United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-3861

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jesse R. Benton

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 16-3862

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

John Frederick Tate, also known as John M. Tate

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 16-3864

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee
v.

Dimitrios N. Kesari, also known as Dimitri Kesari

lllllllllllllllllllll Defendant - Appellant

____________

Appeals from United States District Court 

for the Southern District of Iowa - Des Moines

____________

 Submitted: April 6, 2017

 Filed: May 11, 2018

____________

Before WOLLMAN and LOKEN, Circuit Judges, and NELSON, District Judge. 1

____________

WOLLMAN, Circuit Judge.

Jesse R. Benton, John Frederick Tate, and Dimitrios N. Kesari (Defendants)

were convicted by a jury of causing false records, in violation of 18 U.S.C. §§ 2 and

1519 (Count 2); causing false campaign expenditure reports, in violation of the

Federal Election Campaign Act (the Act), 52 U.S.C. §§ 30104(a)(1), (b)(5)(A), and

30109(d)(1)(A)(i) and 18 U.S.C. § 2 (Count 3); engaging in a false statements

scheme, in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count 4); and conspiring to

commit the offenses listed above, in violation of 18 U.S.C. § 371 (Count 1). 

Defendants appeal, arguing that the district court erred in denying their motions to 2

The Honorable Susan Richard Nelson, United States District Judge for the

1

District of Minnesota, sitting by designation.

The Honorable John A. Jarvey, Chief Judge, United States District Court for

2

the Southern District of Iowa.

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dismiss, for judgment of acquittal, and for a new trial; in instructing the jury; in

issuing certain evidentiary rulings; in denying Tate’s motion for severance; and in

issuing a discovery ruling. We affirm.

I. Background

Defendants were officials withRon Paul’s 2012 presidential campaign. Benton

served as campaign chairman, Tate served as campaign manager, and Kesari served

as deputy campaign manager. During the primary campaign for the Republican Party

nomination, Defendants sought the endorsement of Iowa State Senator Kent

Sorenson, who had previously endorsed rival Republican candidate Michelle

Bachmann and was employed as Bachmann’s Iowa campaign chairman, in which

capacity he worked seventy to eighty hours a week and was paid $7,500 a month.

On October 29, 2011, Aaron Dorr, the brother of Sorenson’s legislative aide,

Chris Dorr, emailed Tate a proposal, which stated that Sorenson would need to be

paid a salary of $8,000 a month to endorse Paul, Chris Dorr would need to be paid a

salary of $5,000 a month, and a $100,000 donation would need to be made to a

political action committee established by Sorenson. Tate shared the proposal with

Benton, among others, describing it as “insulting,” “offensive,” and “unethical,” and

stating that the Paul campaign could make a counter-proposal, simply refuse the

proposal, or communicate the proposal to the press, which he believed “would

destroy the Bachman[n] campaign, Kent, and possibly Aaron.” In reply, Benton sent

an email on October 31 addressed to Sorenson and Aaron and Chris Dorr, stating that

although he was pleased that Sorenson was considering supporting Paul, he was

surprised by the proposal because it appeared to be “trying to sell Kent’s endorsement

for hundreds of thousands of dollars and other in-kind support for future political

ventures,” which “would be unethical and illegal.” Benton further stated that the Paul

campaign “would be happy to employ [Sorenson] at fair market value,” which the

Bachmann campaign had set at $8,000 a month for Sorenson and $5,000 a month for

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Chris Dorr, and that Sorenson should respond to this offer by November 2. Later the

same day, Kesari told Tate in an email that he and Sorenson had arranged to meet for

dinner the following week. Tate responded by saying that Kesarishould not “firm up

anything yet.”

Aaron Dorr responded to Benton’s counter-offer on November 2, stating that

he alone was responsible for the earlier proposal and that Sorenson was unaware of

its details. He also stated that Sorenson would be unable to consider Benton’s

counter-offer until after November 8. Benton replied that the offer for Sorenson and

Chris Dorr to join the Paul campaign remained open but that it would require a

response by November 7.

On November 13, Benton emailed Tate and Kesari that he was considering

telling the press about Sorenson’s endorsement proposal in light of a “cheap shot”

from Bachmann toward Paul. Tate replied that Benton should first contact Aaron

Dorr regarding the possibility of Sorenson’s endorsement. Kesari suggested that he

could meet with Sorenson and Sorenson’s wife, but Tate stated that Benton should

contact Aaron Dorr instead, which Benton agreed to do that night. On November 15,

after Dorr had failed to respond, Benton gave Kesari permission to meet with

Sorenson and Sorenson’s wife. Tate told Kesari, “Make sure you talk to Jesse about

how we want to do this and what you are supposed to say. We need to be very

careful.” Kesari agreed to do so.

On November 21, Kesari emailed Tate and Benton that he had spoken with

Sorenson and his family over dinner the previous evening and learned that Sorenson

wanted to defect to the Paul campaign but in a way that would cause the least harm

to Bachmann. Tate replied, “Seems to me, next step is to make him an offer (in

person, not in writing) and give him a firm but polite deadline. In my view we would

want it to occur after Christmas, a few days before Caucus.” On December 23,

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Benton sent an email to Tate and others stating, “Sorenson is endorsing [Paul] on

Monday. We have his statement already.”

Sorenson requested a meeting with Kesari on December 26. Kesari, Sorenson,

and Sorenson’s wife met at a restaurant to discuss Sorenson’s endorsement of Paul. 

In Sorenson’s absence, Kesari gave Sorenson’s wife a $25,000 check made out to

Grassroots Strategy, a corporation owned by Sorenson. After the meeting, Kesari

sent an email to campaign staffers saying, “The deal is done. Please draft a press

release and send to me and Jesse.” Attached to the email was Sorenson’s draft

statement endorsing Paul. 

