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USCA11 Case: 22-11437 Document: 51 Date Filed: 08/14/2023 Page: 1 of 70 

No. 22-11437 

UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

DAVID RIVERA 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

Appeal from the United States District Court 

For the Southern District of Florida 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

Lisa J. Stevenson Greg Mueller 

Acting General Counsel Attorney 

lstevenson@fec.gov gmueller@fec.gov 

Kevin Deeley Shaina Ward 

Associate General Counsel Attorney 

kdeeley@fec.gov sward@fec.gov 

August 14, 2023 FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 
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CERTIFICATE OF INTERESTED PERSONS 

Pursuant to Eleventh Circuit Rule 26.1-3, the FEC hereby identifies the 

following trial judge(s), attorneys, persons, associations of persons, firms, 

partnerships, or corporations that have/had an interest in the outcome of this 

appeal. Pursuant to Federal Rule of Appellate Procedure 26.1, the Federal Election 

Commission, as a government entity, is not required to file a corporate disclosure 

statement. The FEC is not aware of any publicly traded corporations or companies 

that have an interest in the outcome of this case or appeal: 

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

 Cooke, Hon. Marcia G. (deceased), United States District Court Judge 

 Deeley, Kevin, Counsel for Appellee Federal Election Commission 

 Feldman, Jeffrey D., Counsel for Appellant David Rivera 

 Goodman, Jonathan, United States Magistrate Judge 

 Hunker, Thomas L., Counsel for Appellant David Rivera 

 Hunker Paxton Appeals & Trials, Counsel for Appellant David Rivera 

 Mueller, Greg J., Counsel for Appellee Federal Election Commission 

 Paxton, V. Ashley, Counsel for Appellant David Rivera 

 Rivera, David, Appellant 

C-1 
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 Stevenson, Lisa J., Counsel for Appellee Federal Election 

Commission 

 Trailblazer, Counsel for Appellant David Rivera 

 Ward, Shaina, Counsel for Appellee Federal Election Commission 

C-2 
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STATEMENT REGARDING ORAL ARGUMENT 

Appellee believes that oral argument is unnecessary to facilitate the 

resolution of this appeal. The district court correctly applied the controlling law to 

the facts in entering summary judgment in favor of the FEC and in denying 

Appellant’s two motions filed after entry of summary judgment, and the facts and 

legal arguments are adequately presented in the briefs and record. See Fed. R. 

App. P. 34(a)(2). To the extent the Court determines that oral argument would be 

helpful, the Commission requests that the parties be allocated equal time to present 

their positions. 

C-3 
 

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GLOSSARY 

FEC or Commission Federal Election Commission 

FECA Federal Election Campaign Act 

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TABLE OF CONTENTS 

Page 

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF ISSUES PRESENTED ....................................... 1 

COUNTERSTATEMENT OF THE CASE ......................................................... 2 

I. FACTUAL AND PROCEDURAL BACKGROUND .............................. 2 

A. The Parties ....................................................................................... 2 

B. The Federal Election Campaign Act’s Prohibition on 

Making a Contribution in the Name of Another ............................. 3 

C. Factual Background ......................................................................... 8 

1. David Rivera’s Scheme in the 2012 Primary 

Election to Illegally Fund the Sternad Campaign ................ 8 

2. David Rivera’s Subsequent Activities and Current 

Criminal Charges................................................................ 11 

D. Administrative Proceedings Underlying This Case ...................... 12 

E. Proceedings in the District Court Leading to 

Summary Judgment ....................................................................... 16 

F. Proceedings Following Summary Judgment in the 

District Court................................................................................. 22 

STANDARD OF REVIEW ............................................................................... 24 

SUMMARY OF THE ARGUMENT ................................................................ 25 

ARGUMENT..................................................................................................... 27 

I. The District Court Properly Determined That It Had 

Subject Matter Jurisdiction ...................................................................... 27 

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A. The FEC Met the Statutory Prerequisites for 

Filing this Case .............................................................................. 27 

B. Rivera Forfeited Any Arguments Regarding 

Being a Represented Party and The FEC 

Appropriately Communicated with Rivera 

In Any Event ................................................................................. 31 

II. THE DISTRICT COURT PROPERLY DETERMINED 

THAT RIVERA VIOLATED 52 U.S.C. SECTION 30122 

BY MAKING $75,927.31 OF IN-KIND CONTRIBUTIONS 

IN THE NAME OF ANOTHER ............................................................. 33 

A. Documentary Evidence, Corroborating Witness 

Testimony and Rivera’s Own Statements Established 

His Liability ................................................................................... 33 

B. Rivera’s Evidentiary Challenges Are Without Merit .................... 35 

C. Appellant Misapplies the Law on Contributions in the 

Name of Another ........................................................................... 41 

III. THE DISTRICT COURT CORRECTLY HELD THAT 

RIVERA’S CIVIL PENALTY IS NOT 

UNCONSTITUTIONALLY EXCESSIVE ............................................. 47 

A. Rivera Waived the Ability to Challenge the 

Civil Penalty by Not Raising it on Summary Judgment ............... 47 

B. The Civil Penalty is Not Unconstitutionally 

Excessive Under Yates .................................................................. 49 

CONCLUSION.................................................................................................. 54 

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TABLE OF AUTHORITIES 

Cases Page 

Am. Home Assur. Co. v. Glenn Estess & Assocs., Inc., 

763 F.2d 1237 (11th Cir. 1985) ............................................................................ 47 

Arrington v. Cobb Cnty., 139 F.3d 865 (11th Cir.1998) ........................................ 24 

Austin v. United States, 509 U.S. 602 (1993) ......................................................... 50 

Bradley v. Pfizer, Inc., 440 F. App’x 805 (11th Cir. 2011) .................................... 39 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................... 6, 45 

Campaign Legal Ctr. v. FEC, 

952 F.3d 352 (D.C. Cir. 2020) ............................................................................... 5 

Carmichael v. Kellogg, Brown & Root Servs., Inc., 

572 F.3d 1271 (11th Cir. 2009) ............................................................................ 24 

Carter v. BPCL Mgmt., LLC, 

2021 WL 7502560 (S.D. Fla. Sept. 28, 2021) ..................................................... 48 

Citizens United v. FEC, 558 U.S. 310 (2010)..................................................... 6, 52 

Cooper v. Fed. Emergency Mgmt. Agency, 

2019 WL 6218791 (D.C. Cir. Nov. 15, 2019) ..................................................... 30 

Cooper v. Nielsen, 298 F. Supp. 3d 197 (D.D.C. 2018) .................................... 29-30 

CSX Transp., Inc. v. General Mills, Inc., 

846 F.3d 1333 (11th Cir. 2017) ............................................................................ 31 

Ellis v. England, 432 F.3d 1321 (11th Cir.2005) .................................................... 37 

FEC v. Comm. of 100 Democrats, 844 F. Supp. 1 (D.D.C. 1993) ......................... 50 

FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82 (D.D.C. 2014) ........................... 50 

FEC v. Craig for U.S. Senate, 816 F.3d 829 (D.C. Cir. 2016) ............................... 51 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ..................................................... 45 

iv 
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*FEC v. Furgatch, 869 F.2d 1256 (9th Cir. 1989) ..................................... 21, 50, 52 

FEC v. Kalogianis, 2007 WL 4247795 (M.D. Fla. Nov. 30, 2007) ....................... 40 

FEC v. National Republican Senatorial Committee, 

877 F.Supp. 15 (D.D.C. 1995) ............................................................................. 30 

FEC v. National Rifle Association of America, 

553 F. Supp. 1331 (D.D.C. 1983) .................................................................. 30, 31 

FEC v. O’Donnell, 

Civ No.15-17, 2017 WL 1404387 (D. Del. Apr. 19, 2017) ................................. 50 

FEC v. Rivera, 333 F.R.D. 282 (S.D. Fla. 2019) ...................................................... 6 

FEC v. Swallow, 304 F. Supp. 3d 1113 (D. Utah 2018) ............................... 7, 17, 42 

FEC v. Friends of Jane Harman, 59 F. Supp. 2d 1046 (C.D. Cal. 1999) .............. 40 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) ........................................ 45 

Gregory v. Georgia Dep’t of Hum. Res., 355 F.3d 1277, 

1279-80 (11th Cir. 2004) .....................................................................................29 

Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995) ........................................... 39 

Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995) .......................................................... 24 

Jacoby v. Keers, 779 F. App’x 676 (11th Cir. 2019) .............................................. 38 

Kavanaugh v. Miami-Dade Cty., 775 F. Supp. 2d 1361 (S.D. Fla. 2011) ........ 29, 30 

Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990) ........................................... 24 

*Mariani v. United States, 80 F. Supp. 2d 352 (M.D. Penn. 1999) ............... 6, 7, 45 

Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) ........................................ 5, 6 

McCutcheon v. FEC, 572 U.S. 185 (2014) ............................................................. 52 

Merrill Stevens Dry Dock Co. v. M/V YEOCOMICO II, 

329 F.3d 809 (11th Cir. 2003) .............................................................................. 24 

v 
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Minnifield v. Johnson & Freedman II, LLC, 

522 F. App’x 782 (11th Cir. 2013) ...................................................................... 38 

*United States v. O’Donnell, 608 F.3d 546 (9th Cir. 2010) ........................... 5, 6, 54 

PDV USA, Inc., v. Interamerican Consulting, Inc., 

2020 WL 2479227 (S.D.N.Y. May 13, 2020) ................................................ 12, 40 

Raney v. Aware Woman Ctr. for Choice, Inc., 

224 F.3d 1266 (11th Cir. 2000) ............................................................................ 25 

Re Decker, 212 So.3d 291 (Fla. 2017) .................................................................... 33 

Schwarz v. Bd. Of Supervisors on behalf of Villages Cmty. Dev. Districts, 

672 F. App’x 981 (11th Cir. 2017) ................................................................. 47-48 

Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F.3d 1205 (11th Cir. 2015) .............. 25 

Smith v. Marcus & Millichap, Inc., 991 F.3d 1145 (11th Cir. 2021) ..................... 39 

Solaroll Shade & Shutter Corp., Inc. v. Bio–Energy Systems, Inc., 

803 F.2d 1130 (11th Cir. 1986) ............................................................................ 49 

Timbs v. Indiana, 139 S. Ct. 682 (2019) ................................................................. 50 

United States v. 817 Ne. 29th Drive, Wilton Manors, Fla. 

