U.S. v. Hogue, 85-7518

• Citation: 812 F.2d 1568
• Decision Date: 30 March 1987
• Docket Number: No. 85-7518,85-7518
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Spencer HOGUE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1568

812 F.2d 1568

UNITED STATES of America, Plaintiff-Appellee, v. Spencer HOGUE, Jr., Defendant-Appellant.

No. 85-7518.

United States Court of Appeals, Eleventh Circuit.

March 30, 1987.

Richard D. Horne, Hess, Atchison & Horne, Mobile, Ala., C. Lani Guinier, New York City, Deval L. Patrick, Hill & Barlow, Boston, Mass., for defendant-appellant.

J.B. Sessions, III, U.S. Atty., E.T. Rolison, Jr., Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, Chief Judge, CLARK, Circuit Judge, and DOYLE ^*, Senior District Judge.

DOYLE, Senior District Judge:

This is an appeal from a district court order denying a motion to dismiss, on grounds of collateral estoppel, an indictment charging appellant Hogue with endeavoring to obstruct justice, in violation of 18 U.S.C. Sec. 1503. ¹ Hogue contends a factual issue predicate to a conviction of the crime charged in the present indictment was decided in his favor in an earlier criminal prosecution in which he was acquitted. We conclude appellant has failed to meet his burden of persuasion, by convincing and competent evidence, that the issue he seeks to foreclose in the present case must necessarily have been decided in his favor in the earlier case.

FACTS ²

I. The earlier case (no. 85-00014)

A. The indictment

On January 25, 1985, in the United States District Court for the Southern District of Alabama (case number 85-CR-00014), a grand jury returned a twenty-nine count indictment. Hogue, Albert Turner and Evelyn Turner are named as defendants in counts 1 through 27, only Albert Turner in count 28, and only Hogue in count 29.

1. Count 1

Count 1 alleges that in violation of 18 U.S.C. Sec. 371, beginning on or about August The conspiracy was to be executed by: approaching and urging citizens to cast absentee ballots; assisting in executing and submitting applications for absentee ballots; ascertaining when the blank absentee ballots were sent to the applicants and then visiting the applicants; attempting to persuade the absentee voters to vote for defendants' slate and observing the marking of the ballots; encouraging the absentee voters to execute false oaths on the absentee ballots that the voters were entitled to vote absentee because of travel or physical incapacity; taking physical custody of the absentee ballots once they had been marked; opening and fraudulently changing those ballots that had not been marked for defendants' slate; notarization of oaths by absentee voters who were unknown to the notary and who had signed the oaths outside her presence; and affixing stamps to the absentee ballots which had been obtained and altered in the manner described and placing them in the mail for transmission to the Perry County circuit clerk for tabulation.

1, 1984 and continuing through on or about September 5, 1984, Hogue and the Turners and others conspired: (1) to use the mails, in violation of 18 U.S.C. Sec. 1341, in furtherance of a scheme to defraud the citizens of Perry County, Alabama, and of the state of Alabama of a fair and impartial Democratic primary election on September 4, 1984; and (2) to vote more than once, in violation of 42 U.S.C. Sec. 1973i(e), in that primary held in part for the purpose of selecting candidates for the United States Senate. The object of the conspiracy was to secure the nomination of candidates endorsed by an organization to which Hogue and the Turners belonged.

Overt acts were performed by the defendants in furtherance of this conspiracy and to accomplish its purposes. These overt acts include 24 specifically described in the indictment. Eleven of the 24 overt acts were performed only by Albert Turner; each occurred on or about September 1, 1984; each involved a meeting by Turner with 1 of 11 named voters for the purpose of procuring her or his absentee ballot. ³ Four of the 24 overt acts were performed only by Hogue; each occurred on or about September 1, 1984; each involved a meeting by Hogue with 1 of 4 named voters for the purpose of procuring her or his absentee ballot; one of the 4 said voters was a Will Fuller. ⁴ Seven of the 24 overt acts were performed only by Evelyn Turner; each occurred on or about September 2, 1984; each involved notarizing or signing as a witness an absentee ballot of 1 of 7 named voters. ⁵ Two of the 24 overt acts were performed by Hogue and the Turners; they occurred on or about September 3, 1984. One involved a meeting for the purpose of discussing the subject of absentee ballots; the other, entering a post office for the purpose of placing in the mail the absentee ballots referred to in the first 22 overt acts. An aggregate of 18 different voters are named in one or more of the 24 alleged overt acts.

