U.S. v. Olinger

• Decision Date: 15 April 1985
• Docket Number: No. 83-3247,83-3247
• Citation: 759 F.2d 1293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis OLINGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1293

759 F.2d 1293

UNITED STATES of America, Plaintiff-Appellee, v. Francis OLINGER, Defendant-Appellant.

No. 83-3247.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1984.

Decided April 15, 1985.

William H. Theis, Chicago, Ill., for defendant-appellant.

Barry Rand Elden, Asst. U.S. Atty., Dan K. Webb-U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, ESCHBACH, and EDWARDS, ^* Circuit Judges.

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

Defendant-appellant Francis Olinger appeals from his conviction for conspiracy to violate federal law through organized acts of vote fraud. The prosecution's factual proofs in this case are both overwhelming and all but undisputed. This appeal tells a story which would greatly resemble Edwin O'Connor's The Last Hurrah --except the scene is Chicago, not Boston; the date is 1982, not the first half of this century; and unlike O'Connor's humor, there is nothing funny about stealing the votes of the elderly.

A special grand jury returned a 14 count indictment against appellant and six others, charging them with various acts of vote fraud during the November 2, 1982 general election. After trial, a jury found appellant guilty on two counts: 1) conspiracy to violate the constitutional rights of qualified voters in violation of 18 U.S.C. Sec. 241 ¹; and 2) conspiracy in violation of 18 U.S.C. Sec. 371 ² for the purposes of a) voting more than once in a general election, in violation of 42 U.S.C. Sec. 1973i(e), b) giving false information to establish a voter's eligibility to vote in violation of 42 U.S.C. Sec. 1973i(c), and c) offering to pay and paying qualified voters to vote in violation of 42 U.S.C. Sec. 1973i(c). ³ The District Judge sentenced appellant to five years probation for each of the two counts, with sentences to be served concurrently. The Judge also ordered appellant to serve the first 90 days of his probation in jail and to enroll in an alcohol program.

Appellant raises three arguments for reversal. First, appellant contends that Count I is defective because it alleges a conspiracy to violate a right which is not recognized as a federal constitutional or statutory right, i.e. the right to vote in state and local elections free from vote fraud by persons acting under color of state law. Secondly, appellant argues that Counts I and II improperly charge conspiracies under 18 U.S.C. Sec. 241 (hereinafter "Sec. 241") and 18 U.S.C. Sec. 371 (hereinafter "Sec. 371"), where Congress has enacted a more specific statute, 42 U.S.C. Sec. 1973i(c) (hereinafter "Sec. 1973i(c)"), to address the crime of conspiracy to commit vote fraud. Finally, appellant argues that the District Judge erred in rejecting certain jury instructions requested by appellant.

In considering this appeal, we must view the evidence in the light most favorable to the Government. The jury could reasonably have found the following facts.

Appellant was a Republican election judge in Chicago's 27th Ward, 17th precinct. ⁴ Election judges are appointed by the Chicago Board of Election Commissioners, based on nominations submitted by the respective chairpersons of the Republican and Democratic parties. Appointments are confirmed by the Cook County Circuit Court. Election judges are charged with the responsibility of insuring the fairness and propriety of the electoral process.

On November 2, 1982, there was to be a general election in the City of Chicago. Offices to be filled included a member of the United States House of Representatives for the 7th Congressional District of Illinois, Governor of Illinois, and various local offices. On October 28, 1982, appellant and other 17th precinct election judges attended a meeting with Raymond Hicks, Democratic Party precinct captain for the 17th precinct, at the L & B Chicken Restaurant. There they discussed a special absentee election which the election judges would conduct for the benefit of elderly and mentally handicapped residents of Monroe Pavillion, a residential facility located in the 17th precinct. Hicks told the election judges that the residents of Monroe Pavillion were "crazy." He instructed appellant and the other election judges to ignore the wishes of the residents. Instead, the election judges were told to "punch 10" on the computerized ballot for every resident. Punching 10 on the ballot resulted in a vote for each of the Democratic candidates on the ballot.

On October 30, 1982, appellant and the other election judges, with Hicks in attendance, conducted the special election at Monroe Pavillion. In over two hours of voting, approximately 52 residents voted. Appellant and the other election judges cast nearly all of those votes for the straight Democratic Party ticket by punching 10. During the voting, a Democratic Party election judge paid residents small amounts of money for their votes as appellant watched.

