Smith v USA Petition for Writ of Certiorari
Public Court Documents
October 1, 2000

108 pages
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Brief Collection, LDF Court Filings. Smith v USA Petition for Writ of Certiorari, 2000. 3adcadcd-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/769f2f24-a843-4df4-87b7-d5fcd9155de7/smith-v-usa-petition-for-writ-of-certiorari. Accessed July 16, 2025.
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In The #upm ue Court of tljr timtrii sta tes Frank Smith and Connie Tyree, Petitioners, v. The United States of America, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit PETITION FOR A WRIT OF CERTIORARI Elaine R. Jones Director-Counsel Norman J. Chachkin (counsel 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 Pam elas . Karlan 559 Nathan Abbott Way Stanford, California 94305 (650) 725-4851 QUESTIONS PRESENTED 1. Did the Court of Appeals flout the “ordinary equal protection standards” applicable to claims o f selective prosecution identified in United States v. Armstrong, 517 U.S. 456, 465 (1996), when it: a. imposed a requirement that petitioners prove discriminatory purpose and discriminatory effect by “clear and convincing evidence” rather than by the preponderance o f the evidence standard applied by other Circuits? b. adopted a definition o f “similarly situated individuals” that eviscerates the Constitutional protection recognized in Armstrong by “mak[ing] a selective- prosecution claim impossible to prove,” 517 U.S. at 466? 2. Were petitioners’ convictions improperly sustained by the Court o f Appeals when it held, in conflict with the interpretation o f 42 U.S.C. §§ 1973i(c) and 1973i(e) applied by other Circuits, that these criminal provisions o f the Voting Rights Act do not require the government to prove lack o f voter consent in cases involving absentee ballots? 3. Did the Court of Appeals depart so fundamentally from the accepted course of judicial proceedings as to warrant correction by this Court when it blatantly ignored the plain language o f the Sentencing Guidelines provision applicable to voting-related offenses? 4. Did the Court of Appeals sanction the violation o f petitioner Tyree’s Fifth and Sixth Amendment rights in approving the government’s trial strategy o f “effectively d riv ing a] defense witness off the stand,” Webb v. Texas, 409 U.S. 95, 98 (1972), by threats o f peijuiy prosecution both at the pre-trial hearing on petitioners’ selective prosecution claim and at trial? i 5. Did the Court o f Appeals err in approving the trial court’s admission o f inherently prejudicial evidence regarding petitioner Tyree’s witnessing o f other absentee ballots about which the government conceded that it had no evidence of wrongdoing, as probative on the conspiracy count? n LIST OF ALL PARTIES TO THE PROCEEDING BELOW The names o f all parties to the proceeding below are included in the caption to this Petition. iii TABLE OF CONTENTS Page Questions Presented ............................................................ i Parties to the Proceeding Be l o w ................................. iii Table of Authorities ....................................................... vi Note on Citations to the R e c o rd .................................... xi Opinions Be l o w ....................................................................... 1 Jurisdictio n ................................................................................ 1 Constitutional and Statutory Provisions In v o l v e d ..................................................... 1 Statement of the Case ..........................................................2 A. The Decision to Prosecute the Petitioners ................ 3 B. The Selective Prosecution C la im ..................................4 C. The Trial ..........................................................................6 D. Petitioners ’ Sentencing ............................................ 11 E. The Court o f Appeals' Opinion ............................... 11 1. Selective Prosecution ........................................ 11 2. Lack o f Voter Consent ...................................... 14 3. Exclusion o f Hutton Testimony......................... 15 4. Calculation o f the Base Offense Level Under the Sentencing Guidelines ....................... 15 5. Admission o f evidence about Tyree’s witnessing other ballots .................................... 16 IV TABLE OF CONTENTS (continued) Page REASONS FOR GRANTING THE WRIT ..................16 I. This Court Should Grant Certiorari to Clarify the Standards to be Applied to Claims of Selective Prosecution and to Resolve a Conflict With Both this Court’s Decisions and Those of Other Circuits ..................16 A. The Eleventh Circuit’s Imposition of the “Clear and Convincing Evidence” Standard Conflicts with this Court’s Decisions and the Decisions of Other Courts of Appeals ............................................................. 17 B. The Standard Adopted Below for Identifying “Similarly Situated” Individuals When Adjudicating a Selective Prosecution Claim Departs Dramatically from Prior Caselaw and Forecloses the Claim as a Practical Matter ............................................20 II. This Court Should Grant Certiorari to Resolve a Conflict Among the Circuits Over the Construction of Two Criminal Provisions of the Voting Rights Act ............................................22 III. This Court Should Grant Certiorari to Address the Proper Application of the Sentencing Guidelines to the Offenses with which Petitioners Were Charged ...................... 25 v TABLE OF CONTENTS (continued) Page IV. This Court Should Grant Certiorari to Restore the Protections of the Fifth and Sixth Amendments to Petitioner Tyree ..................27 V. The Court Should Grant Review to Resolve the Conflict Between the Decision Below and Rulings of other circuits that Inherently Prejudicial Evidence of Similar Acts by a Criminal Defendant May Be Admitted Only if the Acts are Shown to be U n law fu l......................28 Conclusion .............................................................................30 TABLE OF AUTHORITIES Cases: Allentown Mack Sales & Service v. N.L.R.B., 522 U.S. 3 5 9 (1 9 9 8 ) ......................................................... 18 Anderson v. United States, 417 U.S. 211 (1 9 7 4 ) ......................................................... 26 Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1 9 7 7 ) ......................................................... 18 Attorney General v. IN AC, 530 F. Supp. 241 (S.D.N.Y. 1981), aff’d 668 F.2d 159 (2d Cir. 1982), cert, denied, 459 U.S. 1 1 7 2 (1 9 8 3 )....................................................... 22 vi TABLE OF AUTHORITIES (continued) Cases (continued): Page Cases (continued): Attorney General v. Irish People, Inc., 684 F.2d 928 (D.C. Cir. 1 9 8 2 ) ....................................... 22 Chapman v. United States, 500U .S .453 ( 1 9 9 1 ) .................................................. 26 ,27 Chemical Foundation, Inc. v. United States, 272 U.S. 1 ( 1 9 2 6 ) .................................................. 17n-18n Eagleston v. Guido, 41 F.3d 865 (2d Cir. 1994), cert, denied, 516 U.S. 808 (1 9 9 5 ) ....................................................... 19 Hadnott v. Amos, 394 U.S. 358 (1 9 6 9 ) ............................................................2 Hunter v. Underwood, 471 U.S. 222 ( 1 9 8 5 ) ....................................................... 20 Jacobs v. Seminole County Canvassing Board, No. SC00-2447, 2000 Fla. LEXIS 2404 (Fla. Dec. 12, 2000) ......................................................... 24 Jones v. Plaster, 57 F.3d 417 (4th Cir. 1995) ........................................... 19 Magouirkv. Warden, No. 99-30594 (5th Cir. Jan. 15, 2001) ......................... 28 vii TABLE OF AUTHORITIES (continued) Page Cases (continued): Personnel Adm ’r v. Feeney, 442 U.S. 2 5 6 (1 9 7 9 ) ....................................................... 18 Smith v. Meese, 821 F.2d 1484 (11th Cir. 1987) ................................. 29n United States v. Anderson, 933 F.2d 1261 (5th Cir. 1991) ......................................30 United States v. Armstrong, 517 U.S. 4 5 6 (1 9 9 6 ) ........................ i, 11,16, 17,20,21 United States v. Boards, 10 F.3d 587 (8th Cir. 1993), cert, denied, 512 U.S. 1205 (1 9 9 4 ) ..................................................... 23 United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981) ........................................ 26 United States v. Chemical Foundation, Inc., 5 F.2d 191 (3d Cir. 1925) .......................................... 18n United States v. Cole, 41 F.3d 303 (7th Cir. 1994), cert, denied, 516 U.S. 826 (1 9 9 5 )....................................................... 23 United States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert, denied, 517 U.S. 1 1 4 9 (1 9 9 6 )..................................................... 19 viii TABLE OF AUTHORITIES (continued) Page Cases (continued): United States v. Dothard, 666 F.2d 498 (11th Cir. 1982) ...................................... 30 United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987), cert, dismissed, 487 U.S. 1265 (1 9 8 8 ) ................................................. 2 ,24 United States v. Guerrero, 650 F.2d 728 (5th Cir. 1981) ................................. 29, 30 United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979) ......... ............................ 27 United States v. Hogue, 812 F.2d 1568 (11th Cir. 1987) .................................... 24 United States v. Parham, 16 F.3d 844 (8th Cir. 1993) ........................................... 22 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) .................... 18-19 United States v. Salisbury, 983 F.2d 1369 (6th Cir. 1993) ...................................... 23 United States v. Sullivan, 919 F.2d 1403 (10th Cir. 1990) .................................... 30 IX Page Cases (continued): TABLE OF AUTHORITIES (continued) United States v. Veltmann, 6 F.3d 1483 (11th Cir. 1993) ......................................... 30 Washington v. Davis, 426 U.S. 2 2 9 (1 9 7 6 ) ......................................................... 18 Washington v. Texas, 388 U.S. 1 4 (1 9 6 7 ) ........................................................... 27 Wayte v. United States, 470 U.S. 598 (1 9 8 5 ) ........................................... 16, 18,20 Webb v. Texas, 409 U.S. 95 (1 9 7 2 ) ............................................... i, 27, 28 Statutes and Rules: 18U.S.C. § 13 ............................................................................ 25 18U.S.C. §371 .............................................................................4 18U.S.C. § 3282 ..................................................................... 6n 28 U.S.C. § 1254(1) ................................................................. 1 42U .S.C . § 1973i ......................................................................25 42 U.S.C. § 1973i(c) .........................i, 1, 4,14, 22, 23, 24, 25 42 U.S.C. § 1973i(e) ........... i, 1,4, 14, 15, 22, 23, 24, 25, 26 x Page Statutes and Rules (continued): TABLE OF AUTHORITIES (continued) Ala. Code § 17-10-7 ..................................................................4 Fla. Stat. Ann. § 101.62(b) .................................................... 24 Fed. R. Evid. 804(b)(1) ........................................................... 10 Other Authorities: United States Sentencing Guidelines Manual § 2H2.1 (1997) ........... 1,11,15-16, 17, 25 ,26 Note on Citations to the Record The opinions and orders below are reprinted infra in the Appendix to this Petition and are cited as “A pp .__.” The trial transcript is cited as “T r .__.” The transcript o f the pre-trial hearing on the motion to dismiss the indictment on the ground of selective prosecution is cited as “SP T r .__The transcript o f petitioners’ sentencing is cited as “Sent. T r .__.” xi PETITION FOR A WRIT OF CERTIORARI Petitioners Frank Smith and Connie Tyree respectfully pray that a writ of certiorari be issued to review the judgment o f the United States Court o f Appeals for the Eleventh Circuit. OPINIONS BELOW The opinion of the Court o f Appeals, which is reported at 231 F.3d 800, appears infra, in the Appendix to the Petition (App.) at pages 1 to 38. The Order of the District Court affirming and adopting the Magistrate’s Report and Recommendation on the question o f selective prosecution is not reported; it appears infra at App. 39. The Report and Recommendation of the Magistrate Judge was not reported. It appears infra at App. 40 to 60. JURISDICTION The judgment of the Court o f Appeals was entered on October 25, 2000. This Court has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the due process clause o f the Fifth Amendment, the compulsory process clause o f the Sixth Amendment, and the equal protection clause of the Fourteenth Amendment. In addition, it involves 42 U.S.C. §§ 1973i(c) and 1973i(e). Finally, it involves Section 2H2.1 o f the United States Sentencing Guidelines. Those provisions are reproduced infra at App. 61 to 63. 1 STATEMENT OF THE CASE On January 30, 1997, petitioners Frank Smith and Connie Tyree were charged in a thirteen-count indictment with offenses alleged to have arisen out o f the Novem ber 8, 1994, federal and general election in Greene County, Alabama. Greene County, with a population over 90% black (App. 40-41), has been the site o f fiercely waged, racially polarized political contests since the passage o f the Voting Rights Act o f 1965, which began the process o f enfranchising its black citizens (App. 41). The pre-existing white political power structure resisted the black majority’s pursuit o f political power in a variety o f ways that have previously required judicial intervention, including intervention by this Court. See Hadnott v. Amos, 394 U.S. 358, 362-63 (1969) (finding that the local probate judge had kept qualified black candidates off the general election ballot through discriminatory application o f unprecleared state election laws). See also United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir. 1987) (finding a colorable claim of selective federal prosecution o f “members o f the black majority faction”), cert, dismissed, 487 U.S. 1265 (1988). Today, the rival blocs might be described as, on one side, a black majority faction affiliated with the Alabam a New South Coalition, and, on the other, a formally nonpartisan and biracial group, the Citizens for a Better Greene County (“CBGC”), founded by political opponents o f the black majority faction. See App. 42-44. Absentee voting plays a critical role in Greene County’s electoral politics. As the Magistrate Judge who conducted the selective prosecution hearing in this case found, “ [bjecause of the history o f violence and intimidation associated with efforts by African-Americans to exercise their vote, m any African- Americans continued to be uncomfortable going to the polls to vote, and felt more comfortable voting an absentee ballot in the privacy of their homes.” The result is a significantly 2 higher rate of absentee voting in Greene County compared to counties with predominantly white populations. App. 41. In 1994, 1,429 of the roughly 3,800 votes cast in Greene County were cast absentee. Fewer than 40 o f these were cast by white voters. App. 42.’ A. The Decision To Prosecute the Petitioners The 1994 election for the Greene County Commission was hotly contested. It pitted candidates supported by the black majority against candidates whose support came from the Citizens for a Better Greene County. See App. 44. The investigation that led to this prosecution began even before the election, when politicians in the anti-New South faction contacted the FBI and the U.S. Attorney’s Office to complain about possible voting irregularities. Members o f the black majority faction also complained, after the election, about violations committed by their opponents. App. 44-45. Until October 1995, however, the investigation was essentially dormant, in part because the United States District Court for the Southern District of Alabama had impounded all absentee ballots throughout the state in connection with an unrelated election dispute. App. 45. In the fall o f 1995, the Alabama Attorney General’s Office asked to join the investigation. App. 45. Gregory Biggs, the same state Assistant Attorney General who was leading state court voting prosecutions involving predominantly black Hale and Wilcox Counties, was designated a “Special Assistant United States Attorney” and participated in the investigation and trial o f petitioners. App. 40, 46, 51. At the time o f the events below, the district attorney and Alabama circuit judges with jurisdiction over ‘The Magistrate Judge observed that the small number of whites who cast absentee ballots paralleled the small proportion of the county’s population that was white. App. 42 n. 1. 3 Hale and Wilcox Counties were white; the district attorney and circuit judge with jurisdiction over Greene County were both African-American. App. 41. Because absentee ballots must be witnessed by two individuals under Alabama law (see Ala. Code § 17-10-7), investigators decided to focus on individuals who witnessed multiple absentee ballots, narrowing their scrutiny to the approximately 800 absentee ballots that had been witnessed by one or more persons who had performed the same function on more than fifteen ballots. App. 46-47. Among those who had witnessed a substantial number of ballots were petitioner Tyree, who had witnessed 166, and several members o f the opposing political camp, including Rosie Carpenter, who witnessed approximately 100, Lenora Burks, and Annie Thomas. App. 46; SP Tr. 990-91. Ultimately, petitioners were alleged to have acted illegally with respect to seven of the 1,429 absentee ballots cast in the 1994 general election. Count 1 o f the indictment charged both petitioners with a conspiracy in violation o f 18 U.S.C. § 371; Count 2 charged both petitioners with voting more than once in violation o f 42 U.S.C. § 1973i(e); and Counts 3-13 charged one or both o f the petitioners with providing false information for the purpose o f establishing eligibility to vote in violation of 42 U.S.C. § 1973i(c) with respect to the absentee ballots cast by each of seven Greene County voters. B. The Selective Prosecution Claim Petitioners moved to dismiss the indictment on grounds of selective prosecution. The Magistrate Judge found that petitioners had made a threshold showing of racial or political selectivity and as a result, allowed discovery and conducted a five-day evidentiary hearing. See App. 10-11 n.4. At the hearing, substantial lay and expert testimony was presented. The Magistrate Judge found that “[t]he testimony of 4 the [petitioners]’ handwriting expert . . . established that a number o f other people, aside from the [petitioners], may have been involved in obtaining forged or fraudulent voter signatures on absentee ballots.” App. 48-49. The Magistrate Judge summarized in his opinion the expert’s conclusions that it was “virtually certain,” “highly probable,” or otherwise likely that signatures on seventeen voters’ absentee ballots had been written by neither petitioners nor the voters but by identifiable individuals whom he named. App. 49-50. Buttressing this expert opinion regarding the existence of individuals similarly situated to petitioners was extensive lay testimony by witnesses who reported that they had contacted the FBI or the Alabama authorities with complaints about violations committed by activists in the anti-New South Coalition bloc but that the investigators had not followed up on these indications of voting irregularities, or that to the extent the FBI did investigate allegations made by New South Coalition members, it did so after the filing o f the selective prosecution motion in this case, suggesting that the investigation was conducted for the purpose o f rebutting the motion. See SP Tr. 419-31. The government responded to these complaints during the selective prosecution hearing by insisting that its investigation of the 1994 elections in Greene County was “ongoing.” E.g., SP Tr. 975-76. Ultimately, Magistrate Judge Putnam issued a report and recommendation suggesting that petitioners’ motion be denied. The linchpin o f his analysis with regard to the “selectivity” prong was his belief that the mere presence o f similarly situated but unprosecuted individuals is insufficient: It is not enough to show simply that the defendant has been prosecuted and that some other person like him has not yet been prosecuted. . . . [S]ome are prosecuted presently, and others will be prosecuted in the future. App. 54-55. Thus, although it was 5 certainly true that there is evidence in the record indicating that other people have engaged in fraudulent absentee-ballot voting activities, including forging voters’ signatures and altering ballots [, w]hat has not been shown is that these other individuals will never be prosecuted. App. 57 (emphasis added).2 As for the question o f the government’s motivation, the Magistrate Judge held that race could not be “a motivating factor” in the decision to prosecute petitioners because “ [a] 11 of the other [similarly situated] people identified by the defen dants are themselves African-American, like the defendants.” App. 58. As for the question o f an impermissible political motivation, the Magistrate Judge held that the fact that some similarly situated individuals were members o f neither petitioners’ faction nor the opposing faction rebutted their allegation that they had been singled out. App. 59. The district court adopted the Magistrate Judge’s report and recommendation in its entirety. App. 39. B. The Trial Judge C. Lynwood Smith, Jr. presided over petitioners’ trial, which lasted from September 8 to September 15,1997. During jury selection the judge sustained petitioners’ Batson objection to the government’s peremptory strike o f one black veniremember and seated the juror; the court also held that the government had only “tenuous” reasons for two other strikes, although it declined to find them Batson violations. 