United States v. Passman, Crim. No. 78-30013.

• Decision Date: 29 September 1978
• Docket Number: Crim. No. 78-30013.
• Parties: UNITED STATES of America v. Otto E. PASSMAN.
• Court: U.S. District Court — Western District of Louisiana

460 F. Supp. 912

UNITED STATES of America v. Otto E. PASSMAN.

Crim. No. 78-30013.

United States District Court, W. D. Louisiana, Lake Charles Division.

September 29, 1978.

Jeffrey S. White and David R. Scott, U. S. Dept. of Justice, Washington, D. C., Edward L. Shaheen, U. S. Atty. and William L. Goode, Asst. U. S. Atty., Shreveport, La., for United States of America.

Camille F. Gravel, Jr., Gravel, Roy & Burnes, Alexandria, La., William W. Taylor, III, James Hamilton and David Ginsburg, Ginsburg, Feldman & Bress, Washington, D. C., for defendant.

RULING ON MOTIONS

VERON, District Judge.

A seven count indictment was filed in the District of Columbia on March 31, 1978 against Otto E. Passman. This case was subsequently transferred to the Western District of Louisiana. Otto E. Passman was a United States Congressman from the State of Louisiana from January 1947 until January 1977. This indictment charged Mr. Passman with violations of 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 201(c)(1) (bribery), and 18 U.S.C. § 201(g) (illegal gratuity).¹

The defendant filed two pre-trial motions on July 14, 1978. The first motion seeks to have the indictment dismissed because of the alleged unconstitutionality of 18 U.S.C. § 201(c)(1) and (g). The second motion seeks to have this court dismiss the indictment or compel election of counts of the indictment asserting multiplicity, double jeopardy, and danger of a compromise verdict by the jury.

Both motions considered herein are denied.

I. MOTION TO DISMISS INDICTMENT

Mr. Passman argues that the indictment should be dismissed "because the statute under which such prosecution is being conducted, 18 U.S.C. § 201, applicable to all counts in said indictment, is overbroad and so general, vague and obscure that it fails to set any ascertainable standards by which guilt or innocence may be determined." (Defendant's Motion to Dismiss Indictment.) More specifically, the defendant asserts that 18 U.S.C. § 201(c)(1) and (g)² do not meet constitutional muster as prescribed by the first and fifth amendments to the United States Constitution because they are both vague and overbroad and therefore violate due process of law and inhibit free speech. We are not aware of any case that has ever held § 201 unconstitutional on these grounds.

In the leading case of United States v. Brewster, 165 U.S.App.D.C. 1, 15-16, 506 F.2d 62, 76-77 (1974), the court explicitly upheld the constitutionality of 18 U.S.C. § 201(g).³ This case involved the prosecution of a United States Senator who had been charged with violating 18 U.S.C. § 201(c) but convicted of violating 18 U.S.C. § 201(g). First, the court addressed the vagueness issue:

Manifestly, then, the language of section 201(g), as authoritatively interpreted by the Supreme Court in its Brewster decision, "gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." The section's standards are sufficiently explicit to prevent delegation of "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Hence, section 201(g) is not impermissibly vague even under the standards applied to statutes governing the conduct of average citizens. That 201(g) is directed at the conduct of public officials, who should exercise extraordinary caution to avoid acts potentially violative of their public trust, makes us even more reluctant to accept the argument that the section is vague.⁴

Mr. Passman's assault on 18 U.S.C. § 201(c)(1) is predicated on the mistaken belief that the word "corruptly asks" or "receives" anything of value is an uncertain standard that makes it impossible to fix a standard of guilt. The courts have interpreted this language to require a specific intent and have determined that the words "corruptly", "value", and "influence" should be construed in their ordinary, everyday sense. See United States v. Pommerening, 500 F.2d 92, 97 (10th Cir. 1974), cert. denied 419 U.S. 1088, 95 S.Ct. 678, 42 L.Ed.2d 680 (1974); United States v. Brewster, 165 U.S. App.D.C. 1, 15-16, 506 F.2d 62, 76-77 (1974); United States v. Irwin, 354 F.2d 192, 197 (2d Cir. 1965), cert. denied 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1965).

The court in United States v. Irwin, supra, found it particularly fitting to distinguish the varying degrees of intent required by subsections b, c, d, and e of Section 201 and the lesser degree of intent required by subsections f, g, h, and i.

