UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANK SMITH and CONNIE TYREE, Defendants-Appellants.
No. 98-6121
D.C. Docket No. 97-00045-CR-S-W
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
October 25, 2000
Appeals from the United States District Court for the Northern District of Alabama
(October 25, 2000)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
CARNES, Circuit Judge:
For the reasons set forth below, we conclude that all of Smith‘s arguments miss the mark, and his convictions and sentence are due to be affirmed in all respects. All but one of Tyree‘s arguments miss. Her conviction is due to be affirmed except on Count 12; reversal of that part of her conviction makes it necessary that she be re-sentenced.
In January of 1997, Frank Smith and Connie Tyree were charged in a thirteen-count indictment with offenses arising out of the November 8, 1994 general election in Greene County, Alabama. Among the offices to be filled in that election was the office of Member of the United States House of Representatives, a fact which supplies a necessary element of the federal charges. Count 1 of the indictment charged Smith and Tyree with conspiring, in violation of
At sentencing, the court applied the United States Sentencing Guidelines (“U.S.S.G.“) § 2H2.1 and concluded that the appropriate base offense level for Smith and Tyree‘s offenses was 12. The court then enhanced Smith‘s sentence two levels for obstruction of justice pursuant to U.S.S.G. § 3C1.1, enhanced Tyree‘s sentence two levels for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3, and enhanced both sentences four levels for their status as organizers or leaders of criminal activity involving five or more participants pursuant to U.S.S.G. § 3B1.1(a). Those enhancements brought the total offense level for both Smith and Tyree to 18. The court then sentenced Smith and Tyree to thirty-three months of imprisonment on each count to run concurrently, two years of supervised release
II. STANDARDS OF REVIEW
A district court‘s denial of a motion to dismiss on the ground of selective prosecution involves both conclusions of law and findings of fact. We review the court‘s factual findings for clear error and its legal conclusions de novo. See Newell v. Prudential Ins. Co. of America, 904 F.2d 644, 649 (11th Cir. 1990); United States v. Jones, 52 F.3d 924, 927 (11th Cir. 1995) (de novo review of district court decision on selective prosecution); United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999) (with motions involving mixed questions of law and fact “[w]e review the factual findings of the district court for clear error and the application of the law to those facts de novo.“).
We review challenges to the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences from the evidence in favor and in support of the jury verdict. See United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995); United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir. 1993).
We review the district court‘s application of the Sentencing Guidelines de novo and its findings of fact for clear error. See
We review whether counts in an indictment are multiplicitous de novo. See United States v. Cluck, 143 F.3d 174, 179 (5th Cir. 1998).
We review the district court‘s evidentiary rulings under an abuse of discretion standard. See United States v. Tokars, 95 F.3d 1520, 1530 (11th Cir. 1996).
We review a district court‘s jury instruction deferentially:
So long as the instructions accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed in the instructions. On appeal, we examine whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled. However, if no objection to the instructions was raised at trial, we only review for plain error.
Starke, 62 F.3d at 1380 (citations and quotations omitted); see also McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1072 (11th Cir. 1996); Goulah v. Ford Motor Co., 118 F.3d 1478, 1485 (11th Cir. 1997); Jennings v. Bic Corp., 181 F.3d 1250, 1254 (11th Cir. 1999).
