Petition — Chestnut v. United States

( Si Court, U. &

. : hk iit. EF D

———

| JUN TS76

Supreme Court of the United States - —

No. £9°1779

OCTOBER TERM, 1975

JACK L, CHESTNUT,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Jack S, Nordby

Douglas W. Thomson

THOMSON, WYLDE & NORDBY

Suite 1530

55 East Fifth Street

Saint Paul, Minnesota 55101

John Cochrane

COCHRANE & BRENAHAN

Suite 500

Saint Paul, Minnesota 55102

360 Wabasha

Counsel for Petitioner

——E —

1976—Northwest Brief Printing Co., 316 Chicago Avenve, Minneapolis 55415—-398-507/

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a]

TABLE OF CONTENTS

Page

COUMMEORS TURD wc ccc ccc ccsccnscsccesescovens |

PUTED cccccccecscesecccevcvncceccececs l

GCUMRIES FUONIMEES wacccccccccccctcccececevees 2

Constitutional Provisions Involved ...... 0.6.0 005. 2

Statutes and Rule Involved ...... 0.060 eee eee 4

PEEVE SEEEETEEETELELELE EEE RELE EET 4

Reasons for Granting the Writ:

I, The Ex Post Facto Indictment .............. 8

Il. The Vagueness of the Statutes .... oc. .05, 12

III. The Venue Question .... cc ccc eceeeveees 19

COMTI ccc ccc cr ccscascceneccccccveesesen 22

APPENDIX INDEX

I, Statutes and Rule Involved:

Pee GE GE GUD ccc occcecvccceeseoncc A-1

Federal Corrupt Practices Act of 1925 ..... Al

Taft-Hartley Act of 1948 0.0... .. 0c cee ees A-3

Federal Election Campaign Act of 1971 ....A+7

Federal Election Campaign Act Amendments

GE IGTG wcccccccccccccetions

BG UBR. 82 cccccccscsccccces

1B U.S.C. $5257 ccc ccccsccces

eeeeceen A-12

Rule 18, Federal Rules of Criminal Procedure

II, Opinions below:

seeeeees A-15

Opinion of the District Court, 394 F, Supp.

TUE cectcesesccvecsvescete

TeeEETE A-16

Opinion of the District Court, 399 F.Supp.

\) / PORRELEERESERE ERE ETI

Opinions of the Court of Appeals

Order denying rehearing ........

ce eeeoes A-40

CITATIONS

Page

Constitutions:

Article 1, Section 9, Clause 3... i ccc eee ee ees 2

Article III, Section 2, Clause 3... ccc cece eens 3, 19

pS" & BPPUPTTUCLELTT TT EETEELTLTLtLie 3

po / ; Pree rerrrerererererrirrr yy 3

Cases:

Bouie v, Columbia, 378 U.S, 347 (1964) ......... 1]

Buckley v. Valeo, — U.S, —, Nos, 75-436, 75-437,

January 30, 1976 wnrccrcccccccccscccrvcenns 18

Burton v. United States, 196 U.S, 283 (1905) ...... 20

Burton v, United States, 202 U.S, 344 (1906) ...... 20

Coates v, Cincinatti, 402 U.S, 611 (1971) ...... 16, 17

Dombrowski v. Pfister, 380 U.S, 479 (1965) ....... 16

Gooding v. Wilson, 405 U.S, 518 (1972) co.cc cues 16

Jackson v, United States, 325 F.2d 477 (8th Cir, 1963) 10

Johnson v. United States, 323 U.S, 273 (1944) ..... 19

Kring v. Missouri, 107 U.S, 221 (1882) 0.0. .....05, 10

Pipefitters v, United States, 407 U.S, 385 (1972) .... 16

Rewis v, United States, 401 U.S, 808 (1971) ...... 17

Travis v. United States, 364 U.S, 631 (1961) ...... 20

United States v. Anchorage Cent, Labor Council, 193

F.Supp. 504 (D.C. Alaska 1961)... cece 16

United States v. Anderson, 328 U.S, 699 (1945)... 19

United States v. Auto, Workers, 352 U.S, 567 (1957) 15

United States v. Boyle, 482 F.2d 755 (C.A.D.C, 1973) 16

United States v. CIO, 335 U.S, 106 (1948) ...... 13, 14

United States v. Canton, 470 F.2d 861 (2nd Cir, 1972) 18

United States v. Cores, 356 U.S, 405 (1958) ....... 19

United States v, First Nat. Bank, 329 F.Supp. 1251

Tics GED DOUED cocceccceecesedeccecnecece 16

United States v. Lewis Food Co,, 366 F.2d 710 (9th

Se, DEE dee vencedeeedeseucesecenescecess 16

United States v. Painters Local Union No, 481, 172 F.

Be ee EDD 6c vic c0cceevsccsceses 16

United States v. Posnjak, 457 F.2d 1110 (2nd Cir,

SE Ac ens andisbda bod hane eh o0e006e hae euee 18

United States v, Wiltberger, 5 Wheat, 76 (1820) .... 17

Statutes:

2} PRR errr rer rrr res > §

18 U.S.C. § 591 ...2, 6, 7, 9, 10, 11, 13, 17, 19, 20

BG Wate. B6ID oc ccce a, 5 6 7, 10, 11, 12, 17, 19

RE Fe eer re Perr re 19

3.0 UO ere ee eee 2

Federal Corrupt Practices Act (1925) ............ 4

Federal Election Campaign Act (1971) .......... 4, 6

Federal Election Campaign Act Amendments (1974) 4

Taft-Hartley Act (1948) .......cccceeeveees 4, 6, 15

Pe Ue CE SGeccccaceccescscuveessse 4, 13

Rules:

Rule 7(c), Federal Rules of Criminal Procedure .... 10

Rule 18, Federal Rules of Criminal Procedure ..... 4

Other:

A Uniform System of Citation, Harvard Law Review

Association, Sections 4:2:3(b), 4:3(b) .........., 10

In The

Supreme Court of the Gnited States

No.

OCTOBER TERM, 1975

JACK L. CHESTNUT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Petitioner, Jack L. Chestnut, respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Second Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet reported,

but is found in the Appendix. The district court’s opinion

of April 8, 1975, is reported at 394 F. Supp. 581, and

the same court’s opinion of June 25, 1975, is reported at

399 F.Supp. 1292; both are also found in the Appendix.

JURISDICTION

The judgment of the court of appeals was entered on

March 8, 1976. A petition for rehearing was denied on May

2

5, 1976. (The order denying rehearing is included in the

Appendix.) This petition is filed within thirty days of the

latter date. This Court’s jurisdiction is invoked under 28

U.S.C. $1254. The district court’s jurisdiction was invoked

by indictment.

QUESTIONS PRESENTED

I. Whether the indictment for a 1970 offense was ex

post facto because drawn and returned under a later en-

actment?

Il. Whether the applicable versions of 18 U.S.C.

§§591 and 610 were unconstitutionally vague as applied

to receivers of contributions because the controlling defini-

tions required persons of common intelligence to guess and

differ as to whether a given transaction was an “expendi-

ture” (lawful to receive) or a “contribution” (unlawful to

receive)?

III. Whether venue of the offense of causing another

to receive an unlawful contribution in New York was es-

tablished where every act of causation by the defendant

was elsewhere, where the agreement which constitutes the

offense was made elsewhere, where the actual receipt by

the third party was (so far as the evidence showed) else-

where, and where the only nexus to New York was the

deposit of the payment in a New York bank?

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shail be

passed.

3

Article III, Section 2, Clause 3:

The trial of all Crimes, except in Cases of Impeachment,

shall be by Jury; and such Trial shall be held in the State

where the said Crimes shall have been committed; but

when not committed within any State, the Trial shall be at

such Place or Places as the Congress may by Law have di-

rected.

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

vice in time of War or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining Wit-

nesses in his favor, and to have the Assistance of Counsel

for his defense.

4

STATUTORY PROVISIONS AND RULE INVOLVED

Because they are lengthy, the following statutes and rule

are set forth verbatim in the Appendix:

Tillman Act (1907), 34 Stat. 864

Federal Corrupt Practices Act (1925) 43 Stat. 1070

Taft Hartley Act (1948) 62 Stat. 719, 63 Stat. 90

Federal Election Campaign Act (1971), 84 Stat. 854,

86 Stat. 8, 10

Federal Election Campaign Act Amendments (1974)

88 Stat. 1263 et seq.

18 U.S.C. §2, 65 Stat. 717

18 U.S.C. §3237, 62 Stat. 826, 72 Stat. 512, 80 Stat.

1108

Rule 18, Federal Rules of Criminal Procedure

STATEMENT

The evidence and procedural progress of the challenged

conviction are recited at length in the three opinions be-

low, all of which are included in the Appendix hereto.

To avoid burdensome repetition, therefore, we set forth

here as briefly as practicable only the facts pertinent to the

specific issues raised in this petition. Because a careful and

close reading of the statutes involved is necessary to com-

prehend the arguments upon the ex post facto nature of the

prosecution and the unconstitutional vagueness of the

statutes, we have included in the Appendix the texts of the

various acts which since 1907 have governed corporate

contributions.

As mangaer of Hubert Humphrey’s 1970 senatorial cam-

paign, Petitioner Jack Chestnut agreed to have Associ-

ated Milk Producers, Inc. (AMPI) (a dairy marketing co-

operative and long-time Humphrey supporter) pay some

$12,000 for services rendered to the campaign by Lennon

5

& Newell (L&N) an advertising agency. The principal fac-

tual issue was whether Mr. Chestnut knew the payments

were to be made unlawfully from the AMPI corporate ac-

count (as in fact they were) or lawfully from the coopera-

tive’s political fund (as Mr. Chestnut testified he believed

they would be).

An indictment obtained by the Watergate Special Prose-

cutor was filed December 23, 1974, in the Southern Dis-

trict of New York, charging violation of 18 U.S.C. §§2

and 610, and alleging that Mr. Chestnut caused L&N to

receive an unlawful corporate contribution from AMPI.’

Attached to the indictment as provided to Petitioner and the

press was what was described as a copy of the “appro-

priate statutes.” In fact, however, the atiached statutes

were not those in effect in 1970 (the Taft-Hartley Act) at

the time of the alleged offense, but provisions from the

Federal Election Campaign Act of 1971, and the latter

embodied significant changes in the operative definitions.’

Because the statutes are confusing, it is difficult to pre-

sent the pertinent facts without confusion; in outline they

are these:

Section. 610 prohibits the making of either “contribu-

tions” or “expenditures” by corporations, but prohibits

the receiving of only “contributions” and not of “expendi-

tures.” If the payments here were “expenditures,” there-

fore, it was no crime to receive them or cause another to

receive them.

‘The newly amended statute of limitations, reduced from 5 to three

years, would have barred the prosecution after midnight December 31.

2 U.S.C. §455. Pub.L. 92-225, Title [V, §406, as added Pub.L. 93-

443, Title III, $302, Oct. 15, 1974, 88 Stat. 1289. (The text is con-

tained in the Appendix.)

*The text of each version of each statute is contained in the Appendix.

6

In 1970, Section 591 defined “contribution” as “a gift,

subscription, loan, advance, or deposit, of money, or any-

thing of value, and includes a contract, promise, or agree-

ment to make a contribution, whether or not legally en-

forceable.”

Section 59] defined “expenditure” as “a payment, dis-

tribution, loan, advance, deposit, or gift, of money, or any-

thing of value, and includes a contract, promise, or agree-

ment to make an expenditure, whether or not legally en-

forceable.”

Although these definitions largely overlap there are two

crucial differences: the terms “payment” and “distribu-

tion” are forms of “expenditure” but not of “contribution.”

Therefore in 1970 it was not unlawful to receive a “pay-

ment” or a “distribution” (because it was not unlawful to

receive an expenditure); after the 1971 amendments, how-

ever, the words “expenditure” and “contribution” were

identically defined in §610, (although other, different defi-

nitions continued to be included in §£91), and both now

included “any direct or indirect payment” or a “distribu-

tion.” (Federal Election Campaign Act of 1971, see Ap-

pendix.)

At the hearing on Petitioner’s motion to dismiss the in-

dictment as ex post facto, Government counsel’ failed either

to assert that the proper Taft-Hartley act had heen used,

or to deny that the improper later 1971 statute had been

used, by the Grand Jury when it returned the indictment.

(Appendix in the court of appeals, 68-69.)* The trial court

3The case was transferred from the Watergate Special Prosecutor to the

United States Attorney for the Southern District of New York for

purposes of trial. (Appendix in court of appeals, 5-8.)

4Petitioner has caused the Appendix in the court of appeals to be lodged

with the Clerk of this Court.

7

denied the motion to dismisss® and the Court of Appeals af-

firmed, holding that the indictment stated an offense un-

der the 1970 statute and, in any event, the defense could

not have been misled by the apparent use of the wrong

Statute.

A petition for rehearing was filed, asserting that the

Court of Appeals had overlooked or misconstrued the true

issue, to wit: that if the proper statute had been presented

to the grand jury there may well have been a decision not

to indict since the definitions of “contribution” and “ex-

penditure” had been materially changed by the interven-

ing amendments, and what was arguably a “contribution”

(unlawful to receive) in 1972, may have been reasonably

construed as an “expenditure” (lawful to receive) i in 1970.

The petition for rehearing was denied.

Closely related to the ex Post facto question, because

both involve the proper construction of “contribution” and

“expenditure,” is Petitioner’s attack on Sections 591 and

610 as unconstitutionally vague. The trial judge rejected

this argument in its opinion of April 8, 1975, 394 F. Supp.

at 587-591, and the court of appeals adopted this reason-

ing in reaching the same result. A petition for rehearing

alleging that that result depended upon a construction of

ambiguous penal legislation in favor of the Government

rather than in favor of the accused was denied. Neither

the trial court nor the court of appeals came directly to

grips with Petitioner’s contention that the crucial defini-

tions of “contribution” and “expenditure” were either so

5A defense request that the jury be allowed to determine whether the

payments in question were contributions or expenditures was denied,

(Appendix in the court of appeals, 685, 723), and instead the court

instructed the jury in effect that a payment from AMPI to L&N for

services to Humphrey was a contribution. (Appendix in the court

of appeals, 663-664.)

ambiguous as to be unconstitutional or, if properly con-

strued in favor of the accused, required a conclusion that

the payment here was an “expenditure,” lawfully received.

The indictment alleged that the Petitioner's violation oc-

curred “in the Southern District of New York and else-

where,” but there was no evidence (as the court below

conceded) that Petitioner did any act or was even present

in New York; the only nexus proved to New York was

the ultimate deposit of the AMPI checks in the L&N ac-

count in a New York bank, Petitioner's motions for judg-

ment of acquittal for failure to prove venue were denied,

his requests to charge the jury as to proof of venue were

rejected, and the court of appeals found deposit of the

checks in the New York bank sufficient to establish venue,

A petition for rehearing on this issue on the grounds the

court below had overlooked its own controlling decisions,

and had misapplied in this 18 U.S.C, $2 causation case

law applicable only to conspiracies or aiding and abetting

or continuing offenses, was denied,

REASONS FOR GRANTING THE WRIT

1. The Ex Post Facto Indictment

All the evidence, internal and external to the indictment,

indicates that Petitioner was accused of a 1970 offense

under a stuiute significantly amended at a later date, The

language of the indictment, the citation of the statute in

the indictment, and the circumstantial evidence of the text

of the statute attached by the prosecutor himself to that

indictment, all tend persuasively to show this. Moreover,

(a fact ignored by the court below) at the hearing on this

issue defense counsel specifically asked of Government

counsel whether the indictment was drawn and returned

eer

9

under the correct 1970 or the improper later statute, No

direct answer was forthcoming; rather Government counsel

said:

Your Honor, all I can say in that regard is 1 have

— to Mr. Turcom [sic. Mr, Turckheim, Assistant

atergate - pmoas Prosecutor] who presented the case

to the grand jury, and he advises me that he is fully

aware that the statute was amended in 1972, but be-

yond that I am not at liberty to discuss the proceedings

in the federal grand jury in this district. (Appendix in

the court of appeals, 68-69)

This evasive response is most significant, saying as it does

(in the present tense) that the prosecutor is aware of the

amendment, but refusing to assert that the proper statute

was in fact used,

The court below evades this problem, however, by fo-

cusing on its determination that the indictment states an

offense under the 1970 statute; but this in turn requires a

strained construction of the statute and the indictment in

favor of the Government, The indictment describes the of-

fending transaction as a “payment” for “services.” (Ap-

pendix in court of appeals, 10) Under the 1970 statute a

“payment” was an expenditure and not a contribution,

and the word “services” did not appear at all; the amend-

ment added “payment” to the definition of contribution

and inserted “services,”

An indictment under §591 would certainly have re-

ferred to a “contribution” by one of the applicable terms:

“gift, subscription, loan, advance, cr deposit,” because re-

ceipt of a “payment” did not state an offense at that time,

Therefore, solely from a reading of the indictment, it is

apparent the indictment refers ex post facto to the amended

10

statute. And there is other circumstantial confirmation that

this was (ie case.

The indictment (in 1974) cites the statute as merely 18

U.S.C. §610, with no allusion to the Statutes, at Large or

indication that any version other than the one in force at

the time of indictment was contemplated; there is no refer-

ence to $591. Rule 7(c), Federal Rules of Criminal Pro-

cedure, requires that:

The indictment . . . shall state . . . the official or

customary citation of the statute . . . which the de-

fendant is alleged to have violated.

