Petitioner's Memorandum of Law in Support of Motion for Summary Judgment

    IN

FOR

THE

THE

UNITED STATES DISTRTCT COURT

T4IDDLE i).S,S.tnrcT 
oF ALABAT{A

!1?}lrfi-oMFBY,P,r Y,r 
s I oN

tj, ui,., t . I

{l-

U.S, I' :

JULIA P. WILDER, lii '\'

Pet it ioner ,

against

EALON tl!. LAMBERT, JACK C. LUFKIN AND

JOHN T. PORTER IN THEIR OFFICAL
CAPACITIES AS MEMBERS OF THE ALABAMA
BOARD OF PARDOI{S AND PAROLES, AND

TED BUTLER, A PROBATION AND PAROLE
OFFICER, E}IPLOYED BY THE ALABAMA
BOARD OF PARDONS AND PAROLES,

Respondents. :

-x

PETITIONER'S MEMORANDUM OF

Ii{ SUPPORT OF MOTION FOR SUUTUABI

Civil Action No. 83-H-580-N

LAW
JUDGMENT

> ,)

I



TABLE OF CONTENTS

Page

PRELTMINARY STATEMENT ............... .O"''O' 1

I. SUMMARY JUDGII'IENT IS AN APPROPRTATE
PROCEDURE r.......o.....................'o' 3

II. THE INDICTMENT WAS FATALLY DEFECTIVE ...... 4

A. The Indictment Failed to Provide Fair
Notice of A11 of the Charges on Which
the JurY Was Permitted to Return a
Vgrdict of Gulit .................. ... 5 '

B. The Indictment Failed to Include
Sufficient Allegations on the Charges
of Fraud .o.o.............o........... 15

( 1 ) The factual allegations in each
Count, were insufficient ......... 17

(2) Necessary elements of the crime
were not alleged .. o..... o...... . 21

III. PETITIONER WAS SUBJECTED TO EX POST FACTO
LIABITITY ......o..... o. o..... o. o. o.. "o " ' 24

IV. PETITTONER WAS CONVICTED ON STRICT
LrABrLrrY GROUNDS ......................... 28

1-



PRELI},IINARY STATEMENT

Petitioner Julia P. Wilder was convicted on a three count

indictment of a single unoifferentiated violation of Alabama Code

s 17-23-1 (1975) and sentenced to a Period of five years in the

penitentiary. she is currently on parole in t'he custody of

respondent members of the State Board of Pardons and Parole' The

juogmentwasappealedtotheCourtofCriminalAppealsof

Alabama, which affirmed the conviction on March 31, 1981' WiLder

v. State, 401 So.2d 151. The Court of Criminal Appeals denied a

rnotion for rehearing of the appeal on April 21r 1981. On July

24r 1981 the Supreme court of Alabama denied a petition for writ

of certiorari to the court of criminal Appeals. 401 so-2d 167.

The supreme court of the united states denied a Petition for

writ of certiorari to the court of criminal Appeals on November

16, 1981. 454 U.S. 1057.

The instant federal habeas corpus proceeding was initiated

by the filing of a Petition for a writ of Habeas corpus (hereinafter

,rpetition,,) on June 8, 1983. This memorandum of law is submitted

in support of Petitioner's notion for summary judgment on three

issues raised bY her Petition:
'l . Thatr ES alleged in paragraphs L9-21 of the Petition'

the indictment charging petitioner with violating s 17-23-1

was insufficient to inform petitioner of the nature and cause

of the accusation against herr as required by the sixth and

Fourteenth Amendments .



'l

2. Thatr 8s alleged in paragraph 24 of the Petition,
the instructions to the jury impermissibly broadened S 17-23-1,

so as to create ex post facto liability in violation of the

Due Process Clause of the Fourteenth Amendment.

3. Thatr 8s alleged in paragraph 25 of the Petitionr lhe

instructions permitted petitioner to be convicted on the basis

of strict liability in violation of the Due Process Clause of

the Fourteenth Amendment.



I

SUMMARY JUDGMENT IS AN APPROPRTATE PROCEDURE FOR
ADJUDICATING SOME OF PETfTIONERTS CtAft{S

Rule 11 of the Ru1es Governing Section 2254 Cases in the

United States District Courts provides that u It] he Federal Rules

of Civil Procedure, to the extent that they are not inconsistent

with these rules, may be applied, when appropriate, to petitions

filed under these rules." The Supreme Court of the United States

has specifically held that Fed.R.Civ.P. 55, the rule providing for
summary judgment, is applicable to federal habeas corpus proceed-

ings. EfgSIlS9ge. v. Allison, 43L U.S. 63, 80-81 (L977)i see

also Wright, Procedure for Habeas Corpus, 77 F.R.D. 227, 228

(1978).

There can be no genuine issue as to any material fact relating
to petitioner's claims which are the subject of this Motion for
Summary Judgment. The only facts involved in those claims are the

indictment, and the instructions to the jury. Those facts are re-
flected in the certified transcript of the trial proceedings, submit-

ted on September 2L, 1983 by respondents as Exhibit rJ.rr Accordingly,

petitioner's claims as set forth in paragraphs 19-21t 24 and 25 of
her Petition and as briefed belowr rndy be decided solely as ques-

tions of 1aw and are appropriate for adjudication by summary judg-
L/

ment.

!/ If this Court is unable to determine that petitioner should
prevail as a matter of law on the claims in Paragraphs t9-21,
24 and 25 of her Petition, petitioner does not waive her right
to present additional evidence on these and other claims. Peti-

3-



II
PETITIONERIS INDTCTMENT WAS FATALLY DEFECTIVE
IN THAT IT FATLED TO INFORM HER OF THE NAfURE
AND CAUSE OF THE ACCUSATTON AGAINST HER

The indictrnent filed against petitioner failed to provide

the level of notice required by the Sixth Amendmentrs guarantee

that in all criminal cases the accused sha1l receive'notice of

the nature and cause of the accusation" against her. Each of

these failuresr standing aIone, arnounts to a oenial of constitu-

tionally required notice, while together they add up to a

stunningly harsh and egregious denial of notice, a right which

the Supreme Court has deemed "the first and most universally

recognized requirement of due process." Smith v. OrGrady, 311

u.s. 329, 334 ( 1941 ) .

