U.S. v. Jordan

• Decision Date: 11 September 2009
• Docket Number: No. 06-12583.,06-12583.
• Citation: 582 F.3d 1239
• Parties: UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Albert JORDAN, Jimmy Woodward, Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

582 F.3d 1239

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Albert JORDAN, Jimmy Woodward, Defendants-Appellants Cross-Appellees.

No. 06-12583.

United States Court of Appeals, Eleventh Circuit.

September 11, 2009.

Algert Swanson Agricola, Jr., Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery, AL, William N. Clark, Keith Edward Brashier, Redden, Mills & Clark, LLP, Birmingham, AL, for Jordan and Woodward.

Michael Boysie Billingsley, Jenny Lynn Smith, Acting Chief, App. Div., Birmingham, AL, for U.S.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

In the Alabama 1998 general election, Jimmy Woodward, the incumbent Sheriff of Jefferson County, a Republican, was defeated in his bid for reelection by his Democratic opponent by 37 votes. Woodward suspected that numerous felons not eligible to vote had cast absentee ballots in Jefferson County precincts located in the City of Bessemer and decided to contest the election. He hired Albert Jordan, a lawyer, to handle his case.

What transpired after Jordan took the case led to Jordan and Woodward's indictment by a Northern District of Alabama grand jury. The grand jury charged them with using the Sheriff's Office's employees to access the National Crime Information Center database—which houses the criminal records generated by federal, state, and local law enforcement agencies—and obtain the criminal records of those who voted absentee in the Sheriff's race in Bessemer, in violation of 18 U.S.C. § 641.¹ On January 11, 2006, a jury found the defendants guilty of conspiring to violate, and of violating, that statute, and the district court sentenced each of them to probation for a term of six months and a fine of $500.² They now appeal their convictions.³ The Government cross-appeals their sentences. We affirm.

I.

A.

In its case in chief, the Government undertook to establish the following. The Alabama Criminal Justice Information Center ("ACJIC") houses the Alabama Criminal Justice Information System ("ACJIS"), a database that includes all criminal records for the state of Alabama. ACJIC provides information in its database to the National Crime Information Center ("NCIC").⁴ On April 10, 1996, Jimmy Woodward, as Jefferson County Sheriff, signed an agreement with the ACJIC that allowed his Sheriff's Department access to the ACJIS and NCIC criminal record databases exclusively for law enforcement purposes.⁵ The database access was limited in this way because the public has a strong privacy interest in these databases. See Jordan I, 316 F.3d at 1223 n. 4; United States v. Pedersen, 3 F.3d 1468, 1471 (11th Cir.1993).

Alabama's 1998 general election was held on November 3. Woodward stood for reelection as Sheriff and lost, by only 37 votes.⁶ The polls had not closed before he began receiving complaints of voting irregularities in the City of Bessemer. A Republican Party poll-watcher at the Bessemer courthouse reported that absentee ballots cast in Bessemer had not been counted; a member of the Bessemer Voters' League claimed that some absentee ballots had been stolen; and a Sheriff's Department employee received phone calls to the effect that felons, out-of-state residents, and deceased persons voted in Bessemer.

On November 4, Woodward retained Albert Jordan, an attorney specializing in election contest cases. Jordan first attempted to obtain the absentee voter list from the office of the Clerk of the Jefferson County Circuit Court in Bessemer.⁷ Jordan was unable to obtain the absentee list, so, on the morning of November 5, he called Royce Fields, the Assistant Sheriff in charge of the Sheriff's Bessemer office, for assistance. After informing Fields that he had been retained by Woodward to challenge the outcome of the November 3 election, he asked Fields to get the absentee voter list from the Clerk's office. Fields acquired the list and phoned Jordan. Jordan asked him to run the "criminal histories" of the voters named on the list to determine whether any were felons.

Over the next four days, with Woodward's approval and under Fields's supervision, three Sheriff's Office employees⁸ ran the names of 829 persons on the absentee voter list through the NCIC and ACJIS.⁹ They gave Fields the NCIC printout for each voter having a criminal record. On November 9, Fields took the printouts to Woodward. Woodward, in turn, instructed him to take the records to Jordan. Fields did as instructed. Fields showed Jordan the printouts and stated that he was worried about leaving them with Jordan because he was required to keep records provided by the NCIC in his possession. Jordan replied that Fields could leave the printouts with him.

