Defendants' Trial Memorandum

    IN THE
FOR THE

I..IAGGI,E S. BOZEMAN

Peci Eioner

vs.

EALON 1'{. LA}tBE8.T; ec aL

ResPondents

UNITED STATES DISTRICT COURT-i'iioole DrsrRrcr oF ALABAMA

EILED
APR t B tg84

THOMAS C. CAVER, CLE,RI"
BY

NORTHERN DIVISION

)

)

)

)

)

DEPUTY CLERK

crvri, ACTTON N0. 83-i{-579-N

JUDGI€NT

PursuanEEOtheaccachedmemorandr:mopinion'icis

hereby

ORDERED :hac petici'oner's tloEion for suurary

j udeaenc !s g:anced '

iiis-!:eOR-DER',J'SG:r:{T'andDECREEof-'heCou:c

:.:acE!.!ejudg=ertofconvicclonandthesentencepronouncad
:ne:ecn b-u- che Circuic Court of Pickens Cor:ri;y, A].abana,

.'I c,
.q .in..e,-ier 2i, i98C, whe:e:n Yagg:-e S ' a62g;i3n wES founc

.rV ' u

:'1i i -'.: i -r sta:e cri:r:nal case iiCC- 78-l-C9 of fraudulen'c cr
-i e- - -.'

:'r aaei rra!-ir,c anC sentenced Ec four lr93rs' !riipr:-sor':ne;it '
-:-gi4: 

vebi".-

:she;e:i-vaca:ei'IcisfurtherCRDER-EDcra::es-oonde:rcs
raleasereci-c'cr.e:i:caaiL:esi=alncsl!:Pcseoasa:es':iE
c=, said conv:c:lon noc ia:er Enan Aprii' 30 ' 1986'

IEisfurcherOB.DEP€DchacEheCcS.Lscf;hlsprc.

ceeding be iaxed ata:ast El:e State of Alabana'

DONE Enls t3th da,v of AP:il-, L984

l,,qt,ii,..?t, 4/J+/ /'tttlt i;'t- ,,t

;N.T.iTFT) qT]TFC DISIB.ICT JUDGE:-\:l!s JL.---



MAGGIE S. BOZEMAN

Petitioner

vs.

IN THE UNITED STATES DISTRICT COTiRT

FOR THE MIDDLE DISTRICT OF AIABA}44
NORTHERI.I DIVISlON

)

)

LA.LON M. I*AMBE8.T; et al )

Respondents

JULIA P. WILDER )

Petitioner )

vs. ) CWIL ACTION N0' 83-H-580-N

EAION M' IJMBERT; et aI )

Respondencs )

!"1EI'IOFANDUI"1 OP I N I ON

mli c .a1rse iS before the CCurt On Pe:j-tj-OnerS' mO-'icnS
a r.tr

.!

fcr sunmary juog,ent. Although 
"he 

Court has not

conscliiated these cases, it wiLi issue a ;oint oPinion'

wit.h separate juoTnents. Bozenan in her motlon argues tha",

uncer Jackson v. Virginia, 443 U.S. 307 (1979), the eviderce

was insufficient to suPPort her conviction. she also

contencs that she was degrived o: her const'itutional right

to notice o! the charges against her. wilder raj-ses only

.,he latter claim in her motion. She raises the Jackson

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

consider it now. For the reascns stated below, the court

FILED
APR t B 1984

THOMAS C. CAVER, CLEHK

BY
oEnrn cunx

) crvrl, ACTToN N0. 83-I{-579-N



finds for both petitioners on their notice claims and for

Bozeman on her Jackson claim.

PACTS

Both petitioners h'ere 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

ihe casting of absentee ballots in the Democratic primary

runoff on september 26, 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.

SpecificaIIy, the prosecution contended that petltioners

woui{ take aPPllcations for absentee ballots around to

eLcerly blacks and ask them if they wante{ to be able to

vote without going to the pol-Is. Most of these elderly

people were illiterate, So .Detitioners oriinarily woulC help

then fiLl it Out, and the vcter wOuld::,ake an rrxrr mark.

l
Scne'-i-nes the apPtacation wouiC i,irect '.hat the baIlct be

naiLei to :he voter and som.etines to o:le oi three adi'resses.