The official or customary citation here would have been

to “18 U.S.C. §591 and §610 (1970), as amended, 18

U.S.C, §610;” or to the Statutes at Large. (See A Uniform

System of Citation, Harvard Law Review Association,

Sections 4:2:3(b), 4:3(b).) And even where amendments

are not referred to, it has been held:

Obviously, a citation to an existing official code

section includes all amendments thereto in force.

Jackson v, United States, 325 F. 2d 477, 479 (8th

Cir. 1963).

It is true that miscitation per se will not invalidate an in-

dictment in the absence of prejudice, but that is not the

point; here the citation is evidence that the wrong law was

applied to Petitioner’s conduct. The issue is not whether

the indictment misled Petitioner, but whether the indict-

ment would have been returned at all under the proper law.

As long ago as Kring v. Missouri, 107 U.S, 221, 235

(1882), this Court stated the proscription upon ex post

facto prosecution thus:

ll

No one can be criminally punished in this coun-

try, except according to a law prescribed for his

government by the sovereign authority before the im-

puted offense was committed. and which existed as

a law at the time,

And as recently as Boule v. Columbia, 378 U.S, 347

(1964), this Court undertook a detailed review of the ex

post facto doctrine as it relates to vague legislation, striking

down the retroactive judicial construction of a state law.

Reasoning first that “judicial enlargement of a criminal

Act by interpretation is at war with a fundamental concept

of the common law that crimes must be defined with ap-

propriate definiteness,” and that vagueness in a law can-

not “be cured in a given case by a construction in that

very case placing valid limits on a statute,” the Court re-

asserted that the “required criminal law must have existed

when the conduct in issue occurred”, 378 U.S, at 352-354,

The amendment provided a new answer to the question

raised: Was the “payment” a “contribution” in 1970? In-

evitably the grand jury would answer affirmatively under

the 1972 amendment; but under the proper §591 provi-

sions, we submit, the answer would be in the negative, or

very much in doubt.

That doubt infected these entire proceedings, but Pe-

titioner was denied the benefit of the interpretation to which

he is constitutionally entitled. in the grand jury, the trial

court, and the court of appeals,

It is perhaps significant that until the present case there

were no reported decisions construing §591 and §610 as

applied to receivers of contributions, doubtless because

there had been few or no previous prosecutions in that pre-

12

scription’s long history. And ironically the applicable statute

of limitations was reduced from five to three years effec-

tive only days after this indictment, doubtless in part at

least because of congressional uncertainty as to the Taft-

Hartley Act’s interpretation.

In these extraordinary circumstances the Petitioner was

entitled to but was denied a resolution of the statute's

ambiguity in his favor; the Government enjoyed the bene-

fit of each doubt without being required even to establish,

as it surely could have, which law it had used for its ac-

cusation, The question is important and this Court's re-

view is appropriate because of the danger that the decision

below may presage a weakening of safeguards against ex

post facto prosecutions.

ll, The Vagueness of the Statutes

The courts below construed the indictment as describ-

ing a “gift,” (despite the indictment’s failure to use that

term, and despite the indictment’s use of the word “pay-

ment” which in 1970 described an expenditure), and thus

side-stepped the central issue of the statute’s facial vague-

ness.

We may demonstrate that fatal vagueness by setting these

statutes forth, and asking: What is a “contribution” as op-

posed to an “expenditure”? And under which term falls

the payment of a campaign's bills by a third party?

The operative language of 610 provides:

It is unlawful . . . for any corporation whatever . . .

to make a contribution or expenditure in connection

with any [federal] election . . . or for any . . . per-

gon to accept or receive any contribution... .

13

Section 591 in its applicable form read:

When used in [section 610}—

The term “contribution” includes a gift, subscrip-

tion, loan, advance, or deposit, of money, or anything

of value, and includes a contract, promise, or agree-

ment to make a contribution, whether or not legally

enforceable;

The term “expenditure” includes a payment, dis-

tribution, loan, advance, deposit, or gift, of money,

or anything of value, and includes a contract, prom-

ise, or em to make an expenditure, whether or

not legally enforceable,

Can 4 potential receiver, of common intelligence, be ex-

pected to determine from this language that payment of a

campaign bill by a third party is a “gift, subscription, loan,

advance, or deposit” within the definition of contribution,

and not a “payment” or “distribution” within the defini-

tion of expenditure? Or would reasonable men be re-

quired to guess and expected to differ on the question?

Since all the reported decisions involve prosecutions of

donors, and it is a crime to make either a contribution or

expenditure, no court has analyzed the distinction where

a donee is charged.

The Tillman Act of 1907, followed by the Corrupt

Practices Act of 1925, prohibited the giving and receiving

of corporate contributions. The Taft-Hartley Act of 1947

added a prohibition on the making (but not the receiving)

of expenditures, (See Appendix for texts.)

The Taft-Hartley Act was promptly reviewed in United

States v. C.1.0., 335 U.S, 106 (1948), involving a un‘on

publication alleged to be an unlawful “expenditure”. The

Court summarized as follows the legis!ative intention for

adding “expenditure” to “contribution” in the Act:

14

When Congress began to consider the Labor

Management Relations Act of 1947 it had as a guide

the 1944 presidential election, an election which had

been conducted under the above amendment to the

Act of 1925. In analyzing the experience of that elec-

tion, a serious defect was found in the wording of the

Act of 1925, The difficulty was that the word “con-

tribution” was read narrowly by various special

congressional committees investigating the 1944 and

1946 campaigns. The concept of “contribution” was

thought to be confined to direct gifts or direct pay-

ments, Since it was obvious that the statute as con-

strued could easily be circumvented through indirect

contributions, $304 extended the prohibition of §313

to “expenditures”, 335 U.S. at 115 (emphasis sup-

plied).

Thus the C./.O0. decision settled that “expenditures” are

indirect payments which were not included in the defini-

tion of “contributions”. The Court declined to pass upon

the Constitutional question. Significantly, however, five

Justices discussed the Constitutional defects of the statute,

four outright declaring its unconsitutionality:

The crucial words are “expenditure” and “in connec-

tion with”, Literally they cover any expenditure what-

ever relating at any rate to a pending election, and

possibly to prospective elections or elections already

held. The broad dictionary meaning of the word “ex-

penditure” takes added color from its context with

“contribution”, The legislative history is clear that it

was added by the 1947 amendment expressly to cover

situations not previously included within the accepted

legislative interpretation of “contribution”. (Footnote

omitted.) The coloration added is therefore not re-

strictive: it is expansive.

15

A statute which, in the claimed interest of free and

honest elections, curtails the very freedom that makes

possible exercise of the franchise by an informed and

thinking electorate, and does this by indiscriminate

blanketing of every expenditure made in connection

with an election, serving as a prior restraint upon ex-

ression not in fact forbidden as well as upon what

8, cannot be squared with the First Amendment. 335

U.S. at 133, 155.

But for the exercise of judicial restraint by the majority of

five Justices it seems clear the statute would have perished

as early as 1948; even the majority acknowledged thai if

the Defendant’s conduct were covered by the statute “the

gravest doubt would arise in our minds as to its constitu-

tionality”. 335 U.S. at 121.

This is reaffirmed in United States v. Auto Workers, 352

U.S. 567 (1957), where the union was charged with paying

for television broadcasts favoring certain candidates. The

District Court had dismissed the indictment, saying the

payments were not within the statute, but the Supreme

Court reversed. Noting the findings of the Senate's Special

Committee on Campaign Expenditures, whose investiga-

tion of the 1944 elections led to the Taft Hartley Act, the

Court observed:

The Committee found “no clear-cut violation of the

Corrupt Practices Act on the part of the Political

Action Committee” on the ground that it had made

direct contributions only to candidates and political

committees involved in state and local elections and

federal primaries, to which the Act did not apply,

and had limited its participation in federal elections

to political “expenditures,” as distinguished from

“contributions” to candidates or committees. S.Rep.

16

No. 101, 79th Cong., Ist Sess. 23. 352 U.S. at 580.

As indicated by the reports of the Congressional

Committees that investigated campaign expenditures,

it was to embrace precisely the kind of indirect con-

tribution alleged in the indictment that Congress

amended §313 to proscribe “expenditures” . . . . 352

U.S. at 585 (emphasis supplied).

A payment of the same sort by a corporation was held

an “expenditure” in United States v. Lewis Food Company,

366 F. 2d 710 (9th Cir. 1966). Compare United States

v. Anchorage Cent. Labor Council, 193 F. Supp. 504 (D.C

Alaska 1961) finding union broadcasts not within the

statutes. And in United States v. Painters Local Union No.

481, 172 F. 2d 854 (2nd Cir. 1949), the Court sua sponte

found a union’s payment for broadcasts not within the

statute (and thereby avoided the Constitutional issues,

which it acknowledged were very real).

In Pipefitters v. United States, 407 U.S. 385 (1972),

this Court added a further gloss upon the scope of §610

as applied to expenditures by unions, but avoided the ul-

timate constitutional questions. See United States v. First

Nat. Bank, 329 F. Supp. 1251 (D.C. Ohio, 1971), and

compare United States v. Boyle, 482 F. 2d 755, 763-764

(C.A.D.C. 1973), where an attack on the constitutionality

of $610 was rejected, but this Court denied certiorari. 414

US. 1076.

Since those decisions this Court has handed down Dom-

browski v. Pfister, 380 U.S. 479 (1965), Gooding v. Wil-

son, 405 U.S. 518 (1972), and Coates v. Cincinnati, 402

U.S. 611 (1971), striking down legislation as unconstitu-

17

tionally vague even though the defendants’ conduct was not

protected. In Coates the Court said:

Although a statute may be neither vague, over-

broad, nor otherwise invalid, as applied to the con-

duct charged against a particular defendant, he is

permitted to raise its vagueness or unconstitutional

overbreadth as applied to others. And if the law is

found deficient in one of these respects, it may not be

applied to him either, until and unless a satisfactory

limiting construction is placed om the statute. The

statute, in effect, is stricken down on its face. This re-

sult is deemed justified since the otherwise continued

existence of the statute in unnarrowed form would

tend to suppress constitutionally protected rights. 402

U.S. at 619-620.

The versions of $$610 and 591 in question here enjoyed

very precarious Constitutional health and would surely

have expired under application of the Coates principle.

Whether the very stringent criteria for statutes affecting

speech are invoked, however, or the Constitutional desid-

erata of all penal legislation, it cannot be said that the

provisions under which Petitioner was convicted have the

required certainty.

The cases involving indirect payments similar to the

AMPI payments describe them as “expenditures”, and that

is the only fair construction, the Constitutionally required

construction here. For if doubt remains, any ambiguity in

penal legislation must be resolved in favor of the accused,

Rewis v. United States, 401 U.S. 808, 812 (1971).

As Chief Justice Marshall said in U/nited States v. Wilt-

berger, 5 Wheat. 76, 96 (1820):

18

To determine that a case is within the intention of a

Statute, its language just authorize us to say so. It

would be dangerous, indeed, to carry the principle,

that a case which is within the reason or mischief of

a statute, is within its provisions, so far as to punish

a crime not enumerated in the statute, because it is

of equal atrocity, or of kindred character, with those

which are enumerated.

And the Second Circuit court itself in United States v.

Posnjok, 457 F. 2d 1110, 1118 (2nd Cir. 1972), invoked

the “well-established principle that criminal statutes are to

be narrowly rather than expansively construed.” and noted

that:

Judicial “revision” or “expansion” of criminal statutes

may lead to problems of vagueness under the due proc-

ess clause, for the statute on its face may not adequate-

ly warn individuals of what it proscribed. 457 F. 2d

at 1118, note 9.

Similarly in United States v. Canton, 470 F. 2d 861 (2nd

Cir. 1972) the Court observed:

if there were any doubt or any conflict in interpre-

tation of the statutes, it must be resolved in favor of

the appellant. 470 F. 2d at 865.

The question is important not only because of the gen-

eral principles of certainty in penal legislation, nor only

because of the heightened dangers of vagueness in areas of

protected speech; it is all the more important because this

is a period in our history of great change in the area of

political campaign regulation. See Buckley v. Valeo, —

U.S.—, Nos. 75-436, 75-437, January 30, 1976.

19

This Court's guidance is necessary to help preserve both

the integrity of the political process, and the rights of in-

dividuals who must suit their actions to the dictates of

campaign legislation. The Constitutionality of 18 U.S.C.

§§591 and 610 is an important question which this Court

has not decided, but should decide.

lll. The Venue Question

The decision below finding venue established in New

York is in conflict with this Court’s decisions construing

the Constitutional venue provision. In Johnson v. United

States, 323 U.S. 273 (1944), Mr. Justice Frankfurter re-

viewed the commands of Article 3 §2, clause 3, and the

Sixth Amendment and observed:

Questions of venue in criminal cases, therefore, are

not merely matters of formal legal procedure. They

raise deep issues of public policy in the light of which

legislation must be construed If an enactment of Con-

gress equally permits the underlying spirit of the Con-

stitutional concern for trial in the vicinage to be re-

spected rather than to be disrespected, construction

should go in the direction of constitutional policy even

though not commanded by it. 322 U.S. at 275-276.

See also United States v. Anderson, 378 U.S. 699 (1945),

and, more recently, after enactment of 18 U.S.C. 3237 pro-

viding for trial in more than one district in certain circum-

stances, United States v. Cores, 356 U.S. 405 (1958), where

the Court noted that in the absence of a snecific statutory

provision the determination of venue must be based upon

the nature of the crime alleged and the location of

the act or acts constituting it. 356 U.S. at 408.

20

And see Travis v. United States, 364 U.S. 631 (1961).

The present case is unusual in that neither aiding and

abetting nor conspiracy was charged, but rather causing,

and it is essential to focus upon Petitioner’s conduct and the

nature of the alleged offense to determine the venue, since

no guilty principal’s act supplies it.

The lower court’s focus on deposit of checks was mis-

placed. Under §591 a contribution “includes a contract,

promise, or agreement to make a contribution, whether or

not legally enforceable.” Agreement that AMPI would pay

and L&N would receive payment was made outside New

York and the offense (if any) was compicte long before the

checks reached New York.

And so the court’s reliance upon Burton v. United

States, 196 U.S. 283 (1905), with its focus upon deposit of

checks was misplaced. More apposite is a subsequent de-

cision involving the same defendant: Burton v. United

States, 202 U.S. 344, 381-389 (1906). Burton, a Senator,

agreed to represent 2 company in a matter in which the

United States had an interest, contrary to a statute for-

bidding Senators to “receive or agree t> receive” compen-

sation for such services. The agreement was effected by

mail, the company being in St. Louis, Burton elsewhere.

The Court held: “The agreement between the parties was

completed at the time of the acceptance of the defendant's

offer at St. Louis . . . then the offense was committed, and

it was committed at St. Louis... .” 202 U.S. at 388.

Finally, if the payment were a “gift” as the court below

reasoned, it could have been a “gift” only to the Hum-

phrey campaign and not to L&N, to whom it was merely

payment for services rendered; by no stretch of imagina-

tion or statutory language can it be said that L&N received

21

a “gift” from either AMPI or the Humphrey campaign when

the checks were deposited in New York. The finding that

the payment was a gift is irreconcilable with his ruling that

the offense was committed in New York.

The evidence is uncontradicted that Petitioner made an

agreement in Minnesota; if he caused L&N to accept

them, if he mailed the checks or handed them to an L&N

employee, it was in Minnesota and, at the very latest the

offense was complete at that point. The offense is mani-

festly not a continuing one. The provisions of §610 are

designed to prevent influence upon a political candidate;

here neither the candidate or AMPI was in New York;

only L&N’s bank account even brought mention oi New

York into the trial. Therefore whether the offense is viewed

as the agreement, the causation, or the receipt of checks

the evidence failed to establish that it occurred in New

York.

This question, too, is important; it goes to the crux of

the Constitutional venue provisions and the opinion below

is in derogation of the important considerations under-

lying those provisions. Petitioner respectfully suggests that

this Court should review the two Burton opinions and its

later decisions, and resolve the uncertainty which now ex-

ists and which led to the opinion below.

22

CONCLUSION

For these reasons, it is respecttully submitted that the

petition for a writ of certiorari should be granted.

Jack S. Nordby

Douglas W. Thomson

THOMSON, WYLDE & NORDBY

Suite 1530

55 East Fifth Street

St. Paul, Minnesota 55101

John Cochrane

COCHRANE & BRFSNAHAN

Suite 500

360 Wabasha

St. Paul, Minnesota 55102

Counsel for Petitioner

Dated this 28th day of May, 1976,

ee

A-l

APPENDIX

I STATUTES AND RULE INVOLVED:

Tillman Act 1907;

It shall be unlawful for any national bank, or any cor-

poration organized by authority of any law of Congress,

to make a money contribution in connection with any elec-

tion to any political office. It shall also be unlawful for

any corporation whatever to make a money contribution in

connection with any election at which Presidential and Vice-

Presidential electors or a Representative in Congress is to

be voted for, or any election by any State legislature of a

United States Senator, Every corporation which shall make

any contribution in violation of the foregoing provisions

Shall be fined not more than five thousand dollars; and

every officer or director of any corporation who shall con-

sent to any contribution by the corporation in violation of

the foregoing provisions shall be fined not more than one

thousand dollars, or imprisioned not more than one year,

or both. (Jan, 26, 1907, c, 420,34 Stat, 864) (renumbered

in Criminal Code Act, March 4, 1909, c, 321 § 8&3, 35

Stat. 1103) (repealed by Corrupt Practices Act, Feb, 28,

1925, infra)

Federal Corrupt Practices Act of 1925.