175 F.3d 1304 (11th Cir. 1999) ............................................................................ 51 

*United States v. Bajakajian, 524 U.S. 321 (1998) .......................................... 50, 51 

*United States v. Boender, 649 F.3d 650 (7th Cir. 2011) ............................ 5, 43, 46 

United States v. Carson, 447 F. App’x 925 (11th Cir. 2011) ................................. 39 

United v. Chaplin’s, Inc., 646 F.3d 846 (11th Cir. 2011) ....................................... 51 

*United States v. Danielczyk, 788 F. Supp. 2d 472 (E.D. Va. 2011) ................. 5, 43 

United States v. Hsu, 643 F. Supp. 2d 574 (S.D.N.Y. 2009) .................................... 5 

United States v. Smukler, 330 F. Supp. 3d 1050 (E.D. Pa. 2018) .......................... 46 

vi 
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United States v. Smukler, 2018 WL 3416401(E.D. Pa. July 13, 2018) .................. 46 

United States v. Whittemore, 776 F.3d 1074 (9th Cir. 2015) ................................. 43 

Univ. of Ga. Athletic Ass’n v. Laite, 756 F.2d 1535 (11th Cir. 1985) .................... 24 

*Yates Pinellas Hematology & Oncology, P.A., 

21 F.4th 1288 (11th Cir. Dec. 29, 2021) ............................................ 23, 49, 52, 54 

Statutes and Regulations 

2 U.S.C. § 441f ................................................................................................ 4, 5, 13 

18 U.S.C. § 1001 ..................................................................................................... 41 

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

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

52 U.S.C. § 30102 ................................................................................................. 3, 4 

52 U.S.C. § 30104 ..................................................................................................... 8 

52 U.S.C. § 30104(b)(3)(A) ...................................................................................... 3 

52 U.S.C. § 30107(e) ................................................................................................ 2 

52 U.S.C. § 30109(a)(1) ............................................................................................ 2 

52 U.S.C. § 30109(a)(2) ............................................................................................ 2 

52 U.S.C. § 30109(a)(3) .......................................................................................... 15 

52 U.S.C. § 30109(a)(4)(A)(i) ................................................................................ 16 

52 U.S.C. § 30109(a)(6) .......................................................................................... 16 

52 U.S.C. § 30109(a)(6)(B) .................................................................................... 21 

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52 U.S.C. § 30109(a)(6)(C) .......................................................................... 7, 21, 52 

52 U.S.C. § 30109(d)(1)(A)(i) ................................................................................ 54 

52 U.S.C. § 30109(d)(1)(A)(i)(D)........................................................................... 54 

52 U.S.C. § 30116(a)(1)(A) ...................................................................................... 4 

52 U.S.C. § 30116(a)(7)(B)(i) ................................................................................... 4 

52 U.S.C. § 30118 ..................................................................................................... 4 

52 U.S.C. § 30119 ..................................................................................................... 4 

52 U.S.C. § 30121 ..................................................................................................... 4 

*52 U.S.C. § 30122 .......................................................................................... passim 

11 C.F.R. 100.52(d)(1) .............................................................................................. 7 

*11 C.F.R. 110.4(b) .............................................................................. 15, 16, 28, 29 

*11 C.F.R. § 110.4(b)(1)(i) ....................................................................................... 5 

11 C.F.R. § 110.4(b)(1)(iii) ................................................................. 4, 7, 16, 17, 18 

11 C.F.R. 110.4(b)(1)(iv) .......................................................................................... 4 

11 C.F.R. 110.4(b)(2)(i) ............................................................................................ 5 

11 C.F.R. 110.4(b)(2)(ii) ........................................................................... 5, 8, 13, 43 

11 C.F.R. § 111.24(a)(1) ......................................................................................... 21 

Rules 

Fed. R. App. P. 32(a)(5) .......................................................................................... 56 

Fed. R. App. 32(a)(6) .............................................................................................. 56 

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Fed. R. App. P. 32(a)(7) .......................................................................................... 56 

Fed. R. App. 32(f) ................................................................................................... 56 

Fed. R. Civ. P. 12(b)(1) ........................................................................... 1, 24, 26, 31 

Fed. R. Civ. P. 12(b)(6) ............................................................................... 17, 27, 28 

Fed. R. Civ. P. 32(e) ................................................................................................ 56 

Fed. R. Civ. P. 56(c) ................................................................................................ 24 

Fed. R. Civ. P. 59 ...................................................................................................... 1 

Fed. R. Civ. P. 59(e) .......................................................................................... 23, 47 

Fed. R. Civ. P. 60 ...................................................................................................... 1 

Fed. R. Civ. P. 60(b) ............................................................................................... 23 

Fed. R. Evid. 801(d)(2)(E) ...................................................................................... 40 

Fla Bar. Rule 4-4.2 (Comment) .............................................................................. 33 

Miscellaneous 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, § 315, 116 Stat. 81, 108 (2002) ........................................... 7 

Civil Monetary Penalties Inflation Adjustments, 

74 Fed. Reg. 31,345 (July 1, 2009) ...................................................................... 21 

U.S. Const. amend. VIII .......................................................................................... 50 

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COUNTERSTATEMENT OF JURISDICTION 

This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291; 28 

U.S.C. § 1331. 

COUNTERSTATEMENT OF ISSUES PRESENTED 

The district court below granted the Federal Election Commission’s (“FEC” 

or “Commission”) motion for summary judgment, finding that appellant David 

Rivera secretly provided nearly $76,000 of in-kind contributions to the primary 

election campaign of Justin Lamar Sternad in Florida’s 26th Congressional District 

in knowing and willful violation of 52 U.S.C. § 30122 and assessing a $456,000 

civil penalty for those violations of the Federal Election Campaign Act’s 

(“FECA”) prohibition on contributions made in the name of another. The district 

court properly denied Rivera’s post-judgment motion to dismiss pursuant to Rule 

12(b)(1) of the Federal Rules of Civil Procedure, determining that the Commission 

met its statutory obligations regarding notifications during the administrative 

process. The district court also properly denied Rivera’s additional post-judgment 

motion pursuant to Fed. R. Civ. P. 59 and 60, holding that the civil fine imposed 

against Rivera was not unconstitutionally excessive under the Eighth Amendment 

of the U.S. Constitution. 

The issues now presented for review are: 

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I. Whether the District Court properly held that the Commission met its 

statutory prerequisites in the administrative process prior to filing suit. 

II. Whether the District Court properly held that Rivera violated 52 U.S.C. § 

30122’s prohibition against making contributions in the name of another 

by making $75,927.31 of in-kind contributions to secretly fund the 

primary election campaign of Justin Lamar Sternad. 

III. Whether the District Court properly held that Rivera’s civil penalty for 

violating 52 U.S.C. § 30122’s prohibition against making contributions in 

the name of another was not unconstitutionally excessive or vague. 

COUNTERSTATEMENT OF THE CASE 

I. FACTUAL AND PROCEDURAL BACKGROUND 

A. The Parties 

Appellee FEC is the independent agency of the United States government 

authorized to institute administrative investigations of possible violations of FECA 

52 U.S.C. § 30109(a)(1)-(2), and to initiate actions in the United States district 

courts for civil enforcement of it, id. §§ 30107(e), 30109(a)(6). (ECF 41 ¶ 5; ECF 

50 ¶ 5.)1 

References to the district court record are noted by the electronic filing 

system (ECF) entry and the page numbers that appear in the header generated by 

the district court’s electronic filing system. Where multiple deposition transcript 

2 

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Appellant David Rivera successfully ran for office as a Florida state 

legislator multiple times and for Florida’s 25th Congressional District in 2010. 

(ECF 41 ¶ 6; ECF 50 ¶ 6.) He defeated Democrat Joe Garcia in the general 

election that year. (Id.) Rivera was a United States Congressman representing 

Florida’s 25th Congressional District from January 2011 through January 2013. 

(Id.) Rivera ran for re-election as a Republican candidate in 2012, but to represent 

Florida’s redrawn 26th Congressional District. (Id.) A leading candidate to be his 

general-election opponent was Garcia, who faced three candidates in the 

Democratic primary including Justin Lamar Sternad. (ECF 41 ¶ 12; ECF 50 ¶ 12.) 

Garcia won the Democratic primary and defeated Rivera in the general election. 

(Id.) 

B. The Federal Election Campaign Act’s Prohibition on Making a 

Contribution in the Name of Another 

FECA requires that the authorized campaign committees of federal 

candidates have treasurers receive and spend funds, deposit contributions into 

designated campaign accounts at depositories, and keep records of contributors. 

52 U.S.C. § 30102. All contributors above a threshold amount must be identified 

in publicly filed disclosure reports. See 52 U.S.C. § 30104(b)(3)(A) (requiring 

campaigns to identify each person contributing “in excess of $200” in an election 

pages appear on a single document page, however, the specific page number of the 

source transcript is noted by “p.” or “pp.” 

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cycle). Candidate committees can accept no contributions from individuals that 

aggregate more than a few thousand dollars per election, an inflation-adjusted 

amount that was $2,500 in 2012. 52 U.S.C. § 30116(a)(1)(A), (f). Expenditures 

made “in cooperation, consultation, or concert, with” a candidate or her campaign 

“shall be considered to be a contribution to such candidate.” 52 U.S.C. § 

30116(a)(7)(B)(i). Candidate campaigns are not permitted to accept contributions 

from a number of sources, including corporations, labor organizations, government 

contractors, and foreign nationals. 52 U.S.C. §§ 30118, 30119, 30121. 

Disbursements by committees may be made in cash only in amounts of $100 or 

less. 52 U.S.C. § 30102. 

To make a number of these provisions effective, FECA provides that “[n]o 

person shall make a contribution in the name of another person.” 52 U.S.C. § 

30122 (formerly 2 U.S.C. § 441f). And just as one may not make a contribution in 

the name of another, the Act and Commission regulations also prohibit a person 

from knowingly accepting a contribution made by one person in the name of 

another person.2 Thus, schemes to conceal the true source of campaign 

contributions by funneling funds using false names or straw donors are prohibited. 

“[F]alse name” contributions are defined as “[m]aking a contribution of money or 

anything of value and attributing as the source of the money or thing of value 

52 U.S.C. § 30122 (formerly 2 U.S.C. § 441f); 11 C.F.R. § 110.4(b)(1)(iv). 

4 

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another person when in fact the contributor is the source.” 11 C.F.R. 

110.4(b)(2)(ii); see United States v. O’Donnell, 608 F.3d 546, 549 (9th Cir. 2010). 

A straw-donor or concealed-conduit contribution is when one person provides 

money to another to make a contribution without disclosing the source of money, 

is another example of a type of conduct prohibited by section 30122. 11 C.F.R. 

110.4(b)(2)(i). 

Courts have repeatedly enforced the prohibition in both contexts. See, e.g., 

United States v. Boender, 649 F.3d 650, 661 (7th Cir. 2011) (concluding § 441f 

“unambiguously criminalized both straw man and false name contributions”); 

O’Donnell, 608 F.3d at 546 (same); Mariani v. United States, 212 F.3d 761, 775 

(3d Cir. 2000) (concluding “[p]roscription of conduit contributions (with the 

concomitant requirement that the true source of contributions be disclosed) would 

seem to be at the very core of the [Buckley v. Valeo] Court’s analysis” and 

therefore upholding § 441f); see also United States v. Danielczyk, 788 F. Supp. 2d 

472, 478-85 (E.D. Va. 2011) (Section 441f prohibits “pass-through contributions”); 

United States v. Hsu, 643 F. Supp. 2d 574, 576 (S.D.N.Y. 2009) (evidence 

sufficient to support conviction in “unlawful straw donor scheme”). 

Section 30122 “is designed to ensure accurate disclosure of contributor 

information” by prohibiting persons from making contributions in the name of 

another. Campaign Legal Ctr. v. FEC, 952 F.3d 352, 354 (D.C. Cir. 2020) (per 

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curiam). “[S]uch contributions undermine transparency . . . by shielding the 

identities of true contributors” to a political campaign, O’Donnell, 608 F.3d at 554, 

and deprive the electorate of crucial information about the “sources of electionrelated spending,” Citizens United v. FEC, 558 U.S. 310, 367 (2010). 

Without the prohibition, individuals or campaigns could “thwart disclosure 

requirements and contribution limits” by attributing contributions to false names or 

straw donors. O’Donnell, 608 F.3d at 549. False attributions of that type 

undermine the government’s interests in providing the electorate with “information 

as to where political campaign money comes from and how it is spent by the 

candidate.” Buckley v. Valeo, 424 U.S. 1, 66-67 (1976) (per curiam) (quotation 

marks and footnote omitted). Section 30122 ensures that the “true source[s] of 

contributions [are] disclosed.” Mariani, 212 F.3d at 775. 

The prohibition on contributions in the name of another also prevents 

circumvention and enables detection of violations FECA’s source and amount 

limits on contributions. O’Donnell, 608 F.3d at 549. The ban ensures that donors 

who have contributed the maximum amount to a candidate do not evade that limit 

by financing the contributions of others. FEC v. Rivera, 333 F.R.D. 282, 286 (S.D. 

Fla. 2019); Mariani v. United States, 80 F. Supp. 2d 352, 368 (M.D. Pa. 1999). 

