United States v. Lewis Food Company

• Decision Date: 25 November 1964
• Docket Number: No. 32456.,32456.
• Citation: 236 F. Supp. 849
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. LEWIS FOOD COMPANY, Inc., Defendant.

236 F. Supp. 849

UNITED STATES of America, Plaintiff, v. LEWIS FOOD COMPANY, Inc., Defendant.

No. 32456.

United States District Court S. D. California, Central Division.

November 25, 1964.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Criminal Section, J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Criminal Section, for plaintiff.

Murchison, Cumming, Baker & Velpmen, R. Bruce Murchison, by Wm. Bryan Osborne, Los Angeles, Cal., for defendant.

TAVARES, District Judge.

The Grand Jury of this district has returned an Indictment against defendant in four Counts charging that defendant at all material times was a California corporation, that on June 5, 1962, a primary election was held in California in which candidates for the office of United States Senator and candidates for the office of member of the United States House of Representatives were to be selected and that three times in July, 1962, and once in August, 1962, defendant "did unlawfully make an expenditure in connection with the aforesaid primary election in that the defendant," in the Central Division of the Southern District of California, "pursuant to an agreement made before said election, did make payment to the Rockett Lauritzen Advertising Agency for the placement of an advertisement concerning candidates therein" which advertisement appeared in various named newspapers on June 4, 1962.¹ Count I charges such publication in twelve newspapers, Count II charges such publication in eight newspapers, Count III charges such publication in fourteen newspapers and Count IV charges such publication in one newspaper. Said newspapers were published in various cities and towns throughout northern, central and southern California. The amounts expended therefor alleged in Count I ranged from $159.12 to $1,127.10, totaling $5,509.62, those alleged in Count II ranged from $79.56 to $1,093.95, totaling $2,042.04, those alleged in Count III ranged from $53.04 to $563.55, totaling $1,786.38, and that alleged in Count IV was $185.64. The total expenditures alleged are $9,523.68.

Each Count is based upon 18 United States Code, Section 610, the pertinent parts of which are as follows:

"It is unlawful for any * * * corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress 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, * * *.

"Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $5,000; * * *"

Defendant has moved to dismiss the Indictment on the grounds that 18 United States Code, Section 610, "is unconstitutional on its face" and that the Indictment does not state an offense.

The Government furnished defendant a bill of particulars containing a copy of said alleged advertisement. A copy of said alleged advertisement is hereunto attached.

If an Indictment does not state facts sufficient to charge the defendant with an offense under a statute, the Court should not pass upon the constitutionality of the statute.² The Court will, therefore, first determine whether the Indictment in this case charges the defendant with an offense under 18 United States Code, Section 610.

There seem to have been two objectives in the enactment of the statute:

1. To prevent corporations and labor unions with their power and wealth from controlling elections, and

2. To protect the union member from having union officials endorse candidates or attempt to influence voters which may be contrary to the wishes of the individual member.³

The Supreme Court infers that an expenditure by a labor union does not come within the purview of the statute if it is not for an activity which constitutes active electioneering but is merely for a publication which simply states the record of particular candidates on economic issues.⁴

The Court may consider the facts set out in the Bill of Particulars. The Government is limited to the particulars specified therein.⁵ Furthermore, counsel for the Government has advised the Court that it does not intend to present in this case any facts other than those contained in the Indictment and the Bill of Particulars.

The advertisement set out in the Bill of Particulars merely "shows the voting record" of each of the incumbent United States Senators and Members of the House of Representatives from California⁶ some of whom undoubtedly were candidates for re-election in the primary election mentioned in the Indictment. It employs a...