As alleged in paragraph 19 of the Petition, a number of

charges were submitted to the jury for which the indictment

failed to provide any notice. This failure constituted a denial

of the right to notice of each such charge and the offenses

contained therein. See subsection (A) below. As alleged in

paragraphs 20 and 2l of the Petition, the charges of fraud in

the indictment were deficient in two resPects. They failed to

rnake constitutionally adequate factual allegations of such

1_/ cont inued

tioner is simply asserting that on the basis of the pleadings
and the present state of the record, she is entitled to prevail
as a matter of law on the claims briefed herein. In particulart
petit,ioner Wilder is not moving for summary judgment on her claim
in paragraph 16 of her Petition because she believes consideration
of this claim should be held in abeyance for an evldentiary
hearing. See Petitioner's Response to this Courtrs Order of
December 2t 1983, dt 4 n.1.

4-



fraudr dDd they failed to charge each of the elements of such

fraud in a manner sufficient to meet constitutional notice

requirements. See subsection (B) beIow.

A. Petitionerts indictment was fatally defective
in that it fatlei._to._pf.g.g!e.g fair notice of all of
m.-atriEei-on -irTfcF-trre iurv was perrni€te,i fo
return a verdict of guilty.

As is set forth in paragraph 19 of the Petition, various

statutes and theories of liability as to which the indictment

provided.no notice whatsoever were incorporated into the charges

that the jury was instructed to consider as the basis for a find-

ing that petit,ioner had violated S 17-23-1 by'any kind of

illegal .o. voting.n The indictment filed against petitioner

is set forth in paragraph 18 of the Petition and at Tr. 320 |

Exhibit nJrr of Respondentrs Response to Motion to Furnish

Transcript. In each of its three counts, the indictment ostensi-

bly tracked various provisions of S 17-23-1. It alleged disjunc-

tively with other charges in Count I that petitioner had "vot [ed]

il1egaIIy or fraudulentlyr" and in Counts II and IIf that she

had "cast iIIegal or fraudulent absentee ballots." Only in

Count IfI $ras any factual specification provided; and there it
was alleged that petitioner 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 petitioner of having "vot[ed] ilIegaIIy" or having "cast

i11ega1 ... absentee bal1ots."

5



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

elaborate charges under which petitioner could be convicted of
i1Iegal voting. After reading S 17-23-'l to the jury, he

explained the statuters provision against "any kind of i11ega1

or frauoulent votingn by defining the terms "ilIegaln and

"fraudulent." Tr. 308. Concerning the term "il1ega1," the

jury was instructed that "iIlegal, of course, means an act that

is not authorized by law or is contrary to the 1aw.'Tr. 308.

' The clear import of this instruction was that S 17-23-1rs

prohibition against "any kind of i11egal . o. voting" included

any act found to be 'not authorized by Iaw or ... contrary to
the Iaw. " The violation of the letter of any law in the course

of voting activities would require conviction under S 17-23-1 as

a "kind of iIIegal ... voting.n The trial judge then instructed

the jury on four statutes: Al.a. Code S 17-10-3 ( 1975) [miscited

by the judge as S 17-23-31, Tr. 308-309; A1a. Code S17-10-5 (1975)

lmiscited by the judge as S 17-10-71, Tr. 309-310; AIa. Code S

17-10-7 11975), Tr. 310-311; and A1a. Code S13-5-115 (1975), Tr.

311. None of these statutes or their elements was charged

against petitioner in the indictment. Their terms provlded

numerous new grounds not alleged in the indictment on which to

convict. The jury was thus authorized to find petitioner guilty
under S 17-23-1 if she had acted in a manner'not authorized by

or ... contrary to'r any single provision of any one of a number

of statutes not specified or even hinted at in the indictment.

6-



The following paragraphs summarize certain of the provi-

sions of the four Statutes, and thereby illustrate Some of the

grounds for liabilit,y of which the indictment provided no notice:

The jury was first instructed on S 17-10-3, miscited by the

trial judge as S 17-23-3, which sets forth certain qualifications

as to who may vote by absentee ballot. The trial judge instructed

that under S 17-10-3 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 infirrnity which prevents his attend-

ance at the polls." Tr. 309. Thus a finding by the jury that

one of the absentee voters had not been Physically "prevent [ed]'

from going to the pol1s to vote in the run-off would have

constituted the finding of an "act not authorized by ... or ...

contrary to' S l7-10-3, necessitating petitionerts conviction

under S 17-23-'l even though petitioner was given no notice in

the indictment that such proof could be grounds for liability.

The trial judge then instructed the jury that s 17-10-6,

miscited as S 17-10-7, requires, inter alia, that all absentee

ba1Iots "shall be shrorn to before a notary public" except in

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

institution, or is |n the armed forces. Tr. 309. Further,

under S 17-10-7r the trial judge stated that the notary must

s$rear that the voter "personally appeared" before him. Tr.

310. Accordingly, the evidence that the voters were not present

at the notarLzLng, see Tr. 19-30, 269-270, sufficed to establish

per se culpability under S 17-23-1' althoughr againrthe indict-

7-



ment gave petitioner no warning whatsoever of any such basis for
2/

culpabil ity.-
The trial judge then instructed the jury that s 13-5-115

provides:
nAny person who shall falsely and incorrectly make any
swoin statement or affidavit as to any matters of fact
required or authorized to be made under the election laws,
ge;eral, primary, special or 1oca] of this state shal1 be
guilty of perjuiy. This section makes it illegal to make a

sworn statLrnent, oathr oE affidavit as t,o any matters of
fact required or authorized to be made under the elect,ion
laws of this state."

Tr. 311. Both sentences of this instruction contain egregious

nisstatements concerning S 13-5-1 15. The first sentence repre-

esents a verbatim reading of S 13-5-115 with one crucial error.

The trial judge instructed that S 13-5-115 proscribes nfalsely

and incorrectly" making the sworn statements described in the

statute, when in fact t,he statute proscribes the making of such

statements "falseIy and corruptlyn -- i.e., with criminal intent.

The second sentence of the instruction, which apparently repre-

sents the trial juogers interpretation of S 13-5-115, has the

absurd result of making il1egal every sworn statement duly made

under ttre election laws.

Irrespective of these misstatements, the charging of S 13-5-115

cieprived pet,itioner of constitutionally required notice. Ttre

misstaternents of the terms of a stat,ute which petitioner had no

reason to suspect she was confronting in the first place only

aggravated this denial of due process. ft also constituted a

Z/ It is noteworthy that SS 17-10-5,
witfrin a ltear after petitioner's trial
80-732, p. 1478, SS 3, 4t and no longer
the balIot.

