PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-2151

______________

UNITED STATES OF AMERICA

v.

KENNETH SMUKLER,

 Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-17-cr-00563-002)

District Judge: Honorable Jan E. DuBois

______________

Argued June 17, 2020

Before: JORDAN, MATEY, ROTH, Circuit Judges.

(Filed: March 19, 2021)
2

Eric L. Gibson, Esq. (Argued)

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Peter Goldberger, Esq. (Argued)

50 Rittenhouse Place

Ardmore, PA 19003

Counsel for Appellant

______________

OPINION

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MATEY, Circuit Judge.

Interpreting the term “willfully” can be a challenge. It 

is a “chameleon word,” United States v. Starnes, 583 F.3d 196, 

210 (3d Cir. 2009), and “[i]n any closely reasoned problem, 

whether legal or nonlegal, chameleon hued words are a peril 

both to clear thought and to lucid expression,” Bryan A. 

Garner, A Dictionary of Modern Legal Usage 145 (2d ed. 

1995) (quoting Wesley N. Hohfeld, Fundamental Legal 

Conceptions 35 (1919) (reprint 1966)). But we take comfort

knowing that we do not struggle alone with this “notoriously 

malleable” concept. Bryan v. United States, 524 U.S. 184, 202

(1998) (Scalia, J., dissenting). Indeed, “willfully” is “a word of 

many meanings” whose definition is “dependent on the context 

in which it appears.” Id. at 191 (majority opinion). And just as 

a chameleon’s appearance depends on the surroundings, we 

look to the whole text of a law to best “interpret the words 
3

consistent with their ordinary meaning . . . at the time Congress 

enacted the statute.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 

2067, 2070 (2018) (alteration in original) (internal quotation 

marks omitted). We approach that task with a full box of 

“traditional tools” of construction. Kisor v. Wilkie, 139 S. Ct. 

2400, 2415 (2019). Aided by these principles, interpreting 

“willfully” seems less troublesome.

Kenneth Smukler asks us to do just the opposite,

arguing for an exceptional understanding of “willfully” in 

otherwise unexceptional statutes. But the ordinary 

understanding of “willfully” is the best one. Smukler does, 

however, rightly point out that the District Court departed from 

our prior decisions when instructing the jury on two of his nine 

counts of conviction. So we will vacate his conviction on those 

counts. Smukler also brings a host of other procedural and 

substantive challenges from his trial. Finding none with merit, 

we will affirm his other convictions.

I. BACKGROUND

Kenneth Smukler made a thirty-year career in the rough 

and tumble world of campaign politics. From mayors and city 

councils, to members of Congress and presidents, Smukler

steered campaigns across Pennsylvania. And as an attorney,

Smukler developed familiar expertise with Federal Election 

Commission (“FEC”) law. Then, as it sometimes does in 

politics, things went wrong.

A. The 2012 Democratic Primary for the First 

Congressional District of Pennsylvania

In 2012, United States Representative Bob Brady ran 

for reelection to represent Pennsylvania’s First Congressional 
4

District in Philadelphia. Jimmie Moore, a former Philadelphia 

Municipal Court Judge, challenged Brady in the Democratic

primary. Moore struggled to raise money, so he personally 

loaned his campaign about $150,000. It was not enough, and 

Moore soon concluded that he would not win. He turned to 

Plan B, reaching out to former Philadelphia Mayor Wilson 

Goode to arrange a meeting between himself and Brady, with 

Goode providing the “glue.” (App. at 971, 1555.)

In a scheme lacking only a smoke-filled backroom, 

Moore, Goode, and Brady hashed out a deal for Moore to drop 

out of the race. In exchange, Brady agreed to give Moore 

$90,000 to pay off campaign debts and reimburse some of 

Moore’s campaign loan. Of course, as Moore, Goode, and 

Brady all knew, one candidate cannot bribe another candidate 

to drop out of an election. They needed a plan to steer the 

money to Moore. Brady suggested that he buy a poll that 

Moore had conducted. The purpose was plain: “mov[e] money 

from Bob Brady’s campaign to Jimmie Moore’s campaign.” 

(App. at 1318.) With an agreement in place, Moore dropped

out of the race a few days later, clearing Brady’s path to the 

Democratic nomination.

But the money still needed a mover, and Smukler

emerged as the middleman. Once Moore formally dropped out, 

Smukler met with Moore “to make the arrangements” and “set 

up the process for [Moore] to get the money.” (App. at 953, 

1071.) Smukler proposed a three-part scheme. First, they 

would set up a bogus corporation to receive the funds from the 

Brady campaign. Then, Moore would create “some dummy 

invoices.” (App. at 954, 1063.) Finally, Smukler would pay 

Moore in three installments, through cash sent to Moore’s 
5

campaign manager and romantic partner, Carolyn Cavaness.

1

For good measure, Smukler would route the payments to 

Cavaness through the consulting firm of Donald “D.A.” Jones, 

a political consultant working for Brady, for work that 

Cavaness never performed.

2 All went as planned, including, of 

1 Smukler advised Cavaness that the Brady campaign would 

pay $65,000 in two installments for old polling data from the 

Moore campaign. According to Smukler’s instructions, Moore 

and Cavaness set up a shell company, CavaSense and 

Associates, LLC, that would sell the old poll to Smukler.

Through the shell company, Cavaness would contract with 

Voterlink Data Systems (“VDS”), a company operated by 

Smukler, so that VDS would pay $65,000 in two installments 

for the poll. On June 11, 2012, the Brady campaign paid VDS 

$40,000 for “Survey and Polling Services.” Two days later, 

VDS paid CavaSense the first installment of $40,000 in a check 

signed by Smukler. On July 10, 2012, the Brady campaign 

wrote another check to VDS in the amount of $25,000. One 

week later, on July 17, 2012, VDS wrote CavaSense a second 

check, also signed by Smukler, for $25,000. Both checks 

arrived in Cavaness’ personal bank account shortly after 

receipt.

2 Under Smukler’s plan, the Brady campaign would pay Jones 

$25,000 and, in turn, Jones would pay Cavaness $25,000. A 

plan Jones was comfortable with “[a]s long as it wasn’t [his]

money.” (App. at 1320.) On June 20, 2012, Cavaness sent 

Jones an email with invoices from CavaSense, totaling 

$25,000. Jones waited until he received the money from

Brady’s campaign before paying Cavaness. Then the Brady 

campaign cut a check to Jones in the amount of $25,000 for 

“Political Consulting.” Around seven days later, Jones sent a 
6

course, both campaigns omitting accurate reporting of any of 

these transactions to the FEC. 

B. The 2014 Democratic Primary for the Thirteenth 

Congressional District of Pennsylvania

In 2014, former United States Representative Marjorie 

Margolies launched a comeback bid. Like many elections, 

congressional contests occur in two cycles: a primary election, 

where candidates of the same political party square off, 

followed by a general election between the prevailing 

candidates of each party to decide who will represent the 

people. Federal election law limits contributions to a candidate 

in both phases. So while candidates may collect primary and 

general election funds at any time, they cannot use general 

election funds to pay for primary election expenses. That

means if a candidate loses the primary, the campaign refunds 

any general election contributions to donors. 

Margolies faced a crowded field of primary opponents

and hired Smukler to run her campaign. But as the race dragged 

on, Margolies ran low on funds and Smukler dipped into the 

general election reserve. It wasn’t enough; Smukler needed 

more money to cover crucial campaign expenses like media

buys. So he leaned on friends and family to get cash quickly, 

using them as straw men to evade federal election laws and 

pass through money to the campaign. We detail several of 

those donations and associated misrepresentations. 

check to CavaSense for $25,000. Cavaness did no work for 

Jones in exchange for the cash. In fact, when Cavaness sent the 

invoices, Jones had “never met her.” (App. at 1328.)
7

1. Smukler Sends $78,750 to the Margolies 

Campaign

On April 29, 2014, Smukler emailed Jennifer May, 

Treasurer of the Margolies campaign, “I will be wiring $78,750 

of the segregated media account funds into the campaign media 

account.” (Supp. App. at 461.) No such “segregated media 

account” existed. A few days later, he wired $78,750 from his 

personal brokerage account to another of his companies, Black 

and Blue Media. From there, he wired the same amount from 

Black and Blue Media to a new Margolies campaign account 

to quickly pay vendors. Then Smukler asked his brother for 

$75,000, which his brother promptly sent to Smukler’s 

brokerage.

