United States v. Prude, Kimberly ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1425
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KIMBERLY PRUDE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 162—Rudolph T. Randa, Chief Judge.
____________
ARGUED DECEMBER 6, 2006—DECIDED JUNE 14, 2007
____________
Before POSNER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. On June 28, 2005, Kimberly Prude
was indicted on one count of voter fraud in violation of
42 U.S.C. § 1973gg-10(2)(B). The charge was based on her
own conduct in representing that she was eligible to vote
and in casting a single absentee ballot, despite being a
convicted felon under the supervision of the Wisconsin
Department of Corrections and, therefore, ineligible to
vote under Wisconsin law. See Wis. Stat. § 6.03. She was
convicted of voter fraud and sentenced by the district court
to twenty-four months’ imprisonment. Ms. Prude timely
2 No. 06-1425
appeals her conviction. For the reasons set forth in this
opinion, we affirm the judgment of the district court.
I
BACKGROUND
During the 2004 election cycle, Ms. Prude was serving
a term of supervised release for a forgery conviction in
Wisconsin. This crime is a felony under Wisconsin law
and, because her sentence was not yet complete, she
was ineligible to vote under Wisconsin law. Wis. Stat.
§ 6.03(1)(b); see also § 304.078(3) (providing for the resto-
ration of the right to vote for felons at the conclusion of a
term of probation or parole for the offense that led to voting
disqualification). At regular intervals throughout her
period of supervision, Ms. Prude was required to meet
with a corrections officer and, on numerous occasions,
also was required to acknowledge and sign a copy of
the rules of her supervision. Among these rules was one
that stated, “[y]ou shall not, as a convicted felon, and until
you have successfully completed the terms and condi-
tions of your sentence, vote in any federal, state or local
election.” Exs.11-14, 20.
At the suggestion of an acquaintance, Ms. Prude became
a volunteer for candidates in the 2004 presidential election
campaign in the weeks leading up to the election. She
made calls encouraging area residents to vote and offering
to arrange transportation or absentee ballots for those
who requested it. On October 22, 2004, with fellow cam-
paign workers, she attended a rally at which all persons
were encouraged to march to Milwaukee City Hall, register
to vote, request an absentee ballot and vote in the 2004
presidential election; Ms. Prude did all of these things
No. 06-1425 3
with her fellow marchers. She testified that, on the day
she cast her vote, she observed no signs telling her that
persons on supervision could not vote. The registration
card she signed, which was introduced into evidence at
trial, asked only two specific eligibility questions: whether
she was a United States citizen and whether she would
be at least eighteen years of age on election day. Above
the signature block, the card further provided,
I certify that I meet the eligibility requirements of the
State of Wisconsin, and that the information I have
provided is true to the best of my knowledge under
penalty of perjury. If I have provided false information,
I may be subject to a fine or imprisonment or both
under Federal or State laws.
Ex.1. Ms. Prude also filled out an application to be officially
employed by the Election Commission as a poll worker on
Election Day and was hired.
Ms. Prude’s statement was that, the following day,
she was discussing her volunteer work with a friend, who
informed her that, because she was a felon whose civil
rights had not yet been restored, she was ineligible to
vote. See R.19 at 3. Ms. Prude further testified that she
called her probation officer and told him that she would
be working the polls on Election Day. She testified that
the officer told her that she could not vote. She further
testified that, at this point, realizing the gravity of her
mistake, she attempted to withdraw her ballot by con-
tacting the Election Commission, but was told not to
worry about it by a Commission staff person. She testified
that she received no further information regarding the
withdrawal process from the person with whom she
spoke at the Commission and therefore took no further
action.
4 No. 06-1425
Ms. Prude continued volunteering for the campaign for
a few days, then began a paid position in a community get-
out-the-vote campaign with an organization called Project
Return.
On Election Day, she reported to the location assigned
to her by the Election Commission for her poll worker
position and worked as scheduled.
