For having conspired to cast fictitious votes for federal,
state, and local candidates in a West Virginia primary election,
petitioners were convicted of violating 18 U.S.C. § 241, which
makes it unlawful to conspire to injure any citizen in the free
exercise or enjoyment of any right or privilege secured by the
Constitution or laws of the United States. At the trial, over
petitioners' objections, certain statements made by two of the
petitioners at a local election contest hearing held after the
election results had been certified on May 27, 1970, were admitted
in evidence against all the petitioners to prove that the two
petitioners making the statements had perjured themselves at the
election contest hearing. On appeal, the petitioners contended for
the first time that § 241 was limited to conspiracies to cast false
votes in federal elections, and that, accordingly, the conspiracy
charged in their case, as far as federal jurisdiction was
concerned, ended on May 27, so that subsequent out-of-court
statements could not have furthered any § 241 conspiracy, and hence
should not have been admitted in evidence. The Court of Appeals
rejected these contentions, and affirmed the convictions.
1. The out-of-court statements were admissible under basic
principles of the law of evidence and conspiracy, regardless of
whether or not § 241 encompasses conspiracies to cast fraudulent
votes in state and local elections. Pp. 417 U. S.
(a) The statements were not hearsay, since they were not offered
in evidence to prove the truth of the matter asserted; hence their
admissibility was governed by the rule that acts of one alleged
conspirator can be admitted into evidence against the other
conspirators, if relevant to prove the existence of the conspiracy,
even though they may have occurred after the conspiracy ended.
Lutwak v. United States, 344 U. S. 604
417 U. S.
(b) Since the statements were not hearsay, the jury did not have
to make a preliminary finding that the conspiracy charged
Page 417 U. S. 212
was still in progress before it could consider them as evidence
against the other defendants, and accordingly the statements were
admissible if relevant to prove the conspiracy charged. P.
417 U. S.
(c) Even if the federal conspiracy ended on May 27, the fact
that two of the petitioners perjured themselves at the local
election contest hearing was relevant and admissible to prove the
underlying motive of the conspiracy. Accordingly, in order to rule
on petitioners' challenge to the admissibility of this evidence,
there was no need for the Court of Appeals, and there is no need
for this Court, to decide whether petitioners' conspiracy ended on
May 27 for purposes of federal jurisdiction or whether § 241
applies to conspiracies to cast fraudulent votes in local
elections. Pp. 417 U. S.
2. The evidence amply supports the verdict that each of the
petitioners engaged in the conspiracy with the intent of having
false votes cast for the federal candidates. Pp. 417 U. S.
(a) The fact that petitioners' primary motive was to affect the
result in the local, rather than the federal, election has no
significance, since although a single conspiracy may have several
purposes, if one of them -- whether primary or secondary --
violates a federal law, the conspiracy is unlawful under federal
law. Pp. 417 U. S.
(b) That the petitioners may have had no purpose to change the
outcome of the federal election is irrelevant, since that is not
the specific intent required under § 241, but rather the intent to
have false votes cast, and thereby to injure the right of all
voters in a federal election to have their expressions of choice
given full value, without dilution or distortion by fraudulent
balloting. Pp. 417 U. S.
(c) Even assuming, arguendo,
that § 241 is limited to
conspiracies to cast false votes for federal candidates, it was not
plain error for the District Court's jury instructions not to focus
specifically upon the federal conspiracy, since, in view of the
fact that the prosecution's case showed a single conspiracy to cast
entire slates of false votes and the defense consisted primarily of
a challenge to the Government witnesses' credibility, it is
inconceivable that, even if charged by more specific instructions,
the jury could have found a conspiracy to cast false votes for
local offices without also finding a similar conspiracy affecting
the federal offices. Pp. 417 U. S.
481 F.2d 685, affirmed.
Page 417 U. S. 213
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, STEWART, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which
BRENNAN, J., joined, post,
p. 417 U. S.
MR JUSTICE MARSHALL delivered the opinion of the Court.
Petitioners were convicted of violating 18 U.S.C. § 241, which,
in pertinent part, makes it unlawful for two or more persons to
"conspire to injure, oppress, threaten, or intimidate any
citizen in the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United States. .
Specifically, the Government proved that petitioners engaged in
a conspiracy to cast fictitious votes for candidates for federal,
state, and local offices in a primary election in Logan County,
West Virginia. At the trial, a question arose concerning the
admissibility against all of the petitioners of certain
out-of-court statements made by some of them. In considering the
propriety of the District Court's decision to admit this evidence,
the Court of Appeals thought it necessary to resolve the question
whether a conspiracy to cast false votes in a state or local
election, as opposed to a conspiracy to cast false votes in a
federal election, is unlawful under § 241. The Court of Appeals
affirmed petitioners' convictions, concluding that § 241
"conspiracies, involving state action at least, to dilute the
effect of ballots
Page 417 U. S. 214
cast for the candidate of one's choice in wholly state
481 F.2d 685, 700-701 (CA4 1973). We granted certiorari to
consider this question. 414 U.S. 1091 (1973). It now appears,
however, that the out-of-court statements at issue were admissible
under basic principles of the law of evidence and conspiracy,
regardless of whether or not § 241 encompasses conspiracies to cast
fraudulent votes in state and local elections. Accordingly, we
affirm the judgment of the Court of Appeals without passing on its
interpretation of § 241.
The underlying facts are not in dispute. On May 12, 1970, a
primary election was held in West Virginia for the purpose of
nominating candidates for the United States Senate, United States
House of Representatives, and various state and local offices. One
of the nominations most actively contested in Logan County was the
Democratic nomination for County Commissioner, an office vested
with a wide variety of legislative, executive, and judicial powers.
] Among the several
candidates for the Democratic nomination for this office were the
incumbent, Okey Hager, and his major opponent, Neal Scaggs.
Petitioners are state or county officials, including the Clerk
of the Logan County Court, the Clerk of the County Circuit Court,
the Sheriff and Deputy Sheriff of the County, and a State Senator.
The evidence at trial showed that, by using the power of their
office, the petitioners convinced three election officials in
charge of the Mount Gay precinct in Logan County to cast false and
fictitious votes on the voting machines and then to
Page 417 U. S. 215
destroy poll slips so that the number of persons who had
actually voted could not be determined except from the machine
tally. [Footnote 2
] While it is
apparent from the record that the primary purpose behind the
casting of false votes was to secure the nomination of Hager for
the office of County Commissioner, it is equally clear that about
100 false votes were, in fact, cast not only for Hager, but also
for Senator Robert Byrd and Representative Ken Hechler, who
appeared on the ballot for renomination to their respective
chambers of the United States Congress, as well as for other state
and local candidates considered part of the Hager slate. [Footnote 3
The conspiracy achieved its primary objective, the countywide
vote totals showing Hager the winner by 21 votes, counting the
Mount Gay precinct returns. About two weeks after the election, on
May 27, 1970, the election results were certified. After that date,
Scaggs filed an election contest [Footnote 4
] challenging certain returns, including
Page 417 U. S. 216
the Mount Gay County Commissioner votes. No challenge was made,
however, to the Mount Gay votes for either of the federal offices,
and they became final on May 27.
A hearing was held in the County Court on the election contest
at which petitioners Earl Tomblin and John R. Browning gave sworn
testimony. The prosecution in the § 241 trial sought to prove that
Tomblin and Browning perjured themselves at the election contest
hearing in a continuing effort to have the fraudulent votes for
Hager counted and certified. For example, one of the key issues in
the election contest was whether sufficient voters had, in fact,
turned out in Mount Gay precinct to justify the unusually high
reported returns. Tomblin testified under oath at the election
contest that he had visited Mount Gay precinct on election day and
had observed one Garrett Sullins there as Sullins went in to vote.
