THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK BEAM and RENEE BEAM,

Plaintiffs,

v.

MATTHEW S. PETERSEN, FEDERAL 

ELECTION COMMISSION CHAIRMAN,

Defendant.

Civil No. 07cv1227

Judge Rebecca R. Pallmeyer 

Magistrate Judge Cole 

DEFENDANT’S MEMORANDUM 

IN SUPPORT OF MOTION FOR 

JUDGMENT ON PARTIAL FINDINGS 

PURSUANT TO RULE 52(c)

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR JUDGMENT ON 

PARTIAL FINDINGS PURSUANT TO RULE 52(c)

Defendant Federal Election Commission (“Commission” or “FEC”) moves this Court for 

judgment on partial findings pursuant to Federal Rule of Civil Procedure 52(c) on plaintiffs’ 

claim under the Right to Financial Privacy Act, 12 U.S.C. §§ 3401-3422 (“RFPA”). Plaintiffs 

have presented their case-in-chief at trial, but they have failed to prove their claim by a 

preponderance of the evidence. First, the evidence does not show that the FEC obtained 

plaintiffs’ private financial records from the Department of Justice (“DOJ”). Second, even 

assuming the FEC obtained plaintiffs’ financial records from DOJ, the evidence does not 

demonstrate that the transfer alleged would violate the RFPA, which does not apply to records 

originally obtained pursuant to a grand jury subpoena, or to records not originally obtained from 

a “financial institution.” Thus, the FEC respectfully requests that the Court grant judgment on 

partial findings and dismiss plaintiffs’ RFPA claim pursuant to Rule 52(c). Because the FEC 

presents this motion during trial, it files no accompanying notice of presentment.

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I. BACKGROUND

On March 24, 2008, plaintiffs filed a Second Amended Complaint (Doc. #91) claiming 

that they and other associates of the Michigan-based law firm Fieger, Fieger, Kenney & Johnson, 

P.C. (“Fieger law firm”) were subjects of a DOJ investigation into alleged criminal violations of 

the Federal Election Campaign Act, 2 U.S.C. §§ 431-55 (“FECA”). Among other claims, the 

Second Amended Complaint alleges that DOJ and the FEC violated the RFPA when DOJ 

“secretly obtained plaintiffs’ private banking records” from “Merrill Lynch,” and “transmitted 

such illegally gathered documents to the [FEC].” (Second Am. Compl. ¶¶ 15-16, 18 (Doc. #91).) 

On October 15, 2008, the Court dismissed plaintiffs’ RFPA claim against DOJ because 

DOJ obtained plaintiffs’ records by grand jury subpoena, a method that is “exempted from the 

reporting requirements” of the RFPA. (Mem. Op. and Order dated Oct. 15, 2008 at 12-13 (Doc. 

#108).) Nevertheless, the Court allowed plaintiffs’ RFPA claim to proceed against the FEC, 

explaining that if the FEC had “obtained the records from [DOJ] without following the 

procedures outlined in § 3412,” it could be liable under 12 U.S.C. § 3417 for “obtaining financial 

records or information” in violation of the RFPA, “even if [DOJ] obtained the documents 

legally.” (Id. at 13-14.) 

On February 4, 2010, the Court denied the FEC’s first motion for summary judgment, 

finding that a genuine issue of fact existed as to whether the FEC obtained plaintiffs’ private 

financial information from DOJ. (Mem. Op. and Order dated Feb. 4, 2010 at 4-5 (Doc. #148).) 

In so ruling, the Court identified an ambiguity in the deposition testimony of FEC attorney 

Phillip Olaya as to whether he had seen plaintiffs’ financial records. (Id. at 5.) On May 27, 

2010, the Court denied the FEC’s second motion for summary judgment, finding that Merrill 

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Lynch was a financial institution covered by the RFPA. (Minute Order dated May 27, 2010 

(Doc. #181).)

II. RULE 52(c) STANDARD 

Rule 52(c) states that 

[i]f a party has been fully heard on an issue during a nonjury trial and the court 

finds against the party on that issue, the court may enter judgment against the 

party on a claim . . . that, under the controlling law, can be maintained . . . only 

with a favorable finding on that issue. 