On December 27, however, Kesari sent an email to Tate, Benton, and others

saying, “Hold the release. Kent is getting cold feet. He wants to meet with me in

about 2 hours. Any advice? Damn I was afraid of this.” Tate asked, “Why is he

getting cold feet? What can we do, say to help him? What time are you meeting him,

and where?” Benton replied, “I am not interested in this game any more. Dimitri,

pull the offer. If we can’t depend on him, I don’t want him involved.” Benton then

sent another email, saying, “In all seriousness, I am [not] sure what to do about this. 

The DMR [Des Moines Register] has his statement, I sent last night since Kent said

[he] [was] [c]omfortable.” Benton told Tate and Kesari in subsequent emails that he

was considering telling the press about Sorenson’s request for payment if Sorenson

did not uphold his agreement to endorse Paul.

According to Sorenson, he had a heated argument with Bachmann’s campaign

staff on December 28. Later that day, he drove to a rally for Paul at the Iowa State

Fairgrounds in Des Moines. Sorenson met Kesari in the parking lot and asked if

Kesari, Benton, and Tate were still “on board” with his endorsement of Paul; Kesari

replied that they were. Sorenson spoke with Benton and Kesari in the backstage area

of one of the buildings at the Fairgrounds, where Tate was also present. Sorenson

testified that Benton told him something to the effect of, “[Y]ou bled for us, we’ll

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take care of you,” which Sorenson understood to mean that he would be “financially

taken care of and politically taken care of.” Sorenson thereafter went on stage and

publicly endorsed Paul. Shortly after Sorenson’s endorsement, Kesari sent an email

to Fernando Cortes, the Paul campaign’s assistant controller, requesting a $25,000

wire transfer for the next morning. Copies of the email were sent to Benton and Tate

and stated that Benton had approved the wire. Tate replied the following day that the

wire was approved. The Paul campaign issued a press release announcing Sorenson’s

endorsement.

After Sorenson endorsed Paul, members of the Bachmann campaign began

telling the press that the Paul campaign had paid Sorenson for his endorsement. 

Responding to media inquiries, Benton stated that Sorenson would not be paid by the

Paul campaign, in one instance explicitly denying that Sorenson would be paid a

salary by the campaign. Tate sent an email to Benton, saying, “We need to make sure

anyone asked about this . . . is prepared to say the same thing. I would assume that

is something like: The Ron Paul campaign has not and is not paying Kent for his

endorsement. Kent decided to endorse Ron because blah blah blah. Short sweet and

truthful.”

On December 29, the Paul campaign issued a press release that included a

statement from Sorenson that he “was never offered money from the Ron Paul

campaign or anyone associated with them and certainly would never accept any.” 

The statement further stated, “Financial reports come out in just days which will

prove what I’m saying is true.” Benton had approved this release before it was made

public. In television interviews, Sorenson also denied being paid by the campaign. 

He had been urged by Kesari to support this denial by referring to the forthcoming

financial reports and wastold by Kesari not to cash the $25,000 check that Kesari had

given to Sorenson’s wife. Also on December 29, Cortes sent an email to Kesari,

Benton, and Tate, with the subject line “25k wire,” asking “Is this invoice still on for

today? Please send when you get.” Benton told Cortes to “[h]old for a couple days.” 

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Tate agreed that the wire should be held, and Kesaristated, “We are holding till after

the filing.” Kesari also explained that he did not want the wire “showing up on this

quarter filings.” Later that day, Cortes sent Tate a list of outstanding invoices, which

included “$25k - Dimitri’s mystery wire.” Tate responded, “Thanks. There will not

be the 25k dimitri wire for now. Wipe it off the books.”

Kesari then arranged to pay Sorenson through a third party. He asked his

brother, Pavlo Kesari, if Pavlo could pay, via Pavlo’s video production company, a

graphic designer who had done work for the campaign. Pavlo replied that he could

not do so, but referred Kesari to his friend Sonny Izon, who owned a video

production company called Interactive Communications Technology (ICT). On

January 24, 2012, Sorenson sent Kesari an invoice addressed to ICT from Grassroots

Strategy Inc., the corporation owned by Sorenson, for “Consulting Services,”

consisting of $25,000 for “Retainer to provide services” and $8,000 for services

provided during the month ofJanuary 2012. Kesarisent the invoice to Pavlo, saying,

“Here is the invoice that needs to be taken care of. Send me an invoice for video

services.” Pavlo forwarded the invoice to Izon and added a $3,125 invoice for audio

equipment that Pavlo had rented to the Paul campaign. On February 5, Izon sent

Kesari an invoice charging the Paul campaign $38,125 for “Production Services.”

After receiving the February 5 invoice, Kesarisent Tate an email asking “[d]id

jesse get kent paid?” Tate replied, “No idea. Ask him.” Kesari then emailed Benton,

asking “Did you get kent paid? Or should I submit the payment and pay him?” 

Benton replied, “Yo[u] handle.” Kesari forwarded the invoice to Cortes, saying

“Please wire tomorrow morning[.] This is approved by jesse.” On March 21, Izon

sent Kesari an invoice charging the Paul campaign $8,850 for production services

rendered in February. Kesari forwarded the invoice to Cortes, saying that it was

“[a]pproved by jesse.” Cortes forwarded the invoice to Tate, asking if the payment

was approved, with Tate responding that it was. The same exchange took place

regarding the invoice for services in March. After receiving the invoice for services

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in April, Kesari forwarded it to Benton, asking “Kent’s bill[.] Pay?” Kesari then

forwarded the invoice to Cortes, saying that it was “[a]pproved by Jesse.” After

receiving the May invoice, Kesari forwarded it to Cortes, saying, “This should be the

last one.” Cortes forwarded the invoice to Tate, asking “[A]pproved? Dimitri said it

isthe last one.” Tate approved the payment. After receiving the June invoice, Kesari

forwarded it to Cortes, saying, “This is the last one.” Cortes forwarded the invoice

to Tate, saying, “According to dimitri [this is] the last one (again)[.] Approved? 8k.” 

Tate told Cortes, “I will find out what it is.” Tate emailed Kesari, asking, “What is

this? What is it for, who is it? Why do we keep paying them? The last payment was

supposedly the last.” Kesari replied, “This [is] the last payment for kent Sorenson. 