She was arrested in 2005 following an investigation into
voting fraud in Milwaukee and charged based on casting
a ballot despite being an ineligible voter.
At trial, in addition to introducing Ms. Prude’s signatures
on five separate “Rules of Community Supervision,”
each of which contained a reminder that she would be
ineligible to vote until she had completed her term of
supervision or parole, the Government also introduced
evidence that signs were posted at City Hall on the date
that Ms. Prude had registered and voted and at the front
desk of the parole office during the period in which
she was required to report; each of these signs reminded
felons that they were ineligible to vote during parole,
probation and supervision. The Government further
introduced the testimony of one of Ms. Prude’s probation
officers, who specifically stated that, in September of 2004,
Ms. Prude had indicated her desire to volunteer for the
campaign and that the officer had reminded her at that
time that she was ineligible to vote. The officer stated that
Ms. Prude specifically acknowledged during that con-
versation that she understood she could not vote; Ms.
Prude testified to the contrary. The Government also
introduced substantial evidence of Ms. Prude’s conduct
on Election Day, though she was not charged in relation
to any of her activities on that day; its theory apparently
was that her conduct as a poll worker was probative of an
No. 06-1425 5
intent to defraud at the time she voted, an element of the
charge.1
At the conclusion of a three-day trial, the jury con-
victed Ms. Prude of voting fraud, and the district court
imposed a twenty-four month sentence, to be served
concurrently with a sentence imposed by the Wisconsin
courts on other charges.
II
DISCUSSION
Ms. Prude was convicted under 42 U.S.C. § 1973gg-10.2
1
Ms. Prude does not raise any challenge to the general admissi-
bility of the Government’s evidence of her Election Day conduct.
2
42 U.S.C. § 1973gg-10, under which Ms. Prude was convicted,
provides:
A person, including an election official, who in any
election for Federal office—
(1) knowingly and willfully intimidates, threatens, or coerces,
or attempts to intimidate, threaten, or coerce, any person for—
(A) registering to vote, or voting, or attempting to
register or vote;
(B) urging or aiding any person to register to vote, to
vote, or to attempt to register or vote; or
(C) exercising any right under this subchapter; or
(2) knowingly and willfully deprives, defrauds, or attempts
to deprive or defraud the residents of a State of a fair and
impartially conducted election process, by—
(A) the procurement or submission of voter registration
applications that are known by the person to be materi-
(continued...)
6 No. 06-1425
Ms. Prude now challenges three rulings made by the
district court during the course of her trial. Each will be
discussed in turn.
A. Rosie Caradine-Lewis’ Testimony
Ms. Prude challenges the district court’s admission, over
her objection, of the testimony of Rosie Caradine-Lewis, the
Chief Inspector at the polling location where Ms. Prude
worked on Election Day.
At trial, Caradine-Lewis testified concerning the activ-
ities of a woman sent to work at her polling location on
Election Day. Caradine-Lewis was unable to identify that
woman by name and could not recognize Ms. Prude in the
courtroom. At one point, in answer to the prosecutor’s
2
(...continued)
ally false, fictitious, or fraudulent under the laws of the
State in which the election is held; or
(B) the procurement, casting, or tabulation of ballots
that are known by the person to be materially false,
fictitious, or fraudulent under the laws of the State
in which the election is held,
shall be fined in accordance with Title 18 (which fines shall
be paid into the general fund of the Treasury, miscellaneous
receipts (pursuant to section 3302 of Title 31), notwith-
standing any other law), or imprisoned not more than
5 years, or both.
42 U.S.C. § 1973gg-10.
Ms. Prude has not challenged whether the charged conduct is
within the statute’s prohibition nor whether sufficient evidence
supported her conviction and, therefore, these issues are not
before us.
