Absentee Voting Problems and Proposals; Correspondence from Hermann to Baggett; Correspondence from Kennedy to Turner

    IN TEE

T'NITED STATES COURT OF APPEALS

FOR TEE

ELEVENTE CIRCT'IT

No. 84-7286

MAGGIE S. BOZEIIAN,

Appellee

Vo

EALON It{. tAl,tBERTr €t irl.7

Appellants

On Appeal from the United States District Court
for the Middle District of Alabama

cv 83-E-579-N

BRIEF FOR APPELLEE

ANTBONY G. AI'ISTERDAU JTILIUS L. CEAT.TBERS

New York University LANf GUINIER
School of Law NAACP Legal Defense Fund, Inc.

n 40 Washington Square South 99 Eudson Street
Room 327 New York, New York 10013
New York, New York 10012 16th Floorr 1212) 598-2638 1212) 219-1900

SIEGFRTED KNOPF VAI{ZETTA PENN DT'RANT
555 California Street 539 t'{artha Street
Suite 5050 ltontgorn€EYr Alabama 36108
San Francisco, Cal. 94104 (2051 262-7337

ATTORNEYS FOR APPELLEE



qTATEI,TEIIT REGARDING PREFERENCB

This appeal is entitled t,o pref erence as an appeal from a

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

tl



a

SIATBT{Etrr REGInDXNG ORAL ABGUIIBI|T

Appellee respect,fully requests oral argument. [he legal

issues are conplex and the coneequences for appellee are slgnifi-

cant.

ltl



TABLE OF CONTENTS

-

STATEIT{ENT REGARDING PREFERENCE .............. o.........

STATEMENT REGARDING ORAL ARGUIT{ENT .... ..... ............

TABLE oF CoNTENTS ................................o....

TABTE oF cAsES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . r . . . . . . o

STATEITIENT OF TI{E ISSUES ............ o o...... o..........

STATEMENT oF THE CASE .o..........o.o..........o....o..

I. PROCEEDINGS BELoW ...........................

II. STATEUENT OF THE FACTS . o....................

III. STATEMENT OF THE STANDARD OF REVIEW

SUtttltARY OF THE ARGUI,IENT .....o.........................

STATEIT{ENT OF JURISDICTION .............................

ARGUIT{ENT o.... o...... o........ o............... o.... o.. o

I. THE DISTRICT COURT VIEWED THE EVIDENCE
IN THE LIGIIT MOST FAVORABLE TO THE STATE
AND PROPERLY DETERIT{INED IT WAS INSUFFI-
CIENT AS A I,IATTER OF FEDERAL CONSTITU-
TIONAL LAW .......... o.......' ' '' ' '' ' ' ' ' o ' ' ' '

A. The District Court Properly Applied
The Relevant Law To Conclude The
Evidence Was Insufficient, ...... r..... o.

Page

ii
111

iv
vi
xi

1

1

3

9

10

12

12

12

t3

20

B. In Enforcing Jackson v. Virgini?,
The District eourt Was tilot Required
To Accept State Findings That, The
Evidence Was Sufficient o... o...........

C. The District Courtrs View Of The
Evidence Was Not Inconsistent With
Factual Findings Of The Alabama
Court of Criminal Appeals ..............

TITE INDICTMENT AGAINST T'{S. BOZEIIAN WAS

FATALLY DEFECTIVE IN THAT IT FAILED TO
INFORM HER OF THE NATURE AND CAUSE OF
THE ACCUSATION ...................." "" ""

22

II.

1V

27



Page

The fndictment was Constitutionally
Defective In That It Failed To Pro-
vide Fair Notice Of All Of The
Charges On Which The JurY Was Per-
mitted To Return A Verdict Of Guilt ....

The Indictment, Was Fatally Defec-
tive In That Ic Failed To Include
Constitutionally Suff icient, A11e-
gations Concerning The Charges Of
Fraud . o . . . . . . . o . . . . . . . . . . . . . . . . . . . . ' . o '

( 1 ) The factual allegations in
each count were constitu-
tionally insufficient to Pro-
vide notice of the nature and
cause of the aIlegedIY fraudu-
lgnt conduct ...........o..........

(21 Counts I and II were consti-
tutionally insufficient for
failure to allege the crucial
mental element of the offense
of fraudulent voting under
S 17-23-1 . . . o . . . . . . . . . . . o . . . . . . . . . .

coNcLUsIoN . o . . . . . . . . . . . . . . . . . . . . . . . . . . . . o . . . . . . . . . . . . .

CERTIFICATE oF SERVICE .......o........................

A.

B.

28

39

41

45

47

49



TABTE OF CASES

Case Page

Andrews v. State , 344 So.2d 533 Crim. APP. ) ,
cert. denied, 344 So.2d 538 (Ala. 1977) .... " " o o " 35

Bachellar v. Maryland , 397 U.S. 564 ( 1970) ........ o. " 40

Barbee v. State | 417 So.2d 511 (AIa. Crim.
App. 1982) ................. o....................... 35

Boykin v. Alabama, 395 U.S. 238 (1959) ....o.....".." 39

Bozeman v. State, 401 So.2d 159i 454 U.S.
1058 ( 1981) .. ..... ..... ... ...... .... .. .... o... ..... 2r5 r14

23 ,24 ,25 ,26

BfeWef V. WitliamS, 430 U.S. 387 (1977) ...............

BfOWn V. Allgn, 344 U.S. 443 (1953) ............o.....o

Brown v. State r 24 So.2d 450 (Ala. APp. 1946) .....""

Carter v. State, 382 So.2d 510 (A1a. Crim.
App. 1980), cert. denied, 382 So-2d
614 ( 1980 ) . . .. .. . . . . . . . . . . ' " o ' ' " ' ' t " ' ' ' ' ' o ' ' ' ' ' '

cole v. Arkansas, 333 u.S. 196, 201 (1948) ....oo..o...

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

Cuy1er v. Sul1ivan, 446 U.S. 335 (1980) ...............

Davidson v. Stater 35l So.2d 583 (AIa. Crim.
APP. 1977) ..... o............. " "' " "' " " "' "' "

DeJonge v. Oregon,299 U.S. 353 (1937) ...........'."'

Dickerson v. State of Alabama , 667 F -2d 1 364
(11th Cir. 1982), cert. denied, 459 U.S.
878 ( 1982 ) .. .. .. . .. . .. . . o. .. ....... o .. .. .... . .. .. ..

Duncan v. StynchcombeT 704 F.2d 1213, (11th
Cir. 1983) .............. o......... " " " o " " " " ' o

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

Edwards v. State, 379 So.2d 338 (AIa. Crim.
App. 1979 ) .............. o....... o....... o......... o

18 t27

18

35

35

28,34

39

18,'l 9

35

34

18

14

34

35

-vl.



Case

Fendley v. State , 272 So.2d 600 (AIa. Crim.
APP. 1973) .............o..""""oo.."t"""""

Fitzgerald v. State, 303 So.2d 162 (AIa. Crim.
App. 197 4 ) . . . . . . . . . . . . . . " " " " " " " .. " .. " " t t '

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir.
1959 ) . . . . . . . . . . . . . . . . ' ' ' ' ' ' ' ' ' ' ' o t ' ' ' ' ' ' t ' ' ' ' ' ' ' ' ' '

Goodwin v. Balkom, 684 F.2d 794 (11th Cir.
1982), cert.. denied, 103 S.Ct. 1798 ( 1982) ...... " '

Gray v. Rains , 662 F.2d 589 ( 1 Oth Cir. 1 981 ) ....... ...

Gunsby v. Wainwright, 596 F.2d 654. (5th Cir.
1919), cert. deniedr 444 U.S. 946 (1979) ...........

Harmon v. State, 249 So.2d 369 (A1a- Crim.
App. ) r cert. denied | 249 So.2d 370 (A1a.
1 971 ) . . a o . . . . . . . . . . . . ' ' ' ' ' ' ' ' ' t ' ' ' t ' ' ' ' ' o ' ' ' ' ' ' ' ' ' '

Holloway v. McElroy , 632 F.2d 605 ( 5th Cir.
19801, cert. denied, 451 U.S. 1028 ( 1981 ) ...... " "

In fe GaUlt, 387 U.S. 1 (1967) ......o.....o...........

In ;'e WinShiP, 397 U.S. 358 ( 1970) ............ o.......

Jackson v. Virginia, 443 U.S. 307 (1979 ) ............. '

Keck v. United States, 172 U.S. 434 (1899) ..........o.

La Vallee v. Delle Rose, 410 U.S. 690 (1973 ) ..........

Itlagg io v. F uIf ord, U.S. , 76 L.Ed.2d
794 ( 1983 ) . . .. . . . . . . . .. o. . . . . . . . .. . . . . . . . . . . . .. . . . .

Nelson v. State, 278 So.2d 734 (AIa. Crim.
ApP. 1973 ) ............ o......... '. " t " " " " " " "

Plunkett v. Estelle, 709 F.2d 1004 (sth Cir.
1983), cert. denied, 104 S.Ct. 1 000 ................

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

Russell v. United States , 359 U.S. 749 (1962) ... -.....

Smith v. otGrady, 311 u.s. 329 (1941) ...--o.-o...o....

Page

35

35

36

18

38

18

35

19

34

21

Passim

36

21

35

38

34

34 r36
41 ,46

28

17

-vl.l.-



Case

Spray-Bilt v. Intersoll-Rand World
F.2d 99 (5th Cir. 1955) .......

Street v. New York, 394 U.S. 576 (

St.romberg v . Cal if ornia, 283 U. S .

Sumner v. Ptata, 449 U.S. 539 (1981

aaoaaaaaaaaaa

1969) ..... o.... o.. o. 40

359 (1931) .......... 38r39r40

) ................." 1011211'7
20 ,21 ,22 r26

38

38 ,39 r 40

18 ,22

42

35r36
41 r42

43

42

43

46 ,47

34 ,45

41

46

Trade, 350

Paqe

19

Tarpley v. Estelle, 703 F.2d 157 (5th Cir'
iga3), cert. denied, 104 s.ct. 508 .............o...

Terminiello v. Chicago, 337 U.S. 1 ( 1949) "' ' " " " "'
TOWnSend V. Sain, 372 U.S. 293 (1963) ....o....o.......

