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UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 17-22643 COOKE/GOODMAN 

) 

FEDERAL ELECTION COMMISSION, ) 

)

 Plaintiff, ) 

)

 v. ) 

) OPPOSITION TO MOTION TO 

DAVID RIVERA, ) ALTER JUDGMENT 

)

 Defendant. ) 

) 

PLAINTIFF FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

DEFENDANT’S MOTION TO ALTER OR AMEND OR FOR 

RELIEF FROM JUDGMENT 

Plaintiff Federal Election Commission (“FEC” or “Commission”) respectfully submits 

this Memorandum of Law in Opposition to Defendant David Rivera’s Motion to Alter or Amend 

or for Relief from Judgment (ECF No. 179) (hereinafter, “Motion”), and in support thereof states 

as follows: 

INTRODUCTION 

The Court correctly assessed a $456,000 civil penalty against Rivera for knowingly and 

willfully violating 52 U.S.C. § 30122, upon finding that Rivera secretly provided nearly $76,000 

of in-kind contributions to the primary election campaign of Justin Lamar Sternad in Florida’s 

26th Congressional District, in violation FECA’s prohibition on contributions made in the name 

of another. As the FEC explained in its summary judgment motion filed nearly two years ago, 

the undisputed evidence proved that a significant civil penalty was warranted for Rivera’s 

campaign finance violations. As that motion established, Rivera purposefully attempted to 

weaken a likely general-election opponent and trick voters into believing that the advertising had 

come from another candidate in the opposition party’s primary election. The FEC also 
 

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established that Rivera’s concealed payments harmed the public, that Rivera can pay a 

substantial civil penalty, and that Rivera’s continued unwillingness to take responsibility for his 

actions demonstrate a likelihood of future violations. As this Court recognized, Rivera’s 

response was “silent” as to any argument about the amount of the fine the FEC sought. (Order 

Granting FEC’s Mot. for Summ. J. (ECF No. 163) (“MSJ Order”) at 34.) Indeed, Rivera made 

no “opposition to the FEC’s contentions regarding the Court’s issuance of a civil penalty in this 

case.” (Id. at n.7.) Because there were no material facts in dispute, this Court granted summary 

judgment and a civil penalty. 

Now, 426 days after this Court granted the FEC’s requested penalty and after a separate 

unsuccessful post-summary judgment motion, Rivera for the first time argues that the civil 

penalty is constitutionally excessive. Even if Rivera’s long-delayed argument had any merit, he 

waived it by failing to oppose the penalty in his summary judgment papers. Moreover, nothing 

in Rivera’s belated motion establishes clear error in the Court’s well-reasoned and thoroughly 

supported ruling. Nor does Rivera’s motion establish that this Court’s ruling was affected by an 

intervening change in controlling law, much less that it would be manifestly unjust to hold 

Rivera to account for his surreptitious attempt to undermine the primary election of his political 

opponent. In any event, the civil penalty the Court imposed falls squarely within the range of 

Congress’s discretion. Rivera’s Motion is meritless and should be denied.1 

Attorneys representing defendant once again did not confer with FEC counsel prior to 

filing the Motion, and did not file a certificate of compliance, in violation of Local Rule 

7.1(a)(3). Kaplan v. Lappin, No. 10-80227, 2011 WL 13225150, at *1 (S.D. Fla. Feb. 23, 2011) 

(“The law in this District is well established that if a party fails to confer pursuant to LR 7.1 A3, 

the Court may deny the motion and impose appropriate sanctions, including reasonable 

attorney’s fees.”); see also Temurian v. Piccolo, 18-CV-62737, 2019 WL 2491781, at *1 n.1 

(S.D. Fla. June 14, 2019) (noting that a motion for reconsideration is not excepted from the Rule 

7.1(a)(3) conferral requirement). 

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BACKGROUND 

As this Court held in its MSJ Order, then-U.S. Congressman Rivera directly violated 

FECA in 2012 by making $75,927.31 of in-kind contributions in the name of another to the 

primary campaign of Justin Lamar Sternad in violation of 52 U.S.C. § 30122. (MSJ Order at 

34.) Rivera made these in-kind contributions to vendors providing services to Sternad’s 

campaign, while taking steps to hide his identity as the source, including using cash to cover his 

tracks, and directing others to conceal his identity as the true source.2 

On February 23, 2021, this Court issued its MSJ Order awarding summary judgment to 

the Commission. (ECF No. 163.) In determining the appropriate penalty, the Court correctly 

noted that it was authorized to award a civil penalty which did not exceed the greater of $7,500 

for each violation or an amount equal to any contribution or expenditure involved in such 

violation. MSJ Order at 34; see also 11 C.F.R. § 111.24(a)(1) (2012) (providing the amount 

applicable under 52 U.S.C. § 30109(a)(6)(B) as adjusted by inflation pursuant to statute); FEC, 

Civil Monetary Penalties Inflation Adjustments, 74 Fed. Reg. 31,345 (July 1, 2009). The Court 

further recognized its authority to award enhanced civil penalties for “knowing and willful” 

violations. See MSJ Order at 34-35; 52 U.S.C. § 30109(a)(6)(C) (providing for penalties not less 

than 300% of the amount involved and not more than the greater of $50,000 or 1,000% of the 

amount involved). Examining the factors set forth in FEC v. Furgatch, 869 F.2d 1256, 1258 (9th 

Cir. 1989), the Court determined a penalty of $456,000, which is a rounded sum of 600% of the 

The factual record in this case has been set forth in detail in the FEC’s previously filed 

Motion for Summary Judgment and Memorandum of Law in Support, (ECF No. 142), this 

Court’s MSJ Order (ECF No. 163), and this Court’s Order Denying Defendant’s Motion to 

Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 176). The Commission only repeats 

the necessary facts here as are relevant to the instant Motion. 

