Brief for Appellee

    IN TqI

UNTTED STATES COT'RT OF APPEALS

FOR TEE

ELEVEMTH CIRCUTT

No. 84-7287

JULIA P. WILDER,

AppeIIee

V.

EALON l{. tAMBERTT €t etI.r

Appellants

On Appeal from the United States District Court
for the l.tiddle District of Alabama

cv 83-E-580-N

BRIEF FOR APPELLEE

ANTEONY G. AUSTERDAI{ JULIUS L. CHAII{BERS
New York University LANI GUfNIER
schoor of Law NAAcp Legal Defense Fund, rnc.
40 Ylashington Square South 99 Eudson Street
Room 327 New york, New york 10013
New York, New York 10012 15th Floor
1212) s98-2638 (212) 219-1900

SIEGFRIED KNOPF VA}IZETTA PENN DURANT
555 California Street 639 trtartha Street
Suite 5060 Montgom€Ey, Alabama 3GIOB
San Francisco, CaI. 94104 (205') 262-7337

ATTORNEYS FOR APPETLEE



STATEMENT REGARDING PREFERENCE

This appeal is entitled to preference as an appeal from a

grant of habeas corpus under 28 U.S.C. 52254.

11



Appellee respectfutly reguests oral argument. The legal
issues are complex and the conBequencea for apperree are signifi_
eant.

-111-



TABLE OF CONTENTS

STATEIT{ENT REGARDING

STATEMENT REGARDTNG

PREFERENCE

ORAL ARGUMENT

STATEMENT OF THE ISSUES .....

STATEMENT OF THE CASE

Page

ii

iii

iv
vi

I.

II.

III.

SUMI,TARY OF

STATEIT,IENT

ARGUMENT O

PROCEEDINGS BELOW

STATEI{ENT OF THE

STATEIT,TENT OF THE

FACTS

STANDARD OF REVIEW

THE ARGUMENT

OF JURISDICTION

THE INDICTMENT AGAINST !,TS. WILDER WAS
FATALLY DEFECTIVE IN THAT IT FAILED TO
INFORM HER OF THE NATURE AND CAUSE OF
THE ACCUSATION ......O""""
A. The Indictment was Constitutionally

Defective In That It Failed To Pro-
vide Fair Notice Of A1l Of The
Charges On Which The Jury Was Per-
mitted To Return A Verdict Of Guilt

The Indictment Was FatalIy Defec-
tive In That It Failed To Include
Constitutionally Sufficient A1Ie-
gations Concerning The Charges Of
Fraud

( 1 ) The factual allegations in
each count were constitu-
tionally insufficient to pro-
vide notice of the nature and
cause of the allegedIy fraudu-
lent conduct ..........

x

1

10

11

12

12

B.

12

13

25

IV-

27



Pfgc

(21 Counts I and II were consti-
tutlonally lnsufflcient for
failure to allege the crucial
mental element of the offense
of fraudulent votlng under
S 1 7 - 2 3 - I . . . . . . . . . . . . . . . . . . . . . . . . . .

CONCTUSION . . . . . . . . . . . . . . . . . . o. . . . . . . . . . . . . . . .. . . . . . . . .

CERTIFICATE OF SERVICE .o..............................

31

33

35

-v-



Case

Andrews v. State, 344 So.2d
cert. denied, 344 So.2d

BacheIIar v. l"laryland , 397

Barbee v. State, 417 So.2d

TABLE OF CASES

533 (Crim. App. )
538 (A1a. 1977) .

u.s. 564 ( 1970 ) .

511 (AIa. Crim.

,
aaoaoaaaaoa

oaaoaaaaoaa

Page

20

25

4

20

12 r19

21 t22 r23

24

23

19

3r19r33

21

4

20

23 t24

19

20

26

App.1982)

Boykin v. Alabama, 395 U.S. 238 ( 1969) ................

Carafas v. La VaIlee, 391 U.S. 234 (1968)

Carter v. State, 382 So.2d 610 (AIa. Crim.
App. '1980 ) , cert. denied, 382 So.2d
614 ( 1980) .................. o o..... ..... o.....

Cole v. Arkansas, 333 U.S. 196t 201 (1948)

County Court of Ulster County v. Allen, 442
U.S. 140 (1979 ) . . . . . .. .. . . . . . .. . . . . . .. . . . . . . .. . ... .

DeJonge v. Oregonr 299 U.S.353 (1937) ......o....

Dunn v. United States, 442 U.S. 100 (1979) ............

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir.
1959)

25

19

19

Gordon v. Stat

Gray v. Rains,

In re Gault, 3

Jackson v. Vir

Keck v. United

Malloy v. Purv

Nelson v. Stat
App.1973)

e, 52 Ala. 308 (1875) ... ......

662 F.2d 589 (1Oth Cir. 1981)

87 u.S. 1 (1967)

ginia, 443 U.S. 307 (1979)

States, '17 2 U.S.

is, 681 F.2d 736

e, 278 So.2d 734

434 (1899)

( 1 1th Cir. 1982) .......
(AIa. Crim.

Plunkett v. Estel1e,709 F.2d 1004 (5th Cir.
1983), cert. denied, 104 S.Ct. 1000 ...o............

Presnell v. Georgia, 439 U.S. 14 ( 1978) ...............

-vI.



Case

RusseII v. united States, 369 U.S. 749 (1962)

oaaaa

Page

19 r21
27 ,32

24

12

26

24 r25 126

23

24 ,25 ,26

25

Shuttlesworth

Smith v. orGra

Street v. New

Stromberg v. C

Tarpley v. Est
1983), cert

Terminiello v.

united States

United States
Cir.1973)

United States

United States
Cir. 1977)

United States

Cir.1976)

United States
denied, 588

v. Birmingham, 382 U.S. 87 ( 1965) ..... o.

dy, 311 U.S. 329 ( 1941) .................

York, 394 U.S. 576 ( 1969) .....

alifornia, 283 U.S. 359 (1931)

eIIe, 703 F.2d 157 (5th Cir.
. denied, 104 S.Ct. 508 .......

( 1875 ) . . . . . . . . o . . . . o . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

United States v. Curtis, 506 F.2d 985 (1Oth
Cir. 1974 ) ........ ..........

United States v. Diecidue, 503 F.2d 535 (5th
Cir. 1979) ... ...o...... ....o........

United States v. Dorfman | 532 F. Supp. 1 1 1 I
(N.D. I11. 198'l ) . o .. . .. . .. . . . .. . . . . .. . . . . . .. . . . . ...

United States v. Dreyfus, 528 F.2d 1064 (5th

Chicago, 337 U.S. 1 ( 1949) .............

v. Augurs | 427 U.S. 97 (1976 ) .... o......

l..llllll:.i'.:.::::.l::1.1::: .......
v. Carll, 105 U.S. 51 I ( 1882) ...........

l: .li::: : .:n1.1: il. : :::. ::::. . . . .

v. Cruikshank, 92 U.S. 542

aaaaa aoaaoaaaaaaaaaaaaaaaaoaaaaaaaaa

v. Haas, 583 F.2d 216, reh.
F.2d 829 (5th Cir. 1978),

32

32

28

21 ,22 r27

29

32 r33

29

28

cert. denied, 440 U.S. 981 (1979 ) ..................

United States v. Hess, 124 U.S. 483 (1888) ............

United SLates v. Huff, 512 F.2d 66 (5th

20 r31

27

32Cir. 1975)

-vtl.-



Case

United States v. Nance, 144
477, 533 F.2d 699 (1976)

U.S. App. D.C.

united States v. Outler, 659 F.2d 1306 (5th
Cir. Unit B 1981), cert. deniedr 445 U.S.
950 (1982 ) ........ ..... ... o.... ...... o ........

