United States v. Pleva

• Decision Date: 25 July 1933
• Docket Number: No. 454.,454.
• Citation: 66 F.2d 529
• Parties: UNITED STATES v. PLEVA et al.
• Court: U.S. Court of Appeals — Second Circuit

66 F.2d 529 (1933)

UNITED STATES v. PLEVA et al.

No. 454.

Circuit Court of Appeals, Second Circuit.

July 25, 1933.

George Z. Medalie, U. S. Atty., of New York City (J. Edward Lumbard, Jr., William B. Herlands, Seymour M. Klein, Russell H. Dorr, and Joseph G. Miller, Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Slade & Slade, of New York City, for appellant Pleva.

Sanford H. Cohen, of New York City, for appellant Schwartz.

Before MANTON, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellants were two of four inspectors appointed by the board of elections for the Sixth election district of the Fourth assembly district within the Southern district of New York to act as such at the polling place of the above election district at the general election held November 8, 1932, to elect presidential electors, a United States Senator, and Representatives in Congress, as well as state and city officers. They had both acted as inspectors before: Pleva for ten years and Schwartz for seven. A voting machine was used, and a part of their duties, as to which they were given special instruction, was to take the figures from the back of the machine where the number of votes cast for each candidate appeared and enter them upon tally sheets. The number of votes so entered upon the sheets became the official count, and that number was credited to each candidate as the vote received by him in that election district.

Pleva was a Democratic inspector and was chairman of the board of inspectors. Schwartz was a Republican inspector. When the polls were closed; they locked the front of the machine; went to the back of it, unlocked the apron to expose the count as recorded on the machine; and read off the numbers. The machine had been moved to within six or eight feet of a table where two other inspectors sat with an assistant to enter upon the tally sheets the vote as called off. The rear of the voting machine could not be seen from the table, and the light in the room was not good enough to permit reading off the numbers. To do this, two flash-lights were used at first and then only one. Pleva called off the numbers while Schwartz observed what he was doing. At times a request to repeat the vote was made from the table where it was being tallied, and Schwartz repeated it. In three instances the votes called off totaled more than the whole number of votes which could have been cast for the office, and, when this fact was discovered, as it was during the tally, an adjustment was made. None of the eighty-nine totals as they appeared on the voting machine were called off and entered on the tally sheets correctly. Those for eighteen Democratic candidates were all raised; those for sixteen Republican candidates were raised, and for two decreased. The vote cast for every other candidate was decreased. The official tally sheets, incorrectly showing the results as above indicated, were signed by each inspector, and were filed in the county clerk's office the following day by Pleva.

The defense sought to explain the errors in the tabulation of the vote as being mistakes due to poor light and confusion in the room. Notwithstanding that, the evidence was ample to justify the jury in believing that the false record was made in furtherance of the conspiracy charged in the indictment. The indictment was attacked by demurrers by both appellants on the broad ground that no federal crime was charged. The gist of the allegations was that the appellants conspired to record falsely the votes cast for federal officers and so to injure and oppress unnamed and unknown legal voters in this election district by not correctly counting and reporting their votes as cast.

