she made an trxrr on an

application that Wilder brought her, but that she never got

a bal]ot. She then testified, however, that Minnie Hill

brought her a ba}]ot, and that she put her mark on it. Her

baI1ot bears no mark. She also stated that h'iIder at some

point showed her a sample ballot indicating for whom the

blacks were voting. she stated that Bozeman had no

connection to any of these events '

Nat Dancey testified that he did not remember anything

about either the application or the ballot. He stated that

he could not have signed the balIot because he could not

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write. He denied ever telling Bozeman anything about

voting.

Janie Richey testified that she "sometimes" writes her

name and that she did not remember making the rrxrr that

appears on her aPPIication, although she remembered Wilder

bringing the application to her. She testified first that a

ba]Iot came in the mai1, and then that "they brought" one to

her. The prosecutor read her notes of an interview in which

she denied ever getting a ballot, but she sti1I maintained

on the stand that she received a ba110t. The notes were not.

admitted into evidence. On cross-examination, she testified

that Wilder told her who the blacks were voting for, and

that Idilder marked her ba110t with her consent. she stated

that she never spoke with Bozeman about voting.

Fronnie Rice testified that she fil1ed out and signed

both her application and her ballc't. She stuck to this story

when the prosecutor read to her from a deposition in which

she denied ever receiving a ballot. Her application had her

own address on it. She also testified that Bozeman had

nothing to do with her voting activities '

Lou Sommerville testified that she was unsure whether

she had fiIled out an application. Her testimony as to her

ballot was simply incomprehensible. After the judge

declared her a hostile witness, the prosecution read to her

from a deposition in which she stated that Bozeman helped

her fill out an application. she stated in the deposition

that she never saw Bozeman after she fil1ec out the

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application, although she also stated that Bozeman may have

filled in her ballot and that she never signed the baI]ot.

Her application bears her own address. on the stand, she

testified that Bozeman had never signed anything for her.

She also denied ever having named Bozeman at the deposition.

In fact, she denied ever giving a deposition. The deposition

was not admitted into evidence-

Sophia Spann testified that she did not sign an

application or a bal}ot. She also stated that when she went

to her usual polling p1ace, she was told that her absentee

ballot had been cast. She stated that Bozeman came at some

time prior to the runoff and askeC if Spann wanted to vote

absentee, and Spann said she did not. Julia Wilder

witnessed Spann's aPPlication.

LuciIle Harris testified that she signed an application

that Wilder brought to her. She further testified that she

never signed or received a ba1Iot, although her own address

appeared on the apPlication. She stated that Bozeman had

nothing to do with her voting activities '

DISCUSSION

SufficiencY of the EvidenceI.

Both Petitioners assert that

trials was insufficient to support

the evidence at their

their convictions within

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Jackson, the Supreme Court held that habeas corPus relief is

available where the evidence at trial is such that, viewed

in a light most favorabl-e to the Prosecutionr rlo "rational

trier of fact could have found the essential elements of the

crirne beyond a reasonable doubt." Id. 319. The Court

explicitly rejected a standard under which only a showing of

"no evidence" of guilt would establish a due Process

violation. Id. at 320; see Thompson v. Lousiville, 362 U.S.

I99 (1950). Thus, a mere "modicum" of evidence is

insufficient . 443 U. S. at 320 .

In applying the Jackson standard, courts first examine

state law to determine the elements of the crime. Duncan v.

Stynchcombe, 104 E.2d 1213, !214-15 (IIth Cir. 1983);

Holloway v. McElroy, 632 F.2d 605, 540 (5th Cir. 1980),

cert. denied, 451 U.S. 1028 (19BI). In determining whether

the evidence established those elements, the court may not

resolve issues of credibility. Duncan, 704 F.2d at 1215.

Thus, where the evidence conflicts the court must presume

that the jury accepted the Prosecution's version, and must

defer to that result. 443 U.S. at 325.

Petitioners were convicted of violating S 17-23-1.

That section provides that "Ia]ny person who'votes more than

once at any election held in this State, or deposits more

than one ballot for the same office as his vote at such

election, or knowingly attempts to vote when he is not

entitled to do so, or is guilty of any kind of il1egal or

fraudulent voting" is guiIty of a crime. Under Alabama case

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lawr "the words'i1lega1 or fraudulent' ...are...descriptive

of the intent necessary for the commission of the offense. "

Wilder v. State, 401 So.2d 151, 159 (AIa.Cr.App. ), cert.

denied, 401 So.2d 167 (1981). "The offense denounced by the

statute. .

