United States v. Shirey

PETITIONER:United States
RESPONDENT:Shirey
LOCATION:Calvert’s Tavern

DOCKET NO.: 72
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 359 US 255 (1959)
ARGUED: Jan 19, 1959
DECIDED: Apr 20, 1959

Facts of the case

Question

  • Oral Argument – January 19, 1959 (Part 1)
  • Audio Transcription for Oral Argument – January 19, 1959 (Part 1) in United States v. Shirey

    Audio Transcription for Oral Argument – January 19, 1959 (Part 2) in United States v. Shirey

    Malcolm Anderson:

    May it please the Court.

    The one issue that is raised is the desirability of encouraging as a policy in our republican form of government, the contributions to political parties.

    This is of course a major problem with both political parties.

    It is estimated that as much as $40,000 is needed to elect a Congressman.

    If we are to have a representative form of government, we can’t limit the representatives as — the Congressman to persons who are able to afford that, so that we do agree that it is proper to encourage contributions to political parties.

    Both major parties have endeavored to broaden the base so that the contributions will come more from the actual person’s representatives numerically, but I’m quite sure that neither major party, no matter how great this problem would want to encourage the — this method of obtaining money for political parties.

    In other words, I believe the policy is not applicable where you’re — apply it to a fact situation of selling or buying public office.

    And that this was the purpose of Congress setting forth this policy of the country that this is one way in which money is not to be raised for political parties.

    Hugo L. Black:

    Would that have been the (Inaudible)

    Malcolm Anderson:

    Then we come and that is true in the broad sense of the term, “thing of value”, we could get down to charitable contributions could possibly be a thing of value to the offeree.

    Then, I say, we come into that area where there is a certain amount of faith placed in the processes of the law, and the District Attorney and the judges, and the juries.

    I think that perhaps the best illustration of its working, day in and day out isn’t the main act where we have a very general provision that any person who takes a female across a state line for immoral purposes and that is a broad term, and yet, as it is used and exercised, it is limited largely to commercialization, the overreaching of children, female children of tender years.

    But it is capable of all sorts of interpretations of what is an immoral purpose and for that reason, I say that this falls, not because it would not be a thing of value, but because in the processes in carrying out criminal law, there has to be some faith placed in the offices of the prosecuting judge.

    Could you explain the judgment between solicitations that is just in the (Inaudible)

    Malcolm Anderson:

    Of course, both statutes were passed at the same time and the only language we find is that they were considered together and that they were considered as both aimed at the bad practice of buying and selling offices.

    And we believe that it is in the solicitation section as an additional word to define or give color to a thing of value because they anticipated this difficulty arising more specifically with the solicitor.

    The solicitor is saying, “If you will make a contribution of $10,000 to the party, I’ll support you for this job.”

    And then later, the solicitor is saying that this was not the sale of an office but a legitimate political activity and they aimed that section at a specific hazard which they’ve had testimony on.

    Potter Stewart:

    Then I think the legislative history that points either direction as to the distinction between the solicitation and the offering in terms of the scope of the coverage?

    Malcolm Anderson:

    From my reading of the congressional issue, I would say that elected on dead center, they talked generally about this evil of buying and selling offices.

    There is no explanation that I could find as to why it was put in one section and not in the other, no discussion of it.

    As we point out, this is — this is not unique in these two sections.

    In our brief, we pointed out at least two other instances where in this same chapter, between bribery and graft, that there is a difference in the language used defining thing of value or not defining it but — run in with it between the person who solicits and the person who offers.

    And we think this is just the overall attempt of Congress to anticipate some sort of an offer of a thing of value which could not be specific — specifically spelled out and be safe to cover the whole area that they wish to cover.

    Felix Frankfurter:

    There is a strange difference and it’s odd to me on a casual reading between the first and second paragraph of 215.

    Malcolm Anderson:

    Yes, sir.

    Felix Frankfurter:

    Why — why both the 214 and the 215 have any money or a thing of value?

    But the next and the second solicits and receives any thing of value in consideration agency, a money that’s out there altogether.

    Malcolm Anderson:

    I —

    Felix Frankfurter:

    Is that being — is it —

    Malcolm Anderson:

    It — it–

    Felix Frankfurter:

    — obvious what that — they said?

    Malcolm Anderson:

    No, sir.

    There is no explanation of it.

    It worried me and I must confess, I didn’t resolve my worry.

    It seems that Congress was getting bound to place where they were just throwing in all other type of solicitation that might come to pass.