On November 19, the morning edition of the Birmingham Post Herald contained an article stating that Woodward had improperly used criminal databases to check the criminal history backgrounds of absentee voters in the November 3 election.¹⁰ Later in the day, Woodward met with Jordan, Fields, and some of his staff in Birmingham to discuss the Post Herald article. Woodward expressed concern that he and Fields might be indicted for using the NCIC database to run criminal record checks on absentee voters. A member of his staff suggested that a criminal charge might be avoided if they had a complaint of voter fraud that might justify the use of the NCIC.

To explore that possibility, Woodward asked the Deputy District Attorney of Jefferson County, Roger Brown, to join the discussion. After Brown arrived, Woodward briefed him about the evidence he had received of voter fraud in Bessemer and asked him whether the evidence was sufficient to make out a criminal charge. Brown stated that any allegations of voter fraud should be handled by the Deputy District Attorney in Bessemer. He also recommended that Woodward contact the Alabama Bureau of Investigation to avoid an appearance of impropriety, given that Woodward had a personal interest in the outcome of the election for Sheriff.

After the meeting adjourned, Woodward formed a "voter fraud task force" and placed Captain Charles Horton in charge. The task force reviewed several complaints of voter fraud and interviewed approximately eighty persons who had voted absentee in Bessemer. The evidence obtained was apparently insufficient to warrant criminal prosecution, as none was instituted.

B.

On June 21, 2000, a Northern District of Alabama grand jury returned an indictment charging Woodward and Jordan, in Count One, with conspiring, in violation of 18 U.S.C. § 371,¹¹ to violate 18 U.S.C. § 641 by receiving, retaining, and converting NCIC records to their own use. Count Two charged Woodward with conveying the NCIC records to Jordan, and Count Three charged Jordan with receiving them, both acts in violation of § 641.¹² The defendants entered pleas of not guilty and promptly moved the district court to dismiss the indictment for failure to satisfy the requirements of Rule 7(c)(1) of the Federal Rules of Criminal Procedure because, in accordance with the language of the rule, they claimed that the indictment failed to provide a definite written statement of the essential facts constituting the offense(s) charged.¹³ The district court denied their motions on the ground that the indictment provided the defendants fair notice of the charges lodged against them. Then, on January 3, 2006, following two appeals to this court,¹⁴ the case went to trial. Eight days later, the jury found the defendants guilty as charged of the above counts. Post-verdict, the defendants, presenting the arguments they asserted in their motions to dismiss the indictment, moved the court to arrest the judgment pursuant to Rule 34 of the Federal Rules of Criminal Procedure. The court denied their motions. At sentencing on April 26, 2006, the district court treated the § 641 violations as Class A misdemeanors instead of felonies, because the value of the NCIC records obtained did not exceed the sum of $1,000,¹⁵ and sentenced the defendants to concurrent terms of six months' probation and fined each of them $500.

In their appeals, Woodward and Jordan seek the reversal of their convictions on the grounds that the court erred in denying their motions to dismiss the indictment and to arrest the judgment. Alternatively, they seek a new trial, asserting error in the court's charge to the jury. The Government cross-appeals, contending that the sentences the court imposed are unreasonable. We turn first to the main appeals, then to the cross-appeal.

II.

A.

The appellants argue that the district court erred in denying their motions to dismiss the indictment and to arrest the judgment. Boiled down to its essentials, their argument is that the indictment failed to provide them with the notice necessary to enable them to defend against the offenses charged.

The legal sufficiency of an indictment is a legal question that we review de novo. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.2002). An indictment is considered legally sufficient if it: "(1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir.2002). In determining whether an indictment is sufficient, we read it as a whole and give it a "common sense construction." United States v. Gold, 743 F.2d 800, 813 (11th Cir.1984); United States v. Markham, 537 F.2d 187, 192 (5th Cir.1976).¹⁶ In other words, the indictment's "validity is to be determined by practical, not technical, considerations." Gold, 743 F.2d at 812.

We find that the indictment gave the defendants adequate notice of the charges against them. In its introduction, Jordan is identified as an attorney in the...