Mr. SENSENBRENNER. I think the bottom line is not the guilt or innocence of the people who have been accused. That is for the judicial branch to decide, not for the legislative branch. What our committee, in exercising its oversight function over the FBI and the Justice Department is supposed to determine is when there was reason to believe that there should be an investigation, and if there ever was reason to believe there should be an investigation, it seems that this evidence clearly indicates there should have been. Mr. EDWARDS. Well, the full might of the Federal Government from Washington floated into this county.

Mr. KEENEY. Not from Washington, sir. This was handled on a local level. We approved the prosecution.

Mr. EDWARDS. How many FBI agents were sent into this county? Mr. KEENEY. Ten, I am informed.

Mr. EDWARDS. Ten? Ten agents?

Mr. DONSANTO. I believe the number was 10, yes. The largest number was 10. One of the persons on the investigative team was a State investigator, a black State investigator.

Mr. EDWARDS. Ten FBI agents and a black State investigator and how many of the FBI agents were black?

Mr. DONSANTO. I believe one or two were black, one oriental, four women and the rest were white.

Mrs. SCHROEDER. Mr. Chairman?

Mr. EDWARDS. Yes, the gentlewoman from Colorado.

Mrs. SCHROEDER. Can I ask one question? Did you investigate any absentee ballots of whites?

Mr. KEENEY. Yes. As my statement reflects, we got possession of all the absentee ballots. A number of them were white. The actual numbers, Mrs. Schroeder, are set forth in my statement. For the most part, the white persons stated that they either had made the alterations--I think five of them said that. And the balance said they had authorized the alterations.

That was not true with respect to the 27 or 30 on which we proceeded.

Mrs. SCHROEDER. I don't know. I only know in my State that often with elderly people the person tells you what they want, and someone else is filling it in and making the marks and so forth and so on because of eyesight or because of shakiness or because of a lot of different things, so I don't find the testimony that horrendous. Then you tell us how careful you are in selecting the case, but you lost it.

Mr. KEENEY. We lose cases, Mrs. Schroeder. We don't lose many, but we do lose cases. We are dealing with a very popular civil rights leader who had done some great things in his career, and I don't think it is unthinkable that a jury would be sympathetic to him.

Mrs. SCHROEDER. Oh, I find that rather surprising that you would say that. I honestly think that you are telling us people from the country came and you went through this very careful process, and you had all the facts, and you lost because the jury was sympathetic?

Mr. KEENEY. Well, juries are sympathetic. You can go down here any day of the week and cases are presented, and you know there

is a prima facie case and the jury doens't necessarily convict for one reason or another.

What we are defending here, Mrs. Schroeder, as Congressman Sensenbrenner set forth, is the Department of Justice brought a case based upon the evidence and there was absolutely no racial bias involved in it.

Mrs. SCHROEDER. Well, you know, I am sure you think there was none, and I am sure that reasonable people could differ who are down there. And I am also sure that people who lived in that county may have a little different view of history and how they have been treated in the past. And it is very conceivable to me that whites would be much more self-assured in talking to the FBI than maybe some of the elderly blacks who had lived through this entire period where they have seen massive changes back when they gave tests to them to see if they could vote or whatever.

But I am sure that there is a form of intimidation that you and I might not feel, and I am a little surprised by the lack of sensitivity on that, but I think it is important to point out that you lost the case. You lost the case with 10 FBI agents going in with

Mr. KEENEY. No, no, not going in. There were 10 FBI agents there. They were in the Mobile Division. We didn't bring FBI agents down from Washington, or anything.

Mrs. SCHROEDER. To tie them in on the case, you put them in on the case and lost them.

Mr. KEENEY. Mrs. Schroeder, would you look at those ballots and the 27 with the alterations? If you were in the Department of Justice, what would you do about it? You would do what we did, what we had to do. We have to enforce the law.

Mrs. SCHROEDER. I must say that I think I have seen all sorts of ballots that have been changed, and the question is how do they get changed. It is very conceivable somebody fills it out and then says, wait a minute; change this or change that. What I am saying is then you call the witness in. If they are elderly, if it is the FBI, if it is Washington, DC, if they have lived through this incredible period of civil rights in the country that a lot of us were fortunate enough not to feel that persecution, I could see that that is very intimidating.