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amount of violation, was an appropriate penalty for Rivera’s knowing and willful violations.3 

(MSJ Order at 37.) That penalty amount was in the lower half of the range the Court could have 

imposed. In reaching that figure, the Court considered: (1) Rivera’s bad faith; (2) the injury to 

the public caused by Rivera’s actions; (3) Rivera’s ability to pay; and (4) the necessity of 

vindicating the authority of the FEC and the penalty’s deterrent effect. MSJ Order at 34-39; see 

also Furgatch, 869 F.2d at 1258; FEC v. O’Donnell, 15-cv-17, 2017 WL 1404387, at *2 (D. Del. 

Apr. 19, 2017) (unpublished); FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82, 100 (D.D.C. 

2014), aff’d, 816 F.3d 829 (D.C. Cir. 2016); FEC v. Comm. of 100 Democrats, 844 F. Supp. 1, 7 

(D.D.C. 1993). In its MSJ Order, the Court noted that Rivera, “in his astoundingly concise (7-

page) opposition brief,” failed to “rebut or even address” the evidence the Commission 

presented, including the penalty the Commission sought. (MSJ Order at 4-5.) Rivera’s 

opposition was in fact “silent on [the penalty] issue.” (Id. at 34.) 

As directed by the Court, the FEC filed its Proposed Order and Final Judgment on 

February 26, 2021. (ECF No. 167-1.) On March 31, 2021, Rivera filed a Motion to Dismiss for 

Lack of Subject Matter Jurisdiction. (ECF No. 171.) On March 24, 2022, this Court denied 

defendant’s motion and closed the case. (ECF No. 176.) The Court subsequently entered a final 

judgment in favor of the Commission that ordered defendant to pay a penalty of $456,000 plus 

As the FEC has previously made the Court aware, the FEC had erred in noting in its 

summary judgment brief that $456,000 represented “a civil penalty of 700% of the $75,927.31 in 

contributions he made.” FEC’s Mem. in Support of its Mot. for Summ. J. at 1-2 (ECF No. 142); 

id. at 17, 20. A rounded sum of 700% of that amount in violation would have been $531,000. 

The Commission provided, and the Court entered, a proposed order that required a payment 

consistent with the requested $456,000 amount (i.e., 600%, not 700%). See ECF No. 167; see 

also ECF No. 177. 

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costs of $927 and permanently enjoined Rivera from making campaign contributions in the name 

of another in violation of 52 U.S.C. § 30122. (ECF No. 177.) 

On April 26, 2022, the defendant filed the instant Motion pursuant to Fed. R. Civ. P. 

59(e) or Rule 60(b). (ECF No. 179.)4

 Despite never previously directing any argument to the 

FEC’s proposed fine, Rivera now asserts that the civil penalty is unconstitutionally excessive 

under the Eighth Amendment. 

ARGUMENT 

Rivera’s Motion should be denied. First, Rivera’s decision not to raise any argument 

against the FEC’s proposed fine at the summary judgment stage operates as a waiver of his 

Eighth Amendment argument. Second, the primary decision on which Rivera relies, Yates v. 

Pinellas Hematology & Oncology, P.A., 21 F.4th 1288 (2021), does not establish new grounds or 

bring to light any error by this Court to warrant post-judgment relief. Third, even if the Court 

considers Rivera’s constitutional argument, the $456,000 penalty is not excessive under any of 

the factors outlined in Yates and prior precedent, and FECA’s penalty provision, as applied here 

and by prior courts, meets constitutional muster. 

Rivera asks this Court to rescind its summary judgment order to the extent it imposed a 

financial penalty pursuant to Rules 59(e) and 60(b)(1), (6). While Rule 59(e) permits motions 

for reconsideration, the basis for such motions is necessarily limited. “The only grounds for 

On April 28, 2022, after filing the motion under review, Rivera also filed a Notice of 

Appeal of this Court’s Judgment. (ECF No. 181.) This Court retains jurisdiction over the 

matter, because the notice of appeal does not become effective until the Court disposes of the 

instant motion. See Fed. R. App. P. 4(a)(4)(B)(i); see also Pin-Pon Corp. v. Landmark Am. Ins. 

Co., 500 F. Supp. 3d 1336, 1341 n.4 (S.D. Fla. 2020) (“While the filing of a notice of appeal 

generally divests a district court of jurisdiction over all issues involved in the appeal, district 

courts retain jurisdiction to adjudicate certain post-judgment motions, including those brought 

pursuant to Rule 59 and Rule 60 of the Federal Rules of Civil Procedure.” (citing Fed. R. App. P. 

4(a)(4))); Williams v. Becker, No. 1:18-CV-05348-SCJ, 2019 WL 11364954, at *1 (N.D. Ga. 

July 26, 2019) (same). 