17-10-7 rrrere amended
by Acts 1980, llo.
require notarization of

8-



separate and independent denial of due Process as alleged in

paragraph 24 of the Petition.l/
The trial judge reemphasized the primacy of the notarizing

in the Staters case when, in his final instruction on the

charges against petitioner, he stated that

"the State charges that the defendant witnessed or had
knowledge that a Notary Public falsely notarized or
attested to the authenticity of the ballots by attesting
the persons were before him and so forth as provided in
tne attidavlt. If the ballot was falsely attested to,
then such a ballot srould be illegal and any Person who
participated in a scheme to cast that ballot with knowlege
of that fact would commit the acts prohibited by Section
17-3-1 [sic] of the Alabama code of 1975 if in fact that
ballot was cast. rr

Tr. 313.

Thus, after three of the four Statutes charged for t,he

first time in the instructions and not charged in the indictment

had the effect of making any evidence of petitionerrs participa-

tion in the notari zLng into evidence of per se culpabiliLy

under s 17-23-1, the trial judge underscored the preeminence

in the State's case of participation in the notarizing Process

as one of the grounds for culpability under S 17-23-1. The

indictment contained no allegations which could have put

1/ The trial judge also misread S 17-23-1 in a way which
6xpanded the chlrges against petitioner. He instructed the jury
that S 17-23-1 penalizes one who "deposits more than one ballot
for the same office." Tr.307. In fact S 17-23-1 penalizes one
who "deposits more than one ballot for the same office Ae his
"oi"' ilmpfrasis added). This omission by the trial judgfraEcal-
ty cfranged the meaning of the statute so that the mere physical
alt of depositing two or more ballots at the same election
even ballots deposited on behalf of other voters violates S

t7-23-1. It thus produced a nelf charge against petitioner of
which the indictment provided no notice, since the indictment
had recited the relevant portion of S 17-23-1 accurately.

9



petitioner on notice that her participation in the notarizing

process was violative of S 17-23-1 or in any way criminal.

Yet at trial a large Part of the prosecutionrs case was spent

attempting to prove through the testimony of Mr. Rollins, and

through questions posed to virtually all of the testifying

voters, that the notarizing took place outside of the presence

of the voters and t,hat petitioner participated in that notarizing.

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

provided new grounds for culpability which were crucial to
petitioner's conviction. The failure to allege these grounds

in the indictment violated petitioner's rights under the Sixth

and Fourteenth Amendments.

The only relevant allegations in the indictment were that

petitioner had nvote[d] iIlegaLly" (Count I) or had "cast

i}Iega].o. absentee ballots" (Counts II and III) in the run-off.

These allegations in no way informed petitioner with particu-

larity that she could be prosecuted under the rubric of i11egaI

voting fOr aCtS 'not authOriZed by ... Or .. o COntrary tO" the

four unalleged statutes charged in the instructions. But,

nnotice, 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 affordedr and

must set forth the alleged misconduct with particularitY. t " In

re Gault, 387 U.s. 1, 33 (1967) (citation omitted).

When constitutionally required notice is denied in this

manner the indictment is infected with a fatal defect since

10



rthe notice component of due process refers to the chargern

united states v. Agurs, 427 U.S.97, 112 n.20 (1975).

In fact it is difficult to imagine a more complete way of

rendering the indictment repugnant to the demands of constitu-

tionally required notice. AS the Supreme Court has noteo,

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

DeJonqe v. oregon, 299 U.S. 353, 362 (1937)i see alSO, Pry.
United States, 442 U.S. 1OO, 105 11979)i Jackson v. Virginia,

443 U.S. 3O7t 314 (1979); Presnell v. Georgia, 439 U.S. 14, 15

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

petitioner was plainly subjected to an egregious violation

of the rule that, in order to satisfy the Notice clause of the

Sixth Amendment, an indictment must aIIege each of the essential

elements of every statute charged against the accused. See

Russell v. united states, 369 U.S. 749, 761-766 (19821i United

srates v. Ramosr 666 E.2d 469, 474 (11th Cir. 1982)i United

States v. Outler , 659 F.2d 1305, 1310 (5t,h Cir. Unit B 1981),

cert. denied, 102 S.Ct. 1453 (1982); United States v. Hass, 583

F.2d 216t reh. denied, 588 F.2d 829 (5th Cir. 1978) ' cerE'

denied, 440 U.S. 914 (1978); United States v. Strauss, 283 F.2d
4/

155, 158-159 (5th Cir. 1960).- Here, the indictment failed even

L/ This rule is fu1ly recognized by -the Alabama Courts both
e; a proposition of Allbama law and of federal constitutional
law. -SeL, g-d.., Edward v. Stale , 3!9. So.2d 338, 339 (A1a'
Crim. Ipp. ffig ).@r Alabama 1aw, failure to
include in essential element of the offense in the indictment
is regarded as such a fundamental error that it, renders the
indictment void, and therefore such an objection to the indict-

11



remotely to idenLify 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)' in which it was held that

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

Id. at 558 (citation omitted).

The Cruikshank rule is fundamental to the notice component

of due process. See United States v. Russellr 369 U.S. 7491 765

(1962). It is apposite to this case because "illegal" is

unquestionably a "generic term. " Keck v. United States | 172

U.S. 434, 437 (1899); Gqq@, 605 F.d 1041, 1045

(8th Cir. 1979). An indictment which charges unspecified

illegalities as did petitioner's ln charging her with ivotIing]

i11egaI1y" or 'castIing] i1lega1 ... absentee ballots'r must,

!/ continued

ment cannot be waived. Segr e.9., Barbee v. State, 417 So.2d
G11 (Ala. Crim. App. 195fr AiEews@So.2d 533,
534-535 (Ala. Crj.m. APp. ), cert. denied | 314 So.2d 538 (A1a-
1977)i Carter v. State, 382 So.2d 610 (Ala. Crirn. APP. 1980);
A1fred@o.2o1025,1028(A1a.Crim.App.1980);
EffifrsEETe, 379 So.2d 338, 339 (Ala. Crim. ApP. 1979) ;
Deffinffie, 351 So.2o 683 (ALa. crim. APP. 1977) i
FEii vl-ffiE7 zzz so.2d 600 (A1a. App. 1973) i Fitzsgfard y.
gg4; 303 so.2d 162 (AIa. App. 1974) i Brown v. sE?!e, ?4 so.2d
450 (ela. App. 1946)i Nelson v. Stater 278 So.2d 734 (A1a. ApP.
t973)i Williams v. StaEe, 333 So.2d 510 (AIa. Crim. App.),
af f !d, 333 So.2d 613 (AIa . 1976) i Har{ron v. E!a!g | 249 So.2ci

Whitt, v. State, 370 So.2d 730t 735 (Ala. Crim. ApP. 1974).

