United States v. Simms

• Decision Date: 10 December 1979
• Docket Number: Crim. A. No. 79-20032-07.
• Citation: 508 F. Supp. 1179
• Parties: UNITED STATES of America v. Jack L. SIMMS, Jr.
• Court: U.S. District Court — Western District of Louisiana

508 F. Supp. 1179

UNITED STATES of America v. Jack L. SIMMS, Jr.

Crim. A. No. 79-20032-07.

United States District Court, W. D. Louisiana.

December 10, 1979.

J. Ransdell Keene, U. S. Atty., John P. Lydick, Michael H. Wainwright, Mimi Methvin, Asst. U. S. Attys., Shreveport, La., for United States of America.

Raleigh Newman and Fred Book, Jr., Lake Charles, La., for Jack L. Simms, Jr.

HEEBE, Chief Judge, Eastern District of Louisiana (Sitting by Designation):

This cause was submitted on memorandum without oral argument on the motions of defendant, Jack L. Simms, Jr., to dismiss the indictment.

The Court, having studied the legal memoranda submitted by the parties, is now fully advised in the premises and ready to rule. Accordingly,

IT IS THE ORDER OF THE COURT that the motions of the defendant, Jack L. Simms, Jr., to dismiss the indictment, be, and the same are hereby DENIED.

REASONS

Defendant, Jack L. Simms, Jr., was originally indicted in the above-captioned matter on July 20, 1979 and was charged, along with eight co-defendants, with one count of conspiracy to violate 42 U.S.C. § 1973i(c) and fourteen counts of substantive violations of 42 U.S.C. § 1973i(c).¹ On August 3, 1979, defendant filed a motion to dismiss the indictment on grounds that 42 U.S.C. § 1973i(c) is unconstitutionally vague and represents an unauthorized extension of Congressional power into an area exclusively reserved for the State, as prohibited by the Tenth Amendment to the Constitution. This motion was referred to the Court for consideration and was formally taken under advisement on November 12, 1979.

On August 30, 1979, by Order of Magistrate Tritico for the Western District of Louisiana, Lake Charles Division, the defendant was severed for trial from the other co-defendants. Thereafter, on September 18, 1979, the Grand Jury returned a fifteen-count superseding indictment charging the defendant with substantially the same offenses as charged in the original indictment. On November 15, 1979, the Grand Jury returned a second superseding indictment against the defendant on the same offenses as previously charged but which reduced the number of substantive violations from fourteen to one and narrowed the purpose of the conspiracy from those originally defined to that of obtaining votes only for Jack L. Simms, Sr., defendant's father and a candidate for state district judge at the general election held on September 16, 1978.

Defendant has now reasserted his previous motion to dismiss the indictment in a new motion to dismiss filed on November 27, 1979. The essential grounds upon which the defendant seeks dismissal of the indictment are identical in both motions:

"1. The statute in question, 42 U.S.C. § 1973i(c), is unconstitutional because of vagueness; the body of the statute does not conform to the heading thereon.

2. 42 U.S.C. § 1973i(c) as enacted is in violation of the 10th amendment to the United States Constitution since it is beyond the power and/or authority of Congress to enact, and is in derogation of the principal of Federal-State regulations.

3. The indictment does not charge Defendant, Jack L. Simms, Jr., with having committed an offense against the United States." Defendant's Motion to Dismiss the Indictment, filed November 27, 1979.

After careful consideration of these questions, this Court is of the opinion that 42 U.S.C. § 1973i(c) is not unconstitutionally vague nor does this statute violate the Tenth Amendment as an unauthorized extension of Congressional regulation into an area reserved for the States. Accordingly, the indictment does charge the defendant with having committed an offense against the United States and is not subject to dismissal on these grounds.

THE DOCTRINE OF VAGUENESS

The defendant would have this Court dismiss the indictment on the grounds that 42 U.S.C. § 1973i(c) is so ambiguous that persons of ordinary prudence are incapable of discovering its scope and meaning, thereby violating the Fifth Amendment guarantee of due process. Specifically, the defendant maintains that this statute fails to clarify whether the offense of paying or offering to pay voters has to be for the election of a federal candidate. Because of this provision's failure to so provide, defendant urges this Court to declare the statute unconstitutional.

