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 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 26.1-3, I certify that the following are trial 

judge(s), attorneys, persons, associations of persons, firms, partnerships, or 

corporations that have/had an interest in the outcome of this appeal: 

 Cannon, Aileen M. – United States District Court Judge 

 Cooke, Marcia J. (deceased) – United States District Court Judge 

 Deeley, Kevin – Counsel for FEC 

 Federal Election Commission (“FEC”) – Plaintiff-Appellee 

 Feldman, Jeffrey D. – Counsel for Rivera 

 Goodman, Jonathan – United States Magistrate Judge 

 Hafeez, Sarah – Counsel for Rivera (withdrawn) 

 Hunker, Thomas L. – Counsel for Rivera 

 Hunker Paxton Appeals & Trials – Counsel for Rivera 

 Kahn, Roy J. – Counsel for Rivera (withdrawn) 

 Mueller, Greg J. – Counsel for FEC 

 Paxton, V. Ashley – Counsel for Rivera 

 Rivera, David (“Rivera”) – Defendant-Appellant 

 Siler, Jacob S. – Counsel for FEC (withdrawn) 

 Stevenson, Lisa J. – Counsel for FEC 

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 Summers, Harry J. – Counsel for FEC 

 Trailblazer – Counsel for Rivera 

 Ward, Shaina – Counsel for FEC 

Dated: June 14, 2023 

 Respectfully submitted, 

 /s/ Virginia Ashley Paxton

 Virginia Ashley Paxton 

 Counsel for Appellant 

 

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i 

STATEMENT REGARDING ORAL ARGUMENT 

 Rivera requests oral argument to the extent it will assist the Court in resolving 

the issues presented in this appeal concerning the interpretation, application, and 

constitutionality of the Federal Election Campaign Act (FECA). Rivera requests a 

total of twenty minutes to present his argument. 

 

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TABLE OF CONTENTS 

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

Statement Regarding Oral Argument.......................................................i 

Table of Contents..............................................................................ii 

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

Jurisdictional Statement......................................................................1 

Statement of the Issues........................................................................2 

Statement of the Case.........................................................................3 

The Federal Election Campaign Act (FECA)......................................5 

The Federal Election Commission (FEC).........................................10 

The 2012 Election....................................................................13 

FEC’s Presuit Investigation.........................................................15 

FEC’s Original Complaint..........................................................21 

FEC’s Amended Complaint.........................................................23 

Cross-Motions for Summary Judgment...........................................25 

Rivera’s Motion to Dismiss for Lack of Subject Matter Jurisdiction.........28 

Rivera’s Post-Judgment Motion...................................................29 

Summary of the Argument..................................................................31 

 

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Argument....................................................................................33 

I. The trial court lacked subject matter jurisdiction because FEC 

did not establish that it was unable -- prior to litigation -- to 

correct or prevent a violation of § 30122 based on the “primary 

liability” theory asserted in its amended complaint..............33 

A. FEC’s presuit notices, probable cause determination, and 

attempts at conciliation were based on the invalid 

“secondary liability” theory asserted in its original 

complaint......................................................34 

B. FEC illegally contacted, communicated, attempted to 

conciliate directly with Rivera rather than his designated 

counsel..........................................................36 

II. FEC failed to state a cause of action because it alleged that Rivera 

“made” the contributions in his own name to the Sternad 

campaign and § 30122 has nothing to do with making false 

reports to FEC.........................................................38 

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

hearsay, non-record material, and conflicting evidence.........42 

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

unconstitutionally vague and excessive...........................44 

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

excessive fine under the Eighth Amendment.............................48 

Conclusion....................................................................................53 

Certificate of Compliance..................................................................53 

Certificate of Service........................................................................54 

 

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TABLE OF CITATIONS 

FEC Cases 

Campaign Legal Ctr. v. FEC, 

31 F.4th 781 (D.C. Cir. 2022).............................................5 n.3, 6 n.8 

Cao v. FEC, 

688 F. Supp. 2d 498 (E.D. La. 2010)....................................5 n.6, 6 n.7 

FEC v. Friends of Jane Harman, 

59 F. Supp. 2d 1046 (C.D. Cal. 1999)..............................................44 

FEC v. Kalogianis, 

No. 8:06-cv-68-T-23EAJ, 2007 U.S. Dist. LEXIS 88139 

(M.D. Fla. Nov. 30, 2007)................................................44, 51 n.34 

FEC v. NRA, 

553 F. Supp. 1331 (D.D.C. 1983)...................................................1 

* FEC v. Swallow, 

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

FEC v. Ted Cruz for Senate, 

142 S. Ct. 1638 (2022).............................................50 n.32, 51 n.33 

FEC v. Toledano, 

317 F.3d 939 (9th Cir. 2002).................................................36 n.26 

McCutcheon v. FEC, 

572 U.S. 185 (2014).................................................................50 n.32 

RNC v. FEC, 

76 F.3d 400 (D.C. Cir. 1996)..................................7 n.11-12, 8 n.13, 39 

RNC v. FEC, 

619 F.3d 410 (5th Cir. 2010)....................................................6 n.7 

Wagner v. FEC, 

717 F.3d 1007 (D.C. Cir. 2013)......................................................1 

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DOJ Cases 

Fieger v. United States AG, 

542 F.3d 1111 (6th Cir. 2008)....................................................10 

 

* United States v. Curran, 

20 F.3d 560 (3d Cir. 1994).........................................5, 38, 42, 7 n.12 

United States v. Hsia, 

24 F. Supp. 2d 33 (D.D.C. 1998)......................................7 n.12, 8 n.14 

United States v. Hsu, 

669 F.3d 112 (2d Cir. 2012)...................................................7 n.13 

United States v. O’Donnell, 

608 F.3d 546 (9th Cir. 2010).................................................8 and n.15, 49 

United States v. Trie, 

21 F. Supp. 2d 7 (D.D.C. 1998)....................................................39 

United States v. Whittemore, 

776 F.3d 1074 (9th Cir. 2015)........................................................8 n.14 

Other Cases 

Arizona Right to Life PAC v. Bayless, 

320 F.3d 1002 (9th Cir. 2003).................................................51 n.33 

Bedoya v. Aventura Limousine & Transp. Serv., Inc., 

861 F. Supp. 2d 1346 (S.D. Fla. 2012)...........................................38 

Boos v. Barry, 

485 U.S. 312 (1988)............................................................51 n.33 

Buckley v. Valeo, 

424 U.S. 1 (1976)..............................................................51 n.33 

Gonzales v. Madigan, 

990 F.3d 561 (7th Cir. 2021)..................................................51 n.35 

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Jones v. Markiewicz-Qualkinbush, 

892 F.3d 935 (7th Cir. 2018)..................................................52 n.36

Manley v. Law, 

889 F. 3d 885 (7th Cir. 2018)................................................52 n.36 

Newsom v. Golden, 

602 F. Supp. 3d 1073 (M.D. Tenn. 2022).........................................52 

Raila v. Cook Cnty. Officers Electoral Bd., 

No. 19 C 7580, 2021 U.S. Dist. LEXIS 215458 

(N.D. Ill. Nov. 8, 2021).......................................................52 n.36 

Reardon v. Danley, 

No. 21-CV-2260, 2022 U.S. Dist. LEXIS 144883 

(C.D. Ill. July 6, 2022)........................................................52 n.36 

Shrink Mo. Gov’t PAC v. Maupin, 

892 F. Supp. 1246 (E.D. Mo. 1995).........................................51 n.33

Wisconsin Right to Life State PAC v. Barland, 

664 F.3d 139 (7th Cir. 2011).................................................50 n.32

Statutes 

* 2 U.S.C. § 431 [52 U.S.C. § 30101]...............................................3, 5-6 

2 U.S.C. § 434 [52 U.S.C. § 30104]..........................6 n.8-10, 7 n.11, 40, 42 

2 U.S.C. § 437d [52 U.S.C. § 30107]...................................................10 

* 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 

2 U.S.C. § 441g [52 U.S.C. § 30123]................................................6, 40 

2 U.S.C. § 455 [52 U.S.C. § 30145].............................................36 n.26 

18 U.S.C. § 2............................................................................passim 

18 U.S.C. § 371.................................................................15, 38, 40, 42 

18 U.S.C. § 1001................................................................15, 38-40, 42 

18 U.S.C. § 3282.......................................................................36 n.26 

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28 U.S.C. § 530B.............................................................................37 

28 U.S.C. § 1291..............................................................................1 

28 U.S.C. § 1331..............................................................................1 

28 U.S.C. § 2462......................................................................36 n.26 

* 52 U.S.C. § 30101 [2 U.S.C. § 431].................................................3, 5-6 

52 U.S.C. § 30104 [2 U.S.C. § 434]............................6 n.8-10, 7 n.11, 40, 42 

52 U.S.C. § 30107 [2 U.S.C. § 437d]....................................................10 

* 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

52 U.S.C. § 30123 [2 U.S.C. § 441g]................................................6, 40 

52 U.S.C. § 30145 [2 U.S.C. § 455]................................................36 n.26 

Pub. L. 107-155, 116 Stat. 81 (2002)...........................................13, 46 n.28 

H.R. 8528, 117th Cong. § 354 (2022)................................................10, 41 

Regulations

11 C.F.R. § 104.3........................................................................6 n.8 

11 C.F.R. § 104.13......................................................................6 n.10 

11 C.F.R. § 104.14.......................................................................7 n.11 

11 C.F.R. § 109.20.................................................................6 n.7, n.10 

11 C.F.R. § 109.21.................................................................6 n.7, n.10 

11 C.F.R. § 109.23........................................................................6 n.7 

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

* 11 C.F.R. § 111.23..................................................................11, 36-37 

* 11 C.F.R. § 111.24..................................................................13, 22, 40 

11 C.F.R. § 114.12.......................................................................7 n.11 

28 C.F.R. 77.3................................................................................37 

43 Fed. Reg. 5441 (1978)..................................................................12 

54 Fed. Reg. 34098 (1989)..................................................................21 

79 Fed. Reg. 77841 (2014)...............................................................3 n.1 

88 Fed. Reg. 24986 (2023).................................................................12 

88 Fed. Reg. 33816 (2023)............................................................10, 12 

 

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FEC Office of General Counsel, 

(OGC) Enforcement Manual (June 2013).........................................11 

Office of the Law Revision Counsel, 

United States Code: Editorial Reclassification Table.................................3 n.1

Rules 

Fla. Bar R. 4-4.2..............................................................................37 

S.D. Fla. Local R. 11.1......................................................................38 

FRAP 4.........................................................................................1

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JURISDICTIONAL STATEMENT 

This Court has appellate jurisdiction to review the district court’s final 

summary judgment in favor of FEC on its FECA claims. See [DE 48]; [DE 176]; 

[DE 163]; [DE 177]; [DE 191]; FRAP 4(a)(iv), (vi); 28 U.S.C. § 1291; 28 U.S.C. § 

1331. This Court has also appellate jurisdiction to reverse the orders entered by the 

district court and remand for entry of an order dismissing the case for lack of subject 

matter jurisdiction. See 52 U.S.C. § 30109(a)(6); [DE 1 at 9]; [DE 32-1 at 9]; [DE 

41 at 9]; Wagner v. FEC, 717 F.3d 1007, 1016-1017 (2013); see also FEC v. NRA, 

553 F. Supp. 1331, 1341 n.3 (D.D.C. 1983). 

 

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STATEMENT OF THE ISSUES 

I. Whether FEC established that it was unable to correct or 

prevent a violation of § 30122 based on a “primary liability” 

theory prior to litigation. 

