IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

 

No. 22-11437-GG 

 

FEDERAL ELECTION COMMISSION, 

Plaintiff - Appellee, 

v. 

DAVID RIVERA, 

Defendant - Appellant. 

 

Appeal from the United States District Court 

for the Southern District of Florida 

No. 17-cv-22643 

 

 

APPELLANT’S REPLY BRIEF 

 

Jeffrey David Feldman 

TRAILBLAZER

1200 Brickell Avenue 

Penthouse 1900 

Miami, FL 33131 

Phone: 305.222.7851 

Fax: 305.760.4193 

jfeldman@trailblazerlaw.com 

Thomas L. Hunker 

Virginia Ashley Paxton 

HUNKER PAXTON APPEALS & TRIALS

1 East Broward Boulevard, Suite 700 

Fort Lauderdale, FL 33301 

Phone: 877.841.8808 

Fax: 954.477.7313 

thomas.hunker@hunkerappeals.com 

ashley.paxton@hunkerappeals.com 

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C-1 

CERTIFICATE OF INTERESTED PERSONS 

AND CORPORATE DISCLOSURE STATEMENT 

 Pursuant to Eleventh Circuit Rule 26.1-2, I certify that the certificate of 

interested persons (CIP) contained in the parties’ principal briefs includes a complete 

list of trial judge(s), attorneys, persons, associations of persons, firms, partnerships, 

or corporations that have an interest in the outcome of this particular case or appeal, 

including subsidiaries, conglomerates, affiliates, parent corporations, any publicly 

held corporation that owns 10% or more of the party's stock, and other identifiable 

legal entities related to a party. 

 Respectfully submitted, 

 /s/ Thomas L. Hunker 

 Thomas L. Hunker 

 Counsel for Appellant 

 

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TABLE OF CONTENTS 

Certificate of Interested Persons and Corporate Disclosure Statement...............C-1 

Table of Contents...............................................................................i 

Table of Citations.............................................................................iv 

Argument....................................................................................1 

I. The district court lacked subject matter jurisdiction...............1 

A. FEC’s brief improperly cites to non-record material in 

violation of FRAP 28...........................................1 

B. The jurisdictional issue is preserved.........................2 

C. FEC initiated contact and communicated solely with 

Rivera rather than his designated counsel in violation of 

its own regulations.............................................4 

D. FEC’s amended complaint raised an entirely new 

“primary liability” theory that was not authorized by a 

vote of the Commissioners or asserted during its 

mandatory presuit procedures.............. ...................7 

II. FEC’s allegations against Rivera do not describe the kind of 

conduct prohibited by § 30122......................................13 

III. The district court entered summary judgment for FEC based on 

hearsay, non-record material, and conflicting evidence.........15 

IV. Section 30109(a)(6)(C)’s 300–1000% enhanced civil penalty is 

unconstitutionally vague and excessive............................17 

V. The district court’s $465,000 civil penalty is an unconstitutional 

excessive fine under the Eighth Amendment.............................18 

Certificate of Compliance..................................................................19 

Certificate of Service........................................................................19 

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TABLE OF CITATIONS 

FEC Cases 

FEC v. NRA, 

553 F. Supp. 1331 (D.D.C. 1983)...................................................3 

* FEC v. Swallow, 

304 F. Supp. 3d 1113 (D. Utah 2018).......................................passim 

RNC v. FEC, 

76 F.3d 400 (D.C. Cir. 1996)........................................................13 

DOJ Cases 

 

 United States v. Curran, 

20 F.3d 560 (3d Cir. 1994)......................................................15 n.5 

United States v. Hsia, 

24 F. Supp. 2d 33 (D.D.C. 1998)...............................................15 n.5 

United States v. O’Donnell, 

608 F.3d 546 (9th Cir. 2010).............................................................15 n.5 

United States v. Whittemore, 

776 F.3d 1074 (9th Cir. 2015)....................................................... 15 n.5 

Statutes 

* 2 U.S.C. § 437g [52 U.S.C. § 30109]..............................................passim 

* 2 U.S.C. § 441a [52 U.S.C. § 30116].............................................passim 

* 2 U.S.C. § 441f [52 U.S.C. § 30122].............................................passim 

28 U.S.C. § 530B.............................................................................6 

* 52 U.S.C. § 30109 [2 U.S.C. § 437g]...............................................passim 

52 U.S.C. § 30116 [2 U.S.C. § 441a]...............................................passim 

* 52 U.S.C. § 30122 [2 U.S.C. § 441f]...............................................passim

 

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Regulations

11 C.F.R. § 104.14.......................................................................13 n.3 

11 C.F.R. § 110.4........................................................................passim 

 11 C.F.R. § 111.23.............................................................................6 

 11 C.F.R. § 114.12.......................................................................13 n.3 

Rules 

Fla. Bar R. 4-4.2................................................................................6 

S.D. Fla. Local R. 11.1........................................................................6 

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ARGUMENT 

I. The district court lacked subject matter jurisdiction. 

A. FEC’s brief improperly references non-record matters that 

were not before the trial court in violation of FRAP 28. 