42 U.S.C. § 1973i(c) provides in part:

"Whoever knowingly or willfully ... pays or offers to pay, or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of ... Member of the United States House of Representatives ..."

The language of this provision is clear. The statute seeks to regulate the commercial payment of voters in any election in which a federal office is at stake. The Congress has enacted a straightforward provision designed to eliminate any impropriety in a federal election by strictly prohibiting the offer or purchase of votes for any candidate in that election. The statutory text of § 1973i(c) specifically defines the extent of the regulated conduct and delineates the circumstances under which this provision will apply. The statute is not unconstitutionally vague.

The concept of vagueness is rooted in a "rough idea of fairness" designed to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972); United States v. Wise, 550 F.2d 1180 (9th Cir. 1977), cert. denied, 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977), reh. denied, 434 U.S. 977, 98 S.Ct. 542, 54 L.Ed.2d 472 (1977).² Thus, the due process clause of the Fifth Amendment requires that the language of any criminal statute be precise enough to provide notice of the prohibited conduct. Champlin Rfg. Co. v. Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 (1931). Although the Constitution does not require exact specificity, it does require that the proscribed activity be identified with a reasonable degree of certainty. United States v. Barnett, 587 F.2d 252 (5th Cir. 1979), cert. denied, 441 U.S. 923, 99 S.Ct. 2031, 60 L.Ed.2d 396 (1979).

In essence, whether a statute is unconstitutionally vague depends upon the common understanding of its terms. United States v. Ocegueda, 564 F.2d 1363 (9th Cir. 1977). If a person of average intelligence would have reasonably understood that some contemplated conduct is proscribed, then the statute is not vague. United States v. Louderman, 576 F.2d 1383 (9th Cir. 1978), cert. denied, 439 U.S. 896, 99 S.Ct. 257, 58 L.Ed.2d 243 (1979). However, if men of common intelligence must guess at the meaning of a statute and differ as to its application, then such a provision would violate the guidelines of due process. Champlin Rfg. Co. v. Commission, supra.

It is equally clear that the due process doctrine of vagueness demands that the statutory text be sufficiently definite to prevent the possible arbitrary or discriminatory enforcement of the provision by the prosecutor, the court, or the jury. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). The Government must not have the "unfettered discretion" to prosecute on the basis of a statute which is so vague or of such broad applicability that the even handed administration of the law is not possible. Papachristou v. City of Jacksonville, 405 U.S. 156, 168, 92 S.Ct. 839, 846, 31 L.Ed.2d 110 (1972). Where prosecutors or law-enforcement officials may impose their personal predilections in determining what should be permissible behavior under a statute, such a provision is unconstitutional. See: Big Egal v. Andera, 418 F.Supp. 126 (D.S.D.1976).

In United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972), the Seventh Circuit directly addressed the question of the constitutional vagueness of § 1973i(c):

"We are unpersuaded that 42 U.S.C. § 1973i(c) is unconstitutionally vague, or proscribes efforts by civic groups to encourage people to register. The statute uses the word `pay.' It in no way prohibits assistance rendered by civic groups to prospective voters; nor would we deem a fringe benefit (such as) continuation of an employee's wages to be proscribed by the statutory direct prohibition for voting." Id. at p. 1136.

The court in Lewin correctly upheld the constitutionality of the statute and found that the language of the statutory text was succinct in clearly stating the proscribed conduct.

The Court finds that the language of § 1973i(c) is sufficiently clear to enable a person of ordinary intelligence to have a reasonable opportunity to understand the proscribed conduct. The statute prohibits an offer to pay or a payment made directly for the act of registering to vote or for exercising the franchise in a federal election. The statute is not so vague as to preclude assistance of voters by civic groups or to allow for the selective prosecution of individuals. Nor is there any danger that the statute is so vague as to mislead persons in its application and enforcement. The terms of the provision are clear. The statute may apply to any instance of vote-buying that occurs in connection with an election where a federal candidate is to be voted upon. Adequate notice of the proscribed conduct is served and the scope of its application is identified. 42 U.S.C. § 1973i(c) is not unconstitutionally vague.

THE TENTH AMENDMENT

Defendant also asserts that § 1973i(c) is unconstitutional because it regulates conduct at state elections which is outside of the bounds of Congressional power. The defendant argues that an individual's conduct at an election can only be regulated by the federal government if there is some direct connection with an election for a federal office. Defendant contends that...