United States v. Ramos, 666 F.2d 469 (1lth
Cir. 1982) .............. o..........................

United States v. Strauss, 283 F.2d 1955
(5th Cir. 1960) ........o.............. ........

von Atkinson v. smith, 575 F.2d 819 (1oth
Cir. 1978) .................. ..... o o..... o

Wainwright v. Sykes, 433 U.S. 72 (1977) .o.............

Watson v. Jingo, 558 F.2d 330 (6th Cir. 1977 ) ... o.....

Westbrook v. Zant, 704 E.2d 1487 (11th Cir.
1983) ................ o.............. o.........o....

Wilder v. State, 401 So.2d 151 (AIa. Crim.
App.), cert. denied, 401 So.2d 167 (Ala.
1981 ), cert. denied, 454 U.S. 1057 (1982) ..........

Williams v. North Carolina, 317 U.S. 287 (1942) .o..o..

Wilson v. Stater 52 A1a. 299 (1875) ..............

united States Constitution and Statutes

Sixth Amendment . o...

Fourteenth Amendment ..........
28 U.S.C. 52241(c)(3) o....o.... ........

Page

29

20 t27
28 t31

1g t2'l ,31

20 r31

23

11 ,25

23

'l ,8 ,18

26

18 r24

25

25

12

ii
"t2

34

25

28 u.S.C. S2254

Fed. R. Civ. P.

Rules Governing

aaaaaaaaoa aaoaaaaaaa aaaaoaaaa

54(b) ............. .............. o

Section 2254 Cases

- vIl.t



l

Pasg

Alrbere Stetutcc ;

-

Ala. Acts 1980, No. 80-732, p. 1 478, SS3, 4 ...... r....
AIa. Code 513-5-115 (1975) ............................

Ala. Code S17-10-3 (1975)

AIa. Code Sl7-10-6 (1975)

AIa. Code S17-10-7 (1975)

AIa. Code S17-23-1' (1975)

a a aa a a aa a a a a a a a a a a a a a a a a a a a a a

6

11r14
15 r16 r17

llrl4rl5

.... o....... r......... o......6 ,11 r74 r15

................ .. ... ........ 6 r11 r14

. ....... ............. r... .... PagSiItr

Other Aothorltler

-

75 Am. Jur.2d Tria1 5885 ....o..ooo....o....o.o......o.. 26

76 Am. ilur.2d Tria1 S1111 ..........o.o................. 26

-ir-



STATEIITENT OF TEE ISSUES

Whether an indictment which fails to inform a
defendant of the. nature and cause of the
accusation against her viotates the Sixt[ and
Fourteenth Amendments?

-x

,f



IN THE

UNITED STATES COURT OF APPEATS

FOR THE

ELEVENTE CTRCUIT

No. 84-7287

JULIA P. WILDER,

Appellee

Vo

EALON It{. LAI{BERTT €t 61.7

Appellants

On Appeal from the United States District Court
for the t{iddle District of Alabana

cv 83-H-580-N

STj\TEUENT OF THE CASE

I. PROCEEDINGS BELOW

This is an appeal by Ealon I[. Lambert et aI. (hereinafter

"the state'or "appe1lants") from an order of the District Court

for the Middle District of Alabama, the Honorable Truman Hobbs,
1granting the motion for summary judgment of Julia p. wirder.

lls. Wilder agrees with the recital of prior proceedings in
Appellants' Brief except that it is incomplete.

1 rh. following abbreviations wilr arso be used: "Tr.' for circuitcourt trial transcripti "Hrg. Tr." for Hearing before Judge
Hobbsi nR.' for Record on Appeal.



After judgment of conviction by the trial court but prior to

the filing of the present federal habeas petition, in addition to

the proceedings set forth on page 4 of Appellants' brief:

a. A motion for a neh, trial was made to the trial court

(the Circuit Court of Pickens County), and was denied on

September 2'l , 1979.

b. The Court of Criminal Appeals of Alabama denied Ms.

Wilderrs motion for rehearing on April 21, 1981.

In the federal habeas case, in addition to the proceedings

set forth at pages 5-6 of Appellants' brief:

1. Concurrently with the filing of her petition on June 8,

1983, l,ls. Wilder f iled a motion requesting that the district

court order the state to produce the full transcript of certain

out-of-courL statements which, lls. Wilder alleges, were used

against her in violation of her constitutional rights.

2. On June 28, 1983, the district court ordered the state

to show cause why the relief requested by Ms. Wilder should not

be granted.

3. On JuIy 18, 1983, the state filed a motion to dismiss

the petition contending that Ms. Wilder had failed to exhaust

state remedies.

4. On August 10, 1983, Ms. Wilder filed a reply brief to

the staters motion to dismiss.

5. On September 1, 1983, the district court denied the

staters motion to dismiss.

2



6. On September 22r'1983, the state filed an answer to the

pet it ion .

7. On October '7, 1983, the state filed an amended answer.

8. On December 2, 1983, the district court issued an order

denying Ms. Wilderrs motion refered to in paragraph 1 Lbove, and

ordering both parties to file a brief or other documents setting
out their positions on the issues in the case.

9. On December 19, 1983, Ms. Wilder filed her response to
the district courtrs order of December 2.

10. On January 10, 1984, the state filed its response.

11. On January 20, 1984, MS. Wilder filed a motion for
summary judgment, amended February 23, 1984, challenging, on

three grounds, the constitutional sufficiency of her indictment.

12. On ApriI 13, 1984 the district court ruled for ItIs.

Wilder on the due process issues raised by her motion for summary

judgment, and ordered the writ of habeas corpus to issue unless,

within ninety days, the state retried her. The district court
also discussed and decided against Ms. WiIder an issue under

.lacfson v; Virginia, 443 U.S. 307 (1979) which her motion for
2

summary judgment had not raised.

13. The April 13 judgment was certified pursuant to Fed. R.

Civ. P. 54(b), and on tlay 1, '1984 the district court granted

appellants a stay of judgment pending appeal.

See note 15, below.

3



II. STATEII{ENT OF FACTS

AppeIIee Julia P. Wilder was convicted of violating Alabama

Code S17-23-1 and was sentenced to five years' imprisonment

because of her alleged participation in an effort to assist

elderly and illiterate black voters in Pickens County, Alabama to

vote by absentee ballot in the Democratic Primary Run-Off
3

Election held on September 26r 1978 (hereinafter the'run-off").
A vaguely worded statute which, prior to t'ls. Wilder's appeal, had

Iast been authoritatively construed in a published opinion in
1875r s€ction 17-23-1 prohibits inter alia "any kind of iIlegal
or fraudulent voting. "

The indictment against Ms. Wilder charged that she:

COUNT ONE

did vote more than oncer or did deposit more
than one ballot for the same office as her
vote t ot did vote i11ega1Iy or fraudulently,
in the Democratic Primary Run-off Election of
September 26, 1978,

At the time her federal habeas petition was filed, Ms. Wilder was
on parole in the custody of appellant members of the State Board
of Pardons and Parole. Appellants have stated that Ms. Wilder
was subsequently released from parole. Ms. Wilder, of course,
has and still suffers irreparable damage due to collateral
consequences arising from this felony conviction including the
Ioss of various civil liberties, including the franchise. See
Carafas v. La Vallee, 391 U.S. 234 (1968); Irlalloy v. Purvis, ffiT
fficir. t9a2).

4-



cot NT Two

did vote more than once as an absentee voter,
or did deposit more than one absentee ballot
for the same office or offices as her voter oE
did cast i1legal or fraudulent absentee
ballots, in the Democratic Primary Run-off
Election of September 26, L978,

COUNT TEREE

did cast illegal or fraudulent absentee
ballots in the Democratic Primary Run-off
Election of September 26, 1978, in that she
did deposit with the Pickens County Circuit
CIerk, absentee ballots which were fraudulent
and which she knew to be fraudulent, against
th e peace and d i gn i t.y of the State of
Alabama.