No. 06-1425 7
question, she referred to the woman who was the subject of
her testimony as the woman “who you all told me is
Kimberly Prude.” R.49 at 103. After allowing the founda-
tion questioning to proceed, Ms. Prude’s attorney objected:
“We don’t know who the person is that Miss Lewis is
speaking about. She hasn’t been able to identify --.” Id. at
104. The court interrupted counsel and responded, “No,
it goes to the weight, not the admissibility. So the Court
will allow it.” Id.
Caradine-Lewis proceeded to testify that she had become
concerned when, on Election Day, she observed the
unidentified registration worker signing a card when no
registrant was seated with her. See id. at 108-09. She also
testified concerning two registration cards for the same
voter, one with different handwriting than the first, both
counter-signed by Ms. Prude verifying the identity of
the voter.
Ms. Prude specifically contends that the testimony
was irrelevant and prejudicial because an appropriate
foundation linking Ms. Prude to the woman Caradine-
Lewis described had not been laid. Ms. Prude appears to
be arguing that the woman to whom Caradine-Lewis
referred could have been someone else. By allowing the
testimony, she contends, the court suggested to the
jury that it should attribute that woman’s questionable
activities to Ms. Prude.
We review a district court’s decision to admit evidence
over an objection, including for lack of foundation, for an
abuse of discretion. United States v. Thomas, 294 F.3d 899,
904 (7th Cir. 2002). Further, we shall not overturn errone-
ous evidentiary rulings if the error is harmless. United
States v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005).
8 No. 06-1425
We have observed that “no rule of evidence requires
a ‘foundation’; ‘foundation’ is simply a loose term for
preliminary questions designed to establish that evidence
is admissible.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d
630, 637 (7th Cir. 2001). Ms. Prude’s “foundation” objection
is essentially that relevance, and therefore, admissibility,
were not established and that prejudice resulted to Ms.
Prude. See Fed. R. Evid. 401 (stating that relevant evidence
is any evidence tending to make the existence of any
material fact more or less probable); Fed. R. Evid. 402
(providing that relevant evidence is generally admissible).
The difficulty Ms. Prude faces is that, regardless of
whether the admissibility Caradine-Lewis’ testimony
was correctly decided, the record discloses no actual
dispute that, on Election Day, Ms. Prude indeed was the
registration worker at the Rose Park Senior Center
where Caradine-Lewis had been the Chief Inspector. See
R.50 at 244, 268-70. Multiple exhibits introduced by the
Government placed Ms. Prude at the registration desk of
that location.3 Indeed, during her testimony, Caradine-
Lewis identified some of these documents as originating
at her polling location and read aloud the name of the
verifying registration worker as “Kimberly P-R-I-D-E” and
“Kimberly E. Prude.” R.49 at 106, 107. During Ms. Prude’s
own testimony, she stated that she had worked at the Rose
Park location, described in particular her work at the
registration desk, see R.50 at 235-39, and referred to con-
versations with a woman named “Rose,” id. at 235, 236.
3
See Ex.4 (list of registered voters at polling location, signed
“Kimberly E. Prude”), Exs.5-7 (on-site registration cards from
the Rose Park location signed by “Kimberly Prude” as the
corroborating witness).
No. 06-1425 9
Ms. Prude also entered into a stipulation with the pros-
ecution that she was hired as a paid poll worker to work
at the Rose Park Senior Center on Election Day.
The district court did not err in admitting the testimony
of Caradine-Lewis over Ms. Prude’s objection.
B. Testimony Concerning the Procedures for With-
drawal of Her Vote
Ms. Prude next claims that she was denied, on relevancy
grounds, the opportunity to introduce testimony about
the procedures for withdrawing the vote that, she main-
tains, she cast unaware that the law forbade her from
voting. Consequently, she contends, she was denied the
opportunity to submit evidence in support of her theory
of defense. She further claims that the district court later
permitted the Government to explore the same topic
with a less favorable witness.
At trial, the defense sought to introduce the testimony
of Sue Edman, the Director of the Milwaukee Election
Commission at the time of trial. The defense proffered
Director Edman’s testimony on several distinct subjects.