This provision further prevents corporations, unions, government contractors, and 

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foreign nationals from evading FECA’s restrictions by contributing in the names of 

those who are permitted to contribute. See Mariani, 80 F. Supp. 2d at 368. 

One subparagraph of the FEC’s implementing regulation previously 

prohibited knowingly helping or assisting the making of a contribution in the name 

of another. 11 C.F.R. § 110.4(b)(1)(iii) (2022). That provision was struck down 

by a court in another jurisdiction during the course of the proceedings below and 

recently removed from the Commission’s regulations. FEC v. Swallow, 304 F. 

Supp. 3d 1113, 1118 (D. Utah 2018); Contributions in the Name of Another, 38 

Fed. Reg. 33816 (May 25, 2023). 

Violations of section 30122 are some of the most significant offenses under 

FECA. Reflecting the importance of the provision, Congress significantly 

enhanced the potential penalties for knowing and willful violations of the 

prohibition on conduit contributions in 2002. See Bipartisan Campaign Reform 

Act of 2002, Pub. L. No. 107-155, § 315, 116 Stat. 81, 108 (2002). Civil penalties 

for violations of section 30122 are authorized to be five times greater than the 

penalties for other knowing and willful FECA violations. See 52 U.S.C. § 

30109(a)(6)(C). 

“[I]n-kind contributions” include “the provision of any goods or services 

without charge or at a charge that is less than the usual and normal charge for such 

goods or services.” 11 C.F.R. 100.52(d)(1). Stated differently, an “in-kind” 

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contribution is simply a contribution of goods, commodities, or services as 

opposed to a monetary contribution. See Webster’s Third New International 

Dictionary 1243 (2002). The dollar value of an in-kind contribution is subject to 

limits and must be reported. See 52 U.S.C. § 30104; 11 C.F.R. 110.4(b)(2)(ii). 

C. Factual Background 

1. David Rivera’s Scheme in the 2012 Primary Election to 

Illegally Fund the Sternad Campaign 

Appellant David Rivera secretly provided in-kind contributions to fund 

Sternad’s 2012 congressional primary election campaign and directed others to 

falsely hide his involvement as the source of the funds. Those campaign efforts 

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. 

The scheme began at a lunchtime meeting at the Catch of the Day Restaurant 

on April 2, 2012, where Rivera directed his former romantic partner Ana Alliegro 

to contact Sternad to provide assistance to Sternad on his campaign. (ECF 142-5 at 

13-14; ECF 142-6 ¶ 4; ECF 142-7 at 5.) Alliegro proceeded to contact Sternad to 

set up a meeting for the offer to assist his campaign. (ECF No. 142-5 at 13-15.) 

Along with Jenny Nillo, an associate of Alliegro’s, they met at Miller’s Ale House, 

and Alliegro outlined the assistance she and Rivera could provide. (ECF 142-5 at 

14-15; ECF 142-8 at pp. 54, 113; ECF 142-35 ¶ 4; ECF 142-6 ¶ 7.) Rivera 

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provided Alliegro with the money needed to pay for Sternad’s ballot qualification 

fee and oversaw the submission of the qualifying papers. (ECF 142-5 at 17-20; 

ECF 142-29.) Throughout the scheme, Alliegro served as a “middleman” to assist 

Rivera in his efforts to illegally fund the Sternad campaign. (See generally ECF 

142-5.) Rivera delivered cash to vendors providing services to the committee or 

arranged for cash that he controlled to be delivered to vendors providing services 

to the campaign. (See id.) The vendors that Rivera directed were: (1) Yolanda 

Rivas, a graphic designer for the Sternad mailers; (2) Henry Barrios, who owned a 

company called Expert Printing, used to print the Sternad mailers; and (3) John 

Borrero, who owned a company called Rapid Mail used for mailing the Sternad 

mailers to targeted voters. (ECF 142-5 at 26-29; ECF 142-13 ¶ 3; ECF 142-14 ¶ 3; 

ECF 142-15 ¶ 3; ECF 142-30 ¶¶ 5-10.) Rivera hand-picked each of these vendors, 

all of which he had used in his prior campaigns, and paid them for their services. 

(See id.) Rivera used a fourth vendor who ultimately did not end up being paid, 

Hugh Cochran of Campaign Data, to provide the addresses for the voters to be 

targeted when the Sternad mailers were sent. (ECF 142-14.) 

The detailed business records, contemporaneous correspondence and sworn 

testimony from the vendors show that Rivera paid the vendors a total of 

$75,927.31: 

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In-Kind Contribution Cash Payment 

Graphic Design Work $2,600 

Printing Costs, First Round to Expert Printing $20,430.21 

Printing Costs, Second Round to Expert Printing $15,000 

Mailer 1 (cash to Rapid Mail) $2,731.35 

Mailer 2 (cash to Rapid Mail) $2,624.35 

Mailer 3 (cash to Rapid Mail) $2,624.35 

Mailer 4 (cash to Rapid Mail) $2,624.35 

Mailer 5 (Cash to Rapid Mail) $2,624.35 

Mailer 6 (Cash to Rapid Mail) $2,624.35 

Second Round Mailing (cash to Rapid Mail) $22,044 

Total Cash Payments $75,927.31 

While this scheme was unfolding, Alliegro and Rivera stayed in direct 

communication via text and phone, with Alliegro regularly seeking direction from 

Rivera on payment issues and the campaign’s messaging. (ECF 142-5 at 26-33; 

ECF 142-33.) Rivera sought to conceal these in-kind contributions by avoiding a 

paper trail. (ECF 142-5 at 26-29; ECF 142-13; ECF 142-14; ECF 142-15; ECF 

142-30.) He paid the vendors in cash to produce and distribute materials for 

Sternad’s campaign, and sought to remove his name from anything showing his 

involvement. (See id.; see also ECF 142-32 at pp. 88, 149-151.) Rivera then 

directed Alliegro to direct Sternad to file disclosure reports that falsely stated that 

the contributions were loans from Sternad’s personal funds. (ECF 142-5 at 33-35; 

ECF 142-8 at pp. 50-51; ECF 142-42.) Sternad and Alliegro referred to the person 

that was providing the funds for his campaign as “DR,” and the “Gangster.” (ECF 

142-8 at p. 129.) 

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Sternad was criminally prosecuted and pled guilty for his role in this scheme 

as well as other activity. United States v. Sternad, Case No. 1:13-CR-20108 (S.D. 

Fla). After Sternad’s guilty plea, Sternad amended his FEC disclosure reports to 

reflect that what had previously been reported as “loans from personal funds” had 

actually come in via contributions, and, in a cover letter to the FEC, Sternad 

explained the deposit of funds into his bank account were “coordinated” and 

payments were made directly to vendors, by “Ana Alliegro and/or David Rivera.” 

(ECF 142-11; ECF 142-12.) Alliegro was also criminally prosecuted and testified 

before a criminal grand jury regarding her and Rivera’s role in this scheme. United 

States v. Alliegro, 14-20102-CR (S.D. Fla.). Alliegro testified before the grand 

jury specifically that the direction for the scheme and cash to pay for the Sternad 

campaign always came from David Rivera. (ECF 142-5.) 

2. David Rivera’s Subsequent Activities and Current Criminal 

Charges 

Rivera has continued to run for political office since the 2012 election. In 

March 2017, Rivera filed to run as a candidate in 2018 for Florida’s 105th House 

District. (ECF 41 ¶ 6; ECF 50 ¶ 6.) And more recently, in 2022, Rivera filed 

paperwork with the Florida Division of Elections to run for state House District 

119. Rivera has also stated recently that he is currently considering a run for the 

Florida State House of Representatives. See Def.’s Unopposed Mot. to Lift His 

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Curfew, USA v. Rivera, 1:22-cr-20552-DPG (Doc. No. 88) at 2 (S.D. Fla. July 26, 

2023). 

Rivera’s financial situation has been illuminated in a current criminal 

prosecution on separate charges and a related civil suit. Rivera has been indicted 

for money laundering, conspiracy, and representing a foreign government without 

registering in violation of the Foreign Agents Registration Act. See Indictment, 

USA v. David Rivera, 1:22-cr-20552-DPG (Doc. No. 3) (S.D. Fla. Nov. 16, 2022). 

The indictment alleges Rivera was part of a conspiracy to lobby in the United 

States on Venezuela’s behalf, with compensation occurring by way of a wholly 

owned U.S. subsidiary of the state-owned oil company of Venezuela contracting 

with Interamerican Consulting, Inc., a Florida corporation controlled by Rivera, on 

March 21, 2017. See id. In May 2020, the subsidiary filed a civil lawsuit against 

Rivera’s consulting company alleging a right to recoupment of $15 million of a 

$50 million contract that it had paid in 2017 for a failure to complete the contracted 

work. PDV USA v. Interamerican Consulting, Case No. 20-cv-03699-JGK 

(S.D.N.Y.) (Doc. No. 1). 

D. Administrative Proceedings Underlying This Case 

On April 26, 2013, the Commission notified David Rivera by mail that it 

had received information in the normal course of carrying out its supervisory 

responsibilities indicating that “you or your funds may have been involved” in the 

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Sternad-related violations of the name-of-another prohibition and other provisions 

of FECA. (ECF 171-4 at 2 (emphasis added).) Rivera submitted no response. 

(ECF 172-1 ¶ 2.) 

The Commission unanimously found reason to believe that Rivera had 

knowingly and willfully violated 2 U.S.C. § 441f (now 52 U.S.C. § 30122). He 

was notified with a Factual and Legal Analysis, which described the Sternadrelated scheme as “a plain example of false-name contributions” and continued as 

follows: “Sternad’s co-conspirators — one of whom has been identified as Rivera 

— made direct and in-kind contributions to the Sternad campaign totaling 

$81,486.20. The Commission therefore finds reason to believe Rivera violated 

the Act by falsely making contributions in Sternad’s name.” (ECF 171-5 at 11.) 

The analysis cited 2 U.S.C. § 441f (now 52 U.S.C. § 30122) and cited and quoted 

the regulation for false-name contributions, 11 C.F.R. § 110.4(b)(2)(ii). (Id. at 11 

n.31.)3 

In September 2013, Rivera designated counsel to appear for him before the 

FEC. (ECF 172-1 at 12.) Rivera’s counsel mailed a response to the 

Commission’s reason-to-believe letter denying that Rivera had made 

contributions in the name of another. (ECF 172-1 at 10-11.) Agency staff 

The letter also notified Rivera that the Commission had found reason to 

believe he had committed two additional violations, exceeding the contribution 

limits and exceeding the currency contribution limit. (ECF No. 171-5 at 11-12.) 

13 

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provided a courtesy copy to Rivera’s counsel of the earlier notification from 

April. (ECF 172-1 ¶ 4.) 

Rivera’s designated counsel ceased responding to the FEC. In order to 

secure an interview with Rivera during the Commission’s investigation, an FEC 

attorney attempted to communicate with Rivera’s counsel over the course of two 

months, in October and November of 2016, with multiple phone calls, emails, an 

overnight mail letter, and an attempted fax. (ECF 171-5 at 2-3; ECF 172-1 ¶ 5; 

id. at 18-19.) Agency counsel left a voicemail to Mr. Rivera confirm whether he 

was represented, a request that was not immediately responded to. (ECF No. 

172-1 ¶ 6; id. at 20.) Agency counsel subsequently received a voicemail message 

from his counsel and then, a few weeks later, a call from Rivera himself at which 

time he provided an email address to be used for the scheduling of the phone 

interview that was being sought and for the sending of documents from the matter 

that he requested. (ECF 172-1 ¶¶ 6-7.) Rivera responded to further written 

efforts to obtain Rivera’s representation status with a further request for 

information about the investigation and deferred consideration of a telephone 

interview. (ECF 172-1 ¶¶ 8-9; id. at 20-22.) 

