Argued: January 25, 2013.
Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:09-cr-16—Danny C. Reeves, District Judge.
John D. Cline, LAW OFFICE OF JOHN D. CLINE, San Francisco, California, Trevor W. Wells, MILLER WELLS PLLC, Lexington, Kentucky, Jason R. Barclay, BARNES & THORNBURG LLP, Indianapolis, Indiana, for Appellants.
Scott A.C. Meisler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
John D. Cline, LAW OFFICE OF JOHN D. CLINE, San Francisco, California, R. Kent Westberry, LANDRUM & SHOUSE LLP, Louisville, Kentucky for Appellant in 11-5291.
Trevor W. Wells, MILLER WELLS PLLC, Lexington, Kentucky, Russell J. Baldani, BALDANI, ROWLAND, & RICHARDSON, Lexington, Kentucky, for Appellant in 11-5313.
Jason R. Barclay, Larry A. Mackey, BARNES & THORNBURG LLP, Indianapolis, Indiana, for Appellant in 11-5337.
Martin S. Pinales, Candace C. Crouse, STRAUSS TROY, LPA, Cincinnati, Ohio, for Appellant in 11-5308.
Robert L. Abell, Lexington, Kentucky, for Appellant in 11-5311.
Scott White, MORGAN & POTTINGER, P.S.C., Lexington, Kentucky, for Appellant in 11-5312.
Jerry W. Gilbert, COY, GILBERT & GILBERT, Richmond, Kentucky, for Appellant in 11-5336.
Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON, PSC, Lexington, Kentucky, for Appellant in 11-5366.
Scott A.C. Meisler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: NORRIS, MOORE, and DONALD, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge.
After a seven-week trial, a jury convicted Douglas C. Adams, Russell Cletus Maricle, William E. Stivers, Charles Wayne Jones, Freddy W. Thompson, William B. Morris, Stanley Bowling, and Debra L. Morris on every charge levied against them by the government. Based on cumulative error from the district court's evidentiary rulings identified in this opinion, we VACATE defendants' convictions on all counts and REMAND for a new trial.
On July 9, 2009, defendants were named in a thirteen-count indictment that charged them with, among other things, conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C. § 1962(d). The charges stem from defendants' alleged participation in a vote-buying scheme in Clay County, Kentucky that lasted from 2002 to 2007, encompassing three election cycles (2002, 2004, and 2006).
Defendants' scheme allegedly operated as follows. Political candidates pooled money to buy votes and to pay "vote haulers" to deliver voters whose votes could be bought. In order to be paid, voters had to vote for a particular set of candidates, known as a "slate" or "ticket." To ensure that these voters actually voted for the correct slate, co-conspiring election officers and poll workers reviewed voters' ballots—a practice known in this case as "voting the voter." Once the proper slate was confirmed, a token (such as a raffle ticket) or marking was given to the voters to confirm that they did in fact vote for the proper slate. Voters with the token or marking were then paid by members of the conspiracy in a location away from the polls. Conspirators retained lists of voters to avoid double payments and to keep track of whose votes could be bought in ensuing elections.
In addition to hiring vote haulers, defendants allegedly utilized other methods of buying votes. Absentee voting and voter-assistance forms helped minimize the difficulty of checking paid voters' ballots. In the latter case, co-conspiring poll workers were permitted to be in the voting booth under the pretext that they were assisting voters; in reality, co-conspiring poll workers were confirming that voters chose the proper slates. When electronic voting machines were introduced to Clay County in the 2006 election, the conspiracy both stole and bought votes. To steal votes, conspirators, typically poll workers, purposefully misinformed voters that they did not need to click "cast ballot" on a screen that appeared after voters had selected candidates for whom they wished to vote. Co-conspiring poll workers would enter the voting booth after the voter exited and change the electronic ballot to reflect the slate before finally casting the ballot.
