United States v. Adams

• Decision Date: 17 July 2013
• Docket Number: 11–5312,11–5336,11–5311,11–5313,11–5308,Nos. 11–5291,11–5337,11–5366.,s. 11–5291
• Citation: 722 F.3d 788
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Douglas C. ADAMS (11–5291), Russell Cletus Maricle (11–5308), William E. Stivers aka Al Man (11–5311), Charles Wayne Jones (11–5312), Freddy W. Thompson (11–5313), William B. Morris aka Bart Morris (11–5336), Stanley Bowling (11–5337), and Debra L. Morris, aka Debbie (11–5366), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

722 F.3d 788

UNITED STATES of America, Plaintiff–Appellee,
v.
Douglas C. ADAMS (11–5291), Russell Cletus Maricle (11–5308), William E. Stivers aka Al Man (11–5311), Charles Wayne Jones (11–5312), Freddy W. Thompson (11–5313), William B. Morris aka Bart Morris (11–5336), Stanley Bowling (11–5337), and Debra L. Morris, aka Debbie (11–5366), Defendants–Appellants.

Nos. 11–5291, 11–5308, 11–5311, 11–5312, 11–5313, 11–5336, 11–5337, 11–5366.

United States Court of Appeals,
Sixth Circuit.

Argued: Jan. 25, 2013.
Decided and Filed: July 17, 2013.

[722 F.3d 798]

ARGUED:John D. Cline, Law Office of John D. Cline, San Francisco, California, Trevor W. Wells, Miller Wells PLLC, Lexington, Kentucky, Jason R. Barclay, Barnes & Thornburg LLP, Indianapolis, Indiana, for Appellants. Scott A.C. Meisler, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:John D. Cline, Law Office of John D. Cline, San Francisco, California, R. Kent Westberry, Bennett E. Bayer, Landrum & Shouse LLP, Louisville, Kentucky for Appellant in 11–5291. Trevor W. Wells, Miller Wells PLLC, Lexington, Kentucky, Russell J. Baldani, Baldani, Rowland, & Richardson, Lexington, Kentucky, for Appellant in 11–5313. Jason R. Barclay, Larry A. Mackey, Barnes & Thornburg LLP, Indianapolis, Indiana, for Appellant in 11–5337. Martin S. Pinales, Candace C. Crouse, Strauss Troy, LPA, Cincinnati, Ohio, for Appellant in 11–5308. Robert L. Abell, Lexington, Kentucky, for Appellant in 11–5311. Scott White, Morgan & Pottinger, P.S.C., Lexington, Kentucky, for Appellant in 11–5312. Jerry W. Gilbert, Coy, Gilbert & Gilbert, Richmond, Kentucky, for Appellant in 11–5336. Elizabeth S. Hughes, Gess, Mattingly & Atchison, PSC, Lexington, Kentucky, for Appellant in 11–5366. Scott A.C. Meisler, United States Department of Justice, Washington, D.C., Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

Before: NORRIS, MOORE, and DONALD, Circuit Judges.

OPINION
KAREN NELSON MOORE, Circuit Judge.

After a seven-week trial, a jury convicted Douglas C. Adams, Russell Cletus Maricle, William E. Stivers, Charles Wayne Jones, Freddy W. Thompson, William B. Morris, Stanley Bowling, and Debra L. Morris on every charge levied against them by the government. Based on cumulative error from the district court's evidentiary rulings identified in this opinion, we VACATE defendants' convictions on all counts and REMAND for a new trial.

I. BACKGROUND

On July 9, 2009, defendants were named in a thirteen-count indictment that charged them with, among other things, conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”) under 18 U.S.C. § 1962(d). The charges stem from defendants' alleged participation in a vote-buying scheme in Clay County, Kentucky that lasted from 2002 to 2007, encompassing three election cycles (2002, 2004, and 2006).

Defendants' scheme allegedly operated as follows. Political candidates pooled money to buy votes and to pay “vote haulers” to deliver voters whose votes could be bought.¹ In order to be paid, voters had to vote for a particular set of candidates, known as a “slate” or “ticket.” To ensure that these voters actually voted for the correct slate, co-conspiring election officers and poll workers reviewed voters' ballots—a practice known in this case as “voting the voter.” Once the proper

[722 F.3d 799]

slate was confirmed, a token (such as a raffle ticket) or marking was given to the voters to confirm that they did in fact vote for the proper slate. Voters with the token or marking were then paid by members of the conspiracy in a location away from the polls. Conspirators retained lists of voters to avoid double payments and to keep track of whose votes could be bought in ensuing elections.