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granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” 

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam) (alteration in original) 

(quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). “[T]he decision to alter or amend 

a judgment is committed to the sound discretion of the district court.” Mitra v. Glob. Fin. Corp., 

No. 08-80914-CIV, 2009 WL 2423104, at *1 (S.D. Fla. Aug. 6, 2009) (citing O’Neal v. 

Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992)). Further, under Rule 59(e), parties cannot use 

a motion for reconsideration to raise new legal arguments that could have been raised before a 

judgment was issued. Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th 

Cir. 2005)); see also Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per curiam) (“The 

purpose of a Rule 59(e) motion is not to raise an argument that was previously available, but not 

pressed.”). Likewise, under Rule 60(b), a court may relieve a party from a judgment due to 

“mistake, inadvertence, surprise, or excusable neglect,” Fed. R. Civ. P. 60(b)(1), or “any other 

reason that justifies relief,” Fed. R. Civ. P. 60(b)(6). The rule encompasses mistakes of facts or 

law. Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 840 (11th Cir. 1982) (per curiam). 

However, Rule 60(b) does not provide a party relief from “a tactical litigation decision which, in 

hindsight, has been determined to be a mistake.” McCarthy v. Consulate Health Care, No. 4:13-

cv-132-WS/CAS, 2016 WL 1729604, at *3 (N.D. Fla. Mar. 29, 2016), report and 

recommendation adopted, 2016 WL 1732743 (N.D. Fla. Apr. 28, 2016). Relief under Rule 

60(b)(6) is rare. See Booker v. Singletary, 90 F.3d 440, 442 (11th Cir.1996) (Relief from 

“judgment under Rule 60(b)(6) is an extraordinary remedy.” (citation omitted)). 

A. Rivera Waived Any Challenge to the Proposed Penalty by Failing to Raise it 

During Summary Judgment. 

Rivera’s argument that the Court’s financial penalty violates the Excessive Fines Clause 

fails at an antecedent step: he failed to properly preserve any argument against the civil penalty 

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during summary judgment briefing. A court may find that a party waived any arguments that 

were not addressed in its response to a summary judgment motion. Am. Home Assur. Co. v. 

Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985); Schwarz v. Bd. of 

Supervisors on behalf of Villages Cmty. Dev. Districts, 672 F. App’x 981, 983 (11th Cir. 2017) 

(affirming a district court’s finding that plaintiffs had waived any challenge to the defendant’s 

motion for summary judgment on certain grounds which the plaintiffs did not address in their 

response to the motion for summary judgment); Carter v. BPCL Mgmt., LLC, 2021 WL 

7502560, at *8 (S.D. Fla. Sept. 28, 2021) (same). Rivera himself acknowledges that “‘any 

arguments [he] failed to raise’” in his earlier motion “‘will be deemed waived.’” (Mot. at 8 

(quoting Compania de Elaborados de Cafe v. Cardinal Cap. Mgmt., Inc., 401 F. Supp. 2d 1270, 

1283 (S.D. Fla. 2003)).) 

Rivera’s summary judgment papers were totally “silent” on the issue of the civil penalty. 

(MSJ Order at 34; see also id. at 34 n.7 (“Nor does he address it in his reply brief submitted in 

support of his summary judgment motion. And it goes without saying that Rivera did not 

address this issue in his statement of uncontroverted facts submitted in support of his motion for 

summary judgment.” (citations omitted)).) Thus, as the Court noted, “Rivera has not made any 

opposition to the FEC’s contentions regarding the Court’s issuance of a civil penalty in this 

case.” (MSJ Order at 34 n.7.) Even assuming there were some merit to Rivera’s Eighth 

Amendment argument, but see infra at pp. 12-18, “[t]here is a significant difference between 

pointing out errors in a court’s decision on grounds that have already been urged before the court 

and raising altogether new arguments on a motion to amend,” Am. Home Assur. Co., 763 F.2d at 

1239. This Court should not accept Rivera’s effort to have “‘two bites at the apple.’” Id.; see 

also McCarthy, 2016 WL 1729604, at *3 (“[T]he most salient example of behavior that cannot 

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constitute grounds for Rule 60(b) relief is the purposeful litigation decision of a party.” (citation 

omitted)). 

Nothing prevented Rivera from raising an argument on summary judgment that the 

FEC’s proposed civil penalty was too high. The FEC’s summary judgment papers squarely 

argued a civil penalty should be granted on summary judgment, and Rivera was therefore on 

notice that the Court could grant that relief. At that point, imposition of the requested penalty 

was “immediately impending,” and Rivera failed to address it on the risk of waiver. Sierra Club 

v. Khanjee Holding (US) Inc., 655 F.3d 699, 705 (7th Cir. 2011). While it is true that Rivera 

could not have relied on Yates at summary judgment because that case had not yet been decided, 

his failure to raise any argument as to the civil penalty is sufficient reason to deny him the 

chance to raise a challenge to that issue now. Katzoff v. NCL (Bahamas) Ltd., No. 19-22754-

CIV, 2022 WL 820362, at *2 (S.D. Fla. Jan. 24, 2022) (denying motion for reconsideration 

where “[t]here was no argument” at summary judgment regarding the issue involved in 

intervening case and thus the motion was “simply an attempt to make an argument that should 

have been made before the Court’s ruling on the motion for summary judgment”). 