The prosecution at the § 241 trial, however, offered testimony from
Sullins himself that he was in the hospital, and never went to the
Mount Gay precinct on election day.
At trial, the other defendants objected to the introduction of
Tomblin's prior testimony on the ground that it as inadmissible
against anyone but Tomblin. The District Court overruled the
objection, but instructed the jury that Tomblin's testimony could
be considered only as bearing upon his guilt or innocence, unless
the jury should determine that, at the time Tomblin gave this
testimony, a conspiracy existed between him and the other
defendants and that the testimony was made in furtherance of the
conspiracy, in which case the jury could consider the testimony as
bearing upon the guilt
Page 417 U. S. 217
or innocence of the other defendants. A similar objection was
made to the introduction of Browning's election contest testimony,
and a similar cautionary instruction given when that objection was
In oral argument before the Court of Appeals, petitioners for
the first time [Footnote 5
sought to link their objection to the introduction of this evidence
to a particular interpretation of § 241. See
481 F.2d at
694. Specifically, petitioners argued that § 241 was limited to
conspiracies to cast false votes in federal elections, and did not
apply to local elections. Accordingly, they contended that the
conspiracy in the present case, so far as federal jurisdiction was
concerned, ended on May 27, 1970, the date on which the election
returns were certified and the federal returns became final.
Statements made after this date by one alleged conspirator, the
argument continued, could not, as a matter of law, have been made
in furtherance of
Page 417 U. S. 218
the conspiracy charged under § 241, and therefore should not
have been considered by the jury in determining the guilt or
innocence of the other defendants.
The Government countered before the Court of Appeals that,
whether the federal conspiracy had ended or not, the election
contest testimony of Tomblin and Browning was admissible under the
principles enunciated in Lutwak v. United States,
344 U. S. 604
(1953). The Court of Appeals, however, decided not to tarry over
this point, and instead, in its own words, chose "to meet directly
the contention that federal jurisdiction over the alleged
conspiracy ended with the certification in the federal election
contests. . . ." See
481 F.2d at 698. We think it
inadvisable, however, to reach out in this fashion to pass on
important questions of statutory construction when simpler, and
more settled, grounds are available for deciding the case at hand.
In our view, the basic principles of evidence and conspiracy law
set down in Lutwak
are dispositive of petitioners'
The doctrine that declarations of one conspirator may be used
against another conspirator if the declaration was made during the
course of and in furtherance of the conspiracy charged is a well
recognized exception to the hearsay rule which would otherwise bar
the introduction of such out-of-court declarations. See Lutwak
v. United States, supra,
at 344 U. S. 617
See also Krulewitch v. United States, 336 U.
(1949). The hearsay conspiracy exception applies
only to declarations made while the conspiracy charged was still in
progress, a limitation that this Court has "scrupulously observed."
Page 417 U. S. 219
See Krulewitch v. United States, supra,
at 336 U. S.
-444. See also Lutwak v. United States,
at 344 U. S.
-618; Fiswick v. United States, 329 U.
, 329 U. S. 217
(1946); Wong Sun v. United States, 371 U.
, 371 U. S. 490
But, as the Court emphasized in Lutwak,
that out-of-court declarations by a conspirator be shown to have
been made while the conspiracy charged was still in progress and in
furtherance thereof arises only because the declaration would
otherwise be hearsay. The ongoing conspiracy requirement is
therefore inapplicable to evidence, such as that of acts
of alleged conspirators, which would not otherwise be hearsay.
Thus, the Court concluded in Lutwak
that acts of one
alleged conspirator could be admitted into evidence against the
other conspirators, if relevant to prove the existence of the
conspiracy, "even though they might have occurred after the
conspiracy ended." 344 U.S. at 344 U. S. 618
See also United States v. Chase,
372 F.2d 453 (CA4 1967);
Note, Developments in the Law -- Criminal Conspiracy, 72
Harv.L.Rev. 920, 988 (1959).
The obvious question that arises in the present case, then, is
whether the out-of-court statements of Tomblin and Browning were
hearsay. We think it plain they were not. Out-of court statements
constitute hearsay only when offered in evidence to prove the truth
of the matter asserted. [Footnote
] The election contest testimony of Tomblin and Browning,
however, was not admitted into evidence
Page 417 U. S. 220
in the § 241 trial to prove the truth of anything asserted
therein. Quite the contrary, the point of the prosecutor's
introducing those statements was simply to prove that the
statements were made, [Footnote
] so as to establish a foundation for later showing, through
other admissible evidence, that they were false. [Footnote 9
] The rationale of the hearsay rule
is inapplicable as well. The primary justification for the
exclusion of hearsay is the lack of any opportunity for the
adversary to cross-examine the absent declarant whose out-of-court
statement is introduced into evidence. [Footnote 10
] Here, since the prosecution was not
contending that anything Tomblin or Browning said at the election
contest was true, the other defendants had no interest in
cross-examining them so as to put their credibility in issue.
380 U. S.
Page 417 U. S. 221
U.S. 400 (1965); Barber v. Page, 390 U.
(1968); Bruton v. United States,
391 U. S. 123
Since these prior statements were not hearsay, the jury did not
have to make a preliminary finding that the conspiracy charged
under § 241 was still in progress before it could consider them as
evidence against the other defendants. The prior testimony was
accordingly admissible simply if relevant in some way to prove the
conspiracy charged. See Lutwak v. United States,
at 344 U. S.
As we read the record, there can be no doubt that the evidence
of perjury by petitioners Tomblin and Browning in the election
contest was relevant to make out the Government's case under § 241,
even assuming, arguendo,
that the petitioners' conspiracy
ended, for purposes of federal jurisdiction, on May 27, 1970, with
the certification of the federal election returns. For even if
federal jurisdiction rested only on that aspect of the conspiracy
involving the federal candidates, the proof at trial need not have
been so limited. The prosecution was entitled to prove the
underlying purpose and motive of the conspirators in order to
convince the jury, beyond a reasonable doubt, that petitioners had,
in fact, unlawfully conspired to cast false votes in the election.
See Lutwak v. United States, supra,
at 344 U. S. 617
As it was never suggested that either Senator Byrd or
Representative Hechler needed or sought the assistance of an
unlawful conspiracy in order
Page 417 U. S. 222
to win his respective nomination, a key issue in this
prosecution, accepting for the sake of argument petitioners' view
of § 241, was whether and why petitioners conspired to have false
votes cast for these federal candidates. The fact that two of the
petitioners perjured themselves at an election contest in which the
Mount Logan votes for Hager were at stake helped prove the
underlying motive of the conspiracy, by demonstrating that the
false votes for federal officers were not an end in themselves, but
rather part of a conspiracy to obtain Hager's nomination through
unlawful means. The jury could have inferred that the petitioners
were motivated in casting false federal ballots by the need to
conceal the fraudulent votes for Hager, since the casting of large
numbers of false ballots for County Commissioner would likely have
aroused suspicion in the absence of the casting of a similar number
of false votes for the other offices at issue in the election.
Even if the federal conspiracy ended on May 27, then, the
Tomblin and Browning election contest testimony was relevant to
prove the offense charged. Accordingly, in order to rule on
petitioners' challenge to the admissibility of this evidence, there
was no need for the Court of Appeals, and there is no need for us,
to decide whether petitioners' conspiracy ended on May 27 for
purposes of federal jurisdiction or whether § 241 applies to
conspiracies to cast fraudulent votes in local elections.