Tr.305.

The evidence at trial indicated that on October 10, 1978,

two weeks after the run-off, the Sheriff of Pickens County, Mr.

Louie Coleman, along with the District Attorney of the County,

t"1r. P.14. Johnstonr €lD investigator named llr. Charlie Tate and Mr.

Johnston I s secretary, Ms. Kitty Cooper, opened the county

absentee ballot box, and began searching for ballots which could

be connected to Ms. Wilder and to the general effort, in which,

as had come to the attention of the such officials, Ms. Wilder

was involved, to aid elderly blacks in Pickens County to vote by

absentee baIlot. Tr. 69-70. They isolated thirty-nine absentee

ballots out of the many cast. These ballots
following method. Mr. Tate was able to get

were isolated by the

the names of certain
voters whose application for an absentee ballot [ls. Wilder had

5



4
turned into the Pickens County Circuit Clerk. Tr. 70-71t 74-76i

s-ee also Tr. 45-46. Since at that time Alabama Iaw required that
the absentee ballot contain the name of the voter, Ala. Code

SS17-10-6, 17-10-7 ( 1975), SS3,4, 1.1r. Tate was thus able to

identify the ballots of each of these voters, and when it hras

noticed that each of these ballots'had been notarized by the same

man (a black notary from outside of Pickens County named Mr. Paul

Rollins), o11 of the absentee ballots notarized by IrIr. RoIlins,
amounting to a total of 39, vrere isolated. Tr. 68 | 75-76.

The names on each of these 39 absentee ballots indicated

that each was the vote of a different b1ack, elderly, and

infirmed resident of Pickens County. The state claimed that Ms.

Wilder, who is 72 years old, participated in the casting of these

ballots in violation of S17-23-1.

Testimony was given by 14 of the 39 voters whose ballots
were introduced into evidence. Of these 14 witnesses, the Court

of Criminal Appeals cited the testimony of five as having been

incriminatory of Ms. Wilder to some degree: Mr. Charles

At the time of Ms. Wilderrs trial a complicated multi-step
process for voting by absentee ballot was prescribed by Alabama
Iaw. In order to receive an absentee ballot, one had first to
pick up an application for an absentee baltot. The application
had to be filled out and witnessed and mailed in to the appro-
priate county office. An absentee ballot could then be procured,
but only by having it mailed to the address indicated on the
application. The absentee ballot once completed had to be
notarized. Alabama Code SS17-10-5, 17-10-7 (1975). These
statutes were amended within a year after tls. Wilder's trial to
no longer require notarization of the absentee ballot, Acts 1980,
No. 80-732t p. 1478, SS3r4.

5



Cunn ingham, l'ls .

Deloach , and Flr.

Lucille Harris, Ms. Sophia Spann, t'ls. EuIa

Robert Goines, Wilder v. State, 40'l So.2d 151,
5

161-162 (AIa. Crim. App.), cert. denied 401 So.2d 167 (1981).

5 th" district court accepted as correct the Alabama court's review
of the evidence. R. 159. According to that court, the testimony
of [1r. Cunningham ]ras incriminatory because he testif ied that Ms.
Wilder aided him in voting by absentee ballot in a "wet-dry"
election. TE. 189, 193. Mr. Cunningham never testif ied that l'ls.
Wilder did not aid him to vote by absentee ba11ot in the run-off.
In fact, he stated that 1,1s. Wilder read him the names of the
candidates appearing on the absentee balloL when she aided him to
vote. Tr. I91. The testimony of Fls. Harris, Ms. Spann, Ms.
Deloach, and Mr. Goines was said by the Court of Criminal Appeals
to have inculpated t'ls. Wilder in that each claimed never to have
received or voted an absentee ballot in the run-off. 401 So.2d
at 161-62. In fact, only two of the voters were able to testify
with a reasonable degree of certainty that they never received an
absentee baIlot, Ms. Harris, Tr. 145-46, and t{s. Spann, TE.
106-107. No connection was drawn between Ms. Wilder and the
asserted failure of either of these witnesses to receive an
absentee ba1lot. According to Ms. Harris' ballot application,
the absentee ballot was sent to her home. Tr. 147-148. According
to Ms. Spannrs ballot application, her absentee ballot was sent
to the home of I{s. ttinnie Dunner HiII. See Tr. 224i State rs
exhibit #51.

Of the nine remaining witnesses who had voted absentee
ballots, three Ms. Mattie Gipson, TE. 99-105, Ms. Clemie
Wells, Tr. 170-179, and Ms. I"laudine Latham (whose testimony was
entered in summary form by stipulation), Tr. 193 -- drew no
connection between Ms. Wilder and their respective voting
activities in the run-off.

The remaining six voter-witnesses -- Ms. Annie Billups, ME.
Nat Dancy, l,!s. ltamie Lavendar, Mr. Lewis I'1inor, Ms. Bessie
Billups r and lvls. Fronnie Rice varied in their ability to
recaII the underlying events surrounding their vote in the
run-off, but no one of the six gave testimony from which it could
be concluded that Ms. Wilder employed fraud in order to vote more
than once. Each voter recalled that t'ls. Wilder had aided that
voter in voting absentee, with that voterrs knowledge and
consent. Tr. 94-95 (A. Billups); Tr. 126 (N. Dancy); Tr.
134-135, 137-138 (ltl. Lavender); Tr. 140-144 (L. Ivlinor); Tr. 154,
160-151 (B. Billups); Tr. 163-164, 168-169 (F. Rice).

7



Much of the testimony of the voters'was both confusing and

conflicting, and, depending on who was examining them

favorable to both the prosecution and the defense." 401 So.2d at

162. Whether caused by the manifest unreliability of the memory

of certain of the voters, their lack of experience with the

voting process, or the susceptibility of many to coercive and

leading questions from the prosecution, the confusing and

conflicting nature of the testimony makes characterizing the

evidence difficult. The testimony of Mr. Goines, cited by the

Court of Criminal Appeals 'as incriminat ing and presumably

characterized in the same way by the district court, is illustra-
tive. Mr. Goinesr ST years old at the time of tria1, Ty.87, in
poor health, i9., and illiterate, Tr. 85, began his testimony by

stating that he had voted in the run-off, Tr. 81. He remembered

also that Ms. Wilder had aided him in filling out an application
for an absentee ba11ot, Tr. 82. Mr. Goines was then asked

whether he had ever seen the absentee ballot voted in his name to
which he answered, 'Yes, sir, I believe sor" Tr. 83. But the

prosecutor was subsequently able to elicit on direct examination

a contrary ans$rer f rom [1r. Goines through the following line of
questioning:

Did you tell anybody they could vote for
you on September the 26Lh, 1978?

tObjection from defense counsel, over-
ruled I

0.

8



A. TeIl anybody that I could get somebody to
vote for me? You have to do you own
vot ing .

Q. That is *hat I thought, too. You did not
for your did

you?

[Defense counsel objects]

A. I didnrt do that. [Objection overruled].
I have to go straight.

Q. You go by I,he, rules?

A. I got to go straight. I didnrt do that.

O. A11 right, sir. You did not vote this
ballot, did you?

A. No sir. I donrt know a thing about this
ba1lot.

Prosecution RusseII: Your witness, counsel.

t'lr. Goines: I didn I t do it.

Tr. 84-85 (emphasis added).