Judgment on partial findings “streamlines bench trials by authorizing the judge, having heard all 

the evidence the plaintiff has to offer, to make findings of fact adverse to the plaintiff, including 

determinations of credibility, without waiting for the defense to put on its case.” Wsol v. 

Fiduciary Mgmt. Assocs., Inc., 266 F.3d 654, 656 (7th Cir. 2001). Because the district court “is 

acting in the capacity of a finder of fact” on a Fed. R. Civ. P. 52(c) motion, Pinkston v. Madry, 

440 F.3d 879, 890 (7th Cir. 2006), the plaintiff is not entitled to any favorable inferences nor is 

the court to view the evidence in a light most favorable to the plaintiff, see Ortloff v. U.S., 335 

F.3d 652, 660 (7th Cir. 2003). See also Neopost Industrie B.V. v. PFE Int’l, Inc., 403 F. Supp.

2d 669, 675 (N.D. Ill. 2005) (explaining that under Rule 52(c), “the court is within its 

prerogative to weigh the evidence, resolve any conflicts in it, and decide for itself where the 

preponderance lies” (citations omitted)). On appeal, the Court’s legal conclusions are reviewable 

de novo, and its factual findings for clear error. Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 

2004). 

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III. PLAINTIFFS FAILED TO PROVE BY A PREPONDERANCE OF THE 

EVIDENCE THAT THE FEC VIOLATED THE RFPA 

Judgment on partial findings for the FEC is proper because plaintiffs have failed to prove 

their RFPA claim by a preponderance of the evidence, as they must at this stage of the case. 

A. Plaintiffs Have Not Shown That the FEC Obtained Their Financial Records 

from DOJ

At a minimum, plaintiffs must prove by a preponderance of the evidence that the FEC 

obtained their financial records in a transfer from DOJ in order to prove a violation of 12 U.S.C. 

§ 3412(a) or § 3417. See § 3412(a) (barring certain financial records from being “transferred to 

another agency or department” in certain circumstances); § 3417 (specifying liability of agencies 

“obtaining . . . financial records” in violation of the RFPA).

Plaintiffs have fallen far short of meeting this burden. Indeed, they have failed to even 

identify specifically what financial records of theirs were allegedly transferred from DOJ to the 

FEC. There is no credible evidence that plaintiffs’ private financial records were transferred 

from DOJ to the FEC. Indeed, though plaintiffs appear to contend that the FEC must have 

received their financial records because the agency found reason to believe they were reimbursed 

or because the agency opened an investigation, none of plaintiffs’ evidence suggests the FEC 

actually did receive any of their financial records from DOJ.1

Wassom Bayes Deposition. Former FEC attorney Audra Wassom Bayes was primarily 

responsible for the FEC’s investigation of contributions to the Edwards campaign by people 

associated with the Fieger law firm from early 2006 to August 2008 (Wassom Bayes Dep. 11:22-

13:1), which includes the period in which plaintiffs allege an RFPA violation occurred. Any 

 1 Citations to the trial transcript are not included because the transcript is not yet available, 

except for the depositions of Audra Wassom Bayes and Colleen Sealander, who are unavailable 

to attend the trial. If the Court so requests, the FEC will provide further information about the 

testimony upon which it relies.

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documents DOJ might have sent to the FEC relating to MUR 5818 would have been directed to 

Ms. Wassom Bayes, as she was the FEC’s primary contact with DOJ for this matter. (Id. at 34:7-

10.) Ms. Bayes credibly testified that DOJ gave the Commission FBI “302” reports in 2006 (id.

at 38:2-22), and public criminal trial materials in 2008 (id. at 48:10-50:8), but no private 

financial information relating to plaintiffs (id. at 62:16-21; 64:11-65:1; 67:19-68:2; 70:1-8.). 2 

Shonkwiler Trial Testimony. Mark Shonkwiler of the FEC was Ms. Wassom Bayes’s 

supervisor during the time period relevant to this case. He testified that based on his knowledge 

in supervising Ms. Wassom Bayes’s work on MUR 5818, the Commission received no personal 

financial information relating to plaintiffs from DOJ. 