Petitioners argue, however, that the evidence at trial was
insufficient to show that they had engaged in a conspiracy to cast
false votes for the federal officers, and that their convictions
under § 241 can stand only if we hold that section applicable to a
conspiracy to cast false votes
Page 417 U. S. 223
in a local election. [Footnote 12
] Our examination of the record leads us to
Two principles form the backdrop for our analysis of the record.
It is established that, since the gravamen of the offense under §
241 is conspiracy, the prosecution must show that the offender
acted with a specific intent to interfere with the federal rights
in question. See United States v. Guest, 383 U.
, 383 U. S.
-754 (1966); Screws v. United States,
325 U. S. 91
Page 417 U. S. 224
we scrutinize the record for evidence of such intent with
special care in a conspiracy case for, as we have indicated in a
related context, "charges of conspiracy are not to be made out by
piling inference upon inference, thus fashioning . . . a dragnet to
draw in all substantive crimes." Direct Sales Co. v. United
States, 319 U. S. 703
319 U. S. 711
(1943). See also Ingram v. United States, 360 U.
, 360 U. S. 680
Even with these caveats in mind, we find the record amply bears
out the verdict that each of the petitioners engaged in the
conspiracy with the intent of having false votes cast for the
federal officers. The Government's chief witness was Cecil Elswick,
an unindicted coconspirator who served as the Republican election
officer at the Mount Gay precinct and who actually cast most of the
fraudulent votes. Elswick testified that he was first approached by
petitioner Red Hager, the son of Okey Hager, who told Elswick to go
along with them to win the Mount Gay precinct or else he, Red
Hager, would cause Elswick trouble. When asked on direct
examination for whom he was told to win the precinct, Elswick
testified: "For the Okey Hager slate and Senator Byrd and Ken
Hechler." App. 40. When Elswick expressed an interest in going
along, Red Hager arranged for a meeting between Elswick and Tomblin
at which Tomblin confirmed an offer of a part-time deputy sheriff
job for Elswick as a reward for his help in the election fraud.
Elswick later met with petitioner W. Bernard Smith in Tomblin's
office, and Smith then instructed him on how to proceed to win the
election. The night before the election, Elswick met with all five
of the petitioners. At this meeting, cash payments for the false
votes were discussed, and petitioners Smith and Hager emphasized
the need for, putting "all the votes" on the machine. Later that
evening, Elswick accompanied Tomblin to visit Garrett
Page 417 U. S. 225
Sullins, a candidate for justice of the peace listed on the
Hager slate. Tomblin told Sullins not to worry about his election
because they had him "slated," so long as Sullins' wife, another
Mount Gay precinct election official, would go along with the
Elswick then testified as to how he actually put the fraudulent
votes on the machines. When a voter came into the precinct and
asked for help in using the machines to vote the Neal Scaggs slate,
Elswick and Mrs. Sullins would join the voter in the voting machine
and, aligning their bodies so as to conceal what they were doing,
would put votes on the machine for the entire Hager slate. In
addition, Elswick simply went into the voting machine on his own
and cast many fictitious ballots. Through a comparison between the
reported returns and the number of persons who actually voted,
false votes were shown to have been cast for every office --
federal, state, and local. See n
We think this evidence amply supported the jury's conclusion
that each of the petitioners knowingly participated in a conspiracy
which contemplated the casting of false votes for all offices at
issue in the election. The evidence at trial tended to show a
single conspiracy, the primary objective of which was to have false
votes cast for Hager but which also encompassed the casting of
false votes for candidates for all other offices, including Senator
Byrd and Representative Hechler. True, there was little discussion
among the conspirators of the federal votes per se,
as there was little discussion of the Hager votes in and of
themselves, but the jury could believe this was only a reflection
of the conspirators' underlying assumption that false votes would
have to be cast for entire slates of candidates in order to have
their fraud go undetected.
In our view, petitioners err in seeking to attach significance
to the fact that the primary motive behind their
Page 417 U. S. 226
conspiracy was to affect the result in the local, rather than
the federal, election. A single conspiracy may have several
purposes, but if one of them -- whether primary or secondary -- be
the violation of a federal law, the conspiracy is unlawful under
federal law. See Ingram v. United States,
360 U.S. at
360 U. S.
-680. It has long been settled that § 241 embraces a
conspiracy to stuff the ballot box at an election for federal
officers, and thereby to dilute the value of votes of qualified
voters; see United States v. Saylor, 322 U.
(1944). See also United States v.
Mosley, 238 U. S. 383
(1915). This applies to primary as well as general elections.
See United States v. Classic, 313 U.
That petitioners may have had no purpose to change the outcome
of the federal election is irrelevant. The specific intent required
under § 241 is not the intent to change the outcome of a federal
election, but rather the intent to have false votes cast and
thereby to injure the right of all voters in a federal election to
express their choice of a candidate and to have their expressions
of choice given full value and effect, without being diluted or
distorted by the casting of fraudulent ballots. See United
States v. Saylor, supra,
at 322 U. S. 386
As one court has stated:
"The deposit of forged ballots in the ballot boxes, no matter
how small or great their number, dilutes the influence of honest
votes in an election, and whether in greater or less degree is
immaterial. The right to an honest [count] is a right possessed by
each voting elector, and to the extent that the importance of his
vote is nullified, wholly or in part, he has been injured in the
free exercise of a right or privilege secured to him by the laws
and Constitution of the United States."
Prichard v. United States,
Page 417 U. S. 227
326, 331 (CA6), aff'd due to absence of quorum,
U.S. 974 (1950).
Every voter in a federal primary election, whether he votes for
a candidate with little chance of winning or for one with little
chance of losing, has a right under the Constitution to have his
vote fairly counted, without its being distorted by fraudulently
cast votes. And, whatever their motive, those who conspire to cast
false votes in an election for federal office conspire to injure
that right within the meaning of § 241. [Footnote 13
While the District Court's jury instructions did not
specifically focus upon the conspiracy to cast false votes for
candidates for federal offices, no objection was made at trial or
before the Court of Appeals with respect to this aspect of the
instructions. See Johnson v. United States, 318 U.
, 318 U. S. 200
(1943); Adickes v. S. H. Kress & Co., 398 U.
, 398 U. S. 147
n. 2 (1970). And, even assuming,
Page 417 U. S. 228
that § 241 is limited to conspiracies to cast
false votes for candidates for federal offices, we could find no
plain error here. The prosecution's case, as indicated earlier,
showed a single conspiracy to cast entire slates of false votes.
The defense consisted in large part of a challenge to the
credibility of the Government's witnesses, primarily the three
unindicted coconspirators. The case therefore ultimately hinged on
whether the jury would believe or disbelieve their testimony. Given
the record, we think it inconceivable that, even if charged by more
specific instructions, the jury could have found a conspiracy to
cast false votes for local offices without finding a conspiracy to
cast false votes for the federal offices as well.
This case is therefore an inappropriate vehicle for us to decide
whether a conspiracy to cast false votes for candidates for state
or local office, as opposed to candidates for federal office, is
unlawful under § 241, and we intimate no views on that
The County Commissioner sits on the County Court, which is the
central governmental body in the county. See State ex rel.
Dingess v. Scaggs,
___ W.Va. ___, 195
, 726 (1973). See also
W.Va.Code Ann., §
7-1-3 et seq.
