843 F.2d 1070 (8th Cir. 1988), 86-1045, United States v. Townsley

Docket Nº:86-1045, 86-1075, and 86-1188.
Citation:843 F.2d 1070
Party Name:UNITED STATES of America, Appellee, v. Sandy TOWNSLEY, Appellant. UNITED STATES of America, Appellee, v. Ernest (Pat) GANDY, Appellant. UNITED STATES of America, Appellee, v. Sorkis WEBBE, Jr., Appellant.
Case Date:March 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1070

843 F.2d 1070 (8th Cir. 1988)

UNITED STATES of America, Appellee,

v.

Sandy TOWNSLEY, Appellant.

UNITED STATES of America, Appellee,

v.

Ernest (Pat) GANDY, Appellant.

UNITED STATES of America, Appellee,

v.

Sorkis WEBBE, Jr., Appellant.

Nos. 86-1045, 86-1075, and 86-1188.

United States Court of Appeals, Eighth Circuit

March 25, 1988

Submitted Oct. 13, 1987.

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Richard L. Daly, St. Louis, Mo., for appellant Webbe.

Burton H. Shostak, Deborah J. Kerns, St. Louis, Mo., for appellant Gandy.

Irl Baris, St. Louis, Mo., for appellant Townsley.

James Crowe, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ARNOLD and BOWMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge, authored the opinion of the court with the exception of part VI. A. which was written by ARNOLD, Circuit Judge. HENLEY, Senior Circuit Judge, writes separately in dissent from that portion of the court's opinion. BOWMAN, Circuit Judge, concurs in all but part V. of the court's opinion from which he dissents.

Appellants Sorkis Webbe, Jr. and Sandy Townsley were convicted following a jury trial on various conspiracy charges involving vote fraud, 18 U.S.C. Sec. 241, mail fraud, 18 U.S.C. Sec. 371, and obstruction of justice, 18 U.S.C. Sec. 1503. Appellant Ernest (Pat) Gandy was convicted of mail fraud and obstruction of justice. Webbe 1 was sentenced by the district court to eleven years imprisonment and fined $10,000.00. Townsley and Gandy were each sentenced to three years in prison, three years probation, and fined $2,000.00. 2 This appeal followed. For reasons to be stated, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The facts are myriad and byzantine. What follows is a summary of the essential scheme and other details necessary to place the case in context. Additional facts will be discussed throughout the remainder of this opinion as necessary.

In 1978 Sorkis Webbe, Jr. was the Democratic Committeeman for the Seventh Ward in St. Louis, Missouri. Webbe had strong ties with the Seventh Ward Regular Democratic Organization. In the 1978 Democratic primary the incumbent State Representative for the 83rd District, 3 John Leisure, was opposed by Edward Bushmeyer. John Leisure was supported by the Seventh Ward Regular Democratic Organization (hereafter Seventh Ward Organization) and by Webbe. Bushmeyer successfully challenged Leisure's candidacy on residency grounds and Leisure's name was removed from the ballot. The Seventh Ward Organization substituted another candidate, but he was ultimately defeated by 199 votes. Prior to removal of Leisure's name from the ballot, more than 250 absentee votes had been cast for him. Webbe was unsuccessful in a lawsuit which sought to re-vote those ballots and Bushmeyer went on to be elected State Representative (apparently the 83rd District is strongly Democrat and success in the Democratic primary virtually assures victory in the general election).

Control of the State Representative seat and other elective positions in the Seventh Ward was important to Webbe and his supporters because of the numerous city and state patronage jobs controlled by those in office. Webbe was determined to unseat Bushmeyer and convinced Robert Brandhorst to run in the 1980 Democratic primary. Although Brandhorst was supported by Webbe and the Seventh Ward Organization, he also maintained his own campaign organization.

As evidenced by the 1978 primary, Webbe knew that the absentee vote would be important to the outcome of the 1980 primary. The strength of the absentee vote was in part due to the sizeable elderly population of the Seventh Ward. Webbe

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therefore determined to mount a strong campaign to solicit absentee votes. At that time Missouri law required absentee ballots to be notarized. Accordingly, the Seventh Ward Organization arranged for a number of its workers to become notaries.