2 U.S.C, Section 241, Definitions, When used in this Chap-

ter—

(a) The term “election” includes a general or special

election, and, in the case of a Resident Commissioner from

the Phillippine Islands, an election by the Phillippine Legis-

lature, but does not include a primary election or conven-

tion of a political party;

A-2

(b) The term “candidate” means an individual whose

name is presented at an election for election as Senator or

Representative in, or Delegate or Resident Commissioner

to, the Congress of the United States, whether or not such

individual is elected;

(c) The term “political committee” includes any com-

mittee, association, or organization which accepts contri-

butions or makes expenditures for the purposes of influ-

encing or attempting to influence the election of candidates

or presidential and vice presidential electors (1) in two or

more States, or (2) whether or not in more than one State

if such committee, association, or organization (other than

a duly organized State or local committee of a political par-

ty) is a branch or subsidiary of a national committee, as-

sociation, or organization;

(d, The term “contribution” includes a gift, subscrip-

tion, loan, advance, or deposit, of money, or anything of

value, and includes a contract, promise, or agreement,

whether or not legally enforceable to make a contribution;

(e) The term “expenditure” includes a payment, dis-

tribution, loan, advance deposit, or gift, of money, or any

thing of value, and includes a contract, promise, or agree-

ment, whether or not legally enforceable, to make an ex-

penditure;

(f) The term “person” includes an individual, partner-

ship, committee, association, corporation, and any other or-

ganization or group of persons;

(g) The term “Clerk” means the Clerk of the House of

Representatives of the United States;

(h) The term “Secretary” means the Secretary of the

Senate of the United States;

A-3

(i) The term “State” includes Territory and possession

of the United States, (June 25, 1910, c. 392 §§ 1, 8, 36

Stat. 822"; Aug. 19, 1911, c. 33 § 2, 37 Stat. 26; Aug.

23, 1912, c, 349,37 Stat. 360; Feb, 28, 1925, c, 368, Title

III, § 302, 43 Stat. 1070.) (Repealed and superceded

Pub, L, 92-225, Title IV, § 405, Feb. 7, 1972, 86 Stat.

20 see 2 U.S.C, § 431, Pub. L. 92-225, Title III, § 301,

Feb, 7, 1972, 86 Stat. 11.)

2 U.S.C. §251. Contributions by national banks or other

Federal corporations; penalty. It is unlawful for any na-

tional bank, or any corporation organized by authority of

any law of Congress, to make a contribution in connec-

tion with any election to any political office, or for any

corporation whatever to make a contribution in connec-

tion with any election at which presidential and vice presi-

dential electors or a Senator or Representative in, or a

Delegate or Resident Commissioner to, Congress are to be

voted for, or for any candidate political committee, or other

person to accept or receive any contribution prohibited by

this section. Every corporation which makes any contribu-

tion in violation of this section shall be fined not more

than $5,000; and every officer or director of any corpora-

tion who consents to any contribution by the corporation in

violation of this section shall be fined not more than

$1,000, or imprisoned not more than one year, or both,

(Jan, 26, 1907, c, 420, 34 Stat. 864; Mar, 4, 1909, ¢, 321

§ 83, 35 Stat. 1103; Feb. 28, 1925, c. 368, Title ITI,

§ 313, 43 Stat. 1074.) (Repealed and superceded by Taft

Hartley Act, supra, June 25, 1948, c, 645 § 21, 62 Stat.

862)

Taft-Hartley Act of 1948 as amended; this is the act ap-

plicable to this case:

*", 824" should be added.

i rn ee meee

A-4

18 U.S.C. § 591. Definitions, When used in sections

597, 599, 602, 609 and 610 of this title—

The term “election” includes a general or special elec-

tion, but does not include a primary election or conven-

tion of a political party;

The term “candidate” means an individual whose name

is presented for election as Senator or Representative in, or

Delegate or Resident Commissioner to, the Congress of the

United States, whether or not such individual is elected;

The term “political committee” includes any committee,

association, or organization which accepts contributions or

makes expenditures for the purpose of influencing or at-

tempting to influence the election of candidates or presi-

dential and vice presidential electors (1) in two or more

States, or (2) whether or not in more than one state if such

committee, association, or organization (other than a duly

organized State or local committee of a political party) is

a branch or subsidiary of a national committee, association,

or organization;

The term “contribution” includes a gift, subscription,

loan, advance, or deposit, of money, or anything of value,

and includes a contract, promise, or agreement to make a

contribution, whether or not legally enforceable;

The term “expenditure” includes a payment, distribu-

tion, loan, advance, deposit, or gift, of money, or anything

of value, and includes a contract, promise, or agreement to

make an expenditure, whether or not legally enforceable;

The term “person” or the term “whoever” includes an

individual, partnership, committee, association, corpora-

tion, and any other organization or group of persons;

The term “State” includes Territory and possession of

the United States. June 25, 1948, c. 645, 62 Stat. 719;

May 24, 1949, c, 139 § 9, 63 Stat. 90.

A-5

18 U.S.C. § 608. Limitations on political contributions

and purchases

(a) Whoever, directly or indirectly, makes contribu-

tions in an aggregate amount in excess of $5,000 during

any calendar year, or in connection with any campaign for

nomination or election, to or on behalf of any candidate for

an elective Federal office, including the offices of President

of the United States and Presidential and Vice Presiden-

tial electors, or to or on behalf of any committee or other

organization engaged in furthering, advancing, or advocat-

ing the nomination or election of any candidate for any

such office or the success of any national political party,

shall be fined not more than $5,000 or imprisoned not

more than five years, or both.

This subsection shall] not apply to contributions made

to or by a State or local committee or other State or local

organization or to similar committees or organizations in

the District of Columbia or in any Territory or Possession

of the United States.

(b) Whoever purchases or buys any goods, commodi-

ties, advertising, or articles of any kind or description, the

proceeds of which, or any portion thereof, directly or in-

directly inures to the benefit of or for any candidate for an

elective Federal office including the offices of President

of the United States, and Presidential and Vice Presiden-

tial electors or any political committee or other political

organization engaged in furthering, advancing, or advocat-

ing the nomination or election of any candidate for any

such office or the success of any national political party,

shall be fined not more than $5,000 or imprisoned not

more than five years, or both,

A-6

This subsection shal] not interfere with the usual and

known business, trade, or profession of any candidate.

(c) In all cases of violations of this section by a part-

nership, committee, association, corporation, or other or-

ganization or group of persons, the officers, directors, or

managing heads thereof who knowingly and willfully par-

ticipate in such violation, shall be punished as herein pro-

vided,

(d) The term “contribution”, as used in this section,

shall have the same meaning prescribed by section 591 of

this title. June 25, 1948, c. 645, 62 Stat. 723.

18 U.S.C. § 610. Contributions or expenditures by na-

tional banks, corporations or labor organizations

It is unlawful for any national bank, or any corporation

organized by authority if any law of Congress, to make

a contribution or expenditure in connection with any elec-

tion to any political office, or in connection with any pri-

mary election or political convention or caucus held to

select candidates for any political office, or for any cor-

poration whatever, or any labor organization to make a

contribution or expenditure in connection with any election

at which Presidential and Vice Presidential electors or a

Senator or Representative in, or a Delegate or Resident

Commissioner to Congrtess are to be voted for, or in con-

nection with any primary election or political convention

or caucus held to select candidates for any of the foregoing

offices, or for any candidate, political committee, or other

person to accept or receive any contribution prohibited by

this section.

A-7

Every corporation or labor organization which makes

any contribution or expenditure in violation of this sec-

tion shall be fined not more than $5,000; and every of-

ficer or director of any corporation, or officer of any labor

organization, who consents to any contribution or expen-

diture by the corporation or labor organization, as the

case may be, and any person who accepts or receives any

contribution, in violation of this section, shall be fined not

more than $1,000 or imprisoned not more than one year,

or both; and if the violation was willful, shall be fined not

more than $10,000 or imprisoned not more than two years,

or both.

For the purposes of this section “labor organization”

means any organization of any kind, or any agency or em-

ployee representation committee or plan, in which em-

ployees participate and which exist for the purpose, in

whole or in part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay, hours of

employment, or conditions of work, June 25, 1948. c. 645,

62 Stat. 723; May 24, 1949, c. 139, § 10, 63 Stat. 90;

Oct, 31, 1951, c. 655 § 20 (c), 65 Stat. 718.

Federal Election Campaign Act of 1971; this is the statute

attached to the indictment:

1/8 U.S.C. § 610. Contributions or expenditures by na-

tional banks, corporations or labor organizations.

It is unlawful for any national bank, or any corporation

organized by authority of any law of Congress, to make a

contribution or expenditure in connection wiih any elec-

tion to any political office, or in connection with any pri-

mary election or political convention or caucus held to

A-8

select candidates for any political office, or for any cor-

poration whatever, or any labor organization to make a

contribution or expenditure in connection with any elec-

tion at which Presidential and Vice Presidential electors

or a Senator or Representative in, or a Delegate or Resi-

dent Commissioner to Congress are to be voted for, or in

connection with any primary election or political conven-

tion or caucus held to select candidates for any of the fore-

going offices, or for any candidate, political committee, or

other person to accept or receive any contribution prohib-

ited by this section.

Every corporation or labor organization which makes

any contribution or expenditure in violation of this section

shall be fined not more than $5,000; and every officer or

director of any corporation, or officer of any labor organi-

zation, who consents to any contribution or expenditure by

the corporation or labor organization, as the case may be,

and any person who accepts or receives any contribution,

in violation of this section, shall be fined not more than

$1000 or imprisoned not more than one year, or both; and

if the violation was willful, shall be fined not more than

$10,000 or imprisoned not more than two years, or both.

For the purposes of this section “labor organization”

means any organization of any kind, or any agency or em-

ployee representation committee or plan, in which em-

ployees participate and which exist for the purpose, in

whole or in part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay, hours of

employment, or conditions of work.

As used in this section, the phrase “contribution or ex-

penditure” shall include any direct or indirect payment,

distribution, loan. advance, deposit. or gift of money. or

A-9

any services, or anything of value (except a loan of money

by a national or State bank made in accordance with the

applicable banking laws and regulations and in the ordi-

nary course of business) to any candidate, campaign com-

mittee, or political party or organization, in connection with

any election to any of the offices referred to in this section;

but shall not include communications by a corporation to

its stockholders and their families or by a labor organiza-

tion to its members and their families on any subject; non-

partisan registration and get-out-the-vote campaigns by

a corporation aimed at its stockholders and their families,

or by a labor organization aimed at its members and their

families; the establishment, administration, and solicita-

tion of contributions to a separate segregated fund to be

utilized for political purposes by a corporation or labor

organization: Provided, That it shall be unlawful for such

a fund to make a contribution or expenditure by utilizing

money or anything of value secured by physical force, job

discrimination, financial reprisals, or the threat of force,

job discrimination, or financial reprisal; or by dues, fees,

or other monies required as a condition of membership in

a labor organization or as a condition of employment, or

by monies obtained in any commercial transaction.

As amended Feb. 7, 1972, Pub. L. 92-225, Title II,

§ 205.86 Stat. 10.

18 U.S.C. § 591. Definitions

When used in sections 597, 599, 600, 602, 608, 610,

and 611 of this titl—

(a) “election” means (1) a general, special, primary,

or runoff election, (2) a convention or caucus of a political

party held to non: nate a candidate, (3) a primary election

A-10

held for the selection of delegates to a national nominating

convention of a political party, (4) a primary election held

for the expression of a preference for the nomination of

persons for election to the office of President, and (5) the

election of delegates to a constitutional convention for pro-

posing amendments to the Constitution of the United

States;

(b) “candidate” means an individual who seeks nomi-

nation for election, or election, to Federal office, whether

or not such individual is elected, and, for purposes of this

paragraph, an individual shall be deemed to seek nomina-

tion for election, or election, to Federal office, if he has

(1) taken the action necessary under the law of a State to

qualify himself for nomination for election, or election, or

(2) received contributions or made expenditures, or has

given his consent for any other person to receive contribu-

tions or make expenditures, with a view to bringing about

his nomination for election, or election, to such office:

(c) “Federal office” means the office of President or

Vice President of the United States, or Senator or Repre- .

sentative in or Delegate or Resident Commissioner to, the

Congress of the United States;

(d) “political committee” means any individual, com-

mittee, association, or organization which accepts contri-

butions or makes expenditures during a calendar year in

an aggregate amount exceeding $1,000;

(e) “contribution” means—

(1) a gift, subscription, loan, advance, or deposit

of money or anything of value (except a loan of money

by a national or State bank made in accordance with

A-11

the applicable banking laws and regulations and in

the ordinary course of business), made for the pur-

pose of influencing the nomination for election, or

election, of any person to Federal office, for the pur-

pose of influencing the results of a primary heid for

the selection of delegates to a national nominating

convention of a political party or for the expression

of a preference for the nomination of persons for elec-

tion to the office of President, or for the purpose of

influencing the election of delegates to a constitutior

al convention for proposing amendments to the Con-

stitution of the United States;

(2) a contract, promise, or agreement, express or

implied, whether or not legally enforceable, to make

a contribution for such purposes;

(3) a transfer of funds between political commit-

tees;

(4) the payment, by any person other than a can-

didate or political committee, of compensation for the

personal services of another person which are ren-

dered to such candidate or political committee with-

out charge for any such purpose; and

(5) notwithstanding for foregoing meanings of

“contribution”, the word shall not be construed to

include services provided without compensation by

individuals volunteering a portion or all of their time

on behalf of a candidate or political committee;

(f) “expenditure” means—

(1) a purchase, payment, distribution, loan, ad-

vance, deposit, or gift of money or anything of value

A-12

(except a loan of money by a national or State bank

made in accordance with the applicable banking laws

and regulations and in the ordinary course of busi-

mess), made for the purpose of influencing the nomi-

nation for election, or election, of any person to Fed-

eral office, for the purpose of influencing the result

of a primary held for the selection of delegates to a

national nominating convention of a political party

or for the expression of a preference for the nomina-

tion of persons for election to the office of President,

or for the purpose of influencing the election of dele-

gates to a constitutional convention for proposing

amendments to the Constitution of the United States;

(2) a contract, promise, or agreement, express or

implied, whether or not legally enforceable, to make

any expenditure; and

(3) a transfer of funds between political commit-

tees;

(g) “person” and “whoever” mean an individual, part-

nership, committce, association, corporation, or any other

organization or group of persons; and

(h) “State” means each State of the United States. the

District of Columbia, the Commonwealth of Puerto Rico.

and any territory or possession of the United States.

As amended Sept. 22, 1970, Pub. L. 91-405, Title II,

§ 204(d) (4), 84 Stat. 853; Feb. 7, 1972, Pub. L. 92-

225, Title If $201, 86 Stat. 8.

Federal Election Campaign Act Amendments of 1974;

See Pub. L. 93-443, Title I, §§ 101 (f) (2), 102, 88 Stat.

1268, 1269 for amendments to § 591; Title I, § 101 (a),

A-13

(b), 88 Stat. 1263, 1266, for amendments to § 608; Title

I, § 101 (e) (1), 88 Stat. 1267, for amendments to § 610.

2 U.S.C. § 455. Period of limitations—Three year period

(a) No person shall be prosecuted, tried, or punished

for any violation of subchapter I of this chapter or of sec-

tion 608, 610, 611, 613, 614, 615, 616, or 617 of Title

18, unless the indictment is found or the information is in-

stituted within 3 years after the date of the violation.

Effective date; acts or omissions, legality; pending pro-

ceedings

(b) Notwithstanding any other provision of law—

(1) the period of limitations referred to in sub-

section (a) of this section shall apply with respect to

violations referred to in such subsection committed

before, on, or after the effective date of this section;

and

(2) no criminal p-oceeding shall he instructed

against any person for any act or omission which

was a violation of any provision of subchapter I of

this chapter, or section 608, 610, 611, or 613 of Title

18, as in effect on December 31, 1974, if such act or

omission does not constitute a violation of any such

provision, as amended by the Federal Election Cam-

paign Act Amendments of 1974.

Nothing in this subsection shall affect any proceeding

pending in any court of the United States on the effective

date of this section.

Pub. L. 92-225, Title IV, § 406, as added Pub. L. 93-

443, Title III, § 302, Oct. 15, 1974, 88 Stat. 1289.

A-14

18 U.S.C. § 2, Principals

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or pro-

cures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an of-

fense against the United States, is punishable as a princi-

pal. As amended Oct. 31, 1951, c. 655 § 17b, 65 Stat. 717.

18 U.S.C. § 3237. Offenses begun in one district and

completed in another

(a) Except as otherwise expressly provided by enact-

ment of Congress, any offense against the United States

begun in one district and completed in another, or com-

mitted in more than one district, may be inquired of and

prosecuted in any district in which such offense was be-

gun, continued, or completed.

Any offense involving the use of the mails, or transpor-

tation in interstate or foreign commerce, is a continuing of-

fense and, except as otherwise expressly provided by en-

actment of Congress, may be inquired of and prosecuted

in any district from, through, or into which such commerce

or mail matter moves.

(b) Notwithstanding subsection (a), where an offense

is described in section 7203 of the Internal Revenue Code

of 1954, or where an offense involves use of the mails and

is an offense described in section 7201 or 7206(1), (2), or

(5) of such Code (whether or not the offense is also de-

scribed in another provision of law), and prosecution is

begun in a judicial district other than the judicial district

in which the defendant resides, he may upon motion filed

A-15

in the district in which the prosecution is begun, elect to be

tried in the district in which he was residing at the time

the alleged offense was committed: Provided, That the

motion is filed within twenty days after arraignment of

the defendant upon indictment or information.

June 25, 1948, c. 645, 62 Stat. 826; Aug. 6, 1958, Pub.

