U.S. v. Chestnut, No. 316

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore WATERMAN, OAKES and MESKILL; MESKILL; The government also questioned Penny Miller, Chestnut's office manager, about her testimony before the Grand Jury. At Chestnut's trial, there was evidence presented that Chestnut, after receiving legal adv
PartiesUNITED STATES of America, Appellee, v. Jack L. CHESTNUT, Appellant. ocket 75-1268.
Docket NumberD,No. 316
Decision Date08 March 1976

Page 40

533 F.2d 40
UNITED STATES of America, Appellee,
v.
Jack L. CHESTNUT, Appellant.
No. 316, Docket 75-1268.
United States Court of Appeals,
Second Circuit.
Argued Oct. 7, 1975.
Decided March 8, 1976.

Page 42

Eugene F. Bannigan, Asst. U. S. Atty., S. D. N. Y., Great Neck, N. Y. (Paul J. Curran, U. S. Atty., Robert Gold, John D. Gordan, III, Asst. U. S. Attys., S. D. N. Y., New York City, of counsel), for appellee.

Jack S. Nordby, Saint Paul, Minn. (Douglas W. Thomson, Thomson, Wylde & Nordby, John A. Cochrane, Cochrane & Bresnahan, Saint Paul, Minn., of counsel), for appellant.

Before WATERMAN, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Jack L. Chestnut appeals from a judgment of conviction of causing another to accept and receive an illegal corporate campaign contribution in violation of 18 U.S.C. §§ 610, 2. 1 After a four day trial before Edward Weinfeld, 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 contribution; (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 unconstitutionally

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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 judgment of conviction.

The Facts:

In mid-February, 1970, Jack L. Chestnut, a Minneapolis 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 Planners, an entity created to handle the political advertising accounts of Lennen & Newell, Inc. ("L & N"), a now-defunct New York advertising agency. An agreement was 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 representatives 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 manager, and Jennifer Broome, secretary for the campaign, constituting the core of the campaign staff.

Associated Milk Producers, Inc. ("AMPI"), a cooperative organization of dairy farmers, collects from its members voluntary donations to a political fund, Trust Agricultural Political Education ("TAPE"), from which it lawfully 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 $40,000 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 involvement in unlawful corporate political spending. After the 1968 presidential election, AMPI apparently became concerned about its standing with the new Republican administration. AMPI officials did not want the administration to be aware of contributions made to Democrats. Since TAPE's contributions had to be publicly reported, corporate officials decided to indirectly make donations by using corporate funds to reimburse AMPI employees who had made personal donations or by simply using corporate checks to make contributions.

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 campaign 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 "consulting fee(s) in Minnesota." In an episode never satisfactorally 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 to L & N. Although Chestnut's memory of subsequent events was unclear, 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 calling them to Chestnut's attention. Furthermore, the staff had been instructed that no

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corporate 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 indictment.

At trial the government, over defense counsel's objection, 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 transferred it to Chestnut; the corporation later denied that Chestnut was one of its lawyers.

The government also questioned Penny Miller, Chestnut'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 questions 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 nothing damaging in the financial 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 testified that the records were destroyed prior to the convening 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 reputation 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 2 rather than the 1970 statute in force when the offense was allegedly committed, and that the indictment failed to charge an offense under the 1970 version

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of the statute. We find both arguments unpersuasive.

In support of his claim that the wrong law was presented to the Grand Jury, Chestnut emphasizes the incompleteness 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 is 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, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974). The court must look at the allegations pleaded in the indictment to determine whether an offense has been charged. United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 464, 85 L.Ed. 788, 791 (1941); Paz Morales v....

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66 practice notes
  • U.S. v. O'Grady, No. 782
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Julio 1984
    ...Chestnut, 394 F.Supp. 581, 591 (S.D.N.Y.1975) (narrow construction of criminal statute meets "least drastic means" test), aff'd, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976). The fact that United States Attorneys are responsible and fair-min......
  • U.S. v. Cofield, No. 92-5722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 22 Febrero 1994
    ...of the effect of the criminal conduct, and the suitability of each district for accurate factfinding. See also United States v. Chestnut, 533 F.2d 40, 46-48 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Bithoney, 472 F.2d 16, 23-24 (2d Cir.), cer......
  • Athens Lumber Co., Inc. v. Federal Election Com'n, No. 82-8102
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Octubre 1982
    ...en banc, 635 F.2d 1132 (5th Cir.), cert. denied, 453 U.S. 917, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981); United States v. Chestnut, 533 F.2d 40, 50, 51 n. 12 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Boyle, 482 F.2d 755 (D.C.Cir.), cert. denied,......
  • U.S. v. Herrera, Nos. 1118
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 3 Agosto 1978
    ...instructions, any error was harmless. See, e. g. United States v. Turbide, 558 F.2d 1053 (2d Cir. 1977); United States v. Chestnut, 533 F.2d 40, 49 (2d Cir.), Cert. denied, 420 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Santiago, 528 F.2d 1130, 1134 (2d Cir.), Cert. denie......
  • Request a trial to view additional results
66 cases
  • U.S. v. O'Grady, No. 782
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Julio 1984
    ...Chestnut, 394 F.Supp. 581, 591 (S.D.N.Y.1975) (narrow construction of criminal statute meets "least drastic means" test), aff'd, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976). The fact that United States Attorneys are responsible and fair-min......
  • U.S. v. Cofield, No. 92-5722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 22 Febrero 1994
    ...of the effect of the criminal conduct, and the suitability of each district for accurate factfinding. See also United States v. Chestnut, 533 F.2d 40, 46-48 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Bithoney, 472 F.2d 16, 23-24 (2d Cir.), cer......
  • Athens Lumber Co., Inc. v. Federal Election Com'n, No. 82-8102
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Octubre 1982
    ...en banc, 635 F.2d 1132 (5th Cir.), cert. denied, 453 U.S. 917, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981); United States v. Chestnut, 533 F.2d 40, 50, 51 n. 12 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Boyle, 482 F.2d 755 (D.C.Cir.), cert. denied,......
  • U.S. v. Herrera, Nos. 1118
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 3 Agosto 1978
    ...instructions, any error was harmless. See, e. g. United States v. Turbide, 558 F.2d 1053 (2d Cir. 1977); United States v. Chestnut, 533 F.2d 40, 49 (2d Cir.), Cert. denied, 420 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976); United States v. Santiago, 528 F.2d 1130, 1134 (2d Cir.), Cert. denie......
  • Request a trial to view additional results

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