The participation of the election officials was secured by
threats of indictment or arrest, or promises of county jobs and
Of the 541 persons listed as eligible to vote at the Mount Gay
precinct, the Government proved that 222 did not vote, and that 13
more were either dead, in the hospital, or in prison. This left a
maximum of 306 who could have voted. Observers at the precinct
throughout election day estimated that about 275 persons had
actually voted. Nevertheless 348 votes were recorded as cast for
candidates for the nominees for United States Senator, 328 for
Congressman, 358 for State Senator, 458 for House of Delegates, 375
for County Commissioner (long-term), 365 for County Commissioner
(short term), 371 for Justice of the Peace, and 371 for
The election contest, at which candidate Hager was one of the
two presiding judges, was concluded on August 25, 1970. Although
the court was required by statute to rule on the contest by
September 17, 1970, see
W.Va.Code Ann., § 3-7-7, it failed
to enter a final order within the statutory period. Scaggs appealed
to an intermediate appellate court, which granted an appeal. The
Supreme Court of Appeals of West Virginia, however, ruled that the
intermediate appellate court lacked jurisdiction, since no decision
had been rendered by the County Court within the statutory time
allowed. See State ex rel. Hager v. Oakley,
154 W.Va. 528,
Other grounds for exclusion argued before the District Court and
in the briefs before the Court of Appeals have not been pursued
here. These include a contention that introduction of the prior
testimony had the effect of putting Tomblin and Browning on the
witness stand in violation of their constitutional right to stand
mute, a suggestion that, since the testimony was given in a
judicial hearing there might be Miranda
problems, and the
argument that the prior testimony of Tomblin and Browning was
inadmissible impeachment evidence, since both had exercised their
constitutional right not to testify. See
481 F.2d 685,
The Court of Appeals recognized that it need not ordinarily
consider grounds of objection not presented to the trial court.
See Hormel v. Helvering, 312 U. S. 552
312 U. S. 556
(1941). This rule is not without its exceptions, however,
particularly in criminal cases where appellate courts can notice
errors seriously affecting the fairness or integrity of judicial
proceedings. See United States v. Atkinson, 297 U.
, 297 U. S. 160
(1936). See also Hormel v. Helvering, supra,
312 U. S. 557
In view of the fact that petitioners did challenge the
admissibility of the Tomblin and Browning testimony at trial, we
think it was proper for the Court of Appeals to consider all
grounds related to that, underlying objection.
The rationale for both the hearsay conspiracy exception and its
limitations is the notion that conspirators are partners in crime.
United States v. Socony-Vacuum Oil Co., 310 U.
, 310 U. S. 253
(1940); Fiswick v. United States, 329 U.
, 329 U. S. 216
(1946). As such, the law deems them agents of one another. And just
as the declarations of an agent bind the principal only when the
agent acts within the scope of his authority, so the declaration of
a conspirator must be made in furtherance of the conspiracy charged
in order to be admissible against his partner. See Krulewitch
v. United States, 336 U. S. 440
336 U. S.
-443 (1949); Fiswick v. United States,
at 329 U. S. 217
Wong Sun v. United States, 371 U.
, 371 U. S. 490
(1963). See generally
4 J. Wigmore, Evidence §§ 1077-1079
5 J. Wigmore, Evidence § 1361 (3d ed.1940); C.
McCormick, Law of Evidence 460 (1954).
Of course, evidence is not hearsay when it is used only to prove
that a prior statement was made, and not to prove the truth of the
statement. See Dutton v. Evans, 400 U. S.
, 400 U. S. 88
(1970) (opinion of STEWART, J.). See also Creaghe v. Iowa Home
Mut. Cas. Co.,
323 F.2d 981 (CA10 1963); General Tire of
Miami Beach, Inc. v. NLRB,
332 F.2d 58 (CA5 1964); Safeway
Stores, Inc. v. Combs,
273 F.2d 295 (CA5 1960); Ford Motor
Co. v. Webster's Auto Sales, Inc.,
361 F.2d 874 (CA1
Thus, in his opening argument, the prosecutor said:
"I believe the evidence will show, frankly, that that election
contest was full of perjurious testimony, full of lies. Some of it,
the evidence will show, was solicited and caused by these
App. 22. The same point was made in closing argument. Tr.
5 J. Wigmore, supra, n
7, at § 1362. See also Colorificio Italiano
Max Meyer, S.P.A. v. S/S Hellenic Wave,
419 F.2d 223 (CA5
1969); Rossville Salvage Corp. v. S.E. Graham Co.,
F.2d 391 (CA3 1963); Superior Engraving Co. v. NLRB,
F.2d 783 (CA7 1950), cert. denied,
340 U.S. 930
Technically, of course, the proffered evidence was hearsay in
that the Government sought to prove the prior testimony of Tomblin
and Browning by reading a transcript of the election contest
hearing into evidence at the § 241 trial, rather than by calling as
a witness a person who himself heard the Tomblin and Browning
testimony. A well recognized exception to the hearsay rule,
however, permits the introduction of certified court transcripts to
prove the testimony given at a prior proceeding. See
5 J. Wigmore, supra, n
7, at § 1681. Nor is there any "right of
confrontation" problem here, since petitioners did not suggest
below that the transcript read at the § 241 trial did not
accurately reflect the testimony actually given at the election
In briefing this case, all parties appear to have assumed that
this "sufficiency of the evidence" claim was properly before this
Court. It seems clear, however, that this issue was presented
neither to the Court of Appeals nor to us in the petition for a
writ of certiorari. As indicated earlier, the § 241 question arose
below only with respect to the admissibility of the prior testimony
of Browning and Tomblin, and not in connection with any claim that
the evidence was insufficient to support a verdict under the
statute. We nevertheless consider the "sufficiency of the evidence"
claim here. We recognize that petitioners did raise before both the
District Court and the Court of Appeals, and in the petition for a
writ of certiorari a claim that the indictment was
unconstitutionally vague, and the gist of their argument on this
point was that the Government had charged a conspiracy to cast
false votes for both federal and local candidates in order to
survive a motion to dismiss the indictment, but had turned around
at trial and proved only a conspiracy to cast false votes for the
local candidates. This argument therefore raised the substance of
petitioners' present contention that the evidence was insufficient
to show a conspiracy to cast false votes for federal candidates.
Moreover, as we have had occasion to note, a claim that a
conviction is based on a record lacking any evidence relevant to
crucial elements of the offense is a claim with serious
constitutional overtones. See, e.g., Thompson v.
Louisville, 362 U. S. 199
(1960); Johnson v. Florida, 391 U.
(1968). See also Adderley v. Florida,
385 U. S. 39
385 U. S. 44
(1966). Accordingly, even though the "sufficiency of the evidence"
issue was not raised below with any particularity, we think the
interests of justice require its consideration here. See Screws
v. United States, 325 U. S. 91
325 U. S. 107
(1945) (opinion of DOUGLAS, J.). Cf. Lawn v. United
States, 355 U. S. 339
355 U. S. 362
n. 16 (1958).
We also find no merit in petitioners' contention that the
indictment was unconstitutionally vague. The indictment states
that, on May 12, 1970, a primary election was held in Logan County,
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 then charges each of
the defendants with conspiring to injure and oppress the qualified
voters of Mount Gay precinct in the free exercise and enjoyment of
"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. . . ."
The indictment further specifies that it was a part of the
conspiracy "to cause fraudulent and fictitious votes to be cast in
said precinct. . . ." Pet. for Cert. 3b. We think it plain that the
indictment gave petitioners adequate notice of the specific charges
against them. We also note, and petitioners themselves concede,
that the form of the indictment was similar to those used in other
§ 241 prosecutions. See United States v. Saylor,
322 U. S. 385
(1944); United States v. Kantor,
78 F.2d 710 (CA2 1935);
Walker v. United States,
93 F.2d 383 (CA8 1937);
Ledford v. United States,
155 F.2d 574 (CA6), cert.
329 U.S. 733 (1946).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs,
Petitioners were convicted under 18 U.S.C. § 241, which imposes
criminal penalties when "two or more persons conspire to injure . .