Viil-ier's aiCress was among the three; Bczeman'S was not'

E:-cher petitioners or the voter woulc turn the appl-ications

for ai absentee ballot in to the Pickens County Cl-erk's

cffrce. According to the prosecution, Petitioners obtainei'

thirty-nj-ne of these ballots, f illed the:n out, and signed

-,he registered voters' names tO them. WiICer and Bozeman

tock the baLlots to a notar!- public, who nctarized them upon

-2



petitioners' assurance that the signatures were valid' The

ballots vrere subsequentlY voted'

Whenacourtclerknoticedthatalloftheabsentee

ballot applications turned in by wilder had one of three

adCresses on them, She notified her superi'or, 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. All thirty-nine

ballots were voted identically, and none was signed with an

"x," even though many o! the corresPonding applications

were.SomeofthecorresPondingapplicationshadoneofthe

three adCresses on them, and some Cid not' wilder witnessed

some of the appiications that were signed wit'h an "x";

Bczenan diC nct witness any'

I. EVTDENCE Or Wricen's curl,T

)
iheCourt:1aS.'horcughl.y=et':ewed.-h€recorco!

wricer,s t=iaL. Given that the Af abama cou.rt cf crlninal

Appeal.sSetoutthetestlmonf-.1!r':icer'strialinits

cpinion, anc given that this Ccurt fincs that t,he evldence

clea=Iy was SuffiCient unier Jackson to convict wiloer,

there !s no neec for this court to 9o beyond the court of

Criminal Appeals' review of the evidence'

II. EVIDENCE OF BOZN

The Court will de+-ail the t'estiinony at Bozernan's trial'

Thewlt'nessesincludecnineelder).yblackswhosevoteswere

-3



arrong those removed from the box' Not one of the elderly

voters testified that Bozeman ever came to see him or her

aboutvotinginconnectionwiththerunoff.l{ostoftheir

testimonyConcernedl^Iilder'sactivities.Also,noneofthe
voters had any knowledge of Paul Rollins, the notary public

who notarized their ballots '

JaniceTilley,thecourtclerk,testifiedthatBozeman

came in severar times to pick up applications for absentee

ballots.Thiswasentirely}egal.Shealsostatedt'hatone
time, just prior to the runof f ' Bozeman and i'lilder came

togetherinacat,althoughonlywildercameintothe'
office.UponobjectionsbydefensecounseL'however'the
triar judge struck most of this testimony, including arl

references to wilder' The only testlmony that was not

et,icken was that Bozeman was in a car alone anC iiC not

cc=e inside

TheSta'-ealsopresen"edevicencePert'ainingtothe

c-:e:itnf of the ball'ot box anc the renovaL of thirty-nine

paliots notarizeC by Paul Rol-1lns'

Pau}RollinstestifiedthathenctarizeisoF.ebaiiots

lcr the runoff election in Tuscaloosa' He stated that

W:lier, Bozenan, anc twc or three o:her ladies brcugh" the

ba].iot,s.Herefusedtosay-uhatBozernanherselfaskedhlm
to notarize the barrots, tes-.ifying instead that the grouP

c:.d, and that the grouP rePresented that the signa5'ures were

genuineafterhetoidthemthatthesignatorsweresupposec
tCbepresent.Healsostatectha.-hereceivectwccallsto
ser- up the meeting, but ihat he could not remenber whe"her



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

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

not sure which ballots. Finally, he testified that he went

to pickens county to notarize a second set of ballots, and

that he believed this occurrec at the general election'

l'laudineLathamtestifiedthatshesignedanapplication

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

thatshewasnottoldwhatitwas.She-Statedthatshe
never saw a ba}lot, ot Bozeman'

AnnieBillupstestifiedthatWildermadeanlrx''onher

application, and also filled out her Ualtot with her

consent. She was unsure whether Wilder read the names'

although she statea that wilcer told her who the blacks v'ere

votingfor.BozemanwasnotPresentateitherofthese

ti:-ues.

MattieGipsontestif:.ecthatshemadeanl|xlronan

app:icatlonthatWil-Cerbroughther'butthatsheneverqct
= ..:'1 ''lar che then testif iei', hcwever, that I'i::nie Iii1l
C jG*l! !. Jr'\

b:cug:theraballct,anithatsheputherrilarkonit'ller
ba}iotbearsnomark.Shea].soStatei'thatWl]-deratScme
pc:.n-- showec her a sample ballot iniicating lcr whon' --he

blackswerevoting.ShestateithatBozenanhaino
ccnnection to any of these events '

Nat Dancey testified that he cic nqt remember anything

abouteithertheapplicat'ionortheballot.Hestatedthat
hecoulcnothavesignedtheballotbecausehecouldnot

-5



write. He denied ever telling Bozeman anything about

voting.