AIa. 299,

entitled

.is voting more than oncer'r Wilson v. State, 52

303 (1875), or voting when the voter is not

to do so. Wilder, 401 So.2d at 150.

A. Wilder

The evidence was sufficient for a rational jury to find

Wilder guilty. A significant amount of evidence indicated

that ballots h,ere cast in the names of people who denied

casting them, and sufficient evidence linked Wilder to those

bal]ots. Wilder picked up numerous applications, she took

them to the persons whose votes were purportedly "Sto}en, "

she had access to many of the ba]Iots, and she was in the

group that took them to Rollins to be notarized. A jury

could reasonably find beyond a reasonable doubt that Wilder

must have filled in the ballots herself and cast them with

the intent of voting more than once-

B. Bozeman

Bozeman's case is quite different: The only evidence

against Bozeman was Rollins' testimony that she was one of

the ladies who brought the ballots to be notarized, that she

may have ca}Ied to arrange the meeti.g, 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.

The only other Possible indications of 9ui1t were either

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hypothesis of innocence" ) . The only distinction between

this case and Rackley is that there was evidence that

Bozeman had at least constructive possession of the ballots.

Constructive possession of narcotics will support a

conviction. Rackley, slip op. at 1602; United States v.

Hernandez, 484 F.2d 86, 87 (Sth Cir. 1973). This

distinction is not decisive, however. It should be plain to

anybody possessing cocaine that the substance is i11egaI,

but it would not necessarily be so with forged ballots.

Thus, the inference that Bozeman intentionally took part in

forging the ballots cannot be drawn from her constructive

possession of them when she was at the notary's office in

the company of Wilder and others.

Respondents' reliance on aiding and abetting also is

not justified. They asserted at oral argument that the

evidence showed Wilder to be guilty and Bozeman to have

aided her. Even under that theory, however, there still

was no evidence of intent. There was no evidence to negate

the inference that Bozeman was just going along with what

she believed to be an innocent effort to have absentee

ballots cast. The evidence Cld not show Bozeman to have

played any role in the process of ordering, collecting, or

filling out the ballots. The record also lacks any evidence

of any contact between Bozeman and Wilder except at the

notary's. Thus, there is no evidence to indicate that

Bozeman knew the ballots to be fraudulent.

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\.II. NOTICE

Petitioners claim that the indictments were

constitutionally defective in that they failed to provide

the notice required by the Sixth Amendment. The indictments,

which were identical, charged that each Petitioner--
COUNT ONE

did vote more than once, or did deposit
more than one ballot for the same office
as her vote, or did vote i11ega11Y or
fraudulently, in the Democratic Primary
Run-off Election of September 26, 1978,

COUNT TViO

did vote more than once as an absentee
voterr or did dePosit more than one
absentee ba1loL for the same office
or offices as her vote, or did cast
i-Ilega1 or fraudulent absentee ba]Iots,
in the Democratic PrimarY Run-off
Election of SePtember 26, 1978,

COUNT THREE

did cast i11ega1 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 were fraudulent and which she knew
to be fraudulent.

Petitioners raise three challenges to the indictment' They

contend that the trial judge instructed the juries on

several statutes ,,ot .oltained in the indictment, thus

allowing the juries to convict petitioners on charges of

which they had no notice. Petitioners also contend that the

indictments were constitutionally defective because the

factual allegations were insufficient and because necessary

elements of the crime were omitted'

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A. Habeas Revie

As "-ter, 
the Court rejects

respondents' argument that habeas petitioners may not

challenge the sufficiency of a state indictment. Respondents

rely on cases in which petitioners challenged the

sufficiency of indictments under state Iaw. Johnson v.

EsteJle, 704 F.2d 232, 236 (sth Cir. 1983); Cramer v.

Fahner, 683 F.2d 1376, 1381-82 (7L}l Cir- 1982), cert'

denied, _U.S._ (1983); DeBenedictis v. Wainwright, 674

F.2d 841, 843 (]1th Cir. 1982); Branch v. Este11e, 631 t'.2d

1229, !233 (5th Cir. 1980). Where an indictment abridges a

constj.tutional guarantee, habeas is available. Cramer, 683

F.2d at 1381; cf. Hance v. zant,696 F.2d 940,953 (11th

Cir. 1983); !{ashington v. Viatkins, 655 F.2d I345, 1369 (5th

Cir. 198I), cert. denied, 456 U-S. 949 (1982) ' Furthermore,

in Plunkett v. Estel]e, 709 P.2d 1004 (5th Cir. 1983), the

court considered a claim that the jury charge allowed a

conviction of a crime not charged, id. at 1009, a claim

petitioners raise here. Thus, petitioners here may challenge

the indictments insofar aS their challenge constitutes an

attack upon the notice provided by the indictments.