Election officers are appointed by the Clay County Board of Elections (the "Board"), which must also certify the results. The Board was alleged to be the racketeering enterprise in this conspiracy. It is comprised of the County Clerk, the Sheriff, the Republican Election Commissioner, and the Democratic Election Commissioner. The two Commissioners are responsible for appointing election judges and officers at the various precincts. Defendants held various positions within Clay County, played different roles within the conspiracy, and were charged with numerous offenses. Specifically, the Superseding Indictment, R. 272 (Page ID #1074–98), alleged the following:
Douglas C. Adams was the Clay County Superintendent of Schools from 1999 to 2007. The indictment alleged that Adams was considered a political boss in Clay County and an associate and director of the enterprise, the Clay County Board of Elections. As a leader of the conspiracy, Adams was alleged to have exerted influence over the selection of precinct workers and the appointment of corrupt members of the Board. The indictment also alleged that he recruited individuals to run for county offices on a slate that would benefit the conspiracy. Adams was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1) and conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2). The government also sought forfeiture against Adams under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
Russell Cletus Maricle was an elected circuit court judge for the 41st Judicial Circuit of the Commonwealth of Kentucky from 1991 through 2007. The indictment alleged that Maricle was considered a political boss in Clay County and an associate and director of the enterprise. As a leader of the conspiracy, Maricle—like Adams—was alleged to have exerted influence over the selection of precinct workers and the appointment of corrupt members of the Board. Also like Adams, the indictment alleged that Maricle recruited candidates for the slate. Maricle was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), obstruction of justice and/or aiding and abetting its commission under 18 U.S.C. §§ 1503 and 2 (Count 8), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Maricle under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
William E. "Al Man" Stivers was appointed as election officer by the Board in 2002 and 2004. He served on the Board as the Democratic judge for the Manchester precinct in 2002 and 2004. The indictment alleged that Stivers used his position as an election officer to commit extortion and bribery. As a conspiring election officer, he was also responsible for marking the hands of voters who had sold their votes and for stealing votes on the machines introduced in the 2006 election. Stivers was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), attempted extortion under 18 U.S.C. § 1951 (Count 4), obstruction of justice and/or aiding and abetting its commission under 18 U.S.C. §§ 1503 and 2 (Count 8), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Stivers under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
Charles Wayne Jones was as an election officer during the period of the charged conspiracy. Jones was appointed as the Democratic Election Commissioner in 2000 and served until 2007. He was a member of the Clay County Board of Elections during the election cycles of 2002, 2004, and 2006. The indictment alleged that Jones appointed corrupt election officers and instructed those officers on how to purchase and steal votes. Jones was also responsible, as a Commissioner and a Board member, for certifying the accuracy of election results (which he knew to be false). Jones was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), honest-services mail fraud under 18 U.S.C. §§ 1341 and 1346 (Counts 3, 5, 6, and 7), attempted extortion under 18 U.S.C. § 1951 (Count 4), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Jones under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
Freddy W. Thompson was elected as Clay County Clerk in 2002 and served until 2007. By virtue of that position, Thompson was also a member of the Board of Elections during the election cycles of 2004 and 2006. The indictment alleged that Thompson provided money to be distributed by election officers to buy votes and instructed officers in the 2006 election on how to steal votes. Thompson was also responsible, as a Board member, for certifying the accuracy of election results (which he allegedly knew to be false). Thompson was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), honest-services mail fraud under 18 U.S.C. §§ 1341 and 1346 (Counts 3, 5, 6, and 7), obstruction of justice under 18 U.S.C. § 1503 (Count 9), conspiracy against rights under 18 U.S.C. § 241 (Count 10), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against Thompson under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
Stanley Bowling was elected as Magistrate in 2002 and served until 2007. He is also the owner and operator of B and B Excavating, an excavating company located in Clay County that obtained contracts from the city of Manchester and the County to provide excavation services. The indictment alleged that Bowling distributed money to bribe voters and exerted influence over the selection of precinct workers in local elections. Bowling was charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1) and conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2). The government also sought forfeiture against Bowling under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
William ("Bart") Morris is the owner and operator of B and J Transport, Inc., a sanitation company located in Clay County that contracts with the city of Manchester and the County to provide sanitation services. Bart is married to Debra ("Debbie") L. Morris. The indictment alleges that Bart and Debbie distributed funds that were pooled by members of the conspiracy to buy votes. Both Bart and Debbie Morris were charged with: conspiracy to violate RICO under 18 U.S.C. § 1962(d) (Count 1), conspiracy to money launder under 18 U.S.C. § 1956(h) (Count 2), and conspiracy to buy votes under 18 U.S.C. § 371 and 42 U.S.C. § 1973i (Count 11). The government also sought forfeiture against both Bart and Debbie Morris under 18 U.S.C. §§ 1963 (Count 12) and 982 (Count 13).