2The five-year statute of limitations for offenses arising out of the 1994 election, 18 U.S.C. § 3282, has now run, and it is undisputed that the government has never prosecuted a single white individual nor any individual who is not associated with the New South Coalition for any irregularities arising out of the 1994 Greene County elections. 6 It was undisputed that one or both o f the petitioners were involved with each of the seven absentee ballots that were the subject of the indictment, either as a witness or in filling out “administrative” information such as the voter’s name, address, or polling place on the ballot or prior ballot application request.3 As to some, but not all, of the applications or affidavits, there was testimony that petitioners also provided the voter’s signature. The government called as witnesses six o f the voters whose ballots were at issue. The government did not call the seventh voter, Shelton Braggs, whose vote was the subject o f Counts 12 and 13 of the indictment. Each o f the six voters who testified provided some evidence from which the jury might have concluded that he or she did not ask petitioners to request or to cast an absentee ballot for the voter in the 1994 general election. But the government was forced to rely on several voters’ grand jury testimony because, on the stand in open court, the voters indicated that they had consented to the casting of their votes. For example, voter Michael Hunter testified at trial that he had authorized his brother’s signing his name on the ballot that he had voted; the government introduced Hunter’s testimony before the grand jury to prove lack of consent. Tr. 463-68,479-82. Voter Willie C. Carter testified at trial that he had given petitioner Smith permission to submit an absentee application; the government introduced his testimony before the grand jury to prove lack o f consent. Tr. 565-67, 573-76. The government presented no evidence w ith regard to Shel ton Braggs’ s consent. The government had no known examples 3It is perfectly legal for someone other than the voter to fill out this “administrative” information; the Circuit Clerk testified that on occasion, the staff in her office would insert the necessary information. Tr. 225-26. 7 o f Braggs’s handwriting, and its expert witness testified that Tyree had not signed Braggs’s absentee ballot application. Tr. 756. The only evidence in the record regarding Braggs was that he was a registered voter in Greene County who spent most of his time out o f state and that, during the summer of 1994, he had been Tyree’s boyfriend and had been living with her. Tr. 877-80. On the counts relating to voter Sam Powell, Tyree was prevented from presenting critical evidence by the district court’s exclusion o f a key witness’s testimony: Burnette Hutton, Pow ell’s daughter, had appeared, voluntarily, as a defense witness at the selective prosecution hearing. She testified that she had assisted her father, who was illiterate and whose business affairs she handled, with his absentee ballot in 1994 by signing for him. She also testified that she had told FBI agents who had interviewed her that she had signed her father’s ballot with his consent. See SP Tr. 296-303. At the end o f its cross-examination, the government abruptly demanded that Hutton provide handwriting exemplars in open court. SPTr. 327. The clear import of this demand was to threaten Hutton with prosecution for peijury for sticking to her story. Certainly, the magistrate judge understood that to be the message, since he interrupted the hearing to appoint counsel for her. SPT r. 333. In light o f the government’s threat to open a peijury investigation and her newly appointed attorney’s sense that she had not intelligently waived her Fifth Amendment rights, the magistrate judge announced that “I ’m not going to make her get on the stand now.” The U.S. Attorney responded: Judge, we certainly understand that. And basically the last thing, I think, that we had was the handwriting, w asn’t it[,] Pat [Assistant U.S. Attorney Meadows]? MR. MEADOWS: The handwriting. And I wanted to mark those affidavits so that they could be identified that those 8 are the affidavits that we were talking about, and the application. I haven’t had a chance to do that yet. SP Tr. 345-46 (emphasis added). The magistrate judge refused to require Hutton to testify as to the ballot affidavit: I’m not going to make her do that. It seems to me that that goes more to helping establish the perjury charge, because ultimately what that would be is that would be the basis for saying, this is the affidavit you claim to have signed for your father. Here the handwriting on this affidavit does not match your actual handwriting exemplars, therefore it must be a perjury. SP Tr. 349. He did, however, order Hutton to provide handwriting exemplars. Later, the government’s own expert witness concluded not that Tyree signed Powell’s ballot, but that “the Sam Powell voter signature on the affidavit, compared to the known handwriting o f Burnette Hutton writing the name Sam Powell, again is very good agreement.” Tr. 737. At trial, Sam Powell testified in a somewhat confused fashion. He was unsure o f the year in which he was bom, and his age. He testified that he did not remember giving Hutton permission to fill out his ballot, but he also testified that his daughter had never done anything for him in handling his affairs that he had not told her to do. Tr. 438, 448. Tyree then called Hutton as a defense witness. The government immediately represented that it had an “open” case file in its office regarding Hutton’s peijury. Since it could hardly now claim that she had lied about whether she had signed her father’s affidavit — its own expert witness had concluded that this part o f her testimony was likely truthful — it now represented that it was considering a peijury prosecution on the question whether Hutton had indeed told the Assistant U.S. Attorney this true fact when she was interviewed. Tr. 854-55, 962. In light o f this threat, Hutton, now provided with a second 9 court-appointed lawyer, quite sensibly declined to testify. Tr. 978.4 Since Hutton was thus made unavailable, petitioners sought to introduce her testimony from the selective prosecution hearing under Fed. R. Evid. 804(b)(1). They wished to introduce solely that part of her testimony in which she said she had signed Powell’s affidavit with his consent. The government objected on the grounds that it had not had a full opportunity to cross- examine her. Tr. 975. The district court agreed and excluded Hutton’s entire testimony. Tr. 1052-56. Finally, in addition to the testimony regarding the seven ballots for which petitioners were indicted, the government introduced, over petitioners’ strong and repeated objection, testimony related to nearly one hundred other ballots that Tyree had witnessed, although the prosecutor acknowledged that “I honestly can’t prove anything illegally about these,” and that “I can’t prove that they’re improper.” Tr. 206, 207. Following the close o f evidence, the district court instructed the jury that in order to convict the petitioners it had to find, beyond a reasonable doubt, that they had “knowingly and willfully signed” a particular application or affidavit “without the knowledge and consent o f that voter.” But it almost immediately undermined that statement with an instruction regarding so-called “proxy voting” under state law: [Tjhere is no such thing in Alabama as proxy absentee voting.. . . Further, only the absentee voter himself, or herself, should sign the affidavit on the back side o f the return-mail or affidavit envelope, addressed to the absentee election manager. 4Despite the government’s representation, Hutton was never prosecuted for any perjury. 10 Tr. 1289. After deliberating, the jury returned a verdict convicting petitioner Smith on all seven counts with which he had been charged and petitioner Tyree on all eleven counts with which she had been charged. D. Petitioners ’ Sentencing Over petitioners’ objection that the court had initially advised them prior to trial that the Base Level for their offenses would be 6, Sent. Tr. 3-6, the court concluded that the appropri ate Base Level was 12. See U.S. Sentencing Commission, Guidelines Manual § 2H2.1(a)(2) (1997). The court enhanced that Base Level by 6 additional levels for each petitioner, yielding an Offense Level of 18. The court then sentenced each petitioner to 33 months of imprisonment (the maximum permissible under the Guideline Imprisonment Range), two years o f supervised release, forty hours o f community service, and the required $50.00 per count assessment fee. E. The Court o f Appeals ’ Opinion The Court of Appeals affirmed petitioner Smith’s conviction on all counts, and affirmed petitioner Tyree’s conviction on ten of the eleven counts with which she had been charged. (It reversed her conviction on Count 12 — involving the absentee ballot application o f Shelton Braggs — for insufficient evidence.) This Petition involves the Court o f Appeals’ rulings on five issues: the selective prosecution claim; the need to prove lack o f voter consent as an element o f the offenses charged; the exclusion o f Burnette Hutton’s testimony; the calculation o f the base offense level under the Sentencing Guidelines; and the admission o f evidence about other ballots witnessed by Tyree. 1. Selective Prosecution. On the question o f selective prosecution, the Court o f Appeals interpreted this Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), to require petitioners to establish the two components o f a 11 selective prosecution claim — discriminatory effect and discriminatory motive — by “clear and convincing evidence,” App. 11, rather than by a preponderance o f the evidence. With respect to the question o f discriminatory effect, the Court o f Appeals acknowledged that “the mere possibility o f future prosecutions, without more, is not a sufficient basis upon which to find that the requisite discriminatory effect or selectivity showing has not been clearly proven,” App. 12, thus holding that the Magistrate Judge had applied the wrong legal standard in discounting the evidence he had found of similarly situated but unprosecuted individuals. But rather than remand for application o f the correct legal standard, the Court o f Appeals decided to conduct its own survey o f the evidence — which necessarily omitted any judgments o f witness credibility — and concluded that petitioners had failed to show the existence o f similarly situated individuals or an improper motive. See App. 20-21 n.12. The Court o f Appeals announced a stringent standard for identifying “similarly situated” individuals for purposes o f a selective prosecution claim: [W]e define a “similarly situated” person . . . as one who engaged in the same type o f conduct, which means that the comparator committed the same basic crime in substantially the same manner as the defendant — so that any prosecution o f that individual would have the same deterrence value and would be related in the same way to the Government’s enforcement priorities and enforcement plan — and against whom the evidence was as strong or stronger than that against the defendant. App. 15-16. In light o f this newly derived standard, the Court o f Appeals held that petitioners had to identify other individuals who voted twice or more in a federal election by applying for and casting fraudulent absentee 12 ballots, and who forged the voter's signature or knowingly gave false information on a ballot affidavit or application, and that the voter whose signature those individuals signed denied voting, and against whom the government had evidence that was as strong as the evidence it had against Smith and Tyree. App. 16 (emphasis in original). The Court o f Appeals acknowledged that the record from the selective prosecution hearing included a dozen examples where an individual other than one o f the petitioners witnessed ballots “in the name of [a] voter who stated” to the FBI during its investigation “that he did not vote.” App. 18-19. Nonetheless, the Court of Appeals concluded that although “[tjhose individuals may have committed the same type o f crimes as the defendants,. . . they are not similarly situated with respect to the number of crimes they committed,” because, while some o f them had fraudulently witnessed two ballots, Tyree had witnessed six and Smith had witnessed three. See id. The Court o f Appeals also rejected both the direct and circumstantial evidence o f racial bias presented by petitioners with respect to the government’s discriminatory motive. The direct evidence concerned the prosecutor’s Batson violation, see supra page 6. The circumstantial evidence concerned the involvement of the Alabama Attorney General in the federal prosecution. State prosecutors pursued state-court prosecutions against black defendants in those counties where the circuit court judges and local district attorneys were white, but federal charges in Greene County, where both the circuit court judge and the local prosecutor were black. The foreseeable, and arguably intended, consequence of this change in forums on the racial composition o f the jury pool meant that rather than presenting its case to a heavily black jury in a county where the jurors were likely to be familiar with the nature o f Greene County politics and high levels o f absentee voting, the 13 state’s pursuing a federal prosecution instead insured an overwhelmingly white jury pool drawn from counties with very different histories of absentee voting — juries whose members were therefore likely to be unfamiliar with, and suspicious of, customary Greene County politics. The Court of Appeals rejected this evidence, concluding that the allegation o f forum manipulation “rests . . . on an assumption that black defendants will not be treated in a just manner in federal court, an assumption which we reject.” App. 22. With respect to the district court’s finding of a Batson violation, the Court o f Appeals stated that “[t]he only thing the [trial] court’s rejection o f the government’s strike reveals is that the court did not agree with the government’s observations [about the prospective juror],” App. 22. The Court o f Appeals ignored the fact that the only legal basis for using such a “disagreement” to overcome the government’s use o f its peremptory challenge was a finding that the challenge had been used in a racially discriminatory manner and reasoned that, in any event, the government’s misuse o f its peremptory challenge provided “no basis for concluding that the underlying prosecution is motivated by bias.” Id. 2. Lack o f Voter Consent. Petitioners had argued that the district court’s charge did not clearly require the jury to find that ballots had been cast without a voter’s consent in order to find a violations of 42 U.S.C. §§ 1973i(c) or 1973i(e). The Court of Appeals held, first, that lack of voter consent was not a necessary element o f either offense. App. 23,30-31. Thus, according to the court below, even if a voter expressly told another person to sign his absentee ballot affidavit, it would be a violation o f federal criminal law, because, as a matter o f Alabama state law a ballot that a voter has directed another individual to fill out on his behalf is not valid. See App. 25 (upholding Tyree’s conviction for signing Braggs’ 14 ballot regardless o f whether the ballot was cast at his direction “because she is not Braggs.”). The Court o f Appeals acknowledged that Counts 1 and 2 o f the indictment — the conspiracy charge and the charge of voting more than once in violation of § 1973i(e) — had alleged that defendants had cast the identified ballots without the relevant voters’ “knowledge and consent,” but it held that even if this required the jury to be instructed on the question, the district court’s charge was adequate when viewed “in its entirety.” App. 33. 3. Exclusion o f Hutton testimony. The Court o f Appeals rejected petitioner Tyree’s claim that the government’s threats to prosecute Burnette Hutton for perjury at both the selective prosecution hearing and the trial had deprived her o f her constitutional right to present witnesses in her defense. The Court did not comment at all on the government’s behavior, but simply affirmed the district court’s exclusion of Hutton’s testimony on the basis that the government “had not had a full opportunity to cross-examine Hutton.” App. 30. 4. Calculation o f the Base Offense Level Under the Sentencing Guidelines. The Court of Appeals affirmed the district court’s selection o f a Base Offense Level o f 12, rather than 6. The relevant sentencing guideline, Section 2H2.1 (a)(2)- (3), provides for a base offense level of: (2) 12, i f the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means, except as provided in (3) below; or (3) 6, if the defendant (A) solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, vote for or against a particular candidate, or register to vote, (B) gave false information to establish eligibility to vote, or (C) voted more than once in a federal election. 15 Although the language of § 2H2.1(3)(B) and (C) tracked exactly the language of the statutes under which petitioners were convicted, the Court of Appeals held, without citation to any authority, that “ [t]he language o f (a)(2) applies in a case where forgery, fraud, theft, bribery, deceit, or other means are used to effect the vote of another person, or the vote another person was entitled to cast.” App. 34. It restricted the language o f (a)(3) to cases involving an individual who “acts unlawfully only with respect to his own vote.” Id. 5. Admission o f evidence about Tyree’s witnessing other ballots. Notwithstanding the prosecutor’s frank admission that “I can’t prove anything illegalf] about these,” the Court o f Appeals approved the admission of testimony about 95 additional ballot affidavits witnessed by petitioner Tyree as “relevant to the conspiracy charge.” App. 28. REASONS FOR GRANTING THE WRIT I. This Court Should Grant Certiorari to Clarify the Standards to be Applied to Claims of Selective Prosecution and to Resolve a Conflict With Both this Court’s Decisions and Those of Other Circuits In United States v. Armstrong, 517 U.S. 456 (1996), this Court squarely held that “[t]he requirements for a selective- prosecution claim draw on ‘ordinary equal protection standards.’” Id. at 465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). And it further insisted that “ [t]he similarly situated requirement does not make a selective prosecution claim impossible to prove.” Id. at 466. The Court of Appeals’ decision in this case flouts both those principles and conflicts with the approaches taken by other Courts o f Appeals. 16 A. The Eleventh Circuit’s Imposition of the “Clear and Convincing Evidence” Standard Conflicts with this Court’s Decisions and the Decisions of Other Courts of Appeals The Court of Appeals drew from this Court’s statement in Armstrong that, “in order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary,” id. at 465, the conclusion that defendants in selective prosecution cases must prove discriminatory purpose and effect not merely by a preponderance of the evidence but by the higher standard of clear and convincing evidence: Clear evidence sounds like more than just a preponderance, and evidence that is clear will be convincing. So, we interpret Armstrong as requiring the defendant to produce “clear” evidence or “clear and convincing” evidence which is the same thing. App. 11. Not only does this reasoning ignore the fact that the standard of proof for establishing a selective prosecution claim was not at issue in Armstrong, but it conflates a word used by this Court in a very different context5 with well-established 5In Armstrong, this Court wrote that “‘the presumption of regularity supports’ . . . prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties,” ’ 517 U.S. at 464, quoting from Chemical Foundation, Inc. v. United States, 272 U.S. 1, 14-15 (1926). But the Court did not announce the burden of proof standard and, in fact, went on explicitly to note that, notwithstanding the presumption of regularity, “the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification,’ Oyler v. Boles, 368 U.S. 448, 456 (1962).” 517 U.S. at 464. In Chemical Foundation itself, the 17 legal terms o f art. As Justice Scalia’s opinion for the Court in Allentown Mack Sales & Service v. N.L.R.B., 522 U.S. 359,376 (1998), decisively noted: “Preponderance o f the evidence” and “clear and convincing evidence” describe well known, contrasting standards o f proof. To say . . . that a preponderance standard demands “clear and convincing manifestations, taken as a whole” is to convert that standard into a higher one. In fact, no other court has ever, in any context, required litigants to prove an equal protection violation by clear and convincing evidence, rather than by a preponderance. Wayte’s citation of Personnel Adm ’r o f Mass. v. Feeney, 442 U.S. 256 (1979); Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); and Washington v. Davis, 426 U.S. 229 (1976), as the “prior cases” that set out the “standards” to be followed, 470 U.S. at 608-09, makes clear that the normal preponderance of the evidence standard, applied in those cases, should apply to claims o f selective prosecution as well. The Eleventh Circuit’s ruling here clearly conflicts with the approach taken by the Ninth Circuit in United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), appeal after issue was whether actions taken by a State Department official to whom the President had delegated statutory authority were proper. The Court there discussed the presumption of regularity only after concluding that there was no reason to overturn the factual determination of the lower courts that the evidence failed to establish misrepresentations or fraud. 