The opinion of the court was delivered by: COSTANTINO
COSTANTINO, District Judge.
After a jury trial, Patrick J. Clifford was convicted of one count of falsifying a material fact in a matter within the jurisdiction of the Office of the Comptroller of the Currency (18 U.S.C. § 1001).
More specifically that count of the indictment charged that:
On or about February 19, 1971, within the Eastern District of New York, Patrick J. Clifford, the defendant, did knowingly and wilfully falsify a material fact in a matter within the jurisdiction of the Office of the Comptroller of the Currency, an agency of the United States, to wit: that postage stamps had not been used to make political contributions by the SECURITY NATIONAL BANK, PATRICK J. CLIFFORD, the defendant, knowing such statement to be false. (Title 18, United States Code, Section 1001).
After all the evidence had been presented and prior to submission of the case to the jury, Clifford moved pursuant to Rule 29, Fed.R.Crim.P., for a judgment of acquittal on Count 13. This court reserved decision on the motion, noting at that time that it "is the weakest count in the whole indictment." (Tr. 4676-4677) After the jury returned its guilty verdict on Count 13 both sides submitted briefs on the reserved motion. For reasons which will be set out below, this court concludes that the jury verdict must be set aside, and a judgment of acquittal entered on Count 13.
Since the evidence pertaining to Count 13 is not extensive, it will be helpful to examine it in its entirety. The main thrust of the indictment in this case was directed at an alleged conspiracy to wilfully violate 18 U.S.C. § 610 as well as at particular substantive violations of that section. The false statement alleged by Count 13 arose during the course of an investigation by the Office of the Comptroller of the Currency into these substantive violations.
That investigation was triggered by an anonymous letter [Exhibit 171] which was sent to the Chief National Bank Examiner in 1971. That letter, which is reproduced in full as Appendix A to this opinion contained the following relevant language:
You may be interested in a situation existing at Security National Bank (Huntington, New York) which appears to be a violation of Regulation "Q" (payment of funds for demand deposits).
Officers of the bank reaching a certain salary level were given a supplemental raise a couple of years ago, out of which they contributed $50.00 per pay for 24 pays ($100.00 per month). For some time, these kickbacks were in cash, the proceeds of which were used as inducements for demand deposit balances from local political officials. The usual manner of pay off was in regular U.S. postage stamps. Lately, the system has changed -- checks are written by those bank officers, payable as directed by the bank, such as "Citizens for Goldberg."
In response to this letter Bank Examiner Edwin K. Langdon, Jr. interviewed Clifford on February 19, 1976. The following are the relevant excerpts from Mr. Langdon's testimony:
Q After you spoke with Mr. Van Horn, rather he spoke to you about the receipt of the anonymous letter, Exhibit 171, can you tell the ladies and gentlemen of the jury what, if anything, you did?
A I called Mr. Clifford at The Security National Bank and told him that our office had received an anonymous letter regarding political contributions and that I would like to see him at the bank to discuss the matter with him. (Tr. 2328)
Q Did there come a time when you met with Mr. Clifford?
Q With regards to the anonymous letter? (Tr. 2329)
Q Do you remember approximately what date that was, sir?
A February 21. (Tr. 2330)
Q Where did you meet Mr. Clifford?
A I met Mr. Clifford in his office in Huntington.
Q Was anybody else present other than yourself and Mr. Clifford?
A Mr. Powell and Mr. Doud. [sic -- Dowd]
Q Anybody else other than yourself, Mr. Clifford, Mr. Powell and Mr. Doud? [sic]
Q Was there anybody else present from the Controller's office other than yourself?
Q Did you bring anything with you that day, sir?
A I apparently brought some paper -- I brought the anonymous letter, the copy, and apparently some paper to jot notes down with. (Tr. 2331)
Q Mr. Langdon, I want to focus on the meeting between yourself, Mr. Clifford, Mr. Doud [sic] and Mr. Powell. Would you tell the ladies and gentlemen of the jury as best you can recall it what happened and what was said.
A Mr. Clifford and Mr. Powell and Mr. Doud [sic] were shown the anonymous letter.
A They were told -- When I gave it to them to read, I told them they could read it but not copy it.
Q Could you tell us what discussion took place after they read it?
A We went over each point in the anonymous letter, one by one. (Tr. 2332)
Q Exhibit 171, the writer alleges does he not that officers at the bank received supplemental raises out of which they were to contribute $100 a month, political contributions; is that correct, sir?
Q Did you discuss that allegation with Mr. Clifford, Mr. Doud, [sic] and Mr. Powell?
Q Can you tell us to the best of your recollection what you said and what if anything they said.
A We went over the allegation. I was told that officers of the bank did contribute, but it was on a strictly voluntary basis; that no raises were given for the purpose of making political contributions.
A Mr. Clifford. (Tr. 2337)
Q When Mr. Clifford said that, did Mr. Doud [sic] say anything at that time?
Q Did Mr. Powell say anything at that time?
Q The anonymous letter also alleges, does it not, that postage stamps were used to make contributions, isn't that correct, sir?
Q Did you discuss that ...