A. WHETHER THE DISTRICT COURT ERRED BY FAILING TO GRANT SMITH AND TYREE‘S MOTION TO DISMISS THE INDICTMENT ON THE GROUND OF SELECTIVE PROSECUTION BASED ON RACE AND POLITICAL AFFILIATION
The reality resulting from limited law enforcement and judicial resources is that not every criminal violation of the United States Code can be prosecuted. The decision as to which crimes and criminals to prosecute is entrusted by the Constitution not to the judiciary, but to the executive who is charged with seeing that laws are enforced. See
Prosecutors are given broad discretion in deciding against whom to focus limited prosecutorial resources, and a strong “presumption of regularity supports . . . [those] decisions.” United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996) (citations and quotations omitted). But they must exercise their charging discretion within constitutional constraints, including those “imposed by the equal protection component of the Due Process Clause of the Fifth Amendment.” See id. Under that clause, “the decision whether to prosecute may
Defendants bear a “demanding” burden when seeking to establish that they are being selectively prosecuted in an unconstitutional manner. Id. “In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary.” Id. at 465; 116 S. Ct. at 1486-87 (emphasis added) (citations and quotations omitted). The Supreme Court has explained the pragmatic and policy as well as constitutional reasons behind the substantial deference given to prosecutors:
Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. Such factors as the strength of the case, the prosecution‘s general deterrence value, the Government‘s enforcement priorities, and the case‘s relationship to the Government‘s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor‘s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government‘s enforcement policy.
In accordance with this judicial deference to prosecutorial discretion, we are to evaluate a selective prosecution claim using “ordinary equal protection standards.” Id. (citations and quotations omitted). Specifically:
The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.
Id. (citations and quotations omitted). With these principles in mind we will turn to Smith and Tyree‘s arguments that the district court should have granted their motion to dismiss on the ground of selective prosecution.4
Smith and Tyree first argue that they are only required to establish the two components of a selective prosecution case - discriminatory effect and motive -
Next, Smith and Tyree contend that the district court erred by relying on the possibility of future prosecutions to conclude that they had not proven they were singled out for prosecution. The magistrate judge, in a report and recommendation adopted in full by the district court, concluded that the defendants had failed to establish either prong of a selective prosecution claim. In regard to the first prong, which he called the “selectivity prong,” the magistrate judge said that “[i]t is certainly true that there is evidence in the record indicating” that others who had not been prosecuted had engaged in fraudulent absentee ballot voting activities, including forging voters’ signatures and altering ballots. But the magistrate judge
We agree with the defendants that the mere possibility of future prosecutions, without more, is not a sufficient basis upon which to find that the requisite discriminatory effect or selectivity showing has not been clearly proven. Otherwise, a selective prosecution claim might not be ripe for decision until the statute of limitations runs out. We recognize, of course, that prosecutors have to start somewhere, and everyone engaged in the same type of wrongdoing often will not be charged simultaneously. There can be all kinds of practical reasons, including differences in evidence or in the progress of the investigation, which cause the government to prosecute some criminals before others for the same crime. But those legitimate reasons can be stated where they exist, and they will be sufficient to establish that any selectivity that has been exercised was not the result of unconstitutional motives. We do not rule out the possibility in a proper case of a remand to supplement the record with material facts relating to prosecutions that occur after the district court has denied a selective prosecution motion, but we do not think a remand is necessary in this case. The statute of limitations has now run,
We turn now to the heart of Smith and Tyree‘s argument which is that they presented sufficient evidence to prove both prongs of a valid selective prosecution claim. As we have already stated, in order to establish their selective prosecution claim, they were required to show that their prosecution had a discriminatory effect, i.e., that similarly situated individuals were not prosecuted, and they were also required to show that the difference in treatment, or selectivity of the prosecution, was motivated by a discriminatory purpose. See Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486-87. We recognize that the nature of the two prongs of a selective prosecution showing are such that they will often overlap to some extent, but we discuss them separately beginning with the selectivity or discriminatory effect prong.