JanieRicheytestifiedthatshe''Sometimes''writesher

nameandthatshed'idnotremembermakingthel'xrlthat
apPears on her appl.ication, although she remembered Wilder

bringingtheapplicationtoher.Shetestifiedfirstthata

ballot came in the mail, and then that "they brought" one to

her.Theprosecutorreadhernotesofaninterviewinwhich

shedeniedevergettingaballot,butshestillmaintained
ontheStandthatshereceivedaballot.Thenotest.,erenot
admittec into evidence. on cross-exarnination' she testified

that wiloer told her who the blacks were vot'ing for' and

thathlildermarkedherbal]-otwithherconsent.SheStated
that she never spoke wi"h Bozeman about voting'

FronnieRicetestrfiecthatshefillecou|.andsignei

bcthherapP}icationandherbaliot.ShestucktothisStor:,
wnent}yprosec.ijtor=eai-uoherfromaiepos:.tion!nwhich

s]..eie:.iecet/errecer''-irEabal!o.'.HerapPlicationhacher
cwnaciressonit'S:eaLso-'estifiei'tha'-Bcze:nanhad
ncthi:g tc io with her vo'slng ac-'ivities'

LouSo:lr;rervi!leteStifiectha..shewaSunsurewhe.-her

she haC f iil-ed ou'r an application' Her testimony as to her

ballotv,assimp}yincomprehensj.ble.Afterthejudge
CeclareC her a hostiLe wj'tness ' the Prosecution read to her

fromacepositioninwhichsheS.'atedthat,Bozernanhe}pec
herfli}outanaPPlication.SheStatecinthedepcsiticn
that she never saw tsczenan after she flllec out the

-6



aPplication,althoughshealsoStatedthatBozemanmayhave
filledinherballotandthatsheneversignedtheballot.
Her application bears her own address' On the stand' she

testifiedthatBozemanhadneversignedanythingforher.

She also denied ever having named Bozeman at the deposition'

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

was not adnitted into evi'dence '

Sophia Spann testified that she did not sign an

aPplicationoraballot.Shealsostatedthatwhenshewent

toherusualpollingplace'shewastoldthatherabsentee
ba].IothadbeenCaSt.SheStatedthatBozemancameatSome

timepriortotherunoffandaskecifSpannwantedtovote
absentee, and Spann said she did not' Julia Wilder

witnessed SPann's aPPllcation '

r,,ni 'l 'la Harris testifi'ec thai she signeC an appticaiicn
! 99:::E

t.ria', wilcer brought to her' She f'irther testif ied that she

ne\'ers:gnecorreceiveiaba].].ot,aithcuEhherownaci,ress
;-t

apgeareC cn the apPIlcaticn' She S-utt€c that Bozernan hai

-a-1- i ra +6 dO w:--h hef r;Otinl aCtivi-'ies '
rrU e.:5.rv

Suf f ic:.encY

DISCUSSiON

.*he Evidence

Boch Petitioners assert that

triaLs was insufficient to suPPor+'

the :i.ean.ing cf 'lackson v' Virginra

the eviience at their

their ccnvictions within

,413 U.S.307 (i979). rn

-7



Jackson, the supreme court held that habeas corPus relief is

available where the evidence at trial is such that, viewed

in a light most favorable to the prosecution, tlO "rational

trier of fact could have found the essential elements of the

crime beyonc a reasonable doubt." Id. 319. The Court

explicltly rejected. a qtandard under which only a showing of
I

,,no evidence" of guilt would establish a due Process

violation. Id. at 320i see ThomPson v' Lousiville ' 362 U'S'

199 (f960). 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'

Stvnchcombe, 704 P.2C 12t3 , L2!4-15 (lIth Cir. 1983);

Hcl}oway v. McElroy, 632 r.2c 605, 540 (5th Cir. 1980),

cert,. i,eniec, 45t U.S. 1028 (1981) ' in Cetermining whether

:--:te er,:-Cence eStablished those elenents, the court may not

:esc1..'e i-ssues of creiibility. Duncan , i04 F.2d. at L215.
l

I:us, where the eviience conf l-:.cts the ccurt :iust pI'€s'ri'Tr€

-'^2L 1-ne :ur\. aCCep.,ec tne Prosecut!ce's version, ani nus--
J _- 

-

ceier 
"c 

tha-. result. 443 U ' S ' at 326 '

De{- i l'loners were convi-cted of vicLating S }7 -23-L '

T:rat section Provides that " Ia] ny person who votes more than

once a-e any election held in this State, or deposits more

than cne ballot for the same oflice as his vote at such

eiection, or knowingly attenpts to vote when he is not

entitied to dc So, or is guilty of any kind of ii'Iegal or

lraudulent voting" is guilty of a crime. Under Alabana case

-8



Iaw, rr

of the

WiIder

the words'iIlegal or frauCulent' ...are...descriptive'

intent necessary for the commission of the offense. "

v. State, 4OI So.2d l5I, 159 (AIa'Cr'APP'), cert'

4OI So.2d L67 (1981). "The offense denounceC by the

..is vot,ing more than cncer" Wilson v' State, 52

, 303 (1875), or voting when t'he voter is not

99@,
statute.

