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UNITED STATES v. CLIFFORD

March 3, 1976

The UNITED STATES
v.
Patrick J. CLIFFORD et al.



The opinion of the court was delivered by: COSTANTINO

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.

 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 concludes 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. § 437h. *fn1" 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 ...


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