. any citizen in the free exercise or enjoyment of any right or
privilege secured to him by the Constitution. . . ." The Court of
Appeals affirmed, 481 F.2d 685, and this Court granted certiorari
to consider whether a conspiracy to cast fraudulent votes in a
state election, without any evidence of racial discrimination,
could constitute a federal offense under § 241. The Court of
Appeals reached the substance of this question, holding that the
Federal Government had the power under 241 to punish not only
conspiracies to poison federal elections, but also conspiracies in
which state officials took
Page 417 U. S. 229
part to cast false votes in a state or local election. 481 F.2d
at 698-700. The Court today avoids the issue squarely presented by
petitioners and by the decision of the Court of Appeals, concluding
that it need not reach the issue because the evidence "bears out
the verdict that each of the petitioners engaged in the conspiracy
with the intent of having false votes cast for . . . federal
After reviewing the record, I am left with the opinion that the
Court, in affirming on the theory that petitioners agreed as a part
of their conspiracy to have false votes cast for federal
candidates, is convicting the petitioners for an offense for which
they were not found guilty by the jury. The instructions to the
jury were phrased in a fashion which did not require it to find
intent to have false votes cast for federal candidates, so that
there is, in truth, no "verdict" to that effect. The evidence of
intent to have false votes cast for federal candidates is hardly
conclusive, so that the failure of the charge to require such a
finding could not be deemed harmless error. Fed.Rule Crim.Proc.
Because it is not clear that petitioners intended that
fraudulent votes be cast for federal candidates, and because I
believe that § 241 does not reach conspiracies to abscond with
state elections, absent the element of racial discrimination, I
dissent. The jury instructions, in allowing the jury to convict
without finding a conspiracy to interfere with the federal
electoral process, were improper, and the error was not
On May 12, 1970, a primary election was held in West Virginia
for the purpose of nominating candidates for the United States
Senate and House of Representatives and for various state and local
offices, including that of County Commissioner for Logan County.
The incumbent Commissioner,
Page 417 U. S. 230
Okey Hager, and his challenger, Neal Scaggs, were engaged in a
bitter contest for the Democratic nomination for Commissioner. The
petitioners, including Okey Hager's son Red Hager, induced election
officials, including Cecil Elswick, who later testified for the
Government at this trial, to cast false votes for the Okey Hager
slate on the voting machines in the Mount Gay, West Virginia,
precinct. There is no evidence that the Okey Hager slate included
any nominees for federal offices. As the Court acknowledges,
"it is apparent from the record that the primary purpose behind
the casting of false votes was to secure the nomination of Hager
for the office of County Commissioner."
The Court nonetheless finds that the conspiracy necessarily
encompassed an agreement to cast fraudulent ballots for the federal
As the Court notes, a stringent scienter
has been imposed when the Government seeks to prosecute under §
241, requiring proof of "specific intent" on the part of a
conspirator to interfere with a right protected by § 241. [Footnote 2/1
] This standard has required
proof that a conspirator acted "in open defiance or in reckless
disregard of a constitutional requirement which has been made
specific and definite," [Footnote
] in this case, the right to have votes cast in a federal
election counted without impairment by fraudulent votes. It is
against this exacting standard of specific intent that the actions
of each of the conspirators in this case must be measured.
From the first, the prosecution in this case proceeded on the
theory that casting false votes for state offices
Page 417 U. S. 231
would constitute a violation of § 241. The indictment charged
that, on May 12, 1970, an election was held at Mount Gay to
nominate candidates for the offices of United States Senator,
Representative to Congress, and various state and county positions.
It was charged that the petitioners willfully and knowingly
conspired to injure voters in the exercise of their constitutional
rights by impairing their right to vote for candidates "for the
aforesaid offices" and to have such votes cast and certified at
their full value. Thus, the indictment charged a conspiracy in
violation of § 241 without distinction between state and federal
offices. Efforts on the part of the petitioners to clarify the
charges against them were futile. The trial judge denied a motion
to dismiss, which argued that the indictment failed to adequately
particularize the alleged criminal violation. The petitioners also
filed a motion for a bill of particulars which requested an
elucidation of the specific acts which formed the basis of the
indictment. This motion was also denied, and the case proceeded to
trial with an indictment charging, as a federal crime, conspiracy
to impair votes for not only federal, but also state offices.
The case was tried on the theory that petitioners conspired to
secure the nomination of Okey Hager for County Commissioner. There
is substantial evidence on the record to demonstrate the existence
of this conspiracy, and petitioners necessarily contemplated having
false votes cast in the local election to secure Okey Hager's
nomination. There is also evidence that Cecil Elswick and others
who were at the polling place during the election did, in fact,
cast false votes for federal candidates. There is also evidence
that one of the petitioners, Red Hager, did tell Elswick to cast
false votes not only for Okey Hager, but also for Senator Byrd and
Representative Hechler, candidates running for federal offices. But
Page 417 U. S. 232
is no conclusive evidence in nearly 2,000 pages of transcript
that any of the other four petitioners agreed, either with Elswick
or with each other, to cast fraudulent votes for the federal
candidates. [Footnote 2/3
The prosecution made clear in its closing argument to the jury
that the essence of its case was the conspiracy to cast false votes
for the local office of County Commissioner. It carefully focused
the jury's attention on the fraud committed by the petitioners as
regards the state election:
"I think from the evidence you can conclude by now that the
theory behind the government's case actually is that these votes
were cast and counted by going through the contest and all in order
to get Okey Hager elected to the County Court, in order to get Red
Hager's father elected to the County Court, that these defendants,
along with others, got the votes cast and got the votes counted in
the long drawn-out procedure that was involved over there."
In its charge to the jury, the trial court reinforced this
crucial error. In its instructions, reprinted in relevant
Page 417 U. S. 233
part in the 417
app|>Appendix to this opinion, the Court never
required the jury to find a specific intent to have false votes
cast in the federal
election contests on the part of each
of the conspirators. Throughout its instructions to the jury, the
District Court reiterated that the crucial element of the charged
crime under § 241 was a conspiracy to
"injure and oppress . . . voters . . . in the . . . enjoyment of
. . . the right to vote and to have such votes cast, counted,
recorded, and certified at full value."
"You are instructed that the right to vote and the right to have
the value of that vote undiminished and undiluted by the presence
of illegal votes is a right guaranteed by the Constitution and laws
of the United States within the context of [18 U.S.C. § 241]."
"* * * *"
". . . [I]f any one or more of the defendants conspired
knowingly and intentionally with another defendant or with a
coconspirator to produce the casting and counting of illegal
ballots in the 1970 primary election, with the intention of injury
or oppressing citizens in the free exercise of their voting rights,
they would be guilty as charged in this indictment."
At no time was the jury told that specific intent to have false
votes cast for the federal
candidates was necessary for
conviction of each of the conspirators; it was enough that the
"right to vote" was diluted and that "illegal ballots" were cast to
injure "voting rights," without distinction between federal and
state elections. As long as the jury accepted the credibility of
the prosecution witnesses, conviction under these instructions was
inevitable, even for those petitioners who were not shown by
Page 417 U. S. 234
conclusive evidence to have had specific intent to interfere
with the federal election, the ground on which the Court
While trial counsel did not object to the form of the
instructions, where an error is so fundamental that the instruction
does not properly submit to the jury the essential elements of the
charged offense, there is plain error, and the interests of justice
and fair play demand that we take note. See Fisher v. United
States, 328 U. S. 463
328 U. S.
-468; Screws v. United States, 325 U. S.
, 325 U. S. 107
(opinion of DOUGLAS, J.); Fed.Rule Crim.Proc. 52(b).
