U.S. v. Slone

Decision Date03 June 2005
Docket NumberNo. 03-6427.,03-6427.
Citation411 F.3d 643
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Phillip SLONE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Chad A. Readler, Jones Day, Columbus, Ohio, for Appellant.

Sabrina A. Houlton, United States Department of Justice, Washington, D.C., for Appellee.

Sabrina A. Houlton, Richard C. Pilger, U.S. Department of Justice, Washington, D.C., Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: SUHRHEINRICH and GIBBONS, Circuit Judges, LAWSON, District Judge.*

OPINION

LAWSON, District Judge.

The defendant, Phillip Slone, appeals his guilty-plea-based conviction and sentence for vote buying in a federal election in violation of 42 U.S.C. § 1973i(c) on three grounds. First, he claims that since his conduct related solely to a candidate for a county office, albeit in an election in which federal offices were on the ballot, the facts he admitted at his guilty plea hearing did not constitute a basis to find him guilty of a federal crime. Alternatively, Slone argues that if section 1973i(c) is found to reach the conduct to which he admitted, the statute is unconstitutional because it exceeds Congress' enumerated powers. Finally, Slone contends that even if his conviction is not vacated, the district court abused its discretion by failing to consider his medical condition as a ground for a downward departure at sentencing. We find no merit in Slone's arguments and therefore affirm his conviction and sentence.

I.

In March 2003, a federal grand jury indicted Phillip Slone on seven counts of vote buying in a federal election in violation of 42 U.S.C. § 1973i(c). Slone, it was charged, offered to pay seven voters fifty dollars each on May 9, 1998 for voting in the primary election to be held on May 26, 1998 in Knott County, Kentucky, "which... was held in part for the purpose of selecting and electing a candidate for the office of Member of the United States Senate." The indictment also charged Slone with lying to an FBI agent in violation of 18 U.S.C. § 1001(a)(2) when he said on January 26, 1999 that he had no knowledge of any vote buying.

Slone eventually pleaded guilty on June 4, 2003 to one count of vote buying in exchange for the government's agreement not to pursue additional charges against him. At the guilty plea hearing, Slone admitted that on May 8, 1998, he met Archie DeWayne Tibbs in downtown Hindman, Kentucky, and offered him fifty dollars to vote by absentee ballot in the Democratic primary election for Homer Sawyer, a candidate for the office of Knott County Judge Executive. Slone took Tibbs to the Knott County Courthouse and instructed him to advise the clerk that he intended to be out of Knott County on the day of the primary election and that he wanted to vote by absentee ballot. After voting, Slone asked Tibbs to sign a piece of paper showing that he had voted and then handed him fifty dollars in cash.

Although Homer Sawyer was not a candidate for a federal office, the primary election included a contest for the United States Senate, as was explained during the following exchange at the plea colloquy:

THE COURT: And now, Mr. Slone, we talked about that in May of 1998, that you were trying to help some candidates for the election that was held in Knott County, Kentucky. Is that correct?

THE DEFENDANT: Yeah.

THE COURT: And which — were you trying to assist somebody who was a candidate for federal office?

THE DEFENDANT: Yeah.

THE COURT: Was that a United States Senate race?

THE DEFENDANT: It was a judge race.

MR. WAGGENER [defense counsel]: Your honor, I believe there's — confused of that matter. It was — he was not trying to assist a federal election. It was a local election held during — I think during the -.

THE COURT: It was a federal election?

MR. WAGGENER: Yes.

THE COURT: There were federal officers on the ballot. Is that correct, Mr. Pilger?

MR. PILGER [AUSA]: Correct, Your Honor. If it will help you out, I can read the facts the United States would prove at trial.

THE COURT: You may do so. And, Mr. Slone, I want you to listen real carefully because I'm going to ask you if Mr. Pilger could prove this if he proceeded to trial.