272 U.S. at 14. Despite its reference to the need for “clear evidence” to overcome the presumption of regularity, however, the Court did not address the burden of proof because the Circuit Court of Appeals had found “no evidence” at all to support the claim. United States v. Chemical Foundation, Inc., 5 F.2d 191,213 (3d Cir. 1925). 18 remand sub nom. United States v. Alcaraz-Peralta, 27 F.3d 439 (9th Cir. 1994). There, the Ninth Circuit stated that “[i]f the district court finds by a preponderance o f the evidence that the prosecutor's charging or plea bargaining practice has a discriminatory impact, it must next determine whether the prosecutor was motivated by a discriminatory purpose in charging the defendant who is before the court,” 955 F.2d at 1302 (emphasis added) and concluded that if, “after giving the government ample opportunity to present its side o f the case, the district court finds by a preponderance o f the evidence that there has been intentional discrimination on the basis o f a suspect classification, it may then fashion a remedy to address the constitutional violation.” Id. (emphasis added). The Eleventh Circuit’s approach in this case also conflicts with the general use o f the preponderance of the evidence standard in cases involving equal protection claims against prosecutors or other law enforcement officials decided by the Second, Fourth, and Eighth Circuits. See, e.g., United States v. Darden, 70 F.3d 1507, 1531 (8th Cir. 1995) (in ruling on a Batson challenge, the trial court “must decide ‘whether the party whose conduct is being challenged has demonstrated by a preponderance o f the evidence that the strike would have nevertheless been exercised even if an improper factor had not motivated in part the decision to strike’”), cert, denied, 517 U.S. 1149 (1996), quoting Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995); Eagleston v. Guido, 41 F.3d 865, 870 (2d Cir. 1994) (trial court applied a preponderance o f the evidence standard to equal protection claim alleging sex discrimination in police department’s enforcement o f policy regarding domestic violence), cert, denied, 516 U.S. 808 (1995). B. The Standard Adopted Below for Identifying “Sim ilarly S ituated” Individuals When Adjudicating a Selective Prosecution Claim Departs Dramatically from Prior Caselaw and Forecloses the Claim as a Practical Matter 19 In its decisions articulating the elements o f a selective- prosecution claim, this Court has repeatedly held that defendants must show that there were “similarly situated” individuals who were not prosecuted. See, e.g., Armstrong, 517 U.S. at 465; Wayte, 470 U.S. at 605. The phrase is “similarly situated,” not “identically situated in every respect,” as this Court’s decisions show. Armstrong discussed this Court’s unanimous decision in Hunter v. Underwood, 471 U.S. 222 (1985), to illustrate the operation o f the “similarly situated” requirement: In Hunter, we invalidated a state law disenfranchising persons convicted o f crimes involving moral turpitude. Our holding was consistent with ordinary equal protection principles, including the similarly situated requirement. There was . . . indisputable evidence that the state law had a discriminatory effect on blacks as compared to similarly situated whites: Blacks were by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under the law in question . . . . Armstrong, 517 U.S. at 466-67. O f course, blacks and whites were not identically situated in any respect except that they were citizens o f Alabama subject to the disenfranchisement provision at issue in Hunter. Like the plaintiffs in Hunter — Victor Underwood (who was white) and Carmen Edwards (who was black) — everyone, black or white, who was convicted of one o f the listed crimes was disenfranchised. The probability o f disenfranchisement for both blacks and whites in this group was thus the same. The statistics cited by this Court were based upon the group of all citizens. But since this group includes both those who may have committed the specified offenses and those who did not, Hunter and Armstrong demonstrate that “similarly situated” cannot be synonymous with “identical.” “Similar” means “comparable” in relevant ways. 20 In this case, however, the Eleventh Circuit invented a “similarly situated’' requirement that, contrary to this Court’s insistence that the requirement “does not make a selective prosecution claim impossible to prove,” Armstrong, 517 U.S. at 466, does precisely that. It requires not only that a defendant identify other individuals who “committed the same basic crime in substantially the same manner as the defendant,” but that a defendant show that prosecution of these other individuals “would have the same deterrence value and would be related in the same way to the Government's enforcement priorities and enforcement plan” and that the evidence against these individuals “was as strong or stronger than that against the defendant.” App. 16. There is simply no way that any defendant could prove what the Eleventh Circuit demands. Even once a defendant obtains discovery — a substantial hurdle that the petitioners in this case overcame — it is unclear how he can ever establish the relative deterrence values of different prosecutions, the actual scope of the Government’s enforcement priorities or, without the ability to conduct a complete criminal investigation and trial itself, the relative strength of various cases before hypothetical juries. The utter impossibility of the Eleventh Circuit’s new standard is powerfully demonstrated by its application in this case. Petitioner Smith was convicted o f illegalities with regard to three voters’ absentee ballots. Petitioner Tyree was convicted o f illegalities with regard to six voters’ ballots. And yet, the Eleventh Circuit held that they were not similarly situated with respect to other individuals who had arguably committed precisely the same offense with respect to two ballots. See App. 18-19. Under such a standard, there will virtually never be “similarly situated” individuals. Discussions o f the “similarly situated” requirement by other Courts o f Appeals take a markedly different tack. The 21 D.C. Circuit, for example, viewed the test as whether “others similarly situated have not generally been proceeded against because o f conduct o f the type forming the basis of the charge against [the defendants.]” Attorney General v. Irish People, Inc., 684 F.2d 928 (D.C. Cir. 1982) (emphasis added) (quoting Attorney Gen. v. INAC, 530 F. Supp. 241,254 (S.D.N.Y. 1981), a ffd66 8 F.2d 159 (2d Cir. 1982)), cert, denied, 459 U.S. 1172 (1983). And the Eighth Circuit, in a prosecution for multiple voting, rejected other kinds o f irregularities as not “sufficiently similar” to the offenses with which defendants were charged, but suggested that other acts of “absentee ballot forgery or fraud” would have been. United States v. Parham, 16 F.3 d 844, 846 & n.3 (8th Cir. 1993). II. This Court Should Grant Certiorari to Resolve a Conflict Among the Circuits Over the Construction of Two Criminal Provisions of the Voting Rights Act The substantive offenses with which petitioners were charged are defined by 42 U.S.C. § 1973i(c) and 42 U.S.C. § 1973i(e). Section 1973i(c) provides, in pertinent part, that “ [w]hoever knowingly or willfully gives false information as to his name, address, or period o f residence in the voting district for the purpose o f establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting” shall be guilty o f a federal crime. In this case, one or both o f the petitioners were alleged to have submitted absentee ballot applications and absentee ballots in the names of seven voters. A plain reading o f the statutory language suggests that a person who facilitates the casting o f an absentee ballot at the request of another does not give false information. But, according to the Eleventh Circuit, “nothing in § 1973i(c) requires that the information be given without the voter's permission.” App. 23. Thus, according to the Eleventh Circuit, even if a qualified voter expressly requests that another person file an absentee 22 ballot request for him, complying with that request constitutes a federal crime. Similarly, the Eleventh Circuit held in this case that section 1973i(e), which makes it a crime to “vot[e] more than once” in a federal election, is violated if an individual fills out and signs another individual’s absentee ballot even if the qualified voter affirmatively consented to that being done: “What we have already held about [lack o f a voter’s consent] not being a necessary element o f the § 1973i(c) offense applies as well to the § 1973i(e) offense.” App. 30-31. The approach taken below squarely conflicts with the view taken by the other Courts o f Appeals to have reached this question. In every other reported case involving prosecutions under § 1973i(c) or (e) for absentee ballot irregularities,6 courts have assumed that the government must show that applications were filed or votes were cast without the consent o f the nominal voter. See, e.g., United States v. Cole, 41 F.3d 303, 308 (7th Cir. 1994) (affirming a conviction on the ground that “the absentee voters were not expressing their wills or preferences”), cert, denied, 516 U.S. 826 (1995); United States v. Boards, 10 F.3d 587, 590 (8th Cir. 1993) (finding “ample evidence from which a reasonable jury could find Boards . . . marked the voter’s absentee ballot without authorization in violation o f 42 U.S.C. § 1973i(c)”), cert, denied, 512 U.S. 1205 (1994). In fact, the Sixth Circuit held that section 1973i(e) would be unconstitutionally vague if it were applied to conduct that did not involve the lack o f a nominal voter’s consent. See United States v. Salisbury, 983 F.2d 1369, 1379 (6th Cir. 1993). Prior prosecutions in the Eleventh Circuit assumed precisely the same 6 The exception involves prosecutions under a different part of § 1973i(c) — the part that makes it a crime to pay or offer to pay a voter for his or her vote. Lack of consent to be paid is obviously irrelevant to a crime complete as of the time an offer to pay is made. 23 lack-of-consent requirement. See, e.g., United States v. Gordon, 817 F.2d at 1542; United States v. Hogue, 812 F.2d 1568, 1573-74(11th Cir. 1987). The construction adopted below is not merely in conflict with the pre-existing caselaw: it is a wrongheaded interpretation o f Congressional intent. Consider, for example, the thousands o f absentee ballot applications in the 2000 Florida presidential election on which Republican Party representatives inserted voter identification numbers that had inadvertently been left off preprinted forms. Even though these partisan workers were not among the categories o f persons authorized under Florida law to submit absentee ballot requests, see Fla. Stat. Ann. § 101.62(l)(b), the Florida Supreme Court held that these applications were valid since there was no “fraud, gross negligence, or intentional wrongdoing.” Jacobs v. Seminole County Canvassing Board, No. SC00-2447, 2000 Fla. LEXIS 2404, at *11 (Fla. Dec. 12, 2000). But under the Eleventh Circuit’s interpretation in this case, the actions were violations o f §§ 1973i(c) or 1973i(e). No one seriously expects United States Attorneys in Florida to bring prosecutions under these sections against the officials and party workers who filled in additional information on ballot applications that reflected the will and consent of qualified voters. The reason is obvious: Congress never meant to criminalize such conduct, and neither statute should be read to reach such a result. In this case, the jury’s verdict is entirely consistent with its having believed either that the voters involved consented to petitioners’ involvement in their absentee ballot applications and absentee ballots or that petitioners believed in good faith that they had that consent. Indeed, only such a belief could support the ju ry’s convicting petitioner Tyree on Counts 12 and 13 o f the indictment, involving the application and ballot of Shelton Braggs since, as the Eleventh Circuit itself acknowledged, there was absolutely no evidence in the record o f lack of consent. 24 This Court should grant certiorari both to resolve the conflict among the circuits and to prevent 42 U.S.C. § 1973i from becoming an “assimilative crimes” provision, see 18 U.S.C. § 13, under which individuals may be federally prosecuted for violating technical provisions o f state election law to carry out a voter’s wishes. III. This Court Should Grant Certiorari to Address the Proper Application of the Sentencing Guidelines to the Offenses with which Petitioners were Charged Appendix A to the Sentencing Guidelines makes § 2H2.1 applicable to a range o f voting-related offenses, including 42 U.S.C. §§ 1973i(c) and 1973i(e), under the general heading of “Obstructing an Election or Registration.” App. 63. That section of the Guidelines establishes three significantly different base offense levels: (1) 18, if the obstruction occurred by use o f force or threat o f force against person(s) or property; or (2) 12, if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means, except as provided in (3) below, or (3) 6, if the defendant (A) solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, vote for or against a particular candidate, or register to vote, (B) gave false information to establish eligibility to vote, or (C) voted more than once in a federal election. U.S. Sentencing Commission, Guidelines Manual § 2H2.1 (1997) (emphasis added). The courts below acted as if § 2H2.1(a)(3) simply did not exist, and completely ignored the exceptions clause o f § 2H2.1(a)(2). The substantive offenses of which petitioners were convicted were (1) providing false information to establish eligibility to vote, 42 U.S.C. § 1973i(c) (Counts 3-13), and (2) 25 voting more than once in a federal election, 42 U.S.C. § 1973i(e) (Count 2). The conspiracy in which they were alleged to have been engaged was a conspiracy to commit those two substantive offenses. Clauses (3)(B) and (C) quoted above, providing for a base offense level o f 6, track exactly the language of the statutory provisions under which petitioners were convicted. Thus, the applicable Sentencing Guideline clearly provides that the particular forms o f fraud or deceit of which petitioners were convicted warrant a base level of 6, even though other forms o f forgery, fraud, or deceit may carry a higher Base Offense Level. See, e.g., Anderson v. United States, 417 U.S. 211,214-15 (1974) (casting fictitious votes on voting machines and then destroying poll slips to conceal the fraud); United States v. Bowman, 636 F.2d 1003, 1006-07 (5th Cir. 1981) (paying voters to vote for particular candidates). The Court o f Appeals simply ignored the identity between the statutory language o f the offense for which petitioners were convicted and the language o f § 2H2.1(a)(3)(B) and (C). Instead, without citation to any authority, it fashioned a distinction not reflected in the words o f the Guidelines: The language o f (a)(2) applies in a case where forgery, fraud, theft, bribery, deceit, or other means are used to effect the vote o f another person, or the vote another person was entitled to cast. By contrast, the language o f (a)(3) addresses an individual who acts unlawfully only with respect to his own vote—an individual who accepts payment to vote, gives false information to establish his own eligibility to vote, or votes more than once in his own name. The offenses for which Smith and Tyree were convicted involved the votes o f other individuals . . . . App. 34. In Chapman v. United States, 500 U.S. 453, 457 (1991), this Court noted that the applicable Sentencing Guideline provision “parallel[ed] the statutory language.” See also id. at 26 470 n.6 (Stevens & Marshall, JJ., dissenting). This Court should grant certiorari to make clear that when a sentencing court is faced with different base offense levels, and the Sentencing Commission has distinguished among statutory offenses by using their language in establishing base offense levels, the sentencing court is bound to apply the base offense level identified by the Sentencing Commission. IV. This Court Should Grant Certiorari to Restore the Protections of the Fifth and Sixth Amendments to Petitioner Tyree Petitioner Tyree has a constitutional right, under the compulsory process clause o f the Sixth Amendment and the due process clause o f the Fifth Amendment to “present [her] own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19 (1967). “ [Substantial government interference ^ ith a defense witness’s free and unhampered choice to testify violates due process” rights o f the defendant. United States v. Hammond, 598 F.2d 1008, 1012 (5th Cir. 1979). In Webb v. Texas, 409 U.S. 95,98 (1972), this Court held unanimously that when threats of prosecution for peijury “effectively drove [a critical] witness off the stand,” the defendant was deprived of “due process of law under the Fourteenth Amendment.” In this case, the government substantially interfered with Tyree’s ability to present the testimony o f Burnette Hutton. Hutton was prepared to testify that she had signed her father’s absentee ballot affidavit (he was illiterate) with his consent. That testimony, if believed, might have led the jury to acquit Tyree on Count 7, which involved her allegedly having signed Powell’s absentee ballot application. Presented with this possibility by her testimony at the selective prosecution hearing, the government reacted by both trying to intimidate Hutton on the stand — through the extraordinary stratagem of demanding that she provide handwriting exemplars in public and without notice — and threatening to indict her for peijury. In the end, 27 the government did not indict her for perjury; indeed, handwriting exemplars later obtained disproved the government’s hypothesis that she had lied about signing the ballot affidavit. Nevertheless, the government prevented H utton’s sworn pre-trial testimony from being presented to the jury on the ground that its cross-examination had been curtailed, albeit by its own conduct. Given the government’s threats at the selective prosecution hearing, Hutton was virtually compelled to invoke her Fifth Amendment rights and terminate her testimony. Thus, Tyree was deprived o f a potentially critical witness on the question of Sam Powell’s consent. The federal courts routinely refuse to allow criminal defendants to prevent the introduction of prior testimony pursuant to Fed. R. Evid. 804(b)(1) on the ground that did not have the opportunity for cross-examination where the witness’ s unavailability for cross-examination resulted from intimidation by the defendant. See, e.g., Magouirk v. Warden, No. 99-30594 (5th Cir. Jan. 15, 2001) and cases cited. Consistent with Webb, the same rule should apply to the government. Accordingly, this Court should grant certiorari to reaffirm the rule ignored by the Eleventh Circuit: when the government intimidates a defense witness, driving that witness from the stand and preventing the jury from hearing testimony that the government’s own expert acknowledges to be truthful, it violates a defendant’s rights under the Sixth Amendment and the due process clause of the Fifth Amendment. V. The Court Should Grant Review to Resolve the Conflict Between the Decision Below and Rulings of other Circuits that Inherently Prejudicial Evidence of Similar Acts by a Criminal Defendant May Be Admitted Only if the Acts are Shown to be Unlawful Petitioners were charged with crimes relating to the casting o f seven voters’ absentee ballots. Nevertheless, over their 28 strong objection on grounds of both relevance and prejudice, the prosecution introduced evidence regarding at least 95 other absentee ballots witnessed by Connie Tyree. The prosecutor conceded that the government could not prove “anything” illegal, or even “improper” about these ballots.7 The inherently prejudicial danger of this evidence — the suggestion that anyone who witnessed as many ballots as Tyree did must have been doing something wrong — is obvious. But the Court of Appeals held the evidence was relevant to the conspiracy count o f the indictment, even though the conduct was legal. This holding conflicts with the decisions o f other Circuits requiring that evidence that purports to show that defendants have committed similar acts may be admitted only if the jury is provided with a basis for concluding that the other acts were unlawful and were similar to those charged along the relevant dimension. Thus, in United States v. Guerrero, 650 F.2d 728 (5th Cir. 1981), the court reversed the conviction o f a doctor who had been charged with dispensing controlled medications outside the usual course of professional medical practice because he had been prejudiced by the introduction o f evidence regarding other prescriptions as to which no illegality or impropriety was shown. “The common characteristic” rendering such evidence relevant and admissible, the Fifth Circuit held, “must be the significant one for the purpose o f the inquiry at hand.” Id. at 733 (internal citations omitted). Sales that were not Indeed, encouraging and assisting absentee voting is a constitutionally protected activity. See, e.g., Smith v. Meese, 821 F.2d 1484 (11th Cir. 1987). The Magistrate Judge found, as a matter of fact, that absentee voting in Greene County was critical to black citizens' ability to participate in the electoral process. App. 41. 