The beginning step in comparing the prosecution of the defendants with the non-prosecution of those who were “similarly situated” is to determine who, if anyone, was similarly situated with the defendants. Neither this Court nor the Supreme Court has definitively explained what constitutes a “similarly situated” individual in this context,7 but the definition is informed by the Supreme Court‘s recognition of legitimate factors that may motivate a prosecutor‘s decision to bring a case against a particular defendant. Those factors include “the strength of the
In light of those legitimate factors, we define a “similarly situated” person for selective prosecution purposes as one who engaged in the same type of conduct, which means that the comparator committed the same basic crime in substantially the same manner as the defendant - so that any prosecution of that individual would have the same deterrence value and would be related in the same way to the Government‘s enforcement priorities and enforcement plan - and against whom the evidence was as strong or stronger than that against the defendant. Consequently, for Smith and Tyree to establish selective prosecution, they must show that there are other individuals who voted twice or more in a federal election by applying for and casting fraudulent absentee ballots, and who forged the voter‘s signature or knowingly gave false information on a ballot affidavit or application, and that the voter whose signature those individuals signed denied voting, and against whom the government had evidence that was as strong as the evidence it had against Smith and Tyree. That is the case the government built against Smith and Tyree, and in order to prevail on their selective prosecution claim Smith and Tyree must establish that the government could
A painstaking review of the record reveals that Smith and Tyree did not carry their burden. In their initial brief Smith and Tyree point to Patsy Rankins and Betty Banks, both of whom are white, as people who were similarly situated but escaped prosecution. But what they say that Rankins and Banks did is not the same as the conduct for which Smith and Tyree were convicted. Rankins allegedly harassed voters, jerked on the arm of one voter and tried to influence that voter‘s vote. Banks allegedly went into the post office, handled absentee ballots, and took pictures of the ballots. Neither one of them is alleged to have written false information or forged names on an absentee application or affidavit, or to have voted more than once.
Smith and Tyree also allege that other individuals (most if not all of whom are black but none of whom were affiliated with the Alabama New South Coalition), engaged in activities such as paying people to vote, changing a vote on a ballot, and stealing a ballot out of a mailbox. While that alleged conduct is serious, the Supreme Court has noted “the Government‘s enforcement priorities” as a factor that could legitimately distinguish between those who are prosecuted and those who are not. See Armstrong, 517 U.S. at 465, 116 S.Ct. at 1486.
Focusing now on the crimes for which Smith and Tyree were prosecuted, there is some evidence that other individuals signed another voter‘s signature to,
Smith and Tyree‘s briefs to this Court fail to face up to that type of difference. For example, in their initial brief, they point to Rosie Carpenter, Lenora Burks and Annie Thomas as individuals who witnessed a substantial number of absentee ballots, and who therefore should have been targets of the investigation. Yet nowhere do Smith and Tyree point to statements (much less testimony) from any of those voters whose absentee ballots were witnessed by Carpenter, Burks or Thomas indicating that those voters themselves did not actually vote their ballots regardless of who witnessed them. Witnessing large numbers of absentee ballots is not, in and of itself, a crime.
Our careful review of the record found some evidence (whether it is clear is another matter) in the FBI reports that an absentee ballot was voted in the name of someone who said that he did not cast it. That evidence included four instances
The prosecution had, and presented at trial, sufficient evidence to prove beyond a reasonable doubt that Tyree fraudulently applied for or fraudulently cast, or both, absentee ballots in the names of seven voters: Hill, Gilmore, Powell, Cassandra Carter, Willie Carter, Braggs and Hunter.10 And the same is true of the evidence the prosecution had and presented at trial to prove that Smith committed those same crimes involving three voters: Gilmore, Cassandra Carter and Willie Carter. The prosecution had, and presented at trial, sufficient evidence to prove
The government can legitimately place a higher priority on prosecuting someone who commits an offense three, six or seven times, than someone who commits an offense once or twice, especially when the offense is a non-violent one. Likewise, the willingness of a jury to convict a defendant of a crime may increase with the number of times that defendant has committed the crime.
Finally, we do not know from the record the strength of the evidence that others may have committed similar crimes, because saying something is one thing and testifying to it is another. We do know that the evidence Smith and Tyree committed these crimes was strong enough to convince a jury beyond a reasonable doubt.
