Smith v USA Reply Brief in Opposition to Certiorari

    No. 00-1192

In  The

§>uprzmz Court of tI|E Unttrli sta tes

Fr a n k  Sm ith  a n d  Connie  Tyree , Petitioners,

v.

The U n ited  Sta tes  of Am erica , Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Eleventh Circuit

REPLY TO BRIEF IN OPPOSITION 
TO CERTIORARI

El a in e  R. Jones 
Director-Counsel

N o r m a n  J. C hachkin  
(counsel of record) 
Ja c q u elin e  B errien  
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 965-2200

Collins Pettaw ay , Jr . 
Chestnut, Sanders, Sanders 

& Pettaway
1405 Jeff Davis Avenue 
Selma, Alabama 36702 
(334) 875-9264

Pam ela  S. Ka r l  an  
559 Nathan Abbott Way 
Stanford, California 94305 
(650) 725-4851



Page

I. The Selective Prosecution C la im ................................  1

A. The Burden o f Proof Question..............................  1

B. The “Similarly Situated’’ Requirement................ 4

C. Relationship o f the Improper “Similarly
Situated’’ Standard to the Discriminatory 
Purpose Prong .........................................................6

II The Court of Appeals’ Elision of the
Requirement of Demonstrating Lack of Voter 
Consent to Prove a Violation of 42 U.S.C.
§§ 1973i(c) and 1973i(e)................................................ 7

Conclusion.........................................................................  10

TABLE OF AUTHORITIES

Cases:

Addington v. Texas,
441 U.S. 418 (1979)................................................  2,3

Allentown Mack Sales & Service v. N.L.R.B.,
522 U.S. 359(1998).......................................................2

McCleskey v. Kemp,
481 U.S. 279 (1987).......................................................2

Purkett v. Elem, 514 U.S. 765 (1995) ..............................  7n

TABLE OF CONTENTS

i



Page

Cases (continued):

Tippett v. Maryland,
436 F.2d 1153 (4th Cir. 1971), cert, dismissed
sub nom. Murel v. Baltimore City Criminal
Court, 407 U.S. 355 (1972) ........................................... 3

United States v. Armstrong,
517 U.S. 456 (1996).................................................  1,3

United States v. Redondo-Lemos,
955 F.2d 1296 (9th Cir. 1992), appeal 
after remand sub nom. United States v.
Alcaraz-Peralta, 27 F.3d 439 (9th Cir.
194)  3

Wayte v. United States,
470 U.S. 598 (1985).................................................  1,3

Statutes and Rules:

42 U.S.C. § 1973i.............................................................7, 8

S. Ct. R. 3 3 ...........................................................................  1

Other Authorities:

TABLE OF AUTHORITIES (continued)

Barbara D. Underwood, The Thumb on the Scales 
of Justice: Burdens of Persuasion in Criminal 
Cases, 86 Yale L.J. 1299 (1977) ......................... 2



REPLY TO BRIEF IN OPPOSITION TO CERTIORARI

The Government’s Brief in Opposition is riddled with 
misstatements of the law, distortions of the record, and 
internal inconsistencies so numerous that they cannot all be 
addressed within the limitations prescribed by S. Ct. R. 33. 
We deal in this Reply only with the most significant errors.

I. The Selective Prosecution Claim

Petitioners claim that they were singled out for 
prosecution on the basis of their race and political affiliation. 
Applying the standard announced by this Court in United 
States v. Armstrong, 517 U.S. 456 (1996), a Magistrate Judge 
concluded they were entitled both to discovery and to an 
evidentiary hearing. At the end of that hearing, he found that 
it was “certainly true that there [was] evidence in the record 
indicating that other people [had] engaged in fraudulent 
absentee-ballot voting activities, including forging voters’ 
signatures and altering ballots.” App. 57 (emphasis added). 
But both the Magistrate Judge and the Court of Appeals then 
advanced novel and unsupportable formulations of the legal 
standards to be applied to claims of selective prosecution1 that 
conflict both with the decisions of other courts of appeals (as 
the Government’s Brief in Opposition concedes) and with 
rulings of this Court (which the Government denies).