    I think they —

    Felix Frankfurter:

    They have to know on what committee the — did this come out in the Judiciary Committee or some other committee?

    Malcolm Anderson:

    I’m sorry, sir.

    I could be —

    Felix Frankfurter:

    Of course —

    Malcolm Anderson:

    — speculating to say.

    Felix Frankfurter:

    They’re ought from here.

    It looks as if they were rational and carefully considered — considerations in favor and very often the — actually, they’re the one actually considered.

    Malcolm Anderson:

    I –I think that the whole trend of reforming criminal law has been towards brevity.

    I noticed in reading the American Law Institute’s various investigations into the criminal procedure.

    They suggest an information should be a murdered thing and estoppel that statutes then would be that it shall be unlawful to murder.

    It shall be unlawful to sell a public office and allow the interpretation to come from the fact situations as they’re brought forward —

    Felix Frankfurter:

    Was that —

    Malcolm Anderson:

    Perhaps that is what it was being done here.

    William J. Brennan, Jr.:

    I think it’s sort of a victim of a shuttlecock or barrel door they squatly want to particularize and probably don’t want to particularize enough and therefore generalize and you fail to get a hodgepodge of obscurity or at least the irrationality of it.

    Malcolm Anderson:

    Well, it certainly seems, when you step back from the language of this and look at what was actually done.

    Here is a man coming to a person.

    The postmaster shifts are generally considered to be congressional patriotism of coming to a person who is very likely to be the person who makes the decision as to who will be the postmaster in York and making this offer to him.

    And I say that this is exactly what Congress meant when they said, you shall not sell a public office or offer the bottom.

    Yes, sir.

    Tom C. Clark:

    Did congress say that of what you said about a thing?

    Malcolm Anderson:

    Yes, sir.

    Tom C. Clark:

    (Inaudible)

    Malcolm Anderson:

    I think that I don’t think we can take a thing or part from value because I think that the endorsement on a check could scarcely be called a thing but that might be sufficient to be a bribe.

    Tom C. Clark:

    The question though is what Congress might offer to what you have said, or what you have insisted.

    Malcolm Anderson:

    Yes, sir, but the ‘thing of value” is word they’ve used many times.

    Tom C. Clark:

    Why?

    (Inaudible) as this person offers any money or other thing of value?

    Malcolm Anderson:

    I don’t think it’s other thing of value, no, sir.

    In fact, there is a considerable doubt whether ejusdem generis should apply but I feel it here there is problem in this specific fact situation because, a thing of value and money are very closely related in this fact situation.

    But I think that a thing of value should go clear on out to include absolutely unrelated things, a partnership in a firm or something of that sort to this value.

    Or we feel that enclosing, I’d like to say that we feel this is the specific evil that Congress intended to meet.

    This is an offer to buy a public office.

    We feel that we urge upon this Court to so hold.

    Thank you.

    Potter Stewart:

    You’re welcome.

    Is that your answer to the question?

    You said that under the arguments that you’ve made, it would be possible to consider a promise to make a contribution to a charity as a thing of value, but you argued that we must count on prosecuting officials and judges and juries, not to reach ridiculous results as possibly support of them.

    Malcolm Anderson:

    Yes.

    Potter Stewart:

    But would it not in that case be necessary for the information to allege?

    Why and how the contribution to the Red Cross or the parch of dimes or whatever would be a thing of value to the promises to the Congressman?

    Malcolm Anderson:

    Oh, this — this may be, but my personal opinion has always been that this is a bad trend in formal procedure that we should not go off into detail and informations or indictments, that we should be broad in scope and then if is — if it is clear that the man is not able to defend, then we should answer the bill of particulars.

    I don’t think than an information should be thrown out or an indictment thrown out because of particulars.

    I feel that’s a step backwards in — in the advance in history of criminal law.

    Potter Stewart:

    Do you think it would be a sufficient information or indictment simply to allege that John Smith promised Congressman Jones to give a $1000 to the Red Cross?

    Malcolm Anderson:

    I think the Court could say —

    Potter Stewart:

    Congressman Jones is supporting him –?

    Malcolm Anderson:

    I would say that that I would determine that not to be within the need of a thing of value.

    In other words, I would, as a prosecutor and urge upon the Court if this is too much, if this is going too far with the meaning and a thing of value.

    But I wouldn’t be concerned that thing of value is capable of such broad.

    Potter Stewart:

    If the information alleged that Congressman Jones is very ambitious to be elected head of the Red Cross and —

    Malcolm Anderson:

    I think you could spell it out.