The other sorts of evidence offered against Ms. Wilder,

viewed in the light most favorable to the prosecution, were that
she:

( i ) picked up a number of applications for absentee
ballots from the Circuit Clerkrs Office during the
week prior to the run-off, Tr. 44i subsequently,
returned some completed absentee ballot applica-
tions, TE. 45i and on the day before the run-off,
deposited a number of absentee balIots, id.; and

(ii) vras present with two or three young women, who did
not include the voters, at the notarizing of the
absentee ballots, Tr. 15-17 | and was permitted by
the notary, ME. Rollins, to represent whether the
signatures were genuine, Tr. 22, 25-27.

9



The prosecution advanced various grounds on which it
contended that I{s. Wilder should be held culpable, asserting
principally the following: (i) that Ms. Wilder did not ade-

quately explain absentee voting to the voters , Tx. 268, ( ii ) that.

many of the absentee ballot applications were signed with an 'Xr'
while the corresponding absentee bal1ot had been signed in
script, and that many of the witnesses denied having signed the

absentee ba1lot voted in their name, TE.269-270r 299i (iii) that
the notary did not have the voters before him when he notarized

the ballots, Tr. 259-270i and (iv) that some of the witnesses

testified that they had never bdfore seen the absentee ballots
voted in their names, Tr. 270, 299. The court below summarized

the evidence against Ms. Wilder. "Wilder picked up numerous

applications, she took them to persons whose votes were pur-

portedly "stolenr" she had access to many of the ballots, and she

$ras in the group that took them to Rollins Lo be notarized. " R.

at 1 65.

III. STATEUENT OF TEE STANDARD OF REVIEW

The standard of review is whether the district court

disregarded applicable legaI principles in its adjudication of

the constitutional merits of the case.

10



SUIII'iARY OF ARGUI,IENT

Ms. Wilder $ras indicted for violations of Alabama Code

S17-23-1 (1975). The court below found that the trial judge

instructed the jury on four statutes, Ara. code 517-10-3 (1975)

lmiscited by the trial judge as 517-23-31, Tr. 308-09; AIa. Code

S17-10-6 (1975) [miscited by the trial judge as 517-10-71, Tr.

309-310; AIa. Code S17-10-7 (1975), Tr. 310-31'l ; and Ala. Code

513-5-115 (1975), Ir. 311, and further instructed the jury that
proof of Ms. Wilder's commission of any act trnot authorized by

... or ... contrary to' any law would constitute an "illegaltr act

warranting her conviction under'917=23-1. Tr. 308. The effect of

these instructions was to make a violation of each of the other

statutes a separate ground for Iiability under 517-23-1. yet the

indictment contained no allegations that Ms. Wilder had violated
the other statutes or had engaged in acts which would constitute
violations of them.

For these reasons the district court correctly held that the

indictment failed to provide notice of the offenses for which Ms.

Wilderrs conviction was actually sought, and that her conviction

rras obtained in violation of due process. The failure of notice

was a defect of the indictment which It{s. Witder challenged in the

state courts and which the state courts upheld against her

challenge. Appellantsr Wainwright v; Sykes argument is therefore

totally wide of the mark.

11



STATEI,IENT OF JURISDICTION

The district court had jurisdiction under 28 U.S.C.

52241 (c) (3). The district court's final judgment was certified
pursuant to Fed. R. Civ. P. 54(b).

AF,GUUENT

THE INDICTI,TENT AGAINST I{S. WITDER WAS FATALLY DEFECTIVE IN THAT
IT FAILED TO INFORM EER OF THE NATURE AND CAUSE OF TEE ACCUSATION

The indictment f iled against t'ls. Wilder f ailed in numerous

respects to provide the level of notice required by the Sixth

Amendmentrs guarantee that in aIl criminal cases the accused

shall receive "notice of the nature and cause of the accusation"

against her. Each of these failures, standing alone, amounts to

a denial of constitutionally required notice; together, they add

up to a stunningly harsh and egregious denial of notice, a right
which the Supreme Court has deemed "the first and most universal-
ly recognized requirement of due process. " Smith v. O'Grady, 312

U.S. 329r 334 (1941); see also CoIe v. Arkansasr 333 U.S. 196,

201 ( 1948).

The district court found that the indictment failed to
provide any notice of a number of charges which $rere submitted to

the jury. t'ls. Wilder was tried, "to put it simply ... upon

charges that were never made and of which [she was] ... never

12



notified." R. 177. she did not discover the precise charges
against her, "unti1 [she] had rested [her] case." R. 176. The

district court held that she was thereby denied due process.

The rndictment was constitutionalry Defective rn Thatrt Failed To provide Fair Notice of A1l of The charjeson l{hich The ilury was permitted To Return A verdict ofGuiIt

The district court noted that various statutes and theories
of liability as to which the indictment provided no notice
whatsoever were incorporated into the charges submitted to the
jury as the basis for a finding that Ms. wilder had violated
s17-23-1 by "any kind of irlegal ... voting.,, The indictment is
set forth at pp. 4-s sqpra. rn each of its three counts, it
ostensibry tracked various provisions of s17-23-1. rt alreged
disjunctively with other charges in Count r that Ms. Wilder had

"votIed] illega1Iy or fraudulently," and in Counts rr and rrI
that she had "cast ilIegal or fraudulent absentee ballots." Only
in Count IIr was any factual specification provided; and there it
was alleged that Ms. Wilder had deposited fraudulent absentee
ballots which she knew to be fraudulent. rn none of the counts
was any elaboration given to that portion of the charge which
accused Ms. wirder of having "vot[ed] irregally" or having ,cast
i1lega1 absentee ballots. "

A.

13



In the instructions to the jury, the trial judge did frame

elaborate charges under which lyls. Wilder could be convicted of

iI1ega1 voting. After reading S17-23-1 to the jury, he explained

the statuters provision against'any kind of illegal or fraudu-

lent voting" by defining the terms "i1legal' and "frauduient."
\

Tr. 308. Concerning the term "illegalr" he instructed the jury

that "iIIegaI, of course, means an act that is not authorized by

Iaw or is contrary to the law. " Tr. 308. He then instructed the

jury on four statutes: Ala. Code S17-10-3 (1975) [miscited as

S1 7-23-31 , Tr. 308-309; Ala. Code Sl 7-1 O-5 ( 1975) lmiscited as

S17-10-71 | Tr. 309-310; A1a. Code S17-10-7 (19751, Tr. 310-311;

and Ala. Code S13-5-115 (1975), Tr. 311. None of these statutes

or their elements was charged against Ms. Wilder in the indict-

ment. Their terms provided numerous new grounds on which to

convict. The jury was thus author,ized to f ind Dls. Wilder guilty

under S17-23-1 if she had acted in''. manner'not authorized by or

. o o contrary to" any one of the provisions of a number of

statutes not specified or even hinted at in the indictment.

For example, the jury was first instructed on S17-10-3,

miscited by the trial judge as S17-23-3, which sets forth certain

qualifications as to who may vote by absentee ballot. The trial
judge instructed that under S17-10-3 a person is etigible to vote

absentee if he will be absent from the county on election day or

is afflicted with "any physical illness or infirmity which

prevents his attendance at the polls." Tr. 309. Thus a finding

14



by the jury that one of the absentee voters had not been physi-

cally 'preventIed]" from going to the polls to vote in the

run-off would have constituted the finding of an "act not

authorized by ... or ... contrary to' S17-10-3, necessitating tls.

Wilderrs conviction under S17-23-1 even though she was given no

notice in the indictment that such proof could be grounds for
I iabi I ity.

The trial judge then instructed the jury that S17-10-6,

miscited as S17-10-7, requires, inter aIia, that all absentee

ballots "shaIl be s$rorn to... before a notary public" except in

cases where the voter is confined in a hospital or a similar
institution, or is in the armed forces. Tr. 309-10. Further,

under S17-10-7, the trial judge stated that the notary must svrear

that the voter "personally appeared" before him. Tr. 310.