For all of these reasons, Smith and Tyree failed to carry their burden that the others who may have committed crimes in connection with the November 8, 1994
Not only did Smith and Tyree fail to prove by clear evidence that there were similarly situated individuals who were not prosecuted and thereby failed to establish the discriminatory effect prong, they also failed to prove by clear evidence discriminatory intent and thereby failed to establish the second prong, too. Smith and Tyree argue that they established the discriminatory intent in two
The first contention is not supported by even a shred of evidence in the record. It rests instead on an assumption that black defendants will not be treated in a just manner in federal court, an assumption which we reject. In regard to the second contention, at trial the government gave a race neutral reason for exercising the questioned peremptory strike, explaining that the prospective juror was not paying attention, that he was dozing off, and that he had his eyes closed during the voir dire questioning. The court rejected that strike because its “impressions of [the prospective juror] were not consistent with those recited by” the government. The only thing the court‘s rejection of the government‘s strike reveals is that the court did not agree with the government‘s observations. Rejection of one peremptory strike is no basis for concluding that the underlying prosecution is motivated by bias.
B. WHETHER THERE WAS SUFFICIENT EVIDENCE TO CONVICT TYREE ON COUNTS 12 AND 13
Counts 12 and 13 of the indictment charge Tyree with violating
However, the falsity of the information on the application or affidavit is an element of
The absentee election manager, Johnnie Knott, testified that the application referred to in Count 12 listed voter Braggs’ residence address as 113 O‘Neal Street, and it listed the “mail ballot to” address as 507 Greensboro Street. There
The sufficiency of the evidence supporting Count 13, which charged Tyree with giving false information on Braggs’ affidavit of absentee voter is a different matter. The government handwriting expert testified that Tyree signed Braggs’ affidavit. Under Alabama law, there is no such thing as proxy voting: A voter cannot legally authorize or direct another to vote his ballot in his place. See Taylor v. Cox, 710 So. 2d 406 (Ala. 1998) (absentee voting ballot invalid where voter‘s name not signed by voter but by designated agent with permission). Consequently, to sign someone else‘s name, with or without permission, is to “give[] false
C. WHETHER SMITH AND TYREE WERE CONVICTED ON MULTIPLICITOUS COUNTS
“Multiplicity is the charging of a single offense in more than one count. When the government charges a defendant in multiplicitous counts, two vices may arise. First, the defendant may receive multiple sentences for the same offense. Second, a multiplicitous indictment may improperly prejudice a jury by suggesting that a defendant has committed several crimes -- not one. To determine whether an indictment is multiplicitous, we first determine the allowable unit of prosecution.” United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991) (citations omitted).
Smith and Tyree contend that the allowable unit of prosecution with respect to
The application of absentee ballot and affidavit of absentee voter are different documents serving distinct purposes. A count charging the giving of false information on an application of absentee ballot requires different proof than a count charging the giving of false information on an affidavit of absentee voter. The counts in question charge different offenses that may properly be charged in separate counts. See United States v. Davis, 730 F.2d 669, 671-72 (11th Cir. 1984); United States v. Cluck, 143 F.3d 174, 179 (5th Cir. 1998).16 There was no multiplicity error.
D. WHETHER THE DISTRICT COURT ERRED IN ADMITTING EVIDENCE OF ABSENTEE BALLOT AFFIDAVITS TYREE WITNESSED
The district court admitted into evidence a government exhibit consisting of approximately ninety-five affidavits of absentee voter that had been witnessed by
It was further a part of the conspiracy that the defendants and their co-conspirators in some instances where a voter‘s signature was obtained on the affidavit of absentee voter would at a later time cause the affidavit of absentee voter to be completed, including the witnessing of the voter‘s signature by persons who did not see the voter sign the affidavit, and would cause the absentee ballot to be submitted and voted.
At trial, Cora Stewart reviewed the affidavits comprising Exhibit 21 and identified which of the affidavits she and Tyree had witnessed where she did not see the voter sign his signature. The affidavits were relevant to the conspiracy charge, and the district court did not abuse its discretion in admitting them into evidence.