AIa. 299

entitled to do so. wilder, 401 So.2d at 150'

A. wilder

The evidence was sufficient for a rati'ona} jury to find

wilder guilty. A significant amount of evidence ind'icated

that ballots were cast in the names of people who aeniea

casting them, and sufficient evidence linkec wilder to those

bailots. wilder pickei. uP numerous applications, she took

tneni t.o the persons whose votes were purportec!.y "stoIen,"

S.ne nai access tc man1,. of .'he ba].Iots, anc she was in the

grcup .,hat took them to RoLlins to be notarlzec. A jury

coulc reasonabll' finc beyoni a reasonable coubt that w:'l-i'er

f
::s-- hai.e iiLiei in tne baLl0ts herself and cast ther' with

'Lhe i::tent cf t'cting lr'cre than o:ce'

B. 3czeii,an

Bczeman'SCaSeisquitecr!ferent.Theonlyeviience

aEaanst 562s541 was RoLllns' test'irnony that she was cne of

the lai,ies who brought the balLots to be notarizec, that she

inay have caLlec to arrange the neeting, anc t'hat the ladies

as a groi:p representec'.he balLots to be genuine after he

:oLd thern that the signators \'rere supposeC to be present'

The cnil, other pcsslbLe incications cf gu:.lt !''ere ei'-her

-9



stricken or were ruled' inadmissible' AIl of the court

clerk's testimony tending to show that Bozeman came with

!.tilder to deposit the ballots was stricken, and Lou

sominerville's depositiOn was never placed in evidence and

would not have been a&nissible as substantive evidence

an) ^ra}.

Althoughtherewasconvincingevidencetoshowthatthe

ba}IotswereillegallyCaSt,therewasnoevidenceofintent
on Bozeman,S part and no evidence that she forged or helped

to forge the ballots. There is no evidence that she took

applicationstoanyofthevoters'orthatshehelpedanyof

the voters fiII out an application or baIlot, ot that she

reiurnedanaPPlicat,ionorballotforanyofthevoters'and
noba]-lotwasmailedtoherresidence.?hus,therewasno
ev:,ience that Bczeman realizec when she accolnPanied Wilder

anc cthers to the office of Rcll:-ns that the ballots that

she heipei to get nc-'arized were f rauiulen-''
-

this case is sonewhat anaicgous tc the cases hoLclng

::at " [:r,] ere presence in an a:ea where unLawful drugs are

i!sccverei is insufiicient to s:pport a conviction for orug

.ocssesslon. " Unitei States v' Rackle-v' No' 82-6020 ' slip

op.at\602(1lt'hCir'Feb'13'1984)(citingUnitecSta:es
v. Rojas , 537 F.20 2!6, 220 (5th cir ' L916) ' cert denieC'

42g U. S. tOSI (1977)). The standari in such cases is

sinilar to that in iackson. uniteo sta'-es v' sancers ' 639

F.2d 268, 210 (5th Cir' I98I) (where "reasonable persons

n:-ghtfindtheevidenceincons:steniwithever!,reascnable

-10



hypothesis of innocence" ) . The only distinction between

thisCaseand!g9!!gisthattherewasevidencethat
Bozeman had at least constructive possession of the ballots '

constructivePossessionofnarcoticswillsuPPorta
conviction. B}gJ., s1i-p op ' at L602; United States v '

Hernandez, 484 F.2d 86, 81 (5th Cir' 1973) ' This

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

anybody possessing cocaine that the substance is iIlegal,

but it would not necessarily be so with forged ballots '

thus,theinferencethatBozemanintentionallytookPartin
forging the ballots cannot be drawn from her constructive

pcssessionofthemwhenshewasatthenotary'sofficein

t.he comPany of Wilder and others '

Responcents'relianceonaidingandabettingalsois

not justified. They asserted at oral argument that the

evicence showei Wiider to be gui'lty and Eozeman to have

: r da^ r.ot Even unier that, tl:eory, however, there StiLl
,]

.w.as nC e.,.iCence C! ln"ent. The:e waS nO evidenCe tO nega"e

i:e i:je:eice chat Sczer,an was :us-' going aiong with wha-'

she bel-ievec to be an innocent ef fort to have abSentee

bai]ots CaSt. The evicence cii :]ct show Bozeman to have

piar;ee a::y roie in the process cf oriering, ccllecting, or

5ii).ing out the ballots. ?he recorc also lacks any evicence

cf,anyContactbetweentsozerr'anandWilcerexcePtatthe

notar.v's. Thus, there is no eviience -sc inCicate that

Sozer,an knew the baliot's tc 5e i:audulent'