First, defense counsel stated that Director Edman would
testify that Ms. Prude was indeed an official poll worker
at the Rose Park Senior Center on Election Day and that
she had been compensated for her work. This testimony
was offered to respond to Caradine-Lewis’ testimony
that she had attempted but failed to verify with the Elec-
tion Commission that Ms. Prude was an official staff
member on Election Day. Second, defense counsel stated
that Director Edman would testify that, at the time
Ms. Prude voted, there was no policy in place to effectuate
the withdrawal of a ballot once cast. In the defense’s
10 No. 06-1425
view, this testimony would have supported Ms. Prude’s
contentions that she unsuccessfully had attempted to
withdraw her ballot. This testimony also would have
responded to testimony by Caradine-Lewis and Edith
Greene, both of whom had stated that there were such
procedures. Third, defense counsel stated that Director
Edman would testify that the Election Commission office,
in which Ms. Prude had registered and voted, was
chaotic during the election period; the defense believed
this testimony would have supported its argument that
Ms. Prude was unable to see any signage that might have
been posted.
The Government objected to Director Edman’s testimony
on the ground that she lacked personal knowledge; it
pointed out that she had assumed her responsibilities
with the Election Commission only after the relevant
election cycle. The Government also submitted that her
testimony would confuse and mislead the jury. It agreed,
however, to stipulate to Ms. Prude’s official employment
on Election Day.
After a substantial colloquy with counsel, the district
court concluded that the testimony describing the office
chaos was “not relevant” to the offense. R.49 at 165. With
respect to the procedure for withdrawal, the court stated:
to allow this witness to testify to . . . [the] procedure for
withdrawing—that’s a matter I don’t think we have
touched on . . . . I don’t think that that’s relevant,
because what happened after the four elements were
met doesn’t really impact the case. Or the elements
of the offense. Except the theory of the defense could
be, well, she didn’t really intend to deprive or defraud
the residents of Wisconsin, because she took steps to
withdraw her vote after she found out that she did
No. 06-1425 11
wrong. And that argument can be made without
indicating that there were any—or there was a lack of
policies in the Election Commission for anyone to do
that.
We have the testimony of Detective Sandvick that
indicates that he was told that by—I believe, if I recall
the testimony, he was told that by the Defendant. That
she tried to correct this after she found out from her
Probation Officer that she wasn’t supposed to do this.
So it, I suppose, can be—can still be argued, but
whether or not there were policies in place at the
Election Commission to do this, to recover from an
improper vote, or casting of an improper vote, I don’t
think that’s relevant.
. . . . It’s a waste of time. It is going into collateral
matters that would serve to confuse the jury.
Id. at 167-68.
The court therefore ruled that it would allow Director
Edman’s testimony only as custodian of public records to
establish Ms. Prude’s employment. The parties entered into
a stipulation as to this fact, and therefore Edman was not
called as a witness.
Later, Ms. Prude’s counsel called Officer Neil Saxton to
the stand. Counsel’s line of inquiry on direct examination
focused on Officer Saxton’s investigation of Ms. Prude’s
Election Day activities. Specifically, one item in evidence
was a set of two different voter registration cards, each
purporting to verify the identity of the same voter. Ms.
Prude had counter-signed both of these cards, and an-
other individual, Lawrence Madison, had provided an
additional verification signature on one of them. Defense
counsel tested the thoroughness of Officer Saxton’s investi-
12 No. 06-1425
gation into the duplicate cards. She asked Officer Saxton
if he had investigated whether Madison improperly
might have verified the card. She then asked about the
extent of any conversations Officer Saxton had had with
Ms. Prude herself during his investigation. When he stated
that he spoke with Ms. Prude when she was arrested,
counsel asked what Ms. Prude had said, if anything. Over
the Government’s hearsay objection, Mr. Saxton stated
that she had said something about calling the Election
Commission to withdraw her vote. See id. at 194-95.
