Brief for Appellee

    rY

IN TEE

T'NITED SIATES COURT OF APPEALS

FOR TBE

ELEVENTE CIRCUIT
' No. 84-7286

UAGGIE S. BOZE}IAN,

Appellee

'V.

EALON It{. LAI{BERTT €t il. r

AppellanEs

On Appeal fron the United States District Court
for the l{lddle Distrlct of Alabana

cv 83-E-579-N

BRIEF FOR APPELLEE

AI{TEONY'G. AIIISTERDAI,T JULIUS L. CEAUBERS
New York University r,ANI GUINIER.
School of Law NAACP Legal Defense Fund, Inc.
40 Washington Square South 99 Eudson Street
Room 327 New York, New York 10013
New York, New York 10012 lSth Floor
12121 s98-2638 (212) 219-1900

SIEGFRIED KNOPF VA}IZETTA PENN DT'F"ANT

555 California Street, 639 lttartha Street
Suite 5050 Montgomery, Alabama 36108
San Franciscor Cal. 94104 (2051 262-7337

ATTORNEYS FOR APPELLEE



I

tr

STATEI|EI{.I REGARDING PREFBRENCE

This appeal is entltled to preference as an appeal from a

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

tt



ll
d.

STATEilET{I REGrnprIG ORAI, AFGT I{?NT

Appellee respectfully requests oral argument. The legal

issues are complex and the conEequences for appellee are atgnifi-
cant.

tlt



TABLE OF CONTENTS

-

STATEMENT REGARDING PREFERENCE ........................

STATEMENT REGARDING ORAL ARGUIT{ENT O " " O " .. " ". O " "'
TABLE oF CoNTENTS ..............................o......

TABLE oF cAsEs ... . .. . .. . .. .. .. o . .. . .. .. . .... .. . . . ... ..

STATEIT{ENT OF TIIE ISSUES ................. o.... o........

STATEMENT oF THE cAsE .................................

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

II. STATEII{ENT oF THE FAcTs .....o................

III. STATEIT{ENT OF THE STANDARD OF REVIEW ........o

SUItll{ARY OF THE ARGUIrIENT .. o............................

STATE!,IENT OF JURISDICTION .............................

ARGUMENT . .. .. . . . . . . . . . . .. . . .. .. .. . .. . .. . .. . . .. .. . . . .. .

I. THE DISTRICT COURT VIEWED THE EVIDENCE
IN TTTE LIGTIT !,1OST FAVORABLE TO THE STATE
AND PROPERLY DETERIT{INED IT WAS INSUFFI-
CIENT AS A MATTER OF FEDERAL CONSTITU-
TIONAL LAW .............. '.' '' o '' ' 'o ' ''' i ' ' ' '

A. The District Court Properly Applied
The RelevanE Law To Conclude The
Evidence Was Insufficient, .. o... o.... o. -

B. In Enforcing Jackson v. Virginia,
The Distric[ a
To Accept State Findings That The
Evidence Was Sufficient o......... o.... o

C. The District Court's View Of The
Evidence was Not Inconsistent With
Factual Findings Of The Alabama
Court. of Criminal Appeals ........... ...

II. THE INDICTMENT AGAINST l'IS. BOZEMAN WAS

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

Page

ii
r11

iv

vi
xi

1

'1

3

9

10

12

12

12

t3

20

22

I.V-

27



l,

Pag_e

A. The Indictment was Constitutionally
Defective In That It Failed To Pro-
vide Fair Notiee Of A11 Of The
Charges On Which The JurY Was Per-
mitted To Return A Verdict of Guilt o... 28

B. The Indictment Was Fatally Defec-
tive In That It Failed To Include
Constitutionally Sufficient Al1e-
gations Concerning The Charges Of
Fraud ..o......................."""'o 39

( 1 ) The factual allegations in
each count were constitu-
tionally insufficient to Pro-
vide notice of the nature and
cause of the allegedIY fraudu-
lent conduct .....................' 41

(2) Counts I and II were consti-
tutionally insufficient for
failure t,o allege the crucial
mental element of t'he offense
of frauduLent vot.ing under
517-23-1 ....................""" 45

coNcLUsIoN ..................... o...................... 47

CERTIFICATE OF SERVICE .............................o.. 49



TABLE OF CASES
#

Case Page

Andrews vl State, 344 So.2d 533 Crim. App.),
Cert. denied , 344 SO.2d 538 (AIa. 197'7 ) ............ 35

BaChellaE V. Maryland , 397 U.S. 564 ( 1970) ............ 40

Barbee v. Statet 417 So.2d 611 (AIa. Crim.
App. 1982) ...................................... o.. 35

BOykin V. Alabafnar 395 U.S. 238 (1969) ................ 39

Bozeman v. Stater 40l So.2d 169i 454 U.S.
1058 ( 1981) ....... ... o o o i o d.... .................... 2t5.r14

23 t24 r25 126

BreWer V. WilliamS, 430 U.S. 387 11977 ) ...............

BfOWn V. A}}en, 344 U.S. 443 ( 1953) ...................

Brown v. St,ate, 24 So.2d 450 (AIa. APp. 1946) .........

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

CoIe vo Arkansas, 333 U.S. 196, 201 (1948) ............

County Court of Ulster County v. Allen, 442
u.s. 140 ( 1979) ...... o.. o...... . o o. ... .............

Cuyler v. Sullivan , 446 U.S. 335 ( I 980) . .. . o. . ....... .

Davidson v. state, 351 So.2d 683 (AIa. Crim.
APp. 1977 ) ....................... ' o " " " ' o " " " "

DeJonge v. oregon, 299 u.s. 353 (1937) -....-..-.......

Dickerson v. State of A1abama, 667 F.2d 1354
(11th Cir. 1982), cert. denied, 459 U.S.
878 (1982 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duncan v. Stynchcombe, 704 F.2d 1213, ( 1'lth
Cif . 1983) ...... o......... o... o... o............. o..

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

Edwards v. State, 379 So.2d 338 (AIa. Crim.
APp. 1979) ................. o." " t" " " "'o " " "'

18 t27

18

35

35

28 r34

39

18r19

35

34

t8

14

34

-vl.

35



Case

Fendley v. State , 272 So.2d 600 (Ala. Crim.
App. 1 9 7 3 ) . . . . . . . . . . . . . . o . " " " o " o " " t " " ' " " '

Fitzgerald v. Stater 303 So.2d 162 (Ala. Crim.
APp. 1974) .................. "" " """"' "' ""'

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir.
1969 ) . . . . . . . . . . . . . . . . . ' ' ' ' ' ' ' ' ' t ' ' ' ' ' ' ' t ' ' ' ' ' ' ' ' ' ' '

Goodwin v. Balkom, 584 F.2d 794 (1lth Cir.
19821 , cert. denied, 1 03 S.Ct - 1798 (1982) .... . . ".

Gray v. Rains, 662 F.2d 589 (1Oth Cir. 1981) ........o.

Gunsby v.'Wainwright, 596 F.2d 654 (5th Cir.
19191, cert. denied, 444 U.S. 946 11979 ) -........ o.

Harmon v. State, 249 So.2d 369 (AIa- Crim.
App.), cert. denied, 249 So.2d 370 (Ala.
197 1) . . . . . . o . . . . o . . . . . . . . ' ' ' ' ' t\' ' ' ' ' ' ' ' ' ' t ' ' t ' ' ' t ' '

Holloway v. titcElroy, 632 F.2d 605 (5th Cir.
1980J, cert. denied, 451 U.S. 1028 (1981) ......."'

In fg GaUlt , 387 U.S. 1 (1967 ) ........................

In fe WinShip, 397 U.S. 358 ( 1970) ....................

Jackson v. virginia, 443 u.s. 307 (1979 ) ..............

Keck v. United St,ates , 172 U.s. 434 ( 1899) ... o........

La Vallee v. Del1e Rose, 41A U.S. 690 ( 1973) ..........

794 (1983) ....................................... o.

Ne1son v. State, 278 So.2d 734 (AIa. Crim.
App. 'l 973 ) . .. ... o.. .... ....... o........ ............

Plunkett v. Estelle, 709 E.2d 1004 (5th Cir.
1983), cert. denied, 104 S.Ct. 1000 -...............

Presnell v. Georgiat 439 U.S. 14 (1978)

Russell v. United States, 369 U.S. 749 (1962) .........

Smith v. OtGrady | 311 U.S. 329 ( 1941) ........... o.....

Page

35

35

36

3s

19

34

21

Passim

35

21

17

35

38

34

34 136
41 ,46

28

18

38

18

-vl.I.-



Case Page

Spray-Bilt v. Intersoll-Rand World Trade, 350' f-.Za 99 (5th Cir. 1965) ............................ 19

Stfeet V. NeW YOfk , 3g4 U.S. 576 ( 1969) ............... 40

StrOmberg V. CalifOrnia, 283 U.S. 359 (1931) .......... 38r39r40

Sgmne; V. Mata, 44g U.S. 539 (1981) .............o..... 10r12r17
20 t21 ,22 r26

Tarpley v. Estelle, 703 F.2d 157 (5th Cir.
lgg3), Ceft. denied, 104 S.Ct. 508 ........o....r...