On March 25, 2010, after a seven-week trial, a jury found all defendants guilty of all charges and returned a special verdict against defendants on the two forfeiture counts. R. 818 (Verdict Form) (Page ID #4965–78); R. 833 (Forfeiture Verdict Form) (Page ID #5162–63). Subsequently, the district court granted post-trial motions for judgment of acquittal from Jones and Stivers, finding that there was insufficient evidence to support their convictions of attempted extortion (Count 4). R. 947 (06/11/2010 D. Ct. Op.) (Page ID #12563–83); R. 1080 (12/01/2010 D. Ct. Op.) (Page ID #13278–87). After Skilling v. United States, — U.S. —, 130 S.Ct. 2896 (2010), the district court granted post-trial motions for judgment of acquittal from Jones and Thompson because their convictions for honest-services mail fraud (Counts 3, 5, 6, and 7) did not involve a bribery or a kickback scheme.
Defendants raise a host of issues on appeal, which we examine below in turn. However, we need not address defendants' challenges to their convictions for conspiracy to money launder (Count 2) and the related forfeiture count (Count 13) because the government concedes that those convictions rest on an invalid theory. Gov't Br. at 22, 59–66. We therefore vacate the convictions of all eight defendants on Count 2 and vacate the associated forfeiture under Count 13.
II. RICO PREDICATE ACT
Defendants contend that vote buying in violation of Kentucky Revised Statute § 119.205 does not constitute "bribery" and therefore is not "racketeering activity" under RICO. In other words, defendants claim that vote buying is not a valid predicate act for the purposes of RICO. Under RICO, "racketeering activity" is
(A) any act or threat involving . . . bribery . . ., which is chargeable under State law and punishable by imprisonment for more than one year;
(B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery) . . . .
18 U.S.C. § 1961(1). Therefore, the question before this court is whether vote buying, chargeable under Kentucky law, is an act involving bribery.
Legislative history informs us that § 1961(1)(A) lists predicate state offenses by reference to their "generic designation" and that § 1961(1)(B) lists predicate federal offenses by "specific reference." H.R. Rep. No. 91-1549, at 56 (1970). As illustrated in the present case, this arrangement presents some difficulty because states classify offenses differently. Defendants note that Kentucky Revised Statute § 119.205 does not use the term "bribery." Thus, according to defendants, vote buying in violation of Kentucky Revised Statute § 119.205 is not an act involving bribery.
Although this argument has some superficial appeal, "[t]he labels placed on a state statute do not determine whether that statute proscribes bribery for purposes of the RICO statute." United States v. Garner, 837 F.2d 1404, 1418 (7th Cir. 1987). Instead, "[t]he test for determining whether the charged acts fit into the generic category of the predicate offense is whether the indictment charges a type of activity generally known or characterized in the proscribed category, namely, any act or threat involving bribery." United States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir. 1977); see Garner, 837 F.2d at 1418 ("Thus, any statute that proscribes conduct which could be generically defined as bribery can be the basis for a predicate act."); see also Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409–10 (2003) (discussing United States v. Nardello, 393 U.S. 286 (1969), in the context of RICO predicate offenses). Therefore, we must consider whether vote buying is the type of activity that is generally known or characterized as involving bribery.