B. Instruction Upon Statutes not Charged in
ffi

The Court rejects respondents' contention that, becauSe

petitioners failed to object to the jury instructions, they

waived any objection to the inclusion therein of offenses

not charged in the indictments. see l,iainwright v. sykes,

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433 U.S. 72 (1977); Brazell v. State,423 So.2d 323,325

(A1a.Cr.App. 1982). First, Wilderrs attorneys did object to

the inclusion of the statutes on Perjury and notarization.

Second, the Court believes that petitioners' claim is a

challenge to the lack of notice and not to the jury charges.

Had the indictments charged the offenses included in the

instructions, the latter would have been unobjectionable.

The Fifth circuit, in Plunkett v. Estel1e, 709 E.2d 1004,

lOOB (5th Cir. 1984), rejected a construction similar to the

one respondents urge here. Purthermore, the Alabama courts

consider the right to notice as so fundamental that

objections to the lack of notice cannot be waived. E.9.,

Barbee v. State, 417 So.2d 611, 613 (AIa-Cr.App.1982)t

Edwards v. State , 319 So.2d 336, 338 (AIa-Cr.App' 1979) ;

cert. denied, 379 So.2d 339 (1980). The Court does not

believe the Alabama courts would bar petitioners from

asserting this issue on "pp.ufl/ Thus, the Court holds that

petitioners have not waived this claim.

Petitioners argue that the trial court's jury

instructions allowed them to be found guilty of charges upon

whi-ch they were not indicted. The indictments charged

petitioners with voting more than once or voting

"fraudulently or iIlega1ly" or caSting "fraudulent or

1 . Ihe Alabana coults wculd not, h@Jever, consider- this claim cn collateral-
revia,v, and thrs it preseTts n9 orl:austion problan. As the Court stated jn its
order derrying r*p"ria*risi rction to dismisi, t5-is clajm is not cognizable-crn.

collateral revievs in Alabana, *rd habeas colPlj.s revis,r also is not available in
Airb-.-t" parolees. frrth",mot", p"919ioneri clained lack of notice on apoeal'

;1[""gh-rf,Li-aia not raise tfre iplcific issr:e r]rey raise here'

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f,

iIIegal" ballots. The trial court defined "illegaI" by

instructing the jury on four statutes not contained in the

indictment. The trial judge first explained Ala. Code S

17-10-3, which describes what persons are eligible to vote

absentee. He then read AIa. Code S t7-I0-6, which requires

that absentee ballots be sworn to before a notary public,

with certain exceptions. The judge then instructed the

juries on AIa. Code S 17-10-7, which provides that absentee

voters must appear personally before the notary. Fina11y,

the judge charged the jury that, under AIa. Code S 13-5-115,

any person who falsely and corruptly makes a Sworn statement

in connection with an election is guilty of perjury.

Petitioners argue that the instructions allowed them to be

con..ricted of any violations of these statutes -

As a general ru]e, a conviction based upon a charge not

contained in the indictment violates due process. Jackson

v. Virginj-a, 443 V. S. 307, 314 (1979) ("It is axiomatic

that a conviction upon a cha.rge not made or a charge not

tried constitutes a denial of due process."); Cole v-

Arkansas, 333 U.S. 195, 2Ot (1948) (i'tt is as much a

violation of due process to send an accused to prison

following conviction of a charge on which he was never tried

aS it would be to convict him upon a charge that was never

made."); DeJonge v. Oregon, 299 U.S. 353, 362 (1937)

("Conviction upon a charge not m.ade would be sheer denial of

105due process."); see Dunn v. United States, 442 U.S. 100,

(1979). Furthermore, an indictment must a11ege every

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essential element of the violation charged therein. Hamling

v. United States,4!8 U.S. 87,117 (1974); Russell v. United

States, 369 U.S. 749, 771 (1962)t United States v. OUlfgq,

659 F.2d 1306, 1310 (5th Cir. Unit B 1981), cert. denied,

455 U.S. 950 (1982); United States v. Varkonyi, 645 F.2d

453, 455 (5th Cir. 1981).

The Eighth Circuit has upheld a claim similar to

petitioners'. In GoodLoe v. Parratt, 505 F.2d 1041 (8th Cir.