2. The Campaign Spends Money Earmarked for the 

General Election and Smukler Steers Another 

$150,000 to Cover the Difference

Still short on cash, Smukler directed May to use general 

election funds on the primary. A deficit soon swelled, as the 

primary fund declined to a negative cash on hand of $126,761

and change. Then, Margolies lost the primary, leaving the 

campaign sixty days to refund all general election 

contributions. May suggested that Margolies pay the deficit 

herself, a lawful option that Smukler declined. Instead, he 

asked campaign officials, including May, to tell him “exactly 

what amount [Smukler’s two companies:] InfoVoter and Black 

[and] Blue need to return to the campaign to reconcile all 

general fund contributions” as he “intend[ed] to transfer [the 

money].” (App. at 774.) Sensibly, May concluded that if 

Margolies did not write a check for the overage, “we are all in 

really big trouble.” (App. at 2212.)
8

May was correct; Smukler was undeterred. He surprised 

May with the claim that the Margolies campaign “did not 

spend the general [election] money as it was escrowed in” 

Smukler’s consulting company InfoVoter. (App. at 2212.)

“[O]nce the money is refunded,” Smukler explained, “all the 

general [election] checks will be issued within the [sixty-day]

period.” (App. at 2212.) That same day, an old friend of 

Smukler’s, Kevin Morgan, wired $150,000 into Smukler’s 

personal brokerage account. Two days later, Smukler wired 

$40,000 from his personal account to Black and Blue Media

and $110,000 from his personal account to InfoVoter. It all 

wound up in the Margolies campaign in two separate transfers 

from Black and Blue Media and InfoVoter. Smukler directed 

both payments to appear as “[r]efund[s]” on the next FEC 

report. (App. at 610, 791–800; Supp. App. at 194.)3

3. Smukler Conceals the Transfers

Smukler had another problem. Back in April, one of 

Margolies’ opponents filed a complaint with the FEC alleging 

that the campaign had spent general election contributions on 

primary election expenses. That was true, so Smukler spun a 

false tale to the campaign’s attorney, causing him to lie in the 

campaign’s response to the FEC. Based on Smukler’s 

representations, the campaign’s attorney wrote to the FEC that 

3 As in 2012, Smukler used Jones as a “pass-through.” 

(App. at 1356.) He asked Jones to write a check to the 

Margolies campaign, for which he would reimburse Jones for 

the contribution. Which Smukler did by sending Jones a check 

from InfoVoter in the amount of $2,600. Jones only made the 

payment with the guarantee that Smukler would pay him for it. 
9

the Margolies campaign had “agreed to advance a portion of 

[general election] funds” to certain “campaign vendors in order 

to secure their services . . . for the general election.” (App. at

2230.) But because “[t]he advanced funds would . . . pay for 

general election . . . expenses of the vendors,” after Margolies 

lost the primary, the vendors “refunded the advanced payments 

to the committee.” (App. at 2230.) Smukler’s argument 

benefited from apparent support from the campaign’s FEC 

filings, which had also described the payments from Smukler’s 

companies as “refunds.” (App. at 610, 791–800; Supp. App. at 

194.) Based on the letter, the FEC dismissed the complaint. 

4. The Margolies Conduit Contribution

The hasty movement of money between Smukler’s

companies and the campaign eventually caught the eye of the 

FEC. For one thing, Smukler’s companies “refunded” the 

Margolies campaign $18,000 more than the campaign paid. 

But companies cannot send back more than they received 

without categorizing the payment as a corporate contribution. 

The campaign told the FEC that the discrepancy was a mere 

error and returned $18,000 back to InfoVoter. That caused 

more problems by putting the now-defunct campaign back into

debt. Ever ready with a solution, Smukler told Margolies that 

although she was on the hook, he would cover the deficit and

“write a check for [$]25,000” from Black and Blue Media “and 

that [she] would then write a check” back to the campaign. 

(App. at 1216, 1237–40.) She did so. The campaign classified 

it as a loan on the next FEC report. 

C. Tolling Agreements, Indictment, Trial, and Appeal

All of this consulting attracted the interest of law 

enforcement. With investigations mounting, Smukler and the 
10

Government entered into two tolling agreements “regarding 

charges arising out of a payment from the Bob Brady for 

Congress campaign committee on or about August 23, 2012 to 

D. Jones & Associates in the amount of $25,000 and the 

subsequent use of that money by D. Jones & Associates.”4

(App. at 133, 133–39.) The first agreement extended the time 

for the Government to bring certain charges against Smukler 

from August 23, 2017 to September 26, 2017, while the second 

agreement extended the statute of limitations from September 

26, 2017 to October 26, 2017.5 A grand jury later returned a 

4 Both agreements advise Smukler that “the United 

States contends that this conduct may give rise to a number of 

violations of federal criminal law, including but not limited to 

Title 18, United States Code, Sections 2 (aiding and abetting), 

371 (conspiracy), and 1001 (false statements), and Title 52, 

United States Code, Section 30109 (campaign finance 

violations).” (App. at 133, 137.) In both agreements, Smukler 

also acknowledges that he “understand[s] that by agreeing to 

toll, and thus not to assert, the claim of statute of limitations, 

[he is] giving up any rights [he] may have under the federal 

statute of limitations provisions regarding charges that may 

result from the investigation described in this document.” 

(App. at 134, 138.)

5 The tolling provision in the second agreement is more 

broadly worded: “I hereby agree to toll any applicable statute 

of limitations regarding charges arising out of a payment from 

the Bob Brady for Congress campaign committee on or about 

August 23, 2012 to D. Jones & Associates in the amount of 

$25,000 and the subsequent use of that money by D. Jones & 

Associates, as well as any charges arising out of campaign 

finance reports filed by Bob Brady for Congress and Jimmie 
11

superseding indictment charging Smukler with eleven counts 

of various election law offenses related to both the 2012 and 

2014 congressional elections.6 Following trial, a jury returned 

Moore for Congress, from September 26, 2017 to October 26, 

2017.” (App. at 137–38 (emphasis added).)

6 The grand jury returned an original indictment on 

October 24, 2017, charging Smukler and then-co-defendant 

Jones with certain election law offenses relating to former 

Congressman Bob Brady’s 2012 primary campaign. Jones later 

pleaded guilty and cooperated against Smukler. Along with

charges related to Smukler’s work on the 2012 Brady 

campaign, the March 20, 2018 superseding indictment charged 

Smukler with offenses related to the Margolies 2014 campaign.

Counts I through V of the superseding indictment 

related to the 2012 congressional primary campaign. Those 

counts charged Smukler with: conspiracy to commit campaign 

law violations and to make false statements, in violation of 18 

U.S.C. § 371 (Count I); causing campaign contributions in 

excess of federal limits, in violation of 52 U.S.C. 

§§ 30109(d)(1)(A)(i), 30116(f), and 18 U.S.C. § 2 (Count II); 

causing the Brady campaign committee to make false reports 

to the FEC, in violation of 52 U.S.C. §§ 30104(a)(1), 

30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count 

III); causing the Moore campaign committee to make false 

reports to the FEC, in violation of 52 U.S.C. §§ 30104(a)(1), 

30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count 

IV); and engaging in a scheme to falsify and conceal facts from 

the FEC, in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count 

V).

