Brief for Appellant

    t--a
a

IN TIIE
I'!{ITED SEATES COT'RE OT APPEAL8

rOR TIIE EIJE\TENTH CIRCT'IT

No. 85-7726

SPIVER WEIII!{EY GORDON,

Appellant,

V.

I'NIIED STATES OF A}TERICA,

Appe1lee.

On Appeal Frou The United States DLstrict Court
For llbe Northera Dietrict Of Alabaua

BRIET FOR APPEIJAIII

JULIUS L. CHAI{BERS
C. IJANI GUIITIER
JOHN CIIARI,ES BOGER

99 Hudson Street
16th Floor
New York, New York 10013
(2L2) 2le-Ieo0

STEGI'RTED KNOPF
58th Floor
One World [rade Center
New York, New York 1,0049
(2L2) 839-5386

J. L. CHESTNT'T
CARIOS WILIJTAUS

P. O. Box 55961
Blnninghan, Alabama
(20s1 25L-L77L

}TORTON STAVTS
853 Broadway
14th Floor
New York, New York 10003
(2L2) 6L4-6425

ATTORNEYS FOR APPELIAI.TT

J.

,
I



I STATEI.TEIIIT REGARDTNG PREFERENCE

This is an appeal from a Judguent of convlctLon on four
federal criminal counts: two counts of ual,l fraud under 18

U.S.C. S 1341; and two counts of furnishLng false inforuation
under 42 Ir.S.C. S 1973i (c). The Judguent was entered on

Novembet 4, 1985, in the Unl,ted States Distrlct Court for the

Northerrr Distrlct of Alabaua.

lhe appeal should be given preference in processing and

disposition pursuant to Rule L2 and Appendix One (a) (2) of the

Rules of the Court.

1



C

STATEITfENT REGARDTNG OBAL ARGUI.{ENT

Appellant Splver Gordon requests the Court to hear oral
argument on this appeal. The case lnvoLves a nrrmber of complex

legal issues, including a novel application by the Goverrrment

both of criminal provlsions of the Votlng Rights Act of 1955 and

of the nail fraud statute, and lssues of flrst lrnpresslon

concerning the appllcation of the Supreme Courtrs recent opinion

i.n Batson v. Kentuclrnr, 

- 
u.s. 

-, 
90 L.Ed.2d 69 (1985). The

case comes to the Court on an extenslve (20-volume) record.

Mr. Gordon beLleves that oral argument wiLl naterlaLly
assist the Court in the resolution of the issues presented. by his
appeal.

1L



TABLE OF CONTENTS

STATEMENTREGARDINGPREFERENCE. . . . . . . . . . . . . . i

STATEMENBREGARDINGORALARGITI,IENT . o........ . ii

(.

TABLEOFAUTHORITIES. O ' ' ' ' ' ' ' ' ' ' ' ' ' '
STATEI{ENT OF EHE ISSUES PRESENTED FOR REVTEW . . . . . .

STATEIIENT OrTHE CASE . . . . . . . . . . . . . . . .

I. COURSE OF PROCEEDINGS IN THE COURT BEIOW . O ' '
II. STATE!{ENT OF TIIE FACTS . . . . . . . . . . . .

A. The GovernmentrE Canpalgn To Prosecute Voting
Fraud In Alabamars Blacl< Belt . . . .

B. The Governmentrs Dellberate Use Of ItrE Perenptory
Challenges To Strllce All BLack Jurors From Spiver
Gordonls Jury . o . . . . . .

C. ALabama Election Law Relevant Eo trhe Governmentts
Charges aaaaaaaoaaaaaaaaoa

D. The Evidence Presented At Trial . . . . . .
E. The District CourttE Modified Allen Charge o . . .

III. STAI{DARDS OF REVIEW . . . . . . . . . .

SUMMARYOFARGI'IIENT. . . . . . . . . . . . . . . .

STATE!{ENEOFJI'RISDICTION. . . . . . . . . .. . . . . .

ARGU!{ENTo......o..

v

1

2

2

4

4

10

15
17
25

3I

32

34

35

I . THE MAGISTRATE I S FINDTNG THAT TIIE GOVERN}IENT CHOSE TO
PROSECUTE SPIVER GORDON AI.ID OTHER BI,ACK POLITICAL
ACTIVISTS TOR ||VOTING FRAUDII WHILE OEHER SIUII,ARLY
SITUATED GREENE COUNTY RESIDENTS, WHO WERE !,IEMBERS OF A
RML,WHTTE-DOMINATED POLITICAL pARTy, WERE NOT
PROSECT'TED FOR STMII.AR ELECTION OFFENSES -- WHEN SEEN
TOGETHER WITH OTHER EVIDENCE STRONGLY SUGGESTING A
RACIAL OR POLITICAL UOTIVE FOR THE PROSECI'TIONS
REQUIRES THAT SPTVER GORDON BE ATFORDED DISCOVERY AND
AN EVIDENTIARY HEAR,ING ON HIS CI,AIM OF SELECTIVE
PROSECUTION . . . . . o . . . . r . . . . . 35

rI. THE GO'./ERNII{ENT I S DELIBERATE USE OF ITS PEREMPTORY
CHALI,ENGES TO STRIKE EVERY PROSPECTTVE BI,ACK JUROR FROM
SPIVER GORDONIS TRIAIJ JURY I'AMENTABLY CONSISTENT
WITH ITS PATTERN OF RACIAL EXCLUSIONS DURING OTHER
AI,ABAMA IIVOEING FRAUDII PROSECT'TIONS -- ESTABLTSHES A
PRI!{A FACTE VIOI,ATION BOTH OF SWATN v. AI,ABA}IA AND
BATSON v. KENTUCKY, REQUIRING A REVERSAL OF SPIVER
GORDON I S CONVICTION OR, AT !{rNrMUU, A REMAND FOR A FULL
EVIDENTIARYHEARING .......... . 40

iii



III. THE DISTRICT COTIRT ERRONEOUSIJY INSTRUCTED THE iTI'RY ON
ESSENTIAT EIJEMENTS OF EACH COUNT ON WHICH SPTVER GORDON
I{AS COTWICTED. . . . . . . . . . . . . . . . . . . . o . 51
A. The False Infomatlon Offense . . . . . o . . . . . . 53
B. Thg MaiL Fraud Offgnsg . . . . . . . . . . . . . . . 58

IV. EHE EVIDENCE WAS INSUFFTCIENT TO COT{I7ICT SPIVER GORDON

"T: :".T',: T',: :*.o: Y:':-Tn.'Y',.',T':YT':*. 65

V. BHE INDICTMENT FAILED TO GIVE SPIVER GORDON PROPER
NOTICE OF TIIE CHARGES ON T{HTCH HE WAS CO}IVICTED. . . . . 69

vr . tHE DrsTRrcT corrRT ' s ( 1) RErTrsAt To SEQUESTER spIvER
GORDONIS AIJL.WHITE JIIRY DTIRING ITS DELTBERATIONS IN
THrS RACTATJJY CEAP.GED CASE, (il) USE OF A PARTICITLARLY
coERcIvE !'IoDIFICATION Or rHE ALLEN CHARGE, AIID (11i)
STEADFAST REFUSAL TO DECIJARE A !{ISERIAL E[/EN AFTER A
POLL REVEATED T}IAT NINE JURORS IHOUGHT FI'RISTIER PROGRESS
ryPOSSIBLE, COI{BINED TO DEPRI\rE SPMR GORDON OF TIIE
FATR A}ID RELIABLE ,'URY VERDTCT TO WHICH IIE WAS
CONSEITTTIONALLY ENTITIJED. . . . . . . . . . . . . . . . 70

CONCLUSION . . . . . . . . . . . . . . o . . . . . . . . . . 74

1V



TABLE OF AUTHORITTES

CASES

Allen v. United States, L64 U.S. 492 (1896) . . . . . .
Arthur v. Nyquist, 573 F.2d 134 (2d Clr.), cert. denied,

Ir.s. 950 (1978) . . . . . . . . . . . . . . .
Batson v. Kentuclqr, If.S._r 90 L.Ed.2d 69 (1985) . .
Bouie v. City of Colurnbla, 378 U.S. 347 (1963) . . . .
Bozeman v. Laubert, No. 84-7286 (Ilth Clr. May 6, L985)

slipop. at2..... ..
v. State, 28 AIa. App. 260,

PAGE

. . . 7l
439

...37

. passim

. . . .64

irigil' : . 2'n
54 U.S.L.W.

.43

.65

.67

. 31

.38

.43

.50

.64

.38

.64

.38

.43

.43
38 ,47
.50

64

64
37
38
53
43
33

Broadfoot
Brown v.

aaaaaa

L82 So. 411
Unlted States, cert. grranted, _U.S._r

3793 (U.S. June 3, 1986) (No. 85-573I) .
Burksv. UnltedStatesr 43T U.S. 1(1978) . o . . . . . . .
Cosby v. Jones, 682 F.2d L373 (Ilth Cir. L982) . . . . . .
Cuyler v. Sullivan, 446 U.S. 335, 34L-42 (1980) . . . . . .
Davis v. Schnel1, 81 F. Supp. 872 (S.D. AIa.), aff rd, 336

Ir.S. 993 (1949) . . . . . . . . . . . . . . . . .
Desist v. United States, 394 U.S. 244 (1959) . . . . .
Dunn v. United Statee, 442 U.S. 100 (I.979) . . . . .
E1lj.s v. State National Bank of Alabana, 434 F.2d 1182 (sth

Cir. 1970), cert. denied, 4O2 U.S. 973 (1971)
oaaaaaaaaaaaaaaaaaaaaaaaaa

Flores v. Pierce, 6L7 F.2d 1386 (9th Cir.), cert.
denied, 449 U.S. 875 (1980) . . . . . . . . .

Gray v. Main, 309 F. Supp. 2O7 (!I.D. Ala. 1968) . . . .
Griffin v. County School Board, 377 V.S. 218 (L964) . . . .
Griff ith v. Kentucky, cert. granted, _U. S._, 54 U. S. L.W.

3793 (U.S. June 3, 1986) (No. 85-5221) . . . . . o

Hankerson v. North Carollna, 432 U.S. 233 (L977) . . . . .
Harris v. Graddick, 593 F. Supp. 128 (U.D. Ala. 1984) . . .
Harris v. oliver, 645 F.2d 327 (sth Cir. Unit B l9B1) . .
H111 Grocer:f, Co. v. State, 26 AIa. App. 3O2, 159 So. 269

(1935) . . . . . . . .
Holcombe v. Mobile County, 25 Ala. App. 15I, L55 So. 638,

cert. denied, 299 AIa. 77, 155 So. 640 (1934) .
Hunter rr. Erlckson, 393 U.S. 385 (L969) . . . . . . . o

Hunter v. Undernrood, _ U.S. _ 85 L.Ed.2d 222 (1985)
In re Winshipt 397 Ir.S. 358 (1970) . . . . . . . . . . . 33,
Ivan V. v. City of New York, 407 U.S. 2O3 (L972) . . . . . .
Jacksonv. Virginia, 443 U.S.3O7 (L979) . . . . . . . . .
Jenkins v. United States, 380 U.S. 445 (1955) (per

cUriam) . . . . . . . . . . . . . . . . . . . . . . 7L
Lee v. Nyqrrist, 318 8. Supp. 7LO (W.D.N.Y. I97O), aff td, 4O2

u.s. 395 (197L) . . . . . . . . . . . . . . . . . . 37
Mackey v. United States, 401 U.S. 667 (197L) . . . . 43
Marks v. Unlted States, 430 U.S. 188 (L977't . . . . . . . ,64
IttcCray v. Abrams, 75O F.2d 1113 (2d Clr. 1984), cert.

pending, (No. 84-1426). . . . o . . . . . . 45
Morissette v. United States,342 U.S. 246 (l.952) . . . . . 54,60
People v. HaII, 35 Ca1. 3d 161 , L97 CaI. Rptr.7L, 672

P.2d 854 (L983)(en banc) . . . . . . . . . . 45
People v. Whee1er, 22 CaI. 3d 258 , L48 Ca1. Rptr. 890, 583

P.zd748 (1978) . . . . . . . . o 45



Powell v. United States, 297 F.2d 318 (5th Cir. I96L) . . . .
Pullnan-Standard v. Swlnt, 456 U.S. 273 (LggZ) . . . . . . .
Resident Advisory Board v. RLzzo, 564 F.2d 126 (3d Cir.

L977) , cert. denied, 435 U.S. 909 (1979) . . . . . 37Russellv. UnitedStates,369 U.S.74g (1962) . . . . . . . . 70
Sandstrom v. Montana, 442 V.S. 510 (1979) . . . . . . . . . . 53
Shea v. Louisiana, _ U.S._r 84 L.Ed.2d 38 (1985) r . . . . 43spinkellink v. Wainwright,-Eze F.2d 592 (5th cir. 1978),

cert. denled, 44O U.S. L976 (1979) . . . . . . . . 37
State v. Gllnore, L99 N.J.Super. Ct. App. Div. 3gg, 499 A.2d

1L75, cert. granted, 101 N.if . 295, 501 A.2d 949(1985) . . . . . . . . . . . . . . . . . . . . . . 45
Stirone v. Unlted States, 361 U.S. zLZ (1960) . . . . . . . . 70
Swain v. Alabama, 380 U.S. 202 (1965) . . . . . . o . . . passin
UnitedStatesv. Albanezr 4SO U.S.333 (1991) . . . . . . . o 54
United States v. Alonso, 74O F.2d 962 (Ilth Cir. 1994),

cert. denledr _If .S._r 83 L.Ed.2d 939
- (1985) .. . . . . . . . . . . . . . . . . . 34r7!r7lr72

United States v. Amaya, 509 f .2d 8 (sth Cir. 19ZS) . . '7O',7L',73
United Stateg v. Balley, 460 F.2d 518 (sth Clr.

L973 (en banc). . . . . . . . . . . . . . . . . . 7Or7L
UnltEd StateE v. Ballard, 663 F.2d 534, (sth Clr. Unlt B

1981) . . . . . . . . . . . . . . . . . . . . . . . 6].
United States v. Bell , 678 F.2d 547 (Sth Clr. Unit B

L982) (en banc) , aff fd on other grounds , 462
u.s. 356 (1983) . . . . . . . . . . . . . . . . . . 65United States v. Berrigan, 492 F.2d L7L (3d Clr. Lg73) . . 39United States v. Berrios, 501 F.2d L2O7 (2d Clr. Lg74i . . . 39United States v. Bownan, G36 F.2d lOO3 (sth Clr. Unit-a
1981) . . . . . . . . . . . . . . . . . . . .

United States v. Brldges, 493 f.2d 918 (Sth Cir. Lg74) . . .
United States v. Caumlsano, 546 E.2d 238 (Bth Cir. Lg76)
United States v. CaEtIe, No. 82-5011, decid,ed August L2',

1982 (5th Clr.)(unpublished) . . . . . . . o . 59United States v. Clapps, 732 F.2d L14g (3rd Cir.), cert.
denied, _U.S._r 83 L.Ed.2d 699 (1994) . . . 59rGOr6g

United States v. Curry, eal f.2d 406 (sth Cir. I9g2) . . 59, 62United States v. Davis, 679 f.2d 945 (ILth Cir. 19Bi), cert
denied, 459 U.S. L2O7 (1983). . . . o . . . . . 69United States v. Di Bernardo, 775 F.zd L47O (lLth
Cir) (1985), cert. deniedr _US_, 9O L.Ed.2d 357

7L
50

54
60
39

(1986). . . . . . . . . . o . . . . . . . .
United States v. Dixon, 536 F.2d 1389 (2nd Cir. 1976) .
United States v. Erne, 576 ?.2d 2L2 (gth Cir. I9Z8) . . .
United States v. Figueroa, 666 F.2d L37S (lLth Clr. 1982)
United States v. Forrest, 620 ?.2d 446 (sth Cir. IggO) .
United States v. Gonzalez, 66I F.2d 489 (sth Cir. Unlt g

198].) . . . . . . . . . . . . . . . . . . . . .
United States v. Hastings, 451 U.S. 499 (1983) . . . . o

United States v. llazel , 696 F.2d 473 (6th Cir. 1983). . .
United States v. Howard, 774 F.2d 838 (7th Cir. I9g5) . .
United States v. Johnson, 7L3 f .2d 633 (l,Ith Cir. 1993),

cert. denied.465 U.S.1081 (1984)... o...
United States v. Klein, 5I5 F.zd 751 (3rd Cir. L}TS) .
United States v. Krej.mer, 609 f.2d L26 (Sth Cir. IggO)
United States v. Leslj.e, 759 F.2d 366 (sth Cir. 1985),

..51
50

..39

..70
66, 5g

69

39
54

70
..69

59

vl-



revrd, 783 F.2d 541 (1986)(en banc) . . . . . . . L2,SL
Uni.ted States v. Lewis, 5L4 F. Supp. 169 (M.D. Pa.

1981) . . . . . . . . . . . . . . . . . . . . r . . 59
United States v. Longoria, 569 g.zd 422 (sth Clr. 1978) 68
United States v. Mandel, 591 F.2d L347 (4th Cir. L979),

cert. d,eniedr 445 U.S.96L (1980) . . . . . . . . . 61
United States v. Murdock, 548 F.2d 599 (sth Clr. L977) . . . 39
UnitedStatesv. Nixonr 418U.S.583 (1974) ... . . .. .. 40
Unj.ted States v. OrMa1ley, 7O7 f.2d L24O (Ilth Clr. I9B3) . 58159
United States v. Odom, 736 F.2d 104 (4th Clr. 1984) . . 59,62,68
Unlted States v. Olinger, 759 F.2d 1293 (7th CJ.r.),

cert. deniedr _If .S._r 88 L.Ed.2d 98 (1985). . . . 54
United States v. Outler, eSg F-.2d 1306 (sth Cir. Unit B

1981) . . . . . . . . . . . o . . . . . . . . . 70
United States v. Prentiss, 446 F.zd 923 (5th Cir. lg7l) . . . 73
United States v. Price, 623 F.2d 587 (9th Cir.), cert.

denied, 449 U.S. 1016 (1980). . . . . . . . . . . 59r69
United States v. Resnlck, 299 Ir.S. 2O7 (L93G) . . . . . . o o EO
United States v. Roblnson, 311 F. Supp. 1063 (I{.D. Mo. 1969) . 35
United States v. SaLlnas, 654 F.2d 319 (Sth Cir. Unit A

1981) . . . . . . . . . . . . . . . . . . . . . . 69
United States v. States, 488 F.2d 761 (Bth Cir. Lg73'), cert.

denied, 417 U.S. 909 (L974) . . r . . . . . . . . 59
United States v. Eaylor, 530 F.2d 49 (sth Clr. Lg76) (per

curiam) . . o . . . . . . . . . . . . . . . 34r7lr72r73
United States v. Texas Education Agency, 564 F.2d L62

(sth Cir. 1977) , cert. denied, 443 Ir.S. 8Is(1979). . . . . . . .
United States v. Turner, Hogue and

00014, (S.D. A1a. July 5,
ro"i.i,'c;.'N;.'B;-' ' 38

1985) (jury verdict of
. acquittal) . . . . . . . . . . . . . . . . . . . L7r63united states v. washingiton, 688 F.2d 953 (sth cir. 1982) . 62united states v. I{iltber9€r, 5 wheat. 76 (1820) (t{arshaLll

C.J.) . . . . . . . . . . o . . . . . , 60
United States v. Zicree, 605 F.2d I38I (sth Cir. LgTg),

cert. denied, 445 Ir.S. 966 (1980) . . . . . . . . . 59
Vasquez v. Eillary, _U.S._r 88 L.Ed.2d 599 (1986) . 4IVillage of Arlington Helghts v. Metropolitan Housing

Development Corps., 429 U.S. 252 (L977) . . . 3g
Washington v. Davis, 426 U.S. 229 (f975) . o . . . . . . . 39
Washington v. Seattle School Dist. No. 1, 459 U.S. 457

(1992) ... r........ . o ... 37
Wayte v. United. States, If .S._r g4 L.Ed.2d 547

(1985) . . . . . . . . . . . . . . . . . . . 32135136
Willians V. Wa1lace, 24O F. Supp. l.OO (U.D. AIa. 1965) . . 3g',47
Willis v. Zant, 72O F.2d L2t2 (ltth Cir. 1983),

cert._denied, 467 U.S. L2S6 (1994) . . . . . . . t2,42Yick Wo v. Hopkins, 118 U.S. 356 (1886) . . . . . 32t 35',36
Zayre of Georgla, Inc. v. City of Atlanta, 276 F. Supp. ggz

STATUTES PAGE

IBU.S.C.S1341.......o....passim

42 U.S.C. S1973i(c). . . . . o . . . o . . . . . . . .. . passin

35

vii



LEGISI,ATTVE HISTORY PAGE

Civil Rights InplicatlonE of Federal Votlng Fraud Prosecutions:
Ilearings Before the Subcomn, on CiviL and Constltutlonal Rlghts,
House Conm. on the JudlcLar?, 99th Congf ., lst Sess. 1985
(forthcoming). . . . . . . . . . . o . . . . . . . . . .

