Brief for Appellant
Public Court Documents
June 26, 1986

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Case Files, Bozeman & Wilder Working Files. Brief for Appellant, 1986. c96d1e84-ed92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/94d3d0c6-c1c6-4d05-9f97-18742f8b55f7/brief-for-appellant. Accessed July 13, 2025.
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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.)