United States v. Morado, No. 71-1309.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: THORNBERRY, MORGAN and CLARK, Circuit
• Citation: 454 F.2d 167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe M. MORADO et al., Defendants-Appellants.
• Docket Number: No. 71-1309.
• Decision Date: 01 February 1972

454 F.2d 167 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
Guadalupe M. MORADO et al., Defendants-Appellants.

No. 71-1309.

United States Court of Appeals, Fifth Circuit.

January 12, 1972.

Rehearing Denied February 1, 1972.

454 F.2d 168

James S. Bates, Edinburg, Tex., Luther E. Jones, Jr., Corpus Christi, Tex., Glenn H. Ramey, Alex W. Gabert, Rio Grande City, Tex., for defendants-appellants.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Jack Shepherd, Edward B. McDonough, Jr., Raul A. Gonzalez, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The eight appellants prosecuting this appeal were convicted by a jury in the court below of violating 18 U.S.C.A. § 241.¹ They were charged with conspiring

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to injure the federally protected right of those voters in Starr County, Texas, who cast ballots in the May 2, 1970 election, not to have their ballots diluted through the casting of unlawful ballots.² The government alleged that the appellants, along with several others not involved here, the majority of them county officials or county employees, had joined together for the purpose of causing a number of improperly delivered, improperly returned, and improperly marked absentee ballots, and applications therefor, to be processed in that election. The case—a lengthy, turbulent, and much-publicized one—began with 22 defendants, each charged under at least one count of a six-count indictment, with being part of a county-wide plot to steal an election. The trial, however, eventually proceeded under but a single count, and with the severance of one defendant, the directed judgment of acquittal as to nine, and the mistrial of four others, only eight were convicted and now protest the outcome. They urge that numerous errors require their convictions to be upset. Two of the eight, Villareal and Alaniz, persuade us. We affirm, however, as to the other six

Before passing to a consideration of the various appellate arguments, and to a recitation of relevant facts, we will dispose of a single point that will help to both clarify and abbreviate the remainder of our discussion: whether or not the appellants successfully conspired is not at issue in this case, and a showing that fraud was actually perpetrated upon legitimate voters in the election is not a requisite element of the proof. The government did not need to show that the election occurred, that vote dilution was accomplished, or that a single illegitimate ballot was cast. In fact, 18 U.S.C.A. § 241 does not require that any overt act at all be shown. Wilkins v. United States, 376 F.2d 552, 562 (5th Cir. 1967); Smith v. United States, 157 F. 721 (8th Cir. 1907), cert. denied, 208 U.S. 618, 28 S.Ct. 569, 52 L.Ed. 647 (1908). Such showings, if made, go only to aid in the establishment of that element without which the government has no case at all—that an actual agreement between two or more persons to accomplish a prohibited object existed —and to the establishment of which of these appellants, if any, were knowing parties to that agreement. It is true, of course, that the more evidence of the successful outcome of the alleged conspiracy and of the individual appellants' causal relationship to that success that can be adduced, the more likely it is that the jury will, and could properly, find that the conspiracy existed. However, contrary to the appellants' assertions, the case against them does not fail, as a matter of law, for the lack of such evidence.

I. SINGLE OR MULTIPLE CONSPIRACY

The indictment contained six counts. The first count charged that all defendants in the case had engaged in a single broad conspiracy. The remaining counts were identical to the first as to the illegal conduct charged, but charged various combinations of less than all the defendants named in the first count. The government asserts that the purpose of charging through six counts rather than one was to allow for the possible conclusion by the jury that the evidence showed separate conspiracies existed relating to particular precincts or ballot boxes, rather than an overall conspiracy relating to the entire election. The defendants objected to the indictment on the ground it would place them more than once in jeopardy for the same offense. The district judge agreed and required the government to proceed under a

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single count alleging a single conspiracy involving all the defendants. Predictably, but not necessarily inconsistently, the appellants allege now that the evidence did indeed show, if anything, that multiple and separate conspiracies occurred, rather than a single one, and that therefore the variance between the indictment and the proof necessitates a reversal under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)