111 Cong. Rec. 58423-33, 58813-17, 58984-88, (April 26,
28, April 29, 1955). . . . . . . . . . . . . . . . . . .

111 Cong. Rec. tll6246-49 (JuIy 9, 1965). . . . . . . . .

OTHER AI'THORITTES

. . .40

April
..55r56

. 55r 56

PAGE

United States Department of Justice, Federal ProEecution of
Election Offenses (October, 1984). . . . . . . . . . . . . .55

vLl-l-



UNITED
FOR

IN THE
STATES COURT OF APPEATS
THE ELEVENTH CIRCUIT

No. 85-7726

a

SPIVER WHITNEY

v.

UNITED STATES

GORDON,
AppelIant,

OF AMERICA,
Appellee.

On Appeal From The Unlted States
For The Northern District of

Dlstrlct Court
Alabana

STATEMEI{T OF THE TSSUES PRESENTED FOR REVIE}I

1. Did the Dlstrlct Court err ln refuslng despite

Eubstantial evidence of a proeecutorlal canpaign guided by racial

and political crlteria to permit Mr. Gordon any dlscovery of

the Government and/or any evldentiary hearlng on hls clalm of

selectlve procrecutlon?

2. Dld the Government's systenatlc uae of its

peremptory challengee to exclude every black Juror presented to

1t establlsh a prima facle violatlon of Equal Protection

standards established in Batson v. Kentuckv,- U. S.-,

69 (1986), of,, in light of the prlor pattern of racial

the companlon "voting fraud" cases, under the standards

v. ALabama, 38O U.S. 2O2 (1965)?

90 L. Ed. 2d

strikes in

of Swain

3. Did the Distrlct Court's mens rea instructions on

the mail fraud and false informatlon counts which effectlvely

permitted the Jury to convict Mr. Gordon upon proof of any

technical vlolatlon of AJ.abama state election provlsions, and

absent proof of specific lntent to defraud -- misinterpret

applicable federal statutes and violate Mr. Gordonrs federal due



procesa rights?

4. Is the record evidence against Mr. Gordon, viewed

in the light most favorable to the Government, nevertheLess

lnsufflclent to permit any reasonable jury to convlct him beyond

a reasonable doubt?

5. Was Mr. Gordon denied his due Procesa right to

notice of the charges agalnst hin by the variance between the

offenses set forth in his lndictment and the Dlstrlct Courtrs

constructlve amendment of those offenses in its instructions to

his jury?

6. Dld the supplenental instruct j.ons glven by the

District Court to Mr. Gordonrs Jury, after lt reported that it

was "hopelessly deadl.ocked" durlng lts deliberatlons including

its modified AIlen charge and the judgers expression cf a

personal opinlon on the value of further dellberatlons -- violate

the strict constraints imposed by this Court in prior cases?

STATEMENT OF THE CASE

I. COURSE Otr PROCEEDINGS IN THE COURT BELOW

Appellant Spiver 9{hitney Gordon was lndicted on thirty-seven

varied federal criminal. counts for his activity in assisting

black absentee voters in a primary election in Greene County,

Alabama. The Government disnissed slxteen counts against Mr.

Gordon prlor to trial because of a lack of evidence; he was tried

on twenty-three counts in the Northern District of AJ.abama.

Prior to trlal, Mr. Gordon petitioned this Court for a wrlt of

mandamus and prohlbition, seeking to preclude the Government from

exercising its peremptory strikes in a racially discriminatory

manner. That petition was denied by a panel of the Court on



September 29, 1985. The Asslstant United States Attorney

exerclsed alt slx of hls perenptory challenges to remove every

black venireperson from Mr. Gordonrs iury.
Trial before the all-white jury proceeded for eighteen days,

lncluding five days of dellberations during whlch the Jury which

was glven a modifled "Allen charge." Mr. Gordon was ultlmately

acquitted of fourteen counts, but was convlcted -- on two counts

of mail fraud and two counts of furnlshlng false information to

an el,ectlon official

submltted on behalf of

Government motlons to

preJudice. (R1-85) .1

for witnesslng two absentee baLlots

hls wlfefs uncles. The Court granted

dlsnlEs flve additlonal counts with

Mr. Gordon filed tlnely written motions

for judgment of acqulttal (R1-73) and for arrest of Judgment (R

t-72), which the Court denled. (R1-74, 75).

The Court sentenced Mr. Gordon to a $5O0 fine on each of two

counts of nail fraud and to three year concurrent sentences on

all counts, suspending all but the first six months, with three

years probation following release from custody, including five

hundred hours of community servlce. (R1-?7).

On November 14, 1985, the district court stayed execution of

Mr. Gordon's sentence, pending this appeal. (R1-76).

1

by the
document
the page

Each reference to the Record on Appeal wiJ.l. be indlcated
abbreviation "R," followed by the volume number, the
number (if the volume contains multiple documents), and
number on which the reference may be found.



II. STATEMEI{T OF THE FACTS

A. The GovernmQntrs Canpaign To Prosecute
Votlng Fraud In Al.abama I s Black Belt

Spiver Gordon and a co-defendant, Frederlck D. Danlels, were

lndlcted at the requeet of the United Statee Attorney for the

Northern Dlstrlct of Alabana for alleged acts of "voter fraud"

and urall fraud ln connection with a Septenber 4, 1984 primary

electlon heLd ln Greene County and throughout the State of

Alabama and a September 25, 1984 run-off electlon ln that county.

(See R1-1-1). The lndlctrnents were among a series of slmilar

federal chargee preesed ln mld-1985 agalnst at leaet elght

Alabama citizens (R3-30-33), all resldents of, flve counties ln

Al.abama's so-called "Black BeIt" (herelnafter "the voter fraud

cases" ) .

Alabana's "Black Belt" ls distinguished by the high

percentage of black cltizens among lts ten counties.2 In the

decades prior to enactment of the Votlng Rights Act of 1965, all

of these counties were pollticalty domlnated by the ninority of

whlte voters; the black maJority was effectlvely shut out of all

participatlon ln the electoral process. (RS2 Fact Sheet, 61t 1)3.

2 According to the 1980 U.S. Census, the percentage of
blacks in A.l.abamars ten Black Belt counties is as f ollows:
Choctaw (43.46); Dallas (54.53); Greene (78.0O); Hale (62.8O);
Lowndes (?a.98); Marengo (53.28); Perry (60.08); Plckens (41.8O);
Sumter (69.26); and Wllcox (68.80).

3 Each reference to the materlals submitted to the Dlstrlct
Court under seal ln support of Mr. Gordon's selectlve prosecutlon
clalm w111 be lndicated by the abbreviatlon 'rRS'r followed bY a
number rr 1rr or tt 2tt f or the f irst or second submlssion--
foll.owed by some ldentlfying informatlon. (As the Magistrate
noted in his Recommendation on thls claim, these documents were
"filed under seal in order that defense strategies wilJ. not be
compromised. " (R1-50-8 n.2 ) . Although the trial has been
completed, Mr. Gordon intends to honor the seal by identlfying



Since the 1965 Votlng Rlghts Act as the Unlted States

Maglstrate who heard Mr. Gordon's claln of sel.ectlve prosecution

found ',there has been an intense struggle between whltes and

blackE ln the Alabama Black BeLt wlth whlte persons seeklng to

retain polltlcal power and blacks seeklng to share ln lt." (R1-

50-13). "According to [Mr. Gordon's] affldavlts, " the

Maglstrate noted, "one nethod used by whltes for many years, "

"lnvol.ved the 11legal voting of absentee ballots." (Id. )

In the late 196Os in Greene County, slates of black

candidates were elected to a naJorlty of countywlde offlces for

the first tlme. By t982, blacks had obtalned polltlcal control

of county commlsslonE and school boards ln flve of the ten Bl'ack

Belt counties. (RS2 Affrt of Ira 8., at 5; see also RS2 Fact

sheet, €rt I). In Greene County, the princtpal polit1cal

organlzation representing these black lnterests was the Greene

County Civic League ( "GCCL" ) (RSl- Aff I t of Debra H. , at 2) .

Spiver Gordon, a fornrer offlclat of the Southern Christlan

Leadership Conference, was a principal leader of the GCCt and, at

the tlme of hls indictment, had become the Director of the

Community Service Block Grant Program, a member of the Greene

County Hospltal Board, and a deputy registrar for the Greene

County Board of Registrars. (R1-1-2). As an officer and the

"spark pfug" of the Greene County Civlc teague, Mr. Gordon was

extremely well-known throughout the area. One witness testified

that some blacks called Mr. Gordon the "black Moses" of Greene

County. (R13-e1).

accompanylng documents ln an abbrevlated form, u-:- Aff 't of
B. )

the
Ira



. In the spring of 7984, a rlval polltlcal organlzatlon, the

People's Action Committee (IPAC"), eras formed in Greene County.

(See RSl, Aff't of Debra H., L-2; Exh. !, newsPaper article

entltled "New PAC cl,ains runoff wln" ) Its menbershlp and support

was predomlnantly among whlte voters (RS2, Affrt of lra B., at

7t', although a selected number of blacks were recrulted to the

PAC, lncludlng John Klnnard. (RS1, Aff't of Debra H., at 2t,.

Anong the co-founders and leading members of the PAC was an

assistant Dlstrict Attorney in Greene County, 9{alter Griess.

(RS1, Aff 't of Susan J., at 4, & Exh. 1).

Mr. Gordon's evidence demonstrated that durlng 1984, the

Unlted States Attorneys for the Northern and Southern Dlstrlcts

of Alabama began an lntensive lnvestigatlon of votlng fraud ln

A]abama. The lnvestlgatlon was concentrated excluslvely on

Alabamars Black BeIt (RS2, Affrt of Ira 8., at 2; RS2 Fact Sheet

at Z), and within the Black Bett, excluslvely on those flve

counties In which black cltizens had obtalned naJorlty control of

county offlces. (RS2 Fact Sheet, €tt 2; RS1, Aff rt of Dennis S.,

Aug. 8, 1985, :rt 1). Moreover, within those five counties,

federal attentlon focussed solely on those officials,

predominantly black, who were the leaders of the majority

faction. (RS1, Aff't of Susan J., at t-2; RS2, Fact Sheet,3-41.
grlithln Greene County, Mr. Gordon showed that scores of

substantlal. allegations of voter misconduct by PAC offlcers and

members, though reported to investigating officlals (see, €.o. r

RS2, Aff I t of Ira B. , 13-28 and accompanylng affidavlts; 99e,

e.ct., RS1, Aff 't Dennls S., Aug. 2, 1985, Et 2; RS1 Aff rt of Ruth

H., 7-2\, went unlnvestlgated, even as intense scrutiny was



directed toward GCCL leaders and their followers. (RSl, Affrt of

Dennls S., Aug. 2,1985, at t; RS2, Fact Sheet, S-41.

Mr. Gordonts evidence revealed that prominent nembers of the

rlval PAC, lncludlng assistant dlstrlct attorney Walter Griess,

worked directly with E'BI agents and offlclals of the Department

of Justlce ln the investlgatlon of GCCL members. (RS1, Affrt of

Susan J., at 3i 1d. Aff tt of Ruth H., at 4) ("Mr. Grless stated to

me that he was 'the conduit' for conplaints that trlggered

the F.B.I. lnvestigatlon") (RS2; Aff't of John 2., at 10)("Grelss

[sic] was also present wlth the F.B.I. agents that ralded [the]

office of a member of the GCCL.") Mr. Gordon'E evldence revealed

that another PAC member, John Klnnard, stated publicly that he

was "directlng the federal effort." He had been seen repeatedly

"meetlng with FBI agents." (RSl, Aff't of Deborah L., at 5).

Thls intensive lnvestigation, €rs indlcated, eras part of, a

broader effort throughout the Black Belt. One official, the

Asslstant Dlrector of the Offlce of Publlc Affairs of the

Department of Justlce, reportedly explaJ.ned the lnvestlgations as

part of a "new pollcy brought on by the larrogrance on the

part of blackst ln these counties." (RS2, Aff't of lra B., at 2l,.

The resuLt of the lnvestigations characterized by widespread

FBI lnterrogatlon of black voters, many of them elderly, rural

citizens (RS1, Aff't of Susan J., at 6) -- was the lndictment of

seven black civll rights Leaders (and one white synpathlzet) ln

these countles. (R3-3O-33) .

Shortly after her lndlctment, Bobbie Simpson filed a motlon

to dismiss on grounds of "selective and lnvldious dlscrininatory

prosecution, " annexing a substantlal number of documents as prlma



facie evldence of her clalm. Mr. Gordon subsequently moved on

July 29, 1985, to adopt by reference the substance of Ms.

Simpson's motlon. (Rl-19). In a second motlon, Mr. Gordon

repeated hls reguest and alleg€d, as addltlonal evldence relevant

to h1s case , that "9{hi tes who were pol ltlcal rivals of

Defendantt I aaslsted and were lnvolved ln the absentee votlng

process wlth the ldentical tsicl nurslng home patients"

respectlng whose ballots he had been charged, al.though the whites

,'were not charged and lndlcted." (R1-24-2). On Augiust gth, Mr.

Gordon agaln moved to dlsmiss his lndlctnent. (R1-29-2). The

Unlted States Maglstrate heard oral argtument, and on Auguet 12th

granted Mr. Gordon's motlon to adopt by reference Ms. Simpsonrs

earller motlon. (R1-35). He also permltted counseL untll August

l6th to submlt further evldence rel.evant to hls flnaL decision on

whether to allow defendants to conduct dlscovery of the

Government and/or to permit a full evldentiary hearlng. (R1-39-

21 .

As explalned ln the affldavlt of attorney Ira B. (RS2), a

smalI group of untralned researchers, armed with basic documents

and informatlon concernlng the Greene County prinary, was able

between August L2 and 16 to ldentlfy: (i) PAC members who had,

according to registered voters, fraudulently cast absentee

ballots ln false names (see RS2, Affrt of Ira B., 14-15, 17-18);

(iiy pAC candidates who had, ln apparent vlolatlon of Alabama

Jaer, particlpated 1n the absentee ballot process (ld. at 16);

(111) a Circult Clerk, a PAC member, who had lmproperly

notarized absentee ballots (l.g!. at t9'2t); (iv) whlte residents

of other states who had apparently been provlded by the PAC



Clrcult Clerk wlth absentee ballots ( id. at 231; (v) other

absentees who reported that they had never received anv absentee

ballot for the 1984 prlmary, yet whose ballot and affldavlt were

recorded ag havlng been witneseed by the PAC Clrcult Clerk (1d.

at 25\; and (v1) ballots that e'.ere defectlve lacklng elther a

witness slgnature, other requlred data or even a name for the

voter -- whlch were voted by PAC supporters. (Id. at 26).

Counsel also located dozens of black citlzens who had reported

PAC abuseE to FBf agents durlng the lnvestigation. None of the

reports were acted upon. (Id., 13-14).

After conslderlng thls uraterlal, the Magistrate acknowledged

that "the defendants have made a showing of a 'colorabJ.e

entltle6entr" to relief under "the first prong of the selectlve

prosecution Istandard]" (R1-5O-12) that ls, they had shown

,'that whlle others simllarly sltuated have not been proceeded

against, [they have] been singled out for prosecution."

(Id. at 4).

However, the Maglstrate decl.ined to flnd sufflclent evidence

that ,,the decision to prosecute $ras invidious or in bad faith

because based upon some lmpermlssible factor such as race

or the exercise of constitutional rights. " (8. 4, 15)' It

erras "Clear," he Observed, that "no serious schOlar woUl'd ever be

tenpted to point to the areas covered by these materlals as

paradigms of democratlc government, " ( id. at 13) , but he

discounted the public remarks of federal Iaw enforcement

officlals that the campaign was airned at "arrogant blacks",

questloned the obJectivity of several defense affiants, noted

that ',no PAC person 1s claimed to have been involved with more



than two unlawful ba]lots, " ( ld. at 8) , and pointed out

that only "Is]lx persons aIlegedly affl]lated wlth the oppositlon

(PAC) alLegedly comnitted acts slmilar to defendants."

(Id. ). He ultimately dlsmlssed other defense evldence as

" [n]othlng more than technlcal. vlolatlons of Alabarna Law. " ( Id.

at 9).

Havlng denled all dlscovery or any evldentlary hearlng, the

Magistrate recommended that Mr. Gordon's motion be overruled.

(Id. at 16; see also R1-52-?). The Distrlct Court accepted the

Maglstrate's recommendatlon 1n a summary order, entered August

26th. (R1-5?). Following the trla1, Mr. Gordon relterated this

clalm, ln hls motion for Judgnent of acqulttal. (R1-?3-1-21. The

Distrlct Court sumnarlly overruled the notion. (R1-75).

B. The Govcrnnent'g Dcllberate Use Of
Its Perenptory Challenges To Strlke
All Black Jurors From SPlver
Gordonrs Jury

In the two Greene County voting fraud trlals that preceded

Mr. Gordonrs, the Government chose to exercl.se lts perenptory

chal.lenges 1n an unmistakably raclal pattern. "In the Colvln

case, " defense counsel informed the Distrlct Court, "five of the

slx pre-emptory Isic] challenges were used to strlke black Jurors

from the Jury. In the Simpson case, four of the six were used to

strike black Jurors from the JurY. In other words, out of twelve

challenges in the preceding two caaes, nlne were exercised

against black Jurors." (R3-62).

AJ.erted by thls prior pattern, Mr. Gordon f lled a timely

written motion on September 23, 1985, "to preclude the United

States from exercislng its peremptory challenges in a racially

discrirninatory manner. " (R1-7O-9O) . During oral argument in

10



support of the motlon, counsel for Mr. Gordon contended that the

pattern of Government strikes ln the Colvin and Slmpson cases

constltuted "a prlma facie showlng, stronger than in any of the

other cases we clte tlnl . our motl.on, of a dlscrlminatory

use of a pre-enptory challenge." (R3-63).

The Dlstrlct Court decllned to 'rassume from the outset that

. the Government lntends to exercise lts pre-emptory

challenges ln a raclally discrimlnatory manner, rr (R3-64), and

therefore overruled the motlon. (Id. at 55). 9{h11e the Court

lndlcated that Mr. Gordon $raE free to reaseert the clain during

the Jury selectlon process, it acknowledged an underlylng

convlctlon that "[a]ny time that a Court moves ln and tells the

Government . how to have to exercise thelr pre-enptory

challenges, based on assumptlons, Ithat] is Just a bad

sltuatl,on." (Id.).

Followlng the Courtrs dlspositlon of other pretrial

motlons,4 ln a post-lunch chambers conference, counsel for Mr.

Gordon noted for the record that only 7 of the 61 members of the

venlre, o1. 11 . 3 percent , were black persons, ( R3-83 ) , a'n

underrepresentatlon of 7 percent from the Jury-eliglbIe

populatlon, and then moved to quash the veni.re, expresslng

,,particular[ ] concern[ ] because the Government has six strikes

4 prior to triaL, Mr. Gordon f il.ed a Jury composition
challenge to the Jury selectlon procedures of the Northern
Dlstrlct, (R1-12), partly on the ground that the dlstrict-wlde,
used in lieu of a dlvlsion-wlde, selectlon system reduced black
representatlon on the quatifled wheel. (1SR-t-tl9-27). One of
the court officials responslble for administerlng the plan
testifled that he belleved the declslon not to select Jurles by
dlvlslon was based on the large number of blacks in some
divislons (such as the 9{estern Divlsion which lncludes Greene
County. ) ( Id.)

11



and there are seven blacks out there." (R3-84).

overruJ,ed. (R3-85).