Although intuitively vote buying strikes us as an offense that involves bribery, we need not rest our decision on intuition. First, The Model Penal Code ("MPC"), which the Supreme Court has considered in construing RICO's provisions, supports our determination that vote buying in violation of Kentucky law constitutes an act involving bribery under RICO. Scheidler, 537 U.S. at 410 ("[W]here as here the Model Penal Code and a majority of States recognize the crime of extortion as requiring a party to obtain or to seek to obtain property, as the Hobbs Act requires, the state extortion offense for purposes of RICO must have a similar requirement."); see Perrin, 444 U.S. at 45 n.11 (looking to the MPC in construing the Travel Act). The MPC states that "[a] person is guilty of bribery, a felony of the third degree, if he offers . . . (1) any pecuniary benefit as consideration for the recipient's . . . vote or other exercise of discretion as a . . . voter." Model Penal Code § 240.1. Vote buying in violation of Kentucky Revised Statute § 119.205 is well within the prohibition of bribery under the MPC. Second, other states' classification of vote buying as a bribery offense, which the Supreme Court has also considered in construing RICO's provisions, shows that vote buying is generally understood as an act involving bribery. Scheidler, 537 U.S. at 410. As noted by the district court, a majority of states considers vote buying to be a form of bribery.R. 1081 (12/07/2010 D. Ct. Op. at 11–12 n.1) (Page ID #13298–99) (listing twenty-six states that classify vote buying as a bribery offense or as involving bribery). Finally, the provisions of RICO must be construed liberally "to effectuate its remedial purpose, " which is "to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." United States v. Turkette, 452 U.S. 576, 587, 589 (1981) (quotation marks and citation omitted). Reading 18 U.S.C. § 1961(1)(A) to encompass vote buying comports with this mandate. In conclusion, vote buying in violation of Kentucky Revised Statute § 119.205 is the type of activity that is generally known or characterized as involving bribery.
Defendants do little to rebut the fact that vote buying is generally understood as an offense involving bribery; instead, defendants assert that vote buying in violation of Kentucky Revised Statute § 119.205 cannot serve as a predicate offense because of the structure of 18 U.S.C. § 1961(1). As noted earlier, subsection (A) lists state offenses that constitute "racketeering activity" by "generic designation, " and subsection (B) lists federal offenses that constitute "racketeering activity" by "specific reference." H.R. Rep. No. 91-1549, at 56 (1970). Although two bribery statutes, 18 U.S.C. §§ 201 and 224, are listed among the specific federal offenses in 18 U.S.C. § 1961(1)(B), two federal vote-buying statutes, 18 U.S.C. § 597 and 42 U.S.C. § 1973i, are not listed in subsection (B). Defendants note that Kentucky's vote-buying statute, Kentucky Revised Statute § 119.205, is virtually identical to one of the omitted federal vote-buying statutes, 18 U.S.C. § 597.
According to defendants, the omission of vote buying in violation of § 597 as a predicate act for RICO means that the nearly identical Kentucky Revised Statute § 119.205 cannot serve as a predicate act for RICO. Defendants claim that Congress could not have intended to include vote buying when it occurs in a state election but not a federal election. Therefore, defendants argue that the absence of the federal vote-buying statutes from 18 U.S.C. § 1961(1)(B) makes the statute clear: defendants assert that vote buying is not "racketeering activity" under RICO. Although defendants' structural argument has some appeal, it rests on the false notion that subsections (A) and (B) are coextensive in scope. We have never imposed such a limitation on the scope of predicate acts under § 1961(1)(A) and decline to do so now.