TerminiellO v. ChiCagO, 337 U.S. 1 ( 1949) .............

TOWnSend V. Sain, 372 U.S. 293 ( 1953) .............. o..

United states v. Ber1in, 472 P.2d 1003 (2nd
Cir. 1973 ) ............. o. ' " " o " " " ' t.t t t t " ' ' " ' '

unit.ed states v. carll, 105 U.S.611 (1882) ........o..

United States v. C1ark, 546 F.2d 1130 (5th
Cir. 1977 ) . . . .. . . . . " " " " " t ' o t " " " " " " " " "

United States v. Cruikshank, 92 U.S. 542
( 1875 ) . . . . . . . . . . . ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' o ' ' ' ' ' o ' ' ' ' ' ' ' ' ' ' ' '

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

United States v. Diecidue, 603 F.2d 535 ( 5t'h
Cir. 1979) ...........o."".."""""""'o"""

United States v. Dorfnanr 532 F. SupP. 11'18
(N.D. I11. 1981) ........'o""""'o...."""""'

United States v. Dreyfus, 528 P.2d 1064 (5th
Cir. 1976) ............."'o"""""..""..""t'

United St,aEes v. Haas , 58 3 F . 2d 216 | reh.
denied, 588 F.2d 829 (5th Cir. 1978),
Ceft. denied | 440 U.S. 981 (1979 ) .. .. o. o...........

united St.ates v. Hess r 124 u.S. 483 (1888) .......""'

United states v. Huff, 512 F.2d 66 (5th
Cif . 1975 ) ...... ................ o........ o... o.....

38

38 r 39,4o

18 t22

42

35r36
41 t42

43

42

43

46t47

34 ,45

41

46

46

46

- v111 -



Caqe

United States v. Nance, 144 U.S. ApP. D-C.
477, 533 F.2d 699 (1976) .............o.............

United States v. Outler, 659 F.2d 1305 (5th
cir. unit B 1981), cert. denied, 445 u.s.
950 ( 1982) . . . . . .. o . . . . . . . . . . . o . . . . . . o . . . . . . . o . . . . . .

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

United Slates v. Strauss | 283 F.2d 1955
(5th Cif. 1960) .... o....... o... o......... o.........

von Atkinson v. smith, 575 F.2d 819 (10th
Cir. 1978) ............. o........... " " " " ' o " " "

Wainwright v. Sykes | 433 U.S. 72 (1977 ) -..... . ... .. ...

wainwright v. witt, 53 u.s.L.w. 4108 (Jan. .

21, 1985) ................."""""""""t"""

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

Wilder v. State, 401 So.2d 151 (Ala. Crim.
App.), cert. deniedr 40l So.2d 167 (Ala.
1981 ), cert. denied , 454 U.S. 1057 (1982) ..........

Williams v. North Carolina, 317 U.S. 287 11942) .......

Williams v. State, 333 So.2d 610 (AIa. Crim.
App.)r affrdr 333 So.2d 513 (AIa.1976) ....o.......

Wilson v. St,ate, 52 AIa.299 (1875) ..............o....

United States Constitution and Statuteq
.

Sixth Amendment . . . o . . . . . . . . . . . . . . . . . . . . . . . . o . . . . . . . . . .

FOUftegnth Amendmgnt .o........ o.......................

28 u.S.C. 52241(c)(3) .................o...............

28 u.S.C. S2254(d ) . o.. . o.. .... .... . o.. ... .. o o...... ...

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

Paqe

43

34 r41
42 ,45

34 r41 ,45

34 r45

38

39

18

38

35

14

2 ,40 ,42

2

12

Passim

12

14

40

1X



Alabana Statutes

AIa. Acts 1980, No.

Ala. Code Sl 3-5-1 1 5

Ala. Code S17-10-3

AIa. Code S17-10-6

AIa. Code S17-10-7

AIa. Code S17-23-1

Other AuthorltieP

75 Am. Jr.2d Trial
75 Am. Jr.2d Trial

80-732, p. 1478, SS3, 4 ...........
( 1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1975) .........................'...
( 1975 ) . . . . . . . . . . . o . . . . . . . . . . . . . o ' ' '

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

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

5885 . . .. . . . . . . . . . . . . . . . . . . . . . . . . o . .

51111 ............................'.

Paqe

31

11 t29
31 ,32

11 ,29 r30

11 ,29
30r31

11 ,29
30r31

Passim

40

40

-x



SI+TEUENT OF rEE r_SSt EEi

f.

Whether the District Court correctly apPlied
the applieable Iaw to find under Jackson v.
Virqiiia, 443 U.s. 307 (1979) that-At_-i;'
EEe-figE't most f avorable 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
accusat,ion against her violates the Sixth
Amendment?

-xl.



UNITED

FOR

IN TBE

STATES COURT OF APPEALS

TEE ELEVENTE CIRCT'IT

No. 84-7286

ITIAGGIE S. BOZETITA}I,

V.

EALON l,t. LAUBERI T €t el. r

Appellee

Appellants

On Appeal fron
for the

the United States District Court
l{lddle District of Alabana

cv 83-E-579-N

SiATEI,IBNT OF TEE CASE

I. PROCEEDINGS BELOW

Indicted on three counts of voting fraud (Alabama Code

S17-23-l (1975)), appellee Dlaggie S. Bozeman was tried by jury in

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

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

the jury returned a single verdict of "guilty as charged" without

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

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

conviction, challenging inter a,lia tr-te sufficiency of t,he

evidence and the constitutionality of the indictment. The

Alabama Court of Criminal Appeals affirmed, holding that the



verdict $ras nnot patently against the weight of the evidence" and

that t,he indictment was adequate. @, 401 So.2d

L67t 171 (1981). After denial of a motion for rehearing, the

issues were present,ed t,o the Alabama Supreme Court and the

Supreme Court of the United States, but both denied certiorari.

Bozeman v. State, 40I So.2d 171; 454 U.S. 1058 (1981).

The instant federal habeas corpus proceeding was initiated

by the filing ": a Petition for a Writ, of Habeas Corpus (herein-

after "Petition") on June 8, 1983. On January 20, 1984, l'ls'

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

evidence offered at t,rial was insufficient to Prove guilt beyond

a reasonable doubt under the Due Process standards of Jackson v.

Virgirlia, 443 U.S. 307 ( 1979 ) , and that the indictment was

insufficient to 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,

1984r and ordered that Ms. Bozemanrs conviction be vacated. The

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

prosecutlon, 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

constitutional rights were violated because the indictment failed

to provide any notice of a number of criminal statutes and

theories of Iiability submitted to the jury.

2-



This appeal was taken on April 27, 1984. On May l, 1984, the

district court granted aPpellants a stay of judgment pending

appeal.

II. STATE}iENT OF TEE FACTS

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

presidentr and long-time civil rights activistr Ytas convicted by

an all-white jury of violating Alabama cbde s17-23-1 because of

her alleged participation in an effort to assist elderly and

illiterate black voters to cast absentee ballots in the Demo-

crat,ic Primary Run-Off of September 26, 1978 (hereinafter

'run-off" ). The three count indictment, charged that she:

COUNT ONE

did vote more than oncer oE did deposit more
than one ballot for the same office as her
voter oE did vote i1legally or fraudulently,
in the Democratic Primary Run-off Election of
September 26, L978,

couNI Two

did vote more than once as an absentee voter,
or did deposit more than one absentee ballot
for the sahe office or offices as her voter oE
did cast illegal or fraudulent absentee
bal1ot,s, in the Democratic Primary Run-of f
Election of SePtember 26, 1978,



COUNT TEREE

did cast illegal or fraudulent absentee
ballots in the Democratic Primary Run-off
Election of Septenber 26, 1978, in that she
did deposit, with the Pickens County Circuit
Clerk, absentee ballots which were fraudulent
and which she knew to be fraudulent, against
the peace and dignity of the state of
AIabama.

tTr. 211'

At trial the prosecut,ion introduced thirty-nine absentee

ballots, TE. 4i, and.claimed that Ms. Bozeman had participaEed in

the voting of these ballots in violation of S17-23-1. 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 Ms. Bozeman had cast or

participated in the casting, filling out or procurement of any of

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

record to indicate who cast those ballots. 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 absent,ee ballots,

and contended that her role in the notarizing was sufficient to

The following abbreviations
Court trial transcript; nHrg.
Judge Truman Hobbsi 'R.' for

will be used: nTr.' for Circuit
Tr.' for Hearing 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; g!. Tr. 90, 105-105.

District Attorney Johnston, in his resPonse to !ls. Bozemanrs

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

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

notarized, and in that sense, they were fraudulent.' Tr. 195. He

stated that "the act of the Defendant in arranging the conference

[at, which the ballots were notarized] and in participating in the

presentation of the ballots to [the notary] to be notarized was

fraud.tr Tr. 196.