Accordinglyr €vidence that. the voters vrere not present at the

notarLzLng, see Tr. 19-30, 269-270, sufficed to establish per se

culpability under S17-23-1 although, again, the indictment gave

Ms. Wilder no warning whatsoever of any such basis for culpabi-
I ity.

The trial judge then instructed the jury that S13-5-115

provides:

"'Any person who shall falsely and incorrectly
make any sworn statement or affidavit as to
any matters of fact required or authorized to
be made under the election Iaws, general,
primaryr sp€cial or loca1 of this state shall
be guilty of perjury. I This section makes it
illegal to make a sworn statement, oathr or

15



affidavit as to any matters of fact required
or authorized to be made under the election
laws of this state. "

Tr. 311. Both sentences of this instruction contain egregious

misstatements concerning S13-5-115. The first sentence repre-

sents a verbatim reading of S13-5-115 with one crucial error. The

trial judge instructed that S13-5-115 proscribes "falsely and

incorrectly" making the sworn statements described in the

statute, whereas in fact the statute proscribes the making of

such statements "faIseIy and corruptly" i.9., with criminal
6-

intent. The second sentence of the instruction, which appare-

ntly represents the trial judgers interpretation of S13-5-115,

has the absurd result of making illegal every s$rorn statement

duly made under the election laws.

6 Th. district court wrote that "the judge charged the jury t,hat,
under Ala. Code 513-5-115, any person who falsely and corruptly
makes a srrrorn statement in connection with an election Is gullty
of perjury.' R. 171. While this is a fair characterization of
the terms of S13-5-115, the trial judge actually instructed the
jury that the statute penalized "falseIy and incorrectly" makinq
iucfr a statement. Tr. 311 (emphasis addedf.---TE'e--t aI judg5
thus rendered the addition of 513-5-115 as a new charge against
t{s. Wilder even more damaging than it otherwise would have been
by misreading it to remove the only word in the statute embodying
criminal intent ... "corruptly" and replacing it with a word

"incorrectlyn -- embodying no level of mens rea.

16



Irrespect ive of these misstatements, the charging of

S'l 3-5- 1 1 5 deprived Ms. Wilder of const itutionally required

notice. The misstatements of the terms of a statute which lls.

Wilder had no reason to suspect she was confronting in the first
7

place only aggravated this denial of due process.

Thus, three of the four statutes not charged in the indict-

ment had the effect of making any evidence of Ms. Wilder's
participation in the notarizing into evidence of pSI se culpabi-

tity under S17-23-1. The district court found that the trial
judgers charge, by explicitly permitting the jury to convict IvIs.

Wilder of casting an improperly notarized balIot, was prejudicial

because the jury could have convicted her on that basis alone.

R. 175-77. As the district court said: nThere is a world of

difference between forging a person's baIlot and failing to

foIlow the proper procedure in getting that person's ballot
notarized." R. 177. The indictment contained no allegations

which could have put Ms. Wilder on notice that her participation

in the notarizing process was violative of S17-23-l or in any way

The trial judge also misread 517-23-1 in a way which expanded the
charges against Ms. Wilder. He instructed the jury that 517-23-1
penalizes one who "deposits more than one ba1lot for the same
office.tr Tr. 307. In fact S 17-23-1 penalizes one who "deposits
more than one ballot for the same office as his vote" (emphasis
added). This omission by the trial judge-?adT-callflchanged the
meaning of the statute so that the mere physical act of deposit-
ing two or more ballots at the same election -- even ballots
deposited on behalf of other voters violates S17-23-1. It
thus produced a new charge against Ms. Wilder of which the
indictment provided no notice.

17



criminal. Yetr dt trial a large part of the prosecution's case

was spent attempt,ing to prove through the testimony of I{r.

RolIins, and through questions posed to virtually al1 of the

testifying voters, that the notarizing took place outside of the

presence of the voters, and that Ms. Wilder had participated in

that notarLzing. The district court found that the unindicted

charges were significant because they enabled the jury to convict

even if the jury believed that Ms. Wilder aided people to vote

absentee only with their knowledge and consent. R. 175. The

details of Ms. Wilder's dealings with the voters, beyond her

testimony that these were relationships of trust and consent, are

largely obscured in the testimony by the voters I poor memory,

their inability to read and write, their d9€r their Iack of

understanding of the voting process, and their susceptibility to

the leading and coercive questions of the prosecutor. l.ts. Wilder

contended that, to the extent any alleged deficiencies in voting

procedures hrere connecLed to her, they failed to establish that
8

she employed fraud to vote more than once. Hence, the charges

made for the first time in the instructions provided new grounds

for culpability which were crucial to her conviction.

The elements of the sole offense charged against Ivls. Wilder were
that she employed fraud to vote more than once. Wilson v. State,
52 AIa. 299, 303 (1875); Wilder v. State, 4Om
(AIa.Crim.App.),cert.deniffi7(A1a.198.l),cert.
denied, 454 u. S. fit57 ( ]ffi

18



The court below held that the failure to allege these

grounds for culpability in the indictment violated Ms. Wilder's

Fourteenth Amendment rights. The only relevant allegations in

the indictment were that Ms. Wilder had nvoteId] illegal1y"
(Count I) or had "cast iIIegaI... absentee ballots" (Counts II
and III) in the run-off . These allegations in no !.ray informed

Ivls. Wilder with particularity that she could be prosecuted under

the rubric of iIIegaI voting for acts "not authorized by... or

... contrary to' the four unalleged statutes charged in the

instructions. But "[n]otice, to comply with due process require-

ments, must be given sufficiently in advance of the scheduled

court proceedings so that reasonable opportunity to prepare wiII
be afforded, and it must rset forth the alleged misconduct with

particularity.'" Il re Gau1t, 387 U.S. 1, 33 (1967). "Convic-

tion upon a charge not made would be a sheer denial of due

process." DeJonge v. Oregon, 299 U.S. 353, 362 (1937); see also

Dunn v. United States, 442 U.S. 100, 'l 05 (1979); Jackson v..

Virginia, 443 U.S.307t 314 (1979); Presnell v. Georgiat 439 U.S.

14r 15 11978); Cole v. Arkansasr 333 U.S.196,201 (1948).

Ms. Wilder was plainly subjected to an egregious violation
of the rule that, in order to satisfy the Notice Clause of the

Sixth Amendment, an indictment must allege each of the essential

elements of every statute charged against the accused. ESg

Russe$ v. United States, 369 U.S. 749, 761-766 (1962)i United

States v. -Ramgs, 666 F.2d 469, 474 (11th Cir. 1982)i United

t9



States v. Oulls_ll, 659 F.2d 1306, 1310 (5rh Cir. Unit B 1981),

gg5g. @e1, 455 U.S. 950 (19.Q2); United States v. Haas, 583

F.2d 216, 219 reh. den:!35|, 588 F.2d 829 (5th Cir. 1978), ggf.

{gfSl, 440 U.S. 981 (1979) i United States v. Slrauss, 283 F.2d
9

155, 158-59 ( 5th Cir. 'l 960 ) . Here, the indictment f ailed even

remotely to identify the critical elements upon which her guilt
was made to depend at trial.

This rule is followed by the Alabama courts as a proposition of
both Alabama law and f ederal constitutional law. Sgg, e.!t.,

1.j

?ETjjj-re to include an essential elemenL of the offense in the
indictment is regarded as such a fundamental error that it
renders the indictment void, and objection to such an indictment

Andrews v. State, 344 So.2d 5331 534-535 (Ala. Crim. Apilf, Effi
ffia 539 (A1a. 19'77). rn facr, under Ai;ba;a-fffi

cannot be waived. See e.9., Barbee v. State, 4"17 So.2d 611 (Ala.
crim. App. t982)-r-!@r@o.zd 6to (Ata. crim.
App.), cert. {enied 3AZ So.Zd 6IlI TT980); In Nelson v. State, 278
so.2d zTI-(arEll-GTm. App. 1973), the court@basis
for the rule as follows:

"When rules of state practice and procedure
conflict with the due process clause of the
Fourteenth Amendment, they must yield to the
commandments of that Amendment....