The motlon was

Two days later, after completlon of the prellminary volr

dlre process, the Government and defenEe counsel each exercised

thelr respectlve peremptory challenges. Over contlnued defense

obJection, the government used each of its six peremptory

chal.lenges to remove, one by one, each black Juror that came

before it. Defense counsel obJected to each excluE.lon, noting

after the Governnent's last challenge:

Thls meana that six out of six [Governnent]
challenges have been used exc.luelvely agalnst
blacks. TheEe are the only six Jurors and
the Government has used all of thelr strlkes
on these sLx, Ieavlng the iury totaJ'ly white.

(R5-2O3). Defense counsel voiced a final, omnlbus obJectlon,

renewing aII motions previousl.y made to the practlce and adding

"a notlon for dlsmlssal of the Indictment on the grounds of

prosecutorlal misconduct and racially motlvated use of peremptory

chaJ.lenges.... " (R5-204). Each defense motion was sumnarlly

overruled by the District Court without explanatlon. (R5-2OO-O4).

The followlng mornlng, September 26th, Mt. Gordon once again

renewed his objection. (R6-14-3O).5 Treating counsel's request

5 Counsel flrst called the Dlstrlct Courtrs attention to
the then-recent holding in McCrav v. Abrams, 75O F.2d 1113 (2d
Cir. 1984), cert. pendinq, (No. 84-L4261, which announced a new
federal procedure for examination of racially suspect
peremptories, grounded ln Sixth Amendment concerns. (R6-19). He
next argued that even under the equal protection standards set
forth ln Swaln v. Alabama, 38O U.S. 2O2 (1965), as interpreted by
this Court in Wlllls v. Zant, 72O F.2d t2L2 (11th Cir. 1983), he
had made out a prima facie case requiring a full hearlng in
light of the Governmentrs excluslon of every prospective black
juror from Mr. Gordon's case. (R6-2O). Flnally, citing the panel
opinlon |n Unlted States v. Leslle,759 F.2d 366 (sth Clr. 1985),
rev,d,783 F.2d 541 (1986)(en banc), counsel urged the District
Court to exerclse its supervisory powers to lnquire lnto the
Government's pattern of racial exclusion:

t2



as both a motlon for reconslderatlon of its prior ruling and as a

separate notlon, the Court summarlly denled the rel.lef requested.

(R6-28; ld at 29l'.

Counsel then sought a contlnuance or a stay from the

Distrlct Court in order to obtaln an imnediate rullng on the

lssue from thls Court. (R6-29-30). The Government responded

that lt would make a record "so that Defense can gee the reason

that we exerclsed those strl.kes. " ( R6-3O ) . Among lts

explanatlons, the Government clalmed that lt struck Juror No. 60

because lt 'rwas satlsfled she was being evasive ln anEwers posed

to her. "

Counsel for the Government contlnued:

Juror No. 26 was struck bacauEe he was
observed comlng lnto the courtroom before the
venlre was called out, puttlng his arm around
one of the'defendants, shaking hands wlth the
defendant and exchanglng greetings.

Juror No. 35 $ras struck because she had the
Lowest educatlon of anyone on the venlre,
[and] ... [91]hen asked about her dclay ln
votlng, she expressed a biae wlth regard to
not knowlng that she had the right to vote--
as I recall, her words were that they coul'd
vote, or had the right to vote.

(R6-31-321.

The Court responded, without elaboration, "Well, the Court's

So we would ask the Court for a hearlng, for
a dismlssal of the Indlctment, first, for a
mlstrial, second, and at Least, for a
mlnlmum, for a hearlng on the question of
what motlvated the use of pre-emptory
challenges yesterday by the Unlted States
Attorneys.

13

( R6-27 )



rullng remains the same." (Id. at 33)

Defense counsel imnediately rebutted these explanations with

an evidentiary proffer:

I betieve the [Government's] statement, Your
Honor does glve rise to the necd for a
hearlng . Because there lsn't a basls for
what the U.S. AttorneY ls saYlng.

THE COURT: I have already ruled wlth respect
to the hearlng. And my ruling remalns the
same, Mr. Welnglass.

*

MR. WEfNGLASS: Your Honor, f proffer to the
Court that lf such a hearing were he1d, w€
would be able to produce testimony to the
effect that even before the venire was
brought lnto this courtroom on Monday
mornlng, lt was the lntentlon of the Unlted
States Attorney to strlke every black from
thls Jury and to send these defendants to
trlal before an all-whlte JurY.

Your Honor, the statements made about Harold
HalI, juror No. 26, that he embraced the
defendant, that never occurred. And the
defendant will testify in a hearing that he
has never touched, seen or spoken with this
man.

THE COURT: I am through with thls issue.
Now, I have ruled, ME. gileinglaas. 9{ith all
due respect to you and your co-counsel, I
belleve that you have got your matters stated
of record. And the rullng has been made by
the Court. And that is my rullng. And I
want to move on wlth the trlal, please; wlth
all due deference to Counse] for the
defendants.

(R6-34-36). (The full exchange between the Government, defense

counsel and the District Court is set forth in the Record

Excerpts, 68-91. )

The District Court entered a brlef wrltten order later on

the basic facts and denied the

t4

September 26th, which recited



motlons for an evldentlary hearlng, f,or dlsmissal of the

lndlctment, and for a mistrlal. The Dlstrlct Court offered no

1egal basis for lts rulings. (R1-7O-81).

Serlously concerned over the proepect of facing an all-whlte

Jury to answer federal charges alleglng that he and other black

votlng rlghts actlvlsts had consplred to defraud the local

electorate, Mr. Gordon filed a petltlon wlth thls Court later ln

the day on September 25th. He sought "a Wrl.t of Mandamus and

Prohibitlon pendlng determlnatlon by the Supreme Court of

the Unlted States of Batson v. Kentuckv, cert. qranted, 84-6263'

gZ Cr. L. Rptr. 47 (Aprll 22,1985), or alternatlvely, conpelllng

Respondent to hold a hearlng to determine whether the actlons of

the Assistant U.S. Attorney in exerclslng peremptory challenges

to exclude all black Jurors !n [hls] trlal deprived [hlm]

of rlghts secured by the Flfth and Slxth Amendments to the

Constltution. " A pancl of this Court entered a one-line order on

September 27, 1985, denying the petltlon. (R1-70-741.

Mr. Gordon was ln fact trled by an all-whl,te Jury. After a

verdict had been entered, h€ moved for a Judgrnent of acqulttal

Or., in the alternatlve, for a new trlal, once agaln seeking an

evldentlary hearlng or substantlve rellef. (Rl-?3-1 ) . The

District Court overruled the motlon, otl Notrember 13, 1985,

holding simply that "no evldentlary hearlng 1s requlred Iand]

. that the allegations therein contalned are

merlt." (R1-?5-1).

. wlthout

C. Alabama Electlon taw Relevant
To The Governnentrs Chargee

According to the evldence adduced at trlal, a reglstered

voter in Greene County is entitled to vote by absentee ballot ln

15



the county if physlcally lncapacttated or if absent from the

county on electlon day. Under Alabama law, a registered voter

1lvlng outslde Greene County can lawfully vote ln county

electlons so long as he is not reglstered elsewhere and conslders

Greene County hls legal domlclle. (R16-21). An applicatlon to

the appropriate county offlclal, Mary Snoddy, the Absentee

Election Manager, for an absentee ballot must be ln wrltlng.

(R6-1741. Upon recelpt of the appllcatlon, and after checklng

whether the appllcant ls registerad to vote ln Greene County (R6-

t781, Ms. Snoddy forwards a klt to the voter at the malling

addrees lndlcated on the appllcatlon. (Id. at 179). Ihe malling

address may be, and often ls, other than the voterfs own

resldence. (R7-10O; R12'124; R12-7521, The kit contains two

envelopes and a ballot. (R6-1?9). On the printed side of the

ballot are the names of the candldates, wlth a place for the

voter to indicate a choice. Once the ballot ls voted, it is

placed ln a sealed envelope, "the secrecY envelope." (R6-185).

This envelope normally contalns no ldentlfylnE marks or writing.

The sealed secrecy envelope ls then deposlted in a larger
,'mailing envelope" addressed to the AbEentee Electlon Manager.

On the back of the maillng envelope is an affldavlt with blank

lines for the slgnature or mark of the voter, and for the

slgnature of a notary or two witnesses. (R6-193). State law

requires the absentee ballot to be malled, or personally

del.lvered by the voter. (R6-186).

Several questlons of Alabama electlon law on absentee voting

were raised by the evidence in this case: (i) whether Alabama law

prohiblts another person from actually filllng out an absentee

16



ballot and affidavit, or slgnlng the baJ.lot and affldavit with a

voterrs consent, but outslde the voterrs presence; and (il)

whether a witness to the affldavlt on the face of the mailing

envelope must actually see the'voter slgn hls affldavlt, or must

requlre the voter to attest his signature and other lnformatlon

on the envelope.

D. Thc Evldcnce Fregentad At Trlal'

The Government made no claim, and lntroduced no evldence, to

demonstrate that any of the alleged absentee ballots at lssue

here were voted by a person who was reglstered to vote, or who

had voted, ln another county, or who was not otherwlse quallfled

under Alabama law to vote an absentee ball.ot in Greene County.

(R14-45 , 47-481. The thrust of the Governnent claim on the

counts relevant to thls appeal was that Mr. Gordon had

partlcipated as a wltness to affidavits on two maillng

envelopes ln a practice, termed "proxy voting,"6 v. Turner,

Hogue ander whlch, whlle wldespread in Greene County, T $ra,s

6 ,,Proxy votlng, " a term colned by The Honorabl.e Emmet R.
Cox, United States Dlstrict Judge for the Southern District of
AJ.abama durlng a related prosecutlon, Unlted States v. Turner,
Hoque and Turner, Clv. No. 85-OOO14 (S.D. AIa. July 5, 1985)(Jury
verdict of acqulttal) lnvolves the authorlzation glven by a voter
to another person to mark the ballot or, with the voterrs
permlssion, to sign the voterrs name to the balLot affldavlt.
Judge Cox charged the Jury in Turner that marklng a ballot wlth
the consent of the voter was legal and constitutionally protected
activity. Mr. Gordon furnlshed the Distrlct Court in this case
wlth a copy of Judge Cox's instruction, but the Court determined,
contrary to Judge Cox, that proxy voting was illegal. ln Alabama.
( Rl5-25-2s ) .

7 In its remarks followlng lts presentence report, a United
States Probatlon Offlcer noted that the "U.S. Probation Office
agrees that there existed the practlce of 'Proxy r,'otlng' ln
Greene County. The Court may wlsh to conslder this as a
mitigating factor." (R1-78-5). This practlce was conflrmed by
testlmony at trial . ( R13-52-53, 62 , 74-75) .

t7



lllegal under Alabama law. Mr. Gordonrs evldence tended to show

that Al.abama law on proxY voting was not codifled (R12-145), had

not been interpreted by the Alabana courts, (id.) and was unclear

even to experts on Alabama election Iaw. (R12-143). No evidence

was proffered that Mr. Gordon knew that Alabama law prohiblted

"proxy votlng. "8

Mr. Gordon also contended that absentee balloting was

crltical to the ability of blacks in Greene County to participate

1n elections, since large numberE of the county's citizens worked

in Birnringhan or Tuscaloosa, or etere otherwlse absent from the

county between 8:00 a.m. and 6:OO p.n. when the polls were open.

(R12-152). fn addltlon, many elderly and illlterate blacks,

proud of thelr "votlng rights" and ellglble to vote absentee,

could not do so wlthout aEsistance from persons Ilke Mr. Gordon.

(R13-37-56).

The twenty-one counts subnltted to the jury lnvolved a total

of eleven ballots five cast by elderly residents of the Greene

County Nurslng Hope, four cast by relatlves on behalf of other

relatives, and the two on which convlctions were ultimately

obtalned.

With respect to the ballots cast by residents of the Greene

County Nursing Home, the Government contended that, olthough each

balLot was fiLled out in the presence of the proper voter, none

of whom had been adjudged lncompetent, the voters no longer

I An Attorney General oplnion issued July 13, 1984, in
responae to a query from the Secretary of State, announced that
the ballot affldavit may not be executed by a third party who had
been given power of attorney by telephone. Thls opinion was
unknown to any of the experts who testlfled on Alabama election
Law, (R12-144, 145-6) and was not disseminated to the public by
the Greene County Absentee Election Manager. (R?-37).

18



possessed the mentaL competency to vote. The Government further

alleged that, 3s wltnesses to the casting of each baIlot, Mr.

Gordon and Mr. Daniels "knew these people werenlt competent to

vote."9 The'Jury acquitted both defendants of all charges based

on these ballots.

Three other absentee ballots lnvolved clalms of 111egal

,,proxy votlng'r: Mr. Gordon served as a wltness for a SiSter who

voted for her brother, a girlfriend who voted for her boyfrlend,

and a Reverend who assisted hls cousln (who actually slgned the

affidavit but not ln Mr. Gordon's presence). While acknowledging

the technical impropriety of wltnessing for a thlrd party who was

slgnlng for a voter, MB. Gordon presented evldence, as lndlcated

above, that thls was a common practice in Greene County, and that

there was a legltlnate basls for bellevlng each of the third

parties had the express consent of the voter to sign the ballot.

Mr. Gordonrs proof indicated that he did not lntend to defraud

the electorate, but instead intended to further the absentee

voters' desires to cast votes ln the primary or runoff. Mr.

Gordon malntalned throughout trial that proxY absentee voting was

a legal, common, and wldely tolerated practice in the state and

in Greene County ln Particular. Four expert witnessesl0

9 The suggestlon that a person wltnesslng the slgnature of
the voter on an absentee ballot affidavit has a duty under
Alabama law to ascertain the quallflcations of the voter rrlas

challenged both by defense wltnesses and by Government wltnesses
(the Greene County Absentee Election Manager) (R7-61-62, 7l), Mr.
Gordon's polltical opponents, and the Admlnistrator of Elections
for the State of Alabama. (R13-159-63; R13-772; R12'1471.

10 The wltnesses were: (1) Mary Snoddy, the Circult Clerk
of Green County; (11) Helen Moore, Alabama'S adminlstrator of
elections, as well as a panel member of the Federal Election
Commisslon; (iii) Dr. Robert Brown, a member of the Greene County
Board of Reglstrars; and (lv) Edward Still, General Counsel to

19



testified that a voter may authorLze another person to assist the

voter ln castlng, and ln some lnstances signing, his or her

ballot. (R?-93-94, R12-L29-L3O, Rl3-6L-62, 74-75, R12-L43-L44),

In bdditLon, many Greene County resldents testifled that they had

engaged ln proxy votlng on one or more occasions. (R-12-103, R13-

L72, 183). No evldence was presented that any prohlbition

against proxy voting was codifled or known to Mr. Gordon. lhe

jury acqultted Mr. Gordon of those counts.

The counts on whlch Mr. Gordon waE convicted llnked him to

absentee ball.ots cast in the names of Nebraska and Frankland

Underwood, two uncles of his wife. Mr. Gordon acknowledged that

he slgned the malling envelopes on these ball.ots aa a witness.

These ballots were wltneseed by Mr. Gordon during a fanily

reunlon held at hls wlfe's fanlly home shortly before the

election. A number of family members attended thls reunlon and

ftlled out abeentee ballots at that tlme.

Richard wtlliams, a handwrlting expert employed by the

.Federal Bureau of Investlgatlon, testifled that the witness

signatures $rere in Mr. Gordonrs handwriting, but the voter

signatures on the affidavit envelopes had not been signed by Mr.

Gordon. (R11-52). Although the FBI apparently tested the

bal.Iots chemically for flngerprlnts, the Government lntroduced no

evidence suggesting that Mr. Gordon had ever even touched the

actual absentee ballots enclosed inside the "secrecy envelopes."

(R11-Sg-S4). Although Mr. Wtllians testlfied that Nebraska and

Frankland Underwoods' names on the ballot affldavit and ba]lot

appllcatlon had not been signed by them, rro evidence was

the State Democratic Executlve Committee.

20



lntroduced linking Mr. Gordon to any name on any of the documents

other than hls own.

Frankland Underwood, a self-proclalmed "drinklng man, " had

llttle recollection ln 1985 of events from the precedlng Yearl1

except that he had come back home to Greene County from Brewton

where he presently llves to vislt hls fanlly sonetlne in the

sumner of 1984. (R7-161). He acknowledged that he had been

preoccupied durlng that vlsit, ?8 he apparently often is, with

drinklng and getting a drink.12 (R?-162; R12-?9). He did not

remenber, and $ras not paytng attentlon to, convcrsations during

that vlslt except to the extent they related to drinking. (R7-

L621, He denied, however, giving anyone permisslon to obtain or

vote an absentee ballot to enable hln to particlpate ln the

September 1984 primary. (R7-1?1).

Other family nrembers who were present during his 1984 summer

visit to Greene County, however, teetlfied that they spoke

dlrectly to hin about the upcomlng election. His nlece, Ray

Anthnee Patterson, testifled that she asked hlm whether he wanted

the fanily to asslst hin to vote by absentee ballot in the

prlmary, to which he responded, "He11. Do it like you always do

lt." (R12-?9). His nephew, Macaroy Underwood, confirmed this

conversatlon between Frankland Underwood and his niece. (R7-

11H" speclflcally denled, for example, that he met wlth the
FBI in September 1984 or at any tlme that year. (R7-158-59).
The Government stlpulated that such a meetlng had ln fact taken
place. (R7-159) .

t2 Defense counsel observed for the record that Mr.
Underwood's eyes at trial errere red and tearing and that the smell
of liquor was on hls breath. Mr. Underwood admitted drlnking the
night before, but the judge foreclosed any further inqulry into
the state of his lntoxlcatlon. (R7-149, 151-52, 155).

2t



1O9). Splver Gordon was not present durlng this conversation or

at any tlme durlng Frankland Underwood's vlsit. (R7-162, R13-

L23-41 .

The trlal Judge permitted the deposltion of, the other unc1e,

Nebraska Underwood, to be read to the Jury in lleu of ln-person

testlmony. (R1O-202). According to hls deposltlon, Nebraska

Underwood has nu.Ltiple sclerosis, tires easily and concededly has

problems rememberlng things. (R1O-212-213, R12-t2t-221. Also

accordlng to hls deposltion, lt $ras only after the prlnary that

he learned that an absentee ballot had been voted ln hls name.

Various famlly members, however, recalled a trlp to Greene

County by Nebraska Underwood in the summer of 1984, a trip whlch

Nebraska Underwood also recalled, during whlch he consented to

have an abeentee batl.ot voted in hls name ln the prlmary.

Oderrle Underwood, Nebraska Underwoodrs nephew, recalled that he

spoke with Nebraska Underwood about the primary and the

candidates during the visit, and that Nebraska Underwood stated

that he wished for Mr. Gordon to handLe hls absentee bal.lot.

(R13-12O). His slster-in-law, Mattle Underwood, also recalled

this conversatlon. (R1 2-46-48, 7g ) .13

It was a greneral fanily practlce for absent members of the

Underwood famlly to vote by absentee ba]lot. (R13-106, 114).

13 Mr. Gordon was not present for this conversatlon and
did not engineer lt. (Id.) Mattie Underwood te5tified that
after hearing thls converaatlon between her son and Nebraska
Underwood, she telephoned her daughter, Ms. Gordon, and told her
of Nebraska Underwood's intentlon to vote an absentee balIot.
(R12-56). Mrs. Underwood testlfled that she could not recall who
then prepared the applicatlon for an abEentee ballot in the name
of Nebraska Underwood. (R12-55). Mr. Gordon was not present
during any famlly conversatlons, ho$rever, about the absentee
ballots of Nebraska and Frankland Underwood. (R72-47-48,'19, R13-
L23-24) .

22



Family gatherlngs were held by Mattie Underwood at her home prlor

to electlons. There, family members wouLd gather to dlscuss and

decide how they would be voting ln the upcoming election. (R13-

1O3-O9). After comlng to a declsion, ?D absentee ballot for each

member of the famlly who wanted to vote but woul.d not be able to

go to the polls wouJ.d be marked, and the affldavit on the maillng

envelope wouJ.d be completed. ( Id. ) Such gatheri.ngs were

important to Mattie Underwood ln partlcul.ar because of the 'rvery

hard tlme" she and her family had experienced ln reglstering to

vote ln earlier decades. She was determined that her children

would vote ln each eJ.ectlon. (R12-43-44) .