12



under Cruikshank "descend to the particulars" and identify the

acts and ulderlying laws which alIeged1y constituted t'he i11egaI-

ities. I<[. In petitionerts situation, Cruikshank required

that the indictment al1ege that petitioner violated S 17-23-1

by failing to conply with each of the four statutes as they were

eventually charged against her in the instructions, and contain

specific factual allegations giving petitioner fair notice of
s/

the acts which vrere allegedly criminal under those charges'-

Such is the conclusion to be derived from Goodloe v. Parratt,

605 F.2d 1041 ($th Cir. 19791t where habeas peEitioner

Goodloe had been convicted in a state court of operating a motor

vehicle to avoid arrest. Under Nebraska Iaw the crime a11eged1y

commit,ted 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. I<!. at '1045. The

Goodloe court found that during trial the prosecution changed

the offense it was relying on as the crime for which Goodloe

was allegedIy resisting arrest. Ig. at 1044-1045. This change

denied Goodloe constitutionally required notice. E. In

addition, irrespective of the change in underlying offenses

at trial, 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

,-/ Had the indictrnent contained such allegations, constitutional
Eotice requirements would have been satisfied at least with regard
to the isiues raised in the claim set forth in para. 19 of the
petition. But subjecting petitioner to liability on such grounds
would stil1 have been impermissible under other constitutionaL
principles, as alleged in paras. 22-25 of the Petition.

13



offense which Goodloe had alleged1y committed

which he was allegedly resisting arrest' The

and because of

indictment there-

fore failed to nallege an essential substantive element." 
-I9,.

at 1046.

The court reasoned:

The indictment uPon which Goodloe was tried charged that
he did, in the words of the statute, nunlawfully operate
a motor vehicle to flee in such vehicle in an effort to
avoid arrest for violating any law of this state." There
is no indication from t,hi; stltutory language thatr ES the
trial court held and instructed the juryr dll- additional
element must be proven for conviction: aciual commission
;;-th; violation of state law for which the defendant fled
ui.""i. -Once prior violation of a specific state statute
became an element of the offense by virtue- of the trial
court tuiing, Cooaloe was entitled not only to notice of
that g.rr.rui factr but also to specific notice of what law
he was alleged to have violated'n

rd. at, 1045. The facts of Goodloe are analogous to petitioner's

case, since the four statutes invoked against Petitioner which

the state faileO to charge in the indictrnent hrere incorporateo

as substantive elements of S 17-23-1 rs prohibition against

i11egaI voting.

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

habeas case analogous to petitioner's, the altering of the

charges against the defendant at, trial was held to have denied

him constitutionally requireo uotice. In its opening argu-

ment 7 ttre tr)rosecution announced that it would seek conviction on

felony-murder grounds, although the defendant had been indicted

by an ohio grand jury only for first degree murder. Id. at 333.

The sixth circuit helo Lhat this switch t,o felony-murder grounds

was a "constructive amendment" of the indictnrent, id' at 33b,

14



and "unquestionably constituteci a denial of
giving appellant fair notice of the criminal

orought against him.'r Id. at 339 ( footnote

Gray v. Rains | 652 F.2d 589 (10th Ci.r. 1981)

due process by not

charges to be

omitted). See aLso

; Von Atkinson v.

Smith, 575 F.2d 819 (1Oth Cir. 1978).

Unless the reasoning of each of these cases is rejected

outright, petitioner must prevail on the merits of her c1aim.

The denial of notice in petitioner's case was even harsher than

in the habeas cases described above, since so many new grounds

for culpability were added against her, some of the new grounds

contained misstatements of law each of which favored the prosecu-

tion, the new grounds represented a substantial retroactive
expansion of the reach of S 17-23-1 and S 13-5-115 as alleged in
paragraph 24 of the Petition, and all of this was done after
petitioner had rested her case. Because the indictment against

petitioner failed to give her "notice of the nature and cause of
the accusationn against her as required by the Sixth Amendment,

her conviction must be overturned.

Petitionerrs indictnent was fata1l defective in that ir
o incLude sufficient al,Ie ations on t e cna es of

fraud to satisfv the Notice Clause

Each count of the indictment filed against petitioner

alleged in the disjunctive that she had in some way employed fraud

through her voting activlties in the run-off. As is set forth in
paragraphs 20-21 of the Petition, these allegations of fraud

failed to provide petitioner with the quantum of notice required

by the Sixth Amendment.

B.

15



The factual allegations in the indictment pertaining to

the charges of fraud failed to set forth the alleged misconduct

with sufficient particularity. The allegatlons stated nothing

more than that petitioner was being accused of voting fraudulently

(Count T') , or of casting fraudulent absentee ballots (Count's II

and III) in the run-off. In Count III only was this latter

allegation elaborated albeit insufficiently to satisfy the

Notice Clause to the extent that petitioner was accuseci of

depositing the fraudulent ahsentee ballots with the Pickens

County Circuit Clerkr and of knowing that the ballots tilere

fraudulent.

In addition, counts I and II failed to allege fraud as

a necessary element of the offense charged against petitioner.

Counts I and II failed to allege that any mens rea whatsoever

was required to convict petitioner. Only in Count III was

petltioner accused of having acted with fraudulent intent.

The prejudice caused by these constitutionally defective

Counts is incalculable since petitioner hlas convicted under a

verdict which conformed to no known form -- an nextra-general

verdict." In a general verdict the jury gives its verdict for

each count without eiaboration as to the findings of fact. See,

generally, 75 Am. Jur.2d Irial S 885 ? 75 Am- Jur- 2d Trial S

111. But in petitioner's case, oespite a three count indictment,

there was merely a single verdict pronouncing her "guilty as

charged" of a single undifferentiated violation of S '17-23-1.

Tr. 332. There is no way of detertnrning under which Count or

Counts the jury convicted petitioner, anci the prejudice owing to

16



a single defective Count therefore

tionerrs conviction. See Stromberg

359 (1938); Terminiello v. Chicago,

requires reversal

v. California,
337 U.S. 1, 5 (1949).

of

283

peti-
U.S.