29 intentionally outside the usual practice were not “in any way relevant” to the question o f the intent behind the charged sale. Id at 734. Guerrero was followed in United States v. Anderson, 933 F.2d 1261 (5th Cir. 1991), where the Court o f Appeals directed the trial court to determine whether the evidence o f other fires was sufficient to permit the jury to conclude, by a preponderance, that they were arson incidents in which the defendant was involved. The same principles have been given application by other panels o f the Eleventh Circuit. See, e.g., United States v. Veltmann, 6 F.3d 1483, 1499 (11th Cir. 1993) (“For extrinsic offenses to be relevant to an issue other than character, they must be shown to be offenses, and must also be similar to the charged offense”) (emphasis in original); United States v. Dothard, 666 F.2d 498, 501-05 (11th Cir. 1982). See also United States v. Sullivan, 919 F.2d 1403, 1416-17 (10th Cir. 1990) (general assertion by prosecutor that evidence was relevant because it was part o f history o f conspiracy was insufficient justification for its admission). In this case, the courts below neither determined that the jury could have found that Tyree improperly witnessed the other ballots — a finding it could hardly have made in light o f the prosecutor’s concession — nor weighed the probative value of the evidence against the risk o f prejudice. Here that risk was realized. This Court should grant the writ to resolve the conflict between the decision below and those cited in the preceding paragraph. CONCLUSION The petition for a writ o f certiorari should be granted. 30 Respectfully submitted, Elaine R. Jones Director-Counsel Norman J. Chachkin (counsel o f 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. Karl an 559 Nathan Abbott Way Stanford, California 94305 (650) 725-4851 APPENDIX App. 1 Opinion of the Court of Appeals [Caption Omitted in Printing] (October 25,2000) Before CARNES, BARKETT and MARCUS, Circuit Judges. CARNES, Circuit Judge: This appeal arises out o f the convictions o f Frank Smith and Connie Tyree on a number o f federal criminal counts relating to violation o f absentee voter laws in connection with the November 1994 general election in Greene County, Alabama. The two of them raise numerous issues on appeal, contending that: (1) the indictment should have been dismissed on the ground o f selective prosecution based on race and political affiliation; (2) there was insufficient evidence to convict Tyree on two of the counts o f giving false information in violation o f 42 U.S.C. § 1973i(c); (3) the United States Sentencing Guidelines were misapplied in sentencing Smith and Tyree; (4) they were convicted on multiplicitous counts; (5) certain evidence relating to absentee ballot affidavits witnessed by Tyree should not have been admitted into evidence; (6) the jury was erroneously instructed regarding Alabama law and "proxy" voting; and (7) Tyree was denied her constitutional right under the Fifth and Sixth Amendments to present witnesses in her defense. For the reasons set forth below, we conclude that all o f Smith's arguments miss the mark, and his convictions and sentence are due to be affirmed in all respects. All but one o f Tyree's arguments miss. Her conviction is due to be affirmed except on Count 12; reversal o f that part o f her conviction makes it necessary that she be re-sentenced. App. 2 I. PROCEDURAL HISTORY In January o f 1997, Frank Smith and Connie Tyree were charged in a thirteen-count indictment with offenses arising out o f the November 8, 1994 general election in Greene County, Alabama. Among the offices to be filled in that election was the office o f Member o f the United States House o f Representatives, a fact which supplies a necessary element o f the federal charges. Count 1 o f the indictment charged Smith and Tyree with conspiring, in violation of 18 U.S.C. § 371, to vote more than once in a general election by applying for and casting fraudulent absentee ballots in the names o f voters without the voters' knowledge and consent, in violation o f 42 U.S.C. § 1973i(e), and with conspiring to knowingly and willfully give false information as to a voter's name and address for the purpose o f establishing the voter's eligibility to vote in the November 8, 1994 general election, in violation o f 42 U.S.C. § 19731(c).* 1 ‘42 U.S.C. § 1973i(e) reads as follows: (e) Voting more than once (1) Whoever votes more than once in an election referred to in paragraph (2) shall be fined not more than $10,000 or imprisoned not more than five years, or both. (2) The prohibition of this subsection applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico. App. 3 (3) As used in this subsection, the term "votes more than once" does not include the casting of an additional ballot if all prior ballots of that voter were invalidated, nor does it include the voting in two jurisdictions under section 1973aa- 1 of this title, to the extent two ballots are not cast for an election to the same candidacy or office. 42 U.S.C. § 1973i(e). 42 U.S.C. § 1973i(c) reads as follows: (c) False information in registering or voting; penalties Whoever knowingly or willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico. 42 U.S.C. § 1973i(c). The terms "vote" and "voting" are defined as follows: App. 4 Count 2 charged Smith and Tyree with voting more than once and aiding and abetting each other and others in the same offense, in violation o f 42 U.S.C. § 1973i(e) and 18U.S.C. §2. That count alleged that Smith and Tyree voted the absentee ballots o f Shelton Braggs, Willie C. Carter, Jr., Cassandra Lee Carter, Sam Powell, Eddie Gilmore, Angela Hill and Michael Hunter without the knowledge and consent o f those voters. Counts 3 through 13 charged either Smith or Tyree or both with giving false information on an application for absentee ballot or on an affidavit o f absentee voter concerning the names and addresses of Hill, Gilmore, Willie Carter, Cassandra Carter, Braggs and Powell, and with aiding and abetting each other and others in the same offense in violation o f 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2.2 all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election. 42 U.S.C. § 19731 (c)(1). 2 Specifically, Counts 3 and 4 charged Tyree with giving and aiding and abetting others to give false information on an application for an absentee ballot and on an affidavit of absentee voter, respectively, concerning the name and address of Angela Hill, in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 5 charged Tyree with giving and aiding and abetting others to give App. 5 Smith and Tyree, who are black, filed a m otion to dismiss the indictment on the ground of selective prosecution on the basis o f race and political affiliation. After a four and a half day evidentiary hearing, the magistrate judge recommended that the motion to dismiss be denied. Adopting that recommendation, false information on an application for absentee ballot concerning the name and address of Eddie T. Gilmore, in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 6 charged Smith and Tyree with giving and aiding and abetting others to give false information on an affidavit of absentee voter concerning the name and address of Gilmore, in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 7 charged Tyree with giving and aiding and abetting others to give false information on an affidavit of absentee voter concerning the name of Sam Powell, in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 8 charged Smith with giving and aiding and abetting others to give false information on an application for absentee ballot concerning the name and address of Cassandra Carter, in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 9 charged Smith and Tyree with giving and aiding and abetting others to give false information on an affidavit of absentee voter concerning the name and address of Cassandra Carter, in violation o f 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 10 charged Smith with giving and aiding and abetting others to give false information on an application for absentee ballot concerning the name of Willie C. Carter, Jr., in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Count 11 charged Smith and Tyree with giving and aiding and abetting others to give false information on an affidavit of absentee voter concerning the name of Willie C. Carter, Jr., in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. Counts 12 and 13 charged Tyree with giving and aiding and abetting others to give false information on an application for absentee ballot and on an affidavit of absentee voter, respectively, concerning the name and address of Shelton Braggs, in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. §2. App. 6 the district court denied the motion. After a seven day trial, the jury found Smith guilty on all seven counts with which he had been charged and Tyree guilty on all eleven counts with which she had been charged.3 At sentencing, the court applied the United States Sentencing Guidelines ("U.S.S.G.") § 2H2.1 and concluded that the appropriate base offense level for Smith and Tyree's offenses was 12. The court then enhanced Smith's sentence two levels for obstruction o f justice pursuant to U.S.S.G. § 3C1.1, enhanced Tyree's sentence two levels for abuse o f a position o f trust pursuant to U.S.S.G. § 3B1.3, and enhanced both sentences four levels for their status as organizers or leaders o f criminal activity involving five or more participants pursuant to U.S.S.G. § 3B l.l(a). Those enhancements brought the total offense level for both Smith and Tyree to 18. The court then sentenced Smith and Tyree to thirty-three months o f imprisonment on each count to run concurrently, two years of supervised release upon release from custody, forty hours of community service, and the required $50.00 per count assessment fee. They both appealed. II. STANDARDS OF REVIEW A district court's denial of a motion to dismiss on the ground o f selective prosecution involves both conclusions of law and findings o f fact. We review the court's factual findings for clear error and its legal conclusions de novo. See Newell v. Prudential Ins. Co. o f America, 904 F.2d 644, 649 (11th 3On Count 2, Smith was found guilty of voting more than once with respect to Cassandra Carter, Willie C. Carter and Eddie Gilmore. Tyree was found guilty on Count 2 with respect to Angela Hill, Michael Hunter, Sam Powell, Cassandra Carter, Shelton Braggs, Willie C. Carter and Eddie Gilmore. App. 7 Cir.1990); United States v. Jones, 52 F.3d 924, 927 (11th Cir. 1995) (de novo review o f district court decision on selective prosecution); United States v. Brundidge, 170F.3d 1350,1352 (11th Cir. 1999) (with motions involving mixed questions of law and fact "we review the factual findings of the district court for clear error and the application o f the law to those facts de novo."). We review challenges to the sufficiency o f the evidence de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences from the evidence in favor and in support of the jury verdict. See United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995); United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir.1993). We review the district court's application of the Sentencing Guidelines de novo and its findings of fact for clear error. See 18 U.S.C. § 3742(d) ("The court of appeals ... shall accept the findings o f fact o f the district court unless they are clearly erroneous and shall give due deference to the district court's application o f the guidelines to the facts."); United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.1999) (factual findings that supported obstruction o f justice enhancement reviewed for clear error). We review whether counts in an indictment are multiplicitous de novo. See United States v. Cluck, 143 F.3d 174, 179 (5th Cir. 1998). We review the district court's evidentiary rulings under an abuse o f discretion standard. See United States v. Tokars, 95 F.3d 1520, 1530 (11th Cir. 1996). We review a district court's jury instruction deferentially: App. 8 So long as the instructions accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed in the instructions. On appeal, we examine whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled. However, if no objection to the instructions was raised at trial, we only review for plain error. Starke, 62 F.3d at 1380 (citations and quotations omitted); see also McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1072 (11th Cir. 1996); Goulah v. Ford Motor Co., 118 F.3d 1478, 1485 (11th Cir.1997); Jennings v. BIC Corp., 181 F.3d 1250, 1254(11th Cir. 1999). ID. ANALYSIS A. WHETHER THE DISTRICT COURT ERRED BY FAILING TO GRANT SMITH AND TYREE’S MOTION TO DISMISS THE INDICTMENT ON THE GROUND OF SELECTIVE PROSECUTION B A S E D ON R A C E A N D P O L I T I C A L AFFILIATION The reality resulting from limited law enforcement and judicial resources is that not every criminal violation o f the United States Code can be prosecuted. The decision as to which crimes and criminals to prosecute is entrusted by the Constitution not to the judiciary, but to the executive who is charged with seeing that laws are enforced. See U.S. Const. Art. II, § 3 ("he shall take Care that the Laws be faithfully executed"). The judiciary cannot interfere with a prosecutor's exercise of charging discretion, except in narrow circumstances where it is necessary to do so in order to discharge the judicial function of interpreting and applying the Constitution. App. 9 Prosecutors are given broad discretion in deciding against whom to focus limited prosecutorial resources, and a strong "presumption of regularity supports ... [those] decisions." United States v. Armstrong, 517 U.S. 456,464,116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687 (1996) (citations and quotations omitted). But they must exercise their charging discretion within constitutional constraints, including those "imposed by the equal protection component of the Due Process Clause of the Fifth Amendment." See id. Under that clause, "the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification." Id. (citation and quotation omitted). "A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." Id. at 463, 116 S. Ct. at 1486. Defendants bear a "demanding" burden when seeking to establish that they are being selectively prosecuted in an unconstitutional manner. Id. "In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary." Id. at 465, 116 S. Ct. at 1486-87 (emphasis added) (citations and quotations omitted). The Supreme Court has explained the pragmatic and policy as well as constitutional reasons behind the substantial deference given to prosecutors: Judicial deference to the decisions o f these executive officers rests in part on an assessment o f the relative competence of prosecutors and courts. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. It also stems from a concern App. 10 not to unnecessarily impair the performance of a core executive constitutional function. Examining the basis o f a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may underm ine prosecutorial effectiveness by revealing the Government's enforcement policy. Id. (citations and quotations omitted). In accordance with this judicial deference to prosecutorial discretion, we are to evaluate a selective prosecution claim using "ordinary equal protection standards." Id. (citations and quotations omitted). Specifically: The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Id. (citations and quotations omitted). With these principles in mind we will turn to Smith and Tyree's arguments that the district court should have granted their motion to dismiss on the ground of selective prosecution.4 4Before doing so, we note that the government complains vehemently about having been required to disclose its investigative files to the defendants and being subjected to a four and a half day evidentiary hearing on the selective prosecution motion. It argues that the defendants did not make a sufficient showing to justify the evidentiary hearing or the intrusion into the prosecution's files. If that argument is valid, there is reason to be App. 11 Smith and Tyree first argue that they are only required to establish the two components o f a selective prosecution case- discriminatory effect and motive—by a preponderance of the evidence, so it was error for the district court to require them to shoulder a clear and convincing evidence burden o f persuasion. The issue boils down to interpreting what the Supreme Court meant when it said in Armstrong, that "in order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary...." Id. at 465, 116 S. Ct. at 1486 (emphasis added) (citations and quotations omitted). Clear evidence sounds like more than just a preponderance, and evidence that is clear will be convincing. So, we interpret Armstrong as requiring the defendant to produce "clear" evidence or "clear and convincing" evidence which is the same thing. The district court did not err in that respect. Next, Smith and Tyree contend that the district court erred by relying on the possibility o f future prosecutions to conclude that they had not proven they were singled out for prosecution. concerned. See generally Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486 ("Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." (citations and quotations omitted)). But the government did not attempt to have us review the district court's decision in these respects at the time, has not cross-appealed any of those rulings, and does not ask us to disregard the resulting evidence which it contends shows there was no basis to the selective prosecution motion. As a result, we will consider all of the evidence in the record, but we do so without implying that we think the district court properly permitted the extensive inquiry it did based upon the showing the defendants had made. App. 12 The magistrate judge, in a report and recommendation adopted in full by the district court, concluded that the defendants had failed to establish either prong of a selective prosecution claim. In regard to the first prong, which he called the "selectivity prong," the magistrate judge said that "it is certainly true that there is evidence in the record indicating" that others who had not been prosecuted had engaged in fraudulent absentee ballot voting activities, including forging voters' signatures and altering ballots. But the magistrate judge reasoned that because the government's investigation was still active at the time o f the motion, those others might be prosecuted at some time before the statute o f limitations ran out. On that basis, he concluded that the defendants had failed to establish the first prong o f the required showing. We agree with the defendants that the mere possibility o f future prosecutions, without more, is not a sufficient basis upon which to find that the requisite discriminatory effect or selectivity showing has not been clearly proven. Otherwise, a selective prosecution claim might not be ripe for decision until the statute of limitations runs out. We recognize, o f course, that prosecutors have to start somewhere, and everyone engaged in the same type of wrongdoing often will not be charged simultaneously. There can be all kinds o f practical reasons, including differences in evidence or in the progress o f the investigation, which cause the government to prosecute some criminals before others for the same crime. But those legitimate reasons can be stated where they exist, and they will be sufficient to establish that any selectivity that has been exercised was not the result o f unconstitutional motives. We do not rule out the possibility in a proper case of a remand to supplement the record with material facts relating to prosecutions that occur after the district court has denied a selective prosecution motion, but we do not think a remand is necessary in this case. The statute of limitations has now run, and we will assume for present purposes that no prosecution o f App. 13 anyone outside the groups to which Smith and Tyree claim membership will ever be prosecuted in connection with illegal activities relating to the November 8, 1994 election in Greene County.5 We turn now to the heart of Smith and Tyree's argument which is that they presented sufficient evidence to prove both prongs o f a valid selective prosecution claim. As we have already stated, in order to establish their selective prosecution claim, they were required to show that their prosecution had a discriminatory effect, i.e., that similarly situated individuals were not prosecuted, and they were also required to show that the difference in treatment, or selectivity o f the prosecution, was motivated by a discriminatory purpose. See Armstrong, 517 U.S. at 465,116 S. Ct. at 1486-87. We recognize that the nature o f the two prongs o f a selective prosecution showing are such that they will often overlap to some extent, but we discuss them separately beginning with the selectivity or discriminatory effect prong. Smith and Tyree attempted to establish discriminatory effect by showing that individuals belonging to two groups committed voting rights violations like the ones charged against Smith and Tyree, but were not prosecuted. One group, defined by race, consists o f certain named white residents o f Greene County or Wilcox County. The other group includes residents 5While this case was on appeal, counsel for Smith and Tyree filed what they describe as a Fed. R.App. P. 280) letter informing us of various matters, including the fact that the statute of limitations has run. The letter says that since Smith and Tyree were convicted nine other Greene County residents have been indicted in connection with alleged illegal activities relating to the same election, but all are black and are supporters of the same political faction as Smith and Tyree. App. 14 who like Smith and Tyree are black. But those black people are different. Smith and Tyree contend, because they belong to a different political faction. Smith and Tyree are members o f the Alabama New South Coalition which they point out has fewer white members than the biracial Citizens for a Better Greene County ("CBGC").6The two groups who supposedly received more favorable treatment overlap to the extent that some or all o f the whites in the first group are members of the CBGC. Predicating a selective prosecution claim on the contention that members of the defendants' own race were not prosecuted because they were politically allied with whites is a novel approach. We need not decide whether such an allegation is a sufficient basis for a selective prosecution claim, but instead will assume for purposes o f discussion that it can be. Even assuming that a viable selective prosecution claim can be made based on discriminatory treatment among African-Americans, Smith and Tyree have failed to show that their prosecution had a discriminatory effect—that similarly situated individuals were not prosecuted—and they have also failed to show that the federal prosecutorial policy was motivated by a discriminatory purpose. The beginning step in comparing the prosecution of the defendants with the non-prosecution o f those who were "similarly situated" is to determine who, if anyone, was similarly situated with the defendants. Neither this Court nor 6Smith and Tyree's descriptions of the two political factions is as follows: "The rival blocs might be described as, on one side, a black majority faction, affiliated with the Alabama New South Coalition, and, on the other, an ostensibly nonpartisan and biracial group, Citizens for a Better Greene County, founded by political opponents of the black majority faction and backed by most of the remaining white power structure within the County." Appellants' Brief at 5-6 (internal marks and citations omitted). App. 15 the Supreme Court has definitively explained what constitutes a "similarly situated" individual in this context,7 but the definition is informed by the Supreme Court's recognition of legitimate factors that may motivate a prosecutor's decision to bring a case against a particular defendant. Those factors include "the strength o f the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan." Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486. In light o f those legitimate factors, we define a "similarly situated" person for selective prosecution purposes as one who engaged in the same type o f conduct, which means that the Tn United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978), we quoted favorably from a Second Circuit opinion which referred to "conduct of the type forming the basis o f the charge against" the defendant, but in actually applying the test we focused more narrowly, concluding there was no selective prosecution because "the conduct for which he was prosecuted is not ordinarily ignored." Id. at 1308-09. In United States v. Pleasant, 730 F.2d 657, 663 (11th Cir. 1984), we continued that focus, asking whether the defendant had carried his burden of showing that he "has been singled out for prosecution while others similarly situated and committing the same acts have not been prosecuted." (emphasis added). Our opinion in United States v. Gordon, 817 F.2d 1538, 1539-40 (11th Cir.1987), says that the defendant must prove that "others similarly situated have not generally been proceeded against for the type of conduct with which he has been charged." We do not view these prior pronouncements as being inconsistent either with each other or with our statements in this opinion. "Conduct of the type forming the basis of the charge" against a defendant will be "the conduct for which he was prosecuted," and "others similarly situated and committing the same acts" will be guilty of the same crimes as the defendant. App. 16 comparator committed the same basic crime in substantially the same manner as the defendant—so that any prosecution of that individual would have the same deterrence value and would be related in the same way to the Government's enforcement priorities and enforcement plan-and against whom the evidence was as strong or stronger than that against the defendant. Consequently, for Smith and Tyree to establish selective prosecution, they must show that there are other individuals who voted twice or more in a federal election by applying for and casting fraudulent absentee ballots, and who forged the voter's signature or knowingly gave false information on a ballot affidavit or application, and that the voter whose signature those individuals signed denied voting, and against whom the government had evidence that was as strong as the evidence it had against Smith and Tyree. That is the case the government built against Smith and Tyree, and in order to prevail on their selective prosecution claim Smith and Tyree must establish that the government could prove beyond a reasonable doubt that someone else had engaged in the same type of conduct, committing the same crime in that or substantially the same manner. A painstaking review of the record reveals that Smith and Tyree did not carry their burden. In their initial brief Smith and Tyree point to Patsy Rankins and Betty Banks, both o f whom are white, as people who were similarly situated but escaped prosecution. But what they say that Rankins and Banks did is not the same as the conduct for which Smith and Tyree were convicted. Rankins allegedly harassed voters, jerked on the arm of one voter and tried to influence that voter's vote. Banks allegedly went into the post office, handled absentee ballots, and took pictures o f the ballots. Neither one of them is alleged to have written false information or forged names on an absentee application or affidavit, or to have voted more than once. App. 17 Smith and Tyree also allege that other individuals (most if not all o f whom are black but none of whom were affiliated with the Alabama New South Coalition), engaged in activities such as paying people to vote, changing a vote on a ballot, and stealing a ballot out o f a mailbox. While that alleged conduct is serious, the Supreme Court has noted "the Government's enforcement priorities" as a factor that could legitimately distinguish between those who are prosecuted and those who are not. See Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486. Choosing enforcement priorities is an important part "of a core executive constitutional function," and the process is "not readily susceptible to the kind of analysis the courts are competent to undertake." Id. (citations and quotations omitted). In other words, we are neither authorized nor competent to second guess the government on which among the universe o f different crimes should be prosecuted. See United States v. Parham, 16 F.3d 844, 846-47, 846 n. 3 (8th Cir.1994) (holding that alleged irregularities, including harassing and intimidating black voters, were not sufficiently similar to act o f forging names on absentee ballots for which defendants were prosecuted and thus defendants did not make out a prima facie case o f selective prosecution).8 Moreover, at least some of this alleged misconduct by others involved single instances and not the repeated criminal conduct for which the defendants were 8We note that the Eighth Circuit misread our decision in United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.1987), rev'd in part on other grounds, 836 F.2d 1312 (11th Cir. 1988), to the extent that it characterized the result as "selective prosecution found where others had not been prosecuted for the same offense." Parham, 16 F.3d at 847. We did not find selective prosecution in Gordon and held only that the defendant was "entitled to an evidentiary' hearing on the selective prosecution claim so the full facts [would] be known." Gordon, 817 F.2d at 1540. prosecuted. As we will explain shortly, that does make a difference. Focusing now on the crimes for which Smith and Tyree were prosecuted, there is some evidence that other individuals signed another voter's signature to, or filled out the administrative information on, an application for absentee ballot or the affidavit o f absentee voter that was not their own. Larry Nelson, the defendants' handwriting expert, testified at the evidentiary hearing that he found multiple instances where the voter's signature or the administrative information was completed by someone other than the voter and other than Smith or Tyree. But none of those voters testified that they had not voted the ballot that was cast in their name or authorized someone else to do so. Smith and Tyree's briefs to this Court fail to face up to that type o f difference. For example, in their initial brief, they point to Rosie Carpenter, Lenora Burks and Annie Thomas as individuals who witnessed a substantial number o f absentee ballots, and who therefore should have been targets o f the investigation. Yet nowhere do Smith and Tyree point to statements (much less testimony) from any of those voters whose absentee ballots were witnessed by Carpenter, Burks or Thomas indicating that those voters themselves did not actually vote their ballots regardless of who witnessed them. Witnessing large numbers of absentee ballots is not, in and of itself, a crime. Our careful review o f the record found some evidence (whether it is clear is another matter) in the FBI reports that an absentee ballot was voted in the name o f someone who said that he did not cast it. That evidence included four instances where an individual witnessed two ballots and the voters in whose names the ballots were cast told the FBI that they did not vote, and eight instances where an individual witnessed one ballot in App. 18 App. 19 the name of the voter who stated that he did not vote.9 Those individuals may have committed the same type of crimes as the defendants, but they are not similarly situated with respect to the number of crimes they committed. The prosecution had, and presented at trial, sufficient evidence to prove beyond a reasonable doubt that Tyree fraudulently applied for or fraudulently cast, or both, absentee ballots in the names of seven voters: Hill, Gilmore, Powell, Cassandra Carter, Willie Carter, Braggs and Hunter.10 And the same is true o f the evidence the prosecution had and presented at trial to prove that Smith committed those same crimes involving three voters: Gilmore, Cassandra Carter and Willie Carter. The prosecution had, and presented at trial, sufficient evidence to prove beyond a reasonable doubt that Tyree knowingly or willfully gave false information to establish the eligibility to vote ballots in the names o f six voters: Hill, 9We note that several of the FBI investigative reports which this Court examined seemed internally inconsistent with respect to whether the voter did or did not vote. We did our best to identify similarly situated individuals, but as the Supreme Court noted in Armstrong, judicial deference to prosecutors is based on the fact that this kind of investigative and prosecutorial analysis is better conducted by prosecutors than by judges. See Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486. To the extent any similarly situated individuals exist that we were unable to identify from the record and briefs, that inability reflects a failure on the part of Smith and Tyree to carry their burden. l0Later in this opinion, we will reverse Tyree's conviction on Count 12, giving false information with respect to the name and address of Braggs on an application of absentee ballot, for insufficient evidence, but affirm her conviction on Count 13, giving false information with respect to the name and address of Braggs on an affidavit of absentee voter. See infra Part III.B. App. 20 Gilmore, Powell, Braggs, Cassandra Carter and Willie C arter.'1 And the same is true o f the evidence that the prosecution had and presented at trial to prove that Smith committed the same crimes involving three voters: Gilmore, Cassandra Carter and Willie Carter. The government can legitimately place a higher priority on prosecuting someone who commits an offense three, six or seven times, than someone who commits an offense once or twice, especially w hen the offense is a non-violent one. Likewise, the willingness of a jury to convict a defendant o f a crime may increase w ith the number o f times that defendant has committed the crime. Finally, we do not know from the record the strength o f the evidence that others may have committed similar crimes, because saying something is one thing and testifying to it is another. We do know that the evidence Smith and Tyree committed these crim es was strong enough to convince a jury beyond a reasonable doubt. For all o f these reasons, Smith and Tyree failed to carry their burden that the others who may have committed crimes in connection with the November 8, 1994 general election were similarly situated to them. Smith and Tyree failed to carry their burden of establishing the discriminatory effect or selectivity prong.* 12 "See supra note 9. l2In the magistrate judge's report and recommendation, he concluded that "there is evidence in the record indicating that other people have engaged in fraudulent absentee-ballot voting activities, including forging voters' signatures and altering ballots. What has not been shown is that these other individuals will never App. 21 Not only did Smith and Tyree fail to prove by clear evidence that there were similarly situated individuals who were not prosecuted and thereby failed to establish the discriminatory effect prong, they also failed to prove by clear evidence be prosecuted." We have previously disagreed with the magistrate judge's conclusion that the possibility of future prosecution is enough to rule out discriminatory effect. We also disagree with the report's apparent conclusion-if it is a conclusion-that the individuals Smith and Tyree point to were similarly situated with them. Our disagreement is not over any factfinding or credibility choice the magistrate judge made, but instead with the law which he applied to the facts. As we have explained, in order to establish that others were similarly situated with them, Smith and Tyree had to prove by clear evidence that others committed the same crimes as they did, the same or a greater number of times, and that the evidence against those others was as strong or stronger than the evidence against Smith and Tyree. They failed to carry their burden. The magistrate judge applied the "similarly situated" test at too high a level of generality, assuming that anyone who committed any violation of federal law in connection with the same election is "similarly situated" with Smith and Tyree. While we could remand the case to the district court for it or the magistrate judge to have another go at it, a remand would be pointless because our detailed review of the record convinces us that no facts could be found from the record evidence that would justify a conclusion Smith and Tyree had proved by clear evidence that others who were not prosecuted were similarly situated to them in the sense the applicable law requires. In addition, as we are about to explain, we agree with the magistrate judge that Smith and Tyree failed to establish discriminatory motive or purpose, which is an independently adequate basis for denial of their motion. App. 22 discriminatory intent and thereby failed to establish the second prong, too. Smith and Tyree argue that they established the discriminatory intent in two ways. First, they argue that the decision to bring the case in federal court, instead of state court, was prompted by a desire to avoid a black jury, and second, they argue that the district court's rejection o f the government explanation for its peremptory strike of one black veniremember evidenced discriminatory intent behind the prosecution. The first contention is not supported by even a shred o f evidence in the record. It rests instead on an assumption that black defendants will not be treated in a just manner in federal court, an assumption which we reject. In regard to the second contention, at trial the government gave a race neutral reason for exercising the questioned peremptory strike, explaining that the prospective juror was not paying attention, that he was dozing off, and that he had his eyes closed during the voir dire questioning. The court rejected that strike because its "impressions o f [the prospective juror] were not consistent with those recited by" the government. The only thing the court's rejection o f the government's strike reveals is that the court did not agree with the government's observations. Rejection o f one peremptory strike is no basis for concluding that the underlying prosecution is motivated by bias. Having failed to prove by clear evidence either prong o f a selective prosecution claim. Smith and Tyree were not entitled to have their motion to dismiss granted. B. WHETHER THERE WAS SUFFICIENT EVIDENCE TO CONVICT TYREE ON COUNTS 12 AND 13 Counts 12 and 13 of the indictment charge Tyree with violating 42 U.S.C. § 1973i(c) by giving false information on an application for absentee ballot and on an affidavit o f App. 23 absentee voter, respectively, concerning the name and address of Shelton Braggs. Tyree contends that those two counts required the government to prove beyond a reasonable doubt that Braggs neither filed the application or affidavit himself nor consented to their being filed by Tyree on his behalf. There was insufficient evidence to convict her on those counts, she says, because there was no evidence in the record that Braggs' application and affidavit were not filed at his direction.13 Neither Count 12 nor Count 13 charges that the relevant document was filed without Braggs' permission, and nothing in § 1973i(c) requires that the information be given without the voter's permission. Accordingly, when instructing the jury on the individual counts, the district court properly did not include "without the voter's permission" as a necessary element o f the offenses charged in Counts 12 and 13. Tyree's arguments to the contrary are meritless. However, the falsity o f the information on the application or affidavit is an element o f § 19731(c), and there was insufficient evidence to prove beyond a reasonable doubt that the information was false with respect to the application which is the subject of Count 12. The government's handwriting expert 13After trial but before sentencing, Braggs gave a sworn statement to defense counsel that was taken down by a court reporter. In it Braggs said: that he lived in Maryland at the time of the statement; that at the time of the election in November 1994 he considered 113 O'Neal Street in Eutaw, Greene County, Alabama, to be his permanent home; and that he did not personally cast an absentee ballot in that general election, but he gave Tyree permission to cast an absentee ballot for him provided that she voted the ballot for Smith. Because the issue raised before us is the sufficiency of the evidence to support the jury's verdict, we consider only the evidence that was before the jury. App. 24 testified that Tyree filled in some o f the administrative information, including the addresses, on the application for absentee voter, but he was unable to say that Tyree had signed the application. The expert did not have a sample o f Braggs' handwriting and could not rule out Braggs having signed the application. There was no evidence at trial that anyone other than Braggs had signed his name to the application. The absentee election manager, Johnnie Knott, testified that the application referred to in Count 12 listed voter Braggs' residence address as 113 O'Neal Street and it listed the "mail ballot to" address as 507 Greensboro Street. There was no evidence that those addresses were not valid addresses for Braggs. In fact, there was testimony that those were good addresses for Braggs.14 The evidence is consistent with Braggs signing the application that Tyree lawfully helped him fill out. Accordingly, we conclude that there is insufficient evidence to support a finding that any o f the information Tyree wrote onto the application that is the subject o f Count 12 was false, and her conviction on that count must be reversed. 14Cora Stewart testified at trial that Braggs used to live on O'Neal Street but he had moved. She said that she did not know where he moved to or how long he has been away from Greene County because he is "in and out." She also said she thought the last time she saw Braggs in Eutaw (in Greene County) was "last year" and he was "at home on O'Neal Street" where his mother lives. Josephine Lewis testified that Braggs was Tyree's boyfriend in 1994 and Hattie Edwards testified that Braggs lived with Tyree in 1994. The prosecution says in its brief that Tyree lived at 507 Greensboro Street, but the government does not cite any part of the record that actually backs up its statement, and we were unable to find any evidence to that effect. App. 25 The sufficiency o f the evidence supporting Count 13, which charged Tyree with giving false information on Braggs' affidavit o f absentee voter is a different matter. The government handwriting expert testified that Tyree signed Braggs' affidavit. Under Alabama law, there is no such thing as proxy voting: A voter cannot legally authorize or direct another to vote his ballot in his place. See Taylor v. Cox, 710 So. 2d 406 (Ala. 1998) (absentee voting ballot invalid where voter's name not signed by voter but by designated agent with permission). Consequently, to sign someone else's name, with or without permission, is to "give[] false information as to his name." 42U.S.C. § 1973i(c). Regardless o f whether the other information on the affidavit was truthful, Tyree still gave false information by signing Braggs' name, because she is not Braggs. C. WHETHER SMITH AND TYREE WERE CONVICTED ON MULTIPLICITOUS COUNTS "Multiplicity is the charging o f a single offense in more than one count. When the government charges a defendant in multiplicitous counts, two vices may arise. First, the defendant may receive multiple sentences for the same offense. Second, a multiplicitous indictment may improperly prejudice a jury by suggesting that a defendant has committed several crimes—not one. To determine whether an indictment is multiplicitous, we first determine the allowable unit o f prosecution." United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991) (citations omitted). Smith and Tyree contend that the allowable unit of prosecution with respect to § 1973i(c) should include all steps preparatory to casting a ballot, regardless o f the number of pieces of false information supplied. That contention forms the basis for their argument that certain pairs o f counts in the indictment were multiplicitous, because those counts charged false information on the application for absentee ballot of a App. 26 particular voter in one count and false information on the affidavit o f absentee voter of the same voter in the other count.15 The application o f absentee ballot and affidavit o f absentee voter are different documents serving distinct purposes. A count charging the giving of false information on an application of absentee ballot requires different proof than a count charging the giving o f false information on an affidavit of absentee voter. The counts in question charge different offenses that may properly be charged in separate counts. See United States v. Davis, 730 F.2d 669. 