Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
Sur Petition for Rehearing of 615 F.2d 975.
The petition for rehearing filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority in the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
GARTH, Circuit Judge, with whom ADAMS, Circuit Judge, joins, dissenting from Order denying Petition for Rehearing.
I vote to grant the government's petition for rehearing en banc. My recent dissent in United States v. Perch Hankin, 607 F.2d 611, 615 (3d Cir.1979), which focused not on venue considerations, but on when (and therefore where) a campaign contribution is made, anticipated the very question which I believe the panel majority in Passodelis has now answered incorrectly. The importance of properly resolving this issue cannot be minimized. This question not only concerns the operations of a relatively new statute, the Federal Election Campaign Act, but the answer which this court now has given to that question cannot help but have a devastating impact on the electoral process in an election year -- which this is. Thus, I dissent from the court's order which has denied the government's petition for rehearing.
As I stated in my Hankin dissent, I believe that a proper interpretation of the Federal Election Campaign Act, requires us to hold that a contribution is "made" when it is "accepted" by the campaign committee. The panel majority, without analysis of where Passodelis' campaign contributions were accepted by the Shapp Committee, concludes that venue in the Middle District of Pennsylvania was improper because there is insufficient evidence that Passodelis "made" or that the Shapp Committee "received" the gifts in that district. Not only is its result flawed, but by ignoring the concept of "acceptance," the opinion of the panel majority -- which now becomes the law of this Circuit -- seriously dilutes the vitality of the election laws. Further, I do not believe that the panel majority's interpretation of the Federal Election Campaign Act comports with the intent of Congress in passing that Act.
Christopher Passodelis, the defendant-appellant, was convicted by a jury in the Middle District of Pennsylvania on one count of making contributions in excess of $1,000 to a candidate for federal office in violation of 18 U.S.C. § 608(b)(1) (Supp.IV 1974) and on eighteen counts of making contributions "in the name of another" in violation of 18 U.S.C. § 614 (Supp.IV 1974).*fn1
At trial, the evidence showed that Passodelis, who was an enthusiastic supporter of Governor Shapp's 1976 presidential campaign, solicited $250 contributions from eighteen individuals who resided in four states -- Michigan, Georgia, North Carolina and Delaware.*fn2 Passodelis then flew to each of those states and collected the contributions. At each of his stops, Passodelis reimbursed each of the contributors fully in cash. After the contribution checks were thus "collected" by Passodelis, he returned with them to his home in Pittsburgh.
There is some confusion as to how the contribution checks were transported from Pittsburgh to the Shapp Committee headquarters in Harrisburg. The panel majority summarized the evidence as follows:
"[the] 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 prior to trial and who testified to admissions made by the defendant to him." Brief for Appellant at 22. When questioned as to what Passodelis told him that he did with the checks after collecting them, Kelly replied:
He couldn't recall specifically. He advised us that upon return to Pittsburgh [the Western District] he either personally hand carried the checks to Harrisburg, Pennsylvania, [the Middle District] or provided them to Mr. Seymore Heyison for transmittal to the Shapp for President Committee here in Harrisburg. But he could not remember exactly what he did with the checks.