In United States v. Licavoli, we held that both murder and conspiracy to commit murder in violation of Ohio law constitute "racketeering activity" because both involve murder under § 1961(1)(A). 725 F.2d 1040, 1044–47 (6th Cir. 1984). In doing so, this court implicitly rejected a coextensive reading of § 1961(1)(A) and (B). Subsection (B) lists only one predicate federal offense involving murder: 18 U.S.C. § 1958 ("relating to use of interstate commerce facilities in the commission of murder-for-hire"). If § 1961(1)(A) and (B) are coextensive in scope, murder and conspiracy to commit murder could not be state predicate offenses for the purpose of RICO because neither necessarily involves murder-for-hire. See Ohio Rev. Code Ann. § 2903.02; see also id. § 2923.01(A). We rejected this reading of 18 U.S.C. § 1961(1) in Licavoli and declined to limit the scope of RICO predicates because 18 U.S.C. § 1961(1)(A) contains "expansive" language—any act or threat involving—and "'should be liberally construed to effectuate [RICO's] remedial purposes.'" Licavoli, 725 F.2d at 1045 (quoting Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 904(a), 84 Stat. 922, 947).
Given Licavoli's holding and reasoning, we need not read § 1961(1)(A) and (B) as coextensive in the present case. We must, instead, construe § 1961(1) to effectuate RICO's purpose. As noted earlier, vote buying in violation of Kentucky Revised Statute § 119.205 is an offense generally known or characterized as involving bribery. This reading of 18 U.S.C. § 1961(1)(A) effectuates RICO's remedial purpose. Finding no ambiguity in the 18 U.S.C. 1961(1), we hold that the district court did not err in determining that defendants' RICO convictions rest on a valid predicate act.
Defendants contend that the evidence was insufficient to prove a single conspiracy and that, at most, the evidence showed two separate conspiracies: Adams supporters and White supporters. Therefore, according to defendants, there was a fatal variance between what the government charged in Count 1 of the indictment and the proof offered at trial.
Ordinarily, this court reviews de novo the question of whether a variance has occurred. United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006). That is, if a defendant alleges a variance at trial, we reverse the conviction if (1) a variance occurred and (2) that variance affected the defendant's substantial rights. United States v. Swafford, 512 F.3d 833, 841 (6th Cir. 2008). However, when a defendant raises the variance issue for the first time on appeal, this court reviews for plain error. Id. Under this standard, the second part of our inquiry "requires the defendant to prove that the error affected the outcome of the district court proceedings." Id. In the present case, we need not decide which standard of review applies because under either standard, defendants have failed to show that a variance occurred.
"A variance to the indictment occurs when the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment." Caver, 470 F.3d at 235. In conspiracy cases, "a variance constitutes reversible error only if . . . the indictment alleged one conspiracy, but the evidence can reasonably be construed only as supporting a finding of multiple conspiracies." Id. at 235–36 (quotation marks, alterations, and citation omitted). In our review for whether the evidence can support only a finding of multiple conspiracies, we must view the evidence in the light most favorable to the government because "whether single or multiple conspiracies have been shown is usually a question of fact to be resolved by the jury." United States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003). Our "principal considerations in determining the number of conspiracies are the existence of a common goal, the nature of the scheme, and the overlapping of the participants in various dealings." Id.
The thrust of defendants' argument is that the government proved multiple conspiracies, not one, because different members of the alleged conspiracy supported different candidates in the 2002 Clay County primary election. According to Adams:
For years, the White family and its allies had "[p]retty much ruled" Clay County. In 2002, Jennings White—the family patriarch—held the office of County Clerk and ran for re-election. Kennon White (Jennings' nephew) ran for jailer, and state representative Barbara White Colter (Jennings' cousin) ran for reelection.
Adams opposed the White faction in the 2002 primary election, in part because Jennings White was a notorious drug dealer (Adams' daughter had a drug problem). Adams encouraged a slate of candidates to run against the White candidates. As one prosecution witness explained, "[i]t was a power struggle in the county." Adams and Jennings White were known to "hate each other." White was so furious that Adams opposed him in the 2002 election that he asked Kenny Day to plant drugs in Adams' car.
The appellants (and other alleged conspirators) split across the White-Adams divide during the 2002 election. Appellant Freddy Thompson ran for County Clerk on the slate Adams supported. Appellants Charles Wayne Jones and William Stivers supported the Adams slate. Appellants Stanley Bowling, William Morris, and Debra Morris supported the White faction. Appellant Maricle did not take sides in the 2002 primary, although he usually supported the White family.
