U.S. v. Bowman

• Decision Date: 09 February 1981
• Docket Number: No. 79-5685,79-5685
• Citation: 636 F.2d 1003
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ella M. BOWMAN, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1003

636 F.2d 1003

UNITED STATES of America, Plaintiff-Appellee, v. Ella M. BOWMAN, Defendant-Appellant.

No. 79-5685.

United States Court of Appeals, Fifth Circuit.

Unit A

Feb. 9, 1981.

Alcide J. Gray, Lake Charles, La. (Court-appointed), for defendant-appellant.

D. H. Perkins, Jr., John P. Lydick, Asst. U.S. Attys., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, CHARLES CLARK and REAVLEY, Circuit Judges.

COLEMAN, Circuit Judge.

Appellant Ella M. Bowman was indicted and tried on four counts of paying, conspiring to pay, and aiding and abetting other people to pay, Willie Ray Henderson, John T. Buckley, Beatrice Gill, and Mae Margaret Gill to vote in the November 7, 1978, general election held in Vernon Parish, Louisiana, in violation of 42 U.S.C. § 1973i(c) (1976) and 18 U.S.C. § 2 (1976). The election was held for the purpose of electing a United States Representative from the Fourth Congressional District of Louisiana, a Vernon Parish School Board member, and a City Marshal for the City Court of Leesville, Louisiana.

As to Willie Ray Henderson, Bowman was acquitted, apparently because the jury was not convinced that Henderson had actually voted that day. He had not signed his individual voting record although he did sign the poll list. She was found guilty on all other counts and was sentenced to one-year imprisonment (suspended) and two years probation on each count with the sentences running concurrently. The sentences of imprisonment were suspended. By court-ordered special conditions of probation, Bowman was prohibited from running for public office and ordered to give the government truthful information if called upon to do so.

On appeal, Bowman argues that § 1973i(c) is unconstitutional because it is beyond the power of Congress to enact a statute which applies to any election in which there is a federal candidate on the ballot and when there is no proof that the payment was directed toward the federal race. In conjunction with this argument, Bowman argues that the district judge should have instructed the jury that the payment, or offer of payment, must have been made to induce the voter to vote for a Congressional candidate. She further contends that the court erred when it refused to allow her to call certain defense witnesses under Rule 17 of the Federal Rules of Criminal Procedure and when it refused to allow two defense witnesses to assert the Fifth Amendment in the presence of the jury.

Upon careful consideration, and after meticulous consideration of the factual and legal aspects of the case, we are of the opinion that the Judgment of the District Court should be affirmed.

I Facts

Considering the evidence in the light most favorable to the verdict, Bowman was paid $50 by Gene Koury, the successful Democratic candidate for the school board seat, to drive voters to the polls on November 7. Koury had contacted Willie Fisher, whom he had heard organized people to drive voters, and Fisher suggested Bowman as a driver. Between 9 and 10 a. m. that morning, Bowman came to Mae Margaret Gill's apartment and asked her if she needed a ride to the polls. Gill replied in the affirmative. As Gill was getting into Bowman's van, her sister, Beatrice Gill, drove up. Bowman asked Beatrice the same question, and she too decided to come along. According to the Gill sisters, John T. Buckley was walking down the road, and Bowman offered him a ride to the polls. However, Buckley testified that he was picked up by Bowman before the Gills got into the van. Buckley testified that in reply to Bowman's offer, he asked how much he would be paid and that Bowman said five dollars. Mae Gill testified that, on the way to the polls, Bowman said they would only be paid five dollars; Beatrice Gill testified that Bowman said there wasn't much but there would be some "change" for them, "change" meaning money.

Upon arriving at the Leesville Neighborhood Community Center, the polling place, each was given a slip of paper with three numbers on it. These numbers referred to the numbers placed under each candidate's name on the voting machine. One number was "5," which referred to the Democratic candidate for Representative; one other number was "55," which designated Hubert Monk, the Democratic candidate for City Marshal. No one could remember the third number.

At trial, Mae Gill said Bowman did not say they had to vote for the numbers listed on the slip of paper in order to receive the promised payment, but she admitted that she had testified before the federal grand jury that Bowman had indicated that payment was contingent upon voting for the designated numbers. Mae Gill went on to explain that she still voted like she wanted to. In her grand jury testimony, Beatrice Gill said that when Bowman gave them the slip of paper, she did not indicate that they would be paid for voting, but at trial she said she knew they were being paid to vote. The Gill sisters and Buckley then voted and returned to the van.