'An intelligent and full understanding by the
accused of the charge against him is a first
requirement of due process. ***r Icitation
omittedl .

The c-onviction in this case cannot stand as it.
offends the first requirements of constitutional
due process. The failure to charge an offense
and the obvious harm to the defendant resulting
therefrom, is the kind of defect involved in due
process of law and it cannot be waived. "

Id. at 737.

20



The indictment also violated the

Cruikshank, 92 U.S. 542 ( 1875), that:

rule of United States v.

"where the definition of an offence, whether
it be at common law or by statute, includes
generic terms, it is not sufficient that the
indictment shal1 charge the offence in the
same generic terms as in the definition; but
it must state the species it must descend
to the particulars."

Id. at 558 (citation omitted). The Cruikshank rule is fundamen-

tal to the notice component of due process. See Russell v.

United States,369 U.S.749,765 (1962). lt is apposite to this
case because "i1legal" is unquestionably a "generic term." Keck

v. United States, 172 U.S. 434, 437 (1899); Goodloe v. Parratt

505 F.d 1041, 1045-45 (8th Cir. 1979). An indictment which

charges unspecified illegalities as did Ms. Wilder's in

charging her with "votIing] iIlegally" or 'castIing] illegal ...
absentee ba1lots" must, under Cruikshank, "descend to the

particulars' and identify the acts and underlying laws which

allegedIy constituted the i1lega1ities. Ig. In Ms. Wilder's

situation, Cruiksh_ank required that the indictment allege that

she violated 517-23-1 by failing to comply with each of the four

statutes as they were charged against her in the instructions,

and contain specific factual allegations giving her fair notice

of the acts which were allegedly criminal under those charges.

21



Such was the conclusion which the court below derived from

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir. 1979), where habeas

petitioner Goodloe had been convicted in a state court of

operating a motor vehicle to avoid arrest. Under Nebraska law

the crime allegedly committed by the defendant for which he was

subject to arrest, and because of which he was resisting, had to

be proven as an element of the offense of resisting arrest. Id.

at 1045. The Goodloe court found that during trial the prosecu-

tion changed the offense it was t."tring on as the crime for which

Goodloe was allegedIy resisting arrest. }!. at 1044-1045. This

change denied Goodloe constitutionally required notice. .Ig. In

addition, :-rrespective of the change in underlying offenses at

trial, the Eighth Circuit held under Cruikshan! that Goodloe was

denied constitutionally required notice because the initial

charge against him had failed to include notice of the underlying

offense which Goodloe had al1eged1y committed and because of

which he was allegedIy resisting arrest. The indictment there-

fore failed to "allege an essential substantive element. " Id. at
10

1 046.

1 0 rhe court reasoned:

"The indictment upon which Goodloe was tried
charged that he did, in the words of the sLatute,runlawfully operate a motor vehicle to flee in
such vehicle in an effort to avoid arrest for
violating any law of this State. I There is no
indication from this statutory language thatr ds
the trial court held and instructed the juryr dn
additional element must be proven for conviction:
actual commission of the violation of state law

22

i



The f acts of Goodloe are analogous to lrls. Wilder's case,

since the four statutes invoked against her which the state
failed to charge in the indictment were incorporated as substan-

tive elements of s17-23-1 's prohibition against iltegal voting.
Accord, Watson v. Jingo, 558 F.2d 330 (6th Cir. 1977). See also

Plunkett V. Esteller 709 F.2d 1004 (5th Cir. 1983), cert. denied

-

104 S.Ct. 1000; Tarpley v. Esteller 703 F.2d 157 (5th Cir. 1983),

cert. denied 104 S.Ct. 508; GLay v. Rains, 662 F.2d 589 (1Oth

cir. 1981); von Atkinson v. smith, 575 F.2d 819 (1oth cir. 1g7g).

The district court followed the basic approach of these cases in
determining that the jury could reasonably have convicted tls.

Wilder of a crime not charged in the indictment. The courtrs
determination was based on its examination of the trial as a

whole, including the charge, the arguments of counsel, the theory

of the prosecution and the evidence. R. 173-74. The court

rejected appellants' argument that lls. Wilder was challenging the

jury charge rather than the indictmentrs failure to provide fair
notice of the charge. As appellantsr now realLze, "Judge Hobbs

considered the instruction on statutes not contained in the

for which the defendant fled arrest. Once prior
violation of a specific state statute became an
element of the offense by virtue of the trial
court ruling, Goodloe was entitled not only to
notice of that general fact, but also to specific
notice of what law he hras alleged to have
violated. "

Id. at 1045.

23



ind ictment

instrument,

unindicted

Cir. 1983)."

to amount to a constructive amendment to the charging

allowing the jury to convict the defendant for an

crime. See, Plunkett v. Estelle, 709 F.2d 1004 (5th

Appellantsr Brief, Eg?eman v. Lambert, No. 84-7286,

See Qtromberg v. CaIiforni,a, 283

at 22.

This was entirely correct. It was the challenged indictment

which created the substantial potential for abuse eventually
11

realized by the oral charge.

U.S. 359, 364-65 ( 1931); Termin_iello v.. Chicago, 337 U.S. 1, 5

(1949). As Judge Hobbs explained, Ms. Wilder 'went into court

facing charges that Ishe] ... had rstolen' votes and ended up

being tried on the alternative theory that Ishel had committed

one or more statutory wrongs in the notarization of ballots." R.

176-77. Because the indictment failed to give Pls. Wilder fair

11 Appellants argue that the absence of case law construing 517-23-1
at the time of Ms. Wilderrs trial is an excuse for the trial
judgers "understandable' recourse to four uncharged statutes to
define the offense. Brief at 13. The Alabama Supreme Court had
construed 517-23-1 in Wilson v. State, 52 AIa. 299, 303 (1875),
to prohibit nvoting mo@na in Gordon v. jlggg, 52
AIt. 308, 309-10 (1875), to require proo ns rea. But
however unclear the Iaw construing S17-23:1 may havE-Ei6ei-in the
wake of these decisions, that is no justification for adding new
charges without notice. Compare Shuttlesworth V. Birmingham, 382
u.s. 87 (1965). wE€:d-'Ts ; in
Shuttlesworth, is that. the uncertain state of state law at the
ffiesu1tedinMs.wi1der'sconvictionuponsweeping
charges spun limitlessly out of the indictmentrs unspecified
allegations of illegat voting. It is these unspecified accusa-
tions, which hrere not confined by the definition subsequently
placed upon the charged offense by the Alabama Court of Criminal
Appeals in affirming the conviction, which form the basis for Ms.
Wilderrs constitutional complaint against the indictment.

