U.S. v. Cole

• Decision Date: 30 January 1995
• Docket Number: No. 92-1880,92-1880
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Davis COLE, also known as Cozy Cole, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 303

41 F.3d 303

UNITED STATES of America, Plaintiff-Appellee, v. Davis COLE, also known as Cozy Cole, Defendant-Appellant.

No. 92-1880.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1994.

Decided Nov. 28, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 30, 1995.

Joseph Hartzler, Office of U.S. Atty., Springfield, IL, Daniel P. Butler (argued), Dept. of Justice, Crim. Div., Public Integrity Sect, Washington, DC, for plaintiff-appellee.

Leonard C. Goodman, Chicago, IL (argued), Michael J. Costello, Costello Law Office, Springfield, IL, for defendant-appellant.

Before GODBOLD, ^* WOOD and COFFEY, Circuit Judges.

GODBOLD, Circuit Judge.

Davis Cole was convicted by a jury of one count of conspiracy to commit election fraud in violation of 18 U.S.C. Sec. 371 and one count of multiple voting in violation of 42 U.S.C. Sec. 1973i(e) and (c). ¹ He was sentenced to 46 months imprisonment. We affirm the conviction and the sentence.

BACKGROUND

Cole was a deputy voter registrar in Springfield, Illinois, and, as such, he was authorized to register voters and to assist qualified voters in obtaining absentee ballots. In March 1990 he was a candidate in the Democratic primary election for Democratic precinct committeeman for a Springfield precinct. The incumbent, Edna Tyler, opposed him. The primary was a joint state and federal election, but there were only two candidates for federal office on the ballot, one for the Democratic nomination for U.S. senator and the other for the Democratic nomination for a U.S. House of Representatives seat. Each was unopposed. Cole won his race with 100 votes to Tyler's 75. Eighty-eight votes were cast in the form of absentee ballots.

At trial the government called 19 witnesses who testified that in the primary Cole and/or one of his associates improperly influenced their voting by absentee ballots. Most of these witnesses testified that Cole instructed them on how to apply for an absentee ballot, and that he came to their residences a second time after the ballot arrived in the mail. Absentee voters testified that they signed After conviction, the district court added a total of eight points to Cole's offense level for: organizing or leading a conspiracy of at least 15 persons (four points); abusing a position of public trust (two points); and obstructing justice by attempting to coerce witnesses (two points). With an offense level of 20 and a criminal history level of II, the U.S.S.G. mandated a sentencing range of 37 to 46 months incarceration. The district court sentenced Cole to 46 months on each count concurrent.

only their names on the ballots while Cole, or his associate, or an unknown person, filled in the remaining information and votes by punching the ballot. Additionally, several witnesses testified that they were given beer or cigarettes from Cole or his associate, and one witness testified she also received a dollar in addition to cigarettes.

DISCUSSION

1. Federal Jurisdiction in a Mixed Election

We hold that the federal district court had jurisdiction although the election, a mixed federal/state election, had only two federal candidates running unopposed. Cole concedes that the Constitution empowers Congress to regulate mixed federal/state elections but contends that the reach of the statute is limited to elections in which a federal candidate is opposed. We hold that Sec. 1973i(c) is designed to protect the integrity of the federal election process and that the integrity of a mixed election can be marred regardless of whether federal candidates are opposed.

In Blitz v. U.S., 153 U.S. 308, 14 S.Ct. 924, 38 L.Ed. 725 (1894), the defendant falsely registered his name and address for voting in a mixed federal/state election. The Supreme Court stated that the statute involved, Sec. 5511 of the Revised Statutes of the United States, was concerned with a voter's fraudulent conduct that "affected or might affect the integrity of the election" of a federal candidate. Id. at 314, 14 S.Ct. at 926. Section 5511 referred specifically to an election of a "representative or Delegate in Congress," and the indictment did not clearly indicate that the defendant had voted for a federal candidate. The Court stated:

Voting, in the name of another, for a state officer, cannot possibly affect the integrity of an election for Representative in Congress.... [A]n indictment under Rev.Stat. Sec. 5511 for knowingly personating and voting under the name of another, should clearly show that the accused actually voted for a Representative in Congress....