II. Whether FEC failed to state a cause of action because it 

alleged that Rivera “made” the contributions in his own name 

to the Sternad campaign and § 30122 has nothing to do with 

making false reports to FEC. 

III. Whether the district court erred in entering summary 

judgment for FEC based on hearsay, non-record material, and 

conflicting evidence.

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

unconstitutionally vague and excessive. 

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

unconstitutional excessive fine under the Eighth Amendment. 

 

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STATEMENT OF THE CASE 

In this FECA1 civil enforcement action, the district court granted FEC’s 

motion for final summary judgment, including its request for a declaratory judgment, 

a permanent injunction, and a record-breaking2 $456,000 civil penalty, based on a 

finding that former U.S. Congressman David Rivera made campaign contributions 

“in the name of another person” in violation of FECA § 30122. See [DE 163]. The 

court found that Rivera violated FECA § 30122 by: (1) directing cash payments to 

vendors to produce and distribute materials for Justin Lamar Sternad’s Democratic 

primary campaign; and (2) directing political consultant Ana Alliegro to direct 

Sternad to falsely report to the FEC that the vendor payments were made with loans 

from his personal funds to his campaign. See [DE 163]. The court also found that 

FEC complied with its jurisdictional presuit requirements under FECA § 30109 [DE 

176] and denied Rivera’s post-judgment motion challenging: (1) section 

30109(a)(6)(C) as unconstitutionally vague and excessive; and (1) the $456,000 civil 

penalty as a punitive excessive fine in violation of the Eighth Amendment [DE 191]. 

1. The Federal Election Campaign Act of 1971, as amended, 52 U.S.C. §§ 

30101-45 (formerly 2 U.S.C. §§ 431-455) (“FECA”). On September 1, 2014, the 

provisions of FECA were transferred from Title 2 of the United States Code to new 

Title 52. See 79 Fed. Reg. 77841, 77842 (2014); Editorial Reclassification Table. 

2. According to FEC’s website, the civil penalty imposed on Rivera was 

the largest civil penalty FEC has ever imposed on a non-corporate individual. 

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Rivera seeks reversal and remand for entry of dismissal because FEC alleged 

that Rivera “made” the contributions in his own name to the Sternad campaign, 

and FECA § 30122 has nothing to do with reporting to FEC. Further, FEC failed to 

establish compliance with the jurisdictional presuit requirements of FECA § 30109 

because: (1) it sent presuit notices, made a probable cause determination, and 

attempted conciliation based on an invalid “secondary liability” theory that the 

district court rejected rather than the “primary liability” theory asserted in its staff 

attorneys’ unauthorized amended complaint; and (2) it illegally contacted, 

communicated, attempted to conciliate directly with Rivera rather than his 

designated counsel in violation of FEC’s no-contact rule, district court rules, DOJ 

rules, and Florida Bar rules. Alternatively, Rivera seeks reversal and remand for trial 

because the district court entered summary judgment based on hearsay, non-record 

material, and conflicting evidence. Lastly, Rivera seeks reversal of the civil penalty 

because section 30109(a)(6)(C) as unconstitutionally vague and excessive on its 

face, and the $456,000 civil penalty as a punitive excessive fine in violation of the 

Eighth Amendment.

 

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The Federal Election Campaign Act (FECA) 

“Before 1972, federal campaign contributions were regulated by certain 

sections of Title 18 of the United States Code[.]” United States v. Curran, 20 F.3d 

560, 564 (3d Cir. 1994). “Early that year, however, Congress enacted a 

comprehensive statute entitled the Federal Election Campaign Act of 1971 [FECA.]” 

See id. “The Act placed limits on the amount of money a person is allowed to 

contribute to a candidate for federal office” and “impose[d] comprehensive 

disclosure requirements.”3 “In 1974, Congress created the Federal Election 

Commission (‘FEC’ or ‘the Commission’) as an independent agency to civilly 

enforce FECA’s monetary limits and disclosure requirements.”4 

In 2012, FECA limited individuals to an aggregate of $2000 (or $2500 

indexed to inflation) in contributions per candidate per election.5 “The Act’s 

contribution limits apply both to direct contributions of money and in-kind 

contributions of goods or services.”6 “[A]ll contributions made by a person, either 

3. FEC v. Swallow, 304 F. Supp. 3d 1113, 1114 (D. Utah 2018); 

Campaign Legal Ctr. v. FEC, 31 F.4th 781, 784-85 (D.C. Cir. 2022); 52 U.S.C. § 

30116. 

4. Swallow, 304 F. Supp. 3d at 1115. 

5. See 52 U.S.C. § 30116(a)(1)(A), (f); 74 Fed. Reg. 31345 (2009). 

6. Cao v. FEC, 688 F. Supp. 2d 498, 510 (E.D. La. 2010) (citing § 

431(8)(A) [§ 30101(8)(A)]). 

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directly or indirectly, on behalf of a particular candidate, including contributions 

which are in any way earmarked or otherwise directed through an intermediary or 

conduit to such candidate [are] treated as contributions from such person to such 

candidate.” § 30116(a)(8). “Expenditures made in coordination with a candidate or 

her campaign are considered in-kind contributions to the candidate.”7 FECA also 

limits cash contributions to $100 per candidate per election. See § 30123. “Political 

committees are required to publicly report all expenditures over $200.”8 “In addition, 

they must report contributions — in-kind, coordinated, or otherwise — made to any 

candidate.”9 “A candidate’s ‘authorized committee,’ . . . must disclose all in-kind, 

coordinated contributions it receives as both contributions and expenditures, because 

these donations function as resources spent by the campaign in furtherance of the 

election of the candidate.”10 FECA “requires the treasurer of a political committee 

7. See Cao, 688 F. Supp. 2d at 510 (citing § 441a(a)(7)(B) [§ 

30116(a)(7)(B)]); 11 C.F.R. §§ 109.20(b); 109.21; 109.23; Repub. Nat’l Comm. v. 

FEC, 619 F.3d 410, 416 (5th Cir. 2010) (“[P]rearranged or coordinated expenditures 

are constitutionally equivalent to contributions”); see also Goland v. United States, 

903 F.2d 1247, 1251 (9th Cir. 1990) (“Contributions include payment for goods and 

services, including media advertisements”). 

8. Campaign Legal Ctr., 31 F.4th at 784-85 (citing § 30104(b)(5)(A); 11 

C.F.R. § 104.3(b)(3), (4)). 

9. Id. (citing § 30104(b)(4)(H)(i), (6)(B)(i), (iii)). 

10. Id. (citing §§ 30101(6), 30104(b); 11 C.F.R. §§ 104.13(a), 109.20(b), 

109.21(b)). 

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to report to [FEC] the name, address, occupation, and employer of donors giving 

more than $200 in a single year.”11 “While political committees must exert best 

efforts to identify individual contributors from whom they receive contributions, the 

contributors themselves have no duty to disclose any identifying information to 

the political committees, including even their name.”12

Further, FECA creates enhanced civil and criminal liability for three discrete 

types of “campaign finance fraud.”13 Specifically, § 30122 [§ 441f] states: 

No person shall [1] make a contribution in the name of another 

person or [2] knowingly permit his name to be used to effect such a 

contribution, and no person shall [3] knowingly accept a contribution 

made by one person in the name of another person.”. 

Id. (emphasis added). The two most common forms of such contributions are: (1) 

“false name” contributions; and (2) “conduit” (a/k/a “intermediary” a/k/a “straw 

donor”) contributions. “A false name contribution occurs when a person contributes 

to a candidate but falsely attributes another person as the source of the contribution.” 

11. 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. 

12. United States v. Hsia, 24 F. Supp. 2d 33, 59 (D.D.C. 1998) (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); United 

States v. Curran, 20 F.3d 560, 567 (3d Cir. 1994) 

13. United States v. Hsu, 669 F.3d 112, 113 (2d Cir. 2012). 

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Swallow, 304 F. Supp. 3d at 1115; United States v. O’Donnell, 608 F.3d 546, 549 

(9th Cir. 2010). “A conduit contribution reaches the same result when a person 

provides funds to another person (the conduit) who contributes the funds to the 

candidate. Id. “The status of the donated funds under state property law, at the time 

of their donation, [is] irrelevant to a determination of who ‘made’ the contribution . 

. . The key issue under [§ 30122] is the source of the funds[.]”14 “The intermediary 

or conduit shall report the original source and the intended recipient of such 

contribution to the Commission and to the intended recipient.” § 30116(a)(8). 

(emphasis added). “There is nothing in the language of [§ 30116(a)(8)] to indicate 

that the provision was directed at the disclosure concerns of [§ 30122].”15 

“In 1989, [FEC] decided to add a new regulation which for the first time 

declared that ‘no person shall knowingly help or assist any person in making a 

contribution in the name of another.” Swallow, 304 F. Supp. 3d at 1115 (emphasis 

in original): 

(1) No person shall — 

(i) Make a contribution in the name of another; 

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

24 F. Supp. 2d at 60. 

15. O’Donnell, 608 F.3d at 554 (emphasis added) (“Although [§ 

30116(a)(8)] does not place reporting obligations on the original source, that source 

could violate [§ 30116(a)(1)(A)] by exceeding the individual contribution limit.”). 

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(ii) Knowingly permit his or her name to be used to effect that 

contribution; 

(iii) Knowingly help or assist any person in making a 

contribution in the name of another; or 

(iv) Knowingly accept a contribution made by one person in the 

name of another. 

11 C.F.R. § 110.4(b) (emphasis added). “In its ‘interpretive guidance’ for the new 

regulation, [FEC] explained that it applies 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, including those who solicit or act as go-betweens to third parties 

whose donations are reimbursed.” Swallow, 304 F. Supp. 1113 (quoting 54 Fed. Reg. 

at 34, 104-05 (1989)) (emphasis added). “Thus, for the first time, secondary actors, 

what the criminal law calls ‘aiders and abettors,’ and what the new regulation calls 

‘helpers and assisters,’ were brought into the realm of persons who face civil 

liability under FECA.” Id. (emphasis added). 

In 2018, the Utah District Court, in FEC v. Swallow, 304 F. Supp. 1113 (D. 