The prosecution called only nine of the thirty-nine absentee

voters to testify. Each of these witnesses was elderly r'of Poor

memory, illiterate or semi-literate, and lacking in even a

rudiment,ary knowledge of voting or notarizing procedures. The

Alabama Court of Criminals Appeals found their testimony confu-

sing in several instances. 401 S.2d at 170. The court below

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

R. 166, and when it did it was nsimply incomprehensible." R. 168.

Nevertheless, insofar as any synthesis could be made of the

individual testimony, the court below construed it in the light

most favorable to the prosecution.

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

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

contact with Ms. Bozeman regarding absentee voting.2 (Prosecu-

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

5



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

The court below found that no connection was drawn by even these

voters between l.ls. Bozeman and any of the absentee ballot,s 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 runoffr" R. L65, and that the only evidence

against t{s. Bozeman was the testimony of PauI Rollins, a notary

from Tuscaloosa. Mr. Rollins I testimony was that Ms. Bozeman was

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

she may have calLed to arrange the meetitg, and that she was

present when the notary notarized the ballots afEer the women as

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

testified to never having seen the absentee ballot introduced
into evidence as their vote. 1.1s. Anne Billups (Tr. 97-981, l'ts.
Mattie Gipson (Tr. 110 ), tls. Janie Richey (Tr. 127), and Ms.
Fronnie Rice (Tr. 136-137, 148, 151) each remembered voting by
absentee ballot in the run-off. Mr. Nat Dancy (Tr. 113) did not
provide any coherent testimony whatever on the way in which he
voted in the run-off.
Ms. Spann testified that she did not sign an application or a
ballot, and was told that an absentee ballot was cast in her name
when she went to her usual polling p1ace. The court below found
that "She stated that Bozeman came at some time prior to the
run-off and asked if Spann wanted to vote absent,ee and Spann said
she did not. JuIia Wilder witnessed Spannrs aPPlication.' R.
159. [1s. Sommerville stated in an out-of-court "deposition" that
trts. Bozeman 'may have f iIled in her ballot and that she never
signed the balIot." R. 169. The deposition was not admitted
inLo evidence, i9.7 and, dt trial the witness vehemently denied
its contents. }!.
Mr. Rollins testified that. he notarized the thirty-nine ballots
in his office in Tuscaloosa without the voters being present. Tr.
56-64. He testified that Ms. Bozeman, with three or four other

-5



district court found that all other circumstant,ial indications of

guilt were stricken or were ruled inadmissible. R. L72. The

circumstantial evidence to which the court referred r{as the

testimony of the court clerk and t,he testinony of Mrs. Lou

Sommerville. The court found with regard to the clerk:

Janice Tilley, the court clerk, testified that
Bozeman came in several times to pick up
applications for absentee bal1ots. This was
entirely legal. She also stated that one
time, just prior to the runoff, Bozeman and
Wilder came together in a car, although only
Wilder came int,o the office. Upon objection by
defense counsel, however, the trial judge
struck most of this testimony, including all
references to l{ilder. The only testimony that,
was not stricken was that Bozeman was in a car
alone and did not eome lnside.

R. 166

The court found that Dlrs. Sommervillers testimony about her

ba1lot iras incomprehensible, in part, because the prosecution

attempted to introduce evidence connecting lts. Bozeman with Mrs.

Sommervillers absentee ballot by reading to the jury not,e.s pur-

porting to be the transcript of an out-of-court "deposiEion" of

rlrs. Sommervllle conducted without an attorney present for either

women, was present in the room when he was notarizing the
ballots. Tr. 57. But Mr. Rollins denied Ehat Ms. Bozeman
personally requested him to notarize the ballots. Tr. 59, 60,
62, 64. He also stated t,hat he had no memory of Ms. Bozeman
representing to him that, the signatures on the ballots were
genuine. Tr. 73-74. All the prosecut,ion could elicit from Mr.
Rollins was that tts. Bozeman and the other women present at the
notariz ing were n t,ogether. " Tr. 60-61 , 62 , 64 , 7L.



the witness or us. Bozeman.5 On the stand, Mrs. Sommerville

testified that Fls. Bozeman had never signed anything for herr and

denied ever giving a deposition. R. 169. The court determined

that "Lou Sommerville's deposition was never placed in evidence

and would not have been admissible as substantive evidence

anyway. t R. L72.

The district court concluded:

Although there was convincing evidence to show
Ehat t,he ballots were illegally 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 that
she took applications to any of the votersr or
that she helped any of the voters fill out an
application or ballotr oE that she returned an
application or balIot for any of the voters,
and no ballot was mailed to her residence.
Thus, there rras no evidence that Bozeman
realized when she accompanied lgilder and
others to the office of Rollins that the
ballots she helped to get not,arized were
fraudulent.

R. 772.

Testifying in person, Dlrs. Somerville vehemently challenged the
veracity of the notes represented by the Prosecutor to be a
transcript of her out-of-court statements, and steadfastly denied
that Ms. Bozeman was involved in any way with Mrs. Sommerville's
voting activit,ies. Tr. 163, L69, L73, L74, I75. According to the
out-of-court statements, lls. Bozeman aided [t{rs. Sommerville to
fill out an application for an absentee ballot in order that !lrs.
Sommerville could vote by absentee ballot in the run-off. Tr.
161, 169. Taken in the light most favorable to the prosecution,
even the out-of-court statements -- which were neither admitted
nor admissible in evidence -- showed only that [ts. Bozeman aided
Mrs. Sommerville to engage in lawful voting activities wit,h the
latterrs knowledge and consent.

-8-



After first det,ermining that Ms. Bozeman had exhausted all

her st,ate remedies, the district court applied the JacEsoP v.

Virginia standard and held the evidence insufficient for a

rational t,rier of fact to find guilt beyond a reasonable doubt.

The court also ruled that the indictment was constitutionally

defective.

III., STATEIIIENT OF TBE STNTDARD OP REVIEW

' Appellants' exPlicit contentions on appeal are that the

district 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 wheEher the district court disregarded

appticable legal principles in its analysis of the constitut,ional

merits of the case. Appellants do not explicitly contend that if

the district court analyzed Ms. Bozeman's .I@

claim according to the applicable legal principles, it erred in

finding constitutionally insufficient evidence t,o sustaln her

conviction. If this contention is nevertheless inplied in

appellants' arguments, the standard of review is whether the

district courtrs conclusion is fairly supported by the record as

a whole.

-9



SUITI,IARY OF ARGUIIENT

I. Appellantsr submission Ehat the district court erred

underWand28U.S.C.s2254(d)infai1ingtodefer
to state-court fact findings (or to explain its refusal to do so)

when adjudicating trls. Bozemant" 99g!gg claim is utterly baseless

on this record and in law. fn the first p1ace, the district

court made no findings of historical fact that, differ materially

from those of the stat,e.courEs, it disagreed only with the state

courts' ultimate conclusions regarding the constitutional

sufficiency of the evidence. In the second p1ace, state-court

fact findlngs that lack the minimal evidentiary support demanded

bytheconstitutiona1ru1eof@se1f-evident1y
f all outside t.he scope of the "determination lsl . . . on the merits

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

U.S.C. S2254(d), because, by def inition, they are inot fairly

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

district courtrs explicit conclusion that there cras no constitu-

tionally sufficient evidence to sustain [ts. Bozemanrs conviction

fully satisfied Sumner and 52254(d) at 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. It,s determina-

tion that ghe evidence, taken in the light most favorable to the

prosecution, cras insufficient to sustain a conviction is amply

10 -



support,ed by the record as a whole, and is not based on any

factual findings inconsistent with the Alabama Court of Criminal

Appealsr opinion. Appellantsr 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 found that the trial judge instruct-

ed the jury on four statutes, Ala. Code 517-10-3 (1975) [miscited

Qy.Che trial judge as s17-23-31, TE. 2O2i Ala. Code 517-10-6

(1975) [miscited by the trial judge as 517-10-7lt Tr. 202-203i

AIa. Code 517-10-7 (1975), Tr. 203-204; and Ala. Code Sf3-5-tl5

(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 'not aUthOrized by ... Or ... Contrary tO" any

law would constitute an "illegal' act warranting her conviction

under 517-23-1. Tr. 201. The effect of these instruct,ions was to

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

f or liability under Sf 7-23-1. Yet the indict,ment contained no

allegations that Ms. Bozeman had violated those other statutes or

had engaged in acts which would constitute violations of them.

For these reasons the district court correctly held that the

indictment failed to provide notice of the offenses for which I'ls.

Bozemanrs conviction was actually sought and that her conviction

vras accordingly obtained in violation of due process.

11



I.

STATEIIENT OT JURISDICTION

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).

ARGUIIENT

TEE DISTRICT COT'RT VIEWED THE EVIDENCE IN TEE LIGBT MOST
FAVORABLE TO TEE STATE AND PROPERLY DETERIIINED IT WAS
INSUFFICIENT AS A I'IATTER OF FBDERAL CONSTITUTIONAL LAW.

The district court held under lg!g. v. Virginia, 443 U.S.