    Potter Stewart:

    And you —

    Malcolm Anderson:

    Yes, sir.

    Malcolm Anderson:

    I think you could spell it out.

    Potter Stewart:

    That information could spell it out and that —

    Malcolm Anderson:

    Yes, sir.

    This is something you dearly wanted and it was of real value.

    Potter Stewart:

    But wouldn’t the information have to spell it out or it would be sufficient under the statute?

    Malcolm Anderson:

    As I say, this runs contrary to my whole feeling in the field of criminal law that we should spell out informations and indictments in such detail.

    I think the defendant is absolutely entitled to know what he is charged with.

    And if he doesn’t understand it, it should be given the fellow particulars, but I don’t think that the indictment should fail by a reason of not spelling things out.

    Potter Stewart:

    Is that a privilege to —

    Malcolm Anderson:

    Yes, sir.

    That’s my point.

    That’s my feeling.

    I don’t — I don’t like to see cases go off on technicalities in the indictment or information.

    That’s just too personal.

    Thank you.

    Earl Warren:

    Mr. Cohen?

    Donn I. Cohen:

    Mr. Chief Justice, may it please the Court.

    An answer to Justice Frankfurter’s question in this act did come from the Judiciary Committee.

    Felix Frankfurter:

    In both houses?

    Donn I. Cohen:

    At least in the House of Representative, sir.

    Felix Frankfurter:

    Thank you.

    Donn I. Cohen:

    An answer to the question presented with regard to the sufficiency of the indictment on what the Government contends as its main position, and this contention that is its main position appears at page 10 of the Government’s brief where they say, “Our main position is that the offer to an individual (Congressman Stauffer) to contribute money to his political party (the Republican Party) is an offer of thing of value to the individual person in the prohibition of 18 USC 214.”

    This does not take into account the requirements of the Federal Rule of Criminal Procedure (7)(c), which states that the indictment or information shall be a plain concise and a definite written statement of the essential facts constituting the offense charged.

    And when the rule says the essential facts constituting the offense charged, I presume that they mean all of the essential facts constituting the offense charge and not just the selection of them.

    Now, the Government would have this Court conclude from the fact that we have an offer to donate a $1000 to the Republican Party to use as they see fit.

    Ipso facto, that is a thing of value to Congressman Stauffer.

    It may or may not be a thing of value to Congressman Stauffer.

    These funds contributed to the Republican Party may indeed be used against them if you were not in favor with the — in favor with the recipient of those funds.

    But the important thing is not whether it is used for or against them, but initially, the important thing is whether there is any allegation in the complaint that he stood in anyway, whatsoever, to benefit from the contribution of these funds, the Republican Party.

    It is not inherent.

    Donn I. Cohen:

    It is not like the rule of gravity.

    The money contributed to a political party enure to the benefit of a Congressman, though he be of that party.

    I am sure that these moneys did not enure to the benefit of Joseph Martin or any other member of the House of Representatives.

    They may have enured to the benefit of Congressman Stauffer, they may not have, but the point initially is that in the information and it’s not alleged that they did.

    And no nexus, no nexus whatever is said forth in the information between Congressman Stauffer and the Republican Party.

    They’re completely separate and they are not connected in any way.

    Felix Frankfurter:

    And judicial notice is dictating that the Congressman was a Republican?

    Donn I. Cohen:

    If the Court please, I know have no authority and the Government asked this Court to take judicial notice of that fact.

    Felix Frankfurter:

    But all we have to do is to look at the congressional directory.

    Donn I. Cohen:

    Well, even if it could, Your Honor, even if it could take judicial notice that it is — that the — the Congressman is a Republican.

    Could it take also judicial notice of the (Inaudible) facts which would have to show that these were a thing of value to him?

    If this Court — if this information has alleged that an offer of $1000 was given to the XYZ corporation of which Congressman Stauffer was a stockholder, a common stockholder, under that sub position of facts, conceivably, we could say that it is inherently true that an offer to contribute money to a corporation is a value to a stockholder, a common stockholder of any rate of such a corporation.

    Felix Frankfurter:

    Do you think it makes any difference if a part from other difficulty to demanding to represent if an offer or promise of money was made to a Republican Congressman and he drastically thinking that the Democratic Party has disadvantage in the funds and can get — issue his money as a subject and gives it to the Democratic Party, does that come within the statute?

    Donn I. Cohen:

    If the — if the offer were to give money to the —

    Felix Frankfurter:

    Suppose a money actually was given to a —

    Donn I. Cohen:

    Republican Congressman.