On cross-examination, the Government asked Officer
Saxton if he was “aware of a procedure for someone to
challenge their [sic] vote, an absentee ballot, once it’s been
cast.” Id. at 196. Officer Saxton responded with a lengthy
explanation of how someone else would challenge an-
other voter’s ballot, if he believed that the voter had
been ineligible and therefore that the vote should not
be counted. No objection was made to this testimony.
On appeal, Ms. Prude argues that it was error for the
court to admit Officer Saxton’s testimony on withdrawal
procedures after ruling that Edman’s testimony was
inadmissible because it was irrelevant. The Government
responds that Ms. Prude opened the door to Officer
Saxton’s testimony on the point by asking him about her
statements made at the time of arrest. Because the defense
did not object to the introduction of this evidence at trial,
we review for plain error. “Before we may correct an error
not raised at trial, we must find (1) that there is error,
(2) that it is plain, and (3) that it affects substantial rights.
Once these three conditions have been met, we may
exercise our discretion to correct the error if it seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. James, 464 F.3d 699,
No. 06-1425 13
709 (7th Cir. 2006) (citation omitted). It is the defendant’s
burden to establish that substantial rights were affected
by establishing that, but for the error, the outcome of the
trial probably would have been different. Id.We cannot accept the Government’s view that the
defense had opened the door to this testimony in its direct
examination of Officer Saxton. Fairly read, the direct
examination was limited to Ms. Prude’s subjective belief
that she had cast the vote while under the mistaken belief
that she was not forbidden to vote. During its earlier rul-
ing on the defense’s proffer of Edman’s testimony, the
district court clearly anticipated that Ms. Prude would and
could introduce such evidence of her own attempts to
withdraw her ballot as circumstantial evidence of her
good faith, without the necessity of any further examina-
tion of the existence of procedures for doing so. R.49 at 167-
68 (“[T]hat argument [regarding her personal attempt to
withdraw] can be made without indicating that there were
any—or there was a lack of policies.”). By contrast, the
Government’s inquiry on cross-examination was designed
to elicit evidence on the objective existence of a proce-
dure for withdrawing a vote—the very issue that the
district court had ruled was out-of-bounds during Di-
rector Edman’s testimony.
We think it clear that Director Edman’s proffered testi-
mony, as sought to be introduced by the defense, and
Officer Saxton’s testimony, as elicited by the Government,
covered identical topics. Yet, the district court excluded
the Director’s testimony as irrelevant and inadmissible, but
admitted the Officer’s without objection. In short, the
Government introduced testimony on a topic that the
court already had ruled inadmissible. The Government’s
contention that Ms. Prude opened the door in her direct
14 No. 06-1425
examination of Officer Saxton is plainly contrary to the
court’s earlier ruling on Director Edman’s testimony.
Nonetheless, in plain error review, we may reverse
only on the basis of errors “so obvious, crucial, and egre-
gious that we should correct it despite the absence of an
objection below.” United States v. Firishchak, 468 F.3d 1015,
1026 (7th Cir. 2006). In light of the trial record as a
whole, Ms. Prude cannot satisfy her burden, in review
for plain error, to establish some probability that the
outcome of the trial would have been different. In addition
to Officer Saxton’s testimony on this point, both Greene
and Caradine-Lewis had placed statements before the jury
regarding the availability of some challenge procedures.4
In this regard, Officer Saxton’s testimony, though perhaps
more detailed, added little to the record. It was cumula-
tive of prior testimony, all of which was uncontroverted,
pursuant to the court’s earlier ruling. In any event, as the
district court ruled, the existence of procedures for with-
drawal of a vote is of only marginal, if any, relevance to the
issue of Ms. Prude’s guilt. Under these circumstances,
we cannot conclude that the admission of this testimony
constitutes error reversible by this court.