Utah 2018), enjoined FEC from enforcing the “helpers and assisters” regulation and 

ordered FEC to strike it from the Code of Federal Regulations as improperly 

expanding the scope of § 30122. The court reasoned that “FECA had no authority to 

write a regulation that went beyond the Act itself.” Id. The court also noted “that 

section 30122 already includes, in addition to civil penalties, the possibility of 

criminal felony charges.” Id. “In contrast to the civil penalties under section 30122, 

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in a section 30122 criminal case, secondary actors—those who aid and abet the 

person who illegally makes a contribution in the name of another . . . are subject to 

criminal liability.” Id. “This is because the United States criminal code, 18 U.S.C. 

§ 2, specifically makes such secondary actors ‘punishable as a principal.’ ” Id.

(emphasis added). 

In 2022, some representatives of Congress proposed a bill to add secondary 

liability language to § 30122, but the bill never made it out of committee. See 117 

H.R. 8528, 117th Cong. § 354 (2022) (proposing to amend § 30122 to add: “No 

person shall knowingly direct, help, or assist any person in making a contribution 

in the name of another person.”) (emphasis added). 

On May 25, 2023, FEC repealed 11 C.F.R. § 110.4(b)(1)(iii). See 88 Fed. Reg. 

33816 (2023) (“The Commission is removing the regulatory prohibition on 

knowingly helping or assisting any person in making a contribution in the name of 

another . . . to implement . . . Swallow, which enjoined the Commission from 

enforcing the provision and ordered the Commission to strike it from the [C.F.R.].”

The Federal Election Commission (FEC) 

“FEC has exclusive jurisdiction with respect to the civil enforcement of the 

Act.” Fieger v. United States AG, 542 F.3d 1111, 1114 (6th Cir. 2008); 52 U.S.C. § 

30107(e). “In exercising its civil enforcement power, the FEC may issue subpoenas, 

administer oaths, render advisory opinions regarding compliance with the Act, and 

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litigate civil actions through its general counsel.” Id. “[T]he enforcement process 

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

four Commissioners vote to proceed.” See OGC Enforcement Manual at 16 (June 

2013). If FEC receives a complaint or ascertains information in the normal course 

of carrying out its supervisory responsibilities and determines by vote that it has 

“reason to believe” that a person has violated FECA, FEC must “notify” the person 

of the alleged violation and the “factual basis” and must investigate the alleged 

violation. § 30109(a)(2). The first notice “includes a designation of counsel (DOC) 

form on which respondents may identify the counsel representing them in the matter. 

See OGC Enforcement Manual at 11. “Once a respondent designates counsel, 

Enforcement attorneys and staff should communicate only with that counsel.” Id.

“Upon receipt of a letter of representation, [FEC] shall have no contact with 

respondent except through designated counsel unless authorized in writing by 

respondent.” 11 C.F.R. § 111.23 (emphasis added). 

FEC is also required to notify the respondent of any recommendation from its 

General Counsel to the Commission to find probable cause to believe that a violation 

occurred. The notice must be accompanied by General Counsel’s Brief analyzing 

the legal and factual issues of the case. § 30109(a)(3). The respondent then has 15 

days to submit a reply brief stating the respondent’s factual and legal position. Id. If 

FEC determines by vote of 4 of its members that there is probable cause to believe 

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that a person has violated FECA, FEC is required to attempt, for a period of at least 

30 days but not more than 90 days, to correct or prevent such violation by informal 

methods of conference, conciliation, and persuasion, and to enter into a conciliation 

agreement with any person involved. § 30109(a)(4). FEC may enter into a 

conciliation agreement with the respondent based on a vote of 4 of its members. Id.

A conciliation agreement, unless violated, is a complete bar to any further action by 

FEC, including the bringing of a civil proceeding. Id. If FEC believes that a FECA 

violation has been committed, the conciliation agreement may require the person to 

pay a civil penalty. § 30109(a)(5). 

“FEC and Attorney General retain concurrent jurisdiction to investigate 

criminal matters.” Bialek v. Mukasey, 529 F.3d 1267, 1271 (10th Cir. 2008). “If 

[FEC] by vote of 4 of its members finds probable cause to believe that a knowing 

and willful violation of [FECA] has occurred or is about to occur, it may refer [the 

matter] to the Attorney General,” 52 U.S.C. § 30109(a)(5)(C), “without regard to 

any limitations set forth in the paragraph regarding conciliation agreements.” 

Marcus v. Holder, 574 F.3d 1182, 1185 (9th Cir. 2009). “[A]fter reporting a matter 

to the Justice Department,” FEC may “continue to pursue its own civil investigation 

of the matter.” Spannaus v. Fed. Election Com., 641 F. Supp. 1520, 1532 (S.D.N.Y. 

1986); see also Memorandum of Understanding Between DOJ and FEC, 43 Fed. 

Reg. 5441 (1978), superseded at 88 Fed. Reg. 24986, 24987 (2023). 

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If FEC is unable to correct or prevent any FECA violation by informal 

methods, it may—by vote of 4 of its members—institute a civil action for injunctive 

or other relief, including civil penalties. § 30109(a)(6). Generally, the maximum

civil penalty is the greater of $5,000 or the amount of the illegal contribution. § 

30109(a)(6)(A). Where the violation was “knowing and willful,” the maximum civil 

penalty is the greater of $10,000 or double the amount of the illegal contribution. § 

30109(a)(6)(C); 11 C.F.R. § 111.24. FECA also provides criminal penalties for 

“knowing and willful” violations that involve “the making, receiving, or reporting 

of any contribution, donation, or expenditure.” § 30109(d). 

In 2002, Congress added a penalty enhancement specifically for “knowing 

and willful” violations of § 30122. See Pub. L. No. 107-155, 116 Stat. 81 (2002). 

For such violations, the 2002 amendments created a mandatory minimum civil 

penalty of triple (300%) and a maximum civil penalty of the greater of $50,000 or 

ten times (1000%) the amount of the illegal contribution. See § 30109(a)(6)(C). The 

Act also provides for an identical 300–1000% criminal fine for “knowing and 

willful” violations of § 30122. See § 30109(d)(1)(D). It also provides for 

imprisonment up to 5 years for § 30122 violations depending upon the amount of 

the aggregate illegal contributions. See § 30109(d)(1)(A), (D).

 

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The 2012 Election 

 In October 2011, Sternad filed forms with FEC declaring himself a candidate 

for the newly redrawn 26th Congressional District (“District 26”).16 In April 2012, 

political consultant Ana Alliegro contacted Sternad and offered financial and 

strategic support.”17 Sternad agreed, and Alliegro swung into action, giving him a 

cell phone, renting him a car, and directing all aspects of his campaign strategy, 

including selecting and paying vendors for print advertising and bulk mailing 

services for the campaign. In short, Alliegro “was calling the shots [f]or [Sternad’s] 

campaign,” including selecting and changing drop dates for mailing Sternad’s 

demographically targeted campaign advertisements.18 

 In August 2012, after Sternad’s mass mailings went out, a reporter from the 

Miami Herald contacted Sternad and asked how he financed the mass mailings and 

why Sternad as “treasurer of record” for his campaign did not disclose the vendor 

payments on his FEC reports. [DE 142-8 at 18]. The Miami Herald also began 

reporting on Sternad’s apparent campaign-finance violations and suggesting that 

Rivera was involved. [DE 171-5 at 5-6, 9-10]. After speaking to Alliegro, Sternad 

16. [DE 140-4 at 2; 142-8 at 6-7, 142-28 at 14]. 

17. [DE 140-1 at 11; 142-8 at 3, 9, 142-28 at 16-17]. 

18. [DE 142-28 at 20, 32-33; 142-32 at 19-20]. 

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amended his FEC reports and falsely reported that he made loans from his personal 

funds to pay the vendors.19 On August 14, 2012, the Democratic primary was held, 

and Sternad lost to Garcia who went on to defeat Rivera in the general election. [DE 

171-5 at 5 and n.5; 172-1 at 34]. 

FEC’s Presuit Investigation 

In October 2012, FEC received a complaint that Sternad violated the Act from 

Roland Sanchez-Medina, who was a high school and law school classmate of Garcia 

and also a plaintiff in litigation challenging the creation of District 26. [DE 171-5 at 

4 n.1, 6; 172-1 at 20]. Sternad was eventually interviewed by the Department of 

Justice (DOJ) and asked to cooperate in an investigation against Rivera. [DE 142-8 

at 18]. In March 2013, Sternad pled guilty to: (1) conspiracy under 18 U.S.C. § 371; 

(2) making false statements under 18 U.S.C. § 1001(a)(2); and (3) accepting illegal 

campaign contributions under §§ 30116(a)(1)(A), (f), and 30109(d)(1)(A)(i). [DE 

171-4 at 12; 171-5 at 7 n.13-14]. In January 2014, Sternad submitted amended FEC 

reports listing the source of each contribution as “UNKNOWN CONTRIBUTOR,” 

together with cover letters stating: “I have no knowledge as to the original source of 

the funds.” [DE 142-43, 142-44]. Sternad stated in the cover letters that the in-kind 

contributions were “paid directly” to Expert Printing and Rapid Mail “by Ana 

Alliegro and/or David Rivera.” See id. At his July 10, 2014 sentencing, Sternad took 

19. [DE 142-10; 142-11; 142-12; 142-28 at 22; 142-42; 171-5 at 5]. 

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responsibility for his false statements to FEC, but claimed he was taken advantage 

of by Alliegro and Rivera. See [DE 142-45 at 4-5] (“I started out this campaign with 

the best intentions. . . . I apologize . . . . I could have stopped this but instead I chose 

not to”). 

In April 2013, FEC sent Rivera a letter advising it found “reason to believe” 

Rivera violated FECA “[b]ased on Sternad’s admission and the identification of 

Rivera as one of the co-conspirators[.]” [DE 171-4 at2-3; 171-5 at 4, 11-12]. On 

September 11, 2013, FEC sent Rivera another letter advising it found “reason to 

believe” Rivera knowingly and willfully violated FECA and that Rivera could 

submit a response and engage in pre-probable cause conciliation. [DE 171-5 at 2]. 

The letter enclosed a blank “Statement of Designation of Counsel” form. See [DE 

172-1 at 14]. On September 25, 2013, Rivera’s attorney, Yesenia Collazo, Esq., 

responded with a letter attaching the completed designation of counsel form. Id. at 

10–12. Collazo informed FEC that Rivera denied FEC’s allegations and requested a 

copy of a document cited by FEC. Id. After forwarding Collazo its April 2013 letter 

and attachments, FEC ceased all communication for over 3 years. 

