Appendix — Anderson v. United States

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 72-1069

Unrtep States or Amenica, Appellee,

versus

Wurm N. Anverson, JoHN R. Brownrnc, Ernest L.

‘*Rep’’ Hacer, W. Bernarp Smits and Ear. TomBuin,

Appellants.

Appeal from the United States District Court for the

Southern District of West Virginia, at Huntington.

John A. Field, Jr., District Judge.

(Argued February 8, 1973. Decided June 26, 1973.)

Before Wriyteg and Russe, Circuit Judges, and Murray,

District Judge.

Philip A. Baer (Baer and Napier; Robert H. Burford and

Beckett, Burford and James on brief) for Appellants;

Robert B. King, Assistant United States Attorney, (John

A. Field, II, United States Attorney, on brief) for

Appellee.

RussELu, Circuit Judge:

The defendants were convicted by a jury of violating

Section 241, 18 U.S.C., which makes it a crime for two or

more persons to conspire to injure any citizen in the free

exercise or enjoyment of his federal constitutional rights.

The prosecution arose out of a primary election in Logan

County, West Virginia. The offense involved the alleged

‘‘stuffing’’ of the ballot box with illegal ballots at one of

the voting precincts during such election. The defendants

2a

have appealed. We find no error in the trial below and

affirm. 7

L

The defendants level their first attack against the indict-

ment itself. According to their argument, the indictment

consisted of ‘‘only legal conclusions’’, was ‘‘totally devoid

of any allegation of fact constituting or describing the of-

fense intending [sic] to be charged’’, and was defective

for failure ‘‘to allege that the conspiracy related to votes

for candidates for Congress and the United States Sen-

ate’’. Even a hasty reading of the indictment, however,

demonstrates that this claim is, to use the defendants’ own

phrase, ‘‘totally devoid’’ of merit. The indictment ex-

plicitly alleged that the election was ‘‘held within the State

of West Virginia for the purpose of nominating candidates

for the offices of United States Senator, Representative to

Congress, and various state and county public offices.’’ '*

It identified the election precinct where the alleged con-

spirators proposed to accomplish their illegal acts (1.e.,

‘‘the Mount Gay precinct’’) and described with as much

particularity as the indictment in United States v. Saylor

(1944) 322 U.S. 385, the wrongful acts intended to be ac-

complished by the conspirators in such precinct (t.e., ‘‘to

cause fraudulent and fictitious votes to be cast in said

precinct’’). The indictment thus stated an offense under

Section 241 with as much precision as was required. Fields

v. United States (4th Cir. 1955) 228 F.2d 544, 545-6, cert.

denied, 350 U.S. 982; United States v. Morado (5th Cir.

1972) 454 F. 2d 167, 169.

Il.

In addition to their motion to dismiss on the ground of

defective indictment, the defendants filed successive mo-

tions for a bill of particulars, for a preliminary hearing,

for access to the grand jury testimony, for copies of all

statements of any of the defendants in the possession of

18 Cf., III(c) hereof, as to whether jurisdiction under Section

241 is confined to federal elections.

es ADRES SE is 2 TIDES IMEI" ID

3a

the Government, and finally ‘‘for full disclosure as pro-

vided under the Omnibus Hearing Project’’,’ including

‘¢al] documents and exhibits expected to be used in the said

trial’’, any records or statements in the Government’s files

that will ‘‘tend to exculpate, absolve or exonerate any one

of the defendants,’’ and ‘‘a list of anticipated witnesses

expected to be used, together with a sentence summary of

their testimony.’’ They predicated their motion ‘‘for full

disclosure’’ on the assertion ‘‘that the indictment is so

vague and indefinite that it is impossible adequately to

prepare a defense or properly advise their clients’’, a claim

which represented substantially the basis for their motion

to dismiss and a claim which we have already found with-

out merit. The defendants made no claim of ‘‘particular-

ized need’’ in their other motions. In opposing the mo-

tions, the Government stated that it had in its possession

no written statements of the defendants and that it had no

‘‘exculpatory material’’ in its files.2 All of the motions

&

1This motion was apparently drafted in line with Section 5.3

of the Standards Relating to Discovery and Procedure Before Trial,

American Bar Association Project on Standards for Criminal

Justice, approved August, 1970. See, Oliver, Omnibus Pretrial

Proceedings: A Review of the Experience of th? United States Dis-

trict Court for the Western District of Missours, 58 F.R.D. 270

(1973).

2The Motion for discovery of exculpatory material rests, of

course, on Brady v. Maryland (1963) 373 U.S. 83, as further ex-

plicated in Moore v. Illinois (1972) 408 U.S. 786, 794-5:

‘‘The heart of the holding in Brady is the prosecution’s

suppression of evidence, in the face of a defense production

request, where the evidence is favorable to the accused and is

material either to guilt or to punishment. Important, then,

are (a) suppression by the prosecution after a request by the

defense, (b) the evidence’s favorable character for the de-

fense and (c) the materiality of the evidence.’’

Diselosure required under this rule exists, however, whether a

motion be made or not. Barbee v. Warden, Maryland Penitentiary

(4th Cir. 1964) 331 F. 2d 842, 845-6. And the Government must

act in good faith in discharging this duty; if in doubt, it should

guimit the material in question to the court itself for tm

4a .

were denied by the District Court. We find no error in

such denials, and discuss them seriatim.

camera review. For an interesting discussion of what may

be deemed ‘‘exculpatory material’’ within the rule, see, Ingram

v. Peyton (4th Cir. 1966) 367 F. 2d 933, 936; Barbee v. Warden,

supra, (331 F. 2d 842); 44 F.R.D. 500-5. An assurance by the

Government that it does not possess exculpatory evidence, absent

a particularized showing of its existence and materiality by the

defendant, will not support a reversal of a trial court’s denial

of an tm camera inspection by the Court of the Government’s

file. United States v. Crisona (2nd Cir. 1969) 416 F. 2d 107,

116; United States v. Gonzalez (5th Cir. 1972) 466 F. 2d 1286,

1288 ; United States v. Isaacs (D.C. Ill. 1972) 347 F. Supp. 743,

759; cf., however, Nakell, Criminal Discovery for the Defense

and the Prosecution—The Developing Constitutional Consid-

erations, 50 N.C.L.R. 437, at 458. No attempt at such a

showing in this case was made, though the defendants did suggest

that perhaps the witness Napier had given a single negative state-

ment in his testimony before the grand jury that could be con-

sidered exculpatory. The trial court did not find the answer ex-

eulpatory, but, if the statement was, it was made available to the

defendants at trial before Napier was cross-examined. This was

timely under the circumstances of this case. The Supreme Court

‘‘has never pinpointed the time at which the disclosure [under

Brady] must be made.’’ Nakell, supra (50 N.C.L. Rev. 437, 452).

Disclosure should, however, be made ‘‘at a time when the dis-

closure would be of value to the accused’’ and ‘‘at least, before

the taking of the accused’s evidence is complete.’’ Hamric v.