24



'notice of the nature and cause of the accusation" against her as

required by the Sixth and Fourteenth Amendments, the district
court properly overturned her convictro.r. "

The Indictment Was Fatally Defective In That It Falled
To Include Constitutionally Sufficient Allegations
Concerning The Charges Of Fraud

Additlonal grounds support the district courtrs judgment

invalidating the indictment. Each count alleged at least in the

alternat ive that ltts. WiIder had in some way committed f raud

through her voting activities in the run-off. For the reasons

set forth in the following subsection ( 1 ), these allegations of

12 S-tfq*Ugqg and Terminiello demonstrate the f allacy of appellants'

-

ftTiE;U? on ffi-iililETlE v. sykes, 433 u.s. 72 1tgt7)- (erief ar
t5-1G). sotffi rhat an objecrion io'the jury
instructions is immaterial where the instructions merely reflect
constitutional inadequacies in the charges initially made.
United States v. Augurs, 427 U.S. 97, 112 n.28 (1976) ('!the

ocess refers to the charge" ). Since
the c.onstitutional fault lay in the indictmentr Do objections to
the jury instructions were required to preserve Ms. Wilderrs
challenge to it. Elkes is inapposite because Ms. Wilder pre-
sented the claim to the Alabama courts. She challenged her
indictment on due process and notice grounds at trial, R. 46,
Exhibit A, and on direct appeal her claim was rejected by the
Alabama Court of Criminal Appeals. 401 So.2d at 160-161. At
trial, counsel objected specifically to charging the jury on
perjury, Tr.315-16, and to the fact 'rthat the charge goes to the
laws relating to fraudulent notary seals which is beyond the
purview of this. " Id. S;gles is inapposite because there is no
upplicable state lEoceE'ilET rule bliring t'ts. Wilder's claims.
See, €.!f.7 County Court of Ulster V. A1len, 442 U.S. 140t 150-57

--1

Ffr'n.TT(l 1497, 1491 n.6 (ltrh
Cir. 1 983 ) . r'affing that Ms. wilder's ctaim is
barred, the Alabama courts consider the right to notice to be so
fundamental that objections to lndictments on the ground of lack
of proper notice cannot be waived. Note 9 supra. See, g:g--
aoviin -v. alabaryg, 395 U.S . 238, 241-42 ( 196ff

B.

25



fraud failed to provide the quantum of notice required by the

Sixth Amendment. Moreover, as noted in subsection (2) below,

Counts I and II failed to aIlege fraudulent intent or knowledge

as a necessary element of the offense charged-. Counts I and II

failed to allege any mens rea whatsoever. Only in Count III was

Ms. Wilder accused of having acted with fraudulent intent.

The prejudice caused by these constitutionally defective

counts is incalculable since Ms. Wilder was convicted under what

can only be described as an 'extra-general verdict. " In a

general verdict, the jury gives its verdict for each count

without elaboration as to the findings of fact. ESg generally 75

Am. Jur.2d Tria1 S885; 76 Am. Jur. 2d Tria1 S1'l 11. But in Ms.

Wilderrs case, despite a three-count. indictment, there was merely

a one-line verdict pronouncing her "guilty as chargedn of a

s ingle und i f f erent iated violat ion of S 1 7-23-'l . Tr. 332. Since

there is no way of determining under which count or counts the

jury convicted her, prejudice owing to even one defective count

requires the invalidation of her conviction. fr g-*-r
Strornberg v. Cal-ifornia, 283 u.S. 359 (1931); willi.ams v. Itlgrth
Caro1ina, 317 U.S. 287 (19421 i Terninig]lo v.. Chicago, 337 U.S. 1

(1949) i Street v. New Yor-5, 394 U.S. 576 ( 1969); Bachellar v.

Irlarvlandt 397 U.S. 564 (1970).

26



(1) The factual
const itutionally
the nature and
conduct

allegat ions
insufficient

cause of the

in each count were
to provide notice of
allegedly fraudulent

None of the three counts charging fraud stated the asserted-

ly fraudulent conduct with particularity. The counts alleged

nothing more than that Ms. Wilder voted fraudulently (Count I),

or cast fraudulent absentee ballots (Counts II and III) in the

run-off. In Count III only was this latter allegation elaborated

albeit insufficiently to satisfy the constitutional require-

ment of fair notice by accusing Ms. Wilder of depositing the

fraudulent absentee ballots with the Pickens County Circuit

Clerk, knowing that the ballots were fraudulent.

In order to pass constitutional musterr Ern indictment 'rmust

be accompanied with such a statement of the facts and circum-

stances as will inform the accused of the specific offence,

coming under the general description, with which he is charged. "'
Russell v. United States, 369 U.S. 749, 765 (1962) (quoting

United States v. Hesst 124 U.S. 483, 487 (1888)); see also United

States v. Ramos, 666 F.2d 469t 474 (11th Cir. 1982)i United

States v. Out1err 659 F.2d 1306, 1310 n.5 (5th Cir. Unit B,

1981). Fraud is a "generic Eerm" which is insufficient to

provide the constitutionally required notice unless detailed

factual allegat.ions are included in the indictment. See United

States v. Cruikshank, 92 U.S. 542t 558 (1875) (discussed at pp.

21-22t g3p,ra). The indictment 'must descend to the particulars"

27



of the acts

also United

of the

States

accused which

v. Diecidue

$rere allegedly fraudulent. See

F.2d 535, 547 (5th Cir.503

1e79).

It was inadequate for the state to allege (as it did in

Count III only) that Ms. Wilder had deposited fraudulent

absentee ballots in the run-off. Such an accusation failed to

inform "the defendant ..o of which transaction, or facts give

rise to the alleged offense. n United States v. Outler, ggpg.,
13

659 F.2d at 1310 n.5. In order to satisfy the rule of

Cruikshank, the indictment in its charging of fraud was required

to set forth the transaction alleged to have been fraudulent, and

to inform the accused of what. representations were alleged to
14

have been used to carry out the fraud.

Rulings on indictments in federal cases are also premised on the
Fifth Amendment requirement of indictment by grand jury, the
Federal Rules of Criminal Procedure, and federal common Iaw.
See, e.!t., Uhited States v. Outler, supra. However the cases
EiFed tiffiin es-itEi-invoked are mandated
coextensively by the Sixth Amendment Notiee Clause.

For example in United States v. Clarkr 546 F.2d 1130 (5th Cir.
1977), the court charging the accused with
making fraudulent representations in a loan application to a
United States agency. The c-ourt established that its scrutiny was
based inter alia on the Sixth Amendmentrs Notice C1ause, id. at
1 133 nl$-E-nd'Th-en proceeded to determine whether the indiEment
adequately identified the alleged fraudulent statements. Since
the indictment specified the approximate date on which the
allegedly fraudulent representations were made, the precise forms
on which such represent.ations were made, the purpose for which
such representations were made, and the entries on the forms
which were not accurate, the court held that the indictment had
sufficiently put the defendant on notice as to the substance of
the alleged fraudulent statements. Ig. at 1133-1134.

By contrast if the indictmenL fails reasonably to identify

13

14

28



This indictment did not even begin to descend to the

particulars of the alleged fraud. In Count I, there is only a

bare disjunctive allegation of fraudulent voting, with no

elaboration whatsoever. In Counts II and III, the absentee

ballots are alleged to have been fraudulent; and in Count III,
Ms. Wilder is accused of having knowingly deposited fraudulent

absentee ballots. But how Lhose ballots became fraudulent, and

what Ms. Wilder aIIegedIy did to effect that unexplained result
is unsaid.

the acts or statements through which the alleged fraud tdas
perpetrated, it is constitutionally deficient under the Notice
Clause. See €.9.7 United States v. Nan$r 144 U.S. App. D.C.
477 , 533 F.zi-offC1g urtis, 506 F. za 985
( 1 Oth Cir. 197 4) . ln Cur tment alleged:
(1) that Curtis' Uusiiffiurported to be a computer matcfiing
service for single people; (2) that Curtis sent out "compatibi-
lity Questionnaires" which he represented would be fed into the
computer, (3) that Curtis took money for this service and placed
ads soliciting customers; (4) that he sent out purported invoices
for eomputer service work for the purpose of convincing customers
that he was providing computer services; and ( 5 ) that in fact he
contracLed for services he did not provide. Id. at 987-89. The
indictment was held defective because, while iFstated in detail
the acts used to implement the scheme, it did not state what the
actual false promise was. Id. at 987, 989. Quite plainly,
however, it came much closer to-p-inpointing for Curtis tha natuie
of the alleged fraudulent statements, and the vehicle used to
perpetrate the fraud, than did the indictment filed against Ms.
Wilder. See also United States v. Dorfman, 532 F. Supp. 1118,
124 (N.D. TfT.-TfEt r which stited only
that defendants engaged in a "scheme or artifice [t]o obtain
money" through fraud, "Is]tanding alone clearly would not meet
the constitutional requirement of fair notice of the facts
underlying the charge'. Id. at 1125).