 In August 2014, Ana Alliegro accepted a guilty plea for: (1) conspiracy to 

make a false statement and to violate FECA; (2) making a false statement; and (3) 

illegal campaign contributions. [DE 142-28 at 24]. AUSA Thomas Mulvihill read 

into the record a lengthy factual basis, and Alliegro confirmed there was sufficient 

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basis to convict her of the allegations. Id. at 23. In December 2014, AUSA Mulvihill 

called Alliegro back to court to testify before a grand jury investigating whether 

there was probable cause to pursue criminal charges against Rivera related to the 

2012 Sternad campaign. [DE 142-5]. During her grand jury testimony, Alliegro 

stated that Rivera “instructed” her to contact Sternad and “ordered” her to finance 

Sternad’s campaign. Id. at 13-14. She also stated that Rivera provided her cash to 

pay for the graphic designer and the printing and mailing of the fliers. Id. at 22, 26-

27, 30-32. Alliegro stated that Sternad was aware of where the money came from 

and that Rivera was involved in the financing. Id. at 44. Alliegro further testified that 

“[a]fter speaking with David the only thing that I advised Mr. Sternad 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. . . . Mr. 

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.” Id. at 33-35. In June 2017, Alliegro filed a 

complaint with the Florida Bar against AUSA Mulvihill for engaging in “corrupt, 

improper and potentially illegal acts.” [DE 147-5 at 2]. With her complaint, Alliegro 

provided a sworn statement describing conduct by Mulvihill in coercing her guilty 

plea and grand jury testimony. Id. at 4-9. Alliegro also filed a complaint with the 

DOJ’s Office of Professional Responsibility including the same sworn allegations 

against Mulvihill. [DE 147-6]. 

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On June 22, 2016, Rivera submitted a financial disclosure form to the Florida 

Division of Elections in connection with his intention to run for state office. See [DE 

142-37]. Soon thereafter, FEC resumed its 2013 efforts (long-dormant) against 

Rivera. See [DE 172-1 at 2]. FEC claimed that “[d]uring the weeks of October 24 or 

October 31, 2016, [it] attempted to reach Rivera’s designated counsel [Collazo] by 

phone, email, and mail to set up a telephone interview of [Rivera].” Id. On November 

7, 2016, an FEC attorney “called Rivera at his home number listed on the designation 

of counsel form . . . to confirm whether Ms. Collazo continued to represent him on 

the enforcement matter.” Id. at 2-3, 18. On November 10, 2016, Collazo returned 

FEC’s call and left a voicemail message apologizing for the delay in returning FEC’s 

call. Id. at 2. FEC claimed that it returned Collazo’s call and left voicemail messages 

between November 14 and November 21, 2016, but “was still unable to reach her[.]” 

Id. On November 22, 2016, FEC’s attorney sent a letter to Collazo asking “to 

schedule a telephone interview” with Rivera and indicated that FEC might “issue a 

subpoena for a deposition” and asked Collazo to advise “if she was no longer 

representing Rivera in the enforcement matter.” Id. at 3, 19. 

On December 1, 2016, Rivera returned the phone call from FEC’s attorney to 

him. See [DE 172-1 at 3]. During the call, FEC’s attorney “explained that [FEC] was 

working to complete the investigation in the enforcement matter and that [it] wanted 

to schedule a phone interview with him” “as a witness to events[.]” Id. at 3, 21. FEC 

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told Rivera that the reason it had not contacted him in over 3 years was due to “press 

reports” citing the “possible existence of other investigative activities.” Id. at 21. On 

December 2, 2016, FEC’s attorney contacted Rivera directly again by email 

requesting an interview and asking him to confirm whether he would be representing 

himself or would continue to be represented by Collazo or another attorney. Id. at 3, 

23. On December 8, 2016, Rivera responded to FEC’s December 2, 2016 email 

quoting from Collazo’s September 25, 2013 letter and requesting additional 

documents. [DE 172-1 at 21-22]. Rivera did not indicate in his response to FEC’s 

December 2, 2017 email that he was representing himself or that Collazo was no 

longer representing him. See [DE 172-1 at 20-23]. On December 16, 2016, FEC sent 

a letter to Rivera (not Collazo) with a subpoena and order requiring him to provide 

information “under oath” within 30 days. [DE 172-1 at 24-30]. The request asked 

Rivera to state whether he provided any of his “own personal funds” or had any role 

in providing funds belonging to “any other individual or entity” to Sternad or his 

campaign in 2012 and to provide details and documents reflecting any such 

transactions. Id. at 27-28. It also asked Rivera to state whether he provided 

instructions to Sternad about how to disclose the funds in his FEC reports. Id. at 29. 

 On April 28, 2017, FEC’s General Counsel sent a letter directed to Rivera (at 

an address in Doral, Florida, but the UPS tracking information stated that it was sent 

to an undisclosed address in “WASHINGTON, DC, US” where it was refused and 

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returned to sender. [DE 172-1 at 31, 48–49]. The letter advised that the General 

Counsel intended to recommend that FEC find probable cause to believe that Rivera 

violated FECA and enclosed a copy of the General Counsel’s Brief. Id. The letter 

further advised that Rivera had 15 days to file a response brief and request an oral 

hearing before the Commission. See id. The same day, an FEC attorney 

communicated directly with Rivera by email, attaching a copy of the General 

Counsel’s probable cause recommendation and Brief. Id. at 47. The Brief 

recommended that FEC find probable cause to believe that Rivera “knowingly and 

willfully helped or assisted” in making a contribution in the name of another in 

violation of 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(b)(1)(iii).20 On May 25, 2017, 

FEC’s attorney sent another letter directly to Rivera indicating that FEC did not 

receive a response to the April 28, 2017 letter and intended to proceed with its 

recommendation to FEC to find probable cause. Id. at 51–52. On June 2, 2017, FEC 

sent a letter to Rivera, advising that FEC found probable cause. Id. at 53. The letter 

stated that it enclosed a proposed “Conciliation Agreement” that FEC “approved in 

settlement of this matter.” Id. The Conciliation Agreement proposed a civil penalty 

20. See [DE 172-1 at 46]. (“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.”) (emphasis 

added). 

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of $423,000 which was “600% of the amount in violation that still remains within 

the statute of limitations (i.e., $70,485.20)[.]” [DE 171-7 at 6-8]. The Conciliation 

Agreement also required Rivera to stipulate to a long list of self-incriminating 

statements and that Rivera’s acceptance was subject to FEC approval. Id. On June 

26, 2017, FEC’s attorney again contacted Rivera directly (not through Collazo) by 

cell phone and informed Rivera that she “had been trying to reach him to discuss the 

proposed conciliation agreement” and “asked if he was interested in negotiating an 

agreement.” [DE 172-1 at 56]. 

FEC’s Original Complaint 

On July 14, 2017, FEC filed its original complaint against Rivera. See [DE 1]; 

[DE 171-9]. FEC alleged that it “satisfied all of the jurisdictional requirements in the 

FECA that are prerequisites to filing this action.” See [DE 1 at 8-9]. FEC further 

alleged that “Rivera knowingly and willfully violated 52 U.S.C. § 30122 and 11 

C.F.R. § 110.4(b)(1)(iii) by making contributions in the name of another when he 

caused, directed, and assisted in the making of contributions in the name of others 

to . . . Sternad’s 2012 primary campaign[.]” Id. at 9 (emphasis added). FEC quoted 

54 Fed. Reg. 34098, 34105 (1989) to allege that a person “help[s] or assist[s]” by 

“initiating or instigating or having some significant participation in a plan or scheme 

to make a contribution in the name of another[.]” Id. at 1 (emphasis added). 

According to the original complaint: “[U]pon Alliegro’s instructions, Sternad 

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concealed the source of the contributions by falsely reporting them as loans from his 

personal funds to the Sternad Committee.” [DE 1 at 7] (emphasis added). FEC 

sought declaratory and injunctive relief and a “civil penalty” between 300% and 

1000% of the amount of the alleged contributions pursuant to § 30109(a)(6)(C) and 

11 C.F.R. § 111.24(a)(2)(ii). See id. at 1, 10. 

Rivera moved to dismiss FEC’s original complaint for failure to state a claim 

pursuant to Rule 12(b)(6) because it alleged that Rivera openly “made” the alleged 

payments to the vendors he worked with on his own campaign, that Sternad accepted 

the contributions with the understanding that they were from Rivera, and the 

allegations regarding Sternad’s false reports to FEC were irrelevant because § 30122 

does not address “aiding and abetting” or “making false statements” to FEC. [DE 17 

at 4-5]. In its response, FEC denied alleging that Rivera was the “true source” of 

funds in a conduit scheme involving straw donors. See [DE 20 at 2, 5, 12-16]. 

Instead, FEC invoked 11 C.F.R. § 110.4(b)(1)(iii) and argued that Rivera made a 

“false name” contribution by knowingly “helping or assisting” Sternad in 

“accepting” a contribution and “having Alliegro recruit Sternad and direct him to 

falsely attribute his own name to the contributions in his FEC reports.” See id. at 17-

18. 

On April 6, 2018 (after briefing but before ruling on the motion to dismiss), 

the District of Utah issued its decision in FEC v. Swallow, 304 F. Supp. 3d 1113, 

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1115 (D. Utah 2018) enjoining FEC from enforcing 11 C.F.R. § 110.4(b)(1)(iii) and 

ordering FEC to strike it from the Code of Federal Regulations because it improperly 

attempted to create a violation for “helping an assisting” violations of § 30122. 

Subsequently, the district court entered an order dismissing FEC’s complaint 

based on Swallow. [DE 31 at 4] (“Swallow is fatal to the FEC’s claim against 

Rivera.”). The court rejected FEC’s attempt [DE 30 at 2] to argue that its original 

complaint alleged both “primary” and “secondary” liability against Rivera. See [DE 

31 at 5]. Accordingly, the court dismissed the case, denied all pending motions as 

moot, and ordered the Clerk to close the case. Id. at 5.

FEC’s Amended Complaint. 

Thereafter, FEC’s staff attorneys (without authorization or approval from the 

Commissioners) moved to reopen the case and for leave to file an amended 

complaint accusing Rivera of direct (rather than secondary) liability under § 30122. 

[DE 32]. To circumvent the trial court’s dismissal, FEC altered its factual allegations 

by eliminating all references to the “scheme” and alleging instead that Rivera 

personally “provided” the contributions to Sternad’s campaign. See [DE 32 at 7-8]; 

[DE 32-1]; [DE 41]. According to the amended complaint, “Alliegro spoke with 

Sternad and offered to transmit Rivera’s funds to Sternad’s campaign, to which 

Sternad agreed.” [DE 41 at ¶ 15] (emphasis added). The amended complaint further 

alleged that Rivera “delivered cash” or “arranged for cash he controlled to be 

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delivered vendors providing services to the campaign” and “pa[id] vendors in cash 

to produce and distribute materials for Sternad’s campaign” and “conceal[ed] his 

involvement and the source of the contributions.” [DE 41 at 1, 4-6]. Also, unlike the 

original complaint—alleging that Sternad falsely reported certain contributions as 

loans from his personal funds “upon Alliegro’s instructions”—the amended 

complaint alleged that Sternad was “[f]ollowing instructions from Rivera that were 

conveyed by Alliegro” when he made the false reports. Compare [DE 1 at 7] with

[DE 41 at 6].21 FEC alleged that “Rivera made the contributions described in 

paragraphs 13 to 19 for the purpose of influencing the 2012 Democratic primary 

election for Florida’s 26th Congressional District and ultimately enhancing his own 

prospects in the 2012 general election. [DE 41 at ¶ 1]. According to FEC, supporting 

the Sternad campaign “aided Rivera’s own election efforts by opposing Joe Garcia 

during his primary election. Garcia was the candidate Rivera was likely to — and 

did — ultimately face in the general election.” Id. at ¶24. 