4
Greene had testified, as Officer Saxton did, about the proce-
dures someone would use to challenge an absentee ballot on
Election Day at a polling location. She stated that, as absentee
ballots are processed at the polling location, the name of the
absentee voter is called out. Persons at the location may chal-
lenge the validity of that ballot by filling out a form; according
to Greene, although the ballot is processed, it is marked with a
“C” for challenged. Caradine-Lewis merely confirmed the
existence of a procedure for challenging an absentee ballot at
the polling location on Election Day. See R.49 at 40-41 (Greene),
110 (Caradine-Lewis).
No. 06-1425 15
C. Theory of Defense Instruction
Ms. Prude also maintains that the district court erred in
refusing to give the jury her preferred instruction on the
theory of the defense.
During the instruction conference, the defense offered
a theory-of-defense instruction on mistake. See R.50 at 289.
The proposed instruction read:
In deciding whether the defendant acted with [intent
to defraud the citizens of Wisconsin of a fair elections
process], you must consider the evidence that the
defendant believed that [she could vote]. If an honest
error of fact results in a person’s not having the [intent]
required for the crime, the person is not guilty of that
crime. Before you may find the defendant guilty, the
[Government] must prove by evidence that satisfies
you beyond a reasonable doubt that the defendant
[intended to deprive the citizens of Wisconsin of a
fair elections process].
Wisconsin Jury Instructions: Criminal, Vol. 1, Instruction
770 (Mistake); see R.50 at 292. In response, the Govern-
ment tendered a pattern instruction on good faith and
stated that it had no objection to its being given to the jury.
After reviewing both instructions, the district court con-
cluded:
[I]t would appear that the defense here is relying upon
the fact that the Defendant did not know until after
she voted that this was against the law. There is also
the theory of defense that the Court has heard that in
that connection she didn’t see any signs. She was
unaware. Wasn’t on notice. So I think the good faith
instruction is more parallel or more consistent,
I should say, with what is defense theory.
16 No. 06-1425
I think it would be error appealable by the Govern-
ment if the Court allowed a mistake instruction to go
forward on this, because what the Court has heard is
Miss Prude didn’t know that was the law. Once she
found out she in good faith acted to correct it, and
that negatived the intent that the Government has to
prove in this case.
R.50 at 294. There was no further objection by either party.
The jury was given the good faith instruction; it stated:
Good faith—which has been read to you during the
closing arguments—on the part of the Defendant is
inconsistent with intent to defraud the residents of
Wisconsin of a fair and impartially conducted election
process. The burden is not on the Defendant to prove
her good faith. Rather, the Government must prove
beyond a reasonable doubt that the Defendant acted
with intent to defraud the residents of Wisconsin of
a fair and impartially conducted election process.
R.50 at 348. The jury also was instructed that the Govern-
ment must prove beyond a reasonable doubt each of the
elements of the offense, including that Ms. Prude “knew
that the ballot was materially false or fraudulent,” and that
she “cast her ballot with the intent to deprive or defraud
the residents of Wisconsin of a fair and impartially con-
ducted election process.” R.27; see also R.50 at 349. The
jury also was instructed that “the words ‘knew’ and
‘knowingly’ mean that the defendant realized what
she was doing, was aware of the nature of her conduct,
and did not act through ignorance, mistake, or accident.
Knowledge may be proved by the defendant’s conduct,
and by all the facts and circumstances surrounding the
case.” R.27; see also R.50 at 350.
No. 06-1425 17
We review a district court’s refusal to give a theory of
defense instruction de novo. United States v. Eberhart, 467
F.3d 659, 666 (7th Cir. 2006). “A defendant is entitled to a
jury instruction as to his or her particular theory of defense
provided: (1) the instruction represents an accurate state-
ment of the law; (2) the instruction reflects a theory that
is supported by the evidence; (3) the instruction reflects
a theory which is not already part of the charge; and (4)
the failure to include the instruction would deny the
appellant a fair trial.” Id. (citing United States v. Buchmeier,
255 F.3d 415, 426 (7th Cir. 2001)). However, “[w]e defer
to the substantial discretion of the district court for the
specific wording of the instructions, and in rejecting a
proposed instruction, so long as the essential points are
covered by the instructions given.” United States v. Koster,
163 F.3d 1008, 1011 (7th Cir. 1998) (citing United States v.
Scott, 19 F.3d 1238, 1245 (7th Cir. 1994)).