Mr. KEENEY. I understand what you are saying.

Mrs. SCHROEDER. I assume, too, you had both blacks and whites on the jury, so you know you didn't just have a black jury, right? Mr. KEENEY. It was 7 to 5.

Mrs. SCHROEDER. Then I would say if you have a multiracial jury, and they acquit these three people, you can't just say it was blacks on the jury who were sympathetic.

Mr. KEENEY. I can't say that. I said the jury was sympathetic. I said the gentleman had a distinguished record. I am just suggesting one possibility. They may have disbelieved the witnesses, but the point is we had this documentation.

We conducted an investigation. The investigation included an interrogation of these people. Mrs. Schroeder, all of these people were not elderly and infirmed. There were some young people in

there.

Mrs. SCHROEDER. There could have been snakes. There are snakes everywhere, and maybe the community knew they were snakes.

Mr. KEENEY. What does a prosecutor do when he has evidence of this nature?

Mrs. SCHROEDER. You know and I know what they do. We are constantly having to make decisions on allocation of resources. There are always more cases than there is time to prosecute, and I think the question is why was this one selected; why was the time selected today?

Now you may say it was all innocent, fine and above board. You may be right. I am just saying that I think we have to look at all of that, and I think we have to look at a multiracial, 7-to-5 jury agreeing with what I am saying.

Mr. KEENEY. I have seen a lot of cases lost, Mrs. Schroeder, and the reasons for the loss sometimes they are not always that clear. I am defending the jury. They did their thing. That is fine. That is what they are supposed to do is to vote as they see fit.

We did our thing, and that is what I am trying to convey is we had substantial evidence of fraud from documentation. It was supported by witnesses, and we had no choice.

Mrs. SCHROEDER. You don't have any other cases to bring?

Mr. KEENEY. When you are into a case this far, and you have these allegations, you don't go looking for other cases. You had a case and what do you do with it?

Mr. EDWARDS. Well, if the gentlewoman will yield, the first thing you do with it is get the Civil Rights, Division involved. I might say we asked Mr. Reynolds, the Assistant Attorney General for Civil Rights, to testify today, and he refused and said this is entirely a criminal matter.

Mr. KEENEY. I agree.

Mr. EDWARDS. I guess we are not connecting. It seems to at least a couple of us up here that there is some massive insensitivity here. Ten FBI agents and a State investigator going into an area, a rural area with the history of discrimination, for 27 ballots. Now I think you have to enforce the law but it's whether or not those things were taken into consideration, there doesn't seem to be any indications of it.

The Civil Rights Division is supposed to enforce the Voting Rights Act and to encourage voting, not to intimidate people. The results of this case-this case where these three people, all of whom had excellent reputations in the community and were found not guilty, the results of this case have been absolutely massive. Not only were 10 FBI agents driving around in their black automobiles for several months or whatever it was, but 25 to 30 of these people, a lot of them older people, were put into a bus, and driven 51⁄2 hours to Mobile. Before they left, the roads apparently were blocked off in Marion-that is the little town's name-so people couldn't even get close to the bus, 9 or 10 FBI agents, aparently with their weapons showing were posted.

Mr. KEENEY. That is not my understanding, Mr. Chairman.

Mr. EDWARDS. This is the testimony. I am not saying this. This is the testimony we had. If you want to dispute the testimony, you can. Uniformed conservation officers, and I presume they were

Federal, State troopers and local police, plus 9 or 10 FBI agents, all to get 25 or 30 people into a bus to take off to testify before the grand jury.

Doesn't that seem like a little overkill? Isn't that intimidating? I would be scared to death to go into that town if I were a black person.

Mr. KEENEY. Mr. Chairman, that isn't my understanding. But it is my understanding on the bus there was only one other person who was on the bus other than the driver and that was a paralegal for the local district attorney.

My further understanding is the bus that was hired by the local authorities, the people were put on the bus in a downtown area and it was kind of a lot of people gathered to observe the fact that 27 or 28 people were getting on the bus. I had no indication of any intimidation.

Mr. EDWARDS. Let me finish. Then you deny that there was 9 or 10 FBI agents at the bus and a number of conservation officers in uniform, some State police and some local police all around the bus? Do you deny that, Mr. Keeney.

