United States v. Hood/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice REED, Mr. Justice DOUGLAS and Mr. Justice MINTON concur, dissenting.

18 U.S.C. § 215, 18 U.S.C.A. § 215, makes it a crime to solicit or receive political contributions on the basis of a promise to help 'any person' obtain 'any appointive office or place under the United States * *  * .' The Government argues that this statute makes it criminal to promise to help someone get an 'office or place' even though there is no such office or place in existence. Apparently sensing that such an extraordinary expansion of this criminal statute might not be accepted, the Government argues for a lesser expansion sufficient to include an 'office or place' if there is a 'substantial possibility' that it may be 'set up in the near future.' The Court's construction is apparently the same although there are slight verbal variations. It reads the statute as punishing promises made to use 'influence in connection with an office which had been authorized by law and which, at the time of the sale, might reasonably be expected to be established.' The words used in this statute convey no such meaning to me. I think that any person reading the words 'office or place' would immediately think of them as applying to an actual, existing 'office or place'. This surely would be a fair construction of the language used, and I think it is the construction that should be compelled in connection with this criminal statute. It requires considerable straining to say that Congress 'plainly and unmistakably', United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 411, 61 L.Ed. 857, made it a crime to use influence in connection with an 'office or place' that did not exist. See United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275. As a matter of fact, the 'reasonably to be expected' office or place here talked about was not only nonexistent at the time the alleged promise was made-it has not been 'set up' yet. We should not stretch this statute to cover conduct which is not prohibited on the theory that Congress would have done so had it thought about it. United States v. Weitzel, 246 U.S. 533, 543, 38 S.Ct. 381, 382, 62 L.Ed. 872; McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816; Pierce v. United States, 314 U.S. 306, 62 S.Ct. 237, 86 L.Ed. 226.