Counts VI through XI related to Marjorie Margolies’ 

2014 congressional primary campaign. Those counts charged 
12

a guilty verdict on nine of the eleven charges, acquitting 

Smukler on the remainder. He received a sentence of eighteen

months’ imprisonment, along with fines and assessments.

Smukler now challenges on appeal a mix of procedural and 

substantive issues from his trial.

First, Smukler argues that the District Court incorrectly 

instructed the jury on the mens rea element of the federal 

criminal laws requiring the Government to prove that Smukler 

acted “willfully.” The District Court explained that “the 

Government must prove beyond a reasonable doubt that 

defendant knew his conduct was unlawful and intended to do 

something that the law forbids.” (App. at 1943.) “That is,” the 

Court continued, “to find that the defendant acted willfully, 

you must find that the evidence proved beyond a reasonable 

doubt that defendant acted with a purpose to disobey or 

Smukler with: engaging in a scheme to falsify and conceal facts 

from the FEC, in violation of 18 U.S.C. §§ 2 and 1001(a)(1)

(Count VI); making campaign contributions in excess of 

federal limits, in violation of 52 U.S.C. §§ 30109(d)(1)(A)(i),

30116(f), and 18 U.S.C. § 2 (Count VII); making $2,000 or 

more in conduit contributions in the name of another, in 

violation of 52 U.S.C. § 30109(d)(1)(A)(ii), 30116(f), 30122, 

and 18 U.S.C. § 2 (Count VIII); making $10,000 or more in 

conduit contributions in the name of another, in violation of 52 

U.S.C. § 30109(d)(1)(D), 30116(f), 30122, and 18 U.S.C. § 2 

(Count IX); causing a campaign committee to make false 

reports to the FEC, in violation of 52 U.S.C. §§ 30104(a)(1), 

30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count 

X); and obstruction of justice, in violation of 18 U.S.C. §§ 2 

and 1505 (Count XI).
13

disregard the law.” (App. at 1943.) Smukler sought different 

language: that “the government must prove beyond a 

reasonable doubt that the defendant knew of the specific law 

prohibiting the conduct at issue, and that he acted with the 

intent to violate that specific law.” (App. at 312.) In rejecting 

Smukler’s proposed instruction, the District Court explained 

that it would follow “the mens rea standard of willfulness 

based on [the] Third Circuit Model Jury Instructions . . . and 

will not cover [Smukler’s] inconsistent instructions requested 

on that issue.” (App. at 12–13.) Smukler argues that because 

the Government charged him with violations in the federal 

election law context, our precedent required the District Court 

to charge the jury under a “heightened” standard of “willfully.”

Second, Smukler claims the District Court erred when 

it denied his motion to dismiss Count II of the superseding

indictment. Count II charged that Smukler “willfully caused 

contributions to the Jimmie Moore for Congress campaign in 

excess of the limits of the Election Act,” based on the three 

payments totaling $90,000 made from the Brady campaign in 

exchange for Moore’s withdrawal from the race. (App. at 109.)

Those payments included (1) the June 11, 2012 payment of 

$40,000 routed through VDS; (2) the July 10, 2012 payment of 

$25,000, also sent through VDS; and (3) the August 23, 2012 

payment of $25,000 steered through D. Jones & Associates.

Smukler argued that the tolling agreement did not cover two of 

the three alleged payments, leaving those payments outside the

statute of limitations. The District Court disagreed, and held 

that under United States v. Dees, 215 F.3d 378 (3d Cir. 2000), 

as applied to the Federal Election Campaign Act (“FECA”),

“[t]he Government properly charged that [Smukler] and his coconspirators caused payments aggregating at least $25,000 in 

a calendar year, between June 2012 and August 2012,” (App. 
14

at 25.), as “the offense . . . was completed on the date of the 

last payment and the statute of limitations began running at that 

time,” (App. at 23.)

Third, Smukler challenges the sufficiency of the 

evidence to support his conviction on Count V. That count 

charged Smukler with causing the Brady and Moore 

campaigns to make false reports to the FEC, in violation of 18 

U.S.C. §§ 1001(a)(1) and 2(b). On appeal, Smukler argues that 

the evidence could not prove that he “caused the Brady or 

Moore campaign to report or fail to report anything to the 

FEC.” (Opening Br. at 36.)

Finally, Smukler contends that the District Court erred 

by failing to give specific unanimity charges as to Counts V 

and X. Each of those counts, Smukler claims, “charged two 

different acts,” that “independently constituted a criminal 

offense under the statute(s) cited,” thereby violating his right 

to a unanimous jury verdict. (Opening Br. at 40.)

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 because 

Smukler appeals from the final judgment of the District Court.

The parties dispute our standard of review for the 

District Court’s “willfully” instruction. (Compare Opening Br. 

at 23, with Response Br. at 29.) Both cite authority that traces 

to United States v. Zehrbach, where we considered the basis

for an objection to a jury instruction on a record “not entirely 

clear.” 47 F.3d 1252, 1260 (3d Cir. 1995) (en banc). On the 

one hand, “if the objection is construed as a challenge to the 

court’s statement of the legal standard, we exercise plenary 
15

review.” Id. On the other, if “the objection [is] read as a 

challenge merely to the confusing nature of the instruction,” 

we will “review the trial court’s expression for abuse of 

discretion.” Id. at 1260, 1264. Smukler disputes only the legal 

standard behind the District Court’s instruction. So “[w]e 

exercise plenary review over [Smukler’s] challenges to the 

legal standards expressed in jury instructions.” United States v. 

Korey, 472 F.3d 89, 93 (3d Cir. 2007) (citing Zehrbach, 47 

F.3d at 1260).

Our review of Smukler’s claim that the District Court 

erred in rejecting his motion to dismiss Count II is mixed. 

United States v. Menendez, 831 F.3d 155, 164 (3d Cir. 2016). 

We “review the District Court’s legal conclusions de novo and 

its factual determinations, including its findings about the 

contents and purposes of the acts alleged in the Indictment, for 

clear error.” Id. As to Smukler’s claim that the evidence could 

not support the jury’s verdict on Count V for causing false 

statements to the FEC, our review is “highly deferential.” 

United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d 

Cir. 2013) (en banc). We “will overturn a verdict only ‘if no 

reasonable juror could accept the evidence as sufficient to 

support the conclusion of the defendant’s guilt beyond a 

reasonable doubt.’” Id. at 430–41 (quoting United States v. 

Coleman, 811 F.2d 804, 807 (3d Cir. 1987)).

Last, we review Smukler’s claim that the District Court 

erred by not instructing the jury on specific unanimity as to 

Counts V and X for plain error because Smukler failed to 

object to this issue at trial. United States v. Gonzalez, 905 F.3d 

165, 182 (3d Cir. 2018).
16

III. INTERPRETING “WILLFULLY”

Much of our task involves interpretation, a familiar 

pursuit because Congress does not always define each word in 

a statute. That does not invite invention. “After all, if judges 

could freely invest old statutory terms with new meanings, we 

would risk amending legislation outside the ‘single, finely 

wrought and exhaustively considered, procedure’ the 

Constitution commands.” New Prime Inc. v. Oliveira, 139 S. 

Ct. 532, 539 (2019) (quoting INS v. Chadha, 462 U.S. 919, 951 

(1983)). Instead, we employ the “fundamental canon of

statutory construction” requiring that we “interpret the words 

consistent with their ordinary meaning . . . at the time Congress 

enacted the statute.” Wis. Cent. Ltd., 138 S. Ct. at 2070, 2074

(alteration in original) (internal quotation marks omitted); see 

also United States v. Johnman, 948 F.3d 612, 617 (3d Cir. 

2020). It is a focused inquiry and “[o]ur analysis begins and 

ends with the text.” Little Sisters of the Poor Saints Peter & 

Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380 (2020)

(quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., 

572 U.S. 545, 553 (2014)). We rely on our “toolkit” containing 

“all the standard tools of interpretation” used to “carefully 

consider the text, structure, history, and purpose” of the statute.