( 1 ) The factual alleqations in each Count were

constitutionallv insufficient to provide notice

of the nnature and causen of the allegedlv

fraudulent conduct (Petition, paraqraph 20)

In order to pass constitutional musterr EII indictment "mus!

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

stances as will inform the accused of the specific offense, coming

under the general description, with which he. is charged."

United States v. Russell, 369 U.S. 749, 7b5 (1962) (quoting

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

United States v. Rarnos, 666 F.2d 469, 474 (I1th Cir. 1982);

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

B, 1981). Fraud is a "generi.c term" which is insufficient to

provide the constitutionally required notice unless detailed factual

allegations are included in tire indictment. See United States

v. Cruiksh4d!, 92 U.S. 542t 558 (1875), (discussed, supra at

pp. 12-14). The indictment 'must descend t,o the Particulars'
of the acts of the accused which were alleged1y fraudulent and

thus proscribed by the st,atute through the operative effect of

that generic term. See, e.q., United States v. Diecidue, 603 F.2d

535, 547 (5th Cir. 1979).

17



It was inadequate for the State to al1ege ( as it did in

Count III only) t,hat petitioner had deposited fraudulent absentee

ba110ts in the run-off. such an accusation failed to inform

,'the defendant ... of which transaction, or facts lgave] rise to

t,he alleged offense.n United States v. Outler, 659 F.2d 1306,

1310 n.5 (5th Cir. Unit 8r 1981). In order to satisfy the rule

of Cruikshank, the indictment in its charging of fraud was

requireO to set forth the transaction alleged to have Deen

fraudulentr and to inform the accused of what rePreseniations

were alleged to have been used to carry out the fraud. For

example in United States v. Ciarkr 546 F.2d 1130 (5th Cir.

1977 ) , the court ruled on an indicturent charging the accused

with making fraudulent representations in a loan application to

a United Stat,es agency. The court established that its scrutiny

was based inter alia on the Sixth Amendmentts llotice Clause, id.

at 1133 n.97 and then proceeded to deLermine whether the indict-

ment adequately identified t,he alleged fraudulent statements.

Since the indictment specified the approximate date on which the

allegedIy fraudulent representations were made, the precise

forms on which suctt representations were macie, the purpose for

which such rePresentations were made, and the entries on the

forms which were not accurate, the court held that the indictnent

had sufficiently put the defendant on notice as to the substance

of the alleged fraudulent statements. Id. aL 1 133-1 134.

By contrast if the indictment fails reasonably to identify

the acts or statements through which the alleged fraud was

18



perpetrat,ed it is constitutionally deficient under the Notice

clause. see €.g.7 united states v. Nance, 144 U.S. App. D.C.

477,533 F.2d 699 11976)i United states v. curtis, 505 F.2d 985

(1Oth Cir. 1g74). In Curtis, a mail fraud indictment a11e9ed:

1 ) that curtisr business Purported to be a computer matching

service for single peoPlei 2) that curtis sent out "compatibility

Questionnaires" which he represented would be fed into the

computer; 3) that curtis took money for this service and placed

ads soliciting customers; 4) that he sent out'purported' invoices

for comPuter service work for the purpose of convincing customers

that he was providing computer services; andr 5) that in fact he

contracted for services he did not provide. rd. at 987 | 989. The

indictment was held defective because, while it stated in detail

the acts used to implement the scheme, it did not state what the

actual false promise was. Id. at 987 | 989. The indictment was

held defective because, while it stated in detail the acts used

to implement the scheme, it did not state what the actual false

promise was. Id. at 989. Quite plainly, however, it came much

closer to plnpointing for Curtis the nature of the alleged fraud-

ulent Statements, and Lhe vehicle used to Perpetrate the fraud'

than did the indictment filed against petitioner' See a1so,

united states v. Dorfmeq, 532 ?. SuPp. 118t 124 (N.D. I11. 1981)

(passage from indictment whicn stated only that defendants en-

gaged in a "scheme or artifice .o. [t]o obtain money" through

fraucl, "IS]tancling alone clearly would not meet the constitutional

19



5/
requirement of fair notice of the facts underlying the chargen ).-'

Petitioner'S indictment did not even begin to descend to

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

a bare disjunctive allegation of fraud, with no elaboration

whatsoever. In Counts II and III it is a11e9ed that it is the

absentee baLlots which were fraudulent, and in Count III peti-

tioner is actually accused of having knowingly deposited fraud-

ulent absentee ballots. BuL how those ballots became fraudulent,

and what petitioner allegecily oio to effect that unexplained

result is unsaid.

Certainly the mere depositing of more than one absentee

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

would not in itself have constituted fraud or any sort of

illegality. The alleged frauci had to have occurred during the

preparation of those ballots for casting. The State was required

to charge the event or transaction during which the fraud al-

legedly was committed, and the nature of the acts by petitioner

witich alleged1y eommitted that fraud. Because the indictment

failed in this regard, petitioner 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 County was being seized uPon

g-/ Rulings on indictments in federal cases are also premised
6n the Fifih Amendment requirement of indictment by grand jury,
the Federal Rules of Evidence, and federal common law. See,
g1.., United States v. Outler, Supra.. tlowever the cases cited
frEein fes apFf ied in the brief are mandated
coextensively by the Sixth Amendment Notice Clause.

20



by the state as allegedly having constituted fraud. This fail-

ure to provide constitutionally required notice i{as extremely

prejudicial to petitioner's abilit,y 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 judgers

charge to the jury. And even if this Court !{ere to conclude

that only one or two of the three Counts was insufficient in its

factual allegations (petitioner contends that all three of

the Counts were insufficient) -- peti'tionerts conviction must

sti11 be set aside because the potential prejudice inhering in

the defective Count or Counts necessarily infects petitioner's

conviction of a single undifferentiated violation of S17-23-1 by

an extra-general verdict.
(2) The charging of the elements of

fraudulent voting under S 17-23-1 was fatally

paragraPh 21 )

It is indisputable that in order to satisfy the sixth

lynendmentrs notice requirement, the indictnrent filed agalnst

petitioner was required to aIIege accurately that she had

violated each element of the statute charged against her. See

United States v. Ramosr 666 E.2d 469t 474 (l1th Cir. 1982);

United States v. Outlerr 659 F.2d 1306r 1310 (5tfr Cir. Unit B

1981 ) , cert. deniecr, I02 s .ct. 1453 ( 1982 ) ; United St.ates v.

