APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 78-00066)
Before Adams, Hunter and Higginbotham, Circuit Judges.
This an appeal by Christopher Passodelis from a jury verdict finding him guilty of making contributions to a candidate for federal office in excess of $1,000 in violation of 18 U.S.C. § 608(b)(1) (Supp. IV 1974) and of making a contribution in the name of another person in violation of 18 U.S.C. § 614 (Supp. IV 1974).*fn1 Passodelis advances six arguments for reversing his convictions: (1) section 608(b)(1)"s $1,000 limitation on contributions to individual candidates is unconstitutionally overbroad; (2) the absence of an explicit scienter requirement in section 608(b)(1) violates the First Amendment to the Constitution; (3) section 614's prohibition of contributions made in the name of another person is unconstitutionally overbroad; (4) section 614 is unconstitutionally vague; (5) the absence of an explicit scienter requirement in section 614 violates the First Amendment to the Constitution; (6) venue in the Middle District of Pennsylvania was improper.
We find that venue in the Middle District of Pennsylvania was improper in violation of both the Sixth Amendment to the Constitution and Rule 18 of the Federal Rules of Criminal Procedure and that, as a result, Passodelis's convictions must be overturned. Accordingly, we do not reach Passodelis's other contentions.
Passodelis was an enthusiastic supporter of then Governor Shapp's campaign for the Democratic nomination for the presidency. In fact, his enthusiasm was so great that he successfully solicited $250 contributions from eighteen individuals for the Shapp for President Committee and then he himself repaid all eighteen individuals for their contributions. He was tried by a jury and convicted on one count of making contributions to a candidate for federal office in excess of $1,000 in violation of 18 U.S.C. § 608(b)(1) (Supp. IV 1974) and on eighteen counts of making a contribution in the name of another person in violation of 18 U.S.C. § 614 (Supp. IV 1974).*fn2
In a pre-trial motion urging transfer of venue from the Middle to the Western District of Pennsylvania, Passodelis argued that venue in the Middle District was improper. In response to the motion to transfer, the government argued that venue in the Middle District was indeed proper since that was where the Shapp for President Committee had its headquarters and deposited the contributions which it received. Although the district court denied Passodelis's motion, the court stated that "(t)he United States must prove at trial, as it has alleged in the complaint, that crimes were committed by the Defendant in the Middle District of Pennsylvania." App. at 38a. Passodelis now argues before this court, as he argued in a post-trial motion before the district court, that the government failed to prove that crimes were committed by Passodelis in the Middle District.
The question of where an accused shall stand trial was a matter of such importance to those who wrote the Constitution and the Bill of Rights that they dealt with it in two separate provisions. Article III, section 2, of the Constitution requires that "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed . . . ." U.S. Const. art. III, § 2, cl. 3. In addition, the Sixth Amendment to the Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . ." U.S. Const. amend. VI.*fn3
The Supreme Court has, more than once, stated that "questions of venue in criminal cases . . . are not merely matters of formal legal procedure. They raise deep issues of public policy . . . ." United States v. Johnson, 323 U.S. 273, 276, 65 S. Ct. 249, 251, 89 L. Ed. 236 (1944); Travis v. United States, 364 U.S. 631, 634, 81 S. Ct. 358, 360, 5 L. Ed. 2d 340 (1961). Accord, United States v. Valenti, 207 F.2d 242, 245 (3d Cir. 1953). Although the Court has, over time, divided over whether the constitutional provisions on venue were designed primarily to insure that an accused not be forced to stand trial far from where he resides, United States v. Johnson, supra; United States v. Cores, 356 U.S. 405, 78 S. Ct. 875, 2 L. Ed. 2d 873 (1958), or whether the provisions were designed primarily to insure that an accused not be forced to stand trial far from where the crime was committed, Johnston v. United States, 351 U.S. 215, 76 S. Ct. 739, 100 L. Ed. 1097 (1956); Travis v. United States, supra; Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S. Ct. 769, 11 L. Ed. 2d 674 (1964), the Court has consistently viewed the venue provisions of the Constitution as important safeguards protecting an accused from unfairness and hardship in defending against prosecution by the federal government. Though our nation has changed in ways which it is difficult to imagine that the Framers of the Constitution could have foreseen, the rights of criminal defendants which they sought to protect in the venue provisions of the Constitution are neither outdated nor outmoded. Moreover, the Congress has incorporated the basic constitutional provisions on venue in Rule 18 of the Federal Rules of Criminal Procedure which provides, in relevant part, that "the prosecution shall be had in a district in which the offense was committed." Fed.R.Crim.P. 18.
Since the determination of whether venue was proper depends on where the crimes were committed, we must, as an initial matter, ascertain the definitions of the crimes. In a recent opinion, this court held that the act of making a contribution in the name of another person, which is prohibited by section 614, is complete either on the date such a contribution is mailed to or received by, but before it is deposited by, the recipient. United States v. Hankin, 607 F.2d 611 (3d Cir. 1979). Since the primary operative element of the act prohibited by section 608(b)(1) is, like that of the act prohibited by section 614, the making of a contribution, the rationale underlying the Hankin court's definition of the making of a contribution for purposes of section 614 requires that the same definition of the making of a contribution be utilized for purposes of section 608(b)(1). Accordingly, in regard to both sections 608(b)(1) and 614, we are bound by the holding in Hankin that the illegal making of a contribution is complete before the contribution is deposited by the recipient.
We turn now to examine whether there is sufficient evidence upon which the district court could have found that crimes were committed by Passodelis in the Middle District.*fn4 Since, under Hankin, the fact that the contributions were deposited in the Middle District by the Shapp for President Committee is insufficient to establish venue in the Middle District, we must determine whether there is evidence in the record which will support a finding that acts which constitute elements of the crimes were committed by Passodelis in the Middle District. Passodelis contends, properly we believe, that "(t)he only testimony in the case concerning the transmittal of the checks by the defendant to the Shapp for President Committee in Harrisburg, Pennsylvania (the Middle District) came from Patrick Kelly, an FBI agent who had interviewed the defendant ...