    Felix Frankfurter:

    — to a Republican Congress with the understanding to give or nor give it to the Democratic Treasurer or to the national committee?

    Donn I. Cohen:

    And it was the Republican’s Congress whose — Congressman whose influence was solicited?

    Felix Frankfurter:

    Yes, because he is a highlighted man who likes to have opponents to be about equally matched —

    Donn I. Cohen:

    I shall not —

    Felix Frankfurter:

    — where they don’t have the democratic office to tell a bit more than it were the other time?

    Donn I. Cohen:

    I should not think that that would be a thing of value to the Republican Congressman.

    Felix Frankfurter:

    No, but we have $1000 given to him.

    Donn I. Cohen:

    Then — then it would be money and come under that section.

    Felix Frankfurter:

    Well, I must — the point I want to raise whether the — whether — we have to bother about judicial notice.

    If it gives you a Congressman, assume — assume all of the difficulties that you are raising or will raise were not in the case.

    Suppose you had an outright to give for a $1000 to the Republican Congressman with the understanding if he’s going to give it to a democratic fund.

    The fact that either Republican, the ultimate beneficiary of the democrat, the opposing body would make any difference, wouldn’t it?

    Donn I. Cohen:

    I think that it would not be a thing of value to him.

    Felix Frankfurter:

    I know, but it would be money.

    Donn I. Cohen:

    It would be money to him, yes.

    And in that regard, it would make a difference.

    Felix Frankfurter:

    The fact that he can spend it and he gives a $1000 to Red Cross or to whoever the democratic treasure is would make any difference.

    Donn I. Cohen:

    No, not on that part.

    Earl Warren:

    Mr. Collins, supposed the information merely charged that the offer was made to Congressman Stauffer to give a 4100,000 — or to give a $1000 a year to John Dough, would it be necessary in the information to allege the nexus that you say it is not in this case —

    Donn I. Cohen:

    Yes.

    Earl Warren:

    — between the congressman and John Dough?

    Donn I. Cohen:

    The answer to that Your Honor is yes.

    Absolutely, that is our decision.

    Earl Warren:

    And what would be your authority for that?

    Now, I may be a little sense of it because the pleading I’ve had experienced within the state courts at least have been very simple.

    It can — we can say A stole so many dollars from B, E. A murdered b. A did so and so to C and it never been considered that that wasn’t adequate pleading.

    Now, in this case, why wouldn’t this be a matter of proof in the case, what the relationship was between Congressman Stauffer and the John Doe that the $1000 a year is to — is to go to.

    Perhaps, it might be wholly innocent.

    There might be no connection at all and maybe — maybe the jury wouldn’t — wouldn’t find that it was anything of value to the Congressman, but on the same reasoning, why wouldn’t be hear be able to say what the — the matter of proof, what the relationship between the Congressman and the Republican Party was and whether or not the monetary thing of value.

    Donn I. Cohen:

    My authority for that, Your Honor, is Federal Rule of Criminal Procedure 7(c) —

    Earl Warren:

    Yes.

    Donn I. Cohen:

    — which quite specifically says that the information shall be a definite written statement of the essential facts constituting the offense charged.

    Earl Warren:

    But what is the gravamen of the charge here?

    Isn’t it that to the fact that someone promises to pay some money to get a federal job?

    Donn I. Cohen:

    The gravamen of the charge here, Your Honor, is that there was an offer or promise of money or a thing or value to a person, firm, or corporation.

    And the defendant’s position is that the information must allege somewhere that there was a thing of value offered to a person, firm, or corporation, taking the Government’s main position.

    And if there is no allegation, either by conclusionary words such as the use of the word “thing or value” or by statement of facts to the — to show the relationship between one and another, then a crime has not been stated.

    To give money to another person is not a crime.

    It is only a crime in the event that that other person, using the Government’s posture this case stands the benefit from that gift, and there was no allegation in the complaint and the information whatsoever indicating in anyway, that Congressman Stauffer stood to benefit from that gift.

    And I am using the word “stand to benefit” now, because the Government seems to construe the words “thing or value” as meaning stand to benefit, which I don’t believe they do.

    But taking the Government’s position at least on that point, the information must show because its — it is an essential fact of the offense charged that there’d be a thing of value and to be a thing of value to Congressman Stauffer under their consideration.

    Now, there is nothing here to show that Congressman Stauffer benefit in any way whatsoever and therefore, now crime is stated.

    We can suppose that he might benefit.