Mattie Underwood and each of her three chlldren testified

that they attended a famtly gatherlng held prlor to the September

4th prlmary. AlI four witnesses testified that absentee baLlots

were prepared in the names of both Nebraska and Frankland

Underwood at that gathering, and that neithcr Nebraska or

Frankl.and Underwood was then present. Mattie Underwood testlfled

that Mr. Gordon arrived at the gathering after the absentee

ballots had been voted. (R12-67-68). MacaroY Underwood

testified that he thought Mr. Gordon arrived after the family had

begun to mark the absentee ballots and signed the absentee

ballots. (R13-103). Mr. Gordon then slgned as a wltness the

mailing envelopes of Nebraska and Frankland Underwood, along with

those of a number of family members who were present.

At the close of the trial, over strenuous defense obJection,

(R15-25-31) the DiEtrict Court instructed the iury that proxy

voting is per se illegal in Al.abama, (R16-26'281 , and that they

could convict if they found that Mr. Gordon had the lntent to

23



violate, or wlth bad purpose had disregarded, €ither federal or

state Law. (R16-4O , 46, 58-60) . The Court aJ.so charged, over

defense obJection (Rl5-3?-4L1, that a wltness to a voterrs

slgnature must observe the voter elther personally sign the

affldavlt or personally acknowledge the slgnature. (R16-27).

The Court refused Mr. Gordon's request to charge the JurY that a

false or forged writlng ls not establlshed merely lf one person

has signed the nane of another and lf there may have been real or

percelved authorization for so signlng. (R15-7e-79). The Court

refused another request by Mr. Gordon to charge -- as Judge Cox

had done three monthe earller that both Constltutlonal and

statutory authorlty exlsts "givllng] . voters the right to

seek assl.stance ln votlng absentee, includlng by allowing someone

else to mark thelr baLlots for them." (R15-79-81)'

Mr. Gordon articulated several reaaons for hls obJection to

the District Courtrs lncorporatlon of Alabama law on proxy votlng

into its instructlons. The law had not been codlfied or

promulgated, was unclear, and contrary practlces were wldespread.

He argued there was no evidence that he had known or had reason

to know that this was the law. He also requested a charge,'that

was not given, that "a vlolation of Alabama law is not at issue

ln this case." (R15-83).14 He further asked the Court to charge

that his liabillty for witnessing a proxy vote required proof of

a will.ful dlsregard of the law. (R16-54-56) He urged that

t4 Mr. Gordon aJ.so requested a charge that,
notwithstanding reference to Alabama laws, viol.atlon of Alabama
law ln and of ltself does not constitute a violatlon of federal
Iaw. The District Court refused the charge as requested, (R1-
7O-1g1, indicated that it would seek to incorporate the
substance, (R15-83), but then did not. See, €.9., (R1-74-6).

24



unl.ess the District Court's proposed charges $rere modif ied to

state that some difference of opinion exists amongi experts (R15-

g2) and that in September, 1984, there were people wlth "an

honestly different vlew, r' the instructlon would mean then "Your

Honor is instructing them to find the defendant gullty." (Id.)

The lnstructlon on proxy voting was given wlthout modlflcatlon.

E. Tha Dlatrlct Courtrs Modlflcd Allcn
Charge

The Juryrs dellberatlons on the charges against Mr. Gordon

were protracted -- marked by frequent interchangres between the

Distrlct Court and the jury foreman. The Jury lnitlall.y retired

on Thursday, October 10, 1985, 3t L:25 p.n. (R16-71). At 4

o,clock, the foreman sent a wrltten message requesting the

deposition testimony of Nebraska Underwood (R16-74), one of the

Greene County voters Mr. Gordon had been charged wlth defrauding.

The Jury dellberated through the afternoon of October 10th until

6:O5 p.rn. (R16-8?), when the Court pernlttcd the Jurors to rccesg

for the night. (R16-88) .15

The folLowing mornlng, the Jury resumed lts deliberatlons at

9:05 a.m. (R1?-3); adJourning for lunch at 11:45 a.m. (R17-5) and

resuming at tztT p.m. (R17-7). At 3:25 p.n., the Jury sent two

messages to the Court: (i) "9{e have a dlfference in opinion on

the meaning of rplaced & caused to be placed' ln each of the mail

fraud cases," (R1-70-4t; Rl7-tL-12); and (1i) "Would you repeat

your comments on actlng in good faith as opposed to the law. "

15 Although Mr. Gordon had moved at the outset of the trlal
for seguestration of the jury, arguingr that It was "critlcal" in
view of the "substantlal publicity" surrounding the votlng fraud
cases (R1-7O-LOzl, the notion was denied by the District Court.
Through the five days of Jury dellberations, Jurors were
permitted to return to their homes each evening.

25



(Id.) After further instructions on these issues (R17-L2-22),

the Jury retired agaln at 4:10 p.r. (Rt7-221 .

An hour later, the jury sent a messa€te to the Court

lndicating that it had "reached a verdict on one defendant and

cannot cone to a unanimous decislon on the other and would

appreciate the Judge's ruling." (R1-?0-41; R17-23). The Dlstrlct

Court brought ln the Jury and recelved its verdlct on Mr.

Gordon's co-defendant, Frederlck Danj.els, who was acqultted of

aIl charges. (R1-7O-4O; R17-24).

The Court then inquired whether the jurY, durlng lts ten-to-

eleven hours of deliberatlons, had come close to a unanlmous

verdict on the charges against Mr. Gordon. The foreman responded

that the Jury was hopeleealy deadlocked and that further

deliberations would be frultless. (R1?-26-271. The Court

replied, that it would regulre tha Jury to deliberate further,

(Rt7-22-281 , renlndlng the Jurors that lt "ha,s taken almost two

and a half weeks, Et least, for the evidence to be presented" and

stated to the Jurors that lt was "fulJ.y persuaded that additlonal.

del.lberations are in order." (R1?-28). The Court thereupon

dismissed the Jury for the evening and lnformed the lawyers of

his intention to give a modified "A.!!en charge[ to the Jury the

following day. (Rl7-29) .

In a chambers conference the next morning, Saturday, October

12th, counsel for Mr. Gordon unsuccessfu]ly objected to further

Jury deliberations and moved for a mistrial.. (R17-31). The Court

outlined its proposed charge (R1?-32-34) and rejected defense

requests that the jurors be lnformed (i) that "tilt ls not proper

for you to yield or give up a consclentiously held opinion in

26



order to reach a comPromise," (R1?-36); or (ff) "that they do not

have to reach a verdict ln this case. 'r (R17-37).

The Court then brought ln the jury and read its nodified

Allen charge, which ls set forth ln full in the Record Excerpts.

In that charge, the Court stressed, anon€, other polnts, that
,,[t]he tria] has been expenslve in time, ef fort and money to

both the Defense and the Prosecution . Obvlously, another

trlal would only serve to increase the costs to both sides. "

(R17-3s).

At various times during the day on Saturday, defense counsel

renewed lts reguest for a nistrial. (R17-44-45,46,50). At 4:OO

p.m. the Court received word that "[w]e the Jury have come to a

verdict on all but (9) lndictnents. In the (9) indlctments ere

are ln a deadlock." (R1-?O-38; R1?-51). The Court lnvited the

jury to submit its partial verd,ict, whlch acquitted Mr. Gordon of

9 counts agalnst hin. (R1-36-3?; R17-52). After polling the

jury, the Court asked the foreman for the Jury's positlon on the

remalnlng counts; he lnformed the Court that further

deliberatlons would not asslst the Jury to reach a verdict. (R1?-

55-56). The Court then polled each Juror lndlvidualIy. Eight

agreed with the foreman that no further progress $ras Possible.

One juror thought unanlmlty was poseible on one count; another

belleved it possible "on a fe$r. " One Juror stated generally that

furthdr deliberatlons might be useful. (R17-56-60).

The Court declded instead to permlt the Jury to dlsperse

until the following Tuesday morning after the Columbus Day

holiday on Monday, October 14th, (R17-65). The Court rejected a

defense request that the Jury be given the option to reconvene on

27



Sunday rather than on Tuesday. (R17-66-67). The Court then

stated to the jury that it was "not unmlndful of the opinion that

you have expressed to the Court in response to ny ingulry. I

thank you for your oplnlon. But f am the ultlnate declsion-maker

as far as thls partlcular questlon is concerned. And I have

formed an oplnlon that is perhaps dlfferent from many of you. "

(R17-69-70).

When the court reconvened on Tuesday morning, the District

Court, after conmendlng the iury f,or lts progress, g?v€

addltional lnstructlons, urglng them agaln to "be aB leisurely in

your del.lberations as the occasion may require, and take

all the tj.me which you may feel that is neceasary." (R17-75).

The jury deliberated throughout the mornlng and recessed for

Lunch, havlng sent the Court a mesaage that it was "making some

progress." (R1-?O-33; R1?-8O). At 4:O0 p.m., the foreman

lndlcated that the Jurors wished to "break for the day. " (R1-7O-

34; R17-99). Defense counsel strenuously urged the Court to

declare a nlstrlal. at this polnt, notlng that the jury had been

deliberating for nearly 3 L/2 days. (R1?-99-10O). Instead the

Court overruled the obJectlon, (R17-1OO), and ordered the iury to

recess until 9{ednesday, October 16th.

On the 16th, after the JurY resumed lts deliberations, one

of the defense attorneys reported anonymous telephone calls

lnforning counsel that one of the Jurors had been overheard

discussing Jury dellberations at lunch with a non-juror. (R17-

105). Defense counseL also noted that an article in the

l{ednesday, October 16th edition of the Birmingham Post Herald,

reporting on an acquittat the prevlous day in another of the

28



voting fraud cases, quoted the judge in that caae as saylng that

the defendant, "Mrs. Underwood had done very litt1e compared to a

lot of people. I do thlnk that some practices have been taking

place that should iolly-well stop. I take a dj.m vlew of people

cheatlng ln electlons by whatever device. " (R17-XO6). Counsel

moved for a nistrlal, warnlng that "a Juror seeing that

particular language might take that lnto conslderation, glven the

fact that they are not sequestered, and the amount of time that

they've been out. " (R1?-105) . That motion, and Elnllar

motlons 16 that followed later ln the day (see R17-1O9-t2), were

summarlly denied. (R17-1O7, 1ld) .

At L!257 a.m. the Jury sent a message reading, "W€ have come

to a verdict on 9 counts and we also feel that we cannot reach a

verdict on 3 counts. We also f eel that with tnore tlme we will

not be able to reach a verdlct on the last 3 counts." (R1-32;

R1?-118). The Court assembled the Jury and asked whether any

Juror had discussed the case with Jurors outside the Jury room or

wlth any others, or had been subJected to media. coverage of Mr.

Gordonts case or other voting fraud cases. (R17'L2O'2L). None

responded. The Court then received the verdj.cts.

The Jury found Mr. Gordon not guilty of five charges, and

guilty of four counts of nalL fraud and furnishlng fal.se

informatlon with respect to Nebraska Underwood and Frankland

underwood. (R1-?o-4-5; R1?-t241. After polllng the jury, the

Court noted that the gullty verdlcts were starred with the

16 Defense counsel later reported to the court that an
anonymous calter had "indlcated that one of the jurors had told
another person that another Juror was so raclst that [that] had
to be called to that juror's attentlon." (R17-113).

29



undersigned words, "aLl oulltv verdicts with recommendatlon for

gl9ggg5[. " ( R1-?O-45; R1?-13? ) ( emphasis added) . The Court then

instructed the jury that "punishment is a matter within the

excluslve province and prerogatlve of the Court," (R17-138), and

indicated that "1f, ln fact, the verdlct ls conditloned

upon', its recomnendation of clemency, the Court would not accept

the verdlct. (R1?-139). At defense request, the Court then sent

the jury back for further deliberations; shortly afterwards, it

returned to report that the verdlct woul.d stand. (R17-L4t-42).17

Mr. Gordon flled a timely written motlon for Judgnent or

acqulttal on several grounds (R1-73), anong them that the court's

refusal to declare a mlstrial and its Al.len lnstructlons had led

to a compromise verdict. (R1-73-3-4). Counsel subnltted two

newspaper artlcles ln support of the motion in which several

jurors were guoted as adnitting that the prolonged dellberations

and Jury instructions had forced a verdict. The artj.cle

responded that "althougih six Jurors believed Gordon was innocent,

they voted guilty on four counts as a resu.Lt of a compromS.se when

Judge E.B.Haltom refused to declare a mistrial and release them

after they reported they were thopelessly deadlocked.!" (Rl-71-

4). One juror reported that s/he "rwouldn't mind telling him

. to his face he's not guilty."' (Id.) Another stated that

tilf he dld anything, he didnrt do it
lntentionally. the man was busy. 9{e all
said he was a good man. He was in the
nursing home, visiting o1d folks, o11 the

l7 Another po1l of the jury reveaLed unanimous sentlment
that further dellberations would nct resuJ.t in a verdlct on the
additional counts (R17-148-521; the Court then decl.ared a
mistrial on those counts. (Rl7-155). The government subsequently
moved to dismiss those counts with preJudlce (R1-83) and the
District Court granted the motion. (R1-85).

30



tlme. He didn't go ln there iust to steal
thelr votes. He thought they had a rlght to
vote. A nan[J that busy makes nistakes. There
wa6 a reasonable doubt.

(R1-?1-5). The Dlstrlct Court denied Mr. Gordon's request for a

full evldentlary hearlng and overruled the motlon. (R1-75).

III. STANDARDS OF REVIEW

At least four of Mr. Gordonrs claims ralse issues of

federal statutory or constltutional law reguirlng lndependent

revlew by this Court. Those lssues lnclude Mr. Gordonrs cLalms

that: ( 1 ) Batson v. Kentuckv applies to hls case; (il) the

Court should reverse Mr. Gordon's convictlon under its

supervisory powers because of the Governnentrs systenatic

exclusion of black Jurors; ( ilt ) the Distrlct Court

mlsinterpreted and misapplled the mail fraud and votlng rights

statutes; aild (lv) the Dlstrict Court erred ln its incorporatlon

of Alabana election law into the iury instructlons.

Four of Mr. Gordonrs claims requlre this Court

independently to apply federal statutory oi constitutional

standards to record facts. See, e.g., Cuv1er v. Sullivan, 446

U.S. 335, 34L-42 (1980). Those issues include Mr. Gordon's

claims that: (1) the Government's prosecution of hin was, on the

evidence of record, a selective and lnvidious prosecution; (1i)

the Government's systematic exercise of its peremptory challenges

to exclude all black jurors establlshes a prima facie Equal

Protectlon violatlon under Swain v. Alabama and Batson v.

Kentuckv; ( iv) the Government's Justifications for excusing

severaL black Jurors are insufficient under Batson; (v) the

evidence is insufficient to prove each count against Mr. Gordon;

(vl) the District Court's supplemental instructlons to the jury

31



violated thls Courtrs strlct requirements for Al1en charges.

Mr. Gordonrs claim that the Dlstrict Court erred in

denylng his motlons for discovery and for a hearing on selective

prosecutlon is properly reviewed under an abuse of discretlon

standard. Wavte v. United States, 
-U.S.-, 

84 L.Ed.2d 542, 567

( 1985) (Marshall, J., dissentlng) .

ST'UMARY OF ARGT'UEI{T

The Government achleved 1ts convlctlons against

Appellant Splver Gordon only by systematlc distortlons both of

law and of fact. From the outset, the Governmentts investlgation

into votlng fraud ln AIabaBars Black belt fo1J.owed the selective

and vlndlcative pattern first condemned in Yick Wo v. Hopkins,

1 18 U. S . 356 ( 1886 ) , by singling out only maJority black

counties, and withln those counties at the behest of local.,

primarlly white political rivals only black polltical

actlvists and their supporters. The pattern of indictnents that

resulted from this campaign, as the .Maglstrate found in thls

case, spared even those members of rival politlcal partles who

had committed similar election law violations. Under these facts,

the District Court erred 1n denying Mr. Gordonrs motions for

dlscovery of the Government and for an evidentiary hearing on his

clalm of selectlve prosecution.

At the outset of the trial, the Government, despite

repeated defense obJectlons, exerclsed its slx peremptory

challenges to remove every black venire person from Mr. Gordon's

jury. Those strikes followed a recurrent pattern of exclusions

in the Government's other voting fraud cases against black

polltical leaders. This pattern sufficed to establish a prima

32



facle Egual Protectlon vlolation regulring a full hearing under

Swaln v. A1abama, 38O U.S. 2O2 (1965). Moreover, the pattern in

Mr. Gordonrs case aJ.one meets the relaxed prima facle standards

announced ln Batson v. Kentuckv, 
-U.S.-, 

90 t.Ed. 2d 69 (1986).

Several of the explanatlons volunteered by the Government for its

strlkes are lnsufflclent as a matter of law, requJ.ring a reversal

of Mr. Gordonrs convictions. Slnce the Dlstrlct Court made no

factual flndlngs on other explanations, which were sharply

controverted by defense proffers, a remand for a further

evidentlary hearlng ls necesaarY, at a minimum.

The Dlstrlct Court's instructions to the trial Jury

improperly incorporated disputed and anblguous provlsions of

Alabama election Iaw lnto its charge to Mr. Gordon's Jury. The

Court also lnformed the Jury that any vlolatlon of federal or

state law would suffice to make out the mental state required

under the federal statutes. In so doing, the Court erroneously

leEEened the approprlate mens.rea burden required by the mail

fraud and . Votlng Rlghts Act statutes on whlch Mr. Gordon was

convicted. In re Winshlp, 397 U.S. 358 (1970). These

instructions also constltuted a constructlve amendment of the

indictment which violated Mr. Gordon's due process right to

adequate notice of, and opportunity to defend agalnst, the

charges against him.

The evidence submitted by the Government, even seen in

a light most favorable to the prosecutlon, forms an insufficient

basls upon whlch any reasonable Jury could have convlcted Mr.

Gordon. Jackson v. VirSinia, 443 U.S. 3OZ (1979). At most, the

Government proved that Mr. Gordon signed as a witness the

33



',mailing af f idavits" on two absentee ballots of his wifers uncles

outslde of the uncles' presence, wlth no proof that he hlnself

voted the underlying absentee ballots or had any reasonable basls

to be]leve that the uncles had not themselves sought to subnit

those ballots in good falth.

Flnally, durlng protracted Jury dellberations, Ml.

Gordonrs unseguestered, aJ.I-whlte Jury several tlmes reported

itself "hopelessly deadlocked" on those counts against Mr. Gordon

on which they had not rendered partial verdlctE of acquittaL.

The Dlstrlct Court, over repeated defenEe obJectlon, refused to

declare a mistrlal, gave a dublous modlficatlon of the generally

dlsfavored Allen charge, and added a "personal oplnion" to the

jury which improperly suggested that the Judge hlnself believed

that a unanimous verdlct waE approprlate. Cf. Unlted States v.

Tavlor, 53O F.2d 49 (sth Cir. 19?6). Because of the cumulatlve

coercive effect of these acts on the Jury, thls Court, after a

"thorough examinatlon of the course of Jury deliberatlons,

as well as the content of the lnstructlons aa a whole, " United

States v. Al.onso , 74O F.2d 862, 8?8 ( 11th Clr. 1984 ) , should

reverse Mr. Gordonrs convictlon.

STATEMENT OF JURISDICTION

The Judgnent of the District Court was entered on November

L4,1985, and a tlmely notice of appeal was filed that day. The

Court has jurisdiction of this appeal pursuant to 28 U.S.C. S

L29L,

34



ARGT'UEI{T

I.