United States v. Berlin, 472 F.2d 1003 (2nd
Cir. 1973) .........o.""o""""'o"""'o"""'

United States v. Carl1, 105 u-s. 611 (1882) ".{"""'
United States v. C1ark, 546 F.2d 1130 (5th

C ir. 1977 ) . . . . . o . . . " " " o " " t o " " " " " t " " o " '

United Stat,es v. Cruikshank, 92 U.S. 542
( 1875) o .. o .. . . .. ' " .. ' t " t " ' " .. " " ' o t ' " " " " "

United States v. Curtis, 506 F.2d 985 (1Oth
Cir. 1974) ............t""'o"o'o"ot""""""'

Unit,ed States v. Diecidue, 603 F.2d 535 (5th
Cir. 1979) .............'"'o""""'''''"'"""'

United States v. Dorfman, 532 ?. SupP. 1118
(N.D. I11. 1981) ..........................o........

United States v. Dreyfus, 528 F.2d 1054 (5th
Cif . 1976 ) ............. o........... o.... o..........

United States v. Haas, 583 F-2d 216, reh.
denied, 588 F.2d 829 (5th Cir. 1978),
cert. denied, 440 U.S. 981 (1979) ...."..o"""..'

united States v. Hessr 124 U.s.483 (1888) ....""....

United St,ates v. Huf f , 512 F.2d 66 ( 5th
Cir. 1975) ............." """""""""""""

46

46

- v111 -



Case

United
477 ,

united
Cir.
950

Paqe

43
States v. Nance, 144 U.S. APP.

533 F.2d 699 (1976) ..........
States v. Outler, 559 F.2d 1305
unit B 1981), cert. denied, 44

( 1982 ) . . . . . . . . . . . . . . . . . . . . . . . . o ' ' ' ' ' ' ' ' ' t t ' ' t ' '

( srh
U. S.5

United States v. Ramos, 665 F.2d 469 (1lth
Cir. 1982) ...... o o...................

United St,ates vo Strauss, 283 F.2d 1955
( 5th Cif . 1950 ) . . . . . . . . . .. .. .. . . . . . . . . . . . . . . . . . . . . .

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

Wainwright v. Sykes , 433 U.S. 72 11977 ) ... ... . .. ... ...

wainwright v. witt, 53 u.s.L.w. 4108 (Jan.
21, 1985) ...............o..""'""'"'""'"""

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

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

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

Williams v. State, 333 So.2d 610 (AIa. Crim.
App.), aff td, 333 So.2d 613 (Ala- 1976) ............

i{ilSOn V. State , 52 Ala. 299 ( 1875) ... o...............

United States Constitgtion and Statutes

SiXth Amendment o.o.............................o......

FOuftegnth Amendment ..................................

28 U.S.C. 52241 (C) (3) ........... o.................... o

28 u.s.C. 52254 (d ) . . . o . . . . . .. . . . .. .. .. . o. . . . . . . .. .. . . .

Fed. R. CiV. P. 54(b) .............. o.... o o............

34,41
42 ,45

34 r41 ,45

34 ,45

38

39

35

14

2r40t42

2

12

Passim

18

38

14

40

1X

12



AlgPamF Statutes

Ala. Acts 1980, No.

Ala. Code S1 3-5-1 1 5

A1a. Code S17-10-3

Ala. Code S17-10-6

AIa. Code S17-10-7

Ala. Code S17-23-1

Other AuthorltieP

75 Am. Jr.2d Trial
76 Am. Jr.2d Tria1

80-732, p. 1478, 5S3, 4 ...........
( 1975 ) . . I . . . . . . . . . . . . . . . ' ' ' ' ' ' ' ' ' '

(1975) ..................."""t"'

( 1975 ) . . . . . . . . . . . . . . . . . . . . ' t ' ' ' ' t ' '

(1975) ....o............t"""""'

( 1975 ) . . . . . . . . . . . . . . . . . ' ' ' t ' ' ' ' ' ' ' o

5885 ....... o.. 1..... ..... a t " " " "

51111 .................. " " " " " "

Page

31

11 ,29
31 ,32

11 t29 r30

11 ,29
30r31

11 ,29
30r31

passim

40

40

-x



STATEIIENT OF TEE ISSUES

I.
Whether t,he District Court correctly applied
the applicable law to find under Jackson v.
Virqiiia, 443 U.s. 307 (1979) Ehatm
EfffiIg'Ft most favorable to the prosecution,
the evidence was insufficient to support a
conviction?

II.
Whether an indict,ment which fails to inform a
defendant of the nature and cause of the
accusation against her violaEes the Sixth
Amendment?

-xi



UNITED

FOR

IN TEE

STATES COURT OF APPEAI.S

TBE ELEVENTE CIRCUIT

No. 84-7286

UAGGIE S. BOZEITAII,

V.

EALON U. LAIiBERTT €t :rl. r

Appellee

Appellants

On Appeal from
for the

the United States Distriet Court
Mlddle Dlstrict of Alabama

cv 83-E-579-N

STATETTENT OF TEE CASE

I. PROCEEDINGS BELOW

Indicted on three counts of voting fraud (A1abama Code

S17-23-1 (1975)), appellee Maggie S. Etozeman was tried by jury in

the Circuit Court of Pickens County, Alabama. IIer motion for a

directed verdict at the close of the Staters case was denied, and

t,he jury returned a single verdict of "guiIty as charged" without

specifying the count or counts on which its verdict rested. Itls.

Bozeman was sentenced to four years in prison. She appealed her

convictionr challenging intg: alia the sufficiency of t,he

evidence and the constitutionality of the indictment. The

Alabama Court of Criminal Appeals affirmed, holding that, the



verdict was 'not patently against' the

t,hat the indictment was adequate.

weight of the evidence" and

L67 , 171 ( 1981) . Af ter denial of a motion f or rehearing, t'he

issues r.rere presented t,o the Alabama Supreme Court and the

Supreme Court of the United St,ates, but both denied certiorari.

Bozeman v. stat,e, 401 So.2d LTLi 454 U.S. 1058 ( 1981) .

The instant federal habeas corpus proceeding was initiated

by t,he filing of a Petition for a Writ of llabeas Corpus (herein-

after rPetition') on June 8, 1983. On January 20, 1984, [1s.

Bozeman f iled a Motion for Summary Judgment asserting t,hat the

evidence of f ered at t,rial was insuff icient t,o prove guilt beyond

a reasonable doubt under the Due Process st,andards of Jackson v.

Lirginia, 443 U.S. 307 (1979), and that the indictnent was

insufficient t,o inform her of the nature and cause of the

accusation against her as required by the Sixth and Fourteenth

Amendments. The district court granted the motion on April 13,

19g4, and ordered that I{s. Bozemants conviction be vacated. The

court held that, taken in the Iight most favorable to the

prosecution, the evidence at trial was insufficient for any

rational trier of fact to find each element of the crime beyond a

reasonable doubt. The court also held that Ms. Bozemanrs

constigutional rights rdere violated because the indictment failed

t.o provide any notice of a number of criminal statutes and

theories of Iiability submitted to the jury.



This appeal was taken on Apri| 27, 1984. On Dlay 1, 1984, the

district court granted aPPellants a sEay of judgment pending

appeal.

II. SIATET.IENT OP TEB FACTS

Maggie S. Bozeman, a black school teacher, NAACP Branch

presidentr orid long-tine civil rights activist, was convicted by

an all-white jury of violating Alabama Code 517-23-1 because of

her alleged participation in an effort to assist elderly and

illiterat,e black voters to cast absentee ballots in the Demo-

cratic Primary Run-Off of September 26, 1978 (hereinafter

'run-off "). The three counE indictment, charged t,hat she:

COT'NT ONE

,ilid vote more than once t oE did deposit, more
than one balIot for the same office as her
vote r ot did vote i1legal1y or fraudulently,
in the Democratic Primary Run-off Election of
September 26, 1978,

COUNT TIIO

did vote more than once as an absentee voter,
or did deposit more t,han one absentee ballot
for t,he same off ice or of f ices as her vote t ox
did cast i11ega1 or fraudulenE absentee
ballots, in the Democrat'ic Primary Run-off
Election of SePtember 26, L978,

3



COUNT THREE

did cast illegal or fraudulent absentee
ballots in the Democratic Primary Run-off
Election of September 26, 1978, in that she
did deposit with the Pickens County Circuit,
C1erk, absentee ballot,s which were fraudulent
and which she knew to be fraudulent, aiainst,
Ehe peace and dignity of the State of
AIabama.

'lTr.211'

At trial the prosecution introduced thirty-nine absentee

ballots, Tr. 41, and clained that Ms. Bozeman had participated in

the vot ing of t,hese ballots in violation of S 1 7-23-1. It was

undisputed that each ballot had been cast in the run-off, and

purported to be the vote of a different black elderly resident of

Pickens County.

No evidence was presented that lts. Bozeman had cast or

participated in t,he casting, f illing out or Procurement of any of

the thirty-nine absentee ballots. Indeed there is nothing in t,he

record t,o indicate who cast those ba1lots. Tr. 2L. The tran-

script, is also silent as to whether Ms. Bozeman voted even once

in the run-off.
The prosecution hinged its case on evidence that, Ms. Bozeman

played a minor role in the not,arizing of the 39 absentee ballots,

and contended that her role in the notarizing was sufficient to

The following abbreviations
Court trial t,ranscript; 'IIrg.
Judge Truman Hobbsi nR.'r for

will be used: "Tr.' for Circuit
Tr." for llearing before District

Record on Appeal.

4



warrant her conviction under 517-23-1, because the voters did not

appear before the notary. Tr. 195-197; gg. Tr. 90, I05-106.

District Attorney Johnston, in his resPonSe to l'tS. Bozeman's

motion for a directed verdict at Ehe close of the Staters case,

claimed that the thirty-nine absentee ballots 'were not ProPerly

notarized, and in that Sense, they were fraudulent.n Tr. 195. IIe

stated that trthe act of the Defendant in arranging the conference

[at which the ballots were notarized] and in part.icipating in the

present.ation of the ballots to [the notary] to be notarized was

fraud. " Tr. 195.

The prosecution called only nine of the Ehirty-nine absentee

voters to t,estify. Each of t,hese witnesses was elderly, of poor

memory, illiterate or Semi-literaEe, and lacking in even a

rudimentary knowledge of voting or notarizing procedures. The

Alabama Court of Criminals Appeals found their testimony confu-

sing in several instances. 40I S.2d at, 170. The court below

found that most of their tesLimony did not concern Ms. Bozeman,

R. 166, and when it did it was "simply incomprehensible." R. 158.

Nevertheless, insofar as any synthesis could be made of the

individual testimony, Ehe court, below construed it in the light'

most favorable to the prosecution.