Olaya Trial Testimony. FEC attorney Phillip Olaya assisted Ms. Wassom Bayes on 

MUR 5818 starting in July 2008, and assumed primary responsibility for the matter upon Ms. 

Wassom Bayes’s promotion. In their case-in-chief, plaintiffs presented only Mr. Olaya's 

deposition testimony of March 11, 2009. (Joint Trial Exh. 21.) In this deposition, Mr. Olaya 

mistakenly recalled seeing plaintiffs’ records included on the compact disc of Fieger-Johnson 

trial testimony and exhibits. (Id. at 21:3-28:14.) The Court denied the FEC’s first motion for 

summary judgment on the basis of this “somewhat ambiguous” testimony. (Mem. Op. and Order 

dated Feb. 4, 2010 at 5 (Doc. #148).) However, even if Mr. Olaya had in fact seen plaintiffs’

financial information on the compact disc, plaintiffs’ claim would still fail. As the Court has 

recognized, the materials on the compact disc are not protected by the RFPA since they were 

public trial exhibits. (Mem. Op. and Order dated Feb. 4, 2010 at 4 (citing Bond v. Utreras, 585 

F.3d 1061, 1073 (7th Cir. 2009)) (Doc. #148).)

 2 Ms. Wassom Bayes was primarily responsible for Matter Under Review (“MUR”) 5818 

until her promotion in August 2008. (Wassom Bayes Dep. 48:5-9; 68:5-14.) 

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Mr. Olaya’s “ambiguous” deposition testimony cannot support judgment against the 

Commission. This Court has acknowledged that Mr. Olaya simply must have been mistaken in 

his deposition testimony. (Id. at 4-5 (Doc. #148).) The record is clear that plaintiffs’ financial 

records were not used as Fieger-Johnson trial exhibits (see id.), and the deposition transcript 

indicates that Mr. Olaya was discussing those materials (Olaya Dep. at 21:3-28:14 (Joint Trial 

Exh. 21)). When the Court was reviewing the FEC’s motion for summary judgment, it viewed 

Mr. Olaya’s deposition testimony in a light most favorable to plaintiffs, and allowed the 

inference that Mr. Olaya did in fact view plaintiffs’ non-public financial records. (Mem. Op. and 

Order dated Feb. 4, 2010 at 5 (Doc. #148).) On a Rule 52(c) motion, however, plaintiffs must 

carry their burden and are no longer entitled to the benefit of the doubt. See Ortloff, 335 F.3d at

660. The Court may weigh the evidence, resolve competing conflicts and inferences, and 

“decide for itself where the preponderance lies.” Neopost Industrie B.V., 403 F. Supp. 2d at 675 

(internal quotations and citations omitted). Mr. Olaya’s mistaken deposition testimony alone 

cannot satisfy plaintiffs’ burden. This is particularly true in light of the consistent testimony of 

every other FEC witness that DOJ never transferred plaintiffs’ financial records to the FEC. 

Trial Testimony of Jack and Renee Beam and Letters Regarding the FEC’s “Reason to 

Believe” Finding as to Plaintiffs. Plaintiffs testified that they believe the Commission received 

their private financial records from DOJ, but there is no credible evidence to support their claim. 

Plaintiffs introduced into evidence letters dated September 26, 2006, from the FEC informing 

them that the six-member Commission had found “reason to believe” they violated 2 U.S.C. § 

441f. (Joint Trial Exhs. 2, 2a.) These letters each included an attached “factual and legal 

analysis” explaining the Commission’s decision. (Id.) Plaintiffs also introduced their October 

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2006 letters responding to the reason to believe findings, in which plaintiffs denied being 

reimbursed for their contributions to the Edwards presidential campaign. (Joint Trial Exh. 4.) 

None of these letters suggest that the FEC obtained plaintiffs’ private financial records 

from DOJ. This Court has previously rejected, as “unsubstantiated speculation,” plaintiffs’ 

assertion that the September 26 letters show that the FEC must have obtained plaintiffs’ bank 

records, and pointed out other ways the agency might have reached its “reason to believe” 

determination. (Mem. Op. and Order dated Mar. 7, 2008 at 9-10 (Doc. #90); see also Def.’s 

Reply Mem. in Supp’t of its Mot. in Limine at 4 (Doc. #193).) Plaintiffs have offered no new 

proof here. On the contrary, plaintiffs’ claims appear to rest mainly on the records that DOJ 

received from Merrill Lynch after service of a grand jury subpoena in May 2007 — some seven 

months after the FEC’s reason to believe finding. (See Second Am. Compl. ¶¶ 15-16, 18 (Doc. 

