U.S. v. Finance Committee to Re-Elect the President

• Decision Date: 02 December 1974
• Docket Number: No. 73-1918,RE-ELECT,73-1918
• Citation: 165 U.S.App.D.C. 371,507 F.2d 1194
• Parties: UNITED STATES of America v. FINANCE COMMITTEE TOTHE PRESIDENT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1194

507 F.2d 1194

165 U.S.App.D.C. 371

UNITED STATES of America v. FINANCE COMMITTEE TO RE-ELECT THE PRESIDENT, Appellant.

No. 73-1918.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 24, 1974.

Decided Dec. 2, 1974.

Leon T. Knauer and John M. Facciola, Washington, D.C., with whom Kenneth Wells Parkinson and Nicholas S. McConnell, Washington, D.C., were on the brief, for appellant.

Craig C. Donsanto, Atty., Fraud Section, Crim. Div., Dept. of Justice, with whom Henry E. Petersen, Asst. Atty. Gen., Harold Titus, U.S. Atty. at the time the brief was filed and Richard S. Stolker, Atty., Crim. Div., Dept. of Justice, were on the brief, for appellee. Walter T. Barnes, Atty., Dept. of Justice, also entered an appearance for appellee.

Before LEVENTHAL and ROBINSON, Circuit Judges, and NICHOLS, ¹ Judge, United States Court of Claims.

NICHOLS, Judge:

This Appeal concerns the conviction of Appellant Committee on a three-count Information under the Federal Election Campaign Act of 1971, 2 U.S.C. 431-454 (Supp. II, 1972) (which repealed and replaced, effective April 7, 1972, the old Corrupt Practices Act of February 28, 1925, ch. 368, Title 3, 301-319, 43 Stat. 1070-1074; 2 U.S.C. 241-256 (1970).)

Count One charged that the Committee Chairman, Mr. Maurice Stans, failed to report within 5 days to the Committee Treasurer, Mr. Hugh Sloan, a detailed account (including donor's name, address, occupation, and business address) of a $200,000 cash contribution received by Mr. Stans on April 10, 1972, in Washington, D.C., from agents of Mr. Robert Vesco.

Count Two charged that Mr. Sloan, failed to keep a record of the information specified in Count One concerning the contribution of $200,000.

Count Three charged the Committee with failing to report the contribution described in Counts One and two, on or after June 10, 1972, in reports filed with the GAO (General Accounting Office).

No individual was accused in any count. Certain facts were stipulated and others were put before the court with Appellant's motion for a verdict of not guilty, which the court denied. The Appellant Committee waived jury trial and was convicted on all three counts and sentenced to a fine of $1,000 on each of the three counts. For the reasons given below, we affirm the conviction on all three counts.

The statute, cited supra, on and since April 7, 1972, has required that 'every person who receives a contribution in excess of $10 for a political committee shall * * * within five days after receipt of such contribution, render to the treasurer a detailed account thereof, including the amount, the name and address (occupation and principal place of business, if any) of the person making such contribution, and the date on which (it was) received * * *', 2 U.S.C. 432(b). Mr. Stans, having been promised a contribution of over $200,000 by Mr. Vesco, orally and not in writing, before April 7, received $200,000 from that source after April 7, on April 10. He did not inform the Treasurer Mr. Sloan, of the identity of the donor or the date of receipt. The statute further provides, in 441, that 'any person who violates any provision of this title shall be fined not more than $1,000 or imprisoned for not more than one year, or both.' These are the facts proved as to Count One.

The statute further requires the Treasurer 'to keep a detailed and exact account' of all contributions over $10, and 'the full name and mailing address' of every donor of such a contribution. 2 U.S.C. 432(c). Mr. Sloan did not do this and this is the gravamen of Count Two. The statute further requires a report by the treasurer of a 'political committee' the tenth day of each June, with the 'appropriate supervisory office' in this case th GAO. The report had to show 'the full name and mailing address' of anyone making a 'contribution' in excess of $100, 434(a) and (b)(2). The Treasurer did not do this respecting the Vesco contribution, and this is the gravamen of Count Three.

The statute also defines a 'contribution' as 'a gift, subscription, loan, advance, or deposit of money * * *' (431(e)(1)), and 'a contract, promise, or agreement, whether or not legally enforceable, to make a contribution * * *' (431(e)(2)).

The Comptroller General being designated as the 'supervisory officer' in the case of contributions to influence Presidential contests (431(g)), the GAO was to be the recipient of the above reports and by regulation prescribe forms of reporting which will be dealt with hereinafter.