    We can suppose that all of the Republican Party would take this money or the recipients of these funds and put it into his campaign or future campaign for Congress, but there’s nothing in the information stated indicating that.

    Donn I. Cohen:

    All we have now is an offer of money to the Republican Party, ipso facto, the Government’s contention is that that’s a thing of value to S. Walter Stauffer.

    There is no connection between the two.

    William J. Brennan, Jr.:

    What is the information that alleged that the defendant promised to give $1000 a year to Congressman Stauffer’s son?

    Would that be enough or would you have to — where the information and you — you have to spell out how and why this would be a thing a value to the Congressman?

    Donn I. Cohen:

    I would think that the information would have to indicate that there was some value accruing to Congressman Stauffer as a result of that gift to his son.

    This is closer of course.

    We can more readily assume that a gift to a son is a gift, but if Congressman Stauffer is alienated from his son, and I do not think this is a matter of proof as being suggested.

    I think this is an essential fact necessary to constitute the offense charged, because we must have charge that a thing of value was offered or promised.

    And if the —

    (Voice Overlap) in other words — (Inaudible) convicted on the fact.

    Donn I. Cohen:

    Yes, Your Honor, that’s exactly the point and I think if these facts and the information were proven and only these facts were proven, a crime would not have been committed because under that posture, you would not know one way or the other whether it was a thing of value.

    (Inaudible)

    Donn I. Cohen:

    I don’t think that makes any difference, Your Honor.

    Republicans sometimes do benefit from contributions to the party and sometimes, it hurts them, and sometimes it’s completely neutral.

    And I think if we’re going to pin the statute down and call for it and it calls for an offer of a thing of value, then the information was alleged that there was a thing of value offered to S. Walter Stauffer.

    And our position is that it is not alleged, and therefore, insufficient under Federal Rule of Criminal Procedure 7(c) insufficient because it does not state the essential facts constituting the offense charged.

    Now, with regard to the statute itself aside from the sufficiency of the information, the thing of value contemplated by the Government is quite different from what the defendant believes the thing of value contemplated by the United States Congress was.

    In the first place, the word “thing of value” follows to word “money,” and it is given some coloration by that word.

    Now, the defendant readily admits that the word “thing of value” is a broad thing, as a broad connotation but it has to be something measurable and not the illusory meaning that the Government would give to it.

    Tom C. Clark:

    Suppose they did that and then — the information that the Congressman was being a member of the Republican Party.

    Donn I. Cohen:

    Well, this — this, Your Honor, is what — is the — is substantially the same question that was asked if we take judicial notice of the party affiliation of this claim.

    Tom C. Clark:

    You said it could.

    I say suppose they put in the indictment itself.

    Donn I. Cohen:

    If that were in the indictment itself, it would still be insufficient.

    Our position is that it must be shown that it is a thing of value, otherwise, it’s not a crime.

    Tom C. Clark:

    That it shows some time between he and the party receiving the money.

    Donn I. Cohen:

    Some times it would benefit him as a thing of value and we can hypothesize a the Government would have it hypothesized, at page 14 of its brief when it says, “It is obvious that it would be a great value to a Congressman to be the person responsible for obtaining such contributions.”

    Indeed, the increasing party funds might well be available for a future campaign of its own.

    They might well be available and they might not well be available, but the point is it’s not alleged in the information that any thing of value accrued to Congressman Stauffer.

    Felix Frankfurter:

    Mr. Cohen, you really surprised me in so far as its relevance whether we could or should rather take judicial notice to the party affiliation of the Congressman that you exclude that from the scope of judicial notice.

    Felix Frankfurter:

    I should think —

    Donn I. Cohen:

    Well, I didn’t want to —

    Felix Frankfurter:

    I’m surprised at it because it seems to be who are the occupants of the public office.

    I could take judicial notice, I should think who is the new Attorney General of Pennsylvania, so I suspect most people in this room would know who it was.

    I happened to have interest in that fact but I could simply take judicial notice if I never heard of the occupant.

    Donn I. Cohen:

    Well, Your Honor —

    Felix Frankfurter:

    So that to say and I couldn’t go to the congressional directory stipulated in the indictment is — this information was filed in a locality where a lot of them can be taking judicial notice.

    What is the whole point?

    You do notice to give me they’re earnest and all the rest of it.

    Donn I. Cohen:

    It’s readily available, Your Honor, the information as to the party affiliation but — and I would not press that point too hard, but I would say that if and if judicial notice were taken to a party affiliation of Congressman Stauffer, that no nexus is established in this information indicating any relationship between these funds allegedly contributed to the Republican Party in any benefit that he might stand in that allegation under Rule 7(c) is and essential allegation to constitute the offense charged.