The intent to influence, accompanying the corrupt giving or accepting of something of value, is an essential element of § 201(b, c, d, e) which Congress dealt with in separate subsections, and for the violation of each of which it attached severe penalties. No similar provisions concerning corrupt giving and specific intent to influence or induce were included in § 201(f, g, h, i), and the penalty provided for a violation of any of those subsections was much less severe. Obviously Congress made a distinction between the two groups of subsections and purposely omitted from the latter group the description of the specific intent which was an essential element of the former.

This last quoted paragraph should not be construed to mean that there is no requirement of mens rea in 18 U.S.C. § 201(g) but rather that it does require a general criminal intent. This point brings us to the argument that § 201 is constitutionally overbroad because it reaches legitimate activities that are guaranteed by the United States Constitution. The defendant argues that under § 201(g)⁵ an elected official can be convicted for receiving money given by a grateful constituent who is pleased by a vote that has already been made and that, as a result, the statute infringes on the first amendment rights of political speech and association. This argument ignores the tripartite distinction between guilt under § 201(c)(1), guilt under § 201(g), and innocence that was outlined in United States v. Brewster, 165 U.S.App.D.C. 1, 16-17, 506 F.2d 62, 78-79 (1974):

Where the statute does cause great difficulty for a trial judge, a difficulty which we hold proved fatal to the conviction in this case, is that in addition to the problem of drawing a distinction between one definable offense and innocent conduct, where both offenses are charged a trial judge must also draw a tripartite distinction between conduct with the defined intent to constitute an offense under the bribery section (c), conduct with the requisite intent to constitute an offense under the gratuity section (g), and conduct with an intent which constitutes no offense at all.

Title 18 U.S.C. § 201(g) requires no element of quid pro quo; nor does it require a specific intent. Section (g) does, however, require a mens rea. It is necessary that the Government prove that the defendant committed the act prohibited knowingly and not through accident or mistake. If an elected official receives campaign money given by a grateful constituent who is pleased by a vote that has already been made, then clearly there is no violation of subsection (g). However, if this grateful constituent attaches a note saying this is for your vote which you cast last week in favor of our labor bill which was pending before you, then subsection (g) would be applicable. The difference between the two hypotheticals is that in the first example the contribution was unrelated to an official act while in the second example the elected official knew that the contribution was due to an official act, and therefore within the scope of 18 U.S.C. § 201(g). The court in United States v. Brewster recognized the dissimilar degree of intent:

The defendant further argues that section 201(g) is unconstitutionally overbroad because it reaches legitimate campaign contributions, which arguably can be characterized as the sort of political, associational activity protected by the First Amendment. To the contrary, however, a public official's acceptance of a thing of value unrelated to the performance of any official act and all bona fide contributions directed to a lawfully conducted campaign committee or other person or entity are not prohibited by 201(g). What is outlawed is only the knowing and purposeful receipt by a public official of a payment, made in consideration of an official act, for himself. Congress has an indisputable interest in proscribing such conduct as a means for preserving the integrity of governmental operations. This interest supersedes any conceivable First Amendment value related to such conduct.

Id. at 77. (Emphasis added).

In light of the prevailing jurisprudence, which has explicitly upheld the constitutionality of 18 U.S.C. § 201, the defendant's attack must fail, and the motion to dismiss the indictment is therefore denied.

II. MOTION BY DEFENDANT TO DISMISS OR TO COMPEL ELECTION OF COUNTS

Mr. Passman's instant motion seeks to have this court dismiss counts 2 through 7 of the indictment or in the alternative to compel the prosecution to elect the counts on which it wishes to proceed. The indictment which the defendant is charged with is broken down into seven counts. The first count of the indictment charges Mr. Passman with the commission of 18 U.S.C. § 371, which is conspiracy. Counts 2 through 4 charge the defendant with 18 U.S.C. § 201(c)(1), which is the criminal statute on bribery. The last three counts (counts 5 through 7) charge the defendant with the same acts that he allegedly committed under counts 2 through 4 but under 18 U.S.C. § 201(g), which is the gratuity subsection of § 201.

The foundation of defendant's motion rests upon the supposition that to deny it would have the effect of placing the defendant in double jeopardy, subject him to the possible danger of a compromise by the jury, and result in an indictment that is multiplicious. The defendant's motion reads in pertinent...