THE UAGISTRATE'S FINDING THAT THE GOVBRNUE}{T
CHOSE TO PROSECUTE SFIVER GORDON AITD OTHER
BLACK POLITICAT ACTIVISTS FOR ''VOTING FRAUD"
WBILE OTHBR SIMILAruY SITUATED GREENE COUNTY
RESTDENTS, WHO WERE MEMBERS OF A RIVAL,
WHITE-DOMINATBD FOLITICAL PARTY, WERE NOT
PROSECUTED FOR SIMILAR ELECTIOI{ OFFENSES--
WHBN SEEN TOGETHER !{ITH OTHER EVIDENCE
STRONOLY SUGGESTI}IG A RACIAT OR POLITICAL
MOTIVE FOR THE PROSECUTIONS -. REQUIRES THAT
SPITVER GORDON BE AFFORDED DISCOVERY AND AN
EVIDENTIARY HE"ARING ON HIS CLAIM OF SELECTIVE
PROSECUTION

Although "the Government retains 'broad dlscretlon' as to

whom to prosecute, . prosecutorlal discretion is not

r',unfettered." Selectlvlty ln the enforcement of crlmlnal laws

is . subject to constitutional constralnts. I Unlted States

v. Batchelder, 442 U.S. 114 (1979)

decision to prosecute maY not

In particular, the

be "'delj.berately based uPon an

unJustlfiable standard such as race, rellgion, or other arbltrary

classification"r lncluding the exercise of protected

statutory and constltutional rights. " 9{avte v. United States,

_u. s. , 84 L.Ed.2d 547, 555-56 (1985). Accord, United States

v. Robinson, 311 F. Supp. 1063 (V{.D. Mo. 1969); Zavre of Georqia.

Ias. v. Citv of Atlanta, 276 E. Supp. 892 (N.D. Ga. 1967).

The seminal case on this issue is Ylck 9{o v. Hopkins, 118

U.S. 356 (1886). There, the City of San Francisco prohibited the

operatlon of a laundry facillty without permission of the Board

of Supervlsors, unless the facility etere housed ln a brlck or

stone building. fd. at 35?. Though a Lawful exercise of the

state,s police power, the statute was crlmlnally enforced only

against Chlnese laundry operators

35

who were routinely denied



permlssion to operate wooden faclLities. The Court found that

the facts shown establlsh an administrati.on
dlrected so excluslvely agalnst a partlcular
claEs of persons as to warrant and require
the concluslon that, whatever may have been
the lntent of the ordlnances as adopted, they
are applled by the publlc authorlties charged
wlth their adnlnlstratlon with a nind
so unequal and oppressive as to amount to a
practlcal denlal by the State of that equal
protection of the laws which lE secured
by the broad and benlgn provlslons of the
Fourteenth Amendment to the Constltution of
the Unlted States. Though the law itseLf be
falr on its face and lmpartlal in appeararlc€,
Y€t, if lt is applied and adnlnlstered by
publlc authorlty with an evll eye and an
unequal hand, so as practlcally to make
unjust and 11legal discriminations between
persons in sinllar circumstances, materlal to
thelr rights, the denial of equal righte is
stlll withln the prohlbltlon of the
Constitution.

118 U.S. at 373-74.

There is an exceLl'ent reason whY, desplte lts "systemic

costs" to the ef f icient administration of justlce, 9{avte v.

United States, 84 t.Ed.2d at 556, the principle of Ylck Wo has

been preserved in our law for over a century. In the rare case

where the government misuses lts authority, a blow is struck

against basic values embedded in our BtlI of Rights. Under such

clrcumstances, the federal courts must step 1n to prevent the

offlcial power of g:overnment from belng wlelded lawlessly against

its own citlzenry.

The record ln this case, although hastily assembled by

defense counsel who had been denied access to key governmental.

sources, demonstrates that Alabama's Unlted States Attorneys and

the Department of Justice in 1984 deliberately undertook an

investigation into votlng fraud, focusing exclusively on

Alabamats majority-black, "Black Belt" counties. 9'Iithin this

36



geographical area, they llmlted their concern solely to those

five counties in whlch, blacks had recently achieved some

measure of polltlcal control. Even wlthin those flve countles,

the FBI lnvestigatlon concentrated exclusively otl acts by the

maJority black faction and lts leadership. Pleas to broaden the

inqulry to lnclude votlng fraud by the white-dominated, rival

polltlcal. organlzations pleaa supported by clear references,

strong 1eads, and evidence of obvlouE voting lrregularltles by

PAC members -- went unheeded.

The investigatlon, indlctnent and convlctlon ln thls case,

$ras thus the result of a concerted prosecutorial policy, whlch on

lts face slngled out for lnvestlgation and lndlctnent the

political advocacy and voter-aeslstance efforts among Alabama

blacks. It embodied what anounts to an explicit racial

clasElfication. E, gfaghinaton v. Seattle Schoo1 Dlst ' NQ,l,

458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969);

Spinkellink v. glainwrloht , 578 F.2d 582, 614-16 and n.4O ( sth

cir. 1978), cert. denied, 44o u.s. 976 (19?9); Lee v' Nvqui'st,

318 F. Supp. 7]-O (tI.D.N.Y. 19?O), aff 'd, 4O2 U.S. 935 (1971).

Moreover, federal, offlcials engaged ln thls and other

investlgations at the behest of, and in active concert wlth,

local white officials and would-be officials who appeared

motivated by a desire to dampen black political power, punish

their political enemies, and flnd prosecutorlal means towards

those ends. E.cr., Arthur v. Nvquist, 573 F.2d 134, L44 (2d Cir. )

cert. denied, 439 U.S. 860 (19?8); Resident Advisorv Board v.

Rizzo, 564 F.2d !26, L44 (3d Cir. L977), cert. denied 435 U.S.

9Og (19?8); Davis v. Schnel'1, 81 F. Supp.872, 875, 880-81 (S.D.

37



:

I

AIa. ) , aff 'd 336 U. S. 993 ( 1949 ) . These prosecutorial actions

were taken against a historical backdrop of hundreds. of years of

mul.ti-faceted discrininatlon agalnst blacks, involvlng acts of

dlscriminatlon by whatever meana necessarY to deprive bl.ack

citizens of the vote and of a meanlngful political voice in the

polltical affalrs of the very countl,es lnpllcated ln the

prosecutive ef forts. See, *.., Hunter v. Underwood, 

- 
U.S.

-, 
85 L.Ed. 2d 222 ( 1985); Harris v. Graddick, 593 F. Supp. L28

(M.D. AIa. 19S4); WilIlans v. 9la1Iace, 24O F. Supp. 100 (M.D.

AIa. 1965) . Cf . Vlllacre of Arlinaton HelcrhtE v. Metropolitan

Houslno Development Corp, 429 U.S. 252, 264-65 (1977); Griffln v.

Countv School Board, 377 U.S. 2LA (196a); United States v. Texas

Education Aqencv, 564 F.2d L62, t72-74 (sth C1r. L977), cert.

denied, 443 U.S. 815 ( 1979) .

The prosecutorlal campalgn had a perfectly racial disparate

impact: only black clvll rights actlvlsts and voter-assistance

personnel were targeted; only black voters were subJected to

rights-chllling investigatlve scrutlny; only black clvl1 rlghts

actlvists and a whlte synpathlzer were lndicted. 8.o.,

9{ashinston v. Davle, 426 U.S. 229, 242 (1975); Flores v. Pierce,

51? F,2d 1386, 1389 (gth Clr), cert. denied, 449 U.S. 875 (1980).

The practlces had a politicallv disparate impact as well: only

civil rights activists engaged in political advocacy and voter-

assistance activlties on behalf of black candidates for local

office and Democratlc candldates for national offlce were

targeted or lndicted.

The ruLe uniformly applied ln thls Circuit and others is

that a defendant has a right to discovery once he alleges a

38



',colorable basis" for a selectlve prosecution claim. See, 9-&-,

Unlted States v. Murdock, 548 F.2d 599, .600 (sth Clr. L9771;

United States v. Cammisano, 546 F.2d 238, 24L ($th Cir. 19?6);

United States v. Berrlos, 5O1 E'.2d 1207, 1211-12 (2d Clr. 1974)t

Unlted States v. Berriqan, 482 F.2d l]t, 181 (3d Clr. 1973). To

make thls showing, a defendant need only allege sufflclent facts

ln support of the seJectlve prosecution motion "to take the

question past the frlvolous state." Unlted States v. Hazel, 696

g.2d 473, 475 (6th Clr. 1983) (quotlng United States v. Larson,

612 F.2d 1301, 13O4-O5 (8th Clr. 1980) ); Unlted States v. Erne,

576 F.2d 2L2, 2L5 (gth Clr. 1978). In general, thls means that

dlscovery nust be granted once the defendant presents "some

evidence tending to show the existence of the eEsentlal elements

of the defense." , 5O1 F'2d at 7277'

The Magistrate ln fact found that Mr. .Gordon's extensive

proof of mlsconduct by rlval PAC nembers met the first prong of

hls claim, demonetrating "similar vlolatj.ons by other persons who

have not . been proaecuted." (R1-5O-12) Yet he concluded

that the pattern of government prosecutorlal actlvlty shown by

Mr. Gordon did not constitute "credible evidence that the

governnent has selected then for prosecution rbecause oft and not

'in spite ofr their status as political activists." (R1-5O-15).

As noted above, the proper legal standard on a motion for

discovery is whether a defendantts evldence suffices "to take the

questlon past the frlvolous state." Unlted States v. Hazel, 696

F.2d at 475 (quotlng Unlted States v. Larson, 612 F.2d at 1304-

05). Mr. Gordon's affidavlts and other submlssions obviously

take him leagues beyond the frivolous. fhe behavior of the

39



Ilcatio

United States Attorneys and the Department of Justice ln these

casea has prompted serlous Congressional scrutiny. E, e.o.

Hearinas Before the Subcornm. on Clvil and Constltutlonal Riohts,

HouEe Comm. on the Judlclarv, 99th Cong., lst Sess. 1985

( forthcoming) . It has drawn sharp critlciEn from members of the

United States Senate and other responslble natlonal leaders.

,'[T]he need to develop all relevant facts ln the adversary

system ls both fundamental and comprehenEive. The ends of

crimlnal Justice would be defeated if Judgnents were to be

founded on a partial or speculatlve presentatlon of the facts."

Unlted States v. Nixon, 418 U.S. 683, 7O9 (1974). Here, the

Maglstrate and Dlstrlct Court applled an erroneous legal standard

and abused thelr discretlon by denying Mr. Gordon his right to a

ful1 hearing, after appropriate dlscoverY. Mr. Gordon should not

be left to suffer the permanent conseguences of a selective and

vindictive prosecution lncluding probable loss of any further

right to resume political office in Alabama wlthout one fair

opportunity to prove himself the victim of a gravelY nisgulded,

unconstitutional course of governmental actlon.

II.

THE GOVERNMENT'S DELIBERATE USE OF ITS
PEREMPTORY CHATLENGES TO STRIKE EVERY
PROSPECTIVE BTACK JUROR FROM SPIVER GORDONIS
TRTAL JURY LAI}IENTABLY CONSISTENT WITH ITS
PATTERN OF RACIAT EXCLUSTONS DURING OTHER
AtABAltlA IIVOTING FRAUD" PROSECUTIONS-.
ESTABTISHES A PR]MA FACIE VIOLATION BOTH OF
SITAIN v. ALABAI'T.A AND BATSON V. KENTUCKY,
REQUIRING A REVERSAL OF SPIVER GORDONIS
CONVICTION OR, AT MINIMUM, A REMAND FOR A
FULL EVTDENTIARY HEARING

40



For over a century, the federal courts have taught that "a

State's purposeful or dellberate denlal to Negroes on account of

race of particlpatl,on as Jurors ln the adminlstration of justlce

violates the Equal Protectlon Clause. rr Swain v. Alabama, 38O U.S.

2O2, 2O3-O4 (1965), (guotlng Ex parte virqlnia, 1o0 u.s. 339

(1e80) and Glbson v. MisslsElppi, t62 U.S. 565 (1896)). "This

prlnclple, " the Supreme Court reninded the partles in Batson v.

Kentuckv, 
-U. 

S.-, 90 L. Ed. 2d 69, 79 ( 1986 ) , "has been

'conslstently and repeatedly' reaffirmed ln numerous

declsions of this Court both preceding and followlng Swain. "

Governmental dlsregard of this prlnciple inevltablY works a

grievous, pernicloue, ev!] for |t not only "harms the

accused whose llfe or llberty [the Jurors] are sumnoned to

try," Batson v. Kentuckv, 90 L.Ed.2d at 81, by deprlvlng hin of a

"safeguardt l agalnst the arbitrary exercise of power by

prosecutor or Judge, " id., but also demeans and dlscrimlnates

"against the excluded juror, " and ultinately, "undermlneIs]

public confidence in the faj.rness of our system of just5.ce." Id.

See Vasquez v. Hlllarv, 
-U.S.-, 

88 t.Ed.2d 598, 60?-08 ( 1986) .

Each of these fundamental values is at stake in Mr. Gordon's

appeal. Here, 1t is undisputed that the Government exercised its

peremptory challenges so as to try a long-tine black polltical

actlvlst from Alabama's Black BeIt for votlng fraud ostensibly

commltted durlng a polltlcal contest between rival, black- and

white-dominated polltical factions before an all-whlte iury.

It woul.d be difficult to imagine a case more fraught wlth dangers

to the impartial administration of justice. Mr. Gordon and hls

attorneys dld what they could to avert this problem at the outset

4L



of the trlal,lg yet the Dlstrlct court overruled each defense

motlon, without explanatlon and wlthout affordlng Mr. Gordon any

evidentlary hearlng. In so ruling, the Dlstrlct Court erred.

Thls record suff,lces to establish a prlma facle Equal

Protectlon vlolatlon even under the restrlctlve standards of

proof laid out |n Swaln v. Alabama. Mr. Gordon alleged a

systenatic pattern of racial exclusion by the Government, not

only in this case but in the companion Alabana voting rights

prosecutlons as well, Unllke Swain itself, then, there is

"evidence of what the prosecutlon dld . on lts own account

in . cases other than the one at bar. " Swaln v. Alabana,

3gO U.S. at 225. Thls evldence overcomes the "presu[ption of

proprlety," WlJ.lls v. Zant, 72O F.2d 1212, t2t9 (1lth Clr. 1983),

cert. denled, 467 U.S. 1256 (1984), afforded the Government by

Swaj.n, entltllng Mr. Gordon to a fuLl evldentlary hearlng under

this Court's opinlon ln ltlll.lls v. Zant.

Moreover, as the Court 1s surely aware, the Supreme Court

has recently eased S3g3.E's evidentiary burden, holdlng that "a

defendant may establish a prima facle case of purposeful

dlscrlmination solely on evldence concerning the

prosecutor's exerclse of peremptory challenges at the defendant's

trial." Batson v. Kentuckv, 90 L.Ed.2d at 87. Batson aIlows an

lSDefense counsel ( I ) warned the Distrlct Court, prlor to
Mr. Gordon,s trial, that a marked pattern of racially selective
strlkes had emerged ln the Governmentts other Alabama votlng
fraud prosecutlons; (li) noved ln writing for an order to prevent
such excluslons; (iii) obJected promptly to each raciaL strike by
the Governnent, ( lv) informed the District Court during an
extended oral argument of the legal foundations of its
objections; (v) requested a fulI hearlng on the government's
exclusions; and finally (vi) sought a wrlt of mandamus or
prohibitlon from this Court.

42



Equal Protection claim to be nade out by proof (i) that the

defendant was "a member of a cognizable racial !fEo[p,rr id., (ii)

that members of his raclal group were excused by the prosecutorrs

perenptory challenges, and that (1ii) "relevant clrcumstances

ral.se an inference that the prosecutor used [the peremptory

strlkel practice to exclude the veniremen . on account of

their race.ri Id. at 8?-88. In evaluatlng the defendantrs claim,

the Court explalned, a trial court should consider "a11 rel'evant

Circumstances,!r id. at 88, lnClUding the "rpatternr of strikes

agalnst black Jurors" and "the prosecutorts questlons and

statements during volr dire." Id. In Batson itself, where "ttlhe

pro6ecutor used his peremptory chaJ.lenges to Etrike all four

black persons on the venire, and a Jury composed only of whlte

persons was selec.ted," id. at 78, the Court held that a remand

for an evldentiary hearing was necessary.

fhe facts presentlY before the Court, suffice amply to

establish a prina facie violation under Batson.19 Moreover, the

19 The Supreme Court haE recently granted certlorarl to
resolve whether "the holding in Batson v. Kentuckv [should]
be glven retroactive effect'r to those cases, such as thls one,
that are "pending on dlrect appeal." Brown v. United St?tes,
cert. qrantld, _u.S._, 54 U.S.L.9{. 3?93 (U.S. June 3, 1986) (No.

, cert. orantPd, 
-U.S.-, 

54

U.S.L.W. S?93 (IJ.S. Juna 3, 1986) (No. 85-522L1 . While fully
retroactive application of Batson to all cases -- whether on
direct gI colllleral review -- would be appropriate in view of
the geiline rlsks, ll.Iustrated by this case, that such
diecriminatory jury selectlon practices pose for rrthe accuracy of
gullty verdicis ln past trials," Hankerson v. Ngrth Carolina, 432
U.S. ig3, 247 (t9771, at a mlnl.mum Batson should apply to cases,
such as this one, that are sti1l on dlrect appeal. Insofar as
Batson is conceived as announcing a "ne[d" rule of constitutional
latv, retroactivity to cases on direct appeal is required by the
principle announced in Shea v. Louislana, 

-U. 
S . 

- 
, 84 L. Ed . 2d

ge ( fbes) , followlng Justlce Harlants reasoning in Desist v.
United States, 394 U.S. 244, 256 (1969)(dissenting opinion) and
ffiev v. United States, 4O1 U. S. 667 , 675 ( 1971 ) ( separate

43



hasty justifications proffered by the Government to justify its

conduct here are not the sort of racially "neutral

explanation[S]," that Batson requlres in order to overcome a

prina facle case. Id. at 88. Instead, 3t least two exclusions

were plalnly lnsufficient on thelr face, necessitating a reversal.

of Mr. Gordonrs convlction. The others were irnmediately

countered by factual proffers from defense counseJ' whlch

challenged their factual accuracy or their legitlmacy. Since the

Dlstrlct Court made no effort to resolve this factual dispute, a

remand for a fulI hearing on these four exclusions is required,

at a minimum. Yet on the facts of thls extraordlnary record, the

Court need not indulge such a remand. Instead, under the federal

constltutlon or its own supervisory powers, lt should reverse Mr.

Gordonrs.conviction and permlt hlm a trlal before a Jury selected

free from any talnt of racial discrl.mlnatlon.

As we indicated above, Mr. Gordonrs prlma facie case of

dj.scrimlnation ls clear. The Court was surely correct to predict

that " Im]uch Iitigation will be requlred to spe]I out the

opinion):

" [A]pplication of a new rule of 1aw to cases
pending on direct review is necessary in
order for the Court to avoid belng in the
position of a super-legislature, selecting
one of several cases before it to use to
announce the new rule and then letting all
other similarly situated persons be passed by
unaffected and unprotected by the new rufe."

Shea v. Louisiana, 84 t.Ed.2d at 45. Insofar as Batson is
conceived instead as merely reaffirming an "old" constitutional
ruLe, its application would be automatic and thus not
"retroactive" at all. Under Such an analysis, the Government
could hardly claim any "good f.aith re.l.iance" on a supposed right
to discriminate ln the use of its peremptory challenges which
Swain itself indicated was impermissible. Cf. Ivan V. v. Citv
of New York, 4O7 U.S. 2O3, 2O4 (L9721 .

44



contours of the Courtrs Egual Protection holdiD9," Batson v.

Kentuckv, 90 L.Ed.2d at 91 (t{hlte, J., concurring). Yet here,

where the Government, desplte prior obJection by defense counseJ.,

exerclsed all of 1ts peremptory challenges Six out of six--

against the only blacks Presented to lt, thls Court ls not

forced, to Spe11 out ttpreclse contours,!r bUt nerely to pronounce

upon an extreme case. Vlrtually everv lower court that began to

curb the racial exercise of perenptory challenges prlor to Batson

has agreed that stark patterns of exclusions such as those

presented by thls record compel Judlcial intervention. See,

e.g. McCrav v. AbramE, ?5O F.2d 1113, 1133 (2d Ctr. 1984), cert.

pendina, (No. 8{-14261; People v. HaII, 35 Cal. 3d 151, 197 CaI.

Rptr. 7L, 672 P.2d 854, 858 (1983) (en banc); State v. Gilmore,

199 N.J. Super. Ct. App. Div. 389, 489 A.2d 1175, LL87-88

cert. <rranted, 101 N.J. 285, 5o1 A.2d 948 (1985); People v'

Whee1er, 22 Cal. 3d 258,148 Cal. Rptr. 89O, 583 P.2d 748 (19?8).