It is uncontested that only two of the nine voters, l4s.

Sophia Spann and Ms. Lou Sommerville, gave evidence of any

cont act w i th lvls . Boz eman regarding absentee vot ing. 2 ( Prosecu-

Ivls. Lucille Harris (Tr. 189) and Ms. Maudine Latham (Tr. 91-93)

5



tion's closing argument, Record on Appeal, Volume 3 of 3, at 26.)

The court below found Chat no connect,ion was drawn by even these

voters between l,ls. Bozeman and any of the absentee ballots cast

in the run-off.3

The court found that "not one of the elderly voters testi-

fied that Bozeman ever came to see him or her about voting in

connection with the runoff," R. 155r and that the only evidence

against l'ls. Bozeman was the testimony of PauI Rollins, a notary

from Tuscaloosa. t{r. Rollins' testimony was that, }Is. Bozeman was

one of a group of women who brought ballots to be notarized, that

she may have called t,o arrange the meeEingr and that she was

present when the notary notarized the ballots after t.he women as

a group assured him the signatures were genuine. Id.4 The

testified to never having seen the absentee ballot introduced
into evidence as their vote. l,ts. Anne Billups (Tr. 97-98), I'ls.
Mattie Gipson (Tr. 110), Ms. Janie Richey (Tr. L27), and Ms.
Fronnie nice (Tr. I36-137, I48, 151) each remembered voting by
absentee ballot in the run-of f . t'tr. Nat Dancy (Tr. 113) did not
provide any coherent testimony whatever on the way in which he
voted in t,he run-of f .

Ms. Spann testified that she did not sign an aPplication or a
baIIot, and was told that. an absentee ballot was cast in her name
when she went to her usual polling place. The court below found
t,hat "She stated that Bozeman came at some time prior to Che
run-off and asked if Spann wanted to vote absentee and Spann said
she did not. Julia Wilder wit,nessed Spann's aPplication.' R.
169. tvts. Sommerville stated in an out-of-court "deposition" that
!ts. Bozeman "may have filled in her ballot and that she never
signed the baI}ot." R. 169. The deposition was not admitted
intb evidence, 5!., andr dt trial the witness vehenently denied
its contents. IL
Mr. Rollins testified that he notarized the thirty-nine ballots
in his office in Tuscaloosa without the voters being present. TE.
56-64. He testif ied t.hat l'ls. Bozeman, with three or four other

6-



district court found that all other circumstantial indications of

R. L72. Theguilt, were stricken or were ruled inadmissible.

circumstantial evidence to which the court referred was the

testimony of the court clerk and the testimony of Mrs. Lou

Sommerville. The court found with regard to t,he clerk:

Janice Ti11ey, the court, clerk, test,ified that
Bozeman came in several times to pick up
applications for absentee balIots. This was
entirely IegaI. She also stated that one
time, j ust prior to t,he runof f , Bozeman and
Wilder came together in a car, although only
Wilder came into the office. Upon objection by
def ense counsel , however, the t,rial judge
struck mosE of this testimony, including all
references to Wilder. The only testimony that
was not, stricken was that Bozeman was in a car
alone and did not come inside.

R. 156

The court f ound that [Irs. Somnerville t s t,estimony about her

ballot was incomprehensible, in part because the prosecution

attempted to introduce evidence connecting Ms. Bozeman with Mrs.

Sommerville's absent,ee ballot by reading to the jury notes pur-

porting to be Ehe transcript of an out-of-court "deposition" of

Mrs. Sommerville conducted wit,hout an at,torney present for either

women, was present in the room when he was notarizing the
ballots. Tr. 5'7. But Mr. Rollins denied that Ms. Bozeman
personally requested him to not,arize the ballots. Tr. 59, 60,
62, 64. He also stated that he had no memory of trls. Bozeman
represent,ing to him that. the signatures on the ballots 'deregenuine. Tr. 73-74. A11 the prosecution could elicit from lrlr.
Rollins was that Ms. Bozeman and the other women present at the
notariz ing were " t,ogether. " Tr. 50-61 , 62, 64 , 7L.

7



the witneSs or ttS. BOzeman.5 On the stand, MrS. Sommerville

testified that Ms. Bozeman had never signed anything for her, and

denied ever giving a deposition. R. I59. The court determined

Ehat trLou Sommervillets deposition was never placed in evidence

and would not have been admissible as substantive evidence

anyway. o R. L'|2.

The district court concluded:

Although there was convincing evidence to show
Lhat the ballots were i1lega1Iy cast, there
was no evidence of intent on Bozemanrs part
and no evidence that she forged or helped to
forge the ballots. There is no evidence t,hat
she t,ook applications to any of the votersr oE
that she helped any of the voters fiII out an
application or ballot, or that she returned an
application or ballot for any of the voters,
and no baIlot was mailed t,o her residence.
Thus, there was no evidence that Bozeman
realized when she accomPanied Wilder and
ot,hers to the of f ice of Rollins t,hat the
ballots she helped to get not,arized were
fraudulent.

R. 172.

5 Testifying in person, ltlrs. Somerville vehemently challenged the
veracity of t,he notes represented by the prosecutor to be a
transcript of her out-of-court statements, and steadfastly denied
that !ls. Bozeman was involved in any tday with [t{rs- Sommerville's
voting activities. Tr. 153, L69, L73, L74t I75. According to the
out-of-court statements, llls. Bozeman aided Mrs. Sommerville t,o
fill out an application for an absentee ballot in order that tlrs.
Sommerville could vote by absentee ballot in the run-off. Tr.
161, 169. Taken in the light most favorable to Ehe prosecution,
even the out-of-court statements -- which '^,ere neither admitted
nor admissible in evidence showed only that, tls. Bozeman aided
Mrs. Sormnerville to engage in lawfu1 voting activities wit,h the
latterrs knowledge and consent.

8



Af ter f irst determining Lhat I'ts. Bozeman had exhausted all
her st,ate remedies, the district court ap.olied the {g@_L
Virginia standard and held the evidence insufficient for a

rational trier of fact to find guiIt, beyond a reasonable doubt.

The court also ruled t,hat the indictment was const,itutionally

defective.

III. STATEUENT OF THE STAIIDARD OF REVIEW

Appellants' explicit contentions on appeal are that the

dist,rict court failed to observe rules prescribed by statute and

caselaw for analyzing constitutional issues presented in federal

habeas corpus proceedings. The standard of review of these

asserted errors is whether the district court disregarded

applicable legal principles in its analysis of the constitutional

merit,s of the case. Appellants do not explicitly contend that if
the district court analyzed Ms. Bozemanrs Jackson v. virqinia
claim according to the applicable legal principles, it erred in

finding const,itutionally insufficient evidence t,o sustain her

conviction. If this content,ion is nevertheless implied in
appellants' arguments, the standard of review is whether the

disLrict court's conclusion is fairly supported by t,he record as

a whole.

-9



SUTTIT.TARY OF ARGU!.TENT

I. AppeIlanEs' submission t,hat the district court erred

under Sumner v. t{ata and 28 U.S.C. 52254 (d ) in f ailing to def er

to state-court fact findings (or to explain its refusal to do so)

when adjudicating lrls. Bozeman's {3g!gg claim is utterly baseless

on this record and in Iayr. In the first place, the district

court made no findings of historical fact that differ ma[erially

from those of the st,at,e courts, it disagreed only with the state

courts I ultimate conclusions regarding the constitutional

sufficiency of the evidence. In the second place, StaLe-court

fact findings that lack the minimal evidentiary support demanded

by the constit,utional rule of Jackson v. Virginiq self-evidently

fall outside t,he scope of the "determination[s] ... on the merits

of a factual issue" which are npresumed to be correct' under 28

U.S.C. 52254(d), because, by definition, they are trnot fairly

supported by the recordr" 28 U.S.C. 52254(d) (8). Thus, the

district court rs explicit conclusion t,hat, t,here was no constitu-

tionally sufficient evidence to sustain [ls, Bozemanrs conviction

fu1ly satisfied Sumner and 52254(d) aE, the same time that it

established a Jackson violation.
The district court properly conducted an independent review

of the state-court record as required by Jackson. Its determina-

tion t,hat the evidence, taken in t,he light, most favorable to the

prosecution, was insufficient to sustain a conviction is amply

l0



Supported by the record as a whoIe, and is not based on any

factual findings inconsistent with the Alabama Court of Criminal

Appealst opinion. Appellantst effort to create such inconsisten-

cies by pointing to the trivially different phraseologies used by

the district court and by the Court of Criminal Appeals in

summarizing the trial transcript will not withstand analysis.

II. The district court f ound that t,he t,rial judge insEruct-

ed Ehe jury on four st,atutes, Ala. Code 517-10-3 (1975) [miscited

by the t,rial judge as S17-23-31, Tr. 202i AIa. Code S17-10-6

(f975) [miscited by the trial judge as 517-10-7], TE. 202-203i

AIa. Code 517-10-7 (1975), Tr. 203-204; and Ala. Code 513-5-115

(1975), Tr. 204i and on the offense of conspiracy, Tr. 206. The

jury was further instructed that proof that, Ms. Bozeman had

COmmited any act nnot authOrized by ... or .. o cOntrary tor any

law would constitute an "i1legal" act warranting her conviction

under 517-23-1. Tr. 201. The effect of these instructions was to

make a violation of each of the other statutes a separate ground

for Iiabilit,y under S17-23-L. Yet the indictment contained no

allegations t,hat lt{s. Bozeman had violated those other statutes or

had engaged in acts which would const,itute violations of them.

For these reasons the district court correctly held that the

indictment Eailed t,o provide notice of the offenses for which tt{s.

Bozemanrs conviction was actually sought and that her conviction

was accordingly obtained in violation of due process.

11



I.

STATEI{ENT OF JTIRISDICTION

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

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

ARGUI.tENT

TBE DISTRICT COT'RT VIBWED TTIE BVIDENCE IN TEE LIGHT UOST
FAVORABLE TO TEE STATE AND PROPERTY DETERI,TINED IT I{AS
INSUFFICIENT AS A MATTER OF FEDERAL CONSTITUTIONAL LAW.

The district court held under gg$g.gg v. Virginia, 443 U.S.

307 (19791, t,hat no rational t,rier of fact could have found ltls.