Mr. KEENEY. I don't know who was around the bus. I am telling you who was on the bus, Mr. Chairman, to my knowledge. Again, am at a disadvantage. I am getting this indirectly from our people. I have no reason to believe it's not true.

Mr. SENSENBRENNER. Will the gentleman yield?

Mr. EDWARDS. Sure.

Mr. SENSENBRENNER. I have gone through the absentee ballot envelopes that you have submitted to us and approximately half of those that you submitted are not from elderly people because the affidavit that one has to fill out on the envelope requires the voter to list their date of birth.

So to say that these were all ballots of elderly people who would presumably be more easily intimidated simply isn't true. Here we have got a date of birth of 1953, 1932, 1934, 1942, 1962, 1937, 1949, 1946, 1965, and 1938.

Mr. KEENEY. Thank you, Mr. Sensenbrenner. That is the point I was trying to make with Mrs. Schroeder.

Mr. ISHIMARU. Mr. Keeney, what was the Federal interest here in this case? On page 49 of the manual it talks about how—— Mr. KEENEY. Which one?

Mr. ISHIMARU. The brown one. The fourth edition of the Federal Prosecution Manual. It talks about the limited Federal role in voting fraud cases and it says that the Federal Government will not enter a case unless there is a need to vindicate a paramount Federal interest or as prosecutor of last resort to redress longstanding patterns.

What was the Federal interest here?

Mr. KEENEY. Well, one, going on to page 50, this is a category II case because of the fact that there were Federal candidates on the ballot for the U.S. Senate.

Mr. ISHIMARU. Wouldn't it be a category III case, because the markings on the ballots only went to local races? The alterations did not go to the Senate race, did they?

Mr. KEENEY. But they had potential for impacting.

Mr. ISHIMARU. We mean category II and category III.

Mr. KEENEY. I am sorry. Go ahead please.

Mr. ISHIMARU. What is the difference then between category II and category III?

Mr. KEENEY. Well, as it states the category III states you can't, the impact on the Federal election cannot be demonstrated.

Mr. ISHIMARU. Was it demonstrated here that there was an impact on a Federal race? Or was the impact solely on local races? Mr. DONSANTO. The ballots that you have there had been opened and ballot papers had been removed from the envelope. I think if you will look at those ballots you will see that there were marks on these ballots in the senatorial contest. The ballots therefore were exposed to risk and exposed to mishandling.

Mr. ISHIMARU. The impact was only on non-Federal races. Is that right?

Mr. DONSANTO. That is the reason why this is not a category I. Mr. ISHIMARU. Wouldn't that be a reason it would be a category III offense and not a category II offense?

Mr. DONSANTO. It would be a category III offense if there were no marks in the senatorial contest or the senatorial contest was unopposed.

Mr. ISHIMARU. So what you are telling me is that if the voter made a mark in the senatorial contest it is automatically in category II but if the alterations did not occur in a Federal contest it would automaticlaly be category III.

Mr. DONSANTO. I am not sure I follow you.

Mr. ISHIMARU. On this ballot here there are alterations twice in local races. There are no alterations up in the Senate race. This strikes me as being a category III case.

Mr. KEENEY. It has the potential of impacting on the Federal election.

Mr. ISHIMARU. It cannot be shown to adversely impact the Federal race. Those are the standards that are laid out.

Mr. KEENEY. In retrospect it cannot be.

Mr. ISHIMARU. If the Federal-

Mr. KEENEY. We had to subpoena the documentation and examine it and interview the witnesses to determine whether or not it had an impact. It had a potential impact but in any event it comes within either the category II or III and both are priority categories. Mr. ISHIMARU. Less so than category I, though.

Mr. KEENEY. OK.

Mr. DONSANTO. I might also add here there were two ballots involved here, one where one voter claimed he did not vote and the ballot for that voter was marked in the senatorial contest. There was another voter who claimed he only voted in, he believed it was the tax assessor's race. He voted for Mr. Billingslea. His vote for Mr. Billingslea had been changed and his ballot had been completed.

Mr. ISHIMARU. But none of this had an adverse impact on the Senate race. Senator Heflin didn't lose the primary.

Mr. DONSANTO. No; he didn't lose the primary.

Mr. ISHIMARU. Well we differ there. Did the local DA help you out on this investigation?

Mr. KEENEY. He did.

Mr. ISHIMARU. Why?