United States v. Chestnut, No. 74 Cr. 1191.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtEDWARD WEINFELD
Citation394 F. Supp. 581
PartiesUNITED STATES of America, v. Jack L. CHESTNUT, Defendant.
Decision Date08 April 1975
Docket NumberNo. 74 Cr. 1191.

394 F. Supp. 581

UNITED STATES of America,
v.
Jack L. CHESTNUT, Defendant.

No. 74 Cr. 1191.

United States District Court, S. D. New York.

April 8, 1975.


394 F. Supp. 582
COPYRIGHT MATERIAL OMITTED
394 F. Supp. 583
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 three grounds: (1) it violates the ex post facto clause of the United States Constitution;1 (2) it fails to state an offense; and (3) the statutes in force in 1970 at the time of the alleged offense, 18 U.S.C., sections 610 and 591, were unconstitutional 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. Humphrey was a candidate for the nomination of the Democratic-Farmer-Labor party for the office of United States Senator from the State of Minnesota, and later its candidate for that office, the defendant was Humphrey's campaign manager; that from on or about March 1, 1970 to on or about June 25, 1970 the defendant willfully and knowingly accepted 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 further 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.

Against the background of the indictment's charges we consider each branch of his motion.

I

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 political 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."
394 F. Supp. 584

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 section 591 of Title 18, as follows:

"The term `contribution' includes a gift, subscription, loan, advance, or deposit, of money, or anything of value . . . ."
"The term `expenditure' includes a payment, distribution, loan, advance, deposit, or gift, of money, or anything of value . . . ."

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 inclusion of a definition of "contribution or expenditure":

"As used in this section, the phrase `contribution or expenditure' shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value . . . ."2

At the same time section 591 was also amended as to the definition of the terms "contribution" and "expenditure."3 Here the defendant notes that under the amendment "expenditure" still remained the broader term, retaining the words "payment" and "distribution" and adding the word "purchase," which is not included in the definition of "contribution." He acknowledges that the issues raised by his argument are "technical and difficult."

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 statutes 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 indictment. It charges simply that in 1970 during the time Humphrey was a senatorial candidate the defendant willfully and knowingly "did accept and receive . . . a corporate contribution from AMPI on behalf of the aforesaid Humphrey campaign . . . ." The allegations of the indictment, not the statutory citation4 determines its validity.5 As this court stated on another occasion,6 the statute on which an indictment

394 F. Supp. 585
is founded must be determined as a matter of law7 from the facts pleaded therein

The defendant advances other contentions to support his claim that in obtaining the indictment the prosecution 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 that only the 1972 version of section 610 contains any reference to an "indirect payment"; further, that the indictment 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 indictment was returned under the 1972 amendment. This contention 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 artifice 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 Humphrey campaign by arranging for AMPI to satisfy a debt owed by the Humphrey campaign to its advertising agency.

The defendant's further contention is equally without substance. He stresses that the copy of the indictment 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 attached to a press release or what statute was in the prosecutor'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.8 Moreover, there is not the slightest basis for indulging in a presumption that the prosecutor sought an indictment from the grand jury based upon a statute not in existence at the time the acts alleged therein occurred.

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.9 There, the Court held, with one exception not relevant in this discussion, that the Federal Election Campaign Act's amendments to section 610 "merely codifies prior law."10 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."11 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 59112 made conduct illegal which was theretofore legal is without merit.

394 F. Supp. 586

The motion to dismiss the indictment on the ground that it violates the ex post facto clause of the Constitution is denied.

II

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 indictment charges the acceptance and receipt of a campaign "contribution," the payment described is in fact an "expenditure" and therefore its acceptance and receipt was not unlawful under the statute.

As the court understands the defendant's argument, essentially it is that AMPI made a $12,000 "payment" to L & N for their services, and as such this was an "expenditure" by AMPI as that term...

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13 practice notes
  • Fair Political Practices Com. v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 23 Agosto 1979
    ...office. (2 U.S.C. § 441b.) These prohibitions have been held to be constitutional. (See, e. g., United States v. Chestnut (S.D.N.Y.1975) 394 F.Supp. 581, 587-591; United State v. Boyle (1973) 157 U.S.App.D.C. 166, 174-175, 482 F.2d 755, 763-764.) Even the United States Supreme Court "has re......
  • U.S. v. O'Grady, No. 782
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Julio 1984
    ...States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973) (citations omitted); cf. United States v. 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......
  • United States v. Chestnut, No. 74 Cr. 1191.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 25 Junio 1975
    ...for a judgment of acquittal, new trial and arrest of judgment are denied in all respects. --------Notes: 1 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 t......
  • Lang v. Berger, No. 76 Civil 1737.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 8 Febrero 1977
    ...243 (1976); Cramp v. Board of Public Instruction, 368 U.S. 278, 287-88, 82 S.Ct. 275, 7 L.Ed.2d 285 (1963); United States v. Chestnut, 394 F.Supp. 581, 588 (S.D.N.Y.1975). 15 See Horvath v. City of Chicago, 510 F.2d 594, 596 (7th Cir. 1975); Brennan v. Occupational Safety & Health Review Co......
  • Request a trial to view additional results
13 cases
  • Fair Political Practices Com. v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 23 Agosto 1979
    ...office. (2 U.S.C. § 441b.) These prohibitions have been held to be constitutional. (See, e. g., United States v. Chestnut (S.D.N.Y.1975) 394 F.Supp. 581, 587-591; United State v. Boyle (1973) 157 U.S.App.D.C. 166, 174-175, 482 F.2d 755, 763-764.) Even the United States Supreme Court "has re......
  • U.S. v. O'Grady, No. 782
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Julio 1984
    ...States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973) (citations omitted); cf. United States v. 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......
  • United States v. Chestnut, No. 74 Cr. 1191.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 25 Junio 1975
    ...for a judgment of acquittal, new trial and arrest of judgment are denied in all respects. --------Notes: 1 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 t......
  • Lang v. Berger, No. 76 Civil 1737.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 8 Febrero 1977
    ...243 (1976); Cramp v. Board of Public Instruction, 368 U.S. 278, 287-88, 82 S.Ct. 275, 7 L.Ed.2d 285 (1963); United States v. Chestnut, 394 F.Supp. 581, 588 (S.D.N.Y.1975). 15 See Horvath v. City of Chicago, 510 F.2d 594, 596 (7th Cir. 1975); Brennan v. Occupational Safety & Health Review Co......
  • Request a trial to view additional results

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