Bailey (4th Cir. 1967) 386 F. 2d 390, 393. See, also, United States ,

v. Elmore (4th Cir. 1970) 423 F. 2d 775, 779. As suggested in

Hamric, it may well be that in a more complicated situation, where

there is exculpatory evidence having ‘‘a material bearing on de-

fense preparation’’, the Government should provide the defense

with the exculpatery material prior to trial, otherwise the defense

would not be able to ‘‘capitalize’’ on it. Cf., United States v.

Ahmad (D.C. Pa. 1971) 53 F.R.D. 186, 1934; United States v.

Cobb (D.C.N.Y. 1967) 271 F. Supp. 159, 163 aff’d., 396 F. 2d 158;

United States v. Gleason (D.C.N.Y. 1967) 265 F. Supp. 880, 884-5.

In this case, though, the so-called exculpatory evidence consisted

of a single categorical answer. The defense could not have been

prejudiced by not being afforded such bare answer prior to trial.

Cf., United States v. Elmore, supra, (423 F. 2d 775).

For a general discussion of Brady, see, Note, Brady v. Maryland

and the Prosecutor’s Duty to Disclose, 40 U. Chi.L.Rev. 112 (1972).

5a

(a) Motion for a Bill of Particulars

A motion for a bill of particulars is addressed to the

sound discretion of the trial court, and, absent a showing

of abuse of discretion, the ruling of the trial court will not

be disturbed on appeal. United States v. Dulin (4th Cir.

1969) 410 F.2d 363, 364; United States v. Baggett (5th

Cir. 1972) 455 F.2d 476, 477; United States v. Cooper

(10th Cir. 1972) 464 F. 2d 648, 654; United States v. Gray

(8th Cir. 1972) 464 F.2d 632, 635. Ordinarily, the func-

tion of a bill of particulars is not to provide ‘‘detailed dis-

closure of the government’s evidence in advance of trial’’

but to supply ‘‘any essential detail which may have been

omitted from the indictment.’’ Dillen v. Waimwright (5th

Cir. 1971) 449 F. 2d 331, 332; United States v. Cansler (7th

Cir. 1969) 419 F.2d 952, 954; Hemphill v. United States

(8th Cir. 1968) 392 F. 2d 45, 49, cert. denied 393 U.S. 877.

The information sought by the defendants in their motion

was the entire range of evidence on which the Government

relied, including the names of all witnesses to be used by

the Government. Denial of such a disclosure, ‘‘whether

requested by motion for Bill of Particulars under Rule

7(f), or by a motion for discovery under Rule 16(b), Fed-

eral Rules of Criminal Procedure’’, will not be considered

an abuse of discretion on appeal. United States v. Bag-

gett, supra (476 F.2d at 477). Particularly is this true

where the Government, while resisting the broad scope of

the motion, expresses, as it did in this case, its willingness

‘‘to provide the defendants with more details’’ should the

defendants ‘‘frame their inquiries in such form that they

may be answered without calling upon the Government to

divulge its entire case.’’ The defendants made no effort

to take advantage of this offer of the Government. These

circumstances in particular preclude a successful conten-

tion by the defendants that the trial court abused its dis-

cretion.

Siena ee

6a

(b) Demand for a Preliminary Hearing

Nor can a defendant demand a preliminary hearing after

indictment, which was the posture of the prosecution when

the defendants moved for a preliminary hearing. Section

3060(e), 18 U.S.C.; United States v. Mackey (4th Cir.

1973) 474 F.2d 55, 57; United States v. Farries (3d Cir.

1972) 459 F. 2d 1057, 1061, cert. denied _. U.S. —-; United

States v. Coley (5th Cir. 1971) 441 F. 2d 1299, 1301; Umited

States v. Chase (4th Cir. 1967) 372 F. 2d 453, 467, cert. de-

nied 387 U.S. 907; Braxton v. Peyton (4th Cir. 1966) 365

F. 2d 563, 565, cert. denied 385 U.S. 939.2 The purpose of

_a preliminary hearing is not to provide a discovery mech-

anism for the defendant, though this may be a collateral

or incidental benefit from the hearing, but merely to deter-

mine ‘‘whether probable cause exists to bind an accused

for action by a grand jury.’’ United States v. Chase, supra

(372 F.2d at 467); United States v. Mackey, supra (474

F.2d at 57); United States v. Brumley (10th Cir. 1972)

466 F.2d 911, 915; cf., Ross v. Sirica (D.C. Cir. 1967) 380

F.2d 557.4 After indictment, a preliminary hearing

3 See, also, Jaben v. United States (1965) 381 U.S. 214, 220,

reh. den. 382 U.S. 873, where the Court said that, under Rule 5,

Federal Rules of Criminal Procedure, a preliminary hearing was

required, “‘unless before the preliminary hearing is held, the grand

jury supersedes the complaint procedure by returning an indict-

ment.’”’ (Italics added.)

4For a discussion of Ross, see, United States v. Milano (10th

Cir. 1971) 443 F.2d 1022, 1025, cert. denied 404 U.S. 943:

‘‘Defendant relies on Blue v. United States, 119 U.S.App.

D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944,

85 S. Ct. 1029, 13 L.Ed.2d 964 (1965), and Ross v. Sirica, 127

U.S.App.D.C. 10, 380 F.2d 557 (1967), which did say that

the preliminary examination also provided the defendant with

discovery. But that is merely an incidental benefit—which

varies widely from case to case depending on how much evi-

dence the government produces at this early state—and not

the statutory purpose. Blue and Ross have not been followed

in other circuits. Cf. United States v. Karger, 439 F.2d 1108

7a

‘would be an empty ritual’. Barber v. United States (4th

Cir. 1944) 142 F.2d 805, 807, cert. denied 322 U.S. 741;

Sciortino v. Zampano (2nd Cir. 1967) 385 F.2d 132, 133,

cert. denied 390 U.S. 906; United States v. Daras (9th Cir.

1972) 462 F. 2d 1361, 1362, cert. denied _. U.S. —-; Crump

_ vy. Anderson (D.C. Cir. 1965) 352 F.2d 649, 655-6; Dillard

v. Bomar (6th Cir. 1965) 342 F.2d 789, 790, cert. denied

382 U.S. 883; Vincent v. United States (8th Cir. 1964)

337 F.2d 891, 896, cert. denied 380 U.S. 988, reh. denied

381 U.S. 947.5

(c) Discovery of Grand Jury Testimony

Except for his own testimony, a defendant is not entitled

of right to pre-trial access to the testimony before the

grand jury: The obligation of the Government is merely

to make available to the defendant the testimony of a wit-

ness before the grand jury at the conclusion of the direct

testimony of such witness at trial and then only if the de-

fendant shows a ‘‘particularized need’’ for such disclos-

ure. This was our holding in United States v. Johnson

(1st Cir. 1971). Moreover, 18 U.S.C. § 3060 was enacted after

both cases, and, we think, clarifies the statutory purpose.’’

