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 have appealed. We find no error in the trial below and affirm.
The defendants level their first attack against the indictment itself. According to their argument, the indicment consisted of "only legal conclusions", was "totally devoid of any allegation of fact constituting or describing the offense 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 Senate." 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 explicitly 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 conspirators proposed to accomplish their illegal acts (i. e., "the Mount Gay precinct") and described with as much particularity as the indictment in United States v. Saylor (1944) 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341, the wrongful acts intended to be accomplished by the conspirators in such precinct (i. 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, 545-546, cert. denied, 350 U.S. 982, 76 S.Ct. 468, 100 L.Ed. 850; United States v. Morado (5th Cir. 1972) 454 F.2d 167, 169.
In addition to their motion to dismiss on the ground of defective indictment, the defendants filed successive motions 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 the Government, and finally "for full disclosure as provided under the Omnibus Hearing Project",
(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 function of a bill of particulars is not to provide "detailed disclosure 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. Wainwright (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, 89 S.Ct. 176,
(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 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145; United States v. Coley (5th Cir. 1971) 441 F.2d 1299, 1301; United States v. Chase (4th Cir. 1967) 372 F.2d 453, 467, cert. denied 387 U.S. 907, 87 S.Ct. 1688, 18 L. Ed.2d 626; Braxton v. Peyton (4th Cir. 1966) 365 F.2d 563, 565, cert. denied 385 U.S. 939, 87 S.Ct. 306, 17 L.Ed.2d 218.
(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 witness before the grand jury at the conclusion of the direct testimony of such witness at trial and then only if the defendant shows a "particularized need" for such disclosure.
(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 production by the Government of all documents to be introduced and a list of all witnesses to be used, along with a summary of their testimony.
Nor were the defendants entitled to a summary of the testimony to be given by such witnesses. The Court in Sendejas v. United States (9th Cir. 1970) 428 F.2d 1040, 1046, cert. denied
Actually, the trial court construed the motion of the defendants as intended to "require that the Government disclose 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 evidence," 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 present." United States v. Fioravanti (3d Cir. 1969) 412 F.2d 407, 411, cert. denied 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88. Under the circumstances of this case, we find no error in the denial of such a motion.
The defendants next contend that the District Court erred in the admission of the sworn testimony of the defendants Earl Tomblin and John R. Browning, taken at the state hearing on the protest filed by the defeated candidate 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. When the evidence was first proffered, the defendants apparently 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 defendant'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, however, 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 contest 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.
(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 introducing 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 testimony 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 testified. In support of this theory of inadmissibility, the defendants cite in their brief two Texas cases. Neither sustains their position. If anything, they uphold the admissibility of the testimony. In the first of these cases, Scherpig v. State (1929) 112 Tex.Cr.R. 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 defendant 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 statement solely for purposes of impeachment. The defendant excepted, contending that the statement, as admitted in evidence, could not be so limited but was "before the jury for all purposes". The Court sustained this contention of the defendant, adding (13 S. W.2d at 873):
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.Cr.R. 210, 199 S. W. 289. There, the prosecution proffered testimony dealing with other crimes committed by the defendant, entirely 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):
This authority, again, when examined on its special facts, supports the admissibility
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 testimony having no relevance to the facts of the instant prosecution but as an admission by those defendants of facts directly related to the instant prosecution. The Government offered testimony from one Garrett Sullins that the latter was not present at the Mount Gay precinct on election day and had not voted at that precinct. Tomblin, however, had testified at the election contest hearing that he saw Garrett Sullins at the Mount Gay precinct and had observed him as he went in to vote. That testimony was given by Tomblin and the other conspirators in order to establish 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 election 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 admissible. Contrary to the argument of counsel for the defendants at trial, testimony of a defendant, given at another 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 (1959) 106 U.S.App.D.C. 373, 273 F.2d 108, 112-113, cert. denied 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012; London v. Patterson (9th Cir. 1972) 463 F.2d 95, 97; Hale v. United States (10th Cir. 1969) 406 F.2d 476, 478-479, cert. denied 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765 and whether he appeared as a defendant or witness, Boitano v. United States (9th Cir. 1925) 7 F.2d 324, 325, United States v. Cecil (8th Cir. 1972) 457 F.2d 1178, 1181. It is of no moment whether the former trial was for the same offense or for some other, Milton v. United States (1940) 71 U.S.App.D.C. 394, 110 F.2d 556, 559-560, or whether the trial was a criminal or civil proceeding, Ayres v. United States (5th Cir. 1952) 193 F.2d 739, 740-741.