307 (1979), that no rational trier of fact could have found l,ts.

Bozeman guilty of the offense charged. Appellants aPParently do

not seek this Courtrs review of t,he correctness of t,hat conclu-

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

they invoke Eggg v. El!3, 449 U.S. 539 (1981), to contend that

the district court 'inexplicably" 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

specify the particular except,ion to 28 U.S.C. 52254(d) r6 on which

it relied. Appellants also contend t,hat the district court did

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

proseeution.

5 Section 2254(d) provides that, subject to
federal habeas corpus courts sha1l accept,
determinations made by state courts.

enumerated exceptions,
as correct the factual

12-



The Dlstrlct Court Properly Applied fhe Relevant Law to
Conclude The Evidence Was Insufficlent

In Jackson v. J.iI9Ej3., the Supreme Court established the

standard by which federal habeas courts should measure the

constit,utional sufficiency of evidence in state criminal Prosecu-

tions. Jackspn analysis begins with an identification of the

elements of the crime under state Iaw. It then requires an

examination of the record evidence with reference to each element

of the crime, deferring to factual findings of the trial court or

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

ends with a determination whether, on 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.

fn the present case, the district court scrupulously

followed the -;lS]< lg standard. It f irst outlined the Jackson

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

cient.' R. 170. See Jackson v. Vlrginia, suprat- 443 U.s. at

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

Iaw, quoting the language of the statute under which tils. Bozeman

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

"'[a]ny person who votes more than once at any
eleetion held in tmts more
than one ballot for the same office as his
vot,e at such election, or knowingly attempts
to vote when he is not entiE-IEA-iildo so t ox
is guilty of any kind of illega1 or fraudulent
voting'- is gultty of
emphasis added. )

A.

13 -



The court referred to relevant, state case law holding that "'the
words'illegal or fraudulent" . . . are. . . descriptive of the

intent necessary for the commission of the offenS€2 rn and t,hat nt

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

oncerr ... or voting when the voter is not entitled to so.' R.

171.7 The two essential elements of knowledge or iLEg!! to carry

out illsgal voging accivi,tv were thus isolated, and the court

then examined the evidence in Eggg to determinb whether these

elements were proved. R. 171-73.

It expressly started f rom the premise that, under ges@,

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

prosecution. . . .' R. 1 70. It further recognized that " Ii]n
determining whether the evidence established [the] ... elements

[of the crime as defined by state law], the court may not resolve

issues of credibility. Duncan [v. St,ynchcombe] , 704 F.2d [ 1213, ]

at 1215 [(11th Cir. 1983)]. Thus, where the evidence conflicts
the court must assume that, the jury accepted the prosecution's

version, and must defer t,o t,hat result. 443 U.S. at 326." Id.

The elements of the offense proscribed by 517-23-1 are employing
fraud to vote more than once. Wilson v. State , 52 Ala. 299, 303
(1875), Wilder v. Q!e!e, 401 SmA-l51r-Ttrd-(Ala. Crim. App.),
cert. aenTEil]fot s6IEI-tsz (A1a. 1981), cert; denied, 454 u.s.
T[57'rIytrfr.

14



Reviewing the trial transcript with these principles in

mind, the district court found that t,he only evidence offered

against lls. Bozeman was that she: (i) picked uP "[aJPProxi-

mately 25 to 3O applications" for absentee ballots from the

Circuit Clerkrs office during the week preceding the run-off, Tr'

18; (ii) was Present with t,hree or four other women, who did not

include the votersr dt the noEarizing of some absentee ballots

which were cast in the run-off, Tr. 57i (iii) may have made a

telephone call to the notary "pertaining to ballotsr' Tr. 76'77i

and (iv) spoke to Prosecution witness Ms. Sophia Spann about

absentee voting when "it wasntt voting timer" Tr. 184. Addition-

a1ly, the court found t,hat lhere was evidence Presented by t'he

prosecution but not admitted by the trial judges (v) that lls.

Bozeman aided IlS. LOu SommervilIe, with MS. Sommervillets

consent, to fill out an aPPlication for an absentee ballot, Tr'

151-162r 169i and 1vi) that in an election held prior to the

run-off, IUs. Bozeman may have aided Ms. Sommerville to fill out

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

observed that evidence on which the state relied in the proceed-

ings below had been stricken from the record by the trial

juage. S R. 171-172.

In the proceeding below, appellants stat'ed that the testimony, at
trial s[rowed that I'ts. Bozeman "went to the court,house with Julia
Wilder the day that she carried all t'hese thirty-five or- forlY
f raudulent Ulttots uP t,here and deposited them in the clerkrs
office.tr (Recrcrd on nppeal, VoI. 2 of 3 at 22-23). The district
court found that the testimony to which appellants referred had
been stricken and the jury inst,ructed to disregard it. R. 172.

15 -



At trial the prosecution had contended that the evidence of

Ms. Bozemanrs presence at the notarization yras sufficient to

establish culpability under $17-23-1 because the voters were not

before the notary. Tr. 195-97. Alternatively, in the court

belowr appellants argued that there was sufficient evidence to

convict l.ls. Bozeman of conspiracyr oE aiding and abetting.

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

conscientiously reviewed the state court record in the light most

favorable to both theories, and rejected both as unsupported by

the evidence under the standards of Jackson V. Virginia. R.

17 2-17 4.

Speclf ically:

"Although there was convincing evidence to
show t,hat the t 39I ballots were illegaIly
cast, there nras' no evidence of intent 'on
Bozeman rs
or helped to forqe the ballots. There is no
e IcEEions to anY of
the voters t ot Ehat she helped any of the
vot.ers f il1 out an aPPlication or ballotr oE
t,hat she returned an application or ballot for
any of the voters, and no ballot was mailed to
her residence. Thus, there was no eyldence
t.hat Bozeman real izea

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

testimony, there was no attempt to
Wilder deposited any ballots. Tr.

t6



Similarly, even under appellantsr theory of aiding and abetting,
rthere . . . rras no evidence of intent. " R. 173. The district

court concluded that:

iThe evidence did not show Bozeman to have
played any role in the process of ordering,
collectingr oE filling out the ballots. The
record alto lacks anv Lvidence of anv conteEE

o
hotarrr's . Thus , there is no evidence to
indicate that Bozeman knew the ballots to be.

Since on this record 'no rrational trier of fact could have found

the essential elements of the crime beyond a reasonable doubtr m

R. 1'10, the district court ruled that the evidence was insuff i-

cient to sustain a constitutional conviction.

Thus, the district courtrs analysis of the record was

conducted precisely as required by gacXg. Its independent

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

prosecution, was entirely consistent with its responsibilities

under 28 U.S.C. 52254(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 t,he credibility

of witnesses at tria1. tlaggio y. Fulf ord t u U.S. _, 76

L.Ed.2d 794 (1983), Sumner v. tlata, sj!3. On questions of

17-



historical fact, the state courtrs findings are controlling

unless there are substantive or procedural deficiencies in the

findingsr oE the findings are not, fairly supported by the record.

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

The deference required by 52254(d), however, applies only to

historical facts. A federal habeas court is not bound by

state-court determinations of questions of 1aw7 or mixed ques-

tions of law and fact t,hat require the application of constitu-

tional principles to historical facts. Cuvler v. Sullivalr, 446

U.S. 335, 342 ( 1980); Brqwer v' llll-litlnE, 430 U.S. 387, 403-04

(19771. @!, Wainwrighg v..Witt, 53 u.s.t.w. 4108 , 4112 (U.S.

Jan. 21 , 1 985 ) . The Supreme Court. exPlicitly reiterated the

principle in Jac_kson , 44 3 U. S . at 31 I , cit ing Lhe leading

opinions which announced it, Townsend v. Sain, 372 U.S. 293, 318

11953); Brown v. A11qn, 344 U.S. 443, 506-07 (1953) (opinion of

Justice Frankfurter). This court has also held consistently in

cases involving questions of law or mixed questions of law and

f act that t,he presumpt,ion of correctness does not apPly. ES9,

€.9., @, 684 E.2d 794, 803-04 (11t,h Cir. 1982) |

cert. denied, 103 S.Ct. 1798 ( 1982); Dickerson v. state of

4l_e_p_e!_q, 667 F.2a 1364, 1368 ( 1 1th Cir. 1982) cert, denied, 459

U.S. 878 ( 1982); Gunsby v. Wainwriglrt, 596 F.2d 654, 655 (5th

Cir. 1979), gS-Et._ @ig5f, 444 U.S. 946 (1979). And the law of

the Circuit is settled that determinations of the sufficiency of

the evidence involve the apPlication of legal judgment requiring

18 -



an independent review of the record. @, 632

F.2d 605, 640 (5th Cir. 1980), cert. deni93, 451 U.S. 1028

( 1981); see also SP.rav-Bi1t, v. I,ntersoll-Rand !{or.].-d-8399-, 350

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

A federal district court which makes a Proper analysis of a

Jackson v, Virginia claim, as the court below did here, affront,s

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

light most favorable to the Prosecution" (R. 170), presuming

"that the Jury accepted the prosecutionrs version" of conflicting

evidence (!$. ), and 'defer Iing] to that result" (!!. ), the court

not merely accepts all findings of historical fact which the

state 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 stat,e court rs ultimate

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,led to a presumption of correctness

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

determlnation of law and fact that requires t,he application of

legal principles to the historical facts ...', 9gyl9.3
Sullivan, supra, 446 U.S. at 341-342i coEP!_fS .l-qg!gon.y-.-

Virginiat 443 U.S. at 318 (nA federal court has a duty to asssess

the historic facts when it is called upon to apply a constitu-

tional standard t,o a convict,ion obtained in a state court').