    Earl Warren:

    It would have matter, rather common knowledge that if a Congressman can appoint the postmaster of his — of his home city that it can help him very greatly in his politics?

    Donn I. Cohen:

    Well, the — the fact that he has that — that patronage at his disposal and quite naturally, it would help him in his political problem.

    Earl Warren:

    Yes, and he’s contributing $1000 to — to the party that’s in power, $1000 a year during the time the man is in the office, wouldn’t that — couldn’t that contribute to them?

    Donn I. Cohen:

    It could, it could Your Honor, but I think it must be alleged that it did in the information.

    That’s our position.

    That is —

    Earl Warren:

    Of course, it will get back to the same question.

    Isn’t that evidentiary?

    Isn’t that a matter that they might — they might require proof of that?

    I don’t know if (Voice Overlap) —

    Donn I. Cohen:

    I think not.

    Earl Warren:

    — but he might require proof of that.

    Donn I. Cohen:

    I think not because I think that is an essential fact to constitute the offense charged.

    With regard now to the statute itself and what is a thing of value.

    I submit that that has given some coloration by the word “Money” and that while it is a broad concept, it is at least something measurable.

    Now, the Government’s position is that it would inure Congressman Stauffer’s benefit some time in the future and therefore is a thing of value.

    And I think the Government argued basically the thing of value and inured to the benefit of another or one in the same, and I think they are not.

    For if the Government’s example were correct, the examples they give at page 14 of their brief, then if the defendant in this case had offered to work hard as a postmaster, in consideration or receiving that appointment, it would, under the Government’s contention the equal thing value and I don’t think Congress intended prescription to that effect.

    Also, money was not paid here.

    It was only offered and in order to prove these benefits which the Government conflicts as inuring to Congressman Stauffer, payment would have in fact had to be made.

    Donn I. Cohen:

    One proof of this case, under this — under this information in any rate, all we have is an offer.

    You can never know whether it was or it only did turn into a thing of value to Congressman Stauffer.

    And finally, we have an offer of money, $1,000 a year to the Republican Party to use as they see fit.

    Now, that is used in money or thing of value in its injunctive sense and I do not believe that you can when you have an information plainly alleging offer of money, then substantiate that information as an offer with thing of value.

    With regard to these two points stand are in a sense distinguishable.

    They are, one, the sufficiency of the information and secondly, even assuming the information is sufficient, the words — the meaning that the Government would seek to give the word, “thing of value,“ is not the meaning intended by Congress.

    It is something I think measurable and not something so illusory and true by only such as secured as fashion.

    And I believe the fact that we are construing a penal statute here which requires its construction in strict terms substantiates this position and limits the meaning of the words, “thing of value” to something at least measurable.

    Potter Stewart:

    Do you mean by that, to say the thing of value means it’s something tangible?

    Donn I. Cohen:

    Not necessarily tangible but measurable in some way.

    The benefits that are going to accrue to Congressman Stauffer, assuming they do accrue, as contemplated by the Government, are not at all measurable and they are not going to accrue until money is actually paid, and this information does not allege any payment.

    It only alleges an operative pay.

    Potter Stewart:

    So money is paid until people hand and tell for those people to know that it was Congressman who was responsible for that —

    Donn I. Cohen:

    And then or — either until money is paid or until it’s generally known that he is the big collector of party funds, thus raising his stature.

    I don’t think this was in the contemplation of Congress in enacting a penal statute and the —

    Felix Frankfurter:

    Statute itself — either pays or offers to pay.

    In other words, if a Congressman is a approached whether —

    Donn I. Cohen:

    Yes.

    Felix Frankfurter:

    — whether with a promise of $1,000 or a jaguar car, and he repels it, then he repels it, that’s an offense, isn’t it?

    Donn I. Cohen:

    That’s an offense, Your Honor, yes.

    Felix Frankfurter:

    But according to you, nothing — nobody knows what a thing of value to him because it’s merely an offer may not eventually.

    Donn I. Cohen:

    Well, the thing of value which the Government contemplates here is not money.

    It’s an offer to Congressman Stauffer of these benefits which they contemplate accruing on page 14 of their brief.

    That is what’s being offered to him.

    No money is being offered to Congressman Stauffer.

    On page 14 of their brief, they —

    Felix Frankfurter:

    But the — the indictment and you asked us to pass likely of course upon the indictment.