L. 85-595, 72 Stat. 512; Nov. 2, 1966, Pub. L. 89- 713, §

2, 80 Stat. 1108.

Federal Rules of Criminal Procedure, Rule 18

PLACE OF PROSECUTION AND TRIAL

Except as otherwise permitted by statute or by these

rules, the prosecution shall be had in a district in which

the offense was committed. The cour: shall fix the place

of trial within the district with due regard to the conve-

nience of the defendant and the witnesses.

As amended Feb. 28, 1966, eff. July 1, 1966.

A-16

II OPINIONS BELOW:

UNITED STATES of AMERICA

Vv.

JACK L. CHESTNUT,

Deiendant.

No. 74 Cr. 1191.

United States District Court,

S. D. New York.

April 8, 1975.

Manager of United States Senator’s election campaign

who was charged with wilfully and knowingly accepting an

illegal corporate contribution to the senator’s 1970 cam-

paign moved to dismiss indictment against him on grounds

that it violated ex post facto clause, failed to state an of-

fense, and that statutes in force in 1970 were unconstitu-

tionally vague. The District Court, Edward Weinfeld, J.,

held that the indictment returned against defendant in De-

cember 1974 did not violate ex post facto clause by charg-

ing defendant with offense in 1970 based upon 1972

amendments to campaign contributions statute; that indict-

ment which charged defendant with arranging to have

corporation pay Senator’s advertising firm $12,000 for one

month’s services rendered to Senator’s campaign was suffi-

cient to charge offense under law of principals where de-

fendant was personally prevented from accepting such con-

tributions; that corporate campaign contributions statute

was not unconstitutionally vague; and that corporate cam-

A-17

paign statute did not violate First Amendment when ex-

amined in light of its legitimate purposes.

Motion denied.

1. Constitutional Law (Key) 200

Fact that citation at end of indictment which was re-

turned in December 1974 charging defendant with viola-

tions of corporate campaign statute contained no reference

to the official statutes at large or any indication that in-

dictment was grounded upon the 1970 version as opposed

to the 1972 amended statute did not establish that indict-

ment violated ex post facto clause since allegations which

established that offense took place in 1970 rather than

statutory citation governed validity of indictment. 18

U.S.C.A. §§ 2, 591, 610; U.S.C.A. Const. art. 1, §

9, cl. 3; Fed.Rules Crim.Proc. rule 7(c), 18 U.S.C.A.

2. Indictment and Information (Key) 108

The statute on which an indictment is founded must be

determined as a matter of law from the facts pleaded there-

in.

3. Constitutional Law (Key) 200

Fact that indictment described an alleged “indirect pay-

ment” in 1970 from a corporation to Senator’s campaign

which defendant managed did not mean that indictment

violated ex post facto clause by using 1972 version of cor-

porate campaign contribution law prohibiting “indirect

payments” where allegations spelling out the payment were

used to describe details by which defendant allegedly en-

A-18

gaged in artifice or subterfuge to conceal receipt of illegal

contribution. 18 U.S.C.S. §§ 2, 591, 610; U.S.C.A.Const.

art. 1, § 9, cl. 3.

4. Indictment and Information (Key) 108

Fact that copy of 1972 version of statute was attached

to press release upon return of indictment in 1974 alleging

1970 violation of corporate campaign statute was imma-

terial where charges were embraced within statute in force

at time of alleged commission. 18 U.S.C.A. §§ 2, 591, 610.

5. Elections (Key) 317

The insertion in corporate campaign statute of definition

of the phrase “contribution or expenditure” to supplement

definitions of “contribution” and “expenditure” did not

make illegal conduct which had prior to 1972 amendments

been legal. 18 U.S.C.A. §§ 591, 610.

6. Elections (Key) 317

A corporation’s payment to Senator’s advertising firm

of $12,000 for one month’s services to Senator’s campaign

constituted a “contribution” to Senator’s campaign not-

withstanding contention that the term “contribution” as de-

fined in statute did not include the term “payment.” 18

U.S.C.A. §§ 591, 610.

See publication Words and Phrases for other judicial con-

structions and definitions.

7. Elections (Key) 317

The substance of a transaction and not its form controls

where the transaction constitutes an illegal campaign con-

tribution. 18 U.S.C.A. §§ 2, 591, 610.

A-19

8. Elections (Key) 328(1)

Indictment which alleged that United States Senator’s

campaign manager arranged payment by corporation of

$12,000 to Senator’s advertising firm in payment of one

month’s services to Senator’s campaign was sufficient to

state an offense against campaign manager for causing ad-

vertising firm to do that which, if done directly by him,

would have constituted acceptance of illegal corporate cam-

paign contribution. 18 U.S.C.A. §§ 2, 591, 610.

9. Criminal Law (Key) 13.1(1)

A criminal statute may be declared void for vagueness

if an individual cannot reasonably understand that his con-

templated conduct is forbidden.

10. Criminal Law (Key) 13.1(11)

Strict standards of definiteness must be applied to illegal

campaign contribution statutes because the free dissemina-

tion of ideas may be inhibited thereunder. 18 U.S.C.A. §§

591, 610; U.S.C.A.Const. Amend. 1.

11. Crininal Law (Key) 13.1(11)

Statutes prohibiting the acceptance of campaign con-

tributions from corporations or unions which contain spe-

cific prohibition against receipt or acceptance by any per-

son of union or corporate contributions were not so vague

that men of common intelligence must necessarily guess at

their meaning. 18 U.S.C.A. §§ 591, 610; U.S.C.A.Const.

Amend. 1.

12. Criminal Law (Key) 13.1(11)

Even if the outermost boundaries of the illegal corporate

campaign contribution statutes may be imprecise, any such

A-20

uncertainty had little relevance to defendant whose alleged

conduct fell squarely within the hard core of the statutes’

proscriptions. 18 U.S.C.A. §§ 591, 610; U.S.C.A.Const.

Amend. 1.

13. Constitutional Law (Key) 42.2(1)

Where First Amendment values are involved, the tradi-

tional rule of constitutional adjudication that one to whom

a statute may constitutionally be applied will not be heard

to challenge such statute on ground that it may be uncon-

Stitutional as applied to another does not apply. U.S.C.A.

Const. Amend. 1.

14. Criminal Law (Key) 13(1)

Where conduct and not merely speech is involved, a de-

fendant may not challenge the facial validity of the statute

unless the statute is “substantially overbroad.” U.S.C.A.

Const. Amend. 1.

15. Constitutional Law (Key) 90.1(1, 7)

Elections (Key) 31]

In determining the constitutionality of illegal corporate

campaign contribution statutes, the First Amendment

rights of corporations and labor unions must be weighed

against the substantial governmental interests in preserv-

ing the integrity of the electoral process, in preventing

corporate assets or general union dues to promote political

parties and candidates without the consent of stockholders

or union members with differing political views, and in

protecting individuals who may refuse to contribute to cam-

paign funds against reprisals; the need for such safeguards

A-21

is particularly acute in the labor field where labor union

membership can be condition of employment. 18 U.S.C.A.

§§ 591, 610; U.S.C.A.Const. Amend. 1.

16. Constitutional Law (Key) 90.11(1, 7)

Elections (Key) 311

The campaign contribution statutes which prohibit ac-

ceptance of contributions from corporations or labor unions

did not violate First Amendment rights of corporations

and labor unions when balanced against the legitimate gov-

ernmental interests involved and tested by the “least drastic

means” test. 18 U.S.C.A. §§ 591, 610; U.S.C.A.Const.

Amend. 1.

Paul J. Curran, U. S. Atty., for the Southern District of

New York, New York City, for United States of America;

Eugene F. Bannigan, Robert Gold, Asst. U. S. Attys., of

counsel.

Douglas W. Thomson, Jack S. Nordby, Thomson,

Wylde, Nordby & Friedberg, John A. Cochrane, Cochrane

& Bresnahan, Saint Paul, Minn., for Defendant.

OPINION

EDWARD WEINFELD, District Judge.

The defendant, Jack L. Chestnut, is under indictment

upon a charge that he willfully and knowingly accepted

and received and did cause another to accept and receive,

a corporate contribution to Hubert H. Humphrey’s 1970

senatorial campaign, in violation of 18 U.S.C., sections

610 and 2. He now moves to dismiss the indictment on

A-22

three grounds: (1) it violates the ex post facto clause of the

United States Constitution;’ (2) it fails to state an offense;

and (3) the statutes in force in 1970 at the time of the al-

leged offense, 18 U.S.C., sections 610 and 591, were un-

constitutional in that they were vague, overbroad and in

violation of the First Amendment.

THE INDICTMENT

The indictment charges that from February 1, 1970 to

November 3, 1970, within which period Hubert H. Hum-

phrey was a candidate for the nomination of the Democrat-

ic-Farmer-Labor party for the office of United States Sena-

tor from the State of Minnesota. and later its candidate for

that office, the defendant was Humphrey’s campaign man-

ager; that from on or about March 1, 1970 to on or about

June 25, 1970 the defendant willfully and knowingly ac-

cepted and received a contribution from a corporation,

American Milk Producers, Inc. (“AMPI”), on behalf of the

Humphrey campaign; that this was accomplished by the

defendant’s arranging with AMPI’s corporate officials that

AMPI would pay the advertising firm of Lennon & Newell,

Inc. (“L & N”) for one month’s services rendered by L & N

to the Humphrey campaign; that the defendant arranged

with an official of L & N that it would prepare invoices

addressed to AMPI for one month’s services rendered to

the Humphrey campaign; that the defendant forwarded and

caused to be forwarded these invoices to AMPI and fur-

ther that he forwarded and caused to be forwarded to L &

N two checks drawn on corporate accounts of AMPI, each

payable to L & N in the sum of $6,000, dated June 1 and

June 11, 1970, respectively.

tArt. I, § 9, cl. 3.

A-23

Against the background of the indictment’s charges we

consider each branch of his motion.

|

That the indictment violates the

ex post facto clause of the

United States Constitution.

Defendant’s claim is that the indictment is based upon

a statute not in existence at the time the acts charged in

the indictment occurred. At that time, the year 1970, the

statute read:

“It is unlawful for . . . any corporation . . . to make

a contribution or expenditure in connection with any

election at which .. . a Senator . . . [is] to be voted

for, or in connection with any primary election or poli-

tical convention or caucus held to select candidates

for .. . [such office], or for any candidate, political

committee, or other person to accept or receive any

contribution prohibited by this section.”

Thus, under the foregoing statute, it was unlawful for (1)

a corporation to make “a contribution or expenditure,” and

(2) any person to accept or receive a “contribution.” The

1970 version of section 610 contained no definition of

“contribution” or “expenditure.” These were defined in sec-

tion 591 of Title 18, as follows:

“The term ‘contribution’ includes a gift, subscrip-

tion, loan, advance, or deposit, of money, or any-

thing of value... .”

“The term ‘expenditure’ includes a payment, dis-

tribution, loan, advance, deposit, or gift, of money, or

anything of value... .”

A-24

The defendant, in support of his argument, observes that

“expenditure” is the broader term since it adds “payment”

and “distribution” to the words defining “contribution.”

In 1972 section 610 was amended by, inter alia, the in-

clusion of a definition of “contribution or expenditure”:

“As used in this section, the phrase ‘contribution or

expenditure’ shal] include any direct or indirect pay-

ment, distribution, loan, advance, deposit, or gift of

money, or any services, or anything of value... .””

At the same time section 591 was also amended as to the

definition of the terms “contribution” and “expenditure.”

Here the defendant notes that under the amendment “ex-

penditure” still remained the broader term, retaining the

words “payment” and “distribution” and adding the word

“purchase,” which is not included in the definition of “con-

tribution.” He acknowledges that the issues raised by his

argument are “technical and difficult.”

[/, 2] The indictment, as is customary, refers, at the

end of the charging allegations to the statute as follows:

“Title 18, United States Code, sections 610 and 2.” The

defendant first argues that since this citation of section

610 at the end of the indictment, which was returned in

December 1974, contains no reference to the official stat-

utes at large or any indication that the indictment was

grounded upon the 1970 version, therefore it was returned

by the grand jury under the amended 1972 statute, even

though the alleged violation occurred in 1970. However,

this argument disregards the allegations as pleaded in the

*As amended Feb. 7, 1972, Pub.L. 92-225, Title I], § 205, 86 Stat. 10.

386 Stat. 8.

A-25

indictment. It charges simply that in 1970 during the time

Humphrey was a senatorial candidate the defendant will-

fully and knowingly “did accept and receive . . . a corporate

contribution from AMPI on behalf of the aforesaid Hum-

phrey campaign ... .” The allegations of the indictment,

not the statutory citation’ determines its validity. As this

court stated on another occasion,° the statute on which an

indictment is founded must be determined as a matter of

law’ from the facts pleaded therein.

[3] The defendant advances other contentions to sup-

port his claim that in obtaining the indictment the prosecu-

tion and the grand jury proceeded under the statute now in

effect and not as it existed in 1970. Here, he argues that

the payment described in the indictment is an “indirect

payment” from AMPI to the Humphrey campaign, and

‘The defendant’s claim that there was error in the citation because it did

not specifically indicate a reference to the 1970 version is frivolous.

Even if the court agreed that it was error not to cite the specific 1970

version of section 610, Rule 7(c) of the Federal Rules of Criminal

Procedure provides that error in the citation shall not be a ground for

dismissal of the indictment if the error did not mislead the defendant

to his prejudice. The defendant is aware that the prosecution is ground-

ed on section 610, but alleges that it is not clear under which version

of the statute the indictment is brought. Since the disposition of this

motion resolves the issue in advance of trial, clearly he is not preju-

diced. United States v. Calabro, 467 F.2d 973, 981 (2d Cir. 1972),

cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973);

United States v. Galgano, 281 F.2d 908, 910-11 (2d Cir. 1960) cert.

denied sub nom., Carminati v. United States, 366 U.S. 960, 81 S.Ct.

1916, 6 L.Ed.2d 1253 and Galgano v. United States, 366 U.S. 967,

81 S.Ct. 1929, 6 L.Ed.2d 1257 (1961).

5United States v. Bethany, 489 F.2d 91, 93 (Sth Cir. 1974).

®United States v. McKenney, 181 F.Supp. 143, 146 (S.D.N.Y. 1959),

aff'd sub. nom., United States v. Galgano, 281 F.2d 908 (2d Cir.

1960), cert. denied sub nom., Carminati v. United States, 366 U.S.

960, 81 S.Ct. 1916, 6 L.Ed.2d 1253 and Galgano v. United States,

366 U.S. 967, 81 S.Ct. 1929, 6 L.Ed.2d 1257 (1961).

7United States v. Nixon, 235 U.S. 231, 235, 35 S.Ct. 49, 59 L.Ed. 207

(1914); United States v. Meyer, 266 F.2d 747, 753 (Sth Cir.), cert.

denied, 361 U.S. 875, 80 S.Ct. 138, 4 L.Ed.2d 113 (1959).

A-26

that only the 1972 version of section 610 contains any ref-

erence to an “indirect payment”; further, that the indict-

ment refers to payment for “services” and the latter word

also appears only in the 1972 amendment to section 610.

Consequently, it is contended that necessarily the indict-

ment was returned under the 1972 amendment. This con-

tention is lacking in substance. The allegations which spell

out the payment by AMPI to L & N for the services it

rendered to the Humphrey campaign merely describe the

details whereby it is charged the defendant engaged in ar-

tifice or subterfuge to conceal the receipt of the contribution.

Instead of accepting and receiving the contribution directly

from AMPI, the defendant allegedly conceived the method

described whereby he received a contribution to the Hum-

Dhrey campaign by arranging for AMPI to satisfy a debt

owed by the Humphrey campaign to its advertising agency.

[4] The defendant’s further contention is equally

without substance He stresses that the copy of the indict-

ment attached to a press release issued by the prosecution

contained a copy of the 1972 version of section 610. A

press release does not validate or invalidate an indictment.

As already noted, its validity is determined by its pleaded

allegations. It is therefore immaterial what statute was at-

tached to a press release or what statute was in the prose-

cutor’s mind when he obtained the indictment if the charges

are embraced within a statute in force at the time of the

alleged commission of the offense.* Moreover, there is not

the slightest basis for indulging in a presumption that the

‘United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed.

788 (1941); Williams v. United States, 168 U.S. 382, 389, 18 S.Ct.

92, 42 L.Ed. 509 (1897); Paz Morales v. United States, 278 F.2d 598

(Ist Cir. 1960); Pettway v. United States, 216 F.2d 106 (6th Cir.

1954); United States v. Kolodny, 149 F.2d 210 (2d Cir. 1945).

A-27

prosecutor sought an indictment from the grand jury based

upon a statute not in existence at the time the acts alleged

therein occurred.

[S} Finally, the defendant’s assertion that the events

described in the indictment could only be illegal under the

present amended version of section 610 rather than the

1970 version of the statute is conclusively refuted by the

Supreme Court’s holding in Pipefitters Local Union No.

562 v. United States.” There, the Court held, with one ex-

ception not relevant in this discussion, that the Federal

Election Campaign Act’s amendments to section 610

“merely codifies prior law.””” At the time the amendments

were enacted, there was substantial agreement in Congress

that the effect of the amendment to section 610 was a “mere

codification and clarification” “to spell out in more detail

what a labor union or corporation can or cannot do in

connection with a federal election.”"’ Thus defendant’s

claim that the insertion in section 610 of the definition of

the phrase “contribution or expenditure” to supplement the

definitions of “contribution” and “expenditure” in section

591’? made conduct illegal which was theretofore legal is

without merit.

