SPIVER WHITNEY GORDON, PETITIONER V. UNITED STATES OF AMERICA No. 87-1782 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Memorandum for the United States in Opposition Petitioner contends that he was improperly charged with providing false information to an election official for the purpose of voting, in violation of 42 U.S.C. 1973i(c). 1. Following a jury trial in the United States District Court for the Northern District of Alabama, petitioner was convicted on two counts of mail fraud, in violation of 18 U.S.C. 1341, and two counts of providing false information to an election official for the purpose of voting in violation of 42 U.S.C. 1973i(c). /1/ He was sentenced to concurrent terms of three years' imprisonment, all but six months of which was suspended in favor of three years' probation; petitioner was also fined $500 on each mail fraud count. 1 R. 77. The charges stemmed from petitioner's activities in connection with the casting of absentee ballots on September 4, 1984, in the Democratic Party primary election in Greene County, Alabama. Under Alabama law, a registered voter may cast an absentee ballot if he will be out of the county on the date of the election (Ala. Code Section 17-20-3(a) (1987)). The voter must sign an affidavit as to his elibigility to vote; the affidavit must be verified by a notary public or by two witnesses (id. Sections 17-10-7, 17-10-8); and the affidavit must accompany the absentee ballot in order for the ballot to be counted (id. Section 17-10-9). The evidence at trial showed that petitioner fraudulently claimed to have witnessed the signatures of two purported absentee voters on the affidavits submitted with their ballots. In particular, petitioner had signed the two absentee ballot envelopes as a witness even though he had not seen the two voters sign the affadavits; in fact, the two purported voters had not signed the affidavits. 11 R. 17, 34, 36-37, 59-61. The purported voters were petitioner's relatives, Nebraska Underwood and Frankland Underwood. Nebraska Underwood, who had moved from Greene County in January 1984, did not know that his name had been used on an absentee ballot and had not voted in the Greene County election (10 R. 204-210). Similarly, Frankland Underwood, who had moved from the county before the election, had not applied for an absentee ballot, had not signed such a ballot, and had not authorized anyone to vote in his name (7 R. 138-140, 142-144, 163-164, 171). 2. Petitioner moved to dismiss the indictment before trial on the ground of selective prosecution. The magistrate recommended that the district court deny the motion without a hearing, even though he found that petitioner had "made a showing of a 'colorable entitlement'" (1 R. 50-12) to relief on the ground that he had been "singled out for prosecution" (Pet. App. 3a-4a). The district court adopted the magistrate's recommendation and denied petitioner's motion without an evidentiary hearing (id. at 2a). During jury selection, petitioner, who is black, challenged the government's use of peremptory strikes to remove every black veniremember from the jury. The district court denied petitioner's motion for either dismissal of the indictment, a mistrial, or a hearing to determine the basis of the government's use of peremptory challenges. /2/ 3. In its initial opinion, the court of appeals vacated all of petitioner's convictions and remanded the case to the district court for an evidentiary hearing on petitioner's selective prosecution claim and on his claim that the government had used its peremptory challenges in a discriminatory manner. The court concluded (Pet. App. 8a-9a) that petitioner deserved 10 an evidentiary hearing on the selective prosecution claim so the full facts may be known. (Petitioner) is entitled to discovery of the relevant Government documents relating to the local voting fraud cases the Government has prosecuted and any voting fraud complaints which they have decided not to pursue. Turning to petitioner's claim under Batson v. Kentucky, 476 U.S. 79 (1986), the court similarly saw the need for further proceedings on remand "to determine the facts" (Pet. App. 13a), because (id. at 14a) the striking of a single balck juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors. In the course of its opinion, the court of appeals rejected petitioner's other challenges to his conviction. First, the court concluded that the district court had properly instructed the jury that the Alabama absentee voting statute was pertinent to the criminal charge under 42 U.S.C. 1973i(c) and that the instruction on state law did not result in a "constructive amendment of the indictment" (Pet. App. 17a). Second, the court held that there was sufficient evidence to support the conviction. The record, the court of appeals explained (id. at 17a-18a), prove(s) that (petitioner) participated in a scheme in which he fraudulently witnessed the signatures on the verification oaths of the ballots of Nebraska and Frankland Underwood without their consent and participation. These ballots were mailed and cast in the primary election of September 4, 1984. Finally, the court rejected petitioner's challenges to the district court's "modified Allen charge" (id. at 18a), its refusal to sequester the jury, and its denial of petitioner's motion for a mistrial (id. at 21a). Petitioner filed a petition for rehearing. In response, the court of appeals filed a second opinion in which it granted additional relief to petitioner. In the opinion on rehearing, the court vacated petitioner's two mail fraud convictions in light of McNally v. United States, No. 86-234 (June 24, 1987), because those charges "did not involve the deprivation of money or property" (Pet. App. 3b). The court prior opinion remains in full force and effect" (id. at 6b). 3. Petitioner challenges the portion of the court of appeals' initial opinion rejecting his claim that his conduct did not fall within the reach of the criminal provision of the Voting Rights Act of 1965, 42 U.S.C. 1973i(c). This case, however, is in an interlocutory posture; petitioner's claims are therefore premature, and review by this Court is therefore unwarranted. Because the court of appeals set aside petitioner's convictions and remanded the case for an evidentiary hearing on his claims of selective prosecution and discriminatory jury selection, this case is "not yet ripe for review by this Court." Brotherhood of Locomotive Firemen v. Bangor & A. R.R., 389 U.S. 327, 328 (1967). Should petitioner prevail in the district court on his claim of selective prosecution, the court would dismiss the indictment. Should petitioner succeed on his Batson challenge, the district court would order a new trial, at which he might be acquitted. In either event, petitioner's challenge to the jury instructions and the government's theory of prosecution would become moot. Even if the district court reinstates petitioner's two remaining convictions following the remand proceedings, petitioner will be free to appeal the district court's rulings to the court of appeals. If the court of appeals affirms petitioner's convictions at that point, petitioner will be able to present his current claims, together with any other challenges to his conviction that he may wish to raise, in a petition for a writ of certiorari seeking review of the final judgment against him. Accordingly, review by this Court of the court of appeals' decision would be premature at this time. See Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916). /3/ It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General JUNE 1988 /1/ Before trial, the government dismissed 16 counts against petitioner (3 R. 77; 11 R. 74-75). The jury found petitioner not guilty on another 14 counts and could not reach a verdict on three counts. The court later granted the government's motion to dismiss those three counts. 17 R. 52, 148, 153-155. The jury found petitioner's co-defendant, Frederick D. Daniels, not guilty on all counts (17 R. 24). /2/ The government did volunteer nondiscriminatory reasons for its peremptory challenges (see 6 R. 31-33). Petitioner then filed in the court of appeals a petition for a writ of mandamus and prohibition with regard to the peremptory challenges; that petition was denied (Pet. App. 12a). /3/ Because this case is interlocutory, we are not responding on the merits to the questions presented by the petition. We will file a response on the merits if the Court requests.