Kisor, 139 S. Ct. at 2414–15 (internal quotation marks and 

alteration omitted). That allows us to “‘reach a conclusion 

about the best interpretation,’ thereby resolving any perceived 

ambiguity.” Shular v. United States, 140 S. Ct. 779, 788 (2020) 

(Kavanaugh, J., concurring) (quoting Kisor, 139 S. Ct. at 2448

(Kavanaugh, J., concurring in the judgment)). With that 

framework as our guide, we turn first to Smukler’s objection 

to the jury instruction on “willfully.”
17

A. “Willfully” and the Criminal Law

Interpreting the legal term “willfully” is a good 

example of a “hard interpretive conundrum[].” Kisor, 139 S. 

Ct. at 2415. Sometimes, and “[m]ost obviously,” “[willfully]

differentiates between deliberate and unwitting conduct.” 

Bryan, 524 U.S. at 191. “[B]ut in the criminal law,” the word 

“also typically refers to a culpable state of mind.” Id. Often, 

that requires the Government to “prove that the defendant acted 

with knowledge that his conduct was unlawful.” Id. at 192

(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)).

Often, but not always. Sometimes “a more 

particularized [‘willfully’] showing is required.” Id. Then, “the 

jury must find that the defendant was aware of the specific 

provision of the [statute] that he was charged with violating.”

Id. at 194 (citing Cheek v. United States, 498 U.S. 192, 201 

(1991)). In Bryan, the Supreme Court explained that 

prosecutions “involv[ing] highly technical statutes that 

presented the danger of ensnaring individuals engaged in 

apparently innocent conduct,” id., justified a “carve out . . .

exception to the traditional rule that ignorance of the law is no 

excuse,” id. at 195 (internal quotation marks and alteration 

omitted). Under this narrow departure from the ordinary legal 

meaning of “willfully,” the Government must “pro[ve] that the 

defendant was subjectively aware of the duty at issue, [which]

would avoid . . . unfair results.” Id. at 195 n.22 (quoting United 

States v. Aversa, 984 F.2d 493, 502 (1st Cir. 1993) (Breyer, 

C.J., concurring)). But the Court has limited the “need for 

[mens rea] specificity” only to certain cases involving the tax 

code and similarly complex laws governing financial 

institutions. Id. at 194–95 & n.22 (citing Cheek, 498 U.S. at

201; Ratzlaf, 510 U.S. at 138, 149); see also Aversa, 984 F.2d 
18

at 502 (Breyer, C.J., concurring) (observing that “criminal 

prosecutions for ‘currency law’ violations . . . very much 

resemble criminal prosecutions for tax law violations” because 

“[b]oth sets of laws are technical; and both sets of laws 

sometimes criminalize conduct that would not strike an 

ordinary citizen as immoral or likely unlawful”).

Smukler and the Government dispute which 

interpretation of “willfully” should apply here.

7 We have 

already answered that question and applied the heightened 

“willfully” standard to prosecutions under 18 U.S.C. §§ 2(b) 

and 1001 “in the federal election law context.” United States v. 

Curran, 20 F.3d 560, 569 (3d Cir. 1994). That requires us to 

vacate Smukler’s convictions at Counts V and VI. But we will 

uphold Smukler’s convictions on all other counts, because 

FECA is best read to contain the ordinary meaning of 

“willfully.” 

1. Judicial Interpretations of “Willfully” 

Smukler’s argument proceeds from a mistaken reading 

of caselaw, not the best reading of the statute. Recall that he 

7 Count XI charged Smukler with obstruction of justice, 

in violation of 18 U.S.C. §§ 2 and 1505, and did not require 

proof of willfulness. “To prove a violation of § 1505, the 

government must show: ‘(1) that there was an agency 

proceeding; (2) that the defendant was aware of that 

proceeding; and (3) that the defendant intentionally 

endeavored corruptly to influence, obstruct or impede the 

pending proceeding.’” United States v. Warshak, 631 F.3d 266, 

325 (6th Cir. 2010) (quoting United States v. Bhagat, 436 F.3d 

1140, 1147 (9th Cir. 2006)). So we will uphold his conviction 

on this count.
19

asked for a jury instruction incorporating a heightened 

“willfully” standard requiring the Government to prove both 

that he knew the specific law prohibiting his actions and that

he intended to violate that specific law. His support is our 

decision in Curran holding “that a proper charge for 

willfulness in cases brought under sections 2(b) and 1001 [of 

Title 18] in the federal election law context requires the 

prosecution to prove that [the] defendant knew of the [specific 

legal] obligations, that he attempted to frustrate those 

obligations, and that he knew his conduct was unlawful.” 20

F.3d at 569. Smukler urges us to extend Curran’s heightened 

“willfully” standard to all charges brought under section 2(b) 

and FECA. But that conflicts with both our precedent and an 

ordinary interpretation of “willfully.” 

An overview of our jurisprudence cases sets the stage. 

Curran relies on the Supreme Court’s opinions in Cheek and 

Ratzlaf, cases involving federal tax and financial laws. Both 

are notable for their rarity. Cheek held that a mens rea of

“willfully” in the criminal tax statutes 26 U.S.C. §§ 7201 and 

7203 required actual knowledge of the relevant legal duty. 498 

U.S. at 202–07. The Court reasoned that the “average citizen” 

often struggles to comply with our nation’s sprawling tax 

system. Id. at 199–200. From that assumption, the Court 

intuited that Congress had “softened the impact of the 

common-law presumption by making specific intent to violate 

the law an element of certain federal criminal tax offenses.” Id.

at 200. But the Court was quick to acknowledge the “general 

rule” “deeply rooted in the American legal system”: 

“[I]gnorance of the law or a mistake of law is no defense to 

criminal prosecution.” Id. at 199.

A similar conclusion arrived in Ratzlaf, a case involving 

cash structuring contrary to 31 U.S.C. §§ 5322(a) and 5324(3).
20

Concerned that these complex provisions might trip up 

ordinary people, the Court held that establishing “willful” 

violations of structuring requires the government to prove 

knowledge that the specific structuring behavior was unlawful. 

Ratzlaf, 510 U.S. at 141, 144–46, 149. But as in Cheek, the 

Court emphasized these circumstances represented the

extraordinary instance where ignorance of the law was a 

defense to a criminal charge. Id. at 149.

We decided Curran shortly after Ratzlaf. Both cases 

concerned disclosure obligations imposed by regulatory laws.

Curran, 20 F.3d at 569. And both involved prosecution under 

statutes with a mens rea of “willfully.” See id. at 568. Given 

these similarities, we applied the Cheek-Ratzlaf standard to 

tandem charges brought under 18 U.S.C. §§ 2(b) and 1001 in 

the elections context. Id. at 569. But more recent decisions 

from the Supreme Court, and ours, clarify that Cheek and 

Ratzlaf do not sweep further. Rather, they remain the 

exceptions that prove the rule.

Take Bates v. United States, where the Supreme Court 

considered the meaning of 20 U.S.C. § 1097(a), which makes 

it a felony to “knowingly and willfully” misapply student loan 

funds insured under Title IV of the Higher Education Act of 

1965. There, the petitioner urged the Court to find, as in 

Ratzlaf, that the actual intent to defraud was an essential, 

although unexpressed, element of the offense. Bates v. United 

States, 522 U.S. 23, 30 (1997). But the Court rejected any 

comparison: “Ratzlaf,” it wrote, turned on the “particular 

statutory context” of complex currency structuring

transactions. Id. at 31 n.6.