The motion to dismiss the indictment on the ground that

it violatees the ex post facto clause of the Constitution is

denied.

9407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972).

10407 U.S. at 399, 92 S.Ct. 2247.

11407 U.S. at 410-11, 92 S.Ct. at 2262.

12Itself amended in 1972, 86 Stat. 8.

A-28

Il

That the indictment fails to state an

offense under section

610.

As already noted, the statute prohibits corporations from

making “a contribution or expenditure,” but as to any

person it makes it a crime only “to accept or receive” a

prohibited “contribution.” The defendant’s challenge rests

upon this distinction. He contends that while the indict-

ment charges the acceptance and receipt of a campaign

“contribution,” the payment described is in fact an “ex-

penditure” and therefore its acceptance and receipt was not

unlawful under the statute.

[6] As the court understands the defendant’s argu-

ment, essentially it is that AMPI made a $12.000 “pay-

ment” to L & N for their services, and as such this was an

“expenditure” by AMPI as that term is defined under the

statute, not a “contribution.” The argument rests upon the

definitions of “contribution” and “expenditure” contained

in the 1970 version of section 591. The defendant stresses

that “contribution” as there defined does not include a

“payment,” whereas “expenditure” does. Since in his view

the payment made to L & N was an “expenditure”

by AMPI, no offense is stated. This rather strained argu-

ment, whereby the defendant concludes that the $12,000

payment was an expenditure, not a contribution, by AMPI,

disregards the fact that the term “contribution” is defined

under the 1970 version to include a “gift . . . of money,

or anything of value... .” Clearly, picking up another’s

obligation—here a Humphrey campaign debt to L & N—

A-29

is a gift of money, in short, a contribution to the Humphrey

campaign.

The legislative history of section 610 further demon-

strates that the defendant’s contention is without merit. Sec-

tion 610 was amended in 1947 by the Taft-Hartley Act”

to strengthen the prohibition against corporate and union

“contributions” by extending the statute’s reach to prohibit

“expenditures” in a continuing effort to assure the integrity

of the federal electoral process and to eliminate corruptive

influences upon those seeking and holding public office.

While the statute clearly forbade union or corporate gifts

directly to a candidate or his campaign organization, there

was some doubt that its prohibitions went further.’* Con-

gressional] investigations into the 1944 and 1946 elections

established that the force of the then existing statute was

blunted and evaded when unions participated in federal

elections by making “expenditures” as distinguished from

“contributions” to candidates or their committees.’° The

investigations revealed that unions had spent large sums

of money to influence the outcome of these campaigns in

opposing or supporting candidates by direct communica-

tion to the public through the distribution of pamphlets

and campaign literature or the sponsoring of partisan radio

broadcasts.** The Supreme Court emphasized in the Auto

1361 Stat. 159.

14See United States v. Auto Workers, 352 U.S. 567, 579-80, 77 S.Ct.

§29, 1 L.Ed.2d 563 (1957); United States v. C.1LO., 335 U.S. 106,

115, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948).

15§.Rep.No.101, 79th Cong., Ist Sess. 23.

16United States v. Auto Workers, 352 U.S. 567, 580-89, 77 S.Ct. 529,

1 L.Ed.2d 563 (1957).

A-30

Workers case that the evil which Congress sought to elimi-

nate by the 1947 addition of the ban on “expenditures” to

the prohibition of “contributions” was “the use of corpora-

tion or union funds to influence the public at large to vote

for a particular candidate or a particular party.”"” The

Court there held that an offense was stated under an in-

dictment which charged that a union “used union dues to

sponsor commercial television broadcasts designed to in-

fluence the electorate to select certain candidates for Con-

gress in connection with the 1954 elections.”"* Thus the

word “expenditure” refers to the use by a corporation or

a union of its funds to promote its own political views by

endorsing or opposing candidates for federal office. Such

“expenditures” are made to meet the obligations incurred by

the union or corporation. By contrast, a “contribution” in

the 1970 version of the statute refers, inter alia, to a “gift. . .

of money, or anything of value,””® typically made to a can-

didate or his campaign organization to help the candidate

carry his message to the public.

[7] Here the indictment specifically charges that the

defendant accepted and received and caused L & N to ac-

cept and receive money from AMPI for L & N’s bill for

services rendered to the Humphrey campaign. In light of

the statute’s history and the Supreme Court’s analysis and

interpretation of it, this clearly constitutes the receipt of a

“contribution.” Though the indictment charges that the de-

fendant caused AMPI, upon his instructions, to make the

checks payable to L & N and that he then forwarded or

11d. at 589, 77 S.Ct. at 540.

187d. at 585, 77 S.Ct. at 538.

1918 U.S.C. § 591.

A-31

caused to be forwarded the checks to L & N, this does not

change the character of the transaction. It is the substance

of the transaction and not its form that controls. The de-

fendant does not suggest that AMPI itself owed L & N any

money. The Humphrey campaign, not AMPI, incurred the

debt to L & N, and the $12,000 was paid to the latter to

discharge the Humphrey campaign’s obligation to the ad-

vertising agency. No amount of rhetoric can obfuscate the

substance of this simple charge that the defendant received

on behalf of the Humphrey campaign a contribution, a

“gift . . . of money” from AMPI, by arranging for the pay-

ment of the debt owed by the Humphrey campaign to L

& N. The indictment clearly charges an offense under

the 1970 version of section 610 within the definition of a

“contribution” in the 1970 version of section 591.

{8] Further. under the allegations of the indictment

that the defendant caused L & N to accept and receive the

contribution from AMPI, the defendant is charged under

section 2 of Title 18. If the defendant himself accepted and

received the money from AMPI in checks payable to him

or to the Humphrey campaign, he would have accepted and

received a contribution in violation of section 610. Section

2 provides that one who willfully causes another to do that

which, if directly done by him, would violate the law is

punishable as a principal. Thus, the indictment states an

offense under sections 610 and 2 in that it charges the de-

fendant with causing Lennen & Newell to accept and re-

ceive a contribution to the Humphrey campaign from

AMPI.

A-32

Il

That Sections 610 and 591

are unconstitu-

tional.

Defendant’s third argu.nent is that the applicable ver-

sions of section 610 and section 591 are unconstitutional

for two reasons: (1) because the language of the statutes

is so vague that men of ordinary intelligence must guess

as to their meaning, and (2) because the statutes’ overly

broad prohibitions have an impermissible chilling effect on

First Amendment rights.

A.

[9,10] A criminal statute may be declared void for

vagueness where a court concludes that an individual could

not reasonably understand that his contemplated conduct

is forbidden.” As the Supreme Court has stated:

“The constitutional requirement of definiteness is

violated by a criminal statute that fails to give a person

of ordinary intelligence fair notice that his contem-

plated conduct is forbidden by the statute. The under-

lying principle is that no man shall be held criminally

responsible for conduct which he could not reasonably

understand to be proscribed.”™

Entirely apart from consideration of a claim of due process

violation based upon an alleged statutory infirmity of

United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83

S.Ct. 594, 9 L.Ed.2d 561 (1963).

21United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98

L.Ed. 989 (1954).

A-33

vagueness, a careful examination of a statute is required

where it regulates conduct arguably affected with First

Amendment interests. Stricter standards of definiteness ap-

ply here because when a man is required to act at his peril

in this area, the free dissemination of ideas may be in-

hibited.”

[11, 12] The 1970 versions of sections 610 and 591

meet the applicable standards of definiteness under due

process and First Amendment requirements. Indeed, de-

fendant has offered no support for his claim that the stat-

utes did not give a fair warning as to the criminality of his

alleged conduct. All that is required is that the language

employed convey a reasonable degree of certainty ade-

quate to inform him of what is or is not prohibited.”

It borders on the frivolous to suggest that the clearly de-

fined specific prohibition against the receipt or acceptance

by any person of union or corporate contributions is so

vague that “men of common intelligence must necessarily

guess at its meaning.” The statutes do not leave judges

and jurors free to decide what is permitted and what is

prohibited in each case.” Their terms are sufficiently clear

22Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S.Ct.

275, 7 L.Ed.2d 285 (1961); Smith v. California, 361 U.S. 147, 151,

80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Winters v. People of State of

New York, 333 U.S. 507, 516-20, 68 S.Ct. 665, 92 L.Ed. 840 (1948).

*3United States v. Pope, 189 F.Supp. 12, 21 (S.D.N.Y. 1960).

*4Connelly v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127,

70 L.Ed. 322 (1926).

2°See Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 15

L.Ed.2d 447 (1966).

A-34

and definite to meet constitutional scrutiny for vagueness.”

Moreover, as the Supreme Court has recently stated, “even

if the outermost boundaries of [the statute] may be im-

precise, any such uncertainty has little relevance here,

where [defendant’s] conduct falls squarely within the

‘hard core’ of the statute’s proscriptions. . . .”””

B.

Defendant also argues that the applicable versions of

sections 610 and 591 unconstitutionally impair the First

Amendment rights of free speech, free press, and the right

to assemble and petition government.

[13, 14] Defendant acknowledges that the indictment

on its face does not allege an act of unlawful speech or

assembly by him; nonetheless he asserts he may challenge

the statute if on its face if purports to punish any citizen’s

protected speech or conduct. He relies upon the cases

which hold that although a statute may be neither vague,

overbroad, nor otherwise invalid as applied to the parti-

cular conduct charges against the defendant, he is per-

*6United States v. Pipefitters Local Union No. 562, 434 F.2d 1116, 1123-

24 (8th Cir. 1970), adhered to in en banc decision, 434 F.2d 1127,

rev'd and vacated on other grounds, 407 U.S. 385, 92 S.Ct. 2247, 33

L.Ed.2d 11 (1972). See Broadrick v. Oklahoma, 413 U.S. 601, 607-

08, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Civil Service Comm'n v.

wend Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 37 L.Ed.2d 796

( ).

“7Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2914, 37

L.Ed.2d 830 (1973).

*STwo courts of appeals have upheld the constitutionality of § 610.

United States v. Boyle, 157 U.S.App.D.C. 166, 482 F.2d 755, 763-

64, cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973):

United States v. Pipefitters Local Union No. 562, 434 F.2d 1116 (8th

Cir. 1970), adhered to in en banc decision, 434 F.2d 1127, rev'd and

vacated on other grounds, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d

11 (1972).

—_— —

On ee eee ee ee ee ee ee ee One ee a es oe

A-35

mitted to raise its vagueness or unconstitutional over-

breadth as applied to others, and if the law is found de-

ficient in one of these respects, it may not be applied to

him either, unless a limiting construction is placed on the

statute.” Because of the important values protected by

the First Amendment, the traditional rule of constitutional

adjudication that one to whom a statute may constitution-

ally be applied will not be heard to challenge the statute

on the ground that it may be applied unconstitutionally

to another” is not invoked. Thus the usual rules of stand-

ing are relaxed in the First Amendment area and accord-

ingly a defendant may challenge a statute not because his

own First Amendment rights are infringed upon but be-

cause of the concern that the statute’s existence may cause

others not to engage in constitutionally protected expres-

sion.”’ However, the standing requirement in the First

Amendment area has been further particularized by the

Supreme Court in Broadrick v. Oklahoma™ so that es-

pecially where conduct and not merely speech is involved,

2°91 ewis v. New Orleans, 415 U.S. 130. 133-34, 94 S.Ct. 970, 39 L.Ed.2d

214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.

Ed.2d 408 (1972); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686,

29 L.Ed.2d 214 (1971). See also Dombrowski v. Pfister, 380 U.S. 479,

491-92, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

*Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d

830 (1973); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4

L.Ed.2d 524 (1960); Carmichael v. Southern Coal & Coke Co., 301

U.S. 495, 513, 57 S.Ct. 868, 81 L.Ed. 1245 (1937); United States v.

Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); Hatch

v. Reardon, 204 U.S. 152, 160-61, 27 S.Ct. 188, 51 L.Ed. 415 (1907);

Supervisors v. Stanley, 105 U.S. 305, 311-15, 26 L.Ed. 1044 (1882);

Austin v. The Aldermen, 7 Wall. 694, 698-99, 19 L.Ed. 224 (1869).

31Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d

830 (1972).

32413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1972).

A-36

unless the statute is “substantially overbroad,” a defen-

dent may not challenge whatever overbreadth may exist.

In these cases where the overbreadth is not “substantial . . .

judged in relation to the statute’s plainly legitimate sweep,”

the Court has decided that it will not entertain attacks on

the facial validity of the statute but will deal with it on a

. case by case basis.** In light of Broadrick, whether the

defendant has standing to raise a First Amendment chal-

lenge to sections 610 and 591 is not altogether free from

doubt. However, to set the matter at rest, the court as-

sumes that he has satisfied the standing requirement and

proceeds to address the issues he raises.

Section 610, which grew out of a long series of con-

gressional efforts dating back to 1907,% has two pur-

poses. First, Congress sought “to avoid the deleterious in-

fluences on federal elections resulting from the use of mon-

ey by those who exercise control over large aggregations

of capital.”*’ Second, Congress sought to prevent corpo-

rate and union officials from using corporate or general

union funds for political purposes without the consent of

stockholders or union members. Collateral to this objec-

tive was the protection of minority interests from overbear-

33413 U.S. 615-16, 93 S.Ct. at 2918. Whether this represents a reversal

or just a clarification of Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct.

1686, 29 L.Ed.2d 214 (1971), on which defendant relies, remains to

be seen. Compare the Broadrick majority, 413 U.S. at 616 n. 14, 93

S.Ct. 2908 with Mr. Justice Brennan’s dissent, 413 U.S. at 622, 93

S.Ct. 2908. See “Overbreadth Review and the Burger Court,” 49 N.Y.

U.L.R. 532 (1974).

34United States v. Auto Workers, 352 U.S. 567, 570-75, 77 S.Ct. 529,

1 L.Ed.2d 563 (1957).

35United States v. Auto Workers, 352 U.S. 567, 585, 77 S.Ct. 529, 538,

1 L.Ed.2d 563 (1957). See Pipefitters Local No. 562 v. United States,

407 U.S. 385, 415-16, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972); United

States v. C. I. O., 335 U.S. 106, 113, 68 S.Ct. 1349, 92 L.Ed. 1849

(1948).

a ee

brett

it Alt

A-37

ing by union leadership or corporate officials, and in the

case of unions, to safeguard employees who may decline

to contribute to political funds from loss of jobs, union

membership or reprisal by union officials.*

[15] Union officials, members, corporate officers and

stockholders are not barred by section 610 from partici-

pating in federal elections. Each is free to individually use

his financial resources to the extent otherwise permitted

by law. The statutory prohibition is only on funds derived

from corporate treasuries and general union funds. In

deciding the constitutionality of these prohibitions, the First

Amendment rights of corporations and labor unions”

must be weighed™ against the substantial governmental

interests” in preserving the integrity of the electoral proc-

ess, in preventing corporate and union officials from using

corporate assets or general union dues to promote political

parties and candidates without the consent of stockholders

or union members with different political views, and in pro-

tecting individuals who may refuse to contribute to cam-

36Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 413-

14, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972); United States v. Aut» Work-

ers, 352 U.S. 567, 582, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); United

States v. C. I. O., 335 U.S. 106, 113, 115, 68 S.Ct. 1349, 92 L.Ed.

1849 (1948); Ash v. Cort, 496 F.2d 416, 422 (3d Cir. 1974), cert.

granted, 419 U.S. 992, 95 S.Ct. 302, 42 L.Ed.2d 264 (1975).

37United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88

S.Ct. 353, 19 L.Ed.2d 426 (1967); NAACP v. Button, 371 U.S. 415,

428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. Alabama ex re!.

Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958):

Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444,

80 L.Ed. 660 (1936).

3*Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731,

20 L.Ed.2d 811 (1968); Konigsberg v. State Bar of California, 366

U.S. 36, 50-51, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961).

3®See Broadrick v. Oklahoma, 413 U.S. 601, 606, 93 S.Ct. 2908, 37

L.Ed.2d 830 (1973): Civil Service Comm’n v. Letter Carriers, 413

U.S. 548, 557-67, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

A-38

paign funds against reprisals. The need for these safe-

guards is particularly acute in the labor field where union

membership can be a condition of employment.”

The right of free association and the right to participate

in political elections is not without its limits.** As the Su-

preme Court has stated, the management, financing and

conduct of political campaigns are subject to certain forms

of governmental regulation. Thus, for example. the Court

has held that “plainly identifiable acts of political manage-

ment and political campaigning on the part of federal em-

ployees may constitutionally be prohibited.” So too, all

fifty states restrict the political activities of their employ-

ees."

[16] Given the government’s legitimate interest in the

purposes of section 610, the question is whether the gov-

ernment has chosen the “least drastic means” of protecting

these interests or whether it has enacted overly broad pro-

hibitions that unnecessarily impinge upon First Amend-

See Pipefitters Local Union No. 562 v. United States, 407 U.S. 385,

414, 92 S.Ct. 2247, 33 L.E.2d 11 (1972); International Ass'n of Ma-

chinists v. Street, 367 U.S. 740, 776-77, 81 S.Ct. 1784, 6 L.Ed.2d

1141 (1961) (Douglas, J. concurring.)

"Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct.

2880, 37 L.Ed.2d 796 (1973): Rosario v. Rockefeller, 410 U.S. 752,

760-62, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973). Dunn v. Bumstein, 405

U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972): Bullock v. Car-

ter, 405 U.S. 134, 140-41, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Jenness

v. Forston, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971):

Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24

(1968). See also Kusper v. Pontikes, 414 U.S. 51, 56-61, 94 SCt.

303, 38 L.Ed.2d 260 (1973).

*2Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct.