#91); Pls.’ Opp’n to Def.’s Mot. to Dismiss, Exh. B (Merrill Lynch Grand Jury Subpoena dated 

Apr. 24, 2007) (Doc. #100-2).) Mr. Beam's unsupported claim that the FEC must have gotten 

plaintiffs' private financial records in 2006 because Merrill Lynch refused to discuss the matter 

with him is clearly insufficient, and he admitted he had only circumstantial evidence.

Indeed, the factual and legal analysis attached to the September 26 “reason to believe” 

letter indicates that the FEC had not seen plaintiffs’ financial records, since it indicates that the 

FEC did not know whether Mr. Beam had in fact accepted reimbursements for his contributions. 

(Joint Trial Exh. 2, Attachment at 2 (“If [plaintiffs] accepted reimbursement for [their] 

contribution to the Edwards committee, then [they] may have violated the Act.” (emphasis 

added))). Instead, to support the inference that Mr. Beam may have violated 2 U.S.C. § 441f, the 

analysis relied upon public newspaper reports that the Fieger law firm had been generally 

reimbursing its associates and their spouses for their Edwards campaign contributions. (Id.) 

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FEC witnesses Shonkwiler and Wassom Bayes confirmed that the FEC Office of General 

Counsel generally reviews the various sources of public information available to it, including 

FEC disclosure records, in considering whether to recommend that the Commission find reason 

to believe a violation has occurred. (Wassom Bayes Dep. 20:20-22:15.) Both witnesses, as well 

as FEC witness Colleen Sealander, testified that the Commission may seek to obtain financial 

records to prove reimbursement in certain cases (Wassom Bayes Dep. 77:15-78:22; Joint Trial 

Exh. 22, Sealander Dep. 11:19-12:14), but there remains no evidence that the agency did so with 

regard to plaintiffs in violation of the RFPA.

Hearron Trial Testimony. Roger Hearron, an FEC investigator who worked on MUR 

5818, testified that he had never seen any of plaintiffs’ private financial information while 

working on the matter. Plaintiffs have argued that Mr. Hearron’s deposition testimony suggests 

that he may have received an additional group of documents from DOJ and that he therefore saw 

their private financial records, but this Court has already rejected that claim (see Mem. Op. and 

Order dated Feb. 4, 2010 at 4 (Doc. #148)), and Mr. Hearron’s trial testimony provides no new 

support for plaintiffs’ claim. Plaintiffs also questioned Mr. Hearron about the accuracy of certain 

statements in the September 2006 "reason to believe" materials they received, but none of Mr. 

Hearron's testimony shows that the FEC received plaintiffs' private financial records. 

Andersen Trial Testimony. Thomas Anderson, a staff attorney in the FEC’s enforcement 

division, testified that he was considered as a potential witness regarding the FECA’s 

requirements in the Fieger-Johnson criminal trial, and that in preparation for this potential role he 

recalled receiving a CD with some contribution data provided by DOJ. However, he did not 

testify that this material included any financial information about plaintiffs. Once again, this 

Court has already rejected plaintiffs’ argument that Mr. Andersen’s deposition testimony could 

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support a finding of an RFPA violation (see Mem. Op. and Order dated Feb. 4, 2010 at 3-4 (Doc. 

#148)), and Mr. Andersen’s trial testimony provides no support for plaintiffs’ claim. Mr. 

Andersen also testified that he recalled being shown some kind of financial exemplar, but his 

testimony was clear that he saw no indication that it related to plaintiffs.

In summary, plaintiffs have failed to satisfy their burden of demonstrating by a 

preponderance of the evidence that the FEC obtained their private financial information from 

DOJ. 