Against the background of these settled principles, we turn now

19 -



to appellants t argument

morer oE that the court

fulfilment of this duty.

that Sumner v. Mata demands something

below did something less, than the

B. In Enforcing ilackson Yr Ylfglnl-a, the Distrlct Court
was Not nequf?6a--6- ecc-$ffiEe Findings that the
Evldence Was Sufficlent.

Appellants I contention that a federal court enforcing

Jackson v; Vilglgis must give deference to state-court findings

under Sumner v; tlata misconceives the whole polnt of Jackson and

the whole point of $gmqe-r. If this cont,ention had merit, deskE-eq

claims could never be enforced, because it is Qlways the case

that, federal habeas proceedings raising -;=cfson clains are

preceded by ( 1) a state jury f inding t,hat the evidence is

suff icient to prove every element of the offensei 12) a stat,e

trial-court finding t,hat the evidence is sufficient to support

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

that same fact. Federal-court deference to these omnipresent

findings would render the Jackson .decision an exercise in

futility, the 9g$g opinion an absurdity.

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

U.S. at 323 ("The respondents have argued . . . that whenever a

person convicted in a state court has been given a rfull and fair

hearing' in the state system -- meaning in this instance state

appellate review of the sufficiency of the evidence -- further

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

20-



prove far too much.'). fndeed, the precise question debated in

the Jacksgqr opinion lras whether In 59 $!gsh-if , 397 U.S. 358

(1970) required federal habeas courts to review state-court

factual findings to the extent necessary to enforce the federal

constltutional requirement of proof beyond a reasonable doubt as

the condition precedent to a due-process criminal conviction.

Jachsonrs plain, clear ansvrer to that question was yes-

There is nothing in this ansyrer that is inconsistent with

Sumner ln the slightes!. measure. Eggg was based squarely on 28

U.S.C. 52254, and merely held t,hat t'he requirements of 52254

applied to findings of fact of stat,e appellate courts as well as

findings of fact of state trial courts. well before either

S,1ry or J_ackson, it was settled law that federal habeas courts

were required to defer to state trial-court findings of fact,

such as the jury's finding of guilt, or t,he trial judgers finding

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

f ied by 52254 . EE, 9:g:, !3-y3J.1s9 v. De119 E, 41 0 U -s - 690

(1973). The reason why Jackson nonetheless concluded that

federal habeas courts could review these findings independently

to determine whether t,he evidence of guilt was constitutionally

sufficient is obvious. It is that any case in which the 9g@
test of constitutional insufficiency of the evidence is met is g

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

habeas corpus redeterminat,ion of the facts because "the record in

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

21



fairly support Itfre] factual determination" of the jury that

every eLement of guilt was proved beyond a reasonable doubtt ot

t,he f actual f indings of the state trial court and appellate

courts t,hat the evidence was sufficient for conviction. fn

short, every substant,ively valid Jackson claim is, by definition,

within the class of cases in which 52254(d) permits (and Townsend

v. Sain, 372 U.S. 293 (1963), requires) federal habeas corPus

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

neither requires a federal district court to ignore, nor to

"explainr' this patently obvious point.

The Dlstrlct Court I s Vles of the Evidence $las Not
Inconsletent Wlth Factual Flndlngs of the Alabama Court
of Crlnlnal Appeals

Appellants further urge that the court below disregarded

specific findings of historical fact by the Alabama Court, of

Criminal Appeals. They note (Brief aC 18) that Judge Hobbs was

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

"The only evidence against, Bozeman was Rollinsr testimony that

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

rized, that she may have ca1led to arrange the meetingr and that

the ladies as a group represented the ballots to be genuine after

he told them that the signators rrere supposed to be present.' R.

171. Appellants complain that this senEence 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.

This is a quarrel about opinion-writing phraseology and

nothing else. For while appellants contend that the.district

courtrs factual findings were oconsiderably 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 inconsistencies:

"(1) PauI Rollins 'testified that he had talked with
Bozeman about, notarizing the ballotEJ 401 So. 2d
at 169 (enphasis supplied) (as opposed to 'she may
have called')

(21 rUr. Rollins stated . . . that he subseguently
went to Pickens County to find those persons who
had allegedIy signed the ballots. tle had
IBozemanrsl assistance on that occasion, however,
he was not sure he did not go to Pickens County
prior to September 26, 1978.r 401 So. 2d 169 (no
mention of this in the district court opinion)

( 3 ) *;."t'."r""ffx:' 13l 
t33. 

lE"Ii'{.31r31" ,i;:'iT3lltll
court, in contrast, treated her evidence briefly
in section II of its opinion (R. 169) i then, quite
inexplicablyr. ignored the evidence entirely when
it reached the critical summary of the staters
case. (R. 171 )." (Appellants' Brief at 19-20. )

Upon examinat,ion, even these insignificant discrepancies dis-

aPPear.

-23



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

respect to Ehe telephone call simply summarizes the fuller

version of that testimony set forth earlier in the district

court's opinion:

"He [Rollinsl also stated that he received two
ca1ls t,o set uP the meeting, but that, he could
not remember whether Bozeman made e.ither cal1.
He later testified, however, that Bozeman made
one call pert,aining to some ballots, but he
was not Jure whicli bal1o't.s. n (R. 166-6't-i

-mphaETE 
trGa. )- 

-Summing up 1ater, Judge Hobbs understandably described this

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

meeting.n R. 171. The only variation between this formulation

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

that' the Alabama court wrot,e that ltls. Bozeman'had" arranged a

neeting with the notary. The "had/may have' line is plainly a

distinction without a difference, since as with all the

evidence -- Judge Hobbs viewed RoIIins' testimony in the light

most favorable to t,he prosecution.

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

claim t,hat Judge Hobbs did not ment,ion is incorrectly quoted.

Corrected, it becomes irrelevant.9

9 Correctly, nlt{r. Rollins stat,ed . . . that he subsequently went to
Pickens County to find those persons who had allegedly signed the
ballots. He had [Ms. Bozemanrs] assistance on that occasion,
however, he was sure he did not go to Pickens County prior to
September -( EirFhE-sTE-Eda6d'i.-f66fe--'iffigg}/9Ertug\ -9' tJrv. zvl vv.-v .vJ. \s.ur..eu-v sYsYYrt

ffiage Hobbs to mention this incident since it,
occurred af ter t,he run-of f primary in question and involved

-24



(3) The third supposed discrepancy of "fact" ciEed by

appellants is that the stat,e court "relied heavily on the

testimony of Sophie.Spannr" while Judge Hobbs treated her

evidence "briefly. " In summarizing the record, the Alabama Court

of Crininal Appeals did not indicate specifically the facts on

which it based its conclusion that the evidence tdas suff icient,,

saying only that the evidence was circumst,antial and confusing in

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

correct that the Alabama court relied "heavily' on Ms. Spannrs

testirnony, there is nothing in the testimony cited by that court

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

Spannrs absentee ba1Iot. Neither the ballot application nor the

ballot contained a signature purporting to be that of Ms.

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

with regard to Ms. Bozeman is that they were life-Iong friends

who had a conversation about voting absentee 'when it wasnrt

voting time.' Tr. 184.10 rh.t same conversation is described by

another unrelated election. The testimony about it was intro-
duced at trial by the defense to show ltls. Bozeman's good faith
and was not treat,ed otherwise by the Alabama court.

10 According to the Alabama Court, Ms. Spann testified that:
(a) nshe had never voted an absentee ballot, 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 Judg. Hobbs treat,ed the testimony of

lils. Spann'in the same way that he treated all oEher testimony

by highlighting only those aspects of the evidence that could be

viewed as materially supporting trts. Bozemanrs conviction of the

charges in lhe indictment.

Thus, Judge Hobbs did not disregard or disagree with any

facts found by the state appellat,e court. His sole disagreement

was with the state courtrs ultimate conclusion that those facts

added up to suffici€nt proof to allow a reasonable mind to find
Ms. Bozeman guilty beyond a reasonable doubt. The rule laid down

in gummeq y. Malq. 449 U.S. 539 ( 1981), requires t,hat federal

habeas courts must specify their reasons for denying state

factual findlngs a presumption of correctness under S2254(d) if
and w\en Ehev disre,gard those f indings. Slnce Judge Hobbs did

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

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

401 So.2d 169-70.

11 Judge Hobbs'summary of the Spann testimony went as follows:

"sophia Spann testified that she did not sign an
applicatlon 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 runoff and asked if Spann wanted to vote
absentee, and Spann said she did not. Ju1ia
wi}ger E}c-l5gggg sp*"'" gpgl$!.ig." (R.-rfd9T
empnasls aooeo).