Rule 28 of the Federal Rule of Appellate Procedure requires that every brief 

with a statement of facts contain “appropriate references to the record” and that any 

argument factually based contain “citations to the ... parts of the record on which 

the appellant relies.” See FRAP 28(a)(4) (statements of fact must refer to record). 

This Court has stricken or disregarded portions of briefs that reference non-record 

material. See e.g., Diversified Numismatics v. City of Orlando, Fl., 949 F.2d 382, 

384 (11th Cir.1991) (“Appellants should not have referenced material not in the 

record, and we will not consider any non-record evidence or arguments based upon 

non-record evidence.”); Riley v. City of Montgomery, 104 F.3d 1247, 1251 (11th Cir. 

1997) (“We grant Defendants' motion for those portions of Plaintiff's brief which 

refer to ‘evidence’ that is not in the record.”); see also Holmberg v. Baxter 

Healthcare Corp., 901 F.2d 1387, FN 4 (7th Cir. 1990) (“To the extent Baxter's brief 

makes a reference to these facts outside the record, those portions of the brief are 

properly stricken.”). 

In Part I.C.2. (pages 11-12) of its brief, FEC blatantly injects irrelevant and 

inflammatory non-record matters into this appeal that were not before the trial court. 

It also flagged them for the Court’s attention by including a subheading (“2. David 

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Rivera’s Subsequent Activities and Current Criminal Charges”) so that the nonrecord matters are listed in the Table of Contents and to ensure that this Court doesn’t 

overlook them. FEC only references these matters in the purported “Factual 

Background” section of its brief and not in the Argument section of its brief. Thus, 

FEC’s gratuitous statements about inflammatory, non-record matters are irrelevant 

to the issues on appeal and have no place in FEC’s brief. This is an obvious attempt 

by FEC to unfairly prejudice this Court against Rivera in flagrant violation of the 

Rules of Appellate Procedure. Accordingly, Rivera respectfully requests that this 

Court strike and/or disregard Part I.C.2. (pages 11-12) of FEC’s brief. See

Diversified Numismatics, 949 F.2d at 384. 

B. The jurisdictional issue is preserved. 

FEC claims that Rivera did not preserve the jurisdictional issues for appeal 

because Rivera did not argue them below. FEC is wrong for two reasons: (1) Rivera 

did expressly argue this below [DE 171, DE 174 at 6-8].; and (2) even if he didn’t, 

FEC’s violations are jurisdictional defects which may be raised for the first time on 

appeal. First, the record shows that Rivera filed a comprehensive motion to dismiss 

for lack of subject matter jurisdiction as well as a reply to FEC’s response. See [DE 

171, 172, 174]. Rivera argued in his motion that he never received important 

documents and correspondence that FEC claimed it sent to him. [DE 171]. FEC’s 

response was accompanied by a declaration from its attorney Ana Pena-Wallace, 

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Esq. with exhibits showing that FEC received correspondence from attorney Yesenia 

Collazo, Esq. in 2013 with a signed form designating Collazo as Rivera’s counsel in 

the FEC proceeding. Collazo submitted documents and communications to FEC on 

Rivera’s behalf and reaffirmed in 2016 that she still represented Rivera in reference 

to FEC’s claims. Yet, FEC never sent key communications to Collazo and illegally 

initiated and continued direct and exclusive communication with Rivera (and 

without Collazo) during key points of the presuit administrative process including 

its subpoena for a statement from Rivera, its probable cause recommendation and 

determination, and its attempt at conciliation. See [DE 172-1]. Rivera thoroughly 

and expressly argued that FEC’s presuit procedures were defective due to FEC’s 

knowing failure to communicate with and direct critical notices and documents to 

his counsel of record. See [DE 174 at 6-8]. 

Moreover, FEC’s compliance with presuit procedures is a jurisdictional issue. 