Adams Br. at 7–8 (citations to the record omitted). Under this reading of the facts, defendants claim that there could not be an agreement among themselves—the essence of conspiracy—because they supported opposing candidates. Although defendants are correct that the evidence showed competing factions within the conspiracy, this does not undermine the government's theory of the case. Looking to defendants' common goal, the nature of their vote-buying scheme, and the overlap of participants in various elections, we cannot say that the evidence can reasonably be construed as supporting only a finding of multiple conspiracies.
Defendants' multiple-conspiracy theory overlooks the nature of the government's conspiracy charge. The fact that there were competing slates of candidates within the conspiracy in the 2002 primary election does not change the possibility that defendants agreed to a common goal. Count 1 of the indictment charged defendants with conspiring to control the Clay County Board of Elections for their own benefit, not for the benefit of a political party or cause. The indictment states that defendants' purposes
were to obtain, solidify, preserve and expand for the Defendants and their associates, political power and control within the county, and personal enrichment for themselves and their associates, through the use and misuse of the authority and power of the Board [of Elections], and the offices of circuit judge, superintendent of schools, and county clerk, and the positions of election officers.
R. 272 (Super. Indict. at 4) (Page ID #1077).
Defendants contend that the present case is indistinguishable from United States v. Camiel, 689 F.2d 31 (3d Cir. 1982), because it involves ongoing antagonism between two rival factions within the alleged conspiracy. They argue that the government's theory in the present case substitutes "common goal" for "agreement" in defining conspiracy. In support, Adams analogizes: "The Republican Party and the Democratic Party share the 'common goal' of controlling the outcome of the presidential election, but they do not have an agreement to control the outcome." Adams Reply Br. at 5.
Defendants' analogy misses the mark. Although we agree with defendants that at times the members of the conspiracy were supporting candidates who ran against each other, "[t]he mere fact that a conspiracy can be subdivided . . . does not mean that multiple conspiracies existed." United States v. Wilson, 168 F.3d 916, 924 (6th Cir. 1999). Defendants did not, as they suggest in their analogy and reliance on Camiel, agree to control the Board for the benefit of a party or a particular faction thereof.Instead, the evidence showed defendants agreed to a common goal that remained the same throughout the period of the alleged conspiracy: "to obtain, solidify, preserve and expand . . . political power and control within the county . . . ." R. 272 (Super. Indict. at 4) (Page ID #1077). In accord with their agreement to control the Clay County Board of Elections for their own personal benefit, conspiring election officers from both factions had to turn a blind eye to rampant vote buying. Furthermore, the record shows that defendants' vote-buying scheme was not as simple as us-versus-them or Republicans-versus-Democrats. As is the case with politics, defendants' allegiances to one another were not drawn on clear lines, and their own self-interest led to seemingly strange alliances.
The nature of defendants' vote-buying scheme highlights how individuals working for competing slates simultaneously could have agreed to a broader common goal of personal benefit. Veteran vote hauler, Bobby "Red" Sams, testified that it was common for vote buyers to trade off on which candidates they were supposed to tell paid voters to vote for based on "whoever had the most pull or the most money." R. 933 (03/04/2010 Trial Tr. at 89) (Page ID #12291). Kennon White's testimony confirmed that slates were not consistent across all precincts:
Well, what would happen is that when we—when you would go and meet with them, they would be certain precincts that they would be able to help you in and certain precincts that they wouldn't. They would tie with whatever would be the best to benefit the candidate. In other words, someone you—might be for you in one precinct may be against you in another, it was just according to what they needed to do to get the votes that they wanted, you know.
R. 840 (02/11/2010 Trial Tr. at 31–32) (Page ID #5597–98); see R. 929 (02/18/2010 Trial Tr. at 13–15) (Page ID #11943–45). Finally, the record confirms the jury's finding of a single conspiracy because faction lines were not as clearly drawn as defendants contend and the overlap of participants in each election demonstrates a single conspiracy.