 After months of unsuccessfully attempting to confirm representation 

status and to set up a telephone interview, and with Rivera having begun to 

represent himself, on December 16, 2016, Rivera was sent a subpoena with 

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questions and document requests, along with repeat information regarding his 

ability to obtain representation. (ECF 172-1 ¶ 10; id. at 24-30.) Rivera emailed a 

response on January 16, 2017. (ECF No. 172-1 ¶ 10). 

After the completion of the investigation, the FEC’s General Counsel 

notified Rivera on April 28, 2017, of her recommendation that the Commission 

find probable cause to believe that he knowingly and willfully violated 52 U.S.C. § 

30122 and provided a brief with her positions on the legal and factual issues in the 

matter. (52 U.S.C. § 30109(a)(3); ECF 172-1.) This brief concluded that there 

was probable cause to believe that David Rivera knowingly and willfully violated 

52 U.S.C. § 30122 and 11 C.F.R. 110.4(b). (ECF 172-1 at 46.) The brief 

described how “Rivera orchestrated a scheme to funnel contributions to Sternad,” 

“took extensive measures to conceal his involvement,” and how “Rivera, with 

Alliegro’s help, coordinated and funded the production and distribution of those 

campaign materials.” (ECF 172-1 at 33, 36) The brief described how the scheme 

primarily involved cash payments from Rivera but also included that were 

facilitated by Rivera but from checks drawn from a nonprofit entity named Florida 

Action Network that had received funding from other persons. (ECF 172-1 at 34-

41; id. at 42-43.) It contained a chart showing the exact same transactions, among 

others, that were later included in the Amended Complaint in this action and 

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specified that Rivera arranged these payments. (ECF 172-1 at 37.) “Rivera did not 

submit a written response.” (ECF 142-36 ¶ 5.) 

On June 1, 2017 the Commission voted 5-0 to find probable cause to believe 

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

C.F.R. § 110.4(b).” (ECF 172-1 at 53.) On June 2, 2017, the Commission notified 

Rivera of these findings and sent a proposed conciliation agreement to initiate the 

required attempt to correct the violations through the informal method of entering 

into such an agreement. (ECF 171-7; 52 U.S.C. § 30109(a)(4)(A)(i).) The 

notification and proposed conciliation agreement from the FEC explained it had 

found probable cause to believe that Rivera “knowingly and willfully violated 52 

U.S.C. § 30122 and 11 C.F.R. § 110.4(b).” (ECF 171-7 at 2, 4.) The notice and 

agreement did not cite or specify a particular clause of 11 C.F.R. § 110.4(b). (Id.) 

E. Proceedings in the District Court Leading to Summary 

Judgment 

Unable to conciliate the matter, the Commission voted unanimously to 

authorize this lawsuit and the FEC filed its complaint on July 14, 2017. 52 

U.S.C. § 30109(a)(6); ECF 1, ECF 171-8. The original complaint included 

allegations regarding both the payments that had come from cash Rivera provided 

and the funds from a nonprofit that Rivera had facilitated. (ECF 1 at 3-4.) It 

concluded that Rivera violated both 52 U.S.C. § 30122 and the subparagraph of 

its implementing regulation, 11 C.F.R. § 110.4(b)(1)(iii), which prohibits 

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

another. (Id. at 9) After the Court had granted the Commission additional time to 

serve process on Rivera because Rivera had “dodged service in this matter and 

has otherwise failed to respond” to attempts to contact him, the United States 

Marshals Service was able to successfully serve him on October 20, 2017, at an 

airport. (ECF 11; App’x Part A at 4 (listing ECF 15).) 

Rivera then moved to dismiss under Federal Rule of Civil Procedure 

12(b)(6). (ECF 17.) Following the submission of the parties’ briefing on that 

motion, the United States District Court for the District of Utah issued an opinion 

in another case brought by the FEC. See Swallow, 304 F. Supp. 3d at 1118. That 

court granted a motion to dismiss, enjoined the Commission from enforcing 11 

C.F.R. § 110.4(b)(1)(iii), and ordered that subparagraph stricken from the Code of 

Federal Regulations. After additional briefing about that decision, this Court 

granted Rivera’s motion to dismiss, construing the original complaint as 

exclusively seeking relief under 11 C.F.R. § 110.4(b)(1)(iii). (ECF No. 31.) 

Because there was a jurisdictional basis outside of the helping or assisting 

regulation in the original complaint, the Commission sought leave to file an 

amended complaint focusing on Rivera’s primary liability for violating FECA’s 

prohibition on contributions in the name of another, 52 U.S.C. § 30122. (ECF 

32.) All of the factual allegations in the Amended Complaint were in the original 

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complaint, but the Amended Complaint omitted allegations regarding payments 

by check from a nonprofit that Rivera had merely facilitated and did not claim 

that Rivera violated the helping or assisting portion of the regulation codified at § 

110.4(b)(1)(iii). (ECF 41 at 5.) Instead, the Amended Complaint’s sole cause of 

action asserted that “Defendant David Rivera knowingly and willfully violated 52 

U.S.C. § 30122; 11 C.F.R. § 110.4(b)(1)(i) (same), by making contributions in the 

name of others to Justin Lamar Sternad’s 2012 primary campaign in Florida’s 

26th U.S. Congressional District.” (ECF 41 ¶ 35.) 

Defendant then filed a 12(b)(6) Motion to Dismiss the FEC’s Amended 

Complaint, arguing that the Amended Complaint did not state a claim because it 

failed to allege that Rivera concealed his identity from the vendors involved and 

the Sternad campaign and that the FEC’s claim is barred by the statute of 

limitations. The Court denied defendant’s Motion in its entirety, holding that the 

FEC had stated a claim for a violation of section 30122, and that the Amended 

Complaint related back to the July 14, 2017 date of the original complaint and 

was therefore timely. (ECF 49; see also ECF 40.) 

Following discovery, the parties submitted opposing summary judgment 

motions. On February 23, 2021, the district court issued its order granting 

summary judgment to the Commission and denying Rivera’s motion for summary 

judgment. (ECF 163.) In granting the Commission’s motion, the district court 

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determined that all of Rivera’s arguments in “his astoundingly concise (7-page) 

opposition brief” to the Commission’s motion, lacked merit. (Id. at 4.) The 

district court held that “when reviewed as a whole, the record evidence quite 

obviously paints a picture showing that Rivera engaged in a scheme to unlawfully 

fund the Sternad campaign.” (Id. at 5.) Furthermore, the Court found that 

“Rivera’s opposition brief fails to rebut or even address much of that evidence.” 

(Id.) 

Reviewing the evidence provided by the Commission, the court determined 

first that it could properly consider Alliegro’s grand jury and plea colloquy 

testimony at summary judgment, and additionally that Alliegro did not repudiate 

this prior testimony through a 2019 declaration provided by Rivera or a bar 

complaint Alliegro purportedly filed during her criminal proceedings. (Id. at 5-7.) 

The court then held that the evidence clearly established Rivera’s liability for 

violation of 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(B)(1)(i). (ECF 163 at 19.) 

Alliegro’s grand jury and plea colloquy testimony made it “quite obvious” that 

Alliegro acted as a middleman to “Rivera in his efforts to illegally fund the Justin 

Lamar Sternad Congressional Campaign.” (Id.) 

In addition to Alliegro’s testimony, the Court held that “the sworn testimony 

of no-less than six independent witnesses: Jenny Nillo, Henry Barrios, Yolanda 

Rivas, Hugh Cochran, John Borrero, and Justin Sternad,” further established 

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Rivera’s liability. (ECF 163 at 19). The district court further noted the “plethora 

of other documentary exhibits to further outline the scheme that Rivera and 

Alliegro orchestrated.” (Id. at 30) 

Importantly, the Court further found that “Rivera’s opposition brief did not 

contest the testimony of Sternad, Jenny Nillo, Henry Barrios, Yolanda Rivas, Hugh 

Cochran, or John Borrero. (Id. at 33.) Nor did the opposition brief contest or even 

address the testimony of Alliegro other than in its misguided efforts to have that 

testimony precluded from consideration. (Id.) Furthermore, Rivera’s self-serving 

affidavits submitted in opposition “fail to create an issue of fact in light of the 

previously described abundant evidence in support of the FEC’s Motion.” (Id.) In 

sum, the court held that “the testimonial evidence in this case establishes that 

Rivera orchestrated a scheme in which he made unlawful contributions in the name 

of another to the Sternad campaign for the purpose of undermining Joe Garcia’s 

campaign.” (Id.) “Rivera accomplished this by using Alliegro and other third 

parties to make cash payments on behalf of the Sternad campaign. (Id.) 

“Additionally, the uncontested testimonial evidence adduced in this case shows 

that Rivera directed Sternad to file false reports with the FEC.” (Id. at 33-34.). 

In determining the appropriate penalty, the Court properly noted that it was 

authorized to award a civil penalty which did not exceed the greater of $7,500 for 

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

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

amount applicable under 52 U.S.C. § 30109(a)(6)(B) as adjusted by inflation 

pursuant to statute); FEC, Civil Monetary Penalties Inflation Adjustments, 74 Fed. 

Reg. 31,345 (July 1, 2009). The Court further recognized its authority to award 

enhanced civil penalties for “knowing and willful” violations. See ECF 163 at 34-

35; 52 U.S.C. § 30109(a)(6)(C) (providing for penalties not less than 300% of the 

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

amount involved). Examining the factors set forth in FEC v. Furgatch, 869 F.2d 

1256, 1258 (9th Cir. 1989), the Court determined a penalty of $456,000, which is a 

rounded sum of 600% of the $75,927.31 amount of violation, was an appropriate 

penalty for Rivera’s knowing and willful violations. (ECF163 at 37.)4 That 

penalty amount was in the lower half of the range the Court could have imposed.5 

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

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

4 Evidence from discovery established that the costs of the design work, 

printing, and mailing for the transactions that are indisputably at issue here were 

slightly higher than the available evidence had indicated at the time of the 

Amended Complaint. (ECF 41.) 

5 The FEC had made an error in its summary judgment brief, with the 

requested amount not corresponding to the requested percentage of the violation. 

(ECF 142 at 1-2; id. at 17, 20.) The district court entered the final judgment that 

the Commission later proposed with a payment consistent with the previously 

requested $456,000 amount while the previously requested higher percentage of 

the amount in violation was disregarded. (See ECF 177.) 

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the necessity of vindicating the authority of the FEC and the penalty’s deterrent 

effect. (ECF 163 at 34-39). Notably, the Court highlighted that Rivera’s 

opposition failed to oppose the Commission’s civil penalty argument and was in 

fact “silent on [the penalty] issue.” (Id. at 34.) Rivera was also sanctioned $927 

for violation of a court order to appear for deposition in an order that has not been 

appealed. (ECF No. 169.) 

F. Proceedings Following Summary Judgment in the District Court 

On March 31, 2021, Rivera filed a Motion to Dismiss for Lack of Subject 

Matter Jurisdiction. (ECF 171.) In what the district court described as “a lastditch effort to avoid a final judgment being entered against him,” (ECF 176 at 3), 

Rivera asserted that the statute of limitations provided lapsed prior to the filing of 

the Commission’s action, and that the FEC failed to provide Defendant David 

Rivera with pre-suit notice of his violations of 52 U.S.C. § 30122 and 11 C.F.R. § 

110.4(b)(1)(i). (ECF 176 at 3). On March 24, 2022, the district court denied the 

motion, holding that the Commission had provided Rivera with pre-suit notice of 

his alleged violations and that the statute of limitations had not lapsed. The Court 

subsequently entered a final judgment in favor of the Commission that ordered 

defendant to pay a penalty of $456,000 plus costs of $927 and permanently 

enjoined Rivera from making campaign contributions in the name of another in 

violation of 52 U.S.C. § 30122. (ECF 177.) 

