U.S. v. Brewster, 73-1305
| Decision Date | 02 August 1974 |
| Docket Number | No. 73-1305,73-1305 |
| Citation | 165 U.S. App. D.C. 1,506 F.2d 62 |
| Parties | UNITED STATES of America v. Daniel B. BREWSTER, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Edward Bennett Williams, Washington, D.C., with whom Earl C. Dudley, Jr., Washington, D.C., was on the brief, for appellant.
Stuart M. Gerson, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., at the time the brief was filed and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee. Earl J. Silbert, U.S. Atty. and James E. Sharp Asst. U.S. Atty. at the time the record was filed, also entered appearances for appellee.
Before, TAMM, ROBINSON and WILKEY, Circuit Judges.
This appeal arises from conviction of defendant Brewster on three counts of an indictment charging violations of 18 U.S.C. 201(c)(1), Bribery of Public Officials and Witnesses. The jury convicted, not on the bribery section 201(c) (1), but on the illegal gratuity section 201(g), defined by the trial judge's instructions as a lesser included offense.
Defendant Brewster urges three principal points:
(1) Section 201(g) was erroneously designated and charged as a lesser included offense under section 201(c)(1).
(2) Section 201(g) is unconstitutionally vague and overbroad.
( 3) The trial judge failed in his charge to the jury to distinguish between legal and illegal political contributions sufficiently to enable the jury to determine guilt or innocence. 1
We find that on the facts this case a conviction under the gratuity section 201(g) as a lesser included offense within the bribery section 201(c)(1) 2 could be sustained. We do not find 18 U.S.C. 201(g) 3 unconstitutionally vague or overbroad as applied to elected public officeholders. We do find, however, that the trial judge failed in his conscientious effort to set forth a clear and comprehensible standard for the jury to make the difficult tripartite distinction among receiving bribery payments within section (c)(1), receiving illegal gratuities within section (g), and receiving legal normal campaign contributions. We therefore reverse and remand for a new trial, at which the task of the trial judge will be somewhat lighter, as he will now need only to distinguish between accepting illegal gratuities under section 201(g) and receiving legal campaign contributions.
The defendant Daniel B. Brewster, former United States Senator from Maryland, was originally indicted along with Cyrus T. Anderson and Spiegel, Inc., in a 10-count indictment. Five of the counts related to Brewster's accepting alleged bribes and gratuities as defined by 18 U.S.C. 201(c)(1) and (g), while five counts charged defendants Anderson and Spiegel, Inc., with the reciprocal payment of the bribes and gratuities under sections 201(b) and (f). 4 Two of the counts against Brewster were dismissed, leaving Counts 3 and 5 (originally Counts 5 and 7), which charged that while he was a Senator, Brewster had on 27 April and 19 July of 1967
directly and indirectly, corruptly asked, solicited, sought, accepted, received and agreed to receive the sum (§ of $4,500 and $5,000 respectively) for himself and for an entity, that is, the 'D.C. Committee for Maryland Education,' from Cyrus T. Anderson and Spiegel, Inc. in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity and in his place of trust and profit; in violation of Section 201(c)(1) and (2), Title 18, United States Code. 5
Count 1 similarly charged Brewster with receiving in January 1967 a $5,000 bribe for himself alone.
Brewster was a member of the Senate Committee on Post Office and Civil Service. 6 At the time the first sum of money was allegedly illegally received by Senator Brewster, no postal rate legislation was pending in the Senate, but there had been publicly proposed by the Postmaster General a postal rate increase, which legislation was introduced on 5 April 1967.
Brewster's connection with Anderson and Spiegel, Inc., in these matters originated in late 1965, when a political fund-raiser suggested to the Senator and his Administrative Assistant Sullivan that money for the Senator's re-election campaign could be available through Cyrus Anderson. Since Brewster was not yet an announced candidate for re-election in Maryland, his visitor recommended that he set up a committee in the District of Columbia to receive unreported contributions.