    The indictment explicitly alleges the offense as being a promise to contribute $1,000 to be sure that the Republican Party has to convey.

    Donn I. Cohen:

    Yes.

    Felix Frankfurter:

    So the indictment doesn’t turn on Mr. Anderson’s argument the thing of value but he is entitled for the indictments to be judged by this Court on the basis of whatever is fairly chargeable under the allegations of the information — I beg your pardon?

    Donn I. Cohen:

    Well —

    Felix Frankfurter:

    If the whole case is — is switched around and when discussing the thing of value and the indictment doesn’t talk about the thing of value.

    Donn I. Cohen:

    Exactly, Your Honor, I agree with that.

    And I think this was not in the contemplation of the United States Attorney when the indictment was drafted, nor is it even discussed in the opinion of the court below this thing of value argument.

    Felix Frankfurter:

    But that still leaves open whether the information isn’t sustainable as an offer of $1000 to this Congressman to be sure the beneficiary which was to be the Republican executive.

    Donn I. Cohen:

    Well, now the — the Act itself — the Act itself reads, “Whoever pays or offers or promises any money or thing of value, to any person.”

    Now, if you take out the unnecessary words under this particular case, it would read, “”Whoever offers or promises any money to any person.”

    Now, no money was offered or promised to S. Walter Stauffer.

    Felix Frankfurter:

    Yes it was.

    The direction of the money was a third person but the whole — the whole doctrine of dead body beneficiaries, the one man makes a promise which the other fellow to get the full benefit.

    A promise is made by or two fellow written on the benefit by the promise or the execution of it.

    Donn I. Cohen:

    Well, if Your Honor please, our position is that there was not an offer or promise of money to S. Walter Stauffer.

    Felix Frankfurter:

    Well, the indictment says so.

    Donn I. Cohen:

    The indictment says that there is an operative promise that S. Walter Stauffer to donate $1000 a year to the Republican Party and we do not construe that as thing of offer or promise of money to S. Walter Stauffer.

    Felix Frankfurter:

    But he is an unrelated character.

    He’s one — after all, we — innocence as we are on the Court, we must know that the party operate certain officials to Members of Congress that if they do promise a Congressman $1000 to go to the party, but he isn’t an innocent bystander, he has some relation to it.

    He is, by event let’s say the candidate of this eventual $1000.

    You can’t — of course you can, as long as you can send them a check with the treasurer, but politically, that isn’t the way business is done in these localities is it?

    Or can we take judicial notice of how far this operates?

    Donn I. Cohen:

    I don’t know whether we can take judicial notice to that fact.

    Felix Frankfurter:

    Well, you really — you suggested ought to be more interested that I think we really are.

    Donn I. Cohen:

    I don’t suggest him to be innocent.

    I only suggest that if the indictment says an offer or promise of money to a person, a firm, or corporation —

    Felix Frankfurter:

    To denote.

    Donn I. Cohen:

    — that it must — that it must offer money to a person, firm, or corporation and Congressman Stauffer, being a person, if there was an offer of money to Congressman Stauffer would have been a crime.

    Felix Frankfurter:

    Charities are frequently given.

    A promise is made to Jones in the name of so and so.

    For one reason or other, people either for duly interested reasons or for other reasons like there have the charity in the name of somebody, but they promises to the collector.

    Donn I. Cohen:

    Well, I don’t think that would come within the terms of the statute.

    The Government at one point has argued that the Republican Party is a person and therefore, regardless of the other arguments thus made that this is an offer of money to a person and they conclude this by an application of Title I Section 1 of the United States Code which defines person to include such words as, “partnership, firm, corporation, association, joint stock company, or society,” then they take from that and to plant association into the word “person” in 18 U.S.C. 214.

    Donn I. Cohen:

    And the question is, is this supplantable because 1 U.S.C. 1 specifically says that these meanings described to the word “person” apply only in less — apply unless the context indicates otherwise.

    And it’s the position of the defendant to the context of 18 U.S.C. 214 does indicate otherwise and that immediately, following the word “person” in 18 U.S.C. 214, come the words “firm or corporation”.

    Now, it seemed to indicate that this exhaust of specification would exclude further entity by implication.

    And also, the fact that the word “firm and corporation” are also mentioned in 191 U.S.C. 1, if we take the meanings described in 1 U.S.C. 1 and apply it to 18 U.S.C. 214, then the words “firm and corporation” in Title 18 Section 214 United States Code become complete superfluous.

    And it is submitted that Congress would not place in the statute words which would intends to be superfluous.