“[W]here the FEC fails . . . to comply with the mandatory prerequisites to suit, an 

enforcement suit is premature, and the court, at a minimum, must stay the action 

pending cure by the FEC, or in certain cases dismiss the suit for want of subject 

matter jurisdiction.” See FEC v. NRA, 553 F. Supp. 1331, 1333, 1336-1338, 1346 

(D.D.C. 1983) (emphasis added) (dismissing allegations in a FEC complaint that 

were not submitted to the defendants by the General Counsel and approved by the 

Commission). Indeed, in both its original and amended complaints, FEC alleged that 

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it “satisfied all of the jurisdictional requirements in the FECA that are prerequisites

to filing this action.” See [DE 1 at 8-9; DE 42 at 8-9] (emphasis added). As such, the 

Court is independently required to determine whether the trial court had subject 

matter jurisdiction based on FEC compliance – or lack of compliance – with its 

mandatory presuit procedures. This is true whether Rivera raised the issue below, 

argued it for the first time on appeal, or even failed to raise it on appeal.1 

C. FEC initiated contact and communicated solely with Rivera rather 

than his designated counsel in violation of its own regulations. 

In its brief, FEC claims that it communicated directly and exclusively with 

Rivera “only after counsel ceased representation[.]” See FEC’s Brief at 32. The 

record contradicts this statement. Rivera submitted FEC’s form designating Yesenia 

Collazo, Esq. as his attorney in September 2013 and that Collazo submitted a 

detailed response to FEC’s 2013 “reason to believe” letter and factual and legal 

analysis. See [DE 172-1 at 2, 12, 15-17]. The exhibits to FEC’s response further 

1. See Nicklaw v. CitiMortgage, Inc., 839 F.3d 998, 1001 (11th Cir. 2016) 

(“Questions of subject matter jurisdiction may be raised at any time. Although we 

ordinarily will not address issues raised for the first time on appeal, any time doubt 

arises as to the existence of federal jurisdiction, we are obliged to address the issue 

before proceeding further.”) (citations omitted); Fairlane Car Wash, Inc. v. Knight 

Enters., 396 Fed. Appx. 281, 284-285 (6th Cir. Sept. 15, 2010) (“Although Knight 

challenges subject-matter jurisdiction for the first time on appeal, objections to 

subject-matter jurisdiction cannot be waived and must be addressed by a federal 

court at every stage of proceeding.”); Andrus v. Charlestone Stone Prods. Co., 436 

U.S. 604, 607 n.6 (1978) (“Although the question of the District Court's subjectmatter jurisdiction was not raised in this Court or apparently in either court below, 

we have an obligation to consider the question sua sponte.”). 

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revealed that Pena-Wallace communicated with Collazo in November 2016 and 

received a voicemail from Collazo on November 10, 2016 advising that Collazo still 

represented Rivera in the FEC proceeding. See [DE 172-1 at 2-3, 18-19]. PerezWallace understood the significance of Collazo’s response because, according to her 

declaration, she “did not make additional calls to [Rivera] in November 2016 after 

receiving a voicemail message from his counsel on or about November 10, 2016.” 

See [DE 172-1 at ¶6]. Two weeks later, on November 22, 2016, Pena-Wallace wrote 

Collazo again to inquire whether Collazo still represented Rivera. [DE 172-1 at 19]. 

Thereafter, Pena-Wallace admittedly initiated and maintained direct contact solely 

with Rivera, including sending him (and not Collazo) a subpoena, General Counsel’s 

brief, probable cause recommendation, finding of probable cause, and proposed 

conciliation agreement asking him to settle FEC’s claim by admitting to things that 

would have subjected him to criminal prosecution by the Department of Justice 

(DOJ). See [DE 172 at 3, 11-12, 16; DE 172-1 at 2-3, 20-56]. In her communications 

with Rivera, Pena-Wallace continued to refer to Collazo as Rivera’s “counsel” and 

asked Rivera whether Collazo was still representing him. See [DE 172-1 at 7, 23]. 

Nothing in FEC’s filings indicates that Collazo or Rivera ever authorized FEC to 

contact Rivera directly. And Pena-Wallace’s communications with Collazo and 

Rivera reflect that she – at best – didn’t know whether Collazo still represented 

Rivera – despite the fact that Collazo left her a voicemail in November 2016 

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confirming that she still represented Rivera. FEC’s unfounded and subjective doubt 

does not justify its violation of its own no-contact rule. 