The Appellant raises five issues on appeal, four attacking the proceedings below and the fifth the constitutionality of the statute.

I

In challenging the sufficiency of the evidence, Appellant says, as to Counts One and Two, that the stipulation on which the case was submitted contains no statements with respect to the alleged failure of defendant's Chairman (Mr. Stans) to render a detailed account of the transaction to the Treasurer (Mr. Sloan) or the alleged failure of the Treasurer to maintain a complete record thereof.

There is no signed text of a stipulation in the appellate record. In the Government brief opposing the motion for a verdict of not guilty is a statement of facts ending with the words: 'The United States hereby agrees to the stipulation of these facts as stated above.' This statement omits what Appellant says it omits. Appellant's counsel made similar statements in oral argument before Judge Hart that might be called a stipulation. However, with Appellant's memorandum in support of the motion, it submitted a Report by the Office of Federal Elections, General Accounting Office, which supplies the missing facts and a great deal more. Mr. Stans is quoted as saying no record was made of the Vesco transaction. Mr. Sloan, through his attorney, advised the GAO that the identity of the donor was not disclosed to him and he dealt with the funds as pre-April 7 contributions.

We are at a loss to explain why Appellant attached this report to its motion if it was not to inform the trial court what the conceded facts were, and direct that court's attention to the legal issues which these conceded facts would raise, in Appellant's opinion. Appellant said nothing to reserve any question as to whether the GAO report was factually correct. The trial judge found the facts as revealed in the GAO report, and in moving for rehearing, Appellant made no complaint of his having done so without support of evidence. Appellant never contended until the case came before us that proof of necessary factual elements was missing. In the circumstances, we conclude that the trial court treated the GAO report as evidence supplementing the stipulation. This was not a case where the Government had put in all its proof and rested, so that it could be subject to a motion that the Government's proof was not sufficient to support a conviction. We see no basis for reversal.

Neither Mr. Sloan nor anyone else ever properly entered the $200,000 on the Committee Treasurer's books.

On the Third Count, Mr. Stans himself swore that the $200,000 was reported as CASH ON HAND ON APRIL 7, 1972, in the June 10, 1972 report, even though physical delivery did not occur until April 10, 1972.

II

Appellant's second contention is that there was no proof of its criminal intent and that proof was required.

Appellant admitted that its entire Committee organization was dissolved and re-established on paper, so that the pre-April 7 Committee would never legally exist under the new act (and be subject to reporting and discovery procedures). Committee personnel were encouraging all donations to be made during the pre-April 7 secrecy period. They were well aware that the donor's right to secrecy ended April 7. Committee attorneys spent many, many hours reviewing each detail of the old any new laws. Delivery of the Vesco $200,000 cash was made in such a manner of secrecy that no records would exist. Only Mr. Vesco, his two agents, and Mr. Stans knew the details of the delivery. Mr. Stans admitted that he treated the $200,000 as a pre-April 7 contribution and he deceptively reported it as 'CASH ON HAND' on April 7, even though physically received on April 10.

The former 1925 Corrupt Practices Act, 2 U.S.C. 252, was the predecessor and starting point for the Act here to be construed. It had separate sections prescribing punishments for 'willful' violations and for violations without that adjective. On conviction in the former category, punishments could be imposed more severe than for those in the latter, and the maximum for the latter, one year's imprisonment or $10,000 fine, happen to be the same as those under the present Act. Since the present Act 441, says nothing about 'willful' violations, it is reasonable to suppose, given this background, that the Congress intended that the elements of a non-willful offense, whatever it might be, were all that was necessary for a conviction.

This, however, does not get us very far. In Burroughs & Cannon v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934), the Supreme Court held that certain counts in an indictment, under the non-willful section of the 1925 Act, were invalid because they did not allege the defendants 'knowingly' violated the law. Thus the mental state of the accused comes back into the case and the present 441, given this background, does not assess absolute liability regardless of scienter. Still the Supreme Court cannot be said to have overridden the view expressed in the case below in this court, 62 U.S.App.D.C. 163, 65 F.2d 796 (1933), that the non-willful section would punish a failure to report as required because of carelessness, inadvertence, or neglect, or because of ignorance of the law. There may be exceptions, but the majority of offenders in those categories would have knowledge of facts putting them on notice that they had a legal duty in the premises, and thus could properly be indicted for a 'knowing' violatio...