Prior to the 2002 primary election, Doug Adams invited Kennon White to run for county clerk on his slate against Jennings White for the price of $60, 000, and, if Kennon accepted, Adams "would get Freddy [Thompson] not to run and Freddy would do what [Adams] told him to do." R. 929 (02/18/2010 Trial Tr. at 58–59) (Page ID #11988–89); R. 840 (02/11/2010 Trial Tr. at 26–27) (Page ID #5592–93). Ultimately, Kennon White decided to run against Freddy Thompson on Jennings White's slate. R. 929 (02/18/2010 Trial Tr. at 58–59) (Page ID #11988–89). Wanda White testified that Doug Adams attended White faction meetings during the 2002 primary election because "he was just playing both sides." R. 844 (02/19/2010 Trial Tr. at 104) (Page ID #5993). Bart Morris, Debbie Morris, Stivers, and Maricle were also present at those meetings, though Maricle remained in his car outside of the meeting and communicated with the others through a conspirator. Id. at 103–05 (Page ID #5992–94). Bobby "Red" Sams also testified that Maricle "was down at [William Stivers's] all the time, and I was there all the time. He would tell me to go get the voters and vote them . . . ." R. 933 (03/04/2010 Trial Tr. at 49) (Page ID #12251). These facts show that in the 2002 election, members of each faction attempted to and did in fact work with one another—evidence that the jury could find to support a single conspiracy.
Regarding later elections, Frank Roberts testified that he bought votes for Barbara Jo Colter, a member of the White slate, in the 2004 election. R. 875 (03/01/2010 Trial Tr. at 38–39) (Page ID #8946–47). In the prior election, Roberts bought votes for Adams's slate. Id. at 35 (Page ID #8943). This shows that co-conspirators from different factions worked with one another after each election cycle, which supports the jury's finding of a single conspiracy.
The 2006 election cycle also involved a mix of members from both factions. Kennon White testified:
A. Okay. [Wanda and I] got involved [in the 2006 election] whenever Wayne Jones had come and brought a list to my wife to further up on the conversation with Cletus [Maricle] about being appointed to election officer. He brought a list to my wife at City Hall and told us to put the names down of the people we wanted to serve to help us there.
Q. All right. So let's back up. You said that there was a discussion with Cletus about becoming—serving, I guess?
A. Okay. We had talked with Cletus and he had talked about putting us in as election officers, one of us, and when it ended up coming time, he had wanted help for his son-in-law who was running for the tax commissioner or whatever that office is and that we could help my father and help him, you know, by my wife being in there as election officer.
Q. So what did you do after he made that offer?
A. We took him up on it, my wife did.
. . . Q. So there were other positions to be filled out besides Wanda's? A. Uh-huh.
Q. And did you-all make suggested names for Charles Wayne Jones to put on—for the Democrat list [of election officers]?
A. Yes, we did.
Q. Do you recall who it was you-all put on the list?
A. We put Earl Pennington, I think was one, and Dobber [Weaver], Charles Weaver's wife, Minnie Weaver.
Q. Did you come up with those names yourself or did you seek input from others to suggest those names to Wayne Jones?
A. I came up with them after talking with Cletus and talking with Darnell and Bart [Morris] and other people involved.
Q. Did you ever—did you have any meetings with Doug Adams about this proposal?
Q. Okay. Did he make any specific requests of Wanda through you?
A. He wanted Wanda to be for Kevin Johnson.
Q. And what office was he seeking?
R. 840 (02/11/2010 Trial Tr. at 80–85) (Page ID #5646–51).
Wanda White's testimony confirmed the involvement of Maricle, Jones, Stivers, Bowling, and Thompson in the 2006 election. R. 931 (02/19/2010 Trial Tr. at 33–35) (Page ID #12113–15). To this end, Stivers, Jones, and Thompson taught Wanda White how to steal votes on the new voting machines to be utilized in the 2006 election. Id. at 36–37 (Page ID #12116–17). If the White and Adams factions were as divided as defendants contend on appeal, it seems odd that Adams supporters would instruct a White supporter on how to steal votes. The overlapping of participants from each faction in all three election cycles supports the jury's finding of a single conspiracy.