B. Plaintiffs Failed to Present Evidence Concerning a Transfer of Financial 

Records That Would Be Subject to the RFPA

Even assuming, arguendo, that plaintiffs met their burden of proving the FEC obtained 

plaintiffs’ financial records from DOJ, the FEC’s motion should still be granted because 

plaintiffs’ evidence concerns only records obtained through a grand jury subpoena from a 

securities broker-dealer — a process and source not covered by the RFPA. 

1. Plaintiffs Presented No Evidence That DOJ Obtained Their Financial 

Records Other Than by Grand Jury Subpoena 

As the Court has previously noted, plaintiffs have alleged that DOJ obtained their 

financial records using a grand jury subpoena. (Mem. Op. and Order dated Oct. 15, 2008 at 5-6, 

11-13 (Doc. #108).) Plaintiffs presented no evidence at trial suggesting that DOJ obtained their 

financial records using another method. Therefore, if the FEC had received any of plaintiffs’ 

financial records from DOJ, those records would have been originally obtained by DOJ using a 

grand jury subpoena. This alone is fatal to plaintiffs’ claim under 12 U.S.C. §§ 3412(a) and 

3417. Under the RFPA’s grand jury exemption, “[n]othing in th[e RFPA] . . . shall apply to any 

subpena or court order issued in connection with proceedings before a grand jury.” § 3413(i). 

As a result, where, as here, “[i]t is undisputed that plaintiffs’ bank records were received in 

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response to a grand jury subpoena[, p]ursuant to § 3413(i), the statutory penalties provided by 

§ 3417 are inapplicable to plaintiffs’ claim for violation of § 3412.” Taylor v. Dep’t of the Air 

Force, 18 F. Supp. 2d 1184, 1188 (D. Colo. 1998) (emphasis added), aff’d, 176 F.3d 489, 1999 

WL 270405, at *2 (10th Cir. 1999) (Table) (affirming that “the district court correctly noted” 

that under the grand jury exemption, defendants “were not subject to the notice requirements of 

§ 3412”).3

This Court has already relied upon the grand jury exemption to dismiss DOJ from this 

case. (Mem. Op. and Order dated Oct. 15, 2008 at 11-13 (Doc. #108).) The Court also held that 

the FEC could still be liable for receiving the exempted records from DOJ in the event that DOJ 

did not comply with the certification requirement in section 3412(a). (Id. at 13-14.) The 

Commission respectfully suggests that this conclusion was incorrect. As other courts have 

explained, the grand jury exemption categorically exempts grand jury records from the entire 

RFPA, including section 3412(a). See § 3413(i) (“Nothing in this chapter . . . shall apply . . . .” 

(emphasis added)); In re Grand Jury Proceedings, 636 F.2d 81, 84 (5th Cir. 1981) (“Under 

3413(i), . . . disclosure pursuant to issuance of a subpoena or court order respecting a grand jury 

proceeding is exempted from all provisions of the Act except Section 3415 . . . and Section 3420 

. . . .” (emphasis added and footnote omitted)); Taylor, 18 F. Supp. 2d at 1188 (“The grand jury 

exemption is categorical and bars recovery by plaintiffs under § 3412.”), aff’d, 176 F.3d 489, 

 3 In Taylor, DOJ obtained the plaintiff’s financial records pursuant to a grand jury 

subpoena, and then shared those records with the Air Force Office of Special Investigations 

(“AFOSI”), which was conducting a parallel civil investigation into the plaintiff’s activities. See

18 F. Supp. 2d at 1187. Just as alleged here, the plaintiff claimed that the transfer violated 

section 3412(a), and the plaintiff sought damages against DOJ and AFOSI under section 3417. 

Id. The district court dismissed the claim — as to both DOJ and AFOSI — explaining that “[t]he 

grand jury exemption is categorical and bars recovery by plaintiffs under § 3412.” Id. at 1188. 

The Tenth Circuit affirmed the district court’s ruling. See 176 F.3d 489, 1999 WL 270405, at *2.

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1999 WL 270405 at *2 (“[T]he RFPA does not apply ‘to any subpoena or court order issued in 

connection with proceedings before a grand jury.’ 12 U.S.C. § 3413(i).”). Thus, the grand jury 

exemption exempts both DOJ’s alleged initial receipt of plaintiffs’ records and the alleged 

subsequent transfer of those records to the FEC.4

In sum, because plaintiffs have failed to demonstrate that DOJ obtained any of their 

financial records through a source other than a grand jury subpoena, plaintiffs have not met their 

burden of proof under the RFPA. 