After the Court granted FEC’s motion to reopen and amend. [DE 40], Rivera 

moved to dismiss the amended complaint for failure to state a cause of action for 

violation of § 30122 because FEC alleged: (1) that Rivera “made” the payments to 

the vendors in his own name; and (2) that Sternad (as candidate and campaign 

21. For a more detailed comparison of the two versions of FEC’s 

complaint, see [DE 171-17]. 

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treasurer) knew Rivera was the one who “made” the payments (i.e., the source). See

[DE 42 at 4]. FEC alleged that Rivera hired the same vendors for Sternad that he 

used on his own campaign and that Sternad and the vendors all believed the money 

was coming from Rivera. See id. at 4–5. FEC filed a response, and the Court held a 

hearing and entered an order denying the motion to dismiss. See [DE 43]; [DE 48]; 

[DE 49 at 33-34]. Thereafter, Rivera filed an answer denying the allegations of the 

amended complaint and demanding a jury trial. [DE 50]. 

Cross-Motions for Summary Judgment 

Following discovery, both parties moved for summary judgment. [DE 139]; 

[DE 142]. FEC argued in its Motion that “Rivera was the principal of the scheme to 

falsify the true source of the contributions to the Sternad campaign as well as the 

source of the funds, and thereby violated § 30122.” [DE 142 at 14] (emphasis added). 

FEC cited a lot of circumstantial evidence, but the only evidence from an individual 

claiming to have personal knowledge that Rivera was the source of the money or 

that the idea to report the payments as loans was the transcript of Alliegro’s grand 

jury testimony. [DE 142]. 

On August 22, 2020, Rivera filed his Response to FEC’s motion for summary 

judgment. [DE 146]. With his response, Rivera filed a February 14, 2019 Declaration 

of Alliegro [DE 147-7] together with copies of her June 2017 complaints to DOJ and 

the Florida Bar against AUSA Mulvihill [DE 147-5]; [DE 147-6]. In her Declaration, 

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Alliegro stated that the allegations in the amended complaint were false, including 

the allegations about Rivera instructing her to transmit funds to the Sternad 

campaign and directing her to instruct Sternad to falsely report the payments as loans 

from his personal funds to his campaign. See [DE 147-7]. 

Rivera also filed the transcript of Sternad’s deposition. [DE 140-1]; [DE 142-

8]; [DE 147-1]. At deposition, Sternad testified that he had never seen, met, or 

communicated with Rivera prior to his deposition and had no knowledge of Rivera 

personally making any donations or paying any vendors for services to his campaign. 

[DE 142-8 at 5-6, 18-19]. Sternad further testified that Rivera never directed him to 

mark any contributions as “loans” to his campaign from his personal funds and never 

directed him with respect to preparing or amending his FEC reports. Id. at 12, 14, 

19–20. Sternad explained that he only communicated with Alliegro and that Alliegro 

directed him to falsely list certain contributions as loans to his campaign in his FEC 

reports.22 Sternad testified that Alliegro never told him she was working with Rivera, 

but she told him that Rivera donated to his campaign and that the mailers, printing, 

rental car, and qualifying fee were being “taken care of” by Rivera. See id. at 16-17, 

19, 22-23. Sternad understood Alliegro’s statement to mean that Rivera deposited 

22. See [DE 142-8 at 8-9, 11, 15-16, 20] (“She directed me” and “I did what 

she directed.”) (emphasis added). 

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money into his campaign account to pay expenses. Id. at 19. According to Sternad, 

“[m]y only basis of what I know is what [Alliegro] told me.” Id. at 18. 

Rivera also filed the transcript of the deposition of John Borrero, owner of 

Rapid Mail. [DE 140-2; 142-32]. Borrero did not know whether Rivera was the 

source of the money, but “assum[ed]” that “the funds were coming from” Rivera 

because Rivera “knew about” the money, assured Borrero that “it’s going to be 

there,” and told Borrero “[d]on’t worry about it.” Id. at 20-21. Alliegro never told 

Borrero that the money was from Rivera. See id. at 21. Rivera also filed his own 

affidavit affirming that he never met or communicated with Sternad, did not 

contribute to his campaign, and did not instruct him (directly or through Alliegro) 

to falsely report the source of contributions in his FEC reports. [DE 140-4]. 

On February 23, 2021, the court entered an order granting FEC’s motion for 

summary judgment and concluding as a matter of law: (1) that Rivera “knowingly 

and willfully” violated section 30122 of the Federal Election Campaign Act by 

making contributions in the name of others, 52 U.S.C. § 30122 (formerly 2 U.S.C. § 

441f); 11 C.F.R. § 110.4(b)(1)(i); and (2) that FEC’s civil penalty in the amount of 

$456,000 was appropriate and should be imposed on Rivera. See [DE 163 at 34–39]. 

On the liability issue, the court inferred from Alliegro’s grand jury testimony and 

plea colloquy that Rivera directed her to direct Sternad to falsely report on his FEC 

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disclosure forms that he paid the vendors for printing and shipping campaign 

materials with loans from his personal funds. See id. 

On the civil penalty, the court did not conduct an evidentiary hearing to 

evaluate the amount and instead determined that “Rivera has the ability to pay a 

$465,000 fine” based on: (1) a disclosure statement that Rivera submitted to qualify 

for the 2016 election reflecting what his self-reported net worth was seven years ago; 

(2) unsubstantiated allegations from a pleading in a separate lawsuit in New York 

about revenue that Rivera’s business allegedly received in the past; and (3) the 

court’s independent review of the Florida Division of Corporations website. See [DE 

142–37, 163–164]. The court also concluded that the alleged FECA violations 

“injured the public” by depriving the electorate of accurate information regarding 

Rivera’s role in financing Sternad’s campaign and eroding and undermining the 

public’s confidence in its representative democracy. See [DE 163]. 

Rivera’s Motion to Dismiss for Lack of Subject Matter Jurisdiction 

On March 31, 2021, Rivera moved to dismiss for lack subject-matter 

jurisdiction because: (1) FEC’s presuit notices, probable cause determination, and 

attempts at conciliation were based on the invalid “secondary liability” theory 

asserted in its original complaint; and (2) FEC illegally contacted, communicated, 

attempted to conciliate directly with Rivera rather than his designated counsel. See

[DE 171 at 17-20; 174 at 7-10]. In opposition, FEC admitted that it sent all the 

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required administrative notifications directly to Rivera, but claimed that it didn’t 

need to send notice to Rivera’s attorney because it sent notice to Rivera himself. 

FEC also argued that its presuit notice, probable cause determination, and 

conciliation attempts were sufficient because they involved the same transactions 

and statutory violations as those alleged in its amended complaint. [DE 172 at 10–

18]. Ultimately, the district court entered an order denying Rivera’s motion to 

dismiss for lack of subject matter jurisdiction. [DE 176]. 

Rivera’s Post-Judgment Motion. 

Subsequent to the district court’s order on jurisdiction, this Court issued its 

opinion in Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288 (11th Cir. 

Dec. 29, 2021), analyzing a statutory civil penalty under the False Claims Act (FCA) 

pursuant to the three-factor test previously applied in the criminal forfeiture context 

under the Excessive Fines Clause of the Eighth Amendment of the United States 

Constitution. 

After the district entered final judgment [DE 177], Rivera moved to alter or 

amend or for relief from judgment pursuant to Rule 59(e) and 60(b), asking the 

district court to: (1) vacate its final judgment and civil penalty; (2) strike the 300–

1000% penalty enhancement provision of 52 U.S.C. § 30109(6) as 

unconstitutionally vague and excessive; and (3) reconsider its analysis under Yates

and determine that the amount of the fine requested by FEC was unconstitutionally 

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excessive. [DE 179]. FEC filed its written response on May 23, 2022, and Rivera 

filed a reply on June 10, 2022. [DE 186; 189]. 

On April 29, 2022, Rivera filed a notice of appeal of the Final Judgment. [DE 

181]. On March 31, 2023, the district court entered an order denying the Motion to 

Alter or Amend Judgment, [DE 191]. The court rejected Rivera’s Eighth 

Amendment challenge as “untimely” on the grounds that his prior counsel failed to 

oppose FEC’s claim to a $456,000 fine at the summary judgment stage. See [DE 

191]. The court also determined that it acted within its “discretion” in choosing a 

civil penalty at 600%23 of the amount of the alleged illegal contributions because 

this was within the 300–1000% range set by Congress in FECA § 30109(a)(6)(C) 

and because the court applied the 9th Circuit’s Furgatch24 factors used in other 

FECA cases. See [DE 191]. 

Rivera’s amended notice of appeal followed. [DE 193].

 

23. FEC’s original complaint claimed violations based on $69,426.20 in 

alleged contributions that were allegedly made within five-year statute of limitations 

(i.e., between July 14, 2012 and August 9, 2012). See [DE 1 at 5-6]. In its amended 

complaint, FEC only claimed violations based on the $55,601.35 in alleged cash 

contributions and dropped its claim based on the August 9, 2012 check for 

$13,824.85 from Florida Action Network (“FAN”) to Expert Printing. See [DE 32-

1 at 5]; [DE 41]. However, its motion for summary judgment claimed $75,927.31 in 

alleged contributions. See [DE 142 at 14, 17, 23]. 

24. FEC v. Furgatch, 869 F.2d 1256 (9th Cir. 1989). 

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SUMMARY OF THE ARGUMENT 

FEC’s allegations do not state a cause of action for violation of FECA § 

30122. FEC did not allege that Rivera “made” contributions to FEC; it alleged that 

Rivera “made” contributions to the Sternad campaign. FEC further alleged that

Rivera openly “made” the payments in his own name to the same vendors he used 

on his campaign and that Sternad knew that Rivera made the payments. FEC’s 

allegations regarding Sternad falsely reporting the source of the contributions to FEC 

is a red herring because § 30122 has nothing to do with reporting to FEC. Section 

30122 only deals with “making” contributions to the candidate/committee in the 

name of another. By alleging that Rivera “made” and Sternad “accepted” Rivera’s 

contribution in Rivera’s name FEC plead itself out of the scope of § 30122. 