The Supreme Court was even clearer a year later in

Bryan construing the prohibition on interstate transfers of 
21

firearms in 18 U.S.C. § 922(a)(1)(A). The petitioner argued 

that the Cheek-Ratzlaf standard required the government prove 

he knew about the federal licensing regime. Bryan, 524 U.S. at 

189–90. But the Court distinguished Ratzlaf and Cheek as

matters “involv[ing] highly technical statutes that presented the 

danger of ensnaring individuals engaged in apparently 

innocent conduct.” Id. at 194. “[W]illfulness,” the Court 

admonished, does not “carve out an exception to the traditional 

rule that ignorance of the law is no excuse.” Id. at 196. And it 

reaffirmed that logic in Safeco Ins. Co. of Am. v. Burr,

characterizing readings of willfulness that require “specific 

intent to violate a known legal duty” as, again, applying to 

“highly technical statutes.” 551 U.S. 47, 57 n.9 (2007) (citing 

Cheek, 498 U.S. at 200–01).

We have followed the same path. In Starnes, guided by

Bryan, we observed that “willfully” has “at least three levels of 

interpretation.” Starnes, 583 F.3d at 210. In some contexts, 

“willfully” may indicate “an act which is intentional, or 

knowing, or voluntary, as distinguished from accidental.” Id.

(internal quotation marks omitted). In others, particularly in the 

criminal context, it may require the government to prove that 

the defendant acted “not merely voluntarily, but with a bad 

purpose, that is, with knowledge that his conduct was, in some 

general sense, unlawful.” Id. (internal quotation marks 

omitted). And finally, “in some rare instances,” we observed 

that “‘willfully’ has been read to require proof that the 

defendant actually knew of the specific law prohibiting the 

conduct.” Id. at 211 (emphasis added). But like Bryan, we

pointed out that these unusual cases involve only “highly 

technical statutes” and, in Curran, the unusual instance of a 

tandem election prosecution brought under 18 U.S.C. §§ 2(b)

and 1001. Id.; accord United States v. Stadtmauer, 620 F.3d 
22

238, 256 (3d Cir. 2010) (“The justification for requiring 

knowledge of the relevant tax laws is that, ‘in our complex tax 

system, uncertainty often arises even among taxpayers who 

earnestly wish to follow the law, and it is not the purpose of the 

law to penalize frank difference[s] of opinion or innocent 

errors made despite the exercise of reasonable care.’”

(alteration in original) (quoting Cheek, 498 U.S. at 205)).

Smukler reaches for the rarest meaning, pushing to 

extend the extraordinary Cheek-Ratzlaf “willfully” standard

not just to the charges brought under 18 U.S.C. §§ 2(b) and 

1001, but to his substantive FECA charges as well. Curran, he 

maintains, requires as much. It does not. As the Supreme Court 

and we have repeatedly explained, the Cheek-Ratzlaf

interpretation applies to “complex[],” Cheek, 498 U.S. at 200, 

or “highly technical,” Bryan, 524 U.S. at 194, statutes. And 

Smukler does not specify what about FECA he finds to be 

“complex” or “highly technical.” He protests its length in a 

footnote. (See Reply Br. at 4 n.5.) True enough, as FECA packs 

in rules for contributions (and a host of other conduct) that 

candidates, campaigns, and contributors must follow when 

engaging in election politicking. But those rules are reasonably 

straightforward and written in common terms. One provision

sets forth the contribution limits applicable to every 

congressional candidate in each election cycle. 52 U.S.C. 

§ 30116. Another makes it unlawful for individuals to 

contribute in the names of others. Id. § 30122. A third requires 

honestly reporting contributions received to the FEC. Id. § 

30104. Civil and criminal penalties can result from a 

“knowing[] and willful[]” violation of FECA. Id. § 30109(d).

But “compared with anti-structuring or tax laws, as in Ratzlaf

or Cheek, individual campaign contribution laws are more 

intuitive and less complex.” United States v. Danielczyk, 788 
23

F. Supp. 2d 472, 490 (E.D. Va. 2011), reversed in part on other 

grounds, 683 F.3d 611 (4th Cir. 2012). All of which speaks to 

an ordinary, not extraordinary, set of prohibitions. Consistent 

with precedent, we likewise apply the ordinary reading of 

“willfully” to FECA.

2. Applying Familiar Principles of Interpretation

Smukler next suggests that the Cheek-Ratzlaf

heightened “willfully” standard is warranted since his FECA 

offenses follow the “aiding and abetting” prohibitions of 18 

U.S.C. § 2(b).8 Section 2(b) of Title 18 makes it a crime for a 

person to “willfully cause[] an act to be done which if directly 

performed by him . . . would be an offense against the United 

States.” The statute “imposes liability on a defendant who does 

not himself commit the prohibited actus reus, but intentionally 

manipulates an innocent intermediary to commit the prohibited 

actus reus.” United States v. Gumbs, 283 F.3d 128, 134 (3d 

Cir. 2002). As we explained, Curran held that the mens rea

element required under § 2(b) for causing a false statement in 

violation of 18 U.S.C. § 1001 goes beyond the mens rea

required by § 1001 and applied the Cheek-Ratzlaf reading of 

8 The substantive FECA charges alleged in Counts II, 

VII, VIII, IX, and X all require proof that Smukler acted 

“willfully.” He was also charged with “willfully caus[ing]” the 

violations. The Government acknowledges that Smukler did 

not personally transmit false statements to the FEC, so Counts 

V, VI, and X require proof that he “willfully cause[d]” those 

acts under 18 U.S.C. § 2(b). 
24

“willfully.”9 See 20 F.3d at 567–69. Smukler seems to contend

we must do the same for his FECA offenses charged under § 

2(b), even if the “willfully” mens rea in his substantive FECA 

9 We have divorced 18 U.S.C. § 1001 from the CheekRatzlaf heightened willfully requirement when not paired with 

§ 2(b). In Starnes, we applied 18 U.S.C. § 1001(a)’s false 

statements statute to a regulatory scheme that subjected the 

defendants to criminal liability under the Clean Air Act. There, 

we noted that Curran, relying on Ratzlaf, “held that the strictest 

interpretation of criminal willfulness governed tandem 

violations of §§ 1001 and 2(b) in the ‘federal election law 

context.’” Starnes, 583 F.3d at 211. But since that case 

involved neither § 2(b) nor election law, Curran’s heightened 

standard did not apply. Instead, we held that § 1001’s 

“knowingly and willfully” requirement meant that the 

government must only show that “a defendant acted 

deliberately and with knowledge that the representation was 

false.” Id. (quoting Curran, 20 F.3d at 567). That result, we 

wrote, “comports with the generally understood meaning of 

‘knowingly’ and with the intermediate level of interpretation 

of ‘willfully’ articulated by the Supreme Court in Bryan—that 

is, knowledge of the general unlawfulness of the conduct at 

issue—which we believe adequately demarcates the boundary 

between innocent and unlawful conduct in this context.” Id. at 

211–12 (citing Bryan, 524 U.S. at 195 & n. 23). And we 

rejected the suggestion that a mens rea of “knowingly and 

willfully” required “the government . . . to prove that [the 

defendant] actually knew of [the law allegedly violated].” Id.

at 212. So too here. See, e.g., 52 U.S.C. § 30109(d)(1)(A) 

(FECA penalty provision with mens rea of “knowingly and 

willfully”).
25

charges would not be so read. (It will not, as we already 

explained.)

We have declined that approach in other prosecutions 

under 18 U.S.C. § 2(b). For example, in Gumbs, we considered 

a tandem prosecution brought under 18 U.S.C. §§ 2(b) and 287. 

There, we clarified Curran, explaining that “in a prosecution 

under [18 U.S.C.] § 2(b), the government must show the 

following mens rea elements: (1) that the defendant had the 

mens rea required by the underlying statute; and (2) that the 

defendant willfully caused the innocent intermediary to 

commit the act prohibited by the underlying statute.” Gumbs, 

283 F.3d at 135. In other words, § 2(b) does not automatically 

alter the “most natural interpretation” of “willfully.” United 

States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997) (“The most 

natural interpretation of section 2(b) is that a defendant with 

the mental state necessary to violate the underlying section is 

guilty of violating that section if he intentionally causes 

another to commit the requisite act.” (emphasis omitted)); see 

also United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) 

(“The natural reading of §§ 2(b) and 1001 is this: the 

government may show mens rea simply by proof (1) that the 

defendant knew that the statements to be made were false (the 

mens rea for the underlying offense—§ 1001) and (2) that the 

defendant intentionally caused such statements to be made by 

another (the additional mens rea for § 2(b)).”). 