This language is reiterated in United States v. Brumley, supra

(466 F.2d at 915-6).

It has been suggested that if the preliminary hearing is ex-

panded into a discovery proceeding, there is danger of a ‘‘trial

before a trial,’’ a procedure that would bog down the expedient

administration of criminal courts. Note, Toward Effective Crim-

inal Discovery: A Proposed Revision of Federal Rule 16,15 Vill.

L. Rev. 655 at 678 (1970).

5 Cf., however, Nakell, Note, supra, at 468.

‘© @ © © Coleman [Coleman v. Alabama, 399 U. S. 1] could

be interpreted to provide a constitutional right to a prelim-

inary hearing * * *.’’

But, cf. concurring opinion of Justice White in Coleman (399 U. S.

at 17-8).

* For a discussion of what may constitute ‘‘particularized need’’,

* see, Note, Defense Access to Grand Jury Testimony: A Right in

Search of a Standard, 1968 Duke L. J. 556.

8a

(4th Cir. 1969) 419 F. 2d 56, 59, cert. denied 397 U.S. 1011."

Even where a defendant alleges a ‘‘particularized need’’

(which the defendants have not done in this case), the de-

nial of access at trial will be disturbed on appeal only if

the finding by the trial court against the claim of ‘‘partic-

ularized need’’ was clearly erroneous. Ustted States v.

Bryant (4th Cir. 1966) 364 F. 2d 598, 600; Posey v. United

States (5th Cir. 1969) 416 F.2d 545, 557, cert. denied —

U.S. —, reh. denied 397 U.S. 1031. This ruling conforms

with the Jencks Act, as amended in 1970, Section 3500

(c)(3), 18 U.S.C.® and is in line with the majority rule as

™In Johnson, the Court said (419 F.2d at 59):

‘Johnson argues that recent decisions allow automatic

access to grand jury testimony and that no longer must a

defendant make a showing of particularized need for examining

the grand jury’s minutes. None of these decisions, however,

require disclosure of all grand jury testimony as a matter of

right. The'Second and Seventh Circuits afford the broadest

disclosure for the purposes of impeachment. There, in the

absence of sound reasons for a protective order, a defendant

may examine the grand jury testimony of a witness on sub-

jects about which the witness testified at the trial.’’

It would seem, however, the Seventh Circuit has now adopted

the view expressed in Johnson. See, United States v. Cerone (7th

Cir. 1971) 452 F.2d 274, 287:

‘<@ ® © Grand jury minutes are not available as of course

to defendants in federal criminal trials, but rather may be

made available in the exercise of the trial court’s discretion

when the defense has shown that ‘a particularized need’ exists

for the minutes which outweighs the policy of secrecy [of the

grand jury’s proceedings].’’

8 See 1 Wright, Federal Practice and Procedure (1972 Supple-

ment), § 254, at 130, n. 91:

‘As a part of the Organized Crime Control Act of 1970,

the Jencks Act was amended to include in the definition of

‘statement’ in 18 U.S.C._A. § 3500(c) the following new pro-

vision: ‘(3) a statement, however taken or recorded, or a

9a

established in the several circuits. United States v. Daras

(9th Cir. 1972) 462 F.2d 1361, 1362, cert. dented -. U.S.

__; United States v. Quintana (10th Cir. 1972) 457 F.2d

874, 878, cert. denied __ U.S. --; United States v. Doe (1st

Cir. 1972) 455 F. 2d 1270, 1274; United States v. Harflinger

(8th Cir. 1970) 436 F. 2d 928, 935, cert. dented 402 U.S.

973; United States v. Bass (8th Cir. 1973) 472 F.2d 207,

210; see, also, Proposed Amended Rule 16 (VI)(3), Fed-

eral Rules of Criminal Procedure, 48 F.R.D., at 590.

(d) Motion for Full Disclosure as Part of Omnibus

Pre-trial Proceedings

Finally, the defendants sought by their ‘‘motion for full

disclosure’? under Rule 16(b) to compel the pre-trial pro-

duction by the Government of all documents to be intro-

duced and a list of all witnesses to be used, along with a

summary of their testimony.* While, since the 1966 amend-

ment, courts have been more liberal in their grant of relief

under Rule 16(b), the granting of relief under that Rule

remains ‘‘a matter within the sound discretion of the dis-

trict court’’ and the action of the district court, in denying

such relief, ‘‘is reviewable only for an abuse of discretion.”’

United States v. Cole (8th Cir. 1972) 453 F. 2d 902, 904;

United States v. Pope (7th Cir. 1969) 409 F.2d 371, 374.

As a matter of fact, the Government asserted that all docu-

ments to be introduced by it were included in the record of

the election contest, which it tendered to the defendants.

transcription thereof, if any, made by said witness to a grand

jury.’ >?

See, also, U. S. Code Cong. & Admn. News, 91st Cong. 2d Sess.,

1970, at 4017, Pub. L. 91-452, 84 Stat. 926; but, cf., United States

v. Duffy (D.C. Ill. 1972) 54 F.R.D. 549, 550.

® Pre-trial hearings in criminal cases have in recent years been

encouraged and a number of District Courts have developed pro-

cedures for such hearings. See, Oliver, Omnibus Pretrial Proceed-

ings, supra (58 F.R.D. 270) and Advisory Committee Note, Pro-

posed Amended Rule 16, 48 F.R.D. 604.

10a

As for the demand of the defendants for a list of the Gov-

ernment’s witnesses, they were not entitled of right, in this

non-capital case, to such pre-trial disclosure. United

States v. Chase, supra (372 F.2d at 466); United States

v. Elmore, supra (423 F.2d at 779, n.7); United States v.

Harflinger, supra (436 F.2d at 936); United States v.

Wolfson (2nd Cir. 1969) 413 F. 2d 804, 808; United States

v. White (5th Cir. 1971) 450 F. 2d 264, 268, n.6. The trial

court, of course, ‘‘in its discretion may order the govern-

ment to produce such a list under Rule 16, Federal Rules

of Criminal Procedure.’? United States v. Jordan (4th

Cir. 1972) 466 F.2d 99, 101.*° In this case, it is quite ob-

vious why the court may well have considered inappropri-

ate any such discretionary pre-trial order requiring the

government to provide defendants with a list of its wit-

nesses in this case. The persons involved were all power-

fully-placed public officials in a small county in which all

the witnesses lived. There were suggestions that already

persons conversant with the facts in the case had been

harassed." Moreover, there had been an earlier hearing

in the county court. The persons who had knowledge of

the facts were well known to the defendants and in the

main had testified at this election hearing. In the light of

all these circumstances, it cannot be said that the trial court

abused its discretion in denying to the defendants a pre-

trial list of the Government’s witnesses.