Petitioners claim that the indictrnents were

constitutionally defective in that they failed to provide

the notice required. by the sixth Amendment. The indictments,

which were i.dentical, charged' that each Peti'tioner--

COUNT ONE

did vote more than once, ot did deposit
more ih;" one ballot for the same office
as her vote, or did vote illegally or
fraueutently,intheDemocraticPrirnary
nun-ofi eleltion of .sePtember 26 ' L978 '

COUNT TWO

did vote more than once as an absentee
voter, or did dePosit more than one
alseniee ballot ior the same office
or of f i'ces as her vote ' o! did cast
illegal or frauCulent absentee ballots '
in the Dernocratic Primary Run-off
Election of SePtemJcer 26 ' 1978 '

COUNT THREE

C:-C cast iI)'egal or frauCulent absentee
ball-c'.s in t'h; Denocratic Prinary Run-
cf '- Eiection of SePtem:rer 26 ' I978 '
:-n-tiit she iii' depcsic with the Fickens

^r Countl' Circu:'t Cierk ' absentee balLcts
' 

"ni.n-were f:auduLent anc whi'ch she knew
+-o be f raucuient '

ietr-"ione=s raise three chaLlengeS "o 
5uile iniic"llent ' Ti"el'

II NOTICE

that the triai jucge instructec the juries on

s-ear-utes not ccntai-nei' in the inCicil:rent ' thus
^a-ranzi991. Us.;e

seve=a L

allowing the juries tc ccnvict Petiticners on charqes o"

which thel' had no not'ice' Petltioners also contenC that the

incictments were constitutionally defective because the

factual aL)-egaticns \rere insufficient ani because necessar-v

ele:nents of the cri;ne were omltteC'

-L2



A. Habeas Review of Challenqes

As an initial matter, the Court rejects

respondents'argumentthathabeaspetitionersmaynot
challenge the sufficiency of a state indictment' Respondents

relyonCaSeSinwhichpetitionerschallengedthe
sufficiencyofindictrrrentsunderStatelaw.Johnsonv.

Estelle, 704 F.2d 232, 236 (5th Cir' 1983); @

Fahner, 583 F.2C I376, I381-82 (7th Cir. 1982) ' cert'

denied, U-S. (1983); DeBeneCictis v' wainwright ' 674

[lrr, en3 (; cir. 1982); Branch v. Esterle, 63r,F'2d

L22g,1233(5thCir.1980).h?hereanincictmentabridgesa
constitutional guarantee, habeas is avai.lable' @' 683

tr ); a't- i38lt cf,. Hance v. Zant, 696 F'2d 940' 953 (Ilt'h

C!r. 1983); washington v' watkins' 655 l'2C I346' I369 (5th

';' 1aQ"l \ nert. denied, 455 U'S"a49 (1982)' Fur"hermore'
s--. 

-JVLL -

!:?lurkettv.E:!el1e,7OgF'2cLO04(5thCir'1983)'the
cc':r--cc8slcerecacLai'inthatthe:ur:'c:argealLoweca

i a.i nn oi a crirne not chargei, rcl a: i009 ' a clai:rr
!v..\:9

!E--:iiCnersraisehere.Thus,pe-.:.-icne=Sherenaychallenge
t:.e iniictne]:S inscfar aS their chaJ-.e::ge constituteS a:]

a:--ac.< upon tne notj-ce provj'd'eC b1' 
"he 

irCictnents'

3. InstrucEion Uoon Scacutes rcl Charqed :;'
r la-cEe inoictaencs

TheCourtrejectsresponoents'conientionthat,because
petitioners f aiiec tc object to the jury- instructicns, they

waiveci any ob3ection to the inclusion '-herein of of fenses

nct cha:gei' !n che indictments' See walnwriqht v' Sykes'

- 13



433 U.S. 72 0917); tsrazell v' State' 423 So'2d 323' 326

(AIa.Cr.App. I982). Pirst, wilder's attorneys did object to

the inclusion of the statutes on Perjury and notarization'

Second, the Court believes that petitioners' claim is a

chalrenge to the rack of notice and not to the jury charges.

Had the indictment.s charged the offenses included in the

instructions, the Iatter would have been unobjectionable'

The Fifth circuit, in Plunkett v. Estelle, 709 F'2d 1004'

10O8 (5th Cir. 1984), rejected a construction similar to the

onerespondentsurgehere.Furthermore,theAlabamaCourts

consiCer the right to notice as so fundam'enta1 that

ob-:ections to the rack of notice cannot be waived' U,-'

Barbee v. State, 4L7 So.2C 5I1, 613 (Ala'Cr'App'1982);