Furthermore, nelther the Unlted States Attorney's "den[ia].1

that he had a discrlminatory motlve In]or ,[hls] 'af f lrming his

good falth ln indivldual selectioDs, '" Batson v. KentuckY, 90

t.Ed.2d at 88, are sufflcient to overcome that prima facie case.

Instead, the Government must shoulder the affirmative burden to

"come forward with a neutral explanation" that is "related to the

particular caee. " Id. A]though the Distrlct Court itsel.f

conducted no factual inqulry, the Governmentrs volunteered

justifications provlde this Court with a record upon which to

consider for ltself whether the Government's explanations meet

the Batson standard.

At Least two of the six plalnly do not.

45

The Government



justlfied its exclusion of Juror No. 35, Mrs. Savannah Hundley,

(R5-12) on two grounds. Flrst, lt observed that "she had the

lowest educatlon of anyone on the venire . she had finished

the slxth grade, " and suggested that her educatlon would

conEtitute a disabillty since "It]hls case contalns numerous

. fairly complex docunents of evldence and arguments of Counsel. "

(R6-32). Secondly, it noted that "[w]hen aeked about her delay

ln votlng, she expressed a blas with regard to not knowlng that

she had the right to vote.'r (Id. )

The Governmentrs purported concern over the educational

quallflcatlons of thls S9-year-old black woman ls plalnly a "mere

pretextrr -- nothlng nore in thls reglon where a rigid state-

enforced school system and a subslstence plantatlon economy

conbined to deprive vlrtually aJ.} Alabama blacks of Mrs.

Hundleyrs age of any neanlngful education. The 1980 CensuE

flgures clted in thta record reveal that "only 28.6% of blacks in

Greene County who are age 25 or ol.der are high school graduates."

(RS2, Aff,t of Ira B. , at ?) . , Moreover, there is nothing

dj.scernable in Mrs. Hundley's lnterchanges with the Court or

defense counsel whlch suggests any special lack of mental acuity

on her part (see R5-14-16, 2O-2t,73'761, even if the Court were

to accept uncritically the Government's assertion that 1ts case

against Mr. Gordon turned on "complex documents," rather than on

a stralghtforward, common-sense judgnent about whether Mr.

Gordon,s two accusers were telling the truth about slgnatures

affixed to a few qulte ordinary paper ballots.

The Governmentts second justificatlon that Mrs. Hundley

had expressed a "bias" against votlng borders on the

46



shameless. Mrs. Hundley stated that she had not registered to

vote until she was ln her thlrties because "it was long tlne

before we could register to vote." (R5-74). Asked by the court

whether she was "saying that'because you're black you couldn't

vote,rr (ld.), Mrs. Hundley replied, "No. f guess not. You know?

I didn't know that we could vote until later years." (Id.) We

trust that this Court needs no extended reminder of the bitter,

protracted struggle waged by Alabana bJ.acks of Mrs. Hundley's age

before the right to vote was freely afforded to them, 20

The Governmentts explanation here is anything but "neutral,"

faulting an old black woman 1n ALabama for her 'rbias" agalnst

votlng during the racially lawless years of the 1940's and early

1950's. Eatson's demand for "a 'clear and reasonably specific'

explanation of [a prosecutor's] legitlmate reasons,r 90 L.Ed.2d

at 89, would be "rbut a valn and illusory requiremetlt,r" id. at

88, if the Government could lawfully exclude a black juror on the

20 As was stated not too long ago by the late Judge
Richard T. Rivqs, "from the Constltutional Convention
of 1901 to the present, the State of Alabama has
consistently devoted its official resources to
naintalning white supremacy and a segregated soc5.ety. "
United States v. Alabama, 252 F. Supp. at 10.
Moreover, ets anyone casually familiar with the history
of the state knows, this rule of law and social order
etas usually enforced by humlliation, intimidatlon and
even viol,ence. The evidence now bef ore the court
dramatlcally and persuaslvely reflects that many
bl.acks, ln particular the eJ.derly and uneducated, still
labor under these past memories. They find the
simple act of registering and voting . an extremely
intimidating experlence; and as a result, many of them
do not reglster, and many of those who do register do
not vote.

Harris v. Graddick, 593 F. Supp.
aLso 9{illiams v. Wallace , 24O
1965 ) (catal.oglng the "enormous"
inflicted by Alabama public
peaceably seeking the right to

128, 131 (M.D. Ala. 1984). See
F. Supp. 10O, 104-06 (M.D. Ala.
variety of wrongs that have been
officials agalnst black citizens

vote).

47



grounds asserted here. 27

The Government was able to lodge no simllar complaint

against another black juror, Mrs. Deborah Sca1es, since she was a

college graduate (R4-152) who had reglstered to vote when she was

eighteen years o1d. (R4-186). Instead, the Government claimed

that it

was satisfied she was being evasive in
answers posed to her in chambers
partlcularly wlth regard to another person
who is on the venlre who had worked in the
IC]lerk's office in Greene County in which
that Juror denled having met with this
particular other venlre member untll
speclficaJ.Iy noted when she had been observed
wlth that person here ln the courtroom and
leaving for lunch from the court

(R6-3t-921. We invlte the Court to review the entlre volr dire

of Mrs. Scales, (R4-152-56, 185-89), to see for itself whether

the record reveals any "evasiveness." The exchange on which the

Government apparently relles reads as follows:

MR. BARNETT: Mrs. Scales, You live in
Birmingham?
MRS. SCALES: Yes.
MR. BARNETT: Have you lived in Greene County
before?
MRS. SCALES: No.
MR. BARNETT: Do you know anybody ln Greene
County?
MRS. SCALES: No, I donrt.
MR. BARNETT: Do you have any friends who
used to l1ve in Greene County, ot presently?
MRS. SCALES: Let me ask you something. I
met a girl today that llves in Greene County

2t The Court shoul.d, moreover, careful.ly compare the voir
dire of Mrs. Hundley wlth that of a white Juror, sixty-eight year
old Mrs. Elnyra Lemmond, who testified that her education
extended no further than the eighth grade (R5-155), and who had
been registered to vote, by her best recollectlon, lIO more than
',thirty years." (R5-163). Despite these striking similarities in
education and voting behavior the two points which ostensibly
motivated the Governmentrs peremptory excusal of Mrs. Hundley--
the Government exercised no strike was exercised against Mrs.
Lemmond.

48



thatis on the iury.
MR. BARNETT: Whatrs her name?
MRS. SCALES: I donrt know her name.
MR. BARNETT: Is that Eddle Mae Butler?
MRS. SCALES: No.
MR. BARNETT: Do you know Eddie Mae Butler?
MRS. SCALES: No. I met a girl. She 1s--
shers on the Jury now. I donrt know her
name. But I met her today at lunch. It may
not be Greene CountY. It naY Just be

- ;H:T*;ii;, rhe rady that you warked out or
the courtroom wlth, named Eddie Mae Butler,

. you donrt know that thatts her name?
MRS. SCALES: That maY be the name.
MR. BARNETT: That's the lady you had lunch
wlth yesterday, too?
MRS. SCALES: Yes, sir. I had lunch wlth
her. But I dldntt know she was from Greene
County.
MR. BARNETT: You didnrt talk to her or
anythlng about her previous enploynent down
ln the clerk's offlce down in Greene County?
MRS. SCALES: No. She told ne she dldnrt
work. I thlnk she sald she was a student or
somethlng.

(R4-186-87).

Absent evldence of more than a mere lunchtlne acqualntance

between Mrs. Scales and another venire member from Greene County

whom she understood to be a student, the Government has shown no

"Iegitlmate reasons" that could pass muster und,er Batson to

strike Mrs. Scales. At most, it has raised a question that would

require, though it did not recelve, further factual inquiry by

the Distrlct Court.

The Government also alleged that Juror No. 26, Karl Half,

. was observed "putting his arm around one of the defendants." (R6-

321. Counsel for Mr. Gordon, in response, immediately requested

a fuII hearing (R6-34), prof fering that he coul.d prove Mr. Hall

"has never touched, seen or spoken with" Mr. Gordon. (R6-35; R5-

41-55). Counsel also proffered that "if such a hearing were

hel.d, w€ would be abl.e to produce testimony to the effect that

49



even before the venlre was brought into the courtroom lt

was the intentlon of the United States Attorney to strlke every

black from thls Jury and to send those defendants to trlal before

ah all-whlte JurY." (R6-34-35).

The District Court made no attempt to resolve this sharp

factual dlspute, obvlously dlsnlsslng Mr. Gordonrs challenge

under its narrow Iegal reading of Swain. "When an appellate

court discerns that a dlstrlct court hae failed to make a finding

because of an erroneous vlew of the law, the usual ruLe ls that

there should be a remand for further proceedlngs to permlt the

trial court to make the nlsslng flndings . Llkewise, when

flndlngs are inflrn because of an erroneous view of the law, a

remand is the proper course unless the record permits only one

resolutlon of the factual lssue." Pullman-standard v. Swint, 456

U.S. 279,291-92 1L982), and cases cited at a.22; see, Batson v.

Kentuckv, 9O t.Ed.2d at 9O; cf,. Harris v. Oliver , 645 F.2d 327

(sth Cir. Unlt B 1981).

Yet slnce we have shown here that the Government made a

record but failed to artlculate any 'rneutral explanation" for the

excusal of Mrs. Hundley and Mrs. Scales, their excusals alone

reguire thls Court reverse of Mr. Gordon's conviction. Moreover,

in view of the entlre pattern of prosecutorial behavior in this

case and the other Alabama voting fraud cases, it would be an

appropriate exerclse of this Court's supervlsory powers to dj.rect

a new trlal of this case even were the constitutional issue

l.ess clear in order to further the tradj.tional purposes served

by its supervisory po$rer. See United States v. Hastinos, 461

U.S. 499, 505 (1983)(describing purpose of supervisory poe{ers as

50



,'to implement a remedy for violation of recognlzed rights

to preserve Judicial integrity by ensurlng that a convictlon

rests on appropriate Considerations valldly before the Jury

and f1nall.y, as a renedy designed to deter illegal conduct.");

Unlted States v. Di Bernardo, 775 F.2d L47O, L475-76 (1lth Cir.

1985), cert. denled, 

-U.S.-, 

90 L.Ed.2d 357 (1986)(same); see

qenerallv, United States v. Leslie, 783 f.2d 541, 566-74 (Sth

Cir. 1986) (en banc) (dissentlng opinion) (urging Clrcuitrs use of

its supervlsory powers, pre-Batson, to requlre lnquiry into

racial use of peremptory challenges. )

In sum, the Court should either reverse Mr. Gordon's

convictlon under Batson ar,rd/ot lts supervisory powers, O!, in the

alternatlve, should remand for a further hearing under both

Batson and Swain v. Alabana.

III.

THE DISTRICT COURT ERRONEOUSLY INSTRUCTED IHE
JURY ON ESSENTIAL ELEMENTS OF EACH COUNT ON

WBICH SPIVER GORDON WAS COIfVICTED

The speciflc intent to defraud is an essential element of

both the mail fraud (18 U.S.C. 51341) and the false information

(42 U.S.C. S19?3i(c) ) statutes. Each statute was charged in Mr.

Gordon's lndictment as a fraud offense. Yet the element of

specific lntent to defraud was not charged by the District Court

to Mr. Gordonrs jury. In its place, as the mens rea element of

each statute, his jury was instructed that it could convict if it

found an intent to disobey or disregard any law "federaL or

state. " (R16-39-40, 46; R17-16, 94) .

An intent to transgress any Law, crlminal, civi.l , or purely

51



2false iregulatory, however, is in no way tantamount to an intent

to defraud. Moreover, the instructions in thls case came Just

after lnEtructlons by the District Court on numerous provislons

of what lt advised the iury was Alabama law pertaining to

absentee voting. (R15-23-29). The Court told the iury that

under Alabama law: (f) the voter hlnself must mark the absentee

bal.lot voted ln his nane, except to the extent the voter is

physically unable to do so; (ii) any ballot marked by another

except for a physically disabled voter must be marked with the

consent, ert the directlon, and ln the presence of the voter;

(iii) the manual physlcal effort of slgning the affidavlt on the

malling envelope must be accomplished by the absentee voter

personally, not by anyone else, whether with or without the

pernlsslon of the absentee voter; (iv) the absentee voter has no

right to grant his proxy to another to cast an absentee baIlot

for him, (for example, 3rr uncle cannot give lt to his nephew);

and (v) the witness to the absentee voter's signature to the

affidavit on the malling envelope must actually have seen the

absentee voter personally sign or mark the affldavit, or the

absentee voter must acknowledge the signature in his presence

(Rl6-26-28).

Seen as a whoJ.e, these instructlons permitted the iury to

convict Mr. Gordon tf lt found that he intentionally by-passed

any one of these non-criminal Alabama procedural'requirements,

even lf he did so with the consent of the voter. The result was

to create a federal vehicle for criminallzing as a felony any

52



Iaw, state or f,ederal, even without specific evidence of fraud.22

The negatlon and replacement of the specific lntent to defraud as

a necessary element constltuted grave constltutional error which

mandates reversal. Cf. Sandstrom v. Montana, 442 U.S' 51O

(19?9); fn re Wlnshlp, 39'I U.S. 358 (1970).

In the argument beLow we w111 summarlze the Courtrs

lnstructlons, then turn to the proper elements of each offense,

and then, by comparing the two, demonstrate the essentiaL

deficienciee of the lnstructlons received by Mr. Gordonrs Jury.

Finally we wilt identlfy those factors that made these errors

exceptionally preJudiclal ln this case.

A. The Falee Informatlon Of,f,enee

Mr. Gordonrs Jury was instructed that under the false

infornatlon component of S19?31(c) tt is a crinlnal offence, in

an electlon at whlch candidates for federal office are on the

ballot, (i) knowingly to provlde or cause others to provide

,'false infornation to the absentee bal.lot election off iclals as

that goes on to the back of the absentee ballot return envelope

in order to try and get the absentee ballot counted" (emphasis

added) ; and ( ii 1 to do so willfully "with an intent or

consciousness of disobeying or disregardinE the requirements of

law, federal or state.', (R16-46; See also, R16-48; 59-6O; R17-

94) (emphasis added).

By contrast, the statute ltself limits its reach to one who

22In his order of November 13, 1985 denylng Mr. Gordonrs
Motion in Arrest of Judgment, the District Court stated that each
offense in the indictnent "is in part predicated on the absentee
votlng laws of the State of A1abama." (R1-74-6).

53



"knowingly or wllLfulIy gives false information as to hls name

for the purpose of establishtng his eligibility to register

or vote. " The statutory language sets forth the elements of this

offense and should thus be conclusive. See, e.q., Unlted States

v. A1banez, 45o U.S. 333, 336 (1981I,23 A defendant who "gives

false lnformatlon as to his name" cannot be penalized under S

19?3i(c) unless he glves such infornatlon "knowingly or

willfully" and does so "for the purpoae of establlshtng his

e1igiblllty to reglster or vote". Uslng false lnformatlon for

such a purpose, the defendant harbors the "speclallzed knowledge

or deslgn for some evil," Morlssette v. United States, 342 U.S.

246, 265 (1952), which constitutes speciflc lntent to defraud.

Moreover, in so establlshlng hls eligiblllty to vote, the

defendant acts to dilute the voting power of the electoral body

(wlth the purpose of aggrandlzlng his osrn). See, Unlted States v.

Bowman, 636 F.2d 1OO3, 1OO8 (sth Clr. Unlt A 1981).

While, :rS set forth above, the phrase in S1973i(c) "for the

purpose of establlshing his ellglbility to register or vote"

descrlbes the speclflc intent element of that offense, it also

sets definite linits on the ranqe of acts to whlch the statute

properly applies. By its plain terms, S 1973i(c) is applicable

solely to one who attenpts to establish the eligibllity to cast a

ballot as hls own. Nowhere in the instructlons, however, was Mr.

Gordonrs Jury charged that, before it could convict, lt had to

find that he had made such an attempt, nor would the evidence

23 Cases interpretlng the false lnformation conponent of
S19?31(c) have not slgnificantly elaborated on the elements of
the offense. See, €.O., United States v. Howard, 774 F.2d 838
(?th Cir. 1985); United States v. Olinoer, 759 F.2d 1293 (]th
Cir. ), cert. denied, 

-U.S.-, 
88 t.Ed.2d 98 (1985).

54



have supported such an instruction.

Slnilarly, the statute limits its reach to three kinds of

faLse informatlon the fraudulent voter's name, address or

period of resldence ln the votlng distrlct.24 None of those

three was applicable to Mr. Gordon under the facts, nor made

appllcable under the lnstructions. Instead his Jury was

instructed to find him gulIty if it believed that he had

wltnessed an absentee baLlot affidavlt not signed in his

presence.

The legislative history reJ.nforces the evidence, drawn from

the plain Ianguage of the statute, that S 1973f(c) extends only

to the frauduJ,ent use of certaln limlted catagories of false

informatlon. The provision $ras purposely drafted narrowly so as

not to reach inproper acts that were not speclflcally intended to

corrupt the election process. This llmitation was devised to

reassure Congresslonal opponents of the amendment who expressed

concern that lt nlght be used to prohlblt legitlnate forms of

voter assl.stance or protected efforts to increase voter turnout.

111 Cong. Rec. 58423-25, S8428-33, S8984-85, H16!46-47, 'H16246

(1965). The sponsors allayed these concerns by specifytng that

the amendment would proscrlbe only fraudulent acts which taint

or potentially taint election results. Id. at 58988, H16246,

Repeated citations were made to events *n*n had allegedly taken

24 A manual distrlbuted to U.S. Attorneys by the U.S.
Department of Justice, Federal Prosecution of Election Offenses
(Oitober 1984) recognizes this sharp limitation. After listing
the three categories of information the statute addresses, i.€.,
name, address, and residence of voter, it notes that false
informatlon that relates to other requisites to voting should be
prosecuted under a different statute. Id. at 12. Mr. Gordon
referred the Court to thls Justice Department position on a
number of occasions. (Rl1-119-721; R15-76-77) .

55



place ln Chicago during the 1960 presldential e1ectlon, id. at

S8814-15, H16247-49, and other elections in which the election

"was stolen, " id. at S8813-L7, Ht6249-5O, as examples of the kind

of large-scale voting fraud schemes the amendnent lntended to

prevent. See, e.o., id. at 38988, H16246.

The elements of S 19?3i(c) should therefore have been framed

to require proof (i) that Mr. Gordon submitted false infornation

wlth the specific intent to establish fraudulently his own

eliglbility or that of an accomplice to vote an absentee ballot

and (il) that the false lnformation was the name under which the

baLlot was voted.

The lnstructions, horrever, transformed S 19731(c) fron a

votlng fraud statute lnto a vehlcle for crimlnalizing the only

acts proven against Mr. Gordon -- that he witnessed two absentee

ballots outside the votersr presence.25 SinilarlY the instruc-

tions permitted conviction based on no more culpable a mental.

state than Mr. Gordonls noncrimlnal purpose "to try and get the

absentee bal.lot counted, " It dld not regulre the Jury to find

that Mr. Gordon intended to have the ballot reflect his own vote.

The instructions in effect obliterated the element of specific

intent to defraud and sharply reduced the leve1 of mens rea

necessary to vlolate the statute.

In addition, in vlolation of the

19?31(c), whi'ch required that information

as to Mr. Gordonrs eJ.iqibil.itv to vote,

plain meanlng of S

by Mr. Gordon be false

the jury was informed

25P1ain1y, however, Mr. Gordon could have dlsregarded one of
the numerous provisions of state law charged to the iury,
including the purported requlrement that a wj.tnessing must occur
in the presence of the voter, without having acted with "the
purpose of estabLishing his eligibility to register or vote. "

56



that the statute was violated if the information provided by Mr.

