United States v. Clifford

409 F. Supp. 1070, 1976 U.S. Dist. LEXIS 16350
CourtDistrict Court, E.D. New York
DecidedMarch 3, 1976
Docket75-CR-654
StatusPublished
Cited by8 cases

This text of 409 F. Supp. 1070 (United States v. Clifford) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clifford, 409 F. Supp. 1070, 1976 U.S. Dist. LEXIS 16350 (E.D.N.Y. 1976).

Opinion

MEMORANDUM AND ORDER

COSTANTINO, District Judge.

The 22 count indictment in this case arises out of an alleged conspiracy to cause the Security National Bank to make illegal campaign contributions from 1966-1974. 18 U.S.C. §§ 610, 659, 1001.

Defendants have made various procedural motions. Since this court finds those motions to be without merit, they are denied.

Defendants have also moved for dismissal of various counts of the indictment on numerous grounds. Among the issues raised are (1) the constitutionality of § 610, (2) the applicability of § 610 to state elections, (3) the applicability of § 610 to judicial elections, (4) the applicability of § 610 to post-election contributions, and (5) the applicability of § 1001 to oral unsworn statements made to a bank examiner.

1. The Constitutionality of 18 U.S.C.

§ 610

Defendants argue that § 610 is an unconstitutional burden on freedom of speech in light of the recent Supreme Court opinion, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (# 75-436, Jan. 30, 1976). In that decision, the Supreme Court held that the expenditure provisions of portions of the Federal Election Campaign Act violated the First Amendment.

*1072 Buckley v. Valeo is distinguishable from the case at bar, however. The prohibitions of § 610 insofar as they apply to this case are specifically directed to national banks. Since Congress has chartered national banks it seems clear that Congress may exercise plenary regulatory powers over such institutions. It is concluded that § 610 insofar as it relates to contributions is a valid exercise of this power and does not infringe defendants’ First Amendment rights.

Since the government has indicated at oral argument that its proof will be directed solely to the issue of contributions, this court need not decide whether the § 610 prohibition on expenditures by national banks is unconstitutional in light of Buckley v. Valeo.

Defendants have also argued that § 610 is unconstitutionally vague. The standard for determining whether a penal statute is unconstitutionally vague was enunciated in Connally v. Gen’l Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1925):

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [citations omitted]

Having examined the statute in light of these standards, this court con-eludes that § 610 is not unconstitutionally vague.

This court has given careful consideration to defendant Dowd’s argument that the question of constitutionality should be certified to the U. S. Court of Appeals for the 2d Circuit pursuant to 2 U.S.C. § 43711. 1 A review of the language of that section and its legislative history has convinced this court, however, that the provisions of the section are not applicable to the case at bar. The Joint Explanatory Statement of the Committee on Conference, for this section states:

Conference substitute
The conference substitute generally follows the House amendment and makes it clear that these special judicial review provisions are available only for actions directed at determining the constitutionality of provisions of the Act and of provisions of title 18, United States Code, related to the activities regulated by the Act.
1974 U.S.Code Cong. & Admin.News, p. 5664

The case at bar was not directed at determining the constitutionality of the Act. Rather this is a criminal action; the constitutional attack was raised by way of motion. There is no need for the expedited review provision of § 437h in a criminal action, since review may be had on appeal. Declaratory judgments regulate prospective actions; this criminal case deals with actions already taken. Accordingly, there is no reason for certifying the question to the Court of Appeals.

2. The Applicability of § 610 to state elections

Defendants contend that § 610 should apply only to contributions made *1073 in connection with federal elections and not to state elections. They cite Ash v. Cort, 3 Cir., 496 F.2d 416, rev’d on other grounds, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) for the proposition that the definitions contained in 18 U.S.C. § 591 limit the scope of § 610. Ash v. Cort was a civil case dealing with corporate contributions. The prohibitions against national banks in § 610 is different from the prohibition against other corporations in the same section, and the definitions in § 591 only apply “except as otherwise specifically provided.” The language of § 610 applicable to the case at bar clearly provides otherwise: “It is unlawful for any national bank ... to make a contribution or expenditure in connection with any election to any political office . . .” (emphasis added). This language is even more significant in light of the more limited language used in the part of the section dealing with corporations in general:

. or 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 .

The conclusion that the part of the section relating to national banks was meant to apply to all elections — state as well as federal- — -is further reinforced by reference to the legislative history. See S.Rep. No. 3056, 59 Cong. 1st Sess. p. 2:

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Cite This Page — Counsel Stack

Bluebook (online)
409 F. Supp. 1070, 1976 U.S. Dist. LEXIS 16350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clifford-nyed-1976.