The Court concedes that the jury instructions "did not
specifically focus" on an intent to cast false votes for federal
candidates, but avoids this problem by contending in effect that
this error was harmless because
"we think it inconceivable
that, even if charged by
more specific instructions, the jury could have found a conspiracy
to cast false votes for local offices without finding a conspiracy
to cast false votes for the federal offices as well."
I cannot agree with this crucial assumption. The gravamen of a
conspiracy charge is agreeing with the intent of achieving a
certain proscribed objective. "[I]t is . . . essential to determine
what kind of agreement or understanding existed as to each
defendant." United States v. Borelli,
336 F.2d 376, 384
(Friendly, J.) (emphasis added); see
Note, Developments in
the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920, 929-930. When
it is not shown that the unlawful objectives of one individual have
been adopted by another, the latter cannot be found to have agreed
to achieve the objectives and a conspiracy count to do so cannot be
sustained. See Yates v. United States, 354 U.
, 354 U. S.
The evidence in this case, as the prosecutor observed in closing
argument, demonstrated that petitioners focused
Page 417 U. S. 235
their attention on the contest for County Commissioner. There is
no conclusive evidence that the casting of fraudulent federal
ballots was, in fact, necessary to petitioners' scheme to abscond
with the local nomination contest, or that petitioners thought it
necessary. There is no proof that a lower quantum of votes for the
federal candidates would have aroused suspicion, or that
petitioners felt that it would. [Footnote 2/4
] Ballot splitting, with disparate numbers
of votes cast for the various offices, was prevalent at this
election. [Footnote 2/5
nominations for County Commissioner and other local offices were
closely contested, while the federal nominations were not, so that
there would naturally be more votes cast in the local races.
] And even if we
assume that a sophisticated conspirator would have considered it
necessary to stuff the federal ballot box in order to conceal fraud
in the state election, we simply cannot presume that the
petitioners did also. The record reveals an unsophisticated,
bludgeon-like effort to win the election for Okey Hager, with
minimal preliminary attention to the niceties of covering up the
fraud. When there is no conclusive evidence that the need to cast
fraudulent federal votes even crossed the minds of four of the five
Page 417 U. S. 236
it is the jury's province, not ours, to determine whether there
was specific intent to cast such votes.
The slenderness of the reed on which the Court's affirmance of
these convictions rests is demonstrated by its assertions that the
jury "could believe" that the lack of discussion of federal ballots
only reflected an "assumption" by petitioners that such ballots
would have to be cast, and that the jury "could have inferred" that
petitioners were motivated by the need to cast false federal
ballots to conceal fraudulent local votes. But whether the jury
"could have inferred" or "could [have] believe[d]" that there was
sufficient proof of specific intent to cast false federal ballots
in the evidence in this case misses the point, because the jury was
never required to make this finding in order to convict. The jury
verdict is not to be accorded its traditional sanctity when it is
premised on erroneous instructions. See Burton v. United
States, 202 U. S. 344
202 U. S.
-374. The jury has never passed on the question of
petitioners' intent while guided by proper instructions. While
circumstantial evidence may lead a jury to infer specific intent to
interfere with a right protected by § 241, the weighing of the
evidence should be the jury's task, not that of this Court. There
was, in fact, no "verdict" that petitioners conspired to have false
votes cast in the federal election, and the sparse circumstantial
evidence in this case makes it impossible for me to conclude, as
does the Court, that such a verdict was inevitable, so that the
error in jury instructions was harmless. At the very least, justice
requires that this case be remanded for a new trial.
Because I cannot agree that the evidence showed that petitioners
necessarily conspired with the specific intent of having false
votes cast for federal candidates, I could
Page 417 U. S. 237
affirm only if § 241 reached a conspiracy by local officials to
cast fraudulent votes in nominating candidates for local offices
where, as here, there was no evidence of racial discrimination. I
do not, however, believe that § 241 can properly be construed in
such a fashion.
The Court of Appeals determined that § 241 did reach such
conspiracies. It noted that the language of the section sweeps
broadly to guarantee "any right or privilege secured . . . by
the Constitution or laws of the United States,'" 481 F.2d at 699,
and also that United States v. Guest, 383 U.
S. 745, and United States v. Price,
383 U. S. 787,
stated that § 241 proscribed conspiracies to violate Fourteenth
Amendment rights, including those protected from interference under
color of law by the Equal Protection Clause. One such right only
recently defined, reasoned the Court of Appeals, is the right not
to have valid votes cast in state elections diluted by those acting
under color of state law, including local election officials such
as those involved in the instant conspiracy, citing Reynolds v.
Sims, 377 U. S. 533.
Thus, in the view of the Court of Appeals, a conspiracy to cast
fraudulent ballots in which state election officials took part
resulted in a denial of equal protection under color of state law
and stated a crime under § 241, even if the conspiracy did not
encompass a federal election. 481 F.2d at 698-700.
The argument ignores the intent of Congress as manifested by the
legislative history of § 241. Congress did not intend to reach
local election malfeasance where there was no evidence of racial
bias because it did not believe that it had that power. It
expressed unwillingness to interfere with the right of States to
control their own elections where there was no racial
Section 241 was originally passed as § 6 of the Enforcement Act
of 1870, 16 Stat. 141. The Enforcement Act was a comprehensive body
of legislation passed two
Page 417 U. S. 238
months after the ratification of the Fifteenth Amendment, which
protected the right of citizens to vote from denial by the Federal
or State Governments "on account of race, color, or previous
condition of servitude." The Fifteenth Amendment authorized
Congress "to enforce this article by appropriate legislation." This
latter clause was the impetus for the Act.
What is now § 241 was offered as an amendment by Senator Pool of
North Carolina, who referred in introducing the amendment to
"rights which are conferred upon the citizen by the fourteenth
amendment." Cong.Globe, 41st Cong., 2d Sess., 3611. But there is no
proof that he conceived of the possibility that the amendment could
reach local election fraud where there was no racial
discrimination. [Footnote 2/7
the other hand, the rest of the legislative history of the
Enforcement Act demonstrates that Congress, in adopting Pool's
amendment, could not have intended to reach such frauds, because it
did not believe that it had that power.
Because the Enforcement Act of 1870 was concerned primarily with
suffrage, there is ample legislative history elucidating the reach
of congressional power regarding both federal and local elections.
The constitutional power to pass those sections of the Act which
purported to deal with the right to vote in local elections was
perceived to flow from the Fifteenth Amendment, [Footnote 2/8
] which protected the right to vote
from infringement only "on account of race, color, or previous
condition of servitude." Even the staunchest supporters of the Act
conceded that, absent the critical element of racial
discrimination, the Act could not reach local elections. The
Page 417 U. S. 239
for example, occurred between Senator Edmunds of Vermont, one of
two Senate floor managers of the Act, id.
at 3753, and
Senator Morton of Indiana another supporter of the Act. While
interference with local elections could be punished if racial
discrimination, against either white or black, was extant, local
election fraud could not otherwise be reached by federal
"Mr. MORTON. . . . Our theory is that the question of suffrage
is under the control of the States, and was left to the several
States by the Constitution of the United States; and that being the
case, Congress had no power to pass a law conferring suffrage on
colored men, and it was necessary to amend the Constitution of the
United States for that purpose. We therefore provided in the
fifteenth amendment that"
"the right of citizens of the United States to vote shall not be
denied or abridged by the United States, or by any State, on
account of race, color, or previous condition of servitude."
"The proposition to which I call attention is this: that the
question of suffrage is now, as it was before, completely under the
control of the several States to punish violations of the right of
suffrage, just as they had the power before, except that we take
away their power to deny suffrage on account of race, color, or
previous condition of servitude, and have given to Congress the
power to enforce this amendment."