Rivera’s reliance on Yates to support his argument that it is proper to raise an Excessive 

Fines Clause argument for the first time in a motion for reconsideration is misplaced. (See Mot. 

at 1 (observing that Yates reviewed an order on a Rule 59(e) motion).) The monetary award at 

issue in Yates was imposed after a jury trial that established the damages caused by the 

defendant’s False Claims Act violations. See Yates, 21 F.4th at 1297. The plaintiff had not 

moved for summary judgment as to damages. See Relator Michele Yates’s Mot. for Partial 

Summ. J., Yates v. Pinellas Hematology & Oncology, P.A., No. 8-15-cv-799 (M.D. Fla. Feb. 11, 

2020) (ECF No. 103) (Dec. 14, 2018). There was, therefore, no comparable prior opportunity 

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for the defendant to have opposed issuance of monetary relief. Here, by contrast, the issue of the 

proper amount of civil penalty was squarely raised by the FEC’s summary judgment papers and 

Rivera failed to address it. It was certainly not manifest error for the Court to apply the ordinary 

civil penalty factors rather than an explicit Excessive Fines Clause analysis where Rivera made 

no constitutional argument in his summary judgment briefing. 

B. Yates Does Not Represent an Intervening Change in Controlling Law That 

Would Warrant Reconsideration of the Civil Penalty. 

Rivera’s motion fails to establish any intervening change in controlling law that would 

meet the standard for post-judgment reconsideration. Rivera’s entire argument on this point 

relies on the Eleventh Circuit’s decision in Yates. But nothing in that decision significantly 

altered the legal landscape regarding the application of the Excessive Fines clause of the Eighth 

Amendment to civil penalties. 

Yates concluded that the Eighth Amendment’s prohibition on “excessive fines” applies to 

a monetary award in a qui tam action under the False Claims Act even when the United States 

has not intervened as a party to the action. 21 F.4th at 1306-14. That holding has no relevance 

here; the FEC is an agency of the United States and is the plaintiff in this action. 

After concluding that the Excessive Fines Clause applied, the Yates court proceeded to 

apply standards developed in prior Eighth Amendment cases to the monetary award imposed in 

that case. See Yates, 21 F.4th at 1314-16. The court identified some “non-exhaustive” factors 

the Eleventh Circuit had previously “identified” that “guide an Excessive Fines Clause analysis: 

(i) whether the defendant is in the class of persons at whom the statute was principally directed; 

(ii) how the imposed penalties compare to other penalties authorized by the legislature; and (iii) 

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the harm caused by the defendant.” Id. at 1314 (citing United States v. Bajakajian, 524 U.S. 321 

(1998)).5 

Rivera takes from this application of precedent a sea change in the relevant standard 

(Mot. at 10), but the standard applied in Yates was not new. Indeed, Yates simply applied the 

factors set forth in prior cases. Rivera suggests that applying this test in the civil context was a 

new development (Mot. at 6), but it was well established at the time of Rivera’s summary 

judgment opposition that the Eighth Amendment’s prohibition of excessive fines applied to civil 

penalties intended to punish. See, e.g., Austin v. United States, 509 U.S. 602 (1993) (holding that 

Excessive Fines Clause applies to civil forfeiture proceedings). The Yates majority did not 

purport to apply a new test in the civil context. See Yates, 21 F.4th at 1314.6 And courts have 

previously applied this test in both civil and criminal cases. See, e.g., United States v. Chaplin’s, 

Inc., 646 F.3d 846, 851 (11th Cir. 2011) (applying Bajakajian factors in criminal forfeiture case); 

United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d 1304, 1309 (11th Cir. 1999) 

(applying Bajakajian to civil in rem forfeiture); see also United States v. Mackby, 339 F.3d 1013, 

1017-18 (9th Cir. 2003) (applying Bajakajian factors in False Claims Act case). At best, Yates 

simply clarified the application of a preexisting legal standard. It did not, however, change 

controlling law. See, e.g., Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 

5 A concurring judge highlighted a circuit split on whether the Excessive Fines Clause 

requires courts to consider not only proportionality between the misconduct and the fine imposed 

but also the defendant’s ability to pay the fine. Id. at 1318 (Newsom, J., concurring). This Court 

squarely considered Rivera’s ability to pay to civil penalty (MSJ Order at 36-37), and so that 

debate would not affect the outcome here. Moreover, the sanctioned party has “the burden to 

produce evidence of inability to pay,” FEC v. Toledano, 317 F.3d 939, 948-49 (9th Cir. 2002), 

and Rivera submitted no evidence to meet that burden here. 

6 Rivera appears to accept the dissenting judge’s assertion that the majority applied a “new 

test for the Excessive Fines Clause.” Yates, 21 F.4th at 1324 (Tjoflat, J., concurring in part and 

dissenting in part). That statement did not sway the majority, and in any event, it is not accurate 

to say that the test had not been applied in civil cases prior to Yates. 

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1373 (S.D. Fla. 2002) (denying motion for reconsideration where court’s prior decision was not 

inconsistent with intervening case); MSPA Claims 1, LLC v. Covington Specialty Ins. Co., 212 F. 

Supp. 3d 1250, 1263 (S.D. Fla. 2016) (denying motion for reconsideration where the “Eleventh 

Circuit did not decide the issue on which this Court based its Dismissal Order, and for that 

reason [recently decided case] does not constitute an intervening change in controlling law”). 

