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 31, 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