983 F.2d 1369 (6th Cir. 1993), 91-3989, United States v. Salisbury

Docket Nº:91-3989.
Citation:983 F.2d 1369
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Betty SALISBURY, Defendant-Appellant.
Case Date:January 15, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1369

983 F.2d 1369 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Betty SALISBURY, Defendant-Appellant.

No. 91-3989.

United States Court of Appeals, Sixth Circuit

January 15, 1993

Argued Aug. 13, 1992.

Rehearing and Rehearing En Banc

Denied April 5, 1993.

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[Copyrighted Material Omitted]

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Dale E. Williams, Jr. (argued), Asst. U.S. Atty., Office of the U.S. Attorney, Columbus, OH for plaintiff-appellee.

Max Kravitz (argued), Paul Croushore, Columbus, OH, for defendant-appellant.

Before KENNEDY and JONES, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant Betty Salisbury appeals her conviction and sentence on one count of voting and assisting others in voting more than once in violation of 42 U.S.C.

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§ 1973i(e) and 18 U.S.C. § 2. Salisbury and her co-defendant, Judy Scott, were tried by jury in the United States District Court for the Southern District of Ohio, Eastern Division. The jury acquitted Salisbury of four charges of obstructing correspondence in violation of 18 U.S.C. § 2 and vote buying in violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. § 2. A hung jury resulted in the court's dismissal of the remaining charge against Salisbury, that of conspiring to vote more than once with co-defendant Judy Scott in violation of 18 U.S.C. § 371. The government has not appealed the dismissal.

On appeal, defendant Salisbury challenges: 1) the sufficiency of the indictment; 2) the district court's denial of her motion for a bill of particulars; 3) the adequacy of the district court's jury instructions; 4) the district court's admission of evidence and prosecutorial statements of unrelated voting abuse in Pike County; 5) the propriety of the district court's refusal to excuse a juror who purportedly had improper contact with a government witness during the trial and the district court's subsequent refusal to declare a mistrial on this basis; 6) the district court's purportedly improper application of the United States Sentencing Guidelines to this case; and 7) the sufficiency of the evidence sustaining the defendant's conviction.

Upon review, we find compelling reasons to order the reversal and vacation of defendant's conviction.

During the latter part of 1990, the Federal Bureau of Investigation began examining the Pike County electoral process in response to citizens' complaints concerning the administration of absentee ballot voting. The testimony adduced at trial described how defendant Salisbury, a Pike County Republican Party operative and committee chairperson, usually accompanied by co-defendant Judith Scott, went to the homes of county residents to solicit applications for absentee ballot registration. Upon delivery by mail of the ballot packets at the homes, the defendants would immediately appear, ostensibly to assist the voters in filling out the ballots. 1 Trial testimony revealed that the assistance frequently consisted of Salisbury reading aloud to the voter the identification numbers of the Republican candidates she supported, while the voter punched the numbers corresponding to those candidates on the ballot card. Numerous voters "helped" by the defendants told the court that Salisbury never asked any of them whom they wished to vote for and never offered alternative choices to the candidates she personally endorsed. In a few instances, where voters expressed interest in voting for a particular candidate not personally endorsed by Salisbury, Salisbury would disparage the character, motivation and skill of the politician and instead offer those voters only the identification number of the candidate she supported. Upon completing the ballot card, the voter would sign the form and often Salisbury would take the ballot, seal the envelope, and convey it to the Board of Elections.

Salisbury and Scott conducted their activities from April 3, 1990 through election day, May 8, 1990. Though the duo normally read aloud the identification numbers of their endorsed candidates and instructed the voters to punch the corresponding numbers on the ballot cards, in some instances the defendants punched the ballot cards themselves, ostensibly on behalf of the voter. Further, Salisbury frequently prohibited voters from seeing the entire list of candidates enclosed in the absentee voter ballot packets, forcing them to rely on her oral recitation of identification numbers. In at least one instance, Republican Party operative Salisbury drove an absentee voter to the Board of Elections in order to exchange the voter's Democratic Party ballot for a Republican Party ballot. In another instance, Salisbury assisted one voter in obtaining and completing absentee ballots on behalf of the voter's sons, all of whom resided out of state.

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At trial, the prosecution attempted to raise an inference that Salisbury preyed on unsophisticated voters, with little knowledge of the voting process, because Salisbury assisted an eighteen year old first time voter and a ninety-two year old nursing home resident in the sparsely populated and rural Pike County. Salisbury testified in her own defense and denied all the conduct upon which the charges against her were based.

A number of the voters whom Salisbury "helped" were disgruntled by her assistance, which many felt had actually amounted to coercion to vote absentee and to vote for Salisbury's slate of Republican candidates. The letters of these voters to the Board of Elections resulted in some of these contested ballots not being counted and prompted the investigation which led to this case against the co-defendants.

Upon conviction, the court sentenced Salisbury to eighteen months incarceration, a $1,000 fine and two years of supervised release.

In her first two assigned errors, defendant charges that the district court erroneously failed to dismiss count two of the indictment as unconstitutionally vague, and failed to rectify the problem by denying her motion for a bill of particulars. Defendant's third assignment of error avers that the court's jury instructions failed to adequately inform the jury of the nature of the multiple voting charge set forth in count two of the indictment. The following discussion will reveal that these three assigned errors implicitly question whether 42 U.S.C. § 1973i(e) was unconstitutionally vague as applied to Salisbury. We find this implicit constitutional challenge to be well taken.

Defendant first avers that the district court erroneously failed to dismiss count two of the indictment as unconstitutionally vague because it did not set forth the specific occurrences which purportedly constituted the multiple voting crime charged.

FED.R.CRIM.P. 7(c)(1) describes the nature and contents of an indictment:

The indictment ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.

FED.R.CRIM.P. 7(c)(1) requires the indictment to set out each element of the statutory violation in order to sufficiently inform the defendant of the offense against which she must defend. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, reh'g denied, 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (1974); Allen v. United States, 867 F.2d 969, 971 (6th Cir.1989). The indictment must also be sufficient to bar any subsequent prosecution for the same offense. Hamling v. United States, 418 U.S. at 117, 94 S.Ct. at 2907; Allen v. United States, 867 F.2d at 971.

Count two of the indictment states:

On or about the period April 3, 1990, through May 8, 1990, in the Southern District of Ohio, the defendant, BETTY SALISBURY, did vote and cause others to vote more than once each in the May 8, 1990 primary election, which election was held in part for the purpose of selecting and nominating candidates for the office of Representative to Congress from the Sixth Congressional District of Ohio.

In violation of 42 U.S.C. § 1973i(e) and 18 U.S.C. § 2.

Joint Appendix, p. 12.

18 U.S.C. § 2 permits defendant to be charged as a principal for her commission and encouragement of the commission

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of the prohibited activity of voting more than once in an election, as set forth in 42 U.S.C. § 1973i(e). 2 Count two, as set forth above, met the fundamental requirements of notice pleading by reiterating the elements of the proscription as presented in 42 U.S.C. § 1973i(e). See Hamling v. United States, 418 U.S. at 117, 94 S.Ct. at 2907; Allen v. United States, 867 F.2d at 971. Count two further set forth a specific time period during which defendant purportedly conducted her illegal activities. Where the government clearly accuses a defendant of committing the proscribed act of actually voting multiple ballots in a protected election, the indictment should stand. United States v. Lewis, 514 F.Supp. 169, 178 (D.C.Pa.1981) (The court upheld an indictment setting forth a recitation of statutory elements where the proscribed action was, on its face and beyond a doubt, voting more than once). In the instant case, however, the defendant's conduct, as...

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