Gordon was false "as to the name of the person who was signing

the affidavlt. " This instruction, by focuslng upon the signature

on the naillng affldavlt, rather than on the absentee ball.ot

ltself, created another opportunity for the state law

lnstructlons to preJudlce Mr. Gordon. These lnEtructions

contained a number of provislons speclfying by whom and in what

manner "slgnlng the affldavlt" couLd lawfully occur. Since

those provisions of state law had been independently lncorporated

lnto S19?31(c) through the lnstructlon on mens E, the Jury was

all the nore likely to focus on the state law provisions in

decidlng what "fa.Ise informatlon . aa to the name of the

person who was actually signlng the affidavit" would entalL.26

In sum, the Courtrs entire lnstruction on S1973i(c) created

a broad statute capable of penalizing any act concerningi the

manner in which any of the signatures on the absentee baIlot

envelope were made. Based on these instructlons, Mr. Gordon may

well have been convicted aven though the Jury found that the two

absentee ball.ots on which his conviction rests were voted with

26Jury confusion over these charges was palpable. In one of
its many queries posed to the Court during its deliberations, the
jury expressed "trouble" wj.th the false lnformatlon counts. (R17-
82). The Jury's questlon etas: "Is]ince the count reads
'furnlshlng false lnformatlon, "' should it deal only with that
part of the count which accused Mr. Gordon wlth "aid[ing] and
abettIing] others to furnish false information" and not with that
part of the count which charged him wlth doing so "in order to
permlt the defendant to vote the absentee ballot. " (Id. ) In
response, the Court merely reiterated the lnstructions it had
given earlier. (R17-91-98). Given thls answer, the iury could
have only concluded that it was not to consider whether Mr.
Gordon had acted "in order to permit lhimself] to vote the
absentee ballot" since as stated above the instructions failed to
charge that elenent. The negation of the mens rea element of the
false information offense was thus driven home to the jury in the
final stages of its deliberatlons.

57



the consent of the named voters.27 Based on the lnstructions,

the Jury was required to convict Mr. Gordon on the f,a1se

information offenses for dolng nothing more than wltnessing those

absentce ballots outEide the presence of the respective voters so

long as lt concluded that he had dlsregarded a state law in the

process. Because S 19?3i(c) ls properly construed as a statute

almed at penalizlng the use of certain specifled categories of

false information to commlt votlng fraud, the instructions

created reversLble error.

B. Thc t{all Fraud Off,enge

The Court instructed the Jury that there were three el,ements

to each rnail f raud count: ( 1) a scheme to def raud the votere of

Greene County, Alabama by havlng absentee ballots cast by persons

who were not the actual absentee voters (ff) that, 3s part of the

scheme, Mt. Gordon placed or caused to be placed such absentee

ballots in the mall; and (i11) that Mr. Gordon did Eo wilfully,

1.e., intentlonally and wlth "speciflc lntent to dlsregard or

dlsobey the requJ.rements of law, "

(enphasis added). (Rl6-39-4O, 43, 58-59; R17-15).

Thus like its lnstructions on S 1973i(c), the Distrlct

Court's instructj.ons on the mal1 fraud offense incorporated

Alabama law wlth the resul.t that the disregard of any of the

charged provisions would constitute the mens rea necessary to

violate the statute.

27One of the many objections posed by Mr. Gordon to these
instructions was the Courtrs refusal to glve his reguested charge
23 on forgery. (R13-78-79). This charge would have established
that in order for the slgning of the name of another to be
actionable as fraud, that signing must not have been authorized
or must have been done without a bona fide belief it was
authorized. The charge was refused. (Id.).

58



In fact, in a nail fraud Prosecution, "[t]he evidence must

show that the defendant had a specific intent to defraud. "

Unlted States v. O'Ma1lev, 7OZ F.2d t24O, L246 (11th Clr. 1983);

see alse, United States v. Currv, 681 F.2d 406, 410 (sth Cir.

tgl}l.28 Specific intent requlres that "It]he government must

prove not only that there was fraudulent actlvity but also that

defendant had a 'consclous knowlng lntent to defraudr." United

States v. Kire!4er, 609 F. 2d L26 , t28 ( sth Clr . 1980 ) . Stated

alternatlvely, lt is "necessary in a nall fraud prosecution to

prove wi1lful participation in a scheme Iby defendant] wlth

knowledge of its fraudulent nature and wlth the lntent that these

1lllcit obJectlves be achleved". Unlted StateE v. Prlce, 623

F.2d 587, 591 (gth Clr. ), cert. de-nied, 449 U.S. 1015 (1980); see

also, Unlted States v. Zicree, 605 F.2d 1381, 1386 (sth Cir.

19?9), cert. denied, 445 U.S. 966 (1980).

MaiL fraud schemes have been charged for voting offenses,

but only ln clrcumstances where the defendants demonstrated their

specific intent to defraud by actuall.y voting numerous absentee

ballots in the names of flctitious persons, by intentionally

depriving reglstered voters of control over their absentee votes

or by paylng for votes.29 The fraud in such cases was deemed

perpetrated against the electoral body by defrauding it of its

28In additlon, the evidence must show use of the mails for
the purpose of executing the fraudulent scheme. United States v.
O'Mallev,ggpE3. 7O7 F.2d at L246.

29 United States v. odom, 736 F.2d 1o4 (4th Cir. 1984);
United States v. Clapps, 732 F.2d LL48 (3rd Cir.), cert. denied,
83 L. Ed. 2d 699 (1984); United States v. Castle, No. 82-5$ll,
declded August 72, t982 (6th Cir. ) (unpublished); United S-tqtes
v. States, 488 F.2d 76t (8th Cir. L9731, cert. denied, 4L7 U.S.
9O9 (19?a) ; United States v. Lewis , 5L4 F. Supp. 169 (M.D. Pa. 1981)

59



"political rights to fair elections free from

lntentional casting of false, flctitlous or

United States v. C1appq, 732 F.2d 1148, 1153

dllutlon from the

spurlous balJ.ots. "

( 3rd Cir. ) cert.

denied, 
-U.S.-, 

83 t.Ed.2d 699 (1984).

Thus, oD the nail. fraud counts, the Jury should have been

instructed that proof of willful participation in, and the intent

to achleve the illiclt objectlves of, a scheme to defraud the

voters of Greene County through the casting of fraudulent

absentee ballots (the existence of which scheme the Jury shoul'd

also have been requlred to find) was the necesaary mens rea

element of each nail. fraud offense charged against Mr. Gordon.

Instead, the jury was instructed to convlct if tt found that Mr.

Gordon had disregarded any law whatsoever, including any of the

numerous, charged provisions purported to be Alabama law, even if

the Jury found no evidence of specif ic intent on tvir. Gordonrs

part to defraud.

A finding that Mr. Gordon possessed the speclfic .intent to

defraud based solely on his disregard of the charged provisions

of Al.abana law or of any other law expanded erroneously the mail

fraud statute3o lnto an orbit far beyond any of the schemes held

actionable in any previous mal1 fraud case dealing with voting

offenses. While the courts in those cases did not have occasion

directly to define the applicabLe Iimlts of the nail fraud

statute ln voting cases, such linits exist. Not all wrongdoing

30 Penal statutes are of course required to be strictly
construed' Dunn v' u's" 442 u's' 1oo' LLz (1979); Morissette v'
United States, 342 U.S. 246, 263 (1952); United States v.
Resnick, 299 U.S. 2O7, 209-10 (1936); United States v.
hliltberqer, 5 9{heat. 76, 95 (1820)(Marshall, C.J.); United States
v. Bridqes, 493 F. 2d 918, 922-23 (sth Cir. 1974).

60



and not even all acts of deception constitute actlonable fraud

under the mall fraud statute. See, e.q., ,

536 E.2d 1388, 14OO (2nd Cir. 1976) (effcrt to avold disclosures

to securltles holders was a breach of obligatlon and a violation

of securltles laws but waa "hardly ta scheme or artiflce to

defraud' in the sense of the malI fraud statute ...."); United

States v. Mandel, 591 F.2d L347, 1353-64 (4th Cir. 1979),cert.

denied, 445 U.S. 961 (1980) (failure by a publlc offlcial to

dlsclose material informatlon would conEtltute a breach of

fiduciary duty but standing alone could never be cognizable under

the nail fraud statute becauEe lt ls not a scheme or artlfice to

defraud). There ls a "guality and guantity of fraud necessary to

lnvoke the crlmlnal sanctions of 51341" whlch is related to the

detriment suffered by the defrauded party. United States v.

Ballard, 663 F.2d 534, 54O (sth Cir. Unlt B 1981) . Such

detriment plalnly arlses under the standard established ln the

prevlous mall fraud decisions in votlng cases, each of which has

involved dilutlon suffered. by the eJ.ectoral body because of

schemes to cast ballots whlch do not purport to be, but are in

fact, the votes of the defendants.

But, here the Government sought the unprecedented applica-

tion of the rnail fraud statute to penalize the defendant wlthout

proving a mens rea greater than the lntent to disregard anv

election law, whether federal or state, crlminal or civil. As

applied to Mr. Gordon, this application of naif fraud required

the jury to convict even lf tt found that Mr. Gordon had a good

faith belief that the two absentee ballots upon which his

convlctlon depends were voted with the full consent of the named

61



voters, so long as lt found that Mr. Gordon had violated any one

of the numerous state votlng procedures charged to the jury. The

Jury need not have found any detriment to the electoral body nor

any lntent to cause it 'ractual harm," United States v. CUrrv, 681

F.2d 406, 410 (5th Clr. 1982), ln order to convict. The lnstruc-

tlons therefore misinterpreted the mail f,raud offense.

Moreover, the incluslon of state 1aw as an element of the

nail fraud off,ense has been expressly denounced. See Unl ted

States v. Odom, 736 f.2d 1O4, LL? (4th Clr. 1984)(voting fraud

case). In United States v. Washinoton, 688 F.2d 953,958 (sth

Cir. 1gB2), where the trial courtrs lnstructlonE on mall fraud

had also charged the Jury as to a provlsion of MlsElssippi law,

the Court stated that a trial Judge givlng such a charge has a

duty to forestall the potentlally confusing relatlonship of the

two offenses. In such lnstances a Dlstrlct Court must explain to

the Jury that a vlolatlon of the state 1aw "does not lpso facto

constitute a vlolatlon of the federal statute. " These cases

eatabliEh that a trial judge must afflrmatlvely act to dlvorce

explicitly any charges made concerning state law from the

elements of the mall fraud offense. In the case of Mr. Gordonrs

Jury, hor.rever, the instructions did Just the opposlte, misinter-

pretlng the cruclal mens rea efement of the nall fraud offense

and creatlng reversible error.

The Dlstrict Court's erroneous lnstructions incorporating

Alabama law into both the mall fraud and false information counts

caused Mr. Gordon exceptional preJudlce. The Courtrs lnstructions

$rere partlcularly unfair given the current uncertainty over

62



Al.abama law on absentee voting. None of the Courtrs instructions

purportlng to be requlrements of Alabana law for the preparation

of absentee balJ.ots had any basls either in Alabama statutory or

decislonal law. Nevertheless the trial Judge gave detailed

charges which precisely tracked the sparse evLdence produced

relating to the absentee baJ.lots on whlch Mr. Gordonrs convictlon

dePend5.31

In additlon to the lack of statutory or decislonal support

for lts instructLons, the DlEtrict Court refused to acknowledge

evidence lndicating either that proxy votlng is permitted ln

AJabama or, at the very least, that the issue is unsettled. the

Court also dlsregarded repeated testlmcny lndlcatlng that proxy

voting iE a widespread, customary, practice in Greene County.

No Alabana courts have prevlously lnterpreted Alabama law on

absentee voting to prohlbit Mr. Gordonrs actlons. In fact, in a

recent voting fraud case, a federal court interpreted Alabama law

to permit both forms of proxy voting. See, Unlted States v.

Turner, C.R. No. 85-OOO14, jury charge at 9, 10, 24 (D.Ala. July

5, 1985) (jury verdict of acqulttal). In Turner, Judge Cox

instructed the jury that marking a ballot with the consent of the

voter does not constitute a criminal offense.

31For exanple, the District Court speclfied that wltnessing
an absentee baltot outside the presence of the voter is i1Iega1.
This was the only act relatlng to those two absentee ballots that
was attributed to Mr. Gordon. Similarly, the crux of Mr.
Gordon's argument that he had commltted no fraud was premised on
the contention that both Nebraska and Frankland Underwood had
granted consent to their nephew and nlece, respectively, to have
their absentee ballots voted in the primary. (R12-47, 79) , Yet
the Court charged blankly: An "uncl.e cannot give [his proxY] to
[his] niece or nephew. " (R16-28) . No citation to Alabama Law was
provided by the District Court for these lnstructions and none
can be found by Mr. Gordon.

63



The constitution and the laws of this country
give to voters the rlght to seek asslstance
in votlng absentee. Such asslstance may
lnclude allowlng someone el'se to mark their
bai.lots for them. And the constitution, or
laws, give the defendant the right to provide
that asslstance.

Thls right includes the right of a defendant
to nark the ballot for whatever candidate the
defendant chooses. Even if the voter hlnself
has not expressed a separate choice as to
each and any specific race or candidate, so
long as the defendant has the consent of the
voter to do so.

You are instructed that lt is not a vlolation
of any law and it is not evldence of any
vlolatlon that a defendant marked or aJ.tered
the absentee ballot of a voter wlth the
voters [sic] consent, expressed or lnplied.
. .The law not only does not make such
behavior a crlme, but actually protects it.

Id. at 9-1O. (R1-?O-721 .

The only evidence cited to support the trial courtrs

posltion that Alabana law prohibits proxy votlng was a 1984

Attorney General's opinlon lssued ln response to a request f,or

clariflcation from the Secretary of State. Merely advlsory and

without the power to create a crlmlnal offense32, the oplnion

stated only that a voter may not use the telephone to authotLze

others to sign the voter's name to the affidavit; it spoke to no

32 "[I]n the absence of express statutory provisions, ...
liabiIlty cannot be fixed by the opinion of the Attorney
General . " Holcombe v. Mobile Countv, 26 Ala. App. 151, 

-, 
155

So. 638 , 639, cert . denled 299 Ala. 77 , 155 So. 640 ( 1934 ) .

Sectlon 13A-1-4 of the Alabama Code expressly states that "tnlo
act or omission is a crlme unless made so by this title or by
other appllcable statute or lawful ordinance." Ala. Code Section
13A-1-4 (1982). "9{rltten opinions of the Attorney general are
notcontro11ing.Theyaremere1yadvisory.',@,26A1a.
App., Et _, 155 So. at 639. See also Ellls v. State National
Bank of Alabama , 434 F. 2d 1182, 1 19O ( sth Cir. 19?O ) cert.
denled, 4O2 U.S. 9?3 (1971); Grav v. Maln, 3Og F. Supp. 2O7' 22!
( M.D . Ala. 1968 ) ; Broadf oot v. State , 28 Ala. App . 260 , 

-' 
L82

So . 4!L , 4L2 ( 1938 ) ; lliII Grocerv. Co. v. State , 26 Ala. App.
3O2 , _, 159 So. 269 , 27L ( 1935 ) .

64



other issue concerning Alabama law. Although the Secretary of

State's office notlfles its field offlces of changes ln electlon

procedures, Mary Snoddy, Clrcult Clerk of Greene County, testi-

fled that she makes no attempt to dlstribute that lnformatl.on to

the public. (R?-3?). As late as October 5, 1985, the date of

his testimony at Mr. Gordonrs trlal, Ed Still testlfied he had

not seen this oplnion. (R12-L441. No testlmony was presented

that Mr. Gordon knew of the attorney general opinlon or of any of

the purported laws charged by the trial judge.

Given the debate over Alabama 1aw governlng absentee

ballots, the Distrlct Courtrs error in incorporating those laws

into the elements of the mal] fraud and false lnformatlon

offenses was especlally egregious. 33

rv.

TIIE BVIDENCE WAS INSUFFICIENT TO CONVICT
SPIVER GORDON EITHER OF MAIL FRAUD OR OF
FURNISHING FALSE INFORIIATION

Consldered ln the light most favorable to the prosecution,

no ratlonal jury could have found that each of the elements of

the four charges for which Mr. Gordon was convicted had been

proven at his trial. beyond a reasonable doubt. His conviction

therefore must be overturned, see, e.g., ,

6?8 F.2d 547 (sth Cir. Unlt B L982) (en banc), aff'd on other

arounds , 462 U.S. 356 ( 1983) , and a judgment of acquittal

33 By applying a construction of S 19?31(c) that was
,,unexpected and lndefensible by reference to the law which had
been expressed prior to the conduct in issue, " the trial court
subjectld Mr. Gordon to ex post facto llabiIlty in violatlon of
his due process rights. Bouie v. Cltv of Colunbla,378 U.S. 347,
3Sg-S4 (1963) (quoting Hal1, General. Principl.es of Criminal Law
58-59 (2d ed. 1960) ); See also Marks v. United States, 43O U.S.
188, 191, 196 ( 1977 ) .

65



entered. See Burks-v. Unlted States, 437 U.S. 1 (1978).

Viewed in the light most favorable to lt, the Government

demonstrated that absentee ballots were cast ln the names of

Nebraska Underwood and Frankland Underwood without the consent of

either.34 Mr. Gordon signed his nane as a wltness on the two

mailing envelopes and did so although the voters of those

absentee ballots were not then present. Mr. Gordon vlslted Mattle

Underwoodls home on the day of the pre-primary gathering. Mr.

Gordon's actlons duri,ng such vlslt are not dealt wlth by the

evidence. The only other mention of Mr. Gordon which is ln any

way linked wlth absentee ball.ots of elther Nebraska Underwood or

Frankland Underwood is the testlmony of Mattle Underwood that

either Mr. Gordon or his wlf e, she coul.d not recall. which,

obtained an absentee ballot appllcation j.n the name of Nebraska

Underwood. Thls testlnony leaves the trler of, fact no basis

other than pure conJecture as to whlch of the two prepared the

application. 35

Based on thls vlew of the evidence, a reasonable Jury could

have concluded that Mr. Gordon physically aided, through the sol.e

act of signing as witness, the casting of two absentee ballots,

each of which was voted wlthout the pa,rticipation or consent of

34In making thls assessment lt is assumed that the jury
disbelieved the testimony of the four Underwood family members
that the two uncles gave their consent, and instead believed the
testimony of Nebraska Underwood, despite hls adnittedly poor
memory, and FrankJ.and Underwood, despite his questlonable
sobriety, his patently poor memory and his confused state. See,
Jackson v. Virolnia, 443 U.S. 3O7, 319 (1979).

35In assessing the sufficiency of the evldence lt is not
reasonable to attribute the knowledge or intent of one spouse to
the other. Ct. United States v. Forrest, 620 F.2d 446, 451 (sth
Cir.1980)

66



the named voter. The determlnative question, however, is whether

lt could have concluded that when Mr. Gordon signed as a witness

he elrasl acting wlth specif lc intent to def,raud.36 The

Governmentrs case on that point was sufflcient only if it is

reasonabLe to conclude beyond a reasonable doubt that Mr. Gordon

solely because of the absence of the two uncles from the

famlly gatherlng when he arrlved -- must have known that neither

had partlcipated ln, or consented to, the castlng of their

absentee bal.fots. Such an inference would ln no waY be

reasonable. Bozeman v. tambert, No. 84-7286 (llth Cir. May 6,

1985) sIip. op. at 2,

Thls posslblllty ls utterly wlthout the corroboratlng

circumstantlal support necessary to make it a reasonable basis

for a conclusion on the element of specific intent. In Cosbv v.

Jones , 682 F.2d L373 ( llth Clr. 1982 ) , thls Court held that

ultj.mate facts nay not be inferred from evldentiary facts "at

least when the undisputed facts give equal support to

inconsistent i.nf erences. " Id. at 1383 n.21. Even if the

evj.dence glves 'requal or nearly equal circumstantiaL support to a

theory of guilt and a theory of innocence of the crime charged, a

reasonable jury must necessa.rily entertaln a reasonable doubt."

Id. at 1383.

If anything, the circumstantial evldence here works strongly

against the conclusion that Mr. Gordon acted with speclflc intent

to defraud. It was not shown that the Underwoods had a reputa-

36 In assesslng the sufficlency of the evidence to prove
each element of the offenses for which Mr. Gordon was convicted,
it is assumed that the jurY was "properly instructed. " Jackson
v. Viroinia, 443 U. S . 3O7 , 3L7 ( 1979 ) .