671-72 (11th Cir.1984); United States v. Cluck, 143 F.3d 174, 179 (5th Cir.1998).16 There was no 15Specifically, Smith was convicted on Counts 8 and 9, both of which concerned Cassandra Carter, and Counts 10 and 11, both of which concerned Willie Carter. Tyree was convicted on Counts 3 and 4, both of which concerned Hill, Counts 5 and 6, both of which concerned Gilmore, and Counts 12 and 13, both of which concerned Braggs. 16Our holding, which is largely based upon United States v. Davis, 730 F.2d 669 (11th Cir.1984), is not inconsistent with United States v. Langford, 946 F.2d 798 (11th Cir.1998). In Langford, the defendant was charged with securities fraud relating to false statements made in several different documents related to a single purchase of securities, in violation of 15 U.S.C. §§ 78j(b) and 78ff. See id. at 800. We said that "to avoid the vices of multiplicity in securities fraud cases, each count of the indictment must be based on a separate purchase or sale of securities and each count must specify a false statement of material fact—not a full-blown scheme to defraud—in connection with that purchase or sale." Id. at 804 (emphasis added). Because the indictment in that case did not allege that each document "contained a specific material misstatement" and was "in conjunction with separate purchase or sale transactions," we held that the indictment was App. 27 multiplicity error. D. WHETHER THE DISTRICT COURT ERRED IN ADMITTING EVIDENCE OF ABSENTEE BALLOT AFFIDAVITS TYREE WITNESSED The district court admitted into evidence a government exhibit consisting of approximately ninety-five affidavits o f multiplicitous. See id. The Langford holding was, however, explicitly limited to securities fraud cases. See id. The defendant in Davis was charged with making false statements to a federally insured bank in several different documents, in violation of 18 U.S.C. § 1014. See Davis, 730 F.2d at 671. The documents were designed to procure a single loan. See id. We held that different counts in an indictment were appropriate because different documents were involved and different proof was required as to each count. See id. at 672. We find Davis to be more analogous to the situation at hand. There are dangers inherent in the nature of securities cases that were not present in Davis and are not present in the case before us today. With the purchase and sale of securities, a single document, such as a prospectus, is mailed to thousands of shareholders, which raises the specter of thousands of counts. There was no similar mass publication or distribution of the loan documents in Davis nor of the applications for absentee ballots and affidavits of absentee voters in this case. In any event, to the extent there is any inconsistency between Davis and Langford, we are compelled to follow the prior precedent, which is Davis. See Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir.1998) (discussing conflict between lines of precedent and "earliest case" rule). App. 28 absentee voter that had been witnessed by Tyree.17 Smith and Tyree assert the district court erred by admitting those affidavits because there was no evidence o f wrongdoing as to most o f them. The district court thought the affidavits were directly relevant to the conspiracy count. Paragraph 15 o f Count 1 o f the indictment reads as follows: It was further a part o f the conspiracy that the defendants and their co-conspirators in some instances where a voter's signature was obtained on the affidavit o f absentee voter would at a later time cause the affidavit of absentee voter to be completed, including the witnessing of the voter's signature by persons who did not see the voter sign the affidavit, and would cause the absentee ballot to be submitted and voted. At trial, Cora Stewart reviewed the affidavits comprising Exhibit 21 and identified which of the affidavits she and Tyree had witnessed where she did not see the voter sign his signature. The affidavits were relevant to the conspiracy charge, and the district court did not abuse its discretion in admitting them into evidence. ‘’Smith and Tyree's initial brief argues it was error to admit evidence of approximately 160 ballots that Tyree had witnessed, but that brief does not identify the exhibit or exhibits it is talking about. The government's brief in response refers to Government Exhibit 21, which consisted of approximately 95 affidavits and was admitted into evidence, and to Government Exhibit 22, which consisted of approximately 75 affidavits and, according to the government, was not introduced into evidence. The only exhibit Smith and Tyree's reply brief specifically mentions in connection with this issue is Government Exhibit 21. Accordingly, we discuss only Government Exhibit 21 and the approximately 95 affidavits it involves. App. 29 E. WHETHER TYREE WAS DENIED HER RIGHT UNDER THE FIFTH AND SIXTH AMENDMENTS TO PRESENT WITNESSES IN HER DEFENSE Tyree contends that she was denied her constitutional right to present witnesses in her defense when the district court refused to permit her to introduce at trial Burnette Hutton's testimony from the selective prosecution hearing.18 At the selective prosecution hearing, the government asserted its belief that Hutton would be committing peijury if she testified in accordance with an earlier affidavit, and it asked the magistrate judge w'ho was presiding over the hearing to advise Hutton of her Fifth Amendment rights and to appoint Hutton counsel. The magistrate judge informed Hutton ofher Fifth Amendment right not to incriminate herself, and he offered to appoint counsel for her, but Hutton declined the offer and proceeded to testify. During the government's cross-examination, it asked Hutton to give handwiiting samples. Smith and Tyree's counsel objected. In response, the magistrate judge again explained Hutton's Fifth Amendment rights to her, and this time he appointed an attorney to advise her. After meeting with that attorney, Hutton decided to exercise her Fifth Amendment right not to testify. The government asked to be allowed to continue its cross- examination, asserting that Hutton had waived her privilege not to testify by answering questions on direct examination. The magistrate judge refused to permit the government to continue questioning Hutton and excused her from the hearing. :sThe Fifth Amendment provides that no person shall be "deprived of life, liberty, or property, without due process o f law," L .S. CONST, amend. V., and the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the rig h t... to have compulsory process for obtaining witnesses in his favor." U.S. Co n st , amend. VI. App. 30 At trial, Hutton refused to testify, asserting her Fifth Amendment privilege. Tyree attempted to introduce Hutton's testimony from the selective prosecution hearing that when she had signed the affidavit o f Sam Powell, who is her father, she had done so with his permission. The government objected to the adm ission of Hutton's testimony from the hearing, because it had been unable to fully cross-examine her when she gave that testimony. The district court excluded the testimony under Federal Rule o f Evidence 804(b)(1), after agreeing with the government that it had not had a full opportunity to cross- examine Hutton.19After reviewing the relevant part o f the record, we agree with that premise and with the conclusion. F. WHETHER THE JURY INSTRUCTIONS WERE ERRONEOUS Smith and Tyree argue that the district court's jury charge permitted the jury to convict them without finding, beyond a reasonable doubt, that the voters in whose names ballots were submitted did not consent to the ballots being cast. What we have already held about that not being a necessary element o f * 1 l9Rule 804(b)(1) reads as follows: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, [may be admitted into evidence] if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Fed.R.Evid . 804(b)(1). App. 31 the § 1973i(c) offense applies as well to the § 1973i(e) offense.20 See supra Part III.B. But Count 1 o f the indictment, the conspiracy count, nonetheless did allege that one object of the conspiracy was to commit crimes by voting more than once "by applying for and casting fraudulent absentee ballots in the names o f voters without the voters knowledge and consent," in violation o f § 1973i(e). And Count 2 charged the defendants with voting more than once by voting the absentee ballots of seven named people, among others, "without the knowledge and consent o f said voters," in violation of § 1973i(e). None of the other counts of the indictment alleged the lack of the voters' knowledge or consent. We will assume for present purposes that because Counts 1 and 2 alleged that Smith and Tyree's actions were done without the knowledge and consent of the voters whose names 20We realize that in United States v. Hogue, 812 F.2d 1568 (11th Cir. 1987), we discussed an indictment for a violation of § 1973i(e) that contained the "without the knowledge and consent of that voter" language. However, nothing in our Hogue opinion says that lack of knowledge and consent of the voter is a necessary element of a § 1973i(e) violation. Hogue concerned the application of collateral estoppel in a criminal prosecution for endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503. In an earlier prosecution of the same defendant for voting more than once in violation of 42 U.S.C. § 1973i(e), the jury had been instructed that "voting meant marking the ballot of some other voter where the voter had not made a candidate selection or changing the ballot to reflect a selection different from the voter's, all without the expressed or implied consent of the voter." Id. at 1576. But we did not hold in Hogue that last clause was an element of § 1973i(e), only that the jury in the earlier case did not necessarily have to find that the defendant's actions were taken without consent in order to find that the defendant was not guilty, and thus, collateral estoppel did not apply. See id. at 1582-83. App. 32 were used, the defendants were entitled to have the jury instructed that lack of knowledge and consent were required insofar as those two counts were concerned.21 The court did instruct the j ury to that effect, but Smith and Tyree contend that the court's instruction on Alabama law negated what it told the jury about lack o f knowledge and consent. In its instructions, the district court told the jury: "In order to convict a defendant of the federal offenses charged in this indictment, however, the government also must prove, beyond a reasonable doubt, that the defendant under consideration knowingly and willfully signed the Application for Absentee Ballot without the knowledge and consent of that voter...." The court then gave the instruction on Alabama law that the defendants challenge, stating that "there is no such thing in Alabama as proxy absentee voting" and that "no absentee voter can lawfully grant his or her proxy to another person, granting permission to that other person to cast a voter's absentee ballot for him or for her." That is clearly a correct statement o f Alabama law. See Taylor v. Cox, 710 So. 2d 406 (Ala. 1998). The district court then repeated its earlier instruction, this time with respect to the affidavit of absentee voter: "In order to convict a defendant of the federal criminal offenses charged in this indictment, however, the government also m ust prove, beyond a reasonable doubt, that the defendant under consideration knowingly and willfully signed the voter's name :'This is just an assumption for present purposes. On a somewhat related point, we have held that the government is not required to prove surplus allegations in an indictment. See United States v. England, 480 F.2d 1266, 1269 (5th Cir.1973) ("The Government need not prove all facts charged in the indictment as long as it proves other facts charged in the indictment which do satisfy the essential elements of the crime."); United States v. Trexler, 474 F.2d 369, 371-72 (5th Cir.1973) (same). on the affidavit envelope without the knowledge and consent of that voter...." Next, the court instructed the jury on the individual counts. With respect to Count 2, the court specified that the defendant must have acted "without the consent, or conscious, voluntary, and understanding participation o f that other voter." With respect to Count 1, the conspiracy count, the court used the phrase "without the voters' knowledge and consent" when describing § 1973i(e) as a substantive crime underlying the conspiracy. Viewing these instructions in their entirety, we hold that they sufficiently conveyed to the jury that it had to find a lack o f consent by the voter, at least as to Counts 1 and 2 (where it was alleged in the indictment). G. WHETHER THE DISTRICT COURT ERRED IN APPLYING THE SENTENCING GUIDELINES 1. The Base Offense Level Smith and Tyree contend that the district court erred in sentencing them, beginning with the base offense level it used. The applicable section of the Sentencing Guidelines reads as follows: Section 2H2.1. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18, if the obstruction occurred by use o f force or threat o f force against person(s) or property; or (2) 12, if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means, except as provided in (3) below; or App. 33 App. 34 (3) 6, if the defendant (A) solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, vote for or against a particular candidate, or register to vote, (B) gave false information to establish eligibility to vote, or (C) voted more than once in a federal election. U.S.S.G. § 2H2.1. Relying on the revised Presentence Investigation Reports, the district court found that the appropriate base offense level for Smith and Tyree was 12. Tyree and Smith argue, however, that the language o f the Guidelines exactly tracks the statutes under which they were convicted and clearly provides that the particular forms o f fraud or deceit o f which they were convicted warrant a base level o f 6. We agree with the district court that the appropriate base offense level was 12, as provided by § 2H2.1(a)(2). The language o f (a)(2) applies in a case where forgery, fraud, theft, bribery, deceit, or other means are used to effect the vote o f another person, or the vote another person was entitled to cast. By contrast, the language of (a)(3) addresses an individual who acts unlawfully only with respect to his own vo te-an individual who accepts payment to vote, gives false information to establish his own eligibility to vote, or votes more than once in his own name. The offenses for which Smith and Tyree were convicted involved the votes o f other individuals, in particular, the forging of other voters' names on applications o f absentee ballot and affidavits o f absentee voter. The district court did not err in applying a base offense level o f 12. 2. The Enhancement o f Tyree's Offense Level for Abuse of a Position o f Trust The district court enhanced Tyree's offense level pursuant to § 3B1.3, which provides that: App. 35 [i]f the defendant abused a position o f public or private trust, or used a special skill, in a manner that significantly facilitated the com m ission or concealment o f the offense, increase by 2 levels. U.S.S.G. § 3B1.3. "The abuse o f trust enhancement applies ... where the defendant has abused discretionary authority entrusted to the defendant by the victim...." United States v. Jolly, 102 F.3d 46, 48 (2d Cir. 1996) (as quoted in United States v. Garrison, 133 F.3d 831, 839 (11th Cir.1998)). As we explained in United States v. Garrison, 133 F.3d at 837, and United States v. Barakat, 130F.3d 1448,1454 (11th Cir. 1997), "the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment o f the offense." U.S.S.G. § 3B1.3 commentary at application note 1. The "offense" refers to the offense o f conviction. See Barakat, 130 F.3d at 1455. "Significant facilitation" in committing the offense of conviction is present when "the person in the position of trust has an advantage in committing the crime because of that trust and uses that advantage in order to commit the crime." Id. at 1455. Tyree points to the fact that Smith, who did not hold the position of deputy registrar, was convicted o f the same offenses as she was. She argues that means her position could not have significantly facilitated the commission of any o f her offenses. But the guideline does not require that the position be essential to a defendant's commission o f the offense, only that the position have significantly facilitated this particular defendant’s commission o f it. The fact that another defendant committed the same offense without use or abuse o f the defendant's position does not preclude the application o f the § 3B 1.3 enhancement. App. 36 The Presentence Investigation Report recommended application o f this enhancement because Tyree's position as a deputy registrar significantly aided her in fraudulently registering Sam Powell "and others," and the district court applied the enhancement for that reason. Tyree was not charged with and convicted o f giving, or aiding another to give, false information on a voter registration card. But Tyree was convicted of offenses involving Sam Powell's vote, offenses which were dependent upon his having been registered to vote, and she used her position as deputy registrar to bring that about (fraudulently). Given those facts, we cannot say that the district court erred in finding that Tyree's position significantly aided her commission of an offense for which she was convicted. We reject as specious Tyree's argument that her position as Greene County Deputy Registrar is not a position o f public trust. See United States v. Cole, 41 F.3d 303, 311 (7th Cir.1994) ("The court did not err ... in finding that as a registrar of voters [the defendant] violated a position of public trust" within the meaning o f § 3B1.3.). The district court did not err in applying this enhancement. 3. The Enhancement o f Smith's Offense Level for Obstruction o f Justice Referring to Application Note 3 in the Commentary to the Sentencing Guidelines, the district court enhanced Smith's offense level pursuant to § 3C 1.1, which provides that: If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration o f justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels. U.S.S.G. § 3C1.1. The district court explained that: "the evidence at trial presented or established, beyond a reasonable App. 37 doubt, that the Defendant Smith influenced Michael Hunter to give a false affidavit concerning material facts." Smith contends the district court erred by failing to make specific findings of fact regarding which material facts Hunter testified falsely about or how Smith was responsible for them. While it might have been preferable for the district court to identify the material facts about which Hunter testified falsely and for which Smith was responsible, as we have said before, "in the context o f the record ..., detailed findings were not necessary and would have been redundant." United States v. Hubert, 138 F.3d 912, 915 (11th Cir.1998); accord United States v. Diaz, 190 F.3d 1247, 1256 (11th Cir.1999) (general finding that encompasses all factual predicates o f perjury is sufficient). The district court did indicate that its finding in this regard relied upon the evidence presented at trial, and the court expressly adopted the factual statements in the revised Presentence Investigation Report. The addendum to that report, which addressed Smith’s objections to the obstruction of justice enhancement, discussed in detail Smith's actions that warranted the enhancement. Moreover, because Smith did not request more specific findings of fact by the district court, "it is too late now to complain in this court." United States v. Gregg, 179 F.3d 1312, 1317 (11th Cir.1999) (quoting United States v. Geffrard, 87 F.3d 448, 453 (11th Cir.1996)); accord Hubert, 138 F.3d at 915. 