-26



not disregard any state-court findings, he iras obviously

obliged to state reasons for doing something that he did not

not

do.

Cf. Brewer v. Wll1iams, 430 U.S. 387, 395-397, 401-405 (19771.

In Brewer both partles agreed to submit the case to the

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 t,o those

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

including the supplemental flndings -- conflicted with t,hose of

the state courts. The supreme court held that the district court,

had fully complied with the strictures of 28 U.S,C. S2254(d). 430

U.s. at 39'l .

Here too, while Judge Hobbs made some additional findings,

none of his findings conflicts with any historical facts found by

the Alabama courts. APPellantsr attempt nor to find some

inconsistency between specific factual findings of the Alabama

Court of Criminal Appeals and the factual findings of the

district court below is groundless.

II. TEE INDICTITTENT AGAINSI !tS. BOZEI,IAII WAS FATALLY DEFECTM IN
TEAT IT FAITJED fO INFORI,I BER OF TIIE NATURE AI{D CAT'SE OF TEE
ACCI'SATION

The indictment filed against Ms. Bozeman failed in numerous

respects to provide the level of notlce required by the Sixth

Amendmentrs guarantee that in all criminal cases the accused



shall receive inotice of the nature and cause of the accusationi

against her. Each of these failures, standing alone, amounts t,o

a denial of constitutionally reguired notice; together, they add

up to a stunningly harsh and egregious denial of notice, a right

which the Supreme Court has deemed ithe first and most universal-

1y recognized requirement of due process.' Smith v. otGrady, 311

U.S. 329, 334 ( 1941); see lrlso C91e .Y. jLrkansas, 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

the jury. lls. Bozeman was tried, 'to put it simply . o. uPon

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

notified.o R. 183. She did not discover the precise charges

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

182. The dist,rict court held that she was thereby denied due

process.

The Indletment glas Congtitutlonally Defective In That
ft Failed To Provide Falr Notlce Of AII Of The Charges
On llhlch The Jury Was Permltted To Return A Verdlct Of
Gullt

The district court not,ed that various stat,ut,es and theories

of liability as to which the indict,ment provided no notice

whatsoever rrere incorporated into t,he charges submitted to the

jury as the basis for a finding that Ms. Bozeman had violated

517-23-1 by 'any kind of illegal ... voting.n The indictment, is

A.

28



set f orth at pages 3-4, :g.8,. In each of its t,hree counts it

ostensibly tracked various provisions of S17-23-1. It alleged

disjunct,ively with other charges in Count I that Ms. Bozeman had

"votledl illegally or fraudulentlyr" and in Counts II and III

that she had 'cast illegal or fraudulent absentee ballot,s. " OnIy

in Count III was any factual specification provided; and there it
yras alleged that Ms. Bozeman had deposited fraudulent absentee

ballot,s. which she knew to be fraudulent. In none of the counts

was any elaboration given to that portion of the charge which

accused l{s. Bozeman of having "vot led] illegalIy" or having 'cast
illegal ... absentee ballots. "

In the instruct,ions to the jury, the trial judge did frame

elaborate charges under which Ms. Bozeman could be convicted of

illega1 voting. After reading 517-23-1 to the jury, he explained

the sEat,uters provision against "any kind of illegal or fraudu-

lent voting" by defining the terms "i1Iegal" and "fraudulent.i
Tr. 201. Concerning the term 'illegalr" he instructed the jury

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

Iaw or is contrary to the law.' Tr. 201. He then instructed the

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

S17-23-37, Tr. 202i Ala. Code S17-10-6 ( 1975) [miscited as

Sl7-10-71, Tr. 202i AIa. Code S17-10-7 (1975), Tr. 203-204i and

A1a. Code S13-5-115 (1975), Tr. 204-205. None of these statutes

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 authorized to f ind lils. Bozeman guilty

under Sl7-23-1 if she had acted in a manner nnot, authorized by or

. . . cont,rary toi any one of the provis ions of a number of

statuEes not specified or even hinted at ln the indictment.

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

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

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

absentee if he will be absent from the count,y on. election day.or.

is afflicted with "any Physical illness or infirmity which

prevents his attendance at the polls." Tr. 202. Thus a finding

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

cally nprevent ledl " from going to the polls to voCe in the

run-off would have constituted the finding of an iact not

authOrized by... or... contrary tO" 517-10-31 D€C€sSitating Ms.

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

notice in the indictment that such proof could be grounds for

I iabil ity.
The trial judge then instructed the jury that S17-10-6,

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

ballots "shalI 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. Tr. 203. Further, under

S17-10-7, the trial judge stated that the noEary must swear that

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

-30-



ingly, evidence that the voters were not present, at the notarLz-

ing, see Tr. 56-64, sufficed to establish Per ae culpability

under S17-23-1 although, again, the indictment gave Ms. Bozeman

no warning whatsoever of any such basis for cu1pability.l2

The trial judge then instructed the Jury that S13-5-ll5

provides:

"'Any person who shall falsely and incorrectly
make any sworn statement or affidavit as t'o
bny matters of fact required or authorized to
be made under the election lawsr 9€n€ra1,'primary, special or local of this state shall
be guilty of perjury. The section makes it
illega1 to make a sworn statement, oath t Qt
affldavit as to any matters of fact required
or authorized t,o be made under t,he election
laws of this. staEe. ri

Tr. 204. Both sentences of this instructlon contain egregious

misstatements concerning S13-5-115, The first sentence rePre-

sents a verbat,im reading of S13-5-115 with one crucial error. The

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

incorrectly" making the sworn statements described in the

statute, whereas in f act the stat,ut,e proscribes the making of

such statements "falsely and corruptlyn -- i;e., with criminal

intent. The second sentence of the instruction, which apparently

12 ft is noteworthy that SS17-10-6 and 17-10-7 were amended several
months after lls. Bozemanrs trial by Acts 1980, No.80'732, p.
1478r SS37 4, and no longer require notarizat,ion of the ballot.

-31



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

the absurd result, of making illegal every sirorn stat,ement duly

made under the election laws.

Irrespective of these misstatements, the charging of

S 1 3-5-1 15 deprived Ms. Bozeman of const,itut,ionally required

noti.ce. The misstatement,s of Ehe terms of a st,atute which Ms.

Bozeman had no reason to suspect she vras confronting in the

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

The district court found 'that the trial courtrs charge, by

explicitly permitting t.he jury to convict llrs. Bozeman of casting

an improperly notarized ba11ot, was especially prejudicial

because the only evidence agrainst Ms. Bozeman was her partici-

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

no allegations 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 person's ballot and failing
to follow.the proper procedure in getting t,hat person's ballot

13 rfre trial judge also misread 517-23-1 in a way which expanded the
charges against Ms. Bozeman. He instructed the jury that
517-23-1 penalizes one who "deposiEs more than one ballot for the
same office.' Tr. 2O1. In fact S 17-23-1 penalizes one who
"deposits more than one ballot for the same office as his vote"
(empnasis added). This omission by the trial jud6'E iffiiGTIy
changed the meaning of the statute so that the mere physical act
of depositing t$ro or more ballots at the same election -- even
ballots deposited on behalf of other voters violates
517-23-1. It thus produced a new charge against [rls. Bozeman of
which the indictment provided no notice.

32-



notarized. " R. 183. Yet, three of the four statutes not charged

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

conviction under S17-23-1 made Ms. Bozemanrs minor Participation
in the not,arizing int,o grounds of Pg se culpability. At trial

a large part of the prosecution's case Ytas spent, attempting to

prove through the testimony of Mr. Rollins, and through questions

posed to virtually all of the testifying voters, that the

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

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

Hence, the charges made for the first time in the instructions

provided new grounds for culpability which were crucial to her

conviction.

The court below held that the failure to aIlege these

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

Fourteent,h Amendment rights. The violat,ion was all the more

signif icant, because evidence of t,he proper element,s of the one

stat,ute charged in the indictment wqs insufficient or nonexis-

tent.
The only relevant allegations in the lndictment were thaL'

Ms. Bozeman had "vote[d] iltegally" (Count I) or had 'cast

iIlegal... absentee ballots" (Counts II and III) in the run-off.

These allegations in no iray informed Ms. Bozeman with particula-

rity t,hat she could be prosecuted under the rubric of illegal

voting for acts 'not authorized by . . . or . .. contrary ton the

four unalleged statutes charged in the instructions. But

-33



t-

" [nlotice, 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." In

re Gault, 387 U.S. 1, 33 (1957).

"Conviction uPon a charge not made would be a
sheer denial of due Process.'