67



tion which should have put Mr. Gordon on notice to the possibili-

ty of fraud. See Unlted States v. Kleln, 515 F.2d 75L, 755 (3rd

Cir. 19?O).37 Indeed, this Court's prlor casea demonstrate that

even had the evldence showed that other members of the Underwood

fanily were involved in a scheme to commlt fraud wlth the unclesr

absentee bal.lots, nelther the vlslt by Mr. Gordon nor the fact of

his relationship to those fanily members would suffice to

establj.sh a perniss5.ble inference that he hlmself harbored any

crinlnal intent. See Unlted States v. Forrest, 620 F.2d 446, 451

(Sth Cir. 1980) (enptoynent of defendant by business lnvolved in

crimlnal actlvlties and spousal relatlonship wlth principal of

that buslness doeE not, without more, give rlse to a reasonable

lnference as to crininal intent); United States v. tonqoria, 569

F.2d 422, 425 (sth Clr. 1978). The theory of his guilt thus

rests upon no more than conJecture on what he could have known or

lntended when he signed as witness; the Government provlded no

rational basis in the evidence for an lnference of specific

lntent. United States v. Price, 623 F.2d 587, 592 (gth Clr. 1980)

cert. denled, 449 u.s. 1016 (1980). The court should therefore

direct a judgnent of acquittal for Mr. Gordon on each of the four

counts for which he was convicted.SS

3?Compare United States rr. Odom, 736 F.2d LO4, tA? (4th Cir.
1984), , 732 F.2d 1148, 1150 (3rd Cir.
1984), wfrere. ln malJ. fraud prosecutions for fraudulent absentee
voting schemes, evidence of the intent to defraud included, but
was not limited to, inproper notarization under circumstances,
unllke a famlly gathering, whlch $rere highly suggestive of fraud.

38 The evidence is insufficient under the standard
applied here even lf the elements of the matl fraud and false
lnformation offenses as charged in the jury instructions, rather
than the proper elements, are apptied to the evidence.

68



v.

TEE INDICTMENT FAILED TO GIVE SPIVER GORDON

PROPER NOTICE OF THE CHARGES ON WHTCH HE WAS

CO!N'ICTED

By nodifylng the mens rea requirements of both the false

lnformation and nail fraud statutes, the Distrlct Courtrs

instructions constructively amended the lndlctment. E, United

States v. Davis, 679 F.2d 845, 851 (11th Cir. L982) cert. denied.

459 U.S. L2O7 (1983); United States v. Sa1inas, 654 E.2d 319,

3ZA-24 (sth Cir. Unit A 1981). The instructions made dlsregard

of uncodifled Alabama election laws the mens rea element of each

offense, expanding slgnificantly the offenses charged ln the

indlctment. The mail fraud counts charged that absentee ballots

had been "fraudulently marked" and that Mr. Gordon had caused the

ballots to be forged. The false lnfornration counts charged that

Mr. Gordon did "knowingly and wilIfulIy furnish false

information to pernlt defendant to vote." (R1-1-29-3O).

The instructions, however, charged that the intentional disregard

of any law, federal or state, satisfied the mens rea requirement.

Id. In addition, various purported Alabama laws, each capable of

being lncorporated into the mens rea element of both offenses,

were charged in the instructlons although they had not been

charged in the lndictment for example, that wltnesses must see

the voter sign the malJ.lng envelope. The charging of such state

laws for the flrst tlme in the instructions "vi.olates the

defendant's right to be tried only on charges presented in the

indictment. IThis] error is fatal and reguires reversal." United

States v. Gonzalez, 661 F.2d 488, 492 (sth Cir. Unit B 1981); see

also, Stirone v. United States, 361 U. S . 2t2, 218-19 ( 1960 ) ;

69



United States v. Johnson, 7t3 F.2d 633, 643 (l1th Clr. 1983),

cert. denied, 465 U.S. 1081 (.1984); United States v. Flqueroa,

666 F.2d 13?5, L379 (11th Cir. 1982).

Ornltting uncodtfled Alabama state laws denied Mr. Gordon his

Flfth Amendnent right to be charged only by a grand iury.

Stlrone v. United StateE, 361 U.S. at 2LSt Unlted States v.

outler, 659 F.2d 1306, 1310 (sth cLr. unlt B 1981). The

constructlve amendment also constituted a denial' ot his Sixth

Amendment right to "notice of the nature and cause of the

accusation agalnst him." , 369 U.S. 749,

?61-266 (1962). On both constltutional grounds, his convictlon

must be reversed.

vI.
THE DISTRICT COURT'S (1) RBFUSAL TO SEQUESTER
SPIVER GORDON'S ALL.WIIITE JURY DURING ITS
DELIBERATIONS IN TUIS RAC,IALtY CEARGED CASE,
(TT) USE OF A PARTICULARLY COERCIVE MODI-
FICATION OF THE ALLEN CIIARGE, AND ( 1T1)
STEADFAST REFUSAL TO DECLARB A UISTRIAL EVEN
AFTER A POLI REVEATED TITAT NINE JURORS
THOUGHT FURTHER PROGRESS IMPOSSIBLE, COMBINED
TO DEPRIVE SPIVER GORDON OF THB FAIR AND
RELIABLE JURY VERDICT TO 9IHICH HE WAS

CONSTITUTIONALLY ENTTTLED

This Court and its predecessor have long been concerned

about the "potentially coercive effect" of any instructions Eiven

by a trial court to jurors deliberatlng in a crimlnal case which

urge them to continue after they believe they have become

deadlocked. United States v. Alonso, 74O E.2d 862, 8?8 (]Ith Cir.

1984), cert. denled, U.S. , 83 t.Ed.2d 939 (1985). See

also United States v. Amava, 5O9 F.2d I (sth Cir. 1975). United

States v. Bailev, 48O F.2d 518, 519 (sth Cir. 1973)(en banc)

(Goldberg, J. , concurring in part and dissenting in part) ; The

?o



former Flfth Circuit, while acknowledging the llngering authority

of the Supreme Court's ninety-year-old precedent in Allen v-

United States, 164 U.S. 492 (1896), has nevertheless repeatedly

expressed its own "healthy dlsrespect" for this "rabusive

relic,tt, united states v. Amava, 5O9 F.2d at L2. The court has

often inslsted that "the Allen charge itself approaches ultlmate

permlsslble llmits," Powell v. United States, 297 f'.2d 318, 321

(Sth Cir. 1961), and thus has subJected any devlations from the

standard charge to critical attention:

Although thls court upheld the use of
the Allen charge in United States v. Bailev

later caaes leave llttle doubt that our
declslon was conmanded by a Suprene Court
declslon and was not an expresslon of our
approval of the uae of the Allen charge.
Consequently, 3trY varlatlon from the claEsic
Allen language w111 be subject to intense
scrutiny A charge w111 only survive
this scrutiny if, after examining the facts
and circumstanqes, the court is convinced
that the charge will not coerce the Jury.

Unlted States v. Taylor, 53O F. 2d 49 , 51 ( sth Cir. 1976 ) ( per

curiam) (citation and footnote omitted).

This Judicial antipathy stems from the justifiable concern

that, 3s a result of the instruction, "Ijurors
coerced into surrendering views conscientlously he1d.

may be

I rr Jenkins

v. United States, 380 U.S. 445, 446 ( 1965) (per curiam) (quoting

Solicitor General's Brief). For this reason, the Court has

undertaken "a thorough examination of the course of jury[ ]

dellberations, ES well. as the content of the instructions as a

whole," United States v. Alonso, 74O F.2d at 878, whenever a

verdict has been lnduced under such circumstances.

The verdict rendered against Spiver Gordon following 4

L/2 days of deliberations, three days after the Jury informed the

7t



-)

District Court that it was "hopelessly deadlocked" and had

cannot withstand such scrutlnY, forrecelved an . Al.len charge

at least three reaaons. First, the Allen charge given here

included an often criticized nodificatlon, stresslng the great

expense of the trlat "ln tine, effort and money to both the

Defense and the Prosecutj.on." It urged that "another trlal would

only serve to lncrease the cost to both sides." (R17-39). Such an

admonltion ',could scarcely have avoided creating the impression

that there mlght be sonething 'improper, questlonable, or

contrary to a good conscience for a juror to cause a mlstrlal. '"

Unlted States v. Tavlor, 53O f'.2d at 52 (quoting Thaoqard v.

United States, 354 F.2d 795, 739 (sth Cir. 1965), cert. denled,

383 U.S. 958 (1966)); but cf. United States v. Alonso, 74O F.2d

at 876-77,

Secondly, .the District Court immeasurably compounded the

prejudice to Mr. Gordon when -- following the jury's return of a

partial verdlct on Saturday afternoon, acqultting Mr. Gordon of

nlne charges, and after the Court had polled the jurors on

whether they believed further dellberations would be useful on

the remainlng counts the Court declared: "I am the ultimate

decision-maker as far as this particular question is concerned.

And I have formed an opinion that is perhaps different from many

of you.,, (R1?-69-?O). Even if the jurors were not nisled into

believing that the Distrlct Court's "opinion" was "different" on

the nine verdicts of acquittal they had Just returned, they could

not help but believe that the District Court possessed of far

more experience and authority than lndivldual jurors --- was not

simply acting according to

72

laur, in directing further



dellberations, but harbored a personal bellef that unanimous

verdicts were appropriate on the evldence before it.

This did far more than create the impression a mistrial

might be "improper, questionable, or contrary to good

conscience." United States v. Prentlss, 446 F.2d 923, 925 (sth

Cir. 19?1) (quotlng fhacrqard v. Unlted States, 354 F.2d at 739.

Rather, like the "story of the Judge's first caser! condemned by

the Court ln United States v. Tavlor, 53O F.2d at 51-52, lt

strongly suggested to the jurors that the Judge hlnself thought

that the case before them warranted a unanimous verdict and was

',an easy one" on the evldence. Id. at 52. This alone warrants

reversaL, under the rule that "[w]here a charge may be plausiblY

read as more coercive than the standard [Allen] charge ele must

hold that the charge was lncorrectly given. " United States v.

Amava, . .s-]}Pra, 5O9 F. 2d at 13 .

Finally, these lnstructional deviations were made far more

prejudicial because of the attendant circumstances: the

protracted deliberatlons by an unsequestered, all-white JurY, lr

one of a series of racially volatlle cases which, ES defense

counsel informed the Court, were provoking adverse publlc comment

by judges and other public citizens even while this jury was

deliberating. In light of the acknowledgment by several members

of Mr. Gordonts jury, during newspaper interviews shortly after

the trial, that "Six jurors believed Gordon was innocent" and

that the gullty verdicts were a compromise reached only after the

Court refused to declare a mistrial, it seems clear that the

supplemental instructions had precisely the effect that this

Court has sought to avoid. Because these circumstances combined

73



to taint the integrity of the jury deliberations, Mt. Gordon's

. convictl.on should be reversed.

CONCLUSION

The Judgnent of convictlon imposed on Spiver Gordon by the
' Unlted StateE District Court should be reversed. In the

alternative, the Court shoul.d remand thls caae to the Distrlct

-, Court to pernlt full discovery on Mr. Gordonrs selective

prosecution clain, and to all.ow an evldentlary hearlng on both

hls selective prosecutlon and hls Batson v. Kentuckv and Swain v.

Alabama clalms.

Dated: June 26, 1986 Respectf,ully submltted,

JULIUS LEVONNE CHAMBERS
C. LANI GUINIER
JOHN CHARLES BOGER

99 Hudson Street
16th Floor
New York, New York 1OO13
(2L2) 219-1eOo

SIEGFRIED KNOPF
58th Floor
One glorld Trade Center
New York, New York 10048
(2t2) 839-5386

J. L. CHESTNUT
CARLOS WILLIAMS

P. O. Box 55961
Birmingham, Alabana
( 2O5 ) 257-L771

MORTON STAVIS
853 Broadway
14th Floor
New York, New York 10OOg
(2L2) 614-6425

ATTORNEYS FOR APPELLANT*

*Nathaniel H. Christian, U.C.t.A. Law School t87, Debra L.9.I.
Cohn, New York Law School '87, and Shawn Maher, New York Law
School '8? assisted in the preparatlon of this brief.

74



-t

Certlficate of Servlce

I hereby certify that f have thls 26th day of June 1986

served a copy of the foregolng on the attorney f,or appellee by

placing sane in the United Statee mail, postage pre-pald and

addressed as follows:

Tonmy E. Tucker
Aesistant U. S. AttorneY
Room 2OO
Federal Courthouse
Birningham, Ala. 35203



FEDERAL STAIIUTES

42 USCS $ Un3i

(c) FalcG inforurdon ln reqilq€ril8 .m votlnq.Pcodd6" whoclrer know'

Hrffi [H];*ffi'r,*,m+ruii'ffi rsfr E
;idffi;*'" ,&"to o,r voie,- or ro*pii= *ti aiother idi,idusl for the

ffiffi*ffiffi,H51fl'ff#,ffi**$**
th", five year$ * frfrt ffirida [o*o'o,'tt" $lt'npvisioo 

qhrll bc

ffiHl*u,*ffiffiil;iltdb* ;f th" tlit a $"t s xo,rs" of-Represcntatives' Dclegatc

from thc District of?of,r-Ui", C,an, qr th" Yyg" Islands, or Rcsideot

6iildii""* oitU" Commonwealth of Puerto Rico.

1r uscs $ 1341

$ 1341. Frauds end swindles

Whoever, having devised or intending to devise any scheme or artifice to

defraud, or for 6Utaining money or pigperty by means- of false or fraudu'

lent pretenscs, reprsctliations,-or piomiscs, or to scll, disposc of, IOT'
;;;ffi;;, Jdr, 6r" away, distribrite supply,.or turnish or .procurc for
unlawfil usc anyiounterfiit or spurious coin, obligation'.security, or other

"ni"f., 
or anything representeO lo Ue or intimated or held out to be such

"o*titf"it 
oi tpurio* article, for the Purpose of executing such scheme or

-tid;; atteirpting so to do, places in 
"1y 

post office or authorized

Oepository for mail 
-matter, any matter or thing. whatever to bc scnt or

Jiii"irJ'Uy the Postal Service, or takes or reciives therefrom, any such

."tt., o, tiring, or knowingly causes to be delivered by mail accordlng to

the direction tf,ereon, or at-the place at which it is directed to bc delivered

by the person to whom it is addressed, any such matter or thing, shall be

nireO n6t more than 51,000 or imprisoned not more than five years, or
both.



AI,ABAMA ELECTION I,AW

EI.ECTIONS

CEAPIEB 10.

ABSENIEE VOTING.

$ 17.10-2. Registar or clerk designated absentee election nanager;
sppointmenL qualifications, duties, t€rE and compenaa.
tion of manager if rcg:ister snd clerk decline duties.

[n each county there shall be ao "absentee election manag:er," who shall
fulfiU the duties assigned by this chapter. The register of the county shall, at
his optiou, be the absent€e election manager. If the register declines such

duties, the circuit clerk of the county, at his option, shall be the absentee

election manager. If neither the register Bor the circuit clerk of the county
assumes the duties of absentee election manager, the presiding circuit judge

shail thereupon appoint an absentee election manager, who shall be a person

qualified by training and experience, who is a qualified elector of the couaty
and who is not a candidate in the election to perform the duties assigned by
this chapter. fire presiding circuit judge shail designate the place or ofiice
where such duties shall be performed. Such place or omce shall be open on the
days and during the hours as that ofthe register prior to each election. Any
penson so appointed shall have all the powers, duties and responsibilities of
the clerk or register for the pur?oses of this chapter, including the power to
ad:ninister oarhs. Such powers, duties and responsibilities shall terminate at
the end of the day of the election. The abeentee election manager. clerk,
register or register in chancery shall be entitled to the same compensation for
the performance of his duties as is provided in section 17-10-14. tActs 1978.

No.616. p. 873. $ f .i

I l?-10-3. Persona eligible to vote absentee ballot; time for filing apPlication;
postcard application for certain military personnel and wives.

(a) Any qualified elector of this state and any penton who, but for having
moved from the state within the 30 days immediately preceding the election, is

a qualified elector of this state who will be unable to vote at his regular polling
place because of his absence from the county of his residence on the day of any
primary, general, special or municipal election, or who beeause of any physical

illness or infirmity which prevents his attendance at the polls, whether he is
within or without the county on ttre day of the election, may vote an absentee

ballot, provided he makes application in writing therefor not more than 60 nor
less than five days prior to the election in which he desires to vote as authorized
in this chapter.

(b) An applicant for an absentee ballot who is a member of the armed forces
of the United States, including the Alabama National Guard. the United States
naval reserves, the United States air foree reserves and the United SLates
military r€serves on active duty training or an applicant who is the wife of any
member of the armed forees may make applieation for an absentee ballot by
filling out the federal postcard application form, authorized and provided for
under the provisions of "The Federal Voting Assistance Act of 1955," Public
law 296, Chapter 656, H. R. 4048, approved August 9, 1955, 84th Congress 1st
Session. (Acts 1975, No. 114?, 5 1.)



$ u-1&7. Fora of altrdavit to be printd on enveloPe - Geaeral"
special or municiPd elecdons.

Each absoatee ballot shall be accompanied by an envelope upotr which shall
be printed an afEdavit. ltis affidaYit which shall be used in geueral, speeid
or municipal elections shall be substantially as follows:

"State of Alabo'na
"Countyof....
"I, the undersigned, do gwear (or affrrm) that:

"(1) Iam aresident of . . '.. countyinthestateof Alabama.
"(2) My place of resideace in Alabama is:

(Etreet)

Alabagra
(zip code)(city ortowu)

"(3) My voting precinct (or place where I vote) is:.......

"(4) My date of birth is:.....
month day year

"(5) I am entitled to vote an absentee ballot because:
"Check only one:

I have moved from Alabama le5s than thinv days prior to
the election.

I will be out of the county or the stat€ on election day.
I am physically incapacitated and will not be able to vote in

pennn on election day.
"I fitrther swear (or affrrm) that I have not voted nor will I vote in person

in the election{4 which this bdlot Pertains.
"I have markbd the enclosed absentee ballot voluntarily and that I have

rcad or had read to me and understand the instructions accompanying this
ballot and that I have carefully complied with such instnrctions.



I

{r
a

J

S 17-10.7 .{ESENTEE vqrING $ L7'L0'7

"Mor€over, I furttrer swear (or affrnn) that all of t}te infonnation given

above is tnre aad conect to the best of my knowledge and that I understand
that by knowingly grving false information so as to vote illegalty by

abs€nt€e ballot that I shall be guilty of a misdemeanor which is punishable

by a fine aot to excd $1,000.00 an&or confinemeut in the county jail for
not more than six months.

(Signature or mark of voter.)
*Note: Your sigaature must be witnessed by either: A notary public or

other officer authorized to ackuowledge oaths or two witnesses 18 years of
age or older.

"Swom to and subscribed before me th'is . . day of . . '
19. . . . . . .. I certify that the affiaut is kDowu (or raade known) to me to be the

ideutical party he claims to be.

. .''' (Sigpature ofoffrcial)
0itle of official)

(Address of ofEcial)
OR

"1st Witness ......
Signature

kint name

Address

City Zip Code

"2nd Witness
Signature

Print name

Address

City Zip Code"
(Acts 1975, No. 1147, p.225L, $ 5; Acts 1980, No. 80'732, p. 1478, $ 4.)

a.



I

i
t,
a

,
I

$ 17-10.9. Two envelopes to be furnished with ballo$ form thereof;
delivery of ballot to absent€e election Eanager.

Each proepective absentee voter who meets the requiremeuts of this chapter

shall be furnished with the absentee bailot hereiu provided for, together with
two envelopes for retur:ring his marked ballot. One envelope shall be a plaio

envelope in which the ballot shall be sealed by the voter after he has marked

it.
Ttre second envelope shall have the voter's affrdavit printed on the back and

shall be large enough to seal the plain ballot envelope inside. The second

envelope shall also be a return mail envelope.

Such return mail envelope shall be addressed on the front to the absentee

election manager and shall be endorsed on the left'hand uPper correr thereof

substantially as follows:
"Absent Voter's Ballot. State, County, Municipal, General, Prima4r or

Special Election (as the case may be) to be held on the . ' day of
. ., 19. . . . From (name of voter), precinct or

districts . ., County of . ' ' ., Alabama."
After marking the ballot and subscribing the oath herein required, the

voter shall seal his ballot in the plain envelope, place that plain envelope

inside the affidavit envelope, complete the affidavit, and shall fonvard it by

United States mail to the addressee or shall hand it to him in person. (Acts

19?5. No. Lt4i, p.2251. $ 7; Acts 1978, No. 616. p. 873, $ 4; Acts 1980, No.

80-732. p. 1478, $ 5.)