C. FECA’s Civil Penalty Provision Provides Sufficient Judicial Standards 

Even if it were permissible for Rivera to mount an Excessive Fines Clause challenge at 

this belated juncture, it would fail. “FECA grants district courts broad authority to fashion 

remedies for violations of the statute,” FEC v. Craig for U.S. Senate, 816 F.3d 829, 847 (D.C. 

Cir. 2016), but it is wrong for defendant to assert that it is standardless, (see Mot. at 12; 14-16). 

The civil penalty the Court imposed was pursuant to 52 U.S.C. § 30109(a)(6)(C), which applies 

to knowing and willful violations of the ban on making contributions in the name of another. 

That provision permits a court to “impose a civil penalty . . . which is not less than 300 percent 

of the amount involved in the violation and is not more than the greater of $50,000 or 1000 

percent of the amount involved in the violation.” 52 U.S.C. § 30109(a)(6)(C). In addition to 

having a statutory range, courts have fashioned additional standards to guide a district court’s 

discretion within the range. Thus, “a district court should consider (1) the good or bad faith of 

the defendants; (2) the injury to the public; (3) the defendant’s ability to pay; and (4) the 

necessity of vindicating the authority of the responsible federal agency.” Furgatch, 869 F.2d at 

1258. This Court applied those standards in this case. (MSJ Order at 34-37.) 

Rivera cites to Jude Tjoflat’s concurrence/dissent in Yates, which noted a lack of 

standards in calculating civil penalties under the False Claim Act. (See Mot. at 15). The 

majority opinion of the Eleventh Circuit explained that this issue was not before the court, 

however, and that moreover, 

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the imposition of the lowest-possible monetary award—though, as the 

district court noted, “very harsh”—properly balances the need to deter 

potential fraudsters with the gravity of Pinellas’ conduct. This is all the 

more so when one considers that the size of the award is a direct reflection 

of Pinellas’ repeated and knowing submission of false claims to the United 

States. 

Yates, 21 F.4th at 1316. Judge Tjoflat’s concern that the False Claims Act was without standards 

did not command a majority. With respect to FECA, moreover, Furgatch and the other 

precedent the Court cited in its MSJ Order provide appropriate standards for imposing a civil 

penalty for the campaign finance violations at issue in this case. This Court’s analysis of those 

standards provides sufficient “reasoning” to permit appellate review. Id. at 1324 (Tjoflat, J., 

concurring in part and dissenting in part). Rivera does not explain why the standards the Court 

applied are insufficient. Rivera’s Motion fails to present any manifest error of law or fact in the 

Court’s Order, nor does it provide any new arguments that could not have been raised prior to the 

entry of the Court’s Order to justify relief under Rule 59 or Rule 60(b). 

D. The Court’s Standard Used to Determine Rivera’s Penalty Amount Does Not 

Violate the Eighth Amendment 

Even if the Court had confronted a timely challenge and applied Rivera’s penalty to the 

strictures of the Eighth Amendment, the penalty is not excessive because it is not grossly 

disproportional to Rivera’s offense.7

 The United States Supreme Court has adopted a “gross 

disproportionality” test to determine whether a fine is “excessive” for purposes of the Excessive 

Much of Rivera’s Motion is devoted to propositions that are not in dispute. The FEC 

does not contend that a civil penalty to remedy violations of FECA are immune from a properly 

preserved argument for Eighth Amendment review (but see Mot. at 13-14), and it is obvious that 

the Court did not apply Yates, which had not been decided at the time of the MSJ Order (Mot. at 

16). The FEC also does not dispute that 52 U.S.C. § 30109(d) provides for penalties, which by 

their nature are at least partly punitive. See, e.g., FEC v. O’Donnell, No. 15-17, 2017 WL 

1404387, at *5 (D. Del. Apr. 19, 2017) (tailoring the level of punishment while applying the 

Furgatch factors). 

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Fines Clause. See Bajakajian, 524 U.S. at 323. Recognizing that Congress is best suited to 

determine the monetary value that society places on harmful conduct, courts grant fines falling 

below a statutory maximum a “strong presumption” of constitutionality. See id. at 336 

((“[J]udgments about the appropriate punishment for an offense belong in the first instance to the 

legislature.”); see also Yates, 21 F.4th at 1314 (“Congress, as a representative body, can distill 

the monetary value society places on harmful conduct,” and thus that “[penalties] falling below 

the maximum statutory fines for a given offense . . . receive a strong presumption of 

constitutionality.” (internal quotation marks and citation omitted)). The fine assessed against 

Rivera is well within the Congressionally authorized limits of FECA, and therefore there is a 

“strong presumption” that it is not excessive under the Eighth Amendment.8 

Applying the factors identified in Yates confirms this strong presumption that the penalty 

is not disproportionate to the offense. The Eleventh Circuit identified “several, non-exhaustive 

factors that guide an Excessive Fines Clause analysis: (i) whether the defendant is in the class of 

persons at whom the statute was principally directed; (ii) how the imposed penalties compare to 

other penalties authorized by the legislature; and (iii) the harm caused by the defendant.” Yates, 

21 F.4th at 1314. 

Rivera is plainly within the class of persons at whom section 30122 was principally 

directed. FECA establishes a comprehensive system of disclosure for contributions, which 

provides “‘the electorate with information about the sources of election-related spending’” and 

The Court had discretion for each knowing and willful violation of 52 U.S.C. § 30122, to 

award a civil penalty that is not less than 300% of the amount involved in the violation and is not 

more than the greater of $60,000 or 1,000% of the amount involved in the violation, see 52 

U.S.C. § 30109(a)(6)(C), 11 C.F.R. § 111.24(a)(2)(ii) (2010). The Court could have awarded a 

maximum of approximately $760,000 for Rivera’s knowing and willful violations. In its 

discussion of the penalty and Rivera’s ability to pay, the Court noted that the statutory maximum 

penalty was far higher than the amount the Commission sought. (See MSJ Order at 36.) 