Ecwari,s v. State , 31g So. 2d 335 , 338 (Ala ' Cr 'App ' 1979 ) ;

cert. Cenied , 3,'9 So.2d 339 (1980) ' The Court does nct

bel_ieve the Alabana courts wouIi. bar petitione=s from
1/

--r--ri -c ;ni -e :SSue On appeail/ ThuS, 
"he 

CCurt hcii's t:'Iai
d===- rt..? u:rrr

F-:: f ie,nc-c ha'.'e not waiveC this cl-aim'
-E 

E- e!v.ls- -

Petitioners arEue -sj1Et '.he tri-aI ccur-'' s iury

i:siructicns allowec thern to be founc guil-t1' c! charges upcn

wnich they were nct incictei.. The incict:nents c'narEei

petiticners wrch voting more than once or voting

,,5=auculentilz Or iIlegaIIy" or casting " f rauculenr' or

t The Alabama cot::auS wcrr-r1d not, hq'rever-'! ' !'rE B ;*;;iio" froUi*r. As che Corr= statec in its
::Ef.*Tilff"'$"'ffif'tt?;; dj.;',ir;, dds craj-sr is nor coenizabre c,,l

collaCeral rewis^i jn Aiabara, en6 habeas "oqp*-t"oi* 'fto 
i:' not'availaSLe in

.{1aba:a co pooi""i. r.ocrr"*t"l pe*.iF""*! "iii"=a 
lack of noElce cn aooeal '

aichor.gjr rrey diJ-r,oc- i"ir" rHe ipLc-fic issr.:e they rdse here '

-L4



illega1" ballots. The trial court defined "illegal" 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 Ala. code s 17-10-6, which requires

that absentee ballots be sworn to before a notary public,

with certain exceptions. The jucge then instructed the

juries on AIa. Code s I7-IO-7, which provides that absentee

voters must appear personally before the notary. Finally,

the judge charged the jury that, under ALa. 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

ccnvicted of any vioLations of these statutes '

ASageneralrule,aconvictionbaseduPonachargenot

ccn:ainei in the ind,icEtent viclates cue Process ' Jackson

v. vireiiia, 443 U. S' 307, 314 (L979) ("It !s axio::'atic
.J

tna; a ccn',.ic|.icn upon a cherge no.u nade or a charge not

triec Ccnstitut,es a cen!a]. of iue Process. '') ; Cole r,.

A:kansas, 333 U.S. i95, 201 (1948) ("It is as much a

l,ioia.'icnofcueprocesstoseni'anaccuseitoPrison

foiiowingconvictionofachargeonwhichhewasne\,erirlec
asitwoulcbetcconvicthimuponachargethatwasnever
maie. "); DeJonge v. Oreoon, 2gg U'S' 353' 362 (I937)

(,,conviction upon a charge not mace would be sheer deni-aL of

cue ProceSS.,,); See Dunn v. United States, 442 U.S. 100, 106

Furtherncre, an inCictment must a1lege every(r979)

-15



essential element of the violation charged therein' Hamlinq

v. united states, 4I8 U.S. 81,117 -(L974)i Russell v' united

States, 369 U-S. 749, 77L (1952); United States v' Out1er'

659 F.2d 1305, I31O (5th cir. unit B 198I)' cert'. denied'

455 U.S. 950 (1982); United States v- varkonyi ' 645 r'2d

453, 455 (5th Cir. I98I) '

TheEighthCircuithasupheldaclaimsimilarto
petitioners,. In Goodloe v. Parratt, 605 P.2d iOAf (8th Cir'

LgTg), petitioner was charged with "unlawfully operatIing] a

notor vehicle to flee in such vehicle in an effort to Evoid

arrestforviolatinganylawofthisState.''TheState
originally claimed at trial that petiti.oner had fled to

avoid arrest for driving with a suspended license, although

hehacearlierbeenacquittedofthatcharge.Thetrial

cour-grul-ec,hcwever,that'thestatehadtoshowanactual
..,iolaticn, so the state altered its contentions to reckless

^t-r r-i na rrr - at IO44-45. The Eighth Circuit ruleC that'
:- - \ :::e

'' -r'l nca "trot 
r.'!olai,ion of a sPec j-f ic statr:te becane an

- ! I rll'l:: ^v: -v!

e-e:-"e1.' cf the cf fense by virtue of the trlal Court ruling,

Gccdioe r''as entii,Led not onll' to notice of that general

!=^t hrrr :'1 so to specif ic notice of what Iaw he was allegei
-CU'7 iq; q:b

-'ChavevioIa..ed.''Id.atlo45.Theinformationuncer

whichpetiticnerwaScharEedthus',faileotoadequately
iescribe the offense charged because it dic not aIlege an

essen.'ialsubstantiveelement.''Id.at].046.Thecourt
went on to note that, if petilioner hac had actual notice cf

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

- 15



despite the inadequacy of the information' The arrest

warranthadnotifiedpetitionerofthesuspended].icense

charge,buttheState'sswitchintacticsdeprivedhimof
dueprocess.Id.;@,Watsonv.Jaqo,558F.2d33o(5th
Cir. L971).