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On April 26, 2022, the defendant filed a second post-judgment motion, this 

time pursuant to Fed. R. Civ. P. 59(e) or Rule 60(b) and asserting for the first time 

that the civil penalty was unconstitutionally excessive under the Eighth 

Amendment. The district court denied this motion on March 31, 2023 (ECF 191).6 

In its order, the court reiterated that Rivera had “raised no argument or objection to 

the $456,000 penalty proposed by the FEC,” and held that an evidentiary hearing 

was not “necessary or justified.” (ECF 191 at 2-3). The district court held that 

Rivera’s “failure to raise any argument at all regarding the civil penalty provides 

sufficient basis for denying him the opportunity to bring an Eighth Amendment 

challenge for the first time now.” (Id. at 5.) Furthermore, the Eleventh Circuit’s 

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

2021) (“Yates”), issued after summary judgment briefing and after the district 

court’s order granting summary judgment, provided no basis for reconsideration. 

(ECF 191 at 6.) Rivera filed the instant amended notice of appeal on April 7, 

2023. (ECF 193). 

The late United States District Judge Marcia G. Cooke presided over this 

matter from December 18, 2017, until it was reassigned to United States District 

Judge Aileen M. Cannon on January 30, 2023. (App’x Part A at 19 (listing ECF 

190).) 

23 

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STANDARD OF REVIEW 

Summary judgment is appropriate where “there are no genuine issues of any 

material fact and . . . the moving party is entitled to judgment as a matter of law.” 

Irby v. Bittick, 44 F.3d 949, 953 (11th Cir. 1995) (citing Fed. R. Civ. P. 56(c)). 

This Court reviews the district court’s grant of summary judgment de novo, and 

may affirm on any ground. See Arrington v. Cobb Cnty., 139 F.3d 865, 871 (11th 

Cir.1998). 

When evaluating a district court’s conclusions on a Rule 12(b)(1) motion, 

this Court “reviews the district court’s legal conclusions de novo and its factual 

findings for clear error.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 

F.3d 1271, 1279 (11th Cir. 2009); see also Lawrence v. Dunbar, 919 F.2d 1525, 

1530 (11th Cir. 1990) (“The usual standard of reviewing a district court’s findings 

of jurisdictional facts is the clearly erroneous standard.”). The “‘clearly erroneous’ 

standard is ‘highly deferential.’” Carmichael, 572 F.3d at 1280. The district 

court’s determination should be affirmed “so long as it is plausible in light of the 

record viewed in its entirety.” Merrill Stevens Dry Dock Co. v. M/V YEOCOMICO 

II, 329 F.3d 809, 816 (11th Cir. 2003) (quotation marks omitted); see also Univ. of 

Ga. Athletic Ass’n v. Laite, 756 F.2d 1535, 1543 (11th Cir. 1985) (“While the 

‘clearly erroneous’ standard of review is less stringent than the well-known sports 

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rule, ‘The referee is always right,’ it nevertheless presents a formidable challenge 

to appellants who . . . seek to overturn the factual findings of a district court.”). 

The appellate court reviews a district court’s denials of motions to alter or 

amend a judgment for abuse of discretion. Raney v. Aware Woman Ctr. for 

Choice, Inc., 224 F.3d 1266, 1268 (11th Cir. 2000). “An abuse of discretion 

occurs when the district court applies an incorrect legal standard, applies the law in 

an unreasonable or incorrect manner, follows improper procedures in making a 

determination, or makes findings of fact that are clearly erroneous, or when it 

misconstrues its proper role, or ignores or misunderstands the relevant evidence.” 

Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F.3d 1205, 1212 (11th Cir. 2015) 

(internal quotation marks and citation omitted). 

SUMMARY OF THE ARGUMENT 

The district court did not err in finding that Rivera secretly provided nearly 

$76,000 of in-kind contributions to the primary election campaign of Justin Lamar 

Sternad in Florida’s 26th Congressional District, in violation of 52 U.S.C. § 30122, 

granting the Commission’s motion for summary judgment, and assessing a 

$456,000 civil penalty against Rivera for his knowing and willful violations of 

FECA’s prohibition on contributions made in the name of another. The evidence 

showed that Rivera purposefully attempted to weaken a likely general-election 

opponent and trick voters into believing that the advertising had come from 

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another candidate in the opposition party’s primary election. Throughout the entire 

scheme, Rivera attempted to hide all written traces of his involvement and 

orchestrated his contributions being reported in a manner that did not reveal him as 

the true source of the funds. The FEC also established that Rivera’s concealed 

payments harmed the public, that Rivera can pay a substantial civil penalty, that 

there is a continuing need for deterrence of the illicit funding of sham and fringe 

candidates, and that Rivera’s continued unwillingness to take responsibility for his 

actions demonstrate a likelihood of future violations. Rivera did not genuinely 

dispute the volumes of evidence the FEC presented, only offering unfounded 

contentions denying responsibility and limited exhibits that failed to demonstrate a 

genuine issue of fact. 

Now in this appeal, Rivera seeks reversal of the district court’s summary 

judgment order and claims the district court committed error in denying his motion 

to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for three reasons, none of which are 

persuasive. First, Rivera argues that the Commission did not state a claim for a 

violation of Section 30122. Yet Rivera’s theory is wrong, and his conduct and the 

evidence presented clearly established this violation. Second, Rivera asserts that 

the district court lacked subject matter jurisdiction, however the Commission 

followed the jurisdictional pre-suit procedures in order to bring this lawsuit, and 

attempted to conciliate the matter through repeated and diligent pre-litigation 

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efforts. Third, Rivera seeks reversal of the $465,000 civil fine, however Rivera 

waived this argument by failing to oppose the penalty in his summary judgment 

papers. Moreover, the civil penalty the district court imposed falls squarely within 

the range of Congress’s discretion and plainly meets constitutional scrutiny. 

The district court properly held Rivera accountable for his surreptitious 

attempt to undermine the transparency of the financing for the primary election of 

his political opponent. Rivera’s attempts to continue to dodge responsibility for his 

FECA violations should be denied, and the district court’s orders should be 

affirmed. 

ARGUMENT 

I. THE DISTRICT COURT PROPERLY DETERMINED THAT IT HAD 

SUBJECT MATTER JURISDICTION 

The district court properly determined that the FEC met the statutory and 

jurisdictional prerequisites for suit in FECA (supra pp. 12-16). Now Rivera also 

claims he was improperly contacted directly by agency counsel, and that contact 

invalidates the administrative process prior to filing suit. But the record shows 

FEC properly communicated with Rivera. 

A. The FEC Met the Statutory Prerequisites for Filing this Case 

Each step in the administrative process provided Rivera with notice of the 

facts and the alleged statutory violation of Section 30122 that is the basis of this 

case. (See supra pp. 12-16.) Rivera’s own admissions and the FEC’s steps, 

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documented by the district court, show the administrative prerequisites have been 

met. 

Rivera argues the FEC’s “probable cause determination and conciliation 

attempts” were based on the helping and assisting theory in a regulation that it has 

since repealed. (Appellant’s Br. (“Br.”) 33-34.) But the facts and violations cited 

at each stage of the administrative process do not support Rivera’s narrow view of 

the notifications and actions taken by the Commission. As a factual matter, the 

FEC included all of the financial transactions that are in the Amended Complaint at 

each stage in the administrative process. The FEC included the statutory violation 

and citation to the applicable regulation that is the basis of the Amended 

Complaint, and at each stage of the process included a reference to the same 

broadly applicable implementing regulation. See supra pp. 17-18. 

At the reason to believe stage, the notification cited 52 U.S.C. § 30122, 

among other statutory provisions and included with this notification a Factual and 

Legal Analysis, which described the scheme that formed the basis of the Amended 

Complaint. (ECF 142-36 ¶ 3.) After an investigation, the FEC provided a copy of 

the brief that also included the General Counsel’s recommendation including 

violations of 52 U.S.C. § 30122 and 11 C.F.R. 110.4(b). (ECF 172-1 ¶ 11). The 

brief included a chart showing all of the exact same payments of cash from Rivera 

that were later included in the Amended Complaint in this action, but also included 

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payments from a nonprofit entity that Rivera had merely facilitated. (ECF 172-1 at 

37.) 

The Commission then found probable cause to believe Rivera had violated 

the FECA, citing the statute and regulation at issue in this case. i.e., it certified that 

Rivera “knowingly and willfully violated 52 U.S.C. § 30122 and 11 C.F.R. § 

110.4(b).” (ECF 172-1 at 53.) The notice sent to Rivera, the proposed conciliation 

agreement, and the formal record certifying the votes here did not cite or specify a 

particular clause of 11 C.F.R. § 110.4(b). 

The FEC’s Amended Complaint omitted the facts regarding a check 

payment from a nonprofit that Rivera had merely facilitated, and focused only on 

the cash payments for which the previous record indicated primary liability could 

be established. (ECF 1 at 3-4; ECF 41 at 5 .) The FEC was free to narrow the case 

at that juncture given the intervening legal developments regarding the helping or 

assisting regulation. In denying Rivera’s 12(b)(1) motion, the district court 

correctly held that “the Amended Complaint is reasonably related to the allegations 

in the administrative proceeding such that the Amended Complaint was not subject 

to separate presuit notice.” ECF 176 at 10 (citing Kavanaugh v. Miami-Dade Cty., 

775 F. Supp. 2d 1361, 1367 (S.D. Fla. 2011)); Gregory v. Georgia Dep’t of Hum. 

Res., 355 F.3d 1277, 1279–80 (11th Cir. 2004) (actions allowed that “amplify, 

clarify, or more clearly focus” allegations in administrative complaint); Cooper v. 

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Nielsen, 298 F. Supp. 3d 197, 202 (D.D.C. 2018); Cooper v. Fed. Emergency 

Mgmt. Agency, No. 19-5118, 2019 WL 6218791 (D.C. Cir. Nov. 15, 2019). The 

proper “inquiry becomes whether the claims raised in the judicial complaint are 

related to or grow out of the allegations” in the administrative matter. Kavanaugh, 

775 F. Supp. 2d at 1367. 

The only authority on which Rivera relies, a quote which he claims is from 

FEC v. National Republican Senatorial Committee (“NRSC”), 877 F.Supp. 15, 18 

(D.D.C. 1995), does not in fact contain any of the text Appellant’s brief purports to 

quote. This apparent error leaves the argument entirely unsupported by authority. 

Even if an argument could be inferred based on the citation to NRSC, Rivera’s 

reliance is misplaced. At issue in that case was whether a claim that accrued after 

the Commission completed its investigation and satisfied the statutory 

requirements contained in FECA. Id. at 15-18. In contrast, all of the factual and 

legal violations alleged here took place prior to the administrative process and the 

filing of suit. 

It appears Rivera attempts to draw from FEC v. National Rifle Association of 

America, Inc., 553 F. Supp. 1331, 1333 (D.D.C. 1983) (“NRA”). It is not 

surprising that Rivera did not want to draw this Court’s attention to that case, 

which provides strong support for the adequacy of the administrative process here. 

In NRA, the court denied defendants’ motion to dismiss for lack of subject matter 

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jurisdiction, which was in part based upon allegations that the Commission did not 

properly complete the administrative process. The NRA court dismissed separate 

counts in the complaint that were unrelated to the facts and violations that had been 

before the Commission. NRA, 553 F. Supp. at 1336. The dismissal occurred in the 

“unusual circumstances” that the litigation sought to involve different transactions 

and violations. Id. at 1338. Here, the administrative process included the law and 

all of the facts that were later the basis for the Amended Complaint, so NRA 

provides no support for Rivera’s position, and all of the prerequisites to suit were 

satisfied. The district court’s denial of Rivera’s Rule 12(b)(1) motion was proper, 

and this Court should affirm. 

