U.S. v. Bradberry, 74-1628

• Citation: 517 F.2d 498
• Decision Date: 09 June 1975
• Docket Number: No. 74-1628,74-1628
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Linda BRADBERRY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 498

517 F.2d 498

UNITED STATES of America, Plaintiff-Appellee, v. Linda BRADBERRY, Defendant-Appellant.

No. 74-1628.

United States Court of Appeals Seventh Circuit.

Argued Feb. 24, 1975.

Decided June 9, 1975.

Dean Leslie Foschio and Joseph P. Bauer, Notre Dame, Ind., for defendant-appellant.

James R. Thompson, U. S. Atty., Gary L. Starkman, Ann C. Tighe, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, and SWYGERT and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

Appellant was found guilty of conspiring with four other election judges to commit vote fraud during a primary election on March 21, 1972, in violation of 18 U.S.C. § 241. ¹ The government proved that false votes were cast for state and local candidates, but not necessarily for any federal candidates. The record therefore appeared to present the question of statutory construction left open in Anderson v. United States, 417 U.S. 211, 222, 94 S.Ct. 2253, 41 L.Ed.2d 20. ² However, we do not reach that question because we find that the indictment accused the defendant only of conspiring to affect the election for federal offices, ³ and that the evidence is insufficient to sustain the conviction on that charge.

To prove a violation of § 241 the prosecutor must show that the defendant acted with a specific intent to interfere with a protected federal right. United States v. Guest, 383 U.S. 745, 753-754, 86 S.Ct. 1170, 16 L.Ed.2d 239. The source of this requirement is the need to give the statute sufficient specificity to avoid unconstitutional vagueness, thereby allowing the Act to serve its great purpose to protect the individual in his civil liberties. Screws v. United States, 325 U.S. 91, 98-100, 65 S.Ct. 1031, 89 L.Ed. 1495. In this case, the indictment unambiguously identifies the right to cast votes in an election for federal offices as the federal right at stake. ⁴ It would be inconsistent with the need for specificity in a § 241 prosecution to permit proof of interference with the right to vote in a local election to satisfy that charge.

The government argues, ⁵ however, that evidence that defendant conspired to cause false ballot applications to be prepared and used in a primary election warrants the inference that the conspirators intended to cause false votes to be cast for federal candidates. ⁶ We reject this argument.

The reasonableness of any inference depends, of course, on the facts which are claimed to support it. In the Anderson case the primary thrust of the conspiracy was to affect the local election. Nevertheless, the Supreme Court concluded that an inference that the defendants also intended to taint the federal election was supported by three factors: fraudulent federal votes were in fact cast; ⁷ there was testimony that members of the conspiracy were instructed to vote for federal as well as local candidates; ⁸ and there was a reasonable basis for assuming that the desire to conceal the distortion in the local tally provided motivation for increasing the federal count. ⁹

No comparable facts are disclosed by this record. There is no direct evidence that any fraudulent votes were cast for the federal offices, ¹⁰ and no testimony describing any intention to cast false votes in the federal election or suggesting any motive to do so. The nature of the election, involving a highly publicized contest for the Democratic nominations for Governor of Illinois and State's Attorney of Cook County, with relatively little interest in the federal contests, obviated any special concern that disparate totals might give the results a suspect appearance. ¹¹ There is, of course, no "straight ticket" voting in a party primary election; nor, unlike the situation in Anderson, is there any evidence that the conspirators viewed certain candidates on the federal portion of the primary ballot as part of a "slate" to be voted in its entirety. Accordingly, although the existence of 29 fraudulent ballot applications may justify an inference that a like number of fraudulent votes were cast, they do not warrant the further inference that those votes were cast for federal candidates particularly when the statistical evidence demonstrates that some of the false votes were cast for local candidates and that evidence is consistent with the hypothesis that none of those votes was cast for any federal candidate.

On this record the evidence does not warrant the "inference upon inference" ¹² the government asks us to draw. There was a failure to prove that the conspiracy had any impact on the federal election or that defendant Bradberry had any intent to affect the federal contest.

The offense charged in the indictment was not proved.

Reversed.

1 " § 241. Conspiracy against rights of citizens.

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life."

2 The question is whether a citizen's right to vote in a state or local election is a "right or privilege secured to him by the Constitution or laws of the United States" within the meaning of § 241. See n. 1, supra. In United States v. Anderson, 481 F.2d 685 (1973), the Fourth Circuit held that the statute applies to local elections, but Mr. Justice Douglas has expressed the contrary opinion. See Anderson v. United States, 417 U.S. at 236-245, 94 S.Ct. 2253.

3 Paragraph 1 of the indictment described the Democratic and Republican primary elections on March 21, 1972, as held "for the purpose of nominating, among others, candidates for the offices of United States Senator and United States Representatives in Congress from the Congressional Districts of Illinois." Paragraph 2 refers to the citizens entitled to cast...