    Finally, I think we must recall that we are dealing with a penal or criminal statute, and that statute requires strict construction.

    The rule of strict construction is the reason as the decision of this Court in December of this year in which Justice Douglas and its decent referred to United States versus Wiltberger with approval and applied the rule of strict construction.

    That case was United States versus A & P Trucking Company and Hopelet Trucking Company.

    But not only is this a criminal statute, but it is a peculiar criminal statute and that it would seem to involve a crime which is truly the creature of the Congress that it is, in short, malum prohibitum and not mala prohibita as said, and that therefore the rule of strict construction applies with even greater strength.

    And finally, the act of making political contribution —

    Felix Frankfurter:

    I think it marked my word the other way around since way it really required in malum prohibitum and it is such a threatening thing.

    Donn I. Cohen:

    Well, there’s no mandatory required in this Act except —

    Felix Frankfurter:

    There isn’t — I’m suggesting that it makes it less derogatory to be convicted under it.

    Punishment isn’t as severe as a severe crime.

    Donn I. Cohen:

    Oh, I shouldn’t think that the —

    Felix Frankfurter:

    Why don’t you go on that generality, the general propositions?

    Donn I. Cohen:

    Well, these generalities aren’t very helpful usually but I think it’s applied to this case where you do have a crime that is — does not have any common law or inherent moral background to it.

    That — the strict construction rule should apply more strongly.

    And finally, I think we are dealing with —

    Felix Frankfurter:

    I suppose it’s a common law to bribe a member of the House Of Common, probably it was a common law then to being under the generality of offenses that is inimical to the wellbeing of the cavalry of the kingdom.

    Donn I. Cohen:

    That may be so, Your Honor.

    I don’t know.

    In the act in and of itself with which we are dealing, namely the act of making a political contribution assigned for the moment or the purposes for which that act may be done is in of itself laudatory act and while certainly it may be proscribed and certainly under certain conditions, it is wrong.

    If that proscription is to be made, it would seem that it should in explicit terms.

    And the comparison between 18 U.S.C. 214 and 18 U.S.C. 215, the latter in which a section does contain an explicit proscription would seem to indicate that Congress do not intend the proscription of political contributions in the context of 18 U.S.C. 214.

    For these reasons therefore, the defense submit, number one, that the information is insufficient to allege a crime under Title 18 Section 214 United States Code because it does not contain the essential facts necessary to constitute the offense charged and that there is no allegation that a thing of value was offered to Congressman Stauffer.

    And secondly, even if it were sufficient, in other words, even if all the essential facts stated were there, the construction placed on the statute by the Government gives two broader meaning to words “thing of value” and gives an inappropriate meaning to the word, “Republican Party”.

    Now, I might mention at this point also that the Republican Party is not identified as being in association or a person in the information.

    And if this offer or if the proscribed offer would be to a retail shoe store, then it must be alleged that it was a retail shoe store in the information and we have no knowledge whatsoever as to the nature of the Republican Party.

    It is not alleged in the information and on that ground, the information is insufficient aside from the fact that as we argue in our brief, the Republican Party is not an association but rather a concept.

    Donn I. Cohen:

    Thank you.

    Earl Warren:

    Do you have something further Mr. Anderson?

    Malcolm Anderson:

    I would only say one word, Your Honor, that is this problem of nexus.

    It seems to me that we’re getting away from the issue and that is what was in the mind of Mr. Shirey?

    Would this what he offers to the Congressman, persuade the Congressman to give him an office improperly?

    And so, it doesn’t matter whether it was paid or not paid whether anybody else would know about it or not, at that moment, was Mr. Shirey trying to corrupt the Congressman to sell a public office.

    He may have in his heart never intended to make the first contribution, but was he offering to buy a public office.

    We think that the reading of the information would indicate that he was offering to buy a public office.

    Potter Stewart:

    Do you think that the rule of cases like Bell against United States, the recent — the (Inaudible)

    Malcolm Anderson:

    I’m sorry, sir, I can’t add the —

    Potter Stewart:

    The Rule of Lenity so-called or the criminal statute is ambiguous resulted to ambiguity in favor of the common law.

    Malcolm Anderson:

    I think that should always apply.

    I have no objection of that rule.

    I don’t see that it applies here.

    I think there are things that should be said.

    I think this man should not have been hovering of whether he’s guilty or not guilty for six-year or four years that he’s been on the distance of punishment perhaps he should not have had, but I think that’s not our problem today.

    I do see though that there are many items needs be seen involved in this case.