U.S. v. Howard, s. 84-2598

• Decision Date: 08 November 1985
• Docket Number: Nos. 84-2598,84-2668,s. 84-2598
• Citation: 774 F.2d 838
• Parties: 19 Fed. R. Evid. Serv. 475 UNITED STATES of America, Plaintiff-Appellee, v. Edward HOWARD and Thomas Cusack, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 838

774 F.2d 838

19 Fed. R. Evid. Serv. 475

UNITED STATES of America, Plaintiff-Appellee, v. Edward HOWARD and Thomas Cusack, Defendants-Appellants.

Nos. 84-2598, 84-2668.

United States Court of Appeals Seventh Circuit.

Argued April 24, 1985.

Decided Oct. 9, 1985.

Rehearing Denied Nov. 8, 1985 in No. 84-2668.

John Morrison, Barry A. Spevack, Monico & Pavich, Chicago, Ill., for defendants-appellants.

Alexander S. Vesselinovitch, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before COFFEY and FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

FLAUM, Circuit Judge.

Defendant Edward Howard, a former Democratic precinct captain in the forty-fourth precinct of the thirty-ninth ward on the northwest side of the City of Chicago, and his co-defendant Thomas Cusack, a former assistant Democratic precinct captain in that precinct, appeal their convictions following a jury trial for committing various acts of vote fraud in connection with the November 2, 1982 general election. For the reasons set forth below, we affirm the convictions.

I.

The evidence introduced at the defendants' ten-day trial, viewed in the light most favorable to the government, revealed a carefully-orchestrated scheme by the defendants to cast false ballots for the straight Democratic ticket in the November election. The ballot for the forty-fourth precinct in that election included a federal contest for the office of United States Representative for the Eleventh Congressional District, and myriad contests for state and local offices. In addition to the defendants, the participants in the conspiracy included Darryl Cunningham, a Democratic precinct worker, and Charlotte Watson, a Republican election judge, both of whom were named as unindicted co-conspirators in the indictment against the defendants. Cunningham and Watson, along with several others who had wittingly or unwittingly aided the defendants in the conspiracy, served as the primary government witnesses at trial.

As outlined at trial, the vote fraud scheme infected not only the actual voting process in November, but also the voter registration process preceding the election. Several persons, including the defendant Cusack, falsely registered to vote by claiming to reside at addresses within the precinct when they actually resided elsewhere. The actual residents at these addresses were asked to place name-tags on their doors that bore the names of the non-resident registrants. The defendants, and several others acting under their direction, also participated in a canvass of the precinct during September and October 1982. Although the canvass disclosed that a number of persons who were registered to vote in the precinct had died, moved away, or for some other reason had become ineligible to vote, these persons were not struck from the list of eligible voters. Finally, on election day the defendants, either personally or by acting through others, caused numerous false ballots to be cast for the straight Democratic ticket.

The defendants were charged in a thirty-three count indictment with offenses including conspiracy in violation of 18 U.S.C. Secs. 241 and 371 (1982), voting more than once in an election held in part for the purpose of electing a member of the United States House of Representatives in violation of 42 U.S.C. Sec. 1973i(e) (1982), giving false information to establish eligibility to vote in such an election in violation of 42 U.S.C. Sec. 1973i(c) (1982), committing mail fraud in connection with the mailing of absentee ballots in violation of 18 U.S.C. Sec. 1341 (1982), and aiding and abetting others in the commission of these offenses in violation of 18 U.S.C. Sec. 2 (1982). Cusack was charged along with Howard in all of the counts except those relating to mail fraud and to false registration and voting by two particular individuals, Jerome and William Sufranski. Howard was ultimately convicted on twenty-three counts of the indictment after the jury returned guilty verdicts on all but the eight mail fraud counts and the judge directed a verdict of acquittal on two other counts. Cusack, on the other hand, was convicted pursuant to jury verdicts of guilty on fourteen counts of the indictment, but acquitted pursuant to not guilty verdicts on seven other counts. Howard was sentenced to five years probation, with the first nine months to be served in a work-release program. Cusack was also sentenced to five years probation, but with the first six months to be served in a work-release program.

