United States v. Lewis Food Company, 20194.

• Decision Date: 22 September 1966
• Docket Number: No. 20194.,20194.
• Citation: 366 F.2d 710
• Parties: UNITED STATES of America, Appellant, v. LEWIS FOOD COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.2d 710 (1966)

UNITED STATES of America, Appellant, v. LEWIS FOOD COMPANY, Inc., Appellee.

No. 20194.

United States Court of Appeals Ninth Circuit.

September 22, 1966.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim.Div., Robt. L. Brosio, Asst. U. S. Atty., Asst. Chief, Crim. Div., Burt S. Pines, Asst. U. S. Atty., Los Angeles, Cal., for appellant.

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

Before BARNES and HAMLEY, Circuit Judges, and GOODWIN, District Judge.

HAMLEY, Circuit Judge:

This is a criminal prosecution against Lewis Food Company, Inc. (Lewis), for violations of 18 U.S.C. § 610 (1964), a provision of the Federal Corrupt Practices Act. Section 610, among other things, prohibits any corporation or labor organization from making a contribution or expenditure in connection with any election for federal office.

The indictment contains four counts. Count one charges that, in violation of this law, Lewis, a California corporation, paid the Rockett Lauritzen Advertising Agency to place an advertisement in various California newspapers concerning candidates for federal office to be selected in a California primary election on June 5, 1962. This count lists twelve California newspapers in which the advertisement entitled "Important Notice to Voters," was placed on June 4, 1962, at a total cost of $5,509.62.

The remaining three counts duplicate the allegations of count one, except that they cover payments by Lewis for placement of the same advertisement in other named California newspapers. The total expenditures alleged in the four counts is $9,523.68.

Lewis moved to dismiss the indictment on two grounds: (1) the statute upon which the indictment is based is unconstitutional on its face; and (2) the indictment fails to state an offense. The Government then filed a bill of particulars setting out the "Important Notice to Voters." The essential parts are quoted in the margin.¹ The motion to dismiss the indictment was heard and denied by District Judge Albert Lee Stephens. The case then proceeded to a jury trial. The jury was unable to reach a verdict and a mistrial was declared.

Thereafter, the case was reassigned to District Judge C. Nils Tavares. The renewed motion of Lewis to dismiss the indictment was granted by Judge Tavares. Proceeding under the Criminal Appeals Act of 1907 (34 Stat. 1246), as amended, 18 U.S.C. § 3731 (1964), the United States appealed to the Supreme Court of the United States. The Supreme Court remanded the case to this court. United States v. Lewis Food Co., Inc., 381 U.S. 908, 85 S.Ct. 1534, 14 L. Ed.2d 431.

The district court granted the motion to dismiss on the ground that the indictment failed to state an offense, and did not reach the constitutional question. United States v. Lewis Food Co., Inc., D.C.Cal., 236 F.Supp. 849 (1964). The court gave two reasons for holding that the indictment did not state an offense under section 610. The first reason involves two propositions: (1) an expenditure does not come within the purview of the statute unless it is for an activity which constitutes "active electioneering"; and (2) the expenditures here in question do not constitute active electioneering because the advertisement merely states the voting record of the candidates "in favor of constitutional principles."

On this appeal the United States does not appear to contest the district court's determination that an expenditure does not come within the purview of the statute unless it is for an activity which constitutes active electioneering. In fact, the Government calls attention to the statement in United States v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) (herein cited as Auto Workers), 352 U.S. 567, 589, 77 S.Ct. 529, 540, 1 L.Ed.2d 563, that:

"the evil at which Congress has struck in § 313 now 18 U.S.C. § 610 is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party."²

The Government argues, however, that the allegations of the indictment and the content of the "Important Notice to Voters," establish that the advertisement was designed to influence the public at large to vote for a particular candidate, or at least raises a factual issue to be resolved by a jury.³

We will assume, without deciding, that expending corporate funds for an advertisement which only publicizes the voting record of candidates for federal office is not active electioneering and therefore is not prohibited by section 610.

We agree with the Government, however, that a jury question was presented as to whether the advertisement in this case went beyond these bounds in that it was designed to influence the public at large to vote for or against particular candidates. A jury could find that the "Notice to Voters" was not intended to give an objective report on the voting record of public office holders. It sets forth only Lewis' appraisal of their undisclosed voting record, expressed in the form of percentage ratings. The "Notice to Voters" also makes it plain that, in Lewis' opinion, those office holders who are given low ratings on their votes "in favor of constitutional principles" should not be re-elected.

We therefore hold that the indictment should not have been dismissed on the ground that, as a matter of law, the expenditures in question were not for an activity which constituted active electioneering.

The second reason stated by the district court for holding that the indictment did not state an offense under section 610, was that it failed to contain what the district court regarded as the essential charge that the expenditures were made from the general funds of the corporation, contrary to the wishes of an individual stockholder. The indictment charges that Lewis "* * * did unlawfully make an expenditure * *" in connection with the primary election.

The Government concedes that a crucial consideration is whether the corporation's general funds were employed in financing the advertisement.⁴ It argues, however, that this is a question of fact to be resolved by a jury, and that an allegation that general funds were used need not be expressly alleged in the indictment.

In our opinion, the allegation in the indictment that the corporation made an "expenditure" for the stated purpose, necessarily infers an allegation that general corporate funds were used. Corporate expenditures normally come from a corporation's general funds and not from some independent fund contributed by shareholders or otherwise obtained. It is even questionable whether expenditures from such independent sources would be corporate expenditures at all.

All that is required of an indictment is that it be a plain, concise and definite written statement of essential facts constituting the offense charged. Rule 7(c), Federal Rules of Criminal Procedure; Rood v. United States, 8 Cir., 340 F.2d 506, 510. With respect to the use of general corporate funds this indictment meets these requirements. Entry of the plea of not guilty, therefore, gave rise to a question of fact as to the source of the corporate funds. When the Supreme Court, in the Auto Workers case, asked (352 U.S. at 592, 77 S.Ct. at 542): "Was the broadcast paid for out of the general dues of the union membership or may the funds be fairly said to have been obtained on a voluntary basis?"...