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“minimizes the potential for abuse of the campaign finance system.” McCutcheon v. FEC, 572 

U.S. 185, 223 (2014) (quoting Citizens United v. FEC, 558 U.S. 310, 367 (2010)). Section 

30122 “is designed to ensure accurate disclosure of contributor information” by prohibiting 

persons from making contributions in the name of another. Campaign Legal Center v. FEC, 952 

F.3d 352, 355 (D.C. Cir. 2020) (per curiam). “[S]uch contributions undermine transparency . . . 

by shielding the identities of true contributors” to a political campaign, United States v. 

O’Donnell, 608 F.3d 546, 554 (9th Cir. 2010), and deprive the electorate of crucial information 

about the “sources of election-related spending,” Citizens United, 558 U.S. at 367. 

Rivera’s actions here fall within the core of prohibited conduct. As this Court explained, 

“[a]s a U.S. Congressman, at that time, Rivera was well aware of and understood FECA’s 

requirements that campaign contributions must be accurately disclosed to the public. Yet, Rivera 

still acted in a manner to avoid FECA’s disclosure requirements.” (MSJ Order at 35.) 

Moreover, Rivera had “full knowledge of the facts as well as the unlawful nature of his actions.” 

(Id.) More than just “depriving the electorate of accurate information,” (Mot. at 5), Rivera 

affirmatively tried to dupe the public into believing that advertising against a likely generalelection opponent had been funded by an opponent in the opposition party’s primary election. 

This is exactly the type of conduct that Section 30122 was designed to protect against, and 

Rivera falls squarely within the class of individuals targeted by the penalty here. See, e.g., 

O’Donnell, 608 F.3d at 554. 

Rivera’s attempts to downplay his violations of law as a technical violation are 

unconvincing. (See Mot. at 18-19.) Rivera is not an unsophisticated individual who happened, 

by haphazard and unusual circumstances, to fall within the ambit of the statute while attempting 

to participate in the political process. Rather, Rivera intentionally provided secret financial 

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support for a candidate in an opposing party’s primary election, the effect of which was to 

deprive the voting public of essential information that could have affected their votes. If 

anything, the need for deterrence of stealth funding for sham candidates in elections has only 

increased in the time since the summary judgment briefing after similar allegations have been 

made in subsequent elections. See State of Florida v. Frank Artiles, No. F21-004768 (B) (Fla. 

11th Cir. Ct. 2021) (charging former state senator with felonies for exceeding campaign 

contribution limits and providing false information to election officials for alleged scheme that 

involved paying bogus candidate more than $44,000 to siphon votes in state election); see also 

Associated Press and NBC 6, “‘Ghost Candidate’ Pleads Guilty in Scheme to Siphon Votes in 

District 37 Race,” (published Aug. 24, 2021, updated Aug. 24, 2021, 1:07 p.m.), 

https://www.nbcmiami.com/news/local/ghost-candidate-pleads-guilty-in-scheme-to-siphonvotes-in-district-37-race/2536139/ (explaining that former candidate allegedly paid by Artiles to 

run as third-party candidate to siphon votes away from Democratic opponent pleaded guilty to 

state campaign finance and false statement crimes). 

Next, the civil penalty this Court selected compares favorably to other penalties 

authorized by the legislature. See Yates, 21 F.4th at 1314. To assess this factor, courts may 

consider relevant standards, such as criminal statutes, sentencing guidelines, and trial courts’ 

sentencing decisions, among other standards. Bajakajian, 524 U.S. at 339 n.14. 

As an initial matter, both proposed comparator fines Rivera cites were the result of prelitigation negotiated settlement. (Mot. at 1 & n.1.) FECA’s enforcement provisions heavily 

favor resolving civil violations through conciliation. See, e.g., 52 U.S.C. § 30109(a)(4)(A)(i) 

(proscribing mandatory pre-litigation conciliation period). Rivera is thus not “similarly situated” 

to his proposed comparators because “they settled and he did not.” United States v. Prochnow, 

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No. 07-10273, 2007 WL 3082139, at *5 (11th Cir. Oct. 22, 2007) (per curiam) (affirming 

imposition of fine and disgorgement for violations of Federal Trade Commission rule). 

In any event, the $456,000 civil penalty the Court imposed here is not disproportionate to 

others that have been imposed under FECA and was actually in the lower half of the permissible 

range. As noted above, the Court could have imposed a civil penalty as high as approximately 

$760,000 within the range set by Congress. (See supra at n.8.) Moreover, the FEC has reached 

negotiated settlements of FECA violations that are significantly higher than the penalty awarded 

by this Court. In MUR 5666, Mitchell Wade and MZM, Inc., the company Wade principally 

owned, were jointly liable for a civil penalty of $1,000,000 under a conciliation agreement with 

the Commission for FECA violations that included making contributions in the name of another. 