In addition to hiring vote haulers, defendants allegedly utilized other methods of buying votes. Absentee voting and voter-assistance forms helped minimize the difficulty of checking paid voters' ballots. In the latter case, co-conspiring poll workers were permitted to be in the voting booth under the pretext that they were assisting voters; in reality, co-conspiring poll workers were confirming that voters chose the proper slates. When electronic voting machines were introduced to Clay County in the 2006 election, the conspiracy both stole and bought votes. To steal votes, conspirators, typically poll workers, purposefully misinformed voters that they did not need to click “cast ballot” on a screen that appeared after voters had selected candidates for whom they wished to vote. Co-conspiring poll workers would enter the voting booth after the voter exited and change the electronic ballot to reflect the slate before finally casting the ballot.

Election officers are appointed by the Clay County Board of Elections (the “Board”), which must also certify the results. The Board was alleged to be the racketeering enterprise in this conspiracy. It is comprised of the County Clerk, the Sheriff, the Republican Election Commissioner, and the Democratic Election Commissioner. The two Commissioners are responsible for appointing election judges and officers at the various precincts. Defendants held various positions within Clay County, played different roles within the conspiracy, and were charged with numerous offenses. Specifically, the Superseding Indictment, R. 272 (Page ID # 1074–98), alleged the following:

Douglas C. Adams was the Clay County Superintendent of Schools from 1999 to 2007. The indictment alleged that Adams was considered a political boss in Clay County and an associate and director of the enterprise, the Clay County Board of Elections. As a leader of the conspiracy, Adams was alleged to have exerted influence over the selection of precinct workers and the appointment of corrupt members of the Board. The indictment also alleged that he recruited individuals to run for county offices on a slate that would benefit the conspiracy. Adams was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1) and conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2). The government also sought forfeiture against Adams under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).

Russell Cletus Maricle was an elected circuit court judge for the 41st Judicial Circuit of the Commonwealth of Kentucky from 1991 through 2007. The indictment alleged that Maricle was considered a political boss in Clay County and an associate and director of the enterprise. As a leader of the conspiracy, Maricle—like Adams—was alleged to have exerted influence over the selection of precinct workers and the appointment of corrupt members of the Board. Also like Adams, the indictment alleged that Maricle recruited candidates for the slate. Maricle was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), obstruction of justice and/or aiding and abetting its commission under 18 U.S.C. §§ 1503 and 2 (Count 8), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes

[722 F.3d 800]

under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Maricle under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).

William E. “Al Man” Stivers was appointed as election officer by the Board in 2002 and 2004. He served on the Board as the Democratic judge for the Manchester precinct in 2002 and 2004. The indictment alleged that Stivers used his position as an election officer to commit extortion and bribery. As a conspiring election officer, he was also responsible for marking the hands of voters who had sold their votes and for stealing votes on the machines introduced in the 2006 election. Stivers was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), attempted extortion under 18 U.S.C. § 1951 (Count 4), obstruction of justice and/or aiding and abetting its commission under 18 U.S.C. §§ 1503 and 2 (Count 8), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Stivers under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).

Charles Wayne Jones was as an election officer during the period of the charged conspiracy. Jones was appointed as the Democratic Election Commissioner in 2000 and served until 2007. He was a member of the Clay County Board of Elections during the election cycles of 2002, 2004, and 2006. The indictment alleged that Jones appointed corrupt election officers and instructed those officers on how to purchase and steal votes. Jones was also responsible, as a Commissioner and a Board member, for certifying the accuracy of election results (which he knew to be false). Jones was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), honest-services mail fraud under 18 U.S.C. §§ 1341 and 1346 (Counts 3, 5, 6, and 7), attempted extortion under 18 U.S.C. § 1951 (Count 4), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Jones under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).

Freddy W. Thompson was elected as Clay County Clerk in 2002 and served until 2007. By virtue of that position, Thompson was also a member of the Board of Elections during the election cycles of 2004 and 2006. The indictment alleged that Thompson provided money to be distributed by election officers to buy votes and instructed officers in the 2006 election on how to steal votes. Thompson was also responsible, as a Board member, for certifying the accuracy of election results (which he allegedly knew to be false). Thompson was charged...