The deal jesse agreed to with kent.” Kesari sent Tate another email, saying, “I[t] was

for 6 months.” Tate then approved the payment.

Sorenson testified that he performed some servicesfor the Paul campaign while

being paid by it. He posed for photographs, made two television appearances, sent

emails, and recorded a phone call on behalf of the campaign. He traveled to South

Carolina and appeared at ralliesin support of Paul, although he did not organize these

rallies, as he had done while working for the Bachmann campaign. While in South

Carolina he also met with state legislators and encouraged them to endorse Paul.

Based on the invoices, Cortes and other campaign staff prepared wire

instructions for the payments to ICT, using a code designating the payments as

“audio/visual expenses.” The campaign used thisinformation to report the payments

to the Federal Election Commission (the Commission). The campaign reported the

payments to ICT to the Commission as “audio/visual expenses,” using the code

assigned by Cortes.

In response to media reportsregarding the $25,000 check that Kesari had given

to Sorenson’s wife, Sorenson sent Kesari a draft press release in August 2013, which

stated that he had been offered the check but never cashed it and thus he “was never

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paid.” Kesari told Sorenson to hold the release until after Kesari had returned from

a trip abroad. Upon arriving in Toronto, Kesari placed phone callsto Sorenson, Tate,

and Benton. He placed several more phone calls to Sorenson, Tate, and Benton after

returning to Virginia. Kesari traveled to meet with Sorenson at his home. Sorenson

testified that upon arriving, Kesari lifted up his shirt and asked Sorenson to do the

same, to prove that neither was wearing a wire. Kesari asked Sorenson to give him

the check back or to alter it to show either a smaller amount or to show “Loan” as the

check’s purpose. Sorenson refused these requests.

Defendants were indicted by a federal grand jury on Counts 1 through 4 as

described above. Benton was indicted on a count of making false statements to law

enforcement, in violation of 18 U.S.C. §§ 2 and 1001(a)(2) (Count 5) and Kesari was

indicted on a count of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3)

(Count 6). The district court dismissed without prejudice Counts 1 through 4 against

Benton and Tate because the government had presented information to the grand jury

that Benton and Tate had proffered to the FBI, in violation of their proffer

agreements. The jury convicted Kesari of Count 2, causing false records; acquitted

Kesari of Count 6, obstruction of justice; and acquitted Benton of Count 5, making

false statements to law enforcement. The jury was unable to reach a verdict on the

remaining counts.

By way of a superseding indictment, a grand jury again charged Defendants

with Counts 1 through 4, except Kesari. who was not indicted on Count 2. After a

second trial, the jury convicted Defendants on all counts.

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II. Discussion

A. Statutory Construction and Sufficiency of the Evidence

Defendants argue that the district court erred in denying their motions for

judgment of acquittal and for a new trial because the court misconstrued the relevant

statutes and the evidence wasinsufficient to support Defendants’ convictions. “The 3

district court’s statutory construction is a legal determination that we review de

novo.” United States v. Mack, 343 F.3d 929, 933 (8th Cir. 2003). “A motion for

judgment of acquittal should be granted only if there is no interpretation of the

evidence that would allow a reasonable jury to find the defendant guilty beyond a

reasonable doubt.” United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007)

(quoting United States v. Cacioppo, 460 F.3d 1012, 1021 (8th Cir. 2006)). “This

court views the entire record in the light most favorable to the government, resolves

all evidentiary conflicts accordingly, and accepts all reasonable inferencessupporting

the jury’s verdict.” Id. at 856. “We review the district court’s denial of a motion for

new trial for abuse of discretion.” United States v. Davis, 534 F.3d 903, 912 (8th Cir.

2008).4

Benton also appeals from the denial of his motion to dismiss the indictment, 3

a ruling that we review de novo. United States v. Sewell, 513 F.3d 820, 821 (8th Cir.

2008).

We reject at the outset Benton’s argument that the evidence was insufficient

4

because the district court erred in relying on Sorenson’s testimony. In considering

a motion for a new trial, “the district court may weigh the evidence and evaluate the

credibility of the witnesses, but the ‘authority to grant a new trialshould be exercised

sparingly and with caution.’” Davis, 534 F.3d at 912 (quoting United States v.

Sturdivant, 513 F.3d 795, 802 (8th Cir. 2008)).

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1. Federal Election Campaign Act

The Act requires the treasurer of a political campaign committee to file with

the Commission a report disclosing “the name and address of each [] person to whom

an expenditure in an aggregate amount or value in excess of $200 within the calendar

year is made by the reporting committee to meet a candidate or committee operating

expense, together with the date, amount, and purpose ofsuch operating expenditure.” 

52 U.S.C. § 30104(a)(1), (b)(5)(A). Violations of the Act’s reporting requirements

committed “knowingly and willfully” and “aggregating $25,000 or more during a

calendar year” may be punished by up to five years’ imprisonment. Id.

§ 30109(d)(1)(A)(i).

Defendants argue that the Act does not prohibit a campaign from paying a

vendor, which in turn pays a sub-vendor, while reporting only the payment to the first

vendor. As the district court noted in its order denying Defendants’ motions, this

argument is unavailing because Defendants were not charged with violating the Act

merely by failing to report Sorenson as the ultimate recipient of the campaign’s

paymentsto ICT. Rather, the government “was properly permitted to argue that [the]

combination of a payee used to disguise the true payee, together with a false

statement of purpose, wassufficient to violate the statutes alleged in the indictment.” 

D. Ct. Order of Oct. 24, 2016, at 4-5.

The district court’s analysis does not conflict with the Commission’s decisions. 