29



Certainly the mere depositing of more than one absentee

ba1lot, each purporting to be the ballot of a different voter,

would not in itself have constituted fraud. The alleged fraud

had to have occurred during the preparation of those ballots for

casting. The state was required to charger dt least in general

terms, the events or transactions during which the fraud a1-

legedly was committed, and the nature of the acts by ltls. Wilder

which allegedly constituted that fraud. Because the indictment

failed in this regard, Ms. wilder had no advance warning of which

of'her activities on behalf of the effort to bring out the black

vote among the elderly in Piclcens County was being seized upon by

the state as supposedly fraudulent. This failure to provide

constitutionally required notice was extremely prejudicial to her

ability to defend herself especially in view of the expansive

array of grounds and theories of liability which vrere spun out of

the indictment in the judgers charge to the jury. And if even

one or two of the three counts was insufficient in its factual

allegations, Ms. Wilder's conviction must be set aside because

the potential prejudice inhering in the defective count or counts

necessarily infects the jury's extra-general verdict finding her

guilty of a single undifferentiated violation of S17-23-1.

30



(2) Counts I and II were constitutionally insufficient
for failure to allege the crucial mental element
of the offense of fraudulent voting under

17-23-1

In order to satisfy the Sixth and Fourteenth Amendments, the

indictment was required to notify Ms. Wilder of every element of

the offense charged. See United States v. Ramost 666 F.2d 469,

47 4 ( 1lth Cir. 1982) i lqited States v. Outle_r , 659 F.2d 1306,

1310 (5th Cir. Unit B 1981), cert. dgniedr 455 U.S.950 (1982);

United States v. Haas, 583 F.2d.216, reh. 9SliS9, 588 F.2d 829

(5th Cir. 1978), cert. denied, 440 U.S. 981 (1978); United

States v. Strauss, 283 F.2d 155, 158-159 (5th Cir. 1960). Since

fraud was a necessary element of that offense see Note 8 supra

(discussion of the elements of S17-23-1)t each count of the

indictment was required to a1lege that she had acted with

fraudulent knowledge or intent.

Both Count I and Count II failed to alleged any fraudulent

knowledge or intent, and vrere therefore constitutionally insuffi-
cient. The fact that they were cast in the precise language of

S17-23-1 -- whose mental element is implicit rather than explicit
does not save them. 'rIn an indictment upon a statute, it is

not sufficient to set forth the offence in the words of the

statute, unless those words of themselves fully, directly, and

expressly, without any uncertainty or ambiguity, set forth all

31



the elements necessary to constitute the offence intended to be

( 1e62)punished.r' RusselI v. United States, 369 U.S 749r 765

(quoting United !!qte€_V. Cq_rll, 105 U.S. 611, 612 (1882) ).
Ordinarily, of course, because each count of an indictment

is meant to charge a separate offense and is therefore to be

treated in effect as a separate indictment, the finding of a

fatal defect in one counL would not impair the other counts of

the indict.ment or any guilty verdict announced as to those

counts. See United States v_. Huf_f , 51 2 F .2d 66 , 59 ( 5th Cir.
1975). But Ms. Wilderrs case is removed from the operation of

that rule by the extra-general verdict under which she was

convicted. That form of verdict renders it impossible to
determine on which count or counts the conviction rests. Under

these circumstances, the constitutionally defective counts are

inextricable from anything else. This is not a case such as

United States v. Berlin, 472 F.2d 1002, 1008 (2nd Cir. 1973),

where it was apparent on the record that the "jury very carefully
considered the evidence on each count and reached its verdict on

the evidence relative thereto." Rather, I1S. Wilder's situation

is comparable to gnited StaFes v.. Dreyf us , 528 F.2d 1064 ( 5th

Cir. 1976'), where the court overturned the convicLion on a

twenty-two count indictment because of a single defective count

since, under the circumstances present in that case, the court

felt that there was a significant probability that the submission

of one defective count to the jury prejudiced the deliberations

32



as a whoIe. Id. at 1071-1072. Ms. Wilder's conviction by a

single verdict of "guilty as charged" upon aIl three counts of

her indictment without differentiation suggests even more

strongly than i., 9Ig!5. a signif icant possibility of prejudice;

and the judgment of conviction must therefore fall because of the

unconstitutional failure of Counts I and II to allege each

necessary mental element of S17-23-1.

CONCLUSION

For the reasons

that the indictment
15

aff irmed.

stated, the judgment of the district court

was constit,utionally defective should be

l5'In affirming the judgment, the Court need not reach the suffi-
ciency of the evidence under Jackson q. Virginie, 443 U.S. 307
( 1979 i. Dls. Wilder orginialfy the district
courtrs sqs slglg decision of that issue in dictum, but has
dismisseiFEhiffiTs-appeat because further coGiAiEFation led
counsel to conclude that it is unnecessary to burden this court
with it. In the event that there are further proceedings in the
district court, Ms. Wilder can move there for reconsideration of
the Jackson issue in conjunction with other related factual
issueil-

The district court considered the Jackson issue although it
was not presented in t'ls. wilder's motio-friffi summary judgment.
Ms. Wilder had reserved the Jackson issue because of its intimate
connection to factual issueffi'%lving (a) her challenge under
the Sixth Amendment to the use, as substantive evidence, of prior
inconsistent statements from out-of-court interrogations aL which
no counsel was present for the witness or herself, and (b) her
challenge to prosecution for her federally protected constitu-
tional activity. lls. Wilder stated in the district court that
she was not moving for summary judgment on her Jackson claim 'in
that certain of the f acts-underlying this cfEllffi?e also the
subject of [the] claim [raised in paragraph 26 of the Petition].
Since her trial record is, as noted by the Alabama Court of

33



Respectfully submitted,

LANI GUINIER
NAACP Legal Defense Fund, Ine.
99 Eudson Street,
New York, New York 10013
16th Floor
(212) 219-1900

ANTBONY G. AI,TSTERDAI,T
New York University
School of Law
40 tf,ashington Square South
Roon 327
New York, New York 10012
(212) s98-2638

VA}IZETTA PENN DURANT
539 Martha Street
uontgom€rye Alabama 36108
(20s1 262-7337

SIEGFRIED KNOPF
555 California Street
Suite 5060
San Francisco, California 94104

Attorneys for Appellee

Criminal Appeals, particularly confused, petitioner requests that
consideration of both these claims be held in abeyance until
after an evidentiary hearing. Consistent with Rule 8(a) of the
Rules Governing Section 2254 Casesr p€titioner believes it is
appropriate first to dispose of those issues for which an
evidentiary hearing is not necessary and for which petitioner
believes she is entitled to prevail as a matter of law.'r R. 82.

34



.,.+...
CERTIFICATE OT SBRVICE

I hereby certify that i have this lst day of February 1985

served a copy of the foregoing on the attorney for appellants by

placing same in the United States mailr postage prepaid and

addressed as follows:

P.M. Johnston
P.O. Box 442
Aliceville, Alabama 35442

I,AI{I GUITIER
ATTORNEY FOR APPET.,I,BE

35