United States v. Foote

• Decision Date: 16 January 1942
• Docket Number: No. 50.,50.
• Parties: UNITED STATES v. FOOTE.
• Court: U.S. District Court — District of Delaware

42 F. Supp. 717

UNITED STATES v. FOOTE.

No. 50.

District Court, D. Delaware.

January 16, 1942.

Stewart Lynch, U. S. Atty., of Wilmington, Del., for the United States.

H. Albert Young, of Wilmington, Del., for defendant.

WATSON, District Judge.

On March 24, 1941, the Defendant, Foote, was indicted for violation of the Federal Corrupt Practices Act, 2 U.S.C.A. § 241 et seq. The indictment contains twenty-six counts. In Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 it is charged that the Defendant did wilfully and unlawfully cause an expenditure to be made to named persons for the purpose of having such persons vote at a general election for John G. Townsend and George S. Williams, who were respectively candidates for election as Senator and Representative in the Congress of the United States. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22 and 24 it is charged that the Defendant did wilfully and unlawfully cause an expenditure to be made to the same twelve persons for the purpose of causing such persons to vote at a general election; whereat the above candidates were presented for election. In Count 25 it is charged that the Defendant did wilfully and unlawfully cause an expenditure to be made to certain unknown persons for the purpose of having such unknown persons vote at a general election for John G. Townsend and George S. Williams who were respectively candidates for election as Senator and Representative in the Congress of the United States.

In Count 26, it is charged that the Defendant did wilfully and unlawfully cause an expenditure to be made to certain unknown persons for the purpose of causing such persons to vote at a general election whereat the above named candidates were presented for election.

This indictment was brought pursuant to the provisions of Section 250, Title 2 U.S. C.A.

The Defendant filed a motion to quash the indictment, assigning ten reasons in support thereof, three of which attack the constitutionality of Section 250, Title 2 U.S.C.A., and the remaining seven attack the form and contents of the indictment. The Defendant also filed a plea in abatement assigning four reasons in support thereof. Reasons numbered 1, 2 and 4 attack the regularity of the proceedings before the Grand Jury and, in reason number 3, the authority of the Grand Jury to act beyond the term at which it was empanelled is challenged. The United States filed a motion to strike as to a portion of the plea in abatement and a replication as to the other part.

Considering first the plea in abatement, I find that the reasons assigned are entirely without foundation in the record and are insufficient. First, with regard to the Grand Jury sitting beyond the term at which it was empanelled, the Act of March 28, 1910, c. 134, 36 Stat. 267, as amended, 28 U.S.C.A. § 421, provides that a Grand Jury may, upon order of court, be authorized to sit beyond the term at which it was empanelled to finish investigations begun but unfinished. Such orders were entered in this case and the record is devoid of any allegation or evidence attacking the regularity of these orders. Reasons numbered 1, 2 and 4 are insufficient as they are founded on information and belief, and are unsupported by any allegation or fact lending credibility thereto. In United States v. Lehigh Valley Railroad Co., D.C., 43 F.2d 135, 139, I said: "`The verification of each states that the contents of his plea are true "as he verily believes." It has been held — properly, we think — that a plea of abatement to an indictment on information and belief is insufficient, United States v. Bopp, D.C., 232 F. 177; United States v. Morse, D.C., 292 F. 273, 278.' Olmstead v. United States, 9 Cir., 19 F.2d 842, 845, 53 A.L.R. 1472."

The motion to quash the indictment attacks the constitutionality of Section 250, Title 2 U.S.C.A., on the ground that the section covers elections over which Congress has no control and that, even if the section is limited to national elections, it is too uncertain to be sustained.

The section under consideration provides that: "It is unlawful for any person to make or offer to make an expenditure, or to cause an expenditure to be made or offered, to any person, either to vote or withhold his vote, or to vote for or against any candidate, and it is unlawful for any person to solicit, accept, or receive any such expenditure in consideration of his vote or the withholding of his vote."

The Federal Corrupt Practices Act, of which Section 250 is a part, sets forth in Section 241, Title 2 U.S.C.A. the following definitions of terms:

"(a) The term `election' includes a general or special election, and, in the case of a Resident Commissioner from the Philippine Islands, an election by the Philippine Legislature, but does not include a primary election or convention of a political party;

"(b) The term `candidate' means an individual whose name is presented at an election for election as Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, whether or not such individual is elected;"

"(e) The term `expenditure' includes a payment, distribution, loan, advance, deposit, or gift, of money, or anything of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure."

The source of the power of Congress to enact the section here under consideration is found in Article 1, Sections 4 and 8 of the Constitution. Under the decisions, there can not be any doubt of the authority of Congress to enact legislation to prevent the bribery of voters at elections where its members are presented for election. However, the Defendant contends that Section 250, Title 2 U.S.C.A. contains language so vague and broad that it includes bribery of voters in purely state elections. If this is true, the Court is without power to limit the effect of the section to acts within the jurisdiction of Congress. As was said in James v. Bowman, 190 U.S. 127, 142, 23 S.Ct. 678, 681, 47 L.Ed. 979: "We are fully sensible of the great wrong which results from bribery at elections, and do not question the power of Congress to punish such offenses when committed in respect to the election of Federal officials. At the same time it is all-important that a criminal statute should define clearly the offense which it purports to punish, and that when so defined it should be within the limits of the power of the legislative body enacting it. Congress has no power to punish bribery at all elections. The limits of its power are in respect to elections in which the nation is directly interested, or in which some mandate of the National Constitution is disobeyed; and courts are not at liberty to take a criminal statute, broad and comprehensive in its terms and in these terms beyond the power of Congress, and change it to fit some particular...