On appeal, the defendants raise numerous arguments for reversing their convictions. We have grouped these contentions under four general headings: (1) defects in the indictment, (2) insufficiency of the evidence, (3) trial errors, and (4) prosecutorial misconduct during closing argument. We consider each of these arguments in turn below.

II.

A. Defects in the Indictment

The most serious defects alleged by the defendants relate to counts one and two of the indictment, the conspiracy counts. The defendants initially contend that count one, which charges a conspiracy to violate the constitutional rights of qualified voters, is defective because it alleges in part a violation of a right that the defendants claim is not recognized by the United States Constitution: the right to vote in state and local elections free from vote fraud by persons acting under color of state law. The defendants further argue that both counts one and two are invalid because each is based on a general conspiracy statute, 18 U.S.C. Secs. 241 and 371 respectively, that they characterize as pre-empted by the more specific prohibitions concerning vote fraud embodied in 42 U.S.C. Sec. 1973. We need not discuss these arguments here, however, because this court recently rejected such arguments under essentially identical circumstances in United States v. Olinger, 759 F.2d 1293 (7th Cir.1985). The defendants have not suggested any basis for distinguishing Olinger, nor can we discern any. That decision accordingly controls our disposition here.

The defendant Howard's additional challenges to the indictment require only brief discussion. The summary assertion that various counts of the indictment are multiplicitous is plainly without merit, since each count, although related to the other counts, charges a separate offense requiring proof of a fact that the other counts do not. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Aleman, 609 F.2d 298, 306-07 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Howard's technical objections to count three of the indictment likewise do not state sufficient grounds for reversal of his conviction on this count. Howard points out for the first time on appeal that count three charges the defendants with voting "approximately twenty-two ballots as described in paragraphs 18 through 24 of Count One," although count one actually contains only twenty-three paragraphs and lists fewer than twenty-two ballots as having been voted. In light of Howard's failure to raise this objection below, his conviction must be affirmed unless the count "is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted." United States v. Watkins, 709 F.2d 475, 478 (7th Cir.1983) (quoting United States v. Knippenberg, 502 F.2d 1056, 1061 (7th Cir.1974)). Even assuming that count three is defective in some sense, it is clearly not so defective as to require reversal under this standard.

B. Insufficiency of the Evidence

Defendants contend that the evidence was insufficient to support their convictions on various specific counts of the indictment. In mounting a challenge to the sufficiency of the evidence, the defendants bear a "heavy burden," United States v. Garcia, 562 F.2d 411, 414 (7th Cir.1977), for we may sustain such a challenge only if, viewing the evidence in the light most favorable to the government, no rational juror could have found the defendants guilty beyond a reasonable doubt. See, e.g., United States v. Touloumis, 771 F.2d 235, 238 (7th Cir.1985); United States v. Mayo, 721 F.2d 1084, 1087 (7th Cir.1983). After reviewing the extensive record developed over the course of the defendants' ten-day trial, we find the evidence sufficient to support the jury's verdicts as to all of the counts on which the defendants were convicted, and find the defendants' arguments to the contrary to be without merit.

Only two of the defendants' arguments require specific discussion. First, both defendants vigorously assert that the evidence was insufficient to prove their guilt in directing Charlotte Watson on election day to execute several false ballot applications in the names of particular persons who did not actually vote. We disagree. Watson testified that on election day the defendants gave her slips of paper with names on them and instructed her to cast ballots for the straight Democratic ticket using these names, and that over the course of the day she did fill out several ballot applications and cast several ballots using these names. Watson also testified that by the end of the day she had not cast ballots for all of the names that the defendants had given her, and that when she so informed the defendant Cusack, he took a number of ballots and left the polling place with the defendant Howard. The defendants then returned to the polling place, according to Watson, and Cusack threw the ballots down on the table in front of her, whereupon she proceeded to complete ballot applications for and then to cast these ballots. If believed by the jury, Watson's testimony, which was corroborated by other physical and testimonial evidence in various respects, was sufficient to warrant the verdicts of guilty on the counts relating to the ballot applications that she forged. ¹

Cusack also contends that the...