"The question now to which I call the attention of the Senate is
whether it is in the power of Congress to make provision for
punishing violations of the right of suffrage except those
violations go to the question of color, race, or previous condition
"Mr. EDMUNDS. But it does not make any difference what the color
is, black or white. "
Page 417 U. S. 240
"Mr. MORTON. Not a bit. It does not make any difference which;
but if a man is denied the right of suffrage because he is a white
man, if any state shall assume to deny a man the right of suffrage
because he is a white man, then we have a right to interfere; or if
because he is a colored man, then we have a right to interfere. But
suppose the denial of the right of suffrage by a board of
registration or a board of inspectors has nothing whatever to do
with color; suppose it is for an offense that existed by State law
before the enactment of this fifteenth amendment, what power have
we got to interfere with that any more than we had before?"
"Mr. EDMUNDS. Nobody, I think, would claim that we have. I
should not say so."
Cong.Globe, 41st Cong., 2d Sess., 3571.
In the course of debate, Senator Sherman of Ohio, another ardent
advocate of the Act, proposed an amendment to add three sections to
it. These sections, which were adopted with slight changes as §§
19, 20, and 21, were designed to deal with frauds not involving
racial discrimination, but only in federal
Senator Sherman's comments express the desire not to "invade the
right of any state," id.
at 3664, to control its own
elections and reflect the belief that an element of racial bias was
considered a necessary precondition to congressional power to deal
with state elections. Federal elections for Senators and
Congressmen could be governed absent such bias, but only by virtue
of the express authority of Art. I, § 4, of the Constitution.
] In describing
Page 417 U. S. 241
these amendments to the House after their adoption by the
Senate, Representative Bingham of Ohio, the floor manager of the
Act in the House, stated:
"The amendments proposed to prevent fraudulent registration or
fraudulent voting, in so far as
Page 417 U. S. 242
I am advised, do not alter any of the existing regulations of
the States touching registration; they are but a simple exercise of
the power expressly conferred on the Congress of the United States
to regulate elections of members and Delegates to Congress. They
are expressly limited to elections of those officers. I do not deem
it important to say anything further on that point."
Cong.Globe, 41st Cong., 2d Sess., 3872.
Only nine months later, the same Congress which passed the
Enforcement Act of 1870 passed the Force Act of 1871, 16 Stat. 433,
which supplemented the 1870 Act by supplying independent federal
enforcement machinery to affirmatively ensure the right to vote in
all congressional elections. Federal election officials were
appointed to supervise such elections; the normal state processes
were suppressed. But Congress made clear that its power could
attach only when needed to protect congressional elections. One of
the supporters of the bill, Representative Churchill of New York,
"But, Mr. Speaker, for some years past grave doubts have
prevailed in different portions of this country as to whether the
declared results of elections have truly expressed the will of the
people. With regard to officers of States and officers of minor
communities this doubt, so far as it exists, is left to be
determined, as it can only be determined, by the laws existing in
those States or communities. But so far as regards members of the
Congress of the United States, although the first legislation in
regard to the matter is intrusted by the Constitution of the United
States to the States themselves, the power is properly reserved to
Congress itself to determine by what rules these elections shall be
conducted. . . ."
Cong.Globe, 41st Cong., 3d Sess., 1274.
Page 417 U. S. 243
In the same vein, Representative Bingham, who as noted was a
floor manager of the 1870 Act, again reflected caution about
interfering with the responsibility of the States to manage their
own elections, asserting:
"I am willing that the issue shall be made up, and let the
people speak upon this question. The bill interferes with no
reserved rights of the States. If the States do not choose to hold
their elections on the same day for mere State officials, be it so;
but with regard to the vote for Representatives in Congress, I take
it that the great majority of the people of every State in the
Union will admit that the nation has a right to be represented at
every election for Congress by its own law and by its own officials
as well as the State. I have given the words, the thoughtful words
of the makers of the Constitution in support of that right. No law
of any State by this bill is in any manner wrongfully
at 1284. [Footnote
Page 417 U. S. 244
Thus, while the concurrent nomination races for federal officers
in the Mount Gay precinct provided an opportunity for petitioners
to violate § 21, that violation could occur only if the petitioners
possessed the specific intent to cast fraudulent votes in the
federal elections as an object of their conspiracy.
The broad language of Guest
authorize us to draw any other conclusion. Guest
racial discrimination and rights under the Equal Protection Clause
"firmly and precisely established by a consistent line of decisions
in this Court." 383 U.S. at 383 U. S. 754
That is not true of the right to be free from fraud without any
racial connotation in local elections. In Price,
the sparse legislative history of § 241 as part of the Enforcement
Act, and held that there was no indication that Congress did not
intend it to reach the Fourteenth Amendment right in question, the
right to due process. 383 U.S., at 383 U. S. 801
We noted that the application of § 241 in that case "does not raise
fundamental questions of federal-state relationships." Id.
at 383 U. S. 806
Those facts are not present in this case. There is legislative
history which indicates that Congress did not intend to reach local
election frauds in passing § 241, because it did not believe that
it had that power. And the decision of the Court of Appeals reaches
to the very heart of federal-state relations, permitting federal
intrusion in even the most local election, intrusions which the
41st Congress attempted to avoid when passing the Enforcement Act
of 1870 and the Force Act of 1871.
Page 417 U. S. 245
While the civil protections of the Fourteenth Amendment reach
state elections even where there is no racial animus, criminal laws
such as 18 U.S.C.§ 241 must be strictly construed, and we have
required that Congress "plainly and unmistakably" assert federal
criminal jurisdiction over an activity. See United States v.
Bass, 404 U. S. 336
404 U. S. 348
United States v. Gradwell, 243 U.
, 243 U. S. 485
Here, Congress did not plainly intend § 241 to reach local
elections frauds, and apparently intended quite the opposite.
"[B]ecause of the seriousness of criminal penalties, and because
criminal punishment usually represents the moral condemnation of
the community, legislatures, and not courts, should define criminal
activity. This policy embodies 'the instinctive distaste against
men languishing in prison unless the lawmaker has clearly said they
United States v. Bass, supra,
at 404 U. S.
I can affirm neither on the theory that § 241 reaches state
election frauds where there is no evidence of racial discrimination
nor on the theory, adopted by the Court, that it was
"inconceivable" that petitioners did not specifically intend to
have false votes cast in the federal election, with the exception
of Red Hager. The other petitioners are entitled at least to a new
trial under proper instructions.
APPENDIX TO OPINION OF
DOUGLAS, J., DISSENTING
Excerpts from Jury Instructions
The indictment in this case charges in substance that, beginning
on or about the 1st day of May, 1970, and continuing until on or
about the date of the indictment, the defendants unlawfully,
willfully and knowingly conspired with each other and with other
persons who are both known and unknown to the grand jury, to injure
Page 417 U. S. 246
the qualified voters of Logan County in the free exercise and
enjoyment of certain rights and privileges secured to them by the
Constitution and the laws of the United States, that is, the right
to vote and to have such votes cast, counted, recorded and
certified at full value.
The indictment also alleges that, in order to effect the objects
of the conspiracy, the defendants caused and attempted to cause
votes to be cast in the Mount Gay precinct of Logan County by
procedures and methods in violation of the laws of the State of
West Virginia, all with the purpose and intent that the illegal,
fraudulent and fictitious ballots would be counted, returned, and
certified as a part of the total vote cast in the May 12, 1970,
primary election, thereby impairing, diminishing, diluting and
destroying the value and effect of votes legally, properly and
honestly cast in that primary election in Logan County, which the
indictment alleges violates Title 18 of the United States Code,
The statute cited in the indictment provides in part that it
shall be a criminal offense for two or more persons to conspire to
injure any citizen in the free exercise or enjoyment of any right
or privilege secured to him by the Constitution or laws of the
United States. You are instructed that the right to vote and the
right to have the value of that vote undiminished and undiluted by
the presence of illegal votes is a right guaranteed by the
Constitution and laws of the United States within the context of
the charging statute.
