U.S. v. Prude

• Decision Date: 14 June 2007
• Docket Number: No. 06-1425.,06-1425.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kimberly PRUDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.3d 873

UNITED STATES of America, Plaintiff-Appellee, v. Kimberly PRUDE, Defendant-Appellant.

No. 06-1425.

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2006.

Decided June 14, 2007.

Gordon P. Giampietro (argued), Gregory J. Haanstad, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Joshua T. Buchman, Purvi G. Patel (argued), McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant.

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

On June 28, 2005, Kimberly Prude was indicted on one count of voter fraud in violation of 42 U.S.C. § 1973gg-10(2)(B). The charge was based on her own conduct in representing that she was eligible to vote and in casting a single absentee ballot, despite being a convicted felon under the supervision of the Wisconsin Department of Corrections and, therefore, ineligible to vote under Wisconsin law. See Wis. Stat. § 6.03. She was convicted of voter fraud and sentenced by the district court to twenty-four months' imprisonment. Ms. Prude timely appeals her conviction. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

During the 2004 election cycle, Ms. Prude was serving a term of supervised release for a forgery conviction in Wisconsin. This crime is a felony under Wisconsin law and, because her sentence was not yet complete, she was ineligible to vote under Wisconsin law. Wis. Stat. § 6.03(1)(b); see also § 304.078(3) (providing for the restoration of the right to vote for felons at the conclusion of a term of probation or parole for the offense that led to voting disqualification). At regular intervals throughout her period of supervision, Ms. Prude was required to meet with a corrections officer and, on numerous occasions, also was required to acknowledge and sign a copy of the rules of her supervision. Among these rules was one that stated, "[y]ou shall not, as a convicted felon, and until you have successfully completed the terms and conditions of your sentence, vote in any federal, state or local election." Exs.11-14, 20.

At the suggestion of an acquaintance, Ms. Prude became a volunteer for candidates in the 2004 presidential election campaign in the weeks leading up to the election. She made calls encouraging area residents to vote and offering to arrange transportation or absentee ballots for those who requested it. On October 22, 2004, with fellow campaign workers, she attended a rally at which all persons were encouraged to march to Milwaukee City Hall, register to vote, request an absentee ballot and vote in the 2004 presidential election; Ms. Prude did all of these things with her fellow marchers. She testified that, on the day she cast her vote, she observed no signs telling her that persons on supervision could not vote. The registration card she signed, which was introduced into evidence at trial, asked only two specific eligibility questions: whether she was a United States citizen and whether she would be at least eighteen years of age on election day. Above the signature block, the card further provided,

I certify that I meet the eligibility requirements of the State of Wisconsin, and that the information I have provided is true to the best of my knowledge under penalty of perjury. If I have provided false information, I may be subject to a fine or imprisonment or both under Federal or State laws.

Ex. 1. Ms. Prude also filled out an application to be officially employed by the Election Commission as a poll worker on Election Day and was hired.

Ms. Prude's statement was that, the following day, she was discussing her volunteer work with a friend, who informed her that, because she was a felon whose civil rights had not yet been restored, she was ineligible to vote. See R.19 at 3. Ms. Prude further testified that she called her probation officer and told him that she would be working the polls on Election Day. She testified that the officer told her that she could not vote. She further testified that, at this point, realizing the gravity of her mistake, she attempted to withdraw her ballot by contacting the Election Commission, but was told not to worry about it by a Commission staff person. She testified that she received no further information regarding the withdrawal process from the person with whom she spoke at the Commission and therefore took no further action.

Ms. Prude continued volunteering for the campaign for a few days, then began a paid position in a community get-out-the-vote campaign with an organization called Project Return.

On Election Day, she reported to the location assigned to her by the Election Commission for her poll worker position and worked as scheduled.

She was arrested in 2005 following an investigation into voting fraud in Milwaukee and charged based on casting a ballot despite being an ineligible voter.