Bozeman guilty of t,he offense charged. Appellants apparently do

not seek this Court's review of the correctness of that conclu-

sion upon the evidence revealed by the trial record. Rather,

rhey invoke ggglgI v, E3!3, 449 U.S. 539 ( 1981), t,o contend that

the district court "inexplicablyn ignored factual findings of

the Alabama Court of Criminal Appeals (Brief at 19-20) and failed
to identify its reason for doing Sor inasmuch as it did not

specif y the particular exception t,o 28 U.s . C. 52254( d ) ,5 on which

it relied. Appellants also contend that the district court did

not, view all the evidence in the light most favorable to the

prosecut ion.

Section 2254(dl
federal habeas
determinat ions

provides that, subject to enumerated exceptions,
corpus courts shall accept as correct the factual

made by state courts.

12



The Distrlct Court Properly Applied The Relevant Law to
Conclude The Evidence Was Insufficient

rn o=skson v. JiIgfI-|3., the supreme court established the

standard by which federal habeas courts should measure t,he

constit,utional sufficiency of evidence in state criminal prosecu-

tions. Jackson analysis begins with an identif icat,ion of the

elements of the crime under State law. ft then requires an

examination of the record evidence with reference to each element

of the crime, deferring to factual findings of the t,rial court or

jury and resolving all disputes in favor of the prosecution. It

ends with a determinat,ion whetherr oll this evidence, a rational

trier of fact could find every element, of the crime proved beyond

a reasonable doubt. 443 U.S. at 318-19.

In the present case, the district court scrupulously

followed the lSg!1g standard. It f irst outlined t,he J-ackson

ruler €xplaining that 'a mere tmodicum' of evidence is insuffi-

cient.' R. 170. See JaCkson V. Vlrginia, supra, 443 U.S. at

320. It next determined the elements of the crime under Alabama

Iaw, quoting t,he language of the stat,ute under which !1s. Bozeman

was charged, Alabama Code S17-23-1 (1975):

"' [a]ny person who votes more than once at' any
electfon held in t ts more
than one ballot for the same office as his
vot,e at such election, or knowingly attempts
to vote when he is not entE[E[-E6-do sor or
is guilty of any kind of $legal _9r-Er.audulent
voting r is gui t ty of
emphasis added. )

A.

13



The court ref erred to relevant state case law holding t,hat ''the
words nillegal or fraudulent" . . . are. . . descriptive of the

intent necessary for the commission of the offenserr" and that nr

[t]he offense denounced by the statute. . . is voting more than

oncer t ... or voting when the voter is not entiE,led to so.n R.

171.7 The t,wo essential element,s of knowledge or intent, to carry

out illegal voting activiEy hrere thus isolated, and the court

then examined t,he evidence in Bozeman to det,ermine whether these

element,s were proved. R. 17 1-73.

It, expressly started f rom t,he premise that, under Jackson,

the evidence must be "viewed in a light, most favorable to the

prosecution....' R. 170. ft further recognLzed that "Ii]n
determining whet,her the evidence established Ithe] ... elements

[of the crime as def ined by stat,e lawJ , the court may not resolve

issues of credibility. Duncan [v. Stynchcombe] | 704 F.2d t1213rj

at 1215 [ ( 1 1t,h Cir. 1983 ) ],. Thus, where the evidence conf licts
the court must assume that, the jury accepted the prosecut,ion's

version, and must defer to that result, 443 U.S. at 325." Id.

The elements of the offense proscribed by S17-23-1 are employing
fraud to vote more than once. Wilson v. State , 52 AIa. 299, 303
( 1875 ); wilder v. state , 401 3o7f151 ,-Ttril-(A1a. Crim. App. ),
cert. denTEt-?o1 s67f-toz (A]a. 1981), cert. denied, 454 u.s.
TrSrrr'rzr.

14



Reviewing the Lrial transcript wit.h these principles in

mind, the disErict court f ound t,hat t.he only evidence of f ered

against lrls. Bozeman was that she: (i) picked up "Ia]pproxi-

mately ZS to 3O applications " f or absentee ba1lot,s f rom the

circuit clerk's off ice during the week preceding t,he run-off , Tr.

18; (ii) was present with three or four other eromen, who did not

include the voters, dt the notariz ing of some absentee ballots

which rdere cast in the run-of f , Tr. 57 i ( iii ) may have made a

telephone call to the notary "pertaining to ballotsrn Tr' 76-77i

and ( iv ) spoke t,o prosecution witness !4s. Sophia Spann about

absentee voting when "it wasn't voting timer" Tr. 184. Addition-

ally, the court found that there was evidence presented by the

prosecution but not admitted by the trial judge: (v) t'hat' Fls.

Bozeman aided l.ls. Lou Sommerville, with Fls. Sommervillers

consenE, to fill out an application for an absentee baIlot, Tr.

151-162r 159; and 1vi) that in an election held prior to the

run-of f , I{s. Bozeman may have aided F{s. Sommerville to f ill out

an absentee ba11ot, TE. 173-174, 176-77. Final1y, the court

observed that evidence on which t,he state relied in the proceed-

ings below had been stricken from the record by the trial

judge.S R.171-172.

In the proceeding below, appellants stated that the testimony- at
trial showed that tvls. Bozeman "went to the courthouse with Julia
Wilder the day that she carried aII these thirty-five or forty
f raudulent nittots uP t,here and deposited them in the clerkrs
office." (Record on appeal, vol. 2 of 3 at 22-23). The district
court found that the [estimony to'which appellants referred had
been stricken and the jury instructed to disregard it. R. 172.

15



At trial the prosecution had contended that the evidence of

Ms. Bozeman's presence at the notarization was sufficient, to

establish culpability under S17-23-1 because the voters lrere not

bef ore the notary. Tr. 1 9 5-97. Alternatively, in t,he court

belowr appellants argued that there was suff icient evidence t,o

convict Ms. Bozeman of conspiracyt ot aiding and abetting.

(Record on Appeal, VoI. 2 of 3, at 22-23). The district court

conscientiously reviewed the state court record in the light most

f avorable to both theories, and rejected bot,h as unsupported by

the evidence under t,he standards of Jackson v. V-lE9i9i3. R-

17 2-17 4 .

Specif ical1y:

rAlthough there was convincing evidence to
show t,hat the t 39 ] ballots trere illegalIy
cast, there was no evidence of intent on
Bozeman's part ancl no evlclence EnaE sne rorgeo

e EEions to anY of
the voters, or that she helped any of the
voters fill out an application or ballotr oE
that she returned an apPlication or ballot for
any of the voters, and no ballot was mailed to
her residence. Thus,
that, Bozeman realized when she accompanied

ffioEa thaL she helped t,o get-iT

Even considering the excluded
show that ttls. Bozeman or Ms.
2l-23.

testimony, t,here was no attemPt to
Wilder deposited any ballots. TE.

16



SimilarIy, even under appellants' theory of aiding and abetting,
othere ... was no evidence of intent." R. 173. The district
court concluded that:

rThe evidence did not, show Bozeman to have
played any role in t,he process of ordering,
collecting r ot f illing out the ballots. Tt!g.
record alio lacks any Lvidence of any contI6E
oe-cween uoilan ano
notarv's. Thus, there is no evidence to
indicate that Bozeman knew the ballots t,o be
fiaudulent. ' ( Id . ; emphas is added. )

Since on t,his record'no rrational trier of fact could have found

the essent,ial elements of the crime beyond a reasonable doubtrrn

R. 170, the district court ruled t,hat the evidence was insuff i-
cient to sustain a constitutional conviction.

Thus , the d istrict court I s analys is of the record iras

conducted precisely as required by Jackson. Its independent

review of t,he evidence, taken in t,he light most favorable to the

prosecution, was enL irely cons istent with it,s responsibilities
under 28 U.S.C. S2254(d).

Section 2254(d) requires a federal habeas court to apply a

presumption of correctness to the factual determinations made by

a state court. Summer v. Mata, 449 U.S. 539 (1981). The statute

is designed to ensure that deference will be given to state-court

evidentiary findings, arrived at after weighing the credibility
of wit,nesses at trial. t'laggio y. Furford, _ u.s. _, 76

L.Ed.2d 794 11983); Sumner v. uata, s3jg.. On questions of

t7



historical fact, the state courtrs findings are controlling

unless there are substantive or procedural deficiencies in the

findings t ot the findings are not fairly supported by the record.

28 U.S.C. S2254(d) ( 1-8).

The deference required by 52254(d), howeverr aPPlies only to

historical facts. A federal habeas court is not bound by

st,ate-court determinations of questions of law, or mixed ques-

tions of law and f act that require t,he application of constitu-

tional principles t,o historical f acts. Cuvler v. Sullivan, 446

U.S. 335, 342 ( 1980); Lrewer v. Wi11iams, 430 U.S. 387 | 403-04

(1977). Accord, Wainwriqht v. Witt, 53 U.S.L.W. 4108, 4112 (U.S.

Jan. 21, 1985). The Supreme Court explicitly reiterated the

principle in gSSlSgg , 44 3 U. S . at 3'l 8, cit ing the leading

opinions which announced it, Townsend v-. Sain, 37 2 U.S. 293, 318

11963); Brown v. Allen, 344 U.S. 443, 506-07 (1953) (opinion of

Justice Frankfurter). This court has also held eonsistently in

cases involving questions of law or mixed questions of law and

f act that the presumption of correctness does not apPly. E,
e.!tr., @, 684 F.2d 794, 803-04 (11th Cir. 1982),

cert. denied, 1 03 S. Ct . 1798 ( 1 982 ) ; Dickerson v. State of

4Iaba.ma, 667 F.2d 1364, 1368 (11th Cir. 1982) cert 9eniedr 459

U.S. 878 ( 1982); Gunsby v. Wainwright, 596 F.2d 654t 555 (5t'h

Cir. 1979)t cert. denied, 444 U.S. 946 (1979). And the law of

the circuit I-.aI *"a determinations of the suff iciency of

the evidence involve the application of legal judgment requiring

18



an independent review of the record. @, 632

F.2d 505, 640 (5th Cir. 1980)' cert. g3-!.ig-$, 451 U.S. 1028

(1981); see also Spfav-BiIt v. I,nters-o11-Rand.Worl-d-re_, 350

F.2d 99 (5th Cir. 1965).