Under Smukler’s approach, we would apply the CheekRatzlaf heightened standard of “willfully” to FECA offenses 

when paired with an aiding and abetting charge. No matter, he 

says, that this would require us to apply different meanings to 

the same word in the same statute. But our interpretive kit 

includes no such tool. Rather, it is a fundamental interpretive 

norm that “[a] term appearing in several places in a statutory 
26

text is generally read the same way each time it appears.” 

Ratzlaf, 510 U.S. at 143.

10 “[W]hether section 2(b) require[s] a 

knowing violation of the law” cannot “turn on the context in 

which the statement was made.” Gabriel, 125 F.3d at 101.

“Moreover, if a defendant was prosecuted under section 2(b) 

and a criminal section other than section 1001,” as here,

“whether section 2(b) required a knowing violation of the law 

would turn not only on the nature of the other section but also 

on the context of the alleged violation of that section.” Id. As 

the Second Circuit hypothesized, “[a]side from the obvious 

interpretative difficulties that this approach would take,”

giving “willfully” a malleable interpretation under § 2(b) 

would make it dependent on the context of the underlying 

statute. Id. So “however ‘willfully’ is to be interpreted under 

section 2(b), it should be interpreted consistently.” Id. 

We agree. As a result, we decline Smukler’s invitation 

to “open Pandora’s jar,” by “reading [‘willfully’] differently 

for each code section to which it applies.” Ratzlaf, 510 U.S. at 

143. The District Court’s instructions to the jury were therefore 

proper.

10 We note that while Curran tethers its approach to 

Ratzlaf, other courts have disagreed. See Hsia, 176 F.3d at 522 

(noting that Curran “extends Ratzlaf too far”); see also 

Gabriel, 125 F.3d at 101 (concluding Curran “focused its 

attention almost exclusively on the federal election laws and 

explicitly limited its decision to ‘cases brought under sections 

2(b) and 1001 in the federal election law context’—indicating 

that in other contexts, the court might interpret section 2(b)’s 

‘willfully’ requirement differently” (quoting Curran, 20 F.3d 

at 569)).
27

B. Smukler’s Convictions at Counts V and VI

Contravene Curran

Counts V and VI charged Smukler with violating 18 

U.S.C. §§ 2 and 1001(a)(1) by causing the false statements of 

others within the Brady and Margolies campaigns. On these 

counts, the District Court’s instruction on “willfully” missed 

the mark established by Curran. As we explained, under

Curran, “a proper charge for willfulness in cases brought under 

[18 U.S.C. §§] 2(b) and 1001 in the federal election law 

context requires the prosecution to prove that defendant knew 

of the [statutory] obligations, that he attempted to frustrate 

those obligations, and that he knew his conduct was unlawful.” 

20 F.3d at 569; see also Starnes, 583 F.3d at 211 (noting 

Curran “held that the strictest interpretation of criminal 

willfulness governed tandem violations of §§ 1001 and 2(b) in 

the federal election law context” (internal quotation marks 

omitted)).

Counts V and VI charged Smukler with such “tandem” 

violations of §§ 1001 and 2(b). The supporting allegations 

center on Smukler’s actions during the Brady and Margolies 

campaigns, so they occurred “in the federal election law 

context.” Curran, 20 F.3d at 569. While Curran’s “federal 

election law context” modification is too broad in other 

scenarios, it does apply to these counts.

The Government brings two arguments in rebuttal, but 

neither prevails. First, that Bryan abrogated Curran. It did not, 

as the Supreme Court limited its holding. See Bryan, 524 U.S. 

at 199–200 (“[O]ur grant of certiorari was limited to the narrow 

legal question whether knowledge of the licensing requirement 

[of 18 U.S.C. § 924(a)(1)(D)] is an essential element of the 

offense.”). So we must follow the narrow holding in Curran.
28

Second, even if the District Court erred, any error was

harmless. Not so. For error to be harmless, we must “conclude 

beyond a reasonable doubt that the jury verdict would have 

been the same absent the error.” Neder v. United States, 527 

U.S. 1, 19 (1999). “When the error involves a mens rea

instruction, ‘[a] verdict may still stand, despite erroneous jury 

instructions, where the predicate facts conclusively establish 

[mens rea], so that no rational jury could find that the defendant 

committed the relevant criminal act’ without also finding the 

requisite mens rea.” United States v. Elonis, 841 F.3d 589, 598 

(3d Cir. 2016) (alterations in original) (quoting Whitney v. 

Horn, 280 F.3d 240, 260 (3d Cir. 2002)). 

Based on our holding in Curran, the District Court’s 

instructions did not provide the proper guidance. The jury 

needed to consider Smukler’s culpability based on the 

heightened “willfully” standard—that Smukler knew the legal 

duty of the particular laws charged. After reviewing the record, 

we cannot conclude that “no reasonable jury could find that 

th[is] element was not present.” United States v. Andrews, 681 

F.3d 509, 527 (3d Cir. 2012). So we will vacate Smukler’s 

conviction on these counts.

IV. SMUKLER’S OTHER CHALLENGES LACK MERIT

Smukler brings three remaining challenges to his 

convictions. First, he argues that the District Court erred by not 

finding a portion of Count II outside the statute of limitations. 

Second, he attacks the sufficiency of the evidence produced on 

Count V. Finally, he sees error in the District Court’s failure to 

give specific unanimity charges to the jury on Counts V and X. 

As to these challenges, we find no error and will affirm.
29

A. The District Court Did Not Err in Rejecting 

Smukler’s Motion to Dismiss Count II

Count II of the superseding indictment charged Smukler 

with violating 52 U.S.C. §§ 30109(d)(1)(A)(i) and 30116, by 

knowingly and willfully causing the Brady campaign to make

contributions to the Moore campaign in excess of the limits of 

FECA, at an aggregated amount of $25,000 or more.11 Recall 

the basis: the three payments Smukler steered from the Brady 

campaign to the Moore campaign. The first, a June 11, 2012 

payment of $40,000 routed through VDS, a Smukler-owned 

consulting company. The second, a July 10, 2012 payment of 

$25,000 sent through VDS. And the third, an August 23, 2012 

payment of $25,000 from Smukler’s associate Jones to 

Cavaness. Smukler argues two of the three contributions fell 

outside the statute of limitations. We disagree.

Since the last of the three payments occurred on August 

23, 2012 and the grand jury did not indict Smukler until 

October 24, 2017, the indictment would ordinarily be outside 

FECA’s five-year statute of limitations. See 52 U.S.C. 

§ 30145. But before the statute of limitations ran on the August 

11 FECA makes it a crime to “knowingly and willfully 

commit[] a violation” that “involves the making . . . of any 

contribution . . . aggregating $25,000 or more during a calendar 

year.” 52 U.S.C. § 30109(d)(1)(A)(i). Section 30116 sets the 

limit on contributions to a political campaign at $2,000 per 

election, adjusted for inflation. For the 2012 election cycle, the 

contribution limit was $2,500 per election.
30

2012 payment, Smukler signed a tolling agreement.12 The 

agreement, executed on August 21, 2017 and extended on 

September 25, 2017, moved the deadline for charges out to 

October 26, 2017. The first indictment was returned before the 

expiration of the extended tolling agreement and, citing Dees, 

the District Court found all three payments within the statute 

of limitations. We agree with that analysis.