DeJonqe v. Oregon, 299 U.S. 35.3, 362 ( 1937); see also Dunn v.

ulqrted_q!_qleg, 442 U.S. 100, 105 (19791 i Jackson v; Virginia , 443

U.S. 307, 314 (19?9'l i Presnell- v. Georgia, 439 U.S. 14, l6

(1978); Cole v. Arkansas' 333 U.S. 196r 201 (1948).

lts. Bozeman was plainly subjected to an egregious violation

of the rule that, in order Eo satisfy the Notice Clause of the

Sixth Amendment, an indictment must allege each of the essential

elements of every statute charged against t,he accused. ESg

Russe_I1 v. United States, 359 U.S. 749, 761-766 (1952); United

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

States v. Outler, 659 F.2d 1306, 1310 (5th Ci.r. Unit. B 1981),

cert. qSIEg, 455 U.S. 950 119821i United States v., .Haas, 583

F.2d 216, 219 reh. 9SES9, 588 F.2d 829 (5t'h Cir. 1978), cert.

qsljsg, 440 u.s. 981 (19791i united states v..stra,uss, 283 F.2d

-34



155, 158-59

remotely to

(5th Cir. 1960).14 Here, the indictment failed even

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

14 rhis rule is followed by the Alabama courts as a proposition of
both Alabama law and f ederal constitutional Law. ES, €.9. r
Andrews v. State | 344 So.2d 533, 534-535 (AIa. Crim. APp. ), cert.
ffib 539 (Ala. 19771. rn facr, under alabama-Eiil
El[Fre 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 to such an indictmenE

Crim. App. 1980), cert. deniEEi ( 1 980); Edwards v.
stat e ,--379 so.2d-5I8 r lT59-f'AIa. crim. APP . 1979) i DffiTffi'T
ffio^2d 600 fAla- Crim- A.oo- 19731 ; Fitzqerffiffio.2d 600 (Ala. crim. App. 1973); ritzgerffi
so 2rl 162 (A]a- Crim- Aoo^ 19741 : Browh v. State, 24 So.2d 450,So.2d 162 (Ala. Crim. App. 1974)i Browh v.

cannot be waived. See erg., id., @0 417 So.2d 611
(Ara. crim. App.TgfZlTq:i"ter@o.2d 510 (Ala.
Crim^Aoo.1980i]cert.aeniffit4(1980);EdwardsV.

(AIa. App. iges); uelson v. state, 2ffira. crim. App.
1973); wirriams v.ffi2d 610 (Ala. crim. App. ), aff !d,
333 so.ffi); Harmon v. state , 249 so.2d 369-1Ef
crim. App. ), cert. deniedrffi(Ara. 1971 ).

3s



I

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

tal to the notice comPonent of due process. See EllSSff-&
united states', 369 u.s: 749, 755 ( 1962). It is aPPosite t,o this

case because "illegaI" is unquestionably a ngeneric term." {qg!
vo United States, 172 U.S. 434, 437 (1899); Goodloe v. Parratt,

505 F.d 1041, 1045-46 ($th Cir. 19791. An indictment which

charges unspecified illegallties as did Ms. Bozeman's in

charging her with "votIing1 iIlegalIy" or "castIing] illegal ...

absentee ballots" must, under Crui\s4ank, "descend to the

particulars' and identify the acts and underlying laws which

allegedIy constituted the illegalities. L9.. In lls. Bozemanrs

situation, Cruikshank required that the indictment allege that

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

statutes as they were charged against her in the instructions,

and contain specific factual allegations giving her fair notice

of the acts which were alleged1y criminal under those charges.

Such was the conclusion which t,he court below derived from

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

petitioner Goodloe had been convicted in a state court of

operating a motor vehicle to avoid arrest. Under Nebraska law

the crime allegedly committed by the defendant for which he was

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

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

tion changed the offense it qas relying on as Ehe crime for which

36



Goodloe vras allegedly resisting arrest. Ig. at 1044-1045. This

change denied Goodloe constitutionally required notice. Ig. In

addition, irrespective of the change in underlying offenses at

tri.al, the Eighth Circuit held under Cruikshank that Goodloe was

denied constitutionally required notice because the initial

charge against him had failed to include notice of the underlying

offense which Goodloe had allegedly committed and because of

which he was allegedly resisting arrest. The indictment there-

fore failed to nallege an essential substantive element. " Iq. at

1046.15

The facts of Goodloe are analogous to Ms. Bozemanrs case,

since the four statut,es invoked against her which the state

failed to charge in the indictment were incorporated as substan-

tive elements of S17-23-1 's prohibition against illegal voting.

l5 rhe court reasoned:

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

Iq. at 1045.

-37-



4 , watson v. JiBgg, 55.8 F.2d 330 (6th Cir. 1977'). See also

Plunkett v. Estel]er 709 F.2d 1004 (5th Cir. 1983), cert. denied,

104. S.Ct. 1OO0; TpTpley v.. Estelle, 703 F.2d 157 (5th Cir. 1983),

gI!. @!g|, 104 S.Ct. 508; ggay v. Rain.s, 662 F.2d 589 (10th

Cir. 1981); Von Atkinson, v. Smith , 5'7 5 F.2d 819 ( 1Qth Cir. .|978).

The district court followed the basic approach of these cases in

determining that the jgry could reasonably have convicted Ms.

Bozeman of a crime not char.ged in the indictmenE. The courtrs

determination was based on its examination of the trial as a

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

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

rejected appellants' argument that Ms. Bozeman was challenging

the jury charge rather than the indictmentrs failure to provide

fair notice of the charge. As aPpellantsr now realize, "Judge

Hobbs considered the instruction on st,atutes not contained in the

indictment to amount to a constructive amendment to the charging

instrument, allowing the jury to convict the defendant for an

unindicted crime. See 7 Plunkett Y. EsJqlle, 709 F.2d 1004 ( 5th

Cir. 1983)." Brief at 22.

This was ent,irely correct. It was the challenged indictment

which created t.he substantial potential for abuse eventually

realized by the oral charge. ESg Stromberg v. California, 283

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

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

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

-38



being tried on the alternative theory that [she] had committed

one or more stat,utory wrongs in the notarization of ballots. " R.

lB2-83. Because the indictment failed to give Ms. Bozeman fair
onotice 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. l 6

The Indictment Was Fatatly Defective In fhat It Failed
To Include Constitutionally Sufficient Allegations
Concerning The Charges Of Fraud

Additional grounds suPPort the district courtrs judgment

invalidat,ing the indictment. Each count alleged at least in the

alternative that Ms. Bozeman had in some way committed fraud

through her vot,ing activities in the run-off. For the reasons

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

fraud failed to provide the quantum of notice required by the

16 stromberq and Terminiello demonstrate the fallacy of appellantsl
f6Ti=irnE'a on ffilfi'w-rTffi v. Sykes | 433 U.S. 72 (1977 ) (Brief at
21-22). sinceffiault lay in the indictment, no
objections to the jury instructions were required to preserve Ms.
Bozeman's challenge to it. glEes ls inapposite because Ms.
Bozeman properly and consistentlyEcked the indictment for its
failure Lo givJ her adequate notice of the charges throughout the
stat,e proceedings, beginning with her plea filed on Dlay 28t 1979,
and continuing through her motion for a new trial filed on
November 28, 1979. Sykes is inapposite because Itls. Bozeman
raised the notice issuel6iialirect appeal to the Alabama Court of
Criminal Appeals, and that court entertained the issue on the
merits. 401- So.2d at 170. See, €.9:., 9993!Y Cogrl of,u1sler
county v. A1len, 442 u.s. 1E', f\f5a iTffi.= is also
ffii=" the Arabama courts considerffiright to
notice to be so fundamental that objections to indictmenE,s on the
ground of lack of proper notice cannot be waived. Note l4-Fupra;
$=r g-*-, Bovkin v-. Alabam?r 395 U.S. 2381 241-42 (1969').

B.

-39



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

Counts I and II failed to allege fraudulent intent or knowledge

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

failed to allege any ry rea whatsoever. OnIy in Count III was

Ms. Bozeman accused of having acted with fraudulent intent.

The prejudice caused by these constitutionally defective

counts is incalculable since Ms. Bozeman was convicted under what

can only be desCribed as an 'extra-genera1 verdict." In a

general verdict, the jury gives its verdict Jg each counj

without elaboration as to the findings of fact. Ee aenerally 75

Am. Jur.2d Trial 58851, 76 Am. Jur. 2d Trial S1111. But in l'!s.

Bozeman I s case, despite a three-count indictment, t'here was

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

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

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

jury convicted her, prejudice owing to even one defective count

requires the invalidation of her conviction. ES, S:-9:-r.

St,romberg v. California , 283 U.S. 359 ( 1931); WiI]iams v. North

Caro1ina, 317 U.S. 287 119421i Terminiello,v. Chicago, 337 U.S. 1

(1949); Street v. New York, 394 U.S. 576 (1969); Bachellar v.

M.arvland, 397 U.S. 564 (1970).