After the district court rejected the “secondary liability” (i.e., “helping and 

assisting”) theory asserted in FEC’s original complaint, FEC’s staff attorneys filed 

an amended complaint—without a vote of the Commissioners—alleging a purported 

“primary liability” theory based on a legal and factual position that was not part of 

FEC’s presuit notice, probable cause, and conciliation procedures. FEC alleged a 

“knowing and willful” violation of § 30122 because it provides for an “enhanced” 

penalty of a mandatory minimum 300% and maximum of 1000% of the amount 

involved. See 52 U.S.C. § 30109(a)(6)(C). This resulted in the district court’s 

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“discretionary” decision to order a 600% (i.e., $465,000) civil penalty – the highest 

non-corporate civil penalty in FEC history. See [DE 163]; [DE 179]. 

Rivera respectfully requests reversal and remand for entry of dismissal or final 

summary judgment for Rivera because: (1) FEC did not state a cause of action for 

violation of section 30122; and (2) the district court lacked subject matter 

jurisdiction due to FEC’s failure to demonstrate that it was unable to correct or 

prevent the alleged violation through its mandatory jurisdictional pre-suit 

procedures. Alternatively, the district court erred in granting summary judgment for 

FEC based on hearsay, non-record material, and conflicting evidence. Lastly, Rivera 

seeks reversal of the $465,000 civil penalty because: (1) the 300–1000% penalty 

provision in FECA § 30109(a)(6)(C) is unconstitutionally vague and excessive; and 

(2) the civil penalty imposed by the district court was a punitive and excessive fine 

in violation of the Eighth Amendment. 

 

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ARGUMENT

I. The trial court lacked subject matter jurisdiction because 

FEC did not establish that it was unable to correct or 

prevent a violation of § 30122 based on a “primary 

liability” theory prior to litigation. 

FEC cannot “institute a civil action for relief” unless it demonstrates that it 

was “unable to correct or prevent any violation of [FECA]” after complying with the 

following “jurisdictional requirements in the FECA that are prerequisites to filing 

this action”:25 (1) determine by vote that it has “reason to believe” that a person has 

committed, or is about to commit, a violation of [FECA]”; (2) notify the person of 

“the alleged violation” setting forth the “factual basis” for “such alleged 

violation”; (3) investigate “such alleged violation”; (4) notify the person (through 

general counsel) of any recommendation to vote on finding of probable cause 

including a brief stating “the position” of general counsel on the “legal and factual 

issues” of the case; (5) determine by vote that there is “probable cause” to believe 

that a person violated or is about to violate FECA; (6) attempt for least 30 days to 

“correct or prevent such violation by informal methods of conference, conciliation, 

and persuasion”; (7) attempt to “enter into a conciliation agreement with” the person 

involved that may require the person to pay a civil penalty based on “the amount 

involved in the violation”; and (7) vote to institute a civil action for relief, including 

25. 52 U.S.C. § 30109(a)(6)(A); [DE 1 at 8-9] [DE 41 at 9]; [DE 171-10]. 

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a permanent or temporary injunction, restraining order, or any other appropriate 

order (including an order for a civil penalty based on the amount of any “contribution 

or expenditure involved in such violation.” See 52 U.S.C. § 30109(a)(2)-(6) 

(emphasis added). 

In this case, FEC’s notices, probable cause determination, and conciliation 

attempts were all based on an invalid “helping and assisting” theory under a 

regulation that it has since repealed due to Swallow. And FEC illegally 

communicated and attempted to conciliate with Rivera in violation of its no-contact 

rule. Thus, FEC’s presuit procedures were defective and did not involve the theory 

and factual position asserted in the amended complaint that was filed by its staff 

attorneys without approval or a vote of the Commissioners. For these reasons, the 

district court should have denied leave to amend or dismissed the case for lack of 

subject matter jurisdiction. 

A. FEC’s presuit notices, probable cause determination, and attempts at 

conciliation were based on the invalid “secondary liability” theory 

asserted in its original complaint. 

“[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.” FEC v. Nat’l Republican Senatorial Comm., 877 F. Supp. 15, 

18 (D.D.C. 1995) (emphasis added). Here, FEC did not comply with the 

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jurisdictional pre-suit requirements of § 30109 because it based its probable cause 

determination on an invalid and recently repealed regulation that expanded the scope 

of § 30122 to punish individuals for “helping or assisting” (i.e., “aiding or abetting”) 

a person in making a contribution in the name of another person (i.e., “secondary 

liability”). The district court dismissed FEC’s original complaint because it asserted 

the same invalid secondary liability theory – the same theory asserted in its presuit 

probable cause determination. [DE 31]. Thereafter, FEC’s staff attorneys 

amended its complaint and significantly altered its factual position to assert a claim 

for “primary liability” against Rivera. See [DE 32]; [DE 32-1]; [DE 41]. But FEC’s 

Commissioners never voted on whether probable cause existed to attempt to 

conciliate or to file a civil lawsuit alleging primary liability against Rivera. 

Moreover, FEC never provided notice that it intended to pursue a claim for primary 

liability and made no effort to conciliate the factual or legal issues of primary 

liability before alleging a violation grounded on primary liability in this lawsuit. 

Thus, FEC failed to comply with the jurisdictional presuit requirements. Even the 

district court rejected FEC’s attempt [DE 30 at 2] to argue that its original complaint 

alleged both “primary” and “secondary” liability against Rivera. See [DE 31 at 5]. 

 

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B. FEC illegally contacted, communicated, attempted to conciliate directly 

with Rivera rather than his designated counsel. 

FEC also failed to comply with the jurisdictional pre-suit requirements of § 

30109 because its mandatory notices and communications violated 11 C.F.R. § 

111.23 (the “no-contact” regulation). Specifically, FEC never sent the notices to 

Rivera’s designated attorney and illegally communicated directly with Rivera during 

the conciliation process – including sending a subpoena and discovery requests 

solely to Rivera despite his designation of counsel. See [DE 171-4]; [DE 171-5]; 

[DE 171-6]; [DE 171-7; [DE 171-8]; [DE 172-1]. Throughout the presuit process, 

FEC never notified attorney Collazo that: (1) FEC’s General Counsel intended to 

recommend a probable cause finding; (2) that General Counsel prepared a brief 

stating any legal and factual support for a probable cause finding; (3) that FEC made 

a probable cause finding; or (4) that FEC was contacting Rivera directly and urging 

him to sign a proposed conciliation agreement. FEC also sent a letter solely to Rivera 

and not his counsel asking him to sign a proposed “conciliation agreement” 

containing a litany of stipulations and admissions that—had Rivera signed it—could 

have exposed him to criminal prosecution. See FECA § 30109(d)(1)(A), (D). At the 

time of this no-contact violation, the five-year statute of limitations hadn’t yet 

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expired.26 Considering DOJ brought criminal charges against Sternad and Alliegro 

and conducted a grand jury investigation against Rivera in relation to this matter, see

[DE 142-5], FEC’s exclusion of Rivera’s designated counsel from its eleventh-hour 

attempt to persuade Rivera to sign a self-incriminating document purportedly for the 

purposes of “settlement” and “conciliation” is particularly troubling. 

Since FEC’s proposed sanction was denominated as a “civil penalty” under 

FECA § 30109(a)(6)(C), Double Jeopardy would not have prevented DOJ from 

using Rivera’s conciliation agreement against him to seek a subsequent criminal 

“fine” under the identical monetary super-penalty provision in FECA § 

30109(d)(1)(D) – as well as a prison sentence.27 The failure to communicate with 

Rivera through counsel rendered FEC’s presuit procedures invalid. See 11 C.F.R. § 

111.23; see also 28 U.S.C. § 530B (“An attorney for the Government shall be subject 

to State laws and rules, and local Federal court rules, governing attorneys in each 

State where such attorney engages in that attorney’s duties, to the same extent and 

in the same manner as other attorneys in that State.”); 28 C.F.R. § 77.3; Fla. Bar R. 

4–4.2 (“[A] lawyer shall not communicate about the subject of the representation 

with a person the lawyer knows to be represented by another lawyer in the matter, 

26. See 52 U.S.C. § 30145; 18 U.S.C. § 3282; see also 28 U.S.C. § 2462; 

FEC v. Toledano, 317 F.3d 939, 948 (9th Cir. 2002). 

27. See Hudson v. United States, 522 U.S. 93, 98-99 (1997). 

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unless the lawyer has the consent of the other lawyer”); S.D. Fla. Local R. 11.1(c);

Bedoya v. Aventura Limousine & Transp. Serv., Inc., 861 F. Supp. 2d 1346 1358 

(S.D. Fla. 2012).

II. FEC failed to state a cause of action because it alleged that 

Rivera “made” the contributions in his own name to the 

Sternad campaign and § 30122 has nothing to do with 

making false reports to FEC.

FEC’s allegations do not state a cause of action for violation of FECA § 

30122. FEC did not allege that Rivera “made” contributions to FEC; it alleged that 

Rivera “made” contributions to the Sternad campaign. FEC further alleged that

Rivera openly “made” the payments in his own name to the same vendors he used 

on his campaign. FEC’s allegations regarding Sternad falsely reporting the source 

of the contributions to FEC is a red herring because § 30122 has nothing to do with 

reporting to FEC. Section 30122 only deals with “making” contributions to the 

candidate/committee in the name of another. By alleging that Rivera “made” and 

Sternad “accepted” Rivera’s contribution in Rivera’s name FEC plead itself out of 

the scope of § 30122. 

Because § 30122 does not create civil liability for making false reports to FEC, 

the case law involving similar fact patterns is almost exclusively in the DOJ/criminal 

context where the § 30122 violations are connected to charges under 18 U.S.C. §§ 

2, 371, and 1001. For example, in United States v. Curran, 20 F.3d 560, 567 (3d Cir. 

1994), DOJ pursued criminal charges against a person for making contributions 

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through straw donors. Because FECA’s then 3-year statute of limitations had 

expired, DOJ brought the charges under 18 U.S.C. § 1001 for making false 

statements to the government. But, like FECA § 30122, that provision did not by 

itself provide for secondary liability. Thus, “[t]he government concede[d] that the 

false statements at issue here were the contributor lists submitted by various 

campaign treasurers to the Federal Election Commission.” Id. “Defendant did not 

prepare or file such reports, and consequently, he did not make the false statements 

to the Commission.” Id. “The defendant’s conduct, therefore, did not fall directly 

within the scope of [18 U.S.C. § 1001].” Id. “To bridge that gap, the government 

used [18 U.S.C. § 2(b)] in conjunction with [18 U.S.C. § 1001] to charge defendant 

with causing the campaign treasurers to file false reports.” Id. 

Other cases have likewise determined that the duty to report is the pivotal 

factor in assessing direct liability for misrepresenting to the FEC. See United States 

v. Trie, 21 F. Supp. 2d 7, 14 (D.D.C. 1998) (“Because Mr. Trie did not make any 

representation or statement directly to the FEC and had no duty to disclose any facts 

to the FEC, he cannot be prosecuted directly under Section 1001. The government 

therefore has charged Mr. Trie with aiding and abetting the making of false 

statements by another, the Democratic National Committee, in violation of 18 U.S.C. 