2880, 37 L.Ed.2d 796 (1973). See “The Supreme Court, 1972 Term,”

87 HarvL.Rev. 141-49 (1973).

*3Civil Service Comm'n v. Letter Carriers, 413 U.S. at 563, 93 S.Ct.

2880; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.

2d 830 (1973).

tee ee eee

er er

ee ee ee

A-39

ment rights.** Section 610 and its definitional counterpart

section 591, in their 1970 form, meet this “least drastic

means test.” As authoritatively construed by the Supreme

Court, the statute only prohibits contributions or expendi-

tures from certain sources. For example, the statute pro-

hibits only union contributions from monies derived from

compulsory union dues and assessments. A union may es-

tablish a political organization for the receipt of voluntary

contributions for union members.” Similarly, in United

States v. C. I. O.,*° the Supreme Court held that the statute

does not prevent unions or corporation from publishing a

regular periodical for union members, shareholders or cus-

tomers that may contain political commentary. As the in-

dictment in the case did not charge the defendant union

with “circulating free copies to nonsubscribers, nonpur-

chasers, or among citizens not entitled to receive copies ol

‘The CIO News,’ as members of the union,” it did not state

an offense under the statutes.‘’ Thus the statutes has been

construed in a careful fashion to minimize its restrictive

impact.

Defendant has presented no less restrictive alternative

scheme of regulation that would protect the integrity ot

elections and the interests of minority union members and

corporate shareholders. Given these legitimate governmen-

tal concerns, the statute is not overbroad i. its scope. De-

**Kusper v. Pontikes, 414 U.S. 51, 59, 94 S.Ct. 303, 38 L.Ed.2d 260

(1973); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.

2d 231 (1960).

*5Pipefitter. Local Union No. 562 v. United States, 407 U.S. 401, 92

S.Ct. 2247, 33 L.Ed.2d 11 (1972).

46335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948).

47335 U.S. at 111, 68 S.Ct. at 1352.

A-40

fendant’s attack on the facial validity of section 610 musi

therefore fail.“* This conclusion is reinforced by the Su-

preme Court’s holding that at least where conduct and not

just speech is regulated by a statute, to declare the statute

invalid on its face the Court must find that the overbreadth

is not only real, but substantial as well when examined in

relation to its legitimate purposes.

Defendant’s motion is denied in all respects. The case

will proceed to trial on May 5, 1975.

UNITED STATES OF AMERICA,

vs.

JACK L. CHESTNUT, Defendant,

No. 74 Cr. 1191

United States District Court,

S. D. New York.

June 25, 1975

A jury found defendant guilty of knowingly causing

another to accept or receive an illegal corporate contribu-

4SUnited States v. Boyle, 157 U.S.App.D.C. 166, 482 F.2d 763-64, cert.

denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973); United

States v. Pipefitters Local Union No. 562, 434 F.2d 1116 (8th Cir.

1970), adhered to in en banc decision, 434 F.2d 1127, rev'd and

vacated on other grounds, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d

11 (1972). But see “The Constitutionality of the Federal Ban on Cor-

porate and Union Campaign Contributions and Expenditures,” 42

U.Chi.L.Rev. 148 (1974).

*°Broadrick v. Oklahoma, 413 U.S. 601, 615, 618, 93 S.Ct. 2908, 37

L.Ed.2d 830 (1973). See “The Supreme Court, 1972 Term,” 87 Harv.

L.Rev. 149-153 (1973).

co tet i

Rae sO an aw &

A-41

tion to a senatorial campaign. On the defendant’s motion

for judgment of acquittal, the District Court, Edward

Weinfeld, J., held that the evidence was sufficient to sus-

tain the conviction; that where the recipient deposited the

check for the illegal contribution in its bank account in

the Southern District of New York, venue was proper in

that district, even though all of defendant’s conduct in

causing the acceptance or receipt of the check was per-

formed by him in Minnesota; and that proof of similar

acts was properly admitted.

Motions denied.

1. Criminal Law (Key) 753.2 (6)

Upon motion for judgment of acquittal, trial judge must

determine whether upon evidence, giving full play to jury’s

right to determine credibility, weigh evidence and draw

justifiable inferences of fact, a reasonable mind might fair-

ly conclude guilt beyond a reasonable doubt.

2. Criminal Law (Key) 977(1)

On motion for acquittal after jury verdict of guilty, court

must consider evidence in view most favorable to Govern-

ment. Fed. Rules Crim. Proc. rule 29, 18 U.S.C.A.

3. Elections (Key) 329

Evidence was sufficient to sustain conviction of causing

another to accept or receive illegal corporate campaign

contribution, 18 U.S.C.A. § 610.

4. Crimianl Law (Key) 107

Sixth Amendment does not provide defendant with con-

stitutional right to trial in his home district. U.S.C.A.

Const. Amend. 6.

A-42

5. Criminal Law (Key) 108(1)

In determining proper venue, court must determine

place of crime after analysis of nature of alleged offense.

U.S.C.A. Const. Amend. 6.

6. Criminal Law (Key) 108(1)

Where statute makes it illegal to receive money under

certain circumstances and recipient is given a check, venue

is proper where the check is deposited and proceeds credited

to recipient’s account.

7. Criminal Law (Key) 113

In prosecution for knowingly causing another to accept

or recive an illegal corporate campaign contribution, venue

was proper in Southern District of New York, where re-

cipient of check for illegal contribution deposited check

in bank in that district, notwithstanding contention that

venue was improper in that district because all defendant’s

conduct in causing acceptance or receipt of contribution

was performed by him in Minnesota. 18 U.S.C.A. § 610;

U.S.C.A. Const. Amend. 6.

8. Criminal Law (Key) 108(1)

Generally, where crime charged is failure to do a legally

required act, place fixed for its performance, not place

where defendant remained, fixes situs of crime for venue

purposes.

9. Criminal Law (Key) 110

Accessory may be tried in district where principal com-

mitted crime even though accessory never entered district.

A-43

10. Criminal Law (Key) 113

In prosecutions for making false statements in matter

within jurisdiction of federal agency, venue is improper in

district where affidavit was written and mailed, but lies

instead where affidavit was required to be filed or where

agency decision in reliance thereon takes place.

11. Criminal Law (Key) 370, 371(1)

In prosecution for knowingly causing another to accept

or receive illegal corporate campaign contribution, proof

of similar acts on defendant’s part in accepting three other

contributions was admissible as tending to show pattern of

conduct on issues of knowledge and intent at time of

events charged in indictment. 18 U.S.C.A. § 610.

Paul J. Curran, U.S. Atty., S. D. N. Y., New York City,

for the United States; Eugene F. Bannigan, Robert Gold,

Asst. U. S. Attys. of counsel.

Thomson, Wylde, Nordby & Friedberg and Cochrane &

Bresnahan, St. Paul, Minn., for defendant; Douglas W.

Thomson, Jack S. Nordby, John A. Cochrane, St. Paul,

Minn., of counsel.

OPINION

EDWARD WEINFELD, District Judge.

The defendant, Jack L. Chestnut, the campaign mana-

ger for Senator Hubert H. Humphrey’s 1970 campaign for

the office of United States Senator from Minnesota, was

convicted after a jury trial of willfully violating 18 U.S.C.,

sections 610 and 2. The charge was that the defendant

A-44

caused Lennen & Newell, Inc., a New York advertising

agency employed by the Humphrey campaign, to accept

or receive an illegal contribution to the Humphrey cam-

paign from Associated Milk Producers, Inc. (“AMPI”) a

corporation.

The defendant now moves pursuant to Rule 29 of the

Federal Rules of Criminal Procedure for a judgment of

acquittal upon various grounds, including that the evi-

dence is insufficient to sustain the conviction, lack of venue

in this district, errors in the admission of evidence, and

prejudicial instructions to the jury. Other grounds ad-

vanced for the judgment of acquittal were previously ar-

gued in a pretrial motion for dismissal of the indictment.

As to these, the court adheres to its previous rulings, the

bases for which are fully explicated in its opinion.’

[1] The first challenge to the guilty verdict is that

the evidence failed to establish willfulness and conse-

quently a verdict of not guilty is required as a matter of

law. The current rule in this circuit is that upon a motion

'United States v. Chestnut, 394 F.Supp. 581 (S.D.N.Y. 1975). The court

held, inter alia, that the acts charged in the indictment constitute a

“contribution” as that term was defined in the 1970 version of § 591

ot Title 18 and thus the indictment stated an offense under §§ 610 and

2. The government’s evidence at trial was consistent with the allega-

tions of the indictment. There was no need to reopen the pretrial mo-

tion as to whether the indictment charged an offense under § 610,

which only prohibits the receipt or acceptance of an illegal “contribu-

tion,” not an “expenditure.” Thus, contrary to defendant's claim, there

was not occasion to instruct the jury on the distinction between a “con-

tribution” and an “expenditure” as those terms were used in the 1970

version of §§ 591 and 610, any more than a court should charge the

jury on a lesser included offense, duress or entrapment where the evi-

dence does not warrant it. United States v. Marin, 513 F.2d 974 (2d

Cir. 1975); United States v. Carroll, 510 F.2d 507 (2d Cir. 1975):

United States v. Marcey, 142 U.S. App.D.C. 253, 440 F.2d 281, 285

n. 20 (1971). There was no evidence presented at the trial that raised

a factual question as to whether or not the transfer of AMPI funds

constituted a contribution. It is clear that AMPI made a contribution

to the Humphrey campaign.

woos =e Ts ‘“

A-45

for a judgment of acquittal the trial judge must determine

whether upon the evidence, giving full play to the jury’s

right to determine credibility, weigh the evidence and draw

justifiable inferences of fact, a reasonable mind might fair-

ly conclude guilt beyond a reasonable doubt.’

{[2, 3] Considering the evidence in the view most fa-

vorable to the government on this motion, as the court

must,’ the court readily finds that “a reasonable mind might

fairly conclude” that the defendant willfully violated sec-

tion 610 beyond a reasonable doubt—that the defendant

knew he was causing another to accept or receive an il-

legal corporate contribution.*

Willfulness rarely can be established by direct evidence;

usually it is determined by circumstantial evidence, an

overall consideration of all the facts and circumstances and

the reasonable inferences to be drawn therefrom.

The hard thrust of the defense was that the defendant

believed that the contribution came from a fund associated

with AMFI, composed of voluntary donations from its

2United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972), overruling the

prior “fair preponderance” test articulated by Judge Learned Hand in

United States v. Feinberg, 140 F.2d 592, 594 (2d Cir.), cert. denied,

322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1944). See also United

States v. DeGarces, 518 F.2d 1156 (2d Cir. 1975); United States v.

Freeman, 498 F.2d 569, 571 (2d Cir. 1974); United States v. Carneg-

lia, 468 F.2d 1084, 1087 (2d Cir.), cert. denied sub. nom. Inzerillo v.

United States, 410 U.S. 945, 93 S.Ct. 1391, 35 L.Ed.2d 611 (1973).

3Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680

(1942); United States v. Freeman, 498 F.2d 569 (2d Cir. 1974); United

States v. McCarthy, 473 F.2d 300 (2d Cir. 1972); United States v.

D’Avanzo, 443 F.2d 1224, 1225 (2d Cir.), cert. denied, 404 U.S. 850,

92 S.Ct. 86, 30 L.Ed.2d 89 (1970); United States v. Kahaner, 317 F.

2d 459 (2d Cir.), cert. denied, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d

65 (1963).

*See United States v. Pipefitters Local Union, 434 F.2d 1116, 1124-25

(8th Cir. 1970), rev'd on other grounds, 407 U.S. 385, 400 n. 11, 92

S.Ct. 2247, 33 L.Ed.2d 11 (1972).

A-46

members, which legally could make contributions to poli-

tical campaigns.° However, the evidence established that

the contribution came from AMPI’s general corporate

funds and that it was received in an indirect manner de-

vised by the defendant. It was the defendant who directed

both Lennen & Newell, Inc. and Bob Lilly, assistant to

the general manager of AMPI, to carry out the procedures

whereby the advertising agency, which had rendered ser-

vices to the Humphrey campaign, not to AMPI, would pre-

pare invoices to be made out to AMPI and for AMPI to

pay those invoices, It was the defendant who instructed

Lilly not to pay the initial invoices because they were not

in proper form, but to await corrected bills. It was the de-

fendant who sent a letter to Lilly to have AMPI pay the

enclosed four corrected invoices each in the sum of

$3,000, instructing him to forward checks made payable

to Lennen & Newell to him, the defendant, at his office

in Minneapolis, Minnesota. Thereafter, Lilly, pursuant to

these instructions, forwarded to the defendant in Min-

neapolis two $6,000 AMPI checks drawn on a corporate

account and payable to Lennen & Newell, Inc. The checks

were thereafter deposited by Lennen & Newell in its bank

account in this city at Bankers Trust Company. The checks

upon their face in two places in bold letters indicated they

were corporate checks drawn on a corporate bank account.

The defendant contends that in the absence of direct

evidence he saw or would in due course have seen the

crucial checks, there was no basis upon which a reason-

able mind might fairly conclude beyond a reasonable doubt

that he knew that AMPI was using its general corporate

funds and thus making an illegal corporate contribution,

5Pipefitters Local Union v. United States, 407 U.S. 385, 409, 92 S.Ct.

2247, 33 L.Ed.2d 11 (1972).

ee ae ee eo

A-47

rather than using funds derived from AMPI’s voluntary

political affiliate, which could make a legal contribution

to the campaign. The short answer to this contention is

that the defendant’s acts and conduct relating to the con-

tribution come within the classic statement by the Supreme

Court of circumstances under which willfulness may be

inferred, including the “handling of one’s affairs to avoid

making the records usual in [the] transactions of the kind,

and any conduct, the likely effect of which would be to

mislead or to conceal.”*® Usually a contributor to a political

campaign sends his contribution directly to the campaign

committee and normally the committee makes direct pay-

ment to those to whom it is indebted. Here the defendant

arranged with Lennen & Newell, Inc. for it to bill AMPI

for services Lennen & Newell had rendered not to AMPI,

but to the Humphrey campaign. As a result there was no

documentation that AMPI had contributed $12,000 to the

Humphrey campaign.

The defendant did not dispute that the two $6,000

AMPI corporate checks were received in his offices; how-

ever, he denied he saw the checks; he emphasizes the lack

of direct evidence that he saw the checks after AMPI for-

warded them to his office pursuant to his instructions. With

the checks upon their face carrying their own indicia that

they were drawn on a corporate account, his counsel recog-

nize on this motion that this was a central matter on the is-

sue of willfulness. Thus they state: “The question of fact

in this case ultimately was whether Mr. Chestnut saw the

AMPI checks... .”’ Indeed, the court, in its instructions -

®Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed.

418 (1943).

™Defendant’s Post Trial Memorandum p. 18.

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to the jury, suggested that a substantial question is: “Did

the defendant ever see the AMPI checks of $6000

each ... ?”* The jury answered by its verdict. There is

no reason to set it aside. The totality of evidence based

upon the defendant’s own acts, conduct and all the sur-

rounding circumstances warranted the jurors in drawing

the reasonable inference that defendant saw the checks

with their corporate legend and that he acted willfully in

causing Lennen & Newell to receive or accept this corpor-

ate contribution to the Humphrey campaign which he knew

was unlawful.

The defendant next contends that the evidence failed to

prove venue in the Southern District of New York. In ad-

dition, he argues that venue was improper in this district.

There is no dispute that the AMPI checks were deposited

by Lennen & Newell in its bank account in Manhattan

and that, so far as the evidence indicates, the defendant

was not then present in this district. The evidence does

indicate that defendant’s various acts in arranging for

Lennen & Newell to bill AMPI for the advertising services

and AMPI’s payment with its corporate checks occurred

in Minnesota. There is no proof of where the checks were

physically delivered to Lennen & Newell, Inc. prior to their

deposit in this district. Under these circumstances, was ven-

ue proper in this district?

[4. 5] The Sixth Amendment does not provide a de-

fendant with, a constitutional right to trial in his home dis-

trict.” Rather, both the Sixth Amendment and Article III,

section 2, of the Constitution provide that a defendant

‘Trial Transcript-561.

*Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct.

769, 11 L.Ed.2d 674 (1964): Johnston v. United States, 351 U.S. 215,

220-21, 76 S.Ct. 739, 100 L.Ed. 1097 (1956).

A-49

must be tried in the state and district where the crime

was committed. Thus in determining proper venue, the

court must determine the place of the crime” after an analy-

sis of the nature of the alleged offense.”

The defendant was found guilty of violating the law

making it illegal for any “person to accept or receive” poli-

tical campaign contributions prohibited by that section.”

The. jury was instructed that under another provision of

law, “[w]hoever willfully causes an act to be done which

if directly performed by him or another would be an of-

fense against the United States, is punishable as a princi-

pal.”* The key words of the substantive statutory prohibi-

tion are “to accept or receive” an illegal contribution. The

determination of the venue question requires the court to

examine the statute “to ascertain when the defendant’s ac-

tions have progressed to the point where a court can con-

fidently conclude that a crime has been committed.”™*

[6] Where a statute makes it illegal to receive money

under certain circumstances and the recipient is given a

check, venue is proper where the check is deposited and

the proceeds credited to the recepient’s account. Thus in

Burton v. United States,"* the defendant was charged with

violating a statute forbidding a United States Senator from

receiving compensation for services rendered in relation to

United States v. Cores, 356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d

873 (1958); United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213,

90 L.Ed. 1529 (1946).

117Travis v. United States, 364 U.S. 631, 81 S.Ct. 388, 5 L.Ed.2d 340

(1961).