The indictment in this case states that the defendants caused
false and fictitious votes to be cast and counted, and that casting
and counting such votes violates the laws of the State of West
Virginia. With regard to whether or not casting and counting false
and fictitious votes or causing them to be cast and counted
violates West Virginia law, you are further instructed that the
laws of the
Page 417 U. S. 247
State of West Virginia are violated when fictitious votes are
cast and counted or caused to be cast and counted.
The government, in essence, contends that these defendants,
along with other coconspirators not named as defendants in the
indictment, including Elwood Sloan, Cecil Elswick, Calvin Napier,
Mae Stollings, Minerva Richards, Janet Sullins and perhaps others,
did unlawfully, willfully and knowingly conspire together and with
each other to violate the law of the United States in causing or
attempting to cause votes to be cast in the Mount Gay precinct of
Logan County, West Virginia, in the May, 1970, primary election by
procedures and methods in violation of the laws of West Virginia
pertaining to the handling of a precinct by election officials, and
by further causing and attempting to cause the County Court of
Logan County, West Virginia, to find that no illegal votes were
cast in the Mount Gay precinct by soliciting perjury and the
commission of perjury in an election contest held subsequent to the
May 12, 1970, primary, all with the purpose and intent that the
alleged illegal and fraudulent and fictitious votes would be
counted as a part of the total vote cast, resulting in an
impairment, lessening and dilution of the value and effect of the
votes legally and honestly cast. The government contends, of
course, that all this was done in violation of Title 18, Section
241 of the United States Code, the charging statute designated in
"* * * *"
The Court further tells you that intent is an essential element
of this offense. You are therefore charged that, before you can
convict the defendants, or any of them, you must believe beyond a
reasonable doubt that such defendant or defendants deliberately and
with knowledge conspired with others to injure certain qualified
voters in the free exercise and enjoyment of their right of
Page 417 U. S. 248
Now, it is a legal presumption that people intend the natural
and probable consequences of their acts, and also that they know
that the right of legally qualified persons to vote is a federally
Constitutionally protected right, and consequently, if any one or
more of the defendants conspired knowingly and intentionally with
another defendant or with a coconspirator to produce the casting
and counting of illegal ballots in the 1970 primary election, with
the intention of injury or oppressing citizens in the free exercise
of their voting rights, they would be guilty as charged in this
See United States v. Guest, 383 U.
, 383 U. S.
at 383 U. S.
-786 (BRENNAN, J., concurring and dissenting);
United States v. Price, 383 U. S. 787
383 U. S. 806
n. 20; United States v. Williams, 341 U. S.
, 341 U. S. 93
(DOUGLAS, J., dissenting); Screws v. United States,
325 U. S. 91
325 U. S.
-107 (opinion of DOUGLAS, J.).
at 325 U. S. 105
see United States v. Price, supra,
at 383 U. S. 806
Cecil Elswick, an unindicted coconspirator who was a witness for
the Government, testified that petitioner W. Bernard Smith told him
"how to win the election," but there is no evidence that Smith made
any reference to casting false ballots for federal candidates.
Elswick also testified that there was a meeting the night before
the election at which all of the petitioners were present and at
which, the Court notes, Smith and Red Hager emphasized the need to
put "all the votes" on the machine. The entire statement indicates
that Hager and Smith were simply urging Elswick to cast as many
votes as could be cast in the precinct, given the number of
registered voters; it does not constitute an instruction to cast
votes for federal candidates as well as the Okey Hager Elate:
"Bernard and Red Hager was mostly spokesmen and Bernard said to
be sure and put all the votes on there, put all of them on but
fifty, and Red kept saying, 'Put them all on.'"
fn2/3|>n. 3, supra.
For example, 375 votes were recorded in the Mount Gay precinct
for County Commissioner (long-term), 371 for Justice of the Peace
and Constable, but only 348 for United States Senator and 328 for
United States Representative.
The countywide totals in the Hager-Scaggs County Commissioner's
race had Hager the winner by only 21 votes, and the result would
have been reversed without the returns from Mount Gay. On the
federal level, Senator Byrd and Representative Hechler were
apparently running virtually unopposed for renomination. In Mount
Gay, supporters of both Hager and Scaggs voted for these two
federal incumbents, and Byrd won Mount Gay by a vote of 346 to six
and Hechler by a vote of 318 to 10.
Senator Pool's remarks are reprinted in full in the appendix to
United States v. Price,
383 U.S. at 383 U. S.
Cong.Globe, 41st Cong., 2d Sess., 3503 (Rep.
at 3559 (Sen. Stewart); id.
(Sen. Pool); id.
at 3567 (Sen. Stockton).
Article I, § 4, provides:
"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Sherman's amendment originally provided also for regulation of
Presidential electors, but this provision was quickly deleted when
it was pointed out that Congress was without constitutional power
to include it. Cong.Globe, 41st Cong.2d Sess., 3670.
In proposing the amendments, Sherman Stated:
"[Senator Thurman] admits that Congress has a right by
appropriate legislation to prevent any State from discriminating
against a voter on account of his race, color, or previous
condition of servitude. That is all, I believe, that is claimed by
any one on this side of the Chamber as to the authority conferred
by the fifteenth amendment. . . ."
"* * * *"
"But, Mr. President, there is one other grievance that I feel
ought to be dealt with at this moment, as we have this bill before
us; a grievance which has become of greater magnitude even than the
denial of the right to vote to colored people; and that is, the
open, glaring, admitted frauds by wholesale in the great cities of
this country, by which our Government is about to be subverted. . .
. We have official documents without number in both Houses of
Congress showing the growing evil of trampling down the rights of
communities and States to representation in Congress in the
election of members of Congress and in the election of Senators. .
". . . There can be no doubt about the constitutional power of
Congress in this particular, because it is in plain accordance with
the provisions of the Constitution which authorize Congress to
change and alter the mode and manner of electing members of
Congress [Art. I, § 4]. . . . As I have said, they have received
the sanction of a committee of the House, which has carefully
examined the whole subject, and I do not believe they raise any
constitutional question, or invade the right of any State."
"* * * *"
"In my judgment, in elections for officers of the national
Government we can prescribe, under the Constitution, the mode and
manner and qualification of voters."
the remarks of Representative Lawrence of
"Mr. LAWRENCE. . . . And if the States have failed to enact laws
necessary to secure what we all, I trust, have so much at heart,
to-wit, the purity of the ballot-box, or have failed to execute
those already enacted, then it is the highest duty of this Congress
to intervene and protect the citizens of the United States in the
enjoyment of the elective franchise against force and fraud in the
election of Representatives in Congress, leaving the States to
provide such legislation as they may deem necessary in the election
of local and State officers."
"* * * *"
"It will reach any officer who improperly tampers with the
election of a Representative in Congress; but it does not reach any
State officer or any citizen in connection with any local or State
"* * * *"
"Mr. JONES, of Kentucky. I have not read all the provisions of
this bill, and as the gentleman seems to have done so I desire to
ask him whether they apply to other elections than those for
members of Congress?"
"Mr. LAWRENCE. The apply only to the elections for
Representatives and Delegates to Congress. The bill does not
propose to interfere with State elections at all."
Cong.Globe, 41st Cong., 3d Sess., 1276.