FEC admits that Rivera never responded to its 2016 requests to indicate 

whether he was still represented by counsel but claims that it was authorized to 

exclude Collazo from important communications when Rivera “began to 

communicate in a manner consistent with self-representation.” See FEC’s brief at 

32. However, Pena-Wallace’s declaration and exhibits show that FEC induced 

Rivera to communicate directly with them when Pena-Wallace initiated direct and 

exclusive contact with Rivera in violation FEC’s “no-contact” regulation and many 

other applicable regulations. See 11 C.F.R. § 111.23 (FEC’s ‘no-contact’ 

regulation); 28 U.S.C. § 530B; 28 C.F.R. § 77.3; Fla. Bar R. 4-4.2; S.D. Fla. Local 

R. 11.l(c). FEC claims that Rivera’s response to FEC’s initial violation of the nocontact regulations constituted a waiver of FEC’s initial and subsequent violations. 

This argument is meritless because FEC was never authorized to contact Rivera 

directly in the first place. As the product of FEC’s illegal contact, Rivera’s response 

is akin to the fruit of the poisonous tree and cannot logically, reasonably, or fairly 

constitute a waiver of rights. FEC paused its investigation for three years before it 

suddenly decided to revive the administrative process in late-2016 shortly before the 

expiration of the statute of limitations in mid-2017. This self-induced time crunch 

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likely motivated FEC to skirt its own rules and bypass Collazo so that FEC could 

finish the process before its claims were time-barred. 

D. FEC’s amended complaint raised an entirely new “primary 

liability” theory that was not authorized by a vote of the 

Commissioners or asserted during its mandatory presuit 

procedures. 

“The FEC has ‘sole discretionary power’ to determine in the first instance 

whether or not a civil violation of the Act has occurred.” Hagelin v. FEC, 411 F.3d 

237, 267 (D.C. Cir. 2005) (citing FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27, 37 (1981)). As the FEC argued in Lieu v. FEC, 370 F. Supp. 3d 175 

(D.C. Dist. 2019), “[I]n the context of a decision to not enforce FECA, an agency 

engages in a complicated balance of factors particularly in the agency's expertise

including whether the agency is likely to succeed if it acts and whether the 

enforcement action best fits the agency's overall policy goals.” Lieu v. FEC, 370 F. 

Supp. 3d 175, 183 (D.C. Dist. 2019) (citing Heckler v. Chaney, 470 U.S. 821, 831 

(1985)). 

According to the FEC’s Enforcement Manual, “[T]he enforcement process 

contains several stages, and a matter cannot proceed to the next stage unless at least 

four Commissioners vote to proceed.” Office of the General Counsel for the Federal 

Election Commission, OGC Enforcement Manual 16 (June 2013). Among the five 

organizational units of the FEC’s Office of General Counsel: 

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The Enforcement Division recommends to the 

Commission appropriate action to take with respect to 

administrative complaints and apparent violations. Where 

authorized, the Enforcement Division investigates alleged 

violations of the Act and negotiates conciliation 

agreements, which may include civil penalties and other 

remedies. 

Office of the General Counsel for the Federal Election Commission, OGC 

Enforcement Manual 16 (June 2013).2 If conciliation is unsuccessful, General 

Counsel should “draft and circulate a [General Counsel’s Report] recommending 

that the Commission authorize [the Office of General Counsel] to file a civil suit.” 

Id. at 104. 

As the legal and factual issues have already been fully 

briefed, the suit authority report should be short but fully 

explain why OGC believes that filing suit is an appropriate 

use of the Commission’s resources. . . . If the Commission 

approves the recommendations, the attorney should 

inform the respondent that the Commission has authorized 

the Office of General Counsel to file a civil suit. . . . From 

this point forward, Litigation attorneys, not 

enforcement attorneys, communicate with the 

respondent or counsel. 

Id. Given the specialized roles and tasks assigned the various divisions at various 

stages of the enforcement process, it could not be “the intention of Congress that 

‘the Commission could attempt conciliation on one set of issues and having failed, 

litigate a different set.’” See EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 19 (2d 

 2. See https://www.fec.gov/resources/updates/agendas/2013/mtgdoc_13-

21.pdf. 