The parties agree that the instruction tendered by Ms.
Prude accurately stated the law and was supported by
the evidence. They contest, however, whether the instruc-
tion offered ultimately was encompassed within the charge
as a whole and whether its absence affected the fairness
of the proceedings. The critical question is therefore
whether the tendered instruction’s substance was part of
the charge. In answering this question, we must consider
whether the instructions as a whole adequately informed
the jury of the theory of defense. See United States v. Given,
164 F.3d 389, 394-95 (7th Cir. 1999) (rejecting a claim that
a specific good faith instruction was necessary when the
jury adequately was apprised of the requirement of intent
using the Circuit’s pattern knowledge instruction).
We previously have considered and rejected claims that
a district court was required to give a good faith theory-of-
18 No. 06-1425
defense instruction. In those cases, we concluded that the
general pattern instruction that “knowledge” means “that
the defendant realized what she was doing, was aware of
the nature of her conduct, and did not act through igno-
rance, mistake, or accident,” R.50 at 350, adequately
expresses the substance of a good faith defense. See Given,
164 F.3d at 394 (stating that, where the district court “did
not use the words ‘good faith,’ but [] did make it clear that”
the Government had to prove that the defendant acted
with the specific knowledge that was an element of the
offense and that the burden would not be met if the defen-
dant acted through “ignorance, mistake or accident,” the
instructions made the theory of defense “abundantly
clear to the jury”); United States v. Manjarrez, 258 F.3d
618, 627 (7th Cir. 2001) (holding that “careful and straight-
forward explanations of the degree of knowledge and
intent that the government must prove,” in addition to an
“ostrich instruction,” was sufficient to apprise the jury of
the good faith theory of defense).5
The good faith instruction, particularly when read
together with the instructions describing the intent element
of the offense, encompasses a defense based on mistake.
5
Ms. Prude’s contention that the two instructions are funda-
mentally different insofar as mistake bears on the specific intent
to defraud, while good faith is a general intent defense, is not
supported by our cases. See United States v. Lang, 644 F.2d 1232,
1240 (7th Cir. 1981) (approving of a jury instruction as a
proper statement of the law, which stated in part that “[g]ood
faith constitutes a complete defense to one charged with an
offense of which fraudulent intention is the essential element”).
In any event, as given, the good faith instruction itself juxta-
posed good faith against the specific intent to defraud. R.50 at 348.
No. 06-1425 19
Ms. Prude’s instruction is more clearly worded and more
directly links the relevant concepts for the jury. Never-
theless, the good faith statement accurately stated the
law and, taken together with the instructions as to the
specific intent element of the offense and the instruc-
tions regarding the meaning of knowledge, adequately
apprised the jury that it could not conclude that she was
mistaken about her eligibility to vote and simultaneously
hold her criminally liable for casting a ballot. Any weak-
ness in the instruction because it did not contain the
specific language Ms. Prude often used—mistake, rather
than good faith—did not dilute impermissibly her basic
point that she could not be found guilty if she was mis-
taken about the legality of her conduct; it simply stated
the point in broader terms. Ms. Prude’s counsel remained
free, within the context of the court’s instruction, to
emphasize her testimony that she was mistaken about
the legality of her actions.6
We must conclude that Ms. Prude has not demonstrated
that the jury was not instructed adequately on the theory
of her defense or that, under the instructions as given,
she was deprived of a fair trial.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
6
Indeed, Ms. Prude’s attorney did emphasize Ms. Prude’s
testimony that she was mistaken and also referenced the good
faith instruction and its connection to the intent element of
the charge in her closing argument. See R.50 at 333.
20 No. 06-1425
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-14-07