Nor were the defendants entitled to a summary of the

testimony to be given by such witnesses. The Court in

10 See, also, Will v. United States (1967) 389 U. S. 90, 99;

United States v. Houston (D.C.Ga. 1972) 339 F. Supp. 762, 765;

Proposed Amendments to Criminal Rules, 48 F.R.D. 553, 603-4;

Note, Discovery of Witness Identity under Preliminary Proposed

Federal Criminal Rule 16, 12 W. & M.L. Rev. 603 (1971); and

Orfield, List of Witnesses and Jurors in Federal Criminal Cases,

44 F.R.D. 527.

11 See the comments of the United States Atttorney for Con-

necticut on this possibility of harassment as a reason for denial of

a list of government witnesses in 44 F.R.D. at 499 (1968).

lla

Sendejas v. United States (9th Cir. 1970) 428 F.2d 1040,

1046, cert. dented _. U.S. —, correctly stated the control-

ling rule in this connection thus:

‘‘There is nothing as plain as the statute [i.e., the

Jencks Act] in terms of stating that no pretrial state-

ment in the possession of the government shall be sub-

ject to subpoena, discovery or inspection until the indi-

vidual witness has testified on direct examination in

the trial of the case and then only after proper motion

by the defendant.’’ (Italics in the opinion.)

Actually, the trial court construed the motion of the de-

fendants as intended. to ‘‘require that the Government dis-

close to the defendants the details, witnesses and minutiae

of the Government’s case against the defendants.’’ Taken

as a whole, the motions of the defendants were what might

be described as ‘‘a shotgun fishing expedition for evi-

dence,’’ United States v. Crisona (D.C. N.Y. 1967) 271 F.

Supp. 150, 158, and as ‘‘overly broad in scope’’, United

States-v. Wolfson, supra (413 F.2d at 808). Rule 16 does

not require ‘‘the prosecution to disclose all the minutia

[sic] of its evidence, to reveal its trial strategy, and to

delineate with total specificity the case it intends to pre-

sent.’? Untted States v. Fioravanti (3d Cir. 1969) 412 F. 2d

407, 411, cert. dented 396 U.S. 837. Under the circum-

stances of this case, we find no error in the denial of such

a motion.

Ii.

The defendants next contend that the District Court

erred in the admission of the sworn testimony of the de-

fendants Earl Tomblin and John R. Browning, taken at

the state hearing on the protest filed by the defeated candi-

date for County Judge and involving the Mount Gay ballot

box. There is, however, considerable ambivalence and

vacillation of position on the part of the defendants with

reference to this claim of inadmissibility in this connection.

When the evidence was first proffered, the defendants ap-

12a

parently contended that no statement by a defendant was

admissible in the prosecution’s case in chief because,

‘¢(T)his is a manner of in effect placing him on the witness

stand by reading his testimony’’, violative of the defend-

ant’s constitutional ‘‘right to stand mute’’. Later, in the

same colloquy, the defendants suggested that, since the

testimony was given ‘‘in a judicial hearing’’, there might

be Miranda problems. Subsequently, the defendants moved

to strike the testimony, as against any defendants other

than the one whose prior testimony was being proffered as

evidence. It would seem that, for purposes of this motion

to strike at least, the defendants were then conceding that

the evidence was admissible against the defendant whose

testimony at the election contest hearing was proffered but

against no other defendants. On reaching this Court, how-

ever, the defendants began a new line of attack on this

testimony, entirely different from any advanced in the trial

below.. In their brief in this Court, they argue that the

testimony of Tomblin and Browning at the election con-

test hearing was offered for purposes of impeaching the

credibility of those two defendants and that, since those

defendants had exercised their constitutional right not to

testify, the admission of such evidence violated their Fifth

Amendment rights. Finally, during oral argument in this

Court, the question arose whether the conspiracy forming

the basis of the prosecution, so far as federal jurisdiction

over the conduct of the defendants is concerned, ended with

the certification of the nomination of the candidates for

federal office, thereby making inadmissible against all other

defendants any statements made by Tomblin or Browning

at the subsequent election contest hearing.

Ordinarily, we would not. consider grounds of objection

not presented in the trial court.’? This, it would seem,

12 Nelms v. Laird (4th Cir. 1971) 442 F.2d 1168, 1169, rev'd.

on other grounds, 406 U.S. 797 (1972); McGowan v. Gillenwater

(4th Cir. 1970) 429 F.2d 586, 587; McKissick v. United States

(5th Cir. 1967) 379 F.2d 754, 759.

13a

would be a particularly appropriate action in this case,

where the defendants have shifted so often in their conten-

tions. However, the rule is not applied inflexibly. Where

injustice may result the Court may consider other grounds

than those pressed on the trial court.* Exercising that

discretion, we shall consider all the grounds of objection

raised by the defendants.

(a) Alleged Inadmissibility as Evidence Intended

Solely for Impeachment

As we have stated, it is the position of the defendants,

raised by their brief in this Court but not before the trial

court, that the sole purpose of the Government in intro-

ducing the testimony given by Tomblin and Browning at

the earlier election contest was to impeach the credibility

of those defendants and that the introduction of such testi-

mony effectively and unfairly impeached the credibility of

all the defendants. Testimony at an earlier trial, they

argue, is admissible for impeachment purposes only if the

defendant whose earlier testimony is to be used has testi-

fied. In support of this theory of inadmissibility, the de-

fendants cite in their brief two Texas cases. Neither sus-

tains their position. If anything, they uphold the admissi-

bility of the testimony. In the first of these cases, Scherpig

v. State (1929) 112 Tex. Crim. Rep. 61, 13 S.W. 2d 872, a

portion of the testimony of the defendant in another trial

was offered in evidence by the prosecution and admitted.

Thereafter, the defendant, who did not testify, offered

other parts of the testimony of the defendant. In rebuttal,

the prosecution offered the complete testimony of the de-

fendant at the earlier trial but ‘‘only for the purposes of

impeaching the defendant’s credibility’’, and the Court

specifically instructed the jury that it could consider that

18 Wratchford v. S. J. Groves & Sons Company (4th Cir. 1969)

405 F. 2d 1061, 1063; In re Elmore (D.C.Cir. 1967) 382 F. 2d

125, 127.

14a

statement solely for purposes of impeachment. The de-

fendant excepted, contending that the statement, as ad-

mitted in evidence, could not be so limited but was ‘‘before

the jury for all purposes’’. The Court sustained this con-

tention of the defendant, adding (13 S.W. 2d at 873):

‘‘Beyond question what appellant had sworn to on a

former trial of this case, if material to any issue before

the court upon this trial, would be admissible testi-

mony when offered by the state; * * * .”’

It is manifest that, far from sustaining the defendants’

position, this case provides no support for the contention

of the defendants.

Equally inapposite is the other authority cited by the

defendants, Taylor v. State (1917) 82 Tex. Crim. Rep. 210,

199 S.W. 289. There, the prosecution proffered testimony

dealing with other crimes committed by the defendant, en-

tirely unrelated to the offense for which he was then being

tried. Such testimony was offered merely for purposes of

impeaching the credibility of the defendant and not for

purpose of establishing any circumstance or fact relevant

to the pending prosecution. The defendant did not testify.