A. The Burden of Proof Question

This Court has explicitly ruled that “ordinary equal 
protection standards” govern selective-prosecution claims. 
Wayte v. United States, 470 U.S. 598, 608 (1985); Armstrong, 
517 U.S. at 465. Among those standards is the burden of

'Petitioners also seek review of the Court of Appeals’ similarly 
unprecedented reading of the Sentencing Guidelines provisions 
applicable to these prosecutions. See Pet. at 25-27.

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proof. There are two aspects to the burden of proof: its 
location and its weight. The location indicates which party 
loses if the burden is not met. The weight describes how 
persuasive the evidence must be in order to satisfy the burden. 
Barbara D. Underwood, The Thumb on the Scales o f Justice: 
Burdens o f Persuasion in Criminal Cases, 86 Yale L.J. 1299, 
1301 (1977). Petitioners and the Government agree on the 
location of the burden of proof in a selective-prosecution case: 
it rests on the defendant who alleges selective prosecution. 
Where we differ is on the weight of the burden a defendant 
must bear.

There are three distinct burdens of proof that might apply 
to a legal claim: proof by a preponderance of the evidence; 
proof by clear and convincing evidence; and proof beyond a 
reasonable doubt. See Addington v. Texas, 441 U.S. 418, 423 
(1979). This Court has made it crystal clear that 
“ [preponderance of the evidence’ and ‘clear and convincing 

evidence’ describe well known, contrasting standards of 
proof.” Allentown Mack Sales & Service v. N.L.R.B., 522 U.S. 
359, 376(1998).

The Government is unable to point to a single case in any 
area of equal protection law in which any court has required 
any claimant to prove a violation by clear and convincing 
evidence. Indeed, even in McCleskey v. Kemp, 481 U.S. 279 
(1987), the case on which the Government relies, Br. Opp. 17, 
the Supreme Court did not “hold” (as the Government 
suggests, id. at 17-18) in affirming the lower court’s judgment, 
that a burden of proof higher than the preponderance standard 
applied to McCleskey’s equal protection claim. The statement 
quoted by the Government is dictum, at best, and the phrase 
“clear and convincing” appears nowhere in either the Supreme 
Court’s opinion nor in that of the district court whose 
judgment it approves.

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The Government acknowledges, as it must, that the Ninth 
Circuit, in clear conflict with the decision in this case, has 
announced that the proper burden of proof in a selective- 
prosecution case is proof by a preponderance. United States v. 
Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), appeal after 
remand sub nom. United States v. Alcaraz-Peralta, 27 F.3d 
439 (9th Cir. 1994). All the Government can say is that 
Redondo-Lemos, and the other cases the Petitioners cite, in 
which courts of appeals have applied the preponderance of the 
evidence standard to judge claims of equal protection 
violations by prosecutors or other law enforcement officials, 
were decided before Armstrong. Br. Opp. 18. But Armstrong 
announced no change in the pre-existing law. On the relevant 
question, it quotes Wayte, which was decided nearly a decade 
before the cases with which the holding below is in conflict.

The reason no court has ever adopted the Government’s 
position becomes obvious if one considers the purpose of 
burdens of proof. As the Court explained in Addington,

adopting a “standard of proof is more than an empty 
semantic exercise.” In cases involving individual rights, 
whether criminal or civil, “[the] standard of proof [at a 
minimum] reflects the value society places on individual 
liberty.”

418 U.S. at 425 (quoting Tippett v. Maryland, 436 F.2d 1153, 
1166 (4th Cir. 1971) (Sobeloff, J., concurring in part and 
dissenting in part), cert, dismissed sub nom. Murel v. 
Baltimore City Criminal Court, 407 U.S. 355 (1972)) 
(interpolations in the original).

In what sorts of selective-prosecution cases would the 
standard of proof make a difference? Only in cases where the 
burden-bearing party has satisfied one standard but fails a 
higher one. Put plainly, the Government wants this Court to 
leave intact a ruling that federal courts should allow 
prosecutions to proceed even if they have found, as a fact, that

3



it is more likely than not that the government chose to 
prosecute a defendant because of the defendant’s race, 
political affiliation, or exercise of constitutional rights. To 
state the proposition accurately is to show its utter 
constitutional repugnance.

