1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-CV-22643-COOKE/GOODMAN

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

DAVID RIVERA,

Defendant.

____________________________________/

DAVID RIVERA’S REPLY TO PLAINTIFF’S MEMORANDUM IN 

OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

Defendant David Rivera, by and through his undersigned counsel, respectfully submits this 

reply to plaintiff Federal Election Commission’s memorandum in opposition to defendant’s motion 

for summary judgment and, in support thereof, states as follows:

In order to establish the absence of sufficient facts to support a claim, the United States 

Supreme Court spoke to the requirements of Rule 56(c) of the Federal Rules of Civil Procedure:

By its very terms, [Rule 56(c)] provides that the mere existence of some 

alleged factual dispute between the parties will not defeat an otherwise 

properly supported motion for summary judgement; the requirement is that 

there be no genuine issue of material fact. 

As to materiality, the substantive law will identify which facts are material. 

Only disputes over facts that might affect the outcome of the suit under the 

governing law will probably preclude the entry of summary judgment. 

Factual disputes that are irrelevant or unnecessary will not be counted. See

generally 10A C. Wright, A. Miller, and M. Kane, Federal Practice and 

Procedure Section 2725, pp. 93-95 (1983). This materiality inquiry is 

independent of and separate from the question of the incorporation of the 

evidentiary standard into the summary judgment determination. That is, 

while the materiality determination rests on the substantive law, it is the 

substantive law’s identification of which facts are critical and which facts 

are irrelevant that governs. 

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 1 of 7
2

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 

2512, 91 L.Ed. 2d 202 (1986)). 

The Supreme Court further clarified the necessity for a party opposing a motion for summary 

judgment to establish that the facts it alleges are genuine:

...At the summary judgment stage, the judge’s function is not himself to 

weigh the evidence and determine the truth of the matter but to determine 

whether there is a genuine issue for trial. ...[T]here is no issue for trial 

unless there is sufficient evidence favoring the non-moving party for a jury 

to return a verdict for that party. (Citations omitted). If the evidence is 

merely colorable (citations omitted), or is not significantly probative, 

(citations omitted), summary judgment may be granted. 

Id. at 249-250, 2511. 

In the present case, the defendant need only show the non-existence of any material fact 

which supports the single count alleged in the complaint i.e. that Mr. Rivera was the source of 

payments and/or in-kind services to the Sternad campaign, and that he “took measures to conceal

his involvement and the source of the contributions”. The gravemen of this allegation is financial in 

nature. As this Court is well aware Title 52 U.S.C. §30122 and the accompanying regulations of the 

Federal Election Commission require that the defendant be the party responsible for the 

contributions made to the Sternad campaign, and having done so in the name of another person. 

Evidence establishing Mr. Rivera as the source of funds and/or making contributions himself in the 

name of another would be the material fact that could defeat the defendant’s motion for summary 

judgment. Unfortunately for the plaintiff, there is no material fact submitted in its pleadings which

shows that Mr. Rivera was the source connected with a financial transaction. Without a single 

genuine material fact establishing Mr. Rivera’s direct involvement in a financial transaction on 

behalf of the Sternad campaign, the underlying basis for the violation of Title 52 U.S.C. §30122 is 

absent. 

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 2 of 7
3

A financial transaction which is directly linked to Mr. Rivera as the source is the most 

essential element to be proven in this case. A moving party is entitled to summary judgement if the 

non-moving party has failed to make a showing sufficient to establish the existence of an essential 

element to that party’s case. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 

2553, 91 L.Ed. 2d 265 (1986). “Only disputes over facts that might affect the outcome of the suit 

under the governing law will properly preclude the entry of summary judgment”, Dulany v. 

Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 

242, 248 (1986)). 

At no time did Mr. Rivera make in-kind contributions to the vendors while taking steps to 

hide his identity as the source. Plaintiff goes to great lengths in its effort to associate Mr. Rivera to 

Ms. Alliegro’s participation with and assistance to the Sternad campaign. Although Mr. Rivera 

denies participating in or assisting Ms. Alliegro with her management of the Sternad campaign, 

even if such participation was true, that action by itself, without a financial component, would not 

be a violation of §30122. 

For example, if the evidence in this case could establish that Mr. Rivera urged or arranged 

for Ms. Alliegro to assist the Sternad campaign as part of a scheme, this fact would be insufficient to 

establish the material fact necessary for a violation of §30122. 

1

If the evidence in this case could 

establish that Mr. Rivera was aware of other persons funding the Sternad campaign with cash or

1 Similarly, as has been recently reported in the media, Kanye West’s presidential bid has been 

promoted and assisted by the Republican Party in at least 5 states. See Washington Post, August 9, 

2020; New York Times August 4, 2020 (updated August 10, 2020). By promoting and assisting a

spoiler candidate, the Republican Party could be seen as unethical, sneaky, etc., but without 

financial assistance being given to candidate West, there is no violation of the FEC regulations or 

§30122.