Hass,583 F.2d 216, reh. denied, 588 F.2d A29 (5th Cir. 1978);

cert. cienied, 440 U.S. 9I4 (1978); United States v. Strauss,

<iefective under the Notice Clause (Petition

21



283 F.2d 155, 158-159 (5th Cir. 1960). As construed prior to

petitioner's trial, s 17-23-1 required proof of fraud in order

to convict. Fraud rrras therefore a necessary element of the only

offense ctrarged in the indictment, see Bozeman Memorandum in

Support of Motion for Summary Judgment PP. 5-6 (oiscussion

of the elements of S 17-23-1 ) , and each count of the indictnent

was required to allege unequivocalty that petitioner was guilty

of fraudulent knoVledge or intent. Accord, 9rli.I<!er v. Stater 401

So.2d at 161.

SinceslT-23-Ibyitstermsdoesnotspecifyfraudasa
necessary element of the offers€r such unequivocal allegations

could not be made merely by having the indictment track the

words of the statute. 'tlln an indictment uPon a statute, it is

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

statute, unless those words ful]y, directly and expressly,

without any uncertainty or ambiguity, set forth all the elements

necessary to constitute the offense intended to be punished.l'

Russell v. United states, 369 U.S 749, 765 (1952) (quoting

united states v. carlI, 105 U.S. 611, 612 ( 1882',)). Id.

The indictment was requirecl under the Sixth Amendment to

allege fraud clearly in a manner so that both petitioner and

the jury would know that fraud on her part had to be proven in

order for her to be convicted under S 17-23-1. Both Count I

and Count II failed to a11ege fraud as a necessary element of

S 17-23-1, and therefore both $rere insufficient under the Con-

stitution.
22



It is true that normally, since each count of an indict-

ment 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 does not necessarily inperil 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 petitioner's presents an unusual case

because of the extra-general verdict pursuant to which she

tras convicted. Ig is therefore impossible to overturn the

conviction only insofar as it, rested on the defective counts

because it is impossible to determine on which of the counts

filed against petitioner the jury verdict rested. It is quite

clear that the verciict may have rested on one of the two counts

which failed to alIege each element of the offense.

Under these circumstances, the defective counts inflicted

incalculable preju<lice on petitioner. This is not a case such

as uniteo states v. Berliq, 472 F.2d 1002, 1008 (2nd cir' 1973),

where it was aPParent on the record that the "jury very carefully

considered the evidence on each count and rendered its verdict

on the evidence relative thereto." Rather, Petitioner's Posture

is comparable to United St,ates v. Drevfusr 52S F.2d 1064 (5th

Cir. 1972) | 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 significant probability that the submission

of one defective count to the jury Prejudiced the deliberations

23



as a whole. Id. at 1071-1072. Petitionerrs conviction by a

single verdict of "guilty as chargedn 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 falI because of

the unconstitutional failure of Counts One and Two to aIlege

each necessary element of S 17-23-1.

III

PETITIONER'S CONVICTION WAS OBTAINED IN VIOLATION OT

HER DUE PROCESS RIGHTS IN THAT SEE WAS SUBJECTED TO

EX POST FACTO LIABILITY

As set forth in paragraph 24 of the Petition, the jury

instructions at petitioner's trial impermissibly broadened both

S 17-23-1 and S 13-5-115' subjecting her to ex post facto lia-

bility in violation of the Due Process Clause of the Fourteenth

Amendment. Bouie v. Citv of Columbia, 378 U.S. 347 (1953).

The instructions relevant to this claim have already

been set forLh in the discussion supra, Section II, pP. 5-10.

To summarize, the following instructions violated Bouie: first,

t,he instruction defined the term "i1legal" and incorporateo four

other statutes into the nil1ega1ity" eiement of S 17-23-1;

second, the instructions making petitioner's mere Participation

in the notarizing grounds for culpability under S 17-23-1;

third, the lnstruction nisstating S 13-5-115; fourth, the

instruction expanoing S 17-23-1 by onritting the stat,utory words

',as his vote." Each of these instructions reLroactively enlargeo

the reach of the statutes to which they pertained.

24



The above instructions did away with any form of mens

as a necessary element of culpability under S 17-23-,1 and

provided for conviction on strict liability grou,a".Z/16"

detinition of "i11ega1" allowed conviction "for any act not

rea

authorized by ... or ... contrary to the lawr " without reference

to any element of mental culpability. Each of the four statutes

incorporated into S17-23-1 was defined as requiring no proof of
8/

aly forln of mental culpability.- None of the instructions

describing the liability that could arise from petitioner's

participation in the notari zLng required pr:oof of any sort of

mental culpability. And t,he deletion of the words 'as his vote"

from the text of S 17-23-1 omitted what was at least implicitly

a mens rea requirement: that the defendant must misappropriate a

SeCOno vqte as her own -- i.e.r CaSt "m6rre than one ba]Iot for
2/

the same office as his vote' before conviction could be had.

The elements of S 17-23-I as established prior to petition-

er'S trial are that she employed fraud to vote more than one

Z/ The trial judge diq instruct the jury that-it could convict
petitioner baseE on a finding that sh9_committe<i frauci in the
lourse of her voting activities, Tr. 307-308. But that slas
merely framed as an aLternative ground on which the jury could
convict petitioner.

9/ One of those four statutes S 13-5-115 explicitly
Teguires proof of criminal intent,: that the accused acteo
ncdrruptlt". But the instructions, bY substituting the word
oincoriecllyrn turned S 13-5-115 into a strict liability offense-

2/ See Gordon v. Stale, 52 Ala. 308, 309 (1875); Wilson v.
State , 52 AIa. 299 , 303 ( 1 875 ) .

25



ballot aS her vote. See Memorandum in Support of Bozeman I'lotion

for summary Judgment at 5-6 and 22 n.12. The governing cases in-

terpreting S 17-23-1 had established that all of the provisions

of the statut,e, incluoing the prohibition against "any kind of

i11egaI or fraudulent voting" constitute a unified prohibition

against multiple voting. see wilson v. sta!'e, 52 Ala. 299| 303

(1875) ("[t]he offense denounced by the statute . . . is voting

morethanonceo).UnderthisconstructionrslT-23-ldoesnot
permit the incorporation of other statutes into the offense as

independently sufficient grounds for a finding of "illega1n

voting. Nor can participation in the notarizing of absentee

ballots be per se grounds for culpability. The Alabama Supreme

Court has also construeci S 17-23-1 to require a showing of mens

rea in order to establish }iability. E Gordon v. state, 52

A1a. 308, 309-310 (1875).