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Cir. 1981) (where “[n]o settlement proposals were made based upon the firing 

practices at the White Plains and Brooklyn stores, and Sears was given no notice

prior to the filing of th[e] suit that the Commission intended to single out practices 

at th[o]se two facilities”) (quoting EEOC v. E.I. DuPont De Nemours and Co., 373 

F. Supp. 1321, 1336 (D.Del. 1974), aff’d, 516 F.2d 1297 (3d Cir. 1975).). 

To date, FEC’s Commissioners have never voted in favor of a finding of 

“probable cause” that Rivera was the “source” or “contributor” of a false-name 

contribution (i.e., “primary liability”) and never attempted conciliation or voted to 

authorize a lawsuit on that basis. See [DE 172-5]. To the contrary, the 

Commissioners found probable cause, proposed conciliation, and authorized suit 

solely “in connection with assisting in the making of contributions” from “unknown

contributors” in the name of another (i.e., “secondary liability”). See [DE 171-6 at 

5-6, 8, 13; DE 171-7 at 1, 7-8] (emphasis added). FEC based its probable cause 

determination on the analysis and recommendation contained in its General 

Counsel’s Brief which recommended a finding of probable cause solely on the basis 

that Rivera “assisted” in making contributions in the name of another: 

. . . The evidence clearly establishes that Rivera knowingly and 

willfully assisted in the making of contributions in the name another. . 

. The facts indicate that during the 2012 Democratic primary, Rivera 

conspired to secretly fund Sternad’s primary campaign with 

$81,486.20 in funds from unknown contributors that were not 

disclosed on the Sternad Committee’s disclosure reports. . . . The Act 

prohibits a person from making a contribution in the name of another. 

Under Commission regulations, that prohibition extends to knowingly 

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helping or assisting “any person io making a contribution in the name 

of another,” The Commission has explained that the provisions 

addressing such a contribution apply to “those who initiate or instigate

or have some significant participation in a plan or scheme to make a 

contribution in the name of another.” The scheme in this case involved 

the making of direct and in-kind contributions to the Sternad 

Committee totaling $81,486.20. Although the Committee’s amended 

disclosure reports state that the sources of contributions are unknown, 

there is no dispute that Rivera assisted in the making of contributions 

in the name of another given that he orchestrated the scheme to 

secretly funnel contributions to Sternad's campaign that were initially 

falsely disclosed as personal loans from the candidate. The evidence 

shows that Rivera conceived of the scheme, enlisted Alliegro to help 

carry out the scheme, and directed Alliegro to perform certain tasks in 

furtherance of the scheme. . . . Based on the foregoing, the 

Commission’s investigation shows that Rivera knowingly assisted in 

making contributions in the name of another in violation of 52 U.S.C. 

§ 30122 and 11 C.F.R. § 110.4(b)(l)(iii).

See [DE 171-6 at 4-5, 12] (citations omitted, emphasis added). In both FEC’s 

probable cause brief and its original complaint, FEC accused Rivera solely of 

violating 52 U.S.C. § 30122 in conjunction with 11 CFR § 110.4(b)(1)(iii) which

purported to prohibit “helping or assisting” any person making a contribution in the 

name of another. The General Counsel’s Brief only cited subparagraph (iii) of 11 

C.F.R. § 110.4(b)(1) and not subparagraphs (i) or (ii). Subparagraphs (i) and (ii), 

respectively prohibit: (i) directly “making a contribution in the name of another” 

(i.e., being the “source” or “contributor” of the illegal contributions); and (ii) 

“knowingly permit[ting]” one’s “name to be used to effect that contribution.” 

Subparagraph (iii) purported to create secondary liability. 

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Shortly after FEC filed the original complaint against Rivera, the District of 

Utah Swallowed FEC’s secondary liability theory by enjoining FEC from enforcing 

11 CFR § 110.4(b)(1)(iii) and ordering the provision stricken from the Code of 

Federal Regulations. The Swallow court determined that FEC improperly expanded 

the scope of 52 U.S.C. § 30122 by creating in 11 CFR § 110.4(b)(1)(iii) a substantive 

violation for “helping an assisting” (i.e., aiding and abetting) someone in making a 

contribution in the name of another that Congress did not provide for in the language 

of § 30122. See FEC v. Swallow, 304 F. Supp. 3d 1113, 1115 (D. Utah 2018). 