1218 U.S.C. § 610.

1318 U.S.C. § 2(b).

4United States v. Bithoney, 472 F.2d 16, 23 (2d Cir.), cert. denied, 412

U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397 (1973).

A-50

a proceeding in which the United States is an interested

party. The Supreme Court held that venue was proper in the

district where the checks were deposited and honored, not

where the check was physically delivered to the Senator.”

In Burton, the checks were deposited and credited to de-

fendant in the same place where they were physically de-

livered to him, but as Judge Learned Hand later indicated,

the Supreme Court’s analysis makes clear that venue did

not turn on where the checks were physically delivered."

In another prosecution under the same statute, although

the defendant’s services were performed and the checks

were physically delivered to hi..i in Washington, D.C., the

court held that venue was proper in the District of Mary-

land, where the compensation was received, that is, where

the checks were deposited and the defendant’s account

was credited.”

[7] The government’s theory of the case was that the

defendant caused Lennen & Newell to accept or receive an

illegal corporate campaign contribution to the Humphrey

campaign. Following their receipt in Minnesota, the AMPI

checks were turned over to Lennen & Newell and were

deposited in its bank account in the Southern District of

New York. The defendant had not caused another to com-

mit the ultimate essential element of the crime until the

15196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905).

16].

TU nited States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307

U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939). See also United States,

v. Johnson, 337 F.2d 180, 193 (4th Cir. 1964), aff'd, 383 U.S. 169,

86 S.Ct. 749, 15 L.Ed.2d 681 (1966).

18U/nited States v. Johnson, 337 F.2d 180, 192-95 (4th Cir. 1964), aff'd,

383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). See also United

States v. McMaster, 343 F.2d 176, 181 (6th Cir.), cert. denied, 382

U.S. 818, 86 S.Ct. 42, 15 L.Ed.2d 65 (1965).

_

ram

A-51

checks were received or accepted by Lennen & Newell, Inc.-

in payment for services rendered by it to the Humphrey

campaign. Not until the checks were so received or ac-

cepted upon their deposit and credited to the Lennen &

Newell account in this district was the final element of the

crime effected. Venue in this district was therefore proper.

[8-10] The defendant also argues that venue is im-

proper in this district because all of his conduct in causing

the acceptance or receipt was performed by him in Min-

nesota. The argument is without substance. “The constitu-

tional requirement is as to the locality of the offense, and

not the personal presence of the offender.””® For example,

the general rule is that where the crime charged is a failure

to do a legally required act, the place fixed for its per-

formance, not the place where the defendant remained,

fixes the situs of the crime.” An accessory may be tried in

the district where the principal committed the crime even

though the accessory never entered the district.” In prosecu-

tions for making false statements in a matter within the

jurisdiction of a federal agency, venue is improper in the

194rmour Packing Co. v. United States, 209 U.S. 56, 76, 28 S.Ct. 428,

433, 52 L.Ed. 681 (1908). See also Travis v. United States, 364 U.S.

631, 634, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961).

20Where a defendant was charged with failing to report for civilian work

to a hospital in another district as ordered to by his draft board, which

was in the district in which he resided, venue was proper only in the

district where the hospital was located, not in the district of his resi-

dence where he remained throughout the relevant period. Johnston v.

United States, 351 U.S. 215, 220-21, 76 S.Ct. 739, 100 L/Ed. 1097

(1956). See also United States v. Dyson, 469 F.2d 735 (Sth Cir. 1972):

United States v. Clark, 468 F.2d 708 (3d Cir. 1972); United States v.

Turner, 244 F.2d 404 (2d Cir.), cert. denied, 354 U.S. 926, 77 S.Ct.

1384, 1 L.Ed.2d 1438 (1957).

21United States v. Buckhanon, 505 F.2d 1079, 1083 (8th Cir. 1974):

United States v. Kilpatrick, 458 F.2d 864 (7th Cir. 1972); United

States v. Bozza, 365 F.2d 206, 220-21 (2d Cir. 1966); United States

v. Gillette, 189 F.2d 449, 451-52 (2d Cir.), cert. denied, 342 U.S. 827,

72 S.Ct. 49, 96 L.Ed. 625 (1951).

A-52

district where the affidavit was written and mailed, but

lies instead where the affidavit is required to be filed® or

where agency decision in reliance thereon takes place.”

The court does not understand the defendant to argue

that merely upon the receipt of the checks in Minnesota or

even upon his causing the checks to be delivered to Lennen

& Newell, a crime was committed. Indeed, the defendant

could have returned the checks to AMPI, or destroyed them,

or never caused their delivery to the advertising agency, or

even recalled them after Lennen & Newell had physically

received them, in which event no crime would have been

committed since the final element of the.crime would have

been lacking. The receipt or acceptance of the contribu-

tion occurred when the checks were deposited in New York

in payment of a Humphrey campaign bill. The offense oc-

curred in this district and venue was proper.” This disposi-

22Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 5 L.Ed.2d

340 (1961); United States v. Lombado, 241 U.S. 73, 36 S.Ct. 508,

60 L.Ed. 897 (1916). .

°3United States v. Candella, 487 F.2d 1223, 1228 (2d Cir. 1973), cert.

denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974). See also

United States v. Bithoney, 472 F.2d 16, 24 (2d Cir.), cert. denied, 412

U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397 (1973).

24Accordingly the court does not reach the question of whether under 18

U.S.C. § 3237(a) venue would also be proper in the District of Minne-

sota. The defendant argues that venue lies only in what district. Con-

trary to the defendant's contention, Judge Friendly’s analysis in United

States v. Bozza, 365 F.2d 206, 220 (2d Cir. 1966), suggests that the

government may have had a more difficult problem had the prosecu-

tion been in the District of Minnesota. But see United States v. Taller,

394 F.2d 435, 437-38 (2d Cir.), cert. denied, 393 U.S. 839, 89 S.Ct.

115, 21 L.Ed.2d 109 (1968).

So, too, this disposition makes it unnecessary to consider whether,

under 18 U.S.C. § 3237(a), when the tainted corporate contribution

is made by check, the receipt of the contribution is a continuing of-

fense which does not end until the proceeds of the check have been

made fully available to the recipient and hence venue. may be in more

than one district if the check is deposited in one district and paid in

another. See United States v. Johnson, 337 F.2d 180, 193-95 (4th

Cir. 1964), aff'd, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966).

A-53

tion makes it unnecessary to consider the government's

contention that in any event the defendant waived the ven-

ue issue by not moving at the appropriate time.

Other items raised by the defendant in support of his

motion for a new trial require little discussion.

[11] The defendant argues that proof of similar acts

was improperly admitted. Proof of similar acts on the de-

fendant’s part in accepting three other contributions from

AMPI employee Bob Lilly was admitted solely as tending

to show a pattern of conduct on the issues of knowledge

and intent at the time of the events charged in the indict-

ment.” Cautionary instructions were given to the jury as to

the limited purpose for which this evidence was received,”

first when offered and again in the final instructions.

The defendant further contends that the court’s instruc-

tion on the credibility of the defendant as a witness was

prejudicial. The instruction was proper and in accordance

with authority in this circuit.”

See United States v. Campanile, 516 F.2d 288 (2d Cir. 1975); United

States v. Gerry, 515 F.2d 130 (2d Cir. 1975); United Staies v. Papa-

dakis. 510 F.2d 287, 294-95 (2d Cir. 1975); United States v. Miller,

478 F.2d 1315 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38

L.Ed.2d 100 (1973); United States v. Williams, 470 F.2d 915, 917

(2d Cir. 1972); United States v. Johnson, 382 F.2d 280, 281 (2d Cir.

1970).

26T. 556-57. See United States v. Papadakis, 510 F.2d 287, 295 (2nd

Cir. 1975); United States v. Klein, 340 F.2d 547, 548-49 (2d Cir.),

cert. denied, 382 U.S. 850, 86 S.Ct. 97, 15 L.Ed.2d 89 (1965).

27U/nited States v. Dozier, 522 F.2d 224 (2d Cir. 1975); United States v.

Tyers, 487 F.2d 828 (2d Cir. 1973); United States v. Mahler, 363 F.2d

673 (2d Cir. 1966); United States v. Sullivan, 329 F.2d 755 (2d Cir.),

cert. denied, 377 U.S. 1005, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964).

See also Reagan v. United States, 157 U.S. 301, 304-11, 15 S.Ct.

610, 39 L.Ed. 709 (1895); United States v. Hill, 152 U.S.App.D.C.

213, 470 F.2d 361 (1972). The language used by the court was re-

cently reviewed and approved by our Court of Appeals in United

States v. Sclafani, 487 F.2d 245 (2d Cir.), cert. denied, 414 U.S.

1023, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973).

A-54

The court has considered the other items raised by the

defenc ant and finds them without merit.

A careful review of the record convinces the court that

the jury’s verdict is supported by substantial evidence and

that the defendant received a fundamentally fair trial.

The motions for a judgment of acquittal, new trial and

arrest of judgment are denied in all respects.

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 316—September Term, 1975.

(Argued October 7, 1975—-Decided March 8, 1976.)

Docket No. 75-1248

UNITED STATES OF AMERICA,

Appellee,

v.

JACK L. CHESTNUT,

Appellant.

Before:

WATERMAN, OAKES and MESKILL,

Circuit Judges.

Appeal from a judgment of conviction of causing an-

other to accept and receive an illegal corporate campaign

contribution in violation of 18 U.S.C. §§610, 2, entered in

A-55

the United States District Court for the Southern District

of New York, Edward Weinfeld, Judge, after a jury trial.

Affirmed.

EUGENE F. BANNIGAN, Assistant United States

Attorney, Southern District of New York (Paul J.

Curran, United States Attorney, Robert Gold, John

D. Gordan, III, Assistant United States Attorneys,

Southern District of New York, of counsel), for Ap-

pellee.

JACK S. NORDBY, ESQ., Saint Paul, Minnesota

(Douglas W. Thomson, Esq., Thomson, Wylde &

Nordby, Saint Paul, Minnesota, John A. Cochrane,

Esq., Cochrane & Bresnahan, Saint Paul, Minne-

sota, of counsel), for Appellant.

Meskill, Circuit Judge:

Jack L. Chestnut appeals from a judgment of conviction

of causing another to accept and receive an illegal cor-

porate campaign contribution in violation of 18 U.S.C.

§§610, 2." After a four day trial before Edward Weinfeld,

In 1970, the time of the offense charged, 18 U.S.C. § 610 provided, in

pertinent part, as follows:

“It is unlawful for . . . any corporation . . . to make a contribu-

tion or expenditure in connection with any election at which... .

a Senator . . . [is] to be voted for, or in connection with any pri-

mary election or political convention or caucus held to select candi-

dates for . . . [such office], or for any candidate, political commit-

tee, or other person to accept or receive any contribution prohibited

by this section.” '

18 U.S.C. § 2(b) states:

“Whoever willfully causes an act to be done which if directly

performed by him or another would be an offense against the

United States, is punishable as a principal.”

A-56

District Judge, the jury returned a guilty verdict. On June

25, 1975, Chestnut was sentenced to four months in prison

and fined $5,000.

Appellant Chestnut offers six arguments on this appeal:

(1) that the language and circumstances of the indictment

proved the prosecution to be ex post facto; (2) that the

indictment failed to state an offense because the payment

described was a lawful expenditure rather than a contri-

bution; (3) that venue in the Southern District of New York

was improper because every element of the questioned

transaction except actual deposit of the checks occurred

elsewhere; (4) that the evidence failed to prove beyond a

reasonable doubt the willfulness element of the crime; (5)

that allowing a government witness to offer an opinion as

to the legality of a contribution was prejudicial error; (6)

that, on its face and as applied, 18 U.S.C. §610 was un-

constitutionally vague and overbroad. Judge Weinfeld,

thoroughly considering these contentions in his pretrial and

post-trial opinions, United States v. Chestnut, 394 F. Supp.

581, 399 F. Supp. 1292 (S.D.N.Y. 1975), concluded that

they were without merit. We agree and affirm the judg-

ment of conviction.

The Facts:

In mid-February, 1970, Jack L. Chestnut, a Minneap-

olis attorney, became manager of Hubert H Humphrey’s

1970 Senatorial campaign in Minnesota. At a meeting in

that state, Chestnut sought the services of Campaign Plan-

ners, an entity created to handle the political advertising

accounts of Lennen & Newell, Inc. (“L & N”), a now-de-

funct New York advertising agency. An agreement was

A-57

reached several weeks later, after L & N mailed its written

proposal to Chestnut. Payment was to be made to L & N

in flat monthly fees which increased in size as the campaign

progressed towards election day; in toto the Humphrey

campaign planned to spend about $72,000 for L & N’s

services. Since L & N had no Minnesota offices, its repre-

sentatives worked out of Chestnut’s Minneapolis law office.

Other campaign business was also conducted from the law

firm’s office, with Penny Miller, the law firm’s office man-

ager, and Jennifer Broome, secretary for the campaign,

constituting the core of the campaign staff.

Associated Milk Producers, Inc. (“AMPI”), a coopera-

tive organization of dairy farmers, collects from its mem-

bers voluntary donations to a political fund, Trust Agri-

cultural Political Education (“TAPE”), from which it law-

fully can contribute to political campaigns. TAPE funds,

totally segregated from AMPI funds, are dispensed from

its own checking account. Representatives of AMPI had

assured the Humphrey campaign of between $4:) 0CO and

$50,000 in contributions; Bob Lilly was the liaison between

AMPI and the Humphrey campaign staff.

Lilly’s testimony revealed the nature of AMPI’s involve-

ment in unlawful corporate political spending. After the

1968 presidential election, AMPI apparently became con-

cerned about its standing with the new Republican ad- .

ministration. AMPI officials did not want the administra-

tion to be aware of contributions made to Democrats. Since

TAPE’s contributions had to be publicly reported, cor-

porate officials decided to indirectly make donations by

using corporate funds to reimburse AMPI employees who

had made personal donations or by simply using corpo-

rate checks to make contributions.

A-58

With this background, we turn to the sequence of events

which resulted in Chestnut’s indictment. It appears that

in the spring of 1970 AMPI’s General Manager, Harold

Nelson, asked Chestnut if there were any Humphrey cam-

paign bills to be paid. The two men agreed that AMPI

would pay $12,000 toward the Humphrey campaign’s debt

to L & N. Chestnut testified that it was his understanding

that the contributions were to come from TAPE, AMPI’s

political arm. There was conflicting testimony as to how

well financed the Humphrey forces were at this early stage

of the campaign.

In accordance with Chestnut’s instructions to bill AMPI,

L & N sent one invoice charging AMPI $12,000 for “con-

sulting fee[s] in Minnesota.” In an episode never satis-

factorally explained, Chestnut then called Lilly to inform

him not to pay that invoice but to await a corrected bill

which he, Chestnut, would forward; Chestnut confirmed

these instructions by letter on May 7, 1970. Five days later

AMPI received from Chestnut four L & N invoices, each

in the amount of $3,000, made out to AMPI. Once again

following Chestnut’s written instructions, Lilly transmitted

two AMPI checks to Chestnut’s office; these checks clearly

were drawn on the corporate account and payable toL & N.

Although Chestnut’s memory of subsequent events was un-

clear, he denied that he had ever seen the AMPI checks.

Members of his office staff testified that, by their usual

business procedures, they would have forwarded the checks

to L & N without caliing them to Chestnut’s attention.

Furthermore, the staff had been instructed that no cor-

porate checks would be accepted as contributions. The

checks from AMPI to L & N were deposited in L & N’s

New York bank and formed the basis of Chestnut’s in-

dictment.

A-59

At trial the government, over defense counsel’s objec-

tion, introduced evidence of other suspect events for the

limited purpose of showing similar conduct relevant to

Chestnut’s awareness of wrongdoing, i.e., the “willfulness”

element of the crime. The government elicited testimony

from Lilly, who appeared under a grant of immunity, that

three other campaign contributions had been made: Lilly’s

personal check in the amount of $10,000 prior to the L & N

payments; a remittance by Lilly of $1,450 by personal

check pursuant to Chestnut’s request; and, $12,500 in cash

which Lilly delivered to Chestnut late in the campaign. In

addition, Chestnut’s law firm received $5,000 indirectly

from AMPI for legal services. AMPI paid this money to

a third party on its payroll as a consultant, who then trans-

ferred it to Chestnut;.the corporation later denied that

Chestnut was one of its lawyers.

The government also questioned Penny Miller, Chest-

nut’s office manager, about her testimony before the Grand

Jury. At Chestnut’s trial, there was evidence presented that

Chestnut, after receiving legal advice that such action

would be proper, authorized his staff to destroy financial

records from the 1970 campaign. In her first appearance

before the Grand Jury, Mrs. Miller refused to answer ques-

tions about this action. After receiving a grant of immunity

the next day, Mrs. Miller testified about a conversation with

Chestnut concerning the Senate Watergate investigation, in

which conversation Chestnut had said that there was noth-

ing damaging in the financia] records, that they. meaning

the Watergate Committee, could do him no harm via the

records, but that his staff should get rid of them anyway.

On the witness stand at Chestnut’s trial, Mrs. Miller testi-

fied that the records were destroyed prior to the convening

A-60

of the Watergate Committee.

The government also introduced handwriting exemplars

taken by the F. B. I. in 1974 to compare with other samples

of Chestnut’s signature; a handwriting expert testified that

although the two sets of signatures had been written by

Chestnut, they looked as though they had been written by

different people.

