*1 America, Appellee, UNITED STATES PARHAM, Appellant.
Theortres America, Appellee,
UNITED STATES JOHNSON,
Thomas Charles a/k/a Johnson, Appellant.
T.C. 93-1365, 93-1376.
Nos. Appeals, Court
Eighth Circuit. June 1993.
Submitted Feb. 1994.
Decided Rehearing Suggestion for
Rehearing and in No.
En Banc Denied
April
BEAM, Judge. Circuit Theortres and Charles Johnson appeal their convictions and sentences for conspiracy to vote more than once. Parham politically and Johnson are active black men deputy registrars who both in County, Arkansas. Parham was a candidate Helena, mayor Arkansas 1990. Par- casting ham and Johnson were accused of multiple votes for Parham a scheme in- volving absentee ballots. assert selec- prosecution, Batson violations and error depart the district court’s refusal to down- sentencing. ward We affirm the convic- tions but remand to the district court for consideration of Parham’s and Johnson’s mo- tions to downward U.S.S.G. § 5K2.0.
I. BACKGROUND Parham and Johnson were each conspiracy with one count of to commit acts multiple voting and false information in in violation of 18 § knowingly U.S.C. 371 and with 18 counts of willfully voting more than once in viola- (e) § tion of 42 U.S.C. and 18 U.S.C. 2. Parham and Johnson moved to indictment, asserting they dismiss the that selectively prosecuted. They had been discovery moved for on that issue. The dis- they proved trict court found that had not facie case thus denied their motions. proceeded Parham and Johnson presented argument on Counsel who be- dire, government trial. At voir exercised Brown, appellant half of the was Darrell peremptory challenges to strike several black Rock, AR, Parham; Little Perlesta Holl- jury. venirepersons from the After the
ingsworth, attorney for Johnson. Additional sworn, panel had been had been Weinstein, appearing on the Ian brief was dismissed, Parham and Johnson raised Bat- York, New NY. objections.1 son The district court overruled presented argument objections untimely, Counsel who their but allowed the Rosenstein, appellee government half of the was Rod reasons J. to make a record on the Washington, attorney ap- jurors. striking D.C. Additional pearing on P. the brief was Robert Storeh. trial, attempted At forged
prove Parham and Johnson ab- BOWMAN, Judge, sentee ballots in order to vote more than Before Circuit HEANEY, Judge, handwriting expert once. A testified that Senior Circuit BEAM, Judge. signatures had Circuit voter on the absentee ballots Kentucky, peremptory challenge potential juror to strike a 1. Under Batson v. (1986), the Fourteenth on account of his or her race. prosecutor Amendment is violated when a uses a requested of materials conceded tion before forged. Parham been procedural claim can be com in connection with the that there forms, testi- ballot but Hintzman, some of the absentee pelled. States v. signed anyone else’s had fied that To establish of the At the conclusion the forms. names to 1) case, facie a defendant must demonstrate: *3 multiple voting was dis- trial, count of one prosecution singled out for that he has been evidence, insufficient missed similarly situated have not been while others re- and Johnson on the Parham acquitted 2) and that prosecuted for similar conduct They were convicted maining counts. singling in thus him government’s action charge. only on the impermissible on an motive out was based ar- sentencing, Parham and Johnson At race, religion, or the exercise of such as should not be acquitted counts gued that the rights. United States v. Mat constitutional sentencing conduct as relevant counted ter, 653, The 818 F.2d agreed, noting court The district purposes. one, heavy is a be defendant’s burden the basis of the sentence on that enhance .prosecut discretion to cause we afford broad to “a tail would amount acquitted conduct authorities, showing in require we Opinion dog.” Memorandum wags the which purposeful discrimination. Id. tentional and (Jan. 28, Order, at 4 LR-CR-92-72 No. showing, prima facie at 654-55. Absent this 1993); Transcript at 60. Conse- Sentencing prosecution presumed is to have been consider court did not quently, the district good faith. Id. at 655. Since undertaken had Parham and Johnson conduct for which prima of a facie case of selec determination sentencing.2 Parham acquitted been inqui essentially a factual depar- requested a downward Johnson ry, we review the district court’s determina ture, court denied. The the district prima tion on the of a facie establishment “I think far as the as district court stated: prosecution only for clear case of selective level, absent a motion from the base offense Gutierrez, error. by depart, I think I am bound Government sponte. I can sua think them. I don’t by must be a motion the Gov- I think there depart.” Sentencing standard, I can high
ernment before Applying that we are The district court later Transcript at 10. unable to find that the district erred stated, minimum this is the sentence “I think finding that and Johnson did not Parham Sentencing give these defendants.” can pros prima establish a facie case of selective Parham and Johnson were Transcript at 64. motion, ecution. In of their months, of which ten five each sentenced to presented the affidavits of sev halfway house in Little spent were to be persons outlining observations of numer eral Rock. irregularities in Arkansas.3 ous voter eastern significance We do not belittle or demean the II. DISCUSSION acts outlined in the affidavits. The Prosecution 1. Selective certainly investigation, if not acts warrant However, egregious prosecution. must estab Parham and Johnson are, prosecu summarized in the affidavits are the acts lish a by by appealed finding. whites or not that absentee ballots non-resident 2. The has children; parents grown segregation of black pervasive. are serious and 3. These pollwatchers; previous