FEC’s attorneys argue that they were free to amend its complaint to 

fundamentally shift FEC’s factual and legal positions from “secondary” to “primary” 

liability without a vote of the Commissioners authorizing suit based on a finding of 

probable cause that Rivera directly violated § 30122 by making a contribution in the 

name of another. FEC’s attorneys claim FEC didn’t need to give Rivera presuit 

notice or attempt conciliation based on its primary liability position. In its brief, FEC 

attempts to downplay the amendment to its complaint as merely “narrowing the 

case,” but the amendment did not merely drop an issue – it attempted to materially 

alter the allegations to replace its invalid secondary liability factual and legal 

position with a materially distinct primary liability position. In dismissing FEC’s 

original complaint, the district court rejected FEC’s argument that it asserted both 

primary and secondary liability in its original complaint. See [DE 31 at 4-5] 

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(“Swallow is fatal to the FEC’s claim against Rivera.”). If primary liability were part 

of the original complaint, the district court would not have dismissed FEC’s entire 

original complaint – it would have dismissed only to the extent the original 

complaint asserted a secondary liability claim and would have allowed FEC to 

proceed on FEC’s original complaint to the extent it asserted primary liability. 

 For Rivera to have violated 11 CFR 110.4(b)(1)(i) as alleged in the amended 

complaint, he would have had to have been a contributor. This was not alleged in 

the original complaint. Rather, the original complaint, para 1, accused Rivera of 

“engag[ing] in a scheme to secretly provide. . .” direct and in-kind contributions” 

and in para 37, “by making contributions in the name of another when he caused, 

directed, and assisted in the making of contributions . . .” In short, the original 

complaint skirted around the “contributor” issue, by alleging that Rivera aided and 

abetted (i.e., “helped and assisted”) in making a contribution in the name of another. 

The amended complaint departed from this theory by expressly alleging for the first 

time, in paragraphs 1, 13, 18, 24, 25, that Rivera was the actual contributor or source 

of the contributions -- a theory the Commissioners never considered, and without 

which Rivera could not be accused of violating 11 CFR § 110.4(b)(1)(i). 

In short, the factual and legal position approved by the Commissioners 

(“secondary liability”) has since been invalidated and repealed. The Commission 

never evaluated and voted on the central issue underlying the amended complaint 

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(“primary liability”). To date, the Commission has never considered or made any 

kind of determination as to whether Rivera was a contributor, and FEC has never 

attempted to conciliate with Rivera on that basis. 

II. FEC’s allegations against Rivera do not describe the kind of 

conduct prohibited by § 30122. 

Even if FEC had complied with the presuit requirements and demonstrated 

that Rivera was the “contributor” or “source” of the contributions in question, it 

nevertheless failed to state a cause of action for violation of § 30122 because Rivera 

was not Sternad’s campaign treasurer or an intermediary/conduit. As an alleged 

“source,” Rivera did not have a reporting requirement because FECA only creates 

reporting and disclosure requirements for campaign treasurers and 

intermediaries/conduits.3 FEC did not allege that Rivera personally affixed Sternad’s 

name to the alleged contributions. Rather, the allegations, at best, establish that 

Sternad violated the second and third prongs of § 30122 and the second and fourth 

prongs of 11 C.F.R. § 110.4(b) by “permitting his ... name to be used to effect such 

3. FECA “requires the treasurer of a political committee to report to 

[FEC] the name, address, occupation, and employer of donors giving more than $200 

in a single year.” Repub. Nat’l Comm. v. FEC, 76 F.3d 400, 403 (D.C. Cir. 1996) 

(emphasis added) (citing § 434(b)(3)(A) [now § 30104(b)(3)(A)]); 11 C.F.R. § 

104.14(d); 11 C.F.R. § 114.12. “The intermediary or conduit shall report the 

original source and the intended recipient of such contribution to the Commission 

and to the intended recipient.” 52 U.S.C. § 30116(a)(8) (emphasis added); Repub. 

Nat’l Comm., 76 F.3d at 403 (“Neither the Act nor any other law, however, requires 

donors to disclose this information.”) (emphasis added). 

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a contribution” and by “accept[ing] contribution[s] made by one person in the name 

of another.” FEC alleged that Sternad was “[f]ollowing instructions”4 from Rivera 

that were “conveyed by Alliegro” when Sternad falsely reported to FEC that the 

contributions were loans from Sternad’s personal funds. See [DE 41 at 6]. Sternad 

was the campaign treasurer and allegedly knew that either Alliegro or Rivera were 

the source of the contributions and that the contributions were not made from his 

personal funds. Alliegro was the alleged conduit/intermediary and allegedly knew 

that Rivera was the source of the contributions. Yet, neither Sternad nor Alliegro 

complied with their respective disclosure and reporting requirements. 