40



(1) The factual
constitutionally
the nature and

al legat ions
insufficient

cause of the

in each count were
to provide notice of
allegedly fraudulent

conduct

None of the three counts charging fraud stated the asserted-
Iy fraudulent conduct with particularity. The counts alleged
nothing more than that Ms. Bozeman voted fraudurently (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 the constitut.ional require-
ment of fair notice -- by accusing Ms. Bozeman of depositing the
fraudulent absentee ballots with the Pickens County Circuit
Clerk, knowing that the ballots !{ere fraudulent. r

In order to Pass constitutional musterr Elp indictment n tmust

be accomPanied with such a statement of the facts and circum-
stances as will inform the accused of the specific offence,
coming under the generar description, with which he is charged. ''
Russelr v. uLited states, 369 u.s. 749, 765 (1962) (quoting
united states v. Hgss, 124 u.s. 493, 497 (lggg)); see also united
s'tqtes v. Ramos, 666 F.2d 469 , 47 4 ( 11th cir. 1gg2) t united
states v. outl_er, 659 F.2d 1306, 1310 n.5 (5tn cir. unit B,

1981). Fraud is a "generic term" which is insufficient to
provide the constitutionally required notice unless detailed
factual allegations are included in the indictment. See United
sEages v. cruikshank, 92 u.s. s42r 558 (1925) (discussed at pp.

35-37 gpra.). The indictment 'must descend to the particulars"

- 41



of the acts

also United

of the accused which were aIlegedIy fraudulent. See

F.2d 535, 547 (5th Cir.St,ates v. Diecidue, 603

19791.

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

Count III only) that Ms. Bozeman had deposited fraudulent

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

inform "the defendant o.. of which transaction t ot faCts give

rise to the alleged of fense." United States v. out$lr 9gPL1,

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

Cruikshank, the indictment in its charging of fraud was required

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

to inform the accused of what representations trere alleged to

have been used to carry out the fraud.l8

Rulings on indictments in federal cases are also premised on the
Fifth Amendment requirement of indictment by grand jury, the
Federal RuIes of Criminal Procedure, and federal common law.
See, e.q., United States v. Outler, supra. However the cases
Ei-tea hFein es- nbw invoked are mandated
coextensively by the Sixth Amendment Not,ice Clause.

For example in United States v. C1ark, 546 r.2d 1130 (5t,h Cir.
1977), th-e court charging t,he accused with
making fraudulent, representat.ions in a loan aPplication to a
United states agenqf. The crurt est,ablished that its scrutiny was
based inter alia on the Sixth Amendment's Notice Clause, id. at
t133 nlEIlInd-EEtn proceeded to determine wheEher the indiEEment
adequately identified the alleged fraudulent statements. Since
the indictment specified the approximat,e date on which the
allegedly fraudulent representations were made, t.he precise forms
on which such representaEions trrere made, the PurPose for which
such representations were made, and the enLries on the forms
which were not accurate, the court held that the indictment had
sufficiently put the defendant on notice as to t,he substance of
the alleged f raudulent statements. ![. at 1 133-1 1 34.

By contrast if the indictment fails reasonably to identify

17

18

42-



This indictment did not even begin to descend to the

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

bare disjunctive allegation of fraudulent votingr with no

elaboration whatsoever. fn Counts II and III, the absentee

ballots are alleged to have been fraudulenti and in Count III,

Ms. Bozeman is accused of having knowingly deposited fraudulent

absentee ballots. But how those ballots became fraudulent, and

what Ms. Bozeman allegedly did to effect that unexplained result

is unsaid

the acts or statements through which the alleged fraud vras
perpetrated, it is constitutionally deficient under the Notice
Clause. See €.g., United States v. Nance, 144 U.S. App. D.C.
477 , 533 F.llfiegf('i g urris, 506 F. za 985
(l0th Cir. 1974). tn Cur tment alleged:
(1) that Curtis' busiiE3ffiurported 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
clcmputer, (3) that Curtis took money for this service and placed
ads soliciting customersi (4) that he sent out purported invoices
for computer service work for the purpose of convincing cust,omers
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 E stated in detail
the acts used to irplement the scheme, it did not, state what the
actual false promise was. Id. at 987, 989. Quite plainly,
however, it came much closer to-p-inpointing for Curtis the nature
of the alleged fraudulent staEements, and the vehicle used to
perpet,rate the fraud, than did the indictment filed against ttls.
Bozeman. See also United States v. Dorfman, 532 F. Supp. 1118,
124 (N.D. TiT.-TqEl t which stated only
that defendants engaged in a 'scheme or artifice ... [t]o obtain
money" through fraud, '[s]tanding alone clearly would not meet
the constitutional requirement of fair notice of the facts
underlying the charge.' Ig. at 1125).

-43



Certainly the mere depositing of more than one absentee

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

r+ould 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 alleged1y rras committed, and the

nat,ure of the acts by tls. Bozeman which aIlegedIy const,ituted

t,hat f raud. Because the indictment f ailed in this regard, lls.

Bozemah had no advance warning of which of her activities on

behalf of the effort to bring out the black vote among the

elderly in Pickens Count.y was being seized uPon by the state as

su5lposedJ.y fraudulent. This failure to provide constitutionally

required not.ice was extremely Prejudicial to her ability to

defend herself especially in view of the expansive array of

grounds and theories of liability which were 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 allega-

tions, Ms. Bozeman's conviction must be set aside because t,he

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



lzt counts I and II were constltutionally lnsuffieient
for failure to allege the crucial nental element,
of the offense of fraudulent votlng under
s17-23-1 ' " "..."' "". ' ' ' " ""':"

In order to satisfy the Sixth and Fourteenth Amendments, the

indictment was required to notify Mi. Bozeman of every element of

the offense charged. 9- United. States v; Ramos., 666 F.2d 469,

474 (Ilth Cir. 1982)i United.:Stales v. Outler, 659 F.2d 1306,

1310 (5rh Cir. Unir B 1981); cert;9gisjl,455 U.S.950 (1982)'

United SEates v. Eaasr 583 F.2d 216, reh. deniedr 5SS F.2d 829

(5rh cir. 1978); cert. 9sB, 440 U.S. 981 ( 1979); United

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

fraud was'a necessary element of that offense, g p. 14 & n.7

ggg3. (discussion of the elements of 517-23-1), each count of the

indictment was required to allege thaE she had acted with

fraudulent knowledge or intent.

Both Count I and Count II failed to alleged any fraudulent,

knowledge or intent, and were therefore constitutionally insuffi-

cient. The fact that they were casE in Lhe precise language of

SlZ-23-l -- whose mental element is implicit rather than explicit

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

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

sCatute, unless those words of themselves fuIly, directlyr and

expressly, without any uncertainty or ambiguity, set forth aII

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the elements necessary to constitute the offence intended

punished.'" Russell v. United States, 369 U.S 749, 765

(quot,ing United States v. Carl1, 1 05 U.S. 611 , 612 ( 1882 ) ) .

Ordinarily, of course, because each count of an indictment

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

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

fat,al defect in one count would not, impair the other counts of

the indictment or .any 9uilty verdict announced as to those

counts. See United States v. Huff, 512 F.2d 66r 59 (5th Cir.
't975). But !.1s. Bozemants case is removed from the operation of

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

convicted. That form of o"tii.a renders it impossible to

determine on which count or counts the conviction rests. Under

these circumstances, the constitutionally defective counts are

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

United States v. Berlin, 472 F.2d 1002, 1008 (2nd Cir. 19731,

where it was apparent on the record that. the "jury very carefully

considered the evidence on each count and reached its verdict on

the evidence relative thereto." Rather, t'[s. 'Bozemanrs situation

is comparable to , 528 F'.2d 1064 (5th

Cir. 1976), 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 was a signif icant probability t.hat the submission

of one defective count to the jury prejudiced the deliberations

to be

(1e621

46



as a whole. Ig. at 1071-1072. lls. Bozemanrs conviction by a

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

her indictment without differentiation suggests even more

strongly than in Dreyfus a significant Possibility of prejudice;

and the judgment of conviction must therefore fall because of the

unconstitutional failure of Counts I and If to allege each

necessary mental element of S17-23-1.

coNcl,uqroN

For the reasons stated, the judgment of the district court

should be affirmed.

Respectfully subnitted,

JIIETN'_I;-CEAf,BERS
T,ANI GT'INIER
NAACP Legal Defense Fund, Inc.
99 Eudson Street
New York, New York 10013
16th Floor
(212) 219-1900

AIITEOINT G. A}ISTERDAI,T
New York University
School of Law
40 Washlngton Square South
Roon 327
New York, New York 10012
(212) 598-2638

47



VAIfZETTA PETTN DORAIIT
539 ltartha Strcet
llontgonery, Alabana 36108
(20s1 262-7337

SIBGFRIED XISOPF
555 Callfornla Street
Sulte 5060
San Francleco, Callfornta 9lt0l

Attorneys for Appellee

-{8-



CERTIFICATE OP SERVICE

I hereby cert,ify that I have this lst day of February 1985

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

plaeing same in.the United States mailr Postage prepaid and

addressed as follows:

P.tl. Johnston
P.O. Box 442
Aliceville, Alabaina 35442

-EANI GUINIER
ATTORNEY FOR APPEI,LEE

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