A federal district court. which makes a proper analysis of a

Jackson v. Virginia claimr ds the court below did here, affronts

no rule or policy of 52254(d). By viewing the evidence "in a

light most favorable to t,he prosecution" (R. 170), presuming

nthat the jury accepted the prosecution's version" of conflicting

evidence (fg.), and "deferIing] t,o that result" (!{.), the court

not merely accepts all findings of historical fact which the

st,ate courts actually made in favor of the prosecution, but every

such finding which they might have made. To be sure, the

district court may disagree with the state courtrs ultinate

conclusions regarding the sufficiency of the evidence, 443 U.S.

at 323-24, but these conclusions are the very paradigm of
judgments which are not "entit,Ied to a presumption of correct,ness

under 28 U.S.C. 52254(d)" because they represent 'a mixed

determination of law and f act t,hat requires the application of

legal principles to the historical facts ...', Cuyler v.

Su_l1ivan, supra, 446 U.S. at 341-342i conPg-fg g_gSlggt--v-.-

Yirginiar 443 U.S. at 318 ("A federal court has a duty to asssess

the historic facts when it, is called upon to apply a constit,u-

tional standard to a conviction obtained in a state courtr).
Against the background of these settled principles, we turn nov,

l9



to appellant,s' argument,

more t ot [hat Ehe court

fulf ilment of t,his duty.

t.hat Sumner v. Mata demands something

below did something less, than the

B. In Enforcing Jackson v. Virginiar the Dlstrict Court
was Nor nequ i;6d-6- ecGffiEe F ind ings that the
Evidence lllas Sufficient.

Appellants I content,ion that a federal court enforcing

Jackson v. Virginia must give deference to state-court findings

under Sumner v. !{ata misconceives the whole point of Jackson and

the whole point of Sumner. If this contention had merit, Igglg
claims could never be enforced, because it, is always the case

that federal habeas proceedings raising.f=@ claims are

preceded by ( 1) a st,ate jury f inding that the evidence is

sufficient to prove every element of the offensei 12) a state

trial-court finding that the evidence is sufficient to support

the jury's verdict, and (3) a st,ate aPPellate-court finding of

thaE same fact. Federal-court deference to these omnipresent

findings would render the Jac!son decision an exercise in

futiliEy, the Jackson opinion an absurdity.

The Jackson Court was not unaware of this point. See 443

U.S. at 323 ("The respondent,s have argued . . . t,hat whenever a

person convicted in a state court has been given a 'fu1l and fair

hearingt in the state system meaning in this inst,ance state

appellate review of the sufficiency of the evidence further

federal inquiry . . . should be foreclosed. This argument would

20



prove far too much.o). Indeed, the Precise question debated in

the Jacks_oq opinion 'ras whether I+ 5e Wigtl-ip, 397 U-S- 358

( 1 970 ) required federal habeas courts to review state-court

f actual f indings to the extent necessary t,o enforce the federal

constitutional requirement of proof beyond a reasonable doubt as

the condition precedent t,o a due-process criminal conviction.

Jackson's plain, clear answer to that question was yes.

There is nothing in this ansrrer that is inconsistent with

Sumner in the slightest measure. Sumner was based squarely on 28

U.S.C. 52254, and merely held t.hat the requirements of 52254

applied to findings of fact of st,at,e appellate courts as well as

findings of fact of state trial courts. Well before either

@or@.,itwassett1edIawthatfedera1habeascourts
were required to defer to state t,rial-court findings of fact'

such as the jury's finding of guilt, or the trial judgers finding

of the sufficiency of the evidence, under the conditions speci-

f ied by 52254. EE, 9-&-, -La vjll-lee v. Dellg E, 410 u.s. 590

(1973). The reason why Jackson nonetheless concluded that

federal habeas courts could review these findings independently

to det,ermine whether the evidence of guilt 'das constitutionally

sufficient is obvious. It is that any case in which the Jackson

test of constitutional insufficiency of the evidence is met is g

fortiori a case in which 52254(d) explicitly permits federal

habeas corpus redetermination of the facts because "the record in

the State court proceeding, considered as a whoIe, does not

21



fairly support Ithe] factual determination" of the jury that

every element, of guilt $ras proved beyond a reasonable doubtr oE

Ehe factual findings of the state trial court and appellate

courts that the evidence was sufficient, for conviction. In

short, every substant,ively valid Jackson claim is, by definition,
within the class of cases in which 52254(d) permit,s (and Townsend

v. Sain, 37 2 U.S. 293 (1953), requires) federal habeas corpus

redetermination of state-court fact finding. Sumner v. Mata

neither requires a federal district court to ignore, nor to

"explainr" this patently obvious point.

The Dlstrict Courtrg View of the Evidence was Not
Inconsistent with Factual Pindings of Ehe Alabama Court
of Crlmlnal Appeals

Appe Ilants f urther urge that, t,he court below disregarded

specific findings of historical fact by the Alabama Court of

Criminal Appeals. They not,e (Brief at 18) that Judge Hobbs was

able to reduce the prosecution's evidence to a single sentence:

"The only evidence against, Bozeman was Rollins' t,esLimony that

she was one of the ladies who brought the ballots to be nota-

rized, that she may have called to arrange the meeting, and t,hat

the ladies as a group represented the ballots to be genuine after
he told them t,hat, the signators were supposed to be present." R.

171 . Appellants complain t,haE this sentence does not summarize

c.

22



the trial transcript in language identical to the summary of the

transcript found in the Alabama Court of Criminal Appealsr

opinion.

.lhis is a quarrel about opinion-writing phraseology and

nothing else. For while appellants contend that the district

courtrs factual findings were nconsiderably at odds with the

facts found by the Alabama Court of Criminal Appeals in the same

case" (Brief at 19), they point to only three trivial instances

of alleged inconsist,encies:

'(1) Paul RoIIins 'testified that he hqd talked with
Bozeman about notarizing the ba11oc6]T 401 so. 2d
at 169 (emphasis supplied) (as opposed t'o rshe may
have calIed I )

(2) r It{r. RoIl ins stated . . . that he subsequently
went to Pickens County t.o f ind those persons who
had al1egedly signed the ballots. He had
IBozemants] assistance on that occasion, however,
he was not sure he did not go to Pickens County
prior to Septenber 26, 1978.t 401 So. 2d 169 (no
mention of this in the district court opinion)

(3) The state court relied heavily on the testimony of
Sophie Spann. 401 So.2d at 169-70. The district
court, in cont,rast, treated her evidence briefly
in section II of its opinion (R. 159); then, quite
inexplicably, ignored the evidence entirely when
it reached the critical summary of the staters
case. (R. 17 1 ). " (Appellants I Brief at 19-20.)

Upon examination, even these insignificant discrepancies dis-

apPear.

23



( 1) Judge llobbs I paraphrase of Rollins' testimony with

respect to the telephone call simply summarizes the fuller

version of that test,imony set fort,h earlier in t.he district

court rs opinion:

'ile [Rollins] also stated that he received two
calls t,o set up t,he meeting, but t.hat he could
not remember whether Bozeman made either caIl.
He lat,er testif ied, however, that Bozeman made
one cal l pertaining t,o some ballots, but he
was not sure which ballots. tr (R. 166-6Ti
ffi-phaET3 aiftlEa. )-

Summing up later, Judge Hobbs understandably described this

testimony by saying that Bozeman "may have called to arrange the

meeting.'r R. 171. The only variation between this formulation

and the one employed by the Alabama Court of Criminal Appeals was

that, the Alabama court wrote that, Ms. Bozeman "had'arranged a

meeting with the notary. The nhad,/may haver line is plainly a

distinction without a differ.ence, since as with alI the

evidence Judge llobbs viewed Rollins' test,imony in the light
most favorable to t,he prosecution.

(2) The second of the critical "facts" which appellants

claim Ehat Judge Hobbs did not mention is incorrectly quoted.

Corrected, it becomes irrelevant.9

9 Correctly, nMr. Rollins stated . . . that he subsequently h,ent to
Pickens County to find those persons who had allegedly signed the
ba1lot.s. He had [Ms. Bozemanrs] assistance on that occasion,
however, he iras sure he did not go to Pickens County prior to
i.ptl*u.r -.tEmFhiSETilEad6di.-m6:ffi'
ggPugllugl &v, aJrv. =vl sv.-v tvJ. \s.rrr..sv-v sYYver.

ffidge rlobbs to ment,ion this incident since it
occurred after the run-off primary in question and involved

24



(3) The third supposed discrepancy of nfact" cit,ed by

appellants is that the state court "relied heavily on the

testimony of Sophie Spann, " while Judge ilobbs treated her

evidence "briefly.' In summarLzLng the record, the Alabama Court

of Criminal Appeals did not indicate specif ica1ly t,he facts on

which it based its conclusion that the evidence was sufficient,,

saying only that the evidence was circumstantial and confusing in

several instances, 401 So.2d at, 170. Even if appellants are

correct that the Alabama court relied 'heavily" on tis. Spann's

testimony, there is nothing ii the testimony cited by that court

or contained in the trial transcript linking Ms. Bozeman to Ms.

Spann's absentee ba1Iot. Neither the bal1ot application nor the

ballot contained a signature purporting to be that of Ms.

Bozeman. According to the Alabama court, all that trls. Spann said

with regard to Ms. Bozeman is that they rdere life-long friends

who had a conversation about voting absentee "when it, wasnrt

voting E,ime." Tr. 184.10 rh.a same conversation is described by

another unrelated election. The testimony about it was intro-
duced at trial by the defense to show I'ts. Bozeman's good faith
and was not treated otherwise by the Alabana court.

10 Accor,iting t,o the Alabama Court, Ms. Spann testif ied that:

(a) "she had never voted an absentee balIot, but that
[Bozeman] had come to her house and had talked to her
about it." This occurred "before voting time,"

(b) She had known Bozeman all her life.
(c) She had never made an application for an absentee ballot

nor had she ever signed her name to one.

25



the court below. R. 169.11 Judge Hobbs treated the t,estimony of

Ms. Spann in the same vray that he treated all other testinony

by highlighting only those aspects of the evidence t.hat, could be

viewed as materially supporting Ms. Bozemanrs conviction of the

charges in the indictment,.

Thus, Judge Hobbs did not, disregard or disagree with any

fact,s found by the state appellate court. His sole disagreement

was with t,he state courtrs ultimate conclusion that those facts

added up to sufficient proof to allow a reasonable mind t,o find

Ms. Bozeman guilty beyond a reasonable doubt. The rule laid down

in summer v. Irlata , 449 u. S. 539 ( 1 981 ) , requires that, federal

habeas courts must specify their reasons for denying state

factual findings a presumption of correctness under S2254(d) if
and when thev disreg'ard Ehose -f indings. Since Judge llobbs did

(d) She knew Wilder, but knew Bozeman better; Wilder had never
come to her house nor ever discussed voting with her.