In Mondale for President, the Commission advised that a campaign may report

expenditures to a corporation it hired to provide media consulting services without

reporting the corporation’s expenditures to its sub-vendors. FEC Advisory Opinion

1983-25 (Mondale for President). And in Kirk for Senate, the Commission concluded

that a campaign had not violated the Act’s reporting requirements by paying a vendor

for media services, who in turn paid a sub-vendor that allegedly used some of the

funds to pay the personal expenses of the candidate’s girlfriend. Kirk for Senate,

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Matter Under Review (MUR) 6510 (FEC July 16, 2013). In both matters, however,

the Commission concluded that the vendors and sub-vendors had provided the

services described by the campaign. Indeed, in Mondale, the Commission noted that

itemization of the vendor’s payments to sub-vendors would not be required because

the campaign would report “specific information describing the various purposes of

each expenditure made” to the vendor, such as “media consulting fees, media

photocopy expenses, media buys, media production, and other similar descriptive

language that reflects the actual purpose of each” of the campaign’s expenditures to

the vendor. Here, by contrast, the government presented evidence that Defendants

caused false reports to the Commission that the payments to ICT were for

“audio/visual expenses,” when in reality ICT had provided no such services to the

campaign and the payments were instead for Sorenson’s endorsement.

The Commission found a violation of the Act’s reporting requirements in a

matter whose facts are similar to those here, In the Matter of Jenkins for Senate 1996

and Woody Jenkins, MUR 4872 (FEC Feb. 15, 2002). The campaign had contracted 5

with a company called Impact Mail & Printing for computerized phone bank services. 

The campaign wanted to conceal its association with Impact Mail, however, and to

that end it issued payments to its media firm, Courtney Communications, which then

transmitted the paymentsto Impact Mail. The campaign’s reportsto the Commission

reflected disbursements to Courtney Communications and not to Impact Mail. The

Commission reasoned that because Courtney Communications “had no involvement

whatsoever with the services provided by Impact Mail,” and served only “as a conduit

for payment to Impact Mail so as to conceal the transaction with Impact Mail,” the

campaign had violated the Act’s reporting requirements.

Defendants contend that this matter lacks persuasive value because the

5

Commission’s views were set forth in a conciliation agreement reached by the

Commission and Respondents. We note, however, that the conciliation agreement

was accepted by majority vote of the Commissioners.

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Defendants cite Boustany, Jr. MD for Congress, MUR 6698 (FEC Feb. 23,

2016), in support of their argument, but we do not find that case persuasive. The

supplement to the complaint in that matter set forth allegations similar to those in this

case, and in a three-to-three vote the Commission failed to find legal violations. 

ThoseCommissioners voting to take no action pointed to the campaign’s descriptions

of the disbursement’s purpose as “[d]oor-to-door get-out-the-vote,” and noted that

while “a portion of the disbursement was ultimately used for another kind of [get-outthe-vote] activity,” it would not be “a prudent use of Commission resources” to

investigate such a “minor discrepancy.” Here, by contrast, reporting the payments to

ICT as “audio/visual expenses,” when the actual purpose of the payments was for

Sorenson’s endorsement, can hardly be characterized as a “minor discrepancy.”

We also reject Defendants’ argument that the coding of the disbursements to

ICT as “audio/visual expenses” did not render the reports false. That Sorenson

performed some work for the campaign that might arguably be described as an

audio/visual expense is beside the point. The government’s theory was that the

paymentsto Sorenson were for his endorsement and not for any audio/visualservices,

a theory bolstered by the fact that the payments were arranged before Sorenson

performed any services. Based on Commission Branch Chief Michael Hartsock’s

trial testimony, Defendants contend that “a campaign is limited in the way that it can

report disbursements and still comply with the Commission’s facial review,” that the

Commission considers “audio/visual” to be an adequate expenditure purpose, and that

it considers “political consulting” or “endorsement” to be inadequate purposes. 

Benton Br. 28-29. Hartsock’s testimony, however, was that the Commission’s lists

of adequate and inadequate disbursement purposes are non-exhaustive, and he agreed

that “while consulting is not an acceptable purpose, specifying the type of consulting

services provided can help to ensure that the purpose is considered adequate.” He

also testified that “audio/visual” does not appear on either the list of adequate or the

list of inadequate purposes. This testimony thus did not establish that “audio/visual”

was an accurate description of the purpose for the disbursements to ICT, nor did it

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establish that Defendants could not have accurately described the purpose for the

disbursements in a manner that would have been accepted by the Commission.

Benton and Tate contend that the evidence was insufficient to support their

convictions under the Act because it did not show that they were involved in

preparing the false Commission reports. We disagree. The government presented

evidence that Benton and Tate coordinated with Kesari to offer Sorenson money in

return for endorsing Paul and that they approved a wire transfer to pay Sorenson after

he had done so. After the Bachmann campaign claimed that Sorenson had been paid

for his endorsement, Tate told Benton that everyone involved should be “prepared to

say the same thing,” namely, that Sorenson had not been paid for his endorsement. 

Benton told members of the media that Sorenson would not be paid by the Paul

campaign. The Paul campaign issued a Benton-approved statement from Sorenson

that Sorenson would not be paid by the campaign and that the campaign’s

forthcoming Commission reports would bear out this claim. Tate and Benton

instructedCortes to hold the previously-approved wire, which, Kesari explained, was

intended to prevent it from appearing on that quarter’s Commission report. Later,

Tate told Cortes to “[w]ipe [the wire] off the books.” Benton told Kesari to handle

the payments to Sorenson. Kesari sent several invoices from ICT to Cortes, saying

in nearly every case that the disbursements had been approved by Benton. Kesari told

Benton that the April invoice was for “Kent’s bill.” Tate approved the invoices after

Cortes forwarded them to him. Although Tate asked what the June invoice was for,

he approved the invoice immediately after Kesari told him that it was for “[t]he deal

jesse agreed to with kent.” The jury was entitled to infer from these facts that Benton

and Tate had knowingly and willfully caused Commission reports to be filed which

falsely reported the payments to Sorenson for his endorsement as payments to ICT

for audio/visual services.

We reject Defendants’ arguments that the reporting requirements are so vague

or confusing that we should either apply the rule of lenity or determine that criminal

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enforcement is not appropriate in this case. As set forth above, Defendants were not

convicted for an unsuccessful, good-faith attempt to accurately report the

disbursementsto ICT, but for knowingly and willfully causing false reportsto be filed

with the Commission, a conviction that we conclude finds ample evidentiary support

in the record.