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 3 of 7
4

other in-kind services, without Mr. Rivera being the source of the funds or the party who was 

proven to directly give the in-kind contributions, this fact would be insufficient to deny the motion 

for summary judgement. If the evidence could establish that Mr. Rivera assisted another party in 

making a donation to the Sternad campaign (without evidence establishing that he was the source) 

such conduct as an “aider and abettor” does not violate §30122 see FEC v. Swallow, 304 F. Supp. 

3d 1113 (D. Utah 2018). Without possessing material facts to support a financial transaction

essential to a violation of §30122, plaintiff reverts to assumptions, conclusions, and an inadmissible 

grand jury transcript of Ana Alliegro. 

As previously stated herein, a non-moving party must not only present material facts in 

opposition to its opponent’s motion for summary judgment, but the material facts must be genuine. 

A factual dispute is “genuine” and summary judgment would be precluded if the evidence presented 

in support of and in opposition to the motion is so contradictory that, if presented at trial, a judgment 

could enter for either party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

2511, 91 L.Ed. 2d 202 (1986). Because the grand jury transcript of Ana Alliegro’s testimony is 

unadulterated hearsay and not admissible at trial, such a document should not be considered by the

Court as containing “genuine material facts”. In attempting to raise a genuine material issue of fact 

in its response to the defendant’s motion for summary judgment, plaintiff has the burden of 

establishing that it has the ability to present such evidence in an admissible form at trial. See Federal 

Rule of Civil Procedure 56(c)(2). Unless the plaintiff can establish in good faith that Ms. Alliegro 

is available to testify to the facts contained in the grand jury testimony, the transcript should not be 

considered by the Court’s as containing genuine material facts in opposition to defendant’s motion 

for summary judgment.

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 4 of 7
5

In making the determination of whether the defendant’s motion for summary judgement 

should be granted, the Court should also consider applicable burdens of proof. If the plaintiff is 

unable to sufficiently adduce evidence that could lead a reasonable jury to conclude that the plaintiff 

has satisfied his burden of proof, its claim is subject to an unfavorable summary disposition.

Eisenburg v. Insurance Company of North America, 815 F.2d 1285, 1288-1289 (9th Cir. 1987) 

(citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202 

(1986)). 

Being left without any evidence to support its claim that Mr. Rivera provided financial 

support and/or in-kind contributions to the Sternad campaign and intentionally hid his identity, 

plaintiff is left with only assumptions, conclusions, and inuendo. Throughout its memorandum in 

opposition to defendant’s motion for summary judgment and in its opposing statement of material 

facts, the FEC sets forth conclusions and arguments without the required genuine material facts to 

support it. A party opposing a properly supported motion for summary judgment may not rest 

upon mere allegations or denials in a pleading, an unsubstantiated assertion that a fact issue exists 

will not suffice. Morris v. Covan Worldwide Moving Inc., 144 F.3d 377, 380 (5th Cir. 1998). 

“[T]he non-moving party must set forth specific facts showing the existence of a “genuine” issue 

concerning every essential component of its case” Id. The district court must, in considering a 

defendant’s motion for summary judgement, view the evidence “through the prism of the 

substantive evidentiary burden” Anderson v. Liberty Lobby Inc., 106 S.Ct. at 2513 (1986).

In conclusion, the plaintiff has stacked inuendo on top of assumption, on top of conclusion

in its argument that Mr. Rivera was the party responsible for monetary donations and/or in-kind 

contributions to the Sternad campaign and that he hid his identity as the true source. The only

document which the plaintiff has supplied to the Court in an effort to support its claim of a violation 

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 5 of 7
6

of 52 U.S.C. §30122 is an inadmissible grand jury transcript of Ana Alliegro. Unless Ms. Alliegro 

is available to testify at trial and make herself available to cross-examination, the Court should not 

consider the grand jury testimony as a genuine material issue of fact. Humphry’s and Partners 

Architects, L.P. v. Lassard Design Inc., 790 F.3d 532, 538 (4th Cir. 2015), Alexander v. Pair Source, 

576 F.3d 551, 558 (6th Cir. 2009); Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 

2012) (“the most obvious way that hearsay testimony can be reduced to admissible form is to have 

the hearsay declarant testify directly to the matter at trial”). The submitting party bears the burden 

of showing that the evidence would be admissible as presented, or that it could be presented in 

admissible form at the time of trial. See Humphry’s, 790 at 538-539. 

Defendant’s motion for summary judgment should be granted.

Respectfully submitted,

ROY J. KAHN, P.A.

800 Brickell Avenue, Suite 1400

Miami, Florida 33131

Tel: (305) 358-7400

Fax: (305) 358-7222

/s/___Roy J. Kahn________

ROY J. KAHN

Florida Bar No. 224359

rjk@roykahnlaw.com

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 6 of 7
7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 31, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is 

being served this day on all counsel of record and emailed. 

_/s/ Roy J. Kahn________

ROY J. KAHN

Case 1:17-cv-22643-MGC Document 152 Entered on FLSD Docket 08/31/2020 Page 7 of 7