Eugene (Buck) Jones was in charge of keeping records of the absentee ballots during the 1978 election. During that election Webbe invited Jones to his home and demonstrated to Jones how he was to instruct the workers to partially seal an absentee ballot so it could be opened at campaign headquarters and then resealed. The absentee ballots in Missouri during both the 1978 and 1980 primary elections were IBM computer cards which contained a series of perforated numbers that corresponded to the candidates on the ballot. Using a tool (which resembles a bent out paper clip), a voter would punch out the number that corresponded to the candidate for whom he or she wished to vote. No one other than the voter was to punch the ballot unless the voter requested assistance. The ballot was then supposed to be inserted into a transmittal envelope and the envelope was to be completely sealed and mailed to the Missouri Board of Election Commissioners. Only election officials were authorized to open the envelopes. The voter affidavit, which was to be signed by the voter and notarized, was printed on the outside of the transmittal envelope.

In the 1980 election Buck Jones was again helping Webbe coordinate his absentee voter efforts. During a meeting called by Webbe for new notaries at the Seventh Ward Organization headquarters, Buck Jones instructed notaries how to partially seal the ballot transmittal envelopes. 4 This procedure was questioned at the meeting and Webbe affirmed that the ballots were to be partially sealed so they could be checked when returned to the Seventh Ward Organization headquarters. 5

Another duty assumed by Buck Jones at the request of Webbe was to maintain a ledger of absentee ballots. Jones would obtain from the Board of Election Commissioners a daily list of absentee ballots that were sent out to voters. Jones would record in a column of the ledger that a ballot was sent out. Jones would then notify the precinct captains so that they could arrange to send a notary to the voter's residence. The notaries would bring any ballots they notarized, partially sealed, back to Jones who would place them in a locked drawer in his desk (Townsley and Webbe had access to this drawer). Jones would then make a notation in another column that the partially sealed ballot was received. Jones would check the ballot drawer daily. When the ballot was returned to the drawer fully sealed he would place a stamp on it and mail the ballot. He would then make a notation in a third column that the ballot had been mailed to the Board of Commissioners. Jones was the only person at the Seventh Ward Organization authorized to mail the ballots. Although Jones destroyed his records in 1981 after he disassociated himself from the Seventh Ward Organization, he testified that his records indicated that "quite often" ballots returned in a partially sealed state were never subsequently mailed.

On one occasion Wellington Hamilton Lemmer (a campaign worker for the Seventh Ward Organization and a confidential government informant) entered Webbe's office at the Seventh Ward Organization. Lemmer saw Webbe, Townsley (a close associate of Webbe, Jr. and an integral member of the Seventh Ward Organization) and two others with opened absentee ballots and observed that they were punching holes in the ballots. Townsley was chastized

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for failing to lock the door; nonetheless Lemmer was allowed to remain and was told to "double-punch" in the Bushmeyer/Brandhorst race if Bushmeyer had received the vote. 6

On another occasion Edward Tumminia (a friend of Webbe active in the 1980 race, Tumminia was named in the indictment but pleaded guilty prior to trial) was observed in Webbe's office with twenty to twenty-five open absentee ballots. When Tumminia saw he was being watched, he put the ballots in a bag and left the headquarters through a back door. Tumminia returned shortly and was not gone long enough to have deposited the ballots in the nearest mailbox.

Throughout the course of the campaign Townsley would be asked how the absentee vote was going. Townsley was able to respond with specific vote counts.

During the absentee ballot drive a disagreement arose between Webbe's campaign workers and Jim Shrewsbury, a worker for Bushmeyer. The disagreement involved the solicitation of persons who had received absentee ballots who resided in a housing project located in the Seventh Ward. Lemmer returned to the Seventh Ward Organization headquarters to report the incident. Webbe, Sr. (Webbe, Jr. was also present) became angry and sent Norm Clark and Pat Gandy back to the housing project with Lemmer. Lemmer was to point out Shrewsbury to Clark and Gandy who would "take care of him." Lemmer pointed Shrewsbury out to Clark and Gandy. As Lemmer left with Townsley he heard a scream and turned around to see Shrewsbury slumped on the ground. Lemmer saw Gandy and Clark standing behind Shrewsbury and Gandy put a blackjack in the band of his trousers. Later, Lemmer was told by Webbe, Sr. in the presence of Townsley to tell the police the incident appeared to be a mugging.

Ultimately Brandhorst defeated Bushmeyer in the primary and went on to win the general election. Although Brandhorst lost at the polls by four votes (Bushmeyer 1516; Brandhorst 1512), he won the election on the strength of the absentee vote (Bushmeyer 141; Brandhorst 306). Out of the total absentee ballots sent out in the City of St. Louis (6071), 653 were not returned. This figure was not broken down into wards.

During his term as State Representative, Brandhorst had a falling out with Webbe. In the 1982 Democratic primary Webbe backed another man for State Representative...

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