E. WHETHER TYREE WAS DENIED HER RIGHT UNDER THE FIFTH AND SIXTH AMENDMENTS TO PRESENT WITNESSES IN HER DEFENSE
At trial, Hutton refused to testify, asserting her Fifth Amendment privilege. Tyree attempted to introduce Hutton‘s testimony from the selective prosecution hearing that when she had signed the affidavit of Sam Powell, who is her father, she had done so with his permission. The government objected to the admission of Hutton‘s testimony from the hearing, because it had been unable to fully cross-examine her when she gave that testimony. The district court excluded the testimony under
F. WHETHER THE JURY INSTRUCTIONS WERE ERRONEOUS
We will assume for present purposes that because Counts 1 and 2 alleged that Smith and Tyree‘s actions were done without the knowledge and consent of the voters whose names were used, the defendants were entitled to have the jury instructed that lack of knowledge and consent were required insofar as those two counts were concerned.21 The court did instruct the jury to that effect, but Smith and Tyree contend that the court‘s instruction on Alabama law negated what it told the jury about lack of knowledge and consent.
In its instructions, the district court told the jury: “In order to convict a defendant of the federal offenses charged in this indictment, however, the government also must prove, beyond a reasonable doubt, that the defendant under consideration knowingly and willfully signed the Application for Absentee Ballot without the knowledge and consent of that voter ....” The court then gave the instruction on Alabama law that the defendants challenge, stating that “there is no such thing in Alabama as proxy absentee voting” and that “no absentee voter can
Next, the court instructed the jury on the individual counts. With respect to Count 2, the court specified that the defendant must have acted “without the consent, or conscious, voluntary, and understanding participation of that other voter.” With respect to Count 1, the conspiracy count, the court used the phrase “without the voters’ knowledge and consent” when describing
G. WHETHER THE DISTRICT COURT ERRED IN APPLYING THE SENTENCING GUIDELINES
Smith and Tyree contend that the district court erred in sentencing them, beginning with the base offense level it used. The applicable section of the Sentencing Guidelines reads as follows:
Section 2H2.1. Obstructing an Election or Registration
(a) Base Offense Level (Apply the greatest):
(1) 18, if the obstruction occurred by use of force or threat of force against person(s) or property; or
(2) 12, if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means, except as provided in (3) below; or
(3) 6, if the defendant (A) solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, vote for or against a particular candidate, or register to vote, (B) gave false information to establish eligibility to vote, or (C) voted more than once in a federal election.
2. The Enhancement of Tyree‘s Offense Level for Abuse of a Position of Trust
The district court enhanced Tyree‘s offense level pursuant to
[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.
“[T]he abuse of trust enhancement applies . . . where the defendant has abused discretionary authority entrusted to the defendant by the victim . . . .”
Tyree points to the fact that Smith, who did not hold the position of deputy registrar, was convicted of the same offenses as she was. She argues that means her position could not have significantly facilitated the commission of any of her offenses. But the guideline does not require that the position be essential to a defendant‘s commission of the offense, only that the position have significantly facilitated this particular defendant‘s commission of it. The fact that another defendant committed the same offense without use or abuse of the defendant‘s position does not preclude the application of the
3. The Enhancement of Smith‘s Offense Level for Obstruction of Justice
Referring to Application Note 3 in the Commentary to the Sentencing Guidelines, the district court enhanced Smith‘s offense level pursuant to
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
While it might have been preferable for the district court to identify the material facts about which Hunter testified falsely and for which Smith was responsible, as we have said before, “in the context of the record ..., detailed findings were not necessary and would have been redundant.” United States v. Hubert, 138 F.3d 912, 915 (11th Cir. 1998); accord United States v. Diaz, 190 F.3d 1247, 1256 (11th Cir. 1999) (general finding that encompasses all factual predicates of perjury is sufficient). The district court did indicate that its finding in this regard relied upon the evidence presented at trial, and the court expressly adopted the factual statements in the revised Presentence Investigation Report. The addendum to that report, which addressed Smith‘s objections to the obstruction of justice enhancement, discussed in detail Smith‘s actions that
4. The Enhancement of Smith and Tyree‘s Offense Levels for Their Roles
The district court enhanced Smith and Tyree‘s offense levels by four levels pursuant to
IV. CONCLUSION
Notes
(e) Voting more than once
(1) Whoever votes more than once in an election referred to in paragraph (2) shall be fined not more than $10,000 or imprisoned not more than five years, or both.