B. Rivera Forfeited Any Arguments Regarding Being a Represented 

Party and The FEC Appropriately Communicated with Rivera In 

Any Event 

For the first time on appeal, Rivera argues that the FEC providing 

administrative materials directly to him and attempts to contact him directly are a 

jurisdictional defect. (Br. 36-38.) But Rivera did not present this argument to the 

district court. If a party hopes to preserve an argument, it “must first clearly 

present it to the district court in such a way as to afford the district court an 

opportunity to recognize and rule on it.” CSX Transp., Inc. v. General Mills, Inc., 

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846 F.3d 1333, 1336–37 (11th Cir. 2017). Rivera forfeited any contentions in this 

area. 

Even if Rivera had preserved arguments related to contacts with a purported 

represented party, that argument fails as a matter of both law and fact. The record 

shows the FEC communicated with Rivera’s one-time counsel during the 

administrative process; provided Rivera’s counsel with notifications that were 

issued; and, only after counsel ceased representation, requested that Rivera advise 

the agency if he continued to be represented. Rivera never explicitly responded to 

repeated requests from agency counsel to identify whether he was represented but 

began to communicate in a manner consistent with self-representation. (ECF 172-

1 ¶¶ 3-7.) 

Moreover, Rivera fails to cite any authority for the proposition that mailing 

notifications to him directly is a jurisdictional defect sufficient to deprive the court 

of jurisdiction. And Rivera also fails to establish that he was represented at later 

points in the administrative proceedings when material was mailed directly to him. 

The record demonstrates repeated requests from agency counsel to Rivera’s former 

counsel and repeated inquiries to Rivera as to whether he was represented that 

went unanswered. (See id.) 

Even the Florida Bar Rule Rivera cites (Br. 37) “only applies in 

circumstances where the lawyer knows that the person is in fact represented in the 

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matter to be discussed.” Fla Bar. Rule 4-4.2 (Comment). Thus, since the record 

establishes that agency counsel repeatedly asked if Rivera was represented, and 

Rivera did not disclose he was represented, the agency was in compliance with this 

rule. A Florida court, in applying rule 4-4.2, has also confirmed that status as “an 

unrepresented party [is] not dependent upon his former counsel’s compliance with 

the requirements . . . regarding withdrawal of an attorney.” Re Decker, 212 So. 3d 

291, 306 (Fla. 2017) (per curiam). Thus, it was reasonable for agency counsel 

after two months of failed communication to counsel to inquire if Rivera was 

represented in the administrative matter. Rivera preserved no argument regarding 

his representation status below and in any event his contentions fail to provide any 

reason to disturb the district court’s judgment. 

II. THE DISTRICT COURT PROPERLY DETERMINED THAT 

RIVERA VIOLATED 52 U.S.C. SECTION 30122 BY MAKING 

$75,927.31 OF IN-KIND CONTRIBUTIONS IN THE NAME OF 

ANOTHER 

A. Documentary Evidence, Corroborating Witness Testimony and 

Rivera’s Own Statements Established His Liability 

The district court order granting the Commission’s summary judgment 

motion was based on undisputed evidence and straightforward application of the 

law. Contemporaneous documentary evidence, testimony of Rivera’s associate, 

and the testimony of all the vendors whose services were purchased, established 

that a then-sitting Congressman engaged in an illicit scheme to provide campaign 

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assistance to an opponent’s primary opponent to weaken him in advance of the 

general election. The evidence the Commission provided in support of summary 

judgment included: 

 The grand jury testimony and guilty plea statements of Ana Alliegro, 

Rivera’s former romantic partner and associate in the scheme. Alliegro 

testified repeatedly that the cash to pay the vendors for the Sternad campaign 

came from Rivera, and that it was Rivera’s scheme. Alliegro sought 

direction from Rivera on payment issues and campaign messaging, which 

Rivera provided. (See ECF 142-5; ECF 142-33 at AZTP 0038-58, AZTP 

00041-42.) 

 The testimony of John Borrero, Yolanda Rivas, Henry Barrios, and Hugh 

Cochran, the vendors that Rivera worked with on the Sternad Campaign that 

confirmed the source funds for the mailings came from Rivera. (ECF 142-1; 

(ECF 142-5 at 26-27; ECF 142-30) (Rivera paying $2,600 for graphic design 

services)); (ECF 142-5 at 29; ECF 142-13) (Rivera paying at least $15,000 

for printing mailers); (ECF 142-5 at 29; ECF 142-13) (Rivera paying more 

than $37,000 for postage and mailing services).) (ECF 142-15.) Rivera had 

previously worked with these vendors at issue, and had no explanation for 

why the vendors provided consistent testimony implicating him in the 

oversight and payment for the mailers. 

 Rivera took extensive measures to conceal his involvement and prevent a 

paper trail, by paying in cash delivered usually by an intermediary and 

seeking to hide his identity from anything in writing showing his 

involvement (ECF 142-5; ECF 142-32 at p. 150.) Rivera was also careful to 

never meet with Sternad but failed to mention to the vendors that the work 

they were performing at his request was not for his own campaign. (ECF 

142-5; ECF 142-35; ECF 142-15.) 

 Rivera directed Alliegro to have Sternad falsely report to the FEC that the 

funds he received for his campaign as personal loans. (ECF 142-5 at 33-35.) 

Rivera raised no genuine issue of fact about any of this evidence. As the 

district court properly held, Rivera’s scheme presented a blatant example of false 

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name contributions: Rivera, functioning as the true source, made in-kind 

contributions to the Sternad campaign through Alliegro, acting as an intermediary. 

Sternad then accepted the funds and falsely reported the contributions as personal 

loans made by Sternad to his committee. (ECF 163 at 33-34) 

B. Rivera’s Evidentiary Challenges Are Without Merit 

Despite his failure to genuinely raise any issues of fact at the district court, 

Appellant makes two evidentiary challenges on this appeal. First, Rivera asserts 

that Alliegro’s grand jury testimony that helped establish Rivera’s liability should 

be disregarded. Second, he broadly claims, “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,” and asserts that the evidence 

did not support the imposition of the civil penalty. (Br. 43). Both arguments are 

without merit. 

First, the district court soundly rejected Appellant’s argument regarding 

Alliegro’s grand jury testimony and subsequent declarations, explaining in great 

detail that Alliegro had not actually repudiated her prior grand jury testimony 

through a 2019 declaration or a bar complaint. (ECF 163 at 5).7 Alliegro’s 

The district court highlighted the “disingenuous and misleading nature of 

Alliegro’s statements concerning the Bar Complaint,” including that Rivera had 

“neglected to inform the Court that the Florida Bar threw out the Bar Complaint 

prior to the filing of Rivera’s opposition brief (and prior to the date Alliegro 

purportedly signed her Declaration).” (ECF 163 at 7 (citing ECF 153-1).) 

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declaration had vaguely referred to a Florida Bar complaint she made in her 

underlying criminal case against Assistant U.S. Attorney Thomas Mulvihill. 

Notably, the Court found it “odd that Rivera claims that Alliegro repudiated her 

grand jury testimony, as well as the statements she made at her plea colloquy, yet 

Rivera fails to cite to the Declaration in which Alliegro purportedly repudiated that 

sworn testimony.” (Id.) Rivera’s renewal of unsupported allegations on this 

appeal that Alliegro “recanted” the testimony establishing Rivera as the source of 

the funds made to the Sternad campaign and the mastermind behind the scheme 

should be similarly disregarded. 

Moreover, as the district court correctly noted, Alliegro’s purported 

declaration was “rife with vague and ambiguous assertions, and it does not contain 

any specific facts.” (ECF 163 at 6.) It did not “specifically identify what or how 

the allegations in the Amended Complaint are “patently false.” Nor does it 

identify what statements were purportedly coerced.” (Id.) In sum, the district 

court held that “the one-page Declaration does not state what Rivera contends that 

it states. The declaration does not even mention Alliegro’s grand jury testimony. 

Nor does it mention her plea colloquy.” (Id.) As such, the Court properly found 

that there was “no basis for it to construe Alliegro’s declaration to be a repudiation 

of her grand jury testimony and plea colloquy that she gave in criminal court, 

under penalty of perjury, five years before the declaration here was purportedly 

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executed.” (Id.) With respect to the Alliegro’s bar complaint, the district court 

explained that it “relies upon ambiguous, generic, and conclusory allegations that 

lack sufficient specificity to repudiate Alliegro’s grand jury and plea colloquy 

testimony.” (Id. at 8.)8 The Court found Alliegro’s declaration and incorporated 

Bar complaint “akin to a sham affidavit with the only exception being that they 

were made by a nonparty.” (Id. at 13). 

Significantly here, Rivera does not challenge the district court’s findings on 

Alliegro’s testimony other than asserting in a conclusory manner that it “did not 

support the entry of summary judgment.” (Br. 43.) This is insufficient to establish 

a dispute of fact. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (per 

curiam) (“[M]ere conclusions and unsupported factual allegations are legally 

insufficient to defeat a summary judgment motion.”). In contrast to her purported 

declaration, Alliegro’s grand jury testimony is consistent with the substantial 

Appellant asserts that “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.” (Br. 43.) However, Alliegro did testify 

that Rivera gave this direction, explaining that ““After speaking with David 

[Rivera], 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 of this . . . . Rivera thought if 

we did this and called it a loan the media would get off of it and it would all go 

away.” (ECF 142-5 at 33-35.) 

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documentary and other evidence that Rivera failed to dispute at summary judgment 

establishing his liability. 

Rivera’s remaining evidentiary challenge fares no better. Appellant broadly 

asserts without support that “[t]he 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.” Appellant only points to the cell phone logs 

between Alliegro and Rivera, claiming that this material was improperly 

considered by the district court as “hearsay.” (Br. 43). As noted above, Rivera did 

not genuinely dispute this evidence at the district court or offer any evidence or 

explanation in response. See Jacoby v. Keers, 779 F. App’x 676, 679 (11th Cir. 

2019) (per curiam); Minnifield v. Johnson & Freedman II, LLC, 522 F. App’x 782, 

784 (11th Cir. 2013) (“the strength of undisputed facts is immaterial at the 

summary-judgment stage”) (per curiam). The district court’s order should be 

affirmed on this ground alone. 

 Even if Rivera had properly disputed the issue, the district court was within 

its discretion to consider this material at summary judgment. Rivera argues that 

the call logs and text messages were not “authenticated,” but even in the absence of 

a timely objection, the district court sua sponte made detailed findings establishing 

that the messages had been sent between Alliegro’s cellphones and Sternad or 

Rivera, relying on among other things an FBI extraction report and direct evidence 

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from multiple witnesses. (See ECF 163 at 31 n.5.) Even if that were not the case, 

at the summary judgment stage, “evidence does not have to be authenticated or 

otherwise presented in an admissible form to be considered at the summary 

judgment stage, as long as the evidence could ultimately be presented in an 

admissible form.” Smith v. Marcus & Millichap, Inc., 991 F.3d 1145, 1156 n.2 

(11th Cir. 2021) (internal quotation marks omitted). Here, Rivera has presented no 

argument to compel a conclusion that the call logs or texts — common types of 

evidence admitted in civil cases — were not capable of being admitted at a trial. 

See Bradley v. Pfizer, 440 F. App’x 805, 807 (11th Cir. 2011) (“For factual issues 

to be considered genuine, they must have a real basis in the record.”); Haves v. 

City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (“A genuine issue of material fact 

does not exist unless there is sufficient evidence favoring the nonmoving party for 

a reasonable jury to return a verdict in its favor.”). See also United States v. 

Carson, 447 F. App’x 925 (11th Cir. 2011) (text message between two alleged coconspirators was admissible at trial of defendant on drug conspiracy charges under 

co-conspirator exception to the hearsay rule) (citing Fed. R. Evid. 801(d)(2)(E)). 