1979) , petitioner was charged with "un1awfu11y operat Iing] a

motor vehicle to flee in such vehicle in an effort to avoid

arrest for violating any law of this State." The State

originally claimed at trial that petitioner had fled to

avoid arrest for driving with a suspended license, although

he had earlier been acquitted of that charge. The trial

court ru]ed, however, that the State had to show an actual

violation, so ';he State alLered its contentions to reckless

driving. Id. at to44-45. The Eighth circuit ruled that,

" [o] nce prior vj-olation of a specif ic statute became an

element of the offense by virtue of the trial court ruling,

Goodloe was entitled not only to notice of that general

fact, but also to specific notice of what 1ar,; he was allegefl

to have violated." Id. at 1045. The information under

which petitioner was charged thus "failed to adeguately

describe the offense charged because it did not aIIege an

essential substantive eIement." Id. at 1045. The court

went on to note that, if petitioner had had actual notice of

the State's contentions, due Process would have been met

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despite the inadequacy of the information. The arrest

warrant had notified petitioner of the suspended license

charge, but the Staters switch in tactics deprived him of

due process. Id.; accord, Watson v. Jago, 558 F.2d 330 (5th

Cir. 1977).

The Fifth circuit recently has followed the basic

approach of watson and Goodloe. In Plunkett, the Fifth

Circuit found a constitutional viotation where petitioner

was charged with intentionally causing a death, and the

trial court added to its instructions a charge on causing

death by an act intended to cause serious bodily injury.

The trial court, in summing up its statements of abstract

Iaw by applying the 1aw to the facts of the case, used only

the language of the correct statute. 709 F.2d at 1007. The

Fifth Circuit reasoned that the charge must be considered in

Iight of the entire trial, and examined the prosecutor' :s

closing argument as well as the charge. The court found

that the prosecutor told the jury that petitioner could be

found guilty under the non-charged definition of murder'

Id. at 1OO8-09. The court found that, given the evidence

and theories presented by the parties, the jury could have

concluded that petitioner intended to injure but not ki11

the victim, and thus the jury could have convicted him of

the non-charged offense. Id. at I010-11; accord, Tarpley v'

Este11e, 703 F.2d !57, 159'61 (5th Cir' 1983) '

To summarize, the correct approach is to determlne

whether the jury could reasonably have convicted either

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petitioner of a crime not charged in the indictment. The

determination requires an examination of the trial as a

whole, including the charge, the arguments and theories of

the parties, and the evidence. The case ]aw further makes

clear that the fact that there may have been sufficient

evidence to convict on the crime that was charged is not

sufficient to sustain the conviction.

Respondents argue that the j.rry instructions did not

allow Wilder to be convicted under the non-charged statutes.

They point to pages 311 and 312 of the transcript, at which

the court instructed in essence that the State was charging

wilder with voting more than once, and with marking the

absentee ballots without the voters' consent. The court

concluded that, "Such a ba]Iot would be illegal to cast a

ba1Iot [sicl or participate in the scheme to cast that

ballot v.rith knowledge of these facts and would fall within

the acts prohibited by Section 17-3-1 [sic] of the Alabama

Code of 1975." Thus, resPondents conclude, Wilder must have

been convicted of violating the statute under which She was

charged

Respondents' argument is patently wrong. Respondents'

ignore the paragraph immediately following the one quoted

above:

Further, the State charges that the defendant
witnessed or had knowledge that a Notary
Public falsely notarized or attested to the
authenticity of the ballots by attesting the
persons before him and so forth as provided
1n the affidavit. If the ballot was falsely
attested to, then such a ballot would be
ilIegaI and any person who participated in

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a scheme to cast that ballot with knowledge
of that fact would commit the acts prohibited
by Section 17-3-1 [sic] of the Alabama Code
of 1975 if in fact that ballot was cast.

Tr. 312. Thus, the court's charge explicitly permitted the

jury to convict Wilder with casting an improperly notarized

ba11ot, a crime with which she was not charged. Wilder went

into court expecting to face a charge that she voted more

than once, and yet the jury was told that it was enough for

the prosecution to show the ballots were improperly

notarized, even if they h,ere otherwise va1id.

The evidence in the case was such that the jury could

have convicted Inlilder on the charge of which she had no

notice. I^lilder testif ied that the voters either f illed out

their own ballots or authorized her to fill them out. Thus,

if the jury believed hrilder, it could have found that Wilder

d.i-d not cast two or more ballots aS her own vote but that

she did cast improperl)' notarized ballots, and hence was

guilty under the court's charge.