4. The Enhancement o f Smith and Tyree's Offense Levels for Their Roles The district court enhanced Smith and Tyree's offense levels by four levels pursuant to § 3 B l.l(a ), because it found that each o f them was an "organizer or leader o f criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3 B l.l(a ). Smith and Tyree contend that there was no evidence their criminal activity, as distinguished App. 38 from their First Amendment-protected political activity, was extensive, and also complain that the court failed to adequately identify the five participants who were involved in the criminal activity. However, the Presentence Investigation Reports identified the five participants in the criminal activity and their activities, and the district court expressly adopted the report's factual findings. The district court did not err by enhancing Smith and Tyree's sentences for their roles in the offense. IV. IV. CONCLUSION For the foregoing reasons, we affirm Smith's convictions and sentence in all respects; we reverse Tyree's conviction on Count 12, affirm her convictions on all other counts, and remand her case for the limited purpose o f modifying judgm ent o f conviction and sentence accordingly. App. 39 Order of the District Court Affirming and Adopting the Magistrate Judge’s Report and Recommendation [Caption Omitted in Printing] ORDER The court has carefully considered the defendants’ objections to the M agistrate Judge’s Report and Recommendation entered July 30,1997. Having reviewed the entire record developed in connection with the defendants’ motion to dismiss filed February 24, 1997, and the court file, the report and recommendation of the magistrate judge entered July 30, 1997, is hereby AFFIRMED and ADOPTED by the court. It is, therefore, ORDERED, ADJUDGED and DECREED that defendants’ motion to dismiss is DENIED, and the government’s motion in limine filed on March 5, 19971 is GRANTED. The trial of this case shall commence in the United States Courthouse located in Tuscaloosa, Alabama, at 9:30 a.m., on Monday, September 8, 1997. DONE this 19th day of August, 1997. C. Lynwood Smith, Jr. United States District Judge 'The pleading actually is entitled “Response to Motion to Dismiss Indictment and Motion in Limine.” (Document # 14) App. 40 Report and Recommendation of the Magistrate Judge on the Issue of Selective Prosecution [Caption Omitted in Printing] Report and Recommendation This cause is before the court on the defendants' Motion to Dismiss the indictment filed February 24, 1997, and the Government's Response and Motion in Limine filed March 5, 1997. Together, these motions deal with the same legal question, whether these defendants are entitled to an abatement o f this prosecution on the ground that they are being selectively prosecuted in violation o f the Equal Protection Clause of the Fourteenth Amendment. The defense motion seeks dismissal of the indictment on that ground, and the Government's motion in limine seeks to preclude the defendants from raising the selective prosecution issue at the jury trial. On referral from the district judge, the undersigned magistrate judge conducted 414 days o f hearings on these motions, beginning June 27, 1997, and concluding on July 14-17,1997. The parties were given until July 24,1997, to file post-hearing briefs and, which both parties filed although the defendants’ brief was delayed in the Huntsville Clerk's office. On the basis o f the testimony, exhibits, evidence, and arguments and stipulations of counsel, the following findings of fact and conclusions o f law are proposed for consideration by the court. Findings o f Fact 1. The populations of the Alabama counties of Greene, Hale, and Wilcox are predominantly African-American. In fact, Greene County has a 92% African-American population. App. 41 Greene County is located within the federal judicial district for the Northern District o f Alabama, while Hale and Wilcox County are located in the federal judicial district for the Southern District of Alabama. In the State o f Alabama judicial system, Hale and Wilcox County are located in the Fourth Judicial Circuit, comprised of Bibb, Hale, Perry, Dallas, and Wilcox Counties, while Greene County is 'part o f the Seventeenth Judicial Circuit, comprised of Greene, Sumter, and Marengo Counties. The Alabama Circuit Judge presiding over the Seventeenth Judicial Circuit is the Honorable Eddie Hardaway, Jr., who is African-American. Judge Hardaway was first elected to his office in November, 1994 and sworn into office in January, 1995. The district attorney for that circuit is Barrown Lankster, who is African-American also. The circuit judges presiding over the Fourth Judicial Circuit are the Hon. Jack Meigs and Thomas R. Jones, both of whom are white. The district attorney for that judicial circuit is Roy L. Johnson, who also is white. 2. Prior to the late 1960s or early 1970s, African- Americans were effectively disenfranchised as voters in Greene County. Only with the passage of the Voting Rights Act o f 1965 and voter registration efforts in the years following thereafter did African-American voters begin to go to the polls in significant numbers. Because o f the history of violence and intimidation associated with efforts by African-Americans to exercise their vote, many African-Americans continued to be uncomfortable going to the polls to vote, and felt more comfortable voting an absentee ballot in the privacy o f their homes. Due to the unique racial history o f voting in Greene County and perhaps others, absentee voting became a widespread practice evidenced by a significantly higher rate of absentee voting in Greene County compared to counties with predominantly white populations. The rate o f absentee voting continued to accelerate, however, into the 1990s. In the 1992 Greene County general election, approximately 700 absentee App. 42 ballots were cast. Two years later, in the 1994 Greene County general election, 1,429 absentee ballots were cast out o f a total o f approximately 3,800 votes cast. Thus, in the 1994 Greene County general election, absentee ballots comprised approximately 37% of all votes cast in Greene County. O f the 1,429 absentee ballots cast, fewer than 4.0 were cast by white voters.1 After the initiation of the investigation in this case during 1995 and 1996, absentee voting dropped off drastically, with only about 200 being cast in the 1996 presidential election. 3. Although the testimony did not identify the race o f every official in Greene County, it is clear that most of the county officials are African-American. Certainly, the Circuit Clerk, the Tax Assessor, the majority (if not all) o f the county commission, the Probate Judge, the Circuit Court Judge, and the D istrict A ttorney in Greene County are all African-American. 4. The testimony identified a number o f groups active in the political and civic affairs of Greene County. Among these are the AlabamaNew South Coalition, the Alabama Democratic Conference, the traditional Alabama Democratic Party, and the Citizens For an Better Greene County. Such organizations as the Alabama New South Coalition, the Alabama Democratic Conference, and the Democratic Party are actively involved in 'This small number of absentee ballots may not be surprising. Greene County Tax Assessor John Kennard testified that African-Americans constitute 92% of the population of Greene County, and that only 32 to 37 white voters cast absentee ballots, if 37 absentee ballots were cast by white voters out of a total of 1,429, this constitutes a rate of 2.5%. Given that whites constitute only 8% of the population of Greene County, the fact that only 2.5% of the absentee ballots cast were by white voters may not be unusual. App. 43 politics, including endorsement of candidates and active campaigns. The Citizens For a Better Greene County is an incorporated, tax-exempt charitable organization not directly involved in politics. It is a biracial organization with about 600 members. Its Articles of Incorporation mandate that its board o f directors be composed of a black man and woman and a white man and woman. Some of its founders and early organizers included William Johnson and Rosie Carpenter, both o f whom are black. Its bylaws provide that any elected officeholder in Greene County may participate only as an associate member, who may not vote or hold office in the organization. The Citizens For a Better Greene County, as an organization, does not endorse candidates or campaign for candidates, although certainly members of the organization may do so. Citizens For a Better Greene County was organized for the purpose o f creating a forum through which governmental and public issues affecting the citizens o f Greene County could be discussed and examined. In that regard, it has sponsored candidate forums at which all involved in particular races have been invited to appear and speak. 5. Defendant Frank “Pinto” Smith was elected Greene County Commissioner from District 4 in the 1994 general election, defeating in the Democratic Primary the incumbent, James Carter. Smith defeated Robert Hines in the general election o f November o f 1994. Both Smith and Carter were then and are now members of the Alabama New South Coalition. No evidence was offered concerning Hines’ membership in any organization. 6. Defendant Connie Tyree is an employee o f the Greene County Commission and an active community organizer. She also is a member o f the Alabama New South Coalition. During the 1994 general election, her signature appeared as a witness on 166 absentee ballots, more than any other person. App. 44 7. Little o f the testimony focused on specific political races during the 1994 election. In one race for county commissioner, William L. Johnson defeated incumbent Commissioner William “N ate” Roberson in the Democratic Primary and again in a run-off following the primary, despite the fact that Roberson polled 94 absentee ballots to 54 for Johnson in the run-off. A fter being defeated in the Primary, Roberson then ran in the General Election on the Patriot Party ticket. In the November General Election, Roberson polled 182 absentee ballots to 65 for Johnson. Although Johnson had more votes than Roberson at the polls, the absentee ballots gave Roberson the victory. Johnson, who is African-American, is one o f the founding members o f the Citizens For a Better Greene County; Roberson was supported by the Alabama New South Coalition. Following the election, Roberson complained to an FBI agent involved in the voter fraud investigation that he knew of no wrongdoing by his campaign workers, but had heard of two alleged improprieties involving Johnson. First, he alleged that Dorothy Jones told him that Johnson and Greene County Tax Assessor John Kennard had approached her about stealing the absentee ballot o f an elderly friend, Essie Morton. They allegedly promised to “take care of her” if she did so. Also, Roberson complained that he had heard that Johnson was carrying around the absentee ballot o f Horace McAlpine, seeking to have someone forge the voter’s signature. Both of these improprieties were investigated. Dorothy Jones denied being approached by Johnson or Kennard with regard to Essie Morton's absentee ballot, and it was determined that no ballot was cast in the name o f Horace McAlpine. Both Johnson and Kennard deny the allegations. 8. The investigation o f potential absentee voting abuses in Greene County that ultimately lead to the indictment in this case began even before the 1994 General Election. In September of 1994, Tax Assessor John Kennard telephoned FBI Special Agent Marshall Ridlehoover in Tuscaloosa, Alabama, to tell App. 45 him that he had noticed that a significant number o f absentee ballots had been mailed to addresses that were not the voters’ addresses. A similar call was placed to Assistant United States Attorney John Ott a few days later. Additionally, Greene County Circuit Judge Claude Neilson, who retired in January 1995, mailed to then Acting United States Attorney Walter Braswell a copy o f a letter Judge Neilson had received from an inmate at the Greene County Jail indicating his familiarity with voter irregularities going on in the county. In order to open an active investigation into voter irregularities, the FBI required the concurrence o f both the United States Attorney for the Northern District o f Alabama and the Department o f Justice in Washington. That concurrence and authorization to open the investigation was given in October o f 1994. Almost immediately, the investigation was stalled when all absentee ballots in the State o f Alabama were impounded in Mobile by the United States District Court for the Southern District o f Alabama as a result o f the election dispute in a race for the Chief Justice o f the Alabama Supreme Court. Through much of 1995, the investigation was dormant. During that period o f October 1994 to October 1995, the investigation passively received information that was volunteered, but it conducted no active investigation. 9. In September o f 1995, Special Agent Ridlehoover was contacted by Jessie Seroyer, Jr. and Ed McFadden of the Alabama Attorney General's Office. Seroyer was the senior special investigative agent for the Attorney General's Office and McFadden was an attorney in the office. They inquired whether the FBI had an active investigation on-going into absentee voting in Greene County, and were informed that there was an investigation. Later, on October 16, 1995, Ridlehoover was contacted again by McFadden and Deputy Attorney General Christy Lee, requesting that the Attorney General's office be allowed to jo in the investigation. That request led to a meeting in early November 1995 between representatives of the App. 46 Alabama Attorney General's Office and the Office o f the United States Attorney for the Northern District o f Alabama. Also present during the meeting were representatives o f the Federal Bureau o f Investigation and the Alabama Bureau of Investigation. A decision was reached to conduct the investigation jointly and Assistant Attorney General Gregory Biggs was designated as a Special Assistant United States Attorney to assist with the Greene County investigation. Biggs had been with the Attorney General's Office only one month at the time. 10. In late November 1995, the Alabama Bureau o f Investigation issued subpoenas to obtain possession of all absentee voting records in Greene County, including applications, absentee-voter affidavits, and ballots. The records were picked up by the FBI and transported to the Attorney General's Office in Montgomery. 11. At the Attorney General's Office in Montgomery, a significant 'amount of time was involved in inputting absentee voting information into a computer data base used to track the identity o f the witnesses to the signatures o f the voters on the absentee ballots. By using the data base, investigators were able to sort and collate the ballots according to the names o f the witnesses on the ballots. This information revealed that particular persons may have signed a ballot as a witness anywhere from as few as one time to as many as 166 times. Defendant Tyree witnessed 166 ballots, more than any other person. Investigators confirmed that 1,896 absentee ballots had been applied for by voters,, o f which 1,429 ballots were actually cast. The remaining 467 ballots were mailed to voters according to the instructions on their application, but, for whatever reason, were not voted and returned to the Circuit Clerk's office. 12. As part of the investigative process, agents matched absentee ballot applications with actual absentee ballots App. 47 subsequently cast. It became apparent that there were discrepancies between the purported signatures o f the voters on the applications and the signatures o f the same voters on the actual ballots cast. Also, it became apparent that a significant number o f absentee ballots were mailed to the same addresses, one being the post office box for the executive committee for the Democratic Party in Greene County and the other a post office box for the Greene County Water Authority. Similarly, a significant number of absentee ballots for District 3 o f Greene County were being mailed to a post office box in Eutaw, which is not in District 3 o f the county. 13. By February o f 1996, another meeting was held in the U.S. Attorney's Office in Birmingham to decide how to narrow the scope of the investigation. At that point, all 1,429 absentee ballots had been reviewed, and a decision was made to limit the investigation to only those ballots on which appeared any witness who had witnessed more than 15 absentee ballots. Applying this criteria to the ballots, approximately 800 ballots fit that category. Neither the race nor political affiliations o f the voters or witnesses were revealed by the ballot documents. At that point, a plan was devised under which investigators from the FBI, ABI, and the Attorney General’s Office would contact and interview all o f the approximately 800 voters whose ballots fit the investigative criteria. A standard interview format was devised under which the voters were asked about applying for the ballot, obtaining the ballot, whether they were assisted in filling out the ballot or the absentee voter affidavit, and how the ballot was returned to voting officials. During late February and March of 1996, 13 agents took approximately 3 weeks to contact and interview most of the 800 voters, utilizing the standard interview format each time. The interviews were not conducted in a confrontational manner, because the voters were viewed as being victims and were so treated. App. 48 14. In December o f 1995 and January o f 1996, three churches with predominantly African-American congregations were burned in Greene County. As part o f a nationwide church-burning investigation, an investigation into these three particular arsons began under the supervision o f FBI Agent Larry Long. When the voting fraud investigation reached the point at which it was preparing to interview approximately 800 people in Greene County, a supervisory decision was made to add to the voter fraud interview format certain questions regarding church burnings. This decision was made to save manpower and resources, while at the time same giving agents an opportunity to contact as many as 800 people in Greene County to determine if any o f them had information about the church burnings. The melding o f these two investigations at this interview stage was entirely a cost-saving decision. 15. Once the approximately 800 voter interviews were completed, a decision was made to focus further investigative efforts only on those ballots the votes [sfc] affirmatively stated that he or she did not cast the vote or did not sign the absentee voter affidavit. This narrowed the scope o f the investigation to approximately 40 to 50 ballots where there was evidence that the vote cast was not the true choice o f the voter. Based on these 40 or 50 ballots, federal grand jury subpoenas were issued to obtain the handwriting exemplars o f those persons whose names appeared as witnessed on the ballots. These subpoenas were issued beginning in May o f 1996. To date, approximately 35 to 40 handwriting exemplars have been obtained, although subpoenas have been issued to additional people from whom handwriting exemplars have not been obtained successfully. 16. The testimony o f the defendants, handwriting expert, Larry Keith Nelson, established that a number o f other people, aside from the defendants, may have been involved in obtaining App. 49 forged or fraudulent voter signatures on absentee ballots.2' Mr. Nelson compared handwriting exemplars of ten people to all of the absentee ballots made available to him. Those ten people were Roosevelt Brown. Sam Powell, Jr., Anessia. K. Belton, Lenora McGee, Mary L. Scarbrough, Willie T. Webster, Rosie L. Carpenter, Lenora T. Burks, Mary F. Webster, and Mary A. Webster. On the basis of his comparison o f these handwriting exemplars with the absentee ballot applications and affidavits, Mr. Nelson was able to express opinions o f varying degrees of certainty that some voters' signatures may have been written by some of these people. For example, he was able to conclusively determine that Roosevelt Brown wrote the voters’ signatures on the absentee ballots o f Mater Burton, Bertha Goodson, Sherwood Goodson, and Avis Goodson. He concluded less 2In expressing his opinions, Mr. Nelson stated that the certainty of his conclusions fell along a continuum ranging anywhere from positively excluding a person as being the author of a questioned signature to positively concluding that the persons was the author, on this "scale of conclusions,” Mr. Nelson Used particular terms as terms of art to indicate the degree of certainty of his opinion. Whenever he suggested that there were “indications" that a particular person was the author of a signature, he meant simply that certain characteristics of the signature were consistent with the characteristics of the known handwriting of such person but that there were also characteristics that were inconsistent. Such a conclusion ranks only slightly more certain than an inconclusive opinion. Next, whenever Mr. Nelson said that a person "probably" was the author of a signature, this meant that the person “very likely” was the author o f the signature. Similarly, the term “highly probable” meant that there was only a remote possibility that someone other than the subject of the handwriting analysis was the author of the questioned signature. Finally, a positive conclusion, synonymous with certainty, was indicated when Mr. Nelson simply stated that the known person "wrote” the questioned signature. App. 50 certainly that there were "indications” that Brown wrote the voters' signature on the absentee ballots o f Ethel Colvin and Edward Lavender. He also concluded that it was “highly probable” that Roosevelt Brown wrote the signature on the absentee ballot o f John I. Lavender. He concluded positively that Rosie Carpenter wrote the voter's signature on the absentee ballot of Robert Cook, and less certainly that there were “indications” that she wrote the voter's signature on the absentee ballot o f Joe Wrencher. Furthermore, Mr. Nelson concluded that there were “indications” that the signature on the absentee ballot o f Van Allen Green was written by Willie T. Webster, and that the signature on the ballot o f Matthew Dixon “probably” was written by Mary A. Webster. Similarly, he concluded that there were “indications” that Mary L. Scarbrough wrote the signature on the absentee ballot of Christopher Hicks, and that there were "indications” that Mary F. Webster wrote the signature on the ballot o f Joe Wilson Hill. 17. Although Mr. Nelson had no handwriting exemplars for several other people, he nonetheless concluded with varying degrees o f certainty that other people were involved in signing the absentee ballots o f several other voters. He was able to draw these conclusions based not upon formal handwriting exemplars but writing samples contained in other written materials supplied to him. Thus, he concluded that Felicia Johnson “probably” wrote the signature on the absentee ballot o f Latasha Johnson; that Johnny Scott “probably” wrote the signature on the absentee ballot o f Elizabeth Deloach; that it was "highly probable” that Esther Colvin wrote the signature on the absentee ballot o f Peggy Colvin; and there were "indications” that Minnie Branch wrote the signature on the absentee ballot o f Rufus Branch.3 There was no testimony offered to clarify whether any familial relationship exists between Minnie Branch and Rufus App. 51 18. In addition to the voter fraud investigation and prosecution in Greene County, conducted by the U.S. Attorney's Office for the Northern District o f Alabama, agencies o f the State o f Alabama also have investigated and are prosecuting voter fraud cases in state court in Wilcox and Hale Counties. Assistant Attorney General Gregory Biggs has been the lead prosecutor for the Alabama Attorney General's Office in the prosecutions in Hale and Wilcox Counties, as well as the liaison with the U.S. Attorney's Office for the Northern District o f Alabama in the Greene County investigation. The Hale County investigation was conducted entirely by the Alabama Bureau o f Investigation, which then submitted its information to Assistant Attorney General Biggs for evaluation for prosecution. In Wilcox County, the Attorney General's office contracted with an investigator to carry out a voter fraud investigation in that county. A personality conflict arose between Sheriff Prince Arnold o f Wilcox County and Assistant Attorney General Biggs that interfered with the investigation of voter fraud in that county. Although Sheriff Arnold had investigated possible voter fraud by two white people, he refused to share his investigative file with Biggs, proclaiming that he would hire his own prosecutor to handle the case. Biggs never refused to consider the case or to prosecute it, but was prevented from doing so because Sheriff Arnold refused to give him the investigative file to do so. Sheriff Arnold was angry Branch and Peggy Colvin and Esther Colvin, which might otherwise explain the signatures. Oddly, in investigative interviews that occurred on March 4, and March 8, 1996, Felicia. Johnson stated inconsistently that she signed her absentee ballot but did not vote, while her sister, Latasha Johnson, affirmatively acknowledged that she voted and signed her own absentee ballot, which was witnessed by her sister, Felicia. See Defendant’s Exhibits 33 and 34, App. 52 with Biggs because Biggs had earlier dismissed disorderly conduct charges against two white poll watchers arrested by the Sheriff. Biggs investigated the allegations against the poll watchers and determined that there was not sufficient evidence to merit prosecution. He then exercised legitimate prosecutorial discretion to dismiss the cases. This angered Sheriff Arnold and prompted him to refuse to cooperate with other investigations by Biggs and the Attorney General's office. 