(e) She went t,o Cochran to vote and was informed that an
absentee ballot was cast for her in A1icevil1e.

401 So.2d 169-70.

11 Judge Hobbst summary of the Spann testimony went as follows:

"sophia Spann testified that she did not sign an
applicat,ion or a ballot. She also stated that
when she went to her usual polling place, she was
told that her absentee ballot had been cast. She
stated that Bozeman came at some time prior to
the runof f and asked if Spann wanted to vot,e
absentee, and Spann said she did not. Julia
Wilder wiLnessed dpann's qppljS3!j,93. " (R.-i?ff
E-frF6-a'5C-affilEI-) .- -

26



not disregard any state-court findings, he was obviously

obliged to state reasons for doing something that he did not

Cf. Brewer v. Wi}liamsr 430 U.S. 387,395-397r 401-406 (1977).

not

do.

In Brewer both part ies agreed to submit the case to t,he

federal district court on the basis of the state-court record.

The district court made findings of fact based on its examination

of that record. It found a number of facts in addition to those

which the state courts had found, but none of its findings

including the supplemental f indings -- conflicted with t,hose of

the State courts. The Supreme Court held t,hat the district court

had fully complied with the strictures of 28 U.S.C. 52254(d). 430

U.S. at 397.

[Iere too, while Judge Hobbs made some additional f indings,

none of his findings conflicts with any historical facts found by

t,he Alabana courts. Appellants I att,empt novt to f ind some

inconsist,ency beEween specific factual findings of the Alabama

Court of Criminal Appeals and t,he f actual f indings of the

district court below is groundless.

II. TEE INDICTT.IENT AGAINST !tS. BOZEUAN WAS FATALLY DEFECTIVE IN
TEAT IT PAILED TO INFORITI HER OT THE NATURE AT{D CAUSE OF TEE
ACCUSATION

The indictment filed against Ms. Bozeman failed in numerous

respects to provide the level of notice required by the Sixth

Amendmentrs guarantee that in all criminal cases the accused

27



shall receive nnotice of the nature and cause of the accusation'

against her. Each of these failures, standing a1one, amounts to

a denial of constitut,ionally required notice; together, they add

up to a stunningly harsh ittd egregious denial of notice, a right
which the Supreme Court has deemed trthe first and most universal-

ly recognized requirement of due process. 'r smith v. o rGrady, 31 1

U.S. 329, 334 ( 1941 ); see also Cgle*v. Arkansal, 333 U.S. 196,

201 ( 1948 ).
The district court found that the indictment failed to

provide any notice of a number of charges which were submitted to

Lhe jury. ils. Bozeman was tried, oto Put it simply... uPon

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

notified." R. 183. She did not, discover the precise charges

against her, "until Ishe] ... had rested Iher] ... case.' R.

182. The district court held that, she was t,hereby denied due

process.

The Indictment Was Constitutionally Defective In That
ft Pailed To Provlde Palr Notlce Of All Of The Charges
On Which The Jury lYas Permltted To Return A Verdict Of
Guilt

The district court noted that various stat,utes and theories

of liabilit.y as to which the indictment provided no notice

whatsoever rrrere incorporat,ed into t,he charges submitted to the

jury as the basis for a f inding that t'ts. Bozeman had violated

S17-23-1 by "any kind of illegal ... voting." The indictmenE, is

A.

28



set forth at pages 3-4, 19,. In each of it,s three counts it
ostensibly tracked various provisions of S17-23-1. It alleged

disjunctively with other charges in Count I that [t{s. Bozeman had

"votIed] iIlegaIIy or fraudulently," and in Counts II and III
that she had "cast iIIegal or fraudulent absentee ballots. " Only

in Count III was any factual specificaeion provided; and E,here it
was alleged that !{s. Bozeman had deposited fraudulent absentee

ballots which she knew to be fraudulent. In none of the counts

was any elaboration given to that portion of the charge which

accused Ms. Bozeman of having nvot [ed] illegaI1y" or having ncast

i1Iega1 .. . absentee ballots. "

In the instructions to the jury, the t,rial judge did frame

elaborate charges under which [tls. Bozeman could be convicted of

illegal voting. After reading St7-23-1 to the jury, he explained

the statuters provision against "any kind of illega1 or fraudu-

lent voting" by defining the terms "i1legaI" and "fraudulent.'
Tr. 201. Concerning t,he t,erm "illegalr" he instrucLed the jury

that, "i1lega1 , of course, means an act t,haE, is not authorized by

law or is contrary to t,he Iaw.' Tr . 201 . He then instructed the

jury on four statutes: A1a. Code S17-10-3 ( 1975) lmiscited as

S17-23-31, Tr. 202i AIa. Code S17-10-5 (1975) lmiscited as

S17-10-71, Tr. 202i AIa. Code S17-10-7 (1975), Tr. 203-204; and

AIa. Code S13-5-115 (1975! , Tr. 204-205. None of these stat,utes

or their elements was charged against, Ms. Bozeman in the indict-
ment. Their terms provided numerous new grounds on which to

29



convict. The jury was thus authorLzed to find l{s. Bozeman guilty

under S 1 7-23-1 if she had acted in a manner 'not authorized by or

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

statutes not specif ied or even hinted at in the indict,ment.

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

miscited by the trial judge as 517-23-3, which sets forth certain

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

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

is afflicted with'any Physical illness or infirnity which

prevent,s his attendance at t,he polls." Tr. 202. Thus a f inding

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

cal1y 'prevent [ed] " from going to the po1ls to vote in the

run-off would have constituted t,he finding of an "act not

authorized by... or... contrary to'S17-10-3, necessitaE,ing }ls.

Bozeman's conviction under 517-23-1 even Lhough she was given no

notice in the indictment, that such proof could be grounds for
I iab i1 ity.

The trial j udge t.hen instructed the j ury t,hat, S 17-10-6 '
miscited as S 1 7- 10-7, requires , jglg al ia, that all absent.ee

ballots "shall be sworn to before a Notary Public" except in

cases where the voter is confined in a hospital or a similar

institution, or is in the armed forces. fr. 203. Eurther, under

S17-10-7, the trial judge stat,ed that Ehe notary must swear that

the voter "personally appeared" before him. Tr. 203. Accord-

30



ingly r evidence that the voters were not present. at the notariz-

ing,
under

E9
s1

Tr. 56-64, sufficed to establish per gs culpability
7-23-1 although, again, the indictment gave Ms. Bozeman

no warning whatsoever of any such basis for culpability. l 2

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

provides:

"'Any person who shall falsely and incorrectly
make any sworn stat,ement or af f idavit as to
any matters of fact required or aut,horized to
be made under the election laws, general,
primary, special or locaI of t,his state shall
be guilty of perjury. The section makes it
illegal to make a s$rorn statement, oat,h t ot
af f idavit as E,o any matters of fact required
or authorized t,o be made under t,he election
laws of this state. I'

Tr. 204. Both sentences of this instruction contain egregious

misstatements concerning Sl3-5-1 15. The first, senEence repre-

sents a verbat,im reading of 513-5-115 with one crucial error. The

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

incorrect.ly" making the sworn statements described in the

statute, whereas in f act the statut,e proscribes t,he making of

such statements "f aIsely and corruptly" -- i€., with criminal

intent. The second sentence of t,he instruction, which apparently

12 It is noteworthy that SS17-10-5 and 17-10-7 were amended several
months after Ms. Bozeman's trial by Acts 1980, No. 80-732, p.
1478, SS3, 4, and no longer require notarization of the ballot.

31



represents the E,riaI judgers interpretation of S13-5-115, has

the absurd result of making i1Iega1 every sworn statement duly

made under t,he election laws.

Irrespective of these misstatement,s, the charging of

S13-5-115 deprived Ms. Bozeman of constieutionally required

notice. The misstatements of the terms of a st,aLute which Ms.

Bozeman had no reason to suspect she was confronting in the

first place only aggravated this denial of due proc."".13

The dist,rict court f ound that the trial courtrs charge, by

explicitly permitting the jury to convict l{rs. Bozeman of casting

an improperly notarized ba1lot, was especially prejudicial

because the only evidence against I'ts. Bozeman was her partici-

pation in the notarization. R. 181-82. The indictment contained

no allegat ions which could have Put her on notice t,hat her

participation in the notarizing process was violative of S17-23-1

or in any way criminal. As the district court said: "There is a

world of difference between forging a personrs ba11ot and failing
to follow the proper procedure in getting that person's ballot

13 rne trial judge also misread 517-23-1 in a way which expanded the
charges against l.ls. Bozeman. He instructed the jury that
517-23-1 penalizes one who ndeposits more than one ballot for the
same office.' Tr. 201. In fact S 17-23-1 penalizes one who
"deposits more than one ballot for the same office as his vote"
(eripnasis added ) . This omission by the trial jud6'6 ff iGTIv
changed the meaning of the statute so that t.he mere physical act
of depositing two or more ballots at the same election -- even
ballots deposited on behalf of other voters violates
517-23-1. IE t,hus produced a new charge against Ms. Bozeman of
which the indictment provided no notice.

32



notarized.' R. 183. Yet,, t,hree of the four statutes not charged

in the indictment but submitted to the jury as a basis for

convict ion under S 17-23-1 made lrls. Bozeman I s minor participation

in the notarizing into grounds of p- se cuIpab.ility. At trial
a large part of t,he prosecution's case was spent att,empting to

prove through t,he t,estimony of titr. Ro1lins, and through questions

posed t,o virtually all of the testifying voters, that the

notarizing t,ook place outside of the presence of the voters, and

t,hat Ms. Bozeman had in some way participated in that notarizing.

Ilence, the charges made for the f irst time in the instructions
provided new grounds for culpability which were crucial to her

convi ct ion.

The court below held that the failure to allege these

grounds for culpability in t,he indictnent violated Ms. Bozemanrs

t'ourteent,h Amendment rights. The violation yras all the more

signif icant because evidence of t,he proper elements of the one

statute charged in the indictment was insufficient, or nonexis-

tent.
The only relevant allegations in the indictment were that,

Ms. Bozeman had "voteId] i11ega1ly" (Count I) or had "casL

i11e9a1... absentee ba1lots" (Counts II and III) in the run-off.
These allegations in no rray informed lts. Bozeman with particula-

rity that she could be prosecuted under the rubric of illegal
voting f or acts 'not authorized by ... or ... contrary ton t,he

four unalleged statut,es charged in the inst.ructions. But

33



,'[n]otice, to comply with due process requirements, must be given

sufficiently in advance of the scheduled court proceedings so

that reasonable opportunity to prepare will be afforded, and it

must rset forth the alleged misconduct with particularitY.'n In

re Gau1t, 387 U.S. 1 , 33 ( 1 967 ) .