In Dees, the defendant was charged with violating 18 

U.S.C. § 1029(a)(2), making it a crime to use “unauthorized 

access devices”—there credit cards—to “obtain[] anything of 

value aggregating $1,000 or more” during “any one-year 

12 The August tolling agreement states that Smukler 

agrees to toll any applicable statute of limitations about:

charges arising out of a payment from the Bob 

Brady for Congress campaign committee on or 

about August 23, 2012 to D. Jones & Associates 

in the amount of $25,000 and the subsequent use 

of that money by D. Jones & Associates[,] from 

August 23, 2017 to September 26, 2017. 

(App. at 133.)

In paragraph six of the agreement, Smukler 

acknowledges that he “understand[s] that by agreeing to toll, 

and thus not to assert, the claim of statute of limitations, [he is] 

giving up any rights [he] may have under the federal statute of 

limitations provisions regarding charges that may result from 

the investigation described in this document for which the 

limitations period expires on or about August 23, 2017.” (App. 

at 134.)
31

period.” 215 F.3d at 379 (quoting 18 U.S.C. § 1029(a)(2)). 

Dees used credit cards to make three fraudulent purchases, 

only one of which occurred within the limitations period. Id.

We held that because the third purchase fell within five years 

of the indictment, “the offense as actually charged was 

completed on . . . the date of the last purchase” and so “the 

statute of limitations started running at that time.” Id. at 380.

“[I]nasmuch as the offense is defined as activity ‘during any 

one-year period,’” we explained, “the offense is complete as to 

any one-year period when there is or are unauthorized uses of 

access devices, and the aggregated value of things obtained 

through the use of those access devices within the one-year 

period ending on its last day equaled or exceeded $1,000.” Id.

The enforcement provision of FECA, 52 U.S.C. 

§ 30109, is worded similarly to the statute considered in Dees, 

and likewise provides for aggregation during a one-year 

period.

13 For that reason, the District Court held that “Dees 

13 Compare 52 U.S.C. § 30109(d)(1)(A)(i) (“Any person who 

knowingly and willfully commits a violation of any provision 

of this Act which involves the making, receiving, or reporting 

of any contribution, donation, or expenditure . . . aggregating 

$25,000 or more during a calendar year shall be fined under 

Title 18, or imprisoned for not more than 5 years, or both[.]”)

with 18 U.S.C. § 1029(a)(2) (“Whoever . . . knowingly and 

with intent to defraud traffics in or uses one or more 

unauthorized access devices during any one-year period, and 

by such conduct obtains anything of value aggregating $1,000 

or more during that period . . . shall, if the offense affects 

interstate or foreign commerce, be punished . . . .”).
32

governs this case and that ‘inasmuch as the offense is defined 

as activity during any one-year period the offense is complete 

as to any one-year period’ on the date of the last contribution 

identified in the calendar year 2012.” (App. at 25 (quoting 

Dees, 215 F.3d at 380).) So “[t]he Government properly 

charged that defendant and his co-conspirators caused 

payments aggregating at least $25,000 in a calendar year, 

between June 2012 and August 2012.” (App. at 25.)

Smukler disagrees and argues that he only agreed to toll 

the August 2012 payment, not the two earlier ones. In other 

words, he “did not agree to toll the statute as to any charges 

‘arising out of’ the totality of payments in the same calendar 

year in which the August 2012 payment was made.” (Opening 

Br. at 32.) Since each of the three payments would have 

independently sufficed to support a felony charge under FECA

as each totaled $25,000 or more, the earlier payments would 

not “hav[e] [their] origins in, the third payment.” (Opening Br. 

at 32.) This interpretation, he contends, is “the better plainlanguage understanding of the agreement.” (Opening Br. at 

33.)

We begin with the self-evident: “the language of a 

contract . . . matters greatly.” United States v. Goodson, 544 

F.3d 529, 535 (3d Cir. 2008). Yet Smukler advocates for an 

unnaturally narrow reading of his agreement. First, “arising out 

of” is a broad provision. See Fed. Ins. Co. v. Tri-State Ins. Co., 

157 F.3d 800, 804 (10th Cir. 1998) (noting “the general 

consensus that the phrase ‘arising out of’ should be given a 

broad reading such as ‘originating from’ or ‘growing out of’ or 

‘flowing from’ or ‘done in connection with’”) (citing cases); 

see also In re Remicade (Direct Purchaser) Antitrust Litig., 

938 F.3d 515, 523 (3d Cir. 2019) (explaining “arising out of . . 

. in a contract” is “indicative of an extremely broad agreement”
33

(cleaned up)); In re Prudential Ins. Co. of Am. Sales Practice 

Litig. All Agent Actions, 133 F.3d 225, 232 (3d Cir. 1998) (use 

of “arising out of” shows broad drafting). Second, the 

agreement put Smukler on fair notice of possible charges under 

52 U.S.C. § 30109, which includes an aggregating provision 

during a calendar year for campaign contribution violations. 

Third, Smukler elsewhere agreed that “[n]othing . . . limit[s] 

the ability of the United States to bring criminal charges prior 

to the expiration of th[e] tolling agreement,” and that he waived

all rights under the applicable statute of limitations “regarding 

charges that may result from the investigation described in 

th[e] document.” (App. at 138.)

Smukler tries to distinguish Dees, asserting that because

each of the three payments was for “$25,000 or more,” each 

independently sufficed to support a felony charge on the 

Government’s theory under 52 U.S.C. § 30109(d)(1)(A). 

While true, nothing in the statute suggests that the Government 

had to indict Smukler on separate charges. Reading the statute 

in that way would render “aggregating” surplusage. See 

Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 174 (2012) (“If possible, every 

word . . . is to be given effect[.]”). And no normal reading of 

the statute would permit aggregation if one of the payments 

had been only $24,999, but not when all were for $25,000 or 

more.

For these reasons, while the agreement only references 

the August 23, 2012 payment, the potential charges emanating

from that payment are not similarly limited. Whether Smukler 

assumed a narrower reading is not relevant, as our role is to 

“focus not on intent, but on words.” United States v. Damon, 

933 F.3d 269, 273 (3d Cir. 2019). We will therefore affirm this 

count of conviction.
34

B. Sufficient Evidence Supports Smukler’s Conviction 

at Count V

Smukler also contends that there was insufficient 

evidence to support his conviction under Count V for causing 

the Brady and Moore campaigns to make false reports and fail 

to report to the FEC, in violation of 18 U.S.C. §§ 1001(a)(1) 

and 2(b). Although we are vacating Smukler’s conviction at 

Count V because of the faulty jury instruction on “willfully,” 

“[Smukler] can only be retried on th[is] count[] if the 

Government introduced sufficient evidence to sustain th[e]

conviction.” United States v. McKee, 506 F.3d 225, 232 (3d 

Cir. 2007). “The burden on a defendant who raises a challenge 

to the sufficiency of the evidence is extremely high.” United 

States v. Serafini, 233 F.3d 758, 770 (3d Cir. 2000). We must 

affirm the jury’s verdict where “there is substantial evidence 

that, when viewed in the light most favorable to the 

government, would allow a rational trier of fact to convict.”

United States v. Lee, 612 F.3d 170, 178 (3d Cir. 2010) (citation 

omitted). That is the case here.

Smukler constructed a scheme that paid Moore $90,000

to drop out of the 2012 Democratic primary in Pennsylvania’s 

First Congressional District. He used “dummy invoices” to 

disguise the money, routing multiple payments through his 

company VDS. (App. at 954, 1063.) False filings with the FEC 

covered up the tracks. A rational jury could have found beyond 

a reasonable doubt that Smukler caused the false filings and 

that his actions are only explainable as deliberate efforts to 

evade the campaign finance laws at issue.
35

C. The Jury Instructions at Count X Were Not Plainly 

Erroneous 

Smukler finally claims that the lack of a specific 

unanimity instruction on the false statement charges in Counts 

V and X violated his Sixth Amendment right to a unanimous 

verdict. The parties agree we review for plain error because 

Smukler failed to raise this issue at trial. Under Federal Rule 

of Criminal Procedure 52(b) “we must decide whether (1) an 

error occurred, (2) the error is ‘plain,’ and (3) it ‘affect[s] 

substantial rights.’” United States v. Payano, 930 F.3d 186, 

192 (3d Cir. 2019) (quoting United States v. Olano, 507 U.S. 