Id. at 314-15, 14 S.Ct. at 926-27. Section 5511 was, however, narrower than the voting fraud statute before us, which prohibits voting fraud in "elections held solely or in part " for the purpose of electing federal candidate officials. 42 U.S.C. Sec. 1973i(c) (emphasis added). Section 5511 contained no "in part" provision.

U.S. v. Bowman, 636 F.2d 1003 (5th Cir. Unit A Feb. 1981), involved a vote buying scheme whereby voters were paid small amounts of cash to vote for specific candidates, including a federal candidate, in a mixed federal/state election. Id. at 1009. Considering whether Sec. 1973i could be applied to the facts, the Fifth Circuit determined that intent on the part of the defendant to affect the federal election was not required. The court considered the history of the statute, noted that Congress intended "to protect the integrity of a person's right to vote by protecting the integrity of that vote," id. at 1008, and concluded that "the payment itself, not the purpose for which it is made, is the harm and the gist of the offense," id. at 1012.

U.S. v. Carmichael, 685 F.2d 903 (4th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983), stemmed from another vote buying scheme in a federal/state election. Like the court in Bowman, the Fourth Circuit held that the government did not have to prove that the defendant's actions actually affected the federal election, but only that "a defendant bought or offered to buy a vote and that such activity 'expose[d] the federal aspects of the election to the possibility of corruption.' " Id. (citation omitted).

U.S. v. Howard, 774 F.2d 838 (7th Cir.1985), is a mixed election case in which a U.S. House of Representative seat was the only Thus we see that Sec. 1973i is designed to protect two aspects of the federal election: the actual results of the election and the integrity of the process of electing federal officials. The Supreme Court in Blitz observed that Sec. 5511 was concerned with the integrity of federal elections as well as the results. 153 U.S. at 314, 14 S.Ct. at 926. Likewise, the courts in Bowman, 636 F.2d at 1012, and Carmichael, 685 F.2d at 908, remarked that the fraudulent behavior did not have to affect the federal election. The Bowman court continued: "Sec. 1973i(c) may be constitutionally applied to prohibit any activity that has the potential to affect the integrity and purity of a federal election where both federal and the state or local races are on the ballot...." 636 F.2d at 1012. Cole's fraudulent behavior may not have had an actual impact on the uncontested federal election, but his behavior did have an impact on the integrity of the election.

federal position contested. The defendant contended that Sec. 1973i(c) was not applicable to his conduct because, while he falsified his address in order to vote in state races by showing himself as residing in a precinct in which he did not live, he did reside within the Congressional district and was entitled to vote in the only federal contest on the ballot. Therefore his act of registering and voting at the false address had no impact on the federal part of the election. Thus, he said, his fraudulent address did not affect the federal election because his true address permitted him to vote for the House of Representatives seat without committing fraud. This court held that Sec. 1973i was applicable. "[T]he language of section 1973i(c) does not require the government to prove that the prohibited conduct had an actual or potential impact on the result of the federal contest. In fact, [the defendant's] conduct falls squarely within the express terms of the statute." 774 F.2d at 843 (citation omitted).

The legislative history accords with our analysis. Section 1973i originated as a section of the comprehensive Voting Rights Act of 1965. That act was designed "primarily to enforce the 15th amendment to the Constitution of the United States and [was] also designed to enforce the 14th amendment and article I, section 4 [of the Constitution]." H.R.Rep. No. 439, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2437. The House Judiciary Committee noted that "[t]he public record is replete with endless instances of vote frauds, including stuffing the ballot box, tombstone voting, multiple casting of votes by one individual in several precincts or districts, threats and coercion of voters, destruction or alteration of ballots, willful miscounting of votes, and buying votes." Id. at 2471. To meet the congressional purposes the members of the House Judiciary Committee deemed it imperative that the Act include methods for enforcing clean elections. "It is a cruel deception to give any man the elective franchise and then allow destruction of the effect of his vote through a multitude of corrupt practices.... [W]e are obligated to protect the integrity of the vote cast by any citizen." Id.

We hold that the district court had jurisdiction to try Cole for voting fraud in violation of Sec. 1973i(c) despite the two federal races being uncontested. ²

2. Constitutionality of Sec. 1973i(e)--Void for Vagueness

The court did not commit plain error by applying Sec. 1973i(e), the multiple voter statute, which Cole says is void for vagueness as applied. ³ Cole contends that the statute does not adequately define the phrase "voting more than once" to...