19. Hale and Wilcox Counties are located within the federal judicial district for the Southern District of Alabama. On several occasions, the Attorney General's Office has requested the assistance of the U.S. Attorney for the Southern District of Alabama in carrying out voter fraud investigations in those and other counties. To date, no assistance has been forthcoming. See Government’s Exhibit 2. 20. October 26, 1994, sisters Rosie Carpenter and Annie Thomas both were arrested by Sheriff George Hall o f Greene County on the basis o f complaints signed, respectively, by Ronetta Hicks and Dorothy Lee, accusing Ms. Carpenter and Ms. Thomas o f attempting to influence or bribe them as voters. Both Ms. Thomas and Ms. Carpenter are African-American females in their seventies. On November 18,1994, the District Attorney o f Greene County, Barrown D. Lankster, who also is African-American, moved to nolle pros both cases. Those motions were granted by the Greene County District Judge, who also is black, on November 29,1994, resulting in the dismissal o f the charges against Ms. Thomas and Ms. Carpenter. 21. The investigation of absentee-voting irregularities in Greene County continues even today, with FBI and Attorney General investigators traveling to Greene County on a weekly, if not daily, basis. Decisions concerning the direction o f the investigation and prosecution are being made by the United App. 53 States Attorney's Office for the Northern District, and Assistant Attorney General Biggs merely assists, not controls, the United States Attorney. Conclusions of Law The decision concerning whom to prosecute and what charges to file are core functions of the Executive Branch o f government, which carry a strong presumption of regularity. United States v. Armstrong. 517 U .S.___ , ___ 116 S.Ct. 1480, 134 L. Ed. 2d 687, 698 (1996); Wavte v. United States. 470 U.S. 598,607,105 S.Ct. 1524,84 L. Ed. 2d 547 (1985). Courts are naturally reluctant to inquire into the prosecutive decision-making process, not only because it transgresses the separate functions performed by the Executive Branch, but also because it exacts costs in the criminal process, such as delaying prosecutions and disclosing prosecution strategy. Balanced against the very broad discretion vested in prosecutors is the constitutional constraint that they not selectively prosecute people for constitutionally impermissible reasons such as racial or religious discrimination or to chill the exercise o f fundamental rights. The balance between these competing interests is struck on the burden of proof required of a defendant to overcome the presumption of regularity. Only upon a showing by clear and convincing evidence that a defendant has been subjected to an unconstitutionally-motivated selective prosecution is the presumption dispelled. See United States v. Armstrong, supra: Wavte v. United States, supra. “ [I]n the absence o f clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” United States v. Armstrong, supra a t___(quoting United States v. Chemical Foundation. Inc.. 272 U.S. 1,14-15,47 S.Ct. 1, 71 L. Ed. 131 (1926)). The burden of proof is intended to be "a demanding one, in order to assure that only truly meritorious claims warrant the costs entailed in pursuing them. United States v. Armstrong, supra. App. 54 The essential elements o f a selective-prosecution claim are drawn from equal-protection analysis. The requirements for a selective-prosecution claim draw on “ordinary equal protection standards.” [Citation omitted]. The claimant must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” [Citations omitted]. United States v. Armstrong, supra, a t___, 134 L, Ed. 2d at 699 (quoting and citing Wavte v. United States. 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L. Ed. 2d 547 (1985) and Ovler v. Boles. 398 U.S. 448,456, 82 S.Ct. 501,7 L. Ed. 2d 446 (1962)). Thus, the two elements o f selective prosecution that must be proven by clear and convincing evidence are first, that the defendant was selected for prosecution when other similarly situated individuals were not prosecuted, and second, that the selection o f the defendant for prosecution was motivated by an unconstitutional desire to discriminate on the basis o f race or some other impermissible standard. These elements can be referred to as the “selectivity” prong and the "motivation" prong. It must be emphasized that both prongs must be proved by clear and convincing evidence to establish selective prosecution sufficient to dispel the presumption of regularity that attaches to prosecutorial decisions. A conceptual understanding o f the selectivity prong is not difficult. Here, the defendant is required to show by clear and convincing evidence that a prosecutorial decision was made to prosecute him or her and not to prosecute other persons similarly situated to the defendant. It is not enough to show simply that the defendant has been prosecuted and that some other person like him has not yet been prosecuted. The limits o f human resources and ability necessarily mean that not all similarly-situated defendants can be simultaneously prosecuted; App. 55 some are prosecuted presently, and others will be prosecuted in the future. Rather, to establish the selectivity prong, the defendant must show an affirmative decision by prosecutors to charge the defendant and an affirmative decision by the prosecutors not to charge other, similarly-situated individuals. Only by showing that the prosecution has decided both to prosecute the defendant and not to prosecute others can it be said that the prosecutors have “selected” the defendant. Proof o f something less than that "selection” proves only the obvious - that the defendant is being prosecuted at the present time and that there are other people who may yet be prosecuted in the future. To overcome the presumption that prosecutors are acting in good faith, a defendant must prove that there is no basis for believing that they are, indeed, acting in good faith, and he can do this only by showing that prosecutors have "selected" him for prosecution, ignoring similar wrongdoing by others. The “motivation” prong o f a selective-prosecution claim requires proof by clear and convincing evidence that the "selection" decision made by the prosecutor was impermissibly motivated by a desire to discriminate against the defendant on an invidious basis or on the basis o f the defendant's exercise of fundamental constitutional rights.4 As with all equal protection “While the Armstrong case involved a claim of racial discrimination in selective prosecution, the older case o fWavte v. United States was grounded upon a claim that a defendant was selectively prosecuted because he had exercised his fundamental First Amendment right to freedom of speech. Various circuits around the country have held that political affiliation, like speech, is one of the fundamental constitutional rights protected by the First Amendment which cannot be a factor motivating a decision to prosecute a particular defendant. See United States v. Torquato. 798 F.2d 271 (7th Cir. 1986) ("Membership in a political party is protected by the First Amendment, and the mere App. 56 questions, however, the proof must establish that the defendant was selected because o f his race or political affiliation. “Discriminatory purpose” ... implies more than... intent as awareness of consequences. It implies that the decision-maker... selected or reaffirmed a particular course o f action at least in part "because o f ' not merely “in spite of,” its adverse effects upon an identifiable group. Wavte v. United States. 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L. Ed. 2d ,541f 557-558 (1985) (quoting Personnel Administrator o f Massachusetts v. Feeney. 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L. Ed. 2d 870 (1979)). Thus, to prevail on a selective prosecution claim, there must be clear and convincing evidence that the defendant was selected for prosecution “because o f ’ his or her race or political affiliation, not merely “in spite o f ’ them. It is not enough merely to correlate the selection with the defendant's race or political associations. It exercise of that right cannot be punished by means of selective prosecution.”); United States v. Falk, 479 F.2d 616 (7th Cir. 1973) ("[Jjust as discrimination on the basis of religion or race is forbidden by the Constitution, so is discrimination on the basis of the exercise of protected First Amendment activities, whether done as an individual or, as in this case, as a member of a group unpopular with the government.”); United States v. Cyprian, 23 F.3d 1189 (7th Cir. 1994)("Selective prosecution is grounds for acquittal only if the basis of selection is a forbidden ground, such as race, religion or political opinion.”); see also Lennon v. Immigration and Naturalization Service. 527 F.2d 187 (2nd Cir. 1975); Adame-Hemandez v. Immigration and Naturalization Service. 769 F.2d 1387 (9th Cir. 1985); United States v. Pottorf. 769 F. Supp. 1176 (D. Kan. 1991); United States v. Carson. 434 F. Supp. 806 (D. Conn. 1977k United States v. Mavroules, 819 F. Supp. 1109 (D. Mass. 1993). App. 57 must be the race or political association that is the target o f the selection decision; the defendant is selected because of his race or affiliation. Carefully considering the evidence presented in light o f this “demanding” standard, the court believes that the defendants have failed to establish either that they were selected for prosecution or that the prosecution was motivated by an invidiously-discriminatory intent. First, on the selectivity prong, the defendants have not proven that they have been singled out for prosecution and that an affirmative decision has been made not to prosecute other similarly situated individuals. It is certainly true that there is evidence in the record indicating that other people have engaged in fraudulent absentee-ballot voting activities, including forging voters, signatures and altering ballots. What has not been shown is that these other individuals will never be prosecuted. The Government has staunchly maintained throughout that the investigation of fraudulent absentee-voting activities in Greene County is on-going and that these defendants are but the first in a series of people yet to be indicted and prosecuted. It is not uncommon, and certainly is legitimate, for a prosecuting authority to allocate its limited resources by investigating and prosecuting defendants serially rather than simultaneously, building stronger prosecutions over time. The presumption of regularity mandates that the court presume that the prosecutors are acting on the basis o f this legitimate motive absent some "clear evidence” to the contrary. The defendants have offered no “clear evidence” that it is untrue that more prosecutions are to come. What today may seem like defendants being singled out for prosecution may later, in the fullness of time, be nothing more than the first o f many prosecutions. Because of the presumption of regularity, it is the burden of the defendants to show that, in fact, no other prosecutions are planned and that they alone have been singled out for prosecution. This they have App. 58 not done. There simply is no evidence before the court to justify a conclusion that no other prosecutions are planned by the Government. To the contrary, the testimony o f the case agent, special Agent Marshall Ridlehoover, confirms that the investigation is continuing actively even today. Consequently, the defendants have failed to carry their burden o f proving selectivity. Similarly, the defendants have failed to carry their burden o f proving a discriminatory or other constitutionally- impermissible motive for the prosecution. A great deal o f evidence focused on the possibly illegal activities o f people viewed by the defendants as their political opponents. The defendants argued generally that a number o f people associated with the Citizens For a Better Greene County have also engaged in the same types o f voter-fraud activities alleged in the indictment against the defendants. At the outset, it seems clear that, even if this is true, race was not a motivating factor. All o f the other people identified by the defendants are themselves African-American, like the defendants. W hile not impossible, it is highly unlikely that these defendants would be singled out for prosecution "because o f ’ their race, when others o f the same race were not prosecuted for similar activities. I f race motivated the prosecution against these defendants, it would also motivate the prosecution o f others. Thus, there is no clear and convincing evidence that the race o f these defendants was a factor in the prosecutive decision to charge them. Neither does the evidence prove clearly and convincingly that these defendants were prosecuted “because o f ’ their political affiliation. The defendants' argument advances more by negative implication. They argue in substance that they are members o f the Alabama New South Coalition and that others not prosecuted for activities similar to those for which they are charged are members o f a rival political organization, the Citizens For a Better Greene County, which, they say, the App. 59 Government favors. But the evidence is not nearly so strong. While it does point to some people who are members of Citizens For a Better Greene County, it also points to others who are apparently not members o f either organization.5 The evidence simply does not establish any pattern that the Government chose not to prosecute people because o f their membership in Citizens For a Better Greene County or chose to prosecute people because o f their membership in the Alabama New South Coalition. Hence, the defendants failed to carry their burden o f showing clear and convincing evidence that the decision made by the United States Attorney's Office to prosecute these two defendants was motivated in part by a desire to punish them either for their membership in the Alabama New South Coalition or due to their opposition to Citizens For a Better Greene County. Conclusion In summary, the court concludes that the defense motion to dismiss the indictment on the ground O f selective prosecution is due to be denied. The demanding standard o f showing clear and convincing evidence to dispel the presumption of regularity that attached to prosecutorial decisions has not been met. It follows., therefore, that the Government's motion in limine to preclude the defendants from asserting the selective-prosecution Tor example, there is evidence of potentially illegal activity by Rosie Carpenter, who clearly is a member of and associated with Citizens For a Better Greene County. On the other hand, there is evidence of possible illegal activity by such people Esther Colvin, Johnny Scott, Minnie Branch, and Roosevelt Brown, none of whom were clearly linked to Citizens For a Better Greene County. The defendants also advanced a number of unsubstantiated allegations against several people who expressly denied any association with Citizens For a Better Greene County. App. 60 claim as a defense during the jury trial is due to be granted. As the Supreme Court made clear in United States v. Armstrong, selective prosecution “is not a defense to the merits o f the criminal charge,” but a bar in abatement o f the entire prosecution i f it is established. Because the evidence here does not establish selective prosecution, the continued prosecution o f these defendants is not barred, and any discussion of selective prosecution during the jury trial would be irrelevant and prejudicial to the merits of the charges. Recommendation Based upon the foregoing findings of fact and conclusions o f law, the magistrate judge RECOMMENDS that the motion to dismiss on selective prosecution grounds filed by the defendants on February 24, 1997, be DENIED, and that the Government's motion in limine filed on March 5, 1997, be GRANTED. Any party may file specific written objections to this report and recommendation within fifteen (15) days from the date it is filed in the office of the Clerk. Failure to file written objections to the proposed findings and recommendations contained in this report and recommendation within fifteen (15) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal. The Clerk is DIRECTED to send a copy o f this report and recommendation to all counsel o f record in this action. DATED this 29th day o f July, 1997. T. MICHAEL PUTNAM CHIEF MAGISTRATE JUDGE Constitutional and Statutory' Provisions Involved The Due Process Clause o f the Fifth Amendment: ... nor shall any person ... deprived o f life, liberty, or property, without due process o f law U.S. Const. Amend. V. The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury o f the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have Assistance o f Counsel for his defense. U.S. C o n s t . Amend. VI. The Equal Protection Clause of the Fourteenth Amendment: .... nor shall any State ... deny to any person within its jurisdiction the equal protection o f the laws. App. 61 U.S. C o n s t . Amend. XIV, § 1. The Voting Rights Act o f 1965, §§ 11(c) and (e), 42 U.S.C. § 1973i(c) and (e) (c) False information in registering or voting; penalties Whoever knowingly or willfully gives false information as to his name, address, or period o f residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose o f encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose o f selecting or electing any candidate for the office o f President, Vice President, presidential elector, Member o f the United States Senate, Member of the United States House o f Representatives, Delegate from the District o f Columbia, Guam, or the Virgin Islands, or Resident Commissioner o f the Commonwealth of Puerto Rico. * * * (e) Voting more than once (1) Whoever votes more than once in an election referred to in paragraph (2) shall be fined not more than $10,000 or imprisoned not more than five years, or both. (2) The prohibition o f this subsection applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member o f the United States Senate, Member o f the United States House o f Representatives, Delegate from the District o f App. 62 App. 63 Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth o f Puerto Rico. (3) As used in this subsection, the term "votes more than once" does not include the casting o f an additional ballot if all prior ballots o f that voter were invalidated, nor does it include the voting in two jurisdictions under section 1973aa-l o f this title, to the extent two ballots are not cast for an election to the same candidacy or office. United States Sentencing Guidelines: Section 2H2.1. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18, if the obstruction occurred by use o f force or threat o f force against person(s) or property; or (2) 12, if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means, except as provided in (3) below; or (3) 6, if the defendant (A) solicited, demanded, accepted, or agreed to accept anything o f value to vote, refrain from voting, vote for or against a particular candidate, or register to vote, (B) gave false information to establish eligibility to vote, or (C) Voted more than once in a federal election. U.S.S.G. § 2H2.1. f