2. Counts 2 through 27

Each of counts 2 through 27 alleges that in violation of 18 U.S.C. Sec. 1341, beginning on or about August 1, 1984 and continuing through on or about September 1, 1984, Hogue and the Turners and others devised a scheme to defraud the citizens of a fair and impartial Democratic primary election on September 4, 1984. The object of the scheme was to secure the nomination of defendants' slate. The scheme was to be executed by the same behavior on the part of the defendants as that described in count 1: approaching voters to persuade them to apply for absentee ballots; assisting them with the applications; approaching the voters again when the absentee ballots reached them, to persuade them to Each of counts 2 through 27 then proceeds to allege that on or about September 3, 1984, Hogue and the Turners, for the purpose of executing the scheme and attempting to do so, placed in the mail to the election official an envelope containing the altered absentee ballot of a specifically named voter. ⁶ The 26 voters specified in counts 2 through 27 include all of the 18 persons who are also named as absentee voters in count 1; Will Fuller is among the 18. The list of 26 includes 8 persons who are not named as absentee voters in count 1. Thus, a total of 26 absentee voters are named in the indictment.

mark the ballots for defendants' slate and to encourage the voters to execute false oaths explaining why it was necessary for them to use absentee ballots; taking custody of the executed absentee ballots and changing the markings as necessary so that they designated defendants' slate; notarizing them despite the absence of the notary at the time the oaths were signed by the voters; and mailing the ballots to the Perry County Circuit Clerk for tabulation.

3. Counts 28 and 29

Counts 28 and 29 allege that in violation of 42 U.S.C. Sec. 1973i(e), Albert Turner and Hogue, respectively, voted more than once in the September 4, 1984 primary election.

4. Modification of indictment

As submitted to the jury, the indictment no longer included 7 of the 22 overt acts originally alleged in count 1, and it no longer included 8 of the 29 counts that originally appeared in the indictment. ⁷ The effect of these modifications was that the jury was called upon to consider the events involving a total of 18 absentee voters, of whom one was Will Fuller. ⁸

B. Opening statement by prosecution at trial ⁹

In his opening statement at trial, the prosecutor emphasized the conspiracy charge, count 1. His statement of what he expected the evidence to show is summarized in the following portion of this section B of this opinion.

Defendants had been active in the Perry County Civic League. In the September 4, 1984 primary, the League's principal interest was the defeat of Reese Billingslea and Warren Kynard, both candidates for re-election as officials of Perry County. When Billingslea had been elected for the first time, Albert Turner told him to appoint Hogue as supervisor of the road gang. Billingslea responded that he would hire Hogue, but not as supervisor. When Kynard had been elected for the first time, Albert Turner and his family had demanded jobs with the county, and Kynard responded that they should submit applications and that Kynard intended to appoint the most qualified applicants. These incidents gave rise to a vendetta on the part of Albert Turner against Billingslea and Kynard Law enforcement and election officials had been alerted to an attempt by the League to steal the election from Billingslea and Kynard by the use of absentee ballots. The post office was monitored on the eve of the primary and the absentee ballots were handled by election officials in such a manner that it was possible to identify the absentee ballots placed in the mail by the Turners and those placed in the mail by Hogue. Those ballots were scrutinized and various alterations of ballots were noted. The ballots were later turned over to the FBI, which interrogated various persons whose ballots appeared to have been altered.

and the League's 1984 opposition to their nomination and its efforts to deprive them of votes were in implementation of this vendetta.

The conspiracy included a plan that Albert Turner or Evelyn Turner or Hogue would vote more than once in the sense that they would alter more than one ballot, without the voters' consent.

The prosecutor stated that "the issue in this case is whether or not these voters gave permission to the Perry County Civic League to change their ballots."

C. Evidence at Trial

The only testimony, presented at the trial in case number 85-00014, which is included in the record on this present appeal, is the testimony of Lillian Fuller, the testimony of Will Fuller, and the transcribed testimony of Hogue in the course of his appearance before a grand jury prior to the return of the indictment in case number 85-00014. Hogue's grand jury testimony was offered by the government at trial as a part of its case. However, the record on the present appeal does contain a transcript of the closing arguments of the prosecutors in case number 85-00014, as well as a portion of the closing...