At trial, in addition to introducing Ms. Prude's signatures on five separate "Rules of Community Supervision," each of which contained a reminder that she would be ineligible to vote until she had completed her term of supervision or parole, the Government also introduced evidence that signs were posted at City Hall on the date that Ms. Prude had registered and voted and at the front desk of the parole office during the period in which she was required to report; each of these signs reminded felons that they were ineligible to vote during parole, probation and supervision. The Government further introduced the testimony of one of Ms. Prude's probation officers, who specifically stated that, in September of 2004, Ms. Prude had indicated her desire to volunteer for the campaign and that the officer had reminded her at that time that she was ineligible to vote. The officer stated that Ms. Prude specifically acknowledged during that conversation that she understood she could not vote; Ms. Prude testified to the contrary. The Government also introduced substantial evidence of Ms. Prude's conduct on Election Day, though she was not charged in relation to any of her activities on that day; its theory apparently was that her conduct as a poll worker was probative of an intent to defraud at the time she voted, an element of the charge.¹

At the conclusion of a three-day trial, the jury convicted Ms. Prude of voting fraud, and the district court imposed a twenty-four month sentence, to be served concurrently with a sentence imposed by the Wisconsin courts on other charges.

II DISCUSSION

Ms. Prude was convicted under 42 U.S.C. § 1973gg-10.² Ms. Prude now challenges three rulings made by the district court during the course of her trial. Each will be discussed in turn.

A. Rosie Caradine-Lewis' Testimony

Ms. Prude challenges the district court's admission, over her objection, of the testimony of Rosie Caradine-Lewis, the Chief Inspector at the polling location where Ms. Prude worked on Election Day.

At trial, Caradine-Lewis testified concerning the activities of a woman sent to work at her polling location on Election Day. Caradine-Lewis was unable to identify that woman by name and could not recognize Ms. Prude in the courtroom. At one point, in answer to the prosecutor's question, she referred to the woman who was the subject of her testimony as the woman "who you all told me is Kimberly Prude." R.49 at 103. After allowing the foundation questioning to proceed, Ms. Prude's attorney objected: "We don't know who the person is that Miss Lewis is speaking about. She hasn't been able to identify —." Id. at 104. The court interrupted counsel and responded, "No, it goes to the weight, not the admissibility. So the Court will allow it." Id.

Caradine-Lewis proceeded to testify that she had become concerned when, on Election Day, she observed the unidentified registration worker signing a card when no registrant was seated with her. See id. at 108-09. She also testified concerning two registration cards for the same voter, one with different handwriting than the first, both counter-signed by Ms. Prude verifying the identity of the voter.

Ms. Prude specifically contends that the testimony was irrelevant and prejudicial because an appropriate foundation linking Ms. Prude to the woman Caradine-Lewis described had not been laid. Ms. Prude appears to be arguing that the woman to whom Caradine-Lewis referred could have been someone else. By allowing the testimony, she contends, the court suggested to the jury that it should attribute that woman's questionable activities to Ms. Prude.

We review a district court's decision to admit evidence over an objection, including for lack of foundation, for an abuse of discretion. United States v. Thomas, 294 F.3d 899, 904 (7th Cir.2002). Further, we shall not overturn erroneous evidentiary rulings if the error is harmless. United States v. Chavis, 429 F.3d 662, 667 (7th Cir.2005).

We have observed that "no rule of evidence requires a `foundation'; `foundation' is simply a loose term for preliminary questions designed to establish that evidence is admissible." A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir.2001). Ms. Prude's "foundation" objection is essentially that relevance, and therefore, admissibility, were not established and that prejudice resulted to Ms. Prude. See Fed.R.Evid. 401 (stating that relevant evidence is any evidence tending to make the existence of any material fact more or less probable); Fed.R.Evid. 402 (providing that relevant evidence is generally admissible).

The difficulty Ms. Prude faces is that, regardless of whether the admissibility Caradine-Lewis' testimony was correctly decided, the record discloses no actual dispute that, on Election Day, Ms. Prude indeed was the registration worker at the Rose Park Senior Center where Caradine-Lewis had been the Chief Inspector. See R.50 at 244, 268-70. Multiple exhibits introduced by the Government placed Ms. Prude at the registration desk of that location.³ Indeed, during her...