U.S. v. Malmay

Decision Date31 March 1982
Docket NumberNo. 81-3068,81-3068
PartiesUNITED STATES of America, Plaintiff-Appellee, v. E. B. MALMAY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

John R. Martzell, New Orleans, La., for defendant-appellant.

Dosite H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

On Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, REAVLEY, and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This case arises on appeal from a seven-count conviction of defendant-appellant E. B. Malmay for conspiracy to violate 42 U.S.C. § 1973i(c), the vote-buying provision of the Voting Rights Act of 1965. Malmay, a candidate in a local school board election in Sabine Parish, Louisiana, gave "haulers" enough money to pay voters five dollars each after being returned from a trip to the polls where they voted. Although Malmay did not explicitly instruct voters how to vote, he clearly intended to influence the outcome of the local school board election. No evidence was introduced which indicated any intent to influence the federal election which was held at the same time as the school board election. The district court in essence held that the actions of the defendant had the potential to affect the federal election and that such potential was within the prohibition of the statute. We affirm.

I. Background

The indictment of Malmay grew out of a much larger investigation by the Federal Bureau of Investigation of vote-buying schemes in western Louisiana. Most notable among the indictments resulting from the investigation was a Congressman from the Fourth Congressional District, a sitting state district judge, a district attorney, and an assistant district attorney. One case arising out of this investigation-United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981)-bears heavily upon the case sub judice. The scheme in Bowman took place at about the same time that the instant case had its inception, and occurred in neighboring Vernon Parish, Louisiana. There the vote-buying scheme was also conducted to influence the outcome of a local school board election. In that case, slips of paper were given to the paid voters which indicated the local and federal candidates for which ballots were to be cast by the paid voters. The Bowman court stated:

We are not called on to decide, and we do not decide, whether § 1973i(c) would apply if only the numbers of state or local candidates had been on the slips of paper. We do decide that § 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 and that a specific intent to corruptly influence the federal race need not be proven.

The critical events in the case sub judice focus on Saturday, September 16, 1978, the date of the primary election in Zwolle, Sabine Parish, Louisiana. Malmay, a local businessman and member of the Sabine Parish School Board for about fifteen years, was running for re-election. His opponent, Sammy D. Cross, was a black, who had formerly been a principal of a school in Sabine Parish. In what was described as a long tradition of voter "hauling" in Zwolle, Malmay approached several school employees and others before the election to help transport voters to the polls. Many of the voters were poor and minimally educated blacks, who would not or could not otherwise have voted.

In response to allegations at trial that he not only hauled voters to the polls, but also paid them to vote, Malmay asserted that three elements necessary to convict him were missing. First, he asserted he had no intent to pay voters, only to pay the persons hauling the voters for their services. Second, he argued that no actual exchange of money for votes was made at his direction. Third, he argued that, unlike the Bowman case, the persons transported were given no slips of paper instructing them which of the federal candidates to vote for. Malmay further testified under oath that despite his long acquaintance with Zwolle politics, he had never heard of vote-buying in all his years in the town of Zwolle. Record, at 515.

The testimony of a series of witnesses proved quite damaging to the credibility of Malmay's assertions, however. In the light most favorable to the Government, this evidence demonstrated not only that Malmay intended to influence the local election by buying votes, but also that actual payments of money for votes occurred. Illustrative of the evidence presented was the testimony of three haulers hired by Malmay to carry voters to the polls on the primary election of September 16, 1978.

Perhaps most damaging to Malmay was testimony of Bertha Garner, a high school teacher in Zwolle whose husband was the bus supervisor for the school district. Garner related that the day before the primary election, Malmay approached her and paid her about $100, saying, "This is the money for the voters." Record, vol. III, at 150. Garner testified that she hauled voters to the polls on primary election day and paid them five or ten dollars after they voted. Shortly after Malmay's election, Garner's husband was promoted to transportation supervisor by the School Board.

Another hauler for Malmay was Lewis Lynch, also a resident of Zwolle. He pled guilty to a one-count felony of paying voters in the September 16, 1978 election. According to Lynch, Malmay came to Lynch's house about a week before the election to discuss school bus transportation for Lynch's children. During the conversation, Malmay asked Lynch to haul voters for him. A day before the election, Malmay met Lynch near Lynch's house, gave him $130, and told him to give whoever he carried to the polls five dollars. Record, vol. IV, at 246, 247. Lynch testified that on election day he carried five or six voters to the polls and paid them five dollars each from the money Malmay had given him.

Also among the haulers that Malmay enlisted was Carolyn Cutright, a lunch room employee of the Sabine Parish School Board, who later pled guilty to one felony count of conspiracy to buy votes in a November 7, 1978 election. Cutright testified that Malmay came into the school lunch room three to four weeks before the primary election and asked her to help haul voters for him. He approached her again a week or so before the election and promised her money. The night before the election she was called to go to Malmay's house where he gave her $100 in five dollar bills. It was Cutright's understanding this money was to be used for payment to the persons she hauled. On election day, Cutright hauled a number of voters to the polls and testified to paying about eight of them five dollars each. These witnesses testified that Malmay not only intended that they pay voters, but also that this understanding was in fact carried out.

Furthermore, testimony by Joseph Martinez indicated that there was little doubt in Malmay's mind about this understanding. On the morning of the election, Martinez went into the Pelican Drug Store, which was directly across the street from the City Hall where the election was occurring and met Malmay. While they were talking, either Lewis Lynch or Carolyn Cutright came driving by and Malmay said, "That is a good bunch of voters there, James." Record, vol. V, at 346. In a few minutes, another car came by and Malmay stood up and said, "Uh-oh, we have been double-crossed. These people supposed to have voted for me, and they're in Cross's car." Malmay then stood up and said, "Mr. Cross must have been paying these people more than I pay my haulers to haul them." Malmay continued, "I'll have to pay my haulers whatever it cost to get the voters hauled cause Cross is paying more." Record, vol. V, at 346-47.

Nowhere in this damaging testimony, however, was there any indication that Malmay was attempting to influence the federal election that was being held simultaneously. No witness testified that any of the transported voters were instructed on how or who to vote for in the federal election. Thus, the issue facing the district court was not so much whether a vote-buying scheme occurred, but whether it had a "potential to affect" the federal election. The district court determined that it did and Malmay was convicted. 1

There are two principal issues to be addressed in this appeal: (1) whether 42 U.S.C. § 1973i(c), which prohibits payments for votes in elections held solely or in part for electing federal representatives, is applicable to the fact situation involved, and (2) whether the trial should have been transferred to another city within the same judicial district.

II. The Applicability of 42 U.S.C. § 1973i(c)

42 U.S.C. § 1973i(c) provides:

(c) Whoever knowingly or willfully ... conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable to general, special, or primary elections held solely or in part for the purpose of selecting or electing any ... (federal) candidate....

As indicated, the evidence is clear that Malmay knowingly and willfully paid for voting when he gave money to haulers for the purpose of paying voters after they had voted. It is therefore apparent that Malmay did intend to influence the local election. It is equally clear that there was no showing of any intent to influence any federal candidacy. At issue, therefore, is whether Malmay's conduct is protected from federal prosecution by the proviso limiting the scope of section 1973i(c) to elections held "solely or in part" for federal officials. 2 This is the issue left open in Bowman where the Court stated, "We...

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