Mrs. Bowman then drove to Elija Moore's white house. Beatrice Gill said Bowman wrote her name down on a piece of paper. Bowman went into the house, stayed approximately five to ten minutes, returned and gave each of them five dollars.

The same routine was followed with Willie Ray Henderson, who rode to the polls in Bowman's van, along with a Mrs. Humphrey and Eloise Peters. Immediately after getting into the van, Bowman told Henderson they would be paid five dollars for voting. Each of them was given a slip of paper with three numbers on it; Henderson could only remember the number "5." When asked what candidates were associated with the numbers, he said the election was only for school board and city marshal. After they voted, Bowman took her riders to Moore's house, went inside for approximately five minutes, and returned with five dollars for each person in the van. Henderson also testified that Bowman loaned him $60 about 20 minutes later and another $30 the following Friday to pay off a debt before he was sentenced on a marijuana conviction.

The Gill sisters and Buckley signed both the poll list and their individual voting records, while Henderson only signed his individual voting record. Both Mae Gill and Buckley told the FBI that a man named Tommy gave them the money for voting, but both admitted that this testimony was false while testifying before the grand jury and at trial. The Gills, Buckley, and Henderson all identified Bowman as the one who drove them to the community center. They picked out a photograph of it, and of the white house where they were taken after voting, from a group of photographs of buildings related to the case.

In an interview with the FBI wherein she was given the required warnings, Bowman admitted that she drove 38-40 people to the polls on November 7, 1978, and then took them to Elija Moore's house so that their names could be checked off on a list of voters. She said that she was paid by Gene Koury to drive voters, but did not know the exact amount because it was given to her in an envelope, and she gave Henderson some of it before determining exactly how much was in the envelope.

Reginald Sistrunk, an unsuccessful school board candidate in the September, 1978, primary who was a member of an informal committee which supported and campaigned for Congressman Leach in the general election, testified that, to the best of his knowledge, Bowman neither actively campaigned for nor was a part of the formal or informal structure supporting Leach. However, between 7:30 a. m. and 4 p. m. on election day, Sistrunk was at his place of employment at Fort Polk, Louisiana.

Mrs. Bowman was found to be indigent, and an attorney was appointed by the court to represent her. Bowman moved, under Federal Rule of Criminal Procedure 17, ¹ to have witnesses subpoenaed without paying costs. She requested the following witnesses: Ralph McRae, Jr., mayor of Leesville; Gene Koury, member of the Vernon Parish School Board; Hubert Monk, City Marshal; Robert Pines, school board member; Willie Fisher, campaign worker; Elija Moore, campaign worker; Representative Leach, winner of the House of Representatives race; Jimmie Wilson, unsuccessful candidate for Representative; and Reginald Sistrunk, unsuccessful school board candidate in the September primary. The stated purpose for calling these witnesses was that each of them, having taken an active part in the general election, either as a candidate or as campaign workers, would have direct knowledge of who employed Bowman to drive voters to the polls, who paid her, the amount she was paid, and the purpose of the payment.

The district judge referred the motion to a United States magistrate for the threshold determination of whether the testimony of the requested witnesses was relevant and necessary to an adequate defense. The hearing was held ex parte in a closed courtroom so that Bowman's defense strategy would not be revealed. At the hearing, Bowman's attorney stated his theory that the prosecution had to prove that Bowman made the payments to the voters on behalf of a Congressional candidate. According to Bowman's testimony, McRae, Koury, Monk, and Moore would testify that she had no connection with the Congressional race; Pines and Fisher would testify that Bowman did not attend any meeting held to discuss distribution of money in the election; Leach and Wilson would testify that neither of them contacted Bowman, that she did not work for either of them, and that she knew them "by face" only; and Sistrunk would testify that he worked for Leach in the election and that Bowman did not attend any meetings concerning distribution of money.

The magistrate held that Bowman was financially unable to pay the cost of having these witnesses appear and determined that McRae, Koury, Pines, and Sistrunk were necessary to an adequate defense of Bowman. As to Monk, Fisher,...