B. The '‘Similarly Situated” Requirement

The Brief in Opposition never really engages Petitioners’ 
arguments regarding the Court of Appeals’ misapplication of 
the “similarly situated” requirement. Our central point was 
quite simple: the Court of Appeals adopted an unconscionably 
stringent definition of the word “similarly.” That definition 
allowed the Court of Appeals to ignore completely the 
unchallenged evidence in the record regarding other 
individuals who engaged in the same activities as petitioners 
and to hold—to take only one egregious example—that 
Petitioner Smith, who was convicted with regard to 
irregularities concerning three voters’ ballots, was not 
similarly situated to individuals who engaged in the same kind 
of behavior with respect to two voters’ ballots.

The Government’s attempt to rehabilitate this absurd 
standard falls flat. It begins by claiming that “we do not know 
from the record the strength of the evidence that others may 
have committed similar crimes.” Br. Opp. 19 (quoting Pet. 
App. 20). But before the Court of Appeals’ decision in this 
case, no court had ever held that defendants must show not 
only that there are similarly situated individuals, but also “that 
the evidence [against those individuals] was as strong or 
stronger than that against the defendant.” Pet. App. 16.

Given that the Government’s own contention at the 
selective prosecution hearing was that its investigations were 
“on-going” and that Petitioners were “but the first in a series 
of people yet to be indicted and prosecuted,” Pet. App. 57, it 
would be deeply unfair—if not impossible—to require that 
defendants be able to put on a full-dress criminal prosecution

4



with regard to similarly situated individuals at the pre-trial 
selective prosecution hearing.

Moreover, the requirement is incapable of satisfaction. 
How a defendant is to make a comparative showing, pretrial, 
before he knows or can assess the strength of the government’s 
case against him, is entirely unclear. And even if a defendant 
is given sufficient discovery to identify similarly situated 
individuals, it strains credulity to expect that such discovery 
would include access to prosecutorial assessments of the 
relative strength of potential cases against the defendants and 
others.

Finally, defendants of course lack any power to immunize 
witnesses; thus, they cannot, for example, compel testimony 
from allegedly similarly situated individuals to prove that 
those individuals engaged in similar conduct.

Even more disturbing is the Government’s offhanded 
attempt to explain why Petitioners were so uniquely situated 
that their prosecution was especially justified: “petitioners 
were public figures (Smith was a candidate for office and 
Tyree was the deputy county registrar).” Br. Opp. 19-20. 
Absolutely nothing in the record suggests that the prosecutors 
who brought this case relied on Smith’s candidacy, or Tyree’s 
being a deputy registrar, as the reason for bringing this 
prosecution. This is pure and utter after-the-fact speculation 
dreamed up by government attorneys sitting in Washington, 
D.C. about what motivated government lawyers in Alabama.

Even worse, the assertion seriously misrepresents the 
record. Petitioner Tyree was not “the deputy county registrar,” 
a characterization that makes it sound as if Tyree were a high- 
level official in the registrar’s office. Not at all. The 
Government’s own witness, Joyce Langham, an employee of 
the Greene County Board of Registrars, when asked about the 
existence of deputy registrars not only named eleven 
individuals (including Rosie Carpenter, one of the people

5



whom Petitioners alleged was a similarly situated individual), 
but then made clear that there were a number of others whose 
names she could not even recall. She also testified that the 
position was essentially a volunteer job that simply involved 
helping individuals in the community to register. Tr. 298-99.

C. Relationship o f the Improper "Similarly Situated” 
Standard to the Discriminatory Purpose Prong

The Government argues that even if the courts below 
completely misconstrued the “similarly situated” requirement, 
this Court should deny certiorari because the Court of 
Appeals’ holding that Petitioners failed to prove a 
discriminatory purpose provides an alternative basis for 
rejection of our claim. Br. Opp. 20-21. This argument rests 
on two fundamental misunderstandings. First, the Petition 
raises the question whether the Court of Appeals applied the 
wrong legal standard to Petitioners’ argument regarding 
discriminatory purpose. See Pet. i (Question Presented 1 .a.). 
If Petitioners prevail on that issue, we will be entitled to 
reconsideration by the Court of Appeals of the evidence we 
presented regarding the discriminatory motivations behind the 
prosecution.