TheFifthCircuitrecentlyhasfollowedthebasic

approachofWatsonandGoocloe.InPlunkett,theFifth
Circuitfound'aconstitutionalviolationwherepetitioner
waschargedwithintentionallycausingadeath,andthe

trla1 court added to i'ts instructlons a charge on cauqing

dea-,h by an act intended to cause serious bodily injury'

The trial court, in summing uP its statements of abstract

iawbyapplyingthelawtothefactsofthecase,usedonly
thelanguageoftheCorrectStatute.TogF.2datI00T.The
ii:thCircuitreasonedthatthechargemustbeconsideredin
i!.;:'- of the entire trial, and exanineC the prosecutor's

cLcsi:lg iargunent as well as the charge' The court founc

--:3itheprosecu-.ortclcthejur}.-'ha-.peticicnercouicbe

:-c:liguiit-vunie=thencn-cnargedcefinitionofmurder'
Ic. at. l-008-09 ' The court f ounC that' given -'he eviCence

a:i -.heories presen--ec by the Parties' the jury coulc have

CcnC].uceqthatpetitionerintendedtoinjurebutnotkill
tj:e victim, anc thus the jury could have convicted him of

the non-charged offense. I! .t r0r0-rr; @, Tarpiey v'

EsteIIe, 703 r'2c L51, I59-5I (5th Cir' 1983)'

Tosumnarize,thecorrectapprgachist'odetermine

whetherthejurycouldreascnablyhaveconr'ictedeither

-L7



petitioner.of a crime not charged in the indictment' The

determinationrequiresanexaminationofthetrialasa
whole, including the charge, the arguments and theories of

theParties,andtheevidence.TheCaselawfurthermakes
clear that the fact that there may have been sufficient

erricence to convic" on the crime that was charged is not

sufficient to sustain the conviction'

ResPondentsarguethatthejuryinstructionsdidnot

allow Wilcer to be convicted under the non-charged statutes '

TheypointtoPages3Iland3I2ofthetranscriPt,atwhich
the courr, instructed in essence that the State was charging

wilcer with voting more than once, ani with marking t'he

absentee ballots without the voters' consent. The court

corcluCeC that, "Such a ballot would be illegal to casts a

ball-ct IsicJ or ParticiPate in t'he schene to cast that

la]-lc..withknowledgeofthesefactsaniwoulcfallwithin
.,:e acr,s prohibiteC b.v Section l-7-3-L Isic] of the A]abama

^'

eric r€ ,nr5." Thus, resPcnCe::ts ccncluCe' tr{iIier must have

L-^- ^^'\'ial-4q of viciating -the s--atu"e uncer which she was
-==-. 

gv':i\ !v er

a'* 2--af
!..-- v ee .

Respondents ' argument is Patentll* wrong ' Responoents

igrc:e the paragraph immeaijlEtl' following "he 
one quotec

above:

Further, the State charges that the defeniant
witnessecorhadknowledgethataNotary
Public iifi.Iy notarizeC or attestec to the
authenti"ily-"f the ballots by attesting the
persons befire him and so forth as proviCei'
in the affldavit' If the ballot was faJ'sely
attestec to, then such a balLot.wouiC be

iIlega} and any Perssn who participated in

1Q



a scheme to cast that ballot with knowledge
of that fact would commit the acts prohibited
bt iection 17_3-1 [sic] of rhe Alabama code
oi 1975 if in fact that ballot was cast'

Tr.3l2.Thus,thecourt'schargeexplicitlypermitted'the
jurytoconvictWilderwithcastinganimproperlynotarized

ba}lot, a crime with which she was not charged'Wild'er went

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

the grosecution to show the ballot,S were improperly

notarized, even if they were otherwise valid'

Theevidenceinthecasewassuchthatthejurycould

have convicted l^lilCer on the charge of which she had no

notice. 'eliloer testif ied that the voters either filled out

their own ballots or authorized her to f111 them out' Thus'

i: the jury believed llilder, it could have found that Wilder

cii. not cast two or more ballots as her own vote but 
"hat

s:e c:C cast i'nproperJ'12 nctarizeC ballo"s' and hence was

g.::-l-"i' ';ICer r-he court's charge '

3cze:r,an has a sliEhtly stlcnger cLaj'm on thls issue

tian.r']ilcer.Thetrialcourtciinotsu:::irarizetheState's
ccn-le:iiions as it oiC in Wilder's case' it slr'ply

ins-,:ucte4 the lur-v, as in InJiLcer's-gase, thdr'

