United States v. Andreas

• Decision Date: 11 March 1974
• Docket Number: No. 4-73-Cr. 201.,4-73-Cr. 201.
• Citation: 374 F. Supp. 402
• Parties: UNITED STATES of America, Plaintiff, v. Dwayne O. ANDREAS and First Interoceanic Corporation, a/k/a Independent Bancorporation, Defendants.
• Court: U.S. District Court — District of Minnesota

374 F. Supp. 402

UNITED STATES of America, Plaintiff, v. Dwayne O. ANDREAS and First Interoceanic Corporation, a/k/a Independent Bancorporation, Defendants.

No. 4-73-Cr. 201.

United States District Court, D. Minnesota, Fourth Division.

March 11, 1974.

COPYRIGHT MATERIAL OMITTED

Robert J. Renner, U. S. Atty., Thorwald H. Anderson, Asst. U. S. Atty., Minneapolis, Minn., Charles Ruff, Asst. Special Prosecutor Watergate Special Prosecution Force, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Patrick J. O'Connor and Joe A. Walters, O'Connor & Hannan, Minneapolis, Minn., Edward Bennett Williams, Williams, Connolly & Califano, Washington, D. C., for defendants.

MEMORANDUM ORDER

LARSON, District Judge.

Before the Court are motions by defendants Dwayne O. Andreas and First Interoceanic Corporation to dismiss an eight count Information filed by Watergate Special Prosecutor Archibald Cox on October 19, 1973. The Information charges First Interoceanic Corporation with four counts of illegal contributions to the Humphrey presidential campaign of 1968. The Information further charges Dwayne O. Andreas as an officer of the corporation with illegally consenting to the contributions set forth in each of the four counts against the corporation. All eight counts of the information are based upon 18 U.S.C. § 610.¹ Defendants have moved to dismiss the information on the grounds that the statute of limitations governing the offenses charged has run and that the Information exceeds the authority of the Watergate Special Prosecutor.

A. The Statute of Limitations.

The applicable statute of limitations, 18 U.S.C. § 3282 (1970), provides:

"Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed."²

The thrust of defendants' argument is that the four twenty-five thousand dollar checks were dated, mailed, received and accepted, cashed or deposited, and cleared, on or before October 18, 1968. Since the information was filed on October 19, 1973, defendants contend that the time limit within which a prosecution can be brought has been exceeded by one day and the prosecution is barred. Defendants have offered, in support of their argument, the affidavit of Ronald L. Frykholm, an employee of the National City Bank of Minneapolis, Minnesota, to support their contention that the contributions were made and completed not later than October 18, 1968.

Any attack on the sufficiency of an Information must be considered by this Court by taking the allegations of the Information as true.³ The Information charges that the offenses took place from on or about October 14, 1968, to on or about October 21, 1968, thus bringing the offenses charged within the time allowed by the statute of limitations. If the Court looks only to the face of the Information, defendants' objections are entirely met. Defendants, however, point to that portion of Federal Rule of Criminal Procedure 12(b)(4) which allows for the use of affidavits to determine issues raised by a motion to dismiss.⁴ Defendants cite United States v. J. R. Watkins Co., 16 F.R.D. 229 (D. Minn.1954), in which Judge Nordbye considered materials external to the Information and made a determination of the statute of limitations question in that case prior to trial. The Court determined that:

"It would be injudicious to ignore the information obtainable from the face of the reports in issue when determining whether the one upon which the indictment was based was or was not barred by lapse of time. Such an examination would not seek to contradict the well-pleaded material allegations of the complaint, for defendants do not dispute that the report relied upon by the Government was returned within the limitations period, but seek to explain why the said report cannot be the basis for this prosecution." 16 F.R.D. at 233.

By their affidavit in the instant case, however, defendants would seek to contradict the allegations of the Information by attempting to prove that the contributions, if any, took place prior to October 19, 1968. Such an attempt is impermissible here because, as will be detailed infra, the introduction of proof concerning the statute of limitations would necessarily open the central issues before this Court to a trial by affidavit prior to the trial itself. See United States v. Entin, 206 F.Supp. 84, 85 (S.D. N.Y.1962); 1 Wright, Federal Practice and Procedure: Criminal § 194, at 413 (1969).