2. Causing False Records

Defendants challenge their convictions under 18 U.S.C. § 1519, which

provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up,

falsifies, or makes a false entry in any record, document, or tangible

object with the intent to impede, obstruct, or influence the investigation

or proper administration of any matter within the jurisdiction of any

department or agency of the United States or any case filed under title

11, or in relation to or contemplation of any such matter or case, shall be

fined under this title, imprisoned not more than 20 years, or both.

Tate argues that applying § 1519 to false reports of campaign expenditures

would render the Act superfluous. “Section 1519 was enacted as part of the

Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors

and restore trust in financial markets following the collapse of Enron Corporation.”

Yates v. United States, 135 S. Ct. 1074, 1079 (2015). The Supreme Court has

cautioned against “cut[ting] § 1519 loose fromitsfinancial-fraud mooring to hold that

it encompasses any and all objects, whatever their size orsignificance, destroyed with

obstructive intent.” Id. We conclude that applying § 1519 in the context of this case

does not pose such a risk. In Yates, the Court held that § 1519 was not applicable to

a fisherman’s actions in throwing undersized fish overboard in order to evade

punishment. Id. at 1078-79. The Court concluded that “[a] tangible object captured

by § 1519 . . . must be one used to record or preserve information.” Id. at 1079. The

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production of false financial records by a political campaign falls within that

framework. Accordingly, we join the Second Circuit in holding that a defendant may

properly be convicted for violations of the Act and of § 1519. See United States v.

Rowland, 826 F.3d 100 (2d Cir. 2016) (affirming convictions for violations ofthe Act

and 18 U.S.C. §§ 371, 1001, and 1519), cert. denied, 137 S. Ct. 1330 (2017).

Tate also argues that Defendants’ § 1519 convictions fail because the false

reports alleged in this case do not implicate a “matter within the jurisdiction of” the

Commission. Regarding the identical phrase used in 18 U.S.C. § 1001, the Supreme

Court has stated that “[t]he most natural, nontechnical reading of the statutory

language is that it covers all matters confided to the authority of an agency or

department.” United States v. Rodgers, 466 U.S. 475, 479 (1984). “A department or

agency has jurisdiction, in this sense, when it has the power to exercise authority in

a particular situation.” Id. “Understood in this way, the phrase ‘within the

jurisdiction’ merely differentiates the official, authorized functions of an agency or

department from matters peripheral to the business of that body.” Id.

We conclude that the filing of campaign-expenditure reports constitutes a

matter within the Commission’s jurisdiction under § 1519. As set forth above, the

Act requires campaigns to submit these reports and establishes penalties for their

falsity. The Commission is statutorily required to make these reports available for

public inspection. 52 U.S.C. § 30111(a); 11 C.F.R. § 5.4(a). Accordingly, and in

contrast to the situation that existed in United States v. Facchini, 874 F.2d 638 (9th

Cir. 1989) (en banc), where the Department of Labor’s authorization was only to

monitor the administrative structure of the state’s unemployment benefits program,

here the false Commission reports did not constitute “[m]ere access to information,”

but rather “information received [that was] directly related to an authorized function”

of the Commission. Id. at 642. We conclude that for the same reasons as described

above regarding the violation of the Act, the evidence was sufficient for the jury to

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find that Defendants knowingly falsified documents with the intent to impede the

Commission’s administration of that matter.

3. False Statements Scheme

Under 18 U.S.C. § 1001(a)(1), “whoever, in any matter within the jurisdiction

of the executive, legislative, or judicial branch of the Government of the United

States, knowingly and willfully [] falsifies, conceals, or covers up by any trick,

scheme, or device a material fact” may be imprisoned for up to five years. 

Defendants argue that, even assuming that they caused false reports to be submitted

to the Commission, the evidence was insufficient for the jury to convict them of

violating § 1001(a)(1) because the false statements were not material. We disagree.

“A false statement is material if it has a natural tendency to influence or was

capable of influencing the government agency or official to which it was addressed.”

United States v. Chmielewski, 218 F.3d 840, 842 (8th Cir. 2000); see also United

States v. Gaudin, 515 U.S. 506, 509 (1995) (“The statement must have ‘a natural

tendency to influence, or [be] capable of influencing, the decision of the

decisionmaking body to which it was addressed.’” (quoting Kungys v. United States,

485 U.S. 759, 770 (1988))). Defendants contend that this standard was not met in

light of Hartsock’s testimony that a completed report filed with the Commission is

automatically posted on the Commission’s website and is taken down only if a

subsequent review determines that the report is incomplete. Defendants argue that

the false statements of purpose were not material because they did not influence the

Commission in light of the fact that accurate reports would have been published, just

as the false reports were.

Perhaps so, but that does not foreclose the possibility that the Commission

might have taken different action had the reports truthfully described the

disbursements’ purpose. To prove materiality, the Commission needed to show only

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that the false reports were capable of influencing its decision and not that they

succeeded in doing so. United States v. Wintermute, 443 F.3d 993, 1001 (8th Cir.

2006). We conclude that the false statements in the reports satisfied § 1001(a)(1)’s

materiality requirements.

4. Conspiracy

Under 18 U.S.C. § 371, “[i]f two or more persons conspire [] to commit any

offense against the United States . . . or any agency thereof . . . and one or more of

such persons do any act to effect the object of the conspiracy,” each conspirator may

be imprisoned for up to five years. “Conspiracy is an . . . agreement to commit an

unlawful act.” United States v. Pullman, 187 F.3d 816, 820 (8th Cir. 1999) (quoting

Iannelli v. United States, 420 U.S. 770, 777 (1975)). “Proof of a defendant’s

involvement in a conspiracy may of course be demonstrated by direct or

circumstantial evidence.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir.

2006) (en banc).