The Court properly held that testimony relating to the

commission of other crimes by the defendant, some of which

did not even involve moral turpitude, and none of which

had any factual relationship to the offense then before the

Court, was inadmissible simply for impeachment purposes

where the defendant did not testify; but, lest its limited

ruling be misunderstood, the Court added this concluding

sentence (199 S. W. at 290):

‘‘Of course, any incriminating testimony given by

him in the other case could be proved on trial of this

case and as such would be admissible.’’

This authority, again, when examined on its special facts,

supports the admissibility of the testimony of Tomblin and

Browning in the election contest.

15a

The real difficulty with this argument of the defendants

is that the testimony objected to was not proffered ‘‘for

the purpose of impeaching’’ the two defendants by testi-

mony having no relevance to the facts of the instant prose-

cution but as an admission by those defendants of facts

directly related to the instant prosecution. The Govern-

ment offered testimony from one Garrett Sullins that the

latter was not present at the Mount Gay precinct on elec-

tion day and had not voted at that precinct. Tomblin, how-

ever, had testified at the election contest hearing that he

saw Garrett Sullins at the Mount Gay precinct and had ob-

served him as he went in to vote. That testimony was given

by Tomblin and the other conspirators in order to estab-

lish the alleged legality of the challenged vote of Garrett

Sullins and, thus, through a finding of the legality of such

vote and others like it, to secure the dismissal of the elec-

tion contest. The establishment of the validity of this and

other like votes was a necessary and integral part of the

conspiratorial purpose, which was to secure the Democratic

nomination of Okey Hager for County Judge through

‘“stuffing’’ the ballot box with false votes. The record of

Tomblin’s prior testimony was thus not offered to impeach

the credibility of Tomblin or Browning by proof of some

other unrelated criminal record of Tomblin or Browning.

It was offered as proof of acts done in furtherance of the

very conspiracy charged. As such it was manifestly ad-

missible. Contrary to the argument of counsel for the de-

fendants at trial, testimony of a defendant, given at an-

other trial or hearing, is admissible, and this is true

whether the defendant elects to testify in his own defense

or not, Orth v. United States (4th Cir. 1918) 252 F. 569,

570; Edmonds v. United States (D.C. Cir. 1959) 273 F. 2d

108, 112-3, cert. dented 362 U.S. 977; London v. Patterson

(9th Cir. 1972) 463 F.2d 95, 97; Hale v. United States

(10th Cir. 1969) 406 F. 2d 476, 478-9, cert. denied 395 U.S.

977, and whether he appeared as a defendant or witness,

Bottano v. United States (9th Cir. 1925) 7 F.2d 324, 325,

United States v. Cecil (8th Cir. 1972) 457 F. 2d 1178, 1181.

16a

It is of no moment whether the former trial was for the

same offense or for some other, Milton v. Umted States

(D.C. Cir. 1940) 110 F. 2d 556, 559-60, or whether the trial

was a criminal or civil proceeding, Ayres v. United States

(5th Cir. 1952) 193 F. 2d 739, 740-1.

(b) Alleged Improper Admission of Such Testimony

Against Co-conspirators of the Declarant

It will be noted from the record that, when first con-

fronted with this testimony, the defendants contested ad-

missibility on the grounds (1) that such evidence violated

the Fifth Amendment rights of the persons whose prior

testimony was being used and (2) that its admission against

those persons would be in contravention of the rule in

Miranda. The first ground has already been disposed of

under the principles enunciated in Orth v. United States,

supra (252 F. 569). The implication that the rule an-

nounced in Miranda v. Arizona (1966) 384 U.S. 436, might

inhibit the introduction of this testimony is wide of the

mark. Miranda applies to statements procured during

‘‘eustodial police interrogation’’ and has no application to

voluntary testimony such as that involved here, given in

another judicial hearing. As for the contention advanced

in their subsequent motion to strike, that this testimony

was inadmissible against any defendant other than the par-

ticular defendant who had testified,” the District Court

14 See, Schneckloth v. Bustamonte, — U. S. —, 41 L.W. 4726,

at 4733, n. 29, filed May 29, 1973.

15 See, Appendix, p. 855:

‘‘Mr. GREENE: This is all right.

‘‘Now comes the defendant John R. Browning and moves

the Court to strike the evidence or the testimony of Earl

Tomblin taken before the County Court and ask the jury not

to consider it as any evidence as to John R. Browning.

‘*Your Honor, we do not have the right and opportunity

to cross-examine and for many reasons it is obvious that this

OES EE

17a

apparently covered the objection in its instructions which

clarified the circumstances under which the testimony could

be considered by the jury against all defendants, rather

than just against those making the statements—at least,

the defendants did not except to the portion of the charge

in which the District Court set forth the circumstances

under which this testimony could be considered as against

defendants other than the ones whose prior testimony in

another proceeding had been admitted.’*

At the conclusion of the District Court’s charge, how-

ever, the defendants entered an exception that indirectly

put in issue the admissibility of this previous testimony of

Tomblin and Browning as against the other defendants.

They excepted to the District Court’s failure to charge that

the conspiracy ended with the certification of the election

results on May 27, 1970. While the request to charge made

no reference to the election contest, such an instruction,

if given, would have required a revision of the District

Court’s earlier ruling that, if the jury found that the con-

should be stricken from the jury as far as John R. Browning

is concerned.

‘‘Mr. Baer: I would like the record to show the same

motion as to all defendants except the defendant Earl Tom-

blin.”” -

16 Note, immediately after admitting this testimony of Tomblin

into evidence, the District Court instructed the jury as follows:

‘Primarily that evidence could be considered by you only

as bearing upon the guilt or innocence of Mr. Tomblin and

you should view it in that perspective in the first instance.

If, however, you should determine that at the time Mr.

Tomblin gave this testimony in Logan County any conspiracy

existed between him and any one or more of the other defend-

ants and that you should conclude that this had any bearing

on the furtherance of a conspiracy, you could then consider

it as bearing upon the guilt or innocence of the other party

or parties.’’

He restated the same instructions at the conclusion of the

evidence.

18a ~

spiracy continued after the election result certification and

through the election contest hearing, then the testimony

given by Tomblin and Browning at the election hearing

was admissible against all participants in the conspiracy.

Thus, by this request to charge, the defendants posed an

issue that went directly to the admissibility of the chal-

lenged evidence—not as against Tomblin or Browning but

as against the other defendants.

We are of opinion the District Court properly refused

such request to charge and properly left standing his in-

structions with reference to the circumstances under which

this testimony could be considered by them in determining

on the guilt or innocence of the defendants other than

Tomblin and Browning. The flaw in the contention of the

defendants lies in the difference between means and ends.