In United States v. Covington, 395 U. S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969), the Court stated:

"Federal Rule of Criminal Procedure 12(b)(1) states that: `Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.' A defense is thus `capable of determination' if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense. Rule 12(b)(4) allows the District Court in its discretion to postpone determination of the motion to trial, and permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion."

Where, however, the questions of fact relating to the motion to dismiss are intertwined with considerations of issues going to the merits of the case, the questions must be deferred until presentation at trial. United States v. Knox, 396 U.S. 77, 83, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Callahan, 300 F.Supp. 519, 522 (S.D.N.Y.1966); United States v. Fargas, 267 F.Supp. 452, 455 (S.D.N.Y.1967); United States v. Guterma, 189 F.Supp. 265, 272 (S. D.N.Y.1960); United States v. Tolub, 187 F.Supp. 705, 709 (S.D.N.Y.1960).⁵ Under 18 U.S.C. § 610, the elements of the offense charged regarding Interoceanic include (1) the making of a contribution or expenditure, (2) by a corporation, (3) "in connection with any election at which Presidential and Vice Presidential electors . . . are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices . . . ." Cf. United States v. Boyle, 482 F.2d 755, 760 (D.C.Cir. 1973); United States v. Pipefitters Local Union No. 562, 434 F. 2d 1116, 1121 (8th Cir. 1970), rev'd on other grounds 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972). The offenses charged against Andreas involve his consent to such expenditures.

Because of the nature of the transaction alleged to have taken place in this case, the issue of when the contributions occurred appears to be inextricably woven with if and how the contributions occurred. Copies of the checks in question appended to the Government's Response to Defendants' Motion For Bill Of Particulars, filed January 21, 1974, indicate that the checks were apparently drawn upon the account of Dwayne O. Andreas; they were not drawn upon the corporate account of First Interoceanic Corporation. The statute clearly prohibits contributions by corporations; it does not prohibit contributions by individuals. To prove the allegations of the Information at trial, the focus must turn to when, if at all, illegal transfers were made between First Interoceanic Corporation and Andreas. While this Court agrees with defendants that the transactions between the drawer and the drawee were complete at the latest when the checks cleared the payee bank, this Court cannot agree that the offenses charged in the Information were necessarily complete at that time. Similarly, the issue of Andreas' consent to the corporate transfer goes to the factual question of whether Andreas did consent to the transfer of corporate money (rather than his own) to the campaign and, if so, when such consent took place. Defendants' protestations notwithstanding, Andreas' consent to allow the corporation to reimburse him for theretofore personal contributions may well have taken place after the date the checks had cleared the payee bank. To even attempt at this stage of the proceeding to differentiate between the various alleged payments or to determine that the four checks constituted an integrated scheme to make illegal corporate contributions for political purposes would be premature. These matters are part of the general issue which can be properly resolved only after the presentation of evidence at trial, not upon pretrial motions.

Defendants also contend that not to find the clearing of the checks to be the final date upon which a transfer could have taken place between the corporation and the campaign is to confer upon the activities charged in the Information the status of being a continuing offense of the type condemned in Toussie v. United States, 397 U.S. 112, 90 S. Ct. 858, 25 L.Ed.2d 156 (1970). This Court is aware that the Government has not alleged that Andreas or the corporation through its officers conspired to make contributions in violation of 18 U. S.C. § 610. It is equally clear, however, that the offense charged is not one that is continuing in nature beyond that date on which the overt acts were completed. The statute of limitations begins to run when the crime is complete. Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct. 858, 25 L.Ed.2d 156 (1970); Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 87 L.Ed. 368 (1943). But as this Court's discussion above indicates, the date when the contributions by the corporation were complete, if any corporate contributions were made, is not clear and must be determined at trial.

Based upon the foregoing analysis, therefore, this Court is unable to grant defendants' motion to dismiss the Information as being barred by the statute of limitations. While the offense charged is not of the continuing nature disapproved of by Toussie, the information presently before the Court is...