FEC may have been able to state a claim against Rivera for making excessive 

contributions or excessive cash contributions, but it did not assert such claims 

against Rivera – probably because it wanted to reach the 300-1000% super-penalty 

multiplier provision in § 30109(6) which only applies to knowing violations of § 

30122. But, the allegations against Rivera do not establish a violation of § 30122 

because: (1) Rivera (as an alleged “source”) had no reporting or disclosure 

requirement under FECA; and (2) FEC did not allege that Rivera personally affixed 

someone else’s name to his alleged contributions or otherwise misled the campaign 

4. See Swallow, 304 F. Supp. 1113 (quoting 54 Fed. Reg. at 34, 104-05 

(1989) (describing “helping and assisting” ad including “initiat[ing]” or 

“instigat[ing]” or having “some significant participation in a plan or scheme” or 

“soliciting” a “go-between”). 

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into falsely reporting the source of the contributions.5 FEC’s reliance on criminal 

cases is misplaced because those cases involved criminal conspiracy and aiding and 

abetting statutes (i.e., secondary liability statutes) which are not at issue in FEC’s 

civil claims against Rivera. They also predated Swallow which held that section 

30122 – by itself – does not provide civil liability for secondary liability. 

III. The district court entered summary judgment for FEC based 

on hearsay, non-record material, and conflicting evidence. 

FEC’s only evidence that Rivera instructed Sternard to report the 

contributions as loans comes from Alliegro’s grand jury testimony: 

Q. Now, when Mr. Sternard received the funds in 

Washington -- in the TD Bank of Justin Sternard for Congress in the 

Washington branches, how did he initially report that money? 

A. After speaking with David the only thing that I advised 

Mr. Sternard to do was to report it as a personal loan and then go ahead 

and amend it later, because David supposedly had another plan of how 

he was going to take care of all this. Apparently he didn't and I’m sitting 

here now. 

[DE 142-5 at 33-34]. 

Q. What happened in August that started causing you a great 

deal of concern about those Federal Election Campaign forms? 

5. See e.g., United States v. Curran, 20 F.3d 560, 567 (3d Cir. 1994); 

United States v. Whittemore, 776 F.3d 1074, 1080 (9th Cir. 2015); United States v.

Hsia, 24 F. Supp. 2d 33, 59 (D.D.C. 1998); United States v. O’Donnell, 608 F.3d 

546, 554 (9th Cir. 2010). “There is nothing in the language of [§ 30116(a)(8)] to 

indicate that the provision was directed at the disclosure concerns of [§ 30122].” 

O’Donnell, 608 F.3d at 554 (“[Section 30116(a)(8)] does not place reporting 

obligations on the original source”) (emphasis added). 

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A. The Miami Herald picked up the information on the flyers, 

they actually went to the mail house, they spoke to Mr. Borrero, I 

believe, they started an investigation. It became a topic of great concern 

at that point and then it became a rush to do this first false report that 

we did saying it was a loan. Rivera thought if we did this and called it 

a loan the media would get off of it and it would all go away, that did 

not happen. 

Q. Did you file -- did you participate with Justin Sternard in 

filing a disclosure form, Federal Election Commission Disclosure form 

that was false concerning where the source of the those funds came? 

A. Yes, I did. 

[DE 142-5 at 34-35]. Nowhere in this testimony does Alliegro say that Rivera 

instructed her to have Sternard falsely report the contributions as loans. Alliegro 

testified that she gave Sternard that instruction. 

Perhaps a factfinder (not on summary judgment) could infer that Alliegro gave 

Sternad that instruction because of her conversation with Rivera, but there is no 

evidence that Rivera gave Alliegro an edict to deliver to Sternard. This equally 

plausible inference is partially corroborated by Sternard’s deposition testimony. See

[DE 142-8 at 8-9, 11-16, 19-20] (“She directed me” and “I did what she directed.”): 

Q. Okay. Why did you put on there that said loan to my campaign? 

A. That's what I was directed to do. 

Q. Directed by Ms. Alliegro? 

A. Yes. 

[DE 142-8 at 51]. 

Q. Okay. At no time did Ms. Alliegro tell you that David Rivera wanted 

you to put on there that it was a loan contribution; is that correct? 

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17 

MS. WARD: Objection; vague. 

THE WITNESS: I do not recall. 

BY MR. KAHN: Q. Okay. So as you sit here today, all you know is 

that Ms. Alliegro told you to make your amendment to your FEC report, 

represent that it was a campaign loan from you? 