Chestnut testified in his own behalf. He stated that his

understanding throughout his interactions with Lilly had

been that any campaign donations from AMPI were to

come from TAPE. Furthermore, he denied that he had

ever seen the L & N checks that AMPI had sent to his

office. Seven character witnesses attested to Chestnut’s rep-

utation for truth and honesty. There was also testimony

that, on at least one occasion, Chestnut had returned to

its sender a check drawn on a corporate account.

I. The Indictment.

Chestnut attacks the indictment on two grounds: that

he was subjected to an ex post facto prosecution because

the indictment was returned under the 1972 version of

the statute’ rather than the 1970 statute in force when

2The 1970 version of § 610 contained no Wefinition of the terms “con-

tribution” and “expenditure.” “These terms were defined in a separate

section, 18 U.S.C. § 591, as follows, in pertinent part:

“The term ‘contribution’ inciudes a gift, subscription, loan, ad-

vance, or deposit, of money, or anything of value... .”

“The term ‘expenditure’ includes a payment, distribution, loan, ad-

vance, deposit, or gift, of money, or anything of value... .”

in 1972 § 610 was amended to include, inter alia, a definition of “con-

tribution or expenditure” as follows, in pertinent part:

“As used in this section, the phrase ‘contribution or expenditure’

shall include any direct or indirect payment, distribution, loan, ad-

vance, deposit, or gift of money, or anything of value...

Amended February 7, 1972, Pub. L. 92-225, Title Il, § 205, 86 Stat.

10.

The definitional section, § 591, was amended at the same time as

to these terms. 86 Stat. 8.

A-61

the offense was allegedly committed, and that the indict-

ment failed to charge an offense under the 1970 version

of the statute. We find both arguments unpersuasive.

In support of his claim that the wrong law was pre-

sented to the Grand Jury, Chestnut emphasizes the incom-

pleteness of the statutory citation in the indictment, the

similarity in the language of the indictment to the language

of the 1972 amendment, and the fact that a copy of the

1972 version of the statute was attached to a press release

issued by the prosecution. An indictment js sufficient if

it contains the elements of the offense charged and fairly

informs a defendant of the charge against which he must

defend and enables him to plead an acquittal or conviction

in bar of future prosecutions for the same offense. Hamling

v. United States, 418 U.S. 87, 117 (1974). The court must

look at the allegations pleaded in the indictment to de-

termine whether an offense has been charged. United States

v. Hutcheson, 312 U.S. 219, 229 (1941); Paz Morales v.

United States, 278 F.2d 598, 599 (1 Cir. 1960); United

States v. Kolodny, 149 F.2d 210, 211 (2 Cir. 1945).

The unexplained episode in»which the 1972 statute was

appended to the press release does not determine the valid-

ity of the indictment. Properly looking at the facts pleaded

in the indictment itself, the district court correctly con-

cluded that an offense under the 1970 statute had been

charged. Any similarity to the language of the 1972 statute

is jnconsequential since, “[t]he allegations which spell out

the payment by AMPI to L & N for the services it rendered

to the Humphrey campaign merely describe the details

whereby it is charged the defendant engaged in artifice or

subterfuge to conceal the receipt of the contribution.” 394

A-62

F. Supp. at 585. Indeed, in Pipefitters Local No. 562 v.

United States, 407 U.S. 385, 399 (1972), the Supreme

Court explicitly held that, with one exception not relevant

to the instant case, the 1972 amendments made no substan-

tive changes in the statute but “merely codifie[d] prior

law.” We thus conclude that Chestnut’s argument that the

events described in the indictment could be illegal only

under the amended version of $610 is without merit. The

failure to cite properly the statute charged in the indictment

would be ground for dismissal only if Chestnut had been

misled to his prejudice. Rule 7(c), Fed. R. Crim. P.; Uni-

ted States v. Calabro, 467 F.2d 973, 981 (2 Cir. 1972),

cert. denied, 410 U.S. 926 (1973); United States v. Rivera,

513 F.2d 519, 533 n. 21 (2 Cir. 1975). Here the non-con-

formity merely consisted of omission of the definitional

section’s number and the notation that the statute had been

/amended. It is inconceivable that such omissions could have

‘ misled Chestnut as to the nature of the charges dgainst

him.* Furthermore, any doubts that Chestnut might have

entertained as to which version of the statute formed the

basis of his indictment should have been resolved by the

district court’s pretrial ruling on this very issue.

Chestnut also contends that the payment by AMPI to

L & N was really an “expenditure” rather than a “con-

tribution,” as charged in the indictment, because expendi-

tures are indirect payments while contributions include only

gifts or direct payments; he then reasons that since $610

did not make it a crime to receive an expenditure, the in-

3Compare United States v. Beard, 436 F.2d 1084 (5 Cir. 1971), where

the government, after trial had begun, attempted to substitute a totally

different and unrelated statute for that charged in the indictment.

Such a substitution was, of course, held to be constitutionally imper-

missible.

eae i i ih i Nn at as bait aaNet eS ik Si a tance cinnamon:

A-63

dictment failed to charge an offense. Even applying Chest-

nut’s own analytic framework to the facts of this case, we

find that AMPI’s checks to L & N constituted a contribu-

tion to the Humphrey campaign.

The touchstone of Chestnut’s argument is that AMPI’s

checks to L & N represented an expenditure by the corpo-

ration. In 1970 the statutory definition of a contribution

included “a gift, subscription, loan, advance, or deposit,

of money, or anything of value. . . .” Since AMPI had in-

curred no debt of its own to L & N because L & N had

performed no services for AMPI, we agree with the district

court that “picking up ancther’s obligation—here a Hum-

phrey campaign debt to L & N—is a gift of money, in short,

a contribution to the Humphrey campaign.” 394 F. Supp.

at 586. It was only because Chestnut directed AMPI to

pay some of the Humphrey campaign obligations due L

& N that any transaction occurred between the two. Even

though AMPI issued checks payable to L & N rather than

the campaign committee itself, the corporation was making

a contribution to the Humphrey campaign.

The Supreme Court’s extensive discussion of § 610 in

United States v. Auto Workers, 352 U.S. 567 (1957), fully

supports this conclusion. In that case, which concerned an

“expenditure” violation, the Court concluded that the in-

dictment charged an offense where a union used monies

from its general treasury to pay for commercial television

broadcasts sponsored by the union. The Court emphasized

that Congress had added the prohibition of “expenditures”

to § 610 to cover a union’s distribution of its funds to state

its own position to the world. 352 U.S. at 585. These “ex-

penditures,” however, resulted from obligations incurred

by the union or corporation in presenting its views. “Con-

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tributions,” then, must encompass “gifts . . . or anything

of value” made to the candidate or his campaign organiza-

tion to assist the candidate in presenting his message to

the public. In the instant case, AMPI incurred no obliga-

tions of its own to L & N. Rather, in lieu of giving money

directly to the campaign organization, AMPI discharged

obligations incurred by the campaign organization in pro-

moting its candidate to the public, thus making a contri-

bution.

Il. Venue.

Chestnut next asserts, as he did in the district court, that

trial in New York, rather than in Minnesota, was con-

stitutionally impermissible because every element of the

transaction, except the actual deposit of the checks, oc-

curred outside New York.

It is clear that “[q]Juestions of venue in criminal

cases . . . are not merely matters of formal legal proce-

dure. They raise deep issues of public policy in the light

of which legislation must be construed.” United States v.

Johnson, 323 U.S. 273, 276 (1944). The Constitution re-

quires that “[T]he Trial of all Crimes . . . shall be held

in the State where the said Crimes shall have been com-

mitted... .” Art. III, § 2, cl. 3. The Sixth Amendment

further guarantees trial “by an impartial jury of the State

and district where in the crime shall have been commit-

ted... .* In Platt v. Minnesota Mining Co., 376 US.

240, 245 (1964), a unanimous Supreme Court rejected

“the erroneous holding of the Court of Appeals that crim-

‘Rule 18, Fed. R. Crim. P., implements these constitutional commands

by providing that prosecutoin shall occur in a district in which the of-

fense was committed, except as otherwise permitted by statute or the

Criminal Rules.

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inal defendants have a constitutionally based right to a

trial in their home districts.” It thus appears settled that

proper venue in a criminal case is determined by the locus

of the offense. United States v. Cores, 356 U.S. 405, 407

(1958); United States v. Anderson, 328 U.S. 699, 704-05

(1946). See also C. Wright, 1 Federal Practice and Pro-

cedure, § 301 at 581-582 (1975).

In determining proper venue then, the district court must

ascertain both the nature of the offense and the location of

the acts constituting it. United States v. Anderson, supra,

328 U.S. at 703; United States v.Cores, supra, 356 US.

at 408. One helpful technique has been to study the key

verbs which define the criminal offense in the statute.

United States v. Slusky, 487 F. 2d 832, 839 (2 Cir.), cert.

denied, 416 U.S. 937 (1973); United States v. Bithoney,

472 F. 2d 16, 23 (2 Cir.), cert. denied, 412 U.S. 938

(1973). The defendant in the instant case was charged with

violating 18 U.S.C. §§ 610 and 2 by willfully causing L &

N to receive an unlawful corporate contribution on behalf

of the Humphrey campaign. Chestnut first argues that the

offense, if any, consisted of his actions in Minnesota, i. e.,

causing the unlawful contribution, rather than causing L

& N’s receipt of the checks in New York. Clearly the sub-

stantive offense charged here is the receiving and accept-

ing of an unlawful contribution. The causation aspect of

the charge, derived from § 2, makes punishable as a prin-

cipal one who willfully causes another to commit an of-

fense. Since § 2 itself does not define a crime, United States

v. Gerhart, 275 F. Supp. 443, 445 (S.D.W.Va. 1967),

Chestnut’s argument must fail. See also United States v.

Bozza, 365 F. 2d 206, 222 (2 Cir. 1966): United States

A-66

v. Campbell, 426 F. 2d 547, 553 (2 Cir. 1970). The con-

stitutional standards for venue concern the locality of the

substantive offense rather than the location of the offender

at the time of the offense. Armour Packing Co. v. United

States, 209 U.S. 56, 76 (1908); see also Travis v. United

States, 364 U.S. 631, 634 (1961).

The Court must next decide “when the defendant’s ac-

tions have progressed to the point where a court can con-

fidently conclude that a crime has been committed.”

United States v. Bithoney, supra, 472 F. 2d at 23. We con-

clude that venue in the Southern District was constitution-

ally proper because the deposit of the checks in New York,

where the principal offices and officers of L & N were lo-

cated, constituted the ultimate essential element of the of-

fense of accepting and receiving an unlawful contribution.°

Prior cases have held that when a check is used to make

a forbidden payment, venue is proper where the check is

deposited. In Burton v. United States, 196 U.S. 283

(1905), the defendant, a United States Senator, was con-

victed in Missouri of receiving payment for services ren-

dered in a proceeding in which the United States was a

party. Checks for these services were mailed from St.

Louis to the defendant in Washington. The Court held that

the deposit of the checks in Washington constituted the

receiving of payment that was forbidden by the statute; thus

the crime occurred in Washington and venue in Missouri

5Chestnut argues that the offense in question here was not a continuing

offense which might be prosecuted in more than one district under 18

U.S.C. § 3237(a). In essence he claims that venue in this case was

proper only in Minnesota. Since we have concluded that venue in New

York was constitutionally permissible, we need not consider whether

the offense defined in § 610 is a continuing offense which also might

have been prosecuted in Minnesota.

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was improper.° Since the Court in the Burton case discussed

at length the niceties of banking law in analyzing where

payment of the check occurred,’ it is at least clear that the

place of delivery of a check does not determine venue.*

United States v. Lotsch, 102 F. 2d 35, 36 (2 Cir.) cert.

denied, 307 U.S. 622 (1939); see also United States v.

Johnson, 337 F. 2d 180, 193 (4 Cir. 1964), aff'd. 383

U.S. 169 (1966). Consequently, it is not crucial to de-

termine wither the checks involved in the instant case

were delivered to L & N in Minnesota or New York.’

Until the checks were deposited, the campaign debt was

not discharged and no unlawful contribution had been re-

ceived.

®Another trial was held which culminated in a second Supreme Court

opinion, Burton v. United States, 202 U.S. 344 (1906). In this later

case the Court discussed venue only as it related to a new count in the

indictment which charged Burton with agreeing to receive compensa-

tion. The Court upheld the jury’s finding that an unlawful agreement

occurred in Missouri.

TThe Court found that under the District of Columbia banking laws, the

deposit of checks and the drawing against them by customers created

a relationship of debtor and creditor, and the bank became the abso-

lute owner of the check rather than the customer’s agent for collec-

tion; this status was not affected by the bank’s right to proceed against

the customer if the checks were not paid. 196 U.S. at 297. New York’s

banking law appears to be in accord. See, e.g., Menkes Feuer, Inc. v.

People’s Bank, 43 N.Y.S.2d 32, 35 (Sup. Ct. 1943), aff'd, 268 App.

Div. 809 (3d Dept. 1944), 48 N.Y.S.2d 593, /v. to app. denied, 268

App. Div. 836 (3d Dept. 1944).

SSenator Burton clearly received the check in Washington. Therefore, if

the place of receipt was the determinative factor, the Court easilv

could have resolved the venue question without considering banking

law.

*%Additionally there can be little question that the intent of the parties

throughout this transaction was to transfer funds to L & N, located in

New York. See, United States v. Grossman, 400 F.2d 951, 954 (4

Cir.), cert. denied, 393 U.S. 982 (1968), where, in an antikickback

case, the court held that the payment proscribed was made in the state

and district of indictment where the intention of the parties was to

vest ownership of corporate stock in a donee at a time when he was

domiciled and physically present in such state even though the certifi-

cates were delivered to the donee’s mother in another state.

A-68

Finally, in United States v. McMaster, 343 F. 2d 176,

181 (6 Cir.), cert. denied, 382 U.S. 818 (1965), where a

donee was prosecuted for receiving a payment in violation

of the Labor Management Relations Act, the court held

that the deposit of corporate checks in a bank account in

Detroit was sufficient, for purposes of venue, to establish

payment in the Eastern District of Michigan. We therefore

concur in the district court’s conclusion that the offense

occurred when AMPI’s corporate checks were deposited in

L & N’s New York City bank account, thus discharging a

debt owed by the Humphrey campaign. Venue in the

Southern District of New York was proper.

III. Sufficiency of the Evidence.

Chestnut also claims that the government failed to prove

beyond a reasonable doubt that he saw the checks in ques-

tion or knew that they were drawn on a corporate account.

He therefore concludes that the government did not make

the requisite showing of willfulness, an essential element

of the offense charged. To buttress this argument, Chest-

nut cites his lack of motive for accepting corporate funds,

evidence that he had once returned such a check, and of-

fice procedures which would have resulted in his staff auto-

matically forwarding the checks toL & N.

Viewing the evidence in the light most favorable to the

government, Glasser v. United States, 315 U.S. 60, 80

(1942). this Court will sustain a verdict where “a reason-

able mind might fairly conclude guilt beyond a reasonable

doubt.” United States v. Freeman, 498 F. 2d 569, 571

(2 Cir. 1974); see also United States v. Taylor, 464 F. 2d

240,:243 (2 Cir. 1972). Recognizing the inherent difficulty

in establishing a willful violation of the law by direct evi-

A-69

dence, the Supreme Court has held that willfulness may —

be inferred from the “handling of one’s affairs to avoid

making the records usual in transactions... and.

[from] conduct, the likely effect of which would be | to

mislead or to conceal.” Spies v. United States, 317 U.S. 492,

499 (1943) Inferences of willfulness by juries have been

upheld where, for example, extremely unusual circum-

stances were involved in a course of conduct and the de-

fendant’s explanation was implausible. See United States v.

De Garces, 518 F. 2d 1156, 1160 (2 Cir. 1975); United

States v. LaFroscia, 485 F. 2d 457 (2 Cir. 1973). The ab-

sence of proof of motivation is not fatal to the government’s

case where there is sufficient evidence of criminal intent.

United States v. Simon, 425 F. 2d 796, 809 (2 Cir. 1969),

cert. denied, 397 U.S. 1006 (1970).

At trial the government adduced evidence that Chestnut

devised and actively participated in the indirect procedures

by which the Humphrey campaign would benefit from

AMPI’s largesse. The evidence, as succinctly summarized

by the district court, showed that Chestnut was deeply in-

volved in accomplishing payment by a particular format:

“It was the defendant who directed both Lennen &

Newell, Inc. and Bob Lilly . . . to carry out the proce-

dures whereby the advertising agency, which had ren-

dered services to the Humphrey campaign, not to

AMPI, would prepare invoices to be made out to

AMPI and for AMPI to pay those invoices. It was

the defendant who instructed Lilly not to pay the in-

voices because they were not in proper form, but to

await corrected bills. It was the defendant who sent

a letter to Lilly to have AMPI pay the enclosed four

corrected invoices . . ., instructing him to forward

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checks made payable to Lennen & Newell to him, the

defendant at his office in Minneapolis. . . .” 399 F.

Supp. at 1294.

A jury could conclude that this manner of payment of

campaign debts, whereby L & N billed AMPI for “consult-

ing fee[s] in Minnesota” and AMPI issued checks pay-

able to L & N, was intended to avoid making the usual

records, with the likely effect of concealment of the trans-

action. The defense presented no cogent explanation as to

why contributions were made in this mannei. Given this

elaborately indirect plan for making a political contribu-

tion and Chestnut’s active role in insuring its effectiveness,

we find that a reasonable mind could have inferred will-

fulness beyond a reasonable doubt.

IV. Admissibility of “Similar Act’ Evidence.

Chestnut asserts that the trial court committed preju-

dicial error by allowing Bob Lilly to testify about three

other contributions made to the Hu

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