An unlawful conspiracy is presumed to continue until its

objective or purpose is achieved. United States v. Wechs-

ler (4th Cir. 1968) 392 F.2d 344, 347-8, cert. denied 392

U.S. 932, reh. denied 393 U.S. 902; United States v. Co-

rallo (2nd Cir. 1969) 413 F.2d 1306, 1319-20, cert. denied

396 U.S. 958; United States vy. Carvelli (D.C. N.Y. 1972)

340 F. Supp. 1295, 1304, aff’d, 464 F.2d 1129, cert. denied

—- U.S. —. The true object and purpose of this alleged

conspiracy was to secure the Democratic nomination of

Okey Hager as County Judge. As a means of accomplish-

ing this purpose, the Mount Gay ballot box was to be filled

with a sufficient number of fraudulent ballots to ensure

Hager’s nomination. But until those fraudulent ballots

were finally given effect in the election result, the end

sought by the conspiracy would be unrealized and Hager’s

nomination insecure. Accordingly, the alleged conspiracy

did not end with the certification of the result by the man-

agers but continued through the election contest, which was

to resolve whether the votes in the questioned precinct were

to be given final effect in the contest for the Democratic

nomination for County Judge. This seems to have been

recognized by the defendants. During the trial itself, they

Le al al al ‘e

19a

made, for instance, no contention that the conspiracy ended

with the certification of the election returns by the box

managers or that any statement given or act done by any

one of the conspirators subsequent to the certification was

admissible solely against the defendant making such state-

ment or taking such action. Thus, Napier, one of the box

managers, testified in great detail that certain of the de-

fendants gathered a number of those involved in the fraud-

ulent action at the election just before the election contest

hearing and ‘‘[b]riefed us what we should say about Gar-

rett Sullins [who had given an affidavit that he had not

voted at the election, though he was recorded as having

voted] and all of us sticking together and telling the same

story, and when we are asked a question if we are going to

answer it or not, look at Mr. Hager of the County Court.’’

This testimony was receiwed against all the defendants

without any objection by any defendant. Nor in our judg-

ment would any objection have been appropriate. Plainly,

the conspiracy did not end with the certification and state-

ments by any one of the conspirators up to and through

the election hearing were admissible against all the de-

fendants.

(c) Inadmissibility of Evidence Based on Scope of

Section 241

During argument before this Court, the question arose

for the first time whether, since the only election result

challenged by the protest related to a state office, federal

jurisdiction terminated when the results of the federal elec-

tion were finally certified, i.e, on May 27, 1970. It is sug-

gested that federal jurisdiction over elections under Sec-

tion 241 is limited to elections in which federal offices are

at stake; and, when such federal elections are finally certi-

fied, any further federal criminal jurisdiction under that

statute is at an end, whatever may be the situation with

reference to any state contests arising out of the election.

The gravamen of this argument, then, is that since there

20a

was no contents over the votes for federal offices at the

Mount Gay box after the certification of May 27, 1971 [sic]

federal jurisdiction over the conspiracy ended at that time,

and evidence of subsequent events at a contest hearing in-

volving only a state office voted on at the same election,

was accordingly inadmissible. As we have stated, this in-

volved argument arose only before this Court and was not

presented to the District Court. The Government has

argued that, whether the conspiracy had ended or not, the

evidence was admissible under the principles enunciated in

Lutwak v. United States (1953) 344 U.S. 604, reh. denied

345 U.S. 919. Moreover, there necessarily arises the ques-

tion whether, when the defendants have attempted to use

by way of cross-examination the testimony given by cer-

tain of the Government witnesses in the election contest

for purposes of contradicting the testimony of those wit-

nesses at trial, they are in any position to object to the use

by the Government of testimony by certain of the defend-

ants themselves at that election contest. We shall, how-

ever, not tarry over these points but choose to meet directly

the contention that federal jurisdiction over the alleged

conspiracy ended with the certification in the federal elec-

tion contests and anything happening after that certifica-

tion is inadmissible in a prosecution under Section 241.

The statute under which the defendants were tried is not

a narrow statute. To quote the language of the Court in

United States v. Classic (1941) 313 U.S. 299, 322, it

‘speaks neither of elections nor of primaries. In unam-

biguous language it protects ‘any right or privilege secured

by the Constitution * * * .’’ See, also, Screws v. United

States (1945) 325 U.S. 91, 122, n.17 (Rutledge, J. concur-

ring). The inclusive nature of the statute was emphasized

in the recent case of United States v. Guest (1966) 383

U. 8. 745, 753, where the Court said that ‘‘[w]Je have made

clear in Price [United States v. Price, 166, 383 U.S. 787]

that when § 241 speaks of ‘any right or privilege secured

.. . by the Constitution or laws of the United States, it

21a

means precisely that.” Nor is the sweep of the statute

confined to rights expressly defined in the Constitution;

included among the rights ‘‘secured’’ thereby are those

judicially determined to be fundamental and embraced by

implication within the Equal Protection Clause of the Four-

teenth Amendment. United States v. Guest, supra, at 755-6.

Right of suffrage ‘‘is a civil right of the highest order,”’

Oregon v. Mitchell (1970) 400 U.S. 112, 139 (Douglas, J.

dissenting and concurring), and ‘‘a fundamental political

right, because preservative of all rights’, Yick Wo v. Hop-

kins (1886) 118 U.S. 356, 370. No right is more precious

than the right of suffrage. It involves ‘‘matters close to

the core of our constitutional system’’, Carrington v. Rash

(1965) 380 U.S. 89, 96, for ‘‘(f)ree and honest elections

are the very foundation of our republican form of govern-

ment,’’? MacDougall v. Green (1948) 335 U.S. 281, 288

(Douglas, J. dissenting). Truly, ‘‘(o)ther rights, even the

most basic, are illusory if the right to vote is undermined”’,

Wesberry v. Sanders (1964) 376 U.S. 1, 17. Because of

these compelling considerations, the right of suffrage,

whether in an election for state or federal office, is one that

qualifies under the Equal Protection Clause of the Four-

teenth Amendment for protection from impairment, ‘‘when

such impairment resulted from dilution by a false tally,

cf., United States v. Classic, 313 U.S. 299; or by a refusal

to count votes from arbitrarily selected precincts, cf.,

United States v. Mosley, 238 U.S. 383, or by a stuffing of

the ballot box, cf., Ex Parte Siebold, 100 U.S. 371; United

States v. Saylor, 322 U.S. 385.’’ Baker v. Carr (1962)

369 U.S. 186, 208 and 247-8. This was bluntly stated in

11 See, also, South v. Peters (1950) 339 U. S. 276, 279 (Douglas,

J., dissenting) :

‘‘There is more to the right to vote than the right to mark

a piece of paper and drop it in a box or the right to pull a

lever in a voting booth. The right to vote includes the right

to have ballot counted * * *. It also includes the right to

have the vote counted at full value without dilution or dis-

count.’’