On the day of the general election, Hicks distributed ballot applications, along with the names of registered voters who had moved away or died, to the election judges, including the appellant. The election judges completed the ballot applications with the names of the phantom voters. Then, using the fraudulent ballot applications, the election judges cast votes according to Hicks' instructions. At some point on election day, appellant was seen leaving the 17th precinct polls with a shopping bag full of blank applications. Appellant later returned with the applications completed. Appellant watched as Hicks solicited voters and paid them $2.00 per vote. As a result of these activities, more than one-third of the 330 votes cast in the 17th precinct that election day were fraudulent.

After the ballots were tabulated, the election judges requested that Hicks pay them for their services. Hicks paid between $20.00 and $40.00 to each election judge, including appellant. Appellant received a bonus in recognition of his efforts at the special Monroe Pavillion election.

Following the election, the Chicago Board of Elections conducted an investigation of activities in the 17th precinct. Appellant and the other election judges were called to testify. Prior to giving testimony, appellant and the other judges dined once more at the L & B Chicken Restaurant. There the election judges discussed with Hicks their upcoming appearance before the Board of Elections. All of the judges, including the appellant, agreed to perjure themselves. In February of 1983, appellant appeared before the Board of Elections and denied any knowledge of vote fraud in the 17th precinct. Appellant also encouraged another election judge to alter her testimony so that it would jibe with appellant's.

I.

A. In Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), the United States Supreme Court declined to decide whether Sec. 241 applies to a conspiracy to cast false votes in state and local elections. The Court observed that petitioners there committed vote fraud in a primary election where voters nominated candidates for the United States Senate and House of Representatives, as well as candidates for state and local offices. In upholding the convictions, the Court stated:

We think this evidence amply supported the jury's conclusion that each of the petitioners knowingly participated in a conspiracy which contemplated the casting of false votes for all offices at issue in the election. The evidence at trial tended to show a single conspiracy, the primary objective of which was to have false votes cast for Hager but which also encompassed the casting of false votes for candidates for all other offices, including Senator Byrd and Representative Hechler. True, there was little discussion among the conspirators of the federal votes per se, just as there was little discussion of the Hager votes in and of themselves, but the jury could believe this was only a reflection of the conspirators' underlying assumption that false votes would have to be cast for entire slates of candidates in order to have their fraud go undetected.

In our view, petitioners err in seeking to attach significance to the fact that the primary motive behind their conspiracy was to affect the result in the local rather than the federal election. A single conspiracy may have several purposes, but if one of them--whether primary or secondary--be the violation of a federal law, the conspiracy is unlawful under federal law. See Ingram v. United States, 360 U.S. at 679-680 [79 S.Ct. 1314, 1319-1320, 3 L.Ed.2d 1503]. It has long been settled that Sec. 241 embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters; see United States v. Saylor, 322 U.S. 385 [64 S.Ct. 1101, 88 L.Ed. 1341] (1944). See also United States v. Mosley, 238 U.S. 383 [35 S.Ct. 904, 59 L.Ed. 1355] (1915). This applies to primary as well as general elections. See United States v. Classic, 313 U.S. 299 [61 S.Ct. 1031, 85 L.Ed. 1368] (1941).

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[E]ven assuming, arguendo, that Sec. 241 is limited to conspiracies to cast false votes for candidates for federal offices, we could find no plain error here. The prosecution's case, as indicated earlier, showed a single conspiracy to cast entire slates of false votes.

417 U.S. at 225-226, 227-228, 94 S.Ct. at 2262-2263, 2264-2265.

We reach the same conclusion. As in Anderson, the prosecution in the case before us proved a conspiracy to cast false votes for all offices on the ballot, including that of member of the United States House of Representatives. Thus, the Government presented evidence sufficient for the jury to find a violation of 18 U.S.C. Sec. 241.

Our disposition of appellant's first argument is consistent with the case law of this Circuit. See United States v. Bradberry, 517 F.2d 498 (7th Cir.1975); United States v. Bryant, 516 F.2d 307 (7th Cir.1975); United States v. Barker, 514 F.2d 1077 (7th Cir.1975).

B. Appellant next contends...