We conclude that the evidence wassufficient for the jury to convict Defendants

of conspiracy. The government presented evidence that Defendants coordinated with

one another to conceal the paymentsto Sorenson by paying him through ICT and that

Defendants knew that the purpose of those payments would ultimately be falsely

reported to the Commission. That same evidence was sufficient to permit the jury to

find that Defendants entered into an agreement to take such action.

B. Multiplicity

Kesari argues that Counts 2, 3, and 4 were multiplicitous and thus violated his

rights under the Fifth Amendment’s Double Jeopardy Clause. We review this claim

de novo. United States v. Emly, 747 F.3d 974, 977 (8th Cir. 2014). Kesari argues

that we must determine “whether Congress intended the facts underlying each count

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to make up a separate unit of prosecution.” Id. (quoting United States v. Chipps, 410

F.3d 438, 447 (8th Cir. 2005)). This test applies, however, only when multiple counts

of an indictment charge the same statutory violation. Id. Here, each count charged

a violation of a different statute. Accordingly, we apply the test derived from

Blockburger v. United States, 284 U.S. 299 (1932), which provides that “if each

offense requires proof of an element not required by the other, the crimes are not

considered the same, and a double jeopardy challenge necessarily fails.” United

States v. Sandstrom, 594 F.3d 634, 654 (8th Cir. 2010) (quoting United States v.

Gamboa, 439 F.3d 796, 809 (8th Cir. 2006)). Each of the three counts requires proof

of an element the others do not: the Act requires a monetary threshold to be met;

§ 1519 requires an intent to impede, obstruct, or influence a federal matter; and

§ 1001 requires a showing of materiality. 

C. Severance

Prior to the second trial, Tate moved to sever his trial from his codefendants

so that Kesari could testify on his behalf. A hearing was held before a magistrate

judge, during which Kesari’s counsel stated that if Tate’s trial were severed, Kesari 6

would testify that on December 28, the day Sorenson endorsed Paul, Tate was told

that Sorenson had not been promised anything in return for endorsing Paul; that

Kesari did not tell Tate about the $25,000 check he gave to Sorenson’s wife; that

Kesari had no recollection of telling Tate about the $25,000 wire; that no deal to pay

Sorenson existed until January 2012; that Kesari never passed on to Tate any

information about ICT or the method of paying Sorenson; and that Kesari does not

recall telling Tate anything about payments to Sorenson, including how they would

be reported to the Commission, other than in the emails offered into evidence. In

opposition, the government offered some of Kesari’s emails and an interview with the

The Honorable Helen C. Adams, United States Magistrate Judge for the

6

Southern District of Iowa.

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FBI, in which Kesari stated that Paul and another campaign officer did not know

about the deal to pay Sorenson but did not say the same about Tate. The district court

adopted the magistrate judge’s report and recommendation that the motion be denied

in light of the equivocal nature of Kesari’s testimony and the impeachment evidence

available to the government.

“There is a preference in the federal system for joint trials of defendants who

are indicted together.” United States v. Anderson, 783 F.3d 727, 743 (8th Cir. 2015)

(quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)). “This preference is

‘especially compelling when the defendants are charged as coconspirators.’” Id.

(quoting United States v. Basile, 109 F.3d 1304, 1309 (8th Cir. 1997)). “It is settled

in this circuit that a motion for relief from an allegedly prejudicial joinder of charges

or defendants raises a question that is addressed to the judicial discretion of the trial

court, and this court will not reverse in the absence of a clear showing of abuse of

discretion.” United States v. Starr, 584 F.2d 235, 238 (8th Cir. 1978) (quoting United

States v. Rochon, 575 F.2d 191, 197 (8th Cir. 1978)). “[I]n view of the strong

policies favoring joint trials where permissible, the defendant must show that the

co-defendant’s testimony would be substantially exculpatory. The defendant must

show that the co-defendant’s testimony would do more than ‘merely tend to

contradict a few details of the government’s case against [him or her].’” United

States v. DeLuna, 763 F.2d 897, 920 (8th Cir. 1985) (quoting United States v. Garcia,

647 F.2d 794, 796 (8th Cir. 1981)), abrogated on other grounds by United States v.

Inadi, 475 U.S. 387 (1986). In deciding whether a co-defendant’s testimony would

be substantially exculpatory, the district court was entitled to take into account “the

other trial evidence and the impeachment evidence available to the government.” 

United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993).

Kesari’s proffered statements that Tate was told that Sorenson was promised

nothing for his endorsement, that Kesari could not recall telling Tate about the

$25,000 wire, that no deal to pay Sorenson existed until January 2012, and that Kesari

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could not recall telling Tate about the payments to ICT or the method of paying

Sorenson were contradicted by the record of emails between Benton, Tate, and

Kesari. Accordingly, although some of Kesari’s statements were unequivocal, and

even though Kesari’s failure to exonerate Tate during his interview with the FBI may

have had only weak impeachment value, we conclude that the district court did not

abuse its discretion in denying the motion.

D. Jury Instructions

Defendants argue that the district court erred in instructing the jury. “We

review defense challenges to the district court’s jury instructions for abuse of

discretion.” United States v. Carlson, 810 F.3d 544, 554 (8th Cir. 2016). “The test

is ‘whether the instructions, taken as a whole and viewed in light of the evidence and

applicable law, fairly and adequately submitted the issues in the case to the jury.’” 

Id. (quoting United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000)). When

review of jury instructions requires statutory interpretation, our review is de novo. 

Id. at 551.

Benton requested that the district court instruct the jury that it is not illegal: 1)

for a campaign to pay for an endorsement; 2) for a campaign to delay the timing of

payments from one reporting period to another; 3) for a campaign not to report

payments from vendors to sub-vendors; 4) for a campaign to make an expenditure to

a limited liability company without identifying its members or employees; or 5) for

a campaign to pay a vendor more than market value for services. The district court

instructed the jury on the first and third points. The court did not abuse its discretion

in denying the proposed instructions because none of the issues set forth therein

related to the government’s proffered theory of conviction. See United States v.

Wisecarver, 644 F.3d 764, 772 (8th Cir. 2011) (“A legally accurate but irrelevant jury

instruction may be error to the extent it misleads the jury.”).