Bozeman has a slightly stronger claim on this issue

than lt'i1der. The trial court did not summarize the State's

contentions as it did in I'Jilder's case. It simply

instructed the jury, dS in Wilder's case, that

"iI1ega1...means an act that is not authorized by law or is

contrary to the 1aw, " tr . 2Ol, and then charged on the four

statutes not contained in the indictment. As in l{ilder's

case, this would lead a reasonable juror to believe that

Bozeman could be convicted of casting improperly notarized

ba]lots. This would have esPecially prejudiced Bozeman

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because the only evidence against her was her participation

in the notarization.

The Court does not by its holding indicate that any

unfairness resulted from the prosecution's use of the

evidence of improper notarization to show that petitioners

voted more than once. That evidence was relevant to that

issue, although it was insufficient to show intent on

Bozeman's part. But the indictments, by charging

petitioners with "iI1ega1 voting, " created substantial

potential for abuse, Potential which was realized by the

jury instructions. A ballot could have innumerable defects

causing it to be "i,Ilega]." Petitioners were entitled to

know exactly what defects the ballots all.eged1y contained so

that they could prepare their defenses. As it turned out,

thel, did not d|scover the precise charges they were facing

until they had rested their cases. The prosecution, on the

other hand, had the opportunity to change the rules right up

until the case went to the juri'. As the court stated in

Plunkett, "ft is not a sporting theory of justice.we

describe. " 709 F.2d at 1010.

The 'result of the trial court' s interpretation of the

word "i]Iega]" in S 17-23-l was that petitioners went into

court facing charges that they had "Stolen" votes and ended

up being tried on the alternative theory that they had

{

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{

corunitted one or more statutory wrongs in the notarization

of the Uatfots.2/ There is a world of difference between

forging a person's ballot and failing to fo]low the ProPer

procedure in getting that person's ba}lot notarized. If

petitioners were facing the latter charge, they had a right

to be to1d. They were not. To put it simply, petitioners

were tried upon charges that were never made and of which

they were never notified. Thus, their convictions cannot

stand.

2. Another source of potential prejudice to petitioners
was the conflicting ways in which the Alabama courts have
interpreted the term "illega1. " According to Ehe Court of
Criminal Appeals, it siuply describes the intent necessary
to a violation of S 17-23-L, L7i1der,'401 So.2d at 160. The
trial court, however, gave thF a life of its own. That
court charged the juries that "illegal...means an act that
is not authorized by law or is contrary to the Iaw." Thus,
as petitioners point out, all laws pertaining to voting
becane incorporated into S 17-23-L. Under the interpre-
taEion of the Court of Criminal Appeals, this would be
incorrect, and improper notarization would not be a crime
1mder S 17-23-L. Yet the trial court's instructions made it
one.

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C. Insufficient Factual and Legal Allegations

The Court rejects petitioners' claim that the

indictments failed adequately to notify them of the charge

that they voted more than once. "The validity of an

indictment is determined from reading the indictment as a

wholer...and...must be determined by practical, not

technical, considerations." United States v. Markham, 537

F.2d L87, 192 (5tn Cir. 1975), cert. denied, 429 U.S. 1041

(1977 ) ; see U,nited States v. Outler, 559 F. 2d 1306 , 1310-11

(5tn Cir. unit a 1981), cert denied,455 U.S. 950 (1982)i

United States v. Uni oil, Inc., 645 F.2d 946, 954 (5th Cir.

1981), cert. denied, 455 u.s- 908 (1982); united states v'

Decidue, 603 F.2d 535, 546 (5th Cir. 1979), cert- denied,

445 u.s. 946, 445 u-s- 912 (1980); united states v' cIark,

546 F.2d 1130, !!32 (5th Cir. 1977). Two of the counts

accused petitioners of voting more than once, and two

specified absentee baIlots. A11 three counts accused

petitioners of voting fraudulently or il]egally. Although

the indictments are flawed if read 1iteral1y, they con+-ained

sufficient information to notify petitioners of the charge

of voting more than once. Furthermore, petitioners could

employ the entire records in pleading double jeopardy in a

later case. Russel], 359 U.S. at 764.

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The court does, however, find that petitioners'

sixth Amendment rights were violated because they were tried

for offenses with which they were never charged, and that

Bozemanrs conviction violated Jackson v. virginia. Because

of the latter finding, the Double Jeopardy Clause prevents

the State from retrying Bozeman, Burks v. United States, 437

u.s. 1 (1978), and the writ as to her shaIl issue at once.

The state may, however, retry wilder, Greene v.I"lassey, 437

U.S. 19 (1978), and the Court will al1ow it ninety days in

which to do so.

Separate judgments

this memorandum oPinion.

DONE this 13th day

will be entered in accordance with

of April, 1984.

6*r,^, '

TINITED STATES DISTRICT JUDGE

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