This initial contact with Brewster was followed up by a phone call from Anderson to Sullivan in January 1966, in which both the postal rate increase proposal and Anderson 'sending something' to the office were discussed. Shortly thereafter a $5,000 check from the Hotel and Restaurant Employees and Bartenders International Union, made payable to the 'D.C. Committee for Maryland Education,' arrived in Senator Brewster's office. 7 At the time the check was received the D.C. Committee did not yet exist, but shortly thereafter it was directed to be organized by Brewster. Sullivan became president, and a Brewster supporter not affiliated with the Senator's office was selected as treasurer; a bank account was opened in which the $5,000 check was deposited.
The events which became the subject matter of the three counts on which defendant Brewster was ultimately convicted began in January 1967. Anderson met with Brewster and Sullivan in the Senator's office, at which time Anderson explained his representation of Spiegel, Inc., its opposition to higher postal rates, and its interest in seeing the proposed increase defeated when introduced. After laying out his and Spiegel, Inc.'s interest in these legislative matters, Anderson gave Brewster an envelope containing $5,000 in cash, which the Senator handed over to Sullivan. The $5,000 in cash was placed in a safe in Sullivan's office next door to the Senator's, and the funds were later used to meet miscellaneous expenditures which defendant Brewster wanted paid in cash. 8
The anticipated postal rate increase legislation was introduced on 5 April 1967. On or about 27 April 1967 Anderson, accompanied by a man introduced as Morris Spiegel, saw defendant Brewster and Sullivan in the Senator's office. After discussion of the postal rate legislation and the tactics to defeat the rate increase as applied to Spiegel's mail-order catalogue business, the purported Mr. Spiegel handed an envelope containing $4,500 in cash to defendant Brewster, who later instructed Sullivan to have the funds deposited in the D.C. Committee account. On 28 April, the day after the deposit, Brewster requested $3,000 in cash, and Sullivan drew a check on the D.C. Committee account and gave the $3,000 to Brewster, who deposited it in his personal account. 9
On 19 July 1967 Anderson gave Sullivan his personal check for $5,000, with the payee line blank. Sullivan wrote in the name of the D.C. Committee. The evidence showed that Anderson made this personal check because, while Sullivan at defendant Brewster's direction had been entreating Anderson for further funds from Spiegel, Inc., no Spiegel check had yet arrived in Brewster's office. Immediately following the 20 July deposit of the $5,000 Anderson check, at Brewster's direction four checks totalling $5,000 were drawn on the D.C. Committee account, and defendant Brewster received $3,000 of the proceeds. Another $1,000 was sent at Brewster's direction to a Maryland candidate. 10
Brewster's own testimony showed that the D.C. Committee for Maryland Education had not been set up for educational purposes, but rather as a conduit for political contributions. A considerable volume of testimony regarding individual checks and transactions in addition to those made the subject of the various counts of the indictment showed that the D.C. Committee account was used to make campaign contributions for Brewster, to make reimbursements and advances to staff members, to pay for public opinion polls, tickets to political dinners, and office supplies. Sullivan prepared most of the checks on the D.C. Committee account, but did so upon defendant Brewster's direction. Testimony also showed that Brewster's personal account was utilized in much the same way to pay for similar items. Brewster himself testified that if the D.C. Committee account had not been utilized to pay the expenses for which it was used, he himself would have been required to do so.
Senator Brewster's defense was that although the payments were made by Anderson with the intent to influence Senator Brewster's action with respect to the postal legislation, yet Brewster himself did not accept any money in return for being so influenced. This defense was partially successful. While the jury convicted Anderson of the crime of bribery on all three counts as charged, the jury acquitted Senator Brewster on the three bribery counts, but convicted him of the lesser included offense of accepting an illegal gratuity under section 201(g). From the nature of this jury verdict arise the difficult legal problems on this appeal.
There are two subsections of 18 U.S.C. 201 involved here. Under section 201(c)(1) defendant Brewster was indicted; under section 201(g) he was convicted. The relationship between the two subsections, identifying the three clauses on which the parties' legal arguments turn, is best set forth graphically.
Bribery Section (c) (1) Gratuity Section (g)
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(c) Whoever, being a public (g) Whoever, being a public
official ( ) or person official. (former public
selected to be public official,) or person selected
official, to be a...To continue reading
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