condonation of and white evidence of numerous contained affidavits proximity poll violation of rules for white including: episodes where black handi- incidents proximity and strict enforcement of violators capped elderly voters were refused assistance blacks; allowing white candidates to rules for helped; rejection although of black whites stay polling place candidates were while black clerks; poll- absentee white ballots leave; asked to and harassment and intimidation photographing questioning and watchers voters, including of black armed intimidation. voters; challenge absentee ballots be- of black Parham and Johnson also evidence had been sent to the same cause the ballots address, repeated complaints had been made to both to the absentee ballots sent while white local and federal officials. casting questioned; same address were not sufficiently Romero-Rey similar to the acts of voter commences.4 United States v. not na, Cir.1989), and Johnson were fraud for which Parham to constitute prosecution. Parham (1990); Virgin Government of forging in effect names Forte, (3rd Islands v. They presented no evi Cir.1986) (failure absentee ballots. objection to make at the that other’s acts of absentee ballot dence waiver). of voir close dire constitutes Ac forgery pros or fraud were tolerated without cordingly, we that the Batson motion cannot show ecution. Where a defendant untimely. in this case was who anyone in a similar situation was that, argue Parham and Johnson further prosecuted, has not met the threshold he challenge if even their Batson was not time- *4 showing that there has been selectiv point of ly, objection timely the was treated as ity prosecution. Compare Attorney Gen required govern- cause the district court the Inc., People, eral United States v. Irish ment to state its reasons strikes on (D.C.Cir.1982) (no 928, 946 selectivi 684 See, e.g., Reynolds the record. v. Little ty point not to others where defendant could (8th Cir.1990) (an Rock, 1004, 893 F.2d 1009 Foreign Agents Registra who had violated untimely timely). motion treated as We dis- prosecuted), tion Act and had not been cert. agree. A review the record here shows denied, 1172, 817, 459 U.S. 74 that the court district did not treat the mo- (1983) 1015 L.Ed.2d with United States timely, merely par- tions as but (11th Cir.1987) allowed the Gordon, 1538, 817 F.2d 1540 (selective a ties make record the issue. The prosecution found where others specifically repeatedly district court stat- prosecuted for had not been the same of objections fense), ed that the overruled as part grounds, rev’d in on other 836 (11th untimely, only govern- instructed the F.2d 1312
ment to make a record and made an alterna-
2. Batson Violations
holding
purposes
preserving
the
Also,
appeal.
government
issue for
the
ex-
they
argue
pressly
that it
stated
did not intend to waive
equal protection
govern
were denied
any
objections by stating
timeliness
its rea-
peremptory challenges
ment’s use of three
peremptory
Transcript
sons for the
strikes.
venirepersons from
exclude three black
challenge
at 20. Because we hold the Batson
jury
Kentucky,
in violation of Batson v.
476
timely,
was not
we need not reach the merits
(1986).
79, 106
1712,
U.S.
S.Ct.
proffered delay. no excuse for the The dis jurisdiction have to review a We ground trict court motion on denied the sentencing depart court’s failure to down circuit, Although, of timeliness. in this we only ward when the district court is not yet precise point beyond not have set out authority depart. aware of its See United objection untimely, a Batson will be we Hall, (8th 1394, States v. Cir. objection timely have noted that a allows the 1993); Evidente, States v. remedy prior trial court to the discrimination denied, Cir.), cert. U.S. to the commencement of trial. United States (1990). Cir.), This is S.Ct. Dobynes, such a case. The court stated that could (1990). depart government not a motion-and absent We now stated, later “I think this is the minimum those circuits that have held that a Batson objection give must be made at the latest sentence can these defendants.” We before may have been errone the venire is dismissed and before the trial find that conclusion express point. 4. We no on whether a Batson challenge any made at must or should be earlier Simpson, grant departure. only required a downward motion is government A ous. Also, at 820. we note that the factors to F.3d substantial assistance departure for warranting departure particular in a case do § 5K1.1. No under U.S.S.G. government totality Id. The required not exist isolation. motion may circumstances well con- 5K2.0, a those individual which allows district §
U.S.S.G. not verge to the unusual situation aggravating or create if it finds kind, contemplated by Id. Be- the Commission. of a or to mitigating circumstances does not show whether facts cause the record adequately considered degree, not exist, warranting departure such a either formulating Sentencing Commission combination, 3553(b). Here, singly or in we remand this Par- 18 U.S.C. Guidelines. consid- to the district court for further requested departure on issue ham and Johnson including: case was eration. grounds that the several commonly prosecuted
atypical, it was not
crime, completed. was III. CONCLUSION Transcript Parham and Sentencing at 8-10. above, affirm monitoring For the reasons stated we requested electronic Johnson Parham and good the convictions of stating that probation, for further con- Sentencing remand to the district court penalties. those candidates for *5 de- re sideration of their motions for downward Transcript and 51. The court at 46 parture. nature of the peatedly to the bizarre referred long period of expressly noted the
case and
African-American vot
of
disenfranchisement
HEANEY,
Judge,
Senior Circuit
County, Arkansas.5 Sentenc
Phillips
in
ers
dissenting.