Thus in the present case the only grounds on which petitioner

could be convicteo in keeping with due process were that she

voteo more than once through the use of fraud. As $ras established

above, the jury instructions expanded S 17-23-1 well beyond

these grounds.

The instructions thereby gave s 13-5-115 and S 17-23-'l the

effect of ex post facto laws. An ex post facto Iaw "makes an

action done before the passing of the lawr and which was innocent

when done, criminal; and punisheS suCh aCtiont ot t... aggravates

a crime or makes it greater than it was, when committed"'

Bouie v. City of Co1umbia,378 U.S. 347r 353 (1963) (quoting

26



Caloer v. Bu11r 3 U.S. (3 Dal].) 386, 390 (1798). The trial
judge's instructions had precisely those effects. For example,

prior to the instructions, "faIsely and incorrectlyn making a

Sworn statement required under the election laws could not,

without further proof of criminal intent, have warranted criminal

liability. Under the instructions, a prison term of between 2

and 5 years became warranted for such an action.

In BotUe v. City of Co1umbkr 3TS U-S. 347 (1963), the

Supreme Court, after quoting the above language

Bul1, held it to be a violation of due Process

from Calder v.

for a state

court to achieve the effect of an ex post facto 1aw through

judicial construction. 19. at 353.

"rf a judicial construction of a criminal statute
is uneipected and indefenslble by reference to the
law which had been expressed prior to the conduct
in issue, it must not be given retroactive effect. n

Id. at 354t quoting, HaIl, General Principles of Criminal Law 61

(2d ed. 1960).

It is plain that the constructions being challenged by peti-

tioner were unexpected and indefensible. The trial judge's in-

structions on S 17-23-1 in effect rewrote the statute previously

construed in Wilson and Gordon. The actus reus of S 1 7-23-1 was

vastly expanded beyond proscribing multiple votingr So as to

al1ow the incorporation of <iiverse statutes and to reach even

mere participation in the notarizLng Process. The intent

element of S 17-23-1 was abrogated. In effectr d o€w statute

was written. The intent element of S 13-5-1'15 vras sirnilarly

abrogated and that statute was given an absurdly broad reach.

27



Tnese actions denied petitioner oue process of 1aw because

she was denied fair warning of the crime prohibited.

Citv of Columbia, -ggPra, 378 U-S. at 354-55.

In i,larks v. United States' 430 U.S 188 (1977) | the defen-

dant's obscenity conviction was overturned on Bouie grounds and

the Court emphasi zedz "$le have taken special care to insist on

fair warning when a statute regulates expression and implicates

First Amendment values." Id. at 196. A statute like S17-23-1,

which overhangs activities associated with voting and the

gathering together of persons for the advancement of shared

political beliefs, "implicates First Amendment values." See

Petition, para. 22. This implication could hardly be better

illustrated then by the present case, where S 17-23-1 was used

Eo penalize alleged illegalities occurring in the course of an

effort to bring out the black vote among the elderly in Pickens

County.

Thus, heightened scrutiny is required in the present' case

to ensure that petitioner received fair warning of the conduct

which the jury was instructed could be the basis for criminal

liability. But even under the normal scrutiny required by

Bouie, the offenses charged against petitioner in the instruc-

tions were expanded in a retroactive and unforseeable manner in

violation of her due process rights.

Bouie v.

IV

PETITIONER I S CONSTTTUTIONAL
BY HER CONVICTION ON STRICT

RIGIITS WERE VIOLATED
LTABILITY GROUNDS

As set forth in paragraph 25 of the Petition, the subjection

28



of petitioner to harsh criminal penalties on strict liability

grounds denied her the due Process of law guaranteed by the

Fourteenth Anendment.

the jury instructions relevant to this claim have already

been summarized and discussed at pp. 5-10, 24-26 -g3pra- The

plain effect of those instructions was to permit the jury to

convict petitioner on strict liability grounds. IIer participa-

tion in an effort to aid elderly bLacks in Pickens County to

vote by absentee balIot, and in particular her alleged participa-

tion in the notarizing of those balIots, was made criminal per

se with no showing of mental culpability of any sort required.

The power of the states to impose criminal liability without

"any element of scienter ... is not without limitatiOn.r S1qilh

v. Californiar 36l U.S. 147r 150 (1959). In Smith the Court

struck down a California statute which made it criminal for book

vendors to have obscene materials for sale in their place of

business. The Court held t,hat the absence of a scienter require-

ment -- i.€.r dt the very least a requirement that the sel1er

have knowledge of the cont,ents of the materials -- rendered the

stat,ute violative of due Process.

The impact of the 1aw under attack in Smith on protected

First Amendment conduct was a salient factor in the Courtrs hold-

ing. The Court concluded that the statute, because of its strict

liability characteristics, would tend to chil1 the disselnination

of non-obscene writings protected under the First Amendment.

Id. at 152-155.

29



This aspect of the Smith holding bears directly on petitionerrs

case. An effort, such as the one in which petitioner was involved

a gathering together of blacks to aid and encourage other blacks

to vote is the sort of group activity aimed at the 'common

advancement of political beliefs" which invokes the protection

of the First Amendment. Kusper v. Pontikes, 414 U.S. 51, 56-57

(1973). Allowing conviction under S 17-23-1 without proof of mental

culpability is just as likely to deter the exercise of constitu-

tionally protected conduct as was the statute struck down in

Smith. For that reason the strict liability aspect of S 17-23-1

is central to both the claim of applied overbreadth set forth in

para. 22 of the Petitionr and the claim of facial overbreadth

set forth in para. 23 of the Petition-

But the claim set forth in para. 25 of the Petitionr dlrd

briefed herein, is not dependent on the fact that S 17-23-1 was

in fact applied in this case to punish constitutionally protected

conduct. It is enough that a statute regulating voting mdY, if

it imposes strict liability, [ave a chilling effect on the

exercise of constitutionally Protected conduct. In any event,

Smith recognized that limitations are imposed by the Constitution

on the states' powers to exact criminal penalties without

sCienter requirements'even where no freedom-of-expressiOn

question is involved." Id. at 150. Petitiorler's conviction

ran afoul of these limitations. Here, petitioner was denied due

process for the 5o1e reason that She, as a defendant in a

criminal proceeding, was subject to conviction on a strict

30



liability basis for an offense which clearly does not fall
within the narrovi, bounds wherein strict liability is permitted.