Second, the mistakes of the courts below in assessing the 
evidence of discriminatory impact also infected their 
assessment of the allegation of discriminatory purpose. Had 
the Court of Appeals properly recognized the presence of 
similarly situated individuals—individuals whom the record 
showed were white or black members of the white-dominated 
CBGC political faction opposing Petitioners’ organization—it 
would then have been compelled to ask the question why the 
Government did not prosecute any of these other people. This 
evidence of non-prosecution would have cast the other 
evidence of discriminatory purpose that Petitioners presented

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in a substantially different light.2

II. The Court of Appeals’ Elision of the Requirement of
Demonstrating Lack of Voter Consent to Prove a
Violation of 42 U.S.C. §§ 1973i(c) and 1973i(e)

At trial, on appeal—and at least until the end of the Brief 
in Opposition’s statement of facts—the gravamen of the 
Government’s case was that Petitioners were involved in a 
scheme to apply for and cast absentee ballots in the names of 
seven voters without those voters’ consent. Indeed, the 
Government was so keen on proving this lack of consent that 
it impeached two of the six so-called “victim voters” by 
relying on their grand jury testimony when they testified at 
trial that they had expressly consented to Petitioners’ acts. See 
Pet. at 7. And it went so far as to threaten a defense witness 
with prosecution for perjury because she had testified at the 
selective-prosecution hearing that she had signed the ballot 
affidavit of her illiterate father (a voter whose ballot 
application Tyree had signed) with his express consent. See

2Here, too, the Government seriously misrepresents the record. 
It euphem istically refers to the prosecutor’s Batson 
violation— which sheds light on the motivation behind the 
prosecution since one of Petitioners’ arguments was that the federal 
prosecution in this case was explicable as reflecting in part the state 
government’s desire to try Petitioners in front of a largely white 
jury pool— as “the district court’s rejection of the government’s 
race-neutral explanation for one peremptory challenge because the 
district court ‘did not agree with the government’s observation.’” 
Br. Opp. (quoting Pet. App. 22.). In fact, in overturning the 
prosecutor’s use of a peremptory challenge, the district judge— who 
after all was physically present to weigh the credibility of the 
prosecutor’s explanation— necessarily concluded that the 
Government’s explanation was a “pretext for purposeful 
discrimination,” Purkett v. Elem, 514 U.S. 765, 768 (1995).

7



Pet. at 8-9, 27-28. But the Court of Appeals held that lack of 
consent was not a required element of a violation of 42 U.S.C. 
§ 1973i, a position the Government now adopts despite its 
inconsistency with both its own trial strategy and with the 
approach taken by every other court of appeals to have 
addressed the issue.

The Court of Appeals’ decision in this case marks the first 
time any court has ever affirmed a defendant’s conviction 
under 42 U.S.C. §§ 1973i(c) or 1973i(e) without explicitly 
finding that the defendant acted without the nominal voter’s 
consent. The Brief in Opposition seeks to obfuscate this point 
by raising a complete straw man—suggesting that Petitioners 
are somehow arguing that a “defendant’s provision of false 
information to establish another voter’s eligibility to vote 
would be excused if that voter consented to the provision of 
such false information.” Br. Opp. 22.

Petitioners suggested nothing of the sort. The 
Government’s argument reflects the casuistical definition of 
“false information” most clearly propounded by the Court of 
Appeals in discussing Count 13 of the indictment, which 
charged petitioner Tyree with respect to Shelton Braggs’ ballot 
affidavit. The Government did not call Braggs as a witness. 
Thus, there was literally no evidence of nonconsent in the 
record.3 Nonetheless, because under Alabama law, “[a] voter 
cannot legally authorize or direct another to vote his ballot in 
his placet, Tyree] . . . gave false information by signing 
Braggs’ name, because she is not Braggs.” Pet. App. 25. 
Under the interpretation of the Government and the Court of 
Appeals, Tyree would have committed a federal felony even if

3In fact, after the trial but before the sentencing in this case, 
Braggs provided a sworn statement that “he gave Tyree permission 
to cast an absentee ballot for him provided that she voted the ballot 
for Smith.” See App. 22 n.13.