In viewing the evidence in the light most favorable to the government, we cannot say that it reasonably can be construed as supporting only a finding of multiple conspiracies. Although there was antagonism among members of the conspiracy, the evidence supported the jury's finding of a single conspiracy because defendants agreed to a common goal, the nature of vote buying does not allow for a clean division of sides, and there was evidence to support the overlapping of participants from both factions in each election cycle. Therefore, we conclude that there was no variance.
IV. EVIDENTIARY ISSUES
Defendants raise a series of issues regarding the district court's evidentiary rulings. We address each in turn.
A. Background and Rule 404(b) Evidence
Defendants challenge the district court's admission of the government's background and Rule 404(b) evidence. Because the two often serve as alternative grounds for admission, we will consider them together. See United States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000).
Federal Rule of Evidence 404(b) provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). However, such "evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. Rule 404(b)(2). In determining the admissibility of evidence under Rule 404(b), a district court uses a three-step process:
First, the district court must decide whether there is sufficient evidence that the other act in question actually occurred. Second, if so, the district court must decide whether the evidence of the other act is probative of a material issue other than character. Third, if the evidence is probative of a material issue other than character, the district court must decide whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect.
United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003). With regard to the second step, "[e]vidence of other acts is probative of a material issue other than character if (1) the evidence is offered for an admissible purpose, (2) the purpose for which the evidence is offered is material or 'in issue, ' and (3) the evidence is probative with regard to the purpose for which it is offered." Id. (quotation marks and citation omitted).
Background or res gestae evidence is an exception to Rule 404(b). United States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012). Background evidence "consists of those other acts that are inextricably intertwined with the charged offense." Hardy, 228 F.3d at 748. "Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness's testimony, or completes the story of the charged offense." Id. Concerned with the potential for abuse of background evidence as a means to circumvent Rule 404(b), we have recognized "severe limitations as to 'temporal proximity, causal relationship, or spatial connections' among the other acts and the charged offense." Clay, 667 F.3d at 698 (quoting Hardy, 228 F.3d at 749).
Typically, "we review a district court's evidentiary rulings for an abuse of discretion." Id. at 693. However, our review of a district court's admission of evidence under Rule 404(b) mirrors the district court's three-step process:
First, we review for clear error the factual determination that other acts occurred. Second, we review de novo the legal determination that the acts were admissible for a permissible 404(b) purpose. Third, we review for abuse of discretion the determination that the probative value of the evidence is not substantially outweighed by unfair prejudicial impact.
Id. (emphasis added).
1. Kenny Day, Eugene Lewis, and J.C. Lawson Vote-Buying Testimony
Prior to trial, the government filed a notice of admission of background evidence in the form of testimony from three convicted drug dealers: Kenny Day, Eugene Lewis, and J.C. Lawson. R. 581 (Gov't Notice of Admis.) (Page ID #3745–54). Defendants filed motions in opposition, and the district court conducted a hearing on the issue. See R. 671 (01/21/2010 D. Ct. Op. at 1) (Page ID #4257). Ultimately, the district court determined the following to be admissible background evidence:
A. The testimony of Kenny Day and/or other evidence that Maricle and Adams bought votes in the 1983 election and that Maricle was involved in attempting to influence a juror in 1990;
B. The testimony of Eugene Lewis and/or other evidence that, in the late 70's-90's, Lewis operated as a vote buyer at Maricle, Jones and Thompson's request;
C. The testimony of J. C. Lawson and/or other evidence that Lawson contributed to Maricle's campaign in the 1980's, that Lawson was approached by Jones and Bowling to buy votes and that Lawson was paid $500 by Bowling after an election;
Id. at 26–27 (Page ID #4282–83). On appeal, defendants argue that the district court abused its ...