Mitchell v. District of Columbia

• Decision Date: 16 December 1999
• Docket Number: No. 96-CT-868.,96-CT-868.
• Citation: Mitchell v. District of Columbia, 741 A.2d 1049 (D.C. 1999)
• Parties: Gregory MITCHELL, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

741 A.2d 1049

Gregory MITCHELL, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 96-CT-868.

District of Columbia Court of Appeals.

Argued October 7, 1998.

Decided December 16, 1999.

Ralph M. Randazzo, Washington, DC, appointed by the court, for appellant.

Sidney Bixler, Assistant Corporation Counsel, with whom Jo Anne Robinson, Principal Deputy Corporation Counsel, Robert R. Rigsby, Deputy Corporation Counsel, Rosalyn Calbert Groce, Director, Policy and Appeals Branch, and Bernard Siler, Assistant Corporation Counsel, were on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN and REID, Associate Judges.

WAGNER, Chief Judge.

Appellant, Gregory Mitchell, was charged by information with violation of D.C.Code § 1-1312(j)(1) (1999), a statute governing nominations of candidates for local office by petition, "for which a penalty is provided in D.C.Code § 1-1312(b)(3)." Specifically, the information charged that Mitchell, "being a circulator, willfully submitted a nominating petition that contained signatures that were not written by the persons whose signatures they purported to be." Following a jury trial, Mitchell was convicted as charged. He argues, for the first time on appeal, that the offense for which he was convicted was not a crime under the statute cited. Mitchell further contends that the court's instruction to the jury on the elements of the offense was based on an unrelated statute and uncharged crime. We agree and reverse for plain error.

I.

The evidence showed that Mitchell's signature appeared as a circulator on a nomination petition for a candidate for chair-person of the District of Columbia Council. There were twenty signatures on the petition purporting to be those of registered voters. Cynthia White, a handwriting expert, testified that one person signed all twenty of the names of registered voters appearing on the petition signed by Mitchell. Ms. Leona Agourides, an employee of the Board of Elections and Ethics, testified that, without the twenty signatures on this petition, the candidate would have had only 2985 of the 3000 signatures required for his nomination. She also testified concerning the requirements for completion of the nominating petition. Ms. Agourides testified that a circulator must sign an affidavit. Mitchell signed the affidavit swearing or affirming as follows:

(a) that I am a registered qualified elector of the District of Columbia;

(b) that I personally circulated this petition sheet;

(c) that I personally witnessed the signing of each signature thereon; and

(d) that I have determined from each signer that he or she is a duly registered voter in the District of Columbia....

Two registered voters testified that although their names appeared on the petition, they had not signed it.

Mitchell testified that the candidate came to his office and requested volunteers to circulate a nominating petition on his behalf for which he promised to pay the circulator one dollar for each signature obtained. According to Mitchell, he took four petitions, signed each one, and placed them in his drawer. Mitchell said that he did not return to his office for several days, and when he did, only three petitions remained in his drawer.

The trial court instructed the jury that Mitchell was charged with corrupt election practice and that

The essential elements of this corrupt election practice that the Government must prove beyond a reasonable doubt are that within the District of Columbia, that the defendant was a circulator, and that does not appear to be in dispute, that he willfully submitted a petition for the nomination of a candidate for a city council seat containing signatures made by persons other than the persons whose name was signed.

And a circulator is a person, as we heard, designed to obtain signatures on a petition for an election. And the regulations of the Election Board require that a signature on a petition shall be made by the person whose signature it purports to be and not by any other person.

The trial court also defined for the jury the term wilful as used in the instructions. During discussions of proposed instructions with counsel, the trial court stated that Mitchell was not charged with false statements, or lying on the form, and an instruction which might have related to such a charge was withdrawn by defense counsel.

II.

Mitchell argues that the government failed to prove that he violated the provisions of the statute under which he was charged, D.C.Code §§ 1-1312(b)(3) and 1312(j)(1). In related arguments, he contends: (1) that the trial court's instruction on the elements of the offense of corrupt practices was derived from other sections of the D.C.Code, specifically, D.C.Code §§ 1-1318 and -1320, which do not apply to a circulator; and (2) that regulations of the D.C. Board of Elections can not be used to create a crime. Preliminarily, the government argues that Mitchell's arguments are raised for the first time on appeal, and therefore, this court should decline to consider them.