In the argument now made in support of the demurrers, the ground covered in United States v. Mosley, 238 U. S. 385, 35 S. Ct. 904, 59 L. Ed. 1355, is turned over anew. The distinction there recognized between the rights of candidates and the rights of voters is presented as a reason for holding that Criminal Code § 19 (18 USCA § 51), is not applicable to the facts alleged since, by repealing the other sections of the comprehensive election laws passed originally in 1870, Congress left such things as are here shown to be dealt with exclusively under the laws of the state in which the election is held. In view of the decision in the Mosley Case, supra, it seems unnecessary to do more than point out that this indictment charges the conspiracy as one to injure and oppress voters, not candidates for office, and that it is self-evident that a legal voter is injured unless he is not only permitted to vote, but to have his vote counted as cast. The attempt to distinguish the Mosley Case on the facts in that there paper ballots were cast and all uncounted while here a voting machine was used and the vote incorrectly recorded is wholly unreal. The methods used to falsify the returns differed as the means provided for voting made necessary, but the offense in each instance was the same. In United States v. Gradwell, 243 U. S. 476. 37 S. Ct. 407, 61 L. Ed. 857, the acts charged as federal offenses were at primary elections; and the allegations were that candidates, not voters, had been injured and oppressed. Moreover, three of the indictments were for alleged violations of section 37 of the Criminal Code (18 USCA § 88). In United States v. Bathgate, 246 U. S. 229, 38 S. Ct. 269, 62 L. Ed. 676, not only was one of the counts based on section 37, Cr. Code, but the conspiracy was to bribe voters rather than to deprive voters of the personal right to vote and have their votes counted and returned as cast. This latter offense was expressly reaffirmed to be covered by section 19, Cr. Code (18 USCA § 51), under which these appellants were indicted. Chavez v. United States (C. C. A.) 261 F. 174 was similar to the Bathgate Case, in that no violation of the personal right of a voter to vote was charged.

The further ground of demurrer that the voters who were injured were not specifically named is untenable. While the allegation that legally qualified voters who voted in this election district were injured and oppressed by not having their votes counted and returned as cast charged an invasion of the personal right of voters, and so was covered by the section Congress saw fit to retain, the violation of this section is a public wrong. In proving the offense, it is therefore of no moment to allege which voters, among those who voted, were deprived of the right to have their votes counted and returned as cast. One of the objects to be attained in our method of voting is to make it impossible for anyone but the voter to know how he voted. And, when a voting machine is used by numerous voters who vote for numerous candidates and some votes are tallied for every candidate, it is, of course, impossible to know whether the vote of any particular voter has been correctly tallied or not, unless all the votes cast are correctly tallied. Nor can an accused be embarrassed in his defense by the fact that no individual voter is identified by name in the indictment. Even if known, the failure to allege the name of an injured voter would not make the indictment demurrable, though the government in that event might be, on motion, required to disclose whose votes were not correctly tallied. It is obvious that, if the government had to allege and prove the names of the individual voters whose votes were miscounted in erroneously taking the tally from a voting machine, this statute would in every practical way be a nullity as applied to such an election as this. While such a consideration is not decisive, any such nullification of the law is to be avoided unless there are compelling reasons for not doing so, and there are none here.

The plea in bar of Schwartz was based on the fact that he had been called as a witness and had testified before the grand jury which found the indictment. His claim to immunity for that reason is contrary to Kaplan v. United States (C. C. A.) 7 F.(2d) 594, and cannot be sustained. The claim that he was entitled to a continuance when his plea was overruled is merely frivolous.

During the trial, evidence was admitted under exception to show that, while the voting was being done, there was some confusion in the room and some persons voted more than once, and that, while the tally was being taken from the voting machine, a large number of persons gathered around it in such a way that duly authorized watchers could not readily check the tally being made. The relevancy of the conditions prevailing while the vote was being cast is not easy to discern since it apparently could have had no part in the later incorrect tabulation of the result of the voting, but neither can it be perceived that the admission of this evidence, if strictly it were erroneously admitted, was in any respect harmful. The evidence of conditions which prevailed when the tally was made was properly admitted to show how the conspiracy was carried into effect. It is claimed that the evidence of repeater voting was admissible to show the fraudulent intent of the appellants in the conduct of the election and to characterize the erroneous tally as one intentionally so taken in furtherance of the conspiracy alleged. It was not inadmissible simply because it tended to show the commission of a crime under state law. Greater New York Live Poultry Chamber of Commerce v. United States (C. C. A.) 47 F.(2d) 156. The conduct of the appellants and what was done at the polls just previous to and during the taking of the tally was so closely related to the offense charged that it was admissible to show that all was part of a common plan designed, and carried out to injure and oppress voters as alleged. Proof tending to show the appellant's intent was admissible to prove the conspiracy, and this evidence went to show that the errors in the tally were not innocent ones, but were the result of a...