Before this court, the government responds that the defendants have disabled themselves to urge that multiple conspiracies were proved because they caused or invited this error by successfully urging the court to eliminate these counts from the indictment. This argument is specious. It wholly fails to consider the responsibility placed on the government to challenge the court's action in dismissing a count of an indictment within 30 days of the decision. 18 U.S.C.A. § 3731. Having chosen to proceed to trial on the single conspiracy count alone, the government may not negate its duty to prove the charge laid beyond a reasonable doubt by asserting that the defendants invited an error which the government, with full knowledge of what its proof would show, chose to deliberately waive. The government asserts that defendants would attempt to "have their cake and eat it too." This gnome is apposite to this case, but only in its application to the initial position of the United States Attorney, who drafted a conspiracy indictment in such a way that all of these defendants could be tried together for a conspiracy that might prove to be single or might prove to be one of several. The rationale of Kotteakos forbids such an elusive prosecutorial approach.

Accepting arguendo, without deciding that a criminal defendant should be estopped from objecting to any error that he himself induced, we are not convinced we should apply that principle here. There is no inherent inconsistency in appellants' motion to strike counts that subjected them to double jeopardy and their subsequent motion to upset convictions that were based on proof that varied from the reconstituted indictment. A defendant has a fundamental right to be free from both errors. The appellants did not know what evidence the government would introduce; they did not know whether that evidence would tend to show a single or multiple conspiracies. What they did know at the time of their first motion was what the indictment set forth on its face. Their unchallenged success in urging that the trial should proceed on the single conspiracy count in no way forecloses them from attacking their convictions if analysis should demonstrate that the evidence proved, at most, only multiple conspiracies.

Having decided that as a matter of procedure, appellants are entitled to attack their convictions upon this point, we proceed to consider whether their attack has merit. We note at the outset that they must establish not only that a variance between indictment and proof occurred, but that the variance affected "the substantial rights of the parties." Kotteakos, supra, at 775, 66 S.Ct. at 1253. The art of distinguishing between evidence which tends to show a single overall conspiracy, and that which tends to show several separate conspiracies, is a frustrating and challenging one,³ but one that courts must master if the criminal process is to resist en masse prosecutions that permit unreviewable, unmanageable transference of guilt between defendants. The Supreme Court attempted to delineate guidelines for distinguishing the single from the multiple situation in Kotteakos, and in a case decided a year later, Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947). The guidelines presented there are easier to summarize

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than apply. The short hand test, as we said in United States v. Lloyd, 425 F.2d 711 (5th Cir. 1970), is whether or not the illegal agreement in question has "a common end or single unified purpose."

Since Kotteakos was a multiple conspiracy case, while Blumenthal involved a single conspiracy, it is helpful to take brief notice of their particular fact situations. In the former case, the government admitted that eight separate conspiracies involving some 32 defendants had been shown; a single key man, one Brown, who was part of, and directed each of the eight conspiracies, had already pleaded guilty. Brown was the only element common to the eight otherwise completely separate undertakings. No other person took part in more than one of the conspiracies, nor knew about the others, nor was acquainted with persons taking part in the others. Each conspiracy had as its purpose the fraudulent obtaining and processing of loan funds. Though each of the conspiracies had similar illegal objects, none depended upon, was aided by, or had any interest in the success of the others. Blumenthal, on the other hand, involved only five defendants, who were found by the court to have undertaken not two separate conspiracies, but rather a single one. The court relied upon the fact that each of the five knew, or should have known, that others were involved in an overall illegal scheme to sell whiskey. Each knew, or should have known that his activities contributed to a larger plan, and helped to achieve a single common goal. The principles announced in Blumenthal have come to be known as the "common objective" test, and we think they squarely control the case at bar.

Here, the evidence tended to show that a single key man—Rene Solis, the Sheriff...