U.S. v. Carmichael

• Decision Date: 16 September 1982
• Docket Number: Nos. 81-5141,s. 81-5141
• Citation: 685 F.2d 903
• Parties: 11 Fed. R. Evid. Serv. 409 UNITED STATES of America, Appellee, v. Albert Eugene CARMICHAEL, Appellant. UNITED STATES of America, Appellee, v. Joe Grady FLOWERS, Appellant. (L), 81-5142.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 903

685 F.2d 903

11 Fed. R. Evid. Serv. 409

UNITED STATES of America, Appellee, v. Albert Eugene CARMICHAEL, Appellant.

UNITED STATES of America, Appellee, v. Joe Grady FLOWERS, Appellant.

Nos. 81-5141(L), 81-5142.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1982.

Decided Aug. 12, 1982.

Rehearing Denied Sept. 16, 1982.

Ronald P. Fischetti, New York City, Morris D. Rosen, Charleston, S. C. (Rosen, Oberman & Rosen, Charleston, S. C., on brief), John C. Lindsay, Bennettsville, S. C. (Henry Hammer, Columbia, S. C., on brief), for appellants.

Craig C. Donsanto, Director, Election Crimes Branch, Washington, D. C., Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C. (Henry Dargan McMaster, U. S. Atty., Columbia, S. C., David J. Slattery, Sp. Asst. U. S. Atty., Nancy Simmons Stewart, Public Integrity Section, Criminal Div., Dept. of Justice, Washington, D. C., on brief), for appellee.

Before PHILLIPS and ERVIN, Circuit Judges, and DOUMAR, ^* District Judge.

ERVIN, Circuit Judge:

In this appeal, Albert Eugene Carmichael, Jr. and Joe Grady Flowers challenge their convictions stemming from an extensive vote-buying investigation of the 1980 democratic primary election in Dillon County, South Carolina. ¹ The defendants were tried together and both were convicted of conspiracy to buy votes and substantive counts of vote buying in the primary election, as well as obstruction of justice in connection with the grand jury investigation of the election. Carmichael challenges the sufficiency of the evidence supporting his convictions, while Flowers joins him in vigorously pressing other grounds for reversing the convictions, including lack of federal jurisdiction to prosecute, prejudicial joinder of the obstruction charges, improper selection of the grand jury, and erroneous admission of certain evidence. Upon consideration of each of these arguments and assiduous scrutiny of the record below, we find no error and, therefore, affirm the convictions.

I.

On February 2, 1981, Albert Eugene Carmichael, a South Carolina state senator at that time, ² and Joe Grady Flowers, Mr. Carmichael's parttime employee, were indicted for conspiracy, obstruction of justice and buying absentee ballots in connection with the June 10, 1980, democratic primary election in Dillon County, South Carolina. Among the offices contested in the election were the Sheriff of Dillon County, United States Senate and United States House of Representatives. In count one of the indictment ³ Mr. Carmichael and Mr. Flowers were charged with conspiracy to pay voters to vote for incumbent Sheriff Roy Lee in violation of 18 U.S.C. § 371. Counts two through thirteen charged the appellants with knowingly and willfully paying and offering to pay and willfully aiding and abetting others to pay twelve voters in violation of 42 U.S.C. § 1973i(c) ⁴ and and 18 U.S.C. § 2. ⁵ Count fourteen charged Mr. Flowers with obstruction of justice for urging a subpoenaed witness to give false testimony before the grand jury. Count sixteen charged Mr. Carmichael with obstruction of justice based on similar allegations.

On March 31, 1981, the defendants filed a motion for dismissal of the indictment because of improper selection of the grand jury. That motion was denied by an order of the court dated May 14, 1981. Various other pretrial motions including a defense motion for separate trials were heard and disposed of on March 4, 1981, and the parties went to trial on April 13, 1981.

Mr. Carmichael has been active in Dillon County politics for twenty-five years. In 1978, he was elected to fill an unexpired term in the state senate to represent a district that included Dillon, Marlboro, Chesterfield, and Lee Counties. He ran for re-election in the 1980 democratic primary and general election and was elected to a four-year term. During the 1980 elections he also served as a state democratic executive committeeman from Dillon County and as a county executive committeeman from Lakeview precinct.