See Selected Cases in which the Civil Penalties are $50,000 or Greater Made Public Between 

1980 and Present (Updated May 2022) (“Selected Cases”), at 1, https://www.fec.gov/resources/ 

cms-content/documents/civilpenalties50k.pdf; see also FEC, Conciliation Agreement for MZM, 

Inc. and Mitchell J. Wade, MUR 5666 (Oct. 30, 2007), https://www.fec.gov/files 

/legal/murs/5666/000065ED.pdf. In MUR 5279, Charles Kushner and his associated 

partnerships entered into a conciliation agreement with the FEC on June 24, 2004, which 

included a civil penalty of $508,900. See id. at 2. In today’s dollars, the civil penalty in MUR 

5279 would be $775,580, a substantially larger penalty than that imposed on Mr. Rivera.9 

Likewise, even the example Rivera cites, Thomas Kramer, MUR 4398 (July 18, 1997) (Mot. at 

Present value of past civil penalties was calculated using the U.S. Bureau of Labor 

Statistics, CPI Inflation Calculator, https://www.bls.gov/data/inflation_calculator.htm. 

Consideration of inflation-adjusted penalties is appropriate here. In the Federal Civil Penalties 

Inflation Adjustment Act, Congress requires the FEC to annually adjust civil monetary penalties 

for inflation. See, e.g., Civil Monetary Penalties Annual Inflation Adjustments, 85 Fed. Reg. 

47891 (Aug. 7, 2020) (inflation adjustment applies to “penalties that are either negotiated by the 

Commission or imposed by a court for violations of FECA”). 

16 

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1), included a civil penalty in the amount of $426,000, which would be $767,354 today. 

Furthermore, Rivera presents no reason the relevant comparison is to other individuals, and there 

is a range of additional cases with far higher penalties against entities that violated the FECA. 

(See, e.g., Selected Cases at 1, (MUR 5390, Freddie Mac, $3.8 million penalty; MUR 7613 

Zekelman Industries, $975,000 penalty).) 

Further reflecting the seriousness of violations of 52 U.S.C. § 30122, such violations are 

often criminally prosecuted. Criminal violations of section 30122 involving more than $25,000 

are punishable as felonies, subject to up to five years’ imprisonment. 52 U.S.C. 

§ 30109(d)(1)(A)(i), (D); see United States v. Smukler, No. CR 17-563-02 (E.D. Pa. May 6, 

2019) (Doc. No. 187) (sentence of 18 months for violations including contribution in the name of 

another in violation of 52 U.S.C. § 30122); Judgment, United States v. Smukler, No. CR 17-563-

02 (E.D. Pa. Dec. 7, 2018) (Docket No. 176) (jury verdict finding the defendant guilty of section 

30122 violation); United States v. Boender, 649 F.3d 650, 659-61 (7th Cir. 2011) (sustaining 

contributor’s section 30122 liability for contribution in the name of anther scheme and other 

violations where district court sentenced the defendant to 46 months of imprisonment). Indeed, 

participants in Rivera’s scheme here pleaded guilty and served terms of imprisonment. 

Judgment in a Criminal Case, United States v. Alliegro, No. 14-20102 (S.D. Fla. Sept. 10, 2014) 

(Docket No. 118); Judgment at 1, United States v. Sternad, No. 13-CR-20108 (S.D. Fla. July 11, 

2014) (Docket No. 43). 

Even if the increased penalty provision for section 30122 violations is higher than other 

federal offenses, “judgments about the appropriate punishment for an offense belong in the first 

instance to the legislature.” Bajakajian, 524 U.S. at 336. Reflecting section 30122’s importance 

to FECA’s system of disclosure requirements and contributions limits, Congress authorized the 

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courts to impose significantly enhanced civil and criminal penalties for violations of section 

30122 than for other FECA provisions. Civil penalties for knowing and willful violations of 

section 30122 are at least five times greater than the penalties authorized for other FECA 

violations. See 52 U.S.C. § 30109(a)(6)(C). This is not a congressional oversight. Congress 

increased these penalties in 2002, after conducting an investigation into the 1996 presidential 

election that revealed serious abuses, including that “millions of dollars in illegal donations from 

foreign nations were funneled into party and campaign coffers through conduit contributions.” 

147 Cong. Rec. 3,187-88 (2001) (statement of Sen. Bond), Bipartisan Campaign Reform Act 

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 108 (2002). Congress intended to send “a clear 

message that it considers the funneling of illegal campaign contributions a serious offense to be 

punished accordingly.” Id. at 3,188. The Court should give substantial deference to the 

legislature since it is in a far better position to take all relevant considerations into account when 

crafting an appropriate collection, deterrence, and enforcement mechanism in this area, and it is 

this expertise that the Supreme Court recognized in Bajakajian. 524 U.S. at 336 (internal 

citations omitted). 

The final factor the Yates court identified is the harm that has been caused by Rivera’s 

actions. Yates, 21 F.4th 1314. As this Court has already explained, “it is hard to imagine a 

scenario in which Rivera’s brazen violations of FECA would not have injured the public.” (MSJ 

Order at 36.) Rivera’s violations of FECA harmed the public by depriving the electorate of 

accurate information regarding the source of funding for a campaign’s direct mail flyers and 

increased the risk and appearance of corruption. Rivera cannot now complain of constitutional 

infirmity when, by his own actions, he intentionally deceived voters and implicated other third 

parties, requiring those third parties to cover for his fraud. All factors confirm that the penalty 

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imposed against Rivera does not violate the Excessive Fines Clause and present no basis for 

relief under Rule 59 or Rule 60(b). 