MR. PILGER: Your Honor, the United States would prove there are federal candidates on the ballot, and there's no need to prove any intent to influence the federal election or to intend to support any particular candidate. If this case proceeded to trial, the United States would prove that on May 26th, 1998, pursuant to the laws of the United States and the Commonwealth of Kentucky, the primary election was held in Knott County, Kentucky, for the purpose of electing, among others, a candidate for the office of Member of the United States Senate.

THE COURT: Is that true, Mr. Slone?

THE DEFENDANT: Yeah. Yeah.

J.A. 61-63.

The district court accepted Slone's guilty plea and held a sentencing hearing on October 15, 2003. During the hearing, Slone's attorney sought a downward departure because of his declining health status. Counsel reiterated the defendant's medical circumstances that were recited in the presentence report, which included a family history of heart disease; two prior heart attacks; open heart surgery; multiple daily medications for his heart disease, back problems, and nervous condition; diabetes requiring daily insulin shots; and deterioration of his eyesight. The district court did not depart downward, but rather sentenced Slone to ten months in custody — the bottom of the Guidelines range — and recommended that he be confined at an institution nearest to his home and family where his physical and medical needs could be addressed.

Slone timely appealed his conviction and sentence.

II.

Slone's arguments implicate the district court's jurisdiction, since he claims that the statute does not encompass his conduct, or if it does it is unconstitutional. These arguments were not raised in the district court, which ordinarily would preclude review on appeal. See United States v. Reed, 141 F.3d 644, 651-52 (6th Cir.1998). However, when jurisdiction is challenged, and where "[t]he question is simply the proper interpretation and application of the [relevant] statute, requiring no new or amplified factual determination, ... the fact that the argument was not raised below is immaterial." United States v. Butler, 207 F.3d 839, 849 (6th Cir.2000) (internal quotations and citations omitted). No additional facts need be determined here, and this court reviews the issues of jurisdiction and the constitutionality of a statute de novo. Greater Detroit Res. Recovery Auth. v. EPA, 916 F.2d 317, 319 (6th Cir.1990); Reed, 141 F.3d at 651.

A.

The statute under which Slone was charged is 42 U.S.C. § 1973i(c), which states:

Whoever knowingly or willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or 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 only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.

Slone insists that this statute cannot be read to extend to conduct that affects candidates for local offices only, and Congress never intended misconduct such as his to be subject to federal prosecution. He reasons that when an elector is paid to vote for a state — but not a federal — candidate on the ballot, there is no vote buying in a "federal election" and thus no violation of § 1973i(c). In support of his argument, Slone cites Blitz v. United States, 153 U.S 308, 14 S.Ct. 924, 38 L.Ed. 725 (1894), in which the Supreme Court interpreted an earlier version of a federal statute regulating election practices and stated: "If, in voting for a state officer at such election, he knowingly personated and voted in the name of another, it was an offense against the state, punishable alone by the state, although the general election at which he voted was one at which a representative in congress was chosen." Id. at 313, 14 S.Ct. 924. The statute in that case made "it an offense for any person to knowingly personate and vote, or attempt to vote, in the name of another person, whether living, dead, or fictitious, at an election for representative or delegate in congress." Id. at 312, 14 S.Ct. 924. The Court construed the statute narrowly because it found that "[t]he object of section 5511 was to prevent frauds that would affect the vote for representatives in congress, and not to bring elections for state officers under the control of the general government." Id. at 313, 14 S.Ct. 924. That legislation was superseded by the Voting Rights Act of 1965, which is the source of the statute under consideration in this case.

To accept Slone's argument, we must read the term "election" in the present statute to mean an individual contest on a ballot. That construction, however, would distort the term, especially when read in context. Elections are events at which multiple office holders and ballot proposals are or may be chosen. Section 1973i(c) refers to "general elections," "special elections," and "primary elections," the purpose of which, "solely or in part," is to select candidates for various federal offices. Construing the word "election" to refer...

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