Smith v USA Petition for Writ of Certiorari

    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