The hostility of courts to strict liability offenses has

its roots in the common law. Strict liability critnes are

contrary to fundamental principles of Anglo-American juris-

prudence. As Blackstone wrote, 'to constitute a crime against

human ]aws, there must be, first, a vicious wi11." 81. Comm.

Bk. 4t Ch. II (Chase ed. at 861). The Supreme Court has

repeatedly recognized the repugnance of strict liability crimes

to the centraL tenets of the common law which form the founda-

tion of our jurisprudence. Er g-€., Dennis v. United

gtates, 341 U.S. 494t 500 (1951); Morissette v. United States,

342 U.S. 246, 250-251 (1952). The Alabama Supreme Court has

recognized the same, even in one of the few cases in which

it construed S 17-23-1's predecessor statute, Gordon v. State,

52 AIa. 308, 309 (1875) (nA wrongful act and a wrongful intent

must concur, to cqnstitute what the law deems a crime."). For

this reason, strict, liability crimes have a "generally dis-

favored statusn under the Constitution. United $tates v. U.S.

Gypsum Co., 438 U.S. 422, 437'438 (1978). A long line of

Supreme Court precedent establishes that strict liability

crimes are permissible only in the limited area of what are

defined as public welfare offenses, where the State has a

manifestly strong interest in regulating certain hazardous

activities, and tailors both the reach of the statute and the

penalties for what is ostensibly a regulatory PurPose.

31



For exar0ple, a staEute prescribing strict Iiability v'as

upheld in shevlin-carpenter co. v. !4innesota | 218 U.S. 57

(1910), where the petitioners had been charged under a law

penali zlng the violation of the terms of state logging permits'

The law required no proof that the accused was aware of acting

against the terms of the permit. The law was held const,itution-

ally permissible since petitioners nere engaged in the business

of togging, which the state certainly had a strqng interest in

regulating for the protection of public safety. I9. at 58-59'

In Unit,ed States v. Balint, 258 U.S. 250 (19221 , the Court

upheld a law which provided sanctions for the selling of unreg-

istered drugs, without requiring proof that the defendant knew

the drugs erere subject to registration. Id. at 250-251. In

doing sor it carefully distinguisheo measures aimed at the

regulat,ion and safeguarding of potent,ially dangerous activities'

such aS the selling of drugs, from other laws providing criminal

penalities. I9. at 251-252. In the case of tire former, laws

aimeO at the ',achievement of some social betterment rather than

the punishment of the crimes as in cases of mala in ser" id' at

252, Congress could require the person responsible for the

activity to take special precautions, and could impose sanctions

for failure to do so. Similarly in United States v' Freed, 410

U.S. 601 (1971), it was held permissible to impose sanctions for

the criminal possession of hand grenades upon proving only that

the accused had knowledge that the thing possessed was a grenade'

The highly dangerous nature of the thing Possessed obviated the

32



need to prove mens rea and allowed the government to impose on

the accused the burden of knowing about such regulations. Id.

at 607-509.

These cases thus establish a narrow area of public welfare

offenses where proof of mens g need not be required. Justice,

Blackmun, while a Circuit Judge, synthesized the Supreme Court

Iaw on the subjectT and devised the following criteria for laws

within that areas

Where a federal criminal statute omits mention of intent
and where it seems to involve what is basically a matter
of policy, where the standard lmposed is, under the
cir-cumstlnces reasonable and adherence thereto properly
expected of a Person, where the penalty is relat,ively smaiI,
where conviction does not gravely besmirch, where the
statutory crime is not one taken over from the common law,
and where congressional purpose is supporting, the statute
can be construed as not requiring criminal intent. The
elimination of this element is then not violative of the
due process clause.

Holdridce v. United States | 282 F.2d 302, 310 (8t'h Cir. 1960).

In no way can the application of S 1 7-23-1 to petitioner as

a strict liability offense meet the requirements of due process

under the cases cited above. It is clearly not a statute with

a prinrarily regulatory purPose aimed at persons engaged in

dangerous enterprises. The penalties permit,ted by the statute,

a minimum of two years imprisonraent and a naximum of fiver c€r-

tainly "gravely bestlirch.o Id. The statute is a traCitionaL

malum in se criminal offense, and the absence or removal of nens

rea as an essential element violates due Process.

Such a conclusion is supported by e.9., United States v.

Boerner, 508 F.2d 1064 (5th Cir. 1975), which construe<i a

33



statute providing criminal penalties for the iIIegal transporta-

tion of aliens. The court concluded that "tlles9gE]r.Eg would

be unconstitutional if construeO so as to permit a finding of

guilt without Iguilty] knowledge." Id. at 1068 (emphasis supplied).

See also, Blan@, 299 F.2d 105' 108 (5th Cir.

1962) .

The conclusion is inescapabler then, that the trial judge's

construction of S 17-23-1 to permit conviction of petitioner

without requiring proof of guilty knowledge denied her due process.

The force of this denial is not diminished by the instructions

aLt,ernatively permitting the jury to find guilt based on proof

of fraud. The verdict was a general one. Under Stromberg v'

california, 283 US. 359 (1938), the conviction must be set aside

because the jury might have relied on the impermissible

strict liability grounds to convict petitioner.

In conclusion, for the reasons cited above, s 17-23-1 was

unconstitutional as applied to petitioner.

CONCLUSION

This Court should grant petitioner's motion for summary

judgment, grant the petition for a writ of habeas corpust and

discharge petitioner from the unconstitutional restraints imposed

upon her by her conviction and the conditions of her parole.

34



Dated: January lr, 1984

Of Counsel:

Anthony G. Amsterdam
N.Y.U. Schoo1 of Law
40 Washington Sguare South
Room 327
New York, New York 10012
(212) s98-2638

Siegfried Knopf
Suit,e 5050
555 California Street
San Francisco, California 94104

639 ltartha Street
t'tontgom€EY, Alabama 35108
262-7337

JACK GREENBERG
LANI GUINIER

99 Hudson Street' 15t,h Floor
New York, New York 10013
(212) 219-1900

Attorneys for Petitioner

Respectfully q

35



I certifY that a coPY

served upon Jean Williams

by mailing same to her bY

prepaidr orl this 18th daY

CERTIFICATE OF SERVICE

of the foregoing documents have been

Brown, Esq., Assistant Attorney General,

first class Unit,ed States mail, postage

of Januory, 1984, addressed as follows:

JEAN WrLLrAl,lS BROWN, ESQ.
Assistant AttorneY General
250 Administrative Building
Montgomery, Alabama 35130

a

rl