(2) The prohibition of this subsection applies with respect to any general, special, or primary election 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.
(3) As used in this subsection, the term “votes more than once” does not include the casting of an additional ballot if all prior ballots of that voter were invalidated, nor does it include the voting in two jurisdictions under section 1973aa-1 of this title, to the extent two ballots are not cast for an election to the same candidacy or office.
(c) False information in registering or voting; penalties
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.
The terms “vote” and “voting” are defined as follows:
all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
In the magistrate judge‘s report and recommendation, he concluded that “there is evidence in the record indicating that other people have engaged in fraudulent absentee-ballot voting activities, including forging voters’ signatures and altering ballots. What has not been shown is that these other individuals will never be prosecuted.” We have previously disagreed with the magistrate judge‘s conclusion that the possibility of future prosecution is enough to rule out discriminatory effect. We also disagree with the report‘s apparent conclusion -- if it is a conclusion -- that the individuals Smith and Tyree point to were similarly situated with them. Our disagreement is not over any factfinding or credibility choice the magistrate judge made, but instead with the law which he applied to the facts.
As we have explained, in order to establish that others were similarly situated with them, Smith and Tyree had to prove by clear evidence that others committed the same crimes as they did, the same or a greater number of times, and that the evidence against those others was as strong or stronger than the evidence against Smith and Tyree. They failed to carry their burden. The magistrate judge applied the “similarly situated” test at too high a level of generality, assuming that anyone who committed any violation of federal law in connection with the same election is “similarly situated” with Smith and Tyree.
While we could remand the case to the district court for it or the magistrate judge to have another go at it, a remand would be pointless because our detailed review of the record convinces us that no facts could be found from the record evidence that would justify a conclusion Smith and Tyree had proved by clear evidence that others who were not prosecuted were similarly situated to them in the sense the applicable law requires. In addition, as we are about to explain, we agree with the magistrate judge that Smith and Tyree failed to establish discriminatory motive or purpose, which is an independently adequate basis for denial of their motion.
Cora Stewart testified at trial that Braggs used to live on O‘Neal Street but he had moved. She said that she did not know where he moved to or how long he has been away from Greene County because he is “in and out.” She also said she thought the last time she saw Braggs in Eutaw (in Greene County) was “last year” and he was “at home on O‘Neal Street” where his mother lives.
Josephine Lewis testified that Braggs was Tyree‘s boyfriend in 1994 and Hattie Edwards testified that Braggs lived with Tyree in 1994. The prosecution says in its brief that Tyree lived at 507 Greensboro Street, but the government does not cite any part of the record that actually backs up its statement, and we were unable to find any evidence to that effect.
Our holding, which is largely based upon United States v. Davis, 730 F.2d 669 (11th Cir. 1984), is not inconsistent with United States v. Langford, 946 F.2d 798 (11th Cir. 1991). In Langford, the defendant was charged with securities fraud relating to false statements made in several different documents related to a single purchase of securities, in violation of
The defendant in Davis was charged with making false statements to a federally insured bank in several different documents, in violation of
We find Davis to be more analogous to the situation at hand. There are dangers inherent in the nature of securities cases that were not present in Davis and are not present in the case before us today. With the purchase and sale of securities, a single document, such as a prospectus, is mailed to thousands of shareholders, which raises the specter of thousands of counts. There was no similar mass publication or distribution of the loan documents in Davis nor of the applications for absentee ballots and affidavits of absentee voters in this case. In any event, to the extent there is any inconsistency between Davis and Langford, we are compelled to follow the prior precedent, which is Davis. See Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998) (discussing conflict between lines of precedent and “earliest case” rule).
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, [may be admitted into evidence] if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.