ing Transcript at
and 62.
dissent,
purposes
accept,
I
of this
warranting departure un
Factors
majori-
by the
the statement of law set forth
may
in this case.
well exist
der section 5K2.0
ty
a
that Parham and Johnson must establish
in
to determine
This
for the district court
is
prima
prosecution
selective
have not ruled out the
the first instance. We
compelled and that
fore
can be
the
single
departure
on a
act
possibility of
based
appropriate standard of review is clear er-
v.
of
behavior. United States
aberrant
The
that Parham
ror.1
district court found
(8th
Simpson, 7 F.3d
prima
had not established a
Also,
family
responsibilities
although
ties and
majority
facie case. The
holds that this find-
ordinarily
are not
employment
record
clearly
disagree.
was not
erroneous.
determining
grant a
in
whether to
relevant
view,
my
In
the two black men made out a
extraordinary circum
departure,
downward
prima
prosecution
clear
may support departure from the
stances
race,
on the basis of
and the decision of the
819;
guideline range.
Id. at
see also United
contrary
clearly
court to
district
the
is
erro-
Star,
Cir.1993);
All that is to the “selec son were convicted involved absen tivity” requirement for a tee ballots. Their affidavits contain evidence 2. were also with substantive of- 4. The defendants also affidavits outlin- acquitted fenses for the same conduct but were ing equally egregious Voting violations of the charges. of those Chicot, Lee, counties, Rights Act in and Lincoln adjacent Phillips County all to in the Arkansas 3. 42 U.S.C. reads as follows: view, my Delta. In addi- these affidavits knowingly willfully gives Whoever or false in- tional for the view that the defendants name, address, period formation as to his or of prose- established a voting purpose residence in the district for the cution. vote, establishing eligibility register of his to or conspires or with another individual for the (b) 5. Subdivision purpose encouraging registration reads follows: of his false to illegal voting, pays pay vote or or or offers to person, acting No under color of law accepts payment registration or either for to intimidate, threaten, otherwise, or shall or voting vote or for shall be fined not more than coerce, threaten, intimidate, attempt or to or $10,000 imprisoned or not more than five any person attempting to coerce or Provided, however, years, or both: That this vote, intimidate, threaten, coerce, or or or at- provision applicable only general, shall be intimidate, threaten, any tempt or coerce special, primary solely or held or in elections person urging aiding any person to vote or part purpose selecting electing of or vote, intimidate, threaten, attempt President, or or or any candidate for the office of Vice President, elector, any person exercising any powers coerce or presidential Member of the 1973f, 1973a(a), 1973d, Senate, duties under sections Member of 1973h, Representatives.... 1973g, 1973j(e) States House of of this title. evidentiary hear- completed and an that would has been whites voting violations
of held, votes. court would have to that number of the district at least likely affect distinguishing feature between not the defendants estab- decide whether or The main the eases that If prosecuted prosecution. it that was lished a case of selective case prosecuted is not investigated affirmative, have to were not found in the would alleged violations nor the not, the scale of If the convic- prosecution. dismiss the Rather, the deter severity the conduct. of tion would stand. the race of the appears be minative factor majority’s all concur with fact that the two black defendants respects. other seeking to prosecuted were men who were the efforts of the votes while maximize black persons who were discouraging voting.
aimed at evidence, put in context of
This when against history of discrimination
the local strong voting, is sufficient to raise a
blacks was motivated
inference that prosecution. This bringing this by race in America, UNITED STATES long history noted the previously court has Plaintiff-Appellee, primary against blacks discrimination v. elections, particularly the Arkan general County located. Delta where sas Roger BETTELYOUN, Defendant- Helena, 675 F.2d City West See Perkins Appellant. mem., 801, (8th Cir.), 201, 459 U.S. aff'd No. 93-2414. (1982); 33, Jeffers (E.D.Ark.1989), 204, Clinton, F.Supp. Appeals, United States Court mem., aff 'd Eighth Circuit. (1991); Smith v. Clin (E.D.Ark.1988). ton, F.Supp. Submitted Oct. history Notwithstanding long of discrimi 14, 1994. Decided Feb.
nation, Department has never the Justice prosecution for voter brought a criminal *7 resident of against
fraud that, years
County. ironic after It by white citizens black men
intimidation vote, seeking prosecu first women against should be
tion for fraud Department of Justice is to
defendants. finally realizing the im
be commended for fraud;
portance suppressing voter now evenhandedly prosecute such fraud.
must facie case of selec-
Having made and Johnson are prosecution, Parham discovery hearing and a on the
entitled
question action of of whether
singling them out for was based court to It is for the district decide race. by the defen- questions asked inquiry. to this
dants are relevant reasons, I foregoing
For would remand district court for action
this matter
consistent this dissent. After