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Benton also requested that the district court instruct the jury that the term

“willfully,” which appears in both the Act and § 1001, should be defined as follows: 

“A person acts willfully if he acts voluntarily and intentionally to violate a known

legal duty. It means that the defendant had knowledge of what the law required and

acted with the specific purpose to disobey the law.” Instead, the district court issued

the following instruction: 

A person acts willfully if he acts knowingly, purposely, and with the

intent to do something the law forbids. That is, a person acts willfully

when they act with the purpose to disobey or to disregard the law. A

person need not be aware of the specific law or rule that his conduct may

be violating, but he must act with the intent to do something that he

knows the law forbids.

Benton argues that the term “willfully” is vague because this court recognizes more

than one definition of the term and thus he was entitled to have the district court give

his proposed instruction because it was the more lenient of the two. In Bryan v.

United States, however, the Supreme Court approved nearly identical jury

instructions, except with regard to “highly technicalstatutesthat presented the danger

of ensnaring individuals engaged in apparently innocent conduct.” 524 U.S. 184,

194-95 (1998). Because Benton has not shown that this case falls within such an

exception, we find no abuse of discretion in the district court’s denial of his proposed

jury instruction.

Likewise, the district court did not abuse its discretion in refusing to give

Benton’s proposed “debatable law” instruction, which stated: 

One factor for you to consider in deciding whether the defendants

“knowingly and willfully” broke the law is whether the requirements of

the law were vague or highly debatable. The more uncertain and

debatable a law may be, the more difficult it may be to know whether

certain conduct may violate the law. Sometimes the applicability of a

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law may be very clear in some instances, but not in others. If the law is

so uncertain or highly debatable that reasonable persons could disagree,

then the defendants could not knowingly and willfully violate the law

and you must find them not guilty.

The district court instead issued the following instruction:

Good-faith is a complete defense to Counts 1, 2, 3 and 4 in this case

because good faith on the part of the defendants is inconsistent with

willfulness as alleged in Counts 1, 3, and 4 and an intent to impede as

alleged in Counts 1 and 2. If the defendants acted in good faith,

sincerely believing themselvesto be exempt by the law fromthe conduct

constituting any of the above charges, then the defendants did not

intentionally violate a known legal duty, that is, the defendants did not

act “willfully.” The burden of proof is not on the defendants to prove

good-faith intent because the defendant does not need to prove anything. 

The government must establish beyond a reasonable doubt that the

defendants acted willfully as charged.

The district court’s instruction accurately set forth the law, and Benton did not show

that the law was “vague or highly debatable” so as to warrant the issuance of his

proposed instruction. See United States v. Picardi, 739 F.3d 1118, 1126-27 (8th Cir.

2014) (holding that district court did not abuse its discretion in refusing to issue

“debatable law” instruction because the issue of vagueness was reserved for the

court).

Kesari argues that the district court erred in failing to instruct the jury that a

conviction for violation of § 1519 required a finding that the defendant acted

willfully. Although Kesari concedes that the text of § 1519 includes no willfulness

requirement, he contends that the relationship between the Act—which includes a

willfulness requirement and authorizes comparatively lenient penalties—and

§ 1519—which includes no willfulness requirement yet authorizes comparatively

harsh penalties—creates a “positive repugnancy” such that Congress must have

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intended for § 1519 to include a heightened mens rea requirement of willfulness. 

United States v. Batchelder, 442 U.S. 114, 122 (1979). Batchelder undermines

Kesari’s argument, however, because there the Court held that without further

evidence of inconsistency, two statutes authorizing different punishments for the

same conduct may coexist. Id. Further, the Court considered whether a later-enacted,

more lenient statute should be read to implicitly repeal an earlier-passed harsher one. 

Id.; see also United States v. Richardson, 8 F.3d 15, 17 (9th Cir. 1993) (per curiam)

(holding that 18 U.S.C. § 1920 narrowed § 1001, which predated § 1920 by 40 years). 

Here, by contrast, Kesari makes a far lessintuitive argument—that § 1519, which was

enacted after the Act and which, according to Kesari, is broader than the Act, must

have been intended to include an implicit heightened mens rea element to avoid

broadening the liability for conduct punishable under the Act. We decline to read

§ 1519 asincluding such an implicit element, all the more so because the cases Kesari

cites in support of his argument included a willfulness requirement. See Bryan, 524

U.S. at 188-90; Ratzlaf v. United States, 510 U.S. 135, 138-40 (1994); Cheek v.

United States, 498 U.S. 192, 194 (1991); United States v. Curran, 20 F.3d 560, 569

(3d Cir. 1994). Accordingly, we conclude that the district court did not err in refusing

to give Kesari’s proposed instructions.

E. Evidentiary Rulings

“We review evidentiary rulings for clear abuse of discretion, ‘reversing only

when an improper evidentiary ruling affected the defendant’s substantial rights or had

more than a slight influence on the verdict.’” Anderson, 783 F.3d at 745 (quoting

United States v. Henley, 766 F.3d 893, 914 (8th Cir. 2014)).

1. Exclusion of Defense Experts

Defendants argue that the district court erred in excluding the testimony of two

expert witnesses, David Mason and Jeff Link. Mason, a campaign consultant and

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former Commissioner and Commission Chairman, testified at the first trial in 2015. 

During direct examination, defense counsel asked several questions regarding general

campaign-finance legal requirements, to which the district court sustained several

relevance-based objections saying to defense counsel, 

This is not the subject matter that you represented would be his

testimony. You were very specific about what you wanted thisfor. . . . It

was represented as associated with the campaigns, how hectic the

campaigns and things like that were. That was the representation, and

the organizational structure of campaigns, not the difficulty complying

with the law.

After defense counsel asked Mason if there was “any confusion about the compliance

issues with vendors and sub vendors,” the court sustained another objection and

called counsel to a sidebar conference, during which the court stated, 

Confusion goes to the state of mind of another, whether it’s one person

or a whole bunch. This gets back to the exact same concern I had last

week about whether the MondaleCampaign sought an advisory opinion. 