§ 2(b).”)); Repub. Nat‘l Comm. v. Fed. Election Comm‘n, 76 F.3d 400, 406-07 (D.C. 

Cir. 1996) (“The law only requires political committees to ask donors for the 

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information; no federal law requires donors to report their name, address, 

occupation, and employer as a condition of supporting the political party of their 

choice.”); Citizens for Resp. & Ethics in Wash. v. FEC, 316 F. Supp. 3d 349, 360 

n.6 (D.D.C. 2018) (“The plaintiffs also alleged that four individuals associated with 

Crossroads GPS violated the federal criminal conspiracy statute, 18 U.S.C. § 371, 

by conspiring to prevent disclosure of the identities of the three categories of donors. 

The FEC has no jurisdiction over such criminal allegations and, consequently, the 

FEC’s Office of General Counsel’s (OGC) made no recommendation concerning the 

alleged violations of federal criminal law and only recommended that the FEC close 

the file as to the four individuals.”). 

In this case, FEC did not allege that Rivera violated the reporting 

requirements of FECA § 30104 or made false reports to the government in violation 

of 18 U.S.C. § 1001 or aided and abetted or conspired with Sternad to make false 

reports to FEC in violation of 18 U.S.C. § 2 or 18 U.S.C. § 371. Nor did FEC charge 

Rivera with exceeding contribution limits or making excessive cash contributions in 

violation of FECA §§ 30116 and 30123 . . . probably because such violations would 

have capped any civil penalty at 200% of the amount involved. See 52 U.S.C. § 

30109(a)(6)(C); 11 C.F.R. §§ 110.1, 110.3, 111.24. Instead, FEC conducted presuit 

administrative proceedings and filed a civil action based on a finding of probable 

cause that Rivera knowingly “assisted” in making a false name contribution under 

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52 U.S.C. § 30122 as extended by 11 C.F.R. § 110.4(b)(1)(iii) (2012). See [DE 1]; 

[DE 171-5, 6, 7, 8]; [DE 172-1]. The trial court rejected this “secondary liability” 

theory based on Swallow which enjoined FEC from enforcing § 110.4(b)(1)(iii) 

because § 30122 does not create civil liability for “helping or assisting” (i.e., “aiding 

or abetting”) making or accepting false name contributions. 

The district court formulated its ruling based on its incorrect conclusion that 

§ 30122 extends to FEC’s claim that Rivera “directed” Alliegro to “direct” Sternad 

to misrepresent in his FEC reports that Sternad used his own personal funds to pay 

the vendors. See [DE 163 at 34] (“The uncontested testimonial evidence adduced in 

this case shows that Rivera directed Sternad to file false reports with the FEC.”) 

(emphasis added). In 2002, Congress attempted to amend § 30122 to reach those 

who “direct, help, or assist” in making false name contributions. H.R. 8528, 117th 

Cong. § 354. But that legislation did not make it out of committee. 

Further, the district court’s order describes Rivera’s involvement as 

instigating, initiating, soliciting, or participating in a scheme or conspiracy [DE 163] 

– which is exactly how FEC explained its invalid “helping and assisting” regulation. 

See Swallow, 304 F. Supp. 1113 (“In its ‘interpretive guidance’ for the new 

regulation, [FEC] explained that it applies 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, including those who solicit or act as go-betweens to third parties 

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whose donations are reimbursed.”) (quoting 54 Fed. Reg. at 34, 104-05 (1989)) 

(emphasis added). In Swallow, 304 F. Supp. 3d at 1117 n.1, the court recognized that 

section 30122 does not provide civil liability for aiding and abetting violations. “In 

contrast to the civil penalties under section 30122, in a section 30122 criminal case, 

secondary actors — those who aid and abet the person who illegally makes a 

contribution in the name of another . . . are subject to criminal liability. This is 

because the United States criminal code, 18 U.S.C. § 2, specifically makes such 

secondary actors ‘punishable as a principal.’ ” Id. (emphasis added). 

Thus, FEC did not establish that Rivera made a contribution in the name of 

“another” by allegedly directing Alliegro to direct Sternad to list vendor payments 

as loans to his own campaign. Only Sternad (as campaign treasurer) had a duty to 

report to FEC, and only Sternad made the false report to FEC. See FECA § 30104(a);

Curran, 20 F.3d at 567. Without 11 C.F.R. § 110.4(b)(1)(iii), the only way to impute 

Sternad’s false report to Rivera would be through criminal charges for making a 

false report under 18 U.S.C. § 1001 coupled with aiding and abetting under 18 

U.S.C. § 2 or with conspiracy under 18 U.S.C. § 371. 

 

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III. The district court entered summary judgment for FEC 

based on hearsay, non-record material, and conflicting 

evidence. 

The record evidence did not support entry of summary judgment for FEC. In 

her declaration, Alliegro recanted her grand jury testimony that Rivera: (1) was the 

source of the funds paid to the vendors; and (2) suggested to her to instruct Sternad 

to report the vendor payments as loans from Sternad to his own campaign. Alliegro 

was the only witness claiming to have personal knowledge of these allegations. FEC 

admitted that Alliegro’s declaration “recanted,” “contradicted,” and “conflicted 

with” her prior grand jury testimony and guilty plea. See [DE 58 at 2, 8-9, 15]; [DE 

58-1]; [DE 65 at 2-3]; [DE 71 at 3, 5, 10, 17]. The rest of the evidence was all 

circumstantial and anecdotal accounts of Rivera’s alleged general involvement and 

connection to the activities of the Sternad campaign. Some of the evidence was 

internally conflicting (such as the deposition testimony and declarations of Sternad 

and Borrero). The text message and call logs were not authenticated and did not 

establish a § 30122 violation. And, contrary to the district court’s ruling, neither 

Alliegro nor Sternad testified that Rivera directed or instructed Alliegro to direct or 

instruct Sternad to make the false reports to FEC. Even if they did, it would not 

establish a basis for direct civil liability under § 30122 for the reasons stated supra. 

The court also concluded that “Rivera has the ability to pay a $465,000 fine” 

based on: (1) a disclosure statement that Rivera submitted to qualify for the 2016 

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election reflecting what his self-reported net worth was seven years ago; (2) 

unsubstantiated allegations from a pleading in a separate lawsuit in New York about 

revenue that Rivera’s business allegedly received in the past; and (3) the court’s 

independent review of the Florida Division of Corporations website. See [DE 142–

37, 163–164]. And, the court took issue with Rivera’s defense against FEC’s charges 

and improperly used it against him as its primary consideration in its analysis of the 

severity of the penalty. See [DE 163 at 37-38] (“First and foremost, as his filings in 

this case demonstrate, Rivera continues to refuse to take responsibility for his illegal 

conduct [and] continues to run for office.”). Rivera was never charged or convicted 

of a crime related to FEC’s allegations and was entitled to exercise his constitutional 

right to run for office. He was also “entitled to have the complicated statutory and 

regulatory issues in this case determined by a court.” FEC v. Kalogianis, No. 8:06-

cv-68-T-23EAJ, 2007 U.S. Dist. LEXIS 88139, at *19-20 (M.D. Fla. Nov. 30, 2007) 

(citing FEC v. Friends of Jane Harman, 59 F. Supp. 2d 1046, 1059 (C.D. Cal. 1999) 

(denying the Commission’s contention that the defendants’ “determined resistance 

to conciliation” should result in a significant financial penalty). 

Because the evidence was not competent or sufficient to impose a civil penalty 

on Rivera, the court should have denied summary judgment and either conducted an 

evidentiary hearing (if the civil penalty was non-punitive) or submitted the issue to 

the jury (if the civil penalty was punitive). 

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

is unconstitutionally vague and excessive. 

On its face, FECA § 30109(a)(6)(C) imposes an unprecedented 300–1000% 

penalty and provides no guidelines on how a trial judge is to decide within its broad 

range setting a mandatory floor at the equivalent of treble (i.e., punitive) damages. 

And, the “civil” penalty enhancement of FECA § 30109(a)(6)(C) is identical to its 

criminal “fine” provision under FECA § 30109(d)(1)(D) – and both apply solely to 

“knowing and willful” violations of FECA § 30122. In other words, FECA § 

30109(a)(6)(C) essentially authorizes FEC to seek and obtain a criminal sentence 

(i.e., punitive fine) without the constitutional protections afforded to defendants in 

criminal prosecutions. 

 In Yates, Judge Tjoflat (concurring in part) contrasted the lack of standards 

for calculating civil penalties under the FCA with the specific standards created to 

calculate criminal fines under the sentencing guidelines. See Yates, 21 F.4th at 1325-

26 (“[W]ithout a set of standards, the district court has unfettered discretion to 

impose any fine within the statutory range. And that makes imposition of such fines 

essentially unreviewable for us, except under the Eighth Amendment.”). However, 

the “Opinion of the Court” did not decide that the FCA was facially unconstitutional 

for this reason because: (1) the appellant did not “base its Eighth Amendment 

challenge on the procedural claim that the FCA lacks standards”; and (2) the district 

court imposed the statutory minimum penalty and lacked authority to go below it 

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absent a constitutional violation. Since the district court did not choose a penalty 

somewhere above the minimum, its discretion did not come into play. See Yates, 21 

F.4th at 1316 at n.9. Unlike the civil penalty at issue in Yates, the district court in 

this case did not select the minimum penalty allowed under FECA. Rather, the court 

exercised its discretion to approve FEC’s random request for 600%. Accordingly, 

FECA’s lack of standards is squarely at issue in this case. The civil penalty 

provisions of section 30109(6) are facially unconstitutional because they provide no 

standards to guide courts in selecting an appropriate percentage. In this case, neither 

FEC nor the court provided any specific explanation for why 600% was selected as 

the magic number for the civil penalty imposed on Rivera. 

In his Motion, Rivera asserted a facial challenge to the 300–1000% penalty 

enhancement provision of 52 U.S.C. § 30109(6) as unconstitutionally vague, 

arbitrary, capricious, and excessive on its face because it lacks standards to guide its 

application. See [DE 179 at 2, 4, 15-16, 20]. FEC didn’t dispute that the statute is 

silent on standards for selecting a percentage within the 300–1000% range. Instead, 

FEC invoked the “broad authority” of courts to fashion remedies for civil statutory 

violations. See [DE 189 at 11]. Citing the Furgatch “discretionary” factors, FEC 

claimed that courts supplied the standard. See id. However, the Ninth Circuit issued 

its decision in Furgatch in 1989, thirteen years before Congress enacted the 300–

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1000% penalty multiplier.28 Furgatch obtained the factors from this Court’s decision 

in Danube Carpet,

29 which predated Yates and did not involve FECA or the 300–

1000% penalty multiplier. 