725, 732 (1993) (alteration in original)). Meeting all three 

conditions allows a court discretion to correct a “particularly 

egregious” error, United States v. Frady, 456 U.S. 152, 163 

(1982), if the error “seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings,” Olano, 507 U.S. at 

736 (alteration in original) (quoting United States v. Atkinson, 

297 U.S. 157, 160 (1936)). Because we have already 

determined that Smukler’s conviction at Count V must be 

vacated, we will only review Count X.

Under the Sixth Amendment, “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and 

public trial, by an impartial jury of the State and district 

wherein the crime shall have been committed, which district 

shall have been previously ascertained by law.” U.S. Const. 

amend. VI. It is “unmistakable” that the Framers and Ratifiers 

of our Constitution understood “trial by an impartial jury” to 

mean that “[a] jury must reach a unanimous verdict in order to 

convict.” Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020) 

(explaining that juror unanimity stretches back to 14th century 

England, where it was “accepted as a vital right protected by 
36

the common law”); see also United States v. Yeaman, 194 F.3d 

442, 453 (3d Cir. 1999) (“It is well settled that a defendant in 

a federal criminal trial has a constitutional right to a unanimous 

verdict.”).

The right to a unanimous verdict “includes the right to 

have the jury instructed that in order to convict, it must reach 

unanimous agreement on each element of the offense charged.”

Gonzalez, 905 F.3d at 183 (quoting Yeaman, 194 F.3d at 453). 

Such an instruction is known as the “general unanimity 

instruction.” United States v. Beros, 833 F.2d 455, 460 (3d Cir. 

1987). “Typically, when an indictment alleges a number of 

different factual bases for the defendants’ criminal liability, the 

general unanimity instruction ensures that the jury 

unanimously agrees on the factual basis for a conviction.” 

Gonzalez, 905 F.2d at 183. But when “a statute enumerates 

alternative routes for its violation, it may be less clear . . .

whether these are mere means of committing a single offense 

(for which unanimity is not required) or whether these are 

independent elements of the crime (for which unanimity is 

required).” Id. (alteration in original) (quoting Yeaman, 94 

F.3d at 453). And so, in some cases, a “general unanimity 

instruction” is not sufficient, and “a more specific unanimity

instruction” is necessary. Id. (citing Beros, 833 F.2d at 460).

But “a specific unanimity instruction is the exception to 

the ‘routine case,’” United States v. Cusumano, 943 F.2d 305, 

312 (3d Cir. 1991), only applicable when “complexity . . . or 

other factors, creates the potential that the jury will be 

confused,” Beros, 833 F.3d at 460. In most, “even where an 

indictment alleges numerous factual bases for criminal 

liability,” “a ‘general unanimity instruction will ensure that the 

jury is unanimous on the factual basis for a conviction.’” 
37

Gonzalez, 905 F.3d at 184 (quoting Cusumano, 943 F.2d at 

312).

Count X charged Smukler with:

[W]illfully caus[ing] the authorized campaign 

committee of a candidate for the United States 

House of Representatives to falsely report to the 

FEC contributions received by that committee 

over $200, to wit causing Candidate C 2014 to 

report to the FEC payments from Black and 

Blue and InfoVoter as refunds when in fact 

those payments were unlawful contributions 

routed through those companies aggregating 

$25,000 and more in calendar year 2014, and 

causing Candidate C 2014 to report 

contributions from SMUKLER in the names of 

others.14

(App. at 123.)

Because Smukler did not request a specific unanimity 

instruction, the Court charged the jury on general unanimity:

I want to remind you that your verdict, whether 

it is guilty or not guilty, must be unanimous. To 

find the defendant guilty of an offense, every one 

of you must agree that the Government has 

overcome the presumption of innocence with 

evidence that proves each element of that offense 

beyond a reasonable doubt. To find the 

14 In violation of 52 U.S.C. §§ 30104(a)(1), 

30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2.
38

defendant not guilty, every one of you must 

agree that the Government has failed to convince 

you beyond a reasonable doubt.

(App. at 1954:9–16.)

This is not error, let alone plain error, as Smukler again 

asks us to apply an extraordinary standard to an 

unextraordinary case. As we explained, neither FECA, nor the 

facts offered by the Government, are so complex as to risk jury 

confusion. It is also not plain that the charge depended, as 

Smukler contends, on “a composite theory of guilt.” Beros, 833 

F.2d at 462. This theory, which we explained in Beros, “applies 

where the Government advances different factual theories 

concerning the defendant[’s] charged conduct, each of which 

could independently satisfy the elements of the crime.” 

Gonzalez, 905 F.3d at 184. In Beros, the government 

proceeded with a sixteen-count indictment, with two of the 

counts “alleg[ing] four separate and distinct theories of 

criminal activity” and “enumerat[ing] several acts upon which 

a finding of guilt could be predicated.” 833 F.2d at 461. 

Concerned by the disjunctive nature of the charging statutes 

and the multiple, factually distinct allegations of criminal 

conduct, we could “easily imagine” juror disagreement. Id. For 

example, four of the jurors might have focused on Beros’s

improper use of a credit card, another four on his unapproved 

hotel upgrades, and the final four on his turning a business trip 

into a personal vacation. See id. at 461–62. So, we held that 

“[w]hen the government chooses to prosecute under an 

indictment advancing multiple theories, it must prove beyond 

a reasonable doubt at least one of the theories to the satisfaction 

of the entire jury.” Id. at 462.
39

Here, however, the Government advances only a single 

theory of liability. Count X charges Smukler with multiple 

FECA offenses, but at least arguably under a single factual 

basis: that Smukler caused the Margolies campaign to make 

false reports to the FEC. Those falsities violated FECA’s 

prohibition against (1) improperly reporting that the “refunds” 

from Black and Blue Media and InfoVoter were, in fact, lawful 

contributions; and (2) improperly reporting contributions from 

individuals which were, in fact, contributions made by 

Smukler.

And even assuming this satisfies Olano’s first and 

second prongs—that there was an error, and the error was 

plain—Smukler cannot show that the error “affected the 

outcome of the district court proceedings.” Payano, 930 F.3d 

at 192 (alteration in original) (quoting Olano, 507 U.S. at 734). 

At Counts VII and VIII the jury found Smukler guilty of

violating the underlying FECA provisions that Count X 

charged him with causing the Margolies campaign to falsely 

report. There is overwhelming evidence in the record that 

Smukler duped the campaign into assuming the legitimacy of 

these contributions. The mere fact that the jury found that 

Smukler concealed the true nature of these contributions in 

Counts VII and VIII is likely enough to satisfy Count X’s 

charge.15 While Smukler bears the burden on appeal, he 

15 For instance, recall that Jones testified that his 

contribution to the Margolies campaign depended on Smukler 

reimbursing him, which Smukler did by sending Jones a check 

from InfoVoter. And Smukler, as head of the campaign, 

instructed Margolies’ campaign treasurer that the contributions 

made from Black and Blue Media and InfoVoter were, in fact, 

“refunds.” 
40

provides no showing for how a specific unanimity charge 

would “have affected the outcome of the district court 

proceedings.” Payano, 930 F.3d at 192 (quoting Olano, 507 

U.S. at 734). In short, Smukler has far from satisfied the 

exacting standard of plain error review.

V. CONCLUSION

For these reasons, we will vacate and remand the 

judgment of conviction at Counts V and VI, and we will 

affirm all other counts of Smukler’s conviction.