Until I find out that that’s—that your client heard it and relied upon it

and bases a good faith defense on that, it’s not relevant. Confusion

generally is not relevant.

The district court sustained a relevance objection when government counsel

asked Mason on cross-examination if he had ever advised a campaign that it could

report a disbursement to the Commission as an audiovisual expense when the

disbursement wasfor something else. Government counsel then asked Mason a series

of questions regarding the legality of paying sub-vendors through an “umbrella

vendor,” including whether the umbrella vendor would have to actuallywork with the

sub-vendors. On redirect examination, defense counsel asked Mason about the rules

regarding paying sub-vendors through an umbrella vendor and possible confusion

surrounding those rules. The district court overruled the government’s objections,

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ruling that the government had opened the door to the issue through its line of

questioning on cross-examination. Mason continued to testify on this topic during

the remainder of his testimony.

Prior to the beginning of the second trial, the district court granted the

government’s motion in limine to exclude Mason’s testimony. It did so because

Mason’s testimony at the first trial “did not provide helpful context regarding the

inner workings offederal campaigns at all, and only arguably touched on any relevant

standard of care by alluding to general confusion,” and instead offered an

impermissible legal conclusion that the Commission regulations were confusing and

that payments to sub-vendors through an umbrella vendor did not violate these

regulations. See S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320

F.3d 838, 841 (8th Cir. 2003) (“[E]xpert testimony on legal matters is not

admissible.”). The court accordingly excluded the evidence under Rule 403 of the

Federal Rule of Evidence, finding that the “helpfulness of Mr. Mason’s testimony to

the jury’s clear understanding of the general context of a political campaign and how

a political campaign operates is outweighed by the danger of confusion of the issues

and impermissible instruction on the law.” The court noted that it would instruct the

jury that the use of an umbrella vendor to pay sub-vendors would not alone violate

the Act and that Defendants were free to elicit testimony from other witnesses

“regarding the hectic nature of political campaigns.”

Benton served pretrial notice that he intended to call Link as an expert witness

to testify regarding “the operating environment within federal candidate campaigns

and the customs and practices and standards of care with respect to organizational

structure;” “the customs and practices of federal candidate campaigns with respect to

paying outside consultants through the use of corporations . . . and other similar

entities;” and “the customs and practices of federal candidate campaigns with respect

to the use of vendors who subcontract for services intended for the benefit of the

-26-
federal candidate campaign.” The government filed a motion in limine to exclude

Link’s testimony, which the court orally granted during trial.

Tate contends that the district court abused its discretion in excluding the

experts’ testimony because the impermissible legal testimony that the district court

was concerned about was elicited by the government. The record shows, however,

that the testimony was elicited by both sides. As the district court noted, testimony

about the “hectic nature” and operational structure of the Paul campaign was

available from other witnesses with direct knowledge thereof, and so the court acted

well within its discretion in excluding the proposed testimony.

2. Admission of the $25,000 Check

Benton argues that the district court abused its discretion in admitting evidence

of the $25,000 check because it was not relevant to the theory of conviction and that

any tangential relevance was outweighed by the danger of unfair prejudice. We

disagree. The check was relevant to show that the purpose of the payments to

Sorenson was to purchase his endorsement, rather than for “audio/visual expenses,”

as wasreported to the Commission. Any potential prejudice resulting fromadmission

of this evidence was mitigated by the district court’s instruction that paying for an

endorsement alone is not illegal.

3. Admission of Cortes Email

Kesari argues that the district court abused its discretion in admitting an email

sent from Cortes to other campaign staff. The email stated that “Dennis is not a good

guy . . . but neither is Dimitri IMO- but then again I don’t know it all so I leave it to

you.” The email also included several attachments, including the ICT invoices; one

attachment bore a lewd title. Cortes opined, “The last attachment is an email (sorry

for the lewdness) I got about a month ago- not sure who its from- my two guesses-

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Dennis or Dimitri using dummy accounts.” The district court did not abuse its

discretion in admitting this evidence. In any event, any prejudice to Kesari was so

slight as to render any error harmless. United States v. Falls, 117 F.3d 1075, 1077

(8th Cir. 1997).

F. Impeachment Evidence

Kesari argues that the government withheld favorable information derived from

an October 9, 2015, interview between Sorenson and agents of the FBI, in violation

of the Jencks Act, 18 U.S.C. § 3500(b), and Giglio v. United States, 405 U.S. 150,

154-55 (1972). 

Kesari did not establish a violation of the Jencks Act because he has not shown

that notes of this meeting exist. The Jencks Act requires a court to order the

government, upon request by the defendant, to produce any statement in the

government’s possession which relatesto the matter on which a witness called by the

government has testified on direct examination. 18 U.S.C. § 3500(b). In response

to subpoenas issued by Defendants, the government stated that Sorenson had met

with FBI agents on October 9 and that no notes were taken at the meeting. Kesari

argues that trial testimony established that notes were taken at the meeting, but that

testimony was equivocal. During the first trial, Sorenson was asked if people at the

meeting were taking notes, and he responded, “I don’t recall.” Then, when asked,

“Were [note] pads out?” Sorenson said, “Yes.” When asked “And were people

writing on those pads as you spoke to them?” he replied, “I would assume so, yes.” 

During the second trial, FBI Special Agent Karen LoStracco, who attended the

October 9 meeting along with two other agents, testified, “I think I usually take at

least some notes. I don’t recall an occasion where I didn’t take notes. If I wasn’t

taking notes, somebody else was taking notes, meaning another agent.” In the

absence of any probative evidence that notes were taken at the October 9 meeting, no

Jencks Act violation was established.

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Kesari argues that even if no tangible notes exist, Giglio nonetheless entitled

him to impeachment evidence from the meeting. As Kesari offers only the

speculative claim that the October 9 meeting must have produced impeachment

evidence in light of Sorenson’s penchant for dishonesty, he has not shown that any

impeachment evidence existed and thus has established no Giglio violation.

The judgments are affirmed.

______________________________

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