Moreover, FEC cited no other statutory provision that provides a range of 

penalties that has a mandatory minimum of treble damages and allows up to ten 

times the amount at issue. FEC mentions that the statute also provides for criminal 

penalties; however, as Judge Tjoflat noted in Yates, the criminal sentencing 

guidelines provide a standardized system for calculating the severity of the penalty 

based on research. See Yates, 21 F.4th at 1325-26 (“[W]ithout a set of standards, the 

district court has unfettered discretion to impose any fine within the statutory range. 

And that makes imposition of such fines essentially unreviewable for us, except 

under the Eighth Amendment.”). By contrast, the most FEC can say for the 2002 

McCain-Feingold amendments, including § 30109(6), is that they were a reaction to 

perceived threats of foreign influence in U.S. elections – factors not present in this 

case. See [DE 189 at 18]. FEC also advocated for a “strong presumption” in favor of 

the range selected by Congress. See [DE 189 at 13]. However, as Judge Newsom 

notes in his Yates concurrence, the Eighth Amendment was passed to limit Congress’ 

28. See Pub. L. 107-155, 116 Stat. 81 (2002). 

29. United States v. Danube Carpet Mills, Inc., 737 F.2d 988, 993 (11th 

Cir. 1984). 

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authority to punish, and simply deferring to Congress “[s]eems a bit like letting the 

driver set the speed limit.” See Yates, 21 F.4th at 1318 (Newsom, J. concurring). 

FEC claimed it was significant that the district court did not choose the maximum

penalty. However, choosing the maximum penalty is fully exercising discretion to 

punish. By contrast, the Yates Court found it significant that the trial court selected 

the minimum statutory penalty. Because the trial court in Yates did not exercise its 

discretion to punish above the minimum, its discretion did not come into play and 

the facial invalidity of the statute was not at issue. 

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

unconstitutional excessive fine under the Eighth 

Amendment. 

FEC pursued and the district court in its “discretion” imposed a punitive (i.e., 

criminal) excessive fine in violation of the Eighth Amendment. See [DE 163]; [DE 

191]. In rejecting Rivera’s Eighth Amendment challenge, the district court 

determined that it acted within its “discretion” in choosing a civil penalty at 600% 

of the amount of the alleged illegal contributions because this was within the 300–

1000% range set by Congress in FECA § 30109(a)(6)(C) and because the court 

applied the 9th Circuit’s Furgatch30 factors used in other FECA cases. See [DE 191]. 

In its summary judgment order, the court expressed that “it is necessary for this Court 

to also bar [Rivera] from violating the statute” and “from engaging in similar 

30. FEC v. Furgatch, 869 F.2d 1256 (9th Cir. 1989). 

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unlawful conduct in the future” and that the court’s remedies would “do the trick” 

in “convincing Rivera” to “stop violating the law.” See [DE 163 at 38]. The court 

also expressed that the civil penalty would “vindicate the FEC’s authority and 

strengthen its ability to enforce 52 U.S.C. § 30122.” See [DE 163 at 37]. 

The Court’s justifications reflect that the penalties imposed were at least partly 

penal in nature because they are grounded in the common law principles of 

punishment. See Yates, 21 F.4th at 1325 and n.4 (“In the criminal law, district courts 

impose fines based on a set of statutory standards, located in 18 U.S.C. §§ 3553(a) 

and 3572.3 These standards are Congress’s codification of the traditional purposes 

of sentencing: general deterrence, specific deterrence or incapacitation, and 

retribution.”); FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82, 88, 99 (D.D.C. 2014) 

(“[T]he FEC argues that a penalty is necessary to deter similar violations and to 

punish defendants, noting that the purpose of a civil penalty is to punish culpable 

individuals, not just to restore the status quo. FEC Reply at 13”) (emphasis added).31

 Because the civil penalties are at least partially punitive in nature, the court 

should have applied this Court’s Excessive Fines analysis to determine if the amount 

violates the Eighth Amendment. See Yates, 21 F.4th 1288 (“(i) whether the 

31. Accord Furgatch, 869 F.2d at 1259; FEC v. Latpac, No. 1:21-cv-06095, 

2022 U.S. Dist. LEXIS 61125, at *11 (S.D.N.Y. Mar. 31, 2022); FEC v. O‘Donnell, 

No. 15-17-LPS, 2017 U.S. Dist. LEXIS 59524, at *5-6 (D. Del. Apr. 19, 2017); FEC 

v. Am. Fed’n of State, Cty. & Mun. Empls.-P.E.O.P.L.E. Qualified, Civil Action No. 

88-3208, 1991 U.S. Dist. LEXIS 15654, at *5 (D.D.C. Oct. 31, 1991).

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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.”). 

Under the Yates test, the amount of the fine is grossly disproportionate to the 

alleged offense. First, Rivera is not within the class of persons that § 30122 was 

principally directed. As explained supra, § 30122 provision is not directed at false 

reporting to FEC or making excessive cash contributions or excessive base 

contributions. And FEC did not allege that Rivera attributed the payments to 

someone other than himself in his direct and/or indirect interactions with Sternad 

and the vendors. 

Further, this case did not involve allegations of a quid pro quo.

32 Rather, FEC 

alleged that Rivera made the payments to better his own campaign by weaking 

32. The Supreme “Court has recognized only one permissible ground for 

restricting political speech: the prevention of ‘quid pro quo’ corruption or its 

appearance.” FEC v. Ted Cruz for Senate, 142 S. Ct. 1638, 1652 (2022). “Over time, 

various other justifications for restricting political speech have been offered—[1] 

equalization of viewpoints, [2] combating distortion, [3] leveling electoral 

opportunity, [4] encouraging the use of public financing, and [5] reducing the 

appearance of favoritism and undue political access or influence—but the [Supreme] 

Court has repudiated them all.” Wisconsin Right to Life State PAC v. Barland, 664 

F.3d 139, 153-54 (7th Cir. 2011). “Congress may not regulate contributions simply 

to reduce the amount of money in politics, or to restrict the political participation of 

some in order to enhance the relative influence of others.” McCutcheon v. FEC, 572 

U.S. 185, 191-192 (2014) (“Many people might . . . be delighted to see fewer 

television commercials touting a candidate’s accomplishments or disparaging an 

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Demorcatic frontrunner Garcia in the primary. According to FEC’s allegations, 

Rivera was not endeavoring to get Sternad elected into office in exchange for 

promises of political favors from Sternad. Rather, FEC alleged that Rivera was 

paying the vendors to help get himself re-elected in the general election.33 Further, 

there was only a generalized,34 non-specific harm to the public because the alleged 

plan didn’t prevent Garcia from winning the primary or defeating Rivera in the 

opponent’s character. Money in politics may at times seem repugnant to some, but 

so too does much of what the First Amendment vigorously protects.”). 

33. Cf. FEC v. Ted Cruz for Senate, 142 S. Ct. 1638, 1652 (2022) (the First 

Amendment “safeguards the ability of a candidate to use personal funds to finance 

campaign speech, protecting his freedom to speak without legislative limit on behalf 

of his own candidacy.” (quoting Buckley v. Valeo, 424 U. S. 1, 54 (1976)); see also 

Shrink Mo. Gov’t PAC v. Maupin, 892 F. Supp. 1246, 1255 (E.D. Mo. 1995) 

([W]hile the Court might agree that negative campaigning is distasteful, that is not a 

sufficient basis for interfering with core first amendment rights.”); Ariz. Right to Life 

PAC v. Bayless, 320 F.3d 1002, 1014 (9th Cir. 2003) (“[T]he First Amendment 

requires that politicians tolerate insulting, and even outrageous, speech in order to 

provide adequate breathing space to the freedoms protected by the First 

Amendment.”) (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)). 

34. “Admittedly, there is always harm to the public when [the Act] is 

violated.” FEC v. Kalogianis, No. 8:06-cv-68-T-23EAJ, 2007 U.S. Dist. LEXIS 

88139, at *20 (M.D. Fla. Nov. 30, 2007) (quoting FEC v. American Fed‘n of State, 

County and Municipal Employees- P.E.O.P.L.E. Qualified, 1991 U.S. Dist. LEXIS 

15654, 1991 WL 241892 (D.D.C. Oct. 31, 1991)). “Nonetheless, in this instance any 

injury to the public is remote and circumscribed.” Id. (imposing civil penalties on 

defendants for “making, consenting to, and accepting in-kind corporate 

contributions; and for falsely reporting the sources of two of the loans and the dates 

of repayment of two others”). 

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general election. [DE 171-5 at 5 n.5].35 Courts have generally taken a “hands-off” 

approach to passing judgment on so-called political “dirty tricks” in the absence of 

proof that the conduct violates a specific statute. See Newsom v. Golden, 602 F. 

Supp. 3d 1073, 1085 (M.D. Tenn. 2022).36 Thus, all three Yates factors weigh against 

imposing a substantial fine under the allegations and evidence in this case. Certainly, 

imposing the largest fine in FEC history on a non-corporate individual is not 

sustainable applying Yates to the allegations and evidence in this case. 

 

35. Cf. Gonzales v. Madigan, 990 F.3d 561, 564 (7th Cir. 2021) (“Gonzales 

contends . . . that Rodriguez and Barboza were stooges put on the [Democratic 

primary] ballot by Madigan’s allies to divide the Hispanic vote and ensure 

Madigan’s victory. . . . We mean no disrespect to politicians in recognizing that 

many false statements are made during political campaigns and that many a 

stratagem that one side deems clever will be seen by the opposition as a dirty trick. 

Opposing political figures may brand true statements as false and honest 

campaigning as a rotten subterfuge. Voters rather than judges must decide when one 

side has gone overboard.”). 

36. Accord Reardon v. Danley, No. 21-CV-2260, 2022 U.S. Dist. LEXIS 

144883, at *40 (C.D. Ill. July 6, 2022); Raila v. Cook Cnty. Officers Electoral Bd., 

No. 19 C 7580, 2021 U.S. Dist. LEXIS 215458, 2021 WL 5179913, at *4 (N.D. Ill. 

Nov. 8, 2021); Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 939 (7th Cir. 2018) 

(“Politics is a rough-and-tumble game, where hurt feelings and thwarted ambitions 

are a necessary part of robust debate. It is impossible to imagine the judiciary 

attempting to decide when a politically retaliatory step goes ‘too far’ without 

displacing the people’s right to govern their own affairs and making the judiciary 

just another political tool for one faction to wield against its rivals. . . . The price of 

political dirty tricks must be collected at the ballot box rather than the courthouse.”); 

Manley v. Law, 889 F. 3d 885, 889 (7th Cir. 2018) (“The Constitution does not 

guarantee good feelings or regulate manners in political disputes.”). 

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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.

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 12,882 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 

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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: June 14, 2023

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on June 14, 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 

Fla. Bar No. 330302 

TRAILBLAZER

1200 Brickell Avenue 

Penthouse 1900 

Miami, FL 33131 

305-222-7851 

jfeldman@trailblazerlaw.com 

/s/ Thomas L. Hunker 

Thomas L. Hunker 

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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