Mr. Flowers was for many years the postmaster in Lakeview and was barred from engaging in any political activity by the Hatch Act. In early 1979 he retired from the post office and began parttime work as a secretary for his close friend, Carmichael. Flowers was paid $50.00 a week as expense money for work in Carmichael's Lakeview office. In mid-April 1980, Sheriff Roy Lee ⁶ asked Flowers to work for him in his re-election campaign. Lee gave Flowers $500.00 cash to pay "haulers" who were to help people register, obtain absentee applications or get to the polls. Carmichael gave Flowers permission to work for Lee and gave Flowers $500.00 to help in Lee's campaign. Flowers added another $200.00 to $300.00. No records were kept to account for this money.

To vote absentee in a primary election in South Carolina, a voter applies by mail or in person to the County Executive Committee at a location the Committee designates as the absentee voting place or precinct. When the County Executive Committee receives a completed application it checks with the Board of Voter Registration to determine whether the applicant is registered in that county and, if so, mails the applicant an absentee ballot along with instructions, an oath envelope and a return envelope. The applicant is instructed to vote the ballots, put them in the oath envelope, sign the oath which states that he is qualified to vote in the election and has not voted any other ballots, seal the oath envelope, put it in the pre-addressed envelope to the county absentee precinct, and mail it.

On April 14, 1980, the chairman of the Dillon County Democratic Party, Alan Schafer, ⁷ wrote Carmichael a letter placing him in charge of absentee ballot procedures in Lakeview. Schafer instructed Carmichael to make absentee applications available to voters from his office or other places that would be convenient. The applications were to be forwarded to Schafer, who would mail out ballots to all qualified applicants. That same day, Carmichael wrote Flowers delegating to Flowers his authority to distribute absentee ballot applications from Carmichael's office.

On April 21, April 28, and May 12, political meetings for Sheriff Roy Lee's re-election campaign were held at Carmichael's lakehouse. Among the fifty-five to seventy-five persons who attended the first supper meeting were Flowers, Carmichael, Lee and a number of Lee's workers and supporters. Government witnesses testified that at each of these meetings the discussion centered on getting blacks to vote by absentee ballot and the fact that the voters wanted money. Sammie Lee Catoe, a trustee at the Dillon County Jail who cooked the supper, testified that after most guests at the first meeting had gone, he heard Carmichael tell Sheriff Lee that if Lee would just take five dollars and add it to what Lee had paid during the last election, he could win. Catoe also testified that Carmichael told Lee that they needed about 1,700 absentee ballots to win.

At the second and third meetings, the discussion centered on procedures for soliciting absentee ballots and how much voters would have to be paid. Government witnesses who attended these meetings testified that as workers for Lee they would be paid $10.00 per absentee ballot turned in and that they could pay the voters whatever they wished, probably $5.00. Applications for absentee ballots were available at the meeting and it was suggested that the workers would tell the voters to use employment outside the county or vacation as the reason for applying for absentee ballots. Flowers attended all three of these meetings; Carmichael was present at only the first and third.

The vote-buying scheme was carried out as planned. Workers for Lee picked up absentee ballot applications from Flowers at Carmichael's office in Lakeview. They took these applications to voters, had them filled out, and turned them back in to Flowers. After the ballots were mailed to the voters, the workers usually returned to help the voter fill out the ballot and then turned the ballot in to Flowers. In some cases, the ballots were sealed when returned as required by the instructions; in many cases they were unsealed. Flowers paid the worker $10.00 per ballot and the worker paid the voter.

Several witnesses testified that during the campaign they communicated with Carmichael. Mazel Arnette testified that several times before the election, Carmichael told her it was all right to pay voters for their time and trouble and to give voters some money as long as she did not tell them she was buying a vote. Luther Nance ⁸ stated that he was recruited to buy votes and met Flowers at Carmichael's office to receive instructions about absentee ballots. Further, Nance stated that after the investigation began, he met with Carmichael at his office and the senator told him "if anybody came around, asking me (Nance) anything about giving anybody any money, tell them I didn't." Similarly, Mr. Freddie Wilson testified before the grand jury that Flowers had told him on two occasions to lie about giving money to voters. At trial, Wilson said he did not recall that testimony, but when it was read to him, he said he remembered and affirmed his prior testimony. Another witness testified that Carmichael told him that his expenses would be paid and "if you want to give somebody something, that's up to ya'll. I don't see anything wrong with that." Robert Miller, a lifelong Dillon County resident, testified that he was in the gas station in front of Carmichael's office on May 10, 1980, when Carmichael came in and asked Flowers how many absentee ballots had been collected that day. After Flowers said about fifty, Carmichael responded, "(t)hat's good."

The government also introduced tally sheets of county-wide absentee ballot totals, which showed that 1,265, or 94% of all absentee ballots cast in Dillon County, were cast for Sheriff Lee. ⁹ In Lakeview precinct, which is one of twenty-one...