"Conviction upon a charge not made would be a
sheer denial of due Process. r

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

United Stqleq, 442 U.S. 100, 106 (1979), Jackson v; Virginiat 443

U.S. 307, 314 (19791 i Bresnell v. Georgia, 439 U.S. 14, 16

(1978); CoIe v. Arkansasr 333 U.S. 196r 201 (1948).

Ms. Bozeman was plainly subjected to an egregious violation

of the rule that, in order to satisfy the NoLice Clause of the

Sixth Amendment, an indictment must allege each of the essential

elements of every statute charged against the accused. See

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

st.ates v. Ramos , 666 F.2d 469 , 47 4 ( ',l 1t,h Cir. 1982) i Uni.ted

States v. Out1er, 659 F.2d 1305, 1310 (5th Cir. Unit B 1981),

9. qSgiS9, 455 U.S. 950 11982) i United Statsrs v...Haas, 583

F. 2d 216 , 219 Eg[. 9SI$!, 588 F. 2d 829 ( 5t'h Cir. 1978) | g.

{s$"d, 440 U.S. 981 11979) i United SLates v. strauss, 283 F.2d

34



155, 158-59 (5th Cir. 1960).14 Here, the indictment failed even

remotely to identify the critical elemenes upon which her guilt

was made to depend at trial.

The indictment also violated the rule of United States v.

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

"where the def inition of an of fence, whettrer
it, be at common law or by statute, includes
generic terms, it is not suf f icient t,hat the
indictment sha1l charge t,he offence in the
same generic terms as in the definition; but
it must state the species it, must descend
to the particulars."

14 rnis rule is followed by the Alabama courts as a proposition of
both Alabama law and f ederal constitutional 1aw. EE, €.9. r
Andrews v. StaEe, 344 So.2d 533, 534-535 (AIa. Crim. App. ), CGita
ffia 538 (Ara. 1977). rn fact, under elabama@
ETIr?e to include an essential element of the offense in the
indictment is regarded as such a fundamental error that it
renders the indictment void, and objection t,o such an indictment
cannot be waived. See €.t_, !|., Barbee v. Statet 417 So.2d 611
(Ala. crim. App.-T96Tlt qEqer@o.2d 510 (Ala.
crim. App. 1980), ger!. qelimta (19s0); Edwards v.
state ,- -llg so.)f-TT8, -TfFIala. crim. App. 197s) i ofiiidE6ffi
sm,351So.2d683(A1a.Crim.APp.1911)irend!ef:ilr@'#T*o.2d 6OO (Ala. Crim. App. 1973); f itzger@
So.2d 162 (AIa. Crim. App. 1974)i Eroq 450
(A1a. App. 1946); Nqlsolr v. state, 2ffi1a. crim. App.
1973);wirriamsv.ffi2d610(A1a.Crim.App.),affld,
g3l so.ffi); narmon v. state, 249 so.2d 369JEf
crim. App. ), cert. deniedrffi(Ala. 1971).

35



Id. at 558 ( citation omitt,ed ) . The Cruikshank rule is fundamen-

tal to the notice comPonent of due process. See USESl-l--v.-

United States', 369 U.S. 749, 765 (1962). lt is apposite to this

case because "i11ega1" is unquestionably a "generic term." Keck

v. United SE_4!S_9, 172 U.S. 434, 437 (1899); GoodLoe v. Parratt,

605 F.d 1041, 1045-46 (8th Cir. 1979'). An indictment which

charges unspecified illegalities as did Ms. Bozeman's in

charging her with "vot Iing] i1}egally" or "cast Iing] iIlegal ...

absentee ballots " must, under Crqfl<S-bgnk, "descend to the

particulars' and identify the acts and underlying laws which

a1leged1y constituted the illegaIities. Id. In Ms. Bozemanrs

situation, Cru'ikshank required that the indictment allege that

she violated S'17-23-1 by failing to comply with each of the four

statutes as they were charged against her in the instructions,

and cont,ain specific factual allegations giving her fair notice

of the acts which were allegedly criminal under those charges.

Such was the conclusion which the court below derived from

Goodloe V. Parratt, 605 F.2d 1041 (8th Cir. 19791t where habeas

petitioner Goodloe had been convicted in a state court of

operating a motor vehicle to avoid arrest. Under Nebraska law

the crime allegedly committed by the defendant for which he was

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

be proven as an element of the offense of resisting arrest. !!.
at 1045. The Goodloe court found that during trial the prosecu-

tion changed the offense it was relying on as the crime for which

35



Goodloe ,rras allegedIy resisting arrest,. Ig. at 1044- 1045. This

change denied Goodloe constitutionally required notice. fg. In

addition, irrespective of the change in underlying offenses at

trial, the Eight,h Circuie held under Cruikshank that Goodloe was

denied constitutionally required notice because t'he init'ial

charge against him had failed to include notice of the underlying

offense which Goodloe had al1eged1y commit.ted and because of

which he rrras allegedIy resisting arrest. The indictment there-

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

1046.15

The f acts of Goodloe are analogous to lt{s. Bozeman's case,

since the four

failed to charge

tive elements of

statutes invoked against her which t,he state

in t.he indictrnent were incorporated as substan-

S 1 7- 23-1's prohibition against i1lega1 voting.

15 The court reasoned:

"The indictment upon which Goodloe was tried
charged that he did, in the words of the statute,
'un1lwfully operate a motor vehicle to flee in
such vehicle in an effort to avoid arrest for
violating any law of this State. I There is no
indication from this statutory language thatr ds
the trial court held and instructed the juryr €trl

additional element must be proven for conviction:
actual commission of the violation of state law
for which the defendant fled arrest. Once prior
violation of a specific state statute became an
element of the offense by virtue of the trial
court ruIing, Goodloe was entitled not only to
notice of that general fact, but also to specific
notice of what law he was alleged to have
violated. "

Id. at 1045.

37



4ccord, Watson v. Jirlgg, 558 F.2d 330 (5th Cir. 19771. See also

Plunkett v. Este1Ie, 709 F.2d 1004 (5th Cir. 1983)' celt. {enieQ,

104 S.Ct. 1000; TaTpIey v..Esteller 703 F.2d 157 (sth Cir. 1983),

ggrt. @!s1|, 104 S.Ct. 508; Gray v. Rains, 662 P.zd 589 (10th

Cir. 1981); Von Atkinson v. Smith, 575 F.2d 819 (1Oth Cir. 1978).

The district court followed the basic approach of these cases in

determining that the jury could reasonably have convicted Ms.

Bozeman of a crime not charged in the indictment. The courtrs

determination was based on its examination of the trial as a

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

of the prosecution and the evidence. R. 179-80. The court

rejected appellantsr argument t,hat Ms. Bozeman was challenging

t.he jury charge rather t,han the indictmentrs failure to provide

fair notice of the charge. As appellantsr now realLze, "Judge

Hobbs considered the instruction on statutes not contained in the

indictment. to amount to a constructive amendment to t,he charging

instrument, allowing the jury to convict the defendant for an

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

Cir. 1983)." Brief at 22.

This rrras entirely correct. It h,as the challenged indictment,

which created the substant,ial potential for abuse eventually

realized by t.he oral charge. Eg Stromberg v. California, 283

U.S. 359, 364-65 (1931); Te5miniello v. Chicagot 337 U.S. 1,5

(1949). As Judge Hobbs explained, Ms. Bozeman "went into court

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

38



being tried on the alternative t,heory thaE [she] had commit,ted

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

182-83. Because Ehe indictment failed to give Ms. Bozeman fair

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

required by the Sixth and Fourteenth Amendments, the district

court properly overturned her conviction. l6

The Indictment $Ias Fatally Defective In That It Failed
To Include Constitutionally Sufficient Allegations
Concerning The Charges Of Fraud

Additional grounds support the district courtrs judgment

invalidating the indictment. Each count alleged at least in the

alternative that Ms. Bozeman had in some way committed fraud

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

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

fraud failed to provide the quantum of notice required by the

B.

1 5 Stronberg and Terminiello demonstrate the fallacy of appellants'
ffi-ce on wEffia? v. Sykes, 433 'Li.S. 72 1i977 r rBrrei ac
21-22). Sincemault lay in the indictment,, no
objections to the jury instructions were required to preserve Ms.
Bozeman's challenge to it. Svkes. is inapposite because Ms.
Bozeman properly and consistently-aEEacked the indictment for its
failure to give her adequate notice of the charges throughout the
st.at.e proceedihgs, beginning with her plea filed on May 28, 1979,
and continuing through her motion for a new trial filed on
November 28 , 1979. Ey,ES is inappos ite because Ms. Bozeman
raised the not,ice issue on direct appeal t.o the Alabama Court of
Criminal Appea1s, and that court entertained the issue on the
merits. 401 So.2d at 170. EE, e.9.., 9g.g!a.1$trt of U1ster
County v. Allen, 442 U.S. Tfii, T[T-S+
@use che Aiabama courEs consroerErrghc Eo
notice to be so fundamental that objections to indictments on the
ground of lack of proper notice cannot be waived. Note'14 supra.
$, gg-, Boykin v; Alabam?, 395 U. S . 238 | 241-42 ( 1969 ) .

39



S ixth Amendment,. Moreover, as noted in subsect ion (2') beIow,

Counts I and II failed to allege fraudulent int.ent or knowledge

as a necessary element of the offense charged. Counts I and II
failed to allege any rc rea whatsoever. Only in Count III was

t'ts. Bozeman accused of having acted with fraudulent intent.

The prejudice caused by these constitutionally defective

counts is incalculable since t'ls. Bozeman was convicted under what

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

general verdict, the jury gives its verdict Lo, each count

without elaboration as to Lhe findings of fact. ES generally 75

Am. Jur.2d Trial 5885i 76 Am. Jur. 2d Trial 51111. But in t1s.

Bozemanrs case, despite a three-count indictment, there $ras

merely a one-line verdict pronouncing her "guilty as charged'r of

a single undifferentiated violation of S17-23-1. Tr. 223. Since

there is no $ray of deterrnining under which count or counts the

jury convicted her, prejudice owing to even one defective count

requires the invalidation of her conviction. ESg' g.:-g.:-r-

Stromberg v. California, 283 U.S. 359 (1931); williams v. North

Carol_ina , 317 U.S. 287 (1942) i Term,inie1lo,v. Chicago | 337 U.S. 1

(1949); Strset v. New_York? 394 U.S. 576 (1969); Bachellar v.

