231 F.3d 800 (11th Cir. 2000), 98-6121, United States v Smith

Docket Nº:98-6121.
Citation:231 F.3d 800
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank SMITH and Connie Tyree, Defendants-Appellants.
Case Date:October 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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231 F.3d 800 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee,


Frank SMITH and Connie Tyree, Defendants-Appellants.

No. 98-6121.

United States Court of Appeals, Eleventh Circuit

October 25, 2000

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Appeals from the United States District Court for the Northern District of Alabama. (No. 97-00045-CR-S-W), C.Lynwood Smith, Jr., Judge.

Before CARNES, BARKETT and MARCUS, Circuit Judges.

CARNES, Circuit Judge:

This appeal arises out of the convictions of Frank Smith and Connie Tyree on a number of federal criminal counts relating to violation of absentee voter laws in connection with the November 1994 general election in Greene County, Alabama. The two of them raise numerous issues on appeal, contending that: (1) the indictment should have been dismissed on the ground of selective prosecution based on race and political affiliation; (2) there was insufficient evidence to convict Tyree on two of the counts of giving false information in violation of 42 U.S.C. § 1973i(c); (3) the United States Sentencing Guidelines were misapplied in sentencing Smith and Tyree; (4) they were convicted on multiplicitous counts; (5) certain evidence relating to absentee ballot affidavits witnessed by Tyree should not have been admitted into evidence; (6) the jury was erroneously instructed regarding Alabama law and "proxy" voting; and (7) Tyree was denied her constitutional right under the Fifth and Sixth Amendments to present witnesses in her defense.

For the reasons set forth below, we conclude that all of Smith's arguments miss the mark, and his convictions and sentence are due to be affirmed in all respects. All but one of Tyree's arguments miss. Her conviction is due to be affirmed except on Count 12; reversal of that part of her conviction makes it necessary that she be re-sentenced.


In January of 1997, Frank Smith and Connie Tyree were charged in a thirteen-count indictment with offenses arising out of the November 8, 1994 general election in Greene County, Alabama. Among the offices to be filled in that election was the office of Member of the United States House of Representatives, a fact which supplies a necessary element of the federal charges. Count 1 of the indictment charged Smith and Tyree with conspiring, in violation of 18 U.S.C. § 371, to vote more than once in a general election by applying for and casting fraudulent absentee ballots in the names of voters without the voters' knowledge and consent, in violation of 42 U.S.C. § 1973i(e), and with conspiring to knowingly and willfully give false information as to a voter's name and

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address for the purpose of establishing the voter's eligibility to vote in the November 8, 1994 general election, in violation of 42 U.S.C. § 1973i(c).1

Count 2 charged Smith and Tyree with voting more than once and aiding and abetting each other and others in the same offense, in violation of 42 U.S.C. § 1973i(e) and 18 U.S.C. § 2. That count alleged that Smith and Tyree voted the absentee ballots of Shelton Braggs, Willie C. Carter, Jr., Cassandra Lee Carter, Sam Powell, Eddie Gilmore, Angela Hill and Michael Hunter without the knowledge and consent of those voters. Counts 3 through 13 charged either Smith or Tyree or both with giving false information on an application for absentee ballot or on an affidavit of absentee voter concerning the names and addresses of Hill, Gilmore, Willie Carter, Cassandra Carter, Braggs and Powell, and with aiding and abetting each other and others in the same offense in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2.2

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Smith and Tyree, who are black, filed a motion to dismiss the indictment on the ground of selective prosecution on the basis of race and political affiliation. After a four and a half day evidentiary hearing, the magistrate judge recommended that the motion to dismiss be denied. Adopting that recommendation, the district court denied the motion. After a seven day trial, the jury found Smith guilty on all seven counts with which he had been charged and Tyree guilty on all eleven counts with which she had been charged.3

At sentencing, the court applied the United States Sentencing Guidelines ("U.S.S.G.") § 2H2.1 and concluded that the appropriate base offense level for Smith and Tyree's offenses was 12. The court then enhanced Smith's sentence two levels for obstruction of justice pursuant to U.S.S.G. § 3C1.1, enhanced Tyree's sentence two levels for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3, and enhanced both sentences four levels for their status as organizers or leaders of criminal activity involving five or more participants pursuant to U.S.S.G. § 3B1.1(a). Those enhancements brought the total offense level for both Smith and Tyree to 18. The court then sentenced Smith and Tyree to thirty-three months of imprisonment on each count to run concurrently, two years of supervised release upon release from custody, forty hours of community service, and the required $50.00 per count assessment fee. They both appealed.


A district court's denial of a motion to dismiss on the ground of selective prosecution involves both conclusions of law and findings of fact. We review the court's factual findings for clear error and its legal conclusions de novo. See Newell v. Prudential Ins. Co. of America, 904 F.2d 644, 649 (11th Cir.1990); United States v. Jones, 52 F.3d 924, 927 (11th Cir.1995) (de novo review of district court decision on selective prosecution); United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.1999) (with motions involving mixed questions of law and fact "[w]e review the factual findings of the district court for clear error and the application of the law to those facts de novo.").

We review challenges to the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences from the evidence in favor and in support of the jury verdict. See United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995); United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir.1993).

We review the district court's application of the Sentencing Guidelines de novo and its findings of fact for clear error. See 18 U.S.C. § 3742(d) ("The court of appeals ... shall accept the findings of fact of the

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district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts."); United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.1999) (factual findings that supported obstruction of justice enhancement reviewed for clear error).

We review whether counts in an indictment are multiplicitous de novo. See United States v. Cluck, 143 F.3d 174, 179 (5th Cir.1998).

We review the district court's evidentiary rulings under an abuse of discretion standard. See United States v. Tokars, 95 F.3d 1520, 1530 (11th Cir.1996).

We review a district court's jury instruction deferentially:

So long as the instructions accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed in the instructions. On appeal, we examine whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled. However, if no objection to the instructions was raised at trial, we only review for plain error.

Starke, 62 F.3d at 1380 (citations and quotations omitted); see also McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1072 (11th Cir.1996); Goulah v. Ford Motor Co., 118 F.3d 1478, 1485 (11th Cir.1997); Jennings v. BIC Corp., 181 F.3d 1250, 1254 (11th Cir.1999).



The reality resulting from limited law enforcement and judicial resources is that not every criminal violation of the United States Code can be prosecuted. The decision as to which crimes and criminals to prosecute is entrusted by the Constitution not to the judiciary, but to the executive who is charged with seeing that laws are enforced. See U.S. Const. Art. II, § 3 ("he shall take Care that the Laws be faithfully executed"). The judiciary cannot interfere with a prosecutor's exercise of charging discretion, except in narrow circumstances where it is necessary to do so in order to discharge the judicial function of interpreting and applying the Constitution.

Prosecutors are given broad discretion in deciding against whom to focus limited prosecutorial resources, and a strong "presumption of regularity supports ... [those] decisions." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996) (citations and quotations omitted). But they must exercise their charging discretion within constitutional constraints, including those "imposed by the equal protection component of the Due Process Clause of the Fifth Amendment." See id. Under that clause, "the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification." Id. (citation and quotation omitted). "A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." Id. at 463, 116 S.Ct. at 1486.

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