Lastly, Rivera argues that “the evidence was not competent or sufficient to 

impose a civil penalty on Rivera,” and that the Court should have denied the 

Commission’s motion on this basis or conducted an evidentiary hearing. (Br. 44.) 

Yet, the evidence concerning the civil penalty remained undisputed at summary 

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judgment.9 As the district court explicitly recognized, Rivera’s response was 

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

163 at 34 & n.7.) The district court did not abuse its discretion by evaluating the 

Commission’s motion and the recommendation of the civil penalty based on the 

extensive record before it. For his part, Rivera did not present any support for his 

argument that the fine imposed was improper or that Rivera did not have the ability 

to pay.10 

9 To demonstrate Rivera’s ability to pay the $456,000 fine, the FEC provided 

the district court with Rivera’s 2015 Disclosure Statement, filed in 2016, in which 

he asserted that his net worth was $1,511,968. (ECF 142-37.) Further, the FEC 

noted the 2020 breach of contract action pending against Rivera’s consulting firm 

alleging that he had recently been paid $15 million for the contract work. See PDV 

USA, Inc., v. Interamerican Consulting, Inc., No. 20-cv-3699, 2020 WL 2479227 

(S.D.N.Y. May 13, 2020). 

10 Appellant cites FEC v. Kalogianis, 2007 WL 4247795, at *6 (M.D. Fla. 

Nov. 30, 2007) apparently for his position that he was entitled to an evidentiary 

hearing on the civil penalty. However, in Kalogianis, the district court did not 

suggest that an evidentiary hearing was necessary to resolve the penalty issue. 

Moreover, while the district court here explicitly held that Rivera’s conduct was 

willful and therefore necessitated an enhanced penalty, the court in Kalogianis 

found that the defendants’ conduct “evinces no bad faith.” Id. Instead, the conduct 

in Kalogianis was a case in which “any injury to the public is remote and 

circumscribed.” Id. Appellant’s reliance on Fed. Election Comm’n v. Friends of 

Jane Harman, 59 F. Supp. 2d 1046, 1059 (C.D. Cal. 1999) is similarly misplaced. 

In determining the penalty in that case, the court explained that “it does not appear 

that deliberate or serious violations occurred in this case.” Id. 

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C. Appellant Misapplies the Law on Contributions in the Name of 

Another 

In an effort to address the uncontested record establishing Rivera’s 

contributions in the name of another, Appellant posits yet another theory about the 

prohibition at issue that again misses the mark. Rivera asserts that the district court 

erred in granting the Commission’s summary judgment motion because, “FEC’s 

allegations do not state a cause of action for violation of FECA § 30122,” because 

the “FEC did not allege that Rivera ‘made’ contributions to FEC; it alleged that 

Rivera ‘made’ contributions to the Sternad campaign.” (Br. 39.) 

Rivera has three times set forth various arguments attempting to recast his 

conduct as not falling within the statute, and each time he has incorrectly conflated 

section 30122 with what is actually a violation of 18 U.S.C. § 1001. Rivera first 

proffered this argument in his motion to dismiss the FEC’s Amended Complaint. 

(See ECF No. 49 at 13:3-7 (Rivera’s counsel arguing that “[i]t’s a 1001 violation” 

because “[t]he FEC is requiring the candidate to truthfully disclose”).) This was 

rejected by this Court in denying this motion. (ECF 48.) 

On summary judgment, Rivera again asserted that he could have violated 

section 30122 only if Rivera directly filed the Sternad’s disclosure reports himself 

with the FEC. (See ECF 139.) In his post-summary judgment motion, Rivera 

again attempted to place all emphasis on Sternad filing the disclosure reports for 

his campaign, arguing that it was solely Sternad’s false filings that established 

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Rivera’s illegal acts. (ECF 171.) In each instance the district court found these 

arguments unpersuasive, explaining that Rivera willfully violated 30122 by 

carrying out the entire scheme, which included: “using cash to make contributions 

to the Sternad Campaign to thereby avoid a paper trail reflecting that he was the 

source of the contributions; utilizing Alliegro and other third parties as the 

‘middleman’ in the scheme to transfer funds to and/or pay invoices on behalf of the 

Sternad Campaign; and directing Sternad, through Alliegro, in how to complete 

and submit false FEC filings.” (ECF 163 at 35). 

Rivera now suggests a slightly new variation of his previous theory that 

because Rivera openly “made” the payments “in his own name” to the same 

vendors he used on his campaign,” he did not make contributions in the name of 

another. (Br. 4, 38.) However, Appellant’s evaluation of the conduct that 

establishes a violation of 52 U.S.C. 30122 is incorrect. Rivera’s reliance on FEC 

v. Swallow, is misplaced. The operative complaint at issue on this appeal does not 

involve secondary liability or the secondary conduct the Utah court evaluated in 

that case. In Swallow, the defendant was not accused of making any contributions 

himself, but of assisting another in doing so. See Swallow, 304 F. Supp. 3d at 114. 

Here, as the district court held, Rivera was the source for all of the contributions in 

the Amended Complaint. (ECF No. 163 at 35 (“Rivera’s acts of: using cash to 

make contributions to the Sternad Campaign” were used to “avoid a paper trail 

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reflecting that he was the source of the contributions”).) Furthermore, all of 

Rivera’s acts — from making the payments in cash to the vendors, to directing 

others to conceal his name — established that he intentionally and willfully sought 

to have the contributions that were ultimately reported not be made not in his 

name, but in the name of Sternad. (Id.). 

FECA and the Commission’s regulations provide that a person who gives 

the funds to another for the purpose of contributing “makes” the resulting 

contribution. See Boender, 649 F.3d at 660; see also United States v. Whittemore, 

776 F.3d 1074, 1080 (9th Cir. 2015) (holding that defendant’s “unconditional 

gift[s]” to relatives and employees, along with suggestion they contribute the funds 

to a specific political committee, violated section 30122 because the source of the 

funds remained the individual who provided them to the putative contributors). 

The entirety of Rivera’s scheme is the 30122 violation. See, e.g., Danielczyk, 788 

F. Supp. 2d at 478-79 (describing a donor making a contribution to a campaign but 

representing himself to the campaign as someone else as a “false -name 

contribution” that is a § 30122 violation); see also 11 C.F.R. § 110.4(b)(2)(ii) (An 

example of a false-name contribution is a person “[m]aking a contribution of 

money or anything of value and attributing as the source of the money or thing of 

value another person when in fact the contributor is the source.”). 

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The fact that Alliegro, the vendors, and Sternad may have suspected or even 

knew that Rivera was the source of the funds does not invalidate the 30122 

conduct. And indeed, such a concealment element is unnecessary to state a claim 

under section 30122, and Rivera cites no authorities to establish otherwise. Had 

Congress intended to provide that “no person shall make a contribution in the name 

of another person without the recipient’s knowledge,” it would have so provided. It 

did not. On the contrary, in addition to contributors’ liability, Congress provided 

liability for anyone who “knowingly permit[s] his name to be used to effect such a 

contribution” or who “knowingly accept[s] a contribution made by one person in 

the name of another person,” 52 U.S.C. § 30122 (emphases added), thus 

confirming that knowing a true source does not remove liability. Indeed, 

knowledge of misattribution by a recipient or by a person knowingly allowing his 

name to be used attaches FECA’s name-of-another liability to those who accept the 

contributions or permit their names to be used, regardless of whether the identity of 

the true contributor is also known.11 The text of section 30122 thus itself illustrates 

the flaw in Rivera’s argument. 

This is consistent with the conduct for which Sternad ultimately pled guilty. 

Although Sternad professed to not be entirely certain of whether Rivera was the 

true source for the funding of his campaign, the judge nevertheless accepted his 

guilty plea to accepting the illegal contributions. See generally Factual Basis of 

the Plea of Guilty, United States v. Sternad, 13-cr-20108-CMA (Doc. No. 13). 

44 

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Rivera’s argument also misconceives the purpose of section 30122. The 

section serves Congress’s more foundational purposes in making voters aware of 

the sources of campaign financing and establishing base contribution limits to 

“limit the actuality and appearance of corruption resulting from large individual 

financial contributions.” Buckley, 424 U.S. at 26. Section 30122 “prevent[s] the 

circumvention of the ban on corporate and union contributions,” “prevent[s] 

circumvention of the limits on contributions by individuals and groups . . . and the 

prohibition on contributions by foreign nationals,” and “ensures that proper 

disclosure of the actual sources of campaign contributions occurs in federal 

elections.” Mariani, 80 F. Supp. 2d 352 at 368; see also Goland v. United States, 

903 F.2d 1247, 1251 (9th Cir. 1990) (section 30122 prevents “circumvent[ion]” of 

other FECA restrictions); id. at 1261 (explaining that a “major purpose behind the 

disclosure provision is to deter or expose corruption, ‘and therefore to minimize 

the influence that unaccountable . . . individuals can have on elected federal 

officials’” (quoting FEC v. Furgatch, 807 F.2d 857, 862 (9th Cir. 1987))); FEC 

Advisory Op. (Air Transport Association of America), 1986-41, 

http://saos.fec.gov/aodocs/1986-41.pdf (last visited Aug. 14, 2023) (explaining that 

section 30122 “serves to insure disclosure of the source of contributions to Federal 

candidates and political committees as well as compliance with the Act’s 

limitations and prohibitions”). 

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Accordingly, courts analyzing violations of section 30122 have not hesitated 

to enforce that provision in circumstances such as these where the campaign or 

committee had knowledge of the sources of funds. See, e.g., Boender, 649 F.3d at 

659-61 (sustaining contributor’s section 30122 liability for use of straw donor in 

case involving alleged quid pro quo scheme in which candidate was aware of the 

contributor’s identity); United States v. Smukler, 330 F. Supp.3d 1050, 1061 (E.D. 

Pa. 2018) (denying motion to dismiss and finding that the “indictment properly 

charges that defendant made a conduit contribution”); United States v. Smukler, 

No. CR 17-563-02, 2018 WL 3416401, at *3 (E.D. Pa. July 13, 2018) (explaining 

factual context of a violation where “defendant sent a check for $25,000 [to 

candidate] and instructed [candidate] to transfer $23,750 from her personal account 

to the campaign account”); Judgement, United States v. Smukler, No. CR 17-563-

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

section 30122 violation). And the FEC itself has regularly enforced section 30122 

in accordance with its plain terms. See, e.g., Matter Under Review (“MUR”) 4322 

(Waldholtz) (where the campaign knowingly accepted approximately $1.8 million 

in false name contributions from candidate’s father and attributed contributions to 

the candidate), https://www.fec.gov/files/legal/murs/4322/00003A6F.pdf; MUR 

6922 (ACA International Political Action Committee) (where, in an effort to 

address a perceived shortfall in a political action committee’s bank account, a 

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corporate officer authorized a transfer of $23,419 to committee’s account where 

the committee was aware of the true source), 

https://www.fec.gov/files/legal/murs/6922/15044376182.pdf. 

III. THE DISTRICT COURT CORRECTLY HELD THAT RIVERA’S 

CIVIL PENALTY IS NOT UNCONSTITUTIONALLY EXCESSIVE 

The District Court’s denial of Rivera’s post-judgment motion under Rule 

59(e) or Rule 60(b) of the Federal Rules of Civil Procedure was not an abuse of 

discretion. Appellant argues that the civil penalty imposed by the district court 

pursuant to Section 30109(a)(6)(C) is unconstitutionally vague and excessive. Yet 

Rivera’s failure to raise any argument against the FEC’s proposed fine at the 

summary judgment stage operated as a waiver of his Eighth Amendment argument. 

Moreover, the primary decision on which Rivera relies, Yates, did not warrant 

post-judgment relief and was not excessive or vague under any of the factors 

outlined in Yates and prior precedent. 

A. Rivera Waived the Ability to Challenge the Civil Penalty by Not 

Raising it on Summary Judgment. 