2. Plaintiffs Presented No Evidence That DOJ Obtained Their Financial 

Records from a “Financial Institution” Under the RFPA

The RFPA applies only to financial records the government obtains from a “financial 

institution.” 12 U.S.C. § 3402. Plaintiffs alleged in their operative complaint that the records the 

FEC obtained from DOJ were their “private banking records” that DOJ obtained from “Merrill 

Lynch.” (Second Am. Compl. ¶¶ 15-16, 18 (Doc. #91); Mem. Op. and Order dated Oct. 15, 

2008 at 5-6 (Doc. #108).). At trial, plaintiffs provided no evidence in their case-in-chief that 

“Merrill Lynch” qualifies as a “financial institution” under the RFPA or that DOJ obtained any 

of their financial records from another source that is a financial institution under the RFPA. 

The FEC has previously explained that the “Merrill Lynch” entity to which plaintiffs 

refer appears to be a securities broker-dealer and that this kind of entity is not a “financial 

 4 Moreover, the language of section 3412(a)’s certification requirement itself removes any 

doubt about whether it applies to records originally obtained by grand jury subpoena. The 

provision states that only “[f]inancial records originally obtained pursuant to th[e RFPA]” must 

be transferred in accord with the certification requirement. See § 3412(a). Since records 

obtained by grand jury subpoena are exempt from the RFPA, see § 3413(i), they are not “records 

originally obtained pursuant to th[e RPFA]” under section 3412(a).

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institution” under the RFPA.5 Although the Court did not accept the Commission’s argument on 

this point (see Minute Order dated May 27, 2010 (Doc. #181)), plaintiffs presented no evidence 

at trial that demonstrates that the arm of Merrill Lynch that provided documents to DOJ is a 

“financial institution” within the meaning of the RFPA. That statute defines “financial 

institution” as “any office of a bank, savings bank, card issuer . . . , industrial loan company, trust 

company, savings association, building and loan, or homestead association (including 

cooperative banks), credit union, or consumer finance institution, located in [the United States],” 

and does not mention broker-dealers. See id. § 3401(1). This definition includes only the 

specified entities — there is no general category or “catch-all” provision, and the definition 

should not be interpreted broadly to encompass broker-dealers. Where Congress wanted parts of 

the RFPA to apply to documents obtained from broker-dealers, it said so explicitly. The RFPA’s 

definition of “financial institution” notes that it does not apply to section 3414 — a special 

provision of the RFPA that only applies to documents the government obtains pursuant to 

national security interests. See §§ 3401(1), 3414. A special, broader definition of “financial 

institution” borrowed from another statute applies to this section, see § 3414(d), and it explicitly 

includes “a broker or dealer registered with the [SEC]” and a “broker or dealer in securities or 

commodities,” see 31 U.S.C. § 5312(a)(2)(G) & (H). In contrast, the narrower RFPA definition 

of “financial institution” that applies to this case does not explicitly include broker-dealers, see

§ 3401(1). 

Plaintiffs’ evidence concerned records obtained solely from Merrill Lynch. Because 

plaintiffs failed to prove that this broker-dealer is a “financial institution” under the RFPA, and 

 5 (See Def.’s Mem. in Supp’t of its Second Mot. for Summ. J. at 4-9 (citing, among other 

things, documents indicating DOJ subpoenaed records from the “brokerage arm of Merrill 

Lynch” during the Fieger criminal matter) (Doc. #161).)

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because plaintiffs presented no evidence that their financial records were obtained from any 

other entity, they have failed to meet their burden of proof.

CONCLUSION

For the foregoing reasons, the Court should grant the Federal Election Commission 

judgment on partial findings pursuant to Rule 52(c), and dismiss plaintiffs’ RFPA claim. 

Respectfully submitted, 

Phillip Christopher Hughey

Acting General Counsel

David Kolker

Associate General Counsel

/s/ Harry J. Summers

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III

Attorney 

Holly J. Baker

Attorney

August 26, 2010 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

AND ITS CHAIRMAN

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

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