(b) Alleged Improper Admission of such Testimony against Co-conspirators of the Declarant
It will be noted from the record that, when first confronted with this testimony, the defendants contested admissibility 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 announced in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, might inhibit the introduction of this testimony is wide of the mark. Miranda applies to statements procured during "custodial police interrogation" and has no application to voluntary testimony such as that involved here, given in another judicial hearing.
At the conclusion of the District Court's charge, however, 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 conspiracy 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 challenged 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 instructions 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. Wechsler (4th Cir. 1968) 392 F.2d 344, 347-348, cert. denied 392 U.S. 932, 88 S.Ct. 2283, 20 L. Ed.2d 1389, reh. denied 393 U.S. 902, 89 S.Ct. 71, 21 L.Ed.2d 191; United States v. Corallo (2nd Cir. 1969) 413 F.2d 1306, 1319-1320, cert. denied 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422; United States v. Carvelli (D.C.N.Y.1972) 340 F.Supp. 1295, 1304, aff'd. (2nd Cir.) 464 F.2d 1129, cert. denied 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664. 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 accomplishing 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
(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 election were finally certified, i. e., on May 27, 1970. It is suggested that federal jurisdiction over elections under Section 241 is limited to elections in which federal offices are at stake; and, when such federal elections are finally certified, 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 was no contest over the votes for federal offices at the Mount Gay box after the certification of May 27, 1971 federal jurisdiction over the conspiracy ended at that time, and evidence of subsequent events at a contest hearing involving only a state office voted on at the same election, was accordingly inadmissible. As we have stated, this involved 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, 73 S.Ct. 481, 97 L.Ed. 593, reh. denied 345 U.S. 919, 73 S.Ct. 726, 97 L.Ed. 1352. Moreover there necessarily arises the question whether, when the defendants have attempted to use by way of cross-examination the testimony given by certain of the Government witnesses in the election contest for purposes of contradicting the testimony of those witnesses at trial, they are in any position to object to the use by the Government of testimony by certain of the defendants themselves at that election contest. We shall, however, 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 election contests and anything happening after that certification 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, 61 S.Ct. 1031, 1041, 85 L.Ed. 1368, it "speaks neither of elections nor of primaries. In unambiguous language it protects `any right or privilege
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 constitutions or laws (see, Fortson v. Morris, 1966, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330), it is clear that, where states provide for the election of officers, that right, as we have indicated, is protected against dilution involving "state action" under the Equal Protection 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, 88 S.Ct. 1114,
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 election clerks. And, when the election contest developed, it was necessary for the election officials and the defendants 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 election results and that, necessarily, evidence of crimes committed 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
The defendants also find constitutional fault in Government 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 defendants say?" was guilty of an impermissible comment on the failure of the defendants to testify. Viewed in isolation, the statement might have been of doubtful propriety; but, taken in connection with the comments that followed, 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 ascertaining when argument of Government counsel represents 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, 90 S.Ct. 1388, 25 L.Ed.2d 665: "`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 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 evidence. The challenged language of the prosecutor, expressed in an interrogatory form, was, as we have said, no more than a rhetorical inquiry, directed to the defendants' theory of defense, expressed as a mere predicate for then reviewing in detail that theory and the evidence offered 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 rhetorical 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.
Finally, the defendants complain of the District Court's failure to dismiss because the verdict was not supported by substantial or credible evidence. This argument rests largely on the contention that the Government's witnesses in the main had given conflicting statements, either in affidavits 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 testimony 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 district that conclusion by the jury. We find no error in his denial of the motion.
Disclosure 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, 845-846. And the Government must act in good faith in discharging this duty; if in doubt, it should submit the material in question to the court itself for in 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. 500-505. 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 in 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 Considerations, 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 statement in his testimony before the grand jury that could be considered exculpatory. The trial court did not find the answer exculpatory, 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 disclosure 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 defense preparation", the Government should provide the defense with the exculpatory 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, 193-194; United States v. Cobb (D.C. N.Y. 1967) 271 F.Supp. 159, 163, aff'd., 2d Cir., 396 F.2d 158; United States v. Gleason (D.C.N.Y. 1967) 265 F.Supp. 880, 884-885. 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).
This language is reiterated in United States v. Brumley, supra (466 F.2d at 915-916).
It has been suggested that if the preliminary hearing is expanded 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 Criminal Discovery: A Proposed Revision of Federal Rule 16, 15 Vill.L. Rev. 655 at 678 (1970).
But, cf. concurring opinion of Justice White in Coleman (399 U.S. at 17-18, 90 S.Ct. 1999).
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:
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.
He restated the same instructions at the conclusion of the evidence.