Before Wagner, Chief Judge, and Steadman, and Reid, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appeal from the Superior Court of the District of Columbia (Hon. Tim Murphy, Trial Judge)
Opinion for the court by Chief Judge Wagner.
Dissenting opinion by Associate Judge Steadman at p. 11.
Appellant, Gregory Mitchell, was charged by information with violation of D.C. Code § 1-1312 (j)(1) (1999), a statute governing nominations of candidates for local office by petition, "for which a penalty is provided in D.C. Code § 1-1312 (b)(3)." Specifically, the information charged that Mitchell, "being a circulator, willfully submitted a nominating petition that contained signatures that were not written by the persons whose signatures they purported to be." Following a jury trial, Mitchell was convicted as charged. He argues, for the first time on appeal, that the offense for which he was convicted was not a crime under the statute cited. Mitchell further contends that the court's instruction to the jury on the elements of the offense was based on an unrelated statute and uncharged crime. We agree and reverse for plain error.
The evidence showed that Mitchell's signature appeared as a circulator on a nomination petition for a candidate for chairperson of the District of Columbia Council. There were twenty signatures on the petition purporting to be those of registered voters. Cynthia White, a handwriting expert, testified that one person signed all twenty of the names of registered voters appearing on the petition signed by Mitchell. Ms. Leona Agourides, an employee of the Board of Elections and Ethics, testified that, without the twenty signatures on this petition, the candidate would have had only 2985 of the 3000 signatures required for his nomination. She also testified concerning the requirements for completion of the nominating petition. Ms. Agourides testified that a circulator must sign an affidavit. Mitchell signed the affidavit swearing or affirming as follows:
(a) that I am a registered qualified elector of the District of Columbia;
(b) that I personally circulated this petition sheet;
(c) that I personally witnessed the signing of each signature thereon; and
(d) that I have determined from each signer that he or she is a duly registered voter in the District of Columbia. . . .
Two registered voters testified that although their names appeared on the petition, they had not signed it.
Mitchell testified that the candidate came to his office and requested volunteers to circulate a nominating petition on his behalf for which he promised to pay the circulator one dollar for each signature obtained. According to Mitchell, he took four petitions, signed each one, and placed them in his drawer. Mitchell said that he did not return to ...