E. This Court Did Not Err in Declining to Hold an Evidentiary Hearing That 

Rivera Did Not Request. 

Rivera takes issue with what he describes as “[p]rocedural problems with the fine,” 

arguing that an evidentiary hearing was needed before the Court should have imposed the 

penalty. Mot. at 19. But Rivera can hardly fault this Court for failing to hold an evidentiary 

hearing as to the penalty because he did not ask for one. Again, Rivera did not make “any 

opposition to the FEC’s contentions regarding the Court’s issuance of a civil penalty in this 

case.” (MSJ Order at 34 n.7.) Even assuming Rivera had preserved his objection to the lack of 

an evidentiary hearing, however, his only authority that one was required comes from the 

dissenting opinion in Yates. (See Mot. at 4 (citing Yates, 21 F.4th at 1334-35 (Tjoflat, concurring 

in part and dissenting in part).)10 The Court was not obligated to conduct an evidentiary hearing 

in the face of the undisputed evidence showing that Rivera has the ability to pay the penalty, 

which included Rivera’s previously filed disclosure reports and other public record documents of 

which the Court took judicial notice. (MSJ Order at 37.) 

Furthermore, the Commission’s Amended Complaint properly placed Rivera on notice of 

its demand for monetary relief, in compliance with the “minimal requirements of Rule 8(a)(3).” 

Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993). The FEC’s Amended 

The only other authority Rivera cites in support of the argument that a hearing was 

required is Tull v. United States, 481 U.S. 412, 422 (1987). (Mot. at 19.) That case, however, 

held that Congress may assign the determination of civil penalties to a trial judge without 

violating the Seventh Amendment right to trial by jury. Tull, 481 U.S. at 426-27. While a 

defendant has a Seventh Amendment right to trial by jury on liability questions, granting 

summary judgment to the government against a civil defendant when there are no disputes of 

material fact does not violate that right. Garvie v. City of Ft. Walton Beach, Fla., 366 F.3d 1186, 

1190 (11th Cir. 2004). 

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Complaint stated that Rivera made payments between July 2012 and August 2012, which totaled 

“more than $55,601 in contributions in the names of another.” (Am. Compl. at 9.) That was 

sufficient to comply with the Rule 8 requirement of a “demand for the relief sought.” Fed. R. 

Civ. P. 8(a)(3). Indeed, “any concise statement identifying the remedies and the parties against 

whom relief is sought will be sufficient.” 5 Charles A. Wright & Arthur R. Miller, Fed. Prac. & 

Proc. Civ. § 1255 (4th ed.). Rivera offers no authority to support his suggestion that a 

complainant is limited to a dollar figure included in a complaint, much less one that specifically 

pleads that the true figure is “more than” a certain sum.11 In fact, the Court is not “limited by the 

demand for judgment” and on summary judgment may “grant any relief to which the evidence 

shows a party is entitled.” Id. The evidence adduced at summary judgment showed that those 

contributions during that July to August period alleged in the Amended Complaint totaled 

$75,927.31. And again, Rivera did not dispute this evidence. Rivera cannot attempt to use Rule 

59 or Rule 60 to reargue this evidentiary point. 

CONCLUSION 

Rivera has not met his burden for alteration of the Court’s well-reasoned Order granting 

summary judgment in favor of the Commission. For the foregoing reasons, the Court should 

deny Rivera’s Motion to Alter or Amend or Relief from Judgment. 

Respectfully submitted, 

Lisa J. Stevenson (Special Bar No. A5502354) 

Acting General Counsel 

lstevenson@fec.gov 

/s/ Shaina Ward 

Shaina Ward (Special Bar No. A5502563) 

Attorney 

sward@fec.gov 

Kevin Deeley (Special Bar No. A5502355) 

The authority that Rivera cites holds only that a plaintiff may not add a new claim for 

relief through summary judgment argument. (Mot. at 19-20 (citing Moore v. Shands 

Jacksonville Med. Ctr., No. 3:09-cv-298, 2013 WL 11327134, at *24 n.43 (M.D. Fla. Oct. 18, 

2013).) It does not suggest that the Court is limited to a damages amount specified in a 

plaintiff’s complaint for a properly asserted claim. 

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11 
 

 

 

Case 1:17-cv-22643-MGC Document 186 Entered on FLSD Docket 05/23/2022 Page 21 of 22 

Associate General Counsel FOR THE PLAINTIFF 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Greg J. Mueller (Special Bar No. A5502376) Washington, D.C. 20463 

Attorney (202) 694-1650 

gmueller@fec.gov 

May 23, 2022 

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Case 1:17-cv-22643-MGC Document 186 Entered on FLSD Docket 05/23/2022 Page 22 of 22 

CERTIFICATE OF SERVICE 

I, Shaina Ward, certify that on May 23, 2022, I electronically filed plaintiff Federal 

Election Commission’s Opposition to Defendant’s Motion to Alter or Amend or Relief from 

Judgment with the Clerk of the United States District Court for the Southern District of Florida 

by using the Court’s CM/ECF system, which sent notification of such filing to all counsel of 

record. 

/s/ Shaina Ward 

Shaina Ward (Special Bar No. A5502563) 

Attorney 

sward@fec.gov