',il.iegal...neansanactthatisnotauthorizecbylaworis
Cont:arytothelaw,,.tr.zoL,andthenchargeconthefour
sta-.u'ses not ccntained in the ind'lctment' As in Wilder's

case, thls wouid lead a reasonable luror to believe that

Bozeiian could be convictec of casting i:nproperly notarized

ball-ots. This would have esPecialty prejudiced Bozeman

- 19



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 "illega] voting, " creat'ed substantiai

potential for abuse, Potential which was realized by the

jury instructions. A baLlot could have innumerable defects

causing it to be "illegaI." Petit"ioners were entitled to

know exa.tly what Cefec'.s the ballots alLegeCly containeC So

that they couic prepare their cefenses. -As it turned out,

the1, cid not i:scover tne precise charges they were facing

untif tley i:ae resteC their cases. The p:csecution, on the

ciner ha::c, hac the op.:crtunitl, tc change |.he rules r:.ght up

until t,he case went to the lury' As the court statei in

pl-unkett, "It ls nct a sPorting theorl' of justice we

describe. " 709 F. 2o at 1010 '

The resuit of the trial court'S in+.€rpr€tation of the

word "illegal" in s 17-23-L was that petiLioners went into

court facing charges that they had "stolea" vctes and enieC

up being triec on the afternative iheory that they hac

-20



committed one or more statutory wrongs in the notarization

of the barro:';.Zl There is a world of difference belween

forging a person's ballot and failing to follow the proper

procedure in getting that Person's ballot notarized" If

petitioners were facing the latter charge, they had a right

tc be told. They were not. To put it simply, petitioners

were tried upon charges that were never made and of which

thelz vrere never not,ified. Thus, their convictions cannot

stand.

2. Another source of potentiaL -ore.;uciice to pecirione:s
L-as che conflicCing ways in wirich the Alabara courEs have
.-"."rii.a;a-ah;-r"7o ;illegal . " Accorcing. Eo che Court of
CriaiiaJ. Appeals , ic s iurply des cribes Ehe j-ntent neces sary
E,o a viofation-oi S I7-23-i,.l^lilier, 491 So.2d ac 150. The

;ii"l ccurt, hcwever, gave cre tern a Life of its owrl. Ihat
;;;;; ;h;;,;a irre 3 uiiiis thac "illegar " ' neans an act thac
is noE auchoriz-a 6y law or is congiary Eo the law." Thus,
;; peEiEioaers point out, all lqt? per-caining Eo voEing
b"".=r" incorpo=itea into S f7- 23'L. Under the interpre-
raEion of Eh; Courc of Crirainal Appeals, this would be
incorrect, and i-nproper notarizatj.bn would noE be a crime
-*',a"i S ti-Zl-t.'yet the trial court's instrucgions uade ic

-2L



TheCourtrejectspetitioners'claimthatthe

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

whole,...and...must be determined by practical' not

technical,considerat,ions."UnitedStatesv'l'larkham'537
F.2d, 187, LgZ (5th Cir. Lg16\, cert' denied' 429 U'S' I04t

1917);SeeUnitedstatesv.outIer,659r.2d1306,1310.11
(Sth Cir. Unit B 1981), cert denied, 455 U'S' 950 (1982);

'inited States v. Uni Oil, Inc' , 646 F'2d 946' 954 (5th Cir'

198I),cert.CenieC,455U'S'908(1982);UniteCStatesv'
Declcue, 603 F.2d 535, 546 (Sth Cir' 1979)' g!,1]9n:!g!'

413 U.S. g46, 446 U.S. gLz (1980); Unitec Staies v. clark'

346 F.2c Ii3O, 1I32 (sth Cir ' L91i) ' Trvo of tne counts
.l

accusei r'petitj.cners of vcting more t.han once, and 5r\do

s?ecii:ei assentee ballots ' Atl 
"hree 

counts accused

per-itioners of voting fraucuien'tly or iIlegaIly. Although

the incictilen-us are f lawei, if reac Iite=al1)" they containec

suf jicj.ent infor:nation t,o notify Petitioners of the charge

cf rzoting more than once. Purthermore, Petitioners coul-c

e:r,pIcy the entire recoris in pleacing i'ouble jeoparoy in a

Later case. RusselL, 369 U'S' at 764'



The Court does, however, find that petitionersr

Sixth Amencment rights were violated because they leere tried

for offenses with which they were never charged, and that

Bozeman,sconvictionviolatedJacksonv.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 shall issue at once'

The State ma}l however, retry l{ilder, Greene v.Massey, 43.7

U.S. 19 (1978), and the Court wiII allow it ninety days in

which to do so.

Separatejudgmentswillbeenteredinaccordancewith

this memorandum oPinion'

DONE this 13th daY of APril' 1984'

-4*r,rot '/'il- '

UNITED STATES DISTRICT JIJDGE

^t

-23