A. I did what she directed. 

[DE 142-8 at 69-70]. Thus, from Alliegro’s testimony, the idea of instructing 

Sternard to report the contributions as loans could have been her decision as much 

as Rivera’s. There is no evidence that she did this because David gave her that 

instruction – particularly in light of the statements in her subsequent declaration and 

Bar complaint against AUSA Mulvihill. Because this was FEC’s best evidence on 

this point, summary judgment was improper. 

IV. Section 30109(a)(6)(C)’s 300–1000% enhanced civil penalty 

is unconstitutionally vague and excessive. 

On this point, FEC’s arguments do not merit a detailed response other than to 

refer the Court back to the arguments contained in Rivera’s principal brief, 

particularly the observation that no other statute facially imposes a civil penalty with 

a mandatory minimum of 300% (cf. statutes and precedent on per-se excessive 

punitive damages awards) up to a maximum of 1000% of the amount of the alleged 

illegal contributions. Thus, the cases cited by FEC referring to a presumption of 

constitutionality for civil penalties falling within a statutory range created by 

Congress are inapplicable here because they do not involve statutes providing for a 

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18 

standardless and obviously excessive range like the one provided in section 

30109(a)(6)(C). Consistent with prior decisions striking down several other 

provisions of the 2002 FECA amendments as unconstitutional, this Court should 

strike section 30109(a)(6)(C). 

V. The district court’s $465,000 civil penalty is an 

unconstitutional excessive fine under the Eighth 

Amendment. 

On this point, FEC’s arguments merely regurgitate the district court’s 

rationale which Rivera thoroughly address in his principal brief. Accordingly, it is 

unnecessary to provide a reply other than to refer the Court back to the arguments 

contained in Rivera’s principal brief. 

CONCLUSION 

For the foregoing reasons, this Court should reverse and remand for entry of 

dismissal or final summary judgment in Rivera’s favor because FEC failed to comply 

with the jurisdictional presuit requirements under FECA § 30109(a)(4) and has 

neither alleged nor presented any evidence that Rivera violated FECA § 30122. 

Alternatively, the Court should reverse and remand for trial because the summary 

judgment evidence was inconclusive and precluded summary judgment for FEC. 

Lastly, the Court should reverse the $465,000 civil penalty as an unconstitutional 

excessive fine under the Eighth Amendment and because section 30109(a)(6)(C)’s 

300–1000% civil penalty provision is unconstitutionally vague and excessive.

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19 

CERTIFICATE OF COMPLIANCE 

This document complies with the type-volume limit of FRAP 32(a)(7)(B) 

because, excluding the parts of the document exempted by FRAP 32(f), this 

document contains 4658 words. This document complies with the typeface 

requirements of FRAP 32(a)(5) and the type-style requirements of FRAP 32(a)(6) 

because this document has been prepared in a proportionally spaced typeface using 

Microsoft® Word for Microsoft 365 MSO (Version 2304 Build 16.0.16327.20200) 

64-bit in 14-point font and Times New Roman type style. 

/s/ Thomas L. Hunker 

Thomas L. Hunker 

Dated: October 6, 2023

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on October 6, 2023, a copy of this document was 

furnished by electronic filing with the Clerk of the Court via CM/ECF, to: 

Respectfully submitted, 

Kevin Deeley, Greg J. Mueller, Lisa J. Stevenson, 

Harry J. Summers, and Shaina Ward 

FEDERAL ELECTION COMMISSION

1050 First Street, NE, Washington, DC 20463 

202-694-1650; 202-694-1553; 202-694-1566 

gmueller@fec.gov; kdeeley@fec.gov; lstevenson@fec.gov; 

hsummers@fec.gov;sward@fec.gov 

/s/ Jeffrey David Feldman

Jeffrey David Feldman 

/s/ Thomas L. Hunker 

Thomas L. Hunker

USCA11 Case: 22-11437 Document: 60 Date Filed: 10/10/2023 Page: 24 of 25
20 

Fla. Bar No. 330302 

TRAILBLAZER

1200 Brickell Avenue 

Penthouse 1900 

Miami, FL 33131 

305-222-7851 

jfeldman@trailblazerlaw.com 

Fla. Bar No. 38325 

V. Ashley Paxton 

Fla. Bar No. 1003907 

HUNKER PAXTON APPEALS & TRIALS

1 EAST BROWARD BLVD, SUITE 700 

Fort Lauderdale, FL 33301 

877-841-8808 

thomas.hunker@hunkerappeals.com 

ashley.paxton@hunkerappeals.com 

jodi.kain@hunkerappeals.com 

tamara.mihajlovic@hunkerappeals.com

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