Mitchell did not raise these arguments in the trial court. Although he made motions for judgment of acquittal, challenging the evidentiary sufficiency of the government's proof at the end of the government's case and at the conclusion of all the evidence, he did not advance the specific arguments he now raises. Unless a party fairly apprises the trial court of the theory advanced or question presented with some precision, such questions will generally be spurned on appeal.¹ See Salmon v. United States, 719 A.2d 949, 953 (D.C.1997). Insofar as Mitchell makes an instructional challenge, timely objections are required by court rule. See Super. Ct.Crim. R. 30. Rule 30 provides that "[n]o party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." A claim of error in an instruction not raised timely is subject to plain error review. See Morris v. United States, 469 A.2d 432, 438 (D.C.1983). Similarly, issues not raised in the trial court will be reviewed on appeal only for plain error. See Nixon v. United States, 728 A.2d 582, 587 (D.C.1999) (citing Super. Ct.Crim. R. 52(b)); Salmon, 719 A.2d at 953 (citing Foote v. United States, 670 A.2d 366, 369 (D.C.1996)). "In order to satisfy this exacting standard, the defendant must demonstrate both that the error was `plain' in the sense of `clear' or `obvious,' and that the challenged ruling undermined the fairness, integrity, or public reputation of the proceedings and resulted in a clear miscarriage of justice." Nixon, 728 A.2d at 587 (citing Johnson v. United States, 520 U.S. 461, 465-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Since Mitchell did not raise the arguments he makes on appeal in the trial court, we review for plain error.

Essentially, Mitchell argues that his conviction is based on conduct which the statute does not make a crime and which the regulation relied upon by the District cannot make a crime. If Mitchell can make this showing, he can meet the plain error standard for reversal. See Byrd v. United States, 579 A.2d 725, 728 (D.C.1990) (material difference between statute and instruction would require reversal of conviction); see also Spade v. United States, 277 A.2d 654, 656-57 (D.C. 1971) (conviction reversed for plain error where incorrect element inserted in instruction and unclear which of two contradictory instructions jury followed to judgment). It would be both an obvious error and a miscarriage of justice for a defendant to stand convicted of an offense which the law does not make a crime.

Mitchell contends that his conduct was not proscribed by D.C.Code § 1-1312(j)(1) under which he was charged.²

D.C.Code § 1-1312 is captioned "Qualifications of candidates and electors; nomination and election of Delegate, Mayor, Chairman, members of Council, and members of Board of Education, petition requirements, arrangement of ballot." It is a broad statute which sets forth the qualifications for candidates for these various offices, circulators of nominating petitions, and the procedures to be followed in the nominations process. The only criminal penalty provision in § 1-1312 is found in D.C.Code § 1-1312(b)(3) which provides in pertinent part as follows:

Any circulator who willfully violates any provision of this section, shall upon conviction thereof, be subject to a fine of not more that $10,000 or to imprisonment of not more than 6 months, or both. Each occurrence of a violation of this section shall constitute a separate offense.

This section limits the criminal sanction for circulators to violations of the section covered. It does not by its terms cover other sections within § 1-1312, most of which are unrelated to the responsibilities of a circulator in the nominations process.³ Paragraph (b)(3) is preceded immediately by a provision addressing the qualifications of a circulator which reads as follows:

Only registered, qualified electors of the District of Columbia are authorized to circulate nominating petitions of candidates for elected office pursuant to this subchapter. The Board shall consider invalid the signatures on any petition sheet which was circulated by a person who, at the time of circulation, was not a registered, qualified elector of the District of Columbia.

D.C.Code § 1-1312(b)(2). It may be reasonable for paragraph (b)(3)'s penalty provision to cover violation of the circulator qualification paragraph which immediately precedes it, i.e., § (b)(2); however, Mitchell was not charged with circulating a petition without meeting the qualifications of § 1-1312(b)(2). Mitchell was charged with violation of § 1-1312(j)(1). Subsection (j)(1) simply sets forth the procedure which must be followed in order for a qualified candidate for various elective offices, including Chairman of...