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June 25, 1975

Jack L. CHESTNUT, Defendant

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

The defendant, Jack L. Chestnut, the campaign manager for Senator Hubert H. Humphrey's 1970 campaign for the office of United States Senator from Minnesota, was convicted after a jury trial of willfully violating 18 U.S.C., sections 610 and 2. The charge was that the defendant caused Lennen & Newell, Inc., a New York advertising agency employed by the Humphrey campaign, to accept or receive an illegal contribution to the Humphrey campaign from Associated Milk Producers, Inc. ("AMPI") a corporation.

 The defendant now moves pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal upon various grounds, including that the evidence is insufficient to sustain the conviction, lack of venue in this district, errors in the admission of evidence, and prejudicial instructions to the jury. Other grounds advanced for the judgment of acquittal were previously argued in a pretrial motion for dismissal of the indictment. As to these, the court adheres to its previous rulings, the bases for which are fully explicated in its opinion. *fn1"

 The first challenge to the guilty verdict is that the evidence failed to establish willfulness and consequently a verdict of not guilty is required as a matter of law. The current rule in this circuit is that upon a motion for a judgment of acquittal the trial judge must determine whether upon the evidence, giving full play to the jury's right to determine credibility, weigh the evidence and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. *fn2"

 Considering the evidence in the view most favorable to the government on this motion, as the court must, *fn3" the court readily finds that "a reasonable mind might fairly conclude" that the defendant willfully violated section 610 beyond a reasonable doubt -- that the defendant knew he was causing another to accept or receive an illegal corporate contribution. *fn4"

 Willfulness rarely can be established by direct evidence; usually it is determined by circumstantial evidence, an overall consideration of all the facts and circumstances and the reasonable inferences to be drawn therefrom.

 The hard thrust of the defense was that the defendant believed that the contribution came from a fund associated with AMPI, composed of voluntary donations from its members, which legally could make contributions to political campaigns. *fn5" However, the evidence established that the contribution came from AMPI's general corporate funds and that it was received in an indirect manner devised by the defendant. It was the defendant who directed both Lennen & Newell, Inc. and Bob Lilly, assistant to the general manager of AMPI, to carry out the procedures whereby the advertising agency, which had rendered services to the Humphrey campaign, not to AMPI, would prepare invoices to be made out to AMPI and for AMPI to pay those invoices. It was the defendant who instructed Lilly not to pay the initial invoices because they were not in proper form, but to await corrected bills. It was the defendant who sent a letter to Lilly to have AMPI pay the enclosed four corrected invoices each in the sum of $3,000, instructing him to forward checks made payable to Lennen & Newell to him, the defendant, at his office in Minneapolis, Minnesota. Thereafter, Lilly, pursuant to these instructions, forwarded to the defendant in Minneapolis two $6,000 AMPI checks drawn on a corporate account and payable to Lennen & Newell, Inc. The checks were thereafter deposited by Lennen & Newell in its bank account in this city at Bankers Trust Company. The checks upon their face in two places in bold letters indicated they were corporate checks drawn on a corporate bank account.

 The defendant contends that in the absence of direct evidence he saw or would in due course have seen the crucial checks, there was no basis upon which a reasonable mind might fairly conclude beyond a reasonable doubt that he knew that AMPI was using its general corporate funds and thus making an illegal corporate contribution, rather than using funds derived from AMPI's voluntary political affiliate, which could make a legal contribution to the campaign. The short answer to this contention is that the defendant's acts and conduct relating to the contribution come within the classic statement by the Supreme Court of circumstances under which willfulness may be inferred, including the "handling of one's affairs to avoid making the records usual in [the] transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal." *fn6" Usually a contributor to a political campaign sends his contribution directly to the campaign committee and normally the committee makes direct payment to those to whom it is indebted. Here the defendant arranged with Lennen & Newell, Inc. for it to bill AMPI for services Lennen & Newell had rendered not to AMPI, but to the Humphrey campaign. As a result there was no documentation that AMPI had contributed $12,000 to the Humphrey campaign.

 The defendant did not dispute that the two $6,000 AMPI corporate checks were received in his offices; however, he denied he saw the checks; he emphasizes the lack of direct evidence that he saw the checks after AMPI forwarded them to his office pursuant to his instructions. With the checks upon their face carrying their own indicia that they were drawn on a corporate account, his counsel recognize on this motion that this was a central matter on the issue of willfulness. Thus they state: "The question of fact in this case ultimately was whether Mr. Chestnut saw the AMPI checks . . . ." *fn7" Indeed, the court, in its instructions to the jury, suggested that a substantial question is: "Did the defendant ever see the AMPI checks of $6,000 each . . .?" *fn8" The jury answered by its verdict. There is no reason to set it aside. The totality of evidence based upon the defendant's own acts, conduct and all the surrounding circumstances warranted the jurors in drawing the reasonable inference that defendant saw the checks with their corporate legend and that he acted willfully in causing Lennen & Newell to receive or accept this corporate contribution to the Humphrey campaign which he knew was unlawful.

 The defendant next contends that the evidence failed to prove venue in the Southern District of New York. In addition, he argues that venue was improper in this district.

 There is no dispute that the AMPI checks were deposited by Lennen & Newell in its bank account in Manhattan and that, so far as the evidence indicates, the defendant was not then present in this district. The evidence does indicate that defendant's various acts in arranging for Lennen & Newell to bill AMPI for the advertising services and AMPI's payment with its corporate checks occurred in Minnesota. There is no proof of where the checks were physically delivered to Lennen & Newell, Inc. prior to their deposit in this district. Under these circumstances, was venue proper in this district?

 The Sixth Amendment does not provide a defendant with a constitutional right to trial in his home district. *fn9" Rather, both the Sixth Amendment and Article III, section 2, of the Constitution provide that a defendant must be tried in the state and district where the crime was committed. Thus in determining proper venue, the court must determine the place of the crime *fn10" after an analysis of the nature of the alleged offense. *fn11"

 The defendant was found guilty of violating the law making it illegal for any "person to accept or receive" political campaign contributions prohibited by that section. *fn12" The jury was instructed that under another provision of law, "[whoever] wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principle. *fn13" The key words of the substantive statutory prohibition are "to accept or receive" an illegal contribution. The determination of the venue question requires the court to examine the statute "to ascertain when the defendant's actions have progressed to the point where a court can confidently conclude that a crime has been committed." *fn14"

 Where a statute makes it illegal to receive money under certain circumstances and the recipient is given a check, venue is proper where the check is deposited and the proceeds credited to the recipient's account. Thus in Burton v. United States,15 the defendant was charged with violating a statute forbidding a United States Senator from receiving compensation for services rendered in relation to a proceeding in which the United States is an interested party. The Supreme Court held that venue was proper in the district where the checks were deposited and honored, not where the check was physically delivered to the Senator. *fn16" In Burton, the checks were deposited and credited to defendant in the same place where they were physically delivered to him, but as Judge Learned Hand later indicated, the Supreme Court's analysis makes clear that venue did not turn on where the checks were physically delivered. *fn17" In another prosecution under the same statute, although the defendant's services were performed and the checks were ...

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