decided: October 10, 1979; As Amended November 15, 1979.
Before Aldisert, Rosenn, and Garth, Circuit Judges.
This is an appeal by the defendant, Perch Hankin, from a judgment of the District Court for the Middle District of Pennsylvania finding him guilty of violating the Federal Election Campaign Act, 18 U.S.C. § 614 (1970 Supp. V).*fn1 The statute provided in pertinent part:
(a) No person shall make a contribution (to a candidate for federal office) in the name of another person . . . .
(b) Any person who violates this section shall be fined not more than $25,000 or imprisoned not more than one year or both.
The defendant appeals principally on the grounds that the district court improperly applied a scienter standard and that the statute of limitations barred the prosecution.*fn2 Because we find that the Government has not met its burden of proof with respect to prosecution within the applicable three year statute of limitations, we reverse.
In February 1976 Hankin approached two of his friends, Harry Hilger and Dante Iacampo, and requested that they and their wives contribute $250 each to the Shapp for President Committee. (In order to qualify for federal matching funds the Shapp campaign had to raise $5,000 in twenty states in individual contributions that did not exceed $250.) Both Hilger and Iacampo complied with Hankin's request by writing two $250 checks each to the Shapp Committee. The four checks were dated February 4, 1976.
Hankin gave Hilger $500 on the day he requested the two $250 contributions. He gave Iacampo $500 a few days thereafter. The Government concedes that Hankin's last contact with the conduit contributors was probably before February 9, 1976. It is not clear precisely what day the Shapp Committee received the checks. Hilger testified that he mailed his two checks within a day or two of February 4 to "some address that had been supplied to (him)." Iacampo did not testify as to when or where he sent the contributions. The checks were deposited by the Committee on February 10, 1976. Some testimony indicated the checks may have been received by the Committee on the date of deposit. Other testimony indicated the checks may have been received by a Committee fund-raiser prior to the date of deposit and forwarded to the Committee by February 10.
On February 9, 1979, a four count information was filed against Hankin, charging him with illegally making four campaign contributions in the names of Dante and Mary Iacampo and Harry and Lois Hilger. On May 9, 1979, a jury convicted Hankin on all four counts.
The statute of limitations under the Federal Election Campaign Act is three years. 2 U.S.C. § 455 (1976). The Government has the burden of proof that the prosecution was instituted within the applicable statute of limitations. See, e. g., Grunewald v. United States, 353 U.S. 391, 396, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957); United States v. Wolf, 405 F. Supp. 731 (E.D.Mo.1975), Aff'd 535 F.2d 476 (8th Cir.), Cert. denied, 429 U.S. 920, 97 S. Ct. 315, 50 L. Ed. 2d 287 (1976). Because the Information was filed on February 9, 1979, the Government has the burden of proving that Hankin's criminal acts occurred after February 9, 1976.
This brings us to the key issue in this case, whether or not Hankin's criminal actions took place after February 9, 1976. The Supreme Court has held that statutes of limitations normally begin to run when the crime is complete. Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). The Government contends that Hankin's criminal act was not complete until February 10, 1976, when the Shapp Committee deposited the four $250 checks. Hankin's position is that the crime was complete before February 9, 1976, when the checks were mailed.
18 U.S.C. § 614 (1970 Supp. V) provides that it is a crime to "make a contribution" to a candidate for federal office "in the name of another person." The Government, under the rationale of United States v. Chestnut, 533 F.2d 40 (2d Cir. 1976), claims the contribution was not made by Hankin until the checks were deposited by the Shapp Campaign Committee. In Chestnut the defendant was convicted of causing another to accept and receive an illegal corporate campaign contribution in violation of 18 U.S.C. §§ 610 and 2. The defendant argued that venue was improper in the Southern District of New York because the offense, if any, consisted of causing the unlawful contribution in Minnesota rather than causing the receipt of the checks in New York. The court said "the substantive offense . . . is the receiving and accepting of an unlawful contribution" and concluded that venue was proper where the checks were deposited. 533 F.2d at 47.
The Government's reliance on Chestnut is misplaced. In Chestnut the crime was in causing another to Accept and Receive an illegal contribution. In this case the crime charged under section 614 of the Election Campaign Act is to "Make a contribution in the name of another person." (Emphasis supplied.) It does not follow that because the crime of receiving and accepting contributions includes the act of depositing checks, the act of making contributions necessarily includes the same element. To the contrary, the existence of a separate crime for receiving and accepting illegal contributions and a different crime for making illegal contributions may indicate that Congress intended separate definitions for each crime.*fn3 In any event, the court's holding in Chestnut is not dispositive.
In reaching its decision in Chestnut, the Second Circuit articulated a test which is helpful in discerning the meaning of 18 U.S.C. § 614. The court said:
In determining proper venue then, the district court must ascertain both the nature of the offense and the location of the acts constituting it. (Citations omitted.) One helpful technique has been to Study the key verbs which define the criminal ...