The only testimony, presented at the trial in case number 85-00014, which is included in the record on this present appeal, is the testimony of Lillian Fuller, the testimony of Will Fuller, and the transcribed testimony of Hogue in the course of his appearance before a grand jury prior to the return of the indictment in case number 85-00014. Hogue's grand jury testimony was offered by the government at trial as a part of its case. However, the record on the present appeal does contain a transcript of the closing arguments of the prosecutors in case number 85-00014, as well as a portion of the closing argument by one of Hogue's counsel. From those arguments, it can be discerned that there was testimony concerning 11 separate episodes involving absentee voters: one episode involved the 7 Sheltons; another, Morgan Harris and Fannie M. Williams; and other, distinct episodes each involved one of the following voters: Willie Lee, Pearl Brown, Mary Louise Pryor, Ethel G. Ford, Maggie Fuller, Mattie Perry, Angela Miree, Zayda Gibbs, and Will Fuller. The 11 episodes occurred at separate places and times. As to each episode, there was a separate witness or combination of witnesses for the prosecution. In the case of Willie Lee, his testimony was that he had never executed an absentee ballot, although a ballot purporting to be his had been mailed to the election officials. In the case of each of the other 17, the prosecution testimony was directed to whether the voter had executed a ballot showing the voter's choices among the candidates, whether the ballot had been changed later but before it was received in the mail by the election officials, and whether the voter had or had not authorized the changes to be made.
21
Specifically, as to count 24, and paragraph 5(m) of count 1, the government presented the testimony of Will Fuller and his wife, Lillian Fuller, and testimony given earlier to a grand jury by Hogue.
22
Lillian Fuller testified that she was 73 years of age as of July 1985, and that Will Fuller was 91 years of age as of September 1, 1984, was blind and ill, and had been voting for some time by absentee ballot. Concerning the September 4, 1984 Democratic primary, she testified that: Hogue came to the Fullers' house in connection with the absentee voting; Lillian prepared the absentee ballot for Will Fuller, marked a vote for Reese Billingslea, made no erasures on the ballot, and handed the marked ballot to Hogue, unsealed, to be notarized and mailed. Shown the ballot at trial in the form it had been received by election officials, Lillian Fuller testified that on it the vote for Billingslea had been marked out. She testified that at some time more than a week later and after September 4, 1984, Hogue had come again to the Fullers' house; Lillian Fuller, Will Fuller, and Hogue were those present at the time. She testified that Hogue said: he had rubbed the name off through a mistake; "they" were after Lillian Fuller, Will Fuller and Hogue; and if Lillian Fuller "would get with Hogue" and say she helped rub it off, "it will be all over with." Lillian Fuller testified that she had not given Hogue permission to rub it off and she had not rubbed it off, and that she told Hogue she would not say she had helped him rub it off.
23
Will Fuller testified that he intended to vote for Billingslea. He testified that: some time after the first of the year 1985, Hogue brought a calendar to the Fullers' house; Will Fuller had no conversation with Hogue at that time; and Will Fuller heard Hogue and Lillian Fuller talking at that time, but Will Fuller could not understand what Hogue was saying to her.
24
In his testimony before the grand jury, Hogue stated that: The League was formed in 1962. Prior to the September 4, 1984, Democratic primary, the League activists had frequently arranged for voters to obtain absentee ballots, had tried to persuade the absentee voters to vote for the League's slate, had assisted absentee voters in marking their ballots, and had arranged for the ballots to be mailed to the elections officials. Hogue was one of several League community leaders, each of whom assisted a certain group of people in this way. Many of these people were elderly. The League helped these people in other ways, unrelated to absentee voting, such as transporting them for medical care and assisting them to use the food stamp program. The League endorsed a slate of candidates in the September 4, 1984, Democratic primary. Hogue would go to the homes of the persons to whom the blank absentee ballots had been mailed by the elections officials. He would try to persuade them to vote for the League slate. He would help them to mark their ballots themselves or he would do the marking. In either case, the choices were made by the voters, not by Hogue. When marks were erased or scratched out and new marks made, this was done by the voters or, if the voter consented, by Hogue. Hogue would then take the executed ballots, whether or not the voters had voted for the League's slate, and mail the ballots to the elections officials. Hogue, Will Fuller, and Lillian Fuller were present at the Fullers' house one day prior to the September 4, 1984, primary; Hogue was calling outthe names of the candidates the League had endorsed and Lillian Fuller was marking the ballot; when she gave Hogue the marked ballot, he looked at it and told her she had got the wrong name, referring to Billingslea; Hogue talked to her about that and convinced her; she said to Hogue that she had marked the ballot for Billingslea in ink; Hogue told her he could get the ink off, and Hogue made the change.10