22a

Reynolds v. Sims (1964) 377 U.S. 533, 554-5: ‘‘[T] he Con-

stitution of the United States protects the right of all quali-

fied citizens to vote, in state as well as in federal elections.

* * * The right to vote can neither be denied outright, * * *

nor diluted by ballot-box stuffing * * * .’’ (Italics added)

While it may be that the Constitution provides the right

to vote only in federal elections and that the right to vote

in purely state elections must derive from state constitu-

tions or laws (see, Fortson v. Morris, 1966, 385 U.S. 231),

it is clear that, where states provide for the election of offi-

cers, that right, as we have indicated, is protected against

dilution involving ‘‘state action’’ under the Equal Protec-

tion Clause of the Fourteenth Amendment.

In keeping with this principle, federal courts have, since

Reynolds, consistently acted to protect the right of suffrage

in elections for state legislators and administrators. Avery

v. Midland County (1968) 390 U.S. 474; Hadley v. Junior

College District (1970) 397 U.S. 50; Dundee v. Orleans

Parish Board of Supervisors of Elec. (5th Cir. 1970) 434

iF. 2d 135. Cf., Katzenbach v. Morgan (1966) 384 U.S.

641; Carrington v. Rash, supra (380 U.S. 89). It has been

held that any state statute limiting the right to vote in con-

nection with the issuance of revenue bonds to support a

municipal utility system to property owners is violative of

the Equal Protection Clause of the Fourteenth Amendment.

Cipriano v. City of Houma (1969) 395 U.S. 701. Similarly,

a state limitation of suffrage in local school elections to

property owners was invalidated for like reasons in

Kramer v. Union School District (1969) 395 U.S. 621.

Unreasonable residence requirements, imposed by the

State, are likewise invalid, whether for state or federal

elections. Hadnott v. Amos (Three-judge ct. Ala. 1970)

320 F. Supp. 107, aff’d. 401 U.S. 968. It is, of course, true,

as Justice Stewart observed in United States v. Guest,

supra (383 U.S. at 755) that, ‘‘[i]t is a commonplace that

rights under the Equal Protection Clause itself arise only

23a

where there has been involvement of the State or of one

acting under the color of its authority.’’ Accordingly,

there must be some involvement in the election with which

this action is concerned by one acting ‘‘under color’’ of

state law. ‘‘Under color’’ of law has been construed as

identical with and as representing state action. United

States v. Price, supra (383 U.S. at 794, n.7). It may be

represented by action taken directly under a state statute

or by a state official acting ‘‘under color’’ of his office.

United States v. Classic, supra, at 326 (313 U.S.) ; Screws

v. United States (1945) 325 U.S. 91, 107-113. It is, how-

ever, not necessary that the ‘‘involvement of the State be

either exclusive or direct’’; it may be merely ‘‘peripheral’’.

United States v. Guest, supra (383 U.S. at 755). Nor is it

essential that the state official be a party defendant; it is

sufficient if the proof involves ‘‘a charge of active conniv-

ance by agents of the State’’ in the wrongful acts done in

furtherance of the conspiracy; that will meet the test of

state action, as required under the rule enunciated in Guest.

See, Note, The Supreme Court, 1965 Term, 80 Harv. L. Rev.

91, at 109 and 155, n. 5.

Guest and Reynolds read together, it seems to us, compel

the conclusion that a conspiracy by the defendants with

which the official election managers connived, in order to

dilute through ‘‘ballot-box stuffing’’ the constitutionally

protected right of suffrage, as is claimed here, is within

the broad language of Section 241, and this is true whether

the conspiracy is directed at an election for a state or a

federal office, for which the election clerks and managers

were essential cogs in the conspiracy. Without their active

participation, the conspiracy was ineffective, both at the

election itself and in the election contest. The depositing

of false ballots in the ballot box required their connivance.

The listing of the names of fictitious voters on the voting

list had to be done by or with the cooperation of the elec-

tion clerks. And, when the election contest developed, it

was necessary for the election officials and the defendants

24a

to ‘‘stick[ing] together and tell[ing] the same story’’, as

certain of the election officials testified without objection

they were instructed to do by the defendants just before

the election contest hearing.

Accordingly, the argument that federal jurisdiction ended

under Section 241 with the certification of the federal elec-

tion results and that, necessarily, evidence of crimes com-

mitted thereafter was inadmissible in this prosecution, is

meritless, for the federal government has power not only

to punish conspiracies to poison federal elections, but has

power also to punish conspiracies, involving state action

at least, to dilute the effect of ballots cast for the candidate

of one’s choice in wholly state elections. ,

IV.

The defendants also find constitutional fault in Govern-

ment counsel’s jury summation. They complain that the

prosecutor, in beginning a review of the testimony of the

defendants’ witnesses, with the words, ‘‘[w]hat do the de-

fendants say?’’ was guilty of an impermissible comment

on the failure of the defendants to testify. Viewed in iso-

lation, the statement might have been of doubtful propri-

ety; but, taken in connection with the comments that fol-

lowed, for which it was but a rhetorical introduction, it

was plainly not violative of the defendants’ rights.

The rule, as formulated in most federal circuits, for as-

certaining when argument of Government counsel repre-

sents improper comment on a defendant’s failure to testify,

was well stated in United States Ex Rel. Leake v. Follette

(2nd Cir. 1969) 418 F.2d 1266, 1269, cert. denied 397 U.S.

1050: ‘‘ ‘Was the language used manifestly intended to be,

or was it of such character that the jury would naturally

and necessarily take it to be a comment on the failure of

the accused to testify?’’’ Applying this rule, we conclude

that the statement of the prosecutor was not ‘‘manifestly

intended”’ as ‘‘a comment on the failure of the accused to

(

25a

testify.”’ It is true the defendants themselves had not

testified. They had, however, offered an extensive defense,

directed at the credibility of the Government’s witnesses.

They had called over thirty witnesses in their defense and

had consumed several trial days in presenting their evi-

dence. The challenged language of the prosecutor, ex-

pressed in an interrogatory form, was, as we have said,

no more than a rhetorical inquiry, directed to the defend-

ants’ theory of defense, expressed as a mere predicate for

then reviewing in detail that theory and the evidence of-

fered by the defendants in support. This construction of the

prosecutor’s language and his obvious purpose is clear

from the statements that immediately followed the rhetor-

ical inquiry. The prosecutor followed the inquiry with a

review of the defendants’ defense as developed in their

proof. It was to this proof that his inquiry was directed,

not to the failure of the defendants to testify."* Moreover,

the comment of the prosecutor, of which the defendants

complain, taken in its context, was not as suggestive as a

charge that the defendant ‘‘has presented no defense in

this case’’, United States v. Johnson (4th Cir. 1964) 337

F. 2d 180, 203, cert. dented 385 U.S. 846, or an argument

18 The record clearly shows the context in which the challenged

statement was made. In the opening portion of the Government’s

closing argument, in reviewing the evidence, Assistant United

States Attorney King stated as follows:

‘*What do the defendants say? You heard the testimony,

thirty some witnesses the defendants called. Apparently they

say Sloan and Elswick—

‘‘Mr. Becxerr: Your Honor, may we approach the bench?