A court may find that a party waived any arguments that were not addressed 

in its response to a summary judgment motion. Am. Home Assur. Co. v. Glenn 

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

Supervisors on behalf of Villages Cmty. Dev. Districts, 672 F. App’x 981, 983 

(11th Cir. 2017) (per curiam) (affirming a district court’s finding that plaintiffs had 

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waived any challenge to the defendant’s motion for summary judgment on certain 

grounds which the plaintiffs did not address in their response to the motion for 

summary judgment); Carter v. BPCL Mgmt., LLC, Civ. No. 19-60887, 2021 WL 

7502560, at *8 (S.D. Fla. Sept. 28, 2021) (same). Here, as the district court 

explained in its order denying Rivera’s post-judgment motion, Rivera made no 

opposition to the Commission’s arguments concerning the civil penalty at 

summary judgment. (ECF 191.) Rather, the Court explained, “[d]efendant waited 

more than a year after the Court granted Plaintiff’s requested penalty to raise a 

challenge to the civil penalty—and after a separate, unsuccessful post-summary 

judgment motion to dismiss for lack of jurisdiction.” (Id. at 4 (citing ECF Nos. 

163, 171, 176).) There was “no mention of the civil penalty in Defendant’s Motion 

for Summary Judgment or Reply in support thereof [ECF Nos. 139, 152], or in 

Defendant’s opposition to Plaintiff’s Motion for Summary Judgment [ECF No. 

146].” (Id.) Furthermore, “nothing prevented Defendant from raising an 

argument on summary judgment that Plaintiff’s proposed civil penalty was too 

high or otherwise in tension with the Eighth Amendment under traditional 

principles.” His failure to do so was “a sufficient basis for denying him the 

opportunity to bring an Eighth Amendment challenge for the first time now.” 

(ECF 191 at 5.) 

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Rivera relies on this Circuit’s opinion in Yates, which was issued after the 

district court’s summary judgment ruling. (Br. 45.) Yet this decision provides no 

basis for reversal either. The monetary award at issue in Yates was imposed after a 

jury trial that established the damages caused by the defendant’s False Claims Act 

violations. See Yates, 21 F.4th at 1297. The plaintiff had not moved for summary 

judgment as to damages. See Relator Michele Yates’s Mot. for Partial Summ. J., 

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

11, 2020) (Doc. No. 103) (Dec. 14, 2018). There was, therefore, no comparable 

prior opportunity for the defendant to have opposed issuance of monetary relief. 

Here, by contrast, the issue of the proper amount of civil penalty was squarely 

raised by the FEC’s summary judgment papers and Rivera failed to address it. The 

district court’s determination that this failure foreclosed his ability to raise it postsummary judgment was not an abuse of discretion. Rivera waived this issue and 

has demonstrated no justification compelling this Court to vacate this order. See 

Solaroll Shade & Shutter Corp., Inc. v. Bio–Energy Systems, Inc., 803 F.2d 1130, 

1132 (11th Cir. 1986). 

B. The Civil Penalty is Not Unconstitutionally Excessive Under 

Yates. 

Even if the civil penalty was subject to an Eighth Amendment analysis, the 

district court correctly held that the penalty is not excessive because it is not 

grossly disproportional to Rivera’s offense. The district court had properly 

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analyzed four factors in determining the appropriate amount. See supra pp. 20-22; 

see also Furgatch, 869 F.2d at 1258; FEC v. O’Donnell, 15-cv-17, 2017 WL 

1404387, at *2 (D. Del. Apr. 19, 2017) (unpublished); FEC v. Craig for U.S. 

Senate, 70 F. Supp. 3d 82, 100 (D.D.C. 2014), aff’d, 816 F.3d 829 (D.C. Cir. 

2016); FEC v. Comm. of 100 Democrats, 844 F. Supp. 1, 7 (D.D.C. 1993).12 The 

Eighth Amendment prohibits the government from imposing “excessive fines.” 

U.S. Const. amend. VIII. The Excessive Fines Clause “limits the government’s 

power to extract payments, whether in cash or in kind, ‘as punishment for some 

offense.’” Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (quoting United States v. 

Bajakajian, 524 U.S. 321, 327–28 (1998)). In other words, payments to the 

government constitute a fine within the meaning of the Eighth Amendment when 

“it can only be explained as serving in part to punish.” Austin v. United States, 509 

U.S. 602, 610 (1993). The touchstone of the Excessive Fines Clause is 

proportionality: A fine is excessive if it is “grossly disproportional to the gravity of 

The district court’s finding of the need for deterrence has proven correct in 

the interim, as additional instances of illicit funding of sham or fringe candidates in 

Florida have since been criminally prosecuted. See, e.g., Natalia Jaramillo, Ghost 

Candidate in Osecola Commission Race Found Guilty, Orlando Sentinel (Aug. 9, 

2023) (former local official accused found guilty on 14 criminal counts of 

campaign finance reporting violations as part of “ghost” candidate scheme in 2022 

county commission race and sentenced to 180 days in jail), 

https://www.orlandosentinel.com/2023/08/09/ghost-candidate-in-osceola-countycommissioner-race-found-guilty-sentenced-tojail/#:~:text=A%20former%20Kissimmee%20city%20commissioner,to%20180%2 

0days%20in%20jail). 

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a defendant’s offense.” Bajakajian, 524 U.S. at 334. The district court held that, 

“[t]he $456,000 penalty, which represents roughly 600% of the amount of the 

violation, falls roughly mid-way between the 300-to-1,000 percent range provided 

in the penalty provision and adequately reflects Defendant’s conduct and the harm 

to the public as explained in the Order Granting Summary Judgment [ECF No. 163 

pp. 34–38].” (ECF 191 at 7.) 

The Eleventh Circuit has long read Bajakajian—the Supreme Court opinion 

establishing the “gross disproportionality” standard in the excessive-fines 

context—as requiring courts to presume fines within the legislatively enacted 

range pose no Excessive-Fines-Clause problem. See United v. Chaplin’s, Inc., 646 

F.3d 846, 852 (11th Cir. 2011) (granting a “strong presumption” of 

constitutionality to fines that fall “below the maximum statutory fines for a given 

offense”); United States v. 817 Ne. 29th Drive, Wilton Manors, Fla., 175 F.3d 

1304, 1309 (11th Cir. 1999) (same). “FECA grants district courts broad authority 

to fashion remedies for violations of the statute,” FEC v. Craig for U.S. Senate, 

816 F.3d 829, 847 (D.C. Cir. 2016). The civil penalty the Court imposed was 

pursuant to 52 U.S.C. § 30109(a)(6)(C), which applies to knowing and willful 

violations of the ban on making contributions in the name of another. That 

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

percent of the amount involved in the violation and is not more than the greater of 

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$50,000 or 1000 percent of the amount involved in the violation.” 52 U.S.C. § 

30109(a)(6)(C). In addition to having a statutory range, courts have fashioned 

additional standards to guide a district court’s discretion within the range. Thus, “a 

district court should consider (1) the good or bad faith of the defendants; (2) the 

injury to the public; (3) the defendant’s ability to pay; and (4) the necessity of 

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

1258. The district court applied those standards in this case and the fine imposed 

against Rivera was well within the allowable range. (ECF 163 at 34-37.) 

Additionally, applying the factors identified in Yates confirms this strong 

presumption that the penalty is not disproportionate to the offense. The Eleventh 

Circuit identified “several, non-exhaustive factors that guide an Excessive Fines 

Clause analysis: (i) whether the defendant is in the class of persons at whom the 

statute was principally directed; (ii) how the imposed penalties compare to other 

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

Yates, 21 F.4th at 1314. 

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

principally directed. FECA establishes a comprehensive system of disclosure for 

contributions, which provides “‘the electorate with information about the sources 

of election-related spending’” and “minimizes the potential for abuse of the 

campaign finance system.” McCutcheon v. FEC, 572 U.S. 185, 223 (2014) 

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(quoting Citizens United, 558 U.S. at 367). Without the prohibition, individuals or 

campaigns could thwart disclosure requirements and contribution limits. See supra 

p. 6. 

Rivera’s actions here fall within the core of prohibited conduct. As the 

district court explained, “[a]s a U.S. Congressman, at that time, Rivera was well 

aware of and understood FECA’s requirements that campaign contributions must 

be accurately disclosed to the public. Yet, Rivera still acted in a manner to avoid 

FECA’s disclosure requirements.” (ECF 163 at 35.) Moreover, Rivera had “full 

knowledge of the facts as well as the unlawful nature of his actions.” (Id.) 

Lastly, the $456,000 civil penalty the Court imposed here is not 

disproportionate to others that have been imposed under FECA and was actually in 

the lower half of the permissible range. As noted above, the Court could have 

imposed a civil penalty as high as approximately $760,000 within the range set by 

Congress. Moreover, the FEC has reached negotiated settlements of FECA 

violations that are significantly higher than the fine awarded here.13 Further 

In MUR 5666, Mitchell Wade and MZM, Inc., the company Wade 

principally owned, were jointly liable for a civil penalty of $1,000,000 under a 

conciliation agreement with the Commission for FECA violations that included 

making contributions in the name of another. See Selected Cases in which the Civil 

Penalties are $50,000 or Greater Made Public Between 1980 and Present (Updated 

May 2022) (“Selected Cases”), at 1, https://www.fec.gov/resources/cmscontent/documents/civilpenalties50k.pdf; see also FEC, Conciliation Agreement 

for MZM, Inc. and Mitchell J. Wade, MUR 5666 (Oct. 30, 2007), 

https://www.fec.gov/files/legal/murs/5666/000065ED.pdf. In MUR 5279, Charles 

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

often criminally prosecuted. Criminal violations of section 30122 involving more 

than $25,000 are punishable as felonies, subject to up to five years’ imprisonment. 

52 U.S.C. § 30109(d)(1)(A)(i), (D). 

The final factor the Yates court identified is the harm that has been caused 

by Rivera’s actions. Yates, 21 F.4th 1314. As the district court explained, “it is 

hard to imagine a scenario in which Rivera’s brazen violations of FECA would not 

have injured the public.” (ECF 163 at 36.) Rivera affirmatively tried to dupe the 

public into believing that advertising against a likely general election opponent had 

been funded by an opponent in the opposition party’s primary election. This is 

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

Rivera falls squarely within the class of individuals targeted by the penalty here. 

See, e.g., O’Donnell, 608 F.3d at 554. 

CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that this 

Court affirm the judgment of the district court. 

Kushner and his associated partnerships entered into a conciliation agreement with 

the FEC on June 24, 2004, which included a civil penalty of $508,900. See id. at 2. 

In today’s dollars, the civil penalty in MUR 5279 would be $775,580, a 

substantially larger penalty than that imposed on Rivera. 

54 
 

 

 

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Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

August 14, 2023 

Respectfully submitted, 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

gmueller@fec.gov 

/s/ Shaina Ward 

Shaina Ward 

Attorney 

sward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

55 
 

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

I hereby certify, on this 14th day of August, that: 

1. This document complies with the word limit of Fed. R. App. P. 32(a)(7) 

because, excluding the parts of the document exempted by Fed. R. App. 

32(f), this document contains 12,937 words. 

2. This document complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because 

this document has been prepared in a proportionally spaced typeface using 

Microsoft Word 2013 in a 14-point Times New Roman font. 

/s/ Shaina Ward

 Shaina Ward 
 

USCA11 Case: 22-11437 Document: 51 Date Filed: 08/14/2023 Page: 70 of 70 

CERTIFICATE OF SERVICE 

I hereby certify that on this 14th day of August, 2023, I electronically filed 

the foregoing document with the Clerk of the United States Court of Appeals for 

the Eleventh Circuit by using the Court’s CM/ECF system. All participants are 

registered CM/ECF users and will be served by the appellate CM/ECF system. 

/s/ Shaina Ward

 Shaina Ward