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Braggs had been sitting in the room with her and asked her to 
sign his ballot affidavit because his hands were dirty. That 
simply cannot be the law.

As we pointed out in the petition, Pet. at 7-10, the 
question of the seven voters’ consent was hotly contested at 
trial. If the Government’s current reading of § 1973i is 
correct, then the Government’s conduct at trial is simply 
inexplicable. There was no point to the Government’s fierce 
attempts to prove nonconsent: even if each of the voters had 
gotten on the stand and testified that he or she explicitly 
directed Petitioners to assist in the application or voting 
process, Petitioners should still have been convicted.

Perhaps recognizing the bankruptcy of its statutory 
construction, the Government retreats to the contention that 
“in any event, even if the government had been required to 
prove lack of consent, the evidence in this case 
overwhelmingly established that the victim voters did not 
consent. . . . ” Br. Opp. 21. Once again, the Government has 
misrepresented the record. There was literally no evidence on 
lack of consent with respect to one voter, Shelton Braggs, 
whom the Government did not even call as a witness. Two of 
the other six “victim” voters testified at the trial that they had 
consented. See Tr. 472 (voter Michael Hunter); Tr. 567 (voter 
Willie C. Carter). A third and a fourth voter were vigorously 
cross-examined about prior statements given to the FBI or 
defense counsel that suggested they had consented. Tr. 370, 
390, 396, 403 (voter Angela Hill, who was Petitioner Tyree’s 
estranged half-sister); Tr. 540 (voter Cassandra Carter). With 
respect to yet a fifth voter—Sam Powell—petitioner Tyree 
was prevented from presenting a witness, Powell’s daughter 
Burnette Hutton, who would have testified that she had signed 
his voter affidavit with his consent. See Pet. 8-10. And with 
respect to the sixth voter, Eddie Gilmore, uncontested expert 
testimony established that he had written his own signature on

9



his ballot application, Tr. 1025, for which Petitioner Tyree was 
nonetheless convicted.

Of course, the question before this Court is not whether 
the voters in fact consented. Petitioners acknowledge that 
despite the bewildering array of testimony, recantation, and 
contradictory statements given by the six voters whom the 
prosecution chose to call, there was sufficient evidence from 
which a properly instructed jury could have concluded that six 
of the voters did not consent. But for the reasons we 
explained in our petition for certiorari, this jury was not 
properly instructed. Pet. 10-11,14-15,24-25. Thus, the jury 
might well have convicted Petitioners on the assumption that 
even if the voters had consented, Petitioners were nonetheless 
guilty. The fact that the jury could convict Petitioner Tyree 
with respect to two counts related to Shelton Braggs (who 
never appeared in court at all) and one count related to the 
ballot application of Eddie Gilmore after uncontradicted 
expert testimony showed that he himself had probably written 
his own signature on the form simply because she wrote his 
name, residence, mailing address and county name on the form 
undermines any suggestion that the jury necessarily concluded 
that Petitioners acted without the voters’ consent.

The Court of Appeals’ misconstruction of the substantive 
criminal statutes that Petitioners were charged with violating 
thus cannot be neatly excised from this case, as the 
Government suggests, by hypothesizing that if  the jury had 
been properly instructed that lack of voter consent was an 
essential element of the offenses, it would have returned guilty 
verdicts that would find support in the record. Such an 
argument makes the jury trial itself superfluous, in clear 
violation of the Sixth Amendment.

CONCLUSION
The petition for a writ of certiorari should be granted.

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Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
(counse l  of  record)  
Jacqueline Berrien 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 965-2200

Collins Pettaway, Jr . 
Chestnut, Sanders, Sanders 

& Pettaway
1405 Jeff Davis Avenue 
Selma, Alabama 36702 
(334)875-9264

Pamela S. Karlan 
559 Nathan Abbott Way 
Stanford, California 94305 
(650)725-4851

Attorneys for Petitioners