‘‘Tae Court: I will entertain it at the end of the argument.

‘*Mr. Kine: —Sloan and Elswick were behind it all to get

Elwood Sloan elected constable. Apparently Mr. H: Okey

Hager, was an innocent benefactor. He got elected use

of it, but Elwood Sloan was the one that needed to get elected

constable. Their witnesses had Elwood Sloan and Cecil Elswick

out the night before the election offering I believe over $3,000

or more to different people, total to go along with them.

‘“What else do their witnesses say? Lindsey Workman said

that they offered him $300. ..’’

26a

‘‘that the evidence of the government is uncontradicted or

unexplained’’, Carlisle v. United States (4th Cir. 1912)

194 F. 827, 830; Davis v. United States (4th Cir. 1960)

279 F.2d 127, cert. denied 364 U.S. 822. See, also, United

States v. Lapton (2nd Cir. 1972) 467 F.2d 1161, 1168. In

no event could it be considered prejudicial to the defend-

ants, when considered along with the clear-cut instruction

of the District Court in his subsequent charge. Cf., United

States v. Briggs (2nd Cir. 1972) 457 F.2d 908, 911-2, cert.

denied —. U.S. —.”

V.

Finally, the defendants complain of the District Court’s

failure to dismiss because the verdict was not supported

by substantial or credibile evidence. This argument rests

largely on the contention that the Government’s witnesses

in the main had given conflicting statements, either in affi-

davits or testimony at the election contest hearing. The

credibility of witnesses is, however, a question for the jury.

It was the position of the Government that the earlier testi-

mony of the witnesses, whose evidence was assailed by the

defendants, had been coerced or induced by false promises.

The resolution of such an issue was properly for the jury,

which concluded the issue contrary to the position of the

defendants. The trial court, who had the opportunity of

observing the witnesses, was not disposed to distrust that

conclusion by the jury. We find no error in his denial of

the motion.

Affirmed.

1® Seemingly recognizing the weakness of their position, the de-

fendants have included in their brief certain affidavits to the effect

that the District Attorney, when he expressed the question to which

the defendants excepted, turned and gestured toward the defend-

ants. Had this occurred, we would not regard it as significant.

But we are disturbed that these affidavits were not a part of the

record for appeal; they were merely inserted by counsel for the

defendants without notice in their printed brief. See, Rule 10,

F.R.A.P. Any reference to material not in the agreed record for

appeal, much less its inclusion in a brief filed with the Court, is

both improper and censurable. We have accordingly taken no

notice of these affidavits.

1b

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON

No. 71-1 Cr.

18 U.S.C., Section 241

Unrrep States or AMERICA

Vv.

WuuusMm N. Anverson, Joon R. Browntnc, Ernest L.

‘‘Rep’’ Hacer, W. Begnarp SmitH, Hart ToMBLIN

The grand jury charges:

1. Wrmu1am M. Anverson, at all times material to this

indictment, was Clerk of the County Court of Logan

County, West Virginia.

2. Joun R. Browning, at all times material to this indict-

ment, was Clerk of the Circuit Court of Logan County,

West Virginia.

3. Egnest L. ‘‘Rep’’ Hacer, at all times material to this

indictment, was a Deputy Sheriff in and for Logan County,

West Virginia.

4. W. Bernarp SmIrH, at all times material to this indict-

ment, was State Senator from the Seventh Senatorial Dis-

trict of West Virginia.

5. Ear TomBLIn, at all times material to this indictment,

was the Sheriff of Logan County, West Virginia.

6. On the 12th day of May, 1970, pursuant to the laws

of the United States and of the State of West Virginia,

a primary election was held within the State of West Vir-

ginia for the purpose of nominating candidates for the

2b

offices of United States Senator, Representative to Con-

gress, and various state and county public offices.

7. On the 12th day of May, 1970, many persons who were

citizens of the United States and of the State of West Vir-

ginia and who were residents of Logan County, West Vir-

ginia, were entitled to cast their votes at said election in

the several precincts of Logan County for the candidates

to said offices, in that such persons were duly registered

as voters and possessed the necessary and requisite quali-

fications provided by law to entitle them to vote at said

election in the several precincts of Logan County, West

Virginia, including Precinct 86-96, Upper Mount Gay-Lower

Mount Gay of said County (hereinafter referred to as the

Mount Gay precinct). Many voters at said election in

Mount Gay precinct duly voted for candidates for one or

more of the aforesaid offices, and their votes were certified

and counted as part of the total number of votes cast at the

primary election. These voters will hereinafter be referred

to as ‘‘qualified voters.”’

8. The said ‘‘qualified voters,’’ and each of them, then

and there possessed the rights and privileges guaranteed

and secured to them by the Constitution and laws of the

United States to vote at said election for a candidate for

each of said offices, and the further right and privilege to

have their votes recorded, counted, and given full effect,

that is to say, that the value and effect of their votes and

expression of choice should not be impaired, lessened,

diminished, diluted, or destroyed by illegal and fictitious

votes falsely and fraudulently cast, counted, recorded, and

certified.

9. From on or about the Ist day of May, 1970, and con-

tinuing until on or about the date of this indictment, in

Logan County, West Virginia, within the Southern Judicial

District of West Virginia, Wm1i14am M. AnpEsrson, JoHN R.

BrownincG, Ernest L. ‘‘Rep’’? Hacer, W. Begnarp Smiru,

and Earu TomB.in, the defendants herein, did unlawfully,

3b

wilfully and knowingly conspire together and with each

other, and with divers other persons known and unknown

to the grand jury, to injure and oppress the aforesaid quali-

fied voters in the free exercise and enjoyment of certain

rights and privileges secured to them, and to each of them,

by the Constitution and laws of the United States and par-

ticularly the right of suffrage, that is to say, the right to

vote for candidates for the aforesaid offices and to have such

vote cast, counted, recorded, and certified at their full value

and given full effect as aforesaid.

10. It was a part of said conspiracy that the defendants

did cause and attempt to cause votes to be cast in the said

Mount Gay precinct by procedures and methods in viola-

tion of the laws of the State of West Virginia, and to cause

fraudulent and fictitious votes to be cast in said precinct,

all with the purpose and intent that said illegal, fraudulent,

and fictitious ballots would be counted, returned and cer-

tified as a part of the total vote cast in said primary elec-

tion, thereby impairing, lessening, diminishing, diluting

and destroying the value and effect of votes legally, prop-

erly and honestly cast in said primary election in Logan

County, West Virginia; all of which was done in violation

of Title 18, United States Code, Section 241.

A True Bill.

/s/ KennetH W. MULLINS

Foreman.

A True Copy

Attest:

/s/ JEsste A. MANCHESTER

Clerk

/3/ W. Wanren Upton

United States Attorney.