Maryland, 397 U.S. 564 ( 1970).

40



(t) The factual allegations
constitutionally insuff icientthe nature and cause of the
conduct

in each count were
to provide notice of
allegedly. fraudulent

None of the three counts charging fraud stated the asserted-
Iy fraudulent conduct with particularity. The counts alleged
nothing more Ehan that Ms. Bozeman voted fraudurentry (count r),
or cast fraudulent absentee ballots (Counts II and III) in the
run-off. In Count III only was this latter allegation elaborated

albeit insufficiently to satisfy Ehe constitutional require-
ment of fair notice -- by accusing Ms. Bozeman of depositing the
fraudulent absentee bal1ot,s with the pickens County Circuit
clerk, knowing that the ballots vrere fraudurent.

In order to pass constitutional musterr do indictment , rmust

be accompanied with such a statement, of the facts and circum-
stances as will inform the accused of t,he specific offence,
coming under the general description, with which he is charged.r'
Russerr v. united states, 369 u.s. 749, 765 (1g52) (quoting
United States v. Hgssr 124 U.S. 4g3, 497 (lggg)); see also United
states v. Ramos, 656 F.2d 469, 474 (11th cir. 1gg2)i united
states v. outler, 659 F.2d 1306, 1310 n.5 (5trr cir. unit B,

1981)- Fraud is a "generic term" which is insufficient to
provide the constieutionally required notice unless detailed
factual allegations are included in the indictment. EE United
states v. cruikshank, 92 u.s. s42, 559 (1975) (discussed at pp.
35-37 supra). The indictment nmust descend to the particulars"

41



of the acts

also United

of the

S t.ates

accused which

v. Diecidue

were aIlegedly fraudulent. See

F.2d 535, 547 (5r,h Cir.603

1979).

It was inadequate for the state to a1Iege (as it did in

Count III only) that Dls. Bozeman had deposited fraudulent

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

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

rise to the alleged offense.' United State@, ggp5g,,

659 F.2d at 1310 n.5.17 In order to satisfy the rule of

Cruikshank, the indict.ment in its charging of fraud was required

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

to inform the accused of what representations lrere alleged to

have been used to carry out the fraud. l 8

Rulings on indictments in federal cases are also premised on the
Fifth Amendment requirement of indictment by grand jury, the
Federal Ru1es of Criminal Procedure, and federal common Iaw.
See, e.ct., United SE,ates v. Out1er, supra. However the cases

- 
--

Ei-tea hFein esffiinvoked are mandated
coextensively by the Sixth Amendment Notice Clause.

For example in United States v. C1arkr 546 F.2d 1130 (5ch Cir.
1977), the court charging t,he accused with
making fraudulent representations in a loan aPplication to a
United States agenqf. The court established that it,s scrutiny was
based inter alia on t,he Sixth Amendment's Notice Clause, id. at
1133 nT9i-?-nd-EEbn proceeded to determine whether the indiEEment
adequately identified the alleged fraudulent stat,ements. Since
the indictment specified the approximat,e date on which the
a11eged1y fraudulent representations were made, the precise forms
on which such representations were made, t.he purpose for which
such representations were made, and the entries on the forms
which were not accurate, the court held t,hat the indictment had
sufficiently put the defendant on notice as to the substance of
the alleged f raudulent statements. }[. at 1 1 33- 1 1 34.

By contrast if the indictment, fails reasonably to identify

17

18

42



This indictment did not even begin to descend t,o the

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

bare disjunctive allegation of fraudulent voting, with no

elaboration whatsoever. In Counts II and III, the absentee

ballots are alleged to have been fraudulent; and in Count III,

trls. Bozeman is accused of having knowingly deposited fraudulent

absentee baIlots. But how those ballots became fraudulent, and

what l.{s. Bozeman allegedIy did to effect t,hat unexplained result

is unsaid.

the acts or statements through which the alleged fraud was
perpetrated, iE is constitutionally deficient under the Notice
Clause. See €.g., United States v. Nance, 144 U.S. ApP. D.C.
477,533 r.Z-fro9f(tg urtis, 506 F.2d 985
(10th Cir. 1974'). In Cur tment alleged:
(1) that Curtist busififfiurported to be a computer matching
service for single people; (2) that Curtis sent out 'compatibi-
lity Questionnaires" which he represented would be fed into the
computerr (3) that Curtis took money for this service and placed
ads soliciting customers, (4) that he sent out purported invoices
for computer service work for the purpose of convincing customers
that he was providing computer services; and, (5) that in fact he
contracted for services he did not provide. Id. at 987-989. The
indictment was held defective becauie, while iE stated in detail
the acts used t,o implement the scheme, it did not state what the
actual false promise was. Id. at 987, 989. Quite p1ainly,
however, it came much closer to!-inpointing for Curtis the nature
of the alleged fraudulent statements, and the vehicle used to
perpetrate the fraud, than did the indictment filed against Ms.
Bozeman. See also United States v. Dorfma4, 532 E. Supp. 1118,
124 (N.D. Tfi.-TfB-r t which stiled only
that defendants engaged in a "scheme or artifice ... [t]o obt,ain
money" through fraud, "Is]tanding alone clearly would not meet
the constit,utional requirement of fair notice of the facts
underlying the charge." Id. at 1125).

43



Certainly the mere depositing of more than one absentee

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

would not in itself have constituted fraud. The alleged fraud

had to have occurred during the preparation of those ballots for

casting. The state was required to charge the event or transac-

tion during which the fraud a1leged1y was commit,ted, and the

nagure of the acts by Ms. Bozeman which allegedly constituted

that fraud. Because the indictment failed in this regard, Uls.

Bozeman had no advance warning of which of her activities on

behalf of the effort t,o bring out the black vote among the

elderly in Pickens County was being seized upon by the state as

supposedly fraudulent. This failure to provide constitutionally

required noEice was extremely prejudicial to her abilit,y to

defend herself especially in view of the exPansive array of

grounds and Lheories of liability which.Irrere spun out of the

indictment in the judge's charge to the jury. And if even one or

two of the three counts was insufficient in its factual a1lega-

tions, tls. BozemanIs conviction must be set aside because the

potential prejudice inhering in the defective count or counts

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

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

44



t2t

s 1 7-23-1

In order go satisfy the Sixth and Fourteenth Amendments, the

indicLment was required to notify t'ti. Bozeman of every element of

the of f ense charged. q3e United Stat.es v. Ramos, 666 F.2d 469 |

474 (11t,h Cir. 1982)i ,trnited,s.tafes v. OutIer, 659 F.2d 1306,

1310 (5t,h Cir. Unit B 1981); cert. 9ggi99, 455 U.S. 950 (1982)i

United SEates vo Haasr 583 F.2d 215t reh. deniedr 5SS F.2d 829

(5th Cir. 19781i cert. denied, 440 U.S. 981 (1979)i United

States v. Strauss, 283 F.2d 155, 158-159 (5t,h Cir. 1950). Since

fraud was a necessary element of Ehat offenser $ P. 14 & n.7

ggg3. (discussion of the elements of S17-23-1), each count of the

indictment was required to a1lege that she had act'ed with

fraudulent knowledge or intent.

Both Count I and Count II failed to alleged any fraudulent

knowledge or intent, and $rere t,herefore constitutionally insuff i-

cient. The fact that t,hey htere cast in the precise language of

S17-23-1 -- whose mental element is implicit rather than explicit

does not save them. 'rln an indictment uPon a statute, it is

not sufficient Co set, forth the offence in the words of the

st,atute, unless those words of themselves fu1Iy, directly, and

expressly, without any uncertainty or ambiguity, set forth all

Counts I and
for failure
of t,he of

II were constitutionally insufficient
to al1ege the crucial mental element

fense of fraudulent voting under

45



the elements necessary to constitute t.he of fence intended to be

punished. "' Russ.eIf v. United Sf ates, 359 U.S 749 | 755 (1962)

(quot.ing united states v. carll, 105 u.S. 611t 612 (1882)).

Ordinarily, of course, because each count of an indictment

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

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

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

the indictment or any guilty verdict announced aS to those

counts. See United States v. Huff, 512 F.2d 66, 69 (5th Cir.

1975 ) . But Fls. Bozernan's case is removed f rom the operation of

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

convieted. That form of ,r"td'i"t renders it impossible to

determine on which count or counts the conviction rests. Under

t,hese circumstances, the constitutionally defective counts are

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

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

where it was apparent on the record Ehat the "jury very carefully

considered the evidence on each count and reached its verdict on

the evidence relative thereto.' Rather, Ms. Bozemants situation

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

Cir. 1975), where the court overturned the conviction on a

twenty-two count indictment because of a single defective count

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

felt that there vras a signif icant probabilit,y that the submission

of one defective count to the jury prejudiced the deliberations

46



as a who1e. I3. at 1071-1072. Ms. Bozeman's conviction by a

single verdict of "guilty as charged" upon a1I three counts of

her indictment without different,iation suggests even more

strongly Ehan in ?rqyfus a significant possibility of prejudice;

and the judgment of conviction must therefore fall because of the

unconstitutional failure of Counts I and II to allege each

necessary mental element of S17-23-1.

CONCTUSION

For the reasons stated, the judgment of the dist.rict court

should be affirmed.

Respectfully submitted,

i,ULIUS L. CHAT{BERS
T..AIII GUINIER
NAACP Legal Defense Fund, Inc.
99 Eudson Street
New York, New York 10013
16th Floor
(2121 219-r900

AT{TEONY G. AI.ISTERDAU
New York University
School of Law
40 Washington Square South
Room 327
New York, New York 10012
(212) s98-2638

47



VANZBSIA PEITN DURATIT
639 uartha Street
llontgorcry, Alabaaa 361 08
(20s1 262-7337

STEGFRIED f,ITOPF
555 Caltfornla Street
Sulte 5060
San Franclaco, Callfornla 9ll0{

Attornays f,or Appcllce

{8



CERTIFICATE OF SERVICE

I hereby certify t,hat I have this 1st day of Febr.uary 1985

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

^ placing same in the United States mailr Postage prepaid and

* 
addressed as follows:

P.!1. Johnston
